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TABLE OF CONTENTS F.1. RULE OF NON-DELEGATION OF LEGISLATIVE
POWER ................................................................... 17

CONSTITUTIONAL LAW 1 ...........1 F.2. TESTS FOR VALID DELEGATION .................. 18

I. THE CONSTITUTION................................................... 2 G. FORMS OF GOVERNMENT .................................. 19

A. DEFINITION, NATURE, CONCEPTS ....................... 2 G.1. DEFINITION .................................................... 19

A.1. POLITICAL LAW ................................................ 2 G.2. AS TO THE EXISTENCE OR ABSENCE OF


CONTROL .............................................................. 19
A.2. CONSTITUTIONAL LAW .................................. 2
G.3. AS TO CONCENTRATION OF POWERS ........20
A.3. CONSTITUTION DEFINED ............................... 2
G.4. AS TO CENTRALIZATION ..............................20
A.4. CLASSES OF CONSTITUTIONS....................... 2
III. LEGISLATIVE DEPARTMENT .................................. 20
A.5. BASIC PRINCIPLES.......................................... 3
A. WHO MAY EXERCISE LEGISLATIVE POWER.......20
A.6. TYPES OF JUDICIAL REVIEW .......................... 3
A.1. CONGRESS .....................................................20
B. PARTS OF A CONSTITUTION ................................. 3
A.2. REGIONAL/LOCAL LEGISLATIVE POWER ...20
C. AMENDMENTS AND REVISIONS........................... 3
A.3. PEOPLE’S INITIATIVE ON STATUTES ...........20
C.1 CONCEPTS ......................................................... 3
A.4. THE PRESIDENT UNDER MARTIAL LAW OR
C.2 PROCEDURE ..................................................... 4 IN A REVOLUTIONARY GOVERNMENT ................21
C.3. SUMMARY OF TWO STAGES OF B. HOUSES OF CONGRESS .......................................21
AMENDATORY/ REVISION PROCESS ................... 5
B.1. SENATE ............................................................21
D. SELF-EXECUTING AND NON-SELF-EXECUTING
PROVISIONS................................................................ 8 B.2. HOUSE OF REPRESENTATIVES.....................21

D.1. RULE ................................................................. 8 C. LEGISLATIVE PRIVILEGES, INHIBITIONS,


DISQUALIFICATIONS ................................................ 24
E. GENERAL PROVISIONS .......................................... 8
C.1. PRIVILEGES ..................................................... 24
II. GENERAL CONSIDERATIONS ................................... 9
C.2. INHIBITIONS AND DISQUALIFICATIONS ..... 25
A. NATIONAL TERRITORY .......................................... 9
C.3. DUTY TO DISCLOSE ....................................... 26
A.1. ARCHIPELAGIC DOCTRINE ............................. 9
D. QUORUM AND VOTING MAJORITIES ................. 26
B. STATE IMMUNITY ..................................................10
D.1. QUORUM ........................................................ 26
B.1. – SUMMARY OF RULE ....................................10
D.2. VOTING MAJORITIES......................................... 27
B.2 CONCEPTS .......................................................10
E. DISCIPLINE OF MEMBERS ................................... 27
B.3. SUITS AGAINST THE STATE ..........................10
F. ELECTORAL TRIBUNAL AND THE COMMISSION
B.4. SPECIFIC RULES ............................................. 12
ON APPOINTMENTS ................................................. 28
B.5. SUITS AGAINST PUBLIC OFFICERS .............. 12
ELECTORAL TRIBUNALS ..........................................28
B.6. EXCEPTIONS TO PRIOR CONSENT RULE .... 12
F.1. NATURE........................................................... 28
B.7. SCOPE OF CONSENT...................................... 12
F.2. POWERS ......................................................... 29
C. GENERAL PRINCIPLES AND POLICIES ................ 13
COMMISSION ON APPOINTMENTS......................... 30
D. SEPARATION OF POWERS ................................... 16
G. POWERS OF CONGRESS ......................................31
E. CHECKS AND BALANCES...................................... 16
G.1. INHERENT POWERS .......................................31
F. DELEGATION OF POWERS ................................... 17
G.2. LEGISLATIVE [ATE-M-FEAR-A] ..................... 31
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G.3. NON-LEGISLATIVE ........................................ 36 D.4. DISQUALIFICATION FROM OTHER
REGULAR PROCEDURE: [SEC. 3(2)(3)] .................... 36 POSITIONS OR OFFICES ....................................... 70

G.4. SPECIFIC POWERS ........................................ 37 E. SUPREME COURT ................................................. 70

IV. EXECUTIVE DEPARTMENT ..................................... 37 E.1. COMPOSITION ................................................ 70

A. PRIVILEGES, INHIBITIONS, DISQUALIFICATIONS .. 38 E.2. EN BANC AND DIVISION CASES ................... 70

A.1. PRIVILEGES .................................................... 38 E.3. PROCEDURAL RULE-MAKING ....................... 71

B. POWERS................................................................ 42 E.4. ADMINISTRATIVE SUPERVISION OVER


LOWER COURTS .................................................... 71
B.1. EXECUTIVE AND ADMINISTRATIVE POWERS
IN GENERAL .......................................................... 42 E.5. ORIGINAL AND APPELLATE JURISDICTION 72

B.2. POWER OF APPOINTMENT .......................... 43 F. JUDICIAL PRIVILEGE ............................................. 72

B.3. POWER OF CONTROL AND SUPERVISION . 47 VI. CONSTITUTIONAL COMMISSIONS ......................... 73

B.4. MILITARY POWERS ....................................... 48 A. CONSTITUTIONAL SAFEGUARDS TO ENSURE


INDEPENDENCE OF COMMISSIONS ....................... 73
B.5. PARDONING POWERS .................................. 53
A.1 PROMOTIONAL APPOINTMENT OF
B.6. DIPLOMATIC POWER .................................... 55 COMMISSIONER TO CHAIRMAN ......................... 74
B.7. POWERS RELATIVE TO APPROPRIATION B. POWERS AND FUNCTIONS OF EACH
MEASURES ............................................................ 58 COMMISSION ............................................................ 74
B.8. DELEGATED POWERS .................................. 58 B.1. CIVIL SERVICE COMMISSION ........................ 74
B.9. VETO POWER ................................................ 60 B.2. COMMISSION ON ELECTIONS ...................... 76
B.10. RESIDUAL POWERS .................................... 60 B.3. COMMISSION ON AUDIT ............................... 78
B.11. EXECUTIVE PRIVILEGE ................................. 60 C. PROHIBITED OFFICES AND INTERESTS ............. 78
C. RULES ON SUCCESSION ...................................... 61 D. JURISDICTION ...................................................... 79
C.1. PRESIDENT .......................................................... 61 D.1. CIVIL SERVICE COMMISSION ........................ 79
C.2. CONSTITUTIONAL DUTY OF CONGRESS IN D.2. COMMISSION ON ELECTIONS...................... 79
CASE OF VACANCY IN THE OFFICES OF THE
PRESIDENT AND VICE-PRESIDENT .................... 62 D.3. COMMISSION ON AUDIT .............................. 79

C.3. VACANCY IN THE OFFICE OF THE VICE- E. REVIEW OF FINAL ORDERS, RESOLUTIONS, AND
PRESIDENT ........................................................... 62 DECISIONS ............................................................... 80

V. JUDICIAL DEPARTMENT ......................................... 62 E.1. RENDERED IN EXERCISE OF QUASI-JUDICIAL


FUNCTIONS .......................................................... 80
A. CONCEPTS ............................................................ 62
E.2. RENDERED IN THE EXERCISE OF
A.1. JUDICIAL POWER ........................................... 62
ADMINISTRATIVE FUNCTIONS ............................ 81
A.2. JUDICIAL REVIEW .......................................... 62
VII. CITIZENSHIP ......................................................... 82
B. SAFEGUARDS OF JUDICIAL INDEPENDENCE ... 66 A. WHO ARE FILIPINO CITIZENS.............................. 82
C. JUDICIAL RESTRAINT........................................... 67 B. MODES OF ACQUIRING CITIZENSHIP................. 83
D. APPOINTMENTS TO THE JUDICIARY .................. 68 C. NATURALIZATION ................................................ 83
D.1. CONSTITUTIONAL REQUIREMENTS ............ 68 C.1. NATURALIZATION.......................................... 83
D.2. JUDICIAL AND BAR COUNCIL ...................... 69 C.2. DENATURALIZATION ....................................84
D.3. PROCEDURE OF APPOINTMENT ................. 69
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D. DUAL CITIZENSHIP AND DUAL ALLEGIANCE ... 84
CONSTITUTIONAL LAW 2 .......97
D.1. DUAL CITIZENSHIP ........................................ 84
I. FUNDAMENTAL POWERS OF THE STATE ............... 98
D.2. DUAL ALLEGIANCE ....................................... 84
A. CONCEPT, APPLICATION AND LIMITS................98
E. LOSS AND RE-ACQUISITION ............................... 85
A.1 POLICE POWER ...............................................98
E.1. GROUNDS [NEO-MADD] ............................... 85
A.2 EMINENT DOMAIN ....................................... 100
E.2. REACQUISITION [NRL] .................................. 85
A.3 TAXATION ...................................................... 101
F. NATURAL-BORN CITIZENS AND PUBLIC OFFICE
B. REQUISITES FOR VALID EXERCISE ................... 102
................................................................................... 86
B.1 POLICE POWER ............................................. 102
F.1 NATURAL-BORN CITIZENS ............................ 86
B.2 EMINENT DOMAIN ....................................... 102
F.2. WHO MUST BE NATURAL-BORN? ............... 87
B.3 TAXATION ..................................................... 102
VIII. NATIONAL ECONOMY AND PATRIMONY............. 87
A. REGALIAN DOCTRINE.......................................... 87 C. SIMILARITIES AND DIFFERENCES .................... 102

A.1. DOCTRINE OF NATIVE TITLE ........................ 87 D. DELEGATION ...................................................... 104

B. NATIONALIST AND CITIZENSHIP REQUIREMENT D.1 POLICE POWER ............................................. 104


PROVISIONS.............................................................. 88 D.2 EMINENT DOMAIN ....................................... 104
B.1. FILIPINO FIRST ............................................... 89 D.3 TAXATION ..................................................... 105
C. EXPLORATION, DEVELOPMENT, AND II. PRIVATE ACTS AND THE BILL OF RIGHTS ............. 105
UTILIZATION OF NATURAL RESOURCES ............... 89 A. RELATIVITY OF DUE PROCESS.......................... 108
D. FRANCHISES, AUTHORITY AND CERTIFICATES B. PROCEDURAL AND SUBSTANTIVE DUE
FOR PUBLIC UTILITIES .............................................. 91 PROCESS ................................................................. 108
D.1. NATURE OF A FRANCHISE ............................ 91 B.1 SCOPE ............................................................ 108
E. ACQUISITION, OWNERSHIP, AND TRANSFER OF B.2 SUBSTANTIVE DUE PROCESS ..................... 108
PUBLIC AND PRIVATE LANDS .................................. 91
B.3 PROCEDURAL DUE PROCESS ..................... 109
F. PRACTICE OF PROFESSIONS .............................. 92
C. SUBSTANTIVE DUE PROCESS ............................. 111
G. ORGANIZATION AND REGULATION OF
CORPORATIONS, PRIVATE AND PUBLIC D. CONSTITUTIONAL AND STATUTORY DUE
(STEWARDSHIP CONCEPT) ..................................... 92 PROCESS ................................................................... 111

H. MONOPOLIES, RESTRAINT OF TRADE AND D.1 CONSTITUTIONAL DUE PROCESS................. 111


UNFAIR COMPETITION ............................................ 93 D.2. STATUTORY DUE PROCESS ......................... 111
H.1. MONOPOLIES................................................. 93 E. HIERARCHY OF RIGHTS ...................................... 112
H.2. CENTRAL MONETARY AUTHORITY ............. 93 F. JUDICIAL STANDARDS OF REVIEW.................... 112
IX. SOCIAL JUSTICE AND HUMAN RIGHTS ................. 94 F.1. “RATIONAL BASIS TEST” .............................. 112
A. CONCEPT OF SOCIAL JUSTICE ............................ 94 F.2. “STRICT SCRUTINY TEST”............................ 112
B. COMMISSION ON HUMAN RIGHTS .................... 94 F.3. “INTERMEDIATE SCRUTINY TEST” ............. 112
X. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, G. VOID-FOR-VAGUENESS DOCTRINE .................. 113
CULTURE AND SPORTS .............................................. 95
IV. EQUAL PROTECTION............................................. 114
A. RIGHT TO EDUCATION PROVISIONS.................. 95
A. CONCEPT ............................................................. 114
B. ACADEMIC FREEDOM .......................................... 96
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B. REQUISITES FOR VALID CLASSIFICATION........ 115 E. STATE REGULATION OF DIFFERENT TYPES OF
B.1 EXAMPLES OF VALID CLASSIFICATION ....... 115 MASS MEDIA ........................................................... 143

C. STANDARDS FOR JUDICIAL REVIEW ................ 116 F. COMMERCIAL SPEECH ....................................... 144

V. SEARCHES AND SEIZURES.................................... 118 G. PRIVATE VERSUS GOVERNMENT SPEECH ...... 145

A. CONCEPT ............................................................. 118 H. HECKLER’S VETO ............................................... 145

B. WARRANT REQUIREMENT................................. 118 VIII. FREEDOM OF RELIGION ..................................... 145

C. WARRANTLESS SEARCHES ............................... 121 A. NON-ESTABLISHMENT CLAUSE ....................... 146

D. WARRANTLESS ARRESTS.................................. 127 A.1 CONCEPT ....................................................... 146

E. ADMINISTRATIVE ARRESTS ...............................129 A.2 BASIS ............................................................. 146

F. DRUG, ALCOHOL AND BLOOD TESTS ...............129 A.3 ACTS NOT PERMITTED BY NON-
ESTABLISHMENT CLAUSE ................................. 146
VI. PRIVACY ............................................................... 130
A.4 ACTS PERMITTED BY NON-ESTABLISHMENT
A. PRIVATE AND PUBLIC COMMUNICATIONS .......131 CLAUSE ................................................................ 146
B. INTRUSION, WHEN ALLOWED ............................131 A.5 TWO STANDARDS USED IN DECIDING
C. WRIT OF HABEAS DATA ...................................... 133 RELIGION CLAUSE CASES...................................147
VII. FREEDOM OF EXPRESSION .................................134 B. FREE EXERCISE CLAUSE ................................... 148
A. NATURE AND SCOPE.......................................... 134 B.1 BENEVOLENT NEUTRALITY DOCTRINE ...... 148
A.1 PRIOR RESTRAINT......................................... 135 C. TESTS................................................................... 149
A.2 SUBSEQUENT PUNISHMENT ....................... 136 C.1 CLEAR AND PRESENT DANGER .................. 149
B. CONTENT-BASED AND CONTENT-NEUTRAL C.2 BENEVOLENT NEUTRALITY – COMPELLING
REGULATIONS ......................................................... 137 STATE INTEREST ................................................ 149
B.1 CONTENT-BASED RESTRICTIONS ............... 137 C.3 CONSCIENTIOUS OBJECTOR ....................... 149
B.2 CONTENT-NEUTRAL RESTRICTIONS .......... 139 IX. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT
................................................................................... 150
C. FACIAL CHALLENGES AND THE OVERBREADTH
DOCTRINE ............................................................... 140 A. LIMITATIONS....................................................... 150
C.1 FACIAL CHALLENGES ................................... 140 B. RIGHT TO RETURN TO ONE’S COUNTRY .......... 151
C.2 OVERBREADTH DOCTRINE ......................... 140 X. RIGHT TO INFORMATION ....................................... 151
D. TESTS .................................................................. 140 A. LIMITATIONS....................................................... 152
D.1 DANGEROUS TENDENCY TEST .................... 141 B. PUBLICATIONS OF LAWS AND REGULATIONS 152
D.2 CLEAR AND PRESENT DANGER TEST ........ 141 C. ACCESS TO COURT RECORDS .......................... 153
D.3 BALANCING OF INTEREST TEST.................. 141 D. RIGHT TO INFORMATION RELATIVE TO
GOVERNMENT CONTRACT NEGOTIATIONS ........ 153
D.4 DIRECT INCITEMENT TEST...........................142
XI. RIGHT TO ASSOCIATION ...................................... 154
D.5 INTERMEDIATE REVIEW...............................142
XII. EMINENT DOMAIN............................................... 155
D.6 GRAVE-BUT-IMPROBABLE DANGER TEST 142
A. CONCEPT ............................................................ 155
D.7 MILLER TEST .................................................142
B. EXPANSIVE CONCEPT OF “PUBLIC USE” ..........157
D.8 TEST FOR CONTENT-NEUTRAL REGULATION
...............................................................................142 C. JUST COMPENSATION ........................................157

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C.1 DETERMINATION .......................................... 158 A.1 BASIS ............................................................... 173
C.2 EFFECT OF DELAY ........................................ 158 A.2 PETITION FOR WRIT...................................... 173
D. ABANDONMENT OF INTENDED USE AND RIGHT B. WRIT OF HABEAS DATA ......................................175
OF REPURCHASE ....................................................159 C. WRIT OF KALIKASAN ...........................................175
E. MISCELLANEOUS APPLICATION........................159 XIX. SELF-INCRIMINATION CLAUSE .......................... 176
XIII. CONTRACTS CLAUSE ......................................... 160 A. SCOPE AND COVERAGE .....................................176
A. CONTEMPORARY APPLICATION OF THE B. APPLICATION .......................................................176
CONTRACT CLAUSE ............................................... 160
C. IMMUNITY STATUTES ......................................... 177
B. LIMITATIONS ...................................................... 160
XX. INVOLUNTARY SERVITUDE AND POLITICAL
XIV. LEGAL ASSISTANCE AND FREE ACCESS TO PRISONERS ................................................................177
COURTS ..................................................................... 161
XXI. EXCESSIVE FINES AND CRUEL AND INHUMAN
XV. RIGHTS OF SUSPECTS .........................................162 PUNISHMENTS .......................................................... 178
A. AVAILABILITY....................................................... 163 XXII. NON-IMPRISONMENT FOR DEBTS ................... 179
A.1 CUSTODIAL INVESTIGATION ........................ 163 XXIII. DOUBLE JEOPARDY ......................................... 180
A.2 CRITICAL PRE-TRIAL STAGE ........................ 163 A. REQUISITES ........................................................ 180
A.3 SHOW-UP AND POLICE LINE-UP ................. 163 B. MOTIONS FOR RECONSIDERATION AND
B. REQUISITES .........................................................164 APPEALS................................................................... 181

C. WAIVER ................................................................165 C. DISMISSAL WITH CONSENT OF ACCUSED........ 181

XVI. RIGHTS OF THE ACCUSED ................................. 166 XXIV. EX POST FACTO AND BILLS OF ATTAINDER .... 182
A. CRIMINAL DUE PROCESS...................................166 A. EX POST FACTO LAWS ....................................... 182

B. BAIL ...................................................................... 167 B. BILLS OF ATTAINDER......................................... 182

C. PRESUMPTION OF INNOCENCE ....................... 168


D. RIGHT TO BE HEARD ..........................................169 ADMINISTRATIVE LAW ............ 183
E. ASSISTANCE OF COUNSEL.................................169 I. GENERAL PRINCIPLES......................................... 184
F. RIGHT TO BE INFORMED ....................................169 A. DEFINITION ........................................................ 184
G. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC B. HISTORICAL CONSIDERATIONS...................... 184
TRIAL ........................................................................169
B.1. WHY DID ADMINISTRATIVE AGENCIES
H. RIGHT TO CONFRONTATION ............................. 170 COME ABOUT? .................................................... 184
I. TRIAL IN ABSENTIA................................................ 171 B.2. WHY ARE ADMINISTRATIVE AGENCIES
I.1 WHEN CAN TRIAL IN ABSENTIA BE DONE ..... 171 NEEDED? ............................................................. 184
I.2 WHEN PRESENCE OF THE ACCUSED IS A II. ADMINISTRATIVE AGENCIES............................. 184
DUTY ...................................................................... 171 A. DEFINITION ........................................................ 184
I.3 TRIAL IN ABSENTIA.......................................... 171 B. WHEN IS AN AGENCY ADMINISTRATIVE? ..... 184
XVII. WRIT OF HABEAS CORPUS................................ 172 C. MANNER OF CREATION ................................... 184
XVIII. WRIT OF AMPARO, HABEAS DATA AND C.1. EXECUTIVE POWER TO CREATE AD HOC
KALIKASAN ................................................................ 173
COMMITTEES ...................................................... 184
A. WRIT OF AMPARO ............................................... 173
D. KINDS.................................................................. 185
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III. POWERS OF ADMINISTRATIVE AGENCIES .......... 185
LOCAL GOVERNMENT............... 198
A. QUASI-LEGISLATIVE (RULE-MAKING) POWER 186
I. PUBLIC CORPORATIONS ........................................ 199
A.1. LEGISLATIVE DELEGATION ....................... 186
A. CONCEPT ............................................................ 199
A.2. LEGISLATIVE RULES AND INTERPRETATIVE
RULES, DISTINGUISHED ................................... 186 A.1. COMPARISON [MARTIN] ............................. 199

A.3. REQUISITES FOR VALIDITY ........................ 187 A.2. TEST TO IDENTIFY PUBLIC OR PRIVATE
CHARACTER........................................................ 199
A.4. POWER TO AMEND, REVISE, ALTER OR
REPEAL RULES................................................... 188 B. CLASSIFICATIONS ............................................. 201

B. QUASI-JUDICIAL (ADJUDICATORY) POWER.. 188 B.1. TRADITIONAL (PRE-LOCAL GOV’T CODE)


CLASSIFICATIONS [SINCO] ............................... 201
B.1. SOURCE........................................................ 188
II. MUNICIPAL CORPORATIONS ............................ 202
B.2. DISTINCTIONS FROM JUDICIAL
A. ELEMENTS......................................................... 202
PROCEEDINGS ................................................... 189
B. NATURE AND FUNCTION ................................ 202
B.3. POWERS INCLUDED IN QUASI-JUDICIAL
FUNCTION........................................................... 189 B.1. DUAL NATURE ............................................ 202
B.4. ADMINISTRATIVE DUE PROCESS ............ 189 B.2. DUAL FUNCTIONS ..................................... 202
C.1. ASCERTAINMENT OF FACT.........................192 C. REQUISITES FOR CREATION, CONVERSION,
DIVISION, MERGER, OR DISSOLUTION ............. 202
C.2. INVESTIGATIVE POWERS ...........................192
C.1. GENERAL REQUIREMENTS ....................... 202
C.3. LICENSING FUNCTION ................................ 193
C.2. SPECIFIC REQUIREMENTS ....................... 205
C.4. FIXING OF RATES, WAGES, PRICES .......... 193
C.3. OTHER LGUS .............................................. 206
IV. JUDICIAL RECOURSE AND REVIEW ..................... 194
A. DOCTRINE OF PRIMARY ADMINISTRATIVE C.4. OTHER MATERIAL CHANGES ................... 208
JURISDICTION ........................................................ 194 III. PRINCIPLES OF LOCAL AUTONOMY ............... 209
A.1. WHEN THE DOCTRINE IS INAPPLICABLE: 195 A. LOCAL AUTONOMY .......................................... 209
A.2. EFFECT..........................................................195 A.1. DECLARATION OF POLICY ........................ 209
B. DOCTRINE OF EXHAUSTION OF B. DECENTRALIZATION V. DEVOLUTION .......... 209
ADMINISTRATIVE REMEDIES ...............................196 C. GENERAL SUPERVISION OVER LOCAL
B.1. EXCEPTIONS TO THE DOCTRINE OF GOVERNMENTS ..................................................... 210
EXHAUSTION OF REMEDIES: ............................196 C.1 PRESIDENT’S POWER OF SUPERVISION... 210
B.2. EFFECT OF FAILURE TO EXHAUST D. LOCAL FISCAL AUTONOMY .......................... 210
ADMINISTRATIVE REMEDIES: ........................... 197
D.1. SOURCES OF LGU FUNDS .......................... 210
C. DOCTRINE OF FINALITY OF ADMINISTRATIVE
ACTION..................................................................... 197 D.2. INTERNAL REVENUE ALLOTMENTS ......... 211
IV. POWERS OF LOCAL GOVERNMENT UNITS ...... 211
A. POLICE POWER (GENERAL WELFARE CLAUSE)
................................................................................... 211
B. EMINENT DOMAIN ............................................ 212
C. TAXING POWER ..................................................213
C.1. FUNDAMENTAL PRINCIPLES ON TAXATION
BY AN LGU........................................................... 214
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C.2. WITHDRAWAL OF LOCAL TAX EXEMPTION A. ON CONTRACT ................................................... 227
PRIVILEGES .........................................................214 B. ON TORT ............................................................. 227
C.3. REAL PROPERTY TAXATION ......................214 C. PERSONAL LIABILITY OF THE PUBLIC OFFICIAL
C.4. OTHER LIMITATIONS ON TAXING POWERS ..................................................................................228
OF LGUS ...............................................................215 VIII. SETTLEMENT OF BOUNDARY DISPUTES ..... 228
D. CLOSURE AND OPENING OF ROADS ..............215 A. AMICABLE SETTLEMENT .................................228
E. LEGISLATIVE POWER.........................................216 B. FORMAL TRIAL ..................................................229
E.1. WHO MAY EXERCISE....................................216 C. APPEAL ...............................................................229
E.2. ORDINANCE V. RESOLUTION ....................216 IX. SUCCESSION OF ELECTIVE OFFICIALS ........... 230
E.3. PRESIDING OFFICER ...................................216 A. SUCCESSION IN PERMANENT VACANCIES ...230
E.4. INTERNAL RULES OF PROCEDURE ..........216 A.1. VACANCY IN THE LOCAL CHIEF EXECUTIVE
E.5. QUORUM ...................................................... 217 ..............................................................................230
E.6. SANGGUNIAN SESSIONS ........................... 217 A.2. PERMANENT VACANCIES IN THE
SANGGUNIAN ......................................................231
E.7 SPECIAL SESSIONS.......................................218
A.3. RESIGNATION OF ELECTIVE OFFICIALS .. 232
E.8. NO SUBPOENA AND CONTEMPT POWERS
...............................................................................218 B. SUCCESSION IN TEMPORARY VACANCIES.... 233
E.9. APPROVAL AND VETO OF ORDINANCES .218 [LGC, SEC. 46)] ........................................................ 233
E.10. PUBLICATION AND EFFECTIVITY OF B.1. EXTENT OF DUTY EXERCISED BY
ORDINANCES ......................................................219 TEMPORARY SUCCESSOR ................................ 233
E.11. REVIEW OF ORDINANCES/ B.2. TERMINATION OF TEMPORARY
RESOLUTIONS[LGC, SEC. 59] ........................... 220 INCAPACITY ........................................................ 234
E.12. FULL DISCLOSURE OF FINANCIAL AND B.3. LEAVES OF ABSENCE .................................234
BUSINESS INTERESTS OF SANGGUNIAN X. DISCIPLINE OF LOCAL OFFICIALS .................... 235
MEMBERS ............................................................ 221
A. DISCIPLINE OF ELECTIVE OFFICIALS.............. 235
V. LOCAL INITIATIVE AND REFERENDUM ............ 222
A.1. GROUNDS FOR DISCIPLINARY ACTION ... 235
A. LOCAL INITIATIVE ............................................. 222
A.2. JURISDICTION ............................................. 235
A.1. PROCEDURE [LGC, SEC. 122] ..................... 222
A.3. GROUNDS FOR DISCIPLINARY ACTION .. 236
B. LOCAL REFERENDUM ...................................... 223
A.4. REMOVAL AND OTHER SANCTIONS ........238
B.1. INITIATIVE V. REFERENDUM ..................... 223
XI. ADMINISTRATIVE APPEAL .............................. 238
VI. CORPORATE POWERS ...................................... 224
A. PERIOD FOR APPEAL UNDER THE LGC .........238
A. TO SUE AND BE SUED ...................................... 224
B. TO WHOM APPEALABLE: .................................238
B. TO ACQUIRE AND SELL PROPERTY (REAL OR
C. DOCTRINE OF CONDONATION ........................ 239
PERSONAL) ............................................................ 224
D. DISCIPLINE OF APPOINTIVE OFFICIALS ....... 240
C. TO ENTER INTO CONTRACTS .......................... 225
D.1. DISCIPLINARY AUTHORITY ...................... 240
C.1. REQUISITES ................................................. 225
D.2. PREVENTIVE SUSPENSION OF APPOINTIVE
C.2. ULTRA VIRES CONTRACTS ....................... 225
OFFICIALS .......................................................... 240
VI. LIABILITY OF LOCAL GOVERNMENT UNITS.... 226
E. RECALL .............................................................. 240

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E.1. REQUISITES .................................................240 C. RESTRICTIONS ON THE POWER TO APPOINT
E.2. PROCEDURE ................................................241 ................................................................................. 250

XII. TERM LIMITS .................................................... 242 C.1. IN GENERAL ................................................ 250

A. LENGTH OF TERM ............................................. 242 C.2. UNDER THE CONSTITUTION .................... 250

A.1. R.A. NO. 9164: SYNCHRONIZED BARANGAY I. PRESIDENTIAL APPOINTMENTS.................. 250


AND SANGGUNIANG BARANGAY ELECTIONS II. APPOINTMENTS IN THE JUDICIARY –
(2002) .................................................................. 242 INVOLVEMENT BY THE JBC .............................. 250
A.2. R.A. NO. 9164: SYNCHRONIZED BARANGAY C.3. UNDER SPECIAL LAWS .............................. 251
AND SANGGUNIANG BARANGAY ELECTIONS
E. ACCEPTANCE OF APPOINTMENT.................... 251
(2002) .................................................................. 242
F. COMPULSION TO ACCEPT A PUBLIC OFFICE . 251
B. LIMITATION OF CONSECUTIVE TERMS .......... 243
G. NECESSITY OF WRITTEN APPOINTMENT ......252
B.1. WHAT CONSTITUTES A TERM OF OFFICE 243
H. REVOCATION OF APPOINTMENT ...................252
III. MODES AND KINDS OF APPOINTMENT ......... 252
PUBLIC OFFICERS AND A. CLASSIFICATION OF APPOINTMENTS ...........252
ELECTION LAW ................................... 245 A.1. AS TO FINALITY ...........................................252
I. GENERAL PRINCIPLES ........................................ 246 A.2. AS TO APPOINTING POWER .....................252
A. NATURE OF A PUBLIC OFFICE......................... 246 B. PRESIDENTIAL APPOINTMENTS ....................252
A.1. PUBLIC TRUST............................................. 246 B.1. WHO THE PRESIDENT MAY APPOINT ......252
A.2. NOT PROPERTY .......................................... 246 B.2. KINDS OF PRESIDENTIAL APPOINTMENTS
.............................................................................. 253
A.3. NOT A CONTRACT ...................................... 246
B.3. AD INTERIM APPOINTMENTS ................... 253
B. ELEMENTS OF A PUBLIC OFFICE .................... 247
I. REQUIREMENT OF APPROVAL OF AD INTERIM
C. DISTINCTIONS ................................................... 247
APPOINTMENTS ................................................. 253
D. CREATION, MODIFICATION AND ABOLITION OF
B.4. DIFFERENCES BETWEEN PERMANENT AND
PUBLIC OFFICE....................................................... 247
TEMPORARY APPOINTMENTS ......................... 253
D.1. CREATION OF PUBLIC OFFICE .................. 247
B.5. DURATION OF TEMPORARY
D.2. MODIFICATION AND ABOLITION OF PUBLIC APPOINTMENTS ................................................ 254
OFFICE ................................................................. 247
B.6. STEPS IN THE PRESIDENTIAL APPOINTING
E. PUBLIC OFFICER ................................................ 248 PROCESS ............................................................ 254
E.1. WHO ARE PUBLIC OFFICERS ..................... 248 IV. ELIGIBILITY AND QUALIFICATION
E.2. WHO ARE NOT PUBLIC OFFICERS ............ 248 REQUIREMENTS ..................................................... 254

F. CLASSIFICATION OF PUBLIC OFFICES AND A. DEFINITIONS..................................................... 254


PUBLIC OFFICERS .............................................. 248 B. POWER TO PRESCRIBE QUALIFICATIONS .... 254
II. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE B.1. RESTRICTION ON THE POWER OF
.................................................................................. 249 CONGRESS TO PRESCRIBE QUALIFICATIONS255
A. WHO HAS THE POWER TO APPOINT.............. 249 B.2. EXAMPLES OF LEGISLATIVE APPOINTMENT
B. NATURE OF POWER TO APPOINT .................. 249 ..............................................................................255

10
C. WHEN QUALIFICATIONS MUST BE POSSESSED: B. AUTHORITY OF PUBLIC OFFICERS................. 264
................................................................................. 255 C. SCOPE OF POWER OF A PUBLIC OFFICER .... 264
D.1. PRACTICE OF LAW ...................................... 259 D. LIMITATIONS OF THE POWERS OF A PUBLIC
D.2. RESIDENCE REQUIREMENT ..................... 259 OFFICER ................................................................. 264
D.3. RELIGIOUS TESTS NOT ALLOWED ........... 259 E. CLASSIFICATION OF POWERS AND DUTIES . 264
E. QUALIFICATION STANDARDS AND E.1. DISTINCTION BETWEEN MINISTERIAL AND
REQUIREMENTS UNDER THE CIVIL SERVICE LAW DISCRETIONARY POWERS................................265
................................................................................. 259 E.2. TIME OF PERFORMANCE OF DUTIES .......265
F. POLITICAL QUALIFICATIONS FOR AN OFFICE E.3. RATIFICATION .............................................265
................................................................................. 259
E.4. NORMS OF CONDUCT UNDER THE CIVIL
F.1. NO PROPERTY QUALIFICATIONS ALLOWED SERVICE LAW......................................................265
.............................................................................. 259
F. GENERAL DUTIES OF PUBLIC OFFICERS .......266
F.2. CITIZENSHIP REQUIREMENTS .................. 259
G. SPECIFIC DUTIES OF PUBLIC OFFICIALS AND
G. EFFECT OF REMOVAL OF QUALIFICATIONS EMPLOYEES ............................................................266
DURING THE TERM ...............................................260
VII. RIGHTS OF PUBLIC OFFICERS .........................267
G.1. VACANCY .....................................................260
A. RIGHTS INCIDENT TO PUBLIC OFFICE ........... 267
I. CLASSIFICATIONS OF VACANCY ...................260
A.1. RIGHTS AS A CITIZEN ................................. 267
II. CAUSES OF VACANCY—SEE TERMINATION,
ETC. ......................................................................260 I. BASIS OF RIGHT TO COMPENSATION .......... 267

III. ANTICIPATED VACANCIES...........................260 B. OTHER RIGHTS ................................................. 268

H. QUALIFYING TO OFFICE ...................................260 B.1. RIGHTS UNDER THE CONSTITUTION ...... 268

H.1. FAILURE TO QUALIFY.................................260 B.2. RIGHTS UNDER THE CIVIL SERVICE DECREE
AND THE NEW ADMINISTRATIVE CODE ........ 269
H.2. OATH OF OFFICE .........................................261
I. NEXT-IN-RANK RULE .................................... 269
I. BEFORE WHOM OATH MUST BE MADE ........261
II. PERSONNEL ACTIONS ................................. 269
H.3. GIVING OF BONDS ......................................261
B.3. RIGHTS UNDER THE REVISED
I. NATURE OF BONDS .........................................261 GOVERNMENT SERVICE INSURANCE ACT .... 269
V. DISABILITIES AND INHIBITIONS OF PUBLIC I. RIGHT TO REIMBURSEMENT AND INDEMNITY
OFFICERS ..................................................................261
............................................................................. 269
A. DISQUALIFICATION TO HOLD PUBLIC OFFICE
II. RIGHT TO REINSTATEMENT AND BACK
IN GENERAL ............................................................261
SALARY................................................................ 270
B. AUTHORITY TO PRESCRIBE QUALIFICATIONS
III. RIGHTS TO PROPERTY, DEVICES AND
..................................................................................261
INVENTIONS ....................................................... 270
C. GENERAL CONSTITUTIONAL
VIII. LIABILITIES OF PUBLIC OFFICERS ................ 270
DISQUALIFICATIONS .............................................261
A. GENERAL RULE ON LIABILITY ......................... 270
D. SPECIFIC CONSTITUTIONAL
DISQUALIFICATIONS ............................................ 262 B. STATUTORY LIABILITY ...................................... 271

E. OTHER DISQUALIFICATIONS ........................... 263 B.2. CRIMINAL LIABILITY.................................... 271

VI. POWERS AND DUTIES OF PUBLIC OFFICERS . 264 B.3. THREE-FOLD RESPONSIBILITY OF PUBLIC
OFFICERS ............................................................ 272
A. SOURCE OF POWER OF PUBLIC OFFICERS ... 264
11
C. LIABILITY OF MINISTERIAL OFFICERS ........... 272 D.1. WHEN INCOMPATIBLE ............................... 281
C.1. COMMAND RESPONSIBILITY..................... 272 E. ABANDONMENT OF OFFICE ............................282
I. NON-APPLICABILITY OF THE DOCTRINE OF E.1. SPECIES OF RESIGNATION ........................282
COMMAND RESPONSIBILITY AND THE F. PRESCRIPTION OF RIGHT TO OFFICE .............282
PRINCIPLE OF RESPONDEAT SUPERIOR TO
PUBLIC OFFICERS .............................................. 272 G. REMOVAL ...........................................................282

C.2. PREVENTIVE SUSPENSION AND BACK G.1. REMOVAL FROM OFFICE MAY BE EXPRESS
SALARIES ............................................................ 272 OR IMPLIED.........................................................282

I. KINDS OF PREVENTIVE SUSPENSION ......... 272 G.2. EXTENT OF THE PRESIDENT’S REMOVAL
POWER ................................................................ 283
C.3. ILLEGAL DISMISSAL, REINSTATEMENT AND
BACK SALARIES ................................................. 274 H. IMPEACHMENT.................................................. 283

IX. IMMUNITY OF PUBLIC OFFICERS..................... 274 H.1. IMPEACHABLE OFFICERS .......................... 283

A. DOCTRINE OF OFFICIAL IMMUNITY FROM H.2. GROUNDS FOR IMPEACHMENT ............... 283
LIABILITIES FOR PUBLIC OFFICERS .................... 274 I. ABOLITION OF OFFICE ...................................... 284
B. OFFICIAL IMMUNITY DISTINGUISHED FROM I.1. REQUISITES .................................................. 284
STATE IMMUNITY .................................................. 275
I.2. ABOLISHING AN OFFICE ALSO ABOLISHES
C. OFFICIAL IMMUNITY NOT ABSOLUTE ............ 275 UNEXPIRED TERM. ........................................... 284
D. IMMUNITY FROM SUIT OF THE PRESIDENT . 275 I.3. IS ABANDONMENT EQUIVALENT TO
X. DE FACTO OFFICERS ........................................... 275 ABOLITION? ....................................................... 284
A. OFFICER DE JURE V. OFFICER DE FACTO J. CONVICTION OF A CRIME................................. 284
(ASKED IN 2000, 2004) ........................................ 276 K. FAILURE TO ASSUME ELECTIVE OFFICE WITHIN
B. OFFICER DE FACTO V. INTRUDER .................. 277 SIX MONTHS FROM PROCLAMATION ............... 285
C. ELEMENTS OF A DE FACTO OFFICERSHIP..... 278 L. RECALL............................................................... 285
D. WHO ARE NOT CONSIDERED DE FACTO XII. THE CIVIL SERVICE........................................... 286
OFFICERS? .............................................................. 278 A. SCOPE ................................................................ 286
E. LEGAL EFFECT OF ACTS OF DE FACTO B. CIVIL SERVICE COMMISSION’S (CSC’S)
OFFICERS ................................................................ 278 JURISDICTION ....................................................... 286
F. LIABILITY OF DE FACTO OFFICERS ................. 279 B.1. EXCLUSIVE JURISDICTION ........................ 286
G. RIGHT TO COMPENSATION OF DE FACTO B.2. RECALL OF APPOINTMENT ...................... 286
OFFICER .................................................................. 279
B.3. REVIEW APPOINTEE’S QUALIFICATIONS 286
XI. TERMINATION OF OFFICIAL RELATION ..........280
B.4. WHAT IT CANNOT DO ............................... 286
A. EXPIRATION OF THE TERM OR TENURE OF
C. APPOINTMENTS TO THE CIVIL SERVICE ....... 286
OFFICE.....................................................................280
C.1. SCOPE .......................................................... 286
B. DEATH OR PERMANENT DISABILITY .............280
C.2. CLASSES OF SERVICE ............................... 286
C. RESIGNATION ....................................................280
C.3. REQUISITES: ................................................ 287
C.1. RESIGNATION REVOCABLE BEFORE
NOTIFICATION OF ACCEPTANCE ......................281 C.4. OTHER PERSONNEL ACTIONS.................. 287
D. ACCEPTANCE OF AN INCOMPATIBLE OFFICE I. PROMOTION .................................................... 287
..................................................................................281 II. APPOINTMENT THROUGH CERTIFICATION287
12
III. TRANSFER ..................................................... 287 II. CHANGE OF ADDRESS IN THE SAME
IV. REINSTATEMENT .........................................288 MUNICIPALITY OR CITY .................................... 298

V. DETAIL ............................................................288 B.5. CHALLENGES TO RIGHT TO REGISTER... 298

VI. REASSIGNMENT ...........................................288 I. WHO MAY CHALLENGE APPLICATION FOR


REGISTRATION .................................................. 298
XIII. ACCOUNTABILITY OF PUBLIC OFFICERS ...... 289
II. FORM .............................................................. 298
A. IMPEACHMENT ................................................. 289
III. WHEN FILED ................................................. 298
B. OMBUDSMAN .................................................... 289
IV. HEARING ....................................................... 298
C. SANDIGANBAYAN ..............................................291
V. DECISION ....................................................... 298
D. ILL-GOTTEN WEALTH....................................... 293
C. REMEDY IN CASE OF
I. PUNISHABLE ACTS: ........................................ 293 APPROVAL/DISAPPROVAL OF APPLICATION FOR
II. PENALTY ......................................................... 293 REGISTRATION ..................................................... 298
XIV. TERM LIMITS ................................................... 294 D. DEACTIVATION OF REGISTRATION ............... 298
A. ALL ELECTIVE LOCAL OFFICIALS, EXCEPT D.1. DEFINITION................................................. 298
BARANGAY OFFICIALS [AS PROVIDED BY LAW]
D.2. CAUSES OF DEACTIVATION ..................... 298
................................................................................. 294
D.3. REACTIVATION OF REGISTRATION ........ 299
B. TERM OF OFFICE OF BARANGAY AND
SANGGUNIANG KABATAAN OFFICIALS ............. 294 E. CERTIFIED LIST OF VOTERS ............................ 299

XV. SUFFRAGE......................................................... 294 E.1. DEFINITIONS ............................................... 299


A. SCOPE ................................................................. 294 E.2. GROUNDS WHEN LIST OF VOTERS WILL BE
ALTERED ............................................................ 299
B. KINDS OF ELECTION ......................................... 294
E.3. ANNULMENT OF BOOK OF VOTERS ........ 300
C. ELECTION PERIOD ............................................ 295
F. OVERSEAS ABSENTEE VOTER ........................ 300
XVI. QUALIFICATION AND DISQUALIFICATION OF
VOTERS .................................................................... 295 F.1. DEFINITIONS ............................................... 300
A. QUALIFICATIONS .............................................. 295 F.2. COVERAGE .................................................. 300
B. OVERSEAS ABSENTEE VOTER ........................ 296 F.3. PERSONAL OVERSEAS ABSENTEE
XVII. REGISTRATION OF VOTERS .......................... 297 REGISTRATION .................................................. 300

A. DEFINITION ........................................................ 297 F.4. NATIONAL REGISTRY OF OVERSEAS


ABSENTEE VOTERS .......................................... 300
B. SYSTEM OF CONTINUING REGISTRATION OF
VOTERS ................................................................... 297 I. DEFINITION ..................................................... 300

B.1. PERIOD OF REGISTRATION ....................... 297 II. GROUNDS FOR


CANCELLATION/AMENDMENT OF ENTRIES IN
B.2. ILLITERATE OR DISABLED VOTERS ......... 297 THE REGISTRY ................................................... 300
B.3. ELECTION REGISTRATION BOARD .......... 297 XVIII. INCLUSION AND EXCLUSION PROCEEDINGS
I. COMPOSITION ................................................. 297 ................................................................................... 301
II. DISQUALIFICATION ....................................... 298 A. JURISDICTION IN INCLUSION AND EXCLUSION
CASE ........................................................................ 301
B.4. CHANGE OF RESIDENCE OR ADDRESS ... 298
B. APPEAL ............................................................... 301
I. CHANGE OF RESIDENCE TO ANOTHER CITY
OR MUNICIPALITY ............................................. 298 C. PROCESS ............................................................ 301

13
D. OVERSEAS ABSENTEE VOTER .........................301 B.1. EFFECT OF FILING ...................................... 309
XIX. POLITICAL PARTIES ........................................ 302 B.2. SUBSTITUTION OF CANDIDATES ............ 309
A. PARTY SYSTEM ................................................. 302 B.3. MINISTERIAL DUTY OF COMELEC TO
B. JURISDICTION OF THE COMELEC OVER RECEIVE CERTIFICATE....................................... 310
POLITICAL PARTIES .............................................. 302 B.4. NUISANCE CANDIDATES ........................... 310
C. DEFINITIONS ...................................................... 302 I. WHO MAY FILE ................................................ 310
D. PURPOSE ........................................................... 302 II. WHEN TO FILE ................................................ 310
E. REGISTRATION .................................................. 303 III. HOW TO FILE ................................................. 310
E.1. PROCEDURE FOR REGISTRATION ............ 303 IV. GROUNDS FOR FILING ................................. 310
E.2. GROUPS WHICH CANNOT BE REGISTERED V. NATURE OF PROCEEDING ............................ 310
AS POLITICAL PARTIES ..................................... 303
B.5. PETITION TO DENY OR CANCEL
E.3. PURPOSE OF REGISTRATION ................... 303 CERTIFICATES OF CANDIDACY ........................ 310
E.4. GROUNDS FOR REFUSAL/CANCELLATION I. WHO MAY FILE ................................................ 310
OF REGISTRATION............................................. 303
II. WHEN: ............................................................. 310
E.5. CERTIFIED LIST OF REGISTERED PARTIES
III. EXCLUSIVE GROUND ..................................... 311
..............................................................................304
IV. DECISION ........................................................ 311
E.6. NOMINATION OF PARTY-LIST
REPRESENTATIVES ...........................................304 B.6. EFFECT OF DISQUALIFICATION ................. 311

E.7. QUALIFICATIONS OF PARTY LIST I. WHERE A SIMILAR COMPLAINT/PETITION IS


REPRESENTATIVES ...........................................304 FILED: ................................................................... 311

E.8. PARAMETERS IN ALLOCATION OF SEATS II. AS TO THE RIGHT OF SECOND-PLACER TO


FOR PARTY-LIST REPRESENTATIVES .............304 PROCLAMATION ................................................. 311

I. 20% ALLOCATION ..........................................304 B.7. WITHDRAWAL OF CANDIDATES ................312

II. 2% THRESHOLD .............................................304 XXI. CAMPAIGN ....................................................... 312

III. PROPORTIONAL REPRESENTATION .........304 A. PREMATURE CAMPAIGNING............................ 313

IV. 3-SEAT LIMIT ................................................. 305 A.1. PROHIBITED CAMPAIGNING DAYS ............ 313

E.9. GUIDELINES AS TO WHO MAY PARTICIPATE A.2. CAMPAIGN PERIOD .....................................313


IN THE PARTY-LIST ELECTIONS ....................... 305 I. FOR PRESIDENT, VICE-PRESIDENT AND
E.10. EFFECT OF UNIMPLEMENTED TERM- SENATORS ........................................................... 313
SHARING AGREEMENT ..................................... 306 II. FOR MEMBERS OF THE HR AND ELECTIVE
E.11. EFFECT OF CHANGE OF AFFILIATION ..... 306 PROVINCIAL, CITY AND MUNICIPAL OFFICIALS
............................................................................... 313
XX. CANDIDACY....................................................... 306
A.3. EQUAL ACCESS TO MEDIA TIME AND SPACE
A. QUALIFICATIONS OF CANDIDATES ................ 306
............................................................................... 313
A.1. QUALIFICATIONS ........................................ 306
A.4. ELECTION SURVEYS................................... 314
A.2. DISQUALIFICATIONS ................................. 306
A.5. RALLIES, MEETINGS, OTHER POLITICAL
I. UNDER THE OMNIBUS ELECTION CODE ..... 306 ACTIVITY.................................................................. 314
II. UNDER SECTION 40 OF THE LGC ................ 307 APPLICATION FOR RALLIES, MEETINGS AND
B. FILING OF CERTIFICATES OF CANDIDACY.....308 OTHER POLITICAL ACTIVITY ............................. 314
14
B. PROHIBITED CONTRIBUTIONS ........................ 315 II. CANVASS BY THE BOC...................................320
B.1. DEFINITIONS ................................................ 315 III. CERTIFICATE OF CANVASS AND STATEMENT
B.2. PROHIBITED CONTRIBUTIONS .................. 315 OF VOTES .............................................................321

B.3. PROHIBITED FUND-RAISING ACTIVITIES. 315 IV. NATIONAL BOC FOR PRESIDENT AND VICE-
PRESIDENT ..........................................................321
B.4. PROHIBITED DONATION, REQUISITES .... 316
V. NATIONAL BOC FOR SENATORS AND PARTY-
B.5. PROHIBITED WHETHER DIRECTLY OR LIST REPRESENTATIVES. ...................................321
INDIRECTLY: ........................................................ 316
B.2. PROCLAMATION ..........................................321
C. LAWFUL AND PROHIBITED ELECTION
PROPAGANDA ........................................................ 316 I. WHEN PROCLAMATION VOID ........................321

C.1. LAWFUL ELECTION PROPAGANDA ........... 316 II. PARTIAL PROCLAMATION .............................321

B.2. PROHIBITED ACTS ...................................... 317 XXIII. REMEDIES AND JURISDICTION IN ELECTION
LAW ......................................................................... 322
I. FOR ANY FOREIGNER ..................................... 317
A. PETITION NOT TO GIVE DUE COURSE TO OR
II. FOR ANY PERSON DURING THE CAMPAIGN CANCEL A CERTIFICATE OF CANDIDACY ........... 322
PERIOD ................................................................. 317
A.1. CANCELLATION OF CERTIFICATE OF
III. FOR ANY CANDIDATE, POLITICAL PARTY, CANDIDACY ........................................................ 322
ORGANIZATION OR ANY PERSON.................... 317
I. GROUNDS ........................................................ 322
D. LIMITATIONS ON EXPENSES............................ 317
II. NATURE OF PROCEEDINGS .......................... 322
D.1. FOR CANDIDATES ....................................... 317
III. PROCEDURE .................................................. 322
D.2. FOR CANDIDATES WITHOUT A POLITICAL
B. PETITION FOR DISQUALIFICATION ................ 323
PARTY................................................................... 317
B.1. PROCEDURE ................................................ 323
D.3. FOR POLITICAL PARTIES ........................... 317
I. WHO MAY FILE ................................................ 323
E. STATEMENT OF CONTRIBUTIONS AND
EXPENSES................................................................ 317 II. WHERE TO FILE .............................................. 323
E.1. EFFECT OF FAILURE TO FILE STATEMENT 317 III. WHEN TO FILE ............................................... 323
XXII. BOARD OF ELECTION INSPECTORS (BEI) AND B.2. GROUNDS.................................................... 323
BOARD OF CANVASSERS (BOC) .............................318 B.3. PERIOD TO DECIDE .................................... 323
A. BOARD OF ELECTION INSPECTORS ................318 B.4. EFFECT ......................................................... 323
A.1. COMPOSITION OF BOARD OF ELECTION B.5. WHERE A SIMILAR COMPLAINT/PETITION
INSPECTORS........................................................318 IS FILED: .............................................................. 323
I. COMPOSITION ..................................................318 C. PETITION TO DECLARE FAILURE OF ELECTIONS
II. QUALIFICATIONS ............................................318 .................................................................................. 323
III. DISQUALIFICATIONS .....................................318 C.1. WHAT CONSTITUTES AN ELECTION ......... 323
A.2. POWERS OF BOARD OF ELECTION C.2. FAILURE OF ELECTIONS ............................ 324
INSPECTORS........................................................ 319 I. GROUNDS ........................................................ 324
B. BOARD OF CANVASSERS .................................. 319 C.3. DECLARATION OF FAILURE OF ELECTION
B.1. COMPOSITION OF BOARD OF CANVASSERS .............................................................................. 324
............................................................................... 319 C.4. JURISDICTION ............................................. 324
I. PROHIBITIONS ON BOC ................................. 320 C.5. REQUISITES ................................................. 324
15
C.6. PROCEDURE: .............................................. 324 F. QUO WARRANTO............................................... 329
D. PRE-PROCLAMATION CONTROVERSY .......... 325 F.1. WHO MAY FILE ............................................. 329
D.1. JURISDICTION ............................................. 325 F.2. WHEN TO FILE ............................................. 329
D.2. WHEN NOT ALLOWED ............................... 325 F.3. WHO HAS JURISDICTION ...........................330
D.3. NATURE OF PROCEEDINGS ...................... 325 F.4. GROUNDS ....................................................330
D.4. ISSUES THAT MAY BE RAISED ................. 325 F.5. EXECUTION PENDING APPEAL .................330
I. ILLEGAL COMPOSITION OF THE BOC ........... 326 I. VALID AND SPECIAL REASONS TO GRANT THE
II. ILLEGAL PROCEEDINGS OF THE BOC ......... 326 SAME ...................................................................330

D.5 ISSUES THAT CANNOT BE RAISED ........... 326 XXIV. PROSECUTION OF ELECTION OFFENSES .... 331
A. JURISDICTION OVER ELECTION OFFENSES ...331
D.6. PROCEDURE ............................................... 326
A.1. INVESTIGATION AND PROSECUTION........331
I. QUESTIONS INVOLVING THE COMPOSITION
OR PROCEEDINGS OF THE BOARD OF A.2. TRIAL AND DECISION .................................331
CANVASSERS, OR CORRECTION OF MANIFEST B. PREFERENTIAL DISPOSITION OF ELECTION
ERRORS .............................................................. 326 OFFENSES ................................................................ 331
II. MATTERS RELATING TO THE PREPARATION, B.1. ELECTION OFFENSES ..................................331
TRANSMISSION, RECEIPT, CUSTODY AND
APPRECIATION OF THE ELECTION RETURNS I. REGISTRATION................................................. 331
AND CERTIFICATES OF CANVASS ................... 326 II. CERTIFICATE OF CANDIDACY........................ 331
IF FILED BEFORE THE BOC ............................... 327 III. ELECTION CAMPAIGN ...................................331
IV. APPEAL OF AN ADVERSE RESOLUTION.... 327 IV. VOTING........................................................... 332
V. IF FILED DIRECTLY WITH THE COMMISSION V. COUNTING OF VOTES.................................... 332
.............................................................................. 327 VI. CANVASSING ................................................. 332
D.7. EFFECT OF FILING OF PRE-PROCLAMATION VII. ACTS OF GOVERNMENT OR PUBLIC
CONTROVERSY .................................................. 327 OFFICERS ............................................................ 332
D.8. EFFECT OF PROCLAMATION OF WINNING VIII. COERCION, INTIMIDATION, VIOLENCE ... 332
CANDIDATE ........................................................ 328
IX. OTHER PROHIBITIONS ................................. 332
D.9. EFFECT OF FILING PETITION TO ANNUL OR
SUSPEND PROCLAMATION .............................. 328 B.2. PENALTIES .................................................. 333

E. ELECTION PROTEST.......................................... 328 I. FOR INDIVIDUALS ........................................... 333

E.1. NATURE........................................................ 329 II. FOR A FOREIGNER......................................... 333

E.2. PURPOSE ..................................................... 329 III. FOR A POLITICAL PARTY ............................. 333

E.3. WHO MAY FILE ............................................ 329 IV. PERSONS REQUIRED BY LAW TO KEEP
PRISONERS IN THEIR CUSTODY ...................... 333
E.4. WHEN ........................................................... 329
C. ARRESTS IN CONNECTION WITH ELECTION
E.5. WHO HAS JURISDICTION........................... 329 CAMPAIGN .............................................................. 333
E.6. GROUNDS.................................................... 329 D. PRESCRIPTION .................................................. 333
E.7. PAYMENT OF DOCKET FEE ........................ 329 E. GRANT OF TRANSACTIONAL IMMUNITY ....... 333
E.8. EFFECT OF FILING PETITION TO ANNUL OR F. PROHIBITED ACTS UNDER RA 9369 ............... 333
TO SUSPEND THE PROCLAMATION ................ 329
F.1. PENALTIES ................................................... 334
16
PUBLIC INTERNATIONAL E. STATELESSNESS ................................................ 361
VIII. STATE RESPONSIBILITY .................................... 362
LAW ................................................................... 335 A. DOCTRINE OF STATE RESPONSIBILITY ........... 362
I. CONCEPTS ............................................................. 336
A.1. DEFINITION .................................................. 362
A. OBLIGATIONS ERGA OMNES ............................. 336
A.2. ELEMENTS ................................................... 362
B. JUS COGENS ....................................................... 337
A3. ATTRIBUTION ............................................... 362
C. CONCEPT OF EX AEQUO ET BONO ................... 338
A.4 EFFECTIVE CONTROL .................................. 362
II. INTERNATIONAL AND NATIONAL LAW ................ 338
B. CONSEQUENCES OF STATE RESPONSIBILITY 363
A. INTERNATIONAL AND NATIONAL (MUNICIPAL)
IX. JURISDICTION OF STATES................................... 364
LAW, DISTINGUISHED ............................................ 338
A. DEFINITION .........................................................364
B. RELATIONSHIP ................................................... 339
B. PRINCIPLES OF STATE JURISDICTION .............364
III. SOURCES ............................................................. 340
C. RESERVED DOMAIN OF DOMESTIC
A. IN GENERAL .......................................................340
JURISDICTION .........................................................364
B. TREATIES AND CONVENTIONS........................340
D. DOCTRINE OF STATE IMMUNITY ......................364
C. CUSTOMARY INTERNATIONAL LAW ................340
X. TREATMENT OF ALIENS ....................................... 365
D. GENERAL PRINCIPLES OF LAW\ ...................... 342
A. STANDARD OF TREATMENT .............................365
E. JUDICIAL DECISIONS AND TEACHINGS OF
B. STATE RESPONSIBILITY.....................................365
HIGHLY QUALIFIED PUBLICISTS ........................... 343
C. CALVO CLAUSE...................................................366
F. NON-SOURCES................................................... 343
D. EXTRADITION .....................................................366
IV. SUBJECTS ............................................................ 344
XI. INTERNATIONAL HUMAN RIGHTS LAW ............... 367
A. STATES ............................................................... 344
A. UNIVERSAL DECLARATION OF HUMAN RIGHTS
B. INTERNATIONAL ORGANIZATIONS ................. 348
..................................................................................368
C. INDIVIDUALS ...................................................... 349
B. INTERNATIONAL COVENANT ON CIVIL AND
V. DIPLOMATIC AND CONSULAR LAW ..................... 349 POLITICAL RIGHTS .................................................368
A. DIPLOMATIC INTERCOURSE ......................... 349 C. INTERNATIONAL COVENANT ON ECONOMIC,
B. CONSULAR RELATIONS .................................... 354 SOCIAL AND CULTURAL RIGHTS ..........................369
VI. TREATIES ............................................................. 356 XII. INTERNATIONAL HUMANITARIAN LAW............. 369
A. CONCEPT ............................................................ 356 A. CATEGORIES OF ARMED CONFLICT................. 370
A.1. UNDER INTERNATIONAL LAW ................... 356 B. CORE INTERNATIONAL OBLIGATIONS OF
STATES IN IHL .......................................................... 371
A.2. UNDER PHILIPPINE LAW............................ 357
C. PRINCIPLES OF IHL ............................................ 372
A.3 EXECUTIVE AGREEMENT UNDER PHIL. LAW
.............................................................................. 357 THEY ARE THOSE WHO ENJOY OR ARE ENTITLED
TO PROTECTION UNDER THE GENEVA
VII. NATIONALITY AND STATELESSNESS ................. 360
CONVENTIONS. CATEGORIES OF PROTECTED
A. NATIONALITY ..................................................... 360 PERSONS INCLUDE: ........................................... 372
B. ACQUISITION OF NATIONALITY ........................ 360 D. LAW ON NEUTRALITY ........................................ 373
C. MULTIPLE NATIONALITY ................................... 360 XIII. LAW OF THE SEA ................................................ 374
D. LOSS OF NATIONALITY ..................................... 361 A. DEFINITION ......................................................... 374
17
B. BASELINES.......................................................... 374 H.1. PEACEFUL SETTLEMENT OF DISPUTES .... 379
C. ARCHIPELAGIC STATES ..................................... 375 H.2. COMPULSORY SETTLEMENT OF DISPUTES
C.1. STRAIGHT ARCHIPELAGIC BASELINES...... 375 .............................................................................. 379

C.2. ARCHIPELAGIC WATERS ............................ 375 H.3. APPLICABLE LAWS ..................................... 379

C.3. ARCHIPELAGIC SEA LANES PASSAGE ...... 375 XIV. MADRID PROTOCOL AND PARIS CONVENTION 379
A. MADRID PROTOCOL .......................................... 379
C.4. OTHER RIGHTS RELATING TO
ARCHIPELAGIC WATERS ................................... 375 B. PARIS CONVENTION ......................................... 380
D. INTERNAL WATERS ........................................... 376 XV. INTERNATIONAL ENVIRONMENTAL LAW.......... 380
E. TERRITORIAL SEA .............................................. 376 A. DEFINITION ........................................................ 380
F. EXCLUSIVE ECONOMIC ZONE ............................377 B. BASIC PRINCIPLES ............................................ 380
F.1. DEFINITION ....................................................377 B.1. PRINCIPLE OF COMMON BUT
DIFFERENTIATED RESPONSIBILITY ................. 380
F.2. JURISDICTION OVER EEZ ............................377
B.2. PRECAUTIONARY PRINCIPLE ................... 380
G. CONTINENTAL SHELF ....................................... 378
C. SUSTAINABLE DEVELOPMENT ......................... 381
G.1. EXTENDED CONTINENTAL SHELF ............. 378
D. PRINCIPLE 21 OF THE STOCKHOLM
G.2. LIMITS OF THE CONTINENTAL SHELF ...... 378
DECLARATION ........................................................ 381
G.3. RIGHTS OF THE COASTAL STATE .............. 378
XVI. INTERNATIONAL ECONOMIC LAW ..................... 381
H. INTERNATIONAL TRIBUNAL FOR THE LAW OF
THE SEA................................................................... 379

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POLITICAL LAW
CONSTITUTIONAL
LAW 1

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I. The Constitution (2) It is the document which serves as the


fundamental law of the state; that written
instrument enacted by the direct action of
A. DEFINITION, NATURE, CONCEPTS the people by which the fundamental
powers of the government are established,
A.1. POLITICAL LAW limited and defined, and by which those
Political law – branch of public law which deals powers are distributed among the several
with the organization and operations of the departments for their safe and useful
governmental organs of the State and defines exercise, for the benefit of the body politic.
the relations of the State with the inhabitants of [Malcolm, Phil. Constitutional Law]
its territory. [People v. Perfecto, 43 Phil 88 (3) "A law for the government, safeguarding
(1922)] individual rights, set down in writing."
[Hamilton]
The entire field of political law may be (4) According to Schwartz, "a constitution is
subdivided into: seen as an organic instrument, under which
(1) The law of public administration - governmental powers are both conferred
organization and management of the and circumscribed. Such stress upon both
different branches of the government grant and limitation of authority is
(2) Constitutional law - guaranties of the fundamental in American theory. 'The
constitution to individual rights and the office and purpose of the constitution is to
limitations on governmental action shape and fix the limits of governmental
(3) Administrative law - exercise of executive activity.'" [Fernando, The Constitution of the
power in the making of rules and the Philippines 20-21 (2nd ed., 1977)]
decision of questions affecting private rights
(4) The law of public corporations - A.4. CLASSES OF CONSTITUTIONS
governmental agencies for local (1) Written v. unwritten.
government or for other special purposes A written constitution’s precepts are
[Sinco] embodied in one document or set of
documents. An unwritten constitution
A.2. CONSTITUTIONAL LAW consists of rules which have not been
Designates the law embodied in the integrated into a single, concrete form but
Constitution and the legal principles growing are scattered in various sources, such as
out of the interpretation and application of its statutes of fundamental character, judicial
provisions by the courts in specific cases. It is decisions, commentaries of publicists,
the study of the maintenance of the proper customs and traditions. [Cruz, Constitutional
balance between the authority as represented Law 4-5; Nachura, Outline Reviewer in
by the three inherent powers of the State and Political Law 2]
liberty as guaranteed by the Bill of Rights.
(2) Enacted (conventional) v. evolved (cumulative)
A.3. CONSTITUTION DEFINED A conventional constitution is enacted
(1) The body of rules and maxims in formally at a definite time and place following
accordance with which the powers of a conscious or deliberate effort taken by a
sovereignty are habitually exercised. [Cooley, constituent body or ruler. A cumulative body is
The General Principles of Law in the United the result of political evolution, not
States of America] inaugurated at any specific time but changing

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by accretion rather than by any systematic review


method. [Cruz, id., at 5] Principaliter: questions Incidenter: question
are independent of that is recognized by
(3) Rigid v. flexible disputes the Court must be part
A constitution is classified as rigid when it of the controversy
may not be amended except through a
special process distinct from and more B. PARTS OF A CONSTITUTION
involved than the method of changing (1) Constitution of Government – establishes
ordinary laws. It is supposed that by such a the structure of government, its branches
special procedure, the constitution is and their operation; e.g. Art. VI, VII, VIII, IX
rendered difficult to change and thereby (2) Constitution of Sovereignty - provides how
acquires a greater degree of stability. A the Constitution may be changed; i.e. Art.
constitution is classified as flexible when it XVII
may be changed in the same manner and (3) Constitution of Liberty - states the
through the same body that enacts ordinary fundamental rights of the people; e.g. Art.
legislation. The Constitution of the UK is III [Lambino v. COMELEC, G.R. No.174153.
flexible. October 25, 2006]

N.B. The Philippine Constitution is written,


C. AMENDMENTS AND REVISIONS
enacted and rigid.
[ART. XVIII –AMENDMENTS OR REVISIONS]
Date of Effectivity of the 1987 Const.: February 2,
C.1 CONCEPTS
1987, the date of the plebiscite, and not on the
Amendments – An addition or change within
date its ratification was proclaimed. [De Leon v.
the lines of the original constitution as will
Esguerra, G.R. No. 78059, August 31, 1987]
effect an improvement, or better carry out the
purpose for which it was framed; a change that
A.5. BASIC PRINCIPLES
adds, reduces or deletes without altering the
(1) Verba legis – whenever possible, the words
basic principles involved; affects only the
used in the Constitution must be given their
specific provision being amended. [Lambino v.
ordinary meaning except where technical
COMELEC, G.R. No.174153. October 25, 2006]
term are employed;
(2) Ratio legis est anima – words of the
Revisions – A change that alters a basic
Constitution should be interpreted in
principle in the constitution, like altering the
accordance with the intent of the framers;
principle of separation of powers or the system
(3) Ut magis valeat quam pereat – the
of checks-and-balances; alters the substantial
Constitution should be interpreted as a
entirety of the constitution, as when the change
whole [Francisco v. House of Representatives,
affects substantial provisions of the constitution.
415 SCRA 44 (2003)]
[Id.]

A.6. TYPES OF JUDICIAL REVIEW Difference – Revision generally affects several


US Judicial Review provisions of the constitution, while amendment
Europe Judicial Review
(Followed by the PHL) generally affects only the specific provision
Constitutional Courts: US Supreme Court: being amended [Id.] This distinction is
centralized, only one decentralized; all courts significant because the 1987 Constitution allows
court can exercise can exercise judicial people’s initiative only for the purpose of

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amending, not revising, the Constitution. [See (i) Limitation on Initiative: No


Lambino, supra] amendment in this manner shall be
authorized (1) within 5 years
iv. Legal tests following the ratification of the 1987
Lambino considered the two-part test: the Const. nor (2) more often than once
quantitative test and the qualitative test. every 5 years thereafter.
(1) Quantitative test – The court examines only (ii) Enabling Law: Constitutional
the number of provisions affected and does provision on amendments via
not consider the degree of the change. People’s Initiative not self-executory
(2) Qualitative test – The court inquires into the [Defensor-Santiago v. COMELEC,
qualitative effects of the proposed change in 270 SCRA 170 (1997)]
the constitution. The main inquiry is
whether the change will “accomplish such (2) Ratification – the proposed amendment
far reaching changes in the nature of our shall be submitted to the people and shall
basic governmental plan as to amount to a be deemed ratified by the majority of the
revision.” The changes include those to the votes cast in a plebiscite, held not earlier
“fundamental framework or the than 60 days nor later than 90 days:
fundamental powers of its Branches,” and (a) After approval of the proposal by
those that “jeopardize the traditional form Congress or ConCon;
of government and the system of check and (b) After certification by the COMELEC of
balances.” Whether there is an alteration in sufficiency of petition of the people.
the structure of government is a proper
subject of inquiry. [See Lambino, supra.] Doctrine of Proper Submission – A plebiscite
may be held on the same day as a regular
C.2 PROCEDURE election [Gonzales v. COMELEC, 21 SCRA 774].
There are two steps in the amendatory process: The entire Constitution must be submitted for
(1) proposal, and (2) ratification ratification at one plebiscite only. The people
must have a proper “frame of reference”.
(1) Proposal – The adoption of the suggested [Tolentino v. COMELEC, 41 SCRA 702]. No
change in the Constitution. “piecemeal submission,” e.g. submission of age
(a) Congress (as a Constituent Assembly) – amendment ahead of other proposed
a vote of ¾ of ALL its members. amendments. [Lambino v. COMELEC, G.R.
(b) Constitutional Convention – Called into No.174153. October 25, 2006]
existence by (i) 2/3 of all members of
Congress OR (ii) the electorate, in a N.B. The process of revision is the same in all
referendum called for by a majority of respects except that it cannot be proposed via a
all members of Congress [CONST., art. People’s Initiative. [See Lambino, supra]
XVII, sec. 3]
(c) People (through a People’s Initiative)- Judicial Review of Amendments – The validity of
petition of at least 12% of the total the process of amendment is not a political
number of registered voters; every question because the Court must review if
legislative district must be represented constitutional processes were followed. [See
by at least 3% of the registered voters Lambino, supra]
therein.

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C.3. SUMMARY OF TWO STAGES OF AMENDATORY/ REVISION PROCESS


By Proposal Ratification
A. Congress (as Constituent By a vote of ¾ of all its
Assembly) members
(In practice) per
B. Constitutional internal rules, limited
Via Plebiscite, 60-90 days
Convention by the Doctrine of
Amendments after submission of the
Proper Submission
amendments
Upon COMELEC’s
certification of the
C. People’s Initiative
sufficiency of the
petition
Via Plebiscite, 60-90 days
A. Congress (as Constituent By a vote of ¾ of all its
Revision after submission of the
Assembly) members
revision
(In practice) per
B. Constitutional internal rules, limited
Convention by the Doctrine of
Proper Submission

TABLE OF CASES RE: CONSTITUTIONAL AMENDMENTS AND CHANGES IN GOVERNMENT


TItle Facts Held and Ratio
Mabanag v. Lopez Resolution of Congress proposing Petition dismissed. Proposal of
Vito (1947) the Parity Amendment was assailed amendments to the constitution is a
Congressional on the ground that it did not comply political question. The enrolled copy of
Resolution proposing with the ¾ rule prescribed by the the resolution in which it was certified
the Parity Constitution. that the proposal had been approved by
Amendment the required vote was conclusive upon
the courts.
Modified by Gonzales, infra, and
Tolentino, infra.
Gonzales v. RBH No. 1 called for an increase in Petition denied.
COMELEC (1967) the membership of the HOR; RBH (1) Proposal of amendments is not a
Resolutions of Both No. 2 called for a Constitutional political but a justiciable question
Houses (RBH) calling Convention; and RBH No. 3 called subject to judicial review.
for the 1971 for the amendment of Sec. 16, Art.VI (2) Congress may propose amendments
Constitutional to allow members of Congress to and at the same time call for a
Convention and become delegates to the CONCON Constituent Assembly.
amendments to the without losing their seats. (3) Ratification may be done
1935 Constitution Petitioners seek to restrain simultaneously with a general election
respondents from enforcing the law or in a special election called specifically
passed by Congress submitting RBH for that purpose.
Nos. 1 and 2 for ratification during (4) There was a proper submission.
the general elections scheduled on
Nov. 1967.

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Tolentino v. Validity of a CONCON Resolution Petition granted. All amendments


COMELEC (1971) (submitting, for ratification, the proposed by the same Constitutional
1971 Constitutional proposal to lower the voting age to Convention shall be submitted to the
Convention 18) was assailed. The question here people in a single election.
convened is whether piecemeal amendments
to the Constitution could be
submitted to the people for
ratification or rejection.

Planas v. COMELEC Petitioners seek to enjoin Petition dismissed. The issue of validity
(1973) respondents from implementing PD of calling for a plebiscite (submission) is
Plebiscite cases 73, which called for a plebiscite (to justiciable; BUT, issue became moot.
be held on January 15, 1973) for the
constitution approved by the
CONCON on 1972, on the theory
that: (a) the power to submit is
lodged exclusively in Congress, and
(b) there is no proper submission to
the people.
Javellana v. Petitioners seek to enjoin the Although the question of whether a
Executive Secretary respondents from implementing any Constitution was validly ratified is a
(1973) of the provisions of the “new justiciable question, the question of
Ratification cases constitution” not found in the 1935 whether a Constitution has come into
Constitution, on the theory that it force and effect is a political question
was not validly ratified in accordance beyond the competence of the Court to
with the provisions of Art.1, Section decide.
XV.
Sanidad v. Petitioners question the authority of (1) The amending process, both as to
COMELEC(1976) the President in issuing several PDs proposal and ratification, raises a
1976 Amendments proposing amendments to the New justiciable question. (2) In a crisis
Constitution and calling for a government, the President shall have
national referendum-plebiscite for the power to assume the constituent
the said amendments. power to propose amendments lodged
in the Legislative body.
Mitra v. COMELEC Petitioners argue that the 1973 Even without valid ratification, a new
(1981) Constitution never validly took Constitution could come into force and
1973 Constitution, effect, Javellana aside, on the theory effect by the acquiescence of the
effective. that the 1973 Constitution was still people. Popular acquiescence to a new
and is still at the stage of proposal. Constitution gives the document the
They ask the Court to order a force and effect of the Fundamental
plebiscite for the ratification of the Law of the Land, regardless of the
1973 Constitution. method of ratification. If it is accepted by
the people (as shown by their
participation in several elections and
referenda since then), in whom

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sovereignty resides according to the


Constitution, the courts cannot refuse to
yield assent to such a political decision.
Lawyers’ League for Petitioners questioned legitimacy of The question of legitimacy of a new
a Better Philippines the Aquino government. government arising from a successful
v. Aquino (1986) revolution is a political question beyond
EDSA Revolution the pale of review by the courts.
De Leon v. Esguerra Petitioners question the Date of effectivity of 1987 Constitution
(1987) appointment of respondents as retroacts to the date of the plebiscite,
1987 Constitution barangay officials and maintain that i.e. 2 Feb. 1987.
ratified with the ratification of the 1987
Constitution, the OIC did not have Provisional Constitution deemed to
the authority to simply appoint their have been superseded by 1987
replacements. Constitution on said date of effectivity.
Santiago v. Petitioners seek to enjoin COMELEC permanently enjoined from
COMELEC (1997) respondent COMELEC from acting entertaining or taking cognizance of any
PIRMA case on the petition by the PIRMA group petition for initiative until a sufficient law
asking for an order fixing details on shall have been validly enacted to provide
how to collect signatures for a for the implementation of the system.
people’s initiative to amend the The system of initiative found in Article
Constitution XVII, Sec. 2 is not self-executory. It needs
an enabling law before the right of the
people could be exercised. However, an
examination of its provisions reveals
that RA 6735 is incomplete, inadequate,
or wanting in essential terms and
conditions insofar as initiative on
amendments to the Constitution is
concerned.
Estrada vs. Desierto Estrada questions legitimacy of (Legal distinction between EDSA I and
(2001) Arroyo government and claims, inter EDSA II) The government arising from
EDSA II alia, that he did not resign from EDSA I was extra-constitutional, while
position and that Arroyo is merely an EDSA II was a constitutional exercise of
acting president. the right to free speech, freedom of
assembly, and to petition the
government for redress.
Lambino vs. Petitioners seek review of COMELEC The constituent power reserved to
COMELEC (2007) decision denying due course to a people under Art. XVII Sec. 2 is limited
Lambino Group people’s initiative to amend the 1987 to the power to propose amendments to,
People’s Initiative Constitution. not revision of, the Constitution.
Moreover, “direct proposal by the
people” means that the petition signed
by the people should contain the full
text of the proposed amendments to the
Constitution.

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D. SELF-EXECUTING AND NON-SELF- N.B. A provision may be self-executing in one


EXECUTING PROVISIONS part, and non-self-executing in another. (Manila
Prince, supra)
D.1. RULE
General Presumption: All provisions of the E. GENERAL PROVISIONS
constitution are self-executing. “Unless the [Art. XVI – General provisions]
contrary is clearly intended, the provisions of (1) Flag of the Philippines [sec. 1]
the Constitution should be considered self- (a) Red, white and blue, with a sun and
executing” [Id.] three stars
(b) Design of the flag may be changed only
Exception: Statements of general principles, such by constitutional amendment [BERNAS]
as those in Art. II, are usually not self-executing. (2) Name of the country, national anthem, and
(Id.) Other examples in jurisprudence: national seal [sec. 2]
constitutional provisions on personal dignity, (a) May be changed by Congress by law
sanctity of family life, vital role of the youth in (b) Such law will only take effect upon
nation-building, values of education, social ratification by the people in a national
justice and human rights, promotion of general referendum
welfare, vital role of the youth in nation- (3) Armed Forces of the Philippines [sec. 4]
building, promotion of total human liberation (a) Composed of a citizen armed force
and development are merely guidelines for (b) Shall take an oath or affirmation to
legislation (Id; citations omitted.) uphold and defend the Constitution [sec.
5(1)]
Exception to the Exception: The (1) right to a (c) May not be appointed or designated to
balanced and healthful ecology is self-executing a civilian position in the government
[Oposa v. Factoran (1993)]. The (2) promotion including GOCCs or their subsidiaries
and protection of health [Const., art. II, sec. 15] is [sec. 5(4)]
also self-executory [Imbong v Executive (d) Laws on retirement of military officers
Secretary, GR 204819, 8 April 2014] shall not allow extension of their service
[sec. 5(5)]
N.B. Other “exceptions” to the exception, e.g. (1) (e) Recruited proportionately from all
right to information in art. III [See Legaspi v. CSC provinces and cities as far as practicable
(1987)] and the (2) Filipino First Policy [See [sec.5(6)]
Manila Prince, supra] are self-executing because (f) Tour of duty of the Chief of Staff shall
they actually fall under the general rule. not exceed three years [sec. 5(7)] except
when extended by the President in
Non-Self Executing: Provisions which merely times of war or other national
“la[y] down a general principle.” [Manila Prince, emergency declared by the Congress
supra] [Id.]
(4) Police Force [sec. 6]
Declaration of principles and state policies are (a) One police force
not self-executing. [Espina v. Zamora, G.R. No. (b) National in scope
143855; September 21, 2010] (c) Civilian in character
(5) Consumer Protection [sec. 9]
Legislative’s failure to pursue policies do not (6) Mass Media [sec.11]
give rise to a cause of action. (Id.) (a) Ownership and management limited to

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(i) citizens of the Philippines or (ii) Treaty limits of the Philippine archipelago
corporations, cooperatives or (1) Treaty of Paris of 10 December 1898: “Spain
associations wholly-owned and cedes to the United States the archipelago
managed by Filipino citizens known as the Philippines Islands, and
(7) Advertising Industry [sec. 11] comprehending the islands lying within the
(a) Can only be engaged in by (i) Filipino following line” xxx
citizens or (ii) corporations or
associations at least 70% of which is Article 3 defines the metes and bounds of the
owned by Filipino citizens archipelago by longitude and latitude, degrees
(b) Participation of foreign investors is and seconds. Technical descriptions are made
limited to their proportionate share in of the scope of the archipelago as this may be
the capital found on the surface of the earth.
(c) Managing officers must be Filipino
citizens (2) Treaty of Washington of 7 November 1900
between the United States and Spain: Ceding
Cagayan, Sibuto and Sulu.
II. General Considerations
(3) Treaty of 2 January 1990 between the United
A. NATIONAL TERRITORY States and Great Britain: Ceding the Turtle and
Mangsee Islands.
Q: What comprises the national territory? What
does it consist of? Straight baseline method – consists of drawing
A: The national territory is comprised of – straight lines connecting appropriate points on
(1) Philippine archipelago, with all the islands the coast without departing to any appreciable
and waters embraced therein; Internal extent from the general direction of the coast, in
waters – waters around, between, and order to delineate the internal waters from the
connecting the islands of the archipelago, territorial waters of an archipelago.
regardless of breadth and dimension; and
(2) All other territories over which the See R.A. No. 9522–amended R.A. No. 3046,
Philippines has sovereignty or jurisdiction entitled "An Act to Define the Baselines of the
Territorial Sea of the Philippines;" specified that
It consists of – baselines of Kalayaan Group of Islands and Bajo
(1) Territorial sea, seabed, subsoil, insular de Masinloc (Scarborough Shoal) shall be
shelves, and other submarine areas determined as “Regime of Islands” under the
(2) Terrestrial, fluvial, and aerial domains Republic of the Philippines, consistent with the
UNCLOS.
A.1. ARCHIPELAGIC DOCTRINE
Statement of doctrine - A body of water studded R.A. No. 9522 is not unconstitutional: (1) it is a
with islands, or the islands surrounded with statutory tool to demarcate the maritime zone
water, is viewed as a unity of islands and waters and continental shelf of the Philippines under
together forming one integrated unit. [N.B. UNCLOS III, and does not alter the national
Embodied in Art. II, specifically by the mention territory. (2) While UNCLOS III does not bind the
of the “Philippine archipelago” and the Philippines to pass a baselines law, Congress
specification on “internal waters.”] may do so. (3) The law also does not abandon
the country’s claim to Sabah, as it does not

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expressly repeal the entirety of R.A. No. 5446. International Law Basis:
[Magallona v. Ermita, G.R. No. 187167, 16 July “Par in parem non habet imperium”
2011]
Jurisprudential Basis:
B. STATE IMMUNITY (1) Positivist Theory - There can be no legal
right as against the authority that makes
B.1. – SUMMARY OF RULE the laws on which the right depends. Also
General rule – The State cannot be sued. called the doctrine of Royal Prerogative of
Dishonesty. [Department of Agriculture v
Exception – the State consents to be sued; How NLRC, GR 104269, 11 November 1993]
consent is given – (2) Sociological Theory - If the State is
(1) Express consent – amenable to suits, all its time would be
(a) General law; or spent defending itself from suits and this
(b) Special law would prevent it from performing its other
(2) Implied consent – functions. [Republic vs. Villasor (1973]
(a) When the State commences litigation, it
becomes vulnerable to a counterclaim; B.3. SUITS AGAINST THE STATE
(b) State enters into a business contract (it When against the state
is exercising proprietary functions); A suit is against the State regardless of who is
(c) When it would be inequitable for the named the defendant if:
State to invoke immunity; (1) It produces adverse consequences to the
(d) In eminent domain cases. public treasury in terms of disbursement of
public funds and loss of government
B.2 CONCEPTS property.
i. State (2) It cannot prosper unless the State has given
A community of persons, more or less numerous, its consent.
permanently occupying a definite portion of
territory, independent of external control, and When not against the state
possessing a government to which a great body It was held that the suit is not against the State:
of the inhabitants render habitual obedience; a (1) When the purpose of the suit is to compel
politically organized sovereign community an officer charged with the duty of making
independent of outside control bound by ties of payments pursuant to an appropriation
nationhood, legally supreme within its territory, made by law in favor of the plaintiff to make
acting through a government functioning under such payment, since the suit is intended to
a regime of law. [Collector of Internal Revenue v. compel performance of a ministerial duty.
Campos Rueda, G.R. No. 13250, October 29, [Begoso v. PVA (1970)]
1971] (2) When from the allegations in the complaint,
it is clear that the respondent is a public
ii. Bases officer sued in a private capacity;
Constitutional (Textual) Basis: Const. Art. XVI (3) When the action is not in personam with the
government as the named defendant, but
Sec. 3. The State may not be sued without its an action in rem that does not name the
consent. government in particular.

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Express consent reason of the defective conditions of


Effected only by the will of the legislature zroads, streets, public buildings and
through the medium of a duly enacted statute; other public works under their control
may be embodied either in a general law or a and supervision. [Art. 2189, CC]
special law: (b) Vicarious liability for special agents [Art.
2180(6), CC]
General Law The Government is only liable for the
Authorizes any person who meets the acts of its agents, officers and
conditions stated in the law to sue the employees, when they act as special
government in accordance with the procedure agents within the meaning of the
in the law; e.g. provision.

(1) Money claims arising from contract express Special Agent - One who receives a definite and
or implied fixed order or commission, foreign to the
exercise of the duties of his office if he is a
Act No. 3083 special official. [Merritt v. Gov’t of the Philippine
An Act Defining the Conditions under which the Islands, (1916)] One who performs his regular
Government of the Philippines may be Sued. functions, even if he is called a “special agent”,
is not a special agent within the context of
Sec. 1. Subject to the provisions of this Act, the Government liability [USA v Guinto, GR 76607,
Government of the Philippines hereby consents 26 February 1990]
and submits to be sued upon any moneyed
claim involving liability arising from contract, Special Law - may come in the form of a private
express or implied, which could serve as a basis bill authorizing a named individual to bring suit
of civil action between private parties. on a special claim

Sec. 2. A person desiring to avail himself of the Implied consent [E-P-I-C]


privilege herein conferred must show that he (1) In instances when the State takes private
has presented his claim to the Commission on property for public use or purpose (eminent
Audit and that the latter did not decide the domain)
same within two months from the date of its (2) When the State enters into a business
presentation. xxx contract (in jure gestionis or proprietary
functions)
Sec. 5. When the Government of the Philippines (3) When it would be inequitable for the State
is plaintiff in an action instituted in any court of to invoke its immunity.
original jurisdiction, the defendant shall have (4) If the government files a complaint,
the right to assert therein, by way of set-off or defendant may file a counterclaim against it.
counterclaim in a similar action between private When the state files a complaint, suability
parties. Xxx will result only where the government is
claiming affirmative relief from the
(2) Torts defendant.
(a) Liability of local government units
Provinces, cities and municipalities shall
be liable for damages for the death or
injuries suffered by any person by

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B.4. SPECIFIC RULES Exception: The doctrine of immunity from suit


will not apply and may not be invoked where
Suits against Government Agencies – Depends the public official is being sued in his (1) private
on whether the agency is incorporated (i.e. there and personal capacity as an ordinary citizen, for
is a separate charter) or unincorporated (i.e. no (2) acts without authority or in excess of the
separate personality). powers vested in him. [Lansang vs CA (2000)]

(1) Incorporated – If the charter provides that Note: Acts done without authority are not acts
the agency can sue, then the suit will lie. The of the State
provision in the charter constitutes express
consent. [See SSS v. Court of Appeals, 120 B.6. EXCEPTIONS TO PRIOR CONSENT
SCRA 707 (1983)] RULE
Case law provides that the following are well-
(2) Unincorporated – There must be an inquiry recognized exceptions when the state/public
unto the principal functions of government. officer MAY be sued without prior consent:
(a) If governmental: NO suit without
consent. [Bureau of Printing v. Bureau (1) To compel him to do an act required by law;
of Printing Employees Association (2) To restrain him from enforcing an act
(1961)] claimed to be unconstitutional;
(b) If proprietary: Suit will lie, because when (3) To compel the payment of damages from an
the state engages in principally already appropriated assurance fund or to
proprietary functions, it descends to the refund tax over-payments from a fund already
level of a private individual, and may, available for the purpose;
therefore be vulnerable to suit. [Civil (4) To secure a judgment that the officer
Aeronautics Administration v. Court of impleaded may satisfy by himself without the
Appeals (1988)]. State may only be State having to do a positive act to assist him;
liable for proprietary acts (jure (5) Where the government itself has violated its
gestionis) and not for sovereign acts own laws. [Sanders v. Veridiano II, (1988)]
(jure imperii).
B.7. SCOPE OF CONSENT
Type Function Rule Consent to be sued is not concession of liability:
Incorporated Governmental CAN be sued IF Suability depends on the consent of the state to
or proprietary charter allows be sued, and liability on the applicable law and
Unincorporated Governmental CANNOT be the established facts. The circumstance that a
sued unless state is suable does not necessarily mean that it
consent is given
is liable, but it can never be held liable if it does
Proprietary CAN be sued
not first consent to be sued. When the state does
waive its sovereign immunity, it is only giving the
B.5. SUITS AGAINST PUBLIC OFFICERS plaintiff the chance to prove that it is liable.
General Rule – The doctrine of state immunity [United States of America v. Guinto, 182 SCRA
also applies to complaints filed against officials 644 (1990)]
of the State for acts performed by them in the
discharge of their duties within the scope of
their authority.

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C. GENERAL PRINCIPLES AND the State. Its goal is to secure the sovereignty of
POLICIES the State and the integrity of the national
[ART. II – DECLARATION OF PRINCIPLES AND territory.
STATE POLICIES]
Civilian authority (Section 3, Article II) is not
Principles [sec.1-6]: Binding rules which must be defeated in a joint task force between the PNP
observed in the conduct of government [Bernas] and Marines for the enforcement of law and
order in Metro Manila as long as control is left
(1) The Philippines is a democratic and to the PNP. [IBP v. Zamora (2000)]
republican state [Sec. 1]
(6) Role of the armed forces [Sec. 3, supra]
Sec. 1. The Philippines is a democratic and (a) Protector of the people and the State
republican State. Sovereignty resides in the (b) Secure the sovereignty of the State and
people and all government authority emanates the integrity of the national territory
from them.
(8) Compulsory military and civil service [Sec. 4]
The Philippines, under the Const., is not just a
representative government but also shares Sec. 4. The prime duty of the Government is to
some aspects of direct democracy such, for serve and protect the people. The Government
instance, as the “initiative and referendum” may call upon the people to defend the State
under Art. VI, Sec. 32 [Bernas] and, in the fulfillment thereof, all citizens may
be required, under conditions provided by law,
(2) Renunciation of war [Sec. 2] to render personal, military or civil service.

Sec. 2. The Philippines renounces war as an N.B. Under conditions provided by law
instrument of national policy, adopts the
generally accepted principles of international (9) Maintenance of peace and order, promotion
law as part of the law of the land and adheres to of general welfare [Sec. 5]
the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations. Sec. 5. The maintenance of peace and order, the
protection of life, liberty, and property, and
Only refers to wars of aggression, not defensive promotion of the general welfare are essential
war for the enjoyment by all the people of the
blessings of democracy.
(3) Adoption of generally-accepted principles of
international law [Sec. 2, supra] (9) Recognition of hierarchy of rights [Bernas;
Sec. 5, supra]
(4) Adherence to a policy of peace, freedom, (a) Life
and amity with all nations [Sec. 2, supra] (b) Liberty
(c) Property
(5) Civilian supremacy [Sec. 3]
(10) Separation of Church and State [Sec. 6]
Sec. 3. Civilian authority is, at all times, supreme
over the military. The Armed Forces of the Sec. 6. The separation of Church and State shall
Philippines is the protector of the people and be inviolable.

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Policies [sec. 7-28]: Guidelines for the orientation family as a basic autonomous social institution.
of the state [Bernas] It shall equally protect the life of the mother
and the life of the unborn from conception. The
(1) Independent foreign policy [Sec. 7] natural and primary right and duty of parents in
the rearing of the youth for civic efficiency and
Sec. 7. The State shall pursue an independent the development of moral character shall
foreign policy. In its relations with other states, receive the support of the Government.
the paramount consideration shall be national
sovereignty, territorial integrity, national The right and duty referred to here is primary,
interest, and the right to self-determination. not exclusive. The State as parens patriae has an
inherent right to aid parents in the moral
(2) Freedom from nuclear weapons [Sec. 8] development of the youth. Hence, the provision
in the RH Law mandating the teaching of age-
Sec. 8. The Philippines, consistent with the and development-appropriate reproductive
national interest, adopts and pursues a policy of health education is not per se unconstitutional;
freedom from nuclear weapons in its territory. a ruling on its constitutionality would be
premature absent an actual curriculum
(3) Promote a just and dynamic social order formulated by the Dept. of Education. [Imbong v.
[Sec.9] Ochoa, G.R. No. 204819, Apr. 8, 2014, on the
Sec. 9. The State shall promote a just and constitutionality of the RH Law]
dynamic social order that will ensure the
prosperity and independence of the nation and (7) Protection of the life of the mother and the
free the people from poverty through policies life of the unborn from conception [Sec. 12,
that provide adequate social services, promote supra]
full employment, a rising standard of living, and The question of when life begins is a scientific
an improved quality of life for all. and medical issue that should not be decided
[in the RH petitions] without proper hearing and
(4) Promote social justice in all phases of evidence. [Imbong v. Ochoa, supra]
national development [Sec. 10]
(8) Vital role of youth in nation-building [Sec. 13]
Sec. 10. The State shall promote social justice in
all phases of national development. Sec. 13. The State recognizes the vital role of the
youth in nation-building and shall promote and
(5) Personal dignity and human rights [Sec. 11] protect their physical, moral, spiritual,
intellectual, and social well-being. It shall
Sec. 11. The State values the dignity of every inculcate in the youth patriotism and
human person and guarantees full respect for nationalism, and encourage their involvement
human rights. in public and civic affairs.

(6) Family as basic social institution [Sec. 12] (9) Role of women in nation-building [Sec. 14]
and natural and primary right and duty of
parents in the rearing of the youth [Id.] Sec. 14. The State recognizes the role of women
in nation-building, and shall ensure the
Sec. 12. The State recognizes the sanctity of fundamental equality before the law of women
family life and shall protect and strengthen the and men.

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(10) Fundamental equality before the law of (16) Role of private sector [Sec. 20]
women and men [Sec. 14, supra]
Sec. 20. The State recognizes the indispensable
(11) Right to health [Sec. 15, Imbong v. Ochoa, role of the private sector, encourages private
supra] enterprise, and provides incentives to needed
investments.
Sec. 15. The State shall protect and promote the
right to health of the people and instill health (17) Comprehensive rural development and
consciousness among them. agrarian reform [Sec. 21]

(12) Right to a balanced and healthful ecology Sec. 21. The State shall promote comprehensive
[Sec.16, Oposa v. Factoran] rural development and agrarian reform.

Sec. 16. The State shall protect and advance the (18) Recognition and promotion of rights of
right of the people to a balanced and healthful indigenous cultural communities [Sec. 22]
ecology in accord with the rhythm and harmony
of nature. Sec. 22. The State recognizes and promotes the
rights of indigenous cultural communities
(13) Priority to education, science and within the framework of national unity and
technology, arts, culture, and sports [Sec. 17] development.

Sec. 17. The State shall give priority to (19) Community-based, sectoral organizations
education, science and technology, arts, [Sec.23]
culture, and sports to foster patriotism and
nationalism, accelerate social progress, and Sec. 23. The State shall encourage non-
promote total human liberation and governmental, community-based, or sectoral
development. organizations that promote the welfare of the
nation.
(14) Labor as a primary social economic force
[Sec.18] (20) Role of communication and information in
nation-building [Sec.24]
Sec. 18. The State affirms labor as a primary
social economic force. It shall protect the rights Sec. 24. The State recognizes the vital role of
of workers and promote their welfare. communication and information in nation-
building.
(15) Self-reliant and independent national
economy [Sec.19] (21) Autonomy of local governments [Sec. 25]

Sec. 19. The State shall develop a self-reliant Sec. 25. The State shall ensure the autonomy of
and independent national economy effectively local governments.
controlled by Filipinos.

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(22) Equal access for public service and within its own sphere. [Angara v. Electoral
prohibition of political dynasties [Sec. 26] Commission, supra]

Sec. 26. The State shall guarantee equal access Separation of powers is founded on the belief
to opportunities for public service and prohibit that, by establishing equilibrium among the
political dynasties as may be defined by law. three power holders, harmony will result, power
will not be concentrated and thus tyranny will
The state policy against political dynasties is not be avoided [Bernas].
self-executing. It does not provide a judicially
enforceable constitutional right but merely The separation of powers is a fundamental
specifies a guideline for legislative or executive principle in our system of government. Any
action. [Belgica v. Ochoa, G.R. No. 208566, Nov. system that is violative of this principle is
19, 2013] unconstitutional and void. [See Belgica v. Ochoa,
G.R. No. 208566, Nov. 19, 2013, on the
(23) Honesty and integrity in public service [Sec. unconstitutionality of the PDAF]
27]
The Pork Barrel System violates the separation
Sec. 27. The State shall maintain honesty and of powers because it is a form of post-
integrity in the public service and take positive enactment authority in the implementation or
and effective measures against graft and enforcement of the budget.
corruption. (1) By giving individual legislators the (a) power
to determine projects after the General
(24) Policy of full public disclosure [Sec. 28] Appropriations Act (GAA) is passed, and, (b)
through congressional committees,
Sec. 28. Subject to reasonable conditions authority in the areas of fund release and
prescribed by law, the State adopts and realignment, the system encroaches on the
implements a policy of full public disclosure of Executive’s power to implement the law.
all its transactions involving public interest. (2) Furthermore, identification of a project by a
legislator being a mandatory requirement
See discussion, vis-à-vis the right to information before his PDAF can be tapped as a source
(Art. III, Sec. 7) in the Constitutional Law II of funds, his act becomes indispensable in
reviewer. the entire budget execution process.
[Belgica, supra]
D. SEPARATION OF POWERS
The government established by the Constitution E. CHECKS AND BALANCES
follows fundamentally the theory of separation It does not follow from the fact that the three
of powers into the legislative, the executive and powers are to be kept separate and distinct that
the judicial [Angara v. Electoral Commission, G.R. the Constitution intended them to be absolutely
No. 45081. July 15, 1936]. unrestrained and independent of each other.
The Constitution has provided for an elaborate
Separation of powers is not expressly provided system of checks and balances to secure
for in the Constitution. But it obtains from actual coordination in the workings of the various
division [found in Sec. 1 of Articles VI, VII, and departments of the government. [Angara v.
VIII]. Each department has exclusive cognizance Electoral Commission]
of matters within its jurisdiction, and is supreme

16
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Congressional oversight is not per se violative, no longer disinterested observers. [Belgica,


but is integral, to separation of powers. However, supra]
for a post-enactment congressional measure to
be valid, it must be limited to: Section 8(2) of RA No. 6770, providing that the
(1) Scrutiny - Congress’ power of appropriation, President may remove a Deputy Ombudsman, is
i.e. budget hearings, and power of unconstitutional. Subjecting the Deputy
confirmation Ombudsman to discipline and removal by the
(2) Investigation and monitoring of President, whose own alter egos and officials in
implementation of laws – using its power to the Executive department are subject to the
conduct inquiries in aid of legislation. Ombudsman’s disciplinary authority, cannot but
[Abakada Guro Partylist v. Purisima, G.R. No. seriously place at risk the independence of the
166715, August 14, 2008] Office of the Ombudsman itself. Section 8(2) of
R.A. No. 6770 intruded upon the
A legislative veto, i.e. statutory provision (which constitutionally-granted independence of the
may take the form of a congressional oversight Office of the Ombudsman. By so doing, the law
committee) that requires the President or an directly collided not only with the independence
agency to submit the proposed implementing that the Constitution guarantees to the Office of
rules and regulations of a law to Congress for the Ombudsman, but inevitably with the
approval, is unconstitutional. It encroaches on: principle of checks and balances that the
(1) The executive - it allows Congress to take a creation of an Ombudsman office seeks to
direct role in the enforcement of its laws; revitalize. What is true for the Ombudsman
(2) The judiciary - administrative issuances must equally and necessarily be true for her
enjoy a presumption of validity, and only the Deputies who act as agents of the Ombudsman
courts may decide whether or not they in the performance of their duties. The
conform to statutes or the Constitution. Ombudsman can hardly be expected to place
[Abakada Guro Partylist v. Purisima, G.R. No. her complete trust in her subordinate officials
166715, August 14, 2008] who are not as independent as she is, if only
because they are subject to pressures and
The Pork Barrel system is unconstitutional, controls external to her Office. [Gonzales III v.
among others, because it violates the system of Office of the President, G.R. No. 196231, Jan. 28,
checks and balances. 2014]
(1) It deprives the president of his item-veto
power. As lump-sum appropriations, the F. DELEGATION OF POWERS
actual projects under each congressman’s
PDAF are determined (by the congressman) F.1. RULE OF NON-DELEGATION OF
only after the GAA is passed. The president, LEGISLATIVE POWER
then, would not be able to discern whether Principle: Delegata potestas non potest delegari
or not he should veto the appropriation. – What has been delegated can no longer be
(2) It has a detrimental effect on Congressional delegated.
Oversight. Because legislators effectively
intervene in project implementation, it Rationale: Since the powers of the government
becomes difficult for them to exercise their have been delegated to them by the people,
(valid) post-enactment role of scrutinizing, who possess original sovereignty, these powers
investigating, or monitoring the cannot be further delegated by the different
implementation of the law, when they are

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government departments to some other branch ascertaining facts to bring the law into actual
or instrumentality of the government. operation.

General Rule: Only Congress (as a body) may Traditional/Simplified Formulation: Who may
exercise legislative power exercise legislative powers:

Exceptions: General Rule: Congress only


(1) Delegated legislative power to local Exceptions:
governments – Local governments, as an (1) Delegated power to local governments
immemorial practice, may be allowed to (2) Delegated emergency powers of the
legislate on purely local matters. [See Rubi v. president
Provincial Board (1919), cited in Belgica, supra. (3) Delegated taxing powers of the president
See also Const., Art. IX, Sec. 9, explicitly (4) Subordinate legislation of administrative
mentioning “legislative bodies of local agencies
governments;” and Sec. 20 providing for the (5) Power reserved to people for initiative and
coverage of legislative powers delegated to referendum
autonomous regions via the latter’s organic
acts.] F.2. TESTS FOR VALID DELEGATION
Rule – There is a valid delegation of legislative
(2) Constitutionally-grafted Exceptions power when:
(a) Emergency power delegated to the Executive (1) Completeness test – The law sets forth the
during State of War or National Emergency policy to be executed, carried out, or
[Const., art. VI, sec.23(2)] implemented by the delegate (Abakada,
(b) Certain taxing powers of the President supra), such that there is nothing left for the
[Const., art. VI, sec.28(2)]. The Congress may delegate to do but to enforce the law
authorize the President to fix, within specified [Pelaez v.Auditor General (1965)]; AND
limits, and subject to such limitations and (2) Sufficient standard test – The standard is
restrictions as it may impose, tariff rates, import sufficient if it defines legislative policy,
and export quotas, tonnage and wharfage dues, marks its limits, maps out its boundaries
and other duties or imposts within the and specifies the public agency to apply it. It
framework of the national development indicates the circumstances under which
program of the Government. the legislative command is to be effected.
[Edu v. Ericta, 35 SCRA 481 (1970)]
(3) The extent reserved to the people by the
provision on initiative and referendum [Const. N.B.: Acts which are purely legislative in
Art. VI, Sec. 1] character cannot be delegated to an
administrative body (in contrast to the
N.B. Subordinate legislation made by ascertainment of facts or the filing in of details
administrative agencies – The principle of non- which can be delegated to administrative
delegability should not be confused with the agencies).
delegated rule-making authority of
implementing agencies. [Belgica, supra] Strictly
speaking, what is delegate is not “law-making”
power, but rule-making power, limited to (a)
filling up the details of the law or (b)

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G. FORMS OF GOVERNMENT (2) INDEPENDENT GOVERNMENT – That


established as an independent gov’t by the
G.1. DEFINITION inhabitants of a country who rise in
“Government of the Philippines” is defined as: insurrection against the parent state.
The corporate governmental entity through (3) That which is established and maintained
which the functions of government are by military forces who invade and occupy a
exercised throughout the Philippines, including territory of the enemy in the course of war,
the various arms through which political and which is denominated as a gov’t of
authority is made effective in the Philippines, paramount force, like the Second Republic
whether pertaining to: established by the Japanese belligerent.
(a) the autonomous regions,
(b) the provincial, city, municipal, or barangay The legitimacy of the Aquino government is not
subdivisions, or a justiciable matter. It belongs to the realm of
(c) other forms of local government. [Sec. 2(1), politics where only the people of the Philippines
Bk. I, Administrative Code] are the judge. And the people have made the
judgment; they have accepted the government
“Government” is that institution or aggregate of of President Corazon C. Aquino which is in
institutions by which an independent society effective control of the entire country so that it is
makes and carries out those rules of action not merely a de facto government but in fact
which are necessary to enable men to live in a and law a de jure government. Moreover the
social state or which are imposed upon the community of nations has recognized the
people forming that society by those who legitimacy of the present government. All the
possess the power or authority of prescribing eleven members of this Court as reorganized
them. [US v. Dorr (1903)] have sworn to uphold the fundamental law of
the Republic under her government. (In re
G.2. AS TO THE EXISTENCE OR ABSENCE Bermudez (1986) citing Lawyers League for a
Better Philippines v. Aquino (1986)]
OF CONTROL
i. De jure
EDSA I vs. EDSA II
(1) Has rightful title;
In fine, the legal distinction between EDSA
(2) But has no power or control, either because
People Power I and EDSA People Power II is
this has been withdrawn from it, or because
clear. EDSA I involves the exercise of the people
it has not yet actually entered into the
power of revolution which overthrew the whole
exercise thereof. [In re Letter of Associate
government. EDSA II is an exercise of people
Justice Puno, (1992)]
power of freedom of speech and freedom of
assembly to petition the government for redress
ii. De facto
of grievances which only affected the office of
Government of fact, that is, it actually exercises
the President. EDSA I is extra-constitutional
power or control without legal title. [Co Kim
and the legitimacy of the new government that
Cham v. Valdes, (1945)]
resulted from it cannot be the subject of judicial
(1) DE FACTO PROPER – The government that
review, while EDSA II is intra-constitutional and
gets possession and control of, or usurps, by
the resignation of the sitting President that it
force or by the voice of the majority, the
caused and the succession of the Vice President
rightful legal gov’t and maintains itself
as President are subject to judicial review. EDSA I
against the will of the latter.

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presented a political question; EDSA II involved


legal questions. xxx
III. Legislative
Even if the petitioner can prove that he did not
Department
resign, still, he cannot successfully claim that
he is a President on leave on the ground that he A. WHO MAY EXERCISE LEGISLATIVE
is merely unable to govern temporarily. That POWER
claim has been laid to rest by Congress and the Q: What is legislative power?
decision that respondent Arroyo is the de jure A: Legislative power is the authority to make
president, made by a co-equal branch of laws and to alter and repeal them.
government, cannot be reviewed by this Court.
[Estrada v. Desierto / Estrada v. Arroyo (2001)] A.1. CONGRESS
Legislative power is vested in the Congress,
G.3. AS TO CONCENTRATION OF POWERS which consists of a Senate and a House of
i. Presidential – there is separation of Representatives. (Art. VI, Sec. 1) Grant of
executive and legislative branches of legislative power to Congress is plenary.
government Congress may legislate on any subject matter
ii. Parliamentary – There is a fusion of provided that constitutional limitations are
executive and legislative powers in the observed.
Parliament, although the actual exercise of
the executive powers is vested on the Prime A.2. REGIONAL/LOCAL LEGISLATIVE
Minister. (De Leon) POWER
N.B. A regional assembly exists for the ARMM
G.4. AS TO CENTRALIZATION
i. Unitary – One in which the control of the A.3. PEOPLE’S INITIATIVE ON STATUTES
national and local affairs is exercised by the Legislative power is also vested in the people by
national and local government the system of initiative and referendum. (Art. VI,
ii. Federal – one in which the powers of the Sec. 1) The power of initiative and referendum is
government are divided between two sets of the power of the people directly to “propose and
organs, one for national affairs and one for enact laws or approve or reject any act or law or
local affairs. (De Leon) part thereof passed by the Congress or local
legislative body.” (Art. VI, Sec.32); The provision
is not self-executing [Santiago v. COMELEC, 270
SCRA 106 (1997)];

RA 6735 – “An Act Providing for a System of


Initiative and Referendum and Appropriating
Funds Therefore” – valid for (a) laws, (b)
ordinances, and (c) resolutions, but NOT
amendments to the Constitution [Santiago,
supra]

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Initiative (2) Statutes involving emergency measures, the


enactment of which is specifically vested in
i. Local initiative; voter requirements Congress by the Constitution, cannot be
Region Not less than X subject to referendum until 90 days after
registered voters their effectivity. (Sec. 10, RA 6735)
Autonomous regions 2,000
Provinces 1,000 A.4. THE PRESIDENT UNDER MARTIAL
Municipalities 100 LAW OR IN A REVOLUTIONARY
Barangays 50 GOVERNMENT
Sec. 23. (1) The Congress, by a vote of two-thirds
Where to file – Regional Assembly, local of both Houses in joint session assembled,
legislative body, as the case may be. (Sec. 13, voting separately, shall have the sole power to
RA 6735) declare the existence of a state of war.

ii. Limitations on local initiative (2) In times of war or other national emergency,
Cannot be exercised more than once a year; the Congress may, by law, authorize the
extends only to subjects or matters which are President, for a limited period and subject to
within the legal powers of the local legislative such restrictions as it may prescribe, to exercise
bodies to enact; and if at any time before the powers necessary and proper to carry out a
initiative is held, the local legislative body declared national policy. Unless sooner
should adopt in toto the proposition presented, withdrawn by resolution of the Congress, such
the initiative shall be cancelled. (Sec. 15, RA powers shall cease upon the next adjournment
6735) thereof.

Referendum – the power of the electorate to Congress may delegate legislative powers to
approve or reject legislation through an election the president in times of war or in other national
called for that purpose (Sec. 3c, RA 6735) emergency. [Bernas]

Referendum: Classes
B. HOUSES OF CONGRESS
(1) Referendum on statutes – petition to
approve or reject an act or law, or part
B.1. SENATE
thereof, passed by Congress;
See comparison below
(2) Referendum on local laws – legal process
whereby the registered voters of the LGUs
may approve, amend, or reject any
B.2. HOUSE OF REPRESENTATIVES
ordinance enacted by the Sanggunian (Sec. i. Composition, qualifications, term of office
House of
126, LGC) Senate
Representatives
(art. VI, sec. 2-4)
(art. VI, sec. 5-8)
Q: Is the power of to hold a referendum plenary?
Composition
A: No, the following cannot be the subject of an
24 senators elected at Not more than 250
initiative or referendum petition –
large members, unless
(1) No petition embracing more than one otherwise provided by
subject shall be submitted to the electorate; law, consisting of:
and (3) District
Representatives

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House of reapportionment do not require a plebiscite.


Senate
Representatives [Bagabuyo v. COMELEC, 576 SCRA 290 (2008)]
(art. VI, sec. 2-4)
(art. VI, sec. 5-8)
(4) Party-List (2) Proportional representation based on number
Representatives
of inhabitants
Qualifications (a) Each city with a population of at least
(1) Natural-born citizen (1) Natural-born citizens 250,000 shall have at least 1
(2) At least 35 years old (2) At least 25 years old representative.
on the day of the on the day of the
(b) Each province, irrespective of the number
election election
(3) Able to read and write (3) Able to read and
of inhabitants, shall have at least 1
(4) A registered voter write representative.
(5) Resident of the (4) Registered voter in (3) Each legislative district shall comprise, as
Philippines for at least the district he seeks far as practicable, contiguous, compact, and
2 years immediately to represent adjacent territory. (N.B. Anti-
preceding the day of (5) A resident of the said gerrymandering provision)
the election district for at least 1 (4) Re-apportionment by Congress within 3
year immediately years after the return of each census.
preceding the day of
the election
N.B. – “Apportionment”: The determination of
Term of Office the number of representatives which a State,
6 years 3 years county, or other subdivision may send to a
Term Limits legislative body; compare with
2 consecutive terms 3 consecutive terms “reapportionment”, i.e., Realignment or change
in legislative districts brought about by changes
ii. District representatives and questions of in population and mandated by the
apportionment constitutional requirement of equality of
representation. (Bagabuyo v COMELEC);
District Representatives - Elected from
legislative districts apportioned among the iii. Party-list system
provinces, cities, and Metro Manila area.
Party-List Representatives – shall constitute
Rules on Apportionment of Legislative Districts: 20% of the total number of representatives,
(1) Apportionment of legislative districts must elected through a party-list system of registered
be by law which could be a: national, regional, and sectoral parties or
(a) General Apportionment Law; or organizations
(b) Special Law (i.e. creation of new
provinces) See Sectoral Representatives - For 3 consecutive
terms from 2 February 1987, ½ of the party-list
Note: The power to apportion legislative seats shall be allotted to sectoral
districts is textually committed to Congress by representatives to be chosen by appointment or
the Constitution. Thus, it cannot be validly election, as may be provided by law. Until a law
delegated to the ARMM Regional Assembly is passed, they are appointed by the President
[Sema v. COMELEC, G.R. No. 177597, July 16, from a list of nominees by the respective sectors.
2008]. Under the Constitution and the Local [Art. XVIII, Sec. 7]
Gov. Code, apportionment and

22
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N.B. The party-list system is not synonymous they have at least 1 nominee who remains
with sectoral representation. [Atong Paglaum v. qualified. [Atong Paglaum, supra]
COMELEC, G.R. No. 203766, Apr. 3, 2013, citing
1986 Constitutional Commission Records] Disqualifications and Qualifications
See R.A. 7941, An Act Providing For The Election
Atong Paglaum Guidelines Of Party-List Representatives Through The Party-
(1) Three different parties or organizations may List System, And Appropriating Funds Therefor
participate in the party-list system:
(a) national; Disqualified Parties:
(b) regional; (1) Religious Sects
(c) or sectoral; (2) Foreign Organizations
(2) National and regional parties or orgs do not (3) Advocating Violence or Unlawful Means
need to (a) organize along sectoral lines, or (4) Receiving support from any foreign
(b) represent any “marginalized or government, foreign political party,
underrepresented” sector; foundation, organization, whether directly
(3) Political parties may participate in the party- or through any of its officers or members or
list system provided: indirectly through third parties for partisan
(a) they register under the party-list election purposes.
system; (5) Violates or fails to comply with laws, rules
(b) they do not field candidates in or regulations relating to elections;
legislative district elections. (6) Declares untruthful statements in its
(i) A party that participates in the petition;
legislative district elections may still (7) Ceased to exist for at least one (1) year; or
participate in the party-list through (8) Fails to participate in the last two (2)
a sectoral wing. preceding elections or fails to obtain at
(ii) The sectoral wing can be part of the least 2 per centum of the votes cast under
political party’s coalition, but the the party-list system in the two (2)
former must be registered preceding elections for the constituency in
independently in the party-list which it has registered.
system.
(4) Sectoral parties or orgs may either be (a) Qualified Sectors:
“marginalized or underrepresented” (e.g. N.B. This qualification applies only to sectoral
labor, peasant, fisherfolk); or (b) “lacking in parties. Participating national or regional
well-defined political constituencies” (e.g. parties need not fall under any of these sectors.
professionals, women, elderly, youth) [See Atong Paglaum, supra]
(5) The nominees of sectoral parties or orgs, of (1) Labor
either type, must (a) belong to their (2) Peasant
respective sectors, or (b) have a track record (3) Fisherfolk
of advocacy for their respective sectors. (4) Urban Poor
Majority of the members of a sectoral party, (5) Indigenous Cultural Communities
of either type, must belong to the sector (6) Elderly
they represent. (7) Handicapped
(6) National, regional, or sectoral parties or (8) Women
orgs shall not be disqualified if some of (9) Youth
their nominees are disqualified, provided (10) Veterans

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(11) Overseas Workers total number of votes cast for party-list


(12) Professionals candidates.
Step 4: Round 1 – Allocate one (1) seat each for
Four parameters of the party-list system: party-list that garnered at least 2% of the total
(1) 20% Allocation: 20% of the total number of number of votes.
the membership of the House of Step 5: Round 2 – Assign additional seats from
Representatives is the maximum number of the balance (i.e. total number of party-list seats
seats available to party-list organizations. minus Round 1 allocations) by:
(2) 2% Threshold: Garnering 2% of the total (a) Allocating one (1) seat for every whole
votes cast in the party-list elections integer (e.g. if a party garners 2.73% of the
guarantees a party-list organization one (1) vote, assign it two [2] more seats; if 1.80%,
seat. assign it one [1] more seat); then
(3) Additional Seats: The additional seats, that (b) Allocating the remaining seats (i.e. total
is, the remaining seats after allocation of seats minus Round 1 and Round 2a
the guaranteed seats, shall be distributed to allocations) to those next in rank until all
the party-list organizations including those seats are completely distributed.
that received less than two percent of the Step 6: Apply the 3-Seat Cap, if necessary. [See
total votes. BANAT v. COMELEC, supra]
N.B. The continued operation of the 2%
threshold to the allocation of the additional
C. LEGISLATIVE PRIVILEGES,
seats is unconstitutional because this
threshold mathematically and physically
INHIBITIONS, DISQUALIFICATIONS
prevents the filling up of the available
party-list seats. C.1. PRIVILEGES
(4) 3-Seat Cap: The three-seat cap is i. Salaries
constitutional. The salaries of Senators and Representatives
N.B. It is intended by the Legislature to shall be determined by law; no increase in said
prevent any party from dominating the compensation shall take effect until after the
party-list system. There is no violation of the expiration of the full term of all the Members of
Constitution because the 1987 Constitution the Senate and the House of Representatives
does not require absolute proportionality for approving such increase. [Art. VI, Sec. 10].
the party-list system. [BANAT v. COMELEC,
G.R. No. 179271, Jul. 8, 2009 Resolution on ii. Freedom from arrest
the Motion for Clarificatory Judgment] Sec. 11. A Senator or Member of the House of
Representatives shall, in all offenses punishable
Rules on Computation of Seats: Two-Round by not more than six years imprisonment, be
Allocation privileged from arrest while the Congress is in
session. […]
Step 1: Compute total number of seats allocated
for party-list representatives Preventive suspension is not a penalty. Order of
Step 2: Rank all party-list candidates from suspension under R.A. 3019 (Anti-Graft and
highest to lowest based on the number of votes Corrupt Practices Act) is distinct from the power
they garnered of Congress to discipline its own members, and
Step 3: Compute for each party-list candidate’s did not exclude members of Congress from its
percentage of votes garnered in relation to the

24
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operation. [Defensor-Santiago v. Sandiganbayan C.2. INHIBITIONS AND


(2001)] DISQUALIFICATIONS
(1) May not hold any other office or employment
In People v. Jalosjos, G.R. No. 132875, February in the government during his term without
3, 2000, the SC denied the request of Cong. forfeiting his seat. [Art. VI, Sec. 13]
Jalosjos that he be allowed to attend legislative
sessions. The denial was premised on the The provision refers to an Incompatible Office.
following: (a) membership in Congress does not Forfeiture of the seat in Congress shall be
exempt an accused from statutes and rules automatic upon the member’s assumption of
which apply to validly incarcerated persons; (b) such office deemed incompatible. [Adaza v.
one rationale behind confinement is public self- Pacana, 135 SCRA 431 (1985)].
defense; (c) it would amount to creation of a
privileged class, without justification in reason; (2) May not be appointed to any office created
and (d) he was provided with an office in the or whose emoluments were increased during
New Bilibid Prison. the term for which he was elected. [Art. VI,
Sec. 13]
iii. Speech and debate clause
Sec. 11. […] No Member shall be questioned nor The provision refers to a Forbidden Office. He
be held liable in any other place for any speech cannot validly take the office even if he is willing
or debate in the Congress or in any committee to give up his seat.
thereof.
(3) Shall not be financially interested, directly or
To come under the guarantee the speech or indirectly, in any contract with, or franchise
debate" must be one made "in Congress or in or special privilege granted by the
any committee thereof." Publication of an government during his term of office. [Art.
allegedly libelous letter is not covered by the VI, Sec. 14]
privilege. [Jimenez v. Cabangbang (1966)]; the
immunity, although absolute in its protection of (4) Shall not intervene in any matter before any
the member of Congress against suits for libel, office of the government when it is for his
does not shield the member against the pecuniary benefit or where he may be called
disciplinary authority of the Congress. upon to act on account of his office. [Art. VI,
[Defensor-Santiago v. Pobre, AC 7399, 25 August Sec. 14]
2009)]
The Pork Barrel System “runs afoul” of Art. VI,
Q: What speech is covered under this provision? Sec. 14 because in “allowing legislators to
A: Generally anything a member of Congress intervene in the various phases of project
says in line with his legislative function. implementation – a matter before another
(Jimenez v Cabangbang). In particular: (1) office of government – [the Pork Barrel] renders
speeches made, (2)utterances, (3) bills signed, them susceptible to taking undue advantage of
and (4) votes passed. their own office.” [Belgica, supra]

(5) Cannot personally appear as counsel before


any court, electoral tribunal, quasi-judicial
and administrative bodies during his term of
office. [Art. VI, Sec. 14]

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N.B. Distinguish ineligible office (for elective Sec. 12. All Members of the Senate and the
officials) where the appointment is invalid since House of Representatives shall, upon
it is contrary to the Constitution, regardless if assumption of office, make a full disclosure of
the official resigns or not (Sec 7, Art IX – B), and their financial and business interests. They shall
an incompatible office (for members of notify the House concerned of a potential
Congress and the Senate) where the conflict of interest that may arise from the filing
appointment is valid and the official may hold of a proposed legislation of which they are
the appointed office provided that he/she authors.
resigns his/her current office.
(3) Potential conflicts of interest: Members must
C.3. DUTY TO DISCLOSE notify House, if conflict arises from the filing of a
(1) SALN: Art. XI, Sec. 17 proposed legislation which they authored. [Id.]
Sec. 17. A public officer or employee shall, upon
assumption of office and as often thereafter as (4) Amounts paid to/expenses incurred by each
may be required by law, submit a declaration member: To be reported annually by the COA.
under oath of his assets, liabilities, and net [Art. VI, Sec. 20]
worth. In the case of the President, the Vice- Sec. 20. The records and books of accounts of
President, the Members of the Cabinet, the the Congress shall be preserved and be open to
Congress, the Supreme Court, the the public in accordance with law, and such
Constitutional Commissions and other books shall be audited by the Commission on
constitutional offices, and officers of the armed Audit which shall publish annually an itemized
forces with general or flag rank, the declaration list of amounts paid to and expenses for each
shall be disclosed to the public in the manner Member.
provided by law.
D. QUORUM AND VOTING
What: Declaration under oath of assets, MAJORITIES
liabilities, and net worth
When:
D.1. QUORUM
(a) Upon assumption of office
Majority of each House shall constitute a
(b) As often as may be required by law
quorum, although a smaller number may
Who must declare:
adjourn from day to day and may compel the
(a) President
attendance of absent members.
(c) Vice-President
(d) Members of the Cabinet
In computing a quorum, members who are
(e) Members of Congress
outside the country, thus outside of each
(f) Members of the Supreme Court
House’s coercive jurisdiction, are not included.
(g) Members of the Constitutional
Commissions and other constitutional
“Majority” refers to the number of members
offices
within the “jurisdiction” of the Congress (those it
(h) Officers of the Armed Forces with general or
can order arrested for the purpose of
flag rank [Art. XI, Sec. 17]
questioning). In this case, one Senator was out
of the Philippines which is not within the
(2) Financial and business interests: Members
“jurisdiction” of the Senate, so that the working
must make full disclosure upon assumption of
majority was 23 Senators.
office [Art. VI, Sec. 12]

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There is a difference between a majority of "all suspension


members of the House" and a majority of "the of writ of
House", the latter requiring less number than Habeas
the first. Therefore, an absolute majority (12) of Corpus
all members of the Senate less one (23) Confirm Majority (Silent) Art.
constitutes constitutional majority of the Senate amnesty VII,
for the purpose of the quorum. [Avelino v. grant Sec.
Cuenco, (1949)] 19,
par. 2
D.2. VOTING MAJORITIES Submit Majority (Silent) Art.
Doctrine of Shifting Majority – For each House of question of XVII,
Congress to pass a bill, only the votes of the calling a Prevailing Sec. 3
majority of those present in the session, there Const. view: by
being a quorum, is required. Convention default,
to the houses
Exceptions to Doctrine of Shifting Majority: electorate vote
(1) Votes where requirement is based on “ALL Call for 2/3 separately Art.
THE MEMBERS OF CONGRESS” – Const. (because XVII,
requirement is based on the entire Convention Congress Sec. 3
composition of a House or Congress (in its Propose 3/4 is Art.
entirety), regardless of the number of amendments bicameral) XVII,
Members present or absent as Const. Sec.
Vote Assembly 1(1)
Required Houses
Action Basis
(out of all voting (2) Other Special Cases, i.e. NOT out of all
members) members
Override 2/3 Separately Art. VI, Action Vote Required Basis
presidential (House Sec. Determine 2/3 of both Houses, Art. VII,
veto where bill 27(1) President’s voting separately Sec. 11,
originated disability par. 4
votes first) Declaring a 2/3 of both Houses (in Art. VI,
Grant of tax Majority (Silent) Art. VI, State of joint session), voting Sec.
exemptions Sec. War separately 23(1)
27(4)
Elect Majority Separately Art. E. DISCIPLINE OF MEMBERS
President in VII, Each house may punish its members for
case of tie Sec. 4, disorderly behavior, and with the concurrence of
par. 5 2/3 of ALL its members, with: [SED-FIC]
Confirm Majority Separately Art. (1) Suspension (shall not exceed 60 days)
appointment VII, (2) Expulsion
of VP Sec. 9
Revoke or Majority Jointly Art. Other disciplinary measures:
extend (a) VII, (1) Deletion of unparliamentary remarks from
Martial Law Sec. 18 the record
or (b) (2) Fine

27
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(3) Imprisonment (2) 6 members of the Senate or House, as the


(4) Censure case may be, chosen on the basis of
proportional representation from parties
The suspension contemplated in the
Constitution is different from the suspension Composition Rules
prescribed in the Anti-Graft and Corrupt (1) The ET shall be constituted within 30 days
Practices Act (RA 3019). The former is punitive after the Senate and the House shall have
in nature while the latter is preventive. been organized with the election of the
[Defensor-Santiago v. Sandiganbayan, G.R. No. President and the Speaker. [Sec. 19]
118364, August 10, 1995]. (2) Members chosen enjoy security of tenure
and cannot be removed by mere change of
F. ELECTORAL TRIBUNAL AND THE party affiliation. (Bondoc v. Pineda, 201
COMMISSION ON APPOINTMENTS SCRA 793).

Valid grounds/just cause for termination of


ELECTORAL TRIBUNALS
membership to the tribunal:
Art., VI, Sec. 17. The Senate and the House of (1) Expiration of Congressional term of office;
Representatives shall each have an Electoral (2) Death or permanent disability;
Tribunal which shall be the sole judge of all (3) Resignation from political party which one
contests relating to the election, returns, and represents in the tribunal;
qualifications of their respective Members. Each (4) Removal from office for other valid reasons.
Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the Note: Disloyalty to party and breach of party
Supreme Court to be designated by the Chief discipline are not valid grounds for the
Justice, and the remaining six shall be Members expulsion of a member of the tribunal. [Bondoc,
of the Senate or the House of Representatives, supra]
as the case may be, who shall be chosen on the
basis of proportional representation from the
F.1. NATURE
political parties and the parties or organizations
Jurisdiction: sole judge of all contests relating to
registered under the party-list system
the election, returns, and qualifications of their
represented therein. The senior Justice in the
respective members.
Electoral Tribunal shall be its Chairman.
When does it acquire jurisdiction:
Two Types
(1) Senate Electoral Tribunal (SET) Traditional formulation: ET has jurisdiction only
(2) House Electoral Tribunal (HRET) (1) when there is an election contest, and (2)
only after the proclamation of a candidate.
N.B. There is a Presidential Electoral Tribunal [Lazatin v. HRET (1988)
(PET), but it is governed by different provisions.
In the absence of election contest, and before
Composition proclamation, jurisdiction remains with
(1) 3 Supreme Court justices, designated by COMELEC. [Id.] But the proclamation of a
Chief Justice congressional candidate following the election
Senior Justice in the Electoral Tribunal divests the COMELEC of jurisdiction over […] the
shall be its Chairman proclaimed representative in favor of the HRET.

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[Tañada v. COMELEC, G.R. No. 207199, Oct. 22, contests involving its members is exclusive and
2013] exhaustive. Its exercise of power is intended to
be its own — full, complete and unimpaired.
But see Ongsiako-Reyes v. COMELEC (G.R. No. [Duenas Jr. v. HRET, G.R. No. 185401, (2009)]
207264, Jun. 25, 2013) where the Court held
that an Electoral Tribunal acquires jurisdiction Independence of the Electoral Tribunals
only after (1) a petition is filed before it, and (2) a Since the ET’s are independent constitutional
candidate is already considered a member of the bodies, independent even of the respective
House. House, neither Congress nor the Courts may
interfere with procedural matters relating to the
To be considered a member, in turn, there must functions of the ET’s. [Macalintal v. Presidential
be a concurrence of the following: (1) a valid Electoral Tribunal, G.R. No. 191618, Nov. 23,
proclamation; (2) a proper oath (a) before the 2010]
Speaker and (b) in open session; and (3) The HRET was created to function as a
assumption of office. [Id.] nonpartisan court although two-thirds of its
members are politicians.
The Court in Ongsiako-Reyes clarified that the
doctrine that “once a proclamation has been To be able to exercise exclusive jurisdiction, the
made, COMELEC’s jurisdiction is already lost House Electoral Tribunal must be independent.
[…] and the HRET’s own jurisdiction begins” Its jurisdiction to hear and decide congressional
only applies in the context of a candidate who election contests is not to be shared by it with
has not only been proclaimed and sworn in, but the Legislature nor with the courts. "The
has also assumed office. [Id.] Electoral Commission is a body separate from
and independent of the legislature and though
Election Contest - one where a defeated not a power in the tripartite scheme of
candidate challenges the qualification and government, it is to all intents and purposes,
claims for himself the seat of a proclaimed when acting within the limits of its authority, an
winner. independent organ; while composed of a
majority of members of the legislature it is a
Supreme Court has jurisdiction over the body separate from and independent of the
Electoral Commission for the purpose of legislature. [Bondoc v. Pineda, (1991)]
determining the character, scope and extent of
the constitutional grant to the Electoral F.2. POWERS
Commission as "the sole judge of all contests As constitutional creations invested with
relating to the election, returns and necessary power, the Electoral Tribunals are, in
qualifications of the members of the National the exercise of their functions independent
Assembly." [Angara v. Electoral Commission organs — independent of Congress and the
(1936)] Supreme Court. The power granted to HRET by
the Constitution is intended to be as complete
N.B.: Constitution mandates that the HRET and unimpaired as if it had remained originally
“shall be the sole judge of all contests relating in the legislature [Co v. HRET (1991) citing
to the election, returns and qualifications” of its Angara vs. Electoral Commission (1936)].
members. By employing the word “sole,” the
Constitution is emphatic that the jurisdiction of
the HRET in the adjudication of election

29
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Judicial Review of Decisions of Electoral least a majority of the membership. [Guingona v.


Tribunals Gonzales, 214 SCRA 789 (1992)].
With the Supreme Court only insofar as the
decision or resolution was rendered: The power to approve or disapprove
(1) Without or in excess of jurisdiction; or appointments is conferred on the CA as a body
(2) With grave abuse of discretion tantamount and not on the individual members. [Pacete v.
to denial of due process. Secretary (1971)]

COMMISSION ON APPOINTMENTS Rule on Proportional Representation – The 12


Art. VI, Sec. 18. There shall be a Commission on Senators and 12 Representatives are elected on
Appointments consisting of the President of the the basis of proportional representation from
Senate, as ex officio Chairman, twelve Senators, the political parties and party-list organizations.
and twelve Members of the House of
Representatives, elected by each House on the HOR has authority to change its representation
basis of proportional representation from the in the Commission on Appointments to reflect
political parties and parties or organizations at any time the changes that may transpire in
registered under the party-list system the political alignments of its membership. It is
represented therein. The chairman of the understood that such changes in membership
Commission shall not vote, except in case of a must be permanent and do not include the
tie. The Commission shall act on all temporary alliances or factional divisions not
appointments submitted to it within thirty involving severance of political loyalties or
session days of the Congress from their formal disaffiliation and permanent shifts of
submission. The Commission shall rule by a allegiance from one political party to another.
majority vote of all the Members. [Daza v. SIngson (1989)]

Composition The provision of Section 18 on proportional


representation is mandatory in character and
(1) Senate President as ex-officio chairman
does not leave any discretion to the majority
(shall not vote except in case of a tie)
(2) 12 Senators party in the Senate to disobey or disregard the
rule on proportional representation.
(3) 12 Members of the HOR

By requiring a proportional representation in


The CA shall be constituted within 30 days after
the Commission on Appointments, sec. 18 in
the Senate and the House of Representative
shall have been organized with the election of effect works as a check on the majority party in
the Senate and helps to maintain the balance of
the President and the Speaker. [Sec. 19]
power. No party can claim more than what it is
entitled to under such rule. [Guingona v.
The CA shall act on all appointments within 30
Gonzales (1993)]
session days from their submission to Congress.

Meetings
The CA shall rule by a majority vote of all its
members. (1) CA shall meet only while Congress is in
session.
It is NOT mandatory to elect 12 Senators to the (2) Meetings are held either (a) at the call of the
Commission before it can discharge its Chairman or (b) by a majority of all its
members.
functions. What the Constitution requires is at

30
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Note: Since the Commission on Appointments is statutes and ordinances as they shall
also an independent constitutional body, its judge for the good and welfare of the
rules of procedure are also outside the scope of constituents.
congressional powers as well as that of the (b) Includes maintenance of peace and
judiciary. order, protection of life, liberty and
property and the promotion of general
Jurisdiction welfare.
(1) CA shall confirm the appointments by the (5) Power of Taxation
President with respect to the following (6) Power of Eminent Domain
positions: (7) Contempt power
(a) Heads of Executive departments (except
if it is the Vice-President who is G.2. LEGISLATIVE [ATE-M-FEAR-A]
appointed to a cabinet position, as this (1) Appropriation
needs no confirmation); (2) Taxation
(b) Ambassadors, other public ministers or (3) Expropriation
consuls; (4) Authority to make, frame, enact, amend,
(c) Officers of the AFP from the rank of and repeal laws [M-FEAR]
Colonel or Naval Captain; (5) Ancillary powers (e.g. conduct inquiry and
(d) Other officers whose appointments are punish for contempt [See Arnault v.
vested in him by the Constitution (e.g. Nazareno, 87 Phil. 29 (1950)]
members of constitutional
commissions); [Sarmiento v. Mison i. Legislative inquiries and the oversight
(1987)] functions
(2) Congress cannot require that the Requisites of Legislative Inquiries:
appointment of a person to an office (1) Must be in aid of legislation
created by law shall be subject to CA (2) In accordance with duly published rules of
confirmation. procedure
(3) Right of persons appearing in or affected by
Appointments extended by the President to the such inquiries shall be respected
above-mentioned positions while Congress is
not in session (ad-interim appointments) shall Comparison between Legislative Inquiries and
only be effective: Question Hour [See also Senate v. Ermita
(1) Until disapproval by the Commission on (2006)]
Appointments; OR
(2) Until the next adjournment of Congress. Legislative Inquiries Question Hour
Constitutional Provision
G. POWERS OF CONGRESS Art. VI, Sec. 21 Art. VI, Sec. 22
Topic
G.1. INHERENT POWERS
In aid of legislation On any matter
These are inherent powers of the State which
pertaining to the
are reposed, under the Constitution, in
subject’s department
Congress.
(4) Police Power
Persons Subjected
(a) Make, ordain, and establish all manner Any person upon Heads of departments
of wholesome and reasonable laws, subpoena only

31
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Appearance of Exec. Officials


Appearance of Appearance of ii. Bicameral conference committee
executive officials executive officials via Ways of passing bills:
generally mandatory request (1) Jointly - in a joint session; required by the
Constitution in special and specific cases
The mere filing of a criminal or an (2) Separately - each house takes up the bill on
administrative complaint before a court or its own
quasi-judicial body should not automatically (a) Simultaneously - houses take up a bill at
bar the conduct of legislative inquiry. (Standard the same time
Chartered Bank v. Senate Committee on Banks, (b) Sequentially - bill originates from one
G.R. No. 167173, December 27, 2007) house and, upon proper passage, is
transmitted to the other house for the
Additional limitation: Executive Privilege latter’s own passage. In case of conflict
between the two houses’ versions, a
Categories of congressional oversight functions bicameral conference committee is
(1) Scrutiny: Passive inquiry, the primary organized.
purpose of which is to determine economy
and efficiency of the operation of Bicameral Conference Committee (BCC):
government activities. In the exercise of (1) Composed of equal number of members
legislative scrutiny, Congress may request from the Senate and the HOR
information and report from the other (2) Makes recommendations to houses on how
branches of government. It can give to reconcile conflicting provisions/versions
recommendations or pass resolutions for (3) BCC members are usually granted blanket
consideration of the agency involved. authority to negotiate/reconcile the bills.
(2) Congressional investigation: More intense (4) At the end of the process, the BCC comes up
digging of facts, compared to scrutiny. with a Conference Committee Report, which
Power of investigation recognized by art. VI, is then submitted to the respective
sec. 21. chambers for approval. Upon approval, the
(3) Legislative supervision (Legislative Veto): bill may be engrossed.
Most encompassing form. Connotes a
continuing and informed awareness on the The Bicam report need not pass through three
part of a congressional committee readings. The Bicam may also include entirely
regarding executive operations in a given new provisions and substitutions. [See
administrative area. Allows Congress to Tolentino v. Sec. of Finance (1994), Phil. Judges
scrutinize the exercise of delegated law- Association v. Prado (1993)]
making authority, and permits Congress to
retain part of that delegated authority. Enrolled bill doctrine –The (a) signing of a bill by
Through this, Congress exercises the Speaker of the House and the President of
supervision over the executive agencies. the Senate, and the (b) certification by the
secretaries of both Houses of Congress that it
N.B. Legislative supervision is NOT allowed was passed, are conclusive of its due enactment.
under the Constitution. (Abakada Guro Partylist
v. Purisima, G.R. No. 166715, August 14, 2008) Note: While Tolentino v. Sec. of Finance does
See also discussion in Checks and Balances, NOT hold that the enrolled bill embodies a
above. conclusive presumption,, “where there is no

32
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evidence to the contrary, the Court will respect (3) On appropriation [Secs. 25 and 29(1) and (2),
the certification of the presiding officers of both Art VI]
Houses that a bill has been duly passed.” (4) On appellate jurisdiction of the SC [Sec. 30,
[Arroyo v. De Venecia, 277 SCRA 278 (1997)] Art. VI]
(5) No law granting title of royalty or nobility
iii. Limitations on legislative power shall be passed [Sec. 31, Art. VI]

Formal/Procedural Limitations Implied Limitations:


Prescribes manner of passing bills and form (1) No power to pass irrepealable law
they should take. (2) Non-encroachment on powers of other
(1) Rider clause: every bill passed by the departments
Congress shall embrace only one subject (3) Non-delegation of powers
which shall be expressed in the title. [Art. VI,
Sec. 26(1)] Limitations on revenue, appropriations, and
The title is not required to be an index of the tariff measures
contents of the bill. It is sufficient
compliance if the title expresses: (1) the Appropriations
general subject and (2) all the provisions of General Limitations:
the statute are germane to that subject. [Tio (1) Appropriations must be for a public purpose.
v. Videogram Regulatory Commission, 151 (2) The appropriation must be by law.
SCRA 208 (1987)] (3) Cannot appropriate public funds or property,
(2) No bill passed by either house shall become directly or indirectly, in favor of
law unless it has passed 3 readings on (a) Any sect, church, denomination, or
separate days. [Art. VI, Sec. 26(2)] sectarian institution or system of
(3) Printed copies in its final form must have religion or
been distributed to its members 3 days (b) Any priest, preacher, minister, or other
before the passage of the bill. (Art. VI, Sec. religious teacher or dignitary as such.
26[2]) Exception: if the priest etc. is assigned to:
(a) The Armed Forces;
Exception: President certifies to the necessity of (b) Any penal institution;
its immediate enactment to meet a public (c) Government orphanage;
calamity or emergency (d) Leprosarium.
(4) Government is not prohibited from
Presidential certification dispenses with the (1) appropriating money for a valid secular
printing requirement and (2) readings on purpose, even if it incidentally benefits a
separate days requirement [Kida v Senate, G.R. religion, e.g. appropriations for a national
No. 196271, Oct. 11, 2011, citing Tolentino v. police force is valid even if the police also
Secretary of Finance] protects the safety of clergymen. Also, the
Substantive Limitations temporary use of public property for
Circumscribe both the exercise of the power religious purposes is valid, as long as the
itself and the allowable subject of legislation property is available for all religions.

Express limitations:
(1) On general powers - Bill of Rights [Art. III]
(2) On taxation [Secs. 28 and 29(3), Art. VII]

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Specific Limitations For Special Appropriations Bills


For General Appropriations Bills [Sec. 25(1)-(5)] (1) Shall specify the purpose for which it is
(1) Congress may not increase the intended
appropriations recommended by the (2) Shall be supported by funds
President for the operation of the (a) actually available as certified by the
Government as specified in the budget. National Treasurer; or
(2) Form, content and manner of preparation of (b) to be raised by corresponding revenue
the budget shall be prescribed by law. proposal therein
(3) No provision or enactment shall be
embraced in the general appropriations bill Limitation on Use of Public Funds [Sec. 29]
unless it relates specifically to some (1) No money shall be paid out of the National
particular appropriation therein. Treasury except in pursuance of an
(4) Procedure in approving appropriations FOR appropriation made by law.
THE CONGRESS shall strictly follow the (2) However, this rule does not prohibit
procedure for approving appropriations for continuing appropriations, e.g. for debt
other departments and agencies. servicing, for the reason that this rule does
(5) No law shall be passed authorizing any not require yearly or annual appropriation.
transfer of appropriations. However, the [See Guingona v. Carague (1991)]
following may, BY LAW, be authorized to
AUGMENT any item in the general Four phases of Government’s budgeting process:
appropriations law for their respective (1) Budget preparation
offices FROM SAVINGS in other items of (2) Legislative authorization
their respective appropriations: (3) Budget execution
(a) President (4) Budget accountability
(b) Senate President
(c) Speaker of the HOR Taxation [Sec. 28]
(d) Chief Justice of the Supreme Court Nature of provision
(e) Chairs of Constitutional Commissions Sec. 28 is a listing of the limits on the inherent
and otherwise unlimited power
Guidelines for disbursement of discretionary
funds appropriated for particular officials: [Sec. Purposes of taxation
25(6)] (1) Pay debts and provide for the common
(1) For public purposes defense and general warfare;
(2) To be supported by appropriate vouchers (2) Raise revenue;
(3) Subject to such guidelines as may be (3) Instrument of national and social policy;
prescribed by law (4) Instrument for extermination of undesirable
acts and enterprises;
If Congress fails to pass the general (5) Tool for regulation;
appropriations bill by the end of any fiscal year: (6) Imposition of tariffs designed to encourage
[Sec. 25(7)] and protect locally produced goods against
(1) The general appropriations bill for the competition for imports.
previous year is deemed reenacted
(2) It shall remain in force and effect until the
general appropriations bill is passed by
Congress.

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Limitations (2) All revenues and assets of non-stock, non-


(1) Public purpose – Power to tax should be profit educational institutions are exempt
exercised only for a public purpose. from taxes and duties PROVIDED that such
(2) Uniform and equitable revenues and assets are actually, directly
(a) Operates with the same force and effect and exclusively used for educational
in every place where the subject of it is purposes [Art. XIV, Sec. 4(3)]
found (3) Grants, endowments, donations or
(b) Classification for the purpose of contributions used actually, directly and
taxation is not prohibited per se, BUT it exclusively for educational purposes shall be
must comply with the Test of Valid exempt from tax, subject to conditions
Classification [See Ormoc Sugar Central v. prescribed by law [Art. XIV, sec. 4(4)]
Ormoc City [1968], on equal protection
and local taxes] Special Funds
(1) Money collected on a tax levied for a special
Test of Valid Classification purpose shall be treated as a special fund
(1) Based on substantial distinctions which and paid out for such purpose only.
make real differences (2) Once the special purpose is fulfilled or
(2) Germane to the purpose of law abandoned, any balance shall be
(3) Applies to present and future conditions transferred to the general funds of the
substantially identical to those of the Government
present
(4) Applies equally to those who belong to the Presidential veto and congressional override
same class Submission to the President; President’s Veto
power [Sec 27, Art VI]
Progressive Every bill, in order to become a law, must be
The rate increases as the tax base increases presented to and signed by the President.

Tax burden is based on the taxpayers’ capacity If the President does not approve of the bill, he
to pay shall veto the same and return it with his
objections to the house from which it originated.
Suited to the social conditions of the people The House shall enter the objections in the
journal and proceed to reconsider it.
Reflects aim of the Convention that legislature
following social justice command should use The President must communicate his decision
taxation as an instrument for more equitable to veto within 30 days from the date of receipt
distribution of wealth thereof. Otherwise, the bill shall become a law as
if he signed it. (“Lapsed into law”)
Progressive taxation is a directive to Congress
and is not a judicially enforceable right [Tolentino To override the veto, at least 2/3 of ALL the
v. Secretary of Finance, supra] members of each house must agree to pass the
bill. In such case, the veto is overridden and
Constitutional Tax Exemptions: becomes a law without need of presidential
(1) Religious, charitable, educational approval.
institutions and their properties

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A provision that is constitutionally inappropriate


General Rule: Partial veto is invalid; all-or- for an appropriation bill may be singled out for
nothing veto (i.e. treated as an item) even if it is not an
appropriation or revenue item. [Gonzales v.
Exceptions: Macaraig (1990)]
(1) Veto of particular items of an appropriation,
tariff, or revenue bill G.3. NON-LEGISLATIVE
(2) Doctrine of Inappropriate Provisions (1) Power to canvass the presidential elections;
(2) Declare the existence of war;
Item veto (3) Give concurrence to treaties and amnesties;
The President may veto particular items in an (4) Propose constitutional amendments;
appropriation, revenue or tariff bill. The whole (5) Impeachment
item (and not just a portion) must be vetoed.
[Bengzon v. Drilon (1992)] i. Informing function
Via legislative inquiries: Conduct of legislative
Item – in a bill, refers to the particulars, the inquiries is intended to benefit not only
details, the distinct and severable parts; an Congress but the citizenry, who are equally
indivisible sum of money dedicated to a stated concerned with the proceedings. [Sabio v.
purpose; in itself, a specific appropriation of Gordon (2006)]
money, not some general provision of law, ii. Power of impeachment
which happens to be in an appropriation bill. The HOR shall have the exclusive power to
initiate all cases of impeachment. [Sec. 3(1)]
The president cannot veto unavoidable
obligations, i.e. already vested by another law Initiation
(e.g. payment of pensions, see Bengzon, supra). REGULAR PROCEDURE: [SEC. 3(2)(3)]
This veto will not affect items to which he does
FILING by (a) any member of the HOR or (b)
not object.
any citizen upon endorsement by a member
of the HOR; followed by REFERRAL to the
Veto of a Rider proper HOR committee
A rider is a provision which does not relate to a
particular appropriation stated in the bill.

Since it is an invalid provision under Art. VI, Sec. COMMITTEE REPORT by proper committee
(i.e. HOR Committee on Justice), which either
25(2), the President may veto it as an item.
favorably or unfavorably resolves the
complaint
The executive's veto power does not carry with it
the power to strike out conditions or restrictions.
If the veto is unconstitutional, it follows that the
same produced no effect whatsoever, and the Above resolution AFFIRMED (if favorable) or
restriction imposed by the appropriation bill, OVERRIDDEN (if unfavorable) by vote of 1/3
of all the members of the HOR
therefore, remains. (Bolinao Electronics Corp v.
Valencia [1964])
Doctrine of Inappropriate Provisions

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Verified complaint or resolution [Sec. 3(4)] BUT the question of WON Senate Impeachment
FILED by 1/3 of all the members of the HOR; Rules were followed is a political question.
trial by Senate forthwith proceeds [Corona v. Senate, G.R. No. 200242, Jul. 17, 2012]

Notes on Initiation:
[Gutierrez v. HOR Committee on Justice, G.R. No. iii. Other non-legislative powers
193459, Feb. 15, 2011 and Mar. 8, 2011I] (1) Power to canvass the presidential elections;
(2) Declare the existence of war;
Basic limitation: No impeachment proceeding (3) Give concurrence to treaties and amnesties;
shall be initiated against the same official more (4) Propose constitutional amendments;
than once within a period of one year [Art. XI, (5) Implied powers such as the power to punish
Sec. 2(5)] contempt in legislative investigations.

Initiation means filing coupled with referral to G.4. SPECIFIC POWERS


the Committee on Justice. (1) Constituent power
(2) Legislative Inquiries
Court cannot make a determination of what (3) Appropriation
constitutes an impeachable offense; it is a purely (4) Taxation
political question [citing Francisco v. House of (5) Concurrence in treaties and international
Representatives (2003)] agreements
(6) War powers and delegation powers
On motion to inhibit: Impeachment is a political
exercise. The Court cannot apply (to
Congressmen) the stringent standards it asks of IV. Executive Department
justices and judges when it comes to inhibition
from hearing cases. The President
Qualifications:
Constitutional requirement that HOR shall (1) Natural-born citizen of the Philippines;
promulgate its rules on impeachment [Art. XI, (2) A registered voter;
Sec. 3(8)] is different from the publication (3) Able to read and write;
requirement in Tañada v. Tuvera. (In the (4) At least 40 years of age on the day of the
Gutierrez case, promulgation was found to be election; and
sufficient.) (5) A resident of the Philippines for at least 10
years immediately preceding such election.
Trial [Art. VII, Sec. 2]
The SENATE shall have the sole power to try
and decide all cases of impeachment. [Sec. 3(6)] Election:
(1) Regular Election – Second Monday of May
By virtue of the expanded judicial review (art. (2) National Board of Canvassers (President and
VIII, sec. 1[2]), the Court’s power of judicial Vice-President) – Congress
review extends over justiciable issues arising in (a) Returns shall be transmitted to
impeachment proceedings. [Francisco v. HOR Congress, directed to the Senate
(2003)] President
(b) Joint public session – not later than 30
days after election date; returns to be

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opened in the presence of the Senate A. PRIVILEGES, INHIBITIONS,


and HOR in joint session DISQUALIFICATIONS
Jurisprudence on Canvassing:
A.1. PRIVILEGES
Congress may validly delegate the initial
determination of the authenticity and due
President
execution of the certificates of canvass to a Joint
Congressional Committee, composed of
Official residence
members of both houses. [Lopez v. Senate, G.R.
The president shall have an official residence.
No. 163556, June 8, 2004]
[Sec. 6]
Even after Congress has adjourned its regular
Salary
session, it may continue to perform this
Determined by law. Shall not be decreased
constitutional duty of canvassing the
during tenure. No increase shall take effect until
presidential and vice-presidential election
after the expiration of the term of the
results without need of any call for a special
incumbent during which such increase was
session by the President. […] Only when the
approved. [Sec. 6]
board of canvassers has completed its functions
is it rendered functus officio. [Pimentel, Jr. v.
Joint Committee of Congress, G.R. No. 163783,
Presidential Immunity
June 22, 2004].
The President as such cannot be sued, enjoying
If the COMELEC is proscribed from conducting
as he does immunity from suit
an official canvass of the votes cast for the
President and Vice-President, it is, with more
But the validity of his acts can be tested by an
reason, prohibited from making an “unofficial”
action against other executive officials. [Carillo vs.
canvass of said votes. [Brillantes v. COMELEC,
Marcos (1981)]
G.R. No. 163193, June 15, 2004]
The privilege may be invoked ONLY by the
The Supreme Court as Presidential Electoral
President. — Immunity from suit pertains to the
Tribunal: The Supreme Court, sitting en banc,
President by virtue of the office and may be
shall be the sole judge of all contests relating to
invoked only by the holder of the office; not by
the election, returns and qualifications of the
any other person in the President's behalf. The
President or Vice-President, and may
President may waive the protection afforded by
promulgate its rules for the purpose.
the privilege and submit to the court's
jurisdiction. [Soliven v. Makasiar (1988); Beltran
Term of Office: 6 years, which shall begin at
v. Makasiar (1988)].
noon on the 30th day of June next following the
day of the election and shall end at noon of the
BUT presidential decisions may be questioned
same day 6 years thereafter. [Art. VII, Sec. 4]
before the courts where there is grave abuse of
discretion or that the President acted without or
PRESIDENT is not eligible for re-election.
in excess of jurisdiction. [Gloria v. Court of
Note: No person who has succeeded as
Appeals, G.R. No. 119903, Aug. 15, 2000]
President and has served for more than 4 years
shall be qualified for election to the same office
for any length of time. [Art. VII, Sec. 4]

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Immunity co-extensive with tenure and covers given freedom to explore alternatives in
only official duties. After tenure, the Chief policy-making.
Executive cannot invoke immunity from suit for (2) Deliberative Process Privilege (Executive
civil damages arising out of acts done by him Officials): refer to materials that comprise
while he was President which were not part of a process by which governmental
performed in the exercise of official duties. decisions and policies are formulated. This
[Estrada v. Desierto, G.R. Nos. 146710-15, March includes diplomatic processes. [See
2, 2001] Akbayan v. Aquino (2008)]

Cannot be invoked by a non-sitting president. Varieties of Executive Privilege (US):


This presidential privilege of immunity cannot (1) State secrets privilege - invoked by U.S.
be invoked by a non-sitting president even for Presidents, beginning with Washington, on
acts committed during his or her tenure. Courts the ground that the information is of such
look with disfavor upon the presidential nature that its disclosure would subvert
privilege of immunity, especially when it crucial military or diplomatic objectives.
impedes the search for truth or impairs the (2) Informer’s privilege - the privilege of the
vindication of a right. [Saez v. Macapagal-Arroyo, Government not to disclose the identity of
681 SCRA 678 (2012), on an Amparo petition.] persons who furnish information of violations
of law to officers charged with the
Exception: The president may be sued if the act enforcement of that law.
is one not arising from official conduct. [See (3) Generic privilege for internal deliberations -
Estrada v. Desierto, 353 SCRA 452, 523 (2001)] has been said to attach to
intragovernmental documents reflecting
Presidential Privilege advisory opinions, recommendations and
The power of the government to withhold deliberations comprising part of a process by
information from the public, the courts, and the which governmental decisions and policies
Congress. [Schwart] are formulated. [Senate v. Ermita, G.R. No.
163783, Jun. 22, 2004]
It is "the right of the President and high-level
executive branch officers to withhold Scope: This jurisdiction recognizes the common
information from Congress, the courts, and law holding that there is a "governmental
ultimately the public." [Rozell] privilege against public disclosure with respect
to state secrets regarding military, diplomatic
N.B. Case law uses the term presidential and other national security matters." Closed-
privilege to refer to either (1) immunity from suit door Cabinet meetings are also a recognized
(i.e. immunity from judicial processes, see Neri v. limitation on the right to information.
Senate, infra; accord. Saez v. Macapagal-Arroyo,
supra); or (2) executive privilege (see Akbayan v. Note: Executive privilege is properly invoked in
Aquino (2008), as discussed below. relation to specific categories of information and
not to categories of persons—it attaches to the
2 Kinds of Executive Privilege in Neri v. Senate information and not the person. Only the [1]
(2008) President (and the [2] Executive Secretary, by
(1) Presidential Communications Privilege order of the President) can invoke the privilege.
(President): communications are (Senate v. Ermita, supra).
presumptively privileged; president must be

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Synthesis of Jurisprudential doctrines positions in the Executive’s organizational


The following are the requisites for invoking structure);
presidential privilege: (3) No adequate need: The privilege may be
(1) Formal claim of privilege: For the privilege overcome by a showing of adequate need,
to apply there must be a formal claim of the such that the information sought “likely
privilege. Only the President or the Executive contains important evidence,” and by the
Secretary (by authority of the President) can unavailability of the information elsewhere by
invoke the privilege; and an appropriate investigating authority. [Neri
(2) Specificity requirement: A formal and proper v. Senate, supra. See Akbayan v. Aquino
claim of executive privilege requires a (2008) for application of this principle.]
specific designation and description of the
documents within its scope as well as Vice-President
precise and certain reasons for preserving Qualifications, election and term of office and
confidentiality. Without this specificity, it is removal are same as the President, except that
impossible for a court to analyze the claim no Vice-President shall serve for more than 2
short of disclosure of the very thing sought successive terms.
to be protected. [Senate v. Ermita, supra]
The Vice-President may be appointed as
Once properly invoked, a presumption arises member of the Cabinet; such requires no
that it is privileged. If what is involved is the confirmation by the Commission of
presumptive privilege of presidential Appointments.
communications when invoked by the President
on a matter clearly within the domain of the Prohibitions
Executive, the said presumption dictates that Following prohibitions apply to:
the same be recognized and be given (1) President
preference or priority, in the absence of proof of (2) Vice-President,
a compelling or critical need for disclosure by (3) The members of the Cabinet, and their
the one assailing such presumption. [Neri v. deputies or assistants
Senate, G.R. No. 180843, Mar. 25, 2008]
Prohibited Acts
Requisites for validity of claim of privilege: (1) Shall not receive any other emoluments
(1) Quintessential and non-delegable from the government or any other source.
presidential power: Power subject of the [For President and Vice-President, Sec. 6]
legislative inquiry must be expressly (2) Unless otherwise provided in the
granted by the Constitution to the President, constitution, shall not hold any other office
e.g commander-in-chief, appointing, or employment. [Sec. 13]
pardoning, and diplomatic powers; (a) The prohibition does not include posts
(2) Operational Proximity Test: It must be occupied by executive officials without
authored, solicited, and received by a close additional compensation in an ex-officio
advisor of the President or the President capacity, as provided by law or as
himself. The judicial test is that an advisor required by the primary functions of the
must be in “operational proximity” with the said official’s office.
President (i.e. officials who stand proximate (b) The ex-officio position being actually (i.e.
to the President, not only by reason of their merely additional duty) and in legal
function, but also by reason of their contemplation part of the principal

40
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office, it follows that the official (2) The President can assume ex officio
concerned has no right to receive positions. (e.g. The President is the Chairman of
additional compensation for his services NEDA. [Art. XII, Sec. 9])
in said position. (National Amnesty
Commission v. COA, G.R. No. 156982, Vice-President
September 8, 2004) “xxx The Vice-President may be appointed as
(3) Shall not directly or indirectly (a) practice member of the Cabinet. Such appointment
any other profession; (b) participate in any requires no confirmation” [Art. VII, Sec. 3]
business; or (c) be financially interested in
any contract with, or in any franchise or
Cabinet
special privilege granted by the government
Art. VII, Sec. 13. The President, Vice-President,
or any subdivision, agency, or
the Members of the Cabinet, and their deputies
instrumentality thereof, including
or assistants shall not, unless otherwise
government-owned or controlled
provided in this Constitution, hold any other
corporations or their subsidiaries. [Sec. 13]
office or employment during their tenure. […]
(4) Strictly avoid conflict of interest in the
conduct of their office [Sec. 13]
Art. IX-B, Sec. 7. No elective official shall be
(5) May not appoint (a) spouse or (b) relatives
eligible for appointment or designation in any
by consanguinity or affinity within the fourth
capacity to any public office or position during
civil degree as members of Constitutional
his tenure.
Commissions, or the Office of the
Ombudsman, or as Secretaries,
Unless otherwise allowed by law or by the
Undersecretaries, chairmen or heads of
primary functions of his position, no appointive
bureaus or offices, including government-
official shall hold any other office or
owned or controlled corporation and their
employment in the Government or any
subsidiaries.
subdivision, agency or instrumentality thereof,
including Government-owned or controlled
The stricter prohibition applied to the President
corporations or their subsidiaries.
and his official family under Art. VII, Sec. 13, as
compared to the prohibition applicable to
"[U]nless otherwise provided by the
appointive officials in general under Art. IX-B,
Constitution." [Art. VII, Sec. 13] Only cases
Sec. 7, par. 2, which is proof of the intent of the
contemplated are:
1987 Constitution to treat them as a class by
(1) The Vice-President being appointed as
itself and to impose upon said class stricter
member of the cabinet.
prohibitions. [Civil Liberties Union v. Executive
(2) The Vice-President acting as president
Secretary (1991)]
when one has not yet been chosen or
qualified. [Art. VII, Sec. 7(2),(3)]
Exceptions to rule prohibiting executive officials
(3) The Secretary of Justice sitting as ex-officio
from holding additional positions:
member of the Judicial and Bar Council. [Art.
President
VIII, Sec. 8(1)]; [Civil Liberties Union, supra]
(1) The President can assume a Cabinet post
(because the departments are mere extensions
Thus, the Constitution allows a Cabinet
of his personality, according to the Doctrine of
member to hold another office provided:
Qualified Political Agency, so no objection can be
(a) It is in an ex-officio capacity and without
validly raised based on Art. VII, Sec. 13.)
additional compensation;

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(b) Such is necessitated by the primary operation. [National Electrification Commission


functions of his position (e.g. Secretary of vs. CA (1997)]
Trade and Industry as Chairman of NDC;
Secretary of Agrarian Reform as Chairman Presidential Powers (Summary)
of the Land Bank); AND (1) Executive Power - Power to enforce and
(c) Such is allowed by law. [Civil Liberties Union, administer laws;
supra] (2) Power of Control – (a) Nullify, modify
judgments of subordinates [See Art. VII,
N.B. Art. IX-B, Sec. 7 is the general rule for Sec. 17]; (b) undo or redo actions of
appointed officials. It is not an exception to Art. subordinates; and (c) lay down rules for the
VII, Sec. 13, which is a specific rule for members performance of subordinates’ duties;
of the Cabinet, their deputies and assistants (3) Power of Supervision - Oversight function;
inter alia. [See Civil Liberties Union, supra] see to it that rules, which they did not
make, are followed;
B. POWERS (4) Power of Appointment - Legislative can
create office, but only executive can fill it;
Congress cannot circumvent this by setting
B.1. EXECUTIVE AND ADMINISTRATIVE
very narrow qualifications, such that only
POWERS IN GENERAL
one person is qualified to hold office (See
Flores v. Drilon, G.R. No. 104732, Jun. 22,
Executive power
1993)
The power to enforce, implement, and
(5) Power over Legislation
administer laws. The president shall ensure that
(a) Veto Power
the laws be faithfully executed. [Art. VII, Sec. 17]
(b) Power to Declare Emergency -
Declaration only; exercise of power is
The President’s power to conduct investigations
vested in Congress, but may be
to aid him in ensuring the faithful execution of
delegated to the President.
laws – in this case, fundamental laws on public
(c) Integrative Power - Powers shared with
accountability and transparency – is inherent in
legislative (e.g. appointments requiring
the President’s powers as the Chief Executive
confirmation, rule-making); legislation
[…] [T]he purpose of allowing ad hoc
during times of emergency
investigating bodies to exist is to allow an
(6) Commander-in-Chief Powers [Art. VII, Sec.
inquiry into matters which the President is
18]
entitled to know so that he can be properly
(a) Call Out Power - Armed forces to
advised and guided in the performance of his
suppress lawless violence;
duties relative to the execution and
(b) Suspension of Writ of Habeas Corpus-
enforcement of the laws of the land. [Biraogo v.
Only (a) in times of rebellion or
Philippine Truth Commission (2010)]
invasion AND (b) when required by
public safety
One Executive: This power is exercised by the
(c) Martial Law – N.B. Does not suspend
President. [Art. VII, Sec. 1]
Constitution
(7) Diplomatic Powers - Including Power to
As administrative head of the government, the
Enter into Treaties
President is vested with the power to execute,
(8) Residual Power - To protect the general
administer and carry out laws into practical
welfare of people; founded on duty of

42
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President as steward of the people; Definition: The selection, by the authority vested
includes powers unrelated to execution of with the power, of an individual who is to
any provision of law [See Marcos v. exercise the functions of a given office.
Manglapus]
(9) Other Powers Appointment is distinguished from:
(a) Power to Pardon - Reprieve, commute, (1) Designation – Imposition of additional
pardon, remit fines and forfeitures duties, usually by law, on a person already
after final judgment [Art. VII, Sec. 19(1)] in the public service.
(b) Power to Grant Amnesty - With (2) Commission – Written evidence of the
concurrence of majority of all members appointment.
of Congress Classification of Power of Appointment:
(c) Borrowing Power - Contract or There are four groups of officers whom the
guarantee foreign loans with President may appoint:
concurrence of Monetary Board [Art. (1) Heads of the Executive Department,
VII, Sec. 20] ambassadors, other public ministers and
(d) Budgetary Power - Submit to congress consuls, officers of the armed forces from
budget of bills and expenditures [Art. the rank of colonel or naval captain and
VII, Sec. 22] other officers whose appointments are
(e) Informing Power – Address Congress vested in him;
during opening of session, or at any (2) All other officers of the government whose
other time [Art. VII, Sec. 23] appointments are not otherwise provided by
law;
B.2. POWER OF APPOINTMENT (3) Those whom the President may be
authorized by law to appoint;
In General (4) Officers lower in rank whose appointments
Sec. 16. The President shall nominate and, with Congress may by law vest in the President
the consent of the Commission on alone.
Appointments, appoint the heads of the
executive departments, ambassadors, other Note: Heads of bureaus were deliberately
public ministers and consuls, or officers of the removed from the provision of appointments
armed forces from the rank of colonel or naval requiring confirmation and were included in the
captain, and other officers whose appointments 4th group; hence, their appointments no longer
are vested in him in this Constitution. He shall need confirmation. [Sarmiento v. Mison (1987)]
also appoint all other officers of the
Government whose appointments are not Steps in the appointing process:
otherwise provided for by law, and those whom Nomination by the President
he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of
other officers lower in rank in the President Confirmation by the Commission on
alone, in the courts, or in the heads of Appointments
departments, agencies, commissions, or
boards. […] Issuance of the Commission

Acceptance by the appointee

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For lower courts, appointment shall be


Notes: issued within 90 days from submission of
In the case of ad interim appointments, steps 1, the list
3 and 4 precede step 2. (2) Ombudsman and his 5 deputies (for Luzon,
Visayas, Mindanao, general and military)
An appointment is deemed complete only upon [Art. XI, Sec. 9]
acceptance. [Lacson v. Romero, 84 Phil. 740 All vacancies shall be filled within 3 months
(1949)] after they occur.

Appointment is essentially a discretionary power, Appointments solely by the President [Art. VII,
the only condition being that the appointee, if sec. 16]
issued a permanent appointment, should (1) Those vested by the Constitution on the
possess the minimum qualification requirements, President alone (e.g. appointment of Vice-
including the Civil Service eligibility prescribed President to the Cabinet) [Art. VII, Sec. 3(2)]
by law for the position. This discretion also (2) Those whose appointments are not
includes the determination of the nature or otherwise provided by law.
character of the appointment. (3) Those whom he may be authorized by law
to appoint.
When confirmation is not required: (4) Those other officers lower in rank whose
(1) When the President appoints other appointment is vested by law in the
government officers whose appointments President.
are not otherwise provided for by law;
(2) Those officers whom he may be authorized Sarmiento v. Mison (1987):
by law to appoint (e.g. Chairman and Const. Text: "The Congress may, by law, vest in
Members of the Commission on Human the appointment of other officers lower in rank
Rights); in the President alone". This meant that until a
(3) When Congress creates inferior offices but law is passed giving such appointing power to
omits to provide for appointment thereto, or the President alone, then such appointment has
provides in an unconstitutional manner for to be confirmed.
such appointments (See Sarmiento v. Mison, Held: The inclusion of the word "alone" was an
supra) oversight. Thus, the Constitution should read
(4) Appointment of the Vice-President as "The Congress may, by law, vest the
member of the Cabinet (Art. VII, Sec. 3) appointment of other officers lower in rank in
(5) Appointments upon recommendation of the the President."
Judicial and Bar Council – see below
(6) Appointments solely by the President– see Limitations on appointing power of the President
below (1) Art. VII, Sec. 13, par. 2 - The spouse and
relatives by consanguinity or affinity within
Appointments Upon Recommendation of the the 4th civil degree of the President shall
Judicial and Bar Council not, during his "tenure", be appointed as:
Do not require confirmation by the Commission (a) Members of the Constitutional
on Appointments. Commissions;
(1) Members of the Supreme Court and all other (b) Member of the Office of Ombudsman;
courts [Art. VII, Sec. 9] (c) Secretaries;
(d) Undersecretaries;

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(e) Chairmen or heads of bureaus or offices, (1) The officer regularly appointed to the office
including government-owned or is unable to perform his duties by reason of
controlled corporations and their illness, absence or any other cause; or
subsidiaries. (2) There exists a vacancy;
(2) Recess (Ad Interim) appointments: The In no case shall a temporary designation exceed
President shall have the power to make one (1) year. [Admin Code of 1987, Bk., III Sec. 17]
appointments during the recess of the
Congress, whether voluntary or compulsory,
but such appointments shall be effective Limitations on the appointing power of the
only until disapproval by the Commission on ACTING PRESIDENT
Appointments or until the next adjournment (1) Appointments extended by an Acting
of the Congress. (art. VII, sec. 16[2]) President shall remain effective unless
revoked by the elected President within
Interim or Recess Appointments ninety days from his assumption or re-
assumption of office. [Art. VII, Sec. 14]
Regular and recess (ad interim) appointments (2) Midnight appointments ban: See below
2 Kinds of Appointments Requiring
Confirmation: Commission on Appointments Confirmation
(1) Regular: if the CA (Congress) is in session; From the rulings in Sarmiento III v. Mison (1987),
and Bautista v. Salonga (1989), and Deles v.
(2) Ad Interim: during the recess of Congress Constitutional Commission (1989), these
(because the CA shall meet only while doctrines are deducible:
Congress is in session [Art. VI, Sec. 19])
Confirmation by the Commission on
Regular appointment Appointments is required only for presidential
(1) Made by the President while Congress is in appointees as mentioned in the first sentence of
session Art. VII, Sec. 16, including those officers whose
(2) Takes effect only after confirmation by the appointments are expressly vested by the
Commission on Appointments (CA) Constitution itself in the President:
(3) Once approved, continues until the end of (1) Heads of the executive departments
the term Note: The mere filing of a motion (2) Ambassadors, other public ministers and
for reconsideration of the confirmation of an consuls
appointment cannot have the effect of (3) Officers of the Armed Forces of the
recalling or setting aside said appointment. Philippines with the rank of colonel or naval
The Constitution is clear – there must either captain (Rationale: These are officers of a
be a rejection by the Commission on sizeable command enough to stage a coup)
Appointments or non-action on its part for (4) Other officers whose appointments are
the confirmation to be recalled. vested in the President by the Constitution:
(a) Chairman and Commissioners of the
Temporary Designations Constitutional Commissions (Art. IX)
The President may designate an officer already (b) Regular members of the Judicial and Bar
in the gov’t service or any other competent Council (Art. VII, Sec. 8[2])
person to perform the functions of any office in (c) Sectoral Congressional reps. (Art. XVIII,
the executive branch, appointment to which is Sec 7) (N.B. Provision no longer in force)
vested in him by law, when:

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Midnight Appointments Ban Applies only to President - Ban does not extend
General Rule: Two months immediately before to appointments made by local elective officials.
the next presidential elections (2nd Monday of There is no law that prohibits local elective
March), and up to the end of his "term" (June officials from making appointments during the
30), a President (or Acting President) shall not last days of his or her tenure. [De Rama v. CA
make appointments. (Art. VII, Sec. 15) (2001)]

Exception: Temporary appointments to executive Power of Removal


positions, when continued vacancies will: (a) General Rule: The power of removal may be
prejudice public service; or (b) endanger public implied from the power of appointment.
safety.
Exception: However, the President cannot
Limited to Executive Department - The remove officials appointed by him where the
prohibition against midnight appointment Constitution prescribes certain methods for
applies only to positions in the executive separation of such officers from public service,
department.(De Castro v. JBC, G. R. No. 191002, e.g. Chairmen and Commissioners of
Mar. 17, 2010) Constitutional Commissions who can be
N.B. In re: Valenzuela [A.M. No. 98-5-01-SC, removed only by impeachment, or judges who
November 9, 1998], which extended the are subject to the disciplinary authority of the
prohibition for midnight appointments to the Supreme Court.
judiciary, effectively overruled.
Career Civil Service: Members of the career civil
Limited to Caretaker Capacity - While "midnight service of the Civil Service who are appointed by
appointments" (i.e. made by outgoing President the President may be directly disciplined by him
near the end of his term) are not illegal, they (Villaluz v. Zaldivar, 15 SCRA 710)
should be made in the capacity of a "caretaker"
[a new president being elected], doubly careful Serve at the pleasure of the president: Cabinet
and prudent in making the selection, so as not members and such officers whose continuity in
to defeat the policies of the incoming office depends upon the pleasure of the president
administration. Hence, the issuance of 350 may be replaced at any time, but legally
appointments in one night and the planned speaking, their separation is effected not by
induction of almost all of them a few hours removal but by expiration of their term of the
before the inauguration of the new President appointee.
may be regarded as abuse of presidential
prerogatives. [Aytona v. Castillo (1962)] (N.B. Ad-interim appointment
The 1935 Const. did not contain an explicit (1) Made by the President while Congress is not
prohibition on midnight appointments) in session
(2) Takes effect immediately, BUT ceases to be
BUT the Aytona ruling does not declare all valid (1) if disapproved by the CA or (2) upon
midnight appointments as invalid, and that the the next adjournment of Congress. [Art. VII,
ad interim appointment of the petitioner chief of Sec. 16, par. 2]
police here, whose qualification and regularity (3) Ad interim appointments are permanent
were otherwise not disputed, is thus valid. appointments. Ad Interim appointments to
[Quimsing v. Tajanglangit (1964)] the Constitutional Commissions (e.g.
COMELEC) are permanent as these take

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effect immediately and can no longer be B.3. POWER OF CONTROL AND


withdrawn by the President once the SUPERVISION
appointee has qualified into office. The fact Supervision and Control, Distinguished
that it is subject to the confirmation of the Supervision Control
CA does not alter its permanent character. Overseeing or the Power of an officer to
[Matibag v. Benipayo (2002)] power or authority of alter, modify, nullify or
the officer to see that set aside what a
Acting/Temporary appointment subordinate officers subordinate officer
Can be withdrawn or revoked at the pleasure of perform their duties, had done and to
the appointing power. The appointee does not and if the latter fail or substitute the
enjoy security of tenure. neglect to fulfill them, judgment of the
then the former may former for that of the
Limitation: President constitutionally prohibited take such action or latter.
from making such appointments to the steps as prescribed by
Constitutional Commissions (in order to law to make them
preserve the latter’s independence). perform these duties.

No need for CA confirmation even if Congress is This does not include


in session. Also, Congress cannot impose on the the power to overrule
president the obligation to appoint an their acts, if these acts
incumbent Undersecretary as [the President’s] are within their
temporary alter ego, i.e. Acting Secretary. discretion.
[Pimentel v. Ermita, G.R. No. 164978, Oct. 13,
2005] (Asked in the 2013 Bar Exams) Control of Executive Departments
[Art. VII, Sec. 17]
Ad Interim and Acting Appointments,
Distinguished Control
Ad Interim (Recess) Acting Control is essentially the power to [a] alter or
Effective upon acceptance modify or nullify or set aside what a subordinate
Extended only when May be extended even officer had done in the performance of his duties
Congress is in recess if Congress is in and to [b] substitute the judgment of the former
session with that of the latter. [Biraogo v Philippine
Submitted to the CA Not submitted to the Truth Commission (2010)]
for confirmation CA for confirmation
Permanent Way of temporary The President may, by executive or
appointments filling up vacancies administrative order, direct the reorganization of
government entities under the Executive
Department. This is also sanctioned under the
Constitution, as well as other statutes [e.g.
Admin. Code]. This recognizes the recurring
need of every President to reorganize his or her
office “to achieve simplicity, economy and
efficiency,” in the manner the Chief Executive
deems fit to carry out presidential directives and
policies. [Tondo Medical Employees v CA [2007]]

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Doctrine of Qualified Political Agency determination is primary, but subject to the


(Alter Ego Principle) President’s continuing authority to reorganize the
All the different executive and administrative administrative structure. [Anak Mindanao v.
organizations are mere adjuncts of the Executive Executive Secretary (2007)]
Department. This is an adjunct of the Doctrine
of One Executive. General Supervision over Local Government
Units and the Autonomous Regions
The heads of the various executive departments The President shall exercise general supervision
are assistants and agents of the Chief Executive. over local governments. [Art. X, Sec. 4]
[Villena v. Sec. of Interior (1939)]
The President shall exercise general supervision
In the regular course of business, acts of exec. over autonomous regions to ensure that laws
departments, unless disapproved or reprobated are faithfully executed. [Art. X, Sec. 16]
by the Chief Executive, are presumptively acts of
the Chief Executive. [Free Telephone Workers The President may suspend or remove local
Union vs. Minister of Labor and Employment officials by virtue of the power delegated to him
(1981)] by Congress through the Local Government
Code. The Constitution also places local
General Rule: The multifarious executive and governments under the general supervision of
administrative functions of the Chief Executive the president [supra], and also allows Congress
are performed by and through the executive to include in the local government code
departments. provisions for removal of local officials (see Art.
X, Sec. 3). [See Ganzon v. CA (1991)]
Exceptions:
(1) Cases where the Chief Executive is required B.4. MILITARY POWERS
by the Constitution or by the law to act in Commander-in-chief powers [Art. VII, Sec. 18]
person; or (1) He may call out such armed forces to
(2) The exigencies of the situation demand that prevent or suppress lawless violence,
he act personally. invasion or rebellion.
(2) He may suspend the privilege of the writ of
Power to Abolish Offices habeas corpus, or
Generally, power to abolish a public office is (3) He may proclaim martial law over the entire
legislative. BUT, as far as bureaus, offices, or Philippines or any part thereof.
agencies of the executive dep’t are concerned,
power of control may justify him to inactivate The President shall be the Commander-in-chief
functions of a particular office. (See Buklod ng of all armed forces of the Philippines
Kawaning EIIB v. Zamora, 360 SCRA 718 [2001], The ability of the President to require a military
where the President effectively abolished the official to secure prior consent before appearing
Economic Intelligence Bureau by “deactivating” it, before Congress pertains to a wholly different
transferring its functions to other agencies.) and independent specie of presidential
authority—the commander-in-chief powers of
In establishing an executive department, the President. By tradition and jurisprudence,
bureau or office, the legislature necessarily the commander-in-chief powers of the
ordains an executive agency’s position in the President are not encumbered by the same
scheme of administrative structure. Such

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degree of restriction as that which may attach way of proof, supported their assertion that the
to executive privilege or executive control. President acted without factual basis. The
President, in declaring a state of rebellion and in
Outside explicit constitutional limitations, the calling out the armed forces, was merely
commander-in-chief clause vests in the exercising a wedding of her Chief Executive and
President, as commander-in-chief, absolute Commander-in-Chief powers. These are purely
authority over the persons and actions of the executive powers, vested on the President by
members of the armed forces. Such authority Sections 1 and 18, Article VII, as opposed to the
includes the ability of the President to restrict delegated legislative powers contemplated by
the travel, movement and speech of military Section 23 (2), Article VI. [Sanlakas v. Executive
officers, activities which may otherwise be Secretary (2004)]
sanctioned under civilian law. [Gudani v. Senga,
G.R. No. 170165, August 15, 2006] Exercise of Emergency Powers
Background: Presidential Proclamation 1017
Graduated Powers – Art. VII, sec. 18 grants the (Declaring a State of National Emergency) is
President, as Commander-in-Chief, a different from the law in Sanlakas as this
“sequence” of “graduated power[s].” From the proclamation was woven out of the “calling
most to the least benign, these are: (1) the out” and “take care” powers of the President
calling out power, (2) the power to suspend the joined with the “temporary takeover” provision
privilege of the writ of habeas corpus, and the under Art. XII, section 17. PP1017 purports to
(3) power to declare martial law. In the grant the President, without authority or
exercise of the latter two powers, the delegation from Congress, to take over or
Constitution requires the concurrence of two direct the operation of any privately-owned
conditions, namely, an actual invasion or public utility or business affected with public
rebellion, and that public safety requires the interest.
exercise of such power. However, as we
observed in Integrated Bar of the Philippines v. While the President could validly declare the
Zamora, “these conditions are not required in existence of a state of national emergency even
the exercise of the calling out power. The only in the absence of a Congressional enactment,
criterion is that ‘whenever it becomes the exercise of the emergency powers, such as the
necessary,’ the President may call the armed taking over of privately-owned public utility or
forces ‘to prevent or suppress lawless violence, business affected with public interest, requires a
invasion or rebellion.’ [Sanlakas v. Executive delegation from Congress which is the repository
Secretary (2004)] of emergency powers. [David v. Arroyo (2006)]

Call out the AFP to prevent lawless violence Suspend the privilege of the writ of habeas
This is merely a police measure meant to quell corpus
disorder. As such, the Constitution does not
regulate its exercise radically. "Writ of habeas corpus"
Is an order from the court commanding a
State of Rebellion detaining officer to inform the court:
While the Court may examine whether the (1) If he has the person in custody; and
power was exercised within constitutional limits (2) His basis in detaining that person
or in a manner constituting grave abuse of
discretion, none of the petitioners here have, by

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"Privilege of the writ" (a) The effect therefore is only to extend the
Is that portion of the writ requiring the periods during which he can be detained
detaining officer to show cause why he should without a warrant. When the privilege is
not be tested. Note that it is the privilege that is suspended, the period is extended to 72
suspended, not the writ itself. hours.
(b) What happens if he is not judicially
Requisites for Suspension of the Privilege of the charged nor released after 72 hours?
Writ: The public officer becomes liable under
(1) There must be an actual invasion or RPC Art. 125 for "delay in the delivery of
rebellion; and detained persons."
(2) The public safety requires the suspension. (3) The right to bail shall not be impaired even
when the privilege of the writ of habeas
Duration: Not to exceed 60 days unless corpus is suspended. [Art. III, Sec. 13]
extended by Congress.
The suspension of the privilege does not destroy
Effects of the Suspension of the Privilege: petitioners' right and cause of action for
(1) The suspension of the privilege of the writ damages for illegal arrest and detention and
applies only to persons "judicially charged" other violations of their constitutional rights.
for rebellion or offenses inherent in or The suspension does not render valid an
directly connected with invasion [Art. VII, otherwise illegal arrest or detention. What is
Sec. 18(5)]. suspended is merely the speedy means of
(a) Such persons suspected of the above obtaining his liberty. [Aberca v. Ver (1988)]
crimes can be arrested and detained
without a warrant of arrest. Proclaim Martial Law
(b) The suspension of the privilege does not
make the arrest without warrant legal. The requisites in proclaiming Martial Law are:
But the military is, in effect, enabled to (1) There must be an invasion or rebellion, and
make the arrest anyway since, with the (2) Public safety requires the proclamation of
suspension of the privilege, there is no martial law all over the Philippines or any part
remedy available against such unlawful thereof.
arrest (arbitrary detention).
(c) The arrest without warrant is justified by The following cannot be done [Art. VII, Sec. 18]:
the emergency situation and the (1) Suspend the operation of the Constitution.
difficulty in applying for a warrant (2) Supplant the functioning of the civil courts
considering the time and the number of and the legislative assemblies.
persons to be arrested. (3) Confer jurisdiction upon military courts and
(d) The crime for which he is arrested must agencies over civilians, where civil courts are
be one related to rebellion or invasion. As able to function.
to others, the suspension of the
privilege does not apply. "Open Court" Doctrine: Civilians cannot be
(2) During the suspension of the privilege of the tried by military courts if the civil courts are
writ, any person thus arrested or detained open and functioning. If the civil courts are not
shall be judicially charged within 3 days, or functioning, then civilians can be tried by the
otherwise he shall be released. [Art. VII, sec. military courts. Martial law usually
18(6)]] contemplates a case where the courts are

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already closed and the civil institutions have The period need not be 60 days; it could be
already crumbled, i.e. a "theater of war." If the more, as Congress would determine, based on
courts are still open, the President can just the persistence of the emergency.
suspend the privilege and achieve the same
effect. [Olaguer v. Military Commission No. 34, Note: If Congress fails to act before the measure
150 SCRA 144 (1987)] expires, it can no longer extend it until the
President again re-declares the measure.
(4) Automatically suspend the privilege of the
writ of habeas corpus. The President must If Congress extends the measure, but before the
expressly suspend the privilege. period of extension lapses the requirements for
the proclamation or suspension no longer exist,
The Role of Congress [See Art. VII, Sec. 18, par. 1, Congress can lift the extension, since the power
2] to confer implies the power to take back.
(1) Congress may revoke the proclamation of
martial law or suspension of the privilege of The Role of the Supreme Court [See Art. VII, Sec.
the writ of habeas corpus before the lapse 18, par. 3]
of 60 days from the date of suspension or (1) The Supreme Court may review, in an
proclamation. appropriate proceeding filed by any citizen,
(2) Upon such proclamation or suspension, the sufficiency of the factual basis of:
Congress shall convene at once. If it is not (a) the proclamation of martial law or the
in session, it shall convene in accordance suspension of the privilege of the writ,
with its rules without need of a call within or
24 hours following the proclamation or (b) the extension thereof. It must promul-
suspension. gate its decision thereon within 30 days
(3) Within 48 hours from the proclamation or from its filing.
the suspension, the President shall submit a Note: Calling-out power is purely discretionary
report, in person or in writing, to the on the President; the Constitution does not
Congress (meeting in joint session of the explicitly provide for a judicial review of its factual
action he has taken). basis. (IBP v. Zamora [2001])
(4) The Congress shall then vote jointly, by a
majority of all its members. It has two (2) The jurisdiction of the SC may be invoked in
options: a proper case.
(a) To revoke such proclamation or
suspension. When it so revoked, the Although the Constitution reserves to the
President cannot set aside (or veto) the Supreme Court the power to review the
revocation as he normally would do in sufficiency of the factual basis of the
the case of bills. proclamation or suspension in a proper suit, it
(b) To extend it beyond the 60-day period of is implicit that the Court must allow Congress
its validity. to exercise its own review powers, which is
automatic rather than initiated. Only when
Congress can only so extend the proclamation Congress defaults in its express duty to defend
or suspension upon the initiative of the the Constitution through such review should
President. the Supreme Court step in as its final rampart.
The constitutional validity of the President’s
proclamation of martial law or suspension of

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the writ of habeas corpus is first a political involving Members of the Armed Forces of the
question in the hands of Congress before it Philippines, other Persons Subject to Military Law,
becomes a justiciable one in the hands of the and the Members of the Philippine National
Court. Police, Repealing for the Purpose Certain
Presidential Decrees"
If the Congress procrastinates or altogether
fails to fulfill its duty respecting the RA 7055 effectively placed upon the civil courts
proclamation or suspension within the short the jurisdiction over certain offenses involving
time expected of it, then the Court can step in, members of the AFP and other members subject
hear the petitions challenging the President’s to military law.
action, and ascertain if it has a factual basis.
[Fortun v. Macapagal-Arroyo, G.R. No. 190293, RA 7055 provides that when these individuals
Mar. 20, 2012] commit crimes or offenses penalized under the
RPC, other special penal laws, or local
(3) Petition for habeas corpus government ordinances, regardless of whether
(a) When a person is arrested without a civilians are co-accused, victims, or offended
warrant for complicity in the rebellion or parties which may be natural or juridical
invasion, he or someone else in his persons, they shall be tried by the proper civil
behalf has the standing to question the court, except when the offense, as determined
validity of the proclamation or before arraignment by the civil court, is service-
suspension. connected in which case it shall be tried by
(b) Before the SC can decide on the legality court-martial.
of his detention, it must first pass upon
the validity of the proclamation or The assertion of military authority over civilians
suspension. cannot rest on the President's power as
Commander in Chief or on any theory of martial
(4) Limit on Calling out Power. —Test of law. As long as civil courts remain open and are
Arbitrariness: The question is not whether the regularly functioning, military tribunals cannot
President or Congress acted correctly, but try and exercise jurisdiction over civilians for
whether he acted arbitrarily in that the action offenses committed by them and which are
had no basis in fact. [IBP v. Zamora, (2000)]. properly cognizable by civil courts. To hold
This amounts to a determination of whether or otherwise is a violation of the right to due
not there was grave abuse of discretion process. [Olaguer v. Military Commission No. 34
amounting to lack or excess of jurisdiction. (1987)]

There are 4 ways, then, for the proclamation or Q: Do Letters of Instruction (LOI) and
suspension to be lifted: Presidential Decrees issued by the President
(1) Lifting by the President himself under the 1973 Constitution during Martial Law
(2) Revocation by Congress form part of the laws of the land?
(3) Nullification by the Supreme Court
(4) By operation of law, after 60 days A: LOIs are presumed to be mere administrative
issuances except when the conditions set out in
Cf. RA 7055 (1991) "An Act Strengthening Civilian Garcia-Padilla v. Enrile exist. To form part of the
Supremacy over the Military by Returning to the law of the land, the decree, order or LOI must
Civil Courts the Jurisdiction over Certain Offenses be (1) issued by the President in the exercise of

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his extraordinary power of legislation as usually of political offenses and who are
contemplated in Section 6 of the 1976 subject to trial but have not yet been con-
Amendments to the Constitution, (2)(a) victed, and often conditioned upon their
whenever in his judgment there exists a grave return to obedience and duty within a
emergency or a threat or imminence thereof, or prescribed time. [Black’s; Brown v. Walker,
(b) whenever the interim Batasang Pambansa 161 US 602].
or the regular National Assembly fails or is (4) Requires concurrence of majority of all
unable to act adequately on any matter for any members of Congress [Art. VII, Sec. 19]
reason that in his judgment requires immediate (5) Remit fines and forfeitures, after conviction
action. LOIs that are mere administrative by final judgment
issuances may be repealed, altered, or modified (6) Pardons - Permanent cancellation of
by way of an executive order. (PASEI v Torres sentence. [Black’s] It is an act of grace
[1993]) proceeding from the power entrusted with
the execution of the laws, which exempts the
B.5. PARDONING POWERS individual on whom it is bestowed, from the
Nature of Pardoning Power punishment the law inflicts for the crime he
has committed. It is a remission of guilt, a
Sec. 19. Except in cases of impeachment, or as forgiveness of the offense. [Vera, supra]
otherwise provided in this Constitution, the
President may grant reprieves, commutations, Plenary or partial
and pardons, and remit fines and forfeitures, (a) Plenary - Extinguishes all the penalties
after conviction by final judgment. [Art. VII, Sec. imposed upon the offender, including
19, par. 1] accessory disabilities.
(b) Partial – Does not extinguish all penalties
He shall also have the power to grant amnesty imposed
with the concurrence of a majority of all the
Members of the Congress Absolute or conditional
(a) Conditional - The offender has the right to
Forms of executive clemencies reject the same since he may feel that the
(1) Reprieves - a temporary relief from or condition imposed is more onerous than
postponement of execution of criminal the penalty sought to be remitted.
penalty or sentence or a stay of execution. (b) Absolute pardon - Pardonee has no option
[Black’s Law Dictionary] It is the withholding at all and must accept it whether he likes it
of a sentence for an interval of time, a or not. In this sense, an absolute pardon is
postponement of execution, a temporary similar to commutation, w/c is also not
suspension of execution. [People v. Vera subject to acceptance by the offender.
(1937)]
(2) Commutations - Reduction of sentence. Limitations on PARDON [F-I-E-CCC]
[Black’s Law Dictionary]. It is a remission of a (a) Cannot be granted for impeachment. [Art.
part of the punishment; a substitution of a VII, Sec. 19)
less penalty for the one originally imposed. (b) Cannot be granted in cases of violation of
[Vera, supra] election laws without the favorable
(3) Amnesty - a sovereign act of oblivion for past recommendation of the COMELEC. [Art. IX-
acts, granted by government generally to a C, Sec. 5]
class of persons who have been guilty

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(c) Can be granted only after conviction by conviction by the trial court. Any application
final judgment [People v. Salle, 250 SCRA therefor should not be acted upon or the
581] process toward its grant should not be begun
(d) Cannot absolve the convict of civil liability. unless the appeal is withdrawn. Agencies
[People v. Nacional (1995)] concerned must require proof from the accused
(e) Cannot be granted to cases of legislative that he has not appealed from his conviction or
contempt or civil contempt. that he has withdrawn his appeal. [People v.
(f) Cannot restore public offices forfeited, even Bacang (1996)]
if pardon restores the eligibility for said
offices. [Monsanto v. Factoran (1989)] Who determines breach of the conditions of
pardon?
Pardon Amnesty The determination of whether the conditions
Infractions of peace of Addressed to Political had been breached rests exclusively in the
the state Offenses sound judgment of the Chief Executive. Such
Granted to individuals To classes of persons determination would not be reviewed by the
courts. A judicial pronouncement stating that
Exercised solely by the Requires concurrence
the the conditionally pardoned offender has
executive of Congress
committed a crime is not necessary before the
Private act which must Public act which the
pardon may be revoked. [Torres v. Gonzales
be pleaded and courts could take
(1987)].
proved judicial notice
Looks forward and Looks backward and
Differentiated from
relieves the pardonee puts into oblivion the
(a) Probation - Disposition where a defendant
of the consequences of offense itself.
after conviction and sentence is released
the offense
subject to (1) conditions imposed by the
Extended after final May be extended at
court and (2) supervision of a probation
judgment any stage
officer. (PD No. 968, Sec. 3(a)]
(b) Parole - Suspension of the sentence of a
General Exceptions to Executive Clemencies convict granted by a Parole Board after
(a) In cases of impeachment, and serving the minimum term of the inde-
(b) As otherwise provided in this Constitution terminate sentence penalty, without
e.g. For election offenses No pardon, granting a pardon, prescribing the terms
amnesty, parole or suspension of sentence upon which the sentence shall be
for violation of election laws, rules, and suspended. [Reyes]
regulations shall be grander by the
President without the favorable Application of Pardoning Powers to Admin.
recommendation by the Commission on Cases
Election[Art. IX, sec. 5] (1) If the President can grant reprieves,
commutations and pardons, and remit fines
When can pardon be granted? and forfeitures in criminal cases, with much
Only after conviction by final judgment. The more reason can she grant executive
“conviction by final judgment” limitation under clemency in administrative cases, which are
Sec. 19, Art. VII prohibits the grant of pardon, clearly less serious than criminal offenses.
whether full or conditional, to an accused (2) However, the power of the President to grant
during the pendency of his appeal from his executive clemency in administrative cases

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refers only to administrative cases in the otherwise guilty of evasion or violation of a


Executive branch and not in the Judicial or revenue or tax law, partakes of an absolute
Legislative branches of the govt. [Llamas v. forgiveness or waiver by the Government of its
Executive Secretary (1991)] right to collect what otherwise would be due it.
Removal of Administrative Penalties or [Republic v. IAC (1991)]
Disabilities
In meritorious cases and upon recommendation B.6. DIPLOMATIC POWER
of the (Civil Service) Commission, the President
may commute or remove administrative Scope of Diplomatic Power
penalties or disabilities imposed upon officers The President, being the head of state, is
or employees in disciplinary cases, subject to regarded as the sole organ and authority in
such terms and conditions as he may impose in external relations and is the country’s sole
the interest of the service. [Sec. 53, Chapter 7, representative with foreign nations. As the chief
Subtitle A, Title I, Book V, Administrative Code of architect of foreign policy, the President acts as
1987 ] the country’s mouthpiece with respect to
international affairs.
Who may avail of amnesty?
(Asked 5 times in the Bar; answers from case law) The President is vested with the authority to:
[DEW-ME-FR]
Amnesty Proclamation No. 76 applies even to (1) Deal with foreign states and governments;
Hukbalahaps already undergoing sentence (2) Extend or withhold recognition;
upon the date of its promulgation. The majority (3) Maintain diplomatic relations;
of the Court believes that by its context and (4) Enter into treaties; and
pervading spirit the proclamation extends to all (5) Transact the business of foreign relations.
members of the Hukbalahap. [Tolentino v. Catoy [Pimentel v. Executive Secretary, G.R. No.
(1948)] 158088, July 6, 2005]

The SC agreed with the Sandiganbayan that in Treaty-making power


fact the petitioners were expressly disqualified No treaty or international agreement shall be
from amnesty. The acts for which they were valid and effective unless concurred in by at
convicted were ordinary crimes without any least two-thirds of all the members of the
political complexion and consisting only of Senate. [Art. VII, Sec. 21]
diversion of public funds to private profit. The
amnesty proclamation covered only acts in the Treaty - As defined by the Vienna Convention on
furtherance of resistance to duly constituted the Law of Treaties, “an international
authorities of the Republic and applies only to instrument concluded between States in written
members of the MNLF, or other anti- form and governed by international law,
government groups. [Macagaan v. People whether embodied in a single instrument or in
(1987)] two or more related instruments, and whatever
its particular designation.” [Bayan v. Executive
[Respondents] may avail of the tax amnesty Secretary, G.R. No. 138570, Oct. 10, 2000]
even if they have pending tax assessments. A
tax amnesty, being a general pardon or Other terms for a treaty: act, protocol,
intentional overlooking by the State of its agreement, compromis d’ arbitrage, concordat,
authority to impose penalties on persons

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convention, declaration, exchange of notes, permanent character usually take the form
pact, statute, charter and modus vivendi. of TREATIES. But the international
agreements involving adjustments in detail
Note: It is the President who RATIFIES a treaty carrying out well-established national
(not the Senate), the Senate merely CONCURS. policies and traditions and those involving a
[Bayan v. Executive Secretary, supra] more or less temporary character usually take
the form of EXECUTIVE AGREEMENTS.
The President cannot be compelled to submit a [Commissioner of Customs vs. Eastern Sea
treaty to the Senate for concurrence; she has Trading (1961)]
the sole power to submit it to the Senate and/or (4) Executive agreements may be entered into
to ratify it. [Bayan Muna v. Romulo (2011)] with other states and are effective even
without the concurrence of the Senate. From
Military Bases Treaty the point of view of international law, there is
Art. XVIII, Sec. 25. After the expiration in 1991 of no difference between treaties and executive
the Agreement between the Philippines and the agreements in their binding effect upon
United States of America concerning Military states concerned as long as the negotiating
Bases, foreign military bases, troops, or facilities functionaries have remained within their
shall not be allowed in the Philippines except powers. The distinction between an executive
under a treaty duly concurred in by the Senate agreement and a treaty is purely a
and, when the Congress so requires, ratified by constitutional one and has no international
a majority of the votes cast by the people in a legal significance. [USAFFE Veterans Assn. v.
national referendum held for that purpose, and Treasurer (1959)]
recognized as a treaty by the other contracting
State. An executive agreement that does not require
the concurrence of the Senate for its ratification
Visiting Forces Agreement (VFA) may not be used to amend a treaty that, under
The VFA, which is the instrument agreed upon the Constitution, is the product of the ratifying
to provide for the joint RP-US military exercises, acts of the Executive and the Senate. [Bayan
is simply an implementing agreement to the Muna v. Romulo (2011)]
main RP-US Military Defense Treaty. The VFA is
therefore valid for it is a presence “allowed Two Classes of Executive Agreements
under” the RP-US Mutual Defense Treaty. (1) Agreements made purely as executive acts
Since the RP-US Mutual Defense Treaty itself affecting external relations and independent
has been ratified and concurred in by both the of or without legislative authorization, which
Philippine Senate and the US Senate, there is may be termed as presidential agreements;
no violation of the Constitutional provision and
resulting from such presence. [Nicolas v. (2) Agreements entered into in pursuance of
Romulo (2009)] acts of Congress, or Congressional-Executive
Executive Agreements Agreements.
(1) Entered into by the President
(2) Need no concurrence Although the President may, under the
(3) Distinguished from treaties- International American constitutional system enter into
agreements involving political issues or executive agreements without previous
changes in national policy and those legislative authority, he may not, by executive
involving international agreements of agreement, enter into a transaction which is

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prohibited by statutes enacted prior thereto. He 2 Ways of Deporting an Undesirable Alien


may not defeat legislative enactments that have (1) By order of the President after due
acquired the status of law by indirectly investigation, pursuant to [now Ch. 3, Bk. III
repealing the same through an executive of the Admin. Code of 1987];
agreement providing for the performance of the (2) By the Commissioner of Immigration under
very act prohibited by said laws. [Gonzales v. Section 37 of the Immigration Law [Qua
Hechanova (1963)] Chee Gan v. Deportation Board, supra]
Once the Senate performs the power to concur
with treaties or exercise its prerogative within Scope of the power
the boundaries prescribed by the Constitution, (1) The Deportation Board can entertain
the concurrence cannot be viewed as an abuse deportation based on grounds not specified
of power, much less a grave abuse of discretion. in Sec. 37 of the Immigration Law. The
[Bayan v. Executive Secretary, supra, on the Board has jurisdiction to investigate the
constitutionality of the Visiting Forces alien even if he had not been convicted yet.
Agreement] (2) The President’s power to deport aliens and
to investigate them subject to deportation
Diplomatic Negotiations Privilege are provided in [now, Chapter 3, Book III, of
While the final text of the Japan-Philippines the Admin. Code of 1987].
Economic Partnership Agreement (JPEPA) may (3) The State has inherent power to deport
not be kept perpetually confidential, the offers undesirable aliens. This power is exercised
exchanged by the parties during the by the President.
negotiations continue to be privileged even (4) There is no legal or constitutional provision
after the JPEPA is published. The Japanese defining the power to deport aliens because
representatives submitted their offers with the the intention of the law is to grant the Chief
understanding that “historic confidentiality” Executive the full discretion to determine
would govern the same. Disclosing these offers whether an alien’s residence in the country
could impair the ability of the Philippines to is so undesirable as to affect the security,
deal not only with Japan but with other foreign welfare or interest of the state.
governments in future negotiations. The (5) The Chief Executive is the sole and exclusive
objective of the privilege is to enhance the judge of the existence of facts which would
quality of agency decisions. In assessing claim warrant the deportation of aliens. [Go Tek v.
of privilege for diplomatic negotiations, the test Deportation Board (1977)]
is whether the privilege being claimed is indeed
supported by public policy. This privilege may
be overcome upon “sufficient showing of need”.
[Akbayan v. Aquino (2008)]

Deportation of Undesirable Aliens


The President may deport only according to
grounds enumerated by law, otherwise it would
be unreasonable and undemocratic. [Qua Chee
Gan v. Deportation Board (1963)]

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B.7. POWERS RELATIVE TO under the Doctrine of Qualified Political Agency.


APPROPRIATION MEASURES However, the President may repudiate the very
acts performed in this regard by the alter ego.
Contracting and guaranteeing foreign loans [Constantino v. Cuisia (2005)]
Requisites for contracting and guaranteeing
foreign loans: Prepare and Submit the Budget
(1) With the concurrence of the monetary board Art. VII, Sec. 22. The President shall submit to
[Art. VII, Sec. 20] Congress within thirty days from the opening of
(2) Subject to limitations as may be provided by every regular session, as the basis of the
law [Art. XII, Sec. 2] general appropriations bill, a budget of
(3) Information on foreign loans obtained or expenditures and sources of financing,
guaranteed shall be made available to the including receipts from existing and proposed
public [Art. XII, Sec. 2] revenue measures.

Cf. Republic Act 4860 The budget is the plan indicating:


An Act Authorizing The President Of The (1) Expenditures of the government,
Philippines To Obtain Such Foreign Loans And (2) Sources of financing, and
Credits, Or To Incur Such Foreign Indebtedness, (3) Receipts from revenue-raising measures.
As May Be Necessary To Finance Approved
Economic Development Purposes Or Projects, The budget is the upper limit of the
And To Guarantee, In Behalf Of The Republic Of appropriations bill to be passed by Congress.
The Philippines, Foreign Loans Obtained Or Through the budget, therefore, the President
Bonds Issued By Corporations Owned Or reveals the priorities of the government.
Controlled By The Government Of The
Philippines For Economic Development
Purposes Including Those Incurred For Fixing of tariff rates [Art. VI, Sec. 28]
Purposes Of Re-Lending To The Private Sector, The Congress may, by law, authorize the
Appropriating The Necessary Funds Therefor, President to fix (1) within specified limits, and (2)
And For Other Purposes (Approved, September subject to such limitations and restrictions as it
8, 1966.) may impose:
(a) Tariff rates;
Role of Congress (b) Import and export quotas;
The President does not need prior approval by (c) Tonnage and wharfage dues;
the Congress (d) Other duties or imposts within the
(1) Because the Constitution places the power framework of the national development
to check the President’s power on the program of the Government.
Monetary Board;
(2) BUT Congress may provide guidelines and Rationale for delegation: Highly technical nature
have them enforced through the Monetary of international commerce, and the need to
Board constantly and with relative ease adapt the
rates to prevailing commercial standards.
The Philippine Debt Negotiating Team,
composed of the Secretary of Finance, Governor B.8. DELEGATED POWERS
of Central Bank, and the National Treasurer, Principle: The President, under martial rule or in
may contract and guarantee foreign loans a revolutionary government, may exercise

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delegated legislative powers. [See Art. VI, Sec. its own will prove that the emergency no
23[2]] Congress may delegate legislative longer exists to justify the delegation.
powers to the president in times of war or in [See Araneta v. Dinglasan (1949)], on
other national emergency. [Bernas] Congress’ grant of emergency powers
under C.A. 671; Court held that C.A. 671,
Emergency powers [Art. VI, Sec. 23.] being temporary, need not be expressly
(1) In times of war or other national emergency, repealed by a law)
the Congress, may, by law, authorize the (b) This rule or the termination of the grant
President, for a limited period, and subject of emergency powers is based on
to such restrictions as it may prescribe, to decided cases, which in turn became Art.
exercise powers necessary and proper to VII, Sec. 15 of the 1973 Constitution.
carry out a declared national policy (c) The specific power to continue in force
(2) Unless sooner withdrawn by resolution of laws and appropriations which would
the Congress, such powers shall cease lapse or otherwise become inoperative
upon the next adjournment thereof is a limitation on the general power to
exercise such other powers as the
Different from the Commander-in-Chief executive may deem necessary to
clause: enable the government to fulfill its
(1) When the President acts under the responsibilities and to maintain and
Commander-in-Chief clause, he acts under a enforce its authority. [Rodriguez v Gella
constitutional grant of military power, which (1953)]
may include the law-making power.
(2) When the President acts under the Inconsistency between the Constitution and the
emergency power, he acts under a cases: [Barlongay]
Congressional delegation of law-making (1) The Constitution states that the emergency
power. powers shall cease upon the next
Meaning of “power necessary and proper” - adjournment of Congress unless sooner
Power to issue rules and regulations withdrawn by resolution of Congress
(2) Cases tell us that the emergency powers
This power is: shall cease upon resumption of session.
(1) For a limited period; and (3) Reconciling the two: it would not be
(2) Subject to such restrictions as Congress may enough for Congress to just resume session
provide. in order that the emergency powers shall
cease. It has to pass a resolution
When Emergency Powers cease withdrawing such emergency powers,
(1) According to the text of the Constitution - The otherwise such powers shall cease upon
power ceases: the next adjournment of Congress.
(a) Upon being withdrawn by resolution of
the Congress; or
(b) If Congress fails to adopt such
resolution, upon the next (voluntary)
adjournment of Congress.
(2) According to Cases
(a) The fact that Congress is able to meet in
session uninterruptedly and adjourn of

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B.9. VETO POWER B.10. RESIDUAL POWERS


General rule: All bills must be approved by the General doctrine: The President has unstated
President before they become law. residual powers, which are implied from the
grant of executive power necessary for her to
Exceptions: comply with her Constitutional duties, such as
(1) The veto of the President is overridden by to safeguard and protect the general welfare. It
2/3 vote of all the Members of the House includes powers unrelated to the execution of
where it originated; any provision of law. [See Marcos v. Manglapus
(2) The bill lapsed into law because of the (1988)]
inaction of the President; and
(3) The bill passed is the special law to elect In Marcos v. Manglapus, supra, the Court held
the President and Vice-President. that then-President Corazon Aquino had the
power to prevent the Marcoses from returning
This gives the President an actual hand in to the Philippines on account of the volatile
legislation. However, his course of action is only national security situation. This was limited only
to approve it or veto it as a whole. (See by two standards: (1) there must be a factual
Legislative Power of Congress) basis for the impairment of the Marcoses’ right
to return (as distinguished from their right to
It is true that the Constitution provides a travel, which is a constitutional right); and (2)
mechanism for overriding a veto [Art. VI, Sec. the impairment must not be arbitrary.
27(1)]. Said remedy, however, is available only N.B. The decision was pro hac vice.
when the presidential veto is based on policy or
political considerations but not when the veto is B.11. EXECUTIVE PRIVILEGE
claimed to be ultra vires. In the latter case, it See discussion under Presidential Privilege.
becomes the duty of the Court to draw the
dividing line where the exercise of executive
power ends and the bounds of legislative
jurisdiction begin. [PHILCONSA v. Enriquez
(1994)]

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C. RULES ON SUCCESSION
C.1. PRESIDENT
Death or permanent disability of the Vice-President-elect shall become
President-elect President
President-elect fails to qualify Vice-President-elect shall act as
President until the President-
elect shall have qualified
President shall not have been Vice-President-elect shall act as
chosen President until a President shall
Vacancy have been chosen and qualified.
at the No President and Vice-President Senate President or, in case of his In the event of inability of the
Beginning chosen nor shall have qualified, or inability, Speaker of the House of SP and Speaker, Congress
of the both shall have died or become Representatives, shall act as shall, by law, provide for the
term permanently disabled President until a President or a manner in which one who is
Vice-President shall have been to act as President shall be
chosen and qualified. selected until a President or
Vice-President shall have
qualified.
Death, permanent disability, Vice-President shall become
removal from office, or resignation President
of the President
Vacancy Death, permanent disability, Senate President or, in case of his Congress, by law, shall
during removal from office, or resignation inability, the Speaker of the House provide for the manner in
the term of President AND Vice-President of Representatives, shall act as which one is to act as
President until a President or President in the event of
Vice-President shall be elected inability of the SP and
and qualified. Speaker.
When President transmits to the Such powers and duties shall be
Senate President and the Speaker discharged by the Vice-President
Temporary of the House his written declaration as Acting President, until the
disability that he is unable to discharge the President transmits to them a
powers and duties of his office written declaration to the
contrary
When a Majority of all the members The Vice-President shall
of the Cabinet transmit to the immediately assume the powers
Senate President and the Speaker and duties of the office as Acting
their written declaration that the President until the President
President is unable to discharge the transmits to the Senate President
powers and duties of his office and Speaker his written
declaration that no inability
exists.
If after the President transmits his Congress determines by a 2/3 Congress shall convene, if
declaration of his ability to vote of both houses, voting not in session, within 48
discharge his office, and a majority separately, that the President is hours. And if within 10 days
of members of the Cabinet transmit unable to discharge the powers from receipt of the last
within 5 days to the Senate and duties of his office, the Vice- written declaration or, if not
President and Speaker their written President shall act as President; in session, within 12 days
declaration that the President is otherwise, the President shall after it is required to
unable to discharge the powers continue exercising the powers assemble.
and duties of his office, Congress and duties of his office
shall decide the issue.

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C.2. CONSTITUTIONAL DUTY OF


CONGRESS IN CASE OF VACANCY IN THE
V. Judicial Department
OFFICES OF THE PRESIDENT AND VICE- A. CONCEPTS
PRESIDENT A.1. JUDICIAL POWER
Judicial power includes the duty of the courts of
[Art. VII, Sec. 10] – The Congress shall, at 10AM justice to:
of the 3rd day after the vacancy in the offices of (1) Settle actual controversies involving rights
the President and Vice-President occurs: which are legally demandable and
(1) Convene in accordance with its rules enforceable; and
without need of a call; and (2) To determine whether or not there has been
(2) Within seven days, enact a law calling for a a grave abuse of discretion amounting to
special election to elect a President and a lack or excess of jurisdiction on the part of
Vice-President to be held not earlier than any branch or instrumentality of the
forty-five days nor later than sixty days Government.
from the time of such call.
The second clause effectively limits the doctrine
The bill calling such special election shall be of “political question.” [See Francisco v. House of
deemed certified under paragraph 2, Section Rep. (2003)]
26, Article VI of this Constitution and shall
become law upon its approval on third reading Vested in: (a) Supreme Court and (b) such lower
by the Congress. Appropriations for the special courts as may be established by law.
election shall be charged against any current
appropriations and shall be exempt from the A.2. JUDICIAL REVIEW
requirements of paragraph 4, Section 25, Judicial Power Judicial Review
Article V1 of this Constitution. The convening of Where vested
the Congress cannot be suspended nor the Supreme Court Supreme Court
special election postponed. No special election Lower courts Lower courts
shall be called if the vacancy occurs within Definition
eighteen months before the date of the next Duty to settle actual Power of the courts
presidential election. controversies involving to test the validity of
rights which are legally executive and
demandable and legislative acts in
C.3. VACANCY IN THE OFFICE OF THE enforceable, and to light of their
VICE-PRESIDENT determine whether or conformity with the
not there has been a Constitution
[Art. VII, Sec. 9.] The President shall nominate a grave abuse of discretion [Angara v. Electoral
Vice-President from among the members of the amounting to lack or Commission (1936)]
Senate and the House of Representatives who excess of jurisdiction on
shall assume office upon confirmation by a the part of any branch or
majority vote of all the members of both houses instrumentality of the
of Congress voting separately. Government [Art.
VIII,Sec. 1, par. 2]

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Judicial Power Judicial Review justiciable controversy due to


Requisites for exercise supervening events [David v.
Macapagal-Arroyo (2006)].
Jurisdiction – Power to (1) Actual case or
decide and hear a case controversy
(B) Locus standi
and execute a decision (2) Locus Standi
Legal standing or locus standi refers to a
thereof (3) Question raised
party’s personal and substantial interest in
at the earliest
a case, arising from the direct injury it has
opportunity
sustained or will sustain as a result of the
(4) Lis mota of the
challenged governmental action. Legal
case
standing calls for more than just a
generalized grievance. The term “interest”
Judicial Supremacy
means a material interest, an interest in
When the judiciary mediates to allocate
issue affected by the governmental action,
constitutional boundaries, it does not assert any
as distinguished from mere interest in the
superiority over the other departments; it does
question involved, or a mere incidental
not in reality nullify or invalidate an act of the
interest. Unless a person’s constitutional
legislature, but only asserts the solemn and
rights are adversely affected by a statute or
sacred obligation assigned to it by the
governmental action, he has no legal
Constitution to determine conflicting claims of
standing to challenge the statute or
authority under the Constitution and to
governmental action. [CREBA v. Energy
establish for the parties in an actual controversy
Regulatory Commission (2010)]
the rights which that instrument secures and
guarantees to them. This is in truth all that is
A proper party is one who has sustained or is in
involved in what is termed "judicial supremacy"
imminent danger of sustaining a direct injury as
which properly is the power of judicial review
a result of the act complained of [IBP v. Zamora
under the Constitution. [Angara v. Electoral
(2000)]. The alleged injury must also be
Commission (1936)]
capable of being redressed by a favorable
Functions of Judicial Review judgment [Tolentino v. COMELEC (2004)].
(1) Checking (1) Requires partial consideration of the merits
(2) Legitimating of the case in view of its constitutional and
(3) Symbolic public policy underpinnings [Kilosbayan vs
Morato, (1995)]
Essential Requisites for Judicial Review (2) May be brushed aside by the court as a
(A) Actual case or controversy mere procedural technicality in view of
This means that there must be a genuine transcendental importance of the issues
conflict of legal rights and interests which involved [Kilosbayan v. Guingona (1994);
can be resolved through judicial Tatad v. DOE (1995)].
determination. [John Hay v. Lim (2003)] (3) Who are proper parties?
This precludes the courts from entertaining (a) Taxpayers, when public funds are
the following: involved. [Tolentino v. Comelec (2004)]
(1) Request for an advisory opinion (b) Government of the Philippines, when
[Guingona v. CA (1998)] questioning the validity of its own laws.
(2) Cases that are or have become moot [People v. Vera (1937)]
and academic, i.e. cease to present a

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(c) Legislators, when the powers of Gallant Maritime Services, G.R. No. 167614,
Congress are being impaired. Mar. 24, 2009)
[PHILCONSA v. Enriquez, (1994)]
(d) Citizens, when the enforcement of a (D) Lis Mota
public right is involved. [Tañada vs Decision on the constitutional question
Tuvera, (1985)] must be determinative of the case itself.

Special Rules on Standing (Requisites) The reason for this is the doctrine of
(1) Appropriation; separation of powers which requires that
Taxpayer
(2) Disbursement due respect be given to the co-equal
(1) Direct injury, branches, and because of the grave
(2) Public right; OR Art. VII, Sec. 18 consequences of a declaration of
(on the sufficiency of the factual unconstitutionality. [De la Llana v. Alba
Citizen
basis for martial law or suspension (1982)]
of the privilege of the writ of
Habeas Corpus) (i) Operative fact doctrine
Voter Right of suffrage is involved General Rule: The interpretation (or
(1) Authorized; declaration) of unconstitutionality is
Legislator (2) Affects legislative prerogatives retroactive in that it applies from the law’s
(i.e. a derivative suit) effectivity
(1) Litigants must have injury-in-
fact; Exception: OPERATIVE FACT DOCTRINE
(2) Litigants must have close Subsequent declaration of
Third- unconstitutionality does not nullify all acts
relation to the third-party; and
Party exercised in line with [the law]. The past
(3) There is an existing hindrance
Standing cannot always be erased by a new judicial
to the third party’s ability to
protect its own interest. [White declaration. [Municipality of Malabang v.
Light v. City of Manila (2009)] Benito (1969), citing Chicot County]

(C) Constitutional question must be raised at


Effect of a Declaration of
the earliest possible opportunity
Unconstitutionality
Exceptions:
(1) Orthodox view - An unconstitutional
(a) In criminal cases, at the discretion of
act is not a law; it confers no rights; it
the court;
imposes no duties; it affords no
(b) In civil cases, if necessary for the
protection; it creates no office; it is
determination of the case itself; and
inoperative, as if it had not been
(c) When the jurisdiction of the court is
passed at all.
involved
(2) Modern view - Certain legal effects of
the statute prior to its declaration of
N.B. The reckoning point is the first
unconstitutionality may be
competent court. The question must be
recognized.
raised at the first court with judicial review
powers. Hence, the failure to raise the
constitutional question before the NLRC is
not fatal to the case. (See Serrano v.

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(ii) Moot questions Political Justiciable


Ripeness of the controversy: The issue Question Controversy
must be raised not too early that it is Alejandrino v. Avelino v. Cuenco, (1949):
conjectural or anticipatory, nor too late Quezon (1924): election of Senate
that it becomes moot. The legislature’s President was done
exercise of without the required
General Rule: Courts will not decide disciplinary power quorum
questions that have become moot and over its member is
academic. not to be
interfered with by
Exception: Courts will still decide if: the Court.
(a) There is a grave violation of the Vera v. Avelino, Tañada v. Cuenco, (1957):
Constitution; (1946): inherent The selection of the
(b) The situation is of exceptional right of the members of the Senate
character and paramount public legislature to Electoral Tribunal is
interest is involved; determine who subject to constitutional
(c) [Symbolic Function] The shall be admitted limitations.
constitutional issue raised requires to its membership
formulation of controlling principles Severino v. Cunanan v. Tan, Jr.,
to guide the bench, the bar and the Governor-General (1962): The Commission
public; and (1910): Mandamus on Appointments is a
(d) The case is capable of repetition yet and injunction constitutional creation
evading review. [David v. Macapagal- could not lie to and does not derive its
Arroyo (2006)] enforce or restrain power from Congress.
a duty which is
(iii) Political question doctrine discretionary
The term “political question” refers to: (1) (calling a special
matters to be exercised by the people in local election).
their primary political capacity; or (2) those Manalang v. Lansang v. Garcia (1971):
specifically delegated to some other Quitoriano, (1954): Suspension of the
department or particular office of the President’s privilege of the writ of
government, with discretionary power to appointing power habeas corpus is not a
act. It is concerned with issues dependent is not to be political question.
upon the wisdom, not legality, of a interfered with by
particular measure. [Tañada v. Cuenco the Court.
(1957)] Javellana v. Executive
Secretary (1973): WON
In recent years, the Court has set aside the 1973 Constitution
this doctrine and assumed jurisdiction had been ratified in
whenever it found constitutionally- accordance with the
imposed limits on the exercise of powers 1935 Constitution is
conferred upon the Legislative and justiciable.
Executive branches [Bernas].
HOWEVER, the people
may be deemed to have

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Political Justiciable qualification in office applies only during


Question Controversy his or her tenure and does not create
cast their favorable immunity from liability for possibly criminal
votes in the belief that in acts or for alleged violations of the Code of
doing so they did the Judicial Conduct or other supposed
part required of them by violations. Once the said impeachable
Article XV, hence, it may officer is no longer in office because of his
be said that in its removal, resignation, retirement or
political aspect, which is permanent disability, the Court may
what counts most, after proceed against him or her and impose the
all, said Article has been corresponding sanctions for misconduct
substantially complied committed during his tenure, pursuant to
with, and, in effect, the the Court’s power of administrative
1973 Constitution has supervision over members of the bar. [In Re
been constitutionally Biraogo (2009)]
ratified.
(7) The SC has exclusive power to discipline
judges of lower courts. [Art. VIII, Sec. 11]
B. SAFEGUARDS OF JUDICIAL The Ombudsman is duty bound to refer to
INDEPENDENCE the SC all cases against judges and court
personnel, so SC can determine first
(1) The SC is a constitutional body. It cannot
whether an administrative aspect is involved.
be abolished nor may its membership or
the manner of its meetings be changed by
The Ombudsman cannot bind the Court
mere legislation. [Art. VIII, Sec. 4]
that a case before it does or does not have
(2) The members of the judiciary are not
administrative implications. [Caoibes v.
subject to confirmation by the CA.
Ombudsman, G.R. No. 132177, Jul. 19, 2001]
(3) The members of the SC may not be
(8) The members of the SC and all lower
removed except by impeachment. [Art. IX,
courts have security of tenure, w/c cannot
Sec. 2]
be undermined by a law reorganizing the
(4) The SC may not be deprived of its minimum
judiciary. [Id.]
original and appellate jurisdiction as
(9) They shall not be designated to any agency
prescribed in Art. X, Sec. 5 of the
performing quasi-judicial or administrative
Constitution. [Art. VIII, Sec. 2]
functions. [Art. VIII, Sec. 12]
(5) The appellate jurisdiction of the SC may
not be increased by law without its advice
Administrative functions are those that
and concurrence. [Art. VI, Sec. 30; Fabian v.
involve regulation of conduct of individuals
Desierto (1988)]
or promulgation of rules to carry out
(6) The SC has administrative supervision over
legislative policy. Judges should render
all lower courts and their personnel. (art.
assistance to a provincial committee of
VIII, sec. 6.)
justice (which is under DOJ supervision)
only when it is reasonably incidental to their
The rule prohibiting the institution of
duties. [In Re Manzano, A.M. No. 8-7-1861-
disbarment proceedings against an
RTC, Oct. 5, 1988]
impeachable officer who is required by the
Constitution to be a member of the bar as a

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(10) The salaries of judges may not be reduced


during their continuance in office. [Art. VIII, (12) The SC alone may initiate rules of court.
Sec. 10] [Art. VIII, Sec. 5(5)]
(11) The judiciary shall enjoy fiscal autonomy. (13) Only the SC may order the temporary detail
[Art. VIII, Sec. 3] of judges. [Art. VIII, Sec. 5(3)]
Fiscal autonomy means freedom from (14) The SC can appoint all officials and
outside control. As the Court explained in employees of the judiciary.[Art. VIII, Sec.
Bengzon v. Drilon: As envisioned in the 5(6)]
Constitution, the fiscal autonomy enjoyed
by the Judiciary, the Civil Service C. JUDICIAL RESTRAINT
Commission and the Commission on Audit, The judiciary will not interfere with its co-equal
the Commission on Elections, and the branches when:
Office of the Ombudsman contemplates a (1) There is no showing of grave abuse of
guarantee of full flexibility to allocate and discretion
utilize their resources with the wisdom and (a) PPA v. Court of Appeals: If there is no
dispatch that their needs require. It showing of grave abuse of discretion on
recognizes the power and authority to levy, the part of a branch or instrumentality
assess and collect fees, fix rates of of the government, the court will
compensation not exceeding the highest decline exercising its power of judicial
rates authorized by law for compensation review.
and pay plans of the government and (b) Chavez v. COMELEC: Judicial review
allocate and disburse such sums as may be shall involve only those resulting in
provided by law or prescribed by them in grave abuse of discretion by virtue of an
the course of the discharge of their agency’s quasi-judicial powers, and not
functions. [In re: Clarifying and those arising from its administrative
Strengthening the Organizational Structure functions.
and Set-up of the Philippine Judicial (2) The issue is a political question.
Academy, A.M. No. 01-1-04-SC] Even when all requisites for justiciability
have been met, judicial review will not be
The provision in the Charter of the GSIS, i.e., exercised when the issue involves a political
Section 39 of Republic Act No. 8291, which question.
exempts it from “all taxes, assessments, But see Francisco v. House of
fees, charges or duties of all kinds,” cannot Representatives (2001). At the same time,
operate to exempt it from the payment of the Court has the duty to determine
legal fees. Unlike the 1935 and 1973 whether or not there has been grave abuse
Constitutions, which empowered Congress of discretion by any instrumentality of
to repeal, alter or supplement the rules of government under its expanded judicial
the Supreme Court concerning pleading, review powers. (This allowed the SC to
practice and procedure, the 1987 interfere in a traditionally purely political
Constitution removed this power from process, i.e. impeachment, when questions
Congress. Hence, the Supreme Court now on compliance with Constitutional
has the sole authority to promulgate rules processes were involved.)
concerning pleading, practice and
procedure in all courts. [GSIS v. Caballero
(2010)]

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Guidelines for determining whether a question is RTC Judge MTC/ MCTC


Justices of SC and
political or not: [Baker v. Carr (369 US 186), as (B.P. 129, Judge (B.P.
Collegiate Courts
cited in Estrada v. Desierto (2001)]: Sec. 15) 129, Sec. 26)
(1) There is a textually demonstrable Tenure [Art. VIII, Sec. 11]
constitutional commitment of the issue to a Hold office during good behavior until they
political department; reach the age of 70 or
(2) Lack of judicially discoverable and become incapacitated to discharge their duties
manageable standards for resolving it; Character [Art. VIII, Sec. 7(3)]
(3) The impossibility of deciding without an
Person of proven competence, integrity, probity
initial policy determination of a kind clearly
and independence
for non-judicial discretion;
(4) Impossibility of a court’s undertaking
*“Practice of law” is not confined to litigation. It
independent resolution without expressing
means any activity in and out of court, which
lack of the respect due coordinate branches
requires the application of law, legal procedure,
of government;
knowledge, training and experience. [Cayetano
(5) An unusual need for unquestioning
v. Monsod (1991)]
adherence to a political decision already
made;
D.1. CONSTITUTIONAL REQUIREMENTS
(6) Potentiality of embarrassment from
Supreme Court Justice
multifarious pronouncements by various
(1) Natural born citizens
departments on one question
(2) At least 40 years of age
(3) Engaged in the practice of law or a judge of
D. APPOINTMENTS TO THE 15 years or more
(4) Must be of proven competence, integrity,
JUDICIARY
probity and independence.
RTC Judge MTC/ MCTC
Justices of SC and
(B.P. 129, Judge (B.P.
Collegiate Courts Lower Collegiate Courts
Sec. 15) 129, Sec. 26)
(1) Natural born citizen
Citizenship
(2) Member of the Philippine Bar
Natural-born Filipino (3) Must be of proven competence, integrity,
Age probity and independence
At least 40 years At least 35 At least 30 (4) Such additional requirements provided by
old years old years old law.
Experience
15 years or more (a) Has been engaged for at Lower Courts
as a judge of a least 5 years in the practice (1) Filipino citizens (Rules of the Judicial and
lower court or of law* in the PHL; OR (b) Bar Council, Nov. 2000, Rule 2. Note the
has been has held public office in the conflict between the Rules and B.P. 129;
engaged in the PHL requiring admission to the Rules cite the Constitutional
practice of law in the practice of law as an requirement, but disregarded the first
the PHL for the indispensable requisite clause of Art. VIII, Sec. 7(2), i.e. “The
same period Congress shall prescribe the qualifications
of judges of lower courts […]”)
(2) Member of the Philippine Bar

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(3) Must be of proven competence, integrity, Regular members [Art. VIII, Sec. 8(2)] - The
probity and independence. regular members shall be appointed by the
(4) Such additional requirements provided by President with the consent of the Commission
law. on Appointments. The term of the regular
members is 4 years.
Note: In the case of judges of the lower courts,
the Congress may prescribe other qualifications. But the term of those initially appointed shall be
(art.VIII, sec. 7[3]. staggered in the following way so as to create
continuity in the council:
D.2. JUDICIAL AND BAR COUNCIL (1) IBP representative - 4 years
Composition (2) Law professor - 3 years
Ex-officio members [Art. VIII, Sec. 8(1)] (3) Retired justice - 2 years
(1) Chief Justice as ex-officio Chairman (4) Private sector - 1 year
(2) Secretary of Justice
(3) One representative of Congress Primary function: Recommend appointees to the
judiciary; may exercise such other functions and
Regular members [Art. VIII, Sec. 8(1)] duties as the SC may assign to it. [Art. VIII, Sec.
(1) Representative of the Integrated Bar 8(5)]
(2) Professor of Law
(3) Retired member of the SC D.3. PROCEDURE OF APPOINTMENT
(4) Representative of private sector

Secretary ex-officio [Art. VIII, Sec. 8(3)] – Clerk of The JBC shall submit a list of three nominees
Court of the SC, who shall keep a record of its for every vacancy to the President. (art. VIII,
proceedings; not a member of the JBC. sec. 9)

Appointment, Tenure, Salary of JBC Members


Any vacancy in the Supreme Court shall be
Ex-officio members - None apply since the filed within ninety (90) days from the
position in the Council is good only while the occurrence thereof. [Art. VIII, Sec. 4(1)] For
person is the occupant of the office. lower courts, the President shall issue the
appointment within ninety (90) days from
Only ONE representative from Congress-Former the submission by the JBC of such list. [Art.
practices of giving ½ vote or (more recently) 1 VIII, Sec. 9]
full vote each for the Chairmen of the House
and Senate Committees on Justice is invalid.
The framers intended the JBC to be composed
of 7 members only. Intent is for each co-equal The prohibition against midnight appointments
branch of gov’t to have one representative. There does not apply to the judiciary. See De Castro v.
is no dichotomy between Senate and HOR when JBC, (G.R. No. 191002, Mar. 17, 2010), discussed
Congress interacts with other branches. But the above.
SC is not in a position to say who should sit.
[Chavez v. JBC, G.R. No. 202242, Jul. 17, 2012]

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D.4. DISQUALIFICATION FROM OTHER (e) Presidential decrees


POSITIONS OR OFFICES (f) Instructions
(g) Proclamations
Art. VIII, Sec. 12. The Members of the Supreme (h) Ordinances
Court and of other courts established by law (i) Other regulations
shall not be designated to any agency (2) (B) Exercise of the power to Discipline
performing quasi-judicial or administrative judges of lower courts, or order their
functions. dismissal [Art. VIII, Sec. 11]
(3) Discipline of judges can be done by a
division, BUT En Banc decides cases for
The SC and its members should not and cannot dismissal, disbarment, suspension for more
be required to exercise any power or to perform than 1 year, or fine of more than P10,000.
any trust or to assume any duty not pertaining [People v. Gacott, G.R. No. 116049, Jul. 13,
to or connected w/ the administering of judicial 1995]
functions. [Meralco v. Pasay Transportation Co. (4) (C) Cases or matters heard by a Division
(1932)] where the required number of votes to
decide or resolve (the majority of those who
A judge in the CFI shall not be detailed with the took part in the deliberations on the issues
Department of Justice to perform administrative in the case and voted thereon, and in no
functions as this contravenes the doctrine of case less than 3 members) is not met. [Art.
separation of powers. [Garcia v. Macaraig, VIII, Sec. 4(3)]
(1972)] (5) Modifying or reversing a doctrine or
principle of law laid down by the court in a
decision rendered en banc or in division
E. SUPREME COURT [Art. VIII, Sec. 4(3)]
(6) Actions instituted by citizen to test the
E.1. COMPOSITION validity of a proclamation of Martial law or
(1) Chief Justice and 14 Associate Justices suspension of the privilege of the writ [Art.
(2) May sit en banc or in divisions of three, five, VIII, Sec. 18]
or seven Members (7) When sitting as Presidential Electoral
(3) Vacancy shall be filled within 90 days from Tribunal [Art. VIII, Sec. 4, par. 7]
the occurrence thereof (8) All Other cases which under the Rules of
Court are required to be heard by the SC en
E.2. EN BANC AND DIVISION CASES banc. [Art. VIII, Sec. 4(2)]
En banc – Cases decided with the concurrence
of a majority of the Members who actually took Requirement and Procedures in Divisions
part in the deliberations and voted. (1) Cases decided with the concurrence of a
majority of the Members who actually took
Instances when the SC sits En Banc: part in the deliberations and voted
(1) Those involving the Constitutionality, (2) In no case without the concurrence of at
application, or operation of: [TOIL-PI-POO] least three of such Members
(a) Treaty (3) When required number is not obtained, the
(b) Orders case shall be decided en banc.
(c) International or executive agreement (a) Cases v. Matters. Only cases are
(d) Law referred to En Banc for decision when

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required votes are not obtained. E.4. ADMINISTRATIVE SUPERVISION


(b) Cases are of first instance; mattersare OVER LOWER COURTS
those after the first instance, e.g. MRs Administrative Powers of the Supreme Court
and post-decision motions. (1) Assign temporarily judges of lower courts
(c) Failure to resolve a motion because of to other stations as public interest may
a tie does not leave case undecided. require;
MR is merely lost. [See Fortrich v. (2) Shall not exceed 6 months without the
Corona, G.R. No. 131457; Aug. 19, 1999] consent of the judge concerned
(3) Order a change of venue or place of trial
The SC En Banc is not an appellate court vis-à- to avoid a miscarriage of justice;
vis its Divisions. The only constraint is that any (4) Appoint all officials and employees of the
doctrine or principle of law laid down by the Judiciary in accordance with the Civil
Court, either rendered en banc or in division, Service Law;
may be overturned or reversed only by the Court (5) Supervision over all courts and the
sitting en banc.[Firestone Ceramics v. CA, (2001)] personnel thereof;
(6) Discipline judges of lower courts, or order
E.3. PROCEDURAL RULE-MAKING their dismissal.
Art. VIII, Sec. 5. The Supreme Court shall have
the following powers: […] Period for Deciding Cases [Art. VIII, Sec. 15(1)]
(5) Promulgate rules concerning the protection Supreme Lower Other Lower
and enforcement of constitutional rights, Court Collegiate Courts
pleading, practice, and procedure in all courts, Courts
the admission to the practice of law, the 24 12 months, 3 months, unless
integrated bar, and legal assistance to the months unless reduced reduced by the
under-privileged. by the SC SC
Notes:
The 1987 Constitution took away the power of (1) Period counted from date of submission.
Congress to repeal, alter, or supplement rules (2) Case deemed submitted upon filing of
concerning pleading, practice and procedure. the last pleading, brief or memorandum
The power to promulgate rules of pleading, required by the Rules or the court. [Sec. 15(2)]
practice and procedure is no longer shared by Upon expiration of the period, the Chief Justice
this Court with Congress, more so with the or presiding judge shall issue a certification
Executive. [Echegaray v. Secretary of Justice stating why the decision or resolution has not
(1991)] been rendered within the period. [Sec. 15(3)]

Limitations: This provision is merely directory and failure to


(1) Shall provide a simplified and inexpensive decide on time would not deprive the
procedure for speedy disposition of cases corresponding courts of jurisdiction or render
(2) Uniform for all courts in the same grade their decisions invalid. [De Roma v. CA (1987)]
(3) Shall not diminish, increase or modify The failure to decide cases within 90-day
substantive rights period required by law constitutes a ground for
administrative liability against the defaulting
judge. But it does not make the judgment a
nullity. The judgment is valid. [People v.
Mendoza (2001)]

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Even when there is delay and no decision or F. JUDICIAL PRIVILEGE


resolution is made within the prescribed period,
there is no automatic affirmance of the See SC Resolution dated February 14, 2012, “In
appealed decision. [Sesbreño v CA (2008)] Re: Production of Court Records and
Documents and the Attendance of Court
The Sandiganbayan, while of the same level as officials and employees as witnesses under the
the Court of Appeals, functions as a trial court. subpoenas of February 10, 2012 and the various
Therefore the period for deciding cases which letters for the Impeachment Prosecution Panel
applies to the Sandiganbayan is the three (3) dated January 19 and 25, 2012.”
month period, not the twelve (12) month period.
[In Re Problems of Delays in Cases before the Background: The Senate Impeachment Court
Sandiganbayan (2001)] (during the Impeachment Trial of Chief Justice
Corona), issued a subpoena ad testificandum et
E.5. ORIGINAL AND APPELLATE duces tecum for certain documents relating to
JURISDICTION the FASAP cases, the League of Cities cases,
and Gutierrez v. House Committee on Justice, as
Original Jurisdiction [Art. VIII, sec. 5[1]] well as the attendance of certain court officials.
(1) Cases affecting ambassadors, other public The Supreme Court refused, invoking judicial
ministers and consuls privilege.
(2) Petition for certiorari
(3) Petition for prohibition Judicial Privilege
(4) Petition for mandamus A form of deliberative process privilege; Court
(5) Petition for quo warranto records which are pre-decisional and deliberative
(6) Petition for habeas corpus in nature are thus protected and cannot be the
subject of a subpoena
Original Jurisdiction [Art. VIII, Sec. 5(2)] – on
appeal or certiorari (as the Rules of Court A document is predecisional if it precedes, in
provide), SC may review, revise, reverse, modify, temporal sequence, the decision to which it
or affirm final judgments and orders of lower relates.
courts in:
(1) Cases involving the constitutionality or A material is deliberative on the other hand, if it
validity of any treaty, international or reflects the give-and-take of the consultative
executive agreement, law, presidential process. The key question is whether disclosure
decree, proclamation, order, instruction, of the information would discourage candid
ordinance, or regulation discussion within the agency.
(2) Cases involving the legality of any tax,
impost, assessment, or toll, or any penalty Judicial Privilege is an exception to the general
imposed in relation thereto rule of transparency as regards access to court
(3) Cases in which the jurisdiction of any lower records.
court is in issue
(4) Criminal cases where the penalty imposed Court deliberations are traditionally considered
is reclusion perpetua or higher. privileged communication.
(5) Cases where only a question of law is
involved.

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Summary of Rules Since the Court is higher than the


The following are privileged documents or individual justices or judges, no sitting or
communications, and are not subject to retired justice or judge, not even the Chief
disclosure: Justice, may claim exception without the
(1) Court actions such as the result of the raffle consent of the Court.
of cases and the actions taken by the Court
on each case included in the agenda of the VI. Constitutional
Court’s session on acts done material to
pending cases, except where a party Commissions
litigant requests information on the result Q: What are the constitutional commissions?
of the raffle of the case, pursuant to Rule 7, A: (1) The Commission on Elections, (2)
Section 3 of the Internal Rules of the Commission on Audit, and (3) Civil Service
Supreme Court (IRSC); Commission
(2) Court deliberations or the deliberations of
the Members in court sessions on cases
A. CONSTITUTIONAL SAFEGUARDS
and matters pending before the Court;
(3) Court records which are “pre-decisional”
TO ENSURE INDEPENDENCE OF
and “deliberative” in nature, in particular, COMMISSIONS
documents and other communications
which are part of or related to the Q: Are there any safeguards in place to ensure
deliberative process, i.e., notes, drafts, the independence of the commissions?
research papers, internal discussions, A: Yes –
internal memoranda, records of internal (1) They are constitutionally created, hence
deliberations, and similar papers. may not be abolished by statute.
(2) Each commission is vested with powers
Additional Rules: and functions which cannot be reduced by
(1) Confidential Information secured by statute.
justices, judges, court officials and (3) Independent constitutional bodies.
employees in the course of their official (4) The Chairmen and members cannot be
functions, mentioned in (2) and (3) above, removed except by impeachment.
is privileged even after their term of office. (5) Fixed term of office of 7 years.
(2) Records of cases that are still pending for (6) The Chairmen and members may not be
decision are privileged materials that appointed in an acting capacity.
cannot be disclosed, except only for (7) The salaries of the Chairmen and members
pleadings, orders and resolutions that have may not be decreased during their tenure.
been made available by the court to the (8) The Commissions enjoy fiscal autonomy.
general public. (9) Each Commission may promulgate its own
(3) The principle of comity or inter- procedural rules, provided they do not
departmental courtesy demands that the diminish, increase or modify substantive
highest officials of each department be rights [though subject to disapproval by the
exempt from the compulsory processes of Supreme Court].
the other departments. (10) The Commission may appoint their own
(4) These privileges belong to the Supreme officials and employees in accordance with
Court as an institution, not to any justice or Civil Service Law.
judge in his or her individual capacity.

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A.1 PROMOTIONAL APPOINTMENT OF Commission under the Constitution are


COMMISSIONER TO CHAIRMAN also covered by the prohibition against
[Funa v. Commission on Audit (2012)] reappointment.

Article IX-D, Sec. 1(2) does not prohibit a (4) A commissioner who resigns after serving
promotional appointment from commissioner in the Commission for less than seven years
to chairman as long as: is eligible for an appointment as Chairman
(a) The commissioner has not served the full for the unexpired portion of the term of the
term of 7 years; and departing chairman. Such appointment is
(b) The appointment to any vacancy shall be not covered by the ban on reappointment,
only for the unexpired portion of the term of provided that the aggregate period of the
the predecessor. [Sec. 1(2), Article IX-D] length of service will not exceed seven (7)
(c) The promotional appointment must years and provided further that the vacancy
conform to the rotational plan or the in the position of Chairman resulted from
staggering of terms in the commission death, resignation, disability or removal by
membership. impeachment. This is not a reappointment,
but effectively a new appointment.
Court’s Rulings on Sec. 1(2), Art. IX-D:
(1) The appointment of members of any of the (5) Any member of the Commission cannot be
three constitutional commissions, after the appointed or designated in a temporary or
expiration of the uneven terms of office of acting capacity.
the first set of commissioners, shall always
be for a fixed term of seven (7) years; an B. POWERS AND FUNCTIONS OF
appointment for a lesser period is void and EACH COMMISSION
unconstitutional.
B.1. CIVIL SERVICE COMMISSION
The appointing authority cannot validly Art. IX—B, Sec. 3. The Civil Service Commission,
shorten the full term of seven (7) years in as the central personnel agency of the
case of the expiration of the term as this Government, shall establish a career service and
will result in the distortion of the rotational adopt measures to promote morale, efficiency,
system prescribed by the Constitution. integrity, responsiveness, progressiveness, and
courtesy in the civil service. It shall strengthen
(2) Appointments to vacancies resulting from the merit and rewards system, integrate all
certain causes (death, resignation, human resources development programs for all
disability or impeachment) shall only be for levels and ranks, and institutionalize a
the unexpired portion of the term of the management climate conducive to public
predecessor; such appointments cannot be accountability. It shall submit to the President
less than the unexpired portion [as it will and the Congress an annual report on its
disrupt the staggering]. personnel programs.

(3) Members of the Commission who were


Functions:
appointed for a full term of seven years and
(1) In the exercise of its powers to implement
who served the entire period, are barred
R.A. 6850 (granting civil service eligibility
from reappointment to any position in the
to employees under provisional or
Commission. The first appointees in the

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temporary status who have rendered seven


years of efficient service), the CSC enjoys a Classes of Service:
wide latitude of discretion, and may not be (1) Career Service – Characterized by entrance
compelled by mandamus.(Torregoza v. Civil (a) based on merit and fitness to be
Service Commission, 211 SCRA 230). determined, as far as practicable, by
(2) Under the Administrative Code of 1987, the competitive examinations, OR (b) based on
Civil Service Commission has the power to highly technical qualifications; with
hear and decide administrative cases opportunity for advancement to higher
instituted before it directly or on appeal, career positions and security of tenure.
including contested appointments. (a) Open career positions – Where prior
(3) The Commission has original jurisdiction to qualification in an appropriate
hear and decide a complaint for cheating in examination is required.
the Civil Service examinations committed (b) Closed career positions – e.g. scientific
by government employees. [Cruz v. CSC, or highly technical in nature;
(2001)] (c) Career Executive Service – e.g.
(4) It is the intent of the Civil Service Law, in undersecretaries, bureau directors
requiring the establishment of a grievance (d) Career Officers – Other than those
procedure, that decisions of lower level belonging to the Career Executive
officials (in cases involving personnel Service who are appointed by the
actions) be appealed to the agency head, President, e.g. those in the foreign
then to the Civil Service Commission. service
[Olanda v. Bugayong (2003)] (e) Positions in the AFP although
governed by a different merit system
Scope of the Civil Service (f) Personnel of GOCCs with original
Embraces all branches, subdivisions, charters
instrumentalities and agencies of the (g) Permanent laborers, whether skilled,
Government, including GOCCs with original semi-skilled or unskilled
charters. [Sec. 2(1), Art. IX-B]. (2) Non-career Service – Characterized by
entrance on bases other than those of the
The University of the Philippines, having an usual tests utilized for the career service;
original charter, is clearly part of the CSC. [UP v. tenure limited to a period specified by law,
Regino, 221 SCRA 598] or which is co-terminus with that of the
appointing authority or subject to his
Composition: pleasure, or which is limited to the duration
A Chairman and 2 Commissioners (a) Elective officials, and their personal and
confidential staff;
Qualifications: [Art. IX-B, Sec. 1(1)] (b) Department heads and officials of
(1) Natural-born citizens of the Philippines; Cabinet rank who hold office at the
(2) At the time of their appointment, at least pleasure of the President, and their
35 years of age; personal and confidential staff;
(3) With proven capacity for public (c) Chairmen and members of commissions
administration; and and bureaus with fixed terms;
(4) Must not have been candidates for any (d) Contractual personnel;
elective position in the election (e) Emergency and seasonal personnel.
immediately preceding their appointment.

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Appointments in the Civil Service (4) No officer or employee in the civil service
General Rule: Made only according to merit and shall engage directly or indirectly, in any
fitness to be determined, as far as practicable, electioneering or partisan political activity.
by competitive examination [Art. IX-B, sec. 2(4)]

Exceptions: B.2. COMMISSION ON ELECTIONS


(1) Policy determining – Where the officer lays Functions and Powers
down principal or fundamental guidelines (1) Enforce all laws relating to the conduct of
or rules; or formulates a method of action election, plebiscite, initiative, referendum
for government or any of its subdivisions; and recall.
e.g. department head.
(2) Primarily confidential – Denoting not only Initiative – The power of the people to
confidence in the aptitude of the appointee propose amendments to the Constitution
for the duties of the office but primarily or to propose and enact legislation through
close intimacy which ensures freedom of an election called for that purpose. There
intercourse without embarrassment or are 3 systems of initiative: Initiative on the
freedom from misgivings or betrayals on Constitution, initiative on statutes, and
confidential matters of state [De los Santos initiative on local legislation. [R.A. 6735,
v. Mallare, 87 Phil 289]; OR one declared Sec. 2(a)]
to be so by the President of the Philippines
upon the recommendation of the CSC Referendum – The power of the electorate
[Salazar v. Mathay, 73 SCRA 285] to approve or reject legislation through an
(3) Highly technical – Requires possession of election called for that purpose. There are
technical skill or training in supreme 2 classes: referendum on statutes or
degree. [De los Santos v. Mallare, supra] referendum on local laws. [R.A. 6735, Sec.
2(c)].

Recall – The termination of official


Disqualifications: relationship of a local elective official for
(1) No candidate who has lost in any election loss of confidence prior to the expiration of
shall within 1 year after such election, be his term through the will of the electorate.
appointed to any office in the Government Plebiscite – The submission of
or any GOCC or in any of its subsidiaries. constitutional amendments or important
[Art. IX-B, Sec. 6] legislative measures to the people for
(2) No elective official shall be eligible for ratification.
appointment or designation in any capacity (2) Recommend to the Congress effective
to any public office or position during his measures to minimize election spending,
tenure. [Art. IX-B, Sec. 7[1]] and to prevent and penalize all forms of
(3) Unless otherwise allowed by law OR by the election frauds, offenses, malpractices, and
primary functions of his position, no nuisance candidacies.
appointive official shall hold any other office (3) Submit to the President and the Congress,
or employment in the Government or any a comprehensive report on the conduct of
subdivision, agency or instrumentality each election, plebiscite, initiative,
thereof including GOCCs or their referendum, or recall.
subsidiaries. [Art. IX-B, Sec. 7(2)]

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Power to declare failure of election – The however, bears a clear and reasonable
COMELEC may exercise such power motu connection with the objective set out in the
proprio or upon a verified petition, and the Constitution. For it is precisely in the
hearing of the case shall be summary in unlimited purchase of print space and radio
nature. [Sison v. COMELEC, G.R. No. and television time that the resources of
134096, March 3, 1999] the financially affluent candidates are likely
to make a crucial difference. The purpose is
(4) Decide administrative questions pertaining to ensure "equal opportunity, time, and
to election except the right to vote (the space, and the right to reply," as well as
jurisdiction of which is with the judiciary). uniform and reasonable rates of charges
(5) File petitions in court for inclusion or for the use of such media facilities, in
exclusion of voters. connection with "public information
(6) Investigate and prosecute cases of campaigns and forums among
violations of election laws. candidates." [National Press Club v.
The COMELEC has exclusive jurisdiction Comelec (1992)]
to investigate and prosecute cases for
violations of election laws. [De Jesus v. Note: This power may be exercised only
People, 120 SCRA 760] over the media, not over practitioners of
Thus, the trial court was in error when it media. Thus, a COMELEC resolution
dismissed an information filed by the prohibiting radio and TV commentators
Election Supervisor because the latter and newspaper columnists from
failed to comply with the order of the Court commenting on the issues involved in the
to secure the concurrence of the Prosecutor. forthcoming plebiscite for the ratification of
[People v. Inting, 187 SCRA 788]. However, the organic law establishing the CAR was
the COMELEC may validly delegate this held invalid. [Sanidad v. COMELEC, 181
power to the Provincial Fiscal. [People v. SCRA 529]
Judge Basilia 179 SCRA 87]
(7) Recommend pardon, amnesty, parole or (12) Decide election cases
suspension of sentence of election law The Commission on Elections may sit en
violators. banc or in two divisions, and shall
(8) Deputize law enforcement agencies and promulgate its rules of procedure in order
instrumentalities of the Government for the to expedite disposition of election cases,
exclusive purpose of ensuring free, orderly, including pre-proclamation controversies.
honest, peaceful, and credible elections. All such election cases shall be heard and
(9) Recommend to the President the removal decided in division, provided that motions
of any officer or employee it has deputized for reconsideration of decisions shall be
for violation or disregard of, or decided by the Commission en banc.[Art.
disobedience to its directive. IX—C, Sec. 3]
(10) Registration of political parties, Cases which must be heard by division
organizations and coalitions and (1) All election cases, including pre-
accreditation of citizens’ arms. proclamation contests originally
(11) Regulation of public utilities and media of cognizable by the Commission in the
information. The law limits the right of free exercise of its powers under Sec. 2(2), Art
speech and of access to mass media of the IX-C.
candidates themselves. The limitation

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(2) Jurisdiction over a petition to cancel a Government, which are required by


certificate of candidacy. law or the granting institution to
(3) Even cases appealed from the RTC or MTC submit such audit as a condition of
have to be heard and decided in division subsidy or equity.
before they may be heard en banc.
(2) Exclusive Authority to
If the COMELEC exercises its quasi-judicial (a) Define the scope of its audit and
functions then the case must be heard through examination;
a division. Upon motion for reconsideration of a (b) Establish techniques and methods
decision, the case is heard en banc. [Manzala v. required ;
COMELEC (2007)] (c) Promulgate accounting and auditing
rules and regulations.
If the COMELEC exercises its administrative
functions then it must act en banc. [Bautista v. Note: Art. IX-D, Sec. 3. No law shall be passed
COMELEC, 414 SCRA 299 (2003)] exempting any entity of the Government or its
subsidiaries in any guise whatever, or any
Composition: A Chairman and 6 Commissioners. investment of public funds, from the jurisdiction
of the Commission on Audit.
Qualifications:
(1) Must be natural-born citizens; Composition: A Chairman and 2 Commissioners
(2) At least 35 years of age;
(3) Holders of a college degree; Qualifications:
(4) Have not been candidates in the (1) Natural born Filipino citizens
immediately preceding election; (2) At least 35 years of age
(5) Majority, including the Chairman, must be (3) CPAs with not less than 10 years of
members of the Philippine Bar who have auditing experience OR members of the
been engaged in the practice of law for at Philippine bar with at least 10 years
least 10 years. [Art. IX-C, Sec. 1] practice of law

B.3. COMMISSION ON AUDIT Note: At no time shall all members belong to


Powers and Functions the same profession.
(1) Examine, audit, and settle accounts
pertaining to government funds or property: C. PROHIBITED OFFICES AND
its revenue, receipts, expenditures, and uses INTERESTS
No member of the Constitutional Commissions
Post-audit basis: shall, during their tenure:
(a) Constitutional bodies, commissions (1) Hold any other office or employment. This is
and offices; similar to the prohibition against executive
(b) Autonomous state colleges and officers. It applies to both public and
universities; private offices and employment.
(c) GOCCs with no original charters (2) Engage in the practice of any profession.
and their subsidiaries; (3) Engage in the active management or
(d) Non-governmental entities control of any business which in any way
receiving subsidy or equity, directly may be affected by the functions of his
or indirectly, from or through the office.

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(4) Be financially interested, directly or D.2. COMMISSION ON ELECTIONS


indirectly, in any contract with, or in any The Constitution vested upon the COMELEC
franchise or privilege granted by, the judicial powers to decide all contests relating to
Government, its subdivisions, agencies or elective local officials as therein provided.
instrumentalities, including GOCCs or their [Garcia v. De Jesus, 206 SCRA 779 (1992)]
subsidiaries. [Art. IX-A, Sec. 2] Exclusive: All contests relating to the elections,
returns and qualifications of all elective regional,
D. JURISDICTION provincial, and city officials.
D.1. CIVIL SERVICE COMMISSION
The CSC has been granted by the Constitution Jurisdiction over intra-party disputes: The
and the Administrative Code jurisdiction over all COMELEC has jurisdiction over cases pertaining
civil service positions in the government service, to party leadership and the nomination of party-
whether career or non-career. The specific list representatives. The COMELEC’s powers
jurisdiction, as spelled out in the CSC Revised and functions under the Constitution, "include
Uniform Rules on Administrative Cases in the the ascertainment of the identity of the political
Civil Service, did not depart from the general party and its legitimate officers responsible for
jurisdiction granted to it by law. [Civil Service its acts." The power to register political parties
Commission v. Sojor, 554 SCRA 160 (2008); see necessarily involves the determination of the
CSC Resolution No. 991936 detailing the persons who must act on its behalf. Thus, the
disciplinary and non-disciplinary jurisdiction] COMELEC may resolve an intra-party
leadership dispute, in a proper case brought
The Board of Regents (BOR) of a state before it, as an incident of its power to register
university has the sole power of administration political parties. [Lokin v. COMELEC (2012)]
over the university. But although the BOR of
NORSU is given the specific power under its Appellate: All contests involving elected
charter to discipline its employees and officials, municipal officials decided by trial courts of
there is no showing that such power is exclusive. general jurisdiction, or involving elective
The CSC has concurrent jurisdiction over a barangay officials decided by a court of limited
president of a state university. [CSC v. Sojor, jurisdiction. [Garcia, supra]
supra]
Jurisdiction to issue writs of certiorari: The
Appellate Jurisdiction COMELEC may issue a writ of certiorari in aid of
The appellate power of the CSC will only apply its appellate jurisdiction. Interpreting the
when the subject of the administrative cases phrase "in aid of its appellate jurisdiction,” if a
filed against erring employees is in connection case may be appealed to a particular court or
with the duties and functions of their office, and judicial tribunal or body, then said court or
not in cases where the acts of complainant judicial tribunal or body has jurisdiction to issue
arose from cheating in the civil service the extraordinary writ of certiorari, in aid of its
examinations.[Cruz v. CSC, 370 SCRA 650 appellate jurisdiction. [Bulilis v. Nuez (2011)]
(2001)]
D.3. COMMISSION ON AUDIT
Art. IX-D, Sec. 1. The Commission on Audit shall
have the power, authority, and duty to
examine, audit, and settle all accounts
pertaining to the revenue and receipts of, and

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expenditures or uses of funds and property, Primary Jurisdiction over Money Claims
owned or held in trust by, or pertaining to the Limited to liquidated claims: The COA has
Government, or any of its subdivisions, primary jurisdiction to pass upon a private
agencies, or instrumentalities, including entity’s money claims against a provincial gov’t.
government-owned and controlled However, the scope of the COA’s authority to
corporations with original charters, and on a take cognizance of claims is circumscribed by
post-audit basis: cases holding statutes of similar import to
mean only liquidated claims, or those
(a) Constitutional bodies, commissions and determined or readily determinable from
officers that have been granted fiscal vouchers, invoices, and such other papers within
autonomy under the Constitution; reach of accounting officers. [Euro-Med
Laboratories, Phil. Inc. v. Province of Batangas
LGUs, though granted local fiscal (2006)]
autonomy, are still within the audit
jurisdiction of the COA. [Veloso v. COA No jurisdiction over their validity or
[2011)] constitutionality: The jurisdiction of the COA
over money claims against the government
(b) Autonomous state colleges and does not include the power to rule on the
universities; constitutionality or validity of laws. [Parreño v
(c) Other government-owned or controlled COA (2007)]
corporations and their subsidiaries; and
E. REVIEW OF FINAL ORDERS,
The Boy Scouts of the Philippines (BSP) is RESOLUTIONS, AND DECISIONS
a public corporation and its funds are
E.1. RENDERED IN EXERCISE OF QUASI-
subject to the COA’s audit jurisdiction.
JUDICIAL FUNCTIONS
(Boy Scouts of the Philippines v. COA, 651
SCRA 146 [2011]) Art. IX-A, Sec. 7. Each Commission shall decide
by a majority vote of all its Members, any case or
(d) Such non-governmental entities receiving matter brought before it within sixty days from
subsidy or equity, directly or indirectly, the date of its submission for decision or
from or through the government, which resolution. A case or matter is deemed
are required by law or the granting submitted for decision or resolution upon the
institution to submit to such audit as a filing of the last pleading, brief, or
condition of subsidy or equity. [Phil. memorandum required by the rules of the
Society for the Prevention of Cruelty of Commission or by the Commission itself. Unless
Animals v. COA, G.R. 169752, Sept. 25, otherwise provided by this Constitution or by
2007] law, any decision, order, or ruling of each
Commission may be brought to the Supreme
The Constitution formally embodies the Court on certiorari by the aggrieved party within
long established rule that private entities thirty days from receipt of a copy thereof.
who handle government funds or
subsidies in trust may be examined or Decisions
audited in their handling of said funds by Each Commission shall decide by a majority
government auditors. [Blue Bar Coconut vote of all its members (NOT only those who
Philippines, Inc. v. Tantuico (1988)] participated in the deliberations) any case or

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matter brought before it within 60 days from E.2. RENDERED IN THE EXERCISE OF
the date of its submission for decision or ADMINISTRATIVE FUNCTIONS
resolution. [Art. IX-A, Sec. 7] Each Commission shall appoint its own officials
in accordance with law [Art. IX-A, Sec. 4]
Any decision, order or ruling of each Commission
may be brought to the SC on certiorari by the Each Commission En Banc may promulgate its
aggrieved party within 30 days from receipt of own rules concerning pleadings and practices
the copy thereof. before it [Art. IX-A, Sec.6]

In resolving cases brought before it on appeal, But these rules shall not diminish, increase or
respondent COA is not required to limit its modify substantive rights
review only to the grounds relied upon by a
government agency’s auditor with respect to Each Commission shall perform such other
disallowing certain disbursements of public functions as may be provided by law [Art. IX-A,
funds. Such would render COA’s vital Sec. 8]
constitutional power unduly limited and thereby
useless and ineffective. [Yap v COA [2010)]

Certiorari jurisdiction of the Supreme Court:


Limited to decisions rendered in actions or
proceedings taken cognizance of by the
Commissions in the exercise of their quasi-
judicial powers.

The Court exercises extraordinary jurisdiction,


thus, the proceeding is limited only to issues
involving grave abuse of discretion resulting in
lack or excess of jurisdiction, and does not
ordinarily empower the Court to review the
factual findings of the Commission.[Aratuc v.
COMELEC, (1999)]

Synthesis on the Rules of Modes of Review


(1) Decisions, order or ruling of the
Commissions in the exercise of their quasi-
judicial functions may be reviewed by the
Supreme Court.
(2) The mode of review is a petition for
certiorari under Rule 64 (not Rule 65).
(3) Exception: The Rules of Civil Procedure,
however, provides for a different legal route
in the case of the Civil Service Commission.
In the case of CSC, Rule 43 will be applied,
and the case will be brought to the Court of
Appeals.

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VII. Citizenship (2) Those born in the Philippine Islands of


foreign parents who, before the adoption of
A. WHO ARE FILIPINO CITIZENS this Constitution, had been elected to
Who are citizens? [Const., Art. IV, Sec. 1] public office in the Philippine Islands;
(a) Citizens of the Philippines at the time of the (3) Those whose mothers are citizens of the
adoption of this Constitution; Philippines and, upon reaching the age of
(b) Those whose fathers OR mothers are majority, elect Philippine citizenship;
citizens of the Philippines; (4) Those who are naturalized in accordance
(c) Those who elected to be citizens. This is with law. [Art. IV, Sec. 1]
available only to:
(1) those born before Jan 17, 1973; The following persons were citizens of the
(2) to Filipino mothers; AND Philippines on May 14, 1935 – the date of the
(3) elect Philippine citizenship upon adoption of the 1935 Constitution:
reaching the age of majority (1) Persons born in the Philippine Islands who
(d) Those naturalized in accordance with law. resided therein on April 11, 1899 and were
Spanish subjects on that date, unless they
Art. IV, Section 1 (3), Constitution is also had lost their Philippine citizenship on or
applicable to those who are born to Filipino before May 14, 1935.
mothers and elected Philippine citizenship (2) Natives of the Spanish Peninsula who
before February 2, 1987.This is to correct the resided in the Philippines on April 11, 1899,
anomalous situation where one born of a and who did not declare their intention of
Filipino father and an alien mother was preserving their Spanish nationality
automatically granted the status of a natural- between that date and October 11, 1900,
born citizen, while one born of a Filipino mother unless they had lost their Philippine
and an alien father would still have to elect citizenship on or before May 14, 1935.
Philippine citizenship. [Co v. House Electoral (3) Naturalized citizens of Spain who resided
Tribunal (1991)] in the Philippines on April 11, 1899, and did
not declare their intention to preserve their
Q: Who were the citizens of the Philippines at the Spanish nationality within the prescribed
time of the adoption of the 1987 Constitution? period (up to October 11, 1900).
A: Citizens under the 1973 Constitution (4) Children born of (1), (2) and (3) subsequent
(1) Those who are citizens of the Philippines to April 11, 1899, unless they lost their
at the time of the adoption of this Philippine citizenship on or before May 14,
Constitution; 1935.
(2) Those whose fathers or mothers are (5) Persons who became naturalized citizens
citizens of the Philippines; of the Philippines in accordance with
(3) Those who elect Philippine citizenship naturalization law since its enactment on
pursuant to the provisions of the March 26, 1920.
Constitution of 1935; and
(4) Those who are naturalized in accordance
with law. [Const. (1973), Art. III, Sec.1(1)]

Citizens under the 1935 Constitution


(1) Those who are citizens at the time of the
adoption of this Constitution;

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B. MODES OF ACQUIRING school curriculum, during the entire period


CITIZENSHIP of the residence in the Philippines required
of him;
Generally, two modes of acquiring citizenship:
(1) By Birth Special Qualifications [C.A. 473, Sec. 3] – ANY
(a) Jus Soli - “right of soil;” person’s will result to reduction of 10-year period to 5
nationality is based on place of birth; years
formerly effective in the Philippines, (1) Having honorably held office under the
see Roa v. Collector of Customs (1912) Government of the Philippines or under
(b) Jus Sanguinis – “right of blood;” that of any of the provinces, cities,
person’s nationality follows that of his municipalities, or political subdivisions
natural parents. The Philippines thereof;
currently adheres to this principle. (2) Established a new industry or introduced a
(2) By Naturalization useful invention in the Philippines;
(3) Married to a Filipino woman;
(4) Engaged as a teacher in the Philippines in
C. NATURALIZATION
a public or recognized private school not
C.1. NATURALIZATION established for the exclusive instruction of
Concept children of persons of a particular
Process by which a foreigner is adopted by the nationality or race, in any of the branches
country and clothed with the privileges of a of education or industry for a period of 2
native-born citizen. The applicant must prove years or more;
that he has all of the qualifications and none of (5) Born in the Philippines.
the disqualifications for citizenship.
Disqualifications [C.A. 473, Sec. 4]
Qualifications [C.A. 473, Sec. 2] (1) Persons opposed to organized government
(1) Not less than twenty-one years of age on or affiliated with groups who uphold and
the day of the hearing of the petition; teach doctrines opposing all organized
(2) Resided in the Philippines for a continuous governments;
period of 10 years or more; (2) Persons defending or teaching the
(3) Of good moral character; believes in the necessity or propriety of violence, personal
principles underlying the Philippine assault, or assassination for the success of
Constitution; conducted himself in a proper their ideas;
and irreproachable manner during the (3) Polygamists or believers in polygamy;
entire period of his residence towards the (4) Persons convicted of crimes involving
government and community moral turpitude;
(4) Must own real estate in the Philippines (5) Persons suffering from mental alienation or
worth P5,000 or more OR must have incurable contagious diseases;
lucrative trade, profession, or lawful (6) Persons who during the period of their stay,
occupation; have not mingled socially with the Filipinos,
(5) Able to speak or write English or Spanish or or who have not evinced a sincere desire to
anyone of the principal languages; learn and embrace the customs, traditions,
(6) Enrolled his minor children of school age in and ideals of the Filipinos;
any of the recognized schools where (7) Citizens or subjects of nations with whom
Philippine history, government and civics the Philippines is at war
are taught or prescribed as part of the

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(8) Citizens or subjects of a foreign country Judgment directing the issuance of a certificate
other than the United States, whose laws of naturalization is a mere grant of a political
do not grant Filipinos the right to become privilege and that neither estoppel nor res
naturalized citizens or subject thereof; judicata may be invoked to bar the State from
initiating an action for the cancellation or
C.2. DENATURALIZATION nullification of the certificate of naturalization
Concept thus issued. [Yao Mun Tek v. Republic (1971)]
Process by which grant of citizenship is revoked.
D. DUAL CITIZENSHIP AND DUAL
Grounds [C.A. 473, Sec. 18]– upon the proper ALLEGIANCE
motion of the Sol. Gen. or the provincial fiscal, D.1. DUAL CITIZENSHIP
naturalization may be cancelled when Allows a person who acquires foreign
(1) Naturalization certificate was fraudulently citizenship to simultaneously enjoy the rights he
or illegally obtained [See Po Soon Tek v. previously held as a Filipino citizen.
Republic, 60 SCRA 98 (1974)]
(2) If, within the five years next following the
D.2. DUAL ALLEGIANCE
issuance, he shall return to his native
(1) Aliens who are naturalized as Filipinos but
country or to some foreign country and
remain loyal to their country of origin;
establish his permanent residence there
(2) Public officers who, while serving the
(3) Remaining for more than one year in his
government, seek citizenship in another
native country or the country of his former
country.
nationality, or two years in any other
foreign country, shall be considered as
“Dual citizens” are disqualified from running for
prima facie evidence of his intention of
any elective local position. [Local Government
taking up his permanent residence in the
Code, Sec. 40(d)]; this should be read as
same;
referring to “dual allegiance”
(4) Petition was made on an invalid
declaration of intention;
Once a candidate files his candidacy, he is
(5) Minor children of the person naturalized
deemed to have renounced his foreign
failed to graduate from the schools
citizenship in case of dual citizenship. [Mercado
mentioned in sec. 2, through the fault of
v. Manzano (1999)]
their parents, either by neglecting to
support them or by transferring them to
Clearly, in including sec. 5 in Article IV on
another school or schools.
citizenship, the concern of the Constitutional
(6) If he has allowed himself to be used as a
Commission was not with dual citizens per se
dummy in violation of the Constitutional or
but with naturalized citizens who maintain their
legal provision requiring Philippine
allegiance to their countries of origin even after
citizenship as a requisite for the exercise,
their naturalization. Hence, the phrase “dual
use or enjoyment of a right, franchise or
citizenship” in R.A. No. 7160, sec. 40(d) and in
privilege.
R.A. No. 7854, sec. 20 must be understood as
referring to “dual allegiance.”
Naturalization is never final and may be revoked
if one commits acts of moral turpitude.
Consequently, persons with mere dual
[Republic v. Guy (1982)]
citizenship do not fall under this disqualification.
For candidates with dual citizenship, it should

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suffice if, upon the filing of their certificates of EXPRESS renunciation of his Philippine
candidacy, they elect Philippine citizenship to citizenship. [Aznar v. COMELEC (1995)]
terminate their status as persons with dual
citizenship considering that their condition is E.2. REACQUISITION [NRL]
the unavoidable consequence of conflicting (1) Naturalization [C.A. 63 and C.A. 473]
laws of different states. Now an abbreviated process, no need to
wait for 3 years (1 year for declaration of
E. LOSS AND RE-ACQUISITION intent, and 2 years for the judgment to
become executory)
E.1. GROUNDS [NEO-MADD]
(1) Naturalization in a foreign country [C.A. 63, Requirements: [21/6 GD]
sec.1(1)]; (a) be 21 years of age
(2) Express renunciation or expatriation (b) be a resident for 6 months
[Sec.1(2), CA 63]; (c) have good moral character
(3) Taking an oath of allegiance to another (d) have no disqualification
country upon reaching the age of majority;
(4) Marriage by a Filipino woman to an alien, if (2) Repatriation
by the laws of her husband’s country, she Repatriation results in the recovery of the
becomes a citizen thereof. original nationality. Therefore, if he is a
(5) Accepting a commission and serving in the natural-born citizen before he lost his
armed forces of another country, unless citizenship, he will be restored to his former
there is an offensive/ defensive pact with status as a natural-born Filipino. [Bengson
the country, or it maintains armed forces in III v. HRET (2001)]
RP with RP’s consent;
(6) Denaturalization; Mere filing of certificate of candidacy is not
(7) Being found by final judgment to be a a sufficient act of repatriation. Repatriation
deserter of the AFP; requires an express and equivocal act.
[Frivaldo v. COMELEC (1989)]
General Rule: expatriation is a constitutional
right. No one can be compelled to remain a In the absence of any official action or
Filipino if he does not want to. [Go Gullian v. approval by proper authorities, a mere
Government] application for repatriation does not, and
cannot, amount to an automatic
Exception: A Filipino may not divest himself of reacquisition of the applicant’s Philippine
Philippine citizenship in any manner while the citizenship. [Labo v. COMELEC (1989)]
Republic of the Philippines is at war with any
country. [C.A. 63, sec. 1(3)] (3) Legislative Act
Both a mode of acquiring and reacquiring
Loss of Philippine citizenship cannot be citizenship
presumed. Considering the fact that admittedly,
Osmeña was both a Filipino and an American,
the mere fact that he has a certificate stating
that he is an American does not mean that he is
not still a Filipino, since there has been NO

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RA 9225 (citizenship retention and re- citizenship before any public officer
acquisition act of 2003) authorized to administer an oath;
Sec. 3. Retention of Philippine Citizenship. — Any (3) Those appointed to any public office shall
provision of law to the contrary subscribe and swear to an oath of
notwithstanding, natural-born citizens of the allegiance to the Republic of the
Philippines who have lost their Philippine Philippines and its duly constituted
citizenship by reason of their naturalization as authorities prior to their assumption of
citizens of a foreign country are hereby deemed office: provided, that they renounce their
to have re-acquired Philippine citizenship upon oath of allegiance to the country where
taking the following oath of allegiance to the they took that oath;
Republic: xxx (4) Those intending to practice their profession
in the Philippines shall apply with the
Natural-born citizens of the Philippines who, proper authority for a license or permit to
after the effectivity of this Act, become citizens engage in such practice; and
of a foreign country shall retain their Philippine (5) That right to vote or be elected or
citizenship upon taking the aforesaid oath. appointed to any public office in the
Philippines cannot be exercised by, or
Sec. 4 Derivative Citizenship. — The unmarried extended to, those who:
child, whether legitimate, illegitimate or (a) are candidates for or are occupying any
adopted, below eighteen (18) years of age, of public office in the country of which they are
those who re-acquire Philippine citizenship naturalized citizens; and/or
upon effectivity of this Act shall be deemed (b) are in active service as commissioned or
citizens of the Philippines. non-commissioned officers in the armed forces
of the country which they are naturalized
Sec. 5. Civil and Political Rights and Liabilities. — citizens.
Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil F. NATURAL-BORN CITIZENS AND
and political rights and be subject to all PUBLIC OFFICE
attendant liabilities and responsibilities under
existing laws of the Philippines and the
F.1 NATURAL-BORN CITIZENS
following conditions:
(1) Citizens of the Philippines from birth
(1) Those intending to exercise their right of
without having to perform any act to
suffrage must meet the requirements
acquire or perfect their Philippine
under Sec. 1, Art. V of the Constitution, RA
citizenship; and
9189, otherwise known as "The Overseas
(2) Those who elect Philippine citizenship in
Absentee Voting Act of 2003" and other
accordance with [Art. IV, Sec. 1(3)]
existing laws;
(2) Those seeking elective public office in the
The term "natural-born citizens," is defined to
Philippines shall meet the qualifications for
include "those who are citizens of the
holding such public office as required by
Philippines from birth without having to
the Constitution and existing laws and, at
perform any act to acquire or perfect their
the time of the filing of the certificate of
Philippine citizenship." [Tecson v. COMELEC
candidacy, make a personal and sworn
(2004)]
renunciation of any and all foreign

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F.2. WHO MUST BE NATURAL-BORN?


(1) President [Art. VII, Sec. 2]
VIII. National Economy
(2) Vice-President [Art. VII, Sec. 3] and Patrimony
(3) Members of Congress [Sec. 3 and 6, Art. VI]
Goals
(4) Justices of SC and lower collegiate courts
(1) More equitable distribution of
[Sec. 7(1), Art. VIII]
opportunities, income and wealth
(5) Ombudsman and his deputies [Sec. 8, Art.
(2) Sustained increase in amount of goods and
XI]
services produced by the nation for the
(6) Members of Constitutional Commissions
benefit of the people
(7) CSC [Art. IX-B, Sec. 1(1)]
(3) Expanding production as the key to raising
(8) COMELEC [Art. IX-C, Sec.1]
the quality of life for all, especially the
(9) COA [Art. IX-D, Sec. 1(1)]
underprivileged.
(10) Members of the central monetary authority
[Art. XII, Sec. 20]
(11) Members of the Commission on Human A. REGALIAN DOCTRINE
Rights [Art. XIII, Sec. 17(2)]
Art. XII, Sec. 2. All lands of the public domain,
The Constitutional provision (i.e. “whose fathers waters, minerals, coal, petroleum, and other
are citizens”) does not distinguish between mineral oils, all forces of potential energy,
“legitimate” or “illegitimate” paternity. Civil fisheries, forests or timber, wildlife, flora and
Code provisions on illegitimacy govern private fauna, and other natural resources are owned
and personal relations, not one’s political status. by the State. With the exception of agricultural
[Tecson v. COMELEC, supra, on the petition for lands, all other natural resources shall not be
disqualification against presidential candidate alienated.
FPJ]
The classification of public lands is an exclusive
prerogative of the Executive Department
through the Office of the President. [Republic v.
Register of Deeds of Quezon (1994)]

A.1. DOCTRINE OF NATIVE TITLE


Ownership over native land is already vested on
natives even if they do not have formal titles
[Cariño v. Insular Government, 212 U.S. 449
(1909)]

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B. NATIONALIST AND CITIZENSHIP Filipino


Filipino Filipino
REQUIREMENT PROVISIONS Citizens, or
Citizens, or Citizens, or 60-
70-30
100% Filipino 40 Filipino
Filipino Filipino
Filipino Filipino Corporations Corporations
Citizens, or Corporations
Citizens, or Citizens, or 60- Sec. 14(2)] prescribe a
70-30
100% Filipino 40 Filipino higher
Filipino
Corporations Corporations percentage)
Corporations
Use and Co-production, Engagement [Art. XII, Sec.
enjoyment of Joint venture, in 10]
marine and Production advertising Small-scale Operation of
wealth, sharing Industry utilization of public utilities
exclusive to agreements [Art. XVI, natural [Art. XII, Sec. 11]
Filipino over natural Sec. 11] resources, as o Cannot be
citizens [Art. resources may be for longer
XII, Sec. 2, par. [Art. XII, Sec. provided by period than 50
2] 2(1)] law [Art. XII, years
Sec. 2(3)] o Executive
Agreements and managing
shall not officers must
exceed a period be Filipino
of 25 years
renewable for N.B. The Const. holds that private corporations
another 25 or associations may not hold alienable lands of
years. the public domain except by lease, for a period
Rules on Educational not exceeding 25 years, renewable for not more
agricultural Institutions than 25 years, and not to exceed 1000 ha. in
lands [Art. XIV, Sec. area, [Art. XII, Sec. 3] but the Const. does not
(Art. XII, Sec. 4(2)] specify the capital requirements for such
3) corporations.
Congress may
(1) Citizens increase A public utility is a business or service engaged
may lease only Filipino equity in regularly supplying the public with some
< 500 ha. participation. commodity or service of public consequence. A
(2) Citizens joint venture falls within the purview of an
may acquire “association” pursuant to Sec. 11, Art. XII and
by purchase, must comply with the 60%-40% Filipino-
homestead or foreign capitalization requirement. [JG Summit
grant only < 12 Holdings v. CA (2001)]
ha.
Practice of Areas of What “capital” is covered- the 60% requirement
professions, Investment as applies to both the voting control and the
save in cases Congress may beneficial ownership of the public utility.
provided by prescribe Therefore, it shall apply uniformly, separately,
law [Art. XII, (Congress may and across the board to all classes of shares,

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regardless of nomenclature or category, for its operation. [Manila Prince Hotel v. GSIS,
comprising the capital of the corporation. (e.g. (1990)]
60% of common stock, 60% of preferred voting The Constitution does not impose a policy of
stock, and 60% of preferred non-voting stock.) Filipino monopoly of the economic environment.
[Gamboa v. Teves, G.R. No. 176579, October 9, It does not rule out the entry of foreign
2012] investments, goods, and services. While it does
not encourage their unlimited entry into the
Interpretation in line with Constitution’s intent country, it does not prohibit them either. In fact,
to ensure a “self-reliant and independent it allows an exchange on the basis of equality
national economy effectively-controlled by and reciprocity, frowning only on foreign
Filipinos.”(See Gamboa v. Teves, supra, June 28, competition that is unfair. The key, as in all
2011) economies in the world, is to strike a balance
between protecting local businesses and
In the original decision, only the voting stocks allowing the entry of foreign investments and
were subject to the 60% requirement. [Id.] services. [Tañada v. Angara (1997)]

There is some controversy in the interpretation Art. XII, Sec. 12. The State shall promote the
of the resolution on the motion for preferential use of Filipino labor, domestic
reconsideration. (a) There is the question of materials and locally produced goods, and
whether the grandfather rule should be applied. adopt measures that help make them
(b)The dispositive merely denied the MRs, but competitive.
did not reiterate the newer interpretation.
C. EXPLORATION, DEVELOPMENT,
In any case, the released SEC guidelines comply
AND UTILIZATION OF NATURAL
with the strictest interpretation of Gamboa v.
Teves. RESOURCES

B.1. FILIPINO FIRST Art. XII, Sec. 2, par. 4. The President may enter
Art. XII, Sec. 10. In the grant of rights, privileges, into agreements with foreign-owned
and concessions covering the national economy corporations involving either technical or
and patrimony, the State shall give preference financial assistance for large-scale exploration,
to qualified Filipinos. development, and utilization of minerals,
petroleum, and other mineral oils according to
The State shall regulate and exercise authority the general terms and conditions provided by
over foreign investments within its national law, based on real contributions to the
jurisdiction and in accordance with its national economic growth and general welfare of the
goals and priorities. country. In such agreements, the State shall
promote the development and use of local
scientific and technical resources.
The term “patrimony” pertains to heritage, and
given the history of the Manila Hotel, it has
become a part of our national economy and The State, being the owner of the natural
patrimony. Thus, the Filipino First policy resources, is accorded the primary power and
provision of the Constitution is applicable. Such responsibility in the exploration, development
provision is per se enforceable, and requires no and utilization thereof. As such it may
further guidelines or implementing rules or laws undertake these activities through four modes:

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(1) The State may directly undertake such FTAA SERVICE CONTRACT
activities; (1987 Const.) (1973 Const.)
(2) The State may enter into co-production, or directly manages the
joint venture or production-sharing productive enterprise,
agreements with Filipino citizens or operations of the exploration
qualified corporations; and exploitation of the
(3) Congress may, by law, allow small-scale resources or the disposition of
utilization of natural resources by Filipino marketing or resources
citizens; or
(4) For the large-scale exploration, Service Contracts not prohibited.
development and utilization of minerals, Even supposing FTAAs are service contracts,
petroleum and other mineral oils, the the latter are not prohibited under the
President may enter into agreements with Constitution. [Justification: A verba legis
foreign-owned corporations involving interpretation does not support an intended
technical or financial assistance. [La Bugal- prohibition. The members of the CONCOM used
B’Laan Tribal Assn. v. Ramos (Jan. 2004)] the terms “service contracts” and “financial and
technical assistance” interchangeably.] [La
FTAA SERVICE CONTRACT Bugal-B’laan Tribal Assn. v. Ramos, (Dec. 2004)]
(1987 Const.) (1973 Const.)
Parties The following are valid:
Only the A Filipino citizen, corporation (1) Financial and Technical Assistance
President (in or association with a “foreign Agreements (FTAA)– not a prohibited
behalf of the person or entity” agreement in the contemplation of the
State), and only Constitution
with (2) Philippine Mining Law (RA 7942)
corporations (3) Its Implementing Rules and Regulations,
Size of Activities insofar as they relate to financial and
technical agreements [La Bugal-B’laan
Only large-scale Contractor provides all
Tribal Assn. v. Ramos (Dec. 2004)]
exploration, necessary services and
development technology and the requisite
The Constitution should be construed to grant
and utilization financing, performs the
the President and Congress sufficient discretion
exploration work obligations,
and reasonable leeway to enable them to
and assumes all exploration
attract foreign investments and expertise, as
risks
well as to secure for our people and our
Natural Resources Covered
posterity the blessings of prosperity and peace.
Minerals, Virtually the entire range of
petroleum and the country’s natural It is not unconstitutional to allow a wide degree
other mineral resources of discretion to the Chief Executive, given the
oils nature and complexity of such agreements, the
Scope of Agreements humongous amounts of capital and financing
Involving either Contractor provides financial required for large-scale mining operations, the
financial or or technical resources, complicated technology needed, and the
technical undertakes the exploitation or intricacies of international trade, coupled with
assistance production of a given resource, the State’s need to maintain flexibility in its

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dealings, in order to preserve and enhance our E. ACQUISITION, OWNERSHIP, AND


country’s competitiveness in world markets.[La TRANSFER OF PUBLIC AND PRIVATE
Bugal-B’laan Tribal Assn. v. Ramos]
LANDS
D. FRANCHISES, AUTHORITY AND Lands of the Public Domain are classified into:
CERTIFICATES FOR PUBLIC UTILITIES (1) Agricultural Lands
(2) Forest or Timber Lands
Franchise, certificate or any other form of (3) Mineral Lands
authorization for the operation of public utilities (4) National Park [Art. XII, Sec. 3]
– ONLY to citizens of the Philippines, or
corporations at least 60% of whose capital is Note: The classification of public lands is a
Filipino-owned. [Art. VII, Sec. 11] function of the executive branch, specifically the
Director of the Land Management Bureau
D.1. NATURE OF A FRANCHISE (formerly Director of Lands). The decision of the
(1) It is a privilege not a right Director, when approved by the Secretary of the
(2) Shall NOT be exclusive; DENR, as to questions of fact, is conclusive
(3) Shall NOT be for a period of more than 50 upon the courts. [Republic v. Imperial, G.R. No.
years; 130906, February 11, 1999].
(4) Shall be subject to amendment, alteration
or repeal by Congress. [Id.] Alienable lands of the public domain shall be
limited to agricultural lands. [Art. XII, Sec. 3]
Jurisprudence:
(1) Congress does not have the exclusive To prove that the land subject of an application
power to issue franchises. Administrative for registration is alienable, an applicant must
bodies (i.e. LTFRB, Energy Regulatory conclusively establish the existence of a positive
Board) may be empowered by law to do so. act of the government such as a presidential
[Albano v. Reyes, 175 SCRA 264] proclamation or an executive order or a
(2) What constitutes a public utility is not the legislative act or statute. [Republic v.
ownership but the use to the public. The Candymaker, Inc. G.R. No. 163766, June 22,
Constitution requires a franchise for the 2006]
operation of public utilities. However, it
does not require a franchise before one can Foreshore land is that part of the land which is
own the facilities needed to operate a between the high and low water, and left dry by
public utility so long as it does not operate the flux and reflux of the tides. It is part of the
them to serve the public. [Tatad v. Garcia] alienable land of the public domain and may be
E.g. X Company may own an airline without disposed of only by lease and not otherwise.
the need of a franchise. But in operating an [Republic v. Imperial, supra]
air transport business, franchise is required.
Private corporations or associations may not
hold such alienable lands of public domain
except by lease, for a period not exceeding 25
years, and not to exceed 1000 hectares in area.

Citizens of the Philippines may lease not more


than 500 ha., or acquire not more than 12

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hectares thereof by purchase, homestead, or ownership of the land is legally separated from
grant. [Art. XII, Sec. 3] the unit itself. The land is owned by a
Condominium Corporation and the unit owner is
Private lands simply a member in this Condominium
General Rule: No private lands shall be Corporation. As long as 60% of the members of
transferred or conveyed except to individuals, this Condominium Corporation are Filipinos, the
corporations, or associations qualified to remaining members can be foreigners. [Hulst v.
acquire or hold lands of the public domain. [Art. PR Builders (2008)]
XII, Sec. 7]
F. PRACTICE OF PROFESSIONS
Exceptions:
(1) Hereditary succession (art. XII, sec. 7) Art. XII, Sec. 14The practice of all profession in
(2) A natural-born citizen of the Philippines the Philippines shall be limited to Filipino
who has lost his Philippine citizenship may citizens, save in the case prescribed by law.
be a transferee of private lands, subject to
limitations provided by law. (art. XII, sec. 8) Like the legal profession, the practice of
medicine is not a right but a privilege burdened
Consequence of sale to non-citizens:
with conditions as it directly involves the very
Any sale or transfer in violation of the lives of the people. A fortiori, this power
prohibition is null and void. (Ong Ching Po. V.
includes the power of Congress to prescribe the
CA) When a disqualified foreigner later sells it
qualifications for the practice of professions or
to a qualified owner (e.g. Filipino citizen), the
trades which affect the public welfare, the
defect is cured. The qualified buyer owns the
public health, the public morals, and the public
land.(See Halili v. CA, G.R. No. 113538, March 12, safety; and to regulate or control such
1998)
professions or trades, even to the point of
revoking such right altogether. [Imbong v.
Q: Can a former owner file an action to recover
Ochoa, supra]
the property?
A: Yes. The Court in Philippine Banking Corp. v.
G. ORGANIZATION AND REGULATION
Lui She, (21 SCRA 52) abandoned the
application of the principle of in pari delicto. OF CORPORATIONS, PRIVATE AND
Thus, the action will lie. PUBLIC (STEWARDSHIP CONCEPT)

HOWEVER, land sold to an alien which was Art. XII, Sec. 6. The use of property bears a social
later transferred to a Filipino citizen OR when function, and all economic agents shall
the alien later becomes a Filipino citizen can no contribute to the common good.
longer be recovered by the vendor, because Individuals and private groups, including
there is no longer any public policy involved. corporations, cooperatives, and similar
[Republic v. IAC, 175 SCRA 398] collective organizations, shall have the right to
own, establish, and operate economic
Foreigners are allowed to own condominium enterprises, subject to the duty of the State to
units and shares in condominium corporations promote distributive justice and to intervene
up to not more than 40% of the total and when the common good so demands.
outstanding capital stock of a Filipino-owned or
controlled corporation. Under this set up, the

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Art. XIII, Sec. 6The State shall apply the Contracts requiring exclusivity are not per se
principles of agrarian reform or stewardship, void. Each contract must be viewed vis-à-vis all
whenever applicable in accordance with law, in the circumstances surrounding such agreement
the disposition or utilization of other natural in deciding whether a restrictive practice should
resources, including lands of the public domain be prohibited as imposing an unreasonable
under lease or concession suitable to restraint on competition. Restrictions upon
agriculture, subject to prior rights, homestead trade may be upheld when not contrary to
rights of small settlers, and the rights of public welfare and not greater than is necessary
indigenous communities to their ancestral to afford a fair and reasonable protection to the
lands. party in whose favor it is imposed. [Avon v. Luna
(2006)]
H. MONOPOLIES, RESTRAINT OF
H.2. CENTRAL MONETARY AUTHORITY
TRADE AND UNFAIR COMPETITION [Art. XII, Sec. 20]
Functions:
H.1. MONOPOLIES (1) Provide policy directions in the areas of
The State shall regulate or prohibit monopolies money, banking, and credit;
when the public interest so requires. No (2) Supervise the operations of banks;
combinations in restraint of trade or unfair (3) Exercise such regulatory powers as may be
competition shall be allowed. [Art. XII, Sec. 19] provided by law over the operations of
finance companies and other institutions
Although the Constitution enshrines free performing similar functions
enterprise as a policy, it nevertheless reserves to
the Government the power to intervene Qualifications of the Governors:
whenever necessary for the promotion of the (1) Natural-born Filipino;
general welfare. [Philippine Coconut Dessicators (2) Known probity, integrity and patriotism;
v. PCA (1998)] (3) Majority shall come from the private sector
Subject to such other qualifications and
Monopolies are not per se prohibited by the disabilities as may be provided by law
Constitution but may be permitted to exist to
aid the government in carrying on an enterprise Until the Congress otherwise provides, the
or to aid in the performance of various services Central Bank of the Philippines operating under
and functions in the interest of the public. existing laws, shall function as the central
Nonetheless, a determination must first be monetary authority. Currently, the central
made as to whether public interest requires a monetary authority is the Bangko Sentral ng
monopoly. As monopolies are subject to abuses Pilipinas.
that can inflict severe prejudice to the public,
they are subject to a higher level of State
regulation than an ordinary business
undertaking. [Agan, Jr. v. PIATCO (2003)]

An “exclusivity clause” in contracts is allowed.


An “exclusivity clause” is defined as agreements
which prohibit the obligor from engaging in
"business" in competition with the obligee.

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IX. Social Justice and suprema lex. Social justice, therefore, must be
founded on the recognition of the necessity of
Human Rights interdependence among divers and diverse
units of a society and of the protection that
should be equally and evenly extended to all
A. CONCEPT OF SOCIAL JUSTICE groups as a combined force in our social and
economic life, consistent with the fundamental
Art. II, Sec. 10. The State shall promote social and paramount objective of the state of
justice in all phases of national development. promoting the health, comfort, and quiet of all
persons, and of bringing about "the greatest
Art. XIII, Sec. 1. The Congress shall give highest good to the greatest number." [Calalang v.
priority to the enactment of measures that Williams, G.R. 47800, December 2, 1940]
protect and enhance the right of all the people
to human dignity, reduce social, economic, and Social Justice, as the term suggests, should be
political inequalities, and remove cultural used only to correct an injustice. Magkalas
inequities by equitably diffusing wealth and cannot take solace in this provision, considering
political power for the common good. that the NHA’s order of relocating petitioner to
her assigned lot and demolishing her property
To this end, the State shall regulate the on account of her refusal to vacate was
acquisition, ownership, use, and disposition of consistent with the Urban Development and
property and its increments. Housing Act’s fundamental objective of
promoting social justice in the manner that will
inure to the common good. [Magkalas v. NHA
Art. XIII, Sec. 2. The promotion of social justice
(2008)]
shall include the commitment to create
economic opportunities based on freedom of
initiative and self-reliance.
B. COMMISSION ON HUMAN RIGHTS

Social justice is "neither communism, nor Art. XIII, Sec. 17. There is hereby created an
despotism, nor atomism, nor anarchy," but the independent office called the Commission on
humanization of laws and the equalization of Human Rights.
social and economic forces by the State so that
justice in its rational and objectively secular The Commission shall be composed of a
conception may at least be approximated. Chairman and four Members who must be
Social justice means the promotion of the natural-born citizens of the Philippines and a
welfare of all the people, the adoption by the majority of whom shall be members of the Bar.
Government of measures calculated to insure The term of office and other qualifications and
economic stability of all the competent elements disabilities of the Members of the Commission
of society, through the maintenance of a proper shall be provided by law.
economic and social equilibrium in the
interrelations of the members of the community, Until this Commission is constituted, the
constitutionally, through the adoption of existing Presidential Committee on Human
measures legally justifiable, or extra- Rights shall continue to exercise its present
constitutionally, through the exercise of powers functions and powers.
underlying the existence of all governments on
the time-honored principle of salus populi est

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The approved annual appropriations of the As should at once be observed, only the first of
Commission shall be automatically and the enumerated powers and functions bears any
regularly released. resemblance to adjudication or adjudgment.
The Constitution clearly and categorically
Powers and functions grants to the Commission the power to
(1) Investigate, on its own or on complaint by investigate all forms of human rights violations
any party, all forms of human rights involving civil and political rights. But it cannot
violations involving civil and political rights; try and decide cases (or hear and determine
(2) Adopt its operational guidelines and rules causes) as courts of justice, or even quasi-judicial
of procedure, and cite for contempt for bodies do. To investigate is not to adjudicate or
violations thereof in accordance with the adjudge. Whether in the popular or the
Rules of Court; technical sense, these terms have well
(3) Provide appropriate legal measures for the understood and quite distinct meanings. [Cariño
protection of human rights of all persons v. CHR, G.R. No. 96681, December 2, 1991]
within the Philippines, as well as Filipinos
residing abroad, and provide for preventive
measures and legal aid services to the
X. Education, Science,
under-privileged whose human rights have Technology, Arts,
been violated or need protection;
(4) Exercise visitorial powers over jails, prisons, Culture and Sports
or detention facilities;
(5) Establish a continuing program of research, A. RIGHT TO EDUCATION
education, and information to enhance
respect for the primacy of human rights;
PROVISIONS
(6) Recommend to Congress effective [Art. XIV]
measures to promote human rights and to
provide for compensation to victims of Sec. 1. The State shall protect and promote the
violations of human rights, or their families; right of all citizens to quality education at all
(7) Monitor the Philippine Government's levels, and shall take appropriate steps to make
compliance with international treaty such education accessible to all.
obligations on human rights; Sec. 2. The State shall:
(8) Grant immunity from prosecution to any (1) Establish, maintain, and support a
person whose testimony or whose complete, adequate, and integrated
possession of documents or other evidence system of education relevant to the needs
is necessary or convenient to determine the of the people and society;
truth in any investigation conducted by it or (2) Establish and maintain, a system of free
under its authority; public education in the elementary and
(9) Request the assistance of any department, high school levels. Without limiting the
bureau, office, or agency in the natural rights of parents to rear their
performance of its functions; children, elementary education is
(10) Appoint its officers and employees in compulsory for all children of school age;
accordance with law; and (3) Establish and maintain a system of
(11) Perform such other duties and functions as scholarship grants, student loan programs,
may be provided by law. [Art. XIII, Sec. 18] subsidies, and other incentives which shall
be available to deserving students in both

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public and private schools, especially to the Highest budgetary priority to education
under-privileged; The State shall assign the highest budgetary
(4) Encourage non-formal, informal, and priority to education and ensure that teaching
indigenous learning systems, as well as will attract and retain its rightful share of the
self-learning, independent, and out-of- best available talents through adequate
school study programs particularly those remuneration and other means of job
that respond to community needs; and satisfaction and fulfillment. [Art. XIV, Sec. 5 (5)]
(5) Provide adult citizens, the disabled, and
out-of-school youth with training in civics, Allocation of larger share to debt service vis-à-
vocational efficiency, and other skills. vis education is not unconstitutional. –The
DECS already has the highest budgetary
B. ACADEMIC FREEDOM allocation among all department budgets.
Congress can exercise its judgment and power
to appropriate enough funds to reasonably
Art. XIV, Sec. 5 (2). Academic freedom shall be
service debt. Art. XIV, Sec. 5(5) is directive.
enjoyed in all institutions of higher learning.
[Guingona v. Carague (1991)]
Four essential freedoms of a university:
(1) Who may teach
(2) What may be taught
(3) How it shall teach
(4) Who may be admitted to study [Garcia v.
Faculty Admission Committee, 68 SCRA 277
(1975) citing J. Frankfurter, concurring in
Sweezy v. New Hampshire, 354 US 232
(1937)]

Institutional academic freedom includes the


right of the school or college to decide for itself,
its aims and objectives, and how best to attain
them free from outside coercion or interference
save possibly when the overriding public
interest calls for some restraint.

The right to discipline the student likewise finds


basis in the freedom "what to teach." Indeed,
while it is categorically stated under the
Education Act of 1982 that students have a right
"to freely choose their field of study, subject to
existing curricula and to continue their course
therein up to graduation," such right is subject
to the established academic and disciplinary
standards laid down by the academic institution.
[DLSU Inc., v. CA, G.R. No. 127980, December 19,
2007]

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POLITICAL LAW
CONSTITUTIONAL
LAW 2

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I. Fundamental Powers terms to underscore its comprehensiveness to


meet all exigencies and provide enough room
of the State for an efficient and flexible response as the
conditions warrant.” [White Light Corporation v.
City of Manila (2009)]
A. CONCEPT, APPLICATION AND
LIMITS Police Power cannot be bargained away
through treaty or contract. [Ichong v.
A.1 POLICE POWER Hernandez (1957)]
Definition
It is the inherent and plenary power of the Despite the impairment clause, a contract valid
state which enables it to prohibit all that is at the time of its execution may be legally
hurtful to the comfort, safety and welfare of modified or even completely invalidated by a
society. [Ermita-Malate Hotel and Motel subsequent law. If the law is a proper exercise
Operators Association, Inc. v. Mayor of Manila of the police power, it will prevail over the
(1967)] contract. [PNB v. Office of the President (1996)]

Scope and Limitations Taxation, Eminent Domain as Implements of


General Coverage Police Power
"The police power of the State […] is a power Taxation may be used as an implement of
coextensive with self-protection, and is [aptly] police power. [Lutz v. Araneta (1955)]
termed the 'law of overruling necessity.'” [Rubi
v. Provincial Board (1919)] Eminent domain may be used as an implement
to attain the police objective. [Association of
“The state, in order to promote the general Small Landowners v. Secretary of Agrarian
welfare, may interfere with personal liberty, Reform (1989)]
with property, and with business and
occupations. Persons may be subjected to all Specific Coverage
kinds of restraints and burdens, in order to (1) Public Health
secure the general comfort, health and (2) Public Morals
prosperity of the state and to this fundamental (3) Public Safety
aim of our Government, the rights of the (4) Public Welfare
individual are subordinated.” [Ortigas and Co.,
Limited Partnership v. Feati Bank and Trust Co. Test of Reasonability
(1979)] (1) Lawful subject: The interests of the public,
generally, as distinguished from those of a
“Police power […] has been properly particular class, require such interference;
characterized as the most essential, insistent, (2) Lawful means: The means employed are
and the least limitable of powers, extending as reasonably necessary for the
it does to all the great public needs.” [Ermita- accomplishment of the purpose and not
Malate Hotel and Motel Operators Association, unduly oppressive upon individuals.
Inc. v. Mayor of Manila (1967)] [Planters Products v. Fertiphil Corp. (2008)]

“Police power, while incapable of an exact The limit to police power is reasonability. The
definition, has been purposely veiled in general Court looks at the test of reasonability to
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW

decide whether it encroaches on the right of an branded or generic, is valid. [Carlos Superdrug
individual. So long as legitimate means can Corporation v. DSWC et al. (2007)]
reasonably lead to create that end, it is National Security v Property Rights – SC upheld
reasonable. [Morfe v. Mutuc (1968)] the constitutionality of RA 1180 (An Act to
Regulate the Retail Business) which sought to
Legislature’s determination “as to what is a nationalize the retail trade business by
proper exercise of its police powers is not final prohibiting aliens in general from engaging
or conclusive, but is subject to the supervision directly or indirectly in the retail trade. The law
of the court.” [US v. Toribio (1910)] was to “remedy a real actual threat and danger
to national economy posed by alien dominance
However, courts cannot delimit beforehand the and control of the retail business; the
extent or scope of the police power, since they enactment clearly falls within the scope of the
cannot foresee the needs and demands of police power of the State, thru which and by
public interest and welfare. “So it is that which it protects its own personality and
Constitutions do not define the scope or extent insures its security and future.” [Ichong v.
of the police power of the State; what they do Hernandez (1957)]
is to set forth the limitations thereof. The most
important of these are the due process clause Public Safety – Police power is a dynamic
and the equal protection clause.” [Ichong v. agency, suitably vague and far from being
Hernandez (1957)] precisely defined; the principle is the
Constitution did not intend to enable an
The SC upheld the validity of Administrative individual citizen or a group of citizens to
Orders (issued by the DENR Sec.) which unreasonably obstruct the enactment of
converted existing mine leases and other measures calculated to communal peace,
mining agreements into production-sharing safety, good order, and welfare. A heavy
agreements within one year from effectivity. burden lies in the hands of a petitioner who
The subject sought to be governed by the AOs questions the state’s police power if it was
are germane to the object and purpose of E.O. clearly intended to promote public safety.
279 (passed under the Freedom Constitution) [Agustin v. Edu, (1979), on an LOI requiring early
and that mining leases or agreements granted warning devices for all motor vehicle owners]
by the State are subject to alterations through
a reasonable exercise of police power of the Police Power, Property Rights v Fundamental
State. [Miners Association of the Philippines v. Rights - Hotel and motel operators’ association
Factoran (1995)] assailed the constitutionality of Ordinance No.
4760 (regulating motels through fees,
Illustrations on the Exercise of Police Power restrictions on minors, open inspection,
General Welfare v Property rights – RA 9257, logbooks, etc.). Court held: The mantle of
the Expanded Senior Citizens Act of 2003, is a protection associated with the due process
legitimate exercise of police power. guaranty does not cover petitioners. This
Administrative Order No. 177 issued by the particular manifestation of a police power
Department of Health, providing that the 20% measure being specifically aimed to safeguard
discount privilege of senior citizens shall not be public morals is immune from such imputation
limited to the purchase of unbranded generic of nullity resting purely on conjecture and
medicine but shall extend to both prescription unsupported by anything of substance.
and non-prescription medicine, whether

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Where the liberty curtailed affects at the most Who may exercise the power?
rights of property, the permissible scope of (1) Congress;
regulatory measure is wider. [Ermita-Malate (2) By delegation, the President and
Motel and Motel Operators Assn. v. City Mayor administrative bodies [through the Admin.
of Manila (1967)] Code], local government units [through the
Loc. Gov. Code], and even private
However, when legitimate sexual behavior, enterprises performing public services [See
which is constitutionally protected [by the right Tenorio v. Manila Railroad (1912)]
to privacy], and other legitimate activities,
most of which are grounded on the Application
convenience of having a place to stay during When is there taking in the constitutional case?
the short intervals between travels [in motels], When the owner is deprived of his proprietary
will be unduly curtailed by the ordinance, the rights there is taking of private property. It may
same ordinance is invalid. [See White Light include:
Corp. v. City of Manila (2009)] (1) Diminution in value;
(2) Prevention of ordinary use; and
Limitations when police power is delegated: (3) Deprivation of beneficial use.
(1) Express grant by law [e.g. Secs. 16, 391,
447, 458 and 468, R.A. 7160, for LGUs] In Didipio Earth Savers Multipurpose
(2) Limited within its territorial jurisdiction [for Association (DESAMA) v. Gozun (2006),
local government units] examples were (a) trespass without actual
(3) Must not be contrary to law. eviction; (b) material impairment of the value;
(c) prevention of the ordinary uses (e.g.
A.2 EMINENT DOMAIN easement).
Definition and Scope
The power of eminent domain is the inherent But anything taken by virtue of police power is
right of the State to condemn private property not compensable (e.g. abatement of a
to public use upon payment of just nuisance), as usually property condemned
compensation. under police power is noxious [DESAMA v.
Gozun (2006)]
It is well settled that eminent domain is an
inherent power of the State that need not be Examples from Jurisprudence:
granted even by the fundamental law. Sec. 9, (1) The imposition of an aerial easement of
Art. III merely imposes a limit on the right-of-way was held to be taking. The
government’s exercise of this power. [Republic exercise of the power of eminent domain
v.Tagle (1998)] does not always result in the taking or
appropriation of title to the expropriated
The repository of eminent domain powers is property; it may also result in the
legislature, i.e. exercised through the imposition of a burden upon the owner of
enactment of laws. But power may be the condemned property, without loss of
delegated to LGUs and other government title or possession. [NPC v. Gutierrez (1991)]
entities (via charter); still, the delegation must (2) A municipal ordinance prohibiting a
be by law. [Manapat v. CA (2007)] building which would impair the view of
the plaza from the highway was likewise

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considered taking. [People v. Fajardo (2) Might be justified as for public purpose
(1958)] even if the immediate beneficiaries are
private individuals
When the State exercises the power of eminent (3) Tax should not be confiscatory: If a tax
domain in the implementation of its agrarian measure is so unconscionable as to
reform program, the constitutional provision amount to confiscation of property, the
which governs is Section 4, Article XIII of the Court will invalidate it. But invalidating a
Constitution. Notably, this provision also tax measure must be exercised with
imposes upon the State the obligation of utmost caution, otherwise, the State’s
paying the landowner compensation for the power to legislate for the public welfare
land taken, even if it is for the government’s might be seriously curtailed
agrarian reform purposes. [Land Bank of the (4) Taxes should be uniform and equitable
Philippines v. Honeycomb Farms Corporation [Sec. 28(1), Art. VI]
(2012)]
Judicial review for unconscionable and unjust
A.3 TAXATION tax amounting to confiscation of property
Definition and Scope The legislature has discretion to determine the
It is the power by which the State raises nature, object, extent, coverage, and situs of
revenue to defray the necessary expenses of taxation. But where a tax measure becomes so
the Government. It is the enforced proportional unconscionable and unjust as to amount to
contributions from persons and property, confiscation of property, courts will not
levied by the State by virtue of its sovereignty, hesitate to strike it down; the power to tax
for the support of the government and for all cannot override constitutional prescriptions.
public needs. [Tan v. del Rosario, (1994)]

It is as broad as the purpose for which it is Specific Limitations


given. (1) Uniformity of taxation
General Rule: Simply geographical
Purpose: uniformity, meaning it operates with the
(1) To raise revenue same force and effect in every place where
(2) Tool for regulation the subject of it is found
(3) Protection/power to keep alive
Exception: Rule does not prohibit
Tax for special purpose classification for purposes of taxation,
Treated as a special fund and paid out for such provided the requisites for valid
purpose only; when purpose is fulfilled, the classification are met. [Ormoc Sugar v.
balance, if any shall be transferred to the Treasurer of Ormoc (1968)]
general funds of the Government. [Sec. 29 (3),
Art. VI] (2) Tax Exemptions
No law granting any tax exemption shall
Scope and Limitation be passed without the concurrence of a
General Limitations majority of all the Members of Congress
(1) Power to tax exists for the general welfare; [Sec. 28 (4), Art. VI]
should be exercised only for a public
purpose

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There is no vested right in a tax exemption. (2) Lawful Means: Means employed are
Being a mere statutory privilege, a tax reasonably necessary for the
exemption may be modified or withdrawn accomplishment of the purpose, and are
at will by the granting authority. [Republic not unduly oppressive. [Planters Products v.
v. Caguioa (2009)] Fertiphil Corp. (2008)]

Exemptions may either be constitutional or B.2 EMINENT DOMAIN


statutory. Requisites:
(1) If statutory, it has to have been passed by (a) Private property
majority of all the members of Congress (b) Genuine necessity - inherent/presumed in
[Sec. 28 (4), Art. VI] legislation, but when the power is
(2) Constitutional exemptions [Sec. 28(3), Art. delegated (e.g. local government units),
VI] necessity must be proven.
(c) For public use - Court has adopted a broad
Requisite: Exclusive Use definition of “public use,” following the U.S.
(a) Educational institutions (both profit trend
and non-profit used actually, directly (d) Payment of just compensation
and exclusively for educational (e) Due process [Manapat v. CA (2007)]
purposes): Benefits redound to
students, but only applied to property B.3 TAXATION
taxes and not excise taxes Equal protection clause: Taxes should be (a)
(b) Charitable institutions: Religious and uniform (persons or things belonging to the
charitable institutions give same class shall be taxed at the same rate)
considerable assistance to the State in and (b) equitable (taxes should be apportioned
the improvement of the morality of the among the people according to their ability to
people and the care of the indigent and pay)
the handicapped
(c) Religious property: Charitable Progressive system of taxation: The rate
Institutions, churches, and parsonages increases as the tax base increases, with social
or convents appurtenant thereto, justice as basis. (Taxation here is an instrument
mosques, non-profit cemeteries, and for a more equitable distribution of wealth.)
all lands, buildings and improvements,
actually, directly and exclusively used Delegated tax legislation: Congress may
for religious, charitable or educational delegate law-making authority when the
purposes Constitution itself specifically authorizes it.

B. REQUISITES FOR VALID EXERCISE C. SIMILARITIES AND DIFFERENCES

B.1 POLICE POWER Similarities [Nachura]


Tests for Validity of Exercise of Police Power (1) Inherent in the State (Exercised even
(1) Lawful Subject: Interest of the general without need of express constitutional
public (as distinguished from a particular grant)
class required exercise). This means that (2) Necessary and indispensable (State cannot
the activity or property sought to be be effective without them)
regulated affects the general welfare.

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(3) Method by which state interferes with to promote property to revenue


private property general public use
(4) Presuppose equivalent compensation comfort,
(5) Exercised primarily by the legislature health and
prosperity
Differences Exercise of Power
Eminent Only by the May be Only by the
Police Power Taxation
Domain government exercised by government
Compensation private
None Just None entities when
(The compensation (The right is
altruistic (Full and fair protection conferred by
feeling that equivalent of given and law
one has the property public Basis
contributed taken) improvements Self- Life Blood
to the public instituted by preservation Theory
good the State and self-
[Nachura]) because of protection
these taxes
[Nachura]) Note: In the exercise of police power, the
Use of Property deprivation of the use of the property may be
Not Appropriated Use taxing total, but it will not constitute compensable
appropriated for public use power as an taking if nobody else acquires use of the
for public implement for property or any interest therein. [Dipidio Earth-
use the Savers Multipurpose Association v. Gozun, G.R.
attainment of No. 157882, March 30, 2006]
a legitimate
police If regulation is the primary purpose, the fact
objective—to that revenue is incidentally raised does not
regulate a make the imposition a tax. [Gerochi v.
business or Department of Energy (2007)]
trade
Objective License Fee (under police power) versus Tax
Property Earn revenue License Fee Tax
taken for for the Basis
public use; it government Police Power: to Taxation Power: to
is not regulate raise revenue
necessarily Limitation
noxious Amount is limited to: Rate or amount to be
Coverage (a) cost of permit and collected is unlimited,
Liberty and Property Property (b) reasonable police provided not
Property rights only rights only regulation confiscatory
Primary Purpose
To regulate; To devote To raise Exception: When the

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License Fee Tax property would, without doubt, be held to be


license fee is imposed invalid. [Churchill and Tait v. Rafferty (1915)]
on a non-
useful/beneficial Rep. Act No. 7924 does not grant the MMDA
occupation, such as with police power, let alone legislative power,
the practice of and all its functions are administrative in
hygienic and aesthetic nature. [MMDA v. Bel-Air Village Association
massage, the fee may (2000)]
be large without being
a tax. [Physical But the MMDA is duty-bound to
Therapy Organization confiscate/suspend or revoke drivers' licenses
v. Municipal Board of in the exercise of its mandate of transport and
Manila (1957)] traffic management, as well as the
Object administration and implementation of all
traffic enforcement operations, traffic
Paid for the privilege Persons or property
engineering services and traffic education
of doing something
programs. [MMDA v. Garin (2005); Sec. 3(b),
and may be revoked
Rep. Act No. 7924]
when public interest
so requires
D.2 EMINENT DOMAIN
Effect of Non-Payment
The power of the legislature to confer, upon
Business becomes Business or activity
municipal corporations and other entities
illegal does not become
within the State, general authority to exercise
illegal
the right of eminent domain cannot be
questioned by the courts, but that general
D. DELEGATION authority of municipalities or entities must not
be confused with the right to exercise it in
D.1 POLICE POWER particular instances.
Legislature
Police power is lodged primarily in the national The moment the municipal corporation or
legislature. entity attempts to exercise the authority
conferred, it must comply with the conditions
Executive accompanying the authority. The necessity for
By virtue of a valid delegation of legislative conferring the authority upon a municipal
power, it may also be exercised by the corporation to exercise the right of eminent
president, administrative bodies, and domain is admittedly within the power of the
lawmaking bodies of LGUs. [Sec. 16, R.A. 7160] legislature.

[T]his power is limited only by the Acts of A statute or charter or a general law may
Congress and those fundamentals principles confer the right of eminent domain upon a
which lie at the foundation of all republican private entity. [Tenorio v. Manila Railroad Co.
forms of government. An Act of the Legislature (1912)]
which is obviously and undoubtedly foreign to
any of the purposes of the police power and
interferes with the ordinary enjoyment of

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As Exercised By
Congress
As Exercised By
Delegates
II. Private Acts and the
Extent of Power Bill Of Rights
Pervasive and all- Can only be as broad
In General
encompassing as the enabling law
It is a declaration and enumeration of a
and the conferring
person's fundamental civil and political rights.
authorities want it to
It also imposes safeguards against violations
be
by the government, by individuals, or by
Question of Necessity groups of individuals.
Political question Justiciable question.
RTC has to determine “The Bill of Rights governs the relationship
whether there is a between the individual and the state. Its
genuine necessity for concern is not the relation between individuals,
its exercise, as well as between a private individual and other
what the property’s individuals. What the Bill of Rights does is to
value is. declare some forbidden zones in the private
sphere inaccessible to any power holder.”
If not justiciable, there [People v. Marti (1991)]
is grant of special
authority for special It is self-executing. [See Gamboa v. Teves
purpose (2011)]

Re: Private Property Article III contains the chief protection for
Delegate cannot human rights but the body of the Constitution
expropriate private guarantees other rights as well.
property already (1) Civil rights – rights that belong to an
devoted to public use individual by virtue of his citizenship in a
state or community (e.g. rights to property,
D.3 TAXATION marriage, freedom to contract, equal
Power may be exercised by: protection, etc.)
(1) Legislature (primarily) (2) Political rights – rights that pertain to an
(2) Local legislative bodies [Sec. 5, Art. X] individual’s citizenship vis-à-vis the
(3) President (to a limited extent, when management of the government (e.g. right
granted delegated tariff powers under Sec. of suffrage, right to petition government
28 (2) Art. VI) for redress, right to hold public office, etc.)
(3) Social and economic rights – rights which
are intended to insure the well-being and
economic security of the individual
(4) Rights of the accused – civil rights intended
for the protection of a person accused of
any crime

Human rights have a primacy over property


rights. The rights of free expression and of
assembly occupy a preferred position as they

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are essential to the preservation and vitality of conduct, however discriminatory or wrongful.
civil institutions. [PBMEO v. Philippine [Yrasuegui v. PAL (2008)]
Blooming Mills, Co. (1973)]
Constitutional protection applies to
Bases and Purpose government action and is meant as a restraint
Bases: against sovereign authority. The Bill of Rights
(1) Importance accorded to the dignity and is not meant to be invoked against private
worth of the individual. individuals, and governs relations between
(2) Protection against arbitrary actions of individuals and the state. [People v. Marti
government and other members of society (1991)]

Purpose: Important Notes:


(1) To preserve democratic ideals (1) See Zulueta v. CA (1996), where the Bill of
(2) To safeguard fundamental rights Rights was invoked and applied by the
(3) To promote the happiness of an individual Court against a private party: The
constitutional injunction declaring the
The Bill of Rights is designed to preserve the privacy of communication and
ideals of liberty, equality and security "against correspondence to be inviolable is no less
the assaults of opportunism, the expediency of applicable simply because it is the wife who
the passing hour, the erosion of small is the party against whom the constitutional
encroachments, and the scorn and derision of provision is to be enforced. The intimacies
those who have no patience with general between husband and wife do not justify
principles.” [Philippine Blooming Mills any one of them in breaking the drawers
Employees Organization v. Philippine Blooming and cabinets of the other and in ransacking
Mills Co., Inc. (1973)] them for any telltale evidence of marital
infidelity. A person, by contracting
The purpose of the Bill of Rights is to withdraw marriage, does not shed his/her integrity
"certain subjects from the vicissitudes of or his right to privacy as an individual and
political controversy, to place them beyond the the constitutional protection is ever
reach of majorities and officials, and available to him or to her. [Zulueta v. CA
to establish them as legal principles to be (1996)]
applied by the courts. One's rights to life, (2) Compare with statutory due process, which
liberty and property, to free speech, or free may be invoked against private individuals.
press, freedom of worship and assembly, and [See, generally, labor cases on illegal
other fundamental rights may not be termination.] This does not form part of the
submitted to a vote; they depend on the Bill of Rights.
outcome of no elections." [West Virginia State
Board of Education v. Barnette, 319 U.S. 624,
638]

Accountability
Rule: The Bill of Rights cannot be invoked
against acts of private individuals. The equal
protection erects no shield against private

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III. Due Process A law hears before it condemns, which


proceeds upon inquiry and renders judgment
only after trial. [Darthmouth College v.
No person shall be deprived of life, liberty or Woodward, 4 Wheaton 518]
property without due process of law, nor shall
any person be denied the equal protection of Life is also the right to a good life. [Bernas] It
the laws. [Art. III, Sec. 1] includes the right of an individual to his body in
its completeness, free from dismemberment,
The Congress shall give highest priority to the and extends to the use of God-given faculties
enactment of measures that protect and which make life enjoyable. [Malcolm]
enhance the right of all the people to human
dignity, reduce social, economic, and political Liberty “includes the right to exist and the right
inequalities and remove cultural inequities by to be free from arbitrary personal restraint or
equitably diffusing wealth and political power servitude. [It] includes the right of the citizen to
for the common good. be free to use his faculties in all lawful ways[.]”
[Rubi v. Provincial Board]
To this end, the State shall regulate the
acquisition, ownership, use, and disposition of Property is anything that can come under the
property and its increments. [Art. XIII, Sec. 1] right of ownership and be the subject of
contract. It represents more than the things a
In General person owns; it includes the right to secure,
Due process of law simply states that “[i]t is use and dispose of them. [Torraco v. Thompson,
part of the sporting idea of fair play to hear 263 US 197]
"the other side" before an opinion is formed or
a decision is made by those who sit in Scope and limitations
judgment.” [Ynot v. IAC (1987)] Universal in application to all persons without
regard to any difference in race, color or
It covers any governmental action which nationality.
constitutes a deprivation of some person's life,
liberty, or property. Artificial persons are covered by the protection
but only insofar as their property is concerned
Definition [Smith Bell and Co. v. Natividad, 40 Phil. 163]
Due process furnishes a standard to which the
governmental action should conform in order The guarantee extends to aliens and includes
that deprivation of life, liberty or property, in the means of livelihood. [Villegas v. HiuChiong,
each appropriate case, be valid. xxx It is 86 SCRA 275]
responsiveness to the supremacy of reason,
obedience to the dictates of justice. Negatively The due process clause has to do with the
pit, arbitrariness is ruled out and unfairness legislation enacted in pursuance of the police
avoided. xxx Correctly it has been identified as power. xxx The guaranty of due process, as has
freedom from arbitrariness. It is the often been held, demands only that the law
embodiment of the sporting idea of fair play. shall not be unreasonable, arbitrary or
[Ichong v. Hernandez (1957)] capricious, and that the means selected shall
have a real and substantial relation to the

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subject sought to be attained. [Ichong v. Consideration of what procedures due process


Hernandez (1957)] may require under any given set of
circumstances must begin with a
Noted exceptions to due process determination of the precise nature of the
(1) The conclusive presumption, bars the government function involved as well as of the
admission of contrary evidence as long as private interest that has been affected by
such presumption is based on human governmental action.” [Cafeteria & Restaurant
experience or there is a rational connection Workers Union v. McElroy (1961)]
between the fact proved and the fact
ultimately presumed there from. To say that the concept of due process is
(2) There are instances when the need for flexible does not mean that judges are at large
expeditious action will justify omission of to apply it to any and all relationships. Its
these requisites—e.g. in the summary flexibility is in its scope once it has been
abatement of a nuisance per se, like a mad determined that some process is due; it is a
dog on the loose, which may be killed on recognition that not all situations calling for
sight because of the immediate danger it procedural safeguards call for the same kind of
poses to the safety and lives of the people. procedure. [Morrissey v. Brewer (1972)]
(3) Pornographic materials, contaminated
meat and narcotic drugs are inherently B. PROCEDURAL AND SUBSTANTIVE
pernicious and may be summarily DUE PROCESS
destroyed.
(4) The passport of a person sought for a
B.1 SCOPE
criminal offense may be cancelled without
Procedural Due Process – that aspect of due
hearing, to compel his return to the
process which serves as a restriction on actions
country he has fled.
of judicial and quasi-judicial agencies of the
(5) Filthy restaurants may be summarily
government. It refers to the method or manner
padlocked in the interest of the public
by which a law is enforced.
health and bawdy houses to protect the
public morals. [Ynot v. IAC (1987)]
Concerned with government action on
established process when it makes intrusion
In such instances, previous judicial hearing may
into the private sphere.
be omitted without violation of due process in
view of: 1) the nature of the property involved;
B.2 SUBSTANTIVE DUE PROCESS
or 2) the urgency of the need to protect the
Substantive due process, asks whether the
general welfare from a clear and present
government has an adequate reason for taking
danger.
away a person’s life, liberty, or property. [City of
Manila v. Laguio (2005)]
A. RELATIVITY OF DUE PROCESS
In other words, substantive due process looks
The concept of due process is flexible for not to whether there is a sufficient justification for
all situations calling for procedural safeguards the government’s action.
call for the same kind of procedure. [Secretary
of Justice v. Lantion (2000)] Substantive due process is an aspect of due
process which serves as a restriction on the

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law-making and rule-making power of the Service of summons is not only required to
government. give the court jurisdiction over the person
of the defendant but also to afford the
The law itself, not merely the procedures by latter the opportunity to be heard on the
which the law would be enforced, should be claim made against him. Thus, compliance
fair, reasonable, and just. with the rules regarding the service of
summons is as much an issue of due
It guarantees against the arbitrary power even process as of jurisdiction. [Sarmiento v.
when exercised according to proper forms and Raon (2002)]
procedure.
(c) The defendant must be given an
Requisites: opportunity to be heard
Due process of law means simply that
(a) There shall be a law prescribed in harmony Due process is satisfied as long as the
with the general powers of the legislative party is accorded the opportunity to be
department of the Government; heard. If it is not availed of, it is deemed
(b) This law shall be reasonable in its waived or forfeited without violating the
operation; constitutional guarantee. [Bautista v. Court
(c) It shall be enforced according to the of Appeals (2004)]
regular methods of procedure prescribed;
and The SC reiterated that the right to appeal
(d) It shall be applicable alike to all the is not a natural right nor part of due
citizens of the state or to all of a class. process; it is merely a statutory privilege,
[Rubi v. Provincial Board of Mindoro (1919)] and may be exercised only in the manner
and in accordance with the provisions of
B.3 PROCEDURAL DUE PROCESS law. [Alba v. Nitorreda, 254 SCRA 753]
In Civil Proceedings
Requisites: (d) Judgment must be rendered upon lawful
(a) An impartial court of tribunal clothed with hearing and must clearly explain its factual
judicial power to hear and determine the and legal bases. [Sec. 14, Art. VIII; Banco
matter before it. Español-Filipino v. Palanca (1918)]
(b) Jurisdiction must be lawfully acquired over
the person of the defendant and over the Note: The allowance or denial of motions
property subject matter of the proceeding for extension rests principally on the sound
[Banco Español v. Palanca (1918)] discretion of the court to which it is
addressed, but such discretion must be
Note: Notice is an essential element of due exercised wisely and prudently, with a view
process, otherwise the Court will not to substantial justice. Poverty is recognized
acquire jurisdiction and its judgment will as a sufficient ground for extending
not bind the defendant. existing period for filing. The right to
appeal is part of due process of law. [Reyes
To be meaningful, it must be both as to v. CA (1977)]
time and place.

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In Administrative Proceedings In Academic Disciplinary Proceedings


The Ang Tibay Rules: Requisites:
(1) Right to a hearing to present own case and (a) The students must be informed in writing
submit evidence in support thereof. of the nature and cause of any accusation
(2) Tribunal must consider the evidence against them;
presented. (b) They shall have the right to answer the
(3) Decision rendered must have support. charges against them, with the assistance
(4) Evidence which supports the finding or of counsel, if desired;
conclusion is substantial (such relevant (c) They shall be informed of the evidence
evidence as a reasonable mind accept as against them;
adequate to support a conclusion). (d) They shall have the right to adduce
(5) The decision must be rendered on the evidence in their own behalf;
evidence presented at the hearing, or at (e) The evidence must be duly considered by
least contained in the record and disclosed the investigating committee or official
to the parties affected. designated by the school authorities to
(6) The tribunal or any of its judges, must act hear and decide the case [Non v. Dames
on its or his own independent (1990)]
consideration of the law and facts of the
controversy, and not simply accept the In Labor Cases
views of a subordinate in arriving at a The Labor Code requires twin requirements of
decision. notice and hearing for a valid dismissal.
(7) The tribunal should, in all controversial
questions, render its decision in such a However, the Court in Serrano v. NLRC clarified
manner that the parties to the proceeding that this “procedural due process” requirement
can know the various issues involved, and is not constitutional but merely statutory,
the reasons for the decision rendered. [Ang hence, a violation of such requirement does
Tibay v. CIR (1940)] not render the dismissal void.

In administrative proceedings, the essence of There are three reasons why violation by the
due process is to explain one’s side. An actual employer of the notice requirement cannot be
hearing is not always an indispensable aspect considered a denial of due process resulting in
of due process as long as the party was given the nullity of the employee's dismissal or
the opportunity to defend his interests in due layoff:
course. [Lumiqued v. Estrada (1997)] (1) The Due Process Clause of the Constitution
is a limitation on governmental powers. It
In Criminal Proceedings does not apply to the exercise of private
See Rights of the Accused, Topic 1 Criminal Due power, such as the termination of
Process employment under the Labor Code.
In the conduct of the criminal proceedings, it (2) Notice and hearing are required under the
cannot be said that the State has been denied Due Process Clause before the power of
due process unless there is an indication that organized society are brought to bear upon
the special prosecutor deliberately and the individual. This is obviously not the
willfully failed to present available evidence or case of termination of employment under
that other evidence could be secured. [People v. Art. 283.
Sandiganbayan (2012)]

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(3) The employer cannot really be expected to D. CONSTITUTIONAL AND


be entirely an impartial judge of his own STATUTORY DUE PROCESS
cause. [Serrano v. NLRC (2000)]
D.1 CONSTITUTIONAL DUE PROCESS
[Agabon v. NLRC (2004)]
C. SUBSTANTIVE DUE PROCESS
Basis: Constitution
Laws which interfere with life, liberty or
property satisfy substantive due process when Requirements: Procedural and Substantive
there is:
(a) Lawful object i.e. the interests of the public Purpose:
in general (as distinguished from those of a (1) Protects individual against government;
particular class) require the intervention of and
the State, and (2) Assures him of his rights in criminal, civil
(b) Lawful means i.e. means employed are and administrative proceedings
reasonably necessary for the
accomplishment of the purpose and not Effect of breach: government action void
unduly oppressive on individuals. [US v.
Toribio (1910)] D.2. STATUTORY DUE PROCESS
Basis: Statute. Cases where due process is
Publication of laws is part of substantive due statutory notably include (1) labor termination
process. It is a rule of law that before a person cases, and (2) the right to appeal, .e.g.
may be bound by law, he must be officially and Statutory Due Process in Labor Cases.
specifically informed of its contents. For the
publication requirement, “laws” refer to all Basis: Labor Code
statutes, including those of local application
and private laws. This does not cover internal Requirements:
regulations issued by administrative agencies, (1) Procedural (the manner of dismissal, i.e.
which are governed by the Local Government after LC requirements are satisfied)
Code. Publication must be full, or there is none (2) Substantive (valid and authorized causes
at all. [Tañada v. Tuvera (1986)] of employment termination)

Governmental functions are classified into: Purpose: Protects employees from being
(1) Constituent – constitute the very bonds of unjustly terminated without just cause after
society and are compulsory in nature (i.e. notice and hearing.
public order, administration of justice and
foreign relations) Effect of breach: Does not void action; the law
(2) Ministrant – undertaken only by way of provides for other remedies (e.g. damages,
advancing the general interests of society, reinstatement).
and are merely optional on the part of the
State (i.e. public education, public charity Constitutional due process protects the
and regulations of trade and industry) individual from the government and assures
[Concurring Opinion of Justice Fernando in him of his right in criminal, civil, or
ACCFA v. CUGCO (1969)] administrative proceedings; while statutory
due process found in the Labor Code and
Implementing rules protects employees from

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being unjustly terminated without just cause F.2. “STRICT SCRUTINY TEST”
and hearing. [Agabon v. NLRC (2004)] This test is triggered when a fundamental
constitutional right is limited by a law, (i.e.
E. HIERARCHY OF RIGHTS freedom of the mind and curtailment of
political process).
When the Bill of Rights also protects property
rights, the primacy of human rights over This requires the government to show an
property rights is recognized. Because these overriding or compelling government interest
freedoms are “delicate and vulnerable, as well so great that it justifies the limitation of
as supremely precious in our society” and the fundamental constitutional rights. The courts
“threat of sanctions may deter their exercise make the decision of whether or not the
almost as potently as the actual application of purpose of the law makes the classification
sanctions,” they “need breathing space to necessary.
survive,” permitting government regulation
only “with narrow specificity.” [Philippine There is compelling state interest when:
Blooming Mills Employees Organization v. (1) The state have a compelling
Philippine Blooming Mills Co., Inc. (1973)] reason/interest to reach into such
legislation infringing into the private
If the liberty involved were freedom of the mind domain; and
or the person, the standard for the validity of (2) There is no other alternative
governmental acts is much more rigorous and
exacting, but where the liberty curtailed affects Strict scrutiny was applied in determining
at the most rights of property, the permissible whether the requirements of substantive due
scope of regulatory measure is wider. [Ermita- process were met in an ordinance challenged
Malate Hotel and Motel Operators Association, in as unconstitutional in White Light. The
Inc. v. City Mayor of Manila (1967)] requirements of due process that must concur
(as held in the case) are:
Running through various provisions of the (a) Interest of the public generally, as opposed
Constitution are various provisions to protect to a class;
property—but always with the explicit or (b) Means must be reasonably necessary for
implicit reminder that property has a social the accomplishment of the purpose and
dimension and that the right to property is not unduly oppressive of private rights
weighted with a social obligation. [Bernas] (c) No other alternative less intrusive of
private rights
F. JUDICIAL STANDARDS OF REVIEW (d) Reasonable relation must exist between
the purposes of the measure and the
F.1. “RATIONAL BASIS TEST” means employed for its accomplishment.
There is an evil at hand for correction and the [White Light Corporation v. City of Manila
particular legislative measure was a rational (2009)]
way to correct it. [Williamson v. Lee Optical
(1955)] F.3. “INTERMEDIATE SCRUTINY TEST”
A third standard, denominated as heightened
This test is applicable for economic, property, or immediate scrutiny, was later adopted by
commercial legislation. [White Light the U.S. Supreme Court for evaluating
Corporation v. City of Manila (2009)] classifications based on gender and legitimacy.

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While the test may have first been articulated substantive due process cases as well. [White
in equal protection analysis, it has in the Light Corporation v. City of Manila (2009)]
United States since been applied in all

Summary of White Light Levels of Scrutiny

Level of Scrutiny Rights Involved Requisites for Validity


Rational Basis Economic, property, commercial (a) Legitimate government
legislation interest
(b) Purpose and means
correspondence
Intermediate/Heightened Gender, illegitimacy (a) Substantial government
Scrutiny interest
(b) Availability of less restrictive
means
Strict Scrutiny  Freedom of the mind, (a) Compelling state interest
restriction on political (b) Absence of less restrictive
process means
 Fundamental rights: freedom
of expression, speech,
suffrage
 (U.S.) Judicial access,
interstate commerce

G. VOID-FOR-VAGUENESS DOCTRINE (1) It violates due process for failure to accord


persons, especially the parties targeted by
Void for Vagueness it, fair notice of what conduct to avoid;
An act is vague when it lacks comprehensible (2) It leaves law enforcers an unbridled
standards that men of common intelligence discretion in carrying out its provisions and
must necessarily guess at its common meaning becomes an arbitrary flexing of the
and differ as to its application. government muscle. [Southern Hemisphere
v. Anti-Terrorism Council (2010)]
A statute establishing a criminal offense must
define the offense with sufficient definiteness An accused is denied the right to be informed
that persons of ordinary intelligence can of the charge against him and to due process
understand what conduct is prohibited by the where the statute itself is couched in such
statute. A statute or act may be said to be indefinite language that it is not possible for
vague when it lacks comprehensible standards men of ordinary intelligence to determine
that men of common intelligence must therefrom what acts/omissions are punished.
necessarily guess at its meaning and differ in [People v. Nazario (1988)]
its application. The statute is repugnant to the
Constitution in 2 respects: [This doctrine] can only be invoked against that
species of legislation that is utterly vague on

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its face, i.e., that which cannot be clarified Note: As-applied v. Facial Challenges
either by a saving clause or by construction. Distinguished from an as-applied challenge
The test in determining whether a criminal which considers only extant facts affecting real
statute is void for uncertainty is whether the litigants, a facial invalidation is an examination
language conveys a sufficiently definite of the entire law, pinpointing its flaws and
warning as to the proscribed conduct. It must defects, not only on the basis of its actual
be stressed, however, that the vagueness operation to the parties, but also on the
doctrine merely requires a reasonable degree assumption or prediction that its very existence
of certainty for the statute to be upheld – not may cause others not before the court to
absolute precision or mathematical exactitude. refrain from constitutionally protected speech
[Estrada v. Sandiganbayad] or activities. [Disini, supra]

Comparison with Overbreadth Doctrine


The overbreadth doctrine decrees that "a
IV. Equal Protection
governmental purpose may not be achieved by
means which sweep unnecessarily broadly and A. CONCEPT
thereby invade the area of protected
freedoms." [Southern Hemisphere, supra] Definition
Equal protection requires that all persons or
The void-for-vagueness doctrine is subject to things similarly situated should be treated
the same principles governing overbreadth alike, both as to rights conferred and
doctrine. For one, it is also an analytical tool responsibilities imposed.
for a “facial” challenge of statutes in free
speech cases. Like overbreadth, it is said that a Similar subjects, in other words, should not be
litigant may challenge a statute on its face only treated differently, so as to give undue favor to
if it is vague in all its possible applications. some and unjustly discriminate against others.

General rule: Void-for-vagueness and It does not demand absolute equality among
overbreadth are inapplicable to penal statutes. residents; it merely requires that all persons
(Rationale: statutes have a general in terrorem shall be treated alike, under like circumstances
effect, which is to discourage citizens from and conditions both as to privileges conferred
committing the prohibited acts.) and liabilities enforced. The guarantee means
that no person or class of persons shall be
Exception: Said doctrines apply to penal denied the same protection of laws which is
statutes when enjoyed by other persons or other classes in
(1) The statute is challenged as applied; or like circumstances. [Ichong v. Hernandez
(2) The statute involves free speech (1957)]
(Rationale: Statute may be facially
challenged in order to counter the “chilling Scope
effect” of the same.) [Disini v. Sec. of Justice Natural and juridical persons (the equal
(2014), on the constitutionality of the protection clause extends to artificial persons
Cybercrime Law] but only insofar as their property is concerned.)
(1) A corporation as an artificial person is
protected under the Bill of Rights against
denial of due process, and it enjoys the

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equal protection of the law. [Smith, Bell a classification is permitted by the


and Co., v. Natividad (1919)] Constitution when the facts so warrant (e.g.
(2) A corporation is also protected against discriminatory legislation against Japanese
unreasonable searches and seizures. [See citizens during WWII).
Stonehill v. Diokno (1967)] (2) The political rights of aliens do not enjoy
(3) It can only be proceeded against by due the same protection as that of citizens.
process of law, and is protected against (3) Statutes may validly limit to citizens
unlawful discrimination. [Bache and Co. v. exclusively the enjoyment of rights or
Ruiz (1971)] privileges connected with the public
domain, the public works, or the natural
B. REQUISITES FOR VALID resources of the State. The rights and
CLASSIFICATION interests of the state in these things are
not simply political but also proprietary in
(a) It must rest on substantial distinctions nature; and so the citizens may lawfully be
which make real differences; given preference over aliens in their use or
(b) It must be germane to the purpose of the enjoyment.
law;
(c) It must not be limited to existing conditions B.1 EXAMPLES OF VALID
only. CLASSIFICATION
An ordinance was declared void Alien v. National
because it taxes only centrifugal sugar The Court upheld the Retail Trade
produced and exported by the Ormoc Nationalization Law despite the objection that
Sugar Company and none other, such that it violated the EP clause, because there exists
if a new sugar central is established in real and actual, positive and fundamental
Ormoc, it would not be subject to the differences between an alien and a national.
ordinance. [Ormoc Sugar Co. v. Treasurer of [Ichong v. Hernandez (1957)]
Ormoc City (1968)]
(d) Apply equally to all members of the same Filipino Female Domestics Working Abroad
class. [People v. Cayat (1939)] They are a class by themselves because of the
special risks to which their class was exposed.
Presumption of Validity [Phil Association of Service Exporters v. Drilon
All classifications made by law are generally (1988)]
presumed to be valid unless shown otherwise
by petitioner. [Lacson v. Executive Secretary Land-Based v. Sea-Based Filipino Overseas
(1999)] Workers
There is dissimilarity as to work environment,
Aliens safety, danger to life and limb, and
General Rule: The general rule is that a accessibility to social, civil and spiritual
legislative act may not validly classify the activities. [Conference of Maritime Manning
citizens of the State on the basis of their origin, Agencies v. POEA (1995)]
race or parentage.
Qualification for Elective Office
Exceptions: Disqualification from running in the same
(1) In times of great and imminent danger, elective office from which he retired of a retired
such as a threatened invasion or war, such elective provincial/municipal official who has

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received payment of retirement benefits and (a) Rational Basis Test – The classification
who shall have been 65 years old at the should bear a reasonable relation to
commencement of the term of office to which the government’s purpose or
he seeks to be elected is valid. [Dumlao v. legitimate state interest
Comelec (1980)]
Notes: Important when there is no
Election Officials v. Other Municipal Officials plausible difference between the
RA 8189 (Voters’ Registration Act) prohibits disadvantaged class and those not
election officers from holding office in a disadvantaged.
particular city or municipality for more than Also important when the government
four (4) years. The classification is germane to attaches a morally irrelevant and
the law since the risk sought to be addressed is negative significance to a difference
cheating during elections. [De Guzman v. between the advantaged and the
COMELEC (2000)] disadvantaged.

Office of the Ombudsman (b) Strict Scrutiny Test – A legislative


Allowing the Ombudsman to start an classification which impermissibly
investigation based on an anonymous letter interferes with the exercise of a
does not violate the equal protection clause. fundamental right or operates to the
The Office of the Ombudsman is different from peculiar disadvantage of a suspect
other investigatory and prosecutory agencies class is presumed unconstitutional.
of government because those subject to its The burden is upon the government to
jurisdiction are public officials who, through prove that the classification is
official pressure and influence, can quash, necessary to achieve a compelling
delay or dismiss investigations against them. state interest and that it is the least
[Almonte v. Vasquez (1995)] restrictive means to protect such
interest. It is applied when the
Print v. Broadcast Media classification has a “suspect basis”.
There are substantial distinctions between the
two to warrant their different treatment under Suspect classes – A classification that
BP 881. [Telecommunications and Broadcast violates a fundamental right, or
Attorneys of the Phil v. COMELEC (1998)] prejudices a person accorded special
protection by the Constitution [Serrano
C. STANDARDS FOR JUDICIAL v. Gallant]. May therefore include a
REVIEW classification based on income.

Serrano v. Gallant Maritime (2009) introduced a (Compare to the US definition: classes


modification in equal protection jurisprudence subject to such a history of purposeful
by using the three-level review used in due unequal treatment or relegated to such
process cases. In effect, the level of review a position of political powerlessness as
when it comes to equal protection challenges to command extraordinary protection
may follow the following format: from the majoritarian political process.
Income classification will not trigger
(1) Whether the State was justified in making strict scrutiny.)
a classification at all. (three-level scrutiny)

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This test is usually applied to cases but not suspect classes; certain
involving classifications based on race, important but not fundamental
national origin, religion, alienage, interest.
denial of the right to vote, migration,
access to courts, and other rights (2) Whether the classification was valid. (4-
recognized as fundamental pronged test of valid classification in
People v. Cayat)
(c) Intermediate Scrutiny Test – Court
accepts the articulated purpose of the Alternative thought: In Serrano v. Gallant
legislation, but it closely scrutinizes the Maritime, the Court seems to imply that the
relationship between the classification Test of Valid Classification is to be applied
and the purpose based on a spectrum under the Rational Basis standard. (Note
of standards, by gauging the extent to that in Serrano, where the Court applied
which constitutionally guaranteed Strict Scrutiny, the Test of Valid
rights depend upon the affected Classification was mentioned but not
individual interest. Government must applied.) Serrano does not appear to have
show that the challenged classification been reapplied (except in separate
serves an important state interest and opinions), hence its application remains
that the classification is at least unclear.
substantially related to serving that
interest. Applicable to certain sensitive

Summary of Serrano v. Gallant Levels of Scrutiny


Level of Scrutiny Classification Made Requisites for Validity
Rational Basis Classifications, in general Test of valid classification
(a) Substantial distinction;
(b) Germane to the purpose of
the law;
(c) Not limited to existing
conditions only;
(d) Must apply equally to all
within the class
Intermediate/Heightened Gender, illegitimacy (a) Substantial government
Scrutiny interest
(b) Availability of less restrictive
means
Strict Scrutiny Affects fundamental rights; or (a) Compelling state interest
suspect classification (b) Absence of less restrictive
means
Suspect classification:
 PHL: A class given special
protection by the Constitution
 US: Race

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V. Searches and bring them within the ambit of alleged


unlawful intrusion by the government.
Seizures Warrant is needed if the government
requests for the search and seizure: but, if
at behest of a private person or
A. CONCEPT establishment for its own private purposes
the right against unreasonable searches
The right of the people to be secure in their and seizures cannot be invoked. [People v.
persons, houses, papers, and effects against Marti (1991); see also Yrasuegui v. Philippine
unreasonable searches and seizures of Airlines (2008)]
whatever nature and for any purpose shall be What constitutes a reasonable or
inviolable, and no search warrant or warrant of unreasonable search and seizure in any
arrest shall issue except upon probable cause particular case is purely a judicial question,
to be determined personally by the judge after determinable from a consideration of the
examination under oath or affirmation of the circumstances involved. [Valmonte v. De
complainant and the witnesses he may Villa, (1989)]
produce, and particularly describing the place
to be searched and the persons or things to be Scope
seized. [Art. III, Sec. 2] (1) Natural Persons
It protects all persons including aliens
Nature [Qua Chee Gan v. Deportation Board (1963)]
(1) Personal – It may be invoked only by the
person entitled to it. [Stonehill v. Diokno (2) Artificial Persons
(1967)] Artificial persons (e.g. corporations) are
protected to a limited extent. [Bache and
It may be waived expressly or impliedly Co. Inc. v. Ruiz (1971)] The opening of their
only by the person whose right is invaded, account books is not protected, by virtue of
not by one who is not duly authorized to police and taxing powers of the State.
effect such waiver. [People v. Damaso
(1992)] B. WARRANT REQUIREMENT
This right is a personal right invocable by Purpose
those whose rights have been infringed or (1) Search Warrant – to gain evidence to
threatened to be infringed. [Valmonte v. De convict
Villa (1989)] (2) Warrant of Arrest – to acquire jurisdiction
over the person of the accused
(2) Directed Against the Government and Its
Agencies (State Action Requirement) The warrant must refer to one specific offense.
The right cannot be set up against acts [Castro v. Pabalan (1976)]
committed by private individuals. The right
applies as a restraint directed only against The Dangerous Drugs Act is a special law that
the government and its agencies tasked deals specifically with dangerous drugs which
with the enforcement of the law. The are subsumed into “prohibited” and “regulated”
protection cannot extend to acts drugs, and defines and penalizes categories of
committed by private individuals so as to offenses which are closely related or which
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW

belong to the same class or species; thus, one allowed to be delegated in the absence of
search warrant may be validly issued for any rule to the contrary.
several violations thereof. [People v. Dichoso
(1993)] (c) After personal examination under oath or
affirmation of the complainant and the
Search Warrant – an order in writing, issued in witnesses he may produce.
the name of the People of the Philippines,
signed by a judge or justice of peace, directed How it is done: In the form of searching
to a peace officer, commanding him to search questions and answers, in writing and
for personal property and bring it before the under oath [Rule 126, Sec. 6, ROC]
court.  Mere affidavits of the complainant and
his witnesses are thus not sufficient.
Requisites (Search Warrant):  The examining Judge has to take
(a) Existence of probable cause depositions in writing of the
complainant and the witnesses he may
Probable cause – such facts and produce and attach them to the record.
circumstances which would lead a  Such written deposition is necessary in
reasonably discreet and prudent man to order that the Judge may be able to
believe that (a) an offense has been properly determine the existence or
committed and that (b) the objects sought non-existence of the probable cause,
in connection with the offense are in the to hold liable for perjury the person
place sought to be searched. [Burgos v. giving it if it will be found later that his
Chief of Staff (1984)] declarations are false.
 It is axiomatic that the examination
Cf. for Warrant of Arrest – such facts and must be probing and exhaustive, not
circumstances that would lead a merely routine or pro-forma, if the
reasonably discreet and prudent man to claimed probable cause is to be
believe that (a) a crime has been established.
committed and (b) the person to be There must be a conduct of
arrested is probably guilty thereof. [Allado own inquiry regarding intent and
v. Diokno (1994)] justification of the application
 The examining magistrate must not
(b) Determination of probable cause
simply rehash the contents of the
personally by the judge.
affidavit but must make his own inquiry
on the intent and justification of the
On determining probable cause: The
application. [Roan v. Gonzales (1984)]
magistrate must make an exhaustive and
probing examination of witnesses and
Oath – any form of attestation that he is
applicant and not merely routine or pro
bound in conscience to perform an act
forma examination [Nala v. Barroso, Jr.
faithfully or truthfully; an outward pledge
(2003)]
given by the person taking it that his
attestation or promise is made under an
The determination of probable cause calls
immediate sense of his responsibility to
for an exercise of judgment after a judicial
God
appraisal of the facts and should not be

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Requisites: Description of Place/Things


(a) Must refer to facts The description of the property to be seized
(b) Such facts are of personal knowledge need not be technically accurate or precise. Its
of the petitioner or applicant or nature will vary according to whether the
witnesses. Not hearsay. identity of the property is a matter of concern.
The description is required to be specific only
Test of sufficiency of an oath insofar as the circumstances will allow. [Kho v.
“Whether or not it was drawn in a manner Judge Makalintal (1999)]
that perjury could be charged against the
affiant and he be held liable for damages.” A search warrant may be said to particularly
describe the things to be seized when the (a)
(d) On the basis of their personal knowledge description therein is as specific as the
of the facts they are testifying to. [Nala v. circumstances will ordinarily allow [People v.
Barroso, Jr. (2003); Burgos v. AFP (1984); Rubio, 57 Phil 384]; or (b) when the description
Roan v. Gonzales (1986); People v. expresses a conclusion of fact, not of law, by
Malmstead (1991)] which the warrant officer may be guided in
The purpose of having personal making the search and seizure; or (3) when the
knowledge by the complainant and tings described are limited to those which bear
witnesses and the sufficiency of the direct relation to the offense for which the
warrant is to convince the magistrate warrant is being issued. [Bache and Co. v. Ruiz,
seeking the issuance of the warrant that 37 SCRA 823]
there is probable cause.
General Rule: the warrant must contract the
(e) The warrant must describe particularly the particular place to be searched and person or
place to be searched and the persons or thing to be seized.
things to be seized.
Requirement is primarily meant to Exception: If the nature of the goods to be
enable the law enforcers serving the seized cannot be particularly determined.
warrant to (1) readily identify the properties  the nature of the thing is general in
to be seized and thus prevent them from description
seizing the wrong items; and (2) leave said  the thing is not required of a very technical
peace officers with no discretion regarding description [Alvarez v. CFI (1937)]
the articles to be seized and thus prevent
unreasonable searches and seizures. Description of Persons Searched
[People v. Tee (2003)] Search warrant is valid despite the mistake in
the name of the persons to be searched. The
Place to Be Searched authorities conducted surveillance and test-
The search warrant issued to search buy operations before obtaining the search
petitioner’s compound for unlicensed firearms warrant and subsequently implementing it.
was held invalid for failing to describe the They had personal knowledge of the identity of
place with particularity, considering that the the persons and the place to be searched,
compound was made up of 200 buildings, 15 although they did not specifically know the
plants, 84 staff houses, one airstrip etc. spread names of the accused. [People v. Tiu Won Chua
out over 155 hectares. [PICOP v. Asuncion (2003)]
(1999)]

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A John Doe search warrant is valid. There is the house, opened the door and was
nothing to prevent issue and service of warrant immediately handcuffed to a chair after being
against a party whose name is unknown. informed that they are policemen with a
[People v. Veloso (1925)] warrant to search the premises. [People v.
Benny Go (2003)]
General Warrant – one that:
(1) Does not describe with particularity the C. WARRANTLESS SEARCHES
things subject of the search and seizure; or
(2) Where probable cause has not been General rule: Probable cause required.
properly established.
“The essential requisite of probable cause
Effect: It is a void warrant. [Nolasco v. Paño must still be satisfied before a warrantless
(1985)] search and seizure can be lawfully conducted.”
In these cases, probable cause (warrantless
Exception to General Warrants: General searches) must be “based on reasonable
descriptions will not invalidate the entire ground of suspicion or belief that a crime has
warrant if other items have been particularly been committed or is about to be committed.”
described. [Uy v. BIR (2000)] [People v. Aruta (1998)]

Conduct of the Search [Sec. 7, Rule 126, ROC] N.B. In Aruta, the standards for probable cause
(1) In the presence of a lawful occupant are different from those required for the
thereof or any member of his family, OR issuance of warrants. Aruta implies that the
(2) If occupant or members of the family are reasonableness of a warrantless search is
absent, in the presence of 2 witnesses of determined by the (1) information received and
sufficient age and discretion, residing in used as a basis for the search, and (2)
the same locality. additional factors and circumstances. The two,
taken together, constitute the probable cause
Failure to comply with Sec. 7 Rule 126 which justifies warrantless searches and
invalidates the search. [People v. Gesmundo seizures. [Aruta, supra]
(1993)]
Warrantless Searches Recognized By
When Forcible Entry Justified Jurisprudence
Force may be used in entering a dwelling if
justified by Rule 126 ROC. e.g. Occupants of the Quick Look [People v. Aruta, supra]
house refused to open the door despite the fact (1) Search incidental to a lawful arrest (ROC
that the searching party knocked several times, Rule 113, Sec. 5)
and the agents saw suspicious movements of (2) Plain view doctrine
the people inside the house. [People v. (3) Search of a moving vehicle
Salanguit (2001)] (4) Consented warrantless search (waiver of
right against unreasonable searches and
Unlawful Search seizures)
Police officers arrived at appellant’s residence (5) Customs search
and “side-swiped” appellant’s car (which was (6) Stop and frisk
parked outside) to gain entry into the house. (7) Exigent and emergency circumstances
Appellant’s son, who is the only one present in

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(8) Visual search at checkpoints – not among also be searched without search warrant.
those enumerated in People v. Aruta, but [Nolasco v. Cruz Paño (1985)]
also recognized as an exception to the An “arrest being incipiently illegal, it
warrant requirement by Aniag v. COMELEC logically follows that the subsequent
(1994) and Valmonte v. De Villa (1989, 1990) search was similarly illegal.” [People v.
Aruta, supra]
(1) Search Incident to a Lawful Arrest
Arresting officer may search: [Chimel v.
A person lawfully arrested may be searched for California (1969)]
dangerous weapons or anything which may be (1) The arrestee’s person to:
used as proof of the commission of an offense, (a) discover or weapons and
without a search warrant. [Sec. 12, Rule 126, (b) Seize evidence to prevent
Rules of Court] concealment or destruction; and
(2) The area within the immediate control
The provision is declaratory in the sense of the arrestee, i.e. area from which he
that it is confined to the search, without a might gain possession of a weapon or
search warrant, of a person who had been destructible evidence.
arrested.
Immediate control – immediate area to the
It is also a general rule that, as an incident defendant’s person where there are nearby
of an arrest, the place or premises where weapons he could grab to attack the officer
the arrest was made can also be searched or what he has in his pocket
without a search warrant. In this case, the
extent and reasonableness of the search It will be reasonable for officer to
must be decided on its own facts and confiscate whatever may be used to
circumstances. threaten his life or limb.

What must be considered is the balancing People v. Aruta (1998)


of the individual’s right to privacy and the Short facts: P/Lt. Abello was tipped off by
public’s interest in the prevention of crime an informant that a certain Aling Rosa
and the apprehension of criminals. Aruta will arrive from Baguio with large
[Nolasco v. Pano (1985)] volume of marijuana with her via bus which
the informant identified. Aruta descended
Test for validity from the bus, informant points finger at
(1) Item to be searched was within the her and police asked if they could open her
arrester’s custody; bag and check contents. They found it
(2) Search was contemporaneous with the contained dried marijuana leaves and a
arrest bus ticket – such were brought to
NARCOM office. Olongapo RTC convicted
Under the Rules of Court, a person charged her in violation of DDA. Court ruled that it
with an offense may be searched for was NOT a reasonable search because
dangerous weapons or anything which there was no probable cause for search
may be used as proof of the commission of incidental to a lawful arrest.
the offense. As an incident of an arrest, the
premises where the arrest was made can

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Comparison of Aruta to other cases (1) Not plain view


Other cases (held that The confiscated item was inside the
Aruta (without search was valid due to bag.
probable cause) presence of probable (2) Not moving vehicle
cause) She was in the middle of the street
descending a parked bus.
 Aruta was not acting People v. Tangiliban
(3) Not stop and frisk
suspiciously  Conducted
There was no way her actions could
 Narcom had prior surveillance of
arouse suspicion that she was doing
knowledge Victory Bus Liner
something illegal.
 Person was acting (4) Not exigent or emergency
suspiciously circumstance
 Bag was asked to be Unlike People v. De Gracia, there is no
opened general prevailing chaos that would
 On the spot tip was render the courts inactive.
allowed (5) No waiver of right or consented search
 Not suspicious People v. Malmstedt Silence does not constitute waiver.
 There was  Acted suspiciously
reasonable time to  No reasonable time Waiver of an unreasonable search and
get warrant to get warrant seizure is not presumed.
 She was just  He was aboard
crossing the street moving vehicle (2) Plain View Doctrine – things seized are
within plain view of a searching party.
 Crossing the street, People v. Bagista
not moving vehicle  Described exact Requisites:
appearance and (a) Prior valid intrusion based on valid
when searched, it warrantless arrest in which the police
fitted the are legally present in the pursuit of
description their official duties
 Moving vehicle and (b) Evidence was inadvertently discovered
checkpoint by the police who had the right to be
 No suspicious or Manalili v. CA where they are
illegal actions by  Surveillance of (c) Evidence must be immediately
Aruta Kalookan Cemetery apparent
because druggies (d) “Plain view” justified mere seizure of
roam about evidence without further search [People
 Chanced upon a v. Aruta, supra; N.B. substantially the
person who same as Nala v. Barroso requirements]
appeared, based on
officers’ experience, An object is in “plain view” if the object
were high on drugs itself is plainly exposed to sight. Where the
seized object is inside a closed package,
the object is not in plain view and,
Why the Aruta case does not fall under the
therefore, cannot be seized without a
other categories of valid warrantless
warrant. However, if the package
search:

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proclaims its contents, whether by its (4) Valid Express Waiver Made Voluntarily And
distinctive configuration, its transparency, Intelligently
or if its contents are obvious to an observer,
then the content are in plain view, and may Requisites:
be seized. [Caballes v. Court of Appeals (a) Must appear that right exists;
(2002)] (b) Person involved had actual/
constructive knowledge of the
If the package is such that it contains existence of such right;
prohibited articles, then the article is (c) Said person had an actual interest to
deemed in plain view. [People v. Nuevasm relinquish the right. [Aruta, supra]
(2007)]
In this case, mere failure to object to the
(3) Search of Moving Vehicles search and seizure does not constitute a
Securing a search warrant is not waiver.
practicable since the vehicle can be quickly
moved out of the locality or jurisdiction in Right to be secure from unreasonable
which the warrant must be sought. [Papa v. search may be waived. Waiver may be
Mago (1968)] express or implied. When one voluntarily
submits to a search or consents to have it
“Stop and search” without a warrant at made of his person/premises, he is
military or police checkpoints has been precluded from later complaining. [People
declared not to be illegal per se so long as v. KaguiMalasugui (1936)]
it is required by exigencies of public order
and conducted in a way least intrusive to There is presumption against waiver by the
motorists. [Valmonte v. de Villa (1989)] courts. It is the State that has the burden
of proving, by clear and convincing
For a mere routine inspection, the search is evidence, that the necessary consent was
normally permissible when it is limited to a obtained and that it was voluntarily and
mere visual search, where the occupants freely given. [Caballes v. Court of Appeals
are not subjected to physical or body (2002)]
search. On the other hand, when the
vehicle is stopped and subjected to an When accused checked in his luggage as
extensive search, it would be passenger of a plane, he agreed to the
constitutionally permissible only if the inspection of his luggage in accordance
officers conducting the search had with customs laws and regulations, and
reasonable or probable cause to believe, thus waived any objection to a warrantless
before the search that either the motorist is search. [People v. Gatward, 267 SCRA 785]
a law offender or they will find the
instrumentality or evidence pertaining to a (5) Customs Search
crime in the vehicle to be searched. The police are allowed to conduct
[Caballes v. Court of Appeals (2002); People warrantless searches in behalf of the
v. Libnao (2003)] Department of Customs.

They are authorized to examine, open any


box, trunk, or other containers where he

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has reasonable cause to believe that such identifies himself as a policeman and
items were hidden from customs search. makes reasonable inquiries; and
[People v. Mago (1968)] (3) Where nothing in the initial stages of
the encounter serves to dispel his
Sec. 2203 of the Tariff and Customs Code reasonable fear for his own or other’s
states that no warrant is required for police safety. [Terry v. Ohio, 1968]
or authorized persons to pass, enter,
search any land, enclosure, building, Test: WON a reasonably prudent man in the
warehouse, vessels, aircrafts, vehicles but circumstances would be warranted in the
not dwelling. belief that his safety or that of others was in
danger [Terry v. Ohio (1968)].
Purpose of customs search: To verify
whether or not Custom duties and taxes Guidelines of Stop and Frisk
were paid for their importation. [Manalili v. CA, 1997]
(1) When police officer observes
(6) Stop And Frisk Searches unusual conduct;
There should be a genuine reason to “stop- (2) This conduct leads him to believe,
and-frisk in the light of the police officer’s also in light of his experience, that
experience and surrounding conditions to criminal activity may be afoot
warrant a belief that the person detained (3) The persons with whom he is
has weapons concealed. [Malacat v. CA dealing may be armed and
(1997), citing Terry v. Ohio] presently dangerous
(4) Also, in the course of investigating
Police officer has a right to stop a citizen his behavior of the man, after
on street and pat him for a weapon in the identifying himself as a police
interest of protecting himself from the officer – the man is entitled to a
person with whom he was dealing by limited search of outer clothing
making sure that he is not armed. because:
(a) Fear of his own safety
The right of an agent, to protect himself (b) Fear of public’s safety that a
and others, to conduct a carefully limited crime might ensue
search of outer clothing of such persons as
listed below in an attempt to discover The police officer should properly
weapons which might be used to assault introduce himself and make initial inquiries,
him. Such search is reasonable under the approach and restrain a person who
4th amendment: manifests unusual and suspicious conduct,
(1) Where a police officer observes in order to check the latter’s outer clothing
unusual conduct which leads him for possibly concealed weapons. The
reasonably to conclude in light of his apprehending police officer must have a
experience that criminal activity may genuine reason, in accordance with the
be afoot and that the person with police officer’s experience and the
whom he is dealing may be armed and surrounding conditions, to warrant the
presently dangerous; belief that the person to be held has
(2) Where in the course of the weapons or contraband concealed about
investigation of this behavior he him [People v. Sy Chua (2003)].

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(7) Exigent And Emergency Circumstances committed, and they had no opportunity to
The raid and seizure of firearms and apply for a search warrant from the courts
ammunition at the height of the 1989 coup because the latter were closed. Under such
d’état, was held valid, considering the urgency and exigency, a search warrant
exigent and emergency situation. The could be validly dispensed with. [People v.
military operatives had reasonable ground de Gracia, 233 SCRA 716].
to believe that a crime was being

Summary of Requisites for Warrantless Searches


Type Requisites
Incident to a Lawful Arrest Arresting officer may search
[Chimel v. CA] (a) The arrestee’s person to
(i) Discover or remove weapons and
(ii) Seize evidence to prevent concealment or destruction; and
(b) The area “within the immediate control” of the arrestee, i.e. area
from which he might gain possession of a weapon or destructible
evidence.
Plain View (a) Prior valid intrusion based on the valid warrantless arrest in which
[People v. Aruta] the police are legally present in the pursuit of their official duties
(b) Evidence was inadvertently discovered by the police who had the
right to be where they are
(c) Evidence must be immediately apparent
(d) “Plain view” justified mere seizure of evidence without further search
Vehicle Checkpoint (a) Vehicle is neither searched; nor its occupants subjected to a body
[Valmonte v. de Villa search; and
(1990)] (b) Inspection of the vehicle is merely limited to a visual search.
Search of a Moving Vehicle Extensive search without a warrant valid only if the officers had
[Aniag v. COMELEC] reasonable or probable cause to believe before the search that
(a) The motorist was a law offender; or
(b) They would find the evidence of a crime in the vehicle.
Consented Search (Requisites are those for Waiver of a Constitutional Right)
(a) Right to be waived existed;
(b) Person waiving it had actual or constructive knowledge of said right;
(c) He had an actual intention to relinquish the right.
Stop and Frisk (a) Police officer observes an unusual conduct which leads him
[Terry v. Ohio, as cited in reasonably to conclude in light of his experience that criminal
Manalili v. CA] activity may be afoot and that the persons with whom he is dealing
may be armed and presently dangerous;
(b) In the course of investigating this behavior, he identified himself as a
policeman and makes reasonable inquiries; and
(c) Nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own or other’s safety xxx

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Properties Subject To Seizure Rule 126, Sec. 4. Requisites for issuing search
General Rule: Only the articles particularly warrant – A search warrant shall not issue
described in the warrant may be seized. except upon probable cause in connection with
(1) Property subject of an offense one specific offense to be determined
(2) Stolen or embezzled property and other personally by the judge after examination
proceeds or fruits of an offense under oath or affirmation of the complainant
(3) Used or intended to be used as a means of and the witness he may produce, and
committing an offense [Sec. 2 Rule 126, particularly describing the place to be
ROC] searched and the things to be seized which
may be anywhere in the Philippines.
Where the warrant authorized only the seizure
of shabu, and not marijuana, the seizure of the D. WARRANTLESS ARRESTS
latter was held unlawful. [People v. Salanguit]
Requisites for Issuance of a Valid Arrest Warrant
It is not necessary that the property to be What the Constitution underscores is the
searched or seized should be owned by the exclusive and personal responsibility of the
person against whom the warrant is issued; it is issuing judge to satisfy himself of the existence
sufficient that the property is within his control of probable cause.
or possession. [Burgos v. Chief of Staff (1984)]
In satisfying himself of the existence of probable
Comparison of Procedures in Obtaining Search cause for the issuance of a warrant of arrest, the
Warrants and Arrest Warrants judge is not required to personally examine the
Rule 112, Sec. 6. When warrant of arrest may complainant and his witnesses.
issue – (a) By the Regional Trial Court – Within
ten (10) days from the filing of the complaint or Following established doctrine and procedure,
information, the judge shall personally evaluate he shall:
the resolution of the prosecutor and its (1) Personally evaluate the report and the
supporting evidence. He may immediately supporting documents submitted by the
dismiss the case if the evidence on record fiscal regarding the existence of probable
clearly fails to establish probable cause. If he cause and, on the basis thereof, issue a
finds probable cause, he shall issue a warrant of warrant of arrest; or
arrest, or a commitment order if the accused (2) If he finds no probable cause, he may
has already been arrested pursuant to a warrant disregard the fiscal's report and require the
issued by the judge who conducted the submission of supporting affidavits of
preliminary investigation or when the complaint witnesses to aid him in arriving at a
or information was filed pursuant to section 7 of conclusion as to the existence of probable
this Rule. In case of doubt on the existence of cause.[Beltran v. Makasiar (1988)]
probable cause, the judge may order the
prosecutor to present additional evidence (Note: Existence of Probable Cause: Such facts and
This is not found in the procedure for a search circumstances which would lead a reasonably
warrant) within five (5) days from notice and the discreet and prudent man to believe that an
issue must be resolved by the court within thirty offense has been committed by the person
(30) days from the filing of the complaint of sought to be arrested. [Webb v. De Leon (1995)]
information.

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Determination of probable cause personally by Buy-Bust: A buy-bust operation is a valid in


the judge as to warrant of arrest: flagrante arrest. The subsequent search of
(1) On the basis of the witnesses’ personal the person arrested and the premises within
knowledge of the facts they are testifying to. his immediate control is valid as an incident
(2) The arrest warrant must describe to a lawful arrest. [People v. Hindoy (2001)]
particularly the person to be seized.
(a) By stating the name of the person to be When not proper buy-bust: Instead of
arrested. arresting the suspect after the sale in a buy-
(b) If not known, then a “John Doe warrant” bust op, the officer returned to the police
may be issued, with some descriptio headquarters and filed his report. It was
personae that will enable the officer to only in the evening that he, without warrant,
identify the accused. arrested the suspect at his house where
dried marijuana leaves were found and
John Doe Warrant: Warrants issued against 50 seized. This is unlawful arrest. [People v.
John Does, none of whom the witnesses could Rodrigueza (1992)]
identify, were considered as “general warrants”
and thus void. [Pangandaman v. Casar (1988)] (2) Hot Pursuit: When an offense has just been
committed and he has probable cause to
Requisites of a Valid Warrantless Arrest believe based on personal knowledge of
[Rule 113, Sec. 5, Rules on Criminal Procedure] facts or circumstances that the person to be
(1) In flagrante delicto: When in his presence, arrested has committed it
the person to be arrested has committed, is
actually committing, or is attempting to Requisites:
commit an offense (a) Offense had just been committed;
The person must be immediately
The person must be arrested after the arrested after the commission of the
offense has been committed and in the offense. [People v. Manlulu (1994)]
presence of a police officer. [People v. (b) Person making the arrest has probable
Mengote (1992)] cause to believe based on personal
knowledge.
Rebellion is a continuing offense. Therefore
a rebel may be arrested without a warrant Note: There must be a large measure of
at any time of the day or the night as he is immediacy between the time the offense is
deemed to be in the act of committing committed and the time of the arrest. If
rebellion. [Umil v. Ramos (1991)] there was an appreciable lapse of time
between arrest and commission of crime,
Though kidnapping with serious illegal warrant of arrest must be secured.
detention is deemed a continuing crime, it [Nachura]
can be considered as such only when the
deprivation of liberty is persistent and Warrantless arrest of accused for selling
continuing from one place to another. marijuana 2 days after he escaped is invalid.
[Parulan v. Dir. of Prisons (1968)] [People v. Kimura (2004)]

The warrantless arrest only 3 hours after the


killing was held valid since personal

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knowledge was established as to the fact of Failure to raise the question of admissibility
death and facts indicating that the accused during the trial is waiver of the right to
killed the victim. [People v. Gerente (1993)] assert inadmissibility on appeal. [Manalili v.
CA (1997)]
Personal Knowledge: Experience of an
officer which gives the idea that there is Scope of Waiver: Waiver is limited to the
probable cause that the person caught is illegal arrest. It does not extend to the
responsible. It has been ruled that search made as an incident thereto, or the
“personal knowledge of facts” in arrests subsequent seizure of evidence allegedly
without a warrant must be based on found during the search. [People v. Peralta
probable cause, which means an actual (2004)]
belief or reasonable grounds of suspicion.
[Cadua v. Court of Appeals (1999)] (e) Violent insanity

There is no personal knowledge when the E. ADMINISTRATIVE ARRESTS


commission of a crime and identity of the
accused were merely furnished by an General Rule: Only the judge has the power to
informant, or when the location of the issue a warrant after the proper procedure has
firearm was given by the wife of the accused. been duly taken.
It is not enough that there is reasonable
ground to believe that the person to be Exceptions:
arrested has committed a crime. That a (1) In cases of deportation of illegal and
crime has actually been committed is an undesirable aliens, whom the President or
essential precondition. [People v. Burgos the Commissioner of Immigration may order
(1986)] arrested, following a final order of
deportation, for the purpose of deportation.
(c) Escaped Prisoners: When the person to be [Salazar v. Achacoso (1990)]
arrested is a prisoner who has escaped from (2) Warrant of arrest may be issued by
a penal establishment or place where he is administrative authorities only for the
serving final judgment or is temporarily purpose of carrying out a final finding of a
confined while his case is pending, or has violation of law and not for the sole purpose
escaped while being transferred from one of investigation or prosecution. It may be
confinement to another issued only after the proceeding has taken
place as when there is already a final
Additional Exceptions (Not in the Rules): decision of the administrative authorities.
(d) When the right is voluntarily waived
(estoppel). F. DRUG, ALCOHOL AND BLOOD
TESTS
Appellant is estopped from questioning the
illegality of the arrest when he voluntarily
The Court held that Randomized Drug Testing
submitted himself to the jurisdiction of the
(RDT) for students and employees does not
court by entering a plea of not guilty and by
violate the right to privacy in the Constitution.
participating in the trial. [People v.
Students do not have rational expectation of
Salvatierra (1997)]
privacy since they are minors and the school is
in loco parentis. Employees and students in

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universities, on the other hand, voluntarily "everyone has the right to the protection of the
subject themselves to the intrusion because of law against such interference or attacks."
their contractual relation to the company or
university. Our Bill of Rights provides at least two
guarantees that explicitly create zones of
But it is unconstitutional to subject criminals to privacy. It highlights a person's "right to be let
RDT. Subjecting criminals to RDT would violate alone" or the "right to determine what, how
their right against self-incrimination. much, to whom and when information about
himself shall be disclosed." [Sabio v. Gordon
It is also unconstitutional to subject public (2006)]
officials whose qualifications are provided for in
the Constitution (e.g. members of Congress) to Ople v. Torres (1998) has enumerated several
RDT. Subjecting them to RDT would amount to provisions of the Bill of Rights where the right of
imposing an additional qualification not privacy is enshrined (penumbras):
provided for in the Constitution. [SJS v. (1) Sec. 3 – Privacy of communication
Dangerous Drugs Board (2008)] (2) Sec. 1 – Life, liberty, and property
(3) Sec. 2 – Unreasonable searches and

VI. Privacy seizures


(4) Sec. 6 – Liberty of abode
Basis (5) Sec. 8 – Right to form associations
The right to privacy, or the right to be let alone, (6) Sec. 17 – Right against self-incrimination
was institutionalized in the 1987 Constitution as
a facet of the right protected by the guarantee It has also indicated that zones of privacy are
against unreasonable search and seizures. (But recognized and protected in our laws:
the Court acknowledged its existence as early (1) Civil Code
as 1968 in Morfe v. Mutuc.) (2) RPC
(3) Anti-Wiretapping Law
The right to privacy exists independently of its (4) Security Deposits Act
identification with liberty; it is in itself fully (5) Intellectual Property Code
deserving of constitutional protection. [Disini v.
Secretary of Justice (2014)] Privacy of Communications and Correspondence
(1) The privacy of communication and
Concept correspondence shall be inviolable except
Zones of privacy are recognized and protected in upon lawful order of the court, or when
our laws. Within these zones, any form of public safety or order requires otherwise,
intrusion is impermissible unless excused by as prescribed by law.
law and in accordance with customary legal (2) Any evidence obtained in violation of this
process. The meticulous regard we accord to or the preceding section shall be
these zones arises not only from our conviction inadmissible for any purpose in any
that the right to privacy is a "constitutional proceeding. [Art. III, Sec. 3]
right" and "the right most valued by civilized
men," but also from our adherence to the
Universal Declaration on Human Rights which
mandates that, "no one shall be subjected to
arbitrary interference with his privacy" and

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A. PRIVATE AND PUBLIC Intrusion has to be based upon a non-judicial


COMMUNICATIONS government official’s assessment that public
safety and order demands such intrusion,
Requisites of Existence of Privacy Right (Test of limited to the provisions of law. To hold
Reasonable Expectation Of Privacy) otherwise would be to opt for a government of
(a) Subjective: A person has exhibited an actual men, and not of laws.
expectation of privacy; and
(b) Objective: The expectation be one that Public order and safety – the security of human
society is prepared to recognize as lives, liberty and property against the activities
reasonable. [Pollo v. Constantino-David of invaders, insurrectionist and rebels. [1971
(2011)] Constitutional Convention, Session of November
25, 1972]
B. INTRUSION, WHEN ALLOWED
Right of Privacy v. Freedom of Speech and
Communication
(1) By lawful order of the court
Because of the preferred character of the
Probable cause in Sec. 2, Art. III should be
constitutional rights of the freedom of speech
followed for the court to allow intrusion.
and of expression, a weighty presumption of
Particularity of description is needed for
invalidity vitiates measures of prior restraint
written correspondence, but if the intrusion
upon the exercise of such freedoms. [Ayer v.
is done through wire-taps and the like,
Capulong, supra]
there is no need to describe the content.
However, identity of the person or persons
Right of privacy of a public figure is necessarily
whose communication is to be intercepted,
narrower than that of an ordinary citizen. [Ayer v.
and the offense or offenses sought to be
Capulong, supra]
prevented, and the period of the
authorization given can be specified.
Public Figure – a person who, by his
accomplishments, fame, or mode of living, or by
or
adopting a profession or calling which gives the
public a legitimate interest in his doing, his
(2) When public safety or public order requires
affairs and his character, has become public
otherwise, as may be provided by law.
personage. Why?
 They had sought publicity and consented to it,
In Ayer Productions PTY. Ltd. v. Capulong (1988)
so they could not complain.
(hint: Enrile case), the right to be let alone is not
an absolute right. A limited intrusion to a  Their personalities and their affairs had
person’s privacy has long been regarded as already become public and could no longer be
permissible where that person is a public figure regarded as their own private business.
and the information sought to be elicited from  The press had a privilege, under the
him or to be published about him constitute constitution, to inform the public about those
matters of public character. The interest sought that have become legitimate matters of public
to be protected by the right to privacy is the interest.
right to be free from unwarranted publicity,
from the wrongful publicizing of the private But as held in Lagunzad v. Soto (1979), being a
affairs and activities of an individual which are public figure does not automatically destroy in
outside the realm of legitimate public concern. toto a person’s right to privacy. In the case at

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bar, while it is true that the producer exerted Other imports from Jurisprudence:
efforts to present a true-to-life story of Moises Anti-Wire Tapping Act (RA 4200), clearly and
Padilla, he admits that he induced a little unequivocally makes it illegal for any person,
romance in the film. not authorized by all the parties to any private
communication, to secretly record such
Right of Privacy v. Freedom of Access to communications by means of a tape recorder.
Information The law does not make any distinction. [Ramirez
Kilusang Mayo Uno v. Director-General, NEDA v. Court of Appeals, 248 SCRA 590]
(2006) stated that personal matters are exempt
or outside the coverage of the people’s right to An extension telephone is not among the
information on matters of public concern. The devices enumerated in Sec.1 of RA 4200. There
data treated as “strictly confidential” under EO must be either a physical interruption through a
420 being matters of public concern, these data wiretap or the deliberate installation of a device
cannot be released to the public or the press. or arrangement in order to overhear, intercept,
or record the spoken words. The telephone
As compared with Ople v. Torres (1998), where extension in this case was not installed for that
the Court ruled that no constitutional infirmity purpose. It just happened to be there for
on the right of privacy was shown by EO 420 ordinary office use. [Ganaan v. IAC (1986)]
which streamlines and harmonizes the existing
ID system within each government agency. E.O. 424 (s. 2005), adopting a unified multi-
According to the Court, it even narrowly limits purpose ID system for government, does not
the data that can be collected, recorded, and violate the right to privacy because it (1)
shown as compared to AO 308 (National ID narrowly limits the data that can be collected,
System) which was not narrowly drawn. recorded, and released compared to existing ID
systems, and (2) provides safeguards to protect
Two-part test to determine the reasonableness the confidentiality of the data collected. [KMU v.
of person’s expectation of privacy Director-General, (2006)]
(1) Whether by his conduct, the individual has
exhibited an expectation of privacy An intrusion into the privacy of workplaces is
(2) Whether his expectation is one that society valid if it conforms to the standard of
recognizes as reasonable reasonableness. Under this standard, both
Note that factual circumstances of the case inception and scope of intrusion must be
determine the reasonableness of the reasonable.
expectation. However, other factors such as (1) Justified at inception: if there are reasonable
customs, physical surroundings and practices of grounds for suspecting that it will turn up
a particular activity, may serve to create or evidence that the employee is guilty of work-
diminish this expectation. [Ople v. Torres, supra] related misconduct.
(2) Scope of intrusion is reasonable: if measures
Forms of Correspondence Covered used in the search are reasonable related to
(1) Letters the search’s objectives, and it is not highly
(2) Messages intrusive. [Pollo, supra]
(3) Telephone calls
(4) Telegrams, and the like [Bernas] Right may be invoked against the wife who
went to the clinic of her husband and there took
documents consisting of private

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communications between her husband and his Query Habeas Data


alleged paramour. [Zulueta v. Court of When (1) In cases of illegal detention
Appeals(1996)] available? or restraint;
(2) In custody cases (even for a
N.B. While Zulueta seems to be an exception to corpse)
the State Action Requirement, Zulueta’s
application of the exclusionary rule has only Primary requisite for its
been cited once but to a state action. availability is actual deprivation
of right of custody
See also: R.A. No. 10173, Data Privacy Act (2012) What rule The Rule on the Writ of Habeas
governs Data (A.M. No. 08-1-16-SC),
Exclusionary rule petitions for which was approved by the SC
Any evidence obtained in violation of Article III, and the on 22 January 2008. That Rule
Section 3 (right to privacy of communications issuance of a shall not diminish, increase or
and correspondence) or Section 2 (right against writ of habeas modify substantive rights.
unlawful search and seizures) shall be data?
inadmissible for any purpose in any proceeding. What is the Constitution, Art. VIII, Sec. 5[5]
This applies not only to testimonial evidence SC’s basis in
but also to documentary and object evidence. issuing the
Rule?
C. WRIT OF HABEAS DATA When does The Rule takes effect on 2
the Rule take February 2008, following its
Query Habeas Data effect? publication in three (3)
What is the (1) Remedy newspapers of general
writ of habeas (2) Available to any person circulation.
data? (3) Whose right to life, liberty, Who may file (1) The aggrieved party.
and security has been a petition for (2) However, in cases of
violated or is threatened the issuance extralegal killings and
with violation of a writ of enforced disappearances,
(4) By an unlawful act or habeas data? the petition may be filed by
omission (a) Any member of the
(5) Of a public official or immediate family of the
employee, or of a private aggrieved party,
individual or entity namely: the spouse,
(6) Engaged in the gathering, children and parents; or
collecting or storing of data (b) Any ascendant,
or information regarding descendant or
the person, family, home collateral relative of the
and correspondence of the aggrieved party within
aggrieved party. the fourth civil degree
What is its To inquire into all manner of of consanguinity or
function? involuntary restraint as affinity, in default of
distinguished from voluntary those mentioned in the
and to relieve a person if such preceding paragraph.
restraint is illegal.

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Where
Query Habeas Data
can (1) Regional Trial Court
VII. Freedom of
the petition (a) Where the petitioner or Expression
be filed? respondent resides, or
(b) That which has
jurisdiction over the
A. NATURE AND SCOPE
place where the data or
information is gathered, The primacy and high esteem accorded freedom
collected or stored, at of expression is a fundamental postulate of our
the option of the constitutional system. This right was elevated to
petitioner. constitutional status […] reflecting our own
(2) Supreme Court, Court of lesson of history, both political and legal, that
Appeals, Sandiganbayan – freedom of speech is an indispensable condition
when the action concerns for nearly every other form of freedom.
public data files of
government offices. The scope of freedom of expression is so broad
that it extends protection to nearly all forms of
Instead of Yes. It can be done when the
communication. It protects speech, print and
having the respondent invokes the defense
assembly regarding secular as well as political
hearing in that the release of the data or
causes, and is not confined to any particular
open court, information in question shall
field of human interest. The protection covers
can it be done compromise national security
myriad matters of public interest or concern
in chambers? or state secrets, or when the
embracing all issues, about which information
data or information cannot be
is needed or appropriate, so as to enable
divulged to the public due to its
members of society to cope with the exigencies
nature or privileged character.
of their period. [Chavez v. Gonzales (2008)]
The right to informational privacy, as a specific
Speech, expression, and press include:
component of the right to privacy, may yield to
(1) Written or spoken words (recorded or not)
an overriding legitimate state interest. [Gamboa
(2) Symbolic speech (e.g. wearing armbands as
v. Chan (2012)]
symbol of protest)
But violation of the Hotel’s Grooming
Standards by labor union members
constitutes illegal strike and therefore an
unprotected speech. [NUWHRAIN-APL-IUF
Dusit Hotel Nikko Chapter v. CA (2008)]
(3) Movies

Any and all modes of protection are embraced


in the guaranty. It is reinforced by Sec. 18(1), Art.
3.

Basis
Art. III, Sec. 4. No law shall be passed abridging
the freedom of speech, of expression, or of the

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press, or the right of the people peaceably to General rules:


assemble and petition the government for (1) Any system of prior restraints of expression
redress of grievances. comes to the Court bearing a heavy
presumption against its constitutionality,
Art. III, Sec. 18(1). No person shall be detained giving the government a heavy burden to
solely by reason of his political beliefs and show justification for the imposition of such
aspirations. restraint. [New York v. United States 1971]
(2) There need not be total suppression. Even
All are indispensable to the “uninhibited, robust restriction of circulation constitutes
and wide-open debate in the free marketplace censorship. [Grosjean v. American Press Co.,
of ideas.” [Abrams v. US (1919)] 297 US 233]

While indeed, the news item subject of the Examples of Unconstitutional Prior Restraint
present case might have ruffled the sensitivities (1) COMELEC prohibition against radio
of plaintiff, this Court however believes that the commentators or newspaper columnists
alleged defamatory articles fall within the from commenting on the issues involved in
purview of a qualifiedly privileged matter, and a scheduled plebiscite [Sanidad v.
that therefore, it cannot be presumed to be COMELEC (1990)]
malicious. The onus of proving malice is (2) Arbitrary closure of a radio station [Eastern
accordingly shifted to the plaintiff, that is, that Broadcasting v. Dans (1985)]; or even when
he must prove that the defendants were there is a legal justification, such as lack of
actuated by ill-will in what they caused to be mayor’s permit [Newsounds Broadcasting
printed and published, with a design to Network Inc. v. Dy (2009)]
carelessly or wantonly injure the plaintiff. [U.S. v. (3) COMELEC resolution prohibiting the
Bustos (1909)] posting of decals and stickers in mobile
units like cars and other moving vehicles
A.1 PRIOR RESTRAINT [Adiong v. COMELEC (1992)]
Prior restraint – refers to official governmental (4) Search, padlocking and sealing of the
restrictions on the press or other forms of offices of newspaper publishers (We Forum)
expression in advance of actual publication or by military authorities [Burgos v. Chief of
dissemination. They carry a heavy presumption Staff, supra]
of unconstitutionality but not all prior restraints (5) An announcement of a public figure to
are invalid. [Newsounds Broadcasting Network v. prohibit the media to issue a specific kind of
Dy (2009)] statement [Chavez v. Gonzales (2006)]

Censorship conditions the exercise of freedom of Examples of Constitutional Prior Restraint:


expression upon the prior approval of the (1) Law which prohibits, except during the
government. The censor serves therefore as the prescribed election period, the making of
political, moral, social and artistic arbiter for the speeches, announcements or commentaries
people, usually applying only his own subjective for or against the election of any candidate
standards in determining what is good and for office [Gonzales v. COMELEC (1969)]
what is not. (2) Prohibition on any person making use of the
media to sell or to give free of charge print
space or air time for campaign or other
political purposes except to the COMELEC.

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Ratio: police power of State to regulate Exceptions:


media for purpose of ensuring equal (a) Private communication in the
opportunity, time and space for political performance of any legal, moral or
campaigns. [National Press Club v. social duty
COMELEC (1992); Osmeña v. COMELEC] (b) Fair and true report of any judicial,
(3) Movie censorship: The power of the MTCRB legislative or other official proceedings
can be exercised only for purposes of
reasonable classification, not censorship. (2) Obscenity. The determination of what is
[Nachura, citing Gonzalez v. Katigbak (1985) obscene is a judicial function. [Pita v. CA
and Ayer v. Judge Capulong] (1989)]
(4) Near v. Minnesota, (1931):
(a) When a nation is at war, many things (3) Contempt for criticism/publications tending
that might be said in time of peace are to impede, obstruct, embarrass or influence
such a hindrance to its effort that their the courts in administering justice in a
utterance will not be endured so long as pending suit or proceeding (sub judice)
men fight and that no court could [People v. Alarcon (1939)]
regard them as protected by any
constitutional right (4) Imputation of irregularities in the judiciary
(b) Actual obstruction to the government’s must strike a balance between the right to
recruiting service or the publication of free press and the reputation of judges. A
the sailing dates of transports or the reporter is prohibited from recklessly
number and location of troops disregarding a private reputation without
(c) Obscene publications any bona fide effort to ascertain the truth
(d) Incitements to acts of violence and the thereof [In Re: Jurado (1995)]
overthrow by force of orderly
government (5) Right of students to free speech in school
premises must not infringe on the school’s
A.2 SUBSEQUENT PUNISHMENT right to discipline its students [Miriam
Concept College Foundation v. CA (2000)]
Freedom of speech includes freedom after
speech. Without this assurance, the citizen Exceptions:
would hesitate to speak for fear he might be (a) Fair comment on matters of public
provoking the vengeance of the officials he has interest. Fair comment is that which is
criticized (chilling effect). true or, if false, expresses the real
opinion of the author based upon
If criticism is not to be conditioned on the reasonable degree of care and on
government’s consent, then neither should it be reasonable grounds.
subject to the government’s subsequent (b) Criticism of official conduct is given the
chastisement. widest latitude. [US v. Bustos(1918)]

Examples of Valid Subsequent Restraints: Unprotected Speech


(1) Libel. Every defamatory imputation is Slander or libel, lewd and obscene speech, as
presumed to be malicious. [Alonzo v. CA well as “fighting words” are not entitled to
(1995)] constitutional protection and may be penalized.
[Chavez v. Gonzales (2008)]

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B. CONTENT-BASED AND CONTENT- protect private individuals from defamation.


NEUTRAL REGULATIONS [Disini v. Sec. of Justice (2014)]

National community standard as basis of what is


Content-Based Content-Neutral
defamatory
Definition Regulation of Regulations of Not belonging to a royal house does not
the subject the incidents of constitute libel. In a community like ours which
matter of the speech – time, is both republican and egalitarian, such an
utterance or place and ascription, whether correct or not, cannot be
speech manner defamatory. It is to the standards of the
Standard of Strictest scrutiny Intermediate national community, not to those of the region
Review approach that a court must refer especially where a
newspaper is national in reach and coverage.
[Bulletin Publishing v. Noel (1988)]
B.1 CONTENT-BASED RESTRICTIONS
The regulation is based on the subject matter of
Report of official conduct is privileged and
the utterance or speech. It merely controls time,
covered by press freedom
place, or manner, under well-defined standards.
Where the defamation is alleged to have been
[Newsounds Broadcasting v. Dy (2009)]
directed at a group/class, it is essential that the
statement must be so sweeping or all-
A governmental action that restricts freedom of
embracing as to apply to every individual in that
speech or of the press based on content is given
group or class, or sufficiently specific so that
the strictest scrutiny in light of its inherent and
each individual in the class or group can prove
invasive impact. [Chavez v. Gonzales (2008)]
that the defamatory statement specifically
pointed to him, so that he can bring the action
Freedom of Expression and National Security
separately, if need be. [Newsweek v. IAC (1986)]
Where a fictitious suicide photo and letter were
published in newspapers of general circulation
Group Libel
expressing disappointments of the Roxas
As the size of these groups increases, the
administration and instructing fictitious wife to
chances for members of such groups to recover
teach their children to burn pictures of the
damages on tortious libel become elusive. This
President, SC held that such act constitutes
principle is said to embrace two important
inciting to sedition.
public policies:
(1) Where the group referred to is large, the
It suggests or incites rebellious conspiracies or
courts presume that no reasonable reader
riots and tends to stir up the people against the
would take the statements as so literally
constituted authorities, or to provoke violence
applying to each individual member; and
from opposition groups who may seek to silence
(2) The limitation on liability would
the writer, which is the sum and substance of
satisfactorily safeguard freedom of speech
the offense under consideration. [Espuelas v.
and expression, as well as of the press,
People (1951)]
effecting a sound compromise between the
conflicting fundamental interests involved
Freedom of Expression and Libel
in libel cases. [MVRS v. Islamic Da’Wah
Libel is not a constitutionally protected speech
Council of the Phil (2003)]
and that the government has an obligation to

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Actual Malice Standard for Public Officials and President through a letter addressed to the
Matters of Public Interest Presidential Complaints and Actions
Even if the defamatory statement is false, no Commission (PCAC). He was charged for
liability can attach if it relates to official conduct, contempt because such complaint should have
unless the public official concerned proves that been raised to the Secretary of Justice or SC
the statement was made with actual malice — instead.
that is, with knowledge that it was false or with
reckless disregard of whether it was false or not. SC ruled that for his act to be contemptuous,
[Vasquez v. CA (1999) citing New York Times v. the danger must cause a serious imminent
Sullivan (1964)] threat to the administration of justice. It cannot
be inferred that such act has "a dangerous
SC Administrative Circular No. 08-2008 tendency" to belittle the court or undermine the
implements a rule of preference for the administration of justice for the writer merely
imposition of fine only rather than exercised his constitutional right to petition the
imprisonment in libel suits. government for redress of a legitimate
grievance. [Cabansag v. Fernandez (1957)]
Freedom of Expression and the Right to Privacy
Being a public figure does not automatically Freedom of Expression and Obscenity
destroy in toto a person’s right to privacy. The Determination: Community standard
right to invade a person’s privacy to disseminate Pictures depicting native inhabitants in their
public info does not extend to a fictional native dresses as they appear and live in their
representation of a person, no matter how native homelands are not obscene or indecent.
public a figure he/she may be. [Lagunzad v. The pictures in question merely depict persons
Soto (1979)] as they actually live, without attempted
presentation of persons in unusual postures or
Freedom of speech and expression includes dress. The aggregate judgment of the
freedom to film and produce motion pictures Philippine community, the moral sense of all
and to exhibit them. The fact that such film the people in the Philippines, would not be
production is a commercial activity is not a shocked by photographs of this type. [People v.
disqualification for availing of freedom of Kottinger (1923)]
speech and expression.
A hula-hula dance portraying a life of a widow
The right to privacy cannot be invoked to resist who lost her guerrilla husband cannot be
publication and dissemination of matter of considered protected speech if the audience,
public interest. The intrusion is no more than about a hundred customers, were howling and
necessary to keep the film a truthful historical shouting, “sige muna, sige nakakalibog” (go
account. Enrile is a public figure because of his ahead first, go ahead, it is erotic), during the
participation as a principal actor in the performance. [People v. Aparici (Court of Appeals
culminating events of the EDSA revolution. 1955)]
[Ayer Productions v. Capulong (1988)]

Freedom of Expression and the Administration of


Justice
Due to the delay in the disposition of his original
case, Cabansag asked for help from the

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B.2 CONTENT-NEUTRAL RESTRICTIONS The Calibrated Pre-emptive Response (CPR),


Regulations on the incidents of speech — time, insofar as it would purport to differ from or be in
place and manner — under well-defined lieu of maximum tolerance, is null and void.
standards. [Newsounds, supra] CPR serves no valid purpose if it means the
same thing as maximum tolerance [Sec. 3 [c] of
When the speech restraints take the form of B.P. 880], and is illegal if it means something
a content-neutral regulation, only a substantial else. Accordingly, what is to be followed is and
governmental interest is required for its should be that mandated by the law itself,
validity. Because regulations of this type are not namely, maximum tolerance. [Bayan v. Ermita
designed to suppress any particular message, (2007)]
they are not subject to the strictest form of
judicial scrutiny but an intermediate approach — B.P. 880 not unconstitutional
somewhere between the mere rationality that is B.P. No. 880 is not an absolute ban of public
required of any other law and the compelling assemblies but a restriction that simply
interest standard applied to content-based regulates the time, place and manner of the
restrictions. [Chavez v. Gonzales (2008)] assemblies. The law is not vague or overbroad.
There is, likewise, no prior restraint, since the
Content-Neutral (US v. O’Brien) test – A content of the speech is not relevant to the
government regulation is sufficiently justified if: regulation. A fair and impartial reading of B.P.
(1) It is within the constitutional power; No. 880 thus readily shows that it refers to all
(2) It furthers an important or substantial kinds of public assemblies that would use
government interest; public places. [Bayan v. Ermita, supra]
(3) The government interest is unrelated to the
suppression of free expression; Freedom Parks
(4) The incident restriction is no greater than B.P. 880 provides that every city and
essential to the furtherance of that interest. municipality must set aside a freedom park
within six months from the law’s effectivity in
Freedom of Assembly 1985. Section 15 of the law provides for an
The right to freedom of speech and to alternative forum through the creation of
peaceably assemble, and petition the freedom parks where no prior permit is needed
government for redress of grievances are for peaceful assembly and petition at any time.
fundamental personal rights of the people Without such alternative forum, to deny the
guaranteed by the constitutions of democratic permit would in effect be to deny the right to
countries. City or town mayors are not conferred peaceably assemble. [Bayan v. Ermita, supra]
the power to refuse to grant the permit, but only
the discretion in issuing the permit to determine Permit Application
or specify the streets or public places where the There is a need to address the situation
parade may pass or the meeting may be held. adverted to by petitioners where mayors do not
[Primicias v. Fugoso (1948)] act on applications for a permit and when the
police demand a permit and the rallyists could
Absent any clear and present danger of a not produce one, the rally is immediately
substantive evil, peaceable assembly in public dispersed. [Bayan v. Ermita, supra]
places like streets or parks cannot be denied.
[J.B.L. Reyes v. Bagatsing (1983)] In such a situation, as a necessary consequence
and part of maximum tolerance, rallyists who

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can show the police an application duly filed on This rationale does not apply to penal statutes
a given date can, after two (2) days from said (without a free-speech aspect). Criminal
date, rally in accordance with their application statutes have general in terrorem effect
without the need to show a permit, the grant of resulting from their very existence, and, if facial
the permit being then presumed under the law, challenge is allowed for this reason alone, the
and it will be the burden of the authorities to State may well be prevented from enacting laws
show that there has been a denial of the against socially harmful conduct. In the area of
application, in which case the rally may be criminal law, the law cannot take chances as in
peacefully dispersed following the procedure of the area of free speech. [Southern Hemisphere,
maximum tolerance prescribed by the law. supra]
[Bayan v. Ermita, supra]
However, said doctrines apply to penal statutes
C. FACIAL CHALLENGES AND THE when
OVERBREADTH DOCTRINE (1) The statute is challenged as applied; or
(2) The statute involves free speech [Disini v.
General Rule: A party can question the validity Sec. of Justice (2014)]
of a statute only if, as applied to him, it is
unconstitutional. [Southern Hemisphere v. Anti- C.2 OVERBREADTH DOCTRINE
Terrorism Council (2010)] A governmental purpose may not be achieved
by means which sweep unnecessarily broadly
Exception: Facial Challenges and thereby invade the area of protected
freedoms.
C.1 FACIAL CHALLENGES
A facial challenge is allowed to be made to a A plain reading of PP 1017 shows that it is not
vague statute and to one which is overbroad primarily directed to speech, rather it covers a
because of possible “chilling effect” upon spectrum of conduct. It is a call upon the AFP to
protected speech. The theory is that “[w]hen prevent or suppress all forms of lawless
statutes regulate or proscribe speech and no violence. Facial challenge on the ground of
readily apparent construction suggests itself as overbreadth is a very strong medicine.
a vehicle for rehabilitating the statutes in a Petitioners did not show that there is no
single prosecution, the transcendent value to all instance when PP1017 may be valid. [David vs.
society of constitutionally protected expression Arroyo (2006)]
is deemed to justify allowing attacks on overly
broad statutes with no requirement that the D. TESTS
person making the attack demonstrate that his
own conduct could not be regulated by a Test Definition
statute drawn with narrow specificity.”
Dangerous Limitations on speech are
Tendency permissible once a rational
The possible harm to society in permitting some
Doctrine connection has been
unprotected speech to go unpunished is
established between the
outweighed by the possibility that the protected
speech restrained and the
speech of others may be deterred and perceived
danger contemplated.
grievances left to fester because of possible
inhibitory effects of overly broad statutes. Balancing of When particular conduct is
Interests Test regulated for public order, and

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[Soriano v. the regulation results in an D.1 DANGEROUS TENDENCY TEST


Laguardia] indirect abridgment of speech, If the words uttered create a dangerous
the court must determine tendency of an evil which the State has the right
which of the two conflicting to prevent, then such words are punishable.
interests demand greater [Cabansag v. Fernandez (1957)]
protection.
It is sufficient if the natural tendency and the
Factors to consider: probable effect of the utterance were to bring
(1) Social value of the about the substantive evil that the legislative
freedom restricted; body seeks to prevent. [People v. Perez (1956)]
(2) Specific thrust of the
restriction, i.e. direct or D.2 CLEAR AND PRESENT DANGER TEST
indirect, affects many or The question in every case is whether the words
few; used are used in such circumstances and are of
(3) Value of the public such a nature as to create a clear and present
interest sought to be danger that they will bring about the
secured by the regulation; substantive evils that Congress has a right to
(4) Whether the restriction is prevent. It is a question of proximity and degree.
reasonably appropriate [Schenck v. United States (1919)]
and necessary for the
protection of the public This rule requires that “the danger created must
interest; not only be clear and present but also traceable
(5) Whether the necessary to the ideas expressed”. [Gonzales v. COMELEC
safeguarding of the (1969)]
public interest may be
achieved by a measure Note: This test has been adopted by the
less restrictive of the Philippine SC lock, stock and barrel and is the
protected freedom. test most applied to cases re: freedom of
Clear and Speech may be restrained expression.
Present Danger because there is a substantial
Rule danger that the speech will D.3 BALANCING OF INTEREST TEST
likely lead to an evil the When a particular conduct is regulated in the
government has a right to interest of public order, and the regulation
prevent. Requires that the evil results in an indirect, conditional and partial
consequences sought to be abridgement of speech, the duty of the courts is
prevented must be to determine which of the two conflicting
substantive, “extremely interests demands greater protection.
serious and the degree of [American Communications Assoc. v. Douds, 339
imminence extremely high.” US 282]

The test is applied when two legitimate values


not involving national security crimes compete.
[Gonzales v. COMELEC (1969)]

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D.4 DIRECT INCITEMENT TEST necessary to avoid the danger." In this case, an
The constitutional guarantees of free speech attempt to overthrow the Government by force
and free press do not permit a State to forbid or is a sufficient evil for Congress to prevent. It is
proscribe advocacy of the use of force or of law the existence of the conspiracy which creates
violation except where such advocacy is directed the danger. [Dennis v. US (1951)]
to inciting or producing imminent lawless action
and is likely to incite or produce such action. D.7 MILLER TEST
[Brandenburg v. Ohio (395 U.S. 444)] To determine obscenity:
(1) Whether the average person, applying
It is incumbent on the court to make clear in contemporary community standards would
some fashion that the advocacy must be of find that the work, taken as a whole,
action and not merely of abstract doctrine. appeals to prurient interest
[Yates v. US (1957)] (2) Whether the work depicts or describes in a
patently offensive way, sexual conduct
Political discussion even among those opposed specifically defined by the applicable state
to the present administration is within the law
protective clause of freedom of speech and (3) Whether the work, taken as a whole, lacks
expression. The same cannot be construed as serious, literary, artistic, political, or
subversive activities per se or as evidence of scientific value [Miller v. CA (1973) also
membership in a subversive organization. applied in Fernando v. CA (2006)]
[Salonga v. Cruz Paño (1986)]
D.8 TEST FOR CONTENT-NEUTRAL
D.5 INTERMEDIATE REVIEW REGULATION
Applied to content-neutral regulations, the test O’ Brien Test – content-neutral regulation is valid:
has been formulated in this manner: A (1) If it is within the constitutional power of the
governmental regulation is sufficiently justified government
(1) if it is within the constitutional power of the (2) If it furthers an important or substantial
Government; government interest
(2) if it furthers an important or substantial (3) If the government interest is unrelated to
governmental interest; the suppression of free expression
(3) if the governmental interest is unrelated to (4) If the incidental restriction is no greater than is
the suppression of free expression; and essential to the furtherance of that interest
(4) if the incident restriction on alleged
[freedom of speech & expression] is no COMELEC banned the publication of surveys 15
greater than is essential to the furtherance and 7 days prior to election concerning national
of that interest. [Chavez v. Gonzales (2008)] and local candidates, respectively. The SC held
that this regulation is content-based because
D.6 GRAVE-BUT-IMPROBABLE DANGER applying the third prong of the O-Brien Test, it
TEST actually suppresses a whole class of expression,
To determine the clear and present danger of while allowing the expression of opinion
the utterances bringing about the evil which concerning the same subject matter by other
that legislature has the power to punish, "In opinion takers. The prohibition may be for a
each case [courts] must ask whether the gravity limited time, but the curtailment of the right of
of the 'evil,' discounted by its improbability, expression is direct, absolute, and substantial.
justifies such invasion of free speech as is [SWS v. COMELEC (2001)]

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E. STATE REGULATION OF Censorship is allowable only under the clearest


DIFFERENT TYPES OF MASS MEDIA proof of a clear and present danger of a
substantive evil to public safety, morals, health
or any other legitimate public interest:
Art. XVI, Sec. 11(1). The ownership and
(1) There should be no doubt what is feared
management of mass media shall be limited to
may be traced to the expression complained
citizens of the Philippines, or to corporations,
of.
cooperatives or associations, wholly-owned and
(2) Also, there must be reasonable
managed by such citizens.
apprehension about its imminence. It does
not suffice that the danger is only probable.
The Congress shall regulate or prohibit
[Gonzales v. Kalaw-Katigbak (1985)]
monopolies in commercial mass media when
the public interest so requires. No combinations
Limited intrusion into a person’s privacy is
in restraint of trade or unfair competition
permissible when that person is a public figure
therein shall be allowed.
and the information sought to be published is of
a public character.
The advertising industry is impressed with
public interest, and shall be regulated by law
What is protected is the right to be free from
for the protection of consumers and the
unwarranted publicity, from the wrongful
promotion of the general welfare.
publicizing of the private affairs of an individual
which are outside the realm of public concern.
Only Filipino citizens or corporations or
[Ayer Productions v.Capulong, supra]
associations at least seventy per centum of the
capital of which is owned by such citizens shall
Television Censorship
be allowed to engage in the advertising
P.D. 1986 gave MTRCB the power to screen,
industry.
review and examine all television programs.
The participation of foreign investors in the
By the clear terms of the law, the Board has the
governing body of entities in such industry shall
power to “approve, delete, or prohibit the
be limited to their proportionate share in the
exhibition and/or television broadcasts of
capital thereof, and all the executive and
television programs. The law also directs the
managing officers of such entities must be
Board to apply contemporary Filipino culture
citizens of the Philippines.
values as standard to determine those which
are objectionable for being immoral, indecent,
The Court pronounced that the freedom of
contrary to law and/or good customs injurious
broadcast media is lesser in scope than the
to the prestige of the Republic of the
press because of their pervasive presence in the
Philippines and its people, or with a dangerous
lives of people and because of their accessibility
tendency to encourage the commission of a
to children.
violence or of a wrong or a crime.
Movie Censorship
The law gives the Board the power to screen,
When MTRCB rated the movie, “Kapit sa
review and examine all “television programs”
Patalim” as fit “For Adults Only”, SC ruled that
whether religious, public affairs, news
there was no grave abuse of discretion.
documentary, etc. (When the law does not make
any exception, courts may not exempt

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something therefrom). [Iglesia ni Cristo v. CA Regardless of the regulatory schemes that


(1996)] broadcast media is subjected to, the Court has
consistently held that the clear and present
Also, notwithstanding the fact that freedom of danger test applies to content-based
religion has been accorded a preferred status, restrictions on media, without making a
Iglesia ni Cristo’s program is still not exempt distinction as to traditional print or broadcast
from MTRCB’s power to review. Freedom of media. [Chavez v. Gonzales (2008)]
expression and of the press has not been
declared of preferred status. [MTRCB v. ABS- Radio Censorship
CBN (2005)] The SC does not uphold claim that Far Eastern
had no right to require the submission of the
On the program of Dating Daan, Soriano made manuscript. It is the duty of Far Eastern to
crude remarks like “lihitimong anak ng demonyo, require the submission of a manuscript as a
sinungaling, etc.” MTRCB preventively requirement in broadcasting speeches. Besides,
suspended him and his show. SC held that the laws provide for such actions:
State has a compelling interest to protect the (1) Act 8130. Franchise for Far Eastern; radio to
minds of the children who are exposed to such be open to the general public but subject to
materials. [Soriano v. Laguardia (2009)] regulations
(2) Comm. Act 98.Sec. of Interior and/or the
The SC could not compel TV stations and radio Radio Board is empowered to censor what
stations, being indispensable parties, to give is considered “neither moral, educational or
UNIDO free air time as they were not impleaded entertaining, and prejudicial to public
in this case. UNIDO must seek a contract with interest.” The Board can forfeit the license
these TV stations and radio stations at its own of a broadcasting station.
expense. [UNIDO v. COMELEC (1981)] (3) Sec. of the Interior, Dept. Order 13.Requires
submission of daily reports to Sec. of
The television camera is a powerful weapon Interior/Radio Board re: programs before
which intentionally or inadvertently can destroy airing. For speeches, a manuscript or short
an accused and his case in the eyes of the public. gist must be submitted. [Santiago v. Far
Eastern Broadcasting (1941)]
Considering the prejudice it poses to the
defendant’s right to due process as well as to Strict rules have also been allowed for radio
the fair and orderly administration of justice, because of its pervasive quality and because of
and considering further that the freedom of the the interest in the protection of children. [FCC v.
press and the right of the people to information Pacifica Foundation (1978)]
may be served and satisfied by less distracting,
degrading and prejudicial means, live radio and F. COMMERCIAL SPEECH
television coverage of the court proceedings
shall not be allowed. No video shots or Commercial speech is protected speech
photographs shall be permitted during the trial although commercial advertising in the U.S. has
proper. Video footages of court hearings for not been accorded the same level of protection
news purposes shall be limited and restricted. given to political speech. One case set down the
[Secretary of Justice v. Sandiganbayan (2001)] requirements for protection of commercial
speech:

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(a) Speech must not be false, misleading or can deny the permit, reasoning that it is not
proposing an illegal activity; because the government disapproves of the
(b) Government interest sought to be served by group's message, it is just afraid that so many
regulation must be substantial; people will be outraged that there might be
(c) The regulation must advance government violent protests. Under the Free Speech Clause
interest; and of Sec. 4, Art III, the government may not silence
(d) The regulation must not be overbroad. speech based on the reaction (or anticipated
[Bernas] reaction) of a hostile audience, unless there is a
"clear and present danger" of grave and
G. PRIVATE VERSUS GOVERNMENT imminent harm, which is not easy to prove.
SPEECH
VIII. Freedom of Religion
Parliamentary immunity guarantees the
members the freedom of expression without
No law shall be made respecting an
fear of being made responsible in criminal or
establishment of religion; or prohibiting the free
civil actions before courts or forum outside of
exercise thereof. The free exercise and
Congress. But this does not protect them from
enjoyment of religious profession and worship,
responsibility from the legislative body. The
without discrimination or preference, shall
members may nevertheless be questioned in
forever be allowed. No religious test shall be
Congress itself.
required for the exercise of civil or political
rights. [Art. III, Sec. 5]
For unparliamentary conduct, members of the
Congress have been, or could be censured,
committed to prison, even expelled by the votes Religion – reference to one’s views of his
of their colleagues. [Osmeña v. Pendatun (1960)] relations to his Creator and to the obligations
they impose of reverence for his being and
But a libelous letter of a congressman, character and of obedience to his will. [David v.
published on a newspaper, does not fall under Beason]
“speech or debate” protected by the
Constitution. Speech or debate refers to Religion is expanded to non-theistic beliefs
speeches/statements/votes made within such as Buddhism or Taoism. [Torasco v.
Congress while it is in session, or duly Watkins]
authorized actions of congressmen in the
discharge of their duties. [See Jimenez v. Four-creed criteria to qualify as religion
Cabangbang (1966)] (1) There must be belief in God or some
parallel belief that occupies a central place
in the believer’s life.
H. HECKLER’S VETO
(2) The religion must involve a moral code
transcending individual belief (can’t be
Heckler’s veto – an attempt to limit unpopular
purely subjective).
speech.
(3) Demonstrable sincerity in belief is necessary
but the court must not inquire into the truth
For example, an unpopular group wants to hold
or reasonableness of the belief.
a rally and asks for a permit. The government is
(4) There must be associational ties. [U.S. v.
not allowed to refuse the permit based upon the
Seager]
beliefs of the applicants. But the government

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A. NON-ESTABLISHMENT CLAUSE priest, preacher, minister, or dignitary is


assigned to the armed forces, or to any
A.1 CONCEPT penal institution, or government orphanage
The clause prohibits excessive government or leprosarium.”
entanglement with, endorsement or
disapproval of religion. [Victoriano v. Elizalde A.3 ACTS NOT PERMITTED BY NON-
Rope Workers Union (1974)] ESTABLISHMENT CLAUSE
(1) Prayer and Bible-reading in public schools
A.2 BASIS [Abington School District v. Schemp (1963)]
“[T]he principle of separation of Church and (2) Financial subsidy for parochial schools
State is based on mutual respect. Generally, the [Lemon v. Kurtzman (1971)]
State cannot meddle in the internal affairs of (3) Religious displays in public spaces: Display
the church, much less question its faith and of granite monument of 10 commandments
dogmas or dictate upon it. It cannot favor one in front of a courthouse is unconstitutional
religion and discriminate against another. On for being unmistakably non-secular.
the other hand, the church cannot impose its [Glassroth vs. Moore, 335 F.3d 1282 (11th Cir.
beliefs and convictions on the State and the rest 2003)]
of the citizenry. It cannot demand that the (4) Mandatory religious subjects or prohibition
nation follow its beliefs, even if it sincerely of secular subjects (evolution) in schools
believes that they are good for the country.” [Epperson v. Arkansas (1968)]
[Imbong v. Ochoa (2014), on the (5) Mandatory bible reading in school (a form
constitutionality of the RH Law] of preference for belief over non-belief)
[School District v. Schempp (1963)]
Rooted in the separation of Church and State. (6) Word “God” in the Pledge of Allegiance:
Relevant provisions of the Constitution: religious vs. atheist students [Newdow v. US
(1) Art. II, Sec. 6: “The separation of Church and (2003)]
State shall be inviolable.”
(2) Art. IX-C, Sec. 2(5): “Religious A.4 ACTS PERMITTED BY NON-
denominations and sects shall not be ESTABLISHMENT CLAUSE
registered [as political parties].”
(3) Art. VI, Sec. 5(2): “For three consecutive Constitutionally created
terms after the ratification of this (1) Tax exemption
Constitution, one-half of the seats allocated Art. VI, Sec. 28 (3). Charitable institutions,
to party-list representatives shall be filled, churches and personages or convents
as provided by law, by selection or election appurtenant thereto, mosques, non-profit
from […] sectors as may be provided by law, cemeteries, and all lands, buildings, and
except the religious sector.” improvements, actually, directly, and
(4) Art. VI, Sec. 29(2): “No public money or exclusively used for religious, charitable, or
property shall be appropriated, applied, educational purposes shall be exempt from
paid, or employed, directly or indirectly, for taxation.
the use, benefit, or support of any sect,
church, denomination, sectarian institution, (2) Operation of sectarian schools
or system of religion, or of any priest, Art. XIV, Sec. 4(2). Educational institutions,
preacher, minister, other religious teacher, other than those established by religious
or dignitary as such, except when such groups and mission boards, shall be owned

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solely by citizens of the Philippines or (4) Display of crèche in a secular setting –


corporations or associations at least sixty per depicts origins of the holiday [Lynch v.
centum of the capital of which is owned by Donnely (1984)]
such citizens… (5) Financial support for secular academic
facilities (i.e. library and science center) in
(3) Religious instruction in public schools parochial schools – has secular use [Tilton v.
Art. XIV, Sec. 3(3). At the option expressed in Richardson (403 U.S. 672)]
writing by the parents or guardians, religion (6) Exemption from zoning requirements to
shall be allowed to be taught to their children accommodate unique architectural features
or wards in public elementary and high schools of religious buildings i.e. Mormon’s tall
within the regular class hours by instructors pointed steeple [Martin v. Corporation of the
designated or approved by the religious Presiding Bishop (434 Mass. 141)]
authorities of the religion to which the children
or wards belong, without additional cost to the A.5 TWO STANDARDS USED IN DECIDING
Government. RELIGION CLAUSE CASES
(1) Separation – protects the principle of
(4) Limited public aid to religion church-separation with a rigid reading of
Art. VI, Sec. 29(2). No public money or property the principle
shall be appropriated, applied, paid, or (a) Strict Separation
employed, directly or indirectly, for the use,  The wall of separation is meant to
benefit, or support of any sect, church, protect the state from the church
denomination, sectarian institution, or system  There is an absolute barrier to formal
of religion, or of any priest, preacher, minister, interdependence of religion and state
other religious teacher, or dignitary as such,  There is hostility between the two
except when such priest, preacher, minister, or (b) Strict Neutrality or tamer separation
dignitary is assigned to the armed forces, or to  Requires the state to be neutral in its
any penal institution, or government relation with groups of religious
orphanage or leprosarium. believer; the relationship is not
necessarily adversarial
Jurisprudence  Allow for interaction between church
(1) Religious activities with secular and state, but is strict with regard to
purpose/character. — Postage stamps state action which would threaten the
depicting Philippines as the site of a integrity of religious commitment
significant religious event – promotes
 The basis of government action has a
Philippine tourism. [Aglipay v. Ruiz, (64 Phil.
secular criteria and religion may not
201)]
be used as a basis for classification of
(2) Government sponsorship of town fiestas. –
purposes
has secular character [Garces v. Estenzo
 Public policy and the constitution
(1981)]
require the government to avoid
(3) Book lending program for students in
religion-specific policy
parochial schools. – benefit to parents and
students [Board of Education v. Allen, 392
(2) Benevolent neutrality and the Doctrine of
U.S. 236]
Accommodation (infra.)

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B. FREE EXERCISE CLAUSE Cohabiting with a married man with church


sanction evidenced by a document of
The Free Exercise Clause affords absolute “Declaration of Pledging Faithfulness”
protection to individual religious convictions. [Estrada v. Escritor (2003)]
However, the government is able to regulate the
times, places, and manner of its exercise Laws and Acts Violative Of Free Exercise
[Cantwell v. Connecticut]. “Under the Free Duty to Refer in the RH Law
Exercise Clause, religious belief is absolutely The provisions mandating a “hospital or a
protected, religious speech and proselytizing medical practitioner to immediately refer a
are highly protected but subject to restraints person seeking health care and services under
applicable to non-religious speech, and the law to another accessible healthcare
unconventional religious practice receives less provider despite their conscientious objections
protection; nevertheless conduct, even if it based on religious or ethical beliefs” is violative
violates the law, could be accorded protection.” of free exercise. The Court held that this opt-out
[Estrada v. Escritor (2003)] class is a false compromise because it cannot
force someone, in conscience, to do indirectly
Dual Aspect what they cannot do directly. [Imbong v. Ochoa,
(1) Freedom to believe – absolute supra]
(2) Freedom to act on one’s belief – subject to
regulation N.B. The Court, however, held that the policy of
the government with regard to the promotion of
Laws and Acts Justified Under Free Exercise contraceptives was not violative of the
Clause establishment clause. “[T]he State is not
(1) Exemption from flag salute in school precluded to pursue its legitimate secular
[Ebralinag v. Division Superintendent of objectives without being dictated upon by the
Schools of Cebu (1993)] policies of any one religion.” [Id.]
(2) Freedom to propagate religious doctrines
The power to tax the exercise of the B.1 BENEVOLENT NEUTRALITY
privilege is the power to control or suppress DOCTRINE
its enjoyment [American Bible Society v. City It protects religious realities, tradition, and
of Manila (1957)] established practice with a flexible reading of
(3) Exemption from union shop the principle of separation of church and state.
Congress acted merely to relieve persons of
the burden imposed by union security The Doctrine of Accommodation allows the
agreements. government to take religion into account when
(4) Non-disqualification of religious leaders creating government policies to allow people to
from local government office [Pamil v. exercise their religion without hindrance. The
Teleron(1978)] effect they want to achieve is to remove a
(5) Working hours from 7:30 am to 3:30 pm burden on one’s exercise. The government may
without break during Ramadan [Re: Request take religion into account to exempt, when
of Muslim Employees in the Different Courts possible, from generally applicable
of Iligan City (2005)] governmental regulation individuals whose
(6) Exemption from administrative charge on religious beliefs and practices would be
immorality infringed, or to crate without state involvement,

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an atmosphere in which voluntary religious (1) Has the gov’t action created a burden on the
exercise may flourish. free exercise? Court must look into sincerity
(but not truth) of belief.
The breach in the wall between church and (2) Is there a compelling state interest to justify
state is allowed in order to uphold religious the infringement?
liberty, which is the integral purpose of the (3) Are the means to achieve the legitimate
religion clauses. The purpose of state objective the least intrusive? [Escritor,
accommodation is to remove the burden on a supra]
person’s exercise of his religion.
C.3 CONSCIENTIOUS OBJECTOR
Although morality contemplated in laws is In the RH Law
secular, benevolent neutrality could allow for Sections 7, 23, and 24 of RA 10354 (Reproductive
accommodation of morality based on religion, Health Law) imposes upon the conscientious
provided it does not offend compelling state objector the duty to refer the patient seeking
interests. [Estrada v. Escritor (2003)] reproductive health services to another medical
practitioner.
N.B. “Matters dealing with ‘faith, practice,
doctrine, form of worship, ecclesiastical law, A conscientious objector should be exempt from
custom and rule of a church ... are compliance with the mandates of the RH Law. If
unquestionably ecclesiastical matters which are he is compelled to act contrary to his religious
outside the province of the civil courts.’ The belief and conviction, it would be violative of
jurisdiction of the Court extends only to public "the principle of non-coercion" enshrined in the
and secular morality.” [Imbong v. Ochoa, supra] constitutional right to free exercise of religion.

C. TESTS The Court found no compelling state


interest which would limit the free exercise of
C.1 CLEAR AND PRESENT DANGER conscientious objectors. Only the prevention of
Used for religious speech. an immediate danger to the security and
welfare of the community can justify the
In order to justify restraint the court must infringement of religious freedom. Also,
determine whether the expression presents a respondents failed to show that the means to
clear and present danger of any substantive evil, achieve the legitimate state objective is the
which the state has a right to prevent. least intrusive means. [Imbong vs. Ochoa
[American Bible Society v City of Manila (1957) (2014)]
citing Tañada and Fernando on the Constitution
of the Philippines, Vol. 1, 4th ed., p. 297] Compulsory Military Service
It may also be a ground for exemption from
compulsory military service; expanded version
C.2 BENEVOLENT NEUTRALITY –
provides exemption even to those who object
COMPELLING STATE INTEREST
war based on non-religious beliefs i.e. non-
Test where conduct arising from religious belief
theist.
is involved.

Under the Benevolent Neutrality Doctrine, this is


the proper test where conduct arising from
religious belief is involved.

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Criteria: Islands to change their domicile from one


(a) There must be belief in God or a parallel locality to another. [Villavicencio v. Lukban
belief occupying a central place in the (1919)]
believer’s life
(b) Religion must involve a moral code A condition imposed by the court in connection
transcending individual belief; cannot be with the grant of bail is an example of a valid
purely subjective limitation to liberty
(c) Demonstrable sincerity in belief must be
shown, but court cannot inquire into its Liberty of travel
truth or reasonableness [United States v. Who may impair: courts (lawful order) or by the
Seeger, 380 U.S. 163 (1965)] appropriate executive officer.
(d) There must be some associational ties.
[Estrada v. Escritor A.M. No. P-02-1651. It may be impaired even without lawful order of
August 4, 2003] the court but the appropriate executive officer is
not granted arbitrary discretion to impose

IX. Liberty of Abode and limitations.

Freedom of Movement When right may be curtailed: in the interest of


national security (e.g. Human Security Act),
public safety or public health (e.g. quarantine),
The liberty of abode and of changing the same and as may be provided by law.
within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Impairment of this liberty is subject to judicial
Neither shall the right to travel be impaired review.
except in the interest of national security, public
safety or public health, as may be provided by Relocation of Manguinaes, a nomadic people, is
law. [Art. III, Sec. 6] a proper restraint to their liberty. It is for their
advancement in civilization and so that material
"Liberty" as understood in democracies, is not prosperity may be assured. [Rubi vs. Provincial
license; it is "liberty regulated by law." Board (1919)]

Freedom of movement includes two rights: Restraint on right to travel of accused on bail is
(1) Liberty of abode allowed to avoid the possibility of losing
(2) Liberty of travel jurisdiction if accused travels abroad. [Manotoc
vs. CA (1986)]
A. LIMITATIONS
Watch List Order
Liberty of abode Issued against accused in criminal cases
Who may impair: courts (lawful order) (irrespective of nationality in RTC or below) or
against any person with pending case in DOJ.
When right may be curtailed: within limits (As of this publication, the constitutionality of
prescribed by law watch list orders is being challenged in the
Supreme Court in Arroyo v. Sec. of Justice.)
The executive of a municipality does not have
the right to force citizens of the Philippine

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Hold-Departure Order and the emergence of communication


Issued against accused in criminal cases structures suitable to the needs and aspirations
(irrespective of nationality in courts below RTC), of the nation and the balanced flow of
aliens (defendant, respondent, and witness in information into, out of, and across the country,
pending civil or labor case), and any person in accordance with a policy that respects the
motu proprio by Sec of Justice or request of freedom of speech and of the press. [Art. XVI,
heads of departments, Constitutional Sec. 10]
Commissions, Congress, or SC.
Policy of Full Public Disclosure v. Right to
Both orders are issued by Secretary of Justice Information
[Department Circular no.41, June 7, 2010]. [See IDEALS v. PSALM, G.R. No. 192088; October
9, 2012]
B. RIGHT TO RETURN TO ONE’S Right to Information on
Policy of Full Public
COUNTRY Disclosure
Matters of Public
Concern
[Art. II, Sec. 28]
Right to return to one's country, a distinct right [Art. III, Sec. 7]
under international law, is independent from Matter
although related to the right to travel.
All transactions Matters of public
involving public concern.
The President has the power (residual/implied)
interest.
to impair the right to return when such return
poses threats to the government. [Marcos v.
Broad scope, embraces
Manglapus (1989)]
any matter contained
in official
communications and
X. Right to Information public documents of
the government
Subject to reasonable conditions prescribed by agency.
law, the State adopts and implements a policy Demand to Access
of full public disclosure of all its transactions
Demand or request
involving public interest. [Art. II, Sec. 28]
required to gain
access.
The right of the people to information on
matters of public concern shall be recognized. What is Asserted
Access to official records, and to documents Duty to disclose of the Right to access
and papers pertaining to official acts, government, pursuant information. (See
transactions, or decisions, as well as to to the policy of full below for documents
government research data used as basis for public disclosure. specifically under
policy development, shall be afforded the scope.)
citizen, subject to such limitations as may be
Notes
provided by law. [Art. III, Sec. 7]
Public Concern: no
The State shall provide the policy environment exact definition and
for the full development of Filipino capability adjudicated by the

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courts on a case-by- (d) Information on investigations of crimes


case basis, but by law enforcers before prosecution
examples abound in [Chavez v. PEA and Amari, supra]
jurisprudence (e.g. (e) Trade secrets and banking transactions
peace negotiations, [Chavez v. PCGG (1998)]
board exams, PCGG (f) Offers exchanged during diplomatic
compromise negotiations [Akbayan v. Aquino (2008)]
agreements, civil (g) Other confidential matters (i.e. RA 6713,
service matters). closed door Cabinet meetings, executive
sessions, or internal deliberations in the
Scope of Right to Access Information Supreme Court) [Chavez v. PCGG (1998)]
Essence: matters of public concern
(1) Official records (2) Based on access:
Includes the names of nominees of party- (a) Opportunity to inspect and copy records
lists because ultimately, the individual at his expense. [Chavez v. PEA and
members and not the party list itself will sit Amari, supra]
in Congress [Bantay Republic v. COMELEC (b) Not the right to compel custodians of
(2007)] official records to prepare lists,
(2) Documents pertaining to official acts summaries and the like. [Valmonte v.
Includes negotiations leading to the Belmonte (1989)]
consummation of the transaction.
Otherwise, the people can never exercise (3) Based on reasonable regulation for the
the right if no contract is consummated, or convenience of and for order in the office
if one is consummated, it may be too late that has custody of the documents.
for the public to expose its defects. Limited [Baldoza v. Dimaano (1976)]
to definite propositions, see below. [Chavez v.
PEA and Amari, G.R. No. 133250, July 9, Discretion does not carry with it the
2002] authority to prohibit access, inspection,
(3) Government research data used as basis for examination, or copying. [Lantaco v. Llamas
policy development (1981)]

(4) Based on availability.


A. LIMITATIONS
Right available only to citizens
Restrictions to the right to information may be:
(1) Based on kinds of information. B. PUBLICATIONS OF LAWS AND
REGULATIONS
Exempted information:
(a) Privileged information rooted in General: Full publication is a condition for law’s
separation of powers effectivity.
(b) Information of military and diplomatic
secrets Scope: All statutes (includes those of local
(c) Information affecting national and application and private laws), presidential
economic security decrees and executive orders by President
acting under power either directly conferred by
the Constitution or validly delegated by the

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legislature, and administrative rules and Decisions are matters of public concern and
regulations for implementing existing laws, interest.
charter of a city, circulars by Monetary Board.
Pleadings and other documents filed by parties
Internal regulations and letter of instructions to a case need not be matters of public concern
concerning guidelines for subordinates and not or interest. They are filed for the purpose of
the public are not included. establishing the basis upon which the court may
issue an order or a judgment affecting their
Effectivity: Fifteen days after publication unless rights and interest.
a different effectivity date is fixed by the
legislature [Tañada v. Tuvera (1986)] Access to court records may be permitted at the
discretion and subject to the supervisory and
Note: Tañada v. Tuvera explains that the protective powers of the court, after considering
publication of laws and regulations is also a due the actual use or purpose for which the request
process concern. for access is based and the obvious prejudice to
any of the parties. [Hilado, et al v. Judge (2006)]
C. ACCESS TO COURT RECORDS
Note: See Constitutional Law I Reviewer
Section 1. Court personnel shall not disclose to (Judicial Department) for a detailed discussion
any unauthorized person any confidential of the rules on disclosure of court records.
information acquired by them while employed
in the judiciary, whether such information came D. RIGHT TO INFORMATION
from authorized or unauthorized sources. RELATIVE TO GOVERNMENT
CONTRACT NEGOTIATIONS
Confidential information means information not
yet made a matter of public record relating to The constitutional right to information includes
pending cases, as well as information not yet official information on on-going negotiations
made public concerning the work of any justice before a final contract. The information,
or judge relating to pending cases, including however, must constitute definite propositions
notes, drafts, research papers, internal by the government, and should not cover
discussions, internal memoranda, records of recognized exceptions. [Chavez v. Philippine
internal deliberations and similar papers. Estate Authority (2002)]

The notes, drafts, research papers, internal Definite propositions


discussions, internal memoranda, records of While evaluation of bids or proposals is on-
internal deliberations and similar papers that a going, there are no “official acts, transactions,
justice or judge uses in preparing a decision, or decisions.” However, once the committee
resolution or order shall remain confidential makes an official recommendation, there arises
even after the decision, resolution or order is a definite proposition. From this moment, the
made public. [Canon II Confidentiality Code of public’s right to information attaches, and any
Conduct for Court Personnel (AM No. 03-06-13- citizen can assail the non-proprietary
SC)] information leading to such definite prop.
[Chavez v. PEA, supra]

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Diplomatic Negotiations
Diplomatic secrets (Diplomatic Negotiations
XI. Right to Association
Privilege): Secrecy of negotiations with foreign
countries is not violative of the right to The right of the people, including those
information. Diplomacy has a confidential employed in the public and private sectors, to
nature. While the full text [of the JPEPA] may form unions, association, or societies for
not be kept perpetually confidential, it is in line purposes not contrary to law shall not be
with the public interest that the offers abridged. [Art. III., Sec. 8]
exchanged during negotiations continue to be
privileged information. Furthermore, the The right to self-organization shall not be
information sought includes docs produced and denied to government employees. [Art. IX—B,
communicated by a party external to the PHL Sec. 2(5)]
gov’t. However, such privilege is merely
presumptive, and will not apply to all cases. xxx [The State] shall guarantee the rights of all
[Akbayan v. Aquino (2008)] workers to self-organization, collective
bargaining and negotiations, and peaceful
Court Hearings concerted activities, including the right to strike
Right of accused over right to public information: in accordance with law. They shall be entitled to
With the possibility of losing not only the security of tenure, humane conditions of work,
precious liberty but also the very life of an and a living wage. They shall also participate in
accused, it behooves all to make absolutely policy and decision-making processes affecting
certain that an accused receives a verdict solely their rights and benefits as may be provided by
on the basis of a just and dispassionate law. [Art. XIII, Sec. 3]
judgment, a verdict that would come only after
the presentation of credible evidence testified to Origin: Malolos Constitution
by unbiased witnesses unswayed by any kind of
pressure, whether open or subtle, in Interpretation of “for purposes not contrary to
proceedings that are devoid of histrionics that law”: same as clear and present danger rule,
might detract from its basic aim to ferret only such may justify abridgement to the right
veritable facts free from improper influence, to form association or society. [Gonzales v.
and decreed by a judge with an unprejudiced COMELEC (1969)]
mind unbridled by running emotions or
passions. [Re: Request for Live Radio-TV Scope: The right is recognized as belonging to
Coverage of the Trial in the Sandiganbayan of the people whether employed or unemployed, and
Plunder Cases against former President Joseph whether employed in the government or in the
Ejercito Estrada, Secretary of Justice Hernando private sector. Includes the right to unionize.
Perez v. Joseph Ejercito Estrada, A.M. No. 00-1-4-
03-SC, June 29, 2001] The State does not infringe on the fundamental
right to form lawful associations when it leaves
to citizens the power and liberty to affiliate or
not affiliate with labor unions. [Victoriano v.
Elizalde (1974)]

Every group has a right to join the democratic


process, association itself being an act of

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expression of the member’s belief, even if the action, involved would be not just the right
group offends the sensibilities of the majority. to have legal personality but also the right
Any restriction to such requires a compelling to be an association. [Philippine Association
state interest to be proven by the State. [Ang of Free Labor Unions v. Secretary of Labor
Ladlad LGBT Party v. COMELEC (2010)] (1969)]

The freedom of association presupposes a (2) Eligibility to join, assist or form union
freedom not to associate. An organization may expressly denied by law
remove a member if: The right of association of managerial
(1) It is engaged in some form of expression, employees is denied because of Article 245
whether public or private of the Labor Code which provides that
(2) The forced inclusion of a member would managerial employees are not eligible to
significantly affect the organization’s ability join, assist or form any labor organization.
to advocate public or private viewpoints This is because Art III Sec 8 is subject to the
[Boy Scouts of America v. Dale (2000)] condition that its exercise is for the
purposes not contrary to law. [United Pepsi-
Does not include the right to compel others to Cola Supervisory Union (UPSU) v. Laguesma
form an association. But there may be (1998)]
situations in which, by entering into a contract,
one may also be agreeing to join an association. Integrated Bar of the Philippines
[Bernas] Compulsory membership of a lawyer in the
integrated bar of the Philippines does not
If a land buyer who buys a lot with an annotated violate the constitutional guarantee. [In Re:
lien that the lot owner becomes an automatic Edillon, 84 SCRA 554]
member of a homeowners’ association thereby
voluntarily joins the association. [Bel-Air Village
Association vs Diokno (1989)]
XII. Eminent Domain
See also labor cases on union shop clauses A. CONCEPT
which have been held to be not violative of the
Constitution. It is the right of the government to take private
property with just compensation.
Note: Right to association and right to unionize
of government employees do not include the Requisites for Valid Exercise of Eminent Domain
right to strike. [SSS Employees Association v CA, (a) Private property
GR No. 85279, July 28, 1989] (b) Genuine necessity: inherent/presumed in
legislation, but when the power is
Labor Unionism delegated (e.g. local government units),
(1) Legal personality as pre-condition for necessity must be proven
effective association action (c) For public use: Court has adopted a broad
The right to form associations does not definition of “public use,” following the U.S.
necessarily include the right to be given trend
legal personality. However, if the law itself (d) Payment of just compensation
should make possession of legal personality (e) Due process [Manapat v. CA (2007)]
a pre-condition for effective associational

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Requisites for Valid Exercise of Eminent Domain Exercise by Delegate


by Local Governments (1) Grant of special authority for special
[LGUs, Sec. 19, Local Government Code] purpose – political question
(a) Ordinance by a local legislative council is (2) Grant of general authority – justiciable
enacted authorizing local chief executive to question [City of Manila v. Chinese
exercise eminent domain, Community of Manila (1919)]
(b) For public use, purpose or welfare or for the
benefit of the poor and of the landless, The RTC has the power to inquire into the
(c) Payment of just compensation, legality of the exercise of the right of eminent
(d) Valid and definite offer has been previously domain and to determine whether there is a
made to owner of the property sought to be genuine necessity for it. [Bardillon v. Barangay
expropriated but such offer was not Masili of Calamba, Laguna, G.R. No. 146886,
accepted [Municipality of Parañaque v. VM April 30, 2003]
Realty (1998)]
Private Property
Scope and Limitations Private property already devoted to public use
All private property capable of ownership may cannot be expropriated by a delegate of
be expropriated, except money and choses in legislature acting under a general grant of
action. Even services may be subject to eminent authority. [City of Manila v. Chinese Community,
domain. [Republic v. PLDT, 26 SCRA 620] 40 Phil 349]

Exercise of right to eminent domain is strictly Generally, all private property capable of
construed against the State or its agent ownership may be expropriated, except money
because such right is necessarily in derogation and chooses in action. [Republic v. PLDT (1969)]
of private rights. [Jesus is Lord Christian School
Foundation v. Municipality of Pasig, G.R. No. A chose in action is a proprietary right in
152230, August 9, 2005] personam, such as debts owned by another
person, a share in a joint-stock company, or a
Necessity claim for damages in tort; it is the right to bring
The foundation of the right to exercise eminent an action to recover a debt, money or thing
domain is genuine necessity and that necessity [Black’s Law Dictionary]
must be of public character. Government may
not capriciously or arbitrarily choose which Taking
private property should be expropriated. The exercise of the power of eminent domain
[Lagcao v. Judge Labra, G.R. No. 155746, does not always result in the taking or
October 13, 2004] appropriation of title to the expropriated
property; it may only result in the imposition of
Exercise by Congress a burden upon the owner of the condemned
When the power is exercised by the legislature, property, without loss of title or possession.
the question of necessity is generally a political [National Power Corporation v. Gutierrez, 193
question. [Municipality of Meycauyan, Bulacan v. SCRA 1]
Intermediate Appellate Court, 157 SCRA 640]

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Requisites for a valid taking: whatever may be beneficially employed for the
(a) The expropriator must enter a private general welfare satisfies the requirement of
property public use.
(b) Entry must be for more than a momentary
period Private bus firms, taxicab fleets, roadside
(c) Entry must be under warrant or color of restaurants, and other private businesses using
legal authority public streets and highways do not diminish in
(d) Property must be devoted to public use or the least bit the public character of
otherwise informally appropriated or expropriations for roads and streets. The lease
injuriously affected of store spaces in underpasses of streets built
(e) Utilization of the property must be in such a on expropriated land does not make the taking
way as to oust the owner and deprive him of for a private purpose. Airports and piers
beneficial enjoyment of the property. catering exclusively to private airlines and
[Republic v. Castelvi (1974)] shipping companies are still for public use. The
expropriation of private land for slum clearance
Due Process and urban development is for a public purpose
Hearing or procedure for determination of even if the developed area is later sold to
propriety of the expropriation or the private homeowners, commercial firms,
reasonableness of the compensation must be entertainment and service companies, and
provided. [Belen v. CA] other private concerns. [Heirs of Ardona v. Reyes
(1983)]
B. EXPANSIVE CONCEPT OF “PUBLIC
USE” That only a few benefit from the expropriation
does not diminish its public-use character,
Public use as a requirement for the valid inasmuch as pubic use now includes the
exercise of the power of eminent domain is now broader notion of indirect public benefit or
synonymous with public interest, public benefit, advantage. [Filstream International v. CA, 284
public welfare and public convenience. It SCRA 716]
includes the broader notion of indirect public
benefit or advantage. Public use as "Socialized housing" falls within the confines of
traditionally understood as “actual use by the "public use". It is particularly important to draw
public” has already been abandoned. attention to Presidential Decree No. 1224 which
opportunities inextricably linked with low-cost
Mining industry plays a pivotal role in the housing, or slum clearance, relocation and
economic development of the country and is a resettlement, or slum improvement emphasize
vital tool in the government’s thrust of the public purpose of the project. [Sumulong v.
accelerated recovery. Thus, that public use is Guerrero (1987)]
negated by the fact that the state would be
taking private properties for the benefit of C. JUST COMPENSATION
private mining firms or mining contractors is not
at all true. [Didipio Earth Savers (DESAMA) v. It is the just and complete equivalent of the loss
Gozun (2006)] which the owner of the thing expropriated has
to suffer by reason of the expropriation.
The idea that "public use" means "use by the
public" has been discarded. At present,

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Full and fair equivalent of the property taken; it [Republic v. Santos, 141 SCRA 30; Republic
is the fair market value of the property. (MECS) v. IAC, 185 SCRA 572]
[Province of Tayabas v. Perez (1938)] (1) The court may substitute its own estimate of
the value of the property only for valid
C.1 DETERMINATION reasons: the commissioners have applied
Basis: Fair market value illegal principles to the evidence submitted
to them;
Fair market value – price fixed by a buyer (2) They have disregarded a clear
desirous but not compelled to buy and a seller preponderance of evidence; or
willing but not compelled to sell. (3) Where the amount allowed is either grossly
inadequate or excessive. [National Power
Must include consequential damages (damages Corporation v. De la Cruz, G.R. No. 156093,
to other interest of the owner attributable to the February 2, 2007]
expropriation) and deduct consequential
benefits (increase of value of other interests When determined
attributable to new use of the former property). General rule: At the time of the filing of the case

However, where only a portion of the property is Exception: If the value of the property increased
taken, the owner is entitled only to the market because of the use to which the expropriator
value of the portion actually taken and the has put it, the value is that of the time of the
consequential damage to the remaining part. taking. [NAPOCOR v. CA (1996)]

Who Determines Legal interest: 6%, time when payment is due to


Determination of just compensation is a judicial actual payment
function. [National Power Corporation v. Sps.
Florimon v. Lleto, et al.,(2012)] C.2 EFFECT OF DELAY
Just compensation means not only the correct
Presidential Decrees (and statutes, in general, amount to be paid to the owner of the land but
including Agrarian Reform laws) merely serve also payment within a reasonable time from its
as guide/factors for the courts in determining taking [Eslaban v. De Onorio, G.R. No. 146062,
just compensation. [EPZA v. Dulay, 148 SCRA June 28, 2001]
305]
General rule on delay of payment: For non-
See, however, LBP v. Yatco Agricultural payment, the remedy is the demand of payment
Enterprises (2014) where the Court ruled that the of the fair market value of the property and not
RTC (acting as Special Agrarian Court) is not the recovery of possession of the expropriated
granted unlimited discretion but must consider lots. [Republic of the Philippines v. Court of
and apply RA 6657 and the DAR formula. The Appeals, G.R. No. 146587, July 2, 2002; Reyes v.
Court may, in the exercise of its discretion relax National Housing Authority, G.R. No. 147511,
the application of the formula but it must January 29, 2003]
clearly explain its reason for such deviation.
Exception: When the government fails to pay
Findings of court appointed commissioners just compensation within five years from the
regarding the determination of just finality of the judgment in the expropriation
compensation are not binding on courts. proceedings, the owners concerned shall have

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the right to recover possession of their property. Art. XIII, Sec. 4. The State shall, by law,
[Republic of the Philippines v. Vicente Lim, G.R. undertake an agrarian reform program founded
No. 161656, June 29, 2005] on the right of farmers and regular farmworkers
who are landless, to own directly or collectively
D. ABANDONMENT OF INTENDED the lands they till or, in the case of other
USE AND RIGHT OF REPURCHASE farmworkers, to receive a just share of the fruits
thereof.
If the expropriator (government) does not use
the property for a public purpose, the property To this end, the State shall encourage and
reverts to the owner in fee simple. [Heirs of undertake the just distribution of all agricultural
Moreno v. Mactan-Cebu International Airport lands, subject to such priorities and reasonable
(2005)] retention limits as the Congress may prescribe,
taking into account ecological, developmental,
or equity considerations, and subject to the
E. MISCELLANEOUS APPLICATION
payment of just compensation.
“Taking” Under Social Justice Clause
In determining retention limits, the State shall
Agrarian Reform [Art. XIII, Sec. 4]: This provision
respect the right of small landowners. The State
is an exercise of the police power of the State
shall further provide incentives for voluntary
through eminent domain [Association of Small
land-sharing.
Landowners v. Secretary of Agrarian Reform] as
it is a means to regulate private property.
Art. XIII, Sec. 9. The State shall, by law, and for
the common good, undertake, in cooperation
Retention limits prescribed by the
with the private sector, a continuing program of
Comprehensive Agrarian Reform Law is also
urban land reform and housing which will make
form of taking under the power of eminent
available at affordable cost, decent housing and
domain. The taking contemplated is not a mere
basic services to under-privileged and homeless
limitation on the use of the land, but the
citizens in urban centers and resettlement
surrender of the title to and physical possession
areas.
of the excess and all beneficial rights accruing
to the owner in favor of the beneficiary. [Sta.
It shall also promote adequate employment
Rosa Realty & Development Corp. v. Court of
opportunities to such citizens. In the
Appeals, G.R. No. 112526, October 12, 2001]
implementation of such program the State shall
respect the rights of small property owners.
Art. III, Sec. 9. Private property shall not be
taken for public use without just compensation.
Art. XIV, Sec. 13. The National assembly may
authorize, upon payment of just compensation,
the expropriation of private lands to be
Art. XII, Sec. 18. The State may, in the interest of
subdivided into small lots and conveyed at cost
national welfare or defense, establish and
to deserving citizens.
operate vital industries and, upon payment of
just compensation, transfer to public ownership
utilities and other private enterprises to be
operated by the government.

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XIII. Contracts Clause When Non-Impairment Clause Yields:


(1) Invalid exercise of police power i.e. zoning
regulation [Presley v. Bel-Air Village
No law impairing the obligation of contracts Association (1991)], premature campaign
shall be passed. [Art. III, Sec. 10] ban [Chavez v. COMELEC (2004)],
liquidation of a chartered bank [Philippine
A law which changes the terms of a legal Veterans Bank Employees Union v. Philippine
contract between parties, either in the time or Veterans Bank (1990)]
mode of performance, or imposes new (2) Statute that exempts a party from any one
conditions, or dispenses with those expressed, class of taxes
or authorizes for its satisfaction something (3) Against freedom of religion [Victoriano v.
different from that provided in its terms, is law Elizalde Rope Workers (1974)]
which impairs the obligation of a contract and is (4) Judicial or quasi-judicial order
therefore null and void.
The non-impairment clause is a limit on
Impairment is anything that diminishes the legislative power, and not of judicial or quasi-
efficacy of the contract. [Clements v. Nolting judicial power. The approval of the
(1922)] Rehabilitation Plan by the Securities and
Exchange Commission is an exercise of
Requisites: adjudicatory power by an administrative agency
(a) Substantial impairment and thus the non-impairment clause does not
(i) Change the terms of legal contract apply. Neither does it impair the power to
either in time or mode of performance contract. [BPI v. SEC (2007)]
(ii) Impose new conditions
(iii) Dispenses with expressed conditions Note: Timber licenses, permits, and license
(iv) Authorizes for its satisfaction something agreements are the principal instruments by
different from that provided in the terms which the State regulates the utilization and
(b) Affects rights of parties with reference to disposition of forest resources to the end that
each other, and not with respect to non- public welfare is promoted. They are not
parties. [Philippine Rural Electric deemed contracts within the purview of the due
Cooperatives Association v. Secretary, DILG, process of law clause. [Oposa v. Factoran (1993)]
G.R. No. 143076, June 10, 2003]
B. LIMITATIONS
A. CONTEMPORARY APPLICATION OF
THE CONTRACT CLAUSE It is ingrained in jurisprudence that the
constitutional prohibition does not prohibit
When Non-Impairment Clause Prevails: every change in existing laws. To fall within the
(1) Against power of taxation prohibition, the change must not only impair
(2) Regulation on loans the obligation of the existing contract, but the
impairment must be substantial. Moreover, the
New regulations on loans making redemption of law must effect a change in the rights of the
property sold on foreclosure stricter are not parties with reference to each other, and not
allowed to apply retroactively. [Co v. Philippine with respect to non-parties. [Philippine Rural
National Bank (1982)] Electric Cooperatives Association v. Secretary,
DILG, G.R. No. 143076, June 10, 2003]

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XIV. Legal Assistance party is one who has no money or property


sufficient and available for food, shelter and
and Free Access to basic necessities for himself and his family.

Courts Such authority shall include an exemption from


payment of docket and other lawful fees, and of
transcripts of stenographic notes which the
Art. III, Sec. 11. Free access to the courts and
court may order to be furnished him. The
quasi-judicial bodies and adequate legal
amount of the docket and other lawful fees
assistance shall not be denied to any person by
which the indigent was exempted from paying
reason of poverty.
shall be a lien on any judgment rendered in the
case favorable to the indigent, unless the court
Sec. 18. Indigent litigants exempt from payment
otherwise provides.
of legal fees. — Indigent litigants (a) whose
gross income and that of their immediate family
Rule 3, Sec. 21, Rules of Court. Any adverse party
do not exceed four thousand (P4,000.00) pesos
may contest the grant of such authority at any
a month if residing in Metro Manila, and three
time before judgment is rendered by the trial
thousand (P3,000.00) pesos a month if residing
court. If the court should determine after
outside Metro Manila, and (b) who do not own
hearing that the party declared as an indigent is
real property with an assessed value of more
in fact a person with sufficient income or
than fifty thousand (P50,000.00) pesos shall
property, the proper docket and other lawful
be exempt from the payment of legal fees.
fees shall be assessed and collected by the clerk
of court. If the payment is not made within the
The legal fees shall be a lien on any judgment
time fixed by the court, execution shall issue or
rendered in the case favorably to the indigent
the payment thereof, without prejudice to such
litigant, unless the court otherwise provides.
other sanctions as the court may impose.
To be entitled to the exemption herein provided,
RA No. 9999 (FREE LEGAL ASSISTANCE ACT
the litigant shall execute an affidavit that he
OF 2010)
and his immediate family do not earn a gross
Legal services – any activity which requires the
income abovementioned, nor they own any real
application of law, legal procedure, knowledge,
property with the assessed value
training and experiences which shall include,
aforementioned, supported by an affidavit of a
among others, legal advice and counsel, and
disinterested person attesting to the truth of the
the preparation of instruments and contracts,
litigant's affidavit.
including appearance before the administrative
and quasi-judicial offices, bodies and tribunals
Any falsity in the affidavit of a litigant or
handling cases in court, and other similar
disinterested person shall be sufficient cause to
services as may be defined by the Supreme
strike out the pleading of that party, without
Court.
prejudice to whatever criminal liability may have
been incurred. [Rule 141, Sec. 18, Rules of Court]
Section 4. Requirements for Availment. - For
purposes of availing of the benefits and services
Indigent party — A party may be authorized to
as envisioned in this Act, a lawyer or
litigate his action, claim or defense as an
professional partnership shall secure a
indigent if the court, upon an ex parte
certification from the Public Attorney's Office
application and hearing, is satisfied that the

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(PAO), the Department of Justice (DOJ) or


accredited association of the Supreme Court
XV. Rights of Suspects
indicating that the said legal services to be
provided are within the services defined by the (1) Any person under investigation for the
Supreme Court, and that the agencies cannot commission of an offense shall have the
provide the legal services to be provided by the right to be informed of his right to remain
private counsel. silent and to have competent and
independent counsel preferably of his own
For purpose of determining the number of hours choice. If the person cannot afford the
actually provided by the lawyer and/or services of counsel, he must be provided
professional firm in the provision of legal with one. These rights cannot be waived
services, the association and/or organization except in writing and in the presence of
duly accredited by the Supreme Court shall counsel.
issue the necessary certification that said legal (2) No torture, force, violence, threat,
services were actually undertaken. intimidation, or any other means which
vitiate the free will shall be used against
Section 5. Incentives to Lawyers. - For purposes him. Secret detention places, solitary,
of this Act, a lawyer or professional partnerships incommunicado, or other similar forms of
rendering actual free legal services, as defined detention are prohibited.
by the Supreme Court, shall be entitled to an (3) Any confession or admission obtained in
allowable deduction from the gross income, the violation of this or Section 17 hereof shall be
amount that could have been collected for the inadmissible in evidence against him.
actual free legal services rendered or up to ten (4) The law shall provide for penal and civil
percent (10%) of the gross income derived from sanctions for violations of this section as
the actual performance of the legal profession, well as compensation to the rehabilitation
whichever is lower: Provided, That the actual of victims of torture or similar practices, and
free legal services herein contemplated shall be their families. [Art. III, Sec. 12]
exclusive of the minimum sixty (60)-hour
mandatory legal aid services rendered to In Miranda v. Arizona: The Federal Supreme
indigent litigants as required under the Rule on Court made it clear that what is prohibited is
Mandatory Legal Aid Services for Practicing the "incommunicado interrogation of individuals
Lawyers, under BAR Matter No. 2012, issued by in a police dominated atmosphere, resulting in
the Supreme Court. self- incriminating statements without full
warnings of constitutional rights.”
Note: The significance of having an explicit “free
access” provisions in the Constitution may be Miranda Rights
gathered from the rocky road which “free access” The person under custodial investigation must
seems to have traveled in American be informed that:
jurisprudence. The American constitution does (1) He has a right to remain silent and that any
not have an explicit free access provision and, statement he makes may be used as
hence, its free access doctrine has been evidence against him;
developed as implicit from both the equal (2) That he has a right to the presence of an
protection clause and the due process clause. attorney, either retained or appointed,
[Bernas] (3) That he has a right to be informed of the
first two rights.

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that lends itself to eliciting incriminating


RA 7438, Rights of Persons under Custodial statements. [People v. Mara (1994)]
Investigation
Section 1. Statement of Policy. - It is the policy of Includes issuing an invitation to a person under
the Senate to value the dignity of every human investigation in connection with an offense he is
being and guarantee full respect for human suspected to have committed. [Sec. 2, RA 7438]
rights.
A.2 CRITICAL PRE-TRIAL STAGE
Section 2. Rights of Persons Arrested, Detained Any critical confrontation by the prosecution at
or Under Custodial Investigation; Duties of pretrial proceedings where the results might
Public Officers. – Any public officer or well determine his fate and where the absence
employee, or anyone acting under his order or of counsel might derogate from his right to a
his place, who arrests, detains or investigates fair trial. [U.S. v. Wade, 388 U.S. 218 (1967)]
any person for the commission of an offense:
(1) Shall inform the latter, in a language A.3 SHOW-UP AND POLICE LINE-UP
known to and understood by him, General: No right to counsel
(2) of his rights to remain silent and
(3) to have competent and independent Out-of-court identification like a “show-up”
counsel, preferably of his own choice, (accused is brought face to face with the
(4) who shall at all times be allowed to confer witness for identification), or “police line-up”
privately with the person arrested, (suspect is identified by witness from a group of
detained or under custodial investigation. persons gathered for that purpose).
(5) If such person cannot afford the services of
his own counsel, he must be provided with Exception: Right to counsel if accusatory.
a competent and independent counsel by
the investigating officer. The moment there is a move or even an urge of
said investigators to elicit admissions or
A. AVAILABILITY confessions or even plain information which
may appear innocent or innocuous at the time,
(1) When the person is already under custodial from said suspect. [Gamboa v Cruz (1988)]
investigation
(2) Custodial investigation involves any Police Line-Ups
questioning initiated by law enforcement When petitioner was identified by the
(3) During “critical pre-trial stages” in the complainant at the police line-up, he had not
criminal process been held yet to answer for a criminal offense.
The police line-up is not a part of the custodial
A.1 CUSTODIAL INVESTIGATION inquest, hence, he was not yet entitled to
Involves any questioning initiated by law counsel.
enforcement.
Thus, it was held that when the process had not
When the investigation is no longer a general yet shifted from the investigatory to the
inquiry unto an unsolved crime but has begun accusatory as when police investigation does
to focus on a particular suspect, as when the not elicit a confession the accused may not yet
suspect has been taken into police custody and avail of the services of his lawyer. [Escobedo vs.
the police carries out a process of interrogation

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Illinois of the United States Federal Supreme This warning is needed in order to make him
Court (1964)] aware not only of the privilege to remain
silent, but also of the consequences of
However, given the clear constitutional intent in forgoing it.
the 1987 Constitution, the moment there is a
move or even an urge of said investigators to (c) Right to Counsel
elicit admissions or confessions or even plain Rights of Persons Arrested, Detained or Under
information which may appear innocent or Custodial Investigation; Duties of Public
innocuous at the time, from said suspect, he Officers. –
should then and there be assisted by counsel, (a) Any person arrested, detained or under
unless he waives the right, but the waiver shall custodial investigation shall at all times be
be made in writing and in the presence of assisted by counsel; otherwise the waiver
counsel. [Gamboa vs. Cruz (1988)] shall be null and void and of no effect. [RA
7438, Rights of Persons under Custodial
B. REQUISITES Investigation, Section 2.]

Essence: Effective communication by the Essence: when a counsel is engaged by


investigator of rights of accused [People vs. anyone acting on behalf of the person under
Agustin (1995)] investigation, or appointed by the court
upon petition by said person or by someone
(a) Right to Remain Silent on his behalf. [People v. Espiritu, G.R. No.
The warning is needed simply to make the 128287, February 2, 1999]
person under custodial investigation aware
of the existence of the right. Competent and independent counsel
preferably of the suspect’s own choice.
This warning is the threshold requirement
for an intelligent decision as to its exercise. Not independent counsel: special counsel,
prosecutor, counsel of the police or a
More importantly, such a warning is an municipal attorney whose interest is
absolute pre-requisite in overcoming the adverse to that of the accused [People v.
inherent pressures of the interrogation Fabro], mayor [People v. Taliman], barangay
atmosphere. captain [People v. Tomaquin].

Further, the warning will show the Not competent counsel: lawyer signing only
individual that his interrogators are as witness [People v. Ordono], mayor of
prepared to recognize his privilege should town where accused is detained [People v.
he choose to exercise it. Velarde].

(b) Right against Self-Incrimination under Art. III, Failure to ask for a lawyer does not
Sec. 12 constitute a waiver.
The warning of the right to remain silent
must be accompanied by the explanation No effective waiver of the right to counsel
that anything said can and will be used during interrogation can be recognized
against the individual in court. unless specifically made after the warnings
have been given.

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C. WAIVER
Request for assistance of counsel before
any interrogation cannot be ignored/denied What can be waived?
by authorities. Not only right to consult with The right to remain silent and the right to
an attorney but right to be given a lawyer to counsel.
represent him if he’s indigent
What cannot be waived?
(d) Rights to Visitation And Conference The right to be given the Miranda warnings.
Sec. 2. Rights of Persons Arrested, Detained or
Under Custodial Investigation; Duties of Public Rule on Waiver
Officers. – (f) Any person arrested or detained or (1) Must be in writing
under custodial investigation shall be allowed (2) Made in the presence of counsel [Art. III,
visits by or conferences with: Sec. 12]
(1) Any member of his immediate family, or
(2) Any medical doctor; RA 7438, Rights of Persons under Custodial
(3) Priest or religious minister Investigation
(a) chosen by him; or Section 2. Rights of Persons Arrested, Detained
(b) By his counsel; or or Under Custodial Investigation; Duties of
(c) By any national non-governmental Public Officers. –
organization duly accredited by the (e) Any waiver by a person arrested or detained
Commission on Human Rights or under the provisions of Article 125 of the
(d) By any international non-governmental Revised Penal Code, or under custodial
organization duly accredited by the investigation, shall be in writing and signed
Office of the President. by such person in the presence of his
(e) The person's "immediate family" shall counsel; otherwise the waiver shall be null
include his or her spouse, fiancé or and void and of no effect.
fiancée, parent or child, brother or
sister, grandparent or grandchild, uncle Burden of Proving Voluntariness of Waiver
or aunt, nephew or niece, and guardian [People v. Jara, 1986]
or ward.
Presumption: against the waiver.
Exclusionary Rule
Violations of the Miranda rights render Burden of proof: lies with the prosecution.
inadmissible only the extrajudicial confession or Prosecution must prove with strongly
admission made during the custodial convincing evidence to the satisfaction of the
investigation. The admissibility of other Court that indeed the accused:
evidence is not affected even if obtained or (1) Willingly and voluntarily submitted his
taken in the course of the custodial confession and
investigation. [People v. Malimit (1996)] (2) Knowingly and deliberately manifested that
he was not interested in having a lawyer
assist him during the taking of that
confession.

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XVI. Rights of the When an accused under custody escapes,


he shall be deemed to have waived his right
Accused to be present on all subsequent trial dates
until custody over him is regained. Upon
motion, the accused may be allowed to
(1) No person shall be held to answer for a defend himself in person when it sufficiently
criminal offense without due process of law. appears to the court that he can properly
(2) In all criminal prosecutions, the accused protect his rights without the assistance of
shall be presumed innocent until the counsel.
contrary is proved, and shall enjoy the right (d) To testify as a witness in his own behalf but
to be heard by himself and counsel, to be subject to cross-examination on matters
informed of the nature and cause of the covered by direct examination. His silence
accusation against him, to have a speedy, shall not in any manner prejudice him.
impartial, and public trial, to meet the (e) To be exempt from being compelled to be a
witnesses face to face, and to have witness against himself.
compulsory process to secure the (f) To confront and cross-examine the
attendance of witnesses and the production witnesses against him at the trial. Either
of evidence in his behalf. However, after party may utilize as part of its evidence the
arraignment, trial may proceed testimony of a witness who is deceased, out
notwithstanding the absence of the of or cannot with due diligence be found in
accused: Provided, that he has been duly the Philippines, unavailable, or otherwise
notified and his failure to appear is unable to testify, given in another case or
unjustifiable. [Art. III, Sec. 14] proceeding, judicial or administrative,
involving the same parties and subject
Section 1. Rights of accused at trial. – In all matter, the adverse party having the
criminal prosecutions, the accused shall be opportunity to cross-examine him.
entitled to the following rights: (g) To have compulsory process issued to
(a) To be presumed innocent until the contrary secure the attendance of witnesses and
is proved beyond reasonable doubt. production of other evidence in his behalf.
(b) To be informed of the nature and cause of (h) To have speedy, impartial and public trial.
the accusation against him. (i) To appeal in all cases allowed and in the
(c) To be present and defend in person and by manner prescribed by law. [Rule 115, Rights
counsel at every stage of the proceedings, of the Accused, Rules of Court]
from arraignment to promulgation of the
judgment. The accused may, however,
A. CRIMINAL DUE PROCESS
waive his presence at the trial pursuant to
the stipulations set forth in his bail, unless
Requisites
his presence is specifically ordered by the
[People vs. Vera (1937)]
court for purposes of identification.
(a) Accused is heard by a court of competent
jurisdiction;
The absence of the accused without
(b) Accused is proceeded against under the
justifiable cause at the trial of which he had
orderly process of law;
notice shall be considered a waiver of his
(c) Accused is given notice and opportunity to
right to be present thereat.
be heard;

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(d) Judgment rendered is within the authority Basis of right: Presumption of innocence
of a constitutional law. [Mejia v. Pamaran,
1988] Who May Avail
General rule: All persons under custody of the
B. BAIL law

All persons, except those charged with offenses Exceptions:


punishable by reclusion perpetua when the (1) Those charged with capital offense when
evidence of guilt is strong, shall, before evidence of guilt is strong
conviction, be bailable by sufficient sureties, or
be released on recognizance as may be Since the evidence (rebellion) in this case is
provided by law. The right to bail shall not be hearsay, the evidence of guilt is not strong,
impaired even when the privilege of the writ of bail is allowed. [Enrile v. Perez (En Banc
habeas corpus is suspended. Excessive bail Resolution, 2001)]
shall not be required. [Art. III, Sec. 13] (2) Military men [People v Reyes, 212 SCRA 401]

Bail is the security given for the release of a Military men who participated in failed coup
person in custody of the law, furnished by him d’état because of their threat to national
or a bondsman, conditioned upon his security. [Comendador v. De Villa (1991)]
appearance before any court as may be
required. [Rule 114, Sec. 1, ROC]

Bail as a Matter of Right versus Matter Of Discretion

Matter of Right Matter of Discretion


Bail is a matter of right in all cases (1) In case the evidence of guilt is strong. In such a case,
not punishable by reclusion according to People v. San Diego (1966), the court's discretion
perpetua. to grant bail must be exercised in the light of a summary of
the evidence presented by the prosecution.

Thus, the order granting or refusing bail must contain a


summary of the evidence for the prosecution followed by the
conclusion on whether or not the evidence of guilt is strong
(Note: it is not the existence of guilt itself which is concluded
but the strength of the probability that guilt exists).

(2) In extradition proceedings.

Extradition courts do not render judgments of conviction or


acquittal so it does not matter WON the crimes the accused is
being extradited for is punishable by reclusion perpetua [US
Government v. Judge Puruganan and Mark Jimenez (2002)]

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When Available (i) The fact that the accused was a fugitive
General rule: From the very moment of arrest from justice when arrested; and
(which may be before or after the filing of (j) Pendency of other cases where the accused
formal charges in court) up to the time of is on bail.
conviction by final judgment (which means after
appeal). Excessive bail shall not be required.

No charge need be filed formally before one can Discretion is with the court called upon to rule
file for bail, so long as one is under arrest. on the question of bail. We must stress,
[Heras Teehankee v. Rovica (1945)] however, that where conditions imposed upon a
defendant seeking bail would amount to a
Arraignment of the accused is not essential to refusal thereof and render nugatory the
the approval of the bail bond. When bail is constitutional right to bail, we will not hesitate
authorized, it should be granted before to exercise our supervisory powers to provide
arraignment. Otherwise the accused may be the required remedy. [Dela Camara v. Enage
precluded from filing a motion to quash. Also, (1971)]
the court will be assured of the presence of the
accused at the arraignment precisely by grating C. PRESUMPTION OF INNOCENCE
bail and ordering his presence at any stage of
the proceeding. [Lavides v. CA (2000)] The requirement of proof beyond reasonable
doubt is a necessary corollary of the
Exceptions: constitutional right to be presumed innocent.
(1) When charged with an offense punishable [People v. Dramavo (1971)]
by reclusion perpetua.
(2) Traditionally, the right to bail is not The accused cannot present evidence before the
available to the military, as an exception to prosecution does so, even if the accused pleads
the bill of rights. [People v. Reyes, 212 SCRA guilty. It violates the presumption of innocence.
402] [Alejandro v. Pepito (1980)]

Standards for Fixing Bail The presumption of regularity (in official duties)
cannot by itself prevail over the presumption of
Rule 114. Sec. 9. Amount of bail; guidelines. – innocence of the accused. But where it is not the
The judge who issued the warrant or granted sole basis for conviction, the presumption of
the application shall fix a reasonable amount of regularity of performance of official functions
bail considering primarily, but not limited to, may prevail over the constitutional presumption
the following factors: of innocence. [People v. Acuram (2000)]
(a) Financial ability of the accused to give bail;
(b) Nature and circumstance of the offense; Equipoise Rule
(c) Penalty for the offense charged; Where the evidence adduced by the parties is
(d) Character and reputation of the accused; evenly balanced, the constitutional
(e) Age and health of the accused; presumption of innocence should tilt the
(f) Weight of the evidence against the accused; balance in favor of the accused. [Corpuz v.
(g) Probability of the accused appearing at the People (1991)]
trial;
(h) Forfeiture of other bail;

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In order that circumstantial evidence may (c) If he does, and is unable to get one, the
warrant conviction, the following requisites Court must give him one; if the accused
must concur: wishes to procure private counsel, the Court
(a) There is more than one circumstance must give him time to obtain one.
(b) The facts from which the inferences are (d) Where no lawyer is available, the Court may
derived are proven appoint any person resident of the province
(c) The combination of all the circumstances is and of good repute for probity and ability.
such as to produce conviction beyond
reasonable doubt. [People v. Bato, G.R. No. F. RIGHT TO BE INFORMED
113804, January 16, 1998]
Procedural due process requires that the
D. RIGHT TO BE HEARD accused must be informed why he is being
prosecuted and what charge he must meet.
Art. III, Sec. 12. Any person under investigation [Vera v. People, supra]
for the commission of an offense shall have the
right to be informed of his right to remain silent Note: Description, not designation of offense, is
and to have competent and independent controlling
counsel preferably of his own choice. If the
person cannot afford the services of counsel, he G. RIGHT TO SPEEDY, IMPARTIAL
must be provided with one. These rights cannot AND PUBLIC TRIAL
be waived except in writing and in the presence
of counsel. Art. III, Sec. 16. All persons shall have the right
to a speedy disposition of their cases before all
It means the accused is amply accorded legal judicial, quasi-judicial, or administrative bodies.
assistance extended by a counsel who commits
himself to the cause of the defense and acts
Art. III, Sec. 3. Civilian authority is, at all times,
accordingly. It is an efficient and truly decisive
supreme over the military. xxx
legal assistance, and not simply a perfunctory
representation. [People v. Bermas, G.R. No.
Sec. 17. Act not a bar to provision on speedy trial
120420, April 21, 1999]
in the Constitution – No provision of law on
speedy trial and no rule implementing the same
E. ASSISTANCE OF COUNSEL shall be interpreted as a bar to any charge of
denial of the right to speedy trial guaranteed by
RA 7438. Sec. 2. Rights of Persons Arrested, Section 14(2), Article III, of the 1987
Detained or Under Custodial Investigation; Constitution. [RA 8493]
Duties of Public Officers. –
(a) Any person arrested detained or under Impartial Trial
custodial investigation shall at all times be A civilian cannot be tried by a military court so
assisted by counsel; long as the civil courts are open and operating,
even during Martial Law. [Olaguer v. Military
Elements of the Right to Counsel: Commission (1987)]
(a) Court’s duty to inform the accused of right
to counsel before being arraigned;
(b) It must ask him if he desires the services of
counsel;

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Dismissal based on the denial of the right to Rationale of right to speedy trial:
speedy trial amounts to an acquittal. [Acevedo v. (1) To prevent oppressive pre-trail
Sarmiento (1970)] incarceration,
(2) To minimize anxiety and concern of the
Note: RA 8493 provides a 30-day arraignment accused,
within the filing of the information or from the (3) To limit the possibility that the defense will
date the accused appeared before the court; be impaired.
trial shall commence 30 days from the
arraignment, as fixed by the court. The entire H. RIGHT TO CONFRONTATION
trial period shall not exceed 180 days, except as
otherwise authorized by the SC Chief Justice. This is the basis of the right to cross-
examination.
Availability
(1) When proceeding is attended by vexatious, Two-fold purpose:
capricious and oppressive delays (1) To afford the accused an opportunity to test
(2) When unjustified postponements of the trial the testimony of witnesses by cross-
are asked for and secured examination
(3) When without cause or justifiable motive, a (2) To allow the judge to observe the
long period of time is allowed to elapse deportment of witnesses. [Go, et al. v. The
without the party having his case tried. [dela People of the Philippines and Highdone
Rosa v. Court of Appeals, 253 SCRA 499; Tai Company, Ltd., et al., (2012)]
Lim v. Court of Appeals, G.R. No. 131483,
October 26, 1999] Inadmissibility for lack of right to confrontation:
(1) Testimony of a witness who has not
Unreasonable delay weighed by ff factors: submitted himself to cross examination
(1) Length of delay (2) Affidavits of witnesses who are not
(2) Reason for delay presented during the trial, hence not
(3) Assertion/failure to assert right by the subjected to cross examination– hearsay,
accused [Cariago v. Court of Appeals, G.R. No. 143561,
Failure to assert means waiver of privilege. June 6, 2001]
(4) Prejudice caused by the delay [Roquero v.
The Chancellor of UP Manila] Rule on Examination of a Child Witness
[AM No. 004-07-SC]
RA 8493 is a means of enforcing the right of the The judge may exclude any person, including
accused to a speedy trial. The spirit of the law is the accused, whose presence or conduct causes
that the accused must go on record in the fear to the child.
attitude of demanding a trial or resisting delay.
[Uy v. Hon. Adriano, G.R. No. 159098, October 27, Compulsory Process
2006] (1) Right to Secure Attendance of Witness
When right not available: The right to speedy (2) Right to Production of Other Evidence
trial cannot be invoked where to sustain the Subpoena is a process directed to a person
same would result in a clear denial of due requiring him to attend and to testify at the
process to the prosecution. [Uy v. Hon. Adriano, hearing or trial of an action or at any
G.R. No. 159098, October 27, 2006] investigation conducted under the laws of the

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Philippines, or for the taking of his deposition. Anti-Subversion Act) arguing that he being a
[Caamic v. Galapon, 237 SCRA 390] civilian, such trial during martial law deprives
him of his right to due process.
Before a subpoena duces tecum may issue, the
court must first be satisfied that the following An issue has been raised as to WON petitioner
requisites are present: could waive his right to be present during trial.
(a) The books, documents or other things
requested must appear prima facie relevant On a 7-5 Voting: Seven justices voted that
to the issue subject of the controversy (test petitioner may waive his right to be present at
of relevancy), and all stages of the proceedings while five voted
(b) Such books must be reasonably described that this waiver is qualified, he cannot waive
by the parties to be readily identified (test of when he is to be identified.
definiteness). [Roco v. Contreras, G.R. No.
158275, June 28, 2005] I.3 TRIAL IN ABSENTIA
As a general rule, subject to certain exceptions,
I. TRIAL IN ABSENTIA any constitutional or statutory right may be
waived if such waiver is not against public policy.
I.1 WHEN CAN TRIAL IN ABSENTIA BE
DONE Considering Art IV, Sec 19, 1973 Constitution
3 requisites: (trial of a capital offense may proceed even in
(a) Accused failed to appear for trial despite the absence of the accused) and the absence of
postponement and notice any law specifically requiring his presence at all
(b) Failure to appear is unjustified stages of his trial, there appears, no logical
(c) After arraignment reason why petitioner, although he is charged
with a capital offense, should be precluded from
If not then the right of the accused to be waiving his right to be present in the
informed of the nature and cause of accusation proceedings for the perpetuation of testimony,
against him will be impaired for lack of since this right was conferred upon him for his
arraignment [Borja v. Mendoza (1977)] protection and benefit. [Aquino vs. Military
Commission (1975)]
Consequences: Waiver of right to cross-examine
and present evidence [Gimenez vs. Nazareno
(1988)]

I.2 WHEN PRESENCE OF THE ACCUSED IS


A DUTY
(1) Arraignment and Plea
(2) During Trial, for identification
(3) Promulgation of Sentence

Exception: Light offense → can be via counsel

Petitioner challenges the jurisdiction of military


commissions to try him (for murder, illegal
possession of firearms and for violation of the

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XVII. Writ of Habeas Upon the initiative of the President, the


Congress may, in the same manner, extend
Corpus such proclamation or suspension for a period to
be determined by the Congress, if the invasion
Basis
or rebellion shall persist and public safety
Art. III, Sec. 15. The privilege of the writ of requires it.
habeas corpus shall not be suspended except in
cases of invasion or rebellion when the public The Congress, if not in session, shall, within
safety requires it. twenty-four hours following such proclamation
or suspension, convene in accordance with its
Definition rules without need of a call.
It is defined as a writ directed to the person
detaining another, commanding him to produce The Supreme Court may: 1) review, 2) in an
the body of the prisoner at a designated time appropriate proceeding; 3) filed by any citizen,
and place, with the day and cause of his caption 4) the sufficiency of the factual basis of the
and detention, to do, submit to, and receive proclamation of martial law or the suspension
whatever the court or judge awarding the writ of the privilege of the writ or the extension
shall consider in that behalf. thereof, and 5) must promulgate its decision
thereon within thirty days from its filing.
Suspension of the Privilege of the Writ
Art. VII, Sec. 18. The President shall be the A state of martial law does not suspend the
Commander-in-Chief of all armed forces of the operation of the Constitution, nor supplant the
Philippines and whenever it becomes necessary, functioning of the civil courts or legislative
he may call out such armed forces to prevent or assemblies, nor authorize the conferment of
suppress lawless violence, invasion or rebellion. jurisdiction on military courts and agencies over
civilians where civil courts are able to function,
In case of invasion or rebellion, when the public nor automatically suspend the privilege of the
safety requires it, he may, for a period not writ.
exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the The suspension of the privilege of the writ shall
Philippines or any part thereof under martial apply only to persons judicially charged for
law. rebellion or offenses inherent in or directly
connected with invasion.
Within forty-eight hours from the proclamation
of martial law or the suspension of the privilege Availability
of the writ of habeas corpus, the President shall (1) A prime specification of an application for a
submit a report in person or in writing to the writ of habeas corpus is involuntary
Congress. restraint of liberty.
(2) Voluntary restraint of liberty i.e. right of
The Congress, voting jointly, by a vote of at least parents to regain custody of minor child
a majority of all its Members in regular or even if the child is in the custody of a third
special session, may revoke such proclamation person of her own free will. [Sombong v. CA
or suspension, which revocation shall not be set (1990)]
aside by the President. (3) Illegal arrest with supervening event when
restraint of liberty is already by virtue of the

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complaint or information. [Velasco v. CA


(1995)]
XVIII. Writ of Amparo,
(a) The issuance of a judicial process
preventing the discharge of the
Habeas Data and
detained person. Kalikasan
(b) Another is the filing of a complaint or
information for the offense for which the
accused is detained. [Section 4 of Rule
A. WRIT OF AMPARO
102]
(4) Where a sentence imposes punishment in The petition for a writ of amparo is a remedy
excess of the power of the court to impose, available to any person whose right to life,
such sentence is void as to the excess. liberty and security is violated or threatened
[Gumabon v. Director of Prisons (1971)] with violation by an unlawful act or omission of
a public official or employee, or of a private
Restraint of Liberty individual or entity. [Sec. 1, The Rule on the Writ
Not only physical restraint but any restraint on of Amparo]
freedom of action is sufficient i.e. (1) curtailed
freedom of movement by the condition that he A.1 BASIS
must get approval of respondents for any travel The Supreme Court shall have the following
outside Metro Manila, (2) abridged liberty of powers: xxx (5) Promulgate rules concerning
abode because prior approval of respondent is the protection and enforcement of
required in case petitioner wants to change constitutional rights, xxx. Such rules shall
place of residence, (3) abridged freedom of provide a simplified and inexpensive procedure
speech due to prohibition from taking any for the speedy disposition of cases, shall be
interviews inimical to national security, and (4) uniform for all courts of the same grade, and
petitioner is required to report regularly to shall not diminish, increase, or modify
respondents or their reps. [Moncupa v. Enrile substantive rights. xxx [Art. VIII, Sec. 5]
(1986)]
A.2 PETITION FOR WRIT
Note: The fact that the party to whom the writ is Form
addressed has illegally parted with the custody The petition shall be signed and verified. [Sec.
of a person before the application for the writ is 5]
no reason why the writ should not issue.
[Villavicencio v. Lukban (1919)] Contents
The petition shall allege the following:
Test for valid suspension of the privilege of the (1) The personal circumstances of the
writ: arbitrariness, not correctness petitioner
(2) The name and personal circumstances of
Conditions for valid suspension: the respondent responsible for the threat,
(a) Presence of invasion, insurrection or act or omission, or, if the name is unknown
rebellion or uncertain, the respondent may be
(b) Public safety requires it [Lansang v. Garcia described by an assumed appellation
(1971)] (3) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of

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the respondent, and how such threat or committed


violation is committed with the attendant or any of its
circumstances detailed in supporting elements
affidavits occurred
(4) The investigation conducted, if any,
SC or any of its Anywhere in (1) Before the
specifying the names, personal
justices the issuing
circumstances, and addresses of the
Philippines court or any
investigating authority or individuals, as
justice
well as the manner and conduct of the
thereof;
investigation, together with any report
(2) Before the
(5) The actions and recourses taken by the
Sandiganba
petitioner to determine the fate or
yan or CA or
whereabouts of the aggrieved party and the
any of their
identity of the person responsible for the
justices; or
threat, act or omission
(3) Any RTC of
(6) The relief prayed for.
the place
where the
The petition may include a general prayer for
threat, act
other just and equitable reliefs. [Sec. 5]
or omission
was
Where to file
committed
The petition may be filed on any day and at any
or any of its
time [Sec. 3]
elements
occurred
Filing Enforceability Returnable
RTC of the Anywhere in Before the Docket fees: None [Sec. 4]
place where the issuing court or
the threat, act Philippines judge Return
or omission Within 72 hours after service of the writ, the
was committed respondent shall file a verified written return
or any of its together with supporting affidavits which shall,
elements among other things, contain his defenses. A
occurred general denial is not allowed. [Sec. 9]
Sandiganbayan Anywhere in (1) Before the
or any of its the issuing Hearing
justices Philippines court or any Summary or court may call for a preliminary
justice conference; given same priority as petition for
Court of habeas corpus. [Sec. 13]
Appeals or any thereof; or
of its justices (2) Any RTC of
the place Proof required: Substantial evidence
where the
threat, act Defense:
or omission (1) Private individual – ordinary diligence
was

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(2) Public official – extraordinary diligence, no C. WRIT OF KALIKASAN


presumption of regularity of duties. [Sec. 17]
Remedy against violation or threat of violation
The Manalo brothers were abducted, detained, of constitutional right to a balanced and
and tortured repeatedly by the military. After healthful ecology by an unlawful act or
their escape, they filed a petition for the omission of a public official or employee, or
privilege of the Writ of Amparo. The Supreme private individual or entity, involving
Court granted the petition and held that there environmental damage of such magnitude as to
was a continuing violation of the Manalos’ right prejudice the life, health or property of
to security. inhabitants in two or more cities or provinces

As regards the relief granted, the Court held Who may file: Natural or juridical persons, NGO
that the production order under the Amparo or public interest groups in behalf of persons
rule is different from a search warrant and may whose right is violated.
be likened to the production of documents or
things under Rule27.1, ROC. [Secretary of Who has jurisdiction: Supreme Court or Court of
National Defense vs. Manalo (2008)] Appeals.

B. WRIT OF HABEAS DATA Docket fees: None


(See Previous Discussion)
When is writ issued?
The writ of habeas data is an independent and Within three (3) days from the date of filing of
summary remedy designed to protect the image, the petition, if the petition is sufficient in form
privacy, honor, information, and freedom of and substance
information of an individual, and to provide a
forum to enforce one’s right to the truth and to Return of Respondent
informational privacy. Within a non-extendible period of ten (10) days
after service of the writ, the respondent shall file
There must be a nexus between right to privacy a verified return which shall contain all
and right to life, liberty and security. defenses; all defenses not raised are deemed
waived.
Right To Informational Privacy v. Legitimate
State Interest Hearing
The determination of whether the privilege of Preliminary conference; same priority as other
the writ of habeas data, being an extraordinary writs (no more than 60 days).
remedy, may be granted in this case entails a
delicate balancing of the alleged intrusion upon Reliefs: Permanent cease and desist order,
the private life of Gamboa and the relevant other reliefs.
state interest involved. [Gamboa v. P/Supt.
Marlou C. Chan, et al., (2012)]

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XIX. Self-Incrimination crime is allowed [People v. Salas and People


v. Sara]
Clause Foreign Laws
The privilege which exists as to private papers,
A. SCOPE AND COVERAGE cannot be maintained in relation to “records
required by law to be kept in order that there
No person shall be compelled to be a witness may be suitable information of transactions
against himself. [Art. III, Sec. 17] which are the appropriate subjects of
governmental regulation and the enforcement
Only applies to compulsory testimonial, and of restrictions validly established. [Shapiro v. US
does not apply to material objects. [Villaflor v. (1948)]
Summers (1920)]
In recent cases, the US Supreme Court has
It refers therefore to the use of the mental struck down certain registration requirements
process and the communicative faculties, and that presented real and appreciable risk of self-
not to a merely physical activity. incrimination. These involved statutes directed
at inherently suspect groups in areas
If the act is physical or mechanical, the accused permeated by criminal statutes, a circumstance
can be compelled to allow or perform the act, which laid the subjects open to real risk of self-
and the result can be used in evidence against incrimination. [Bernas]
him.
The great majority of persons who file income
Examples: tax returns do not incriminate themselves by
(1) Handwriting in connection with a disclosing their occupation. [US v. Sullivan
prosecution for falsification is not allowed, (1927)]
[Beltran v. Samson, 53 Phil 570; Bermudez vs.
Castillo (1937)] B. APPLICATION
(2) Re-enactment of the crime by the accused
is not allowed General Rule: The privilege is available in any
(3) The accused can be required to allow a proceedings, even outside the court, for they
sample of a substance taken from his body may eventually lead to a criminal prosecution.
[U.S. vs. Tan The (1912)], or be ordered to
expel the morphine from his mouth [U.S. v. Expanded Application:
Ong Sio Hong (1917)] (1) Administrative proceedings with penal
(4) Accused may be made to take off her aspect i.e. medical board investigation.
garments and shoes and be photographed [Pascual v. Board of Medical
[People v. Otadura, 96 Phil 244, 1950]; Examiners(1969)], forfeiture proceeding
compelled to show her body for physical [Cabal v. Kapunan Jr. (1962)]
investigation to see if she is pregnant by an (2) Fact-Finding investigation by an ad hoc
adulterous relation [Villaflor v. Summers body [Galman v. Pamaran (1985)]
(1920)]
(5) Order to give a footprint sample to see if it
matches the ones found in the scene of the

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Effect of Denial of Privilege


Exclusionary Rule (under Sec. 17, Art. III in
XX. Involuntary
relation to Sec. 12): When the privilege against
self-incrimination is violated outside of court
Servitude and Political
(e.g. police), then the testimony, as already Prisoners
noted, is not admissible.
(1) No person shall be detained solely by
Ousted of Jurisdiction: When the privilege is
reason of his political beliefs and
violated by the Court itself, that is, by the judge,
aspirations.
the court is ousted of its jurisdiction, all its
(2) No involuntary servitude in any form shall
proceedings, and even judgment are null and
exist except as a punishment for a crime
void. [Chavez v. CA (1968)]
whereof the party shall have been duly
convicted. [Art. III, Sec. 18]
C. IMMUNITY STATUTES
Involuntary Servitude
Transactional Immunity Slavery and involuntary servitude, together with
The Commission on Human Rights shall have their corollary peonage, all denote “a condition
the following powers and functions: xxx of enforced, compulsory service of one to
(8) Grant immunity from prosecution to any another.” [Hodges v. US (1906) in Rubi v.
person whose testimony or whose Provincial Board of Mindoro (1919)]
possession of documents or other evidence
is necessary or convenient to determine the A private person who contracts obligations of
truth in any investigation conducted by it or this sort toward the Army cannot, by law that
under its authority; [Art. XIII, Sec. 18] we know of, either civil or military be compelled
to fulfill them by imprisonment and deportation
Use and Fruit of Immunity from his place of residence, we deem it wholly
“Use immunity” prohibits use of a witness’ improper to sustain such means of compulsion
compelled testimony and its fruits in any which are not justified either by law or by the
manner in connection with the criminal contract. [In Re Brooks (1901)]
prosecution of the witness.
Domestic services are always to be remunerated,
“Transactional immunity” grants immunity to and no agreement may subsist in law in which it
witness from prosecution for an offense to is stipulated that any domestic service shall be
which his compelled testimony relates. [Galman absolutely gratuitous, unless it be admitted that
v. Pamaran (1985)] slavery may be established in this country
through a covenant entered into between
interested parties. [de los Reyes v. Alojado
(1910)]

A former court stenographer may be compelled


under pain of contempt to transcribe
stenographic notes he had failed to attend to
while in service. xxx such compulsion is not the
condition of enforced compulsory service
referred to by the Constitution.

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Fernando, J. concurring opinion:


The matter could become tricky should a
XXI. Excessive Fines and
stenographer stubbornly refuse to obey and the
court insists on keeping him in jail. The
Cruel and Inhuman
detention could then become punitive and give Punishments
rise to the issue of involuntary servitude.
[Aclaracion v. Gatmaitan (1975)]
Art. III, Sec. 19. Excessive fines shall not be
imposed, nor cruel, degrading or inhuman
Political Prisoners
punishment inflicted. Neither shall death
If the petitioners are political prisoners subject
penalty be imposed, unless, for compelling
to the civil jurisdiction of ordinary courts of
reasons involving heinous crimes, the Congress
justice if they are to be prosecuted at all, the
hereafter provides for it. Any death penalty
army has no jurisdiction, nor power, nor
already imposed shall be reduced to reclusion
authority, from all legal standpoints, to
perpetua.
continue holding them in restraint. They are
The employment of physical, psychological,
entitled, as a matter of fundamental right, to be
or degrading punishment against any prisoner
immediately released, any allegation as to
or detainee or the use of substandard or
whether the war was ended or not. [Raquiza v.
inadequate penal facilities under subhuman
Bradford (1945)]
conditions shall be dealt with by law.
Sec. 19 of CA No. 682 authorizes that the
In this case the Court took into account, in
political prisoners in question "may be released
lowering the penalty to reclusion perpetua of the
on bail, even prior to the presentation of the
accused most of whom were already death row
corresponding information," and this may be
convicts, the deplorable sub-human conditions
done "existing provisions of law to the contrary
of the National Penitentiary where the crime
notwithstanding." We must assume that the
was committed. [People v. dela Cruz (1953)]
discretion granted must be construed in the
sense that the same may be exercised in cases
What is prohibited: Cruel and unusual
wherein it was not heretofore granted by law.
punishment. Unusual punishment is not
And it is reasonable to assume that the
prohibited especially if it makes the penalty less
discretion granted is to the effect that the
severe.
People's Court may exercise jurisdiction to order
the release on bail of political prisoners "even
What is a cruel punishment?
prior to the presentation of the corresponding
(1) Involves torture or lingering death [Legarda
information." [Duran v. Abad Santos (1945)]
v. Valdez (1902)]
(2) Not only severe, harsh or excessive but
flagrantly and plainly oppressive
(3) Wholly disproportionate to the nature of the
offense as to shock the moral sense of the
community [People v. Estoista (1953)]

Note: The constitutional limit must be reckoned


on the basis of the nature and mode of
punishment measured in terms of physical pain

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RA 9346 (June 24, 2006): An Act Prohibiting the with Art XIII, Sec 18. There is a command
Imposition of Death Penalty in the Philippines addressed to Congress to pass whatever civil or
Sec. 1. The imposition of the penalty of death is penal legislation might be required for the
hereby prohibited. Accordingly, R.A. No. 8177, subject. [Bernas]
otherwise known as the Act Designating Death
by Lethal Injection is hereby repealed. R.A. No.
7659, otherwise known as the Death Penalty
XXII. Non-Imprisonment
Law, and all other laws, executive orders and
decrees, insofar as they impose the death
for Debts
penalty are hereby repealed or amended
accordingly. No person shall be imprisoned for debt or non-
payment of a poll tax. [Art. III, Sec. 20]
The import of the grant of power to Congress to
restore the death penalty requires: Scope
(a) that Congress define or describe what is (1) Debt – any civil obligation arising from a
meant by heinous crimes contract. It includes even debts obtained
(b) that Congress specify and penalize by death, through fraud since no distinction is made
only crimes that qualify as heinous in in the Constitution. [Ganaway v. Quillen
accordance with the definition or (1922)]
description set in the death penalty bill (2) Poll Tax – a specific sum levied upon any
and/or designate crimes punishable by person belonging to a certain class without
reclusion perpetua to death in which latter regard to property or occupation (e.g.
case, death can only be imposed upon the community tax).
attendance of circumstances duly proven in
court that characterize the crime to be A tax is not a debt since it is an obligation
heinous in accordance with the definition or arising from law. Hence, its non-payment
description set in the death penalty bill maybe validly punished with imprisonment.
(c) that Congress, in enacting this death
penalty bill be singularly motivated by Santos refused to pay 16 pesos for Ramirez’s
“compelling reasons involving heinous cedula as payment for what Santos owed
crimes.” Ramirez. Thus, Ramirez was convicted and
imprisoned for estafa. Upon demand for release,
For a death penalty bill to be valid, Sec. 19(1) the Court held that the imprisonment was
does not require that there be a positive correct since it was for estafa and not
manifestation in the form of higher incidence of involuntary servitude or imprisonment for debt.
crime first perceived and statistically proven. [Ramirez v. de Orozco (1916)]
Neither does the said provision require that the
death penalty be resorted to as a last recourse The obligation incurred by the debtor, as shown
when all other criminal reforms have failed to by the receipt, was to pay an ordinary
abate criminality in society. [People v. Echegaray contractual obligation. Since the guardianship
(1997)] proceeding was civil in nature, the Court did not
allow enforcement of the civil obligation by an
Sec 19 (2) as worded, already embodies order of imprisonment. [In re Tamboco (1917)]
constitutional authorization for the Commission
on Human Rights to take action in accordance

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No person may be imprisoned for debt in virtue (4) Offense necessarily included in the 1st
of a civil proceeding. [Makapagal v. Santamaria offense (All the elements of the 2nd
(1930)] constitute some of the elements of the 1st
offense)
A person may be imprisoned as a penalty for a (5) Offense that necessarily includes the 1st
crime arising from a contractual debt and offense (All the elements of the 1st
imposed in a proper criminal proceeding. Thus, constitute some of the elements of the 2nd
the conversion of a criminal fine into a prison offense)
term does not violate the provision because in
such a case, imprisonment is imposed for a Exceptions:
monetary obligation arising from a crime. (1) The graver offense developed due to
[Ajeno v, Judge Insero (1976)] "supervening facts" arising from the same
act or omission constituting the former

XXIII. Double Jeopardy charge.


(2) The facts constituting the graver charge
became known or were discovered only
No person shall be twice put in jeopardy of after the filing of the former complaint or
punishment for the same offense. If an act is information.
punished by a law and an ordinance, conviction (3) The plea of guilty to the lesser offense was
or acquittal under either shall constitute a bar made without the consent of the fiscal and
to another prosecution for the same act. [Art. III, the offended party.
Sec. 21]
When Defense of Double Jeopardy Is Available
Termination of Jeopardy (1) Dismissal based on insufficiency of
(1) By acquittal evidence;
(2) By final conviction (2) Dismissal because of denial of right to
(3) By dismissal without express consent of speedy trial;
accused (3) Accused is discharged to be a state witness.
(4) By “dismissal” on the merits
When the State Can Challenge the Acquittal of
A. REQUISITES the Accused or the Imposition of a Lower Penalty
by a Trial Court
(a) Court of competent jurisdiction; (1) Where the prosecution is deprived of a fair
(b) A Complaint/Information sufficient in form opportunity to prosecute and prove its case,
and substance to sustain a conviction; tantamount to a deprivation of due process;
(c) Arraignment and plea by the accused; (2) Where there is a finding of mistrial;
(d) Conviction, acquittal, or dismissal of the (3) Where there has been a grave abuse of
case without the express consent, of the discretion. [Villareal v. People (2012)]
accused. [Rule 117, Sec. 7; People v. Obsania
(1968)]

When Subsequent Prosecution Is Barred


(1) Same offense
(2) Attempt of the same offense
(3) Frustration of the same offense

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B. MOTIONS FOR RECONSIDERATION (3) Against multiple punishments for the same
AND APPEALS offense. [People v. Dela Torre, G.R. No. 1379-
58, April 11, 2002]
The accused cannot be prosecuted a second
time for the same offense and the prosecution C. DISMISSAL WITH CONSENT OF
cannot appeal a judgment of acquittal. [Kepner ACCUSED
v. US (1904)]
Provisional dismissal. — A case shall not be
Provided, that the judge considered the provisionally dismissed except with the express
evidence, even if the appreciation of the consent of the accused and with notice to the
evidence leading to the acquittal is erroneous, offended party. [Rule 117, Sec. 8, par. 1]
an appeal or motion for reconsideration by the
prosecution will not be allowed. [People v. Judge When the case is dismissed other than on the
Velasco (2000)] merits, upon motion of the accused personally,
or through counsel, such dismissal is regarded
No error, however, flagrant, committed by the as “with express consent of the accused”, who is
court against the state, can be reserved by it for therefore deemed to have waived the right to
decision by the Supreme Court when the plea double jeopardy.
defendant has once been placed in jeopardy
and discharged even though the discharge was
the result of the error committed. [People v. Ang
Cho (1945) citing State v. Rook]

A mere verbal dismissal is not final until written


and signed by the judge. [Rivera, Jr. v. People
(1990)]

When an accused appeals his conviction, he


waives his right to the plea of double jeopardy.
If the accused had been prosecuted for a higher
offense but was convicted for a lower offense,
he has technically been acquitted of the higher
offense. His appeal would give the Court the
right to impose a penalty higher than that of the
original conviction imposed on him. [Trono v. US
(1905)]

Double jeopardy provides three related


protections:
(1) Against a second prosecution for the same
offense after acquittal;
(2) Against a second prosecution for the same
offense after conviction; and

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XXIV. Ex Post Facto and B. BILLS OF ATTAINDER

Bills Of Attainder A bill of attainder is a legislative act which


inflicts punishment without judicial trial. If the
punishment be less than death, the act is
No ex post facto law or bill of attainder shall be
termed a bill of pains and penalties. Within the
enacted. [Art. III, Sec. 22]
meaning of the Constitution, bills of attainder
include bills of pains and penalties. [Cummings
A. EX POST FACTO LAWS v. Missouri (1867)]

(1) Makes an action done before the passing of It is a general safeguard against legislative
the law and which was innocent when done exercise of the judicial function, or trial by
criminal, and punishes such action. legislature. [US v. Brown (1965)]
(2) Aggravates a crime or makes it greater than
when it was committed. RA 1700 which declared the Communist Party
(3) Changes the punishment and inflicts a of the Philippines a clear and present danger to
greater punishment than the law annexed Philippine security, and thus prohibited
to the crime when it was committed. membership in such organization, was
(4) Alters the legal rules of evidence and contended to be a bill of attainder. Although
receives less or different testimony than the the law mentions the CPP in particular, its
law required at the time of the commission purpose is not to define a crime but only to lay a
of the offense in order to convict the basis or to justify the legislative determination
defendant. [Mekin v. Wolfe, 1903] that membership in such organization is a crime
(5) Assumes to regulate civil rights and because of the clear and present danger to
remedies only but in effect imposes a national security. [People v. Ferrer (1972)]
penalty or deprivation of a right which when
done was lawful.
(6) Deprives a person accused of a crime of
some lawful protection of a former
conviction or acquittal, or a proclamation of
amnesty. [In re Kay Villegas Kami (1970)]

The prohibition applies only to criminal


legislation which affects the substantial rights
of the accused. [Phil. National Bank v. Ruperto
(1960)]

It applies to criminal procedural law prejudicial


to the accused. [US v. Gomez (1908)]

It is improper to apply the prohibition to an


executive proclamation suspending the
privilege of the writ of habeas corpus.
[Montenegro v. Castañeda (1952)]

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POLITICAL LAW
ADMINISTRATIVE
LAW

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I. General Principles II. Administrative


A. DEFINITION
Agencies
Administrative Law is that branch of modern
A. DEFINITION
law under which the executive department of
the government, acting in a quasi-legislative or
quasi-judicial capacity, interferes with the Administrative Agencies – are the organs of
conduct of the individual for the purpose of government, other than a court and other than
promoting the well-being of the community the legislature, which affect the rights of private
[Roscoue Pound] parties either through adjudication or through
rule-making [Nachura].
B. HISTORICAL CONSIDERATIONS
B. WHEN IS AN AGENCY
B.1. WHY DID ADMINISTRATIVE ADMINISTRATIVE?
AGENCIES COME ABOUT? Where its function is primarily regulatory even if
(1) Growing complexities of modern life it conducts hearings and determines
(2) Multiplication of number of subjects controversies to carry out its regulatory duty.
needing government regulation; and
(3) Increased difficulty of administering laws On its rule-making authority, it is administrative
[Pangasinan Transportation v. Public Service when it does not have discretion to determine
Commission (1940)] what the law shall be but merely prescribes
details for the enforcement of the law.
B.2. WHY ARE ADMINISTRATIVE
AGENCIES NEEDED? C. MANNER OF CREATION
Because the government lacks: (1) 1987 Constitution
(1) Time (E.g. CSC, COMELEC, COA, CHR, Judicial
(2) Expertise and and Bar Council, NEDA and Office of the
(3) Organizational aptitude for effective and Ombudsman)
continuing regulation of new developments (2) Legislative Enactments
in society [Stone] (E.g. NLRC, SEC, PRC, Social Security
Commission, Commission on Immigration
and Deportation, Philippine Patent Office,
Games and Amusement Board, Board of
Energy, and Insurance Commission)
(3) Executive Orders/ Authorities of law
(E.g. Fact-finding Agencies)

C.1. EXECUTIVE POWER TO CREATE AD


HOC COMMITTEES
The Executive is given much leeway in ensuring
that our laws are faithfully executed. As stated
above, the powers of the President are not
limited to those specific powers under the
Constitution. One of the recognized powers of

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the President granted pursuant to this


constitutionally mandated duty is the power to
III. Powers of
create ad hoc committees. This flows from the
obvious need to ascertain facts and determine if
Administrative Agencies
laws have been faithfully executed. […] There is
no usurpation on the part of the Executive of the The powers of administrative agencies are:
power of Congress to appropriate funds, (1) Quasi-legislative (Rule-making)
because there will be no appropriation, but only (2) Quasi-judicial (Adjudicatory) and
an allotment or allocation of existing funds (3) Determinative powers
already appropriated. [Biraogo v. Phil. Truth
Comm’n, G.R. No. 192935, Dec. 7, 2010] Does the grant of such powers to Administrative
Agencies violate the Doctrine of Separation of
Powers? No.
D. KINDS
(1) Government grant or gratuity, special
Administrative agencies became the catch
privilege (e.g. Bureau of Lands, Phil.
basin for the residual powers of the 3 branches.
Veterans Admin., GSIS, SSS, PAO);
The theory of the separation of powers is
(2) Carrying out the actual business of
designed to forestall overaction resulting from
government (e.g. BIR, Bureau of Customs,
concentration of power. However with the
Bureau of Immigration, Land Registration
growing complexity of modern life, there is a
Authority);
constantly growing tendency toward the
(3) Service for public benefit (e.g. Phil Post,
delegation of greater powers by the legislature.
PNR, MWSS, NFA, NHA);
[Pangasinan Transportation v. Public Service
(4) Regulation of businesses affected with
Commission (1940)]
public interest (e.g. Insurance Commission,
LTFRB, NTC, HLURB);
Doctrine of Necessary Implication – [W]hat is
(5) Regulation of private businesses and
implied in a statute is as much a part thereof as
individuals (e.g. SEC);
that which is expressed. Every statute is
(6) Adjustment of individual controversies
understood, by implication, to contain all such
because of a strong social policy involved
provisions as may be necessary to effectuate its
(e.g. ECC, NLRC, SEC, DAR, COA).
object and purpose, or to make effective rights,
powers, privileges or jurisdiction which it grants,
including all such collateral and subsidiary
consequences as may be fairly and logically
inferred from its terms. Ex necessitate legis. And
every statutory grant of power, right or privilege
is deemed to include all incidental power, right
or privilege. This is so because the greater
includes the lesser, expressed in the maxim, in
eo plus sit, simper inest et minus. [Chua v. CSC
(1993)]

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A. QUASI-LEGISLATIVE (RULE- being challenged. [Chiongbian v.Orbos


MAKING) POWER (1995)]
(Asked 5 times in the Bar)
Kinds of Administrative Rules and Regulations
The authority delegated by the law-making (1) Supplementary legislation – pertains to
body to the administrative agency to adopt rules rules and regulations to fix details in the
and regulations intended to carry out the execution of a policy in the law. e.g. IRRs of
provisions of a law and implement a legislative the Labor Code.
policy. [CRUZ] (2) Interpretative legislation – Pertains to rules
and regulations construing or interpreting
the provisions of a statute to be enforced
Doctrine of Subordinate Legislation - Power to
and they are binding on all concerned until
promulgate rules and regulations is only limited
they are changed, i.e. BIR Circulars.
to carrying into effect what is provided in the
legislative enactment.
A.2. LEGISLATIVE RULES AND
Non-Delegation Doctrine – Potestas delegata INTERPRETATIVE RULES,
non delegare potest.What has been delegated DISTINGUISHED
cannot be delegated.
Legislative Rules Interpretative Rules
A.1. LEGISLATIVE DELEGATION Promulgated Passed pursuant to its
i. Requisites for a Valid Delegation pursuant to its quasi-judicial capacity.
(1) Completeness Test –The law must be quasi-legislative/
complete in itself and must set forth the rule-making
policy to be executed functions.
(2) Sufficient Standards Test – The law must fix Create a new law, a Merely clarify the
a standard, the limits of which are new policy, with the meaning of a pre-
sufficiently determinate or determinable, to force and effect of existing law by inferring
which the delegate must conform. [See law. its implications.
Abakada v. Purisima, G.R. No. 168056, Sep. Need publication. Need not be published.
1, 2005] So long as the court The court may review
finds that the the correctness of the
What is a sufficient standard: legislative rules are interpretation of the law
(1) Defines legislative policy, marks its limits, within the power of given by the
maps out its boundaries and specifies the the administrative administrative body,
public agency to apply it; and agency to pass, as and substitute its own
(2) Indicates the circumstances under which seen in the primary view of what is correct.
the legislative command is to be effected. law, then the rules If it is not within the
[Santiago v. COMELEC (1997); Abakada v. bind the court. The scope of the
Ermita (2005)] court cannot administrative agency,
question the wisdom court can only invalidate
Forms of the sufficient standard: or correctness of the the same but not
(1) Express policy contained in substitute its decision or
(2) Implied [Edu v.Ericta (1970)] the rules. interpretation or give its
(3) Embodied in other statutes on the same own set of rules.
matter and not necessarily in the same law

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Legislative Rules Interpretative Rules i. Publication Rules


Due process means Due process involves (1) Administrative rules and regulations are
that the body whether the parties subject to the publication and effectivity
observed the proper were afforded the rules of the Admin Code.
procedure in passing opportunity to be (2) Publication Requirement: EO 200 (Art.
rules. notified and heard 2, Civil Code) requires publication of
before the issuance of laws in the Official Gazette or in a
the ruling. newspaper of general circulation.
Publication is indispensable, especially
Restrictions on interpretative regulations: if the rule is general. Tañada v. Tuvera
(1) does not change the character of a (1986) interpreted this to apply to
ministerial duty; administrative rules and regulations “if
(2) does not involve unlawful use of legislative their purpose is to enforce or implement
or judicial power. existing law pursuant also to a valid
delegation.”
Administrative interpretations: May eliminate Exceptions:
construction and uncertainty in doubtful cases. (1) Interpretative rules [Tañada v.
When laws are susceptible of two or more Tuvera (1986)]
interpretations, the administrative agency (2) Internal regulations (i.e. regulating
should make known its official position. personnel) [Id.]
(3) Letters of instructions issued by
Administrative construction/ interpretation not administrative superior to
binding on the court as to the proper subordinates
construction of a statute, but generally it is (3) Filing Requirement
given great weight, has a very persuasive
influence and may actually be regarded by the ADMIN. CODE, Bk. VII, Sec. 3. Filing. -
courts as the controlling factor. (1) Every agency shall file with the University
of the Philippines Law Center three (3) certified
Administrative interpretation is merely advisory; copies of every rule adopted by it. Rules in
Courts finally determine what the law means. force on the date of effectivity of this Code
which are not filed within three (3) months
Contingent legislation – Pertains to rules and from that date shall not thereafter be the basis
regulations made by an administrative authority of any sanction against any party or persons.
on the existence of certain facts or things upon […]
which the enforcement of the law depends.
(4) Effectivity: 15 days after filing and
A.3. REQUISITES FOR VALIDITY publication
Requisites of a valid administrative rule
(1) Within the scope or authority of law ADMIN. CODE, Bk. VII, Sec. 4. Effectivity. - In
(2) Authorized by law addition to other rule-making requirements
(3) Reasonable provided by law not inconsistent with this
(4) Promulgated in accordance with prescribed Book, each rule shall become effective fifteen
procedure (15) days from the date of filing as above
provided unless a different date is fixed by law,
or specified in the rule in cases of imminent

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danger to public health, safety and welfare, (2) The law itself must declare the act as
the existence of which must be expressed in a punishable and must also define or fix the
statement accompanying the rule. The agency penalty for the violation [Id.]; and
shall take appropriate measures to make (3) The rule must be published before it takes
emergency rules known to persons who may effect. [People v. Que Po Lay (1954)]
be affected by them.
Can administrative bodies make penal rules?
Note: NO. Penal statutes are exclusive to the
(1) The Admin. Code requires filing. legislature and cannot be delegated.
(2) The Civil Code requires publication. [supra] Administrative rules and regulations must not
include, prohibit or punish acts which the law
Because the Admin. Code does not preclude does not even define as a criminal act. [People
other rule-making requirements provided by v.Maceren (1977)]
law (i.e. the Civil Code), both publication and
filing must be satisfied before the 15 day-count A.4. POWER TO AMEND, REVISE, ALTER
begins. OR REPEAL RULES
[T]he grant of express power to formulate
Exceptions: implementing rules and regulations must
(1) Different date is fixed by law or specified in necessarily include the power to amend, revise,
the rule. alter, or repeal the same. [Yazaki Torres
(2) In case of imminent danger to public health, Manufacturing, Inc. v. CA (2006)]
safety and welfare.
B. QUASI-JUDICIAL (ADJUDICATORY)
ii. Penal Rules
POWER
Admin. Code, Bk. VII, Sec. 6. Omission of Some
(Asked 4 times in the Bar)
Rules. – […] (2) Every rule establishing an
offense or defining an act which, pursuant to
The power of the administrative agency to
law is punishable as a crime or subject to a
determine questions of fact to which the
penalty shall in all cases be published in full
legislative policy is to apply, in accordance with
text.
the standards laid down by the law itself.
[Smart Communications v. NTC (2003)]
General Rule: Rules must not provide penal
sanctions
B.1. SOURCE
Incidental to the power of regulation but is
Exception:“A violation or infringement of a rule
often expressly conferred by the legislature
or regulation validly issued can constitute a
through specific provisions in the charter of the
crime punishable as provided in the authorizing
agency.
statute and by virtue of the latter.” [People v.
Maceren (1977)]

Therefore, three conditions must concur:


(1) The agency was given rule-making authority
[Id.];

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B.2. DISTINCTIONS FROM JUDICIAL (2) Contempt Power


PROCEEDINGS General Rule: Get the aid of RTC.
Kind of Exception: Law gives agency contempt
Administrative Judicial power. [Sec. 13, Bk. VII, 1987 Admin Code]
Proceedings
Nature of (3) Power to issue Search Warrant or Warrant
Inquisitorial Adversarial of Arrest
Proceedings
Liberally Follow
Rules of applied technical rules General Rule: Only Judges may issue.
Procedure in the Rules of Under the express terms of our Constitution, it
Court is doubtful whether the arrest of an individual
Decision Decision may be ordered by any authority other than the
limited to includes judge if the purpose is merely to determine the
Nature and existence of a probable cause, leading to an
matters of matters
Extent of administrative investigation. [Qua Chee Gan v.
general brought as
Decision Deportation Board (1963), decided under the
concern issue by the
parties 1935 Const. Note that the 1987 and 1935
The agency The parties are Constitutions are the same in limiting the
itself may be a only the issuance of warrants of arrest to a judge.]
Parties party to the private
proceedings litigants Exception: Warrants of Arrest may be issued by
before it the Commissioner of Immigration for the sole
purpose of carrying out a final order of
deportation. [Board of Commissioners v. De La
Requisites for a Valid Exercise Rosa (1991)]
(1) Jurisdiction
(2) Due process B.4. ADMINISTRATIVE DUE PROCESS
i. Due Process
General Rule: A tribunal, board or officer While [Admin. Agencies are] free from the
exercising judicial functions acts without rigidity of certain procedural requirements, they
jurisdiction if no authority has been conferred to cannot entirely ignore or disregard the
it by law to hear and decide cases fundamental and essential requirements of due
(1) Jurisdiction to hear is explicit or by necessary process in trials and investigations of an
implication, conferred through the terms of the administrative character. [Ang Tibay v. CIR
enabling statute. (1950)]
(2) Effect of administrative acts outside
jurisdiction—Void. In administrative proceedings, the essence of
due process lies simply in the opportunity to
B.3. POWERS INCLUDED IN QUASI- explain one’s side or to seek reconsideration of
JUDICIAL FUNCTION the action or ruling complained of. What is
(1) Subpoena Power – In any contested case, proscribed is the absolute lack of notice or
the agency shall have the power to require hearing. [Office of the Ombudsman v. Coronel
the attendance of witnesses or the (2006)]
production of books, papers, documents
and other pertinent data. [Sec. 13, Bk. VII,
1987 Admin Code]

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ii. Cardinal Primary Rights The law, in prescribing a process of appeal to a


Ang Tibay v. CIR (1950) lays down the cardinal higher level, contemplates that the reviewing
primary rights: officer is a person different from the one who
(1) Right to a hearing (Includes the right of a issued the appealed decision. Otherwise, the
party to present his own case and submit review becomes a farce; it is rendered
evidence in support thereof) meaningless. [Rivera v. CSC (1995)]
(2) The tribunal must consider the evidence
presented Is a trial necessary?—NO. Holding of an
(3) Decision must be supported by evidence. adversarial trial is discretionary. Parties cannot
(4) Evidence must be substantial. demand it as a matter of right. [Vinta Maritime
v. NLRC (1978)].
Quantum of Proof: Substantial Evidence –
The amount of relevant evidence which a BUT the right of a party to confront and cross-
reasonable mind might accept as adequate to examine opposing witness is a fundamental right
justify a conclusion [Sec. 5, Rule 134, Rules of which is part of due process. If without his fault,
Court] this right is violated, he is entitled to have the
direct examination stricken off the record.
(5) Decision must be rendered on the evidence [Bachrach Motors v. CIR (1978)]
presented at the hearing or at least
contained in the record and disclosed to the Evidence on record must be fully disclosed to
parties affected the parties. [American Inter-Fashion v. Office of
(6) Independent consideration of judge (Must the President (1991)]but respondents in
not simply accept the views of a administrative cases are not entitled to be
subordinate) informed of findings of investigative committees
(7) Decision rendered in such a manner as to but only of the decision of the administrative
let the parties know the various issues body. [Pefianco v. Moral (2000)]
involved and the reasons for the decision
rendered. iii. Due process is violated when:
(1) There is failure to sufficiently explain the
Due process does not always entail notice and reason for the decision rendered; or
hearing prior to the deprivation of a right. (2) If not supported by substantial evidence;
Hearing may occur after deprivation, as in (3) And imputation of a violation and
emergency cases, in which case, there must be imposition of a fine despite absence of due
a chance to seek reconsideration. [UP Board of notice and hearing. [Globe Telecom v NTC
Regents v. CA (1999)] (2004)].

Presence of a party at a trial is not always the iv. Self-incrimination


essence of due process. All that the law requires (1) The right against self-incrimination may be
is the element of fairness; that the parties be invoked by the respondent at the time he is
given notice of trial and called by the complainant as a witness.
(1) An opportunity to be heard (2) If he voluntarily takes the witness stand, he
(2) In administrative proceedings, an can be cross examined; but he may still
opportunity to seek reconsideration invoke the right when the question calls for
(3) An opportunity to explain one’s side an answer which incriminates him for an

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offense other than that charged. [People vii. Administrative Appeal and Review
v.Ayson (1989)] Different kinds of administrative appeal and
review: [De Leon]
v. Notice and Hearing (1) That which inheres in the relation of
When required: administrative superior to administrative
(1) When the law specifically requires it. subordinate where determinations are
(2) When it affects a person’s status and liberty. made at lower levels of the same
administrative system;
When not required: (2) That embraced in statutes which provide for
(1) Urgent reasons. a determination to be made by a particular
(2) Discretion is exercised by an officer vested officer of body subject to appeal, review, or
with it upon an undisputed fact. redetermination by another officer or body
(3) If it involves the exercise of discretion and in the same agency or in the same
there is no grave abuse. administrative system;
(4) When it involves rules to govern future (3) That in which the statute attempts to make
conduct of persons or enterprises, unless a court a part of the administrative scheme
law provides otherwise. by providing in terms or effect that the
(5) In the valid exercise of police power. court, on review of the action of an
administrative agency, shall exercise
Administrative Decisions or Interpretation not powers of such extent that they differ from
part of the legal system: A memorandum ordinary judicial functions and involve a trial
circular of a bureau head could not operate to de novo of matters of fact or discretion and
vest a taxpayer with a shield against judicial application of the independent judgment of
action. [PBCom v. CIR, 1999] the court;
(4) That in which the statute provides that an
vi. Notice and Hearing under the Admin. Code: order made by a division of a Commission or
Required in the following instances: Board has the same force and effect as if
(1) Contested cases [Admin. Code, Bk. VII, Sec. made by the Commission subject to a
3] rehearing by the full Commission, for the
(2) Certain licensing procedures, involving ‘rehearing’ is practically an appeal to
grant, renewal, denial or cancellation of a another administrative tribunal;
license; i.e. when the grant, renewal, denial (5) That in which the statute provides for an
or cancellation of a license is required to be appeal to an officer on an intermediate level
preceded by notice and hearing [Sec. 17(1)] with subsequent appeal to the head of the
(3) All licensing procedures, when a license is department or agency; and
withdrawn, suspended, revoked or annulled (6) That embraced in statutes which provide for
[Sec. 17(2)] appeal at the highest level, namely, the
President.
Exception (to #3 only): Notice and hearing not
required in cases of (a) willful violation of A party must prove that it has been affected or
pertinent laws, rules and regulations or (b) aggrieved by an administrative agency in order
when public security, health, or safety require to entitle it to a review by an appellate
otherwise. [Sec. 17(2)] administrative body or another administrative
body.

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The appellate administrative agency may effect of a final judgment within the purview of
conduct additional hearings in the appealed the doctrine of res judicata, which forbids the
case, if deemed necessary [Reyes v. Zamora, 90 reopening of matters once judicially determined
SCRA 92]. by competent authorities.

N.B. Under the Doctrine of Qualified Political However, res judicata does not apply in
Agency [see Villena v. Secretary of Interior (1939)], administrative adjudication relative to
a decision of the department head generally citizenship. [Board of Commissioners v. De la
need not be appealed to the Office of the Rosa 197 SCRA 853]
President, since the department head (e.g.
Secretary) is the alter ego of the President, and C. FACT-FINDING, INVESTIGATIVE,
the former’s acts are presumably the LICENSING AND RATE-FIXING
President’s. However, the doctrine does not
POWERS
apply when (a) the act is repudiated by the
President, or (b) the act is required (by law) to be
performed specifically by the department head. C.1. ASCERTAINMENT OF FACT
A statute may give to non-judicial officers:
viii. Administrative Res Judicata
(1) The power to declare the existence of facts
The doctrines of forum shopping, litis pendentia
which call into operation the statute’s
and res judicata also apply to administrative
provisions and
agencies.
(2) May grant them and their subordinate
officers the power to ascertain and
When it applies determine appropriate facts as a basis of
The doctrine of res judicata applies only to procedure in the enforcement of laws.
judicial or quasi-judicial proceedings and not to (3) Such functions are merely incidental to the
the exercise of purely administrative functions. exercise of power granted by law to clear
Administrative proceedings are non-litigious navigable streams of unauthorized
and summary in nature; hence, res judicata obstructions. They can be conferred upon
does not apply. [Nasipit Lumber Co. v. NLRC executive officials provided the party
(1989)] affected is given the opportunity to be
heard. [Lovinav. Moreno (1963)]
Requisites:
(1) The former judgment must be final;
C.2. INVESTIGATIVE POWERS
(2) It must have been rendered by a court
Administrative agencies’ power to conduct
having jurisdiction over the subject matter
investigations and hearings, and make findings
and the parties;
and recommendations thereon is inherent in
(3) It must be a judgment on the merits; and
their functions as administrative agencies.
(4) There must be identity of parties, subject
matter and cause of action [Ipekdijan
Findings of facts by administrative bodies which
Merchandising v. CTA (1963)]
observed procedural safeguards (e.g. notice to
and hearing of parties, and a full consideration
Effect
of evidence [i.e. supported by substantial
Decisions and orders of administrative bodies
evidence]) are accorded the greatest respect by
rendered pursuant to their quasi-judicial
courts.
authority have, upon their finality, the force and

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C.3. LICENSING FUNCTION privilege, a permission or authority to do what is


within its terms. It is always revocable. [Gonzalo
Admin. Code, Bk. VII, Sec. 17.Licensing Procedure. SyTrading v. Central Bank (1976)]Note, however,
– (1) When the grant, renewal, denial or that the Admin. Code prescribes notice and
cancellation of a license is required to be hearing before it can be revoked, subject to
preceded by notice and hearing, the provisions certain exceptions.
concerning contested cases shall apply insofar
as practicable. C.4. FIXING OF RATES, WAGES, PRICES
(2) Except in cases of willful violation of
pertinent laws, rules and regulations or when Admin. Code, Book. VII, Sec. 2(3). “Rate” means
public security, health, or safety requires any charge to the public for a service open to
otherwise, no license may be withdrawn, all and upon the same terms, including
suspended, revoked or annulled without notice individual or joint rates, tolls, classification or
and hearing schedules thereof, as well as communication,
mileage, kilometrage and other special rates
Admin. Code, Bk. VII, Sec. 18. Non-expiration of which shall be imposed by law or regulation to
License. – Where the licensee has made timely be observed and followed by any person.
and sufficient application for the renewal of a
license with reference to any activity of a i. Publication requirement for rate-fixing
continuing nature, the existing license shall
not expire until the application shall have been Admin. Code, Book. VII, Sec. 9. Public
finally determined by the agency. Participation. – […] (2) In the fixing of rates, no
rule or final order shall be valid unless the
Admin. Code, Bk. VII, Sec. 2(10). “License” proposed rates shall have been published in a
includes the whole or any part of any agency newspaper of general circulation at least 2
permit, certificate, passport, clearance, weeks before the first hearing thereon.
approval, registration, charter, membership,
statutory exemption or other form of Generally, the power to fix rates is a quasi-
permission, or regulation of the exercise of a legislative function, i.e. it is meant to apply to all.
right or privilege. However, it becomes quasi-judicial when the
rate is applicable only to an individual. [See
Admin. Code, Bk. VII, Sec. 2(11).“Licensing” Vigan Electric Light Co. v. Public Service
includes agency process involving the grant, Commission (1964)]
renewal, denial, revocation, suspension,
annulment, withdrawal, limitation, N.B. The old doctrine is if the rate-fixing power
amendment, modification or conditioning of a is quasi-legislative, it need not be accompanied
license. by prior notice and hearing. Under the Admin.
Code (supra), the distinction seems to have
When are notice and hearing required in been disregarded, since the provision did not
licensing? Only if it is a contested case. qualify the character of the rate-fixing, and now
Otherwise, it can be dispensed with (e.g. driver’s requires prior notice (via publication) before the
licenses). hearing.

No expiry date does not mean the license is Can the power to fix rates be delegated to a
perpetual. A license permit is a special common carrier or other public service? NO. The

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latter may propose new rates, but these will not adjudications.[St. Martin’s Funeral Homes v.
be effective without the approval of the NLRC (1998)]
administrative agency. [KMU v. Garcia (1994)]
N.B. Rule 43 of the Rules of Court provides that
What are considered in the fixing of rates? the Court of Appeals shall have appellate
(1) The present valuation of all the property of jurisdiction over judgments or final orders of the
a public utility, and Court of Tax Appeals and from awards,
(2) The fixed assets. judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the
The property is deemed taken and condemned exercise of its quasi-judicial functions.
by the public at the time of filing the petition,
and the rate should go up and down with the A. DOCTRINE OF PRIMARY
physical valuation of the property. [Ynchausti v. ADMINISTRATIVE JURISDICTION
Public Utility Commissioner (1922)]
General Rule: Courts will not intervene if the
question to be resolved is one which requires
IV. Judicial Recourse and the expertise of administrative agencies and the
legislative intent on the matter is to have
Review uniformity in the rulings. [Panama Refining Co.
v. Ryan (1935, US Supreme Court decision)]
General Rule: Judicial review may be granted or
withheld as Congress chooses. Thus, a law may It can only occur where there is a concurrence of
provide that the decision of an administrative jurisdiction between the court and the
agency shall be final and unreviewable and it administrative agency.
would still not offend due process. [See, e.g.
Labor Code, which does not provide for appeals It is a question of the court yielding to the
from decisions of the NLRC (St. Martin Funeral agency because of the latter’s expertise, and
Homes v. NLRC)] does not amount to ouster of the court. [Texas &
Pacific Railway v. Abilene (1907, US Supreme
Exception: Such a statute cannot preclude the Court decision)]
exercise of the inherent power of judicial review
of courts. It is the recent jurisprudential trend to apply the
doctrine of primary jurisdiction in many cases
Rationale: that demand the special competence of
(1) There is an underlying power of the courts administrative agencies. It may occur that the
to scrutinize the acts of such agencies on Court has jurisdiction to take cognizance of a
questions of law and jurisdiction even particular case, which means that the matter
though no right of review is given by statute; involved is also judicial in character. However, if
(2) The purpose of judicial review is to keep the the determination of the case requires the
administrative agency within its jurisdiction expertise, specialized skills and knowledge of the
and protect the substantial rights of the proper administrative bodies because technical
parties; matters or intricate questions of facts are
(3) It is that part of the checks and balances involved, then relief must first be obtained in an
which restricts the separation of powers and administrative proceeding before a remedy will be
forestalls arbitrary and unjust supplied by the courts even though the matter is

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within the proper jurisdiction of a Requisites:


court.[Industrial Enterprises v. CA (1990)] (1) An administrative body and a regular court
have concurrent and original jurisdiction
Well-entrenched is the rule that courts will not (2) Question to be resolved requires expertise
interfere in matters which are addressed to the of administrative agency
sound discretion of the government agency (3) Legislative intent on the matter is to have
entrusted with the regulation of activities uniformity in rulings
coming under the special and technical training (4) Administrative agency is performing a
and knowledge of such agency. Administrative quasi-judicial or adjudicatory function (not
agencies are given a wide latitude in the rule-making or quasi-legislative function
evaluation of evidence and in the exercise of their [Smart v. NTC (2003)]
adjudicative functions, latitude which includes
the authority to take judicial notice of facts within Rationale: It is presumed that an administrative
their special competence[(Quiambao v. CA agency, if afforded an opportunity to pass upon
(2005)] a matter, would decide the same correctly, or
correct any previous error committed in its
The doctrine of primary jurisdiction applies forum.[Caballes v. Sison (2004)]
where a claim is originally cognizable in the
courts, and comes into play whenever A.1. WHEN THE DOCTRINE IS
enforcement of the claim requires the resolution INAPPLICABLE:
of issues which, under a regulatory scheme, (1) If the agency has exclusive (original)
have been placed within the special jurisdiction (i.e. Doctrine of Exhaustion
competence of an administrative body; in such would apply);
case, the judicial process is suspended pending (2) When the issue is not within the competence
referral of such issues to the administrative of the administrative body to act on (e.g.
body for its view. And, in such cases, the court pure questions of law, over which the
cannot arrogate into itself the authority to expertise is with the courts);
resolve a controversy, the jurisdiction over which (3) When the issue involved is clearly a factual
is initially lodged with an administrative body of question that does not require specialized
special competence. [Sherwill v. Sitio Sto Nino skills and knowledge for resolution to justify
(2005)] the exercise of primary jurisdiction.

Rationale: In this era of clogged docket courts, A.2. EFFECT


the need for specialized administrative boards The case is not dismissed, but merely
with the special knowledge and capability to suspendeduntil after the matters within the
hear and determine promptly disputes on competence of the administrative agency are
technical matters has become well-nigh threshed out and determined. [Vidad v. RTC
indispensable. Between the power lodged in an (1993)]
administrative body and a court, the
unmistakable trend has been to refer it to the
former. [GMA v. ABS CBN (2005)]

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B. DOCTRINE OF EXHAUSTION OF (7) Where the administrative remedy is only


ADMINISTRATIVE REMEDIES permissive or voluntary and not a
prerequisite to the institution of judicial
General Rule: Where the law has delineated the proceedings. [Corpuz v.Cuaderno (1962)]
procedure by which administrative appeal or (8) Application of the doctrine will only cause
great and irreparable damage which cannot
remedy could be effected, the same should be
followed before recourse to judicial action can be prevented except by taking the
be initiated. [Pascual v. Provincial Board (1959)] appropriate court action. [Paat v. CA (1997);
Ciprianov.Marcelino (1972)]
(9) When it involves the rule-making or quasi-
Requisites:
legislative functions of an administrative
(1) The administrative agency is performing a
agency.[Smart v. NTC (2003)]
quasi-judicial function;
(10) Administrative agency is in estoppel.
(2) Judicial review is available; and
[Republic v.Sandiganbayan (1996)]
(3) The court acts in its appellate jurisdiction.
(11) Doctrine of qualified political agency
(12) Subject of controversy is private land in land
Rationale:
case proceedings. [Paat v. CA (1997)]
(1) Legal reason: The law prescribes a
(13) Blatant violation of due process. [Paat v. CA
procedure.
(1997); Pagara v. CA]
(2) Practical reason: To give the agency a
(14) Where there is unreasonable delay or
chance to correct its own errors and prevent
official inaction. [Republic v. Sandiganbayan
unnecessary and premature resort to the
(1996)]
courts
(15) Administrative action is patently illegal
(3) Reasons of comity: Expedience, courtesy,
amounting to lack or excess of jurisdiction.
convenience.
[Paat v. CA (1997)]
(16) Resort to administrative remedy will
B.1. EXCEPTIONS TO THE DOCTRINE OF amount to a nullification of a claim.[DAR v.
EXHAUSTION OF REMEDIES: Apex Investment (2003); Paat v. CA (1997)]
(1) Purely legal questions. [Castro v. Secretary (17) No administrative review provided for by
(2001)] law. [Estrada v. CA (2004)]
(2) Steps to be taken are merely matters of (18) Issue of non-exhaustion of administrative
form. [Pascual v. Provincial Board (1959)] remedies rendered moot. [Estrada v. CA
(3) Administrative remedy not exclusive but (2004)]
merely cumulative or concurrent to a (19) In quo warranto proceedings. [Corpus v.
judicial remedy. [Pascual v. Provincial Board Cuaderno (1962)]
(1959)] (20) Law expressly provides for a different
(4) Validity and urgency of judicial action or review procedure. [Samahang Magbubukid
intervention. [Paat v. CA (1997)] v. CA (1999)]
(5) No other plain, speedy, adequate remedy in
the ordinary course of the law.[Paat v. CA Note: The exceptions may be condensed into
(1997); Information Technology Found’n v. three:
COMELEC (2004)] (1) Grave abuse of discretion;
(6) Resort to exhaustion will only be oppressive (2) Pure question of law; or
and patently unreasonable. [Paatv. CA (3) No other plain, speedy, and adequate
(1997); Cipriano v.Marcelino (1972)] remedy.

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C. DOCTRINE OF FINALITY OF
However, the long list has been developed by ADMINISTRATIVE ACTION
jurisprudence. It is prudent to cite it over the
shortened list.
Courts will not interfere with the act of an
administrative agency before it has reached
B.2. EFFECT OF FAILURE TO EXHAUST finality or it has been completed.
ADMINISTRATIVE REMEDIES:
Rationale: Without a final order or decision, the
It does not affect jurisdiction of the court. power has not been fully and finally exercised.

The only effect of non-compliance is that it will Prohibition is not the proper remedy [when] the
deprive complainant of a cause of action, which enabling law itself, which is B.P. Blg. 325, has
is a ground for a motion to dismiss. specifically tasked the Cabinet to review and
approve any proposed revisions of rates of fees
But if not invoked at the proper time, this and charges. Petitioners should have availed of
ground is deemed waived. [Republic v. this easy and accessible remedy instead of
Sandiganbayan (1996)] immediately resorting to the judicial process.
[Paredes v. CA (1996)]

Doctrine of Exhaustion
of Doctrine of Primary Administrative
Administrative Remedies Jurisdiction
Jurisdiction of Court Concurrent Original Jurisdiction with
Appellate
Admin Body
Ground for Non-exercise The court yields to the jurisdiction of
of Jurisdiction Exhaustion of Administrative the Administrative agency because of
Remedy a condition precedent. its specialized knowledge or
expertise.
Court Action Dismiss Suspend Judicial Action

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POLITICAL LAW
LOCAL GOVERNMENT

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I. Public Corporations
A. CONCEPT

Corporation – An artificial being created by N.B. While contained in laws governing private
operation of law, having the right of succession corporations, this definition is also used by
and the powers, attributes and properties authorities [see MARTIN] and is taken from US
expressly authorized by law or incident to its case law.
existence. [Corp. Code, sec. 2; Act No. 1459, sec.
2]

A.1. COMPARISON [MARTIN]


Public Corporations Private Corporations Quasi-Public Corporations
Corporations created by the Corporations organized wholly Private corporation that renders
state as its own device and for the profit or advantage of public service or supply public
agency for the accomplishment their own members, or some wants.
of parts of its own public works. “private purpose, benefit, aim, or
end.” [Act. No. 1459, sec. 3] Organized for the gain or benefit
of its members, but required by
law to discharge functions for
the public benefit. [Phil. Society
for the Prevention of Cruelty to
Animals v. COA(2007)]
Created by the state, either by Created by the will of the [May be created by special
general or special act. incorporators, with the charter or under the general law.
recognition of the state [i.e. (e.g. utility, railroad, telephone,
through the CORP. CODE] transportation companies)]

A.2. TEST TO IDENTIFY PUBLIC OR PRIVATE CHARACTER

“The true criterion […] is the totality of the On the other hand, the Philippine Society for
relation of the corporation to the State. If the the Prevention of Cruelty to Animals, while
corporation is [1] created by the State as [2] the created by Act No. 1285, is a private
[State’s] own agency or instrumentality to [3] corporation as (1) it is not subject to state
help it in carrying out its governmental control, and (2) its powers to arrest offenders
functions, then the corporation is considered of animal welfare laws and to serve processes
public; otherwise, it is private.” have been withdrawn by C.A. No. 148. [Phil.
Society for the Prevention of Cruelty to Animals
Hence, “provinces, chartered cities, and v. COA (2007)]
barangays can best exemplify public
corporations.”

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i. Public Corporations Distinguished from GOCCs


Municipal Corporations Government-Owned or Controlled Corporations
(GOCCs)
Purpose
Local governance over inhabitants of cities/towns; Agencies of the State for limited purposes to take
agency of the State for assistance in civil charge of some public or state work, other than
government of the country for regulation of local community work. [Nat’l Waterworks & Sewerage
and internal affairs. Authority v. NWSA Consolidated Unions (1964)]
Personality
Political subdivision of the Republic of the Separate and distinct from the government;
Philippines Subject to provisions of the Corporation Code;
Mere fact that the Government is a majority
stockholder of the corporation does not make it a
public corporation;
Government gives up its sovereign character with
regard to transactions of the corporation. [Bacani
v. Nat’l Coconut Corp. (1956)]
Nature and Status
Constituted by law and possessed of substantial Organized as a stock or non-stock corporation
control over its own affairs; [ADM. CODE, Introductory Provs., sec. 2(13); MIAA
Autonomous in the sense that it is given more v. CA (2006)]
powers, authority, responsibilities, and resources; Independent agency of the government for
administrative purposes; Has corporate powers to
be exercised by its board of directors, and its own
assets and liabilities; [Nat’l Waterworks &
Sewerage Authority v. NWSA Consolidated Unions
(1964)]

Vesting of corporate powers on a government


instrumentality does not make the latter a
GOCC if it is not organized as a stock or non-
stock corporation. [MIAA v. CA (2006)]

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B. CLASSIFICATIONS

B.1. TRADITIONAL (PRE-LOCAL GOV’T CODE) CLASSIFICATIONS [SINCO]


Nature and Creation Function
Body corporate and politic organized Agency (1) primarily to regulate and
for the government of a definite administer the internal affairs of a
Municipal Corp. Proper locality locality and (2) to assist in the civil
government of a country
[e.g. LGUs]
Created by the state as its own device For the accomplishment of some
and agency[i.e. not of or for a parts of its own public work other
particular locality] than the local government carried on
Non-Municipal Corp. in designated areas by municipal
[e.g. Rehabilitation Finance Corp., corporations
Phil. Nat’l Red Cross, Boy Scouts of
the Phils.]
State agencies having a corporate Governmental or police functions
form but with merely nominal
Quasi-Corp. (Municipal) independent powers, but actually
under constant control of the State;
Created for a narrow and limited
Quasi-Corp. (Non- purpose [MARTIN] State functions which are not
Municipal) political in nature

1) Quasi-Corporations 2) Municipal Corporations


 Public corporations created as agencies of A body politic and corporate constituted by the
the State for a narrow and limited purpose; incorporation of the inhabitants of a locality for
 Not possessed with powers and liabilities the purpose of local government. [MARTIN]
of self-governing corporations; and e.g. LGUs
 Take charge of some public or state work
for the general welfare (other than
government of a community) [MARTIN]
 Include Quasi-Municipal Corporations e.g.
water districts

Municipal Corporation Proper Quasi-Municipal Corporation


Exists and is governed by a charter [Does not necessarily exist by virtue of a charter
(e.g. water districts)]
An agency of the state invested with the power of Operates directly as an agency of the State to
local government [MARTIN] help in the administration of public functions

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II. Municipal Corporations LGU acts as agent of


the national
LGU acts as agent of
the community in
government [Republic administration of
A. ELEMENTS v. City of Davao (2002)] local affairs. [Republic
(1) Legal creation or incorporation; v. City of Davao
(2002)]
(2) Corporate name by which the entity is
known and in which all corporate acts are Examples: Examples:
done;  Regulations  Municipal
against fire, waterworks,
(3) Population which is invested with the disease; markets, wharves,
powers of the corporation through duly fisheries;
constituted officers and agents; and  Preservation of
public peace;  Maintenance of
(4) Territory within which the local parks, golf
government exercises civil and corporate  Establishment of courses,
functions. [MARTIN] schools, public cemeteries;
offices, etc.

B. NATURE AND FUNCTION

B.1. DUAL NATURE C. REQUISITES FOR CREATION,


CONVERSION, DIVISION, MERGER,
LGC, Sec. 15. Every LGU created under this Code is OR DISSOLUTION
a body politic and corporate. It shall exercise
powers both as a political subdivision of the Sec 1. Art X. Const. The territorial and political
National Government, and as a corporate entity subdivisions are the provinces, cities, municipalities,
representing the inhabitants of its territory. and barangays. There shall be autonomous regions
in Muslim Mindanao and the Cordilleras[...]
B.2. DUAL FUNCTIONS
Political/Governmental Corporate/Proprietary Sec 10. Art X. Const. No province, city, municipality,
or barangay may be created, divided, merged,
Exercised in the Exercised for the abolished, or its boundaries substantially altered,
administration of special benefit and except
powers of the state and advantage of the [a]in accordance with the criteria established in the
for promotion of public community [Torio v. Local government code; and,
welfare [Torio v. Fontanilla (1978)] [b]subject to approval by a majority of the votes
cast in a plebiscite called for the purpose in the
Fontanilla (1978)]
political unit or units directly affected.
Concern health, safety, Seek to obtain special
advancement of public corporate benefits or C.1. GENERAL REQUIREMENTS
good and welfare as earn pecuniary profit (1) Applicable to all LGUs
affecting the public [Republic v. City of (2) Law or Ordinance
generally [Republic v. Davao (2002)] (3) Plebiscite
City of Davao (2002)] (4) Election and Qualification of Elective
Legislative, judicial, Ministerial, private, Officials
public, and political and corporate

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i. Law or Ordinance municipal corporations would allow him to


A local government unit may be created, exercise over LGUs the power of control
divided, merged, abolished, or its boundaries denied to him by the Constitution. [Pelaez
substantially altered EITHER: v. Auditor General (1965)]
(1) By law enacted by Congress in the case of
provinces, cities, municipalities, and any  Power to create provinces cannot be
other political subdivision; OR delegated: Section 19, Article VI of RA
9054 is unconstitutional insofar as it
(2) By ordinance passed by the Sangguniang grants to the ARMM Regional Assembly
Panlalawigan or Sangguniang Panlungsod the power to create provinces and cities.
in the case of a barangay within its Congress’ delegation of the power to
territorial jurisdiction [LGC, sec. 6]. create a province includes the creation of a
legislative district, which is
unconstitutional, since legislative districts
N.B. In the case of the creation of barangays by may be created or reapportioned only by
the Sangguniang Panlalawigan, the an Act of Congress. [Sema v. COMELEC
recommendation of the Sangguniang Bayan (2008)]
concerned shall be necessary. [LGC, sec. 385]

Power of creation is legislative in nature ii. Plebiscite


 The authority to create municipal The plebiscite shall be conducted by the
corporations is essentially legislative in COMELEC within 120 days from the date of
nature. [Pelaez v. Auditor General (1965)] effectivity of the law or ordinance, unless said
law or ordinance fixes another date. [LGC, sec.
 The enactment of a LGC is not a sine qua 10]
non for the creation of a municipality, and
before the enactment of such, the power When a Plebiscite is Required: When an LGU is
remains plenary except that creation created, divided, merged, abolished, or its
should be approved in a plebiscite. boundaries substantially altered [LGC, sec. 10].
[Torralba v. Sibagat (1987)] This includes:
(1) Conversion (e.g. from a city to a highly
urbanized city) [LGC, sec. 453; see also
To whom and what power may be delegated
Tobias v. Abalos (1994)]
 To local legislative bodies: “Under its
plenary legislative powers, Congress can (2) Downgrading (e.g. from an independent
delegate to local legislative bodies the component city to a component city)
power to create local government units, [Miranda v. Aguirre (1999), on the
subject to reasonable standards and downgrading of Santiago, Isabela]
provided no conflict arises with any
provision of the Constitution.” [Sema v.
COMELEC (2008)] Note that it has done so When Plebiscite is NOT Required: There is no
by delegating the power to create need for any plebiscite in the creation,
barangays. dissolution or any other similar action on the
following:
 Not to the President: The power is (1) Legislative Districts: Legislative districts
inherently legislative, and to grant the are not political subdivisions through
President the power to create or abolish which functions of the government are

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carried out. [Bagabuyo v. COMELEC a plebiscite concerning the conversion of a


(2008)] city (e.g. Mandaluyong) to a highly
urbanized city. [See Tobias v. Abalos
(2) Administrative [vs. autonomous] Regions: (1994)]
Administrative regions are not territorial
and political subdivisions. The power to
create and merge administrative regions is Plebiscite Requirement for Autonomous
traditionally vested in the President. Regions
Hence, the merger of provinces that did not The creation of the autonomous region shall be
vote for inclusion in the ARMM into effective when approved by a majority of the votes
cast by the constituent units in a plebiscite called
existing administrative regions does not
for the purpose. However, only provinces, cities, and
require a plebiscite. [See Abbas v.
geographic areas voting favorably in such plebiscite
COMELEC (1989)] shall be included in the autonomous region.
[CONST.,art. X, sec. 18]
Plebiscite must be “in the political units directly
Majority requirement: What is required by the
affected”
Constitution is a simple majority of votes
 Meaning: When the law states that the
approving the Organic Act in individual
plebiscite shall be conducted “in the
constituent units.
political units directly affected,” it means
 A double majority [in (1) all constituent
that the residents of the political entity
units put together, (2) as well as in the
who would be economically dislocated by
individual constituent units] is not
the separation of a portion thereof have
required. [Abbas v. COMELEC (1989)]
the right to vote in said plebiscite. [Padilla
v. COMELEC (1992)]
Sole province cannot validly constitute an
 “Material change” as standard: If the autonomous region: An autonomous region
creation, division, merger, abolition or cannot be created if only one province
substantial alteration of boundaries of an approved of its creation in the plebiscite called
LGU will cause a material change in the for the purpose [Ordillo v. COMELEC (1990), on
political and economic rights of a political the plebiscite concerning the Cordilleras].
unit, the residents of such political unit
should have the right to participate in the Not all amendments require plebiscite: Only
required plebiscite. [Miranda v. Aguirra amendments to, or revisions of, the Organic
(1999)] Act constitutionally-essential to the creation of
autonomous regions—those aspects specifically
 Hence, in the conversion of a component mentioned in the Constitution which Congress
city to a highly urbanized city, the residents must provide for in the Organic Act—require
of the province must participate. The ratification through a plebiscite.
conversion of the city will, among others,
result in reduction in taxing jurisdiction Rationale: If all amendments to the Organic
and reduced economic viability of the Act have to undergo the plebiscite requirement
province. [Umali v. COMELEC (2014)] before becoming effective, this would hamper
the ARMM’s progress by impeding Congress
 But the inhabitants of a neighboring city
from enacting laws that timely address
(e.g. San Juan) are properly excluded from
problems as they arise in the region, as well as

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weighing down the ARMM government with amended


the costs that unavoidably follow the holding by R.A.
of a plebiscite. [Abas Kida v. Senate of the Phil No. 9009]
(2012)]
Municipali P2.5M 25,000 50 sq. km.
iii. Beginning of Corporate Existence ty (1991
General Rule: The corporate existence of an [sec. 442] prices)
LGU commences upon the election and No 2,000; No
qualification of its chief executive and a requireme OR requiremen
majority of the members of its sanggunian. Barangay nt 5,000 (if t except for
[sec. 386] in Metro contiguity
Exception: Unless some other time is fixed Manila or
therefor by the law or ordinance creating it. HUCs)
[LGC, sec. 14]
Which requirements must be satisfied
C.2. SPECIFIC REQUIREMENTS
(1) Income; AND
Province or
Verifiable Indicators of Viability (Summary) (2) EITHER population OR land
City
area
General rule: all requirements are minimum, (1) Income;
i.e. at least Municipality (2) Population; AND
Income Population Land Area (3) Land Area
Average Total Generally, (1) Population; AND
annual number must be Barangay
(2) Territorial contiguity
income of contiguous
 The creation of an LGU or its conversion
N.B. inhabitan
from one level to another level shall be
ts within
based on verifiable indicators of viability
LGU’s
and projected capacity to provide services.
territory
[LGC, sec. 7]
Complianc Departme National Lands
e attested nt of Statistics Manageme  N.B. Because “highly urbanized city” (HUC)
by: Finance Office nt Bureau is a classification of cities, the LGC appears
to contemplate a situation where a
Province P20M 250,000 2,000 sq.
municipality or a cluster of barangays is
[LGC, sec. (1991 km.
first converted into a city before being
461] prices)
classified into an HUC [see sec. 451-453]
Highly P50M 200,000 100 sq. km.
Urbanized (1991 i. Income
City prices) Income must be sufficient to provide for all
[sec. 452] essential government facilities and services
commensurate with the size of its population.
Compone P100M 150,000 100 sq. km. [LGC, sec. 7]
nt City (2000
[sec. 450, prices) What is included in average annual income:
as Income accruing to the general fund, exclusive

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of special funds, transfers, and non-recurring Composed of 1 Composed of 2


income. [LGC, sec. 442, 450, 461] or more islands or more islands
 The internal revenue allotment (IRA) forms City
[LGC, sec. [LGC, sec.
part of the income of the LGU. The funds 450(b)] 450(b)]
generated from local taxes, IRA, and
Composed of 1 Composed of 2
national wealth utilization proceeds accrue
or more islands or more islands
to the general fund of the LGU.[Alvares v. Municipality
[LGC, sec. [LGC, sec.
Guingona (1996)]
442(a)] 442(b)]
[No Composed of 2
ii. Population
requirement] or more islands
Total number of inhabitants within the Barangay
[LGC, sec.
territorial jurisdiction of the local government
386(b)]
unit. [LGC, sec. 7]
 LGC IRR, art. 9(2) expresses the true
iii. Land Area (Territory) Congressional intent and corrects the
Land area must be “congressional oversight” in not placing a
(1) Contiguous, unless it comprises of two or land area exception under the LGC.
more islands or is separated by an LGU [Navarro v. Ermita (2011), on the creation of
independent of the others; the province of Dinagat Islands]
(2) Properly identified by metes and bounds
with technical descriptions; and, C.3. OTHER LGUS
(3) Sufficient to provide for such basic services
and facilities to meet the requirements of i. Special Metropolitan Political Subdivisions
its populace. [LGC, sec. 7]  Created by Congress, subject to a plebiscite
 Component cities/municipalities retain
Land Area (Territory) requirements, exceptions: their basic autonomy and are entitled to
Need not follow Need not be their own local executive and legislative
land area contiguous assemblies.
 The jurisdiction of the metropolitan
Under the LGC: (a) Composed
authority that will be created shall be
No exception. of 2 or more
limited to basic services requiring
islands; or
coordination. [CONST. art. X, sec. 11]
Under the LGC
IRR: Composed (b) Separated N.B. The MMDA is not an LGU, much less a
of 1 or more by cities
which do special metropolitan political subdivision. “The
islands [LGC MMDA is a ‘development authority’ which is a
IRR, art. 9(2); not
Province ‘national agency, not a political government
held valid under contribute
to the unit.’” [MMDA v. Bel-Air(2000)]
Navarro v.
income of  The scope of the MMDA's function is
Ermita (2011)]
the limited to the delivery of [7 basic services
province enumerated in its charter.] It is not vested
[LGC, sec. with police power, let alone legislative
461(b)] power. All its functions are administrative in
nature. [MMDA v. Bel-Air (2000)]

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ii. Highly Urbanized Cities and Independent Requisites:


Component Cities (1) Apparently valid law under which the
corporation may be formed;
Highly Urbanized Cities and Independent (2) Attempt in good faith to organize the
Component Cities shall be independent of the corporation;
Province. [CONST. art. X, sec. 12] (3) Colorable compliance with law; and
 Independent Component Cities are those (4) Assumption of corporate powers.
whose charters prohibit their voters from [Municipality of Malabang v. Benito
voting for provincial elective officials. They (1969)]
are independent of the province. [LGC, sec.
451] Effect of Being Classified as a De Facto
 Highly Urbanized Cities are those that meet Corporation
the higher population threshold for cities in
the LGC [see LGC, sec. 452(a)]. Collateral attacks are not allowed. The action
to attack its personality is reserved to the state
iii. Autonomous Regions in a proceeding for quo warranto or any other
 Consist of provinces, cities, and municipalities direct proceeding. The proceeding must be:
and geographical areas sharing common and (1) Brought in the name of the Republic of
distinctive historical and cultural heritage, the Philippines
economic and social structures, and other (2) Commenced by the Solicitor General or
relevant characteristics within the framework of
the fiscal when directed by the
the Constitution;
President
 The President exercises general supervision
(3) Timely raised [Municipality of San
over such region;
 All powers and responsibilities not granted to it
Narciso v. Mendez (1994)]
by law or the Constitution shall be vested in the
National Government;
LGC’s Conversion of De Facto Corporations to
 Created via organic act for each autonomous
De Jure
region, with participation of the regional Sec. 442(d. LGC). Municipal districts which were
consultative commission. The organic act: organized pursuant to presidential issuances or
(1) Defines the basic structure of government executive orders and which have their respective set
for the region consisting of the executive of elective municipal officials holding office at the
department and legislative assemblies, time of the effectivity of the LGC are considered as
both of which shall be elective and regular municipalities.
representative of the constituent political
units; and, v. Sub-provinces
(2) Provides for special courts with personal, Existing sub-provinces are hereby converted into
family, and property law jurisdiction. regular provinces upon approval by a majority of
[CONST.art. X,sec. 15-18] the votes cast in a plebiscite to be held in the said
subprovinces and the original provinces directly
iv. De Facto Corporations – Formed when there affected[.] [LGC, sec. 462]
is defect in the creation of a municipal
corporation but its legal existence has been
recognized and acquiesced publicly and
officially.

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C.4. OTHER MATERIAL CHANGES ii. Abolition

i. Division and Merger Ground: An LGU may be abolished when its


Requirements: Division and merger shall income, population, or land area has been
comply with the same requirements prescribed irreversibly reduced to less than the minimum
for the creation of an LGU. [LGC, sec. 8] standards prescribed for its creation as
certified by the national agencies concerned to
Limitations: the Congress or the sanggunian. [LGC, sec. 9]
 Division shall not reduce the income,
population, or land area of the LGU or Resulting merger: The law or ordinance
LGUs concerned to less than the minimum abolishing an LGU shall specify the province,
requirements prescribed; city, municipality, or barangay with which the
LGU sought to be abolished will be
 The income classification of the original incorporated or merged. [LGC, sec. 9]
LGU or LGUs shall not fall below its current
classification prior to the division [LGC, sec. The fact that nobody resides in an LGU does
8] not result in its automatic cessation. The
Congress or the sanggunian concerned must
Effects of Division and Merger: pass a law or an ordinance for the abolition of
such LGU, subject to the mandatory
 Under the old REV. ADM. CODE, the effect of
requirement of a plebiscite. [Sultan Usman
division and merger are determined by the
Sarangani v. COMELEC (2000)]
law effecting such. [sec. 68] There is no
equivalent provision in either the ADM.
Dissolution does not occur due to:
CODE (1987), the LGC, or the LGC IRR.
(1) Non-user or surrender of charter;
 Following effects are taken from common
law. [MARTIN] (2) Failure to elect municipal officers;

Effects of Merger Effects of Division (3) Change of sovereignty; or


Legal existence and The legal existence of (4) Change of name or boundaries.[MARTIN]
right of office of the the original LGU is
annexed LGU are extinguished. iii. Downgrading
terminated.
Ordinances of the [Silent] Downgrading falls within the meaning of
annexing LGU shall creation, division, merger, abolition, or
prevail substantial alteration; hence ratification in a
Title to property is Successor LGUs plebiscite is necessary. There is a material
acquired and debts acquire property, change in the political and economic rights of
are assumed by the rights, powers, and the LGU's inhabitants as well as its budget,
annexing LGU. obligations falling and thus reasonable to require the consent of
within their respective the affected population. The effects of
territorial limits. downgrading from independent component
city to component city are:
(1) The city mayor will be placed under the
administrative supervision of the Governor;

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(2) Resolutions and ordinances passed by the


City Council will have to be reviewed by the B. DECENTRALIZATION V.
Provincial Board; and, DEVOLUTION
(3) Taxes will have to be shared with the Decentralization refers to either (1)
province. [Miranda v. Aguirre (1999)] decentralization of administration or to (2)
decentralization of power.
III. Principles of Local
Decentralization of Decentralization of
Autonomy Administration Power
Occurs when the Abdication of political
central government power in favor of
A. LOCAL AUTONOMY
delegates LGUs declared to be
administrative powers autonomous regions,
Sec 2. Art X. Const. The territorial and political to political making the latter no
subdivisions shall enjoy local autonomy. subdivisions in order longer accountable to
to make it more the national
A.1. DECLARATION OF POLICY responsive. [Limbona government, but to its
(1) The territorial and political subdivisions of v. Mangellin (1989)] constituency. [Ganzon
the State shall enjoy genuine and v. CA (1991)]
meaningful local autonomy to enable them
to attain their fullest development as self- Devolution is the act by which the national
reliant communities and make them more government confers power and authority upon
effective partners in the attainment of the various local government units to perform
national goals. specific functions and responsibilities [LGC,
(2) The State shall provide for a more sec. 17]
responsive and accountable local
government structure instituted through a  The principle of local autonomy under the
system of decentralization whereby local 1987 Constitution simply means
government units shall be given more decentralization. [Basco v. PAGCOR (1991)]
powers, authority, responsibilities, and  N.B. Basco was decided prior to the LGC.
resources. Basco holds that the Constitution
(3) All national agencies are required to guarantees decentralization, but says
conduct periodic consultations with the nothing which precludes devolution. The
appropriate LGUs, NGOs, people’s Court later recognized that “the
organizations and other concerned sectors centerpiece of LGC is the system of
before any project or program is decentralization[.] Indispensable thereto is
implemented in their respective devolution and the LGC expressly provides
jurisdictions. [LGC, sec. 2] that ‘[a]ny provision on a power of a local
government unit shall be liberally
Congressional Pork Barrel goes against the
interpreted in its favor, and in case of
constitutional principles on local autonomy
doubt, any question thereon shall be
since it allows district representatives, who are
resolved in favor of devolution of powers
national officers, to substitute their judgments
and of the lower local government unit.’”
in utilizing public funds for local development.
[Belgica v. Ochoa (2013), on the PDAF]

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[Tano v. Socrates (1997), citing LGC, sec. discretion, order the discretion to modify
5(a)] act undone or redone or replace them. If
 Also, note that the Constitution provides by their subordinates the rules are not
for political autonomy (and not merely or even decide to do it observed, they may
administrative autonomy) for autonomous themselves. order the work done
regions. [Cordillera Broad Coalition v. COA or redone, but only to
(1990)] conform to such
rules. They may not
C. GENERAL SUPERVISION OVER prescribe their own
LOCAL GOVERNMENTS manner of execution
of the act.
C.1 PRESIDENT’S POWER OF
SUPERVISION  The Constitution confines the President's
The President of the Philippines shall exercise
power over local governments to one of
general supervision over local governments. general supervision
Provinces with respect to component cities and
municipalities, and cities and municipalities with D. LOCAL FISCAL AUTONOMY
respect to component barangays, shall ensure that
the acts of their component units are within the Under existing laws, LGUs enjoy not only
scope of their prescribed powers and functions. administrative autonomy, but also local fiscal
[CONST. art. X, sec. 4] autonomy.
 This means that LGUs have the power to
Supervision v. Control [Pimentel v. Aguirre create their own sources of revenue in
(2000)] addition to their equitable share in the
Power of Supervision Power of Control national taxes released by the national
Overseeing; the Power of an officer to government, as well as the power to
power or authority of alter or modify or allocate their resources in accordance with
an officer to see that nullify or set aside their own priorities.
subordinate officers what a subordinate  It extends to the preparation of their
perform their duties officer has done in budgets, and local officials in turn have to
the performance of work within the constraints thereof. They
his duties are not formulated at the national level
If subordinate fails, If subordinate fails, and imposed on local governments,
superior may take superior may whether they are relevant to local needs
such action or step as substitute the and resources or not. [Pimentel v. Aguirre
prescribed by law to judgment of the latter (2000)]
make them perform for that of the former.
their duties. D.1. SOURCES OF LGU FUNDS
Officers in control lay Supervising officials (1) Taxes, fees, and charges which accrue
down the rules in the merely see to it that exclusively for their use and disposition
performance or the rules are (2) Just share in national taxes which shall be
accomplishment of followed, but they automatically and directly released to
an act. If these rules themselves do not lay them
are not followed, they down such rules, nor (3) Equitable share in the proceeds from
may, in their do they have the utilization and development of national

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wealth and resources within their territorial government does not matter. Any retention
jurisdiction [LGC, sec. 18] is prohibited. [Pimentel v. Aguirre (2000)]
 Since under Art X, Sec. 6 of the
Constitution, only the just share of local
governments is qualified by the words “as
D.2. INTERNAL REVENUE ALLOTMENTS
determined by law,” and not the release
thereof, the plain implication is that
Local government units shall have a just share, as
Congress is not authorized by the
determined by law, in the national taxes which shall
Constitution to hinder or impede the
be automatically released to them. [CONST. art. X,
sec. 6] automatic release of the IRA. [ACORD v.
Zamora (2005)]
General Rule: LGUs shall have a 40%share in
the national internal revenue taxes based on
the collection of the third fiscal year preceding
IV. Powers of Local
the current fiscal year. [LGC, sec. 284(c)] Government Units
Exception: When the national government Sources of Power:
incurs an unmanageable public sector deficit, (1) 1987 Constitution
the President authorized to reduce the (2) Local Government Code and special laws
allotment to 30%. [LGC, sec. 284, par. 2]. (3) Charter

Requisites for Exception:


A. POLICE POWER (GENERAL
(1) Unmanageable public sector deficit;
(2) Recommendation of the Secretaries of (a)
WELFARE CLAUSE)
Finance, (b) Internal and Local Gov’t, and
Four Categories of Powers Exercised by LGUs:
(c) Budget and Management; and
(1) Powers expressly granted
(3) Consultation with (a) heads of both houses
(2) Powers necessarily implied therefrom
of Congress, and (b) presidents of the liga.
(3) Powers necessary, appropriate, or
[LGC, sec. 284, par. 2]
incidental for efficient and effective
governance
Automatic Release: The share of each LGU
(4) Powers essential to the promotion of the
shall be released, without need of any further
general welfare [LGC, sec. 16]
action, directly to the respective treasurer on a
quarterly basis within five (5) days after the
Within their respective territorial jurisdictions,
end of each quarter, and which shall not be
LGUs shall ensure and support:
subject to any lien or holdback that may be
(a) Preservation and enrichment of culture
imposed by the national government for
(b) Promotion of health and safety
whatever purpose. [LGC, sec. 286(a)]
(c) Enhancement of the right of the people to a
 Hence, sec. 4 of A.O. 372, withholding 10% balanced ecology
of the LGUs' IRA "pending the assessment (d) Development of self-reliant scientific and
and evaluation by the Development technological capabilities
Budget Coordinating Committee of the (d) Improvement of public morals
emerging fiscal situation" is invalid and (e) Enhancement of economic prosperity and
unconstitutional. The “temporary” nature social justice
of the retention by the national

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(f) Promotion of full employment among Illustrations –Police Power Applied


residents (1) Prescribing zoning and classification of
(g) Maintenance of peace and order merchandise sold in the public market;
(h) Preservation of the comfort and (2) Condemnation and demolition of buildings
convenience of its inhabitants [LGC, sec. 16] found to be in dangerous or ruinous
condition;
Nature (3) Regulation of operation of tricycles;
The police power of a municipal corporation (4) Zoning regulations [Patalinghug v. CA
extends to all great public needs, and includes (1994)];
all legislation and functions of the municipal (5) Providing burial assistance to the poor
government. The drift is towards social welfare [Binay v. Domingo (1991)];
legislation geared towards state policies to (6) Enforcement of fishery laws within LGU
provide adequate social services, the waters [Tano v. Socrates (1997)]
promotion of general welfare, and social
justice. [Binay v. Domingo (1991)] Illustrations –Invalid Exercise of Police Power
(1) Prohibition of operation of night clubs, as it
Two Branches of General Welfare Clause is a lawful trade or pursuit of occupation
(1) General legislative power – Authorizes [Dela Cruz v. Paras (1983)];
municipal councils to enact ordinances and (2) Rescinding of mayor's permits based on
make regulations not repugnant to law arbitrary grounds [Greater Balanga Dev’t
and may be necessary to carry into effect Corp. v. Mun. of Balanga (1994)].
and discharge the powers and duties
conferred upon it by law B. EMINENT DOMAIN
(2) Police power proper – Authorizes the It is government's right to appropriate, in the
municipality to enact ordinances as may be nature of a compulsory sale to the State,
proper and necessary for the health and private property for public use or purpose.
safety, prosperity, morals, peace, good Inherently possessed by the national
order, comfort and convenience of the legislature, the power of eminent domain may
municipality and its inhabitant, and for the be validly delegated to local governments, other
protection of their property [Rural Bank of public entities and public utilities. [Moday v. CA
Makati, Inc. v. Municipality of Makati (1993)]
(2004)]
Requisites for the Exercise of Eminent Domain
Limitations by an LGU
(1) The General Welfare clause cannot be used (1) An ordinance [not a mere resolution]is
to justify an act not authorized by law. enacted by the local legislative council
(2) The exercise must pass the test of a valid authorizing the local Chief Executive to
ordinance [supra]. exercise the power of eminent domain;
 The principle that the general welfare (2) The power is exercised for public use,
clause authorizes the abatement of purpose or welfare, or for the benefit of the
nuisances without judicial proceedings poor and the landless;
applies only to nuisances per se, or those (3) There is payment of just compensation
which affect the immediate safety of based on the fair market value of the
persons and property. [Tayaban v. People property at the time of taking; and,
(2007)]

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(4) A valid and definite offer was previously swapping, land assembly or consolidation,
made to the owner of the property, but the land banking, donation to the Government,
offer was not accepted.[Heirs of Suguitan v. joint venture agreements, and negotiated
City of Mandaluyong (2000)] purchase.

Jurisdiction If all the other methods have been exhausted


An expropriation suit falls under the and expropriation to continue, the LGU shall
jurisdiction of the RTCs. The subject of an acquire lands for socialized housing in the
expropriation suit is the government’s exercise following order:
of eminent domain, a matter that is incapable (1) Government lands
of pecuniary estimation. [Barangay San Roque (2) Alienable lands of public domain
v. Heirs of Pastor (2000)] (3) Unregistered or abandoned and idle lands
(4) Lands within Areas for Priority
Just Compensation Development
 The determination of “just compensation” (5) Unacquired BLISS sites
in eminent domain cases is a judicial (6) Private lands
function. Hence, a statutory provision on a
fixed formula in the computation of just Furthermore, lands of small-property owners
compensation in cases of acquisition of are exempt from expropriation for purposes of
easements of right of way is not binding socialized housing. “Small-property owners”
upon the Court. [National Power Corp. v. are defined by two elements:
Ileto (2012)] (1) They are owners of real property which
 Just compensation is determined as of the consists of residential lands with an area of
time of actual taking [LGC, sec. 19] not more than 300 sq. meters in highly
urbanized cities, and 800 sq. meters in
Requisites for the Immediate Entry by the LGU other urban cities; and
(1) Filing of the complaint for expropriation (2) They do not own real property other than
sufficient in form and substance; and the same.
(2) Deposit of an amount equivalent to 15% of
the fair market value of the property to be C. TAXING POWER
expropriated based on the current tax Sec 5. Art X. Const. Each local government unit
declaration [LGC, sec. 19] shall have the power to create its own sources
of revenues and to levy taxes, fees, and
Upon compliance with the requisites, the charges subject to limitations as Congress may
issuance of a writ of possession becomes provide, consistent with the basic policy of
ministerial. There is no need for a hearing for local autonomy. Such taxes, fees, and charges
the writ to issue. [City of Iloilo v. Legaspi shall accrue exclusively to the local
(2004)] governments.

Socialized Housing [R.A. No. 7279]


Under the Urban Development and Housing
Act, expropriation by an LGU for purposes of
urban land reform and housing shall occur
only as a last resort. It must be shown by the
LGU that other methods of acquisition have
been exhausted: community mortgage, land

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C.1. FUNDAMENTAL PRINCIPLES ON


TAXATION BY AN LGU
C.3. REAL PROPERTY TAXATION
Annual ad valorem tax on real property may be
(1) Taxation shall be uniform;
levied by a:
(2) Taxes, fees, and charges:
(1) Province; or
(3) Shall be equitable and based as far as
(2)City; or
practicable on the taxpayer's ability to pay;
(3) Municipality within Metropolitan Manila
(4) Shall be levied and collected only for a
Area [LGC, sec. 232, LGC]
public purpose;
(5) Shall not be unjust, excessive, oppressive, Exemptions from Real Property Tax
or confiscatory; and The following are exempted from payment of
(6) Shall not be contrary to law, public policy, the real property tax:
national economic policy, or in restraint of (a) Real property owned by the Republic of the
trade; Philippines or any of its political
(7) Collection shall in no case be left to any subdivisions
private person; EXCEPT when the beneficial use thereof
(8) Revenue shall inure solely to the benefit of has been granted, for consideration or
the levying LGU, unless otherwise otherwise, to a taxable person;
specified; and (b) Charitable institutions, churches,
(9) Each LGU shall, as far as practicable, parsonages or convents appurtenant
evolve a progressive system of taxation thereto, mosques, nonprofit or religious
[LGC, sec. 130] cemeteries and all lands, buildings, and
improvements actually, directly, and
C.2. WITHDRAWAL OF LOCAL TAX
exclusively used for religious, charitable or
EXEMPTION PRIVILEGES educational purposes;
(c) All machineries and equipment that are
Unless otherwise provided in the LGC, tax actually, directly and exclusively used by
exemptions or incentives granted to, or local water districts and government-
enjoyed by all persons, whether natural or owned or –controlled corporations
juridical, including government-owned or - engaged in the supply and distribution of
controlled corporations were withdrawn upon water and/or generation and transmission
the effectivity of the LGC. of electric power;
(d) All real property owned by duly registered
Privileges Retained: Tax exemption privileges cooperatives as provided for under R.A.
of the following were not withdrawn by the No. 6938; and
LGC: (e) Machinery and equipment used for
(1) Local water districts; pollution control and environmental
(2) Cooperatives duly registered under R.A. protection [LGC, sec. 234]
No. 6938; and
(3) Non-stock and non-profit hospitals and Withdrawal of Real Property Tax Exemption
educational institutions [LGC, sec. 193] Privileges
Except as otherwise provided by the LGC, any
exemption from payment of real property tax
previously granted to all persons, whether
natural or juridical, including all government-

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owned or –controlled corporations, were Requisites for Temporary Closure


withdrawn upon the effectivity of the LGC (1) Via ordinance;
[LGC, sec. 234] (2) May be done due to:
a) Actual emergency;
C.4. OTHER LIMITATIONS ON TAXING b) Fiesta celebrations;
POWERS OF LGUS c) Public rallies;
 Taxes already imposed by National Gov’t: d) Agricultural or industrial fairs; or
Generally, LGUs cannot impose taxes that e) Undertaking of public works and
are already imposed by the National highways, telecommunications, and
Government (e.g. income tax, documentary waterworks projects;
stamps, customs duties, excise taxes under (3) Duration of closure must be specified by
the NIRC, VAT) [See generally, LGC, sec. the by the local chief executive in a written
133] order; and
 Persons exempted: LGUs cannot impose (4) If for the purpose of athletic, cultural, or
taxes, fees, and charges on (a) countryside civil activities, these must be officially
and barangay business enterprises; (b) sponsored, recognized, or approved by the
cooperatives duly registered under the local government. [LGC, sec. 21]
Cooperative Code; and National
Government, its agencies and  Note: A City, Municipality, or Barangay may
instrumentalities, and local government also temporarily close and regulate the use
units. [LGC, sec. 133(n)-(o)] of any local street, road, thoroughfare or
o An instrumentality of the State or any other public place where shopping
National Government is exempt malls, Sunday, flea or night markets, or
from local taxation. [LGC, sec. shopping areas may be established for the
133(o)] Hence, the Manila general public. [Sec. 21(d)]
International Airport Authority,
Requisites for Permanent Closure
being such an instrumentality and
(1) Via ordinance approved by at least 2/3 of
not being an OGCC, is exempt from
all members of the Sanggunian;
local taxation. [MIAA v. CA (2006)]
(2) When necessary, an adequate substitute
o However, GOCCs are [generally]
for the public facility that is subject to
not exempt from local taxation.
closure should be provided;
[MIAA v. CA (2006)]
(3) Such ordinance must have provisions for
the maintenance of public safety therein;
D. CLOSURE AND OPENING OF and
ROADS (4) If a freedom park is permanently closed,
there must be a provision for its transfer or
Scope of LGU’s power to close [LGC, sec. 21] relocation to a new site. [sec. 21(a),(b)]
Road, alley, park or square is
National Local  Such property permanently withdrawn
Temporary closure (1) Temporary; or from public use may be used or conveyed
only. (2) Permanent for any purpose for which other real
closure. property belonging to the LGU may be
lawfully used or conveyed. [sec. 21(b)]

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Public Roads are Outside the Commerce of Man E.3. PRESIDING OFFICER
A public road may not be the subject of lease Legislative Body Presiding Officer
or contract, as public roads are properties for Sangguniang
Vice-Governor
public use outside the commerce of Panlalawigan
man.[Dacanay v. Asistio (1992)] Sangguniang
Vice-Mayor
Panlungsod
 As long as a property owner has
Sangguniang Bayan Vice-Mayor
reasonable access to the general system of
Sangguniang
streets, he has no right to compensation Punong Barangay
Barangay
for the closure of a public street. The
Constitution does not undertake to  The presiding officer shall vote only to
guarantee to a property owner the public break a tie.
maintenance of the most convenient route
 A temporary presiding officer shall be
to his door. [Cabrera v. CA (1991)]
elected from and by the members present
and constituting a quorum, in the event of
E. LEGISLATIVE POWER the inability of the regular presiding officer
to preside at a session. The temporary
E.1. WHO MAY EXERCISE
presiding officer shall certify within 10 days
Local legislative power shall be exercised by
from the passage of ordinances enacted
the:
and resolutions adopted by the
(1) Sangguniang panlalawigan for the
sanggunian in the session over which he
province;
temporarily presided. [LGC, sec. 49]
(2) Sangguniang panlungsod for the city;
 Non-membership of Acting Governor: A
(3) Sangguniang bayan for the municipality;
Vice-Governor who is concurrently an
and
Acting Governor is actually a quasi-
(4) Sangguniang barangay for the barangay
Governor. He is deemed a non-member of
[LGC, sec. 48]
the sanggunian for the time being and so
E.2. ORDINANCE V. RESOLUTION cannot preside over its sessions. The
[Garcia v. COMELEC (1994)] procedure for the election of a temporary
Ordinance Resolution presiding officer in case of inability of the
Mere declaration of the regular presiding officer shall apply in such
Considered as a law opinion of the case.[Gamboa v. Aguirre (1999)]
lawmaking body
On matters applying to E.4. INTERNAL RULES OF PROCEDURE
persons or things in On a specific matter On the first regular session following the
general election of its members and within 90 days
Intended to thereafter, the sanggunian shall adopt or
permanently direct and Temporary in nature
update its existing rules of procedure. [Sec. 50,
control
LGC]
A third reading is not
necessary unless  On the first regular session the
A third reading is sanggunian concerned shall adopt or
decided otherwise by a
necessary
majority of all the update its existing rules of
sanggunian members procedure.LGC, sec. 50 does not mandate
that no other business may be transacted

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on the first regular session. [Malonzo v.


Zamora (1999)] General rule: A majority of the members
 The rules of procedure shall provide present, there being a quorum is required for
for: the valid enactment of an ordinance or
(1) Organization of the Sanggunian and resolution [LGC IRR, art. 107(g)]
the election of its officers
(2) Creation of Standing Committees Exception: When otherwise provided by the
(3) Order and calendar of business for LGC (e.g. any ordinance or resolution
each session authorizing or directing the payment of money
(4) Disciplinary rules for members for or creating a liability requires the approval of
disorderly behavior and absences the majority of all the sanggunian members).
without justifiable cause for 4
consecutive sessions It is legally permissible for the sanggunian to
 The penalties which the sanggunian may provide for a higher voting requirement for the
impose are: (1) censure, (2) reprimand, (3) enactment or amendment of a particular
exclusion from the session, (4) suspension ordinance. [Casiño v. CA (1991)]
for not more than 60 days, and (5)
When there is no quorum:
expulsion.
 The presiding officer may declare a recess
o The penalty of suspension or expulsion
until such time as a quorum is constituted.
requires the concurrence of at least 2/3
of all the sanggunian members.  A majority of the members present may
o A member convicted by final judgment also adjourn from day to day and may
to imprisonment of at least 1 year for a compel the attendance of any member
crime involving moral turpitude shall absent without justifiable cause by
be automatically expelled from the designating a member of the sanggunian
sanggunian. [LGC, sec. 50] to arrest the absent member and present
him at the session.
E.5. QUORUM o The member designated shall be
The presence of a quorum is required to assisted by a member or members
transact official business. A majority of all of the police force in the territorial
members of the Sanggunian who have been jurisdiction of the LGU concerned.
elected and qualified shall constitute a  If there is still no quorum, no business shall
quorum. [LGC, sec. 53] be transacted. The presiding officer, upon
 The presence of the presiding officer is proper motion duly approved by the
considered in determining the presence of members present, shall then declare the
a quorum since a presiding officer is session adjourned for lack of quorum.
considered a “member” of the [LGC, sec. 53]
sanggunian.[La Carlota City v. Rojo (2012)]
E.6. SANGGUNIAN SESSIONS
 Quorum shall be based on the total
number of members without regard to the  First session following the election, the
filing of a leave of absence. The filing of a Sanggunian shall, by resolution, fix the
leave of absence does not affect a day, time, and place of its regular sessions.
member's election to, and qualification as  Minimum Number of Regular Sessions:
member of, a local legislative
body.[Zamora v. Caballero (2004)]

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o Sangguniang Panlalawigan, i. Approval: Local chief executive shall affix his


Panlungsod, and Bayan: Once a signature on each and every page of the
week ordinance. [LGC, sec. 54]
o Sangguniang Barangay: Twice a  The signature of the local chief executive in
month the approval of an ordinance or resolution
 Public sessions: All sessions shall be open is not a mere ministerial act, as it requires
to the public. the exercise of analysis and judgment. This
o Exception: Closed-door session is is part of the legislative process.[Delos
ordered by majority of the Reyes v. Sandiganbayan (1997)]
members present, there being a
quorum, in the public interest or ii. Disapproval (Veto):The local chief executive
for reasons of security, decency or shall veto the ordinance, stating his reasons in
morality. writing. [LGC, sec. 54]
 No two sessions, regular or special, may be  Grounds: Under the LGC, only two grounds:
held in a single day. (1) Ultra vires; or
(2) Prejudicial to public welfare, stating his
E.7 SPECIAL SESSIONS reasons in writing.
 May be called by the local chief executive  The local chief executive may veto an
or by majority of the Sanggunian. ordinance or resolution only once.
 Written notice to the members shall be  Periods: The ordinance is returned with
served personally at their usual place of objections to the Sanggunian within 15
residence at least 24 hours before the days in the case of Sangguniang
special session is held. Panlalawigan, or within 10 days in the case
of Sangguniang Panlungsod/Bayan;
 No other matters may be considered
otherwise, the ordinance shall be deemed
except those stated in the notice unless
approved.
otherwise concurred in by 2/3 vote of those
present, there being a quorum.  Override: The veto may be overridden by
the Sanggunian upon a 2/3 vote of all its
members.
E.8. NO SUBPOENA AND CONTEMPT
 No veto for barangays: The veto power
POWERS
cannot be exercised by the punong
Local legislative bodies do not have the power
barangay (since he is a member of the
to subpoena witnesses and the power to
sangguniang barangay). The punong
punish non-members for contempt. They may
barangay signs the ordinances enacted by
only invite resource persons who are willing to
the sangguniang barangay upon their
supply information which may be relevant to
approval.
the proposed ordinance. [Negros Oriental II
Electric Cooperative, Inc. v. Sangguniang  Item veto:The local chief executive, except
Panlungsod of Dumaguete (1987)] the punong barangay, shall have the
power to veto any particular item or items
E.9. APPROVAL AND VETO OF of an:
ORDINANCES (1) appropriations ordinance;
(2) ordinance or resolution adopting the local
development plan or public investment
program; and

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(3) ordinance directing the payment of money appropriations ordinance of the previous
or creating liability year corresponding to those vetoed shall
 In case of an item veto, the veto shall not be deemed re-enacted.
affect the items not objected to. If the veto
is not overridden, the items in the

E.10. PUBLICATION AND EFFECTIVITY OF ORDINANCES


Following rules apply to (1) ordinances and (2) resolutions approving the local government plan and
public investment programs.

Publication Effectivity
General Rule
[LGC, sec. 59(a)]
Posted (1) in a bulletin board at the entrance of 10 days after posting, unless otherwise stated in
the provincial capitol or city, municipal, or the ordinance
barangay hall, as the case may be, and (2) in at
least 2 other conspicuous places
Highly Urbanized and Independent Component Cities
[LGC, sec. 59(d)]
In addition to posting, main features of the 10 days after completion of posting and
ordinance shall be published once (a) in a local publication requirements, unless otherwise stated
newspaper of general circulation; or if none, (b) in in the ordinance
any newspaper of general circulation
All Ordinances with Penal Sanctions
[LGC, sec. 59(d), 511]
(1) Posted at prominent places in the provincial Unless otherwise provided therein, the ordinance
capitol, or city, municipal or barangay hall for a shall take effect on the day following its
minimum period of 3 consecutive weeks; publication, or at the end of the period of posting,
whichever occurs later.
(2) Published in a newspaper of general
circulation within the LGU concerned (where
available) except in the case of barangay
ordinances; AND

(3) Gist of such penal ordinance shall be


published in a newspaper of general circulation
within the province where the local legislative
body belongs; if none, posting shall be made in
all municipalities and cities of the said province

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Tax Ordinances and Revenue Measures


[LGC, sec. 188]
Within 10 days after their approval, certified true 10 days after publication or posting, unless
copies shall be published in full for 3 consecutive otherwise stated in the ordinance
days (a) in a newspaper of local circulation, or, (b) if
none, the same may be posted in at least 2
conspicuous and publicly accessible places

E.11. REVIEW OF ORDINANCES/ RESOLUTIONS[LGC, SEC. 59]


Sanggunian of Component Cities and Sangguniang Barangay
Municipalities
By Whom
Sangguniang Panlalawigan Sangguniang Panlungsod or Sangguniang Bayan
When
Within 3 days from approval, forwarded by Within 10 days from approval, forwarded by Sang.
Secretary of Sang; Barangay
What
(1) Ordinances and (2) Resolutions approving local All barangay ordinances
development plans and public investment
programs
How Reviewed
Sangguniang Panlalawigan shall examine the The sanggunian concerned shall examine the
documents or transmit them first to the Prov. Atty. ordinance
(if none, to Prov. Prosecutor) for comments and
recommendations
Grounds for Rejection
If beyond the power conferred upon the Whether consistent with law and the city and
Sanggunian concerned municipal ordinances
Period to Review
30 days; if no action after 30 days, presumed 30 days; if no action after 30 days, deemed
consistent with law and valid approved

 Any attempt to any enforce any ordinance Prior Hearing Requirement for Tax and
or resolution approving the local Revenue Measures
development plan or public investment Public hearings must be conducted prior to the
program, after the disapproval thereof, enactment of a tax ordinance or revenue
shall be sufficient ground for the measure. [LGC, sec. 187-188]
suspension or dismissal of the official or
employee concerned. [LGC,sec. 58]

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Review of Tax Ordinances by the Sec. of Justice (2) Any business, financial, or professional
[sec. 187] relationship or relation by
Within 30 days from the effectivity of tax affinity/consanguinity up to the 4th degree
ordinances or revenue measures, questions on with any person affected by any ordinance
their constitutionality or legality may be raised or resolution under consideration by the
on appeal to the Sec. of Justice. sanggunian which may result in a conflict
 Sec. of Justice shall render a decision of interest. Such relationship shall include:
within 30 days from receipt of appeal. (a) Ownership of stock or capital, or
 The appeal shall not have the effect of investment, in the entity or firm to
suspending the effectivity of the ordinance which the ordinance or resolution may
and the accrual of the tax, fee or charge. apply; and
 Within 30 days from receipt of Sec. of (b) Contracts or agreements with any
Justice’s decision or the lapse of the 60- person or entity which may be affected
day period without the Sec. of Justice by the ordinance or resolution. [sec.
taking action, the aggrieved party may file 51(a)]
action with competent court.
 Conflict of Interest refers in general to one
 Sec. 187 is valid as it is merely an exercise
where it may be reasonably deduced that a
of the power of supervision [Drilon v. Lim
member of the sanggunian may not act in
(1994)].
the public interest due to some private,
pecuniary, or other personal considerations
E.12. FULL DISCLOSURE OF FINANCIAL
that may tend to affect his judgment to the
AND BUSINESS INTERESTS OF
prejudice of the service or the public. [sec.
SANGGUNIAN MEMBERS 51(a)]
 Exception: If the Constitution or statute has
When: Disclosure is required
a definition which specifically applies to
(1) Upon assumption of office [sec. 51(a)];
the situation. [sec. 51(a)]
(2) Before participation in the deliberations on
the ordinance or resolution under i. Requisites for a Valid Ordinance
consideration [sec. 51(b)(1)]; [City of Manila v. Laguio, Jr. (2005)]
(3) If he did not participate during the (1) It must be within the corporate powers of
deliberations, before voting on the the LGU to enact;
ordinance or resolution on second and (2) It must be passed according to the
third reading [sec. 51(b)(1)]; and procedure prescribed by law; and
(4) when taking a position or making privilege (3) It must conform to the following
speech that may affect his interests [sec. substantive requirements:
51(b)(2)] (a) Not contrary to the Constitution and
statute
How: (1) In writing and (2) submitted to the
(b) Not unfair or oppressive
secretary of the sanggunian or the secretary of
(c) Not partial or discriminatory
the committee of which he is a member. [sec.
(d) Not unreasonable
51(b)]
(e) May regulate, but not prohibit trade
(f) Must be general and consistent with
What:
public policy.
(1) Any business and financial interests; and

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V. Local Initiative and Referendum


A. LOCAL INITIATIVE
Legal process whereby the registered voters of an LGU may directly
Definition
propose, enact, or amend an ordinance. [sec. 120]
All registered voters of the provinces, cities, municipalities, and
Exercised by
barangays. [sec. 121]
15 days after the Certification by the COMELEC that the proposition is
Effectivity
approved by a majority of the votes cast [sec. 123]
(1) Local initiative shall not be exercised more than once a year.
(2) Initiative shall extend only to subjects or matters which are within
the legal powers of the sanggunians to enact.
Limitations on Power of (3) If at any time before the initiative is held, the sanggunian
Initiative concerned adopts in toto the proposition presented and the local
chief executive approves the same, the initiative shall be cancelled.
However, those against such action may, if they so desire, apply for
initiative. [sec. 124]
 Any proposition or ordinance approved through the system of
initiative and referendum:
 Shall not be repealed, modified, or amended by the sanggunian
concerned within six (6) months from the date of its approval; and
Limitations upon
 May be amended, modified, or repealed by the sanggunian within
Sanggunians
three (3) years thereafter [only] by a vote of three-fourths (3/4) of all
its members.
 However, in case of barangays, the period shall be eighteen months.
[sec. 125]

A.1. PROCEDURE [LGC, SEC. 122] representatives may invoke their power of
(1) File petition with local legislature. Not less initiative, giving notice thereof to the local
than 1,000 registered voters in case of legislative body concerned
provinces and cities, 100 in case of  Two or more propositions may be
municipalities, and 50 in case of submitted in an initiative.
barangays, may file a petition with the (3) Collection of signatures. Proponents shall
local legislative body, proposing the have 90 days in case of provinces and
adoption, enactment, repeal, or cities, 60 days in case of municipalities,
amendment, of any ordinance or and 30 days in case of barangays, from
resolution. notice to collect the required number of
(2) Invoke initiative by giving notice. If no signatures.
favorable action thereon is made by local  The petition shall be signed before the
legislative body within 30 days from its Election Registrar, or his designated
presentation, the proponents through their representative, in the presence of a
duly authorized and registered representative of the proponent, and a

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representative of the local legislative B. LOCAL REFERENDUM


body concerned in a public place in the  Legal process whereby the registered
LGU. voters of the local government unit may
(4) Certification of COMELEC and setting of approve, amend, or reject any ordinance
date of vote. The COMELEC shall certify enacted by the Sanggunian.
that the required number of signatures has
 It shall be held under the direction of
been obtained and shall set a date for
COMELEC within 60 days in case of
approval of the proposition within 60 days
provinces and cities, 45 days in case of
from the date of certification by the
municipalities and 30 days in case of
COMELEC in case of provinces and cities,
barangays.[sec. 126]
45 days in case of municipalities, and 30
days in case of barangays.
(5) Voting and Results. The results of the
initiative shall be certified and proclaimed
by the COMELEC.

__________________________________________________________________________________________

B.1. INITIATIVE V. REFERENDUM


Initiative Referendum
Initiated by the people directly. Law-making body submits matter to
How initiated the registered voters of its territorial
jurisdiction.
To legislate, because the law-making To approve or reject any ordinance or
body fails or refuses to enact the resolution which is duly enacted or
Objective or Purpose ordinance or resolution that they approved by such lawmaking
desire or because they want to amend authority.
or modify one already existing.
No role [except for unfavorable action Legislative. A referendum consists
on the petition submitted to it]. merely of the electorate approving or
Initiative is a process of law-making by rejecting what has been drawn up or
Role of Legislature
the people themselves without the enacted by a legislative body. [SBMA v.
participation and against the wishes of COMELEC (1996)]
their elected representatives.

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VI. Corporate Powers  Suability v. Liability: However, the fact that


they are suable does not necessarily mean
that they are liable. Reference must be had
Sec 22. LGC. Every local government unit, as a to the applicable law and established facts
corporation, shall have the following powers: to determine their liability. [San Fernando,
(1) To have continuous succession in its La Union v. Firme (1991)]
corporate name;  The Congressional grant of the consent to
(2) To sue and be sued; be sued only means that the State (here,
(3) To have and use a corporate seal; the LGU) gives up its immunity from suit.
(4) To acquire and convey real or personal This does not concede liability, but merely
property; allows the plaintiff a chance to prove, if it
(5) To enter into contracts; and can, that the State or its officials are liable.
(6) To exercise such other powers as are [USA v. Guinto (1990)]
granted to corporations, subject to the
limitations provided in this Code and B. TO ACQUIRE AND SELL PROPERTY
other laws.
(REAL OR PERSONAL)
Local government units may continue using,
modify, or change their existing corporate
seals: Provided, That newly established local  Nature and control: If the property is owned
government units or those without corporate by the municipality in its public and
seals may create their own corporate seals governmental capacity, the property is
which shall be registered with the Department public and Congress has absolute control
of the Interior and Local Government: over it. If the property is owned in its
Provided, further, that any change of corporate private or proprietary capacity, then it is
seal shall also be registered as provided patrimonial and Congress has no absolute
hereon. control. The municipality cannot be
Unless otherwise provided in this Code, no deprived of it without due process and
contract may be entered into by the local chief payment of just compensation.
executive in behalf of the local government  To be considered public, it is enough that
unit without prior authorization by the the property be held and devoted for
sanggunian concerned. A legible copy of such governmental purposes like local
contract shall be posted at a conspicuous administration, public education and
place in the provincial capitol or the city, public health. [Province of Zamboanga del
municipal or barangay hall. Norte v. City of Zamboanga (1968)]
Local government units shall enjoy full  Regardless of the source or classification of
autonomy in the exercise of their proprietary land in the possession of a municipality,
functions and in the limitations provided in this excepting those acquired with its own
Code and other applicable laws. [LGC, sec. 22] funds in its private or corporate capacity,
such property is held in trust for the State
A. TO SUE AND BE SUED for the benefit of its inhabitants, whether it
be for governmental or proprietary
LGUs are suable even if they are acting in their purposes. It holds such lands subject to the
governmental capacity because they are given paramount power of the legislature to
the power “to sue and be sued.” dispose of the same, for after all it owes its
creation to it as an agent for the

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performance of a part of its public work,  Approval by national agency concerned


the municipality being a subdivision or
instrumentality thereof for purposes of General rule: No necessity of securing
local administration. [Rabuco v. Villegas clearance or approval from national
(1974)] agency or from any higher LGU

C. TO ENTER INTO CONTRACTS Exception: If the projects financed by such


grants or assistance be with national
C.1. REQUISITES security implications, they shall be
(1) Entered into by the local chief executive in approved by the national agency
behalf of the LGU; concerned. Failure by such national agency
(2) Prior authorization by Sanggunian to act on request for approval within 30
concerned; and days from receipt thereof will render the
(3) Legible copy of contract posted at a projects deemed approved.
conspicuous place in theprovincial capitol  Reporting duty: The local chief executive
or city, municipal or barangay hall [LGC, shall report to both Houses of Congress
sec. 22] and the President the nature, amount and
terms of such assistance within 30 days
 Appropriation ordinance as prior upon signing of the grant agreement or
authorization: Prior authorization may deed of donation [LGC, sec. 23]
come in the form of a sufficiently detailed
appropriation ordinance, but not when the C.2. ULTRA VIRES CONTRACTS
ordinance is merely a reenacted budget. An LGU can legitimately exercise powers of
 Specificity requirement: No further government only within the limits of the
authorization is required if the authority granted to it, or else its acts are ultra
appropriation ordinance already contains vires.
in sufficient detail the project and cost of a  Illustration: A public street is property for
capital outlay such that all the local chief public use; hence, outside the commerce of
executive needs to do after undergoing the man. Being outside the commerce of man,
requisite public bidding is to execute the it may not be the subject of lease or other
contract.[See Quisumbing v. Garcia (2008)] contract. The city government, contrary to
o The appropriation ordinance is not law, has been leasing portions of the
sufficient if it merely describes the streets. Such lease or license is null and
projects in generic terms (e.g. void for being contrary to law. [Dacanay v.
“infrastructure projects,” “inter- Asistio (1992)]
municipal waterworks.”) [Id.]

Authority to Negotiate and Secure Grants


 Who may negotiate: Local Chief Executive,
upon authority of Sanggunian.
 What are negotiated: Financial grants or
donations in kind in support of basic
services or facilities from local and foreign
assistance agencies.

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Types of Ultra Vires Acts


Void Ultra Vires Acts Ultra Vires Acts Subject to Ratification/Validation
Act is outside the municipality’s jurisdiction Act is attended only by an irregularity but
remains within municipality’s powers
Examples: Examples:
(1) Contract entered into beyond the express, (1) Contract entered into by the improper
implied, or inherent powers of the LGU; department, board, officer, or agent;
(2) Contract does not comply with substantive (2) Contract does not comply with the formal
requirements of law (e.g. actual appropriation requirements of a written contract (e.g.
and certificate of availability of funds for an Statute of Frauds)
expenditure of public funds)
[Land Bank v. Cacayuran (2013)]

VI. Liability of Local Government Units


Local government units and their officials are The obligation imposed by article 2176 is
not exempt from liability for death or injury to demandable not only for one's own acts or
persons or damage to property. [LGC, sec. 24] omissions, but also for those of persons for
whom one is responsible. […]
 Under pre-LGC case law and B.P. Blg. 337,
an LGU is not liable for the acts of its The State is responsible in like manner when it
officers or agents in the performance of its acts through a special agent; but not when the
government functions. damage has been caused by the official to
 However, it is not clear if sec. 24 intended whom the task done properly pertains, in
to broaden the liability of local which case what is provided in article 2176
governments and their officials, since the shall be applicable. […]
reference to immunity for official functions
was removed. [GATMAYTAN] The responsibility treated of in this article shall
cease when the persons herein mentioned
When a member of a city or municipal police prove that they observed all the diligence of a
force refuses or fails to render aid or protection good father of a family to prevent damage.
to any person in case of danger to life or [CIVIL CODE, art. 2180]
property, such peace officer shall be primarily
liable for damages, and the city or municipality Provinces, cities and municipalities shall be
shall be subsidiarily responsible therefor. The liable for damages for the death of, or injuries
civil action herein recognized shall be suffered by, any person by reason of the
independent of any criminal proceedings, and defective condition of roads, streets, bridges,
a preponderance of evidence shall suffice to public buildings, and other public works under
support such action. [CIVIL CODE, art. 34] their control or supervision. [Art. 2189, Civil
Code]

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Political/Governmental Acts Corporate/Proprietary Acts


Liability
LGU generally not liable unless a statute provides Can be held liable ex contractu or ex delicto
otherwise, e.g.
(1) Damages due to defective condition of roads,
streets, buildings, and other public works
[CIVIL CODE, art. 2189]
(2) Damages due to failure of a peace officer to
render aid or protection in case of danger to
life or property [CIVIL CODE, art. 34]
Defense
No valid defense for non-performance Defense of due diligence in the selection and
supervision of its officers
Personal Liability of Officers
Officers or agents acting within official duties are Officers and agents are like (a) individuals; or (b)
not liable unless they acted willfully and the directors and officers of a private corporation,
maliciously [Mendoza v. de Leon (1916); but see i.e. they are liable if they acted in bad faith or with
LGC, sec. 24] gross negligence. [See Mendoza]
Application of Respondeat Superior
Respondeat superior does not apply Respondeat superior applies [Mendoza v. de Leon
(1916)]

Illustrations which the LGU is not authorized to make even


if it has accepted the benefits thereunder [San
A. ON CONTRACT Diego v. Municipalityof Naujan (1960), on the
lease of municipal waters without a public
General Rule: The LGU is liable only for bidding]
contracts that are intra vires.
B. ON TORT
Exception: The Doctrine of Implied Municipal Under jurisprudence, liability of the LGU would
Liability provides that an LGU may become depend on the nature of the act.
obligated upon an implied contract to pay  If in the performance of a governmental
reasonable value of the benefits accepted by it function, the LGU is not liable. [Palafox v.
as to which it has the general power to Province of Ilocos Norte (1958), on an
contract. [Province of Cebu v. IAC (1987), on the accident during the construction of a
hiring of a private counsel by the governor provincial road.]
which was not repudiated by the provincial  If in the performance of a proprietary
board] function, the LGU is liable. Hence, the LGU
is liable for:
Exception to the Exception: The LGU may not o The improper grant of a ferry service
be estopped in order to validate a contract franchise [Mendoza v. de Leon (1916)];

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o Deaths caused by a collapsed stage in


a town fiesta [Torio v. Fontanilla (1978)]
VIII. Settlement of
Liability for back pay of employees
Boundary Disputes
LGUs may be held liable for the back pay or
wages of employees or laborers illegally A. AMICABLE SETTLEMENT
separated from the service, whether employed
to perform (a) proprietary functions (e.g. Boundary disputes between and among local
market sweepers) or (b) performing primarily government units shall, as much as possible,
governmental functions (e.g. policemen). be settled amicably. [LGC, sec. 118 (a)-(d)] To
[Guillergan v. Ganzon (1966)] this end:
Note: Guillergan’s obiter on policemen cited
cases which applied a law expressly awarding Boundary Where Amicably
them back pay in case they are acquitted of dispute settled by
administrative charges. between
2 or more Same city or Sangguniang
Liability under Art. 2189based on control barangays municipality Panlungsod or
For liability to arise under Art. 2189 of the Civil Sangguniang
Code, ownership of the roads, streets, bridges, Bayan
public buildings and other public works, is not 2 or more Same Sangguniang
a controlling factor, it being sufficient that a municipalities province Panlalawigan
province, city or municipality has control or Municipalities Different Jointly referred
supervision thereof. [Municipality of San Juan v. or component provinces to
CA (2005)] cities sanggunians
of the
C. PERSONAL LIABILITY OF THE provinces
PUBLIC OFFICIAL concerned
The public official is personally liable for Component N/A Jointly referred
damages city or to respective
(1) In contracts and torts, if he acts (i) Municipality v. sanggunians
beyond the scope of his powers; or(ii) Highly of the parties
with bad faith [see Rivera v. Maclang urbanized city
(1963)]; and Between 2 or
(2) For his refusal or neglect, without more highly
justifiable cause, to perform his official urbanized
duty. [CIVIL CODE, art. 27] cities

While a municipality cannot be bound by a N.B.The power of provincial boards to settle


contract which is void for being ultra vires, boundary disputes is limited to implementing
“case law states that the [officers] who the law creating a municipality. Thus,
authorized the same can be held personally provincial boards do not have the authority to
accountable for acts claimed to have been approve agreements which in effect amend the
performed in connection with official duties boundary stated in the creating statute.
where they have acted ultra vires.” [See Land [Municipality of Jimenez v. Baz (1996)]
Bank v. Cacayuran (2013)]

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B. FORMAL TRIAL jurisdiction is an issue raised in the


pending boundary dispute, until and
Trial by Sanggunian: In the event the unless such issue is resolved with finality,
sanggunian fails to effect an amicable to define the territorial jurisdiction of the
settlement within 60 days from referral of the proposed barangay would only be an
dispute, exercise in futility. [City of Pasig v.
(a) It shall issue a certification to that COMELEC (1999)]
effect; and
(b) The dispute shall be formally tried by
the sanggunian concerned, which shall
decide the issue within 60 days from
the date of the certification referred to
above. [LGC, sec. 118(e)]

Trial by RTC: When the dispute between two


LGUs do not fall under those enumerated in
LGC, sec. 118, the RTC shall exercise original
jurisdiction over the settlement of a boundary
dispute between a municipality and an
independent component city. [Municipality of
Kananga v. Madrona (2003), applying B.P. Blg.
129, sec. 19(6)or the RTC’s general original
jurisdiction]

C. APPEAL

Appeal of the Sanggunian Decision


 When: Within the time and manner
prescribed by the Rules of Court
 Where: Proper Regional Trial Court having
jurisdiction over the area in dispute.[LGC,
sec. 119]

N.B. Maintenance of the Status Quo


Pending final resolution of the dispute, the
status of the affected area prior to the dispute
shall be maintained and continued for all
purposes. [LGC IRR, art. 18]
 The conduct of a plebiscite on the creation
of a barangay should be suspended or
cancelled in view of a pending boundary
dispute between two local governments
involving an area covered by the proposed
barangay. Precisely because territorial

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IX. Succession of
Elective Officials
A. SUCCESSION IN PERMANENT
VACANCIES
Permanent Vacancy occurs when an elective
local official:
(1) Fills a higher vacant office;
(2) Refuses to assume office;
(3) Fails to qualify;
(4) Dies;
(5) Is removed from office;
(6) Voluntarily resigns; or
(7) Is otherwise permanently incapacitated
from discharging the functions of his office.
[LGC, sec. 44, ¶ 2]

A.1. VACANCY IN THE LOCAL CHIEF EXECUTIVE


[LGC, SEC. 44]

Vacant Positions Successor


Governor; or Vice Governor;or
Mayor Vice Mayor
Vice-Governor;or Highest-ranking Sangguinang member
Vice-Mayor
Governor and Vice-Governor; or Highest-ranking Sanggunian member to become Governor/Mayor;
Mayor and Vice-Mayor Second highest-ranking Sanggunian member to become Vice-
Governor/Vice-Mayor

Subsequent vacancies filled according to their rank.


Punong Barangay Highest-ranking Sangguniang Barangay Member

 Resolution of ties: A tie between or among  Ranking in the sanggunian: Determined on


highest ranking sangguninan members the basis of the proportion of votes
shall be resolved by the drawing of lots. obtained by each winning candidate to the
[LGC IRR, art. 83(b)(3)] total number of registered voters in each
district in the immediately preceding local
election. [LGC, sec. 44]

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A.2. PERMANENT VACANCIES IN THE SANGGUNIAN
[FARIÑAS V. BARBA (1996); LGC, SEC. 45]
Appointing If prior member was If prior member not a member of
Position
Authority member of a political party any political party
Sangguniang Nomination and Recommendation of the
Panlalawigan Certification of the political Sangguniang Panlalawigan
President through
Sangguniang Panlungsod the party of the member who
Executive
(of highly urbanized and Secretary caused the vacancy issued Recommendation of the
independent component by the highest official of Sangguniang Panlungsod
cities) the political party
Sangguniang Panlungsod Nomination and Recommendation of
(of component cities) Certification of the political Sangguniang Panglungsod
party of the member who
Governor
caused the vacancyissued Recommendation of
Sangguniang Bayan
by the highest official of Sangguniang Bayan
the political party
N/A

(There is no right given to


a political party to
nominate the person to fill
the vacancy in the Recommendation of
Sangguniang Barangay City or Municipal
Sangguniang Barangay Sangguniang Barangay
Mayor
because the members of
the Sangguniang
Barangay are not allowed
to have party affiliations.
[Fariñas v. Barba (1996)])

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 If the sanggunian member who caused the  The appointee under Sec. 45 serves the
vacancy is a member of a political party, the unexpired term of the vacant office.
appointee must come from the same  If the vacancy pertains to barangay or youth
political party as that of the sanggunian representation in the sanggunian, the
member who caused the vacancy. [LGC, sec. vacancy is automatically filled by the official
45(b)] next in rank of the organization concerned.
o Rationale: To maintain party [Sec. 45(d), LGC]
representation as willed by the
people in the election. [Navarro v. A.3. RESIGNATION OF ELECTIVE
CA (2001)] OFFICIALS
o There must be a nomination and
certificate of membership from the General Rule: Deemed effective only upon
highest official of the political party acceptance of the resignation by the following
concerned. authorities:
o An appointment without such
nomination and certification isnull Resignation by Approved by
and void ab initio and is a ground Governors and vice- President
governors;
for administrative action against the
Mayors and vice-mayors
responsible official. [LGC, sec. 45(b)] of HUCs and ICCs
 If the sanggunian member who caused the Mayors and vice-mayors Governors
vacancy does not belong to any political of component cities and
party, the local chief executive shall appoint municipalities
a qualified person, upon recommendation Sanggunian members Sanggunian
of the sanggunian concerned. [Sec. 45(c), concerned
LGC] Barangay officials City or municipal
 The local chief executive under Sec. 45(c) mayor
LGC refers to the local chief executive under
Exceptions: Resignation is deemed accepted
Sec. 45(a) while the sanggunian concerned
when
refers to the sanggunian where the vacancy
(1) Not acted upon: The resignation shall be
occurs. [Fariñas v. Barba (1996)]
deemed accepted if not acted upon by the
 The appointing authority is not bound to
authority concerned within 15 working days
appoint anyone recommended to him by the
from the receipt thereof. [LGC, sec. 82]
sanggunian concerned. The power of
(2) Irrevocable resignations by sanggunian
appointment is a discretionary power. On
members shall be deemed accepted upon
the other hand, neither is the appointing
presentation before an open session of the
authority vested with so large a discretion
sanggunian concerned and duly entered in
that he can disregard the recommendation
its records. [LGC, sec. 82]
of the sanggunian concerned. Since the
recommendation takes the place of Resignation not allowed in recall: The elective
nomination by political party, the local official sought to be recalled shall not be
recommendation must likewise be allowed to resign while the recall process is in
considered a condition sine qua non for the progress. [LGC, sec. 73]
validity of the appointment. [Fariñas v.
Barba (1996)]

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Resignation v. Abandonment Office where Who Temporarily Succeeds


Although a resignation is not complete without Temporary Vacancy into Office
an acceptance thereof by the proper authority, Occurs
an office may still be deemed relinquished
Governor Vice-Governor,
through voluntary abandonment which needs
automatically
no acceptance.
 On Resignation: Under established Mayor Vice-Mayor, automatically
jurisprudence, resignations, in the absence Punong Barangay Highest-ranking
of statutory provisions as to whom they Sanggunian Member,
should be submitted, should be tendered to automatically
the appointing person or body.
 On Abandonment: Abandonment is Local Chief (1) The person designated
“voluntary relinquishment of an office by Executive is in writing by the local
the holder, with the intention of terminating travelling within chief executive; OR
his possession and control thereof.” It is a the country but is (2) Vice-Governor, Vice-
species of resignation; while resignation in outside his Mayor, or highest-
general is a formal relinquishment, territorial ranking Sangguniang
abandonment is a voluntary relinquishment jurisdiction for a Barangay Member, on
through nonuser.[Sangguniang Bayan of period not the 4th day of absence,
San Andres v. CA (1998)] exceeding three if local chief executive
consecutive days fails or refuses to
Requisites for Essential elements of designate a successor
resignation abandonment
(1) Intention to (1) Intent to B.1. EXTENT OF DUTY EXERCISED BY
relinquish a part of abandon; and TEMPORARY SUCCESSOR
the term; (2) Overt act by General Rule: The successor shall automatically
(2) Act of which the intention exercise the powers and perform the duties and
relinquishment; is to be carried into functions of the local chief executive.
and effect
(3) Acceptance by the Exception: The successor may exercise the
proper authority power to appoint/suspend/dismiss employees
only if the period of incapacity exceeds 30
B. SUCCESSION IN TEMPORARY working days
VACANCIES
[LGC, SEC. 46)] Designation by Local Chief Executive
Temporary vacancy occurs when the local chief General Rule: The local chief executive can only
executive is temporarily incapacitated to authorize the vice-governor, city/municipal
perform his duties for physical or legal reasons vice-mayor, or highest ranking sangguniang
such as, but not limited to: barangay member, as the case may be, to
(1) Leave of absence; exercise powers/duties/functions of his office.
(2) Traveling abroad; or [sec. 46(e)]
(3) Suspension from office.

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Exception: If the local chief executive is traveling B.3. LEAVES OF ABSENCE


within the country but outside his territorial Local Official LOA Approved by
jurisdiction for a period not exceeding 3
consecutive days, he may designate in writing Governors and mayors The President or his
the officer-in-charge. of highly-urbanized duly authorized
The creation of a temporary vacancy in the cities or independent representative
office of the Governor creates a corresponding component cities
temporary vacancy in the office of the Vice Vice-Governors, The Local Chief
Governor whenever the latter acts as Governor City/Municipal Vice- Executive
by virtue of such temporary vacancy. This event Mayors
constitutes an inability on the part of the
City/Municipal Mayors The Governor
presiding officer (Vice Governor) to preside
of component cities
during the sanggunian sessions, which thus
and municipalities
calls for the operation of the remedy set in sec.
49(b) of the LGC on the election of a temporary Sanggunian The Vice-Governor or
presiding officer. [Gamboa v. Aguirre (1999)] Panlalawigan, Vice-Mayor
Panglungsod, and
B.2. TERMINATION OF TEMPORARY Bayan Members and
INCAPACITY their employees
Upon submission by the local chief executive to Punong Barangays The City/Municipal
the sanggunian of a written declaration that he Mayor
has reported back to office
Sanggunian Barangay The Punong Barangay
Members
If the temporary incapacity is due to legal
causes, the local chief executive must also
submit the necessary documents showing that If the application for LOA is not acted upon
the legal causes no longer exist. [sec. 46(b)] within 5 working days after receipt, the
application is deemed approved. [LGC, sec. 46]

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X. Discipline of Local No investigation may be held within 90 days


Officials immediately prior to any local election. [LGC,
sec. 62]

A. DISCIPLINE OF ELECTIVE ii. Ombudsman Jurisdiction


OFFICIALS Primary Jurisdiction Acts or omissions of a
[R.A. No. 6770, sec. public officer or employee
A.1. GROUNDS FOR DISCIPLINARY 15] in cases cognizable by
ACTION the Sandiganbayan (i.e.
(1) Disloyalty to the Republic of the Philippines; salary grade of 27 or
(2) Culpable violation of the Constitution; higher)
(3) Dishonesty, oppression, misconduct in Concurrent Cases cognizable by
office, gross negligence, or dereliction of Jurisdiction regular courts and other
duty; [LGC, sec. 61) investigative agencies of
(4) Commission of any offense involving moral the government
turpitude or an offense punishable by at
least prision mayor; In administrative cases involving the concurrent
(5) Abuse of authority; jurisdiction of two or more disciplining
(6) Unauthorized absence for fifteen (15) authorities, the body in which the complaint is
consecutive working days filed first, and which opts to take cognizance of
 Except in the case of members of the the case, acquires jurisdiction to the exclusion of
local legislative bodies. other tribunals exercising concurrent
(7) Application for, or acquisition of, foreign jurisdiction. [Office of the Ombudsman vs
citizenship or residence or the status of an Rodriguez (2010)]
immigrant of another country; and
(8) Such other grounds as may be provided in Who is salary grade 27 and above? [LGC, sec.
the LGC and other laws. [LGC, sec. 60(a)] 443-486]
Municipalities Munipical Mayor
A.2. JURISDICTION
City Mayor; Vice-Mayor; and
i. Administrative Complaints under the LGC (for highly-urbanized cities)
Cities
[LGC, sec. 61] Sanggunian Panglungsod
members
Elective Local Official of Complaint filed at
Governor; Vice-Governor; and
Province, highly urbanized Office of the Provinces Sanggunian Panlalawigan
city, independent President members.
component city, or
component city
 The powers of the Ombudsman are not
Municipality Sangguniang merely recommendatory. Under RA 6770
Panlalawigan and the 1987 Constitution, the Ombudsman
Barangay Sangguniang has the constitutional power to directly
Panglungsod or remove from government service an erring
Bayan public official other than members of

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Congress and the Judiciary. [COA, Regional Rules on Length of Preventive Suspension
Office No. 13 v. Hinampas(2007)] (1) Any single preventive suspension cannot
exceed 60 days;
iii. Sandigandbayan Jurisdiction (2) Cannot be imposed within 90 days
Exclusive original jurisdiction over violations of immediately prior to any local election; if
RA 3019 (Anti-Graft and Corrupt Practices Act), imposed before said period but extends to
RA 1379 and Chapter II, Sec. 2, Title VII, Book II such, automatically lifted upon start of the
of the RPC (Bribery) and other offenses or 90 day period;
felonies in relation to public office where one or (3) If there are several administrative cases
more of the accused are officials occupying against an elective official, he cannot be
positions corresponding to salary grade 27 or preventively suspended for more than 90
higher days within a single year on the same
 Where none of the accused are occupying ground/s existing and known at the time of
positions corresponding to salary grade 27 the first suspension;
or higher, exclusive original jurisdiction (4) Once lifted, official is deemed reinstated
shall be vested in the proper RTC or first without prejudice to the continuance of the
level court as the case may be. The proceedings against him. [LGC, sec. 62-63]
Sandiganbayan in such case shall exercise
exclusive appellate jurisdiction over final Rights of Respondent Pending Preventive
judgments or orders of RTCs in the exercise Suspension
of their original or appellate jurisdiction. (1) No salary paid during period of suspension,
[PD 1606 as amended, sec. 4] but if subsequently exonerated and
reinstated, he shall be paid full salary that
A.3. GROUNDS FOR DISCIPLINARY accrued during such suspension;
ACTION (2) Accorded full opportunity to appear and
defend himself in person or by counsel, to
i. Under the LGC confront and cross-examine witnesses, and
require attendance of witnesses and
Suspension
Elective local official of production of evidence through compulsory
imposed by
process of subpoena or subpoena duces
Province, highly urbanized tecum. [LGC, sec. 64-65]
city, or independent President
component city ii. Under the Ombudsman Act
[R.A. No. 6770, sec. 24]
Component city, or
Governor
municipality Who may impose: Ombudsman or Deputy
Barangay The Mayor Ombudsman

Requisites for Preventive Suspension


When Imposed: Any time (1) the issues are
(1) The evidence of guilt is strong; and
joined, (2) when the evidence of the guilt is
(2) Any of the following is present:
strong and(3) given the gravity of the offense,
(a) The charge against such officer or
there is great probability that the continuance
employee involves dishonesty,
in office of the respondent could influence the
oppression or grave misconduct or
witnesses or threaten the safety/integrity of the
neglect in the performance of duty;
records or evidence. [LGC, sec. 63(b)]

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(b) The charges would warrant removal removal from other evidence
from the service; or office; or
(c) The respondent's continued stay in (c) The respondent’s
office may prejudice the case filed continued stay in
against him. office would
prejudice the case
Length of Preventive Suspension filed against him
General Rule: Until the case is terminated by the Maximum period: 6 Maximum period: 60
Office of the Ombudsman but not more than six months days
(6) months without pay
N.B. The shorter period of suspension under the
Exception: When the delay in the disposition of LGC is intended to limit the period of
the case by the Ombudsman is due to the fault, suspension that may be imposed by a mayor,
negligence or petition of the respondent, the governor or the President, who may be
period of such delay shall not be counted in motivated by partisan political considerations. In
computing the period of suspension contrast, the Ombudsman is not likely to be
similarly motivated because it is a constitutional
Not in the nature of a penalty body. [Garcia v. Mojica (1999)]
A preventive suspension is merely a preliminary
step in an administrative investigation, and can iii. Preventive suspension due to an R.A. No.
be decreed on an official under investigation 3019 information
after the charges are brought and even before Any incumbent public officer against whom any
the charges are heard. [Castillo-Co v. Barbers criminal prosecution under a valid information
(1998)] under RA 3019 or under Title 7, Book II of the
RPC or for any offense involving fraud upon
Preventive Suspension Preventive Suspension government or public funds or property is
under the under the LGC pending in court shall be suspended from office.
Ombudsman Act [R.A. No. 3019, sec. 13]
(1) The evidence of (1) At any time after
guilt is strong; the issues are The suspension pendente lite under Sec. 13, RA
AND joined; 3019 is mandatory upon the filing of a valid
(2) Any of the ff. is (2) The evidence of information against the erring official. The court
present: guilt is strong; and trying a case has neither discretion nor duty to
(a) The charge (3) Given the gravity determine whether preventive suspension is
against the officer of the offense, required to prevent the accused from using his
or employee there is great office to intimidate witnesses or frustrate his
should involve probability that prosecution or continue committing
dishonesty, the continuance in malfeasance in office. This is based on the
oppression or office of the presumption that unless the public officer is
grave misconduct respondent could suspended, he may frustrate his prosecution or
or neglect in the influence the commit further acts of malfeasance or both.
performance of witnesses or pose
duty; a threat to the The suspension is not automatic, but requires
(b) The charges safety and integrity the determination of the presence of a valid
should warrant of the records and information. Upon determination of validity, it is

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the court's ministerial duty to issue an order of states that “an elective local official may be
preventive suspension. [Segovia v. removed from office by order of the proper court
Sandiganbayan (1998)] or the Disciplining Authoritywhichever first
acquires jurisdiction to the exclusion of the
The term “office” in Sec. 13, RA 3019 applies to other” is void for being repugnant to Sec. 60,
any office which the officer might currently be LGC.
holding and not necessarily the particular office
in relation to which he is charged. [Segovia v. But if the official concerned is an appointive
Sandiganbayan] official, the OP may remove him. [Pablico v.
Villapando (2002)]
A.4. REMOVAL AND OTHER SANCTIONS

i. Suspension
XI. Administrative
The penalty of suspension shall not exceed the Appeal
unexpired term of the respondent or a period of
6 months for every administrative offense.
A. PERIOD FOR APPEAL UNDER THE
It shall not be a bar to the candidacy of the LGC
respondent so suspended. [LGC, sec. 66(b)]
30 days from receipt of the decision
ii. Removal
An elective local official may be removed from
office by order of the proper court.[LGC, sec. 60] B. TO WHOM APPEALABLE:
Decision of Appeal to
The penalty of removal from office as a result of
Sangguniang Panglungsod of Sangguniang
administrative investigation shall be considered
component cities; and Panlalawigan
a bar to the candidacy of the respondent for any
Sangguniang Bayan
elective position. [LGC, sec. 66(c)]
Sangguniang Panlalawigan; Office of the
A suspension for multiple offenses does not and President
amount to a removal if each suspension Sangguniang Panglungsod of
corresponding to each offense does not exceed HUCs / ICCs
6 months. [Salalima v. Guingona (1996)] Office of the President [Final and
executory]
Proper court order
Local legislative bodies and/or the Office of the
Decisions are immediately executory: Appeals
President cannot validly impose the penalty of
shall not prevent a decision from being final
dismissal or removal from service on erring local
and executory. [sec. 68]
elective officials. It is clear from Sec. 60 of LGC
that an elective local official may be removed
Respondent is considered to have been placed
from office on the grounds enumerated only by
under preventive suspension during the
order of the proper court.
pendency of the appeal in the event he wins,
and shall be paid his salary that accrued during
Art. 124 (b), Rule XIX of the Rules and
the pendency of the appeal. [LGC, sec. 68]
Regulations Implementing the LGC, which

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The phrase “decision shall be final and (d) Fine not equivalent to one month
executory” simply means that the salary.
administrative appeal shall not prevent the
enforcement of the Sanggunian decision. The In all other cases, the decision shall become
decision is immediately executory but the final after the expiration of 10 days from receipt
respondent may appeal to the Office of the thereof by the respondent, unless a motion for
President or the Sangguniang Panlalawigan, as reconsideration or an appeal is filed by him to
the case may be. [Don v. Lacsa (2007)] the Court of Appeals. [Rules of Proc. of the
Ombudsman, Rule III, sec. 7]
Sec. 6, Admin. Order No. 18 which authorizes
the President to stay the execution of the C. DOCTRINE OF CONDONATION
decision pending appeal remains valid despite
the enactment of the LGC. The execution of Rule: A public official cannot be removed for
decisions pending appeal is procedural and in administrative misconduct committed during a
the absence of a clear legislative intent to prior term, since his re-election to office
remove from reviewing officials the authority to operates as a condonation of the officer's
order a stay of execution, such authority can be previous misconduct to the extent of cutting off
provided in the rules and regulations governing the right to remove him therefor. [Aguinaldo v.
the appeals of elective officials in administrative Santos (1992)]
cases. [Berces, Sr. v. Guingona, Jr. (1995)]
When not applicable:
The decisions of the Office of the President are (1) There is already a final determination of
final and executory. No motion for guilt. Subsequent re-election cannot be
reconsideration is allowed by law but the deemed a condonation if there was already
parties may appeal the decision to the Court of a final determination of his guilt before the
Appeals. The appeal, however, does not stay re-election. [Reyes v. COMELEC (1996)]
the execution of the decision. Thus, the DILG (2) Criminal cases. The doctrine finds no
Secretary may validly move for its immediate application to criminal cases, as these are
execution. [Calingin v. CA (2004)] violations against the state itself.[Aguinaldo
v. Santos (1992)]
Decisions of the Ombudsman
General Rule: A decision of the Ombudsman is N.B. The doctrine of condonation does not
not immediately executory. distinguish the precise timing or period when
the misconduct was committed, reckoned from
Exception: The decision is final, immediately the date of the official’s reelection, except that it
executory, and unappealable in the following must be prior to said date. Hence, the fact that
cases: the misconduct was committed so near the
(1) Where the respondent is absolved of the election day does not prevent the application of
charge; the doctrine. [Garcia v. Mojica (1999)]
(2) Where the penalty imposed is:
(a) Public censure;
(b) Reprimand;
(c) Suspension of not more than one
month; or

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D. DISCIPLINE OF APPOINTIVE E. RECALL


OFFICIALS
The power to discipline is specifically granted by E.1. REQUISITES
the Administrative Code to heads of
departments, agencies, and instrumentalities, Ground for Loss of confidence
provinces, and cities. The appointing authority recall:
is generally the disciplinary authority. Right given to: Registered voters of an LGU
to which the local elective
D.1. DISCIPLINARY AUTHORITY official subject to recall
Except as otherwise provided, the local chief belongs
executive may impose: Commencement By a Petition of a registered
(1) Removal from service of recall process: voter supported by
(2) Demotion in rank (1) 25% of registered voters
(3) Suspension for not more than 1 year without if LGU has population not
pay more than 20,000
(a) If less than 30 days, unappealable (2) 20% of registered voters
(b) If 30 days or more, appealable to the if LGU has voting
CSC population of 20,000 to
(4) Fine not exceeding 6 months’ pay 75,000. In no case shall
(5) Reprimand; and petitioners be less than
(6) Otherwise discipline subordinate official 5,000.
and employees under his jurisdiction. [LGC, (3) 15% of registered voters if
sec. 87] LGU has voting
population of 75,000 to
D.2. PREVENTIVE SUSPENSION OF 300,000. In no case shall
APPOINTIVE OFFICIALS petitioners be less than
May be imposed by the local chief executive for 15,000.
a period not exceeding 60 days if (4) 10% of registered voters if
(1) The charge against the official involves LGU has voting
dishonesty, oppression or grave misconduct population of more than
or neglect in the performance of duty; OR 300,000. In no case
(2) If there is reason to believe that the shall petitioners be less
respondent is guilty of charges which would than 45,000.
warrant his removal from service. [LGC, sec. When Recall (1) Barangay, city, or
85] Election Held: municipal officials: not
later than 30 days from
completion
(2) Provincial officials: not
later than 45 days from
completion

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Effects to official (1) Not allowed to resign


sought to be while recall process is in E.2. PROCEDURE
recalled progress. [sec. 78] (1) Petition. Filed by a registered voter in the
(2) Automatically considered LGU concerned to the COMELEC, supported
as candidate and is by the necessary number of registered
entitled to be voted upon. voters;
[sec. 71] (2) COMELEC certification of sufficiency. Within
Effectivity of Upon election and 15 days from filing of the petition, the
recall proclamation of a successor. If COMELEC must certify the sufficiency of the
the official sought to be required number of signatures. Failure to
recalled receive the highest obtain the required number shall result in
number of votes, confidence the automatic nullification of the petition.
in him is affirmed and he (3) Notice, publication, posting. Within 3 days
shall continue in office. [LGC from certification of sufficiency, COMELEC
sec. 69-75, as amended by shall:
R.A. No. 9244] (a) Provide the official subject of recall
with a copy of the petition;
Signature requirement: The law states “upon (b) Cause the publication of the petition
petition of at least 25% of registered voters” for 3 weeks in a national newspaper
and not “signed by 25% of the registered and a local newspaper of general
voters.” The petition must be filed not by one circulation; and
person but at least by 25% of the total number (c) Cause its posting for 10 to 20 days
of registered voters. While the initiatory recall at conspicuous places
petition may not yet contain the signatures of at (4) Verification and authentication of
least 25% of the total number of registered signatures. COMELEC verifies and
voters, the petition must contain the names of authenticates the signatures;
at least 25% of the total number of registered (5) Filing of candidacies. COMELEC announces
voters in whose behalf only one person may sign the acceptance of candidates for the recall
the petition in the meantime. [Angobung vs election, the official subject of the recall
COMELEC (1997)] being automatically included in the list.
(6) Setting of election. COMELEC shall set the
Note: The Angobung decision is likelyno longer election within 30 days upon completion of
good law as it was decided under the LGC’s the above procedure in barangays, cities,
original provisions on recall. As amended by and municipalities; or within 45 days in
R.A. No. 9244, the LGC seems to require that provinces.
the petition already contains the required
number of signatures upon the filing thereof. E.3. LIMITATIONS
[See LGC, sec. 70, as amended] (1) Any local elective official may be the subject
of recall election only once during his term
[…] The petition to recall shall contain the of office for loss of confidence.
following: (2) No recall election shall take place within 1
a. The names and addresses of the petitioners year from the assumption of office of the
written in legible form and their signatures. official concerned, nor within 1 year
[…][LGC, sec. 70, as amended by R.A. No. 9244, immediately preceding the date of a regular
sec. 1] election. [LGC, sec. 74(b)]

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 The phrase “regular local election” refers to XII. Term Limits


an election where the office held by the
local elective official sought to be recalled A. LENGTH OF TERM
will be contested and be filled by the SEC 8, ART X, CONST. THE term of office of elective
electorate. [Paras v. COMELEC (1996)] local officials, except barangay officials (which
 The word “recall” as used in Sec. 74(b) shall be determined by law), shall be three
refers to the election day itself by means of years.
which voters decide whether they should
retain their local official or elect his A.1. R.A. NO. 9164: SYNCHRONIZED
replacement. Hence, recall proceedings BARANGAY AND SANGGUNIANG
may be initiated within 1 year from the BARANGAY ELECTIONS (2002)
official’s assumption of office as long as the  Term of office of barangay and
recall election is outside such period. sangguniang kabataan officials: 3 years
 The phrase “immediately preceding a  No barangay elective official shall serve for
regular local election” in Sec. 74(b) refers to more than 3 consecutive terms in the same
the day of regular election not the election position
period which is normally at least 45 days (1) Reckoned from the 1994 barangay
immediately preceding the day of the elections
election. [Claudio v. COMELEC (2000)] (2) Voluntary renunciation of office for any
length of time shall not be considered
as an interruption [sec. 2]

A.2. R.A. NO. 9164: SYNCHRONIZED


BARANGAY AND SANGGUNIANG
BARANGAY ELECTIONS (2002)
 No “deemed resigned” rule for elective
officials: An elective official running for any
office other than the one which he is holding
in a permanent capacity, is no longer
considered ipso facto resigned from his
office upon the filing of his certificate of
candidacy. [sec. 14]
o N.B. Sec. 14 of RA 9006 expressly
repealed Sec. 67 of BP 881 or the
Omnibus Election Code which
states that “any elective official,
whether national or local, running
for any office other than the one
which he is holding in a permanent
capacity, except for President and
Vice-President, shall be considered
ipso facto resigned from his office
upon the filing of his certificate of
candidacy.”

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 “Deemed resigned” rule retained for The interruption of a term that would prevent
appointive officials. Sec. 14 of RA 9006 did the operation of the three-term rule involves
not repeal Sec. 66 of the Omnibus election “no less than the involuntary loss of title to
Code, leaving intact Sec. 66 thereof which office [or the right to hold on to an office]” or “at
imposes a limitation to appointive officials least an effective break from holding office.”
and considers them ipso facto resigned [Aldovino, Jr. v. COMELEC (2009)]
from office upon filing of their certificate of
candidacy. 2 Conditions for the Application of the
 Distinction is constitutional. (1) The Disqualification
classification justifying Sec. 14 of RA (1) Elected for three consecutive times for the
9006, i.e., elected officials vis-a- same position; and
vis appointive officials, is anchored upon (2) Fully served three consecutive terms [Borja
material and significant distinctions (e.g. v. COMELEC (1998)]
elective officials occupy their office by virtue
of the mandate of the electorate, appointive Prevailing doctrines on issues affecting
officials are prohibited from engaging in consecutiveness of terms and/or involuntary
partisan political activity except to vote). (2) interruption
All the persons belonging under the same [Abundo, Sr. v. COMELEC (2013)]
classification are similarly treated.
Therefore, the equal protection clause of (1) Assumption of Office by Operation of Law:
the Constitution is not infringed. [Fariñas v. When a permanent vacancy occurs in an
Executive Secretary (2003)] elective position pursuant to the rules of
succession under the LGC, supra:
B. LIMITATION OF CONSECUTIVE
TERMS (a) For the office assumed: The successor’s
[N]o such official shall serve for more than service for the unexpired portion of the
three consecutive terms. Voluntary term of the replaced official is not
renunciation of the office for any length of time treated as one full term and is not
shall not be considered as an interruption in counted in the application of any term
the continuity of his service for the full term for limit. [Borja v. COMELEC (1998)]
which he was elected. [CONST. art X, sec. 8]

B.1. WHAT CONSTITUTES A TERM OF (b) For the office held before succession:
The successor’s assumption by
OFFICE
operation of law to the higher office
The term limit for elective officials must be
(e.g. vice-mayor) is considered an
taken to refer to the right to be elected as well
involuntary severance or interruption of
as the right to serve in the same elective
the office he previously held (e.g.
position. Consequently, it is not enough that an
councilor). [i.e. it is not counted in the
individual has served three consecutive terms in
application of any term limit.]
an elective local office, he must also have been
[Montebon v. COMELEC (2008)]
elected to the same position for the same
number of times before the disqualification can
apply. [Borja v. COMELEC (1998)]

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(2) Recall Elections: An elective official, who finish. His full service should be counted
has served for three consecutive terms and in the application of the term limits
who did not seek the elective position for [Ong v. Alegre (2006) and Rivera III v.
what could be his fourth term, but later won COMELEC (2007)]
in a recall election, had an interruption in
the continuity of his service. For, he had (6) Effect of Winning in an Election Protest: The
become in the interim [i.e. from the end of period during which the winner of an
the 3rd term up to the recall election] a election protest is unable to assume office
private citizen. [Adormeo v. COMELEC as it was occupied by his opponent is
(2002); Socrates v. COMELEC (2002)] considered to be an involuntary interruption
in the service of his term and therefore bars
(3) Conversion: The abolition of an elective the application of the three-term limit rule.
local office due to the conversion of a [Abundo, Sr. v. COMELEC (2013)]
municipality to a city does not, by itself,
work to interrupt the incumbent official’s
continuity of service [Latasa v. COMELEC
(2003)]

(4) Preventive Suspension: 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 [Aldovino, Jr. v. COMELEC (2009)]

(5) Losing in an Election Protest:


(a) When a candidate is proclaimed a
winner for an elective office 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 v. COMELEC (1999) and
Dizon v. COMELEC (2009)]
(b)
(c) However, when an official loses 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
managed to serve the term from start to

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POLITICAL LAW
PUBLIC OFFICERS
AND ELECTION
LAW

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I. General Principles A.2. NOT PROPERTY


A public office is not property, in that it can
neither be appropriated nor owned by the
Public Office - the right, authority and duty, public officer, thus:
created and conferred by law, by which, for a His removal or suspension, if in accordance
given period either fixed by law or enduring at with law, is not a denial of due process
the pleasure of the creating power, an He has neither vested right over the office that
individual is invested with some portion of the he holds, nor over the expectancy of holding
sovereign functions of government, to be public office.
exercised by that individual for the benefit of The public office is a privilege entitled to the
the public. [Mechem, quoted in Fernandez v. protection of the law, e.g. security of tenure.
Sto. Tomas (1995)] The office is personal to him. Thus, the death
of a public officer terminates his right to
It is also a charge, station or employment occupy the contested office and extinguishes
conferred by appointment or election by a his counterclaim for damages.
government.
However, in some cases, a public office may be
Essence of a public office – delegation of some considered property in a limited sense:
of the sovereign functions of government. (1) In quo warranto proceedings to decide
which of two persons is entitled to a public
Purpose office.
To effect the end for the government’s (2) When the dispute concerns security of
institution, i.e. the common good, and not the tenure [Lumiqued v. Exevea (1997)]
profit, honor, or private interest of any person,
family or class of persons [63 Am Jur 2d 667] A.3. NOT A CONTRACT
The rights and benefits that result from the
A. NATURE OF A PUBLIC OFFICE holding of a public office arise because of the
law expressly or impliedly creating and
A.1. PUBLIC TRUST conferring it.
Sec. 1, Art XI, Const. Public office is a public Public Office Contract
trust. Public officers and employees must, at
all times, be accountable to the people, serve How Created
them with utmost responsibility, integrity, Incident of Originates from will of
loyalty, and efficiency; act with patriotism and sovereignty. contracting parties.
justice, and lead modest lives. Object

Powers delegated to the officers are held in To carry out sovereign Obligations imposed
trust for the people. As such they are held to as well as only upon the persons
the highest standards of accountability and governmental who entered into the
service, and to standards not generally functions contract.
demanded or required from ordinary citizens. Subject Matter
Embraces the idea of Limited duration and
tenure, duration, specific in its object.
continuity, and the Its terms define and

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duties connected limit the rights and elements of a public


therewith are obligations of the office
generally continuing parties, and neither Most important: Includes positions in
and permanent. may depart therefrom Involves the GOCCs that do not
without the consent of delegation to the perform sovereign
the other. individual of some of functions.
the sovereign
Scope
functions of
Duties that are Duties are very specific government, to be
generally continuing to the contract. exercised for the
and permanent. benefit of the public.
Where duties are defined
The law Contract D. CREATION, MODIFICATION AND
ABOLITION OF PUBLIC OFFICE
B. ELEMENTS OF A PUBLIC OFFICE
D.1. CREATION OF PUBLIC OFFICE
(a) Created by the Constitution, law, or agency
General Rule: Legislative in nature, through
with which the power to create was
statute or law.
delegated;
(b) Invested with an authority to exercise some
Exceptions:
portion of the sovereign power for public
(1) Offices created by the Constitution
interest;
(2) Offices created by a tribunal or body to
(c) Powers and functions defined by the
which the power to create has been validly
Constitution, law or legislative authority;
delegated.
(d) Duties are performed independently,
without control of a superior power other
If the delegation is invalid, so is the office
than law, unless they are those of a
created.
subordinate; and
(e) Continuing and permanent in nature.
Taken together, the above (statute or law,
Constitution, or delegated power) are the 3
Characteristics that are not material:
modes of creating public office.
(1) Continuity
(2) Permanence
(3) Compensation D.2. MODIFICATION AND ABOLITION OF
PUBLIC OFFICE
C. DISTINCTIONS General Rule: Legislative in nature, as the
power to create includes to power to modify or
abolish.
Public Office v. Public Employment
Public Office Public Employment
Exceptions:
Narrower; all public Broader: not all
(1) Where the Constitution prohibits such
officers are public public employees are
modification/abolition;
employees public officers
(2) Where the Constitution gives the people
Created by law Created by contract
the power to modify or abolish the office
Has all of the Does not
(i.e., recall)
aforementioned

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Estoppel in Denying Existence of Office branches public duties as an employee, agent


A person is estopped from denying that he has or subordinate official, of any rank or class,”
occupied a public office when he has acted as a For the purposes of criminal liability, there is
public officer– more so when he has received no distinction between public officer and
public monies by virtue of such office. public employee.
[Mendenilla v. Onandia (1962)]
E.1. WHO ARE PUBLIC OFFICERS
E. PUBLIC OFFICER (1) Ad Hoc officers [Laurel v. Desierto]
Public Officer - One who holds a public office (2) Officers promoting heritage [id.]
An officer, required by law to be elected or (3) Those performing governmental functions
appointed, who has a designation or title by without compensation [id.]
law, and who exercises functions concerning (4) Temporary performance of public functions
the public and assigned to him by law. [Maniego v. People]
(5) Money order-sorter and filer [People v.
Under the Administrative Code. Paloma]
An “Officer” refers to a person whose duties,
not being of a clerical or manual nature, E.2. WHO ARE NOT PUBLIC OFFICERS
involves the exercise of discretion in the (1) Special policemen salaried by a private
performance of the functions of the entity and patrolling only the premises of
government. such private entity [Manila Terminal Co. v.
CIR (1952)]
As distinguished from an employee, who is any (2) Concession forest guards [Martha Lumber
person in the service of the government. Mill v. Lagradante (1956)]
With reference to an authority to do a (3) Company cashier of a private corporation
particular act or perform a particular function, owned by the government [Tanchoco v.
any government employee with such authority GSIS (1962)]
is a public officer.[E.O. 292, Sec. 2 (14-15)]
F. CLASSIFICATION OF PUBLIC OFFICES
Cf. Sec 2 (a), RA 3019 AND PUBLIC OFFICERS
A “Public Officer” includes elective and Creation Constitutional
appointive officials and employees, whether Statutory
permanent or temporary, in the classified, Public Body Served National
unclassified or exempt service, who is receiving Local
compensation, even nominal, from the Department of Legislative
government. government to which their Executive
functions pertain Judicial
Cf. Art. 203, RPC
Nature of functions Civil
A public officer, as defined in Art. 203, is “any
Military
person who any person who, by direct provision
Exercise of Judgment or Discretionary
of the law, popular election or appointment by
Discretion Ministerial
competent authority, shall take part in the
Legality of Title to office De Jure
performance of public functions in the
De Facto
Government of the Philippine Islands, of shall
perform in said Government or in any of its Compensation Lucrative
Honorary

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II. Modes of Acquiring abandoned


when…
designated appointive
position is position is
Title to Public Office assumed? assumed?
NO Usually YES
A public office can only be obtained in the
manner prescribed by the constitution or law.
This gives us: A. WHO HAS THE POWER TO
(1) Election APPOINT
(2) Appointment The power to select public officers resides
(3) Others: primarily in the people. This is done directly in
(a) Succession by operation of law; election and indirectly through the placement
(b) Direct provision of law, e.g. ex-officio of such power in officials through the
officers Constitution or congressional enactment.

Election – selection or designation by popular In practice, generally, appointment is an


vote. Covered extensively under Election Law. executive function.
More specifically:
Appointment – the act of designation by the  The President can appoint certain officials
executive officer, board, or body to whom that (see Presidential appointments, infra.)
power has been delegated, of the individual  The Supreme Court has the power to
who is to exercise the powers and function of a appoint all offiicials and employees of the
given office. judiciary in accordance with the Civil
Service Law
Cf. Designation - imposition of additional  Constitutional Commissions shall appoint
duties upon an existing office. their officials and employees in accordance
(1) Revocable and temporary; does not give a with law.
security of tenure to the designee.
 Ombudsman appoints its own official and
(2) Does not entitle the designee to additional
employees, aside from the Deputies.
benefits or the right to claim the salary
attached to the position.
B. NATURE OF POWER TO APPOINT
Essentially a discretionary power and cannot
Designation Appointment be delegated; it must be performed by the
Definition Imposition of Appointing officer upon whom it is vested according to his
additional authority best lights, the only condition being that the
duties upon selects an appointee should possess the qualifications
existing office individual who required by law.
will occupy a If he does, then the appointment cannot be
certain public faulted on the ground that there are others
office better qualified who should have been
preferred [Luego v. CSC (1986)]
Extent of Limited Comprehensive
Powers
As a result:
Security of No Yes  Unless gravely abused, courts cannot
Tenure? review the exercise of discretion.
Is prior/1st office …a 2nd …a 2nd

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 Appointment cannot be the subject of


mandamus. There can be no appointment without an
 Appointment is generally considered a actual vacancy.
political question so long as the appointee
has the minimum qualifications prescribed C.2. UNDER THE CONSTITUTION
by law. I. PRESIDENTIAL APPOINTMENTS
 No limitations can be imposed on the Nepotism — President may not appoint his
appointing power by Congress, except spouse and relatives within the 4th civil degree
those requiring the concurrence of the of consanguinity or affinity as members of the
Commission on Appointments; and Concomms, Ombudsman, or as Secretaries,
resulting from the exercise of the limited Undersecretaries, Chairmen, or heads of
legislative power to prescribe the bureaus or offices
qualifications to a given appointive office.
[Manalang v. Quitoriano (1954)] Midnight appointments — the president shall
 If only one person can qualify for the posts not make appointments 2 months immediately
in question, the President is precluded before the next presidential elections, except
from exercising his discretion to choose temporary appointments to executive positions
whom to appoint. It is no power at all and when continued vacancies will prejudice public
goes against the very nature of service or endanger public safety.
appointment itself. [Flores v. Drilon (1993)]
 The CSC has no power to revoke the II. APPOINTMENTS IN THE JUDICIARY –
appointment on the sole ground that there INVOLVEMENT BY THE JBC
is another person more qualified, nor to The Members of the SC and judges of lower
order the appointment of a substitute. courts shall be appointed from a list of 3
 However, the CSC may revoke the nominees prepared by the Judicial and Bar
appointment on other grounds, such as the Council. For lower courts, the appointments
lack of qualifications of the supposed shall be made within 90 days from submission
appointee. of the list. For the Supreme Court, the
 The discretion includes not only the choice appointment shall be made 3 months from the
of the person who is to be appointed but vacancy.
also the nature and character of the
appointment intended (e.g. permanent or Constitutional Commission members shall be
temporary). appointed without re-appointment, if
appointed to fill a vacancy, only for the
C. RESTRICTIONS ON THE POWER TO unexpired term of the predecessor, and shall
not be appointed in a temporary or acting
APPOINT
capacity.

C.1. IN GENERAL An elective official cannot be appointed or


The appointee must possess the prescribed designated to any Government position during
qualifications. his term.

The power of appointment must be exercised An appointive official cannot hold any other
with disinterested skill and in a manner office or employment in the government, or
primarily for the benefit of the public. any agency, subdivision or instrumentality

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thereof, unless otherwise allowed by law or the E. EFFECTS OF A COMPLETE, FINAL


primary function of his position. AND IRREVOCABLE APPOINTMENT
C.3. UNDER SPECIAL LAWS
General Rule: An appointment, once made, is
Laws may provide qualifications and
irrevocable and not subject to reconsideration.
disqualifications for the public offices they
The appointing officer loses the power over
create
the office. No new appointment can be made
to that office until it is vacant.
In general, where an appointment must be
made with the recommendation of another
Exceptions:
officer, such recommendation is a condition
(1) Appointment is an absolute nullity [Mitra
sine qua non for appointment. [CSC v. San
v. Subido (1967)];
Juan]
(2) Appointee commits fraud [id.]
However, when the recommendation required
is that of another officer also under the control
E. ACCEPTANCE OF APPOINTMENT
of the appointing authority, such
recommendation is merely advisory. [Bermudez It is not necessary for the completion or validity
v. Torres] of the appointment, but it is necessary for the
possession of office.
D. WHEN APPOINTMENT DEEMED
Form of acceptance may be express, i.e.,
COMPLETE
verbally or in writing or implied, i.e. the
appointee exercises the duties and function of
If the appointment does not need confirmation, the office.
the appointment may be issued at once.
F. COMPULSION TO ACCEPT A
If the appointment is subject to confirmation or
assent of some other officer, the appointment
PUBLIC OFFICE
is only effective upon such assent or
confirmation. General Rule: a person cannot be compelled to
accept a public office.
Appointments to the Civil Service must be
submitted to the Commissioner of Civil Service Exceptions:
for approval. (1) When citizens are required, under
conditions provided by law, to render
However, the Commissioner has no authority personal military or civil service (see Sec. 4,
to reject the appointment if the appointee is Art. II, 1987 Const.);
qualified. The rule is merely to ensure eligibility (2) When a person who, having been elected
of the appointee. by popular election to a public office,
refuses without legal motive to be sworn in
or to discharge the duties of said office.
This is a felony punishable by arresto
mayor or a fine not exceeding P1,000.
[RPC, Art. 234]

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G. NECESSITY OF WRITTEN (8) Non-Career


APPOINTMENT
Majority view is that there should be some B. PRESIDENTIAL APPOINTMENTS
written memorial of the fact of appointment so B.1. WHO THE PRESIDENT MAY APPOINT
that the public may know when and in what [Art. VII, Sec. 16, Const]
manner the duty has to be performed, because (1) Heads of executive departments,
an appointment affects the public. In contrast, ambassadors, other public ministers and
the minority view states that no written consuls, officers of the armed forces form
appointment is necessary, as that is merely a the rank of colonel or naval captain, and
means for the appointee to prove his other officers whose appointments are
appointment, not a requirement. vested in him by the Constitution, with the
consent of the Commission on
H. REVOCATION OF APPOINTMENT Appointments.
General Rule: When the appointment is final
and complete, it is not subject to Only public officials appointed under this
reconsideration or revocation. The CSC cannot paragraph require confirmation by the
replace the appointee with someone solely Commission on Appointments. Congress
because he is more qualified. cannot require confirmation of the
appointments of other public officers.
Exception: Where an officer is removable at the
will of the appointing power. This includes those officers president has
been vested by the Constitution with the
authority to appoint, including Members of
III. Modes and Kinds of Constitutional Commissions
(2) All other officers whose appointments
Appointment are not otherwise provided by law, i.e.
those created by Congress but whose
A. CLASSIFICATION OF appointments were not provided for.
APPOINTMENTS (3) Those whom the President is authorized
by law to appoint
A.1. AS TO FINALITY (4) The Ombudsman and his deputies
(1) Absolute — no further consent necessary (5) Members of the SC
(2) Conditional – approval by some other (6) Judges of Lower Courts
officer is necessary (7) OICs in the ARMM, in accordance with
RA 10153 [Kida v. Senate]
(8) Other officers lower in rank whose
A.2. AS TO APPOINTING POWER
appointments the Congress by law vests
(1) Presidential
in the President alone
(2) Regular
(3) Ad interim
Note: Officers under numbers 2-4 may be
(4) Permanent
appointed even without CA approval.
(5) Temporary or Acting
(6) Civil Service (discussed under “The Civil
Service,” infra.
(7) Career

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disapproved appointee cannot be a


B.2. KINDS OF PRESIDENTIAL reappointed.
APPOINTMENTS
(1) Regular: Appointments made by the Cf. Bypassed Appointee.
President while Congress is in session after The Commission on Appointments’ failure to
the nomination is confirmed by the confirm an ad interim appointment is NOT
Commission of Appointments, which disapproval. An ad interim appointee
continue until the end of the term. disapproved by the COA cannot be
(2) Permanent: those which last until lawful reappointed. But a by-passed appointee, or one
termination whose appointment was not acted upon the
(3) Temporary: those which last until a merits by the COA, may be appointed again by
permanent appointment is issued. the President.
(4) Ad interim appointments.
B.4. DIFFERENCES BETWEEN
B.3. AD INTERIM APPOINTMENTS PERMANENT AND TEMPORARY
Ad interim appointments – appointments made APPOINTMENTS
while Congress is not in session, before Permanent appointments are those that last
confirmation by the Commission on until lawful termination. Security of tenure
Appointments; immediately effective and attaches to the appointment.
ceases to be valid if disapproved or bypassed by
the Commission on Appointments. This is a In contrast, temporary or acting appointments
permanent appointment and its being subject are those that last until a permanent
to confirmation does not alter its permanent appointment is made, or in the absence or
character. incapacity of the incumbent. There is no
security of tenure.
The Constitution itself makes an ad interim
appointment permanent in character by Permanent Acting
making it effective until disapproved by the Must be qualified Must be qualified if a
Commission on Appointments or until the next presidential
adjournment of Congress. [Matibay v. Benipayo appointment. See
(2002)] difference under
portion under “The
Ad interim appointments are interim, not Civil Service,” where
temporary or acting, and so members of even persons
Constitutional commissions may be appointed unqualified for a
on an ad interim basis. particular position
may fill a vacancy if
I. REQUIREMENT OF APPROVAL OF AD civil service eligible.
INTERIM APPOINTMENTS Security of tenure— No security of tenure—
Being a permanent appointment, COA may not be removed may be removed at
approval, where required, must still be unless for cause. the pleasure of the
obtained in the case of ad interim appointing authority.
appointments. If an ad interim appointment is Must be confimed by Cannot be confirmed
disapproved for lack of qualifications, the Commission on by the Commission on
Appointments Appointments,

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because confirmation duties of the office to which he is


presupposes a valid commissioned. It is written evidence of
nomination or ad appointment.
interim appointment.
Endures until lawful
termination.
IV. Eligibility and
Qualification
B.5. DURATION OF TEMPORARY
APPOINTMENTS Requirements
General Rule: At the pleasure of the appointing
authority. A. DEFINITIONS
Eligibility – the state or quality of being legally
Exception: Fixed-Period Temporary fitted or qualified to be chosen.
appointments, which may be revoked ONLY at
the period’s expiration. Revocation before Eligible – legally fit and qualified to hold an
expiration must be for a valid cause. office.

B.6. STEPS IN THE PRESIDENTIAL Qualification – endowment/act which a person


APPOINTING PROCESS must do before he can occupy a public office.
(1) Nomination—exclusive prerogative of the May be understood in two senses:
President on which no limitation may be (1) Endowment –refers to the qualities or
imposed by Congress, except the attributes which make an individual
requirement of concurrence by the eligible for public office. It must be
Commission on Appointments and the possessed at the time of appointment or
prescription of qualifications by Congress. election and continuously for as long as
(2) Confirmation—by Congress through the the official relationship continues
Commission on Appointments (2) Act –refers to the act of entering into the
Where necessary, no appointment until performance of the functions of the office.
confirmed.
If not necessary, the President cannot B. POWER TO PRESCRIBE
confer participation to the CA, nor can the
QUALIFICATIONS
CA create a power to confirm
(1) Constitution – When the qualifications are
appointments.
prescribed by the Constitution, they are
Confirmation need not be done at a
generally exclusive, except where the
regular session of Congress.
Constitution itself provides otherwise
It cannot be reconsidered after the
(2) Congress - In the absence of constitutional
President is notified of the confirmation
inhibition, Congress has the same right to
and has issued the commission
provide disqualifications that it has to
(3) Issuance of commission—not strictly a
provide qualifications for office. [De Leon,
requirement, but serves as evidence of the
23]
consummation of the exercise of the
appointing power.
(4) A commission is a written authority from a
competent source given to the officer as his
warrant for the exercise of the powers and

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B.1. RESTRICTION ON THE POWER OF C. WHEN QUALIFICATIONS MUST BE


CONGRESS TO PRESCRIBE POSSESSED:
QUALIFICATIONS (1) At the time specified by the Constitution or
(1) Congress cannot exceed its constitutional law.
powers; (2) If time is unspecified, there are two views:
(2) Congress cannot impose conditions of (a) Qualification during commencement of
eligibility istent with constitutional term or induction into office– if qualified
provisions; at the time of commencement of the
(3) The qualification must be germane to the term or induction into office,
position ("reinconsasonable relation" rule); disqualification of the candidate or
(4) Congress cannot add to eligibility appointee at the time of election or
requirements specified in the Constitution. appointment is immaterial
(5) Congress cannot prescribe qualifications (b) Qualification/eligibility during election or
so detailed to amount to making a appointment – conditions of eligibility
legislative appointment: it is must exist at the time of the election or
unconstitutional and therefore void for appointment, and that their existence
being a usurpation of executive power only at the time of the commencement of
B.2. EXAMPLES OF LEGISLATIVE the term of office or induction of the
APPOINTMENT candidate or appointee into office is not
(1) Extensions of the terms of office of the sufficient to qualify him to office.
incumbents;  How do we reconcile? – If the provision
(2) A proviso which limits the choices of the refers to “holding of office”, rather
appointing authority to only one eligible than to eligibility to office, in defining
[Flores v. Drilon (1993)] the qualifications, the courts are
(3) Designating an unqualified person. The inclined to hold that the qualifications
People's Court Act, which provided that the are to be determined at the time of the
President could designate Judges of First commencement of the term. [De Leon,
Instance, Judges-at-large of First Instance 26-27]
or Cadastral Judges to sit as substitute (3) Qualification is of a continuing nature, and
Justices of the Supreme Court in treason must exist throughout the holding of the
cases without them necessarily having to public office. Once the qualifications are
possess the required constitutional lost, the public officer forfeits the office.
qualifications of a regular Supreme Court No estoppel in ineligibility.Knowledge of
Justice; [Vargas v. Rilloraza (1948)] ineligibility of a candidate and failure to
(4) Automatic transfer to a new office. question such ineligibility before or during the
[Manalang v. Quitorano (1954)] election is not a bar to questioning such
(5) Requiring inclusion in a list. A provision eligibility after such ineligible candidate has
that impliedly prescribes inclusion in a list won and been proclaimed. Estoppel will not
submitted by the Executive Council of the apply in such a case. [Castaneda v. Yap (1952)]
Phil. Medical Association as one of the D. CONSTRUCTION OF
qualifications for appointment; and which REQUIREMENTS
confines the selection of the members of The right to public office should be strictly
the Board of Medical Examiners to the 12 construed against ineligibility and in favor of
persons included in the list; [Cuyegkeng v. eligibility. [De Leon, 26]
Cruz (1960)]

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QUALIFICATIONS PRESCRIBED BY THE CONSTITUTION


Chair Chair & Chairman
President Members Chairman and
Justices of the and members and Ombudsman and
and Vice- Senators of the members of
SC members of members deputies
President HOR COA
of CSC Comelec of CHR
Citizenship Natural-born Filipino
At least 40 At least 35 At least At least 40 At least 35 years old At least At least 40
on election on 25 on 40
Age
day election election
day day
Able to read and write At least 15 Proven With At no time all Majority Members of the Bar.
years capacity college of the same must be
a judge in the for degree profession, members For Ombudsman, 10
lower court, public but may be of the years as
or adminis- A either Bar Judge or
engaged in tration majority CPA with not Engaged in the practice
Educational
the practice of the less than 10 of law
attainment
of law members years auditing
should be experience, or
members Engaged in
of the the practice of
Philippine law for 10
Bar years.
Registered Registered Regis-tered Proven Was not a candidate for any elective Proven Probity and
voter in the
voter, and voter, district competence, position in the elections immediately Intelligence
a resident resident where he integrity, preceding appointment.
of the for not seeks to be probity, and Was not a candidate for
Other Requirements elected, and
Philippines less than 2 a resident independence any elective position in
for 10 years. therein for the elections
not less
years or than 1 year.
immediately preceding
more appointment.

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QUALIFICATIONS PRESCRIBED BY SPECIAL LAWS


Elective
Mayor or
officials
Sangguniang Punong
MTC, of
Panglungsod Barangay, Members of
Department METC, Provinces Member of Board of
CA justices RTC Judge other than Sangguniang Sangguniang
Secretaries MCTC and Election Inspectors
highly Bayan or Kabataan
judges highly
urbanized Pambarangay
urbanized
cities
cities,
Filipino (i.e. Natural-Born Filipino Filipino, not necessarily Natural-Born
does not
Citizenship need to be
natural-
born)
Not less At least 40 At least 35 At least At least At least 21 At least 18 on At least 15 No age requirement,
than 25 years old 30 23 years on election election day but not older but must be a
old on day than 21 on registered voter, so
Age election election day at least 18 on
day election day.

10 years’ 10 years’
experience experience
15 years’ in the in the
practice of practice of
experience
law or has law or has
as a judge in Able to read and
Educational held public held public Able to read and write Filipino or any other local
- a lower write English or a
Attainment office office language or dialect
court or in local dialect
requiring requiring
the practice admission admission
of law to the to the
practice of practice of
law law

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Good moral
character and
irreproachable
reputation
Registered voter
Proven
No pending
competence, Registered voter in the place where he wants to be
Other information for any
- integrity, - - elected, and resident thereof for at least 1 year before the
Requirements election offense.
probity and election.
Has never been
intelligence
convicted of any
election offense or
any offense
punishable by more
than 6 monhts

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D.1. PRACTICE OF LAW administering and maintaining the


Any activity, in or out of court, which requires qualification standards as an incentive to
the application of law, legal procedure, career advancement. [Sec. 7, Rule IV,
knowledge, training and experience. Generally, Omnibus Rules]
to practice law is to give notice or render any (c) Such establishment, administration, and
kind of service which requires the use in any maintenance shall be assisted and
degree of legal knowledge or skill. [Cayetano v. approved by the CSC and shall be in
Monsod (1991)] consultation with the Wage and Position
Classification Office [ibid.]
D.2. RESIDENCE REQUIREMENT (d) It shall be established for all positions in the
“Residency” in election law, refers to domicile, 1st and 2nd levels [Sec. 1, Rule IV, Omnibus
i.e. the place where a party actually or Rules]
constructively has his permanent home, where
he intends to return. To effect a change of F. POLITICAL QUALIFICATIONS FOR
domicile, the candidate must prove an actual AN OFFICE
removal or an actual change of domicile.
[Aquino v COMELEC (1995)] General Rule: No political qualifications shall be
required for public office.
There is a presumption in favor of domicile of
origin. Domicile requires the twin elements of Exceptions:
actual habitual residence and animus manendi (1) Membership in the electoral tribunals of
(intent to permanently remain). Domicile of either the House of Representatives or
origin is not easily lost; it is deemed to continue Senate [Art. VI, Sec. 17, 1987 Const.];
absent a clear and positive proof of a successful (2) Party-list representation;
change of domicile. [Marcos v. COMELEC] (3) Commission on Appointments;
(4) Vacancies in the Sanggunian [Sec. 45, Local
D.3. RELIGIOUS TESTS NOT ALLOWED Government Code]
No religious test shall be required for the
exercise of civil or political rights [Art. III, Sec. 5, F.1. NO PROPERTY QUALIFICATIONS
Consti]
ALLOWED
Since sovereignty resides in the people, it is
E. QUALIFICATION STANDARDS AND necessarily implied that the right to vote and to
REQUIREMENTS UNDER THE CIVIL be voted should not be dependent upon a
SERVICE LAW candidate’s wealth. Poor people should also be
allowed to be elected to public office because
(a) It enumerates the minimum requirements social justice presupposes equal opportunity for
for a class of positions in terms of both rich and poor. [Maguera v. Borra (1965) and
education, training and experience, civil Aurea v. COMELEC (1965)]
service eligibility, physical fitness, and other
qualities required for successful F.2. CITIZENSHIP REQUIREMENTS
performance. [Sec. 22, Book V, (1) Aliens are not eligible for public office.
Administrative Code] (2) The purpose of the citizenship requirement
(b) The Departments and Agencies are is to ensure that no alien, i.e., no person
responsible for continuously establishing, owing allegiance to another nation, shall

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govern our people and country or a unit of II. CAUSES OF VACANCY—SEE


territory thereof. [Frivaldo v. COMELEC TERMINATION, ETC.
(1996)] (1) Death, Permanent disability, Removal from
office, Resignation
G. EFFECT OF REMOVAL OF (2) Abandonment, expiration of term,
QUALIFICATIONS DURING THE TERM conviction of a crime, impeachment
Termination from office conviction, acceptance of incompatible
Cf. Effect of Pardon upon the Disqualification to office, creation of a new office, reaching age
Hold Public Office limit, and recall

General Rule: Pardon will not restore the right III. ANTICIPATED VACANCIES
to hold public office. [Art. 36, Revised Penal General Rule: An appointing power can fill an
Code] anticipated vacancy when the law does not
forbid it.
Exceptions
(1) When the pardon’s terms expressly restores Exception: However, such an appointment
such right [Art. 36, RPC]; cannot take effect after the power to appoint
(2) When the reason for granting pardon is itself expires.
non-commission of the imputed crime.
[Garcia v. Chairman, COA (1993)] H. QUALIFYING TO OFFICE

G.1. VACANCY  Officers are required by law to do some act by


There is a vacancy when an office is empty and which he signifies his acceptance of the office.
without a legally qualified incumbent appointed Generally, it takes the form of an official oath.
or elected to it. Some offices also require the posting of a
bond.
There can be no appointment without a vacancy.  Under BP 881, the office of any elected official
who fails or refuses to take his oath of office
Physical vacancy is not essential; if a de facto within six months from his proclamation shall
officer, usurper or holdover officer occupies an be considered vacant unless said failure is for
office, the office is still vacant and a permanent cause or causes beyond his control.
appointment can be made.
 An oath of office is a qualifying requirement
for a public office. Only when the public
I. CLASSIFICATIONS OF VACANCY officer has satisfied this prerequisite can his
(1) Ordinary — office is crated and no one right to enter into the position be considered
has been appointed to it. plenary and complete. Until then, he has
(2) Constructive — when incumbent has no none at all, and for as long as he has not
legal right or claim to continue in office qualified, the holdover officer is the rightful
and can be legally replaced by another occupant. [Lecaroz v. Sandiganbayan (1999)]
functionary
(3) Accidental — when the incumbent dies,
H.1. FAILURE TO QUALIFY
resigns or is removed
General Rule: Deemed a refusal of office. The
(4) Absolute —term of an incumbent
person appointed will be considered a de facto
expires, and he is not held over.
officer

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Exceptions:
(1) If the qualification is supplied later
V. Disabilities and
(2) When the delay in qualification is
justified, eg. Sickness, fortuitous events.
Inhibitions of Public
Officers
H.2. OATH OF OFFICE
Outward pledge where one formally calls upon
A. DISQUALIFICATION TO HOLD
God to witness the truth of what he says or to
the fact that he sincerely intends to do what he PUBLIC OFFICE IN GENERAL
says. Individuals who lack ANY of the qualifications
prescribed by the Constitution or by law for a
i. BEFORE WHOM OATH MUST BE MADE public office are ineligible (i.e. disqualified from
(1) In general, any officer in the service of the holding such office).
government of the Philippines whose
appointment is vested in the president, B. AUTHORITY TO PRESCRIBE
including QUALIFICATIONS
(2) Notaries, members of the judiciary, Generally, the legislature has the right to
secretaries of congress, secretaries of prescribe disqualifications in the same manner
departments, bureau directors, registrars of that it can prescribe qualifications, PROVIDED
deeds, provincial governors, lieutenant that the prescribed disqualifications do not
governors, city mayors, and other officers violate the Constitution.
whose duties require presentation to him of
any statement under oath. C. GENERAL CONSTITUTIONAL
However, only notaries, municipal judges and DISQUALIFICATIONS
clerks of court are not obliged to administer (1) Losing candidates cannot be appointed to
oaths unless in matters of official business. any governmental office within one year
after such election. [Art. IX-B Sec. 6]
H.3. GIVING OF BONDS (2) Elective officials during their tenure are
Accountable public officials or those to whom ineligible for appointment or designation in
are entrusted the collection and custody of ANY capacity to ANY public office or
public money, and public ministerial offices position [Art. IX-B Sec. 7(1)] unless they
whose actions may affect the rights and forfeit their seat
interests of individuals are usually required to
give bonds. General Rule: Appointive officials shall not hold
any other governmental position, UNLESS
i. NATURE OF BONDS otherwise allowed by law or his position’s
 In the nature of an indemnity bond primary functions [Art. IX-B Sec 7 (2)]
 In effect, a contract between the officer and
the government, binding the officer to Exception: ex-officio positions, which are
discharge the duties of his office positions held as provided by law and required
 Binds sureties to make good the officer’s by the primary functions of the office.
default for the benefit of the public interest.
 However, merely collateral security for the Exception to the Exception: However, the
performance of the duties. President, VP, the members of the Cabinet and
their deputies or assistants are subject to the

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stricter disqualification that they cannot hold


ANY other office or employment, even ex-officio
ones.

Exception to THAT: where such holding of two


positions is provided in the Constitution, e.g. the
President is the head of NEDA. [CLU v Exec. Sec.]

D. SPECIFIC CONSTITUTIONAL DISQUALIFICATIONS


Public Officer Disqualifications

The President, Vice President, the Members of the Shall not hold any other office or employment
Cabinet and their deputies or assistants during their tenure, UNLESS otherwise provided in
the Constitution, [Art. VII, Sec. 13]
Senator or Member of the House of May not hold during his term any other office or
Representatives employment in the Government, or any
subdivision, agency or instrumentality thereof,
including government -owned or -controlled
corporations or their subsidiaries
If he does, he forfeits his seat
Shall also not be appointed to any office when
such was created or its emoluments were
increased during his term. [Art. VI, Sec 13]
Members of the Supreme Court and other courts Shall not be designated to any agency performing
established by law quasi-judicial or administrative functions. [Art. VIII,
Sec. 12]
Members of the Constitutional Commission Shall not hold any other office or employment
[during their tenure]. [Art. IX-A, Sec. 2]
Members of Constitutional Commissions, the No other office or employment during their tenure.
Ombudsman and his Deputies [Art. XI, Sec. 8]
The President’s spouse and relatives by Shall not be appointed during President’s tenure
consanguinity or affinity within the fourth civil as Members of the Constitutional Commissions, or
degree the Office of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of bureaus or
offices, including government-owned-or -
controlled corporations. [Art. VIII, Sec. 13]

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E. OTHER DISQUALIFICATIONS practice of his or her profession


(1) Mental or physical incapacity under the following conditions:
(2) Misconduct or crime: persons convicted first, the private practice is
of crimes involving moral turpitude are authorized by the Constitution or by
disqualified from holding public office. the law; and
(3) Impeachment—an official removed after second, the practice will not conflict,
impeachment cannot thereafter hold or tend to conflict, with his or her
public office.. official functions.
(4) Removal or suspension from office: not (9) Relationship with the appointing
presumed  non-imposable when such power/Nepotism
ineligibility is not constitutionally or
statutorily declared. General Rule: The Civil Service Decree (PD 807)
(5) Previous tenure of office: for example, prohibits all appointments in the national and
an appointed Ombudsman is absolutely local governments or any branch or
disqualified for reappointment [Article instrumentality thereof made in favor of
XI, Constitution] relatives within the third degree of
(6) Consecutive terms limit: consanguinity or affinity of:
(a) Vice-President = 2 consecutive terms (1) appointing authority;
(b) Senator = 2 consecutive terms (2) recommending authority;
(c) Representative = 3 consecutive terms (3) chief of the bureau office; or
(d) Elective local officials = 3 consecutive (4) person exercising immediate
terms [Sec. 8, Art. X, Constitution] supervision over the appointee
See Term Limits, infra. In the last two cases, it is immaterial who the
(7) Holding more than one office, supra. appointing or recommending authority is. To
(8) Holding of office in the private sector: constitute a violation of the law, it suffices that
(a) Section 7 (b)(1)of RA 6713 makes it an appointment is extended or issued in favor of
unlawful for public officials and a relative of the chief of the bureau or office, or
employees to own, control, manage, the person exercising immediate supervision
or accept employment as officer, over the appointee [CSC v. Dacoycoy (1999)]
employee, consultant, counsel,
broker, agent, trustee or nominee in Exceptions to rule on nepotism:
any private enterprise regulated, (a) persons employed in a confidential capacity
supervised or licensed by their office (b) teachers
during their incumbency unless (c) physicians
expressly allowed by law. (d) members of the Armed Forces of the
(b) Section 7 of RA 6713 also generally Philippines
provides for the prohibited acts and (e) those who were already appointed to the
transactions of public officials and same office, but later got married.
employees. Subsection (b)(2)
prohibits them from engaging in the (10) Under the Local Government Code, the ff.
private practice of their profession cannot be local government officials [Sec.
during their incumbency. As an 40]:
exception, a public official or (a) Sentenced by final judgment for an
employee can engage in the offense involving moral turpitude or for
an offense punishable by 1 year or more

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of imprisonment, within 2 years after When doubts arise, express grants of power are
serving sentence; subject to strict interpretation, and as
(b) Removed from office as a result of an conferring only those powers which are
administrative case; expressly granted or necessarily implied.
(c) Convicted by final judgment for
violating the oath of allegiance to the C. SCOPE OF POWER OF A PUBLIC
Republic; OFFICER
(d) Those holding dual allegiance The power of a public officer includes those:
 Note that dual citizenship in itself is not (1) Expressly conferred upon him by the act
a disqualification. See discussions under appointing him
Citizenship. (2) Expressly annexed to the office by law
(e) Fugitive from justice in criminal or non- and
political cases here or abroad; (3) Attached to the office by common law
(f) Permanent residents in a foreign as incidents to it
country or those who have acquired the
right to reside abroad and continue to Doctrine of necessary implication – all powers
avail of the same right after the necessary for the effective exercise of the
effectivity of the Local Government express powers are deemed impliedly granted
Code;
(g) The Insane or feeble-minded.
D. LIMITATIONS OF THE POWERS OF
A PUBLIC OFFICER
VI. Powers and Duties of Authority can be exercised only during the term
when the public officer is, by law, invested with
Public Officers the rights and duties of the office
May only be exercised in the territory where the
A. SOURCE OF POWER OF PUBLIC authority is effective.
OFFICERS
Sovereignty resides in the people, and is then E. CLASSIFICATION OF POWERS AND
delegated to public officers. DUTIES
(1) As to Nature
B. AUTHORITY OF PUBLIC OFFICERS (a) Ministerial — duty is absolute, certain
The granting of authority is not presumed. In and imperative involving merely
the absence of a valid grant, they are devoid of execution of a specific duty arising from
power. fixed and designated facts. Where the
officer or official body has no judicial
The public is presumed to have knowledge of a power or discretion as to the
public official’s authority, and are given the interpretation of the law, and the course
responsibility to ascertain the scope of his to be pursued is fixed by law, their acts
authority. As a result, there is no such thing as are ministerial only.
apparent authority of a public officer. (b) Discretionary — duty necessarily
requires the exercise of reason in the
However, a citizen has the right to presume that adaptation of means to an end, and
a public officer knows his duties and performs discretion in determining how or
the same in accordance with law. whether the act shall be done or the

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course pursued. Discretion arises when E.1. DISTINCTION BETWEEN MINISTERIAL


the act may be performed in one or two AND DISCRETIONARY POWERS
or more ways, either of which would be The key distinction between ministerial and
lawful, but where the choice as to which discretionary power is the exercise of discretion.
one to perform is left to the will or Thus,
judgment of the officer. Ministerial Discretionary
(2) As to the Obligation of the Officer to No discretion required. Discretion required.
Perform his Powers and Duties Performance may be Only action may be
(a) Mandatory – powers conferred on public compelled by compelled, but not
officers are generally construed as mandamus performance of a
mandatory although the language may specific act
be permissive, where they are for the May be delegated May not be delegated
benefit of the public or individuals
(b) Permissive – statutory provisions define Discretion – act or liberty to decide according to
the time and mode in which public the principles of justice and one’s ideas of what
officers will discharge their duties, and is right and proper under the circumstances,
those which are obviously designed without willfulness or favor. The officer
merely to secure order, uniformity, concerned acts according to the dictates of their
system and dispatch in public business own judgment and conscience, uncontrolled by
are generally deemed directory. If the the judgment and conscience of others.
act does not affect third persons and is
not clearly beneficial to the public, E.2. TIME OF PERFORMANCE OF DUTIES
permissive words will not be construed Generally, within the time stated in the statute.
as mandatory. If not stated, within a reasonable time. It must
(3) As to the Relationship of the Officer to his be noted, however, that unless the statue
subordinates prohibits the performance of an act other than
(a) Power of Control – power of an officer to at the times stated, the provision of a time of
manage, direct or govern what a performance is merely directory.
subordinate had done in the
performance of duties, including the
E.3. RATIFICATION
power to alter or modify or set aside
Where an act is exercised defectively, it can be
what the subordinate had done in the
ratified, as it is voidable. However, if the officer
performance of his duties and to
had no authority, the act is void and cannot be
substitute his judgment for that of the
ratified
latter.
(b) Power of Supervision – the power of
E.4. NORMS OF CONDUCT UNDER THE
mere oversight over an inferior body
which does not include any restraining CIVIL SERVICE LAW
authority over such body. A supervising (1) Commitment to public interest
officer merely sees to it that the rules (2) Professionalism
are followed, but he himself does not (3) Justness and sincerity
lay down such rules, nor does he have (4) Political neutrality
the discretion to modify or replace (5) Responsiveness tot eh public
them. (6) Nationalism and patriotism
(7) Commitment to democracy

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(8) Simple living spouses and of unmarried children under


18 years of age living in their household.
Note, however, that failure to comply with these  Must be filed within:
norms is not a ground for dismissal, but only for (1) 30 days of assumption of office,
disciplinary measures. (2) On or before April 30 of every year,
(3) Within 30 days after separation from
F. GENERAL DUTIES OF PUBLIC service.
OFFICERS
(1) To be accountable to the people, to serve (3) To owe the State and the Constitution
them with utmost responsibility, integrity, allegiance at all times [Sec. 18, Art XI]
loyalty and efficiency [Sec. 1, Art XI]
(a) To obey the law G. SPECIFIC DUTIES OF PUBLIC
(b) To accept and continue in office OFFICIALS AND EMPLOYEES
(c) To accept the burden of office (1) Act promptly on letters and requests
(d) Use reasonable skill and diligence in the (a) Must be within 15 working days
performance of his official duties, (b) When the request can be disposed of
particularly where rights of individuals promptly, it must be done immediately.
may be jeopardized by his neglect. (c) Reply must contain the action taken on
(e) Use public funds and property with the the request.
diligence of a good father of a family. (2) Submit annual performance reports within
(f) Make the best available appointment, if 45 working days from the end of the year, to
in a position to appoint. be submitted to the CSC.
(g) Ethical duties (3) Process documents and papers
(i) Refrain from outside activities which expeditiously
interfere with the proper discharge (a) Must be processed and completed
of their duties. within a reasonable time from
(ii) Not to place himself in a position preparation
which will subject him to conflicting (b) Must not contain more than 3
duties or expose him to the signatories.
temptation of acting in any manner (c) In the absence of an authorized
other than in the best interests of signature, the official next in rank shall
the public. sign in his stead.
(iii) To act with civility. (4) Act immediately on personal transactions
(2) Duty to make public disclosure of (5) Make documents accessible to the public.
statements of assets and liabilities [Sec. 17,
Art. XI]
 Public officials and employees have an
obligation under the Code of Conduct and
Ethical Standards for Public Officials and
Employees to accomplish and submit
declarations under oath of, and the public
has the right to know, their assets,
liabilities, net worth and financial and
business interests including those of their

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VII. Rights of Public that are embraced within the


constitutional rights of others, when such
Officers activities are reasonably deemed
inconsistent with their public status and
duties.
A. RIGHTS INCIDENT TO PUBLIC
OFFICE (3) Right to salary
The rights of one elected or appointed to office Salary – personal compensation to be paid
are, in general, measured by the Constitution or to the public officer for his services, and it is
the law under which he was elected or generally a fixed annual or periodical
appointed. payment depending on the time and not on
the amount of the services he may render
Right to office – The just and legal claim to  Distinguished from wages in that salary is
exercise the powers and the responsibilities of given to officers of higher degree of
the public office employment than those to whom wages
are given.
Term Tenure  The power to fix the compensation of
public officers is not inherently and
Period during which Period during which
exclusively legislative in character.
the officer may claim to the officer actually
hold the office as of holds office  Unless the Constitution expressly or
right impliedly prohibits Congress from doing
so, it may delegate the power to other
government bodies or officers.
A.1. RIGHTS AS A CITIZEN
 The salary of a public officer may not, by
(1) Protection from publication commenting on
garnishment, attachment or order of
his fitness and the like
execution, be seized before being paid to
 The mere fact that one occupies a public him and, appropriated for the payment of
office does not deprive him of the his debts.
protection accorded to citizens by the
 The rationale behind this doctrine is
Constitution and the laws.
obvious consideration of public policy.
 However, by reason of the public The functions and public services
character of his employment or office, a rendered by the State cannot be allowed
public officer is, in general, held not to be paralyzed or disrupted by the
entitled to the same protection from diversion of public funds from their
publications commenting on his fitness legitimate and specific objects, as
and the like, as is accorded to the ordinary appropriated by law. [De la Victoria v.
citizen. Burgos, (1995)]
(2) Engaging in certain political and business
activities
i. BASIS OF RIGHT TO COMPENSATION
 The governmental interest in maintaining The relation between an officer and the public is
a high level service by assuring the not the creation of contract, nor is the office
efficiency of its employees in the
itself a contract. Hence, his right to
performance of their tasks may require compensation is not the creation of contract. It
public employees to suspend or refrain exists as the creation of law and belongs to him
from certain political or business activities

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not by force of any contract but because the law Right to Retirement Pay – given to government
attaches it to the office. employees to reward them for giving giving the
best years of their lives in the service of their
The right to compensation grows out of the country. Retirement laws are liberally construed
services rendered. After services have been in favor of the retiree [Profeta v. Drilon (1992)]. It
rendered, the compensation thus earned cannot may not be withheld and applied to his
be taken away by a subsequent law indebtedness to the government [Tantuico v.
. Domingo (1994)]
As a general proposition, a public official is not
entitled to any compensation if he has not B. OTHER RIGHTS
rendered any service. [Acosta v. CA, (2000)]
B.1. RIGHTS UNDER THE CONSTITUTION
Right of a de facto officer to salary –where there
is no de jure officer, a de facto officer who, in (1) Right to self-organization
good faith, has possession of the office and has  The right to self-organization shall not be
discharged the duties thereof, is entitled to denied to government employees. [Sec.
salary 2(5), Art. IX-B, Constitution]. Government
employees in the civil service are granted
Right to Back Salaries –back salaries are the right to form unions enjoyed by
payable to an officer illegally dismissed or workers in the private sector.
otherwise unjustly deprived of his office, the
 However, the constitutional grant to
right to recover accruing from the date of
government workers of the right to form
deprivation. The claim for back salaries must be
labor organizations or unions does not
coupled with a claim for reinstatement and
guarantee them the right to bargain
subject to the prescriptive period of 1 year.
collectively with the government or to
engage in concerted activities including
To fall under this exception, 2 conditions must
the right to strike, which are enjoyed by
be complied with:
private employees. They are prohibited
(1) the employee must be found innocent of the
from staging strikes, demonstrations,
charges
mass leaves, walk-outs and other forms of
(2) his suspension must be unjustified.
mass actions which will result in
temporary stoppage or disruption of
Right to Vacation Leave and Sick Leave with Pay
public services.
– under Sec. 81 of the LGC, elective local
(2) Right to protection of temporary employees
officials shall be entitled to the same leave
 Employees in the government given
privilieges as those enjoyed by appointive local
temporary appointments do not enjoy
officials, including the accumulation and
security of tenure. They shall be given
commutation thereof. Government officers and
such protection as may be established by
employees are entitled to commutation of all
law to prevent indiscriminate dismissals
leave credits without limitation and regardless
and to see to it that their separation or
of the period when the credits were earned
replacement is made only for justifiable
provided the claimant was in the service as of
reasons
Jan. 9, 1985 [Presidential Memo Circular No. 54]
(3) Freedom of members of Congress from
arrest and from being questioned

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 A Senator or Member of the House of power are bona fide for the best interest of the
Representatives shall, in all offenses public service and the person chosen has the
punishable by not more than six years needed qualifications.
imprisonment, be privileged from arrest
while Congress is in session. No member ii. PERSONNEL ACTIONS
shall be questioned nor be held liable in Any action denoting the movement or progress
any other place for any speech or debate of personnel in the civil service is known as
in the Congress or in any committee personnel action. It includes:
thereof. [Sec. 11, Art. VI, Constitution] (1) appointment through certification
(4) Right not to be removed or suspended (2) promotion
except for cause provided by law (3) transfer
 Implicit in the constitutional prohibition (4) reinstatement
against removal or suspension except for (5) reemployment
cause, is the existence of a charge, due (6) detail
hearing, and the finding of guilt by the (7) reassignment
proper authority. (8) demotion and
(9) separation
B.2. RIGHTS UNDER THE CIVIL SERVICE
DECREE AND THE NEW ADMINISTRATIVE  To hold that the Civil Service Law requires
CODE filling up any vacancy by promotion, transfer,
(1) Right to preference in promotion reinstatement, reemployment, or certification
(2) Right to present complaints and grievances IN THAT ORDER would be tantamount to
(3) Right not to be suspended or dismissed legislative appointment which is repugnant to
except for cause as provided by law and the Constitution. What it does purport to say
after due process is that as far as practicable the person next in
(4) Right to organize rank should be promoted, otherwise the
vacancy may be filled by transfer,
i. NEXT-IN-RANK RULE reinstatement, reemployment or certification,
This rule specifically applies only in cases of as the appointing power sees fit, provided the
promotion. It neither grants a vested right to the appointee is certified to be qualified and
holder nor imposes a ministerial duty on the eligible. [Pineda v. Claudio (1969)]
appointing authority to promote such person to
the next higher position. B.3. RIGHTS UNDER THE REVISED
GOVERNMENT SERVICE INSURANCE ACT
One who is “next-in-rank” to a vacancy is given Covered employees are entitled to retirement
preferential consideration for promotion to a benefits, separation benefits, unemployment or
vacant position, but it does not necessarily involuntary separation benefits, disability
follow that he alone and no one else can be benefits, survivorship benefits, funeral benefits
appointed. and life insurance benefits.

Reason for the rule: The preference given i. RIGHT TO REIMBURSEMENT AND
assumes that employees working in an office for INDEMNITY
longer period have gained not only superior  When a public officer, in the due performance
skills but also greater dedication to the public of his duties, has been expressly or impliedly
service provided that the acts of the appointing

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required by law to incur expenses on the Where such are indispensable in the proper
public account, not covered by his salary or conduct of the office, the officer may not take
commission and not attributable to his own them as his own property.
neglect or default, the reasonable and proper
amount thereof forms a legitimate charge If, not being required by law, they are prepared
against the public for which he should be by the officer apart from his official duties and
reimbursed. are not indispensable in the proper conduct of
 Within the same limits, the officer is entitled the office, the officer may acquire a property
to be indemnified by the public against the right therein.
consequences of acts which he has been
expressly or impliedly required to perform
upon the public account, and which are not
VIII. Liabilities of Public
manifestly illegal and which he does not know
to be wrong.
Officers
The liability of a public officer to an individual or
the public is based upon and is co-extensive
ii. RIGHT TO REINSTATEMENT AND BACK
with his duty to the individual or the public. [De
SALARY Leon, 2008]
Reinstatement – the restoration to a state or
condition from which one had been removed or
A. GENERAL RULE ON LIABILITY
separated. One who is reinstated assumes the
A public officer is not liable for the injuries
position he had occupied prior to the dismissal
sustained by another as a consequence of
Back salary or wages is a form of relief that
official acts done within the scope of his
restores the income that was lost by reason of
authority, except as otherwise provided by law.
unlawful dismissal
[Nachura, 2009]
 For a plaintiff to succeed in seeking
A public officer shall not be civilly liable for acts
reinstatement to an office, he must prove his
done in the performance of his official duties,
right to the office. Unless this right is shown,
unless there is a clear showing of bad faith,
the action must fail even if the appointment of
malice or negligence. [Sec. 38(1), Administrative
the successor is first in issue.
Code]

iii. RIGHTS TO PROPERTY, DEVICES AND No subordinate officer or employee shall be


INVENTIONS civilly liable for acts done by him in good faith in
Title to a public office carries with it the right, the performance of his duties. However, he shall
during the incumbency of the officer, to the be liable for wilful or negligent acts done by him
insignia and property thereof. which are contrary to law, morals, public policy
and good customs even if he acted under orders
The question whether records, discoveries, or instructions of his superiors.
inventions, devices, data and the like, made or
prepared by an officer while he is occupying the Under Sec. 24, LGC, local governments and
office, belong to the public, must be determined their officials are not exempt from liability for
with reference to the facts of each case. death or injury to persons or damage to
property.

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B. STATUTORY LIABILITY Crimes peculiar to certain public officers:


(1) Revised Penal Code
B.1. UNDER THE CIVIL CODE (2) Anti-Graft and Corrupt Practices Act
(1) Article 27— Any person may file for damages (3) Code of Conduct and Ethical Standards
arising from the refusal or negligence of a (4) Forfeiture of Unexplained Wealth Act
public servant or employee to perform his (5) Civil Service Decree
official duty without just cause, without (6) Government Auditing Code
prejudice to any disciplinary administrative (7) Local Government Code
action (8) National Internal Revenue Code
(2) Article 32— Public officer or employee may (9) Omnibus Election Code
be liable for damages when they, directly or
indirectly obstructs, defeats, violates or in Article 34 of the Civil Code
any manner impedes or impairs A member of a city or municipal police force
constitutional rights. refuses or fails to render aid or protection in
 An entirely separate and distinct civil case of danger to life or property:
action for damages, or for other relief
Primary Liability for damages: Peace officer
 This civil case may be proved by
preponderance of evidence
Subsidiary Liability: The city or municipality
 Moral and exemplary damages may be
awarded
The civil action herein recognized shall be
 However, the responsibility in this
independent of any criminal proceedings, and a
provision is not demandable from a judge
preponderance of evidence shall suffice to
unless his act is punishable under the
support such action
Penal Code and other penal statutes
 A criminal action may also be filed if the Article 38(2) of the Administrative Code
defendant’s act or omission constitute a
 Liability for damages by any public officer who
criminal offense
neglects to perform a duty without just cause
 Under this provision, it is not necessary within:
that the public officer acted with malice or
 A period fixed by law or regulation, or
bad faith. To be liable, it is enough that
 Within a reasonable period if none is fixed
there was a violation of the constitutional
 This action is without prejudice to such other
rights of the aggrieved party, even on the
liability as may be prescribed by law.
pretext of justifiable motives or good faith
in the performance of one’s duties. Good
Liability on Contracts – the public officer shall
faith is not a defense.
be personally liable on contracts he enters into
if he acted without, or exceeded his authority
B.2. CRIMINAL LIABILITY
[De Leon, 2008]
Liability on Tort – The public officer shall be
The mere fact that an officer is acting in an
personally liable if he goes beyond the scope of
official capacity will not relieve him from
his authority, or exceeds the powers conferred
criminal liability.
upon him by law.

Presidential Immunity from Suit –The privilege is


enjoyed only during the tenure of the President.

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I. NON-APPLICABILITY OF THE DOCTRINE


B.3. THREE-FOLD RESPONSIBILITY OF OF COMMAND RESPONSIBILITY AND THE
PUBLIC OFFICERS PRINCIPLE OF RESPONDEAT SUPERIOR
A public officer is under a three-fold TO PUBLIC OFFICERS
responsibility for violation of duty or for Neither the principle of command responsibility
wrongful act or omission: (in military or political structural dynamics) nor
(1) Civil Liability: if the individual is damaged by the doctrine of respondeat superior (in quasi
such violation, the official shall, in some delicts) applies in the law of public officers. The
cases, be held liable civilly to reimburse the negligence of the subordinate cannot be
injured party. ascribed to his superior in the absence of
(2) Criminal Liability: if the law has attached a evidence of the latter’s own negligence [Reyes v.
penal sanction, the officer may be punished Rural Bank of San Miguel (2004)]
criminally
(3) Administrative Liability: such violation may Exception: The President, being the
also lead to imposition of fine, reprimand, commander-in-chief of all armed forces,
suspension or removal from office. This necessarily possesses control over the military
administrative liability is separate and that qualifies him as a superior within the
distinct from the penal and civil liabilities. purview of the command responsibility doctrine
[Agpalo, 2005] [In the Matter of the Petition for Writ of Amparo
and Habeas Data in favor of Noriel H. Rodriguez;
C. LIABILITY OF MINISTERIAL Rodriguez v. Macapagal-Arroyo (2011)]
OFFICERS
(1) Nonfeasance – Neglect or refusal to perform C.2. PREVENTIVE SUSPENSION AND
an act which is the officer’s legal obligation BACK SALARIES
to perform Preventive Suspension - a disciplinary measure
(2) Misfeasance – Failure to use that degree of which is intended to enable the disciplinary
care, skill, and diligence required in the authority to investigate charges against the
performance of official duty respondent by preventing the latter from using
(3) Malfeasance – The doing, through his position or office to influence witnesses, to
ignorance, inattention or malice, of an act intimidate them, or to tamper with the records
which he had no legal right to perform which may be vital in the prosecution of the
case against him.
C.1. COMMAND RESPONSIBILITY
A head of a department or a superior officer i. KINDS OF PREVENTIVE SUSPENSION
shall not be civilly liable for the wrongful acts, (1) Preventive suspension pending
omissions of duty, negligence or misfeasance of investigation
his subordinates, unless he has actually  The proper disciplining authority may
authorized by written order the specific act or preventively suspend any subordinate
misconduct complained of [Sec. 38(3), officer under his authority pending an
Administrative Code] investigation, if the charge against such
officer involves dishonesty, oppression or
grave misconduct or neglect in the
performance of duty or if there are
reasons to believe that the respondent is

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guilty of the charges which would warrant (c) When – pending an investigation
his removal from service [De Leon, 2008] (d) Grounds – Dishonesty, oppression or
 No compensation is due for the period of grave misconduct, neglect in the
preventive suspension pending performance of duty or if there are
investigation because such is not a reasons to believe that respondent is
penalty but only a means of enabling the guilty of the charges which would
disciplining authority to conduct an warrant his removal from the service
unhampered investigation. [De Leon, (e) Period – administrative investigation
2008] must be terminated within 90 days,
(2) Preventive suspension pending appeal if the otherwise the respondent shall be
penalty imposed by the disciplining automatically reinstated unless the
authority is suspension or dismissal and, delay in the disposition of the case is
after review, the respondent is exonerated. due to the fault, negligence or petition
[Caniete v. Secretary of Education, (2000)] of the respondent, in which case the
 Employees are entitled to compensation period of delay shall not be counted
for the period of their suspension pending (2) Presidential Appointee
appeal if they are found innocent. Such  Can only be investigated and removed
suspension is actually punitive so that a from office after due notice and hearing
public officer should be reinstated with by the President under the principle that
full pay for the period of the suspension. the power to remove is inherent in the
power to appoint as can be implied from
Pending Investigation Pending Appeal Sec. 5 of RA 2260 [Villaluz v. Zaldivar
(1965)]
Not a penalty but only Punitive in character
a means of enabling Elective Officials [Sec. 63, RA 7160]. –
the disciplining (1) By – against
authority to conduct (a) President – elective official of a
unhampered province, HUC or ICC
investigation (b) Governor – elective official of CC or
No backwages due for If exonerated – municipality
the period of reinstated with full pay (c) Mayor – elective official of a brgy
suspension even if for the period of (2) When – at any time after the issues are
found innocent unless suspension joined
suspension is (3) Requisites:
unjustified If reprimanded – (a) After the issues are joined;
cannot claim (b) Evidence of guilt is strong; and
backwages. Penalty is (c) Given the gravity of the offense, there is
commuted great probability that the continuance in
office of of the respondent could:
ii. RULES ON PREVENTIVE SUSPENSION (i) influence the witnesses; or
Appointive Officials. – (ii) pose a threat to the safety and
(1) Not a Presidential Appointee integrity of the records and other
(a) By – the proper disciplining authority evidence.
(b) Against – any subordinate officer or
employee under such authority

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(4) Duration
(a) Single administrative case – not to
IX. Immunity of Public
exceed 60 days
(b) Several administrative cases – not more
Officers
than 90 days within a single year on the
same ground or grounds existing and General Rule: The doctrine of state immunity
known at the time of the first suspension from suit applies to complaints filed against
(5) Preventive suspension of an elective local public officials for acts done in the performance
official is not an interruption of the 3-term of their duties.
limit rule [Aldovino v. COMELEC (2009)]
Exceptions:
(1) Where the public official is charged in his
C.3. ILLEGAL DISMISSAL,
official capacity for acts that are unlawful
REINSTATEMENT AND BACK SALARIES
and injurious to the rights of others. Not
 Reinstatement and back salary or wages are exempt, in their personal capacity, from
separate and distinct reliefs given to an liability arising from acts committed in bad
illegally dismissed official or employee. faith
 Where an officer was unlawfully removed and (2) Where the public official is clearly being
was prevented for a time by no fault of his sued not in his official capacity but in his
own from performing the duties of his office, it personal capacity, although the acts
was held that he might recover backwages, complained of may have been committed
and that the amount that he had earned in while he occupied a public position
other employment during his unlawful [Lansang v. CA (2000)]
removal should not be deducted from his (3) Suit to compel performance of official duty
unpaid salary. He may recover the full amount or restrain performance of an act
notwithstanding that during the period of his
removal, the salary has been paid to another
A. DOCTRINE OF OFFICIAL IMMUNITY
appointed to fill the vacancy unlawfully
created. FROM LIABILITIES FOR PUBLIC
 The “no work, no pay” principle does not OFFICERS
apply where it has been sufficiently shown Rationale: promotion of fearless, vigorous and
that a public official was wrongfully prevented effective administration of policies of
from entering the office and carrying out his government.
duties.
 If the illegal dismissal is found to have been It is generally recognized that public officers
made in bad faith by the superior officers then and employees would be unduly hampered,
they will be held personally accountable for deterred and intimidated in the discharge of
back salaries of the illegally dismissed their duties, if those who act improperly, or even
employee. exceed the authority given them, were not
protected to some reasonable degree by being
 The award of backwages is limited to a
relieved from private liability. The threat of suit
maximum period of 5 years and not to full
could also deter competent people from
back salaries from illegal termination up to
accepting public office.
reinstatement [David v. Gania (2003)]

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Other public policy considerations: in the discharge of his official duties are not
(1) Loss of valuable time caused by such actionable as long as it is not shown that they
actions were motivated by malice or gross negligence
(2) Unfairness of subjecting officials to personal amounting to bad faith.
liability for the acts of their subordinates
(3) A feeling that the ballot and removal D. IMMUNITY FROM SUIT OF THE
procedures are more appropriate methods PRESIDENT
of dealing with the misconduct in public
office.
General Rule: The President shall be immune
from suit during his tenure.
B. OFFICIAL IMMUNITY
DISTINGUISHED FROM STATE Exceptions:
IMMUNITY (1) Impeachment complaint [Sec. 2 Art. XI,
Constitution]
The immunity of public officials is a more (2) While the President is immune from suit,
limited principle than governmental immunity she may not be prevented from instituting a
since its purpose is not directly to protect the suit.
sovereign, but rather to do so only collaterally,
by protecting the public official in the Note: A non-sitting President does not enjoy
performance of his government function. immunity from suit, even for acts committed
during the latter’s tenure [In the Matter of the
The doctrine of sovereign immunity principally Petition for the Writ of Amparo and Habeas Data
rested upon the tenuous ground that the king in favor of Noriel H. Rodriguez; Rodriguez v.
could do no wrong. It served to protect the Macapagal-Arroyo (2011)]
impersonal body politic or government itself
from tort liability. X. De Facto Officers
Official Immunity serves as a protective aegis for
public officials from tort liability for damages It is the doctrine that a person who is admitted
arising from discretionary acts or functions in and sworn into office by the proper authority is
the performance of their official duties. deemed to be rightfully in such office until:
(1) he is ousted by judicial declaration in a
proper proceeding; or
C. OFFICIAL IMMUNITY NOT
(2) his admission thereto is declared void.
ABSOLUTE
Doctrine’s Purpose: to ensure the orderly
A public officer enjoys only qualified, not functioning of government. The public cannot
absolute immunity. The protection afforded by afford to check the validity of the officer's title
the doctrine generally applies only to activities each time they transact with him.
within the scope of office that are in good faith
and are not reckless, malicious or corrupt. De Facto Officer – one who has the reputation of
being the officer that he assumes to be, and yet
But acts of a public officer are protected by the is not a good officer in point of law. [Torres v.
presumption of good faith. Even mistakes Ribo (1948)]
concededly committed by such a public officer

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He must have: (3) He possessed public office under color of a


(1) Acted as an officer for such length of time, known election or appointment, but such is
(2) Under color of title and under such VOID because:
circumstances of reputation or (a) He is ineligible;
acquiescence by the public and public (b) The electing or appointing body is not
authorities, empowered to do such;
(3) As to afford a presumption of election or (c) His exercise of his function was
appointment, and defective or irregular;
(4) Induce people, without inquiry, and relying (d) Important: The public does NOT KNOW
on the supposition that he is the officer he of such ineligibility, want of power, or
assumes to be, to submit to or invoke his defect being.
action. (4) He possessed public office under color of an
election or an appointment by or pursuant
A person is a de facto officer when the duties of to a public, unconstitutional law, before the
his office are exercised under ANY of the same is adjudged to be such.
following circumstances: What is unconstitutional is the officer’s
(1) There is no known appointment or election, appointment to an office not legally existing,
but people are induced by circumstances of (not creation of an unconstitutional office).
reputation or acquiescence to suppose that [Norton v. County of Shelby (1886)]
he is the officer he assumes to be.
Consequently, people do not to inquire into
his authority, and they submit to him or
invoke his action;
(2) He possessed public office under color of a
known and valid appointment or election,
but he failed to conform to some precedent
requirement or condition (e.g., taking an
oath or giving a bond);
_________________________________________________________________________________

A. OFFICER DE JURE V. OFFICER DE FACTO (ASKED IN 2000, 2004)


De Jure De Facto
Requisites A de jure office exists; De jure office;

He is legally qualified for the office; He assumed office under color of


right or general acquiescence by the
He is lawfully chosen to such office; public;

He undertakes to perform the duties He actually and physically possessed


of such office according to law’s the office in good faith.
prescribed mode.

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Basis of Authority Right: Reputation: He possesses office and


He has the lawful right / title to the performs its duties under color of
office right, but he is not technically
qualified to act in all points of law
How Ousted Cannot be ousted. In a direct proceeding (quo warranto);
(collaterally)
Validity of official acts Valid, subject to exceptions (e.g., Valid as to the public until his title to
acting beyond his scope of authority, the office is adjudged insufficient.
etc.)
Rule on Compensation Rightfully entitled to compensation;
Conditionally entitled to receive
compensation: only when no de jure
The principle "No work, no pay" is officer is declared;
inapplicable to him.
He is paid only for actual services
rendered.

B. OFFICER DE FACTO V. INTRUDER


De Facto Intruder
Nature He becomes officer under any of the 4 He possesses office and performs
circumstances discussed under Part II official acts without actual or
(above). apparent authority.
Basis of Authority Color of right or title to office None. Neither lawful title nor color of
right to office.
Validity of “official” acts Valid as to the public until his title to Absolutely void; His acts can be
the office is adjudged insufficient impeached at any time in any
proceeding (unless and until he
continues to act for a long time,
creating a presumption of his right to
act) [De Leon, 119]
Rule on Compensation Entitled to receive compensation only Not entitled to compensation at all.
when no de jure officer is declared and
only for actual services rendered.

An intruder / usurper may be presumed a de facto officer with the passage of time, when the public
presumes in their minds IN GOOD FAITH that the intruder is rightfully acting as a public officer.

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C. ELEMENTS OF A DE FACTO abolition and over the fiscal’s objection


OFFICERSHIP [People v. So (1995)]
(3) Office created under an unconstitutional
statute.
(1) A validly existing public office;
The prevalent view is that a person
(2) Actual physical possession of the office in
appointed or elected in accordance with a
good faith;
law later declared to be unconstitutional
(3) Color of title to the office:
may be considered de facto at least before
(a) Reputation or acquiescence;
the declaration of unconstitutionality.
(b) Known and valid appointment or
election, but the officer failed to
conform to a legal requirement
E. LEGAL EFFECT OF ACTS OF DE
(c) Known appointment or election but void FACTO OFFICERS
because of ineligibility of the officer, or [Monroy v. CA (1967)]
want of authority of the appointing or
electing authority, or because of an (1) As regards the officers themselves: A party
irregularity in his appointment or suing or defending in his own right as a
election, such ineligibility, want of public officer must show that he is an officer
authority or irregularity being unknown de jure. It is not sufficient that he be merely
to the public a de facto officer.
(d) Known appointment or election (2) As regards the public and third persons: The
pursuant to an unconstitutional law acts of a de facto officer are valid as to third
before declaration of unconstitutionality persons and the public until his title to
office is adjudged insufficient.
D. WHO ARE NOT CONSIDERED DE Rationale: The doctrine is intended not for
the protection of the public officer, but for
FACTO OFFICERS?
the protection of the public and individuals
who get involved in the official acts of
(1) A judge who has accepted an appointment persons discharging the duties of a public
as finance secretary and yet renders a office.
decision after his acceptance: if he has (3) De Facto Officer’s Official Acts are not
ceased to be judge by actually accepting subject to collateral attack
and entering into some other office and has Rule: A de facto officer’s and his acts’
actually entered upon the performance of validity cannot be collaterally questioned (in
the duties of the other office, it is difficult to proceedings where he is not a party, or were
understand how he can still be considered not instituted to determine the very
as actually occupying and performing the question).
duties of the office which he had abandoned
and vacated. An abandonment and a Remedy: Quo warranto proceedings filed by:
vacation of an office is inconsistent and (a) The person claiming entitlement to the
repugnant to the idea of actually continuing office;
to perform the duties of such office; [Luna v. (b) The Republic of the Philippines
Rodriguez (1917)] (represented by the Solicitor-General or a
(2) A judge whose position has already been public prosecutor).
lawfully abolished, and yet promulgates a
decision in a criminal case after the

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F. LIABILITY OF DE FACTO OFFICERS unconstitutional because it allowed Cabinet


[De Leon, 130-131] members to hold multiple offices in direct
contravention of the Constitution, it was
A de facto officer generally has the same degree held that during their tenure in the
of liability and accountability for official acts like questioned positions, the respondents may
a de jure officer. be considered de facto officers and as such
entitled to the emoluments of the office/s
The de facto officer may be liable for all for actual service rendered.
imposable penalties for ANY of the following  A de facto officer, not having good title,
acts: takes the salaries at his risk and must
(1) usurping or unlawfully holding office; account to the de jure officer (when there
(2) exercising the functions of public office is one) for whatever salary he received
without lawful right; during the period of his wrongful tenure,
(3) ineligibility for the public office as even if he occupied the office in good
required by law faith.
 BUT when the de jure officer assumed
The de facto officer cannot excuse responsibility another position under protest, for which
for crimes committed in his official capacity by she received compensation: while her
asserting his de facto status. assumption to the said position and her
acceptance of the corresponding
G. RIGHT TO COMPENSATION OF DE emoluments do not constitute
FACTO OFFICER abandonment of her rightful office, she
cannot recover full back wages for such.
She is only entitled to back pay
General Rule: None. A de facto officer cannot
differentials between the salary rates for
sue for the recovery of salary, fees or other
the lower position she assumed and the
emoluments attached to the office, for the
position she is rightfully entitled to. [Gen.
duties he has performed. His acts, as far as he
Manager, Philippine Ports Authority v.
himself is concerned, are void. [63A Am. Jur. 2d
Monserate (2002)]
1094-1095]
The rightful incumbent may recover from the
de facto officer the salary received by the latter
during his wrongful tenure, even though he
entered into the office in good faith and under
color of title. [Monroy v CA (1967)]

Exceptions:
(1) Where there is no de jure public officer, the
officer de facto who in good faith has had
possession of the office and has discharged
the duties pertaining thereto is legally
entitled to the emoluments of the office.
[Monroy v. CA (1967)]
(2) Civil Liberties Union v. Executive Secretary
(1991): Even as EO No. 284 was declared

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XI. Termination of B. DEATH OR PERMANENT


DISABILITY
Official Relation
The death of the incumbent of an office, which
is by law to be filled by one person only,
A. EXPIRATION OF THE TERM OR
necessarily renders the office vacant. The public
TENURE OF OFFICE official cease to hold office upon his death and
all his rights, duties and obligations pertinent to
Upon the expiration of the officer’s term, unless the office are extinguished.
he is authorized by law to hold over, his rights,
duties and authority as a public officer must Permanent disability covers both physical or
ipso facto cease. mental disability.

Term of office – the time during which the


C. RESIGNATION
officer may claim to hold the office as of right
and fixes the interval after which the several
incumbents shall succeed one another. It is a Resignation – the act of giving up or the act of a
fixed and definite period of time to hold office, public officer by which he declines his office and
perform its functions and enjoy its privileges renounces the further right to use it. It is an
and emoluments until the expiration of said expression of the incumbent in some form,
period express or implied, of the intention to surrender,
renounce and relinquish the office and the
Tenure of office – the period during which the acceptance thereof by competent lawful
incumbent actually holds office. authority [Ortiz v. COMELEC (1988)]

Accomplishment of the Purpose – Where an Requisites:


office is created, or an officer is appointed, for (1) Intention to relinquish a part of the term
the purpose of performing a single act or the (2) Act of relinquishment
accomplishment of a given result, the office (3) Acceptance by the proper authority, either
terminates and the officer’s authority ceases expressly or implied
with the accomplishment of the purposes which
called it into being reaching the age limit Form of resignation:
(retirement) (1) Where by law a resignation is required to be
made in any particular form, that form must
This mode results in the compulsory and be substantially complied with.
automatic retirement of a public officer (2) Where no such form is prescribed no
particular mode is required, but the
Compulsory Retirement Age resignation may be made by any method
(1) Members of the Judiciary – 70 yrs old indicative of the purpose. It need not be in
(2) Other government officers and employees – writing, unless so required by law.
65 yrs old [New GSIS Charter] (3) A written resignation, delivered to the board
(3) Optional retirement age – after rendition of or officer authorized to receive it and fill the
the minimum number of years of service [RA vacancy thereby created, is prima facie, but
1616] not conclusive evidence of the intention to
relinquish the office.

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C.1. RESIGNATION REVOCABLE BEFORE Courtesy Resignation


NOTIFICATION OF ACCEPTANCE Courtesy Resignation cannot properly be
Republic v. Singun (2008): The Court ruled that interpreted as a resignation in the legal sense
since respondent was not finally notified of its for it is not necessarily a reflection of a public
acceptance, resignation could validly be official’s intention to surrender his position.
withdrawn. Rather, it manifests his submission to the will of
(1) Art. 238 of the RPC makes it an offense for the political authority and the appointing power
any public officer who, before acceptance of [Ortiz v. COMELEC (1988)]
his resignation, abandons his office to the
detriment of the public service D. ACCEPTANCE OF AN
(2) Accepting Authority INCOMPATIBLE OFFICE
(a) As provided by law
(b) If the law is silent on who shall accept It is contrary to the policy of the law that the
and the public officer is an appointive same individual should undertake to perform
officer, tender to the appointing inconsistent and incompatible duties.
authority. If elective, tender to those Note that acceptance even of a temporary
authorized by law position, if incompatible, results in termination.
[Romualdez III v. CSC (1991)]
Resigning Public Officer Accepting Authority

President and VP Congress General Rule: One who, while occupying one
office, accepts another incompatible with the
Members of Congress Respective Houses
first, ipso facto, absolutely vacates the first
Governor, Vice Gov, President office.
Mayor, Vice Mayor, of
HUC and ICC D.1. WHEN INCOMPATIBLE
City Mayors and Vice Governor Incompatibility is to be found in the character of
Mayors of CCs, the offices and their relation to each other, in
Municipal Mayors and the subordination of one to the other and in the
Vice Mayors nature of the functions and duties which attach
to them
Sanggunian Members Sanggunian concerned
Elective Barangay Municipal or City It exists where:
Officials Mayors (1) There is conflict in such duties and
Appointive Public Appointing Authority functions, so that the performance of the
Officers duties of one interferes with the
performance of the duties of the other as to
Effective date of resignation render it improper from consideration of
The date specified in the tender; and if no such public policy for one person to retain both.
date is specified, then resignation shall be (2) One is subordinate to the other and is
effective when the public officer receives notice subject in some degree to its supervisory
of the acceptance of his resignation, not the power for obviously in such a situation, the
date of the letter or notice of acceptance design that one acts as a check on the other
[Gamboa v. CA (1981)] would be frustrated.

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(3) The Constitution or the law itself declares F. PRESCRIPTION OF RIGHT TO


the incompatibility even though there is no OFFICE
inconsistency in the nature and functions of
the offices.
Under the Rules of Court, quo warranto is the
proper remedy against a public officer for his
Exceptions:
ouster from office which should be commenced
(1) Where the public officer is authorized by law
within one year after the cause of such ouster or
to accept the other office (ex officio
the right of the plaintiff to hold such office or
capacity)
position arose; otherwise, the action will be
(2) In case of the forbidden office, it is the
barred.
second office that is absolutely void

Rationale for the one-year period: Title to public


E. ABANDONMENT OF OFFICE office should not be subjected to uncertainties
but should be determined as speedily as
Abandonment – the voluntary relinquishment of possible.
an office by the holder of all right, title, or claim Filing of an action for administrative remedy
thereto with the intention of not reclaiming it or does not suspend the period for filing the
terminating his possession and control thereof. appropriate judicial proceeding.

Requisites G. REMOVAL
(1) Intention to abandon
(2) Overt act by which the intention is carried
Removal entails the ouster of an incumbent
into effect
before the expiration of his term. It implies that
the office exists after the ouster. Another term
E.1. SPECIES OF RESIGNATION
used is dismissal.
While resignation in general is a formal
relinquishment, abandonment is a voluntary
G.1. REMOVAL FROM OFFICE MAY BE
relinquishment through non-user. Non-user
refers to a neglect to use a privilege or a right or
EXPRESS OR IMPLIED
to exercise an easement or an office (1) Appointment of another officer in the place
[Municipality of San Andres, Catanduanes v. CA of the incumbent operates as a removal if
(1998)] the latter was notified. [De Leon]
(2) The transfer of an officer or employee
Abandonment may also result from without his consent from one office to
acquiescence by the officer in his wrongful another, whether it results in promotion or
removal [Canonizado v. Aguirre (2001)]. demotion, advancement or reduction in
salary, is equivalent to his illegal removal or
Civil Service Rules – an officer or employee shall separation from the first office. [Gloria v.
be automatically separated from the service if Court of Appeals (2000)]
he fails to return to the service after the (3) Demotion to a lower position with a lower
expiration of one-year leave of absence without rate of compensation is also equivalent to
pay. Also, officers and employees who are removal if no cause is shown for it. [De
absent for at least 30 days without approved Guzman v. CSC (1994)]
leave (AWOL) shall be dropped from the service  It is the forcible and permanent
after due notice separation of the incumbent from office

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before the expiration of his term [Ingles v. H. IMPEACHMENT


Mutuc (1968)].
Impeachment – method of national inquest into
Note: Constitutional guarantee of security of the conduct of public men.
tenure – No officer or employee of the civil
service shall be removed or suspended except Purpose: To protect the people from official
for cause provided by law [Sec. 2(3), Art IX-B, delinquencies or malfeasances. It is primarily
Constitution]. intended for the protection of the State, not for
the punishment of the offender.
 Demotions and transfers without just cause
are tantamount to removal. H.1. IMPEACHABLE OFFICERS
 Removal or resignation from office is not a bar (1) The President
to a finding of administrative liability [Office of (2) Vice-President
the President v. Cataquiz (2011)]. (3) Members of the Supreme Court
 Removal not for a just cause, or non- (4) Members of the Constitutional
compliance with the prescribed procedure Commissions, and
constitutes a reversible error and entitles the (5) The Ombudsman
officer or employee to reinstatement with
back salaries and without loss of seniority H.2. GROUNDS FOR IMPEACHMENT
rights (1) Culpable violation of the Constitution
(2) Treason
G.2. EXTENT OF THE PRESIDENT’S (3) Bribery
REMOVAL POWER (4) Graft and corruption
(1) With respect to non-career officers (5) Other high crimes, or
exercising purely executive functions whose (6) Betrayal of public trust.
tenure is not fixed by law (i.e. members of
the Cabinet), the President may remove All other public officers and employees may be
them with or without cause and Congress removed from office as provided by law, but not
may not restrict such power. by impeachment. [Sec. 2, Art. XI, Constitution]
(2) With respect to officers exercising quasi-
legislative or quasi-judicial functions (e.g. The House of Representatives has the sole
members of the SEC), they may be removed power to initiate all cases of impeachment while
only on grounds provided by law to protect the Senate sits as a court for the trial of
their independence. impeachment cases. Judgment in cases of
(3) With respect to constitutional officers impeachment shall not extend further than
removable only by means of impeachment, removal from office and disqualification to hold
and judges of lower courts, they are not any office under the Republic of the Philippines,
subject to the removal of the President. but the party convicted shall nevertheless be
(4) With respect to civil service officers, the liable and subject to prosecution, trial, and
President may remove them at his pleasure punishment, according to law. [Sec. 3, Art. XI,
with or without cause. Constitution]

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I. ABOLITION OF OFFICE Attrition – reduction of personnel as a result of


To consider an office abolished, there must have resignation, retirement, dismissal in accordance
been an intention to do away with it wholly and with existing laws, death or transfer to another
permanently. office [Sec. 2(a), RA 7430 Attrition Law]

 Except when restrained by the Constitution, I.2. ABOLISHING AN OFFICE ALSO


the Congress has the right to abolish an ABOLISHES UNEXPIRED TERM.
office, even during the term for which an The legislature’s abolition of an office (i.e. court)
existing incumbent may have been elected. also abolishes the unexpired term. The
 Valid abolition of office does not constitute legislative power to create a court carries with it
removal of the incumbent. the power to abolish it. [Ocampo v. Sec. of
 No law shall be passed reorganizing the Justice (1955)]
Judiciary when it undermines the security of
tenure of its members [Sec. 2, Art. VIII, I.3. IS ABANDONMENT EQUIVALENT TO
Constitution]. ABOLITION?
 The fundamental principle afforded to civil General Rule: When a public official voluntarily
service employees against removal “except accepts an appointment to an office that is
for cause as provided by law” does not protect newly-created by law -- which new office is
them against abolition of the positions held incompatible with the former -- he will be
by them in the absence of any other provision considered to have abandoned his former office.
expressly or impliedly prohibiting abolition
thereof. [Castillo v. Pajo (1958)] Exception: when the public official is
constrained to accept because the non-
I.1. REQUISITES acceptance of the new appointment would
[Mendoza v. Quisumbing (1990)]: affect public interest. In this case there is NO
(1) Abolition must be done in good faith abandonment. [Zandueta v. De La Costa (1938)]
(2) Clear intent to do away with the office
(3) Not for personal or political reasons J. CONVICTION OF A CRIME
(4) Cannot be implemented in a manner When the penalties of perpetual or temporary
contrary to law absolute disqualification or penalties of
perpetual or temporary special disqualification
Reorganization – reduction of personnel, are imposed upon conviction of a crime,
consolidation of offices, or abolition thereof by termination of official relation results, for one of
reason of economy or redundancy of functions. the effects of the imposition of said penalties is
It could result in the loss of one’s position the deprivation of the public office which the
through removal or abolition of an office. offender may have held.
However, for a reorganization for the purpose of
economy or to make the bureaucracy more Conviction – conviction in a trial court. It
efficient to be valid, it must pass the test of contemplates a court finding guilt beyond
good faith; otherwise, it is void ab initio [United reasonable doubt followed by a judgment
Claimant Association of NEA v. NEA (2012)] upholding and implementing such finding.
 Reorganization is valid provided they are
pursued in good faith

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K. FAILURE TO ASSUME ELECTIVE 2010 Decision


OFFICE WITHIN SIX MONTHS FROM  Reversed 2009 Decision and upheld the
constitutionality of Sec. 13(3) of RA
PROCLAMATION
9369 and Sec. 66 of BP 881
The office of any official elected who fails or
refuses to take his oath of office within six  Affirmed the ruling in Fariñas v.
months from his proclamation shall be Executive Secretary (2003)- Substantial
considered vacant, unless said failure is for a distinctions exist between elective
cause or causes beyond his control [Sec. 11, BP officials and appointive officials. The
881] former occupy their office by virtue of
the mandate of the electorate. On the
other hand, appointive officials hold
L. RECALL
their office by virtue of their designation
It is a method of removal prior to the expiration
thereto by an appointing
of the term of a public officer on account of loss
authority. Also, under the
of confidence exercised directly by the
Administrative Code of 1987, appointive
registered voters of a local government unit
officials, as officers and employees in
the civil service, are strictly prohibited
Quinto v. COMELEC
from engaging in any partisan political
2009 Decision
activity or take part in any election
Appointive and Elective Officials Not Deemed
except to vote. Elective officials, on the
Resigned upon Filing of CoC – Sec. 13(3) of RA
other hand, are obviously expressly
9369 and Sec. 66 of BP 881, which makes an
allowed to take part in political and
appointive official ipso facto resigned from his
electoral activities.
office upon the filing of his CoC, were declared
as unconstitutional

Equal Protection Clause Violated – since it


creates a situation of obvious discrimination
against appointive officials who were deemed
ipso facto resigned upon filing of CoCs while
elective officials were not. The differential
treatment was not germane to the purposes of
the law.

Overbroad – because it pertains to all civil


servants holding appointive posts without
distinction as to whether they occupy high
positions in government or not. And also, the
provision is directed to the activity of seeking
any and all public offices, whether they be
partisan or nonpartisan in character, whether
they be in the national, municipal or barangay
level.

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XII. The Civil Service B.3. REVIEW


QUALIFICATIONS
APPOINTEE’S

The only function of the CSC is to review the


A. SCOPE appointment in light of the requirements of the
Civil Service Law, and when it finds the
Embraces all branches, subdivisions, appointee to be qualified and all other legal
instrumentalities and agencies of the requirements have been otherwise satisfied, it
Government, including government-owned and has no choice but to attest to the appointment.
controlled corporations with original charters [Lapinid v. CSC (1991)]
[Sec. 2(1), Art. IX-B, Constitution]
B.4. WHAT IT CANNOT DO
B. CIVIL SERVICE COMMISSION’S (1) It cannot order the replacement of the
appointee simply because it considers
(CSC’S) JURISDICTION
another employee to be better qualified.
[Lapinid v. CSC (1991)]
B.1. EXCLUSIVE JURISDICTION (2) The CSC cannot co-manage or be a
(1) Disciplinary cases surrogate administrator of government
(2) Cases involving “personnel action” affecting offices and agencies.
the Civil Service employees: (3) It cannot change the nature of the
(a) Appointment through certification appointment extended by the appointing
(b) Promotion officer. [Luego v. CSC (1986)]
(c) Transfer
(d) Reinstatement
C. APPOINTMENTS TO THE CIVIL
(e) Reemployment
(f) Detail, reassignment
SERVICE
(g) Demotion
(h) Separation C.1. SCOPE
(3) Employment status Embraces all branches, subdivisions,
(4) Qualification standards instrumentalities and agencies of the
Government, including GOCCs with original
B.2. RECALL OF APPOINTMENT charters [Art. IX-B Sec. 2(1), Constitution]
Includes the authority to recall an appointment
which has been initially approved when it is C.2. CLASSES OF SERVICE
shown that the same was issued in disregard of (1) Career Service – Entrance based on merit
pertinent CSC laws, rules and regulations. and fitness determined by competitive
examinations, or based on highly technical
As opposed to Recall under Sec 69-75 of the qualifications, opportunity for advancement
Local Government Code: recall is a mode of to higher career positions and security of
removal of a public official by the people before tenure.
the end of his term of office. [Garcia v. (2) Non-career Service – Entrance on bases
COMELEC, (1993)] other than those of the usual tests. Tenure
limited to a period specified by law or which
is coterminous with the appointing
authority or the duration of a particular

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project. (i.e. elective officials, Department  BUT the appointing authority still
Heads and Members of Cabinet) exercises discretion and is not bound by
this rule, although he is required to
C.3. REQUISITES: specify the “special reason or reasons” for
General Rule: not appointing the officer next-in-rank.
(1) Appoint only according to merit and fitness, (2) Automatic Reversion Rule
to be determined as far as practicable.  All appointments involved in a chain of
(2) Require a competitive examination. promotions must be submitted
simultaneously for approval by the
Exceptions: (Positions where appointees are Commission.
exempt from Competitive Examination  The disapproval of the appointment of a
Requirements) person proposed to a higher position
(1) Policy determining – in which the officer lays invalidates the promotion of those in the
down principal or fundamental guidelines lower positions and automatically
or rules; or formulates a method of action restores them to their former positions.
for government or any of its subsidiaries  However, the affected persons are entitled
(2) Primarily Confidential – denoting not only to payment of salaries for services actually
confidence in the aptitude of the appointee rendered at a rate fixed in their
for the duties of the office but primarily promotional appointments. [Sec. 13 of the
close intimacy which ensures freedom of Omnibus Rules Implementing
intercourse without embarrassment or Administrative Code]
freedom from misgivings or betrayals on
confidential matters of the state Requisites:
(“Proximity Rule” as enunciated in De los (a) Series of promotions
Santos v Mallare [1950]) (b) All promotional appointments are
(3) Highly Technical – requires possession of simultaneously submitted to the
technical skill or training in a superior Commission for approval
degree. (e.g. City Legal Officer) (c) The Commission disapproves the
appointment of a person to a higher
 It is the nature of the position which position.
determines whether a position is policy
determining, primarily confidential or highly II. APPOINTMENT THROUGH
technical CERTIFICATION
Appointment through Certification is issued to a
C.4. OTHER PERSONNEL ACTIONS person who is:
I. PROMOTION (1) Selected from a list of qualified persons
Promotion – movement from one position to certified by the Civil Service Commission
another with increase in duties and from an appropriate register of eligibles
responsibilities as authorized by law and is (2) Qualified
usually accompanied by an increase in pay.
(1) Next-in-rank Rule III. TRANSFER
 The person next in rank shall be given Transfer – a movement from one position to
PREFERENCE in promotion when the another which is of equivalent rank, level or
position immediately above his is vacated. salary without break in service.

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This may be imposed as an administrative VI. REASSIGNMENT


remedy. An employee may be reassigned from one
organizational unit to another in the same
General Rule: If transfer is without consent, it agency.
violates security of tenure.
It is a management prerogative of the CSC and
Exceptions: any dept or agency embraced in the Civil Service.
(1) Temporary Appointee
(2) Career Executive Service Personnel It does not constitute removal without cause.
whose status and salaries are based on
ranks (≠ positions) Requirements:
(1) NO reduction in rank, status or salary.
IV. REINSTATEMENT (2) Should have a definite date or duration (c.f.
Reinstatement – technically the issuance of a Detail). Otherwise, a floating assignment =
new appointment and is discretionary on the a diminution in status or rank.
part of the appointing power.
It cannot be the subject of an application for a VII. REEMPLOYMENT
writ of mandamus. Names of persons who have been appointed
permanently to positions in the career service
Who may be reinstated to a position in the same and who have been separated as a result of
level for which he is qualified: reduction in force and/or reorganization, shall
(1) Any permanent appointee of a career be entered in a list from which selection for
service position reemployment shall be made.
(2) No commission of delinquency or
misconduct, and is not separated.

 Reinstatement has the same effect as


Executive Clemency, which completely
obliterates the adverse effects of the
administrative decision which found him
guilty of dishonesty. He is restored ipso facto
upon grant of such. Application for
reinstatement = unnecessary.

V. DETAIL
Detail – the movement of an employee from one
agency to another without the issuance of an
appointment.
(1) Only for a limited period.
(2) Only for employees occupying professional,
technical and scientific positions.
(3) Temporary in nature.

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XIII. Accountability of may not be filed against the same official


within a one year period following Article XI,
Public Officers Section 3(5) of the Constitution.” [Francisco,
Jr. v. House of Representatives (2003)]

A. IMPEACHMENT B. OMBUDSMAN
[Agpalo, 2005]
A.1. DEFINITION
Impeachment – a criminal proceeding against a B.1. FUNCTIONS
public officer, before a quasi-judicial political (1) Investigate any act or omission of any public
court, instituted by written accusation called official, employee, office or agency which
‘articles of impeachment.’” [Agpalo, 2005] appears to be illegal, unjust, improper, or
inefficient. This may be done by the
A.2. PURPOSE Ombudsman on its own or upon complaint.
Its purpose is to protect the people from official (2) Direct any public official or employee, or any
delinquencies or malfeasances. It is primarily government subdivision, agency or
intended for the protection of the State, not for instrumentality, as well as of any
the punishment of the offender. The penalties government-owned or controlled
attached to impeachment are merely incidental corporation with original charter:
to the primary intention of protecting the (a) To perform and expedite any act or duty
people as a body politic. [De Leon, 2008] required by law, or
(b) To stop, prevent, and correct any abuse
A.3. GROUNDS or impropriety in the performance of
[Sec. 2, Art. XI, Constitution] duties
(1) Culpable violation of the Constitution (3) Direct the officer concerned:
(2) Treason (a) To take appropriate action against a
(3) Bribery public official or employee at fault, and
(4) Graft and corruption (b) To recommend the latter’s removal,
(5) Other high crimes suspension, demotion, fine, censure, or
(6) Betrayal of public trust prosecution, and
 The acts which are impeachable grounds (c) To ensure compliance therewith.
must be committed in the performance of (4) Direct the officer concerned, in any
the official’s public office. [Agpalo, 2005] appropriate case, and subject to such
 No impeachment proceedings shall be limitations as may be provided by law, to
initiated against the same official more than furnish it with copies of documents relating
once within a period of one year. [Sec. 3, Art. to contracts or transactions entered into by
XI, Constitution] his office involving the disbursement or use
 “Having concluded that the initiation takes of public funds or properties. The
place by the act of filing of the Ombudsman can also report any irregularity
impeachment complaint and referral to the to the Commission on Audit for appropriate
House Committee on Justice, the initial action.
action taken thereon, the meaning of (5) Request any government agency for
Section 3 (5) of Article XI becomes clear. assistance and information necessary in the
Once an impeachment complaint has been discharge of its responsibilities, and to
initiated in the foregoing manner, another

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examine, if necessary, pertinent records and controlled corporations and their


documents. subsidiaries. [Sec. 21, RA 6770]
(6) Publicize matters covered by its The disciplinary power of the
investigation when circumstances so Ombudsman is not exclusive but is shared
warrant and with due prudence. with other disciplinary authorities of the
(7) Determine the causes of inefficiency, red government.
tape, mismanagement, fraud, and The disciplinary power of the
corruption in the Government and make Ombudsman over elective officials is
recommendations for their elimination and concurrent with the power vested in the
the observance of high standards of ethics officials specified in the Local Government
and efficiency. Code of 1991. [Hagad v. Dozo-Dadole, (1995)]
(8) Promulgate its rules of procedure and Exception: The Ombudsman has no
exercise such other powers or perform such disciplinary power over the following:
functions or duties as may be provided by (a) Officials who may be
law [Sec. 13, Art. XI, Const.] removed only by
(9) Administer oaths, issue subpoena and impeachment
subpoena duces tecum, and take testimony (b) Members of Congress
in any investigation or inquiry, including the (c) Members of the Judiciary
power to examine and have access to bank [Sec. 21, RA 6770]
accounts and records;  However, the Office of the Ombudsman
(10) Punish for contempt in accordance with the has the power to investigate any serious
Rules of Court and under the same misconduct in office committed by
procedure and with the same penalties officials removable by impeachment, for
provided therein; the purpose of filing a verified
(11) Delegate to the Deputies, or its complaint for impeachment, if
investigators or representatives such warranted. [Sec. 22, RA 6770]
authority or duty as shall ensure the (2) Power to Preventively Suspend
effective exercise or performance of the The Ombudsman or his Deputy may
powers, functions, and duties herein or preventively suspend any officer or
hereinafter provided; employee under his authority pending an
(12) Investigate and initiate the proper action for investigation, if in his judgment the
the recovery of ill-gotten and/or evidence of guilt is strong, and
unexplained wealth amassed after February (a) The charge against such officer or
25, 1986 and the prosecution of the parties employee involves dishonesty,
involved therein [Sec. 15, RA 6770] oppression or grave misconduct or
neglect in the performance of duty;
B.2. POWERS (b) The charges would warrant removal
(1) Disciplinary Power Over Public Officers from the service; or
General rule: The Office of the Ombudsman (c) The respondent's continued stay in
has disciplinary authority over all elective office may prejudice the case filed
and appointive officials of the government against him. [Sec. 24, RA 6770]
and its subdivisions, instrumentalities and  The preventive suspension shall
agencies, including Members of the Cabinet, continue until the case is terminated by
local government, government-owned or the Office of the Ombudsman but not
more than six (6) months, without pay,

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except when the delay in the disposition C. SANDIGANBAYAN


of the case by the Office of the
Ombudsman is due to the fault,
C.1. NATURE AND COMPOSITION
negligence or petition of the
The Sandiganbayan was created under PD 1606
respondent, in which case the period of
as amended by RA 8249.
such delay shall not be counted in
computing the period of suspension
It is a special court, of the same level as the
herein provided. [Sec. 24, RA 6770]
Court of Appeals and possessing all the
 Prior notice and hearing is not required inherent powers of a court of justice.
before suspension may be meted out.
Suspension is not a punishment or It is composed of a presiding justice and
penalty but only a preventive measure fourteen associate justices who shall be
to prevent the respondent from using appointed by the President.
his position or office to influence or
intimidate prospective witnesses or
C.2. EXCLUSIVE ORIGINAL JURISDICTION
tamper with the records which may be
The Sandiganbayan has exclusive original
vital in the prosecution of the case
jurisdiction
against them.
(1) Over the following crimes, when committed
by public officials and employees classified
B.3. JUDICIAL REVIEW IN as Salary Grade 27 or higher:
ADMINISTRATIVE PROCEEDINGS (a) Violations of R.A. No. 3019 and No.
Decisions or resolutions of the Ombudsman in 1379;
administrative cases absolving the respondent (b) Crimes committed by public officers and
of the charge or imposing upon him the penalty employees embraced in Chapter II, Sec.
of public censure or reprimand, suspension of 2, Title VII, Book II of the Revised Penal
not more than one month, or a fine equivalent Code
to one month salary, is final and unappealable. (c) Other offenses or felonies, whether
[Agpalo, 2005] simple or complexed with other crimes,
committed in relation to their office
Appeals from decisions of the Office of the (2) Civil and criminal cases filed pursuant to
Ombudsman in administrative disciplinary and in connection with Executive Orders No.
cases should be taken to the Court of Appeals 1,2, 14, and 14-a issued in 1986
under the provisions of Rule 43. [Fabian v.
Ombudsman, (1998)]  In the absence of any allegation that the
offense charged was necessarily
B.4. JUDICIAL REVIEW IN PENAL connected with the discharge of the
PROCEEDINGS duties or functions of a public officer,
In all other cases, the decision shall become the ordinary court, not the
final after the expiration of 10 days from receipt Sandiganbayan, has jurisdiction to hear
thereof by the respondent, unless a motion for and decide the case.
reconsideration or a petition for review is filed  What is controlling is not whether the
with the CA pursuant to Rule 43 of the Rules of phrase "committed in relation to public
Court. (Agpalo, 2005) office" appears in the Information. What
determines the jurisdiction of the

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Sandiganbayan is the specific factual director and those holding the rank of senior
allegation in the Information that would superintendent or higher;
indicate close intimacy between the (e) City and provincial prosecutors and their
discharge of the accused's official duties assistants, and officials and prosecutors in the
and the commission of the offense Office of the Ombudsman and special
charged in order to qualify the crime as prosecutor;
having been committed in relation to (2) Presidents, directors or trustees, or
public office. managers of government-owned or controlled
 The relation between the crime and the corporations, state universities or educational
office must be direct and not accidental, institutions or foundations;
that is, the relation has to be such that, (3) Members of Congress and officials thereof
in the legal sense, the offense cannot classified as Grade "27" and up under the
exist without the office. Compensation and Position Classification Act of
1989;
C.3. OFFICIALS AND PRIVATE (4) Members of the judiciary without prejudice
INDIVIDUALS SUBJECT TO ITS to the provisions of the Constitution;
JURISDICTION (5) Chairpersons and members of Constitutional
Under Section 4 (a, b) of PD No. 1606, as Commissions, without prejudice to the
amended, the Sandiganbayan shall exercise provisions of the Constitution; and
exclusive original jurisdiction over the cases (6) All other national and local officials
mentioned in (1) above where one or more of the classified as Grade "27" and higher under the
accused are officials occupying the following Compensation and Position Classificafion Act of
positions in the government, whether in a 1989.
permanent, acting or interim capacity at the In case private individuals are charged as co-
time of the commission of the offense: principals, accomplices or accessories with the
(1) Officials of the executive branch occupying public officers or employees, including those
the positions of regional director and higher, employed in government-owned or -controlled
otherwise classified as Grade '27' and higher, of corporations, they shall be tried jointly with said
the Compensation and Position Classification Act public officers and employees in the proper
of 1989 (R.A. No. 6758), specifically including: courts which shall exercise exclusive jurisdiction
(a) Provincial governors, vice-governors, over them.
members of the sangguniang panlalawigan,
and provincial treasurers, assessors, engineers, C.4. EXCLUSIVE APPELLATE
and other provincial department heads; JURISDICTION
(b) City mayors, vice-mayors, members of the The Sandiganbayan shall exercise exclusive
sangguniang panlungsod, city treasurers, appellate jurisdiction over final judgments,
assessors, engineers, and other city department resolutions or orders of regional trial courts
heads; whether in the exercise of their own original
(c) Officials of the diplomatic service occupying jurisdiction or of their appellate jurisdiction.
the position of consul and higher; [Sec. 4, PD 1606]
(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank; C.5. APPELLATE JURISDICTION OF THE
(d) Officers of the Philippine National Police SUPREME COURT OVER
while occupying the position of provincial

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SANDIGANBAYAN DECISIONS AND or government-owned or controlled


ORDERS corporations and their subsidiaries,
The appellate jurisdiction of the Supreme Court (4) By obtaining, receiving or accepting directly
is limited to questions of law over decisions and or indirectly any shares of stock, equity or
final orders of the Sandiganbayan [Republic v. any other form of interest or participation
Sandiganbayan (2002)] including the promise of future employment
in any business enterprise or undertaking;
D. ILL-GOTTEN WEALTH (5) By establishing agricultural, industrial or
commercial monopolies or other
combinations and/or implementation of
Sec. 15, Art. XI, Const. The right of the State to
decrees and orders intended to benefit
recover properties unlawfully acquired by
particular persons or special interests, or
public officials or employees, from them or
(6) By taking undue advantage of official
from their nominees or transferees, shall not
position, authority, relationship, connection
be barred by prescription, laches or estoppel.
or influence to unjustly enrich himself or
themselves at the expense and to the
This provision applies only to civil actions for
damage and prejudice of the Filipino people
recovery of ill-gotten wealth and not to criminal
and the Republic of the Philippines. [Sec. 1,
cases. Thus, prosecution of offenses arising
RA 7080]
from, relating or incident to, or involving ill-
gotten wealth in the said provision may be
barred by prescription [Presidential Ad-hoc Fact D.1. PLUNDER
Finding Committee on Behest Loans v. Desierto [Sec. 2, RA 7080]
(1999)] i. PUNISHABLE ACTS:
(1) Any public officer who, by himself or in
Ill-gotten wealth – any asset, property, business connivance with members of his family,
enterprise or material possession of any person relatives by affinity or consanguinity,
acquired by himself directly or indirectly business associates, subordinates or other
through dummies, nominees, agents, person, amasses, accumulates or acquires
subordinates and/or business associates by any ill-gotten wealth through a combination or
combination or series of the following means or series of overt or criminal acts in the
similar schemes: aggregate amount or total value of at least
(1) Through misappropriation, conversion, P75,000,000.00
misuse, or malversation of public funds or (2) Any person who participated with the said
raids on the public treasury; officer in the commission of plunder shall
(2) By receiving, directly or indirectly, any likewise be punished.
commission, gift, share, percentage,
kickbacks or any other form of pecuniary ii. PENALTY
benefit from any person and/or entity in Life imprisonment with perpetual absolute
connection with any government contract or disqualification from holding any public office
project or by reason of the office or position The court shall declare any and all ill-gotten
of the public officer concerned; wealth and their interests and other incomes
(3) By the illegal or fraudulent conveyance or and assets including the properties and shares
disposition of assets belonging to the of stocks derived from the deposit or investment
National Government or any of its thereof forfeited in favor of the State. [Agpalo,
subdivisions, agencies or instrumentalities 2005]

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A. SCOPE
XIV. Term Limits Election – the means by which the people
choose their officials for a definite and fixed
A. ALL ELECTIVE LOCAL OFFICIALS, period and to whom they entrust for the time
EXCEPT BARANGAY OFFICIALS [AS being the exercise of the powers of government.
PROVIDED BY LAW]
[Sec. 8, Art. X, Constitution; Sec. 43 LGC] B. KINDS OF ELECTION
(1) Regular – one provided by law for the
Term of office: 3 years from noon of June 30, election of officers either nation-wide or in
1992 or the date provided by law certain subdivisions thereof, after the
expiration of the full term of the former
 All local officials first elected during the officers.
local elections immediately following the  The SK election is not a regular election
ratification of the 1987 Constitution shall because the latter is participated in by
serve until noon of June 30, 1992; youth with ages ranging from 15-21 (now
 No official shall serve for more than 3 15-18 as per RA 9164), some of whom are
consecutive terms for the same position not qualified voters to elect local or
 Voluntary renunciation of the office for any national elective officials [Paras v.
length of time is not an interruption in the COMELEC (1996)]
continuity of his service for the full term for (2) Special – one held to fill a vacancy in office
which he was elected before the expiration of the full term for
which the incumbent was elected.
B. TERM OF OFFICE OF BARANGAY (3) Plebiscite – a vote of the people expressing
their choice for or against a proposed law or
AND SANGGUNIANG KABATAAN
enactment submitted to them. The term is
OFFICIALS applied to an election at which any
[Sec. 2, RA 9164] proposed amendment to, or revision of, the
Constitution is submitted to the people for
Term of office: 3 years ratification. It may also refer to an election
to secure the approval of the people directly
 No barangay elective official shall serve for affected before proposed changes affecting
more than 3 consecutive terms in the same LGUs may be implemented.
position (4) Referendum – submission of a law passed
 Reckoned from the 1994 barangay elections by the national or local legislative body to
 Voluntary renunciation of office for any the registered voters at an election called
length of time shall not be considered as an for the purpose for their ratification or
interruption rejection.
(5) Initiative – the power of the people to
XV. Suffrage propose amendments to the Constitution or
to propose and enact legislation through an
The right to vote in the election of officers election called for the purpose. [Sec. 3a,
chosen by the people and in determination of R.A. 6735]
questions submitted to the people.  Three systems of initiative:

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(a) Initiative on the Constitution – petition (1) Citizenship – Filipino citizen by birth or
proposing amendments to the naturalization.
Constitution.  Incumbent upon one who claims
(b) Initiative on statutes – petition Philippine citizenship to prove to the
proposing to enact a national satisfaction of the court that he is really
legislation. Filipino. Any doubt regarding
(c) Initiative on local legislation – petition citizenship must be resolved in favor of
proposing to enact a regional, the State. [Go v. Ramos (2009)]
provincial, city, municipal or barangay (2) Age – at least 18 at the time of the election
law, resolution or ordinance. (3) Residency
 The constitutional provision on people's (a) Resident of the Philippines for at least 1
initiative to amend the Constitution can year and
only be implemented by law to be (b) Resident of the place wherein they
passed by Congress. No such law has propose to vote for at least 6 months
been passed. R.A. No. 6735 is immediately preceding the election
incomplete, inadequate, or wanting in  Any person who temporarily resides in
essential terms and conditions insofar another city, municipality or country solely
as initiative on amendments to the by reason of his:
Constitution is concerned. Note: Section (i) Employment in private or public
2 of Art. XVII Constitution is limited to service
proposals to AMEND — not to REVISE — (ii) Educational activities
the Constitution. [Santiago v. COMELEC (iii) Work in the military or naval
(1997)] reservations within the Philippines
 Recall: the termination of official (iv) Service in the AFP, PNP or
relationship of a local elective official for (v) Confinement or detention in
loss of confidence prior to the expiration government institutions in
of his term through the will of the accordance with law shall not be
electorate. deemed to have lost his original
residence [Sec. 9, R.A. 8189, Voter’s
C. ELECTION PERIOD Registration Act of 1996]
Unless otherwise fixed by the COMELEC in  It is not necessary that a person should
special cases, the election period shall have a house in order to establish his
commence 90 days before the day of the residence or domicile in a municipality. It
election and shall end 30 days thereafter. [Art. is enough that he should live there,
IX-C, Sec. 9, Const.] provided that his stay is accompanied by
his intention to reside therein
permanently. [Marcos v. COMELEC (1995)]
XVI. Qualification and  In election cases, the Court treats
Disqualification of Voters domicile and residence as synonymous
terms. Both import not only an intention
to reside in a fixed place but also personal
A. QUALIFICATIONS presence in that place, coupled with
[Art. V, Sec. 1, 1987 Const.] conduct indicative of such intention.
[Pundaodaya v. COMELEC (2009)]

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 There is nothing wrong in an individual B. OVERSEAS ABSENTEE VOTER


changing residences so he could run for
an elective post, for as long as he is able B.1. QUALIFICATIONS
to prove that he has effected a change of (1) All Filipino citizens abroad
residence for the period required by law. (2) Not otherwise disqualified by law
[Aquino v. COMELEC (1995)] (3) At least 18 years of age on the day of
(4) Not otherwise disqualified by law – these are elections [Sec. 3 (f), R.A. 9189]
the three grounds for disqualification to
register as a voter under Sec. 11, R.A. 8189,
B.2. DISQUALIFICATIONS
Voter’s Registration Act of 1996:
(1) Have lost their Filipino citizenship in
(a) Sentenced by final judgment to suffer
accordance with Philippine laws
imprisonment for not less than 1 year
(2) Have expressly renounced their Philippine
(unless granted a plenary pardon or an
citizenship and who have pledged
amnesty) shall automatically reacquire
allegiance to a foreign country
right to vote upon the expiration of 5
(3) Have committed and are convicted in a final
years after the service of sentence.
judgment by a court or tribunal of an
(b) Adjudged by final judgment for having
offense punishable by imprisonment of not
committed any crime involving
less than 1 year, including those who have
disloyalty to the duly constituted
committed and been found guilty of
government (e.g. rebellion, sedition,
Disloyalty as defined under Article 137 of the
violation of the firearms law) or any
RPC
crime against national security (unless
(4) Immigrant or a permanent resident who is
restored to full civil and political rights
recognized as such in the host country
in accordance with law) shall
unless he/she executes, upon registration,
automatically reacquire the right to vote
an affidavit prepared for the purpose by the
upon the expiration of 5 years after the
Commission declaring that:
service of sentence
(a) He/she shall resume actual physical
(5) Insane or incompetent persons as declared
permanent residence in the
by competent authority
Philippines not later than 3 years
from approval of his/her
Registered voter – in order that a qualified
registration and
elector may vote in any election, plebiscite or
(b) He/she has not applied for
referendum, he must be registered in the
citizenship in another country
Permanent List of Voters for the city or
 Effect of failure to return: cause for the
municipality in which he resides. [Sec. 115, B.P.
removal of his/her name from the
881]
National Registry of Absentee Voters
and his/her permanent disqualification
No literacy, property or other substantive
to vote in absentia.
requirement shall be imposed on the exercise of
(5) Previously declared insane or incompetent
suffrage. [Art. V, Sec. 1, Const.]
by competent authority in the Philippines or
abroad, as verified by the Philippine
embassies, consulates or Foreign Service
establishments concerned. [Sec. 5, R.A.
9189]

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XVII. Registration of only if the same cannot be reasonably held


within the period provided by law. There is no
Voters ground to hold that the mandate of
continuing voter registration cannot be
reasonably held within the period provided by
A. DEFINITION Sec. 8 of R.A. 8189. [Palatino v. COMELEC
(2009)]
Registration of voters – act of accomplishing
and filing of a sworn application for registration In Akbayan-Youth vs. COMELEC (2001),
by a qualified voter before the election officer of petitioners filed their petition with the Court
the city or municipality wherein he resides and and sought the conduct of a two-day
including the same in the book of registered registration all within the 120-day prohibitive
voters upon approval by the Election period. In this case, both the dates of filing of
Registration Board. [Sec. 3a, R.A. 8189] the petition and the extension sought were prior
to the 120-day prohibitive period.
Registration does not confer the right to vote
but it is a condition precedent to the exercise of B.2. ILLITERATE OR DISABLED VOTERS
the right [Yra v. Abano (1928)] Illiterate person – may register with the
assistance of the Election Officer or any
B. SYSTEM OF CONTINUING member of an accredited citizen’s arms
REGISTRATION OF VOTERS
Physically disabled person – application for
registration may be prepared by:
The personal filing of application of registration
(1) Any relative within the 4th civil degree of
of voters shall be conducted daily in the office of
consanguinity or affinity or
the Election Officer during regular office hours.
(2) By the Election Officer or
(3) Any member of an accredited citizen’s arm
B.1. PERIOD OF REGISTRATION [Sec. 14, R.A. 8189]
No registration shall be conducted within
(1) 120 days before a regular election Disabled Voter – a person with impaired
(2) 90 days before a special election [Sec. 8, capacity to use the Automated Election System
R.A. 8189] (AES) [Sec. 2(11), RA 9369 The Poll Automation
Law]
COMELEC Resolution 8585, which set the
deadline for voter registration to Oct. 31, 2009
B.3. ELECTION REGISTRATION BOARD
(election was May 10, 2010—more than 120
There shall be in each city and municipality as
days), was declared null and void because Sec.
many Election Registration Boards as there are
8 of RA 8189 has determined that the period of
election officers therein [Sec. 15, RA 8189]
120 days before a regular election and 90 days
before a special election is enough time for the
i. COMPOSITION
COMELEC to make all the necessary
(1) Chairman: Election Officer
preparations with respect to the coming
If disqualified, COMELEC shall designate an
elections.
acting Election Officer
COMELEC is granted the power to fix other
(2) Members:
periods and dates for pre-election activities
(a) Public school official most senior in rank

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(b) Local civil registrar, or in his absence, III. WHEN FILED


the city or municipal treasurer. Must be filed not later than the 2nd Monday of
If neither are available, any other the month in which the same is scheduled to be
appointive civil service official from the heard or processed by the ERB.
same locality as designated by the Should 2nd Monday fall on a non-working
COMELEC. holiday, filing may be made on the next
following working day [Sec. 18, R.A. 8189]
ii. DISQUALIFICATION
Relation to each other or to any incumbent city IV. HEARING
or municipal elective official within the 4th civil 3rd Monday of the month
degree of consanguinity or affinity. [Sec. 15, R.A.
8189] V. DECISION
Before the end of the month
B.4. CHANGE OF RESIDENCE OR
ADDRESS C. REMEDY IN CASE OF
i. Change of residence to another city or APPROVAL/DISAPPROVAL OF
municipality APPLICATION FOR REGISTRATION
The registered voter may apply with the Election
Officer of his new residence for the transfer of
Aggrieved party may file a petition for exclusion
his registration records. [Sec. 12, R.A. 8189]
or inclusion, as the case may be, with the MTC.
ii. Change of address in the same
D. DEACTIVATION OF REGISTRATION
municipality or city
Voter shall immediately notify the Election
Officer in writing. [Sec. 13, R.A. 8189] D.1. DEFINITION
Deactivation – process of deactivating the
B.5. CHALLENGES TO RIGHT TO registration of certain persons, removing their
REGISTER registration records from the corresponding
precinct book of voters and placing the same in
i. WHO MAY CHALLENGE APPLICATION
the inactive file, properly marked “deactivated”
FOR REGISTRATION
and dated in indelible ink.
Any voter, candidate or representative of a
registered political party.
D.2. CAUSES OF DEACTIVATION
The board shall remove the registration records
ii. FORM
of the following persons from the corresponding
(1) In writing
precinct book of voters and place the same in
(2) State the grounds therefor
the inactive file:
(3) Under oath and
(4) Attached to the application, together with
(1) Sentenced by final judgment to suffer
the proof of notice of hearing to the
imprisonment for not less than 1 year (unless
challenger and the applicant
granted a plenary pardon or an amnesty)
shall automatically reacquire right to vote
upon the expiration of 5 years after the
service of sentence as certified by clerks of
courts

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(2) Adjudged by final judgment for having E. CERTIFIED LIST OF VOTERS


committed any crime involving disloyalty to
the duly constituted government (e.g.
E.1. DEFINITIONS
rebellion, sedition, violation of the firearms
List of Voters – refers to an enumeration of
law) or any crime against national security
names of registered voters in a precinct duly
(unless restored to full civil and political
certified by the Election Registration Board for
rights in accordance with law) shall
use in the election
automatically reacquire the right to vote
upon the expiration of 5 years after the
Preparation – The ERB shall prepare and post a
service of sentence
certified list of voters 90 days before a regular
(3) Insane or incompetent persons as declared
election and 60 days before a special election.
by competent authority
[Sec. 30, R.A. 8189]
(4) Did not vote in the 2 successive preceding
regular elections (excluding SK elections)
Posting – copies of the certified list along with a
(5) Registration has been ordered excluded by
certified list of deactivated voters categorized by
the Court and
precinct per barangay, within the same period
(6) Lost his Filipino citizenship. [Sec. 27, R.A.
shall be posted in the office of the Election
8189]
Officer and in the bulletin board of each
city/municipal hall. Upon payment of the fees
D.3. REACTIVATION OF REGISTRATION as fixed by the Commission, the candidates and
Any voter whose registration has been heads shall also be furnished copes thereof
deactivated may file with the Election Officer a [Sec.30, RA 8189]
sworn application for reactivation of his
registration in the form of an affidavit stating
E.2. GROUNDS WHEN LIST OF VOTERS
that the grounds for the deactivation no longer
WILL BE ALTERED
exist.
(1) Deactivation/Reactivation
(2) Exclusion/Inclusion
Filing is any time not later than 120 days before
(3) Cancellation of Registration in case of death
a regular election and 90 days before a special
(4) New voters
election. [Sec. 28, R.A. 8189]
(5) Annulment of Book of Voters
(6) Transfer of Residence
The Election Officer shall submit said
application to the ERB and if approved, the
The precinct assignment of a voter in the
Election Officer shall retrieve the registration
permanent list of voters shall not be
record from the inactive file and include the
changed/altered/transferred to another
same in the corresponding precinct book of
precinct without the express written consent of
voters
the voter. Provided, however, that the voter
shall not unreasonably withhold such consent.
Local heads or representatives of political
Any violation thereof shall constitute an
parties shall be properly notified on approved
election offense. [Sec. 4, R.A. 8189]
applications

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F.4. NATIONAL REGISTRY OF OVERSEAS


E.3. ANNULMENT OF BOOK OF VOTERS ABSENTEE VOTERS
The COMELEC shall, upon verified petition of I. DEFINITION
any voter or election officer or duly registered Registry – the consolidated list prepared,
political party, and after notice and hearing, approved and maintained by the COMELEC, of
annul any book of voters that is: overseas absentee voters whose applications for
(1) Not prepared in accordance with R.A. 8189 registration as absentee voters, including those
or the Voters’ Registration Act of 1996 registered voters who have applied to be
(2) Prepared through fraud, bribery, forgery, certified as absentee voters, have been
impersonation, intimidation, force, or any approved by the Election Registered Board. [Sec.
similar irregularity 3 (e), R.A. 9189]
(3) Contains data that are statistically
improbable II. GROUNDS FOR
CANCELLATION/AMENDMENT OF
No order, ruling or decision annulling a book of
ENTRIES IN THE REGISTRY
voters shall be executed within 90 days before
(1) When the overseas absentee voter files a
an election. [Sec. 39, R.A. 8189]
letter under oath addressed to the Comelec
that he/she wishes to be removed from the
F. OVERSEAS ABSENTEE VOTER Registry of Overseas Absentee Voters, or
F.1. DEFINITIONS that his/her name be transferred to the
Absentee Voting – process by which qualified regular registry of voters.
citizens of the Philippines abroad exercise their (2) When an overseas absentee voter’s name
right to vote. [Sec. 3a, R.A. 9189, The Overseas was ordered removed by the Comelec from
Absentee Voting Act] the Registry of Overseas Absentee Voters
for his/her failure to exercise his/her right
Overseas Absentee Voter – citizen of the to vote under R.A. 9189 for 2 consecutive
Philippines who is qualified to register and vote national elections. [Sec. 9, R.A. 9189]
under this Act, not otherwise disqualified by law,
who is abroad on the day of elections. [Sec. 3 (f),
R.A. 9189]

F.2. COVERAGE
Elections for president, vice-president, senators
and party-list representatives [Sec. 3f, R.A. 9189]

F.3. PERSONAL OVERSEAS ABSENTEE


REGISTRATION
Registration as an overseas absentee voter shall
be done in person. [Sec.5, R.A. 9189]

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XVIII. Inclusion and Who may file


(1) One whose Any registered voter,
Exclusion Proceedings application for representative of a
A. JURISDICTION IN INCLUSION AND registration has been political party or the
disapproved by the BEI Election Officer
EXCLUSION CASE
or
The Municipal and Metropolitan Trial Courts
(2) One whose name
shall have original and exclusive jurisdiction
has been stricken out
over all cases of inclusion and exclusion of
from the list
voters in their respective cities or municipalities.
[Sec. 33, R.A. 8189] Period to decide
Within 15 days after its Within 10 days from its
B. APPEAL filing filing
Decisions of the MTC or MeTC may be appealed
by the aggrieved party to the RTC within 5 days D. OVERSEAS ABSENTEE VOTER
from receipt of notice thereof. No motion for
Petition for Inclusion Petition for Exclusion
reconsideration shall be entertained. [Sec. 33,
[Sec. 6.7, RA 9189] [Sec. 6.6, RA 9189]
R.A. 8189]
When to file
Except for the right to remain in the list of voters 5 days after receipt of Any time not later than
or for being excluded therefrom for the notice of disapproval 210 days before the day
particular election in relation to which the of the elections
proceedings had been held, a decision in an
Who may file
exclusion or inclusion proceeding, even if final
and unappealable, does not acquire the nature Applicant or his Any interested person
of res judicata. [Domino v. COMELEC (1999)] authorized
representative
The trial court has no power to order the change Period to decide
or transfer of registration from one place of
5 days after its filing 15 days after its filing
residence to another for it is the function of the
election Registration Board as provided under
Section 12 of R.A. No. 8189. [Domino v.
COMELEC, supra]

C. PROCESS

Petition for Inclusion Petition for Exclusion


When to file
Any time except 105 Any time except 100
days before a regular days before a regular
election or 75 days election or 65 days
before a special before a special
election election

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XIX. Political Parties (3) Sectoral party – organized group of citizens


belonging to any of the following sectors:
A. PARTY SYSTEM labor, peasant, fisherfolk, urban poor,
Sec. 6, Art. IX-C, Const. A free and open party indigenous cultural communities, elderly,
system shall be allowed to evolve according to handicapped, women, youth, veterans,
the free choice of the people. overseas workers and professionals whose
principal advocacy pertains to the special
Sec. 7, Art. IX-C, Const. No votes cast in favor of interests and concerns of their sector.
a political party, organization, coalition shall
be valid, except for those registered under the Sectoral organization – group of citizens or a
party-list system. coalition of groups of citizens who share similar
physical attributes or characteristics,
B. JURISDICTION OF THE COMELEC employment, interests or concerns.
OVER POLITICAL PARTIES
Coalition – an aggrupation of duly registered
national, regional, sectoral parties or
C. DEFINITIONS organizations for political and/or election
Party – either a political party or a sectoral party purposes. [Sec. 3, R.A. 7941, Party-List System
or a coalition of parties [Sec. 3(b), RA 7941,
Act]
Party-List System Act]
D. PURPOSE
Party-list system - Mechanism of proportional
representation in the election of representatives
Sec. 2, R.A. 7941. To enable Filipino citizens
to the House of Representatives from national,
belonging to marginalized and
regional and sectoral parties or organizations or
underrepresented sectors, organizations and
coalitions registered with the COMELEC. [Sec.
parties, and who lack well-defined political
3(a), RA 7941]
constituencies but who could contribute to the
formulation and enactment of appropriate
Political party
legislation that will benefit the nation as a
An organized group of citizens advocating an
whole, to become members of the House of
ideology or platform, principles and policies for
Representatives.
the general conduct of government and which,
as the most immediate means of securing their
adoption, regularly nominates certain of its
leaders and members as candidates for public
office. [Sec. 60, BP 881 and Sec. 3(c) of RA 7941]

 3 kinds of parties:
(1) National party – constituency is spread over
the geographical territory of at least a
majority of the regions.
(2) Regional party – constituency is spread over
the geographical territory of at least a
majority of the cities and provinces
comprising the region.

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E. REGISTRATION (4) Those supported by foreign governments


Any organized group of persons may register as [Art. IX-C, Sec. 2 (5), Constitution]
a party, organization or coalition for purposes of
the party-list system. E.3. PURPOSE OF REGISTRATION
(1) To acquire juridical personality
E.1. PROCEDURE FOR REGISTRATION (2) To entitle it to rights and privileges granted
to political parties
Sec. 5, R.A. 7941 (3) To participate in the party-list system

E.4. GROUNDS FOR


File with the COMELEC not later than 90 REFUSAL/CANCELLATION OF
days before the election a petition verified REGISTRATION
by its president or secretary stating its The COMELEC may, motu proprio or upon
desire to participate in the party-list verified complaint of any interested party,
system as a national, regional or sectoral refuse or cancel, after due notice and hearing,
party or organization or a coalition of such the registration of any national, regional or
parties or organizations attaching thereto sectoral party, organization or coalition on any
its constitution, by-laws, platform or of the following grounds:
program of government, list of officers, (1) Religious sect or denomination,
coalition agreement and other relevant organization or association, organized for
information as the COMELEC may require religious purposes
(2) Advocates violence or unlawful means to
seek its goal
(3) Foreign party or organization
COMELEC shall publish the petition in at (4) Receives support from any foreign
least 2 national newspapers of general government, foreign political party,
circulation foundation, organization, whether directly
or through any of its officers or members or
indirectly through third parties for partisan
COMELEC shall, after due notice and election purposes
hearing, resolve the petition within 15 days (5) Violates or fails to comply with laws, rules
from the date it was submitted for decision or regulations relating to elections
but in no case not later than 60 days before (6) Declares untruthful statements in its
election petition
(7) Ceased to exist for at least 1 year
(8) Fails to participate in the last 2 preceding
elections or
E.2. GROUPS WHICH CANNOT BE (9) Fails to obtain at least 2% of the votes cast
REGISTERED AS POLITICAL PARTIES under the party-list system in the 2
(1) Religious denominations and sects preceding elections for the constituency in
(2) Those which seek to achieve their goals which it has registered [Sec. 6, R.A. 7941]
through violence or unlawful means
(3) Those which refuse to uphold and adhere to
the Constitution

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E.5. CERTIFIED LIST OF REGISTERED E.7. QUALIFICATIONS OF PARTY LIST


PARTIES REPRESENTATIVES
Sec. 7, RA 7941. COMELEC shall prepare a (1) Natural-born citizen of the Philippines
certified list of national, regional, or sectoral (2) Registered voter
parties, organizations or coalitions which have (3) Resident of the Philippines for a period of
applied or who have manifested their desire to not less than 1 year immediately preceding
participate under the party-list system the day of the election
(4) Able to read and write
COMELEC must prepare the list not later than (5) Bona fide member of the party or
60 days before election. organization which he seeks to represent for
at least 90 days preceding the day of the
Names of party-list nominees shall not be election
shown on the certified list. (6) At least 25 years old on the day of the
election
E.6. NOMINATION OF PARTY-LIST
REPRESENTATIVES E.8. PARAMETERS IN ALLOCATION OF
Each registered party, organization or coalition SEATS FOR PARTY-LIST
shall submit to the COMELEC not later than 45 REPRESENTATIVES
days before the election a list of names, not less i. 20% ALLOCATION
than 5, from which party-list representatives The combined number of all party-list
shall be chosen in case it obtains the required congressmen shall not exceed 20% of the total
number of votes. membership of the House of Representatives,
including those elected under the party-list.
A person may be nominated: Number available to x 20 = Number of
(1) in 1 list only party-list seats
(2) if he/she has given his/her consent in representatives available to
writing actually obtained, is party-list
(3) is not a candidate for any elective office or entitled to a representatives
(4) has not lost his bid for an elective office in maximum of 3
the immediately preceding election seats; one
qualifying and of
No change of names or alteration shall be seats available to
allowed after the same shall have been legislative districts
submitted to the COMELEC except when: .80
(1) the nominee dies
(2) withdraws his nomination ii. 2% THRESHOLD
(3) becomes incapacitated Only those parties garnering a minimum of 2%
of the total votes cast for the party-list system
Sec. 8, RA 7941. Incumbent sectoral shall be entitled to one guaranteed seat each.
representatives in the House of
Representatives who are nominated shall not iii. PROPORTIONAL REPRESENTATION
be considered resigned
The additional seats shall be computed in
“proportion to their total number of votes.”

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iv. 3-SEAT LIMIT E.9. GUIDELINES AS TO WHO MAY


Each party, regardless of the number of votes it PARTICIPATE IN THE PARTY-LIST
actually obtained, is entitled to a maximum of 3 ELECTIONS
seats; one qualifying and 2 additional seats. [Atong Paglaum v. COMELEC, (2013)]
 In computing the allocation of additional
seats, the continued operation of the 2% (1) Three different groups may participate in
threshold for the distribution of the additional the party-list system: (1) national parties or
seats as found in the second clause of Sec. organizations, (2) regional parties or
11(b) of R.A. 7941 which provides that “those organizations, and (3) sectoral parties or
garnering more than 2% of the votes shall be organizations.
entitled to additional seats in proportion to (2) National parties or organizations and
their total number of votes” is regional parties or organizations do not
unconstitutional. The 2% threshold frustrates need to organize along sectoral lines and do
the attainment of the permissive ceiling that not need to represent any “marginalized
20% of the members of the HR shall consist and underrepresented” sector.
of party-list representatives. [Banat vs. (3) Political parties can participate in party-list
COMELEC (2009)] elections provided they register under the
 There are 2 steps in the second round of seat party-list system and do not field
allocation: candidates in legislative district elections. A
(1) The percentage of votes garnered by each political party, whether major or not, that
party-list candidate is multiplied by the fields candidates in legislative district
remaining available seats. The whole elections can participate in party-list
integer of the product corresponds to a elections only through its sectoral wing that
party’s share in the remaining available can separately register under the party-list
seats system. The sectoral wing is by itself an
Formula for remaining available seats independent sectoral party, and is linked to
No. of seats available to x Guaranteed a political party through a coalition.
party-list representatives seats of the (4) Sectoral parties or organizations may either
two-percenters be “marginalized and underrepresented” or
Formula for percentage of votes garnered by each lacking in “well-defined political
party-list candidate constituencies.” It is enough that their
No. of votes garnered by ÷ Total no. of principal advocacy pertains to the special
each party votes cast for interest and concerns of their sector. The
party-list sectors that are “marginalized and
candidates underrepresented” include labor, peasant,
fisherfolk, urban poor, indigenous cultural
(2) Assign one party-list seat to each of the communities, handicapped, veterans, and
parties next in rank until all available overseas workers. The sectors that lack
seats are completely distributed. “well-defined political constituencies”
include professionals, the elderly, women,
and the youth.
(5) A majority of the members of sectoral
parties or organizations that represent the
“marginalized and underrepresented” must
belong to the “marginalized and

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underrepresented” sector they represent.


Similarly, a majority of the members of
XX. Candidacy
sectoral parties or organizations that lack A. QUALIFICATIONS OF CANDIDATES
“well-defined political constituencies” must Candidate – any person who files his certificate
belong to the sector they represent. The of candidacy within prescribed period shall only
nominees of sectoral parties or be considered as a candidate at the start of the
organizations that represent the campaign period for which he filed his
“marginalized and underrepresented,” or certificate of candidacy. [Sec. 15, R.A. 9369]
that represent those who lack “well-defined
political constituencies,” either must belong Sec. 15, R.A. 9369. Unlawful acts or omissions
to their respective sectors, or must have a applicable to a candidate shall take effect only
track record of advocacy for their respective upon the start of the aforesaid campaign
sectors. The nominees of national and period.
regional parties or organizations must be
bona-fide members of such parties or Any registered national, regional, or sectoral
organizations. party, organization or coalition thereof that has
(6) National, regional, and sectoral parties or filed a manifestation to participate under the
organizations shall not be disqualified if party-list system which has not withdrawn or
some of their nominees are disqualified, which has not been disqualified before the start
provided that they have at least one of the campaign period. [COMELEC Res. 8758,
nominee who remains qualified. Feb. 4, 2010]

E.10. EFFECT OF UNIMPLEMENTED A.1. QUALIFICATIONS


TERM-SHARING AGREEMENT Qualifications prescribed by law are continuing
The fact that the nominees of a party to the requirements and must be possessed for the
party-list elections entered in a term-sharing duration of the officer's active tenure [Frivaldo v.
agreement is not a sufficient ground for the COMELEC (1989); Labo v. COMELEC (1989)].
cancellation of the party’s registration and
accreditation if such agreement was not See Qualifications under Public Officers.
implemented. [Senior Citizens’ Party-List v.
COMELEC (2013)] A.2. DISQUALIFICATIONS
I. UNDER THE OMNIBUS ELECTION CODE
E.11. EFFECT OF CHANGE OF AFFILIATION (1) Declared incompetent or insane by
Any elected party-list representative who competent authority [Sec. 12]
changes his political party or sectoral affiliation: (2) Permanent resident of or an immigrant to a
(1) during his term of office shall forfeit his seat foreign country unless he has waived such
(2) Within 6 months before an election shall status [Sec. 68]
not be eligible for nomination as party-list (3) Sentenced by final judgment for:
representative under his new party or (a) Subversion, insurrection, rebellion
organization [Sec. 15, R.A. 7941] (b) Any offense for which he has been
sentenced to a penalty of more than 18
months imprisonment
(c) A crime involving moral turpitude [Sec.
12]

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(4) Given money or other material any political party within the polling place
consideration to influence, induce or corrupt or within a 30m radius [Sec. 261.cc.6]
voters or public officials performing
electoral functions II. UNDER SECTION 40 OF THE LGC
(5) Committed acts of terrorism to enhance his (1) Sentenced by final judgment for an offense
candidacy punishable by at least 1 year imprisonment
(6) Spent in his election campaign an amount within 2 years after serving sentence
in excess of that allowed  The phrase “within 2 years after serving
(7) Solicited, received or made prohibited sentence” applies both to (1) those who
contributions [Sec. 68] have been sentenced by final judgment
(8) Engaged in election campaign or partisan for an offense involving moral turpitude
political activity outside the campaign and (2) those who have been sentenced
period and not pursuant to a political party by final judgment for an offense
nomination [Sec. 80] punishable by one year or more of
(9) Removed, destroyed, defaced lawful imprisonment
election propaganda [Sec. 83]  Those who have not served their sentence
(10) Engaged in prohibited forms of election by reason of the grant of probation should
propaganda [Sec. 85] not be disqualified from running for a
(11) Violated election rules and regulations on local elective office because the 2-year
election propaganda through mass media period of ineligibility does not even begin
[Sec. 86] to run [Moreno v. COMELEC (2006)]
(12) Coerced, intimidated, compelled, or (2) Removed from office as a result of an
influenced any of his subordinates, administrative case
members, or employees to aid, campaign or  This disqualification does not retroactively
vote for or against any candidate or aspirant apply to those who were removed from
for the nomination or selection of office as a result of an administrative case
candidates [Sec. 261.d] before the effectivity of the LGC. [Grego v.
(13) Threatened, intimidated, caused, inflicted COMELEC (1997)]
or produced any violence, injury, (3) Convicted by final judgment for violating
punishment, damage, loss or disadvantage the oath of allegiance to the Republic of the
upon any person or of the immediate Philippines
members of his family, his honor or (4) Dual citizenship
property, or used fraud to compel, induce or
 Dual citizenship as a disqualification must
prevent the registration of any voter, or the
refer to citizens with dual allegiance. For
participation in any campaign, or the
candidates with mere dual citizenship, the
casting of any vote, or any promise of such
filing of certificate of candidacy is
registration, campaign, vote, or omission
considered as an election of Filipino
therefrom [Sec. 261.e]
citizenship and renunciation of foreign
(14) Unlawful electioneering [Sec. 261.k]
citizenship. [Mercado v. Manzano (1999)]
(15) Violated the prohibition against release,
 For a natural born Filipino, who
disbursement or expenditure of public funds
reacquired or retained his Philippine
45 days before a regular election or 30 days
citizenship under RA 9225, to run for
before a special election [Sec. 261.v]
public office, he must: (1) meet the
(16) Solicited votes or undertook propaganda on
qualifications for holding such public
election day for or against any candidate or
office as required by the Constitution and

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existing laws; and (2) make a personal (5) Fugitive from justice in criminal and non-
and sworn renunciation of any and all political cases here and abroad. “Fugitive
foreign citizenships before any public from justice” includes
officer authorized to administer oath. (a) those who flee after conviction to avoid
[Japzon v. COMELEC (2009)] punishment and
 With respect to a person with dual (b) those who, after being charged, flee to
allegiance, candidate’s oath of allegiance avoid prosecution. This presupposes
to the Republic of the Philippines and his knowledge by the fleeing subject of
Certificate of Candidacy do not either an already instituted indictment
substantially comply with the requirement or of a promulgated judgment of
of a personal and sworn renunciation of conviction. [Rodriquez v. COMELEC
foreign citizenship. (1996)]
Section 5(2) of R.A. No. (6) Insane or feeble-minded
9225 compels natural-born Filipinos, who
have been naturalized as citizens of a B. FILING OF CERTIFICATES OF
foreign country, but who reacquired or CANDIDACY
retained their Philippine citizenship (1) to
take the oath of allegiance under Section 3 Sec. 73, B.P. 881.No person shall be eligible for
of Republic Act No. 9225, and (2) for those any elective public office unless he files a
seeking elective public offices in the sworn certificate of candidacy within the period
Philippines, to additionally execute fixed herein.
a personal and sworn renunciation of any
and all foreign citizenship before an The certificate of candidacy shall be filed by the
authorized public officer prior or candidate personally or by his duly authorized
simultaneous to the filing of their representative.
certificates of candidacy, to qualify as
candidates in Philippine elections. [Jacot
 When: Any day from the commencement of
vs. Dal (2008); De Guzman v. COMELEC
the election period but not later than the day
(2009)]
before the beginning of the campaign period.
 Based on jurisprudence, the mere filing of
certificate of candidacy is a sufficient form In cases of postponement or failure of election,
of renunciation for dual citizens but not no additional certificate of candidacy shall be
for those with dual allegiance who accepted except in cases of substitution of
reacquired/retained Filipino citizenship candidates. [Sec. 75, B.P. 881]
under RA 9225.
 While the act of using a foreign passport  Filing of 2 certificates of candidacy
is not one of the acts constituting (1) No person shall be eligible for more than
renunciation and loss of Philippine one office to be filled in the same election.
citizenship, it is nevertheless an act which (2) If he files a certificate of candidacy for more
repudiates the very oath of renunciation than one office he shall not be eligible for
required for a former Filipino citizen who either.
is also a citizen of another country to be (3) Before the expiration of the period for the
qualified to run for a local elective filing of certificates of candidacy, the person
position. [Maquiling v. COMELEC, G.R.
195649, April 16, 2013]

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who has filed more than one certificate of B.2. SUBSTITUTION OF CANDIDATES
candidacy, may - If after the last day for filing of the certificates of
(a) declare under oath the office for which candidacy, an official candidate of a registered
he desires to be eligible and political party dies, withdraws or is disqualified
(b) cancel the certificate of candidacy for for any cause, he may be substituted by a
the other office/s [Sec. 73, B.P. 881] candidate belonging to and nominated by the
same political party.
B.1. EFFECT OF FILING
(1) Any person holding a public appointive No substitute shall be allowed for any
office or position including active members independent candidate. [Recabo, Jr. v. COMELEC
of the AFP, and other officers and (1999)]
employees in GOCCs, shall be considered
ipso facto resigned from his office upon the The substitute must file his certificate of
filing of his certificate of candidacy. [Sec. candidacy not later than mid-day of the election
66(1), B.P. 881] day
 Applies to employees of GOCCs without
an original charter [PNOC Energy Devt. If the death, withdrawal or disqualification
Corp. v. NLRC (1993)] should happen between the day before the
(2) Any person holding an elective office or election and mid-day of the election day,
position shall not be considered resigned certificate may be filed with:
upon the filing of his certificate of candidacy (1) any Board of Election Inspectors in the
for the same or any other elective office or political subdivision where he is a
position. [Sec. 4, Comelec Resolution No. candidate or
8678, Guidelines on the Filing of Certificates (2) with the COMELEC if it is a national
of Candidacy and Nomination of Official position [Sec. 77, B.P. 881]
Candidates of Registered Political Parties in
Connection with the May 10, 2010 National For there to be a valid substitution of a
and Local Elections] candidate, the latter must have filed a valid
 SC upheld the validity of the COMELEC certificate of candidacy.
Resolution in Quinto v. COMELEC A person who is disqualified under Sec. 68
 Sec. 67, B.P. 811, which deemed elective OEC is only prohibited from continuing as a
officials automatically resigned from candidate but his CoC remains valid. He may
office upon filing of their certificate of therefore be substituted.
candidacy was repealed by Sec. 14 R.A A person whose CoC is cancelled or denied
9006, Fair Election Act. This means that due course under Sec. 78 for false material
such elective official is no longer deemed representation is considered to have a CoC
resigned when he files his CoC for any that is void ab initio. Thus, he cannot be
position validly substituted. [Talaga v. COMELEC,
(2012)]

Sec. 74 requires the candidate to state under


oath in his CoC “that he is eligible for the said
office”. Therefore, as long as a person who filed
his CoC is suffering from an ineligibility at the
time of filing, he commits false material

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representation sufficient to make his CoC void from running for public office. [Jalosjos v.
ab initio. COMELEC,(2012)]
It is not necessary that the subject of
ineligibility be one of those specifically B.4. NUISANCE CANDIDATES
enumerated under Sec. 74. Petition to declare a duly registered candidate as
 Examples: a nuisance candidate
(1) Ineligibility by reason of perpetual special [Sec. 5, R.A. 6646]
disqualification imposed as a penalty for a
criminal offense [Jalosjos, Jr. v. COMELEC I. WHO MAY FILE
(2012)] Any registered candidate for the same office
(2) Ineligibility by reason of term limit [Talaga
v. COMELEC (2012)] II. WHEN TO FILE
Within 5 days from the last day for the filing of
B.3. MINISTERIAL DUTY OF COMELEC TO certificates of candidacy
RECEIVE CERTIFICATE
Duty of COMELEC [Sec. 76, B.P. 881] III. HOW TO FILE
General Rule: The COMELEC shall have the Personally or through duly authorized
ministerial duty to receive and acknowledge representative with the COMELEC
receipt of the certificates of candidacy provided
said certificates are: under oath and contain all IV. GROUNDS FOR FILING
the required data and in the form prescribed by Certificate of candidacy has been filed -
the Commission. (1) To put the election process in mockery or
disrepute or
The COMELEC has no discretion to give or not (2) To cause confusion among the voters by the
to give due course to a certificate of candidacy similarity of the names of the registered
filed in due form. While the COMELEC may look candidates or
into patent defects in the certificate, it may not (3) Clearly demonstrate that the candidate has
go into matters not appearing on their face. no bona fide intention to run for the office
[Abcede v. Imperial, (1958)] for which the certificate of candidacy has
been filed and thus prevent a faithful
Exception: COMELEC may go beyond the face of determination of the true will of the
the certificate of candidacy – electorate [Sec. 69, B.P. 881]
(1) Nuisance candidates
(2) Petition to deny due course to or cancel a V. NATURE OF PROCEEDING
certificate of candidacy Summary in nature

The Court also recently held that even without a B.5. PETITION TO DENY OR CANCEL
petition to deny course to or cancel a certificate
CERTIFICATES OF CANDIDACY
of candidacy, the COMELEC is under a legal
i. WHO MAY FILE
duty to cancel the CoC of anyone suffering from
Any person
the accessory penalty of perpetual special
disqualification to run for public office by virtue
of a final judgment of conviction. The final ii. WHEN:
judgment of conviction is notice to the Any time not later than 25 days from the time of
COMELEC of the disqualification of the convict the filing of the certificate of candidacy

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iii. EXCLUSIVE GROUND If a candidate is not declared by final judgment


Any material representation contained in the before any election to be disqualified and he is
certificate of candidacy is false. Provided that voted for and receives the winning number of
(1) the false representation pertains to material votes in such election, the Court or COMELEC
matter affecting substantive rights of a shall continue with the trial and hearing of the
candidate and action, inquiry, or protest and upon motion of
(2) the false representation must consist of the complainant or any intervenor, may during
deliberate attempt to mislead, misinform, the pendency thereof, order the suspension of
or hide a fact which would otherwise render the proclamation of such candidate whenever
a candidate ineligible [Salcedo II v. the evidence of his guilt is strong. [Sec. 6, R.A.
COMELEC (1999)] 6646]

iv. DECISION i. WHERE A SIMILAR


Shall be decided, after due notice and hearing, COMPLAINT/PETITION IS FILED:
not later than 15 days before the election. [Sec. (1) before the election and proclamation of the
78, B.P. 881] respondent and the case is not resolved
before the election - the trial and hearing of
The false representation must pertain to a the case shall continue and be referred to
material fact that affects the right of the the Law Department for preliminary
candidate to run for the election for which he investigation
filed his COC. Such material fact refers to a (2) after the election and before the
candidate’s eligibility or qualification for proclamation of the respondent - the trial
elective office like citizenship, residence or and hearing of the case shall be suspended
status as a registered voter. Aside from the and referred to the Law Department for
requirement of materiality, the false preliminary investigation
representation must consist of a deliberate
attempt to mislead, misinform, or hide a fact In either case, if the evidence of guilt is strong,
that would otherwise render a candidate the COMELEC may order the suspension of the
ineligible. In other words, it must be made with proclamation of respondent, and if proclaimed,
the intention to deceive the electorate as to the to suspend the effects of proclamation. [Sec. 4,
would-be candidate’s qualifications for public Resolution No. 8678]
office. [Salic Maruhom v. COMELEC (2009)]
ii. AS TO THE RIGHT OF SECOND-PLACER
Jurisdiction over a petition to cancel a certificate TO PROCLAMATION
of candidacy lies with the COMELEC in division General rule: A void certificate of candidacy on
and not with the COMELEC en banc [Garvida v. the ground of ineligibility that existed at the
Sales (1997)] time of filing of the CoC can never give rise to a
valid candidacy, and much less to valid votes.
Whether the CoC is cancelled before or after
B.6. EFFECT OF DISQUALIFICATION the election is immaterial because the
Any candidate who has been declared by final cancellation on such ground means he was
judgment to be disqualified – never a valid candidate from the very beginning,
(1) shall not be voted for and his CoC being void ab initio. Hence, in case that
(2) the votes cast for him shall not be counted person wins, the candidate receiving the next

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highest number of votes may take over and


assume the position.
XXI. Campaign
Election campaign or partisan political activity –
Exception: Decisions holding that the second- an act designed to promote the election or
placer cannot be proclaimed winner if the first- defeat of a particular candidate or candidates to
placer is disqualified or declared ineligible (see a public office. [Sec. 79, B.P. 881]
Labo, Jr. v. COMELEC (1992)) should be limited
to situations where the CoC of the first-placer Campaign includes:
was valid at the time of filing but subsequently (1) Forming organizations or groups of persons
had to be cancelled because of a violation of (2) Holding political caucuses, meetings, rallies
law that took place, or a legal impediment that or other similar assemblies
took effect, after the filing of the CoC. [Jalosjos v. (3) Making speeches or commentaries
COMELEC (2012)] (4) Publishing or distributing campaign
literature or materials for the purpose of
Exception to the Exception: A possible exception soliciting votes and/or undertaking any
to the Labo doctrine is predicated on the campaign or propaganda to support or
concurrence of two assumptions, namely: oppose the election of any candidate
(1) the one who obtained the highest number
of votes is disqualified; and Exclusions:
(2) the electorate is fully aware in fact and in (1) Acts performed for the purpose of
law of a candidate’s disqualification so as to enhancing the chances of aspirants for
bring such awareness within the realm of nomination for candidacy to a public office
notoriety but would nonetheless cast their by a political party, aggroupment, or
votes in favor of the ineligible candidate. coalition of parties.
(2) Public expressions of opinions or
In such a case, the second-placer may be discussions of probable issues in a
proclaimed. [Grego v. COMELEC (1997)] forthcoming election or on attributes or
criticisms of probable candidates proposed
B.7. WITHDRAWAL OF CANDIDATES to be nominated in a forthcoming political
A person who has filed a certificate of candidacy party convention. [Sec. 79, B.P. 881]
may, prior to the election, withdraw the same by
submitting to the office concerned a written Persons Prohibited from campaigning:
declaration under oath. (1) Members of the board of election
inspections [Sec. 173, B.P. 881]
Effect of filing or withdrawal of a certificate of (2) Civil service officers or employees [Art. IX-B,
candidacy Sec. 2 (4), Const.]
Filing shall not affect whatever civil, criminal or (3) Members of the military [Art. XVI, Sec. 5 (3),
administrative liabilities which a candidate may Const.]
have incurred. [Sec. 73, BP 881] (4) Foreigners, whether juridical or natural
persons.

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A. PREMATURE CAMPAIGNING A.2. CAMPAIGN PERIOD


General Rule: Any election campaign or partisan [Sec. 5, R.A. 7166]
political activity for or against any candidate
outside of the campaign period is prohibited i. FOR PRESIDENT, VICE-PRESIDENT AND
and shall be considered as an election offense. SENATORS
[Sec. 80, B.P. 881] 90 days before the day of the election.

Exception: Political parties may hold political ii. FOR MEMBERS OF THE HR AND
conventions to nominate their official ELECTIVE PROVINCIAL, CITY AND
candidates within 30 days before the start of MUNICIPAL OFFICIALS
the period for filing a certificate of candidacy. 45 days before the day of the election.
[Sec. 15, R.A. 9369]
A.3. EQUAL ACCESS TO MEDIA TIME AND
A.1. PROHIBITED CAMPAIGNING DAYS
SPACE
It is unlawful for any person to engage in an
Print advertisements shall not exceed 1/4 page,
election campaign or partisan political activity
in broad sheet and 1/2 page in tabloids thrice a
on:
week per newspaper, magazine or other
(1) Maundy Thursday
publications.
(2) Good Friday
(3) Eve of Election Day and
Bona fide candidates and registered political
(4) Election Day [Sec. 3, COMELEC Resolution
parties running for nationally elective office are
8758]
entitled to not more than 120 mins of TV
advertisement and 180 mins of radio
In Penera v. COMELEC, at the time the supposed
advertisement whether by purchase or by
premature campaigning took place, Penera was
donation.
not officially a “candidate” although she
already filed her certificate of candidacy. Under
Bona fide candidates and registered political
Section 15 of R.A. 9369, a person who files his
parties running for locally elective office are
certificate of candidacy is considered a
entitled to not more than 60 mins of TV
candidate only at the start of the campaign
advertisement and 90 mins of radio
period, and unlawful acts applicable to such
advertisement whether by purchase or by
candidate take effect only at the start of such
donation.
campaign period.
Broadcast stations or entities are required to
Thus, a candidate is liable for an election offense
submit copies of their broadcast logs and
only for acts done during the campaign period,
certificates of performance to the COMELEC for
not before. Before the start of the campaign
the review and verification of the frequency,
period, such election offenses cannot be
date, time and duration of advertisement
committed and any partisan political activity is
broadcast for any candidate or political party.
lawful. [Penera v. COMELEC (2009)]
All mass media entities are required to furnish
the COMELEC with a copy of all contracts for
advertising, promoting or opposing any political

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party or the candidacy of any person for public published 7 days before an election is
office within 5 days after its signing. unconstitutional because
(1) it imposes a prior restraint on the freedom
No franchise or permit to operate a radio or TV of expression,
station shall be granted or issued, suspended or (2) it is a direct and total suppression of a
cancelled during the election period. category of expression even though such
suppression is only for a limited period,
Any mass media columnist, commentator, and
announcer, reporter, on-air correspondent or (3) the governmental interest sought to be
personality who is a candidate for any elective promoted can be achieved by means
public office or is a campaign volunteer for or other than the suppression of the freedom
employed or retained in any capacity by any of expression. [Social Weather Stations,
candidate or political party shall: Inc. v. COMELEC (2001)]
(1) be deemed resigned, if so required by their
employer or Exit polls may only be taken subject to the
(2) take a leave of absence from his/her work as following requirements:
such during the campaign period (1) Pollsters shall not conduct their surveys
within 50m from the polling place,
No movie, cinematograph or documentary shall whether said survey is taken in a home,
be publicly exhibited in a theater, television dwelling place and other places
station or any public forum during the (2) Pollsters shall wear distinctive clothing
campaign period which: (3) Pollsters shall inform the voters that they
(1) Portrays the life or biography of a candidate may refuse to answer and
(2) Is portrayed by an actor or media personality (4) The result of the exit polls may be
who is himself a candidate. [Sec. 6, R.A. announced after the closing of the polls
9006] on election day and must clearly identify
the total number of respondents, and the
A.4. ELECTION SURVEYS places where they were taken. Said
Election surveys – the measurement of opinions announcement shall state that the same
and perceptions of the voters as regards a is unofficial and does not represent a
candidate's popularity, qualifications, platforms trend. [Sec. 5, R.A. 9006]
or a matter of public discussion in relation to
the election, including voters' preference for A.5. RALLIES, MEETINGS, OTHER
candidates or publicly discussed issues during POLITICAL ACTIVITY
the campaign period. APPLICATION FOR RALLIES, MEETINGS
AND OTHER POLITICAL ACTIVITY
Surveys affecting national candidates shall not
(1) All applications for permits must
be published 15 days before an election and
immediately be posted in a conspicuous
surveys affecting local candidates shall not be
place in the city or municipal building, and
published 7 days before an election
the receipt thereof acknowledged in writing.
(2) Applications must be acted upon in writing
Sec. 5.4 of RA 9006 providing that surveys
by local authorities concerned within 3 days
affecting national candidates shall not be
after their filing. If not acted upon within
published 15 days before an election and
said period, deemed approved.
surveys affecting local candidates shall not be

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(3) The only justifiable ground for denial of the B.2. PROHIBITED CONTRIBUTIONS
application is when a prior written (1) From Public or private financial institutions.
application by any candidate or political Unless:
party for the same purpose has been (a) The financial institutions are legally in
approved. the business of lending money
(4) Denial of any application for said permit is (b) The loan is made in accordance with
appealable to the provincial election laws and regulations AND
supervisor or to the COMELEC whose (c) The loan is made in the ordinary course
decision shall be made within 48 hours and of business
which shall be final and executory. [Sec. 87, (2) Natural and juridical persons operating a
B.P. 881] public utility or in possession of or
exploiting any natural resources of the
B. PROHIBITED CONTRIBUTIONS nation
(3) Natural and juridical persons who hold
contracts or sub-contracts to supply the
B.1. DEFINITIONS
government or any of its divisions,
Contribution – gift, donation, subscription, loan,
subdivisions or instrumentalities, with
advance or deposit of money or anything of
goods or services or to perform construction
value, or a contract, promise or agreement to
or other works
contribute
(4) Grantees of franchises, incentives,
(1) whether or not legally enforceable
exemptions, allocations or similar privileges
(2) made for influencing the results of the
or concessions by the government or any of
elections
its divisions, subdivisions or
(3) excludes services rendered without
instrumentalities, including GOCCs
compensation by individuals volunteering
(5) Grantees, within 1 year prior to the date of
their time in behalf of a candidate or
the election, of loans or other
political party
accommodations in excess of P100,000 by
(4) Includes the use of facilities voluntarily
the government or any of its divisions,
donated by other persons, the money value
subdivisions or instrumentalities including
of which can be assessed based on the rates
GOCCs
prevailing in the area. [Sec. 94, B.P. 881]
(6) Educational institutions which have
received grants of public funds amounting
Expenditures – payment of money or anything
to no less than P100,000
of value or a contract, promise or agreement to
(7) Officials or employees in the Civil Service, or
make an expenditure
members of the Armed Forces of the
(1) For the purpose of influencing the results of
Philippines
the election
(8) Foreigners and foreign corporations,
(2) Includes the use of facilities personally
including foreign governments. [Sec. 95 and
owned by the candidate, the money value of
96, B.P. 881]
the use of which can be assessed based on
the rates prevailing in the area. [Sec. 94,
B.P. 881]
B.3. PROHIBITED FUND-RAISING
ACTIVITIES
(1) The following are prohibited if held for
raising campaign funds or for the support of

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any candidate from the start of the election or for the use of any religious or civic
period up to and including election day: organization.
(a) Dances
(b) Lotteries Exceptions:
(c) Cockfights (1) Normal and customary religious dues or
(d) Games contributions
(e) Boxing bouts (2) Periodic payments for legitimate
(f) Bingo scholarships established and school
(g) Beauty contests contributions habitually made before the
(h) Entertainments, or cinematographic, prohibited period [Sec. 104, B.P. 881]
theatrical or other performances
(3) For any person or organization, civic or C. LAWFUL AND PROHIBITED
religious, directly or indirectly, to solicit ELECTION PROPAGANDA
and/or accept from any candidate or from
his campaign manager, agent or
representative, or any person acting in their
C.1. LAWFUL ELECTION PROPAGANDA
behalf, any gift, food, transportation, (1) Pamphlets, leaflets, cards, decals, stickers,
contribution or donation in cash or in kind or other written or printed materials not
from the start of the election period up to larger than 8.5x14 inches
and including election day (2) Handwritten or printed letters urging voters
Except: Normal and customary religious to vote for or against any political party or
stipends, tithes, or collections on Sundays candidate
and/or other designated collection days (3) Cloth, paper or cardboard posters, framed
[Sec. 97, B.P. 881] or posted, not larger than 2x3 feet
(4) Streamers not larger than 3x8 feet are
allowed at a public meeting or rally or in
B.4. PROHIBITED DONATION,
announcing the holding of such. May be
REQUISITES
displayed 5 days before the meeting or rally
(1) Who: by candidate, spouse, relative within
and shall be removed within 24 hours after
2nd civil degree of consanguinity or affinity,
such
campaign manager, agent or
(5) Paid advertisements in print or broadcast
representative; treasurers, agents or
media
representatives of political party
(a) Bear and be identified by the reasonably
(2) When: During campaign period, day before
legible or audible words “political
and day of the election
advertisement paid for” followed by the
true and correct name and address of
B.5. PROHIBITED WHETHER DIRECTLY the candidate or party for whose benefit
OR INDIRECTLY: the election propaganda was printed or
(1) Donation, contribution or gift in cash or in aired. [Sec. 4.1, R.A. 9006]
kind (b) If the broadcast is given free of charge
(2) Undertake or contribute to the construction by the radio or TV station, identified by
or repair of roads, bridges, school buses, the words "airtime for this broadcast
puericulture centers, medical clinics and was provided free of charge by"
hospitals, churches or chapels cement followed by the true and correct name
pavements, or any structure for public use

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and address of the broadcast entity. (2) Give or contribute, directly or indirectly,
[Sec. 4.2, R.A. 9006] money or things of value for such purpose
(c) Print, broadcast or outdoor [Sec. 89, B.P. 881]
advertisements donated to the Note: Sec. 85 “Prohibited election propaganda”
candidate or political party shall not be of B.P. 881 was repealed by Sec. 14 R.A. 9006.
printed, published, broadcast or
exhibited without the written D. LIMITATIONS ON EXPENSES
acceptance by said candidate or
political party. Written acceptance
D.1. FOR CANDIDATES
must be attached to the advertising
(1) President and VP: P10 for every voter
contract and submitted to the
currently registered
COMELEC within 5 days after its
(2) Other candidates: P3 for every voter
signing. [Sec. 4.3, R.A. 9006, cf. Sec. 6.3,
currently registered in the constituency
R.A. 9006]
where he filed his certificate of candidacy
(6) All other forms of election propaganda not
prohibited by the Omnibus Election Code or
D.2. FOR CANDIDATES WITHOUT A
the Fair Election Act of 2001. [Sec. 3, R.A.
9006] POLITICAL PARTY
P5 for every voter
B.2. PROHIBITED ACTS
D.3. FOR POLITICAL PARTIES
i. FOR ANY FOREIGNER
P5 for every voter currently registered in the
(1) Aid any candidate or political party, directly
constituency or constituencies where it has
or indirectly
official candidates [Sec. 13, R.A. 7166]
(2) Take part or influence in any manner in any
election
(3) Contribute or make any expenditure in E. STATEMENT OF CONTRIBUTIONS
connection with any election campaign or AND EXPENSES
partisan political activity [Sec. 81, B.P. 881]
Every candidate and treasurer of the political
ii. FOR ANY PERSON DURING THE party shall file:
CAMPAIGN PERIOD (1) In duplicate with the COMELEC
(1) Remove, destroy, obliterate or in any (2) The full, true and itemized statement of all
manner deface or tamper with lawful contributions and expenditures in
election propaganda connection with the election
(2) Prevent the distribution of lawful election (3) Within 30 days after the day of the election
propaganda [Sec. 83, B.P.881]
E.1. EFFECT OF FAILURE TO FILE
iii. FOR ANY CANDIDATE, POLITICAL STATEMENT
PARTY, ORGANIZATION OR ANY PERSON No person elected to any public office shall
(1) Give or accept, directly or indirectly, free of enter upon the duties of his office until he has
charge, transportation, food or drinks or filed the statement of contributions and
things of value during the five hours before expenditures
and after a public meeting, on the day The same prohibition shall apply if the
preceding the election, and on the day of political party which nominated the winning
the election; candidate fails to file the statements

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E.2. ADMINISTRATIVE FINES (EXCEPT


XXII. Board of Election
CANDIDATES FOR ELECTIVE BARANGAY Inspectors (BEI) and
OFFICE
[SEC. 14, RA 7166] Board of Canvassers
(1) 1st offense – P1,000-P30,000 in the (BOC)
discretion of the Commission to be paid
within 30 days from receipt of notice of such A. BOARD OF ELECTION INSPECTORS
failure otherwise it shall be enforceable by a
writ of execution issued by the Commission
against the properties of the offender
A.1. COMPOSITION OF BOARD OF
(2) 2nd offense – P2,000-P30,000 in the ELECTION INSPECTORS
discretion of the Commission. In addition, I. COMPOSITION
the offender shall be subject to perpetual [Sec. 13, RA 6646 and Sec. 164, BP 881]
disqualification to hold public office (1) Chairman – public school teacher
(2) Poll Clerk – public school teacher
(3) Two members, each representing the two
accredited political parties

II. QUALIFICATIONS
[Sec. 166, BP 881]
(1) Good moral character and irreproachable
reputation
(2) Registered voter of the city or municipality
(3) Never been convicted of any election
offense or any other crime punishable by
more than 6 months of imprisonment, and
there is no information pending against him
for any election offense
(4) Speak , read and write English or the local
dialect
(5) At least 1 member of the BEI shall be an
information technology-capable person
who is trained and certified by the DOST to
use the AES (where AES shall be adopted)
[Sec. 3, RA 9369]

III. DISQUALIFICATIONS
[Sec. 167, BP 881]
(1) Related within 4th degree of consanguinity
or affinity to any member of the BEI
(2) Related within 4th degree of consanguinity
or affinity to any candidate to be voted for in
the polling place or his spouse

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(3) Not engaged in any partisan political (3) Act as deputies of the Commission in the
activity or take part in the election except to conduct of the elections
discharge his duties as such and to vote (4) Maintain order within the polling place and
[Sec. 173, BP 881] its premises; keep access thereto open and
unobstructed; enforce obedience to its
A.2. POWERS OF BOARD OF ELECTION lawful orders and prohibit the use of cellular
INSPECTORS phones and camera by the voters. If any
[Sec. 10, COMELEC Resolution 9640, General person refuses to obey the lawful orders of
Instructions for BEI on Testing and Sealing, the BEI, or conducts himself in a disorderly
Voting, Counting and Transmission of Election manner in its presence or within its hearing
Results] and thereby interrupts or disturbs its
(1) Conduct the voting in the polling place and proceedings, the BEI may issue an order in
administer the electronic counting of votes, writing directing any peace officer to take
including the testing and sealing of the said person into custody until the
PCOS machine adjournment of the meeting, but such order
(2) Print the election returns and transmit shall not be executed as to prevent said
electronically the election results through person from voting. A copy of such written
the use of the PCOS machine to the order shall be attached to the Minutes;
(a) City/Municipal Board of Canvassers (5) Furnish watchers Certificate of Votes (CEF
(b) Central Server No. A13) upon request
(c) Transparency Server (Dominant (6) Perform such other functions as prescribed
Majority Party/Dominant Minority by the Code or by the rules and regulations
Party/Accredited Citizens’ Arm/ KBP promulgated by the Commission
Server
_________________________________________________________________________________

B. BOARD OF CANVASSERS

B.1. COMPOSITION OF BOARD OF CANVASSERS


[Sec. 20, R.A. 6646]

Province City Municipality


Chairman
Provincial election supervisor or City election registrar or a lawyer Election registrar or COMELEC
lawyer in the COMELEC regional of COMELEC; representative
office
In cities with more than 1 election
registrar, COMELEC shall
designate
Vice-Chairman
Provincial fiscal City fiscal Municipal treasurer

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Member
Provincial superintendent of City superintendent of schools Most senior district school
schools supervisor or in his absence, a
principal of the school district or
elementary school

In case of non-availability, absence, disqualification due to relationship, or incapacity for any cause of
any of the members, COMELEC may appoint the following as substitutes, in the order named:

Province City Municipality


Chairman
Ranking lawyer of the COMELEC Ranking lawyer of the COMELEC Ranking lawyer of the COMELEC
Vice-Chairman
-Provincial auditor -City auditor or equivalent; -Municipal Administrator;
-Registrar of Deeds -Registrar of Deeds; -Municipal Assessor;
-Clerk of Court nominated by the -Clerk of Court nominated by the -Clerk of Court nominated by the
Executive Judge of the RTC; Executive Judge of the RTC; Executive Judge of the MTC;
-Any other available appointive -Any other available appointive -Any other available appointive
provincial official city official municipal official
Member
Same as for Vice-Chairman Same as for Vice-Chairman Same as for Vice-Chairman

i. PROHIBITIONS ON BOC ii. CANVASS BY THE BOC


(1) Chairman and members shall not be related Canvass – the process by which the results in
within the 4th civil degree of consanguinity the election returns are tallied and totalled.
or affinity to any of the candidates whose
votes will be canvassed by said board, or to Certificates of canvass – official tabulations of
any member of the said board. [Sec. 222, votes accomplished by district, municipal, city
B.P. 881] and provincial canvassers based on the election
(2) No member or substitute member shall be returns, which are the results of the ballot count
transferred, assigned or detailed outside of at the precinct level.
his official station, nor shall he leave said
station without prior authority of the The BOC shall canvass the votes by
COMELEC during the period beginning consolidating the electronically transmitted
election day until the proclamation of the results or the results contained in the data
winning candidates. [Sec. 223, B.P. 881] storage devices used in the printing of the
(3) No member shall feign illness to be election returns. [Sec. 20, R.A. 9369]
substituted on election day until the
proclamation of the winning candidates.
Feigning of illness constitutes an election
offense. [Sec. 224, B.P. 881]

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iii. CERTIFICATE OF CANVASS AND v. NATIONAL BOC FOR SENATORS AND


STATEMENT OF VOTES PARTY-LIST REPRESENTATIVES.
(1) Within one hour after the canvassing, the Composition
Chairman of the district or provincial BOC or The chairman and members of the COMELEC
the city BOC of those cities which comprise sitting en banc
one or more legislative districts shall
electronically transmit the certificates of Function
canvass to: It shall canvass the results by consolidating the
(a) COMELEC sitting as the National BOC certificates of canvass electronically transmitted.
for senators and party-list Thereafter, the national board shall proclaim
representatives and the winning candidates for senators and party-
(b) Congress as the National BOC for the list representatives. [Sec. 23, R.A. 9369]
president and vice president, directed to
the President of the Senate. [Sec. 20, B.2. PROCLAMATION
R.A. 9369] Proclamation shall be after the canvass of
(2) The certificates of canvass transmitted election returns, in the absence of a perfected
electronically and digitally signed shall be appeal to the COMELEC, proclaim the
considered as official election results and candidates who obtained the highest number of
shall be used as the basis for the votes cast in the province, city, municipality or
proclamation of a winning candidate. [Sec. barangay, on the basis of the certificates of
20, R.A. 9369] canvass.
(3) 30 copies shall be distributed in accordance
with Sec. 21, R.A. 9369. Failure to comply with this duty constitutes an
election offense. [Sec. 231, B.P. 881]
iv. NATIONAL BOC FOR PRESIDENT AND VICE-
PRESIDENT i. WHEN PROCLAMATION VOID
Composition (1) When it is based on incomplete returns
The Senate and the House of Representatives in [Castromayor v. COMELEC (1995)] or
joint public session. (2) When there is yet no complete canvass.
[Jamil v. COMELEC (1997)]
Functions: (3) A void proclamation is no proclamation at
(1) Upon receipt of the certificates of canvass, all, and the proclaimed candidate’s
the President of the Senate shall, not later assumption into office cannot deprive the
than 30 days after the day of the election, COMELEC of its power to annul the
open all the certificates in the presence of proclamation.
the Senate and the House of
Representatives in joint public session. ii. PARTIAL PROCLAMATION
(2) Congress upon determination of the Notwithstanding pendency of any pre-
authenticity and the due execution thereof proclamation controversy, COMELEC may
in the manner provided by law shall: summarily order proclamation of other winning
(a) canvass all the results for president and candidates whose election will not be affected
vice-president and by the outcome of the controversy. [Sec. 21, R.A.
(b) proclaim the winning candidates. [Sec. 7166]
22, R.A. 9369]

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iii. ELECTION RESULTING IN A TIE


BOC, by resolution, upon 5 days notice to all
XXIII. Remedies and
tied candidates, shall hold a special public Jurisdiction in Election
meeting at which the board shall proceed to the
drawing of lots of tied candidates and shall Law
proclaim as elected the candidates who may be
favored by luck. [Sec. 240, B.P. 881]
A. PETITION NOT TO GIVE DUE
There is a tie when: COURSE TO OR CANCEL A
(1) 2 or more candidates receive an equal and CERTIFICATE OF CANDIDACY
highest number of votes; or
(2) 2 or more candidates are to be elected for A.1. CANCELLATION OF CERTIFICATE OF
the same position and 2 or more candidates
CANDIDACY
received the same number of votes for the
LAST PLACE in the number to be elected.
i. GROUNDS
(1) False material representation in the
iv. PROCLAMATION OF A LONE
certificate of candidacy;
CANDIDATE
(2) If the certificate filed is a substitute
Upon the expiration of the deadline for the filing
Certificate of Candidacy, when it is not a
of certificates of candidacy in a special election
proper case of substitution under Sec. 77 of
called to fill a vacancy in an elective position
BP 881.
other than for President and VP, when there is
only 1 qualified candidate, he shall be
ii. NATURE OF PROCEEDINGS
proclaimed elected without holding the special
Summary
election upon certification by the COMELEC that
he is the only candidate for the office and is
therefore deemed elected. [Sec. 2, R.A. 8295,
iii. PROCEDURE
Law on Proclamation of Solo Candidates] [Sec. 78, BP 881]
Who may file: Any person

If brought under Sec. 69 OEC (Nuisance


Candidates), any registered candidate [Sec. 5(a),
RA 6646]

When filed: At any time not later than 25 days


from the time of the filing of the certificate of
candidacy.
-If brought under Sec. 69 OEC, filing must be
within 5 days from the last day of filing the CoC
[Sec. 5(a), RA 6646]

Decision: Not later than 15 days before election

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If brought under Sec. 69 OEC, within 5 days shall continue with the trial and hearing of the
from receipt of Commission of the action, inquiry, or protest and upon motion of
recommendation of the hearing officer the complainant or any intervenor, may during
the pendency thereof, order the suspension of
B. PETITION FOR DISQUALIFICATION the proclamation of such candidate whenever
the evidence of his guilt is strong. [Sec. 6, R.A.
B.1. PROCEDURE 6646]
I. WHO MAY FILE
Any citizen of voting age, or any duly registered
B.5. WHERE A SIMILAR
political party, organization or coalition of COMPLAINT/PETITION IS FILED:
political parties (1) Before the election and proclamation of the
respondent and the case is not resolved
II. WHERE TO FILE before the election - the trial and hearing of
Law Department of the COMELEC the case shall continue and be referred to
the Law Department for preliminary
investigation
III. WHEN TO FILE
(2) After the election and before the
Any day after the last day for filing of
proclamation of the respondent - the trial
certificates of candidacy, but not later than the
and hearing of the case shall be suspended
date of proclamation
and referred to the Law Department for
preliminary investigation
B.2. GROUNDS
[Sec. 68 of BP 881]
In either case, if the evidence of guilt is strong,
All other election offenses are beyond the ambit
the COMELEC may order the suspension of the
of the COMELEC jurisdiction [Codilla v.
proclamation of respondent, and if proclaimed,
COMELEC (2004)]
to suspend the effects of proclamation. [Sec. 4,
Resolution No. 8678]
B.3. PERIOD TO DECIDE
The Commission and the courts shall give
C. PETITION TO DECLARE FAILURE OF
priority to cases of disqualification by reason of
violation of this Act to the end that a final ELECTIONS
decision shall be rendered not later than seven
days before the election in which the C.1. WHAT CONSTITUTES AN ELECTION
disqualification is sought. [Sec. 72, BP 881] Plurality of votes sufficient for:
(1) a choice conditioned on the plurality of valid
B.4. EFFECT votes or
Any candidate who has been declared by final (2) a valid constituency regardless of the actual
judgment to be disqualified – number of votes cast.
(1) Shall not be voted for and
(2) The votes cast for him shall not be counted

If a candidate is not declared by final judgment


before any election to be disqualified and he is
voted for and receives the winning number of
votes in such election, the Court or COMELEC

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C.2. FAILURE OF ELECTIONS C.3. DECLARATION OF FAILURE OF


i. GROUNDS ELECTION
In any of such cases the failure or suspension of It is neither an election protest nor a pre-
election must affect the result of the election proclamation controversy. [Borja v. Comelec,
(1) Election in any polling place has not been (1998)]
held on the date fixed due to force majeure,
violence, terrorism, fraud, or other C.4. JURISDICTION
analogous causes. COMELEC, sitting en banc, may declare a failure
(2) Election in any polling place had been of election by a majority vote of its members.
suspended before the hour fixed for the
closing of the voting due to force majeure, C.5. REQUISITES
violence, terrorism, fraud, or other The following conditions must concur:
analogous causes. (1) No voting has taken place in the precincts
(3) After the voting and during the preparation concerned on the date fixed by law, or even
and transmission of the election returns or in if there was voting, the election nonetheless
the custody or canvass thereof such election resulted in a failure to elect; and
results in a failure to elect due to force (2) The votes cast would affect the results of
majeure, violence, terrorism, fraud or other the election.
analogous causes. [Sec. 6, B.P. 881]
C.6. Procedure:
Sec. 4, R.A. 7166. Causes for the declaration of (1) Petitioner files verified petition with the Law
failure of election may occur before or after the Department of the COMELEC.
casting of votes or on the day of the election. (2) Unless a shorter period is deemed
necessary by circumstances, within 24
Sec. 4, R.A. 7166. The postponement, hours, the Clerk of Court concerned serves
declaration of failure of election and the notices to all interested parties, indicating
calling of special elections shall be decided by therein the date of hearing, through the
the COMELEC sitting en banc by a majority fastest means available.
vote of its members. (3) Unless a shorter period is deemed
necessary by the circumstances, within 2
Sec. 6, B.P. 881. The COMELEC shall call for the days from receipt of the notice of hearing,
holding or continuation of the election not any interested party may file an opposition
held, suspended or which resulted in a failure with the Law Department of the COMELEC.
to elect: (4) The COMELEC proceeds to hear the
(1) upon a verified petition by any petition. The COMELEC may delegate the
interested party and hearing of the case and the reception of
(2) after due notice and hearing evidence to any of its officials who are
members of the Philippine Bar.
When: On a date reasonably close to the date of (5) The COMELEC then decides whether to
the election not held, suspended or which grant or deny the petition. This lies within
resulted in a failure to elect BUT not later than the exclusive prerogative of the COMELEC.
30 days after the cessation of the cause of such
postponement or suspension of the election or
failure to elect. [Sec. 6, B.P. 881]

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D. PRE-PROCLAMATION D.2. WHEN NOT ALLOWED


CONTROVERSY For the positions of President, VP, Senator, and
Member of the House of Representatives [Sec.
15, R.A. 7166]
Pre-Proclamation Controversy – proceedings of
the board of canvassers which may be raised by
any candidate or by any registered political
D.3. NATURE OF PROCEEDINGS
party or coalition of political parties, or by any Heard summarily by the COMELEC after due
accredited and participating party list group, notice and hearing. This is because canvass and
before the board or directly with the proclamation should be delayed as little as
Commission [Rule 3, Sec. 1, COMELEC Resolution possible.
No. 8804]
D.4. ISSUES THAT MAY BE RAISED
COMELEC Resolution No. 8804 applies to This enumeration is restrictive and exclusive:
election disputes under the Automated Election (1) Illegal composition or proceedings of the
System (AES) using the Precinct Count Optical board of election canvassers;
Scan (PCOS) and shall cover pre-proclamation (2) Canvassed election returns are either:
controversies and election protests [Rule 1, Sec. (a) Incomplete
2, COMELEC Resolution No. 8804] (b) Contain material defects;
(c) Appear to be tampered with or falsified;
It is any question or matter pertaining to or (d) Contain discrepancies in the same
affecting: returns or in other authentic copies;
(1) the proceedings of the board of canvassers, (3) The election returns were:
or (a) Prepared under duress, threats,
(2) any matter raised under Sec. 233-236 of BP coercion, intimidation or
881 (infra) in relation to the preparation, (b) Obviously manufactured or not
transmission, receipt, custody and authentic
appreciation of the election returns. [Sec. (4) Substituted or fraudulent returns in
241, BP 881] controverted polling places were canvassed,
the results of which materially affected the
D.1. JURISDICTION standing of the aggrieved candidate(s).
COMELEC has exclusive jurisdiction over pre- (5) Manifest errors in the Certificates of Canvass
proclamation cases. It may order, motu proprio or Election Returns [Sec. 15, R.A. 7166;
or upon written petition, the partial or total Chavez v. COMELEC]
suspension of the proclamation of any
candidate-elect or annul partially or totally any In Rule 3, Sec. 1 of COMELEC Resolution No.
proclamation, if one has been made. [Sec. 242, 8804 (promulgated March 22, 2010) there are
BP 881] only 2 issues covered in a pre-proclamation
controversy:
COMELEC has exclusive jurisdiction in pre-
proclamation controversies arising from
national, regional or local elections. [Rule 3, Sec.
2, COMELEC Resolution No. 8804]

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i. ILLEGAL COMPOSITION OF THE BOC D.6. PROCEDURE


[Sec. 1, Rule 4, COMELEC Resolution No. 8804] i. QUESTIONS INVOLVING THE
COMPOSITION OR PROCEEDINGS OF THE
Exists when, among other circumstances, any of BOARD OF CANVASSERS, OR
the members do not possess legal qualifications CORRECTION OF MANIFEST ERRORS
and appointments. The information technology
capable person required to assist the BOC by Where: Either in the Board of Canvassers or
RA 9369 shall be included as among those directly with the COMELEC. [Sec. 17, R.A. 7166]
whose lack of qualifications may be questioned
When:
ii. ILLEGAL PROCEEDINGS OF THE BOC (1) A petition involving the illegal composition
[Sec. 2, Rule 4, COMELEC Resolution No. 8804] or proceedings of the board, must be filed
immediately when the board begins to act
Exists when the canvassing is a sham or mere as such [Laodeno v. COMELEC], or at the
ceremony, the results of which are time of the appointment of the member
predetermined and manipulated as when any of whose capacity to sit as such is objected to
the following circumstances are present: if it comes after the canvassing of the board,
(1) Precipitate canvassing or immediately at the point where the
(2) Terrorism proceedings are or begin to be illegal.
(3) Lack of sufficient notice to the members of Otherwise, by participating in the
the BOC proceedings, the petitioner is deemed to
(4) Improper venue have acquiesced in the composition of the
BOC.
D.5 ISSUES THAT CANNOT BE RAISED (2) If the petition is for correction, it must be
(1) Appreciation of ballots, as this is performed filed not later than 5 days following the
by the BEI at the precinct level and is not date of proclamation, and must implead all
part of the proceedings of the BOC [Sanchez candidates who may be adversely affected
v. COMELEC, (1987)] thereby. [Sec. 5(b), Rule 27, COMELEC Rules
(2) Technical examination of the signatures of Procedure]
and thumb marks of voters [Matalam v.
COMELEC (1997)] ii. MATTERS RELATING TO THE
(3) Prayer for re-opening of ballot boxes PREPARATION, TRANSMISSION,
[Alfonso v. COMELEC, (1997)]
RECEIPT, CUSTODY AND APPRECIATION
(4) Padding of the Registry List of Voters of a
OF THE ELECTION RETURNS AND
municipality, massive fraud and terrorism
[Ututalum v. COMELEC (1990)] CERTIFICATES OF CANVASS
(5) Challenges directed against the Board of
Election Inspectors [Ututalum v. COMELEC Where: Only with the Board of Canvassers
(supra)]
(6) Fraud, terrorism and other illegal electoral When: At the time the questioned return is
practices. These are properly within the presented for inclusion in the canvass.
office of election contests over which
electoral tribunals have sole, exclusive Who: Any candidate, political party or coalition
jurisdiction. [Loong v. COMELEC, (1992)] of political parties

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Non-compliance with any of the steps above is (5) Upon receipt of the records, the petition
fatal to the pre-proclamation petition. shall be docketed by the Clerk of
Commission and submitted to the
iii. PRE-PROCLAMATION COMELEC en banc for consideration and
CONTROVERSIES UNDER COMELEC decision
RESOLUTION NO. 8804 (6) Within 5 days, the COMELEC shall render its
IF FILED BEFORE THE BOC decision on appeal
(1) Upon receipt of the verified petition, the
BOC shall immediately announce the fact of v. IF FILED DIRECTLY WITH THE
the filing of said petition and the ground/s COMMISSION
raised (1) Upon receipt of the petition by the
(2) BOC shall immediately deliberate on the COMELEC, the Clerk of the Commission
petition and make a prompt resolution shall docket the same and send summons
within 24 hrs; reduced into writing to the BOC concerned with an order
(3) If the decision is in favor of the petition, it directing it to submit, through the fastest
shall immediately inform the Commission of verifiable means available, its answer within
its resolution; the Commission shall make 48 hrs.
appropriate action (2) COMELEC en banc shall resolve the petition
within 5 days from the filing of the answer
In no case shall the receipt by the BOC of the or upon the expiration of the period to file
electronically transmitted precinct, municipal, the same
city or provincial results, be suspended by the
filing of the said petition D.7. EFFECT OF FILING OF PRE-
PROCLAMATION CONTROVERSY
iv. APPEAL OF AN ADVERSE (1) The period to file an election contest shall
RESOLUTION be suspended during the pendency of the
(1) The petitioner may appeal an adverse pre-proclamation contest in the COMELEC
resolution by the BOC to the COMELEC, by or the Supreme Court.
notifying the BOC of his or her intent to (2) The right of the prevailing party in the pre-
appeal, through a verbal and a written and proclamation contest to the execution of
verified notice of appeal COMELEC’s decision does not bar the losing
(2) Notice on the BOC shall not suspend the party from filing an election contest.
formal proclamation of the official results of (3) Despite the pendency of a pre-proclamation
the election until the final resolution of the contest, the COMELEC may order the
appeal proclamation of other winning candidates
(3) 48 hrs. from such notice to the BOC, the whose election will not be affected by the
petitioner shall submit before the Board a outcome of the controversy.
Memorandum on appeal stating the
reasons why the resolution being
questioned is erroneous and should be
reversed
(4) Upon receipt by the BOC of the
memorandum, the Board shall forward the
entire records of the petition at the expense
of the petitioner

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D.8. EFFECT OF PROCLAMATION OF An election contest consists of either:


WINNING CANDIDATE (1) An election protest or a
General Rule: A pre-proclamation controversy (2) Quo warranto,
shall no longer be viable after the proclamation
and assumption into office by the candidate Although two distinct remedies, would have one
whose election is contested. The remedy is an objective in view: to dislodge the winning
election protest before the proper forum. candidate from office.
In an election protest, the protestee
Exceptions: The prevailing candidate may still may be ousted and the protestant seated in the
be unseated even though he has been office vacated.
proclaimed and installed in office if:
(1) The opponent is adjudged the true winner General Rule: The filing of an election protest or
of the election by final judgment of court in a petition for quo warranto precludes the
an election contest; subsequent filing of a pre-proclamation
(2) The prevailing party is declared ineligible or controversy, or amounts to the abandonment of
disqualified by final judgment of a court in a one earlier filed, thus depriving the COMELEC of
quo warranto case; or the authority to inquire into and pass upon the
(3) The incumbent is removed from office for title of the protestee or the validity of his
cause. proclamation.
The reason is that once the competent
D.9. EFFECT OF FILING PETITION TO tribunal has acquired jurisdiction of an election
ANNUL OR SUSPEND PROCLAMATION protest or a petition for quo warranto, all
The filing of the petition suspends the running questions relative thereto will have to be
of the period to file an election protest. decided in the case itself and not in another
[Alangdeo v. COMELEC, (1989)] proceeding. This procedure will prevent
confusion and conflict of authority. Conformably,
No law provides for a reglementary period the Court has ruled in a number of cases that
within which to file a petition for the annulment after a proclamation has been made, a pre-
of an election if there is as yet no proclamation. proclamation case before the COMELEC is no
[Loong v. COMELEC (supra)] longer viable. [Samad v. COMELEC, (1993)]

Exceptions: The rule admits of exceptions,


E. ELECTION PROTEST
however, as where:
(1) the board of canvassers was improperly
Election protest – is a contest between the constituted;
defeated and winning candidates on the ground (2) quo warranto was not the proper remedy;
of frauds or irregularities in the casting and (3) what was filed was not really a petition for
counting of the ballots, or in the preparation of quo warranto or an election protest but a
the returns. It raises the question of who petition to annul a proclamation;
actually obtained the plurality of the legal votes (4) the filing of a quo warranto petition or an
and therefore is entitled to hold the office. election protest was expressly made
[Samad v. COMELEC, (1993)] without prejudice to the pre-proclamation
controversy or was made ad cautelam; and
(5) the proclamation was null and void. [Samad
v. COMELEC, (1993)]

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E.1. NATURE E.8. EFFECT OF FILING PETITION TO


Summary proceeding of a political character ANNUL OR TO SUSPEND THE
PROCLAMATION
E.2. PURPOSE The filing with the Commission of a petition to
To ascertain the candidate lawfully elected to annul or to suspend the proclamation of any
office candidate shall suspend the running of the
period within which to file an election protest or
E.3. WHO MAY FILE quo warranto proceedings. [Sec. 248. BP 881]
A candidate who has duly filed a certificate of
candidacy and has been voted for. F. QUO WARRANTO
Petition for quo warranto – under the Omnibus
E.4. WHEN Election Code raises in issue the disloyalty or
Within 10 days after the proclamation of the ineligibility of the winning candidate. It is a
results of the election. proceeding to unseat the respondent from office
(1) It is suspended during the pendency of a but not necessarily to install the petitioner in his
pre-proclamation controversy place. [Samad v. COMELEC, (1993)]
(2) It should be decided within 15 days from
filing in case of barangay officials In a quo warranto proceeding, the petitioner is
not occupying the position in dispute. Moreover,
E.5. WHO HAS JURISDICTION under the Omnibus Election Code, quo
(1) COMELEC – over all contests relating to the warranto is proper only for the purpose of
elections, returns and qualifications of all questioning the election of a candidate on the
elective regional, provincial and city officials ground of disloyalty or ineligibility. [Samad v.
[Sec. 250. BP 881] COMELEC, (1993)]
(2) RTC - over contests involving municipal
officials [Sec. 251. BP 881] It is a proceeding to unseat the ineligible person
(3) MeTC or MTC – over election contests from office but not to install the protestant in
involving barangay officials [Sec. 252. BP his place. In this sense, it is strictly speaking,
881] not a contest where the parties strive for
supremacy. While the respondent may be
E.6. GROUNDS unseated, the petitioner will not be seated.
(1) Fraud
(2) Terrorism F.1. WHO MAY FILE
(3) Irregularities Any voter
(4) Illegal acts committed before, during, or
after the casting and counting of votes F.2. WHEN TO FILE
Within 10 days after the proclamation of the
E.7. PAYMENT OF DOCKET FEE results of the election.
A protestant has to pay a docket fee of P300
and an additional docket fee if there is a claim
for damages. Failure to pay the basic docket fee
shall result to the dismissal of the protest [Soller
v. COMELEC (2000)]

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F.3. WHO HAS JURISDICTION Quo Warranto in an Quo Warranto in an


(1) COMELEC – over petitions for quo warranto Elective Office Appointive Office
involving regional, provincial and city Issue is the eligibility or Issue is the legality of
officials [Sec. 253. BP 881] loyalty of the officer- the appointment
(2) RTC - over petitions for quo warranto elect
involving municipal officials [Sec. 253. BP
881] Court or tribunal The court determines
(3) MeTC or MTC – over petitions for quo cannot declare the who of the parties has
warranto involving barangay officials [Sec. protestant (or the legal title to the office
253. BP 881] candidate who
obtained the second
F.4. GROUNDS highest number of
(1) Ineligibility votes) as having been
elected
(2) Disloyalty to the Republic

F.5. EXECUTION PENDING APPEAL


Election Protest Quo Warranto
The trial court may grant a motion for execution
Strictly a contest Refers to questions of pending appeal because the mere filing of an
between the defeated disloyalty or appeal does not divest the trial court of its
and winning ineligibility of the jurisdiction over a case and to resolve pending
candidates based on winning candidate. It is incidents
grounds of election a proceeding to unseat
frauds or irregularities the ineligible person I. VALID AND SPECIAL REASONS TO
as to who actually from office, but not to GRANT THE SAME
obtained the majority install the protestant in
(1) The public interest is involved or the will of
of the legal votes and place
the electorate
therefore is entitled to
(2) The shortness of the remaining portion of
hold the office
the term
Can only be filed by a Can be filed by any (3) The length of time that the election contest
candidate who has voter. It is not has been pending
duly filed a certificate considered a contest
of candidacy and has where the parties strive The rule is strictly construed against the movant
been voted for for supremacy and only when the reason is of such urgency will
A protestee may be While the respondent such execution pending appeal be allowed, as it
ousted and the may be unseated, the is an exception to the general rule
protestant seated in petitioner will not be
the office vacated seated

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XXIV. Prosecution of B.1. ELECTION OFFENSES


Election Offenses i. REGISTRATION
(1) Failure of the Board of Election Inspectors
to post the list of voters in each precinct.
A. JURISDICTION OVER ELECTION [Sec. 9, R.A. 7166];
OFFENSES (2) Change or alteration or transfer of a voter's
precinct assignment in the permanent list of
A.1. INVESTIGATION AND PROSECUTION voters without the express written consent
COMELEC has exclusive jurisdiction to of the voter [Sec. 4, R.A. 8189]
investigate and prosecute cases involving
violation of election laws [Sec. 2 (6), Art. IX-C, ii. CERTIFICATE OF CANDIDACY
Const] (1) Continued misrepresentation or holding out
as a candidate of a disqualified candidate or
However, it may validly delegate the power to one declared by final and executory
the Provincial Prosecutor or to the Ombudsman. judgment to be a nuisance candidate [Sec.
27f, R.A. 6646]
In the event that the COMELEC fails to act on (2) Knowingly inducing or abetting such
any complaint within 4 months from its filing, misrepresentation of a disqualified or
the complainant may file the complaint with the nuisance candidate [Sec. 27f, R.A. 6646];
fiscal or the Department of Justice, if warranted. (3) Coercing, bribing, threatening, harassing,
[Sec. 265, B.P. 881] intimidating, terrorizing, or actually
causing, inflicting or producing violence,
It is not the duty of the COMELEC, as injury, punishment, torture, damage, loss or
investigator and prosecutor, to gather proof in disadvantage to discourage any other
support of a complaint filed before it person or persons from filing a certificate of
[Kilosbayan v. COMELEC (1997)] candidacy in order to eliminate all other
potential candidates from running in a
A.2. TRIAL AND DECISION special election [Sec. 5, R.A. 8295]
General Rule: RTCs have exclusive original
jurisdiction to try and decide any criminal iii. ELECTION CAMPAIGN
actions or proceedings for violation of election (1) Appointment or use of special policemen,
laws. [Sec. 268, B.P. 881] special agents or the like during the
campaign period [Sec. 261m, B.P. 881]
Exception: MTCs exercise jurisdiction only over (2) Use of armored land, water or aircraft
offenses relating to failure to register or to vote during the campaign period [Sec. 261r, B.P.
881]
B. PREFERENTIAL DISPOSITION OF (3) Unlawful electioneering [Sec. 261k, B.P. 881]
(4) Acting as bodyguards or security in the case
ELECTION OFFENSES
of policemen and provincial guards during
(1) The investigating officer shall resolve the
the campaign period [Sec. 261t, B.P. 881]
case within 5 days from submission.
(5) Removal, destruction, obliteration, or
(2) The courts shall give preference to election
tampering of lawful election propaganda, or
cases over all other cases except petitions
preventing the distribution thereof [Sec. 83,
for writ of habeas corpus.
B.P. 881 vis-à-vis Sec. 262, B.P. 881]

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iv. VOTING VII. ACTS OF GOVERNMENT OR PUBLIC


(1) Vote-buying and vote-selling [Sec. 261a, OFFICERS
B.P. 881] (1) Appointment of new employees, creation of
(2) Conspiracy to bribe voters [Sec. 261b, B.P. new positions, promotion, or giving salary
881]: A disputable presumption of a increases within the election period [Sec.
conspiracy to bribe voters is created when 261g, B.P. 881]
there is proof that at least 1 voter in different (2) Transfer of officers and employees in the
precincts representing at least 20% of the civil service within the election period
total precincts in any municipality, city or without the prior approval of the COMELEC
province has been offered, promised or [Sec. 261h, B.P. 881]
given money, valuable consideration or (3) Intervening of public officers and employees
other expenditure by a candidate's relatives, in the civil service in any partisan political
leaders and/or sympathizers for the activity [Sec. 261i, B.P. 881]
purpose of promoting the election of such (4) Use of public funds for an election
candidate. [Sec. 28, R.A. 6646] campaign [Sec. 261o, B.P. 881]
(3) Coercion of subordinates to vote for or (5) Illegal release of prisoners before and after
against any candidate [Sec. 261d, B.P. 881] election [Sec. 261n, B.P. 881]
(4) Dismissal of employees, laborers, or tenants (6) Release, disbursement or expenditure of
for refusing or failing to vote for any public funds during the prohibited period
candidate [Sec. 261d(2), B.P. 881] [Sec. 261v, B.P. 881]
(5) Being a flying voter [Sec. 261z (2), B.P. 881] (7) Construction of public works, etc. during the
prohibited period [Sec. 261w, B.P. 881]
v. COUNTING OF VOTES (8) Suspension of elective local officials during
(1) Tampering, increasing, decreasing votes, or the election period without prior approval of
refusal to correct tampered votes after the COMELEC [Sec. 261x, B.P. 881]
proper verification and hearing by any
member of the board of election inspectors VIII. COERCION, INTIMIDATION,
[Sec. 27b, R.A. 6646] VIOLENCE
A special election offense to be known as (1) Coercion of election officials and employees
electoral sabotage and the penalty to be (2) Threats, intimidation, terrorism, use of
imposed shall be life imprisonment. [Sec. fraudulent devices or other forms of
42, RA 9369] coercion [Sec. 261e, B.P. 881]
(2) Refusal to issue to duly accredited watchers (3) Use of undue influence [Sec. 261j, B.P. 881]
the certificate of votes cast and the (4) Carrying deadly weapons within the
announcement of the election, by any prohibited area [Sec. 261p, B.P. 881]
member of the board of election inspectors (5) Carrying firearms outside residence or place
[Sec. 27c, R.A. 6646] of business [Sec. 261q, B.P. 881]
(6) Organization or maintenance of reaction
vi. CANVASSING forces, strike forces, or similar forces during
Any chairperson of the board of canvassers who the election period [Sec. 261u, B.P. 881]
fails to give notice of meeting to other members
of the board, candidate or political party as ix. OTHER PROHIBITIONS
required [Sec. 27e, R.A. 6646] (1) Unauthorized printing of official ballots and
election returns with printing

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establishments that are not under contract iv. PERSONS REQUIRED BY LAW TO KEEP
with the COMELEC [Sec. 27a, R.A. 6646] PRISONERS IN THEIR CUSTODY
(2) Wagering upon the results of elections [Sec. For prisoners illegally released from any
261c, B.P. 881] penitentiary or jail during the prohibited period,
(3) Sale, etc. of intoxicating liquor on the day where such prisoners commit any act of
fixed by law for the registration of voters in intimidation, terrorism or interference in the
the polling place, or the day before the election, prison mayor in its maximum period.
election or on election day [Sec. 261dd (1), [Sec. 264, B.P. 881]
B.P. 881]
(4) Opening booths or stalls within 30 meters C. ARRESTS IN CONNECTION WITH
of any polling place [Sec, 261dd (2), B.P. 881]
ELECTION CAMPAIGN
(5) Holding fairs, cockfights, etc. on Election
Only upon a warrant of arrest issued by a
Day [Sec. 261dd (3), B.P. 881]
competent judge after all the requirements of
(6) Refusal to carry election mail during the
the Constitution have been strictly complied
election period [Sec. 261dd (4), B.P. 881]. In
with
addition to the prescribed penalty, such
refusal constitutes a ground for cancellation
or revocation of certificate of public D. PRESCRIPTION
convenience or franchise. Five years from the date of their commission. If
(7) Discrimination in the sale of airtime [Sec. the discovery of the offense be made in an
261dd (5), B.P. 881] In addition to the election contest proceeding, the period of
prescribed penalty, such refusal constitutes prescription shall commence on the date on
a ground for cancellation or revocation of which the judgment in such proceedings
the franchise. becomes final and executory. [Sec. 267, B.P. 881]

 Note: Good faith is not a defense, as election E. GRANT OF TRANSACTIONAL


offenses are generally mala prohibita. IMMUNITY
Any person guilty of violations of Sec. 261a
B.2. PENALTIES (Vote-buying and vote-selling) and 261b
i. FOR INDIVIDUALS (Conspiracy to bribe voters) of BP 881 who
(1) Imprisonment of not less than 1 year but not voluntarily gives information and willingly
more than 6 years, without probation [Sec. testifies on any violation of said sections in any
264, B.P. 881] official investigation or proceeding shall be
(2) Disqualification to hold public office exempt from prosecution and punishment for
(3) Deprivation of the right of suffrage the offenses with reference to which his
information and testimony were given, without
ii. FOR A FOREIGNER prejudice to his liability for perjury or false
(1) Imprisonment of not less than 1 year but not testimony. [Sec. 28, RA 6646]
more than 6 years (without probation);
(2) Deportation after service of sentence F. PROHIBITED ACTS UNDER RA 9369
(1) Utilizing without authorization, tampering
iii. FOR A POLITICAL PARTY with, damaging, destroying or stealing:
Payment of a fine not less than P10,000 after a (a) Official ballots, election returns, and
criminal conviction certificates of canvass of votes used in
the system; and

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(b) Electronic devices or their components, When the tampering, increase and/or
peripherals or supplies used in the AES decrease of votes perpetrated or the refusal
such as counting machine, memory to credit the correct votes or to deduct
pack/diskette, memory pack receiver tampered votes is/are committed in the
and computer set election of a national elective office which is
(2) Interfering with, impeding, absconding for voted upon nationwide and the tampering,
purpose of gain, preventing the installation increase and/ or decrease of votes or refusal
or use of computer counting devices and the to credit the correct votes or to deduct
processing, storage, generation and tampered votes, shall adversely affect the
transmission of election results, data or results of the election to the said national
information office to the extent that losing candidate/s
(3) Gaining or causing access to using, altering, is /are made to appear the winner/s;
destroying or disclosing any computer data, (2) Regardless of the elective office involved
program, system software, network, or any When the tampering, increase and/or
computer-related devices, facilities, decrease of votes committed or the refusal
hardware or equipment, whether classified to credit the correct votes or to deduct
or declassified tampered votes perpetrated is
(4) Refusal of the citizens' arm to present for accomplished in a single election document
perusal its copy of election return to the or in the transposition of the figure / results
board of canvassers from one election document to another and
(5) Presentation by the citizens' arm of involved in the said tampering increase
tampered or spurious election returns and/or decrease or refusal to credit correct
(6) Refusal or failure to provide the dominant votes or deduct tampered votes exceed
majority and dominant minority parties or 5,000 votes, and that the same adversely
the citizens' arm their copy of election affects the true results of the election
returns and (3) Any and all other forms or tampering
(7) The failure to post the voters' list within the increase/s and/ or decrease/s of votes
specified time, duration and in the perpetuated or in cases of refusal to credit
designated location shall constitute an the correct votes or deduct the tampered
election offense on the part the election votes, where the total votes involved exceed
officer concerned. 10,000 votes

F.1. PENALTIES  Any and all other persons or individuals


General Rule: determined to be in conspiracy or in
(1) Imprisonment of 8 years and one day to 12 connivance with the members of the BEIs or
years without possibility of parole BOCs involved shall be meted the same
(2) Perpetual disqualification to hold public penalty of life imprisonment.
and any non-elective public office and
(3) Deprivation of the right of suffrage.

Exception: Those convicted of the crime of


electoral sabotage, which includes acts or
offenses committed in any of the following
instances:
(1) National elective office

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POLITICAL LAW
PUBLIC
INTERNATIONAL
LAW

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I. Concepts A. OBLIGATIONS ERGA OMNES

a) Definition: Obligations erga omnes are


Public International Law is a body of principles,
“obligations of a State towards the
norms and processes which regulate the
international community as a whole,” which are
relations of States ad other international
the “concern of all States” and for whose
persons, and governs their conduct affecting
protection all States have a “legal interest.”
the interests of the international community of
[Barcelona Traction Case (ICJ, 1970)]
States as a whole. [Magallona]
Obligations Erga Obligations
Private International Law is the body of rules of Inter Se
Omnes
the domestic law of a State that is applicable
To the To particular
when a legal issue contains a foreign element,
To whom international States
and it has to be decided whether a domestic
owed community as a
rule should apply foreign law or relinquish
whole
jurisdiction to a foreign court. [Aust]
Violations may Violations may
be espoused by be espoused
Public Private
any State only by States
International Law International Standing
specially
Law
affected by the
(1) Treaties and Domestic law
breach
international
conventions
b) Examples: [Institut de Droit International
(2) Customary
(“IDI”), Resolution on Obligations erga omnes in
international
International Law (2005)]
Sources law
(1) Prohibition of acts of aggression;
(3) General
(2) Prohibition of genocide;
principles of
(3) Obligations concerning the protection
law [ICJ
of basic human rights [see also
Statute, art.
Barcelona Traction Case (ICJ, 1970)];
38(1)]
(4) Obligations relating to self-
(1) States; Individuals
determination [see also East Timor Case
(2) International (private
Subjects (ICJ, 1995); Palestinian Wall Advisory
organizations; persons)
Opinion (ICJ, 2004)];
(3) Individuals
(5) Obligations relating to the environment
of common spaces.

c) Implications: In the event of a breach of an


erga omnes obligation by a State:
(1) Reliefs: Other States are entitled to
claim from the responsible State:
(a) cessation of the internationally
wrongful act;
(b) performance of the obligation of
reparation in the interest of the

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State, entity or individual which is N.B. The ICJ has not applied these distinctions
specially affected by the breach.” in opinions where it discussed erga omnes
[IDI, Resolution on Obligations erga obligations.
omnes in International Law (2005),
art. 3] B. JUS COGENS
(2) Standing to bring suit: Other States
have standing to bring a claim to the a) Definition: A jus cogens norm is a “norm
International Court of Justice or other accepted and recognized by the international
international judicial institution in community of States as a whole as a norm from
relation to a dispute concerning which no derogation is permitted and which can
compliance with that obligation. [Id., art. be modified only by a subsequent norm of
4] general international law having the same
(3) Positive obligations: Should a widely character.” [Vienna Convention on the Law of
acknowledged grave breach of an erga Treaties (“VCLT”), art. 53]
omnes obligation occur, other States: Also known as peremptory norm of general
(a) shall endeavour to bring the breach international law.
to an end through lawful means in Compared with ordinary customary
accordance with the Charter of the international law, it is a mandatory norm and
United Nations; stands on a higher category than a jus
(b) shall not recognize as lawful a dispositivum norm which States can set aside or
situation created by the breach; modify by agreement. [Prosecutor v. Furundzija
(c) are entitled to take non-forcible (Int’l Crim. Trib. for the Fmr. Yugoslavia, 2002)
countermeasures. [Id., art. 5]
b) Examples:
d) Types: Several authorities [e.g. IDI] classify (1) The prohibition against the use of force
erga omnes obligations into either: (1) erga under the UN Charter [Nicaragua Case
omnes omnium, or (2) erga omnes omnes partes (ICJ, 1986)];
[see IDI, Resolution on Obligations erga omnes in (2) Law on genocide;
International Law (2005), art. 1]. (3) Prohibition against apartheid;
(4) Self-determination;
Erga Omnes Erga Omnes (5) Crimes against humanity;
Omnium Partes (6) Prohibition against slavery and slave
General Multilateral trade;
Basis
international law treaty (7) Piracy [Brownlie, Magallona].
The All the other
To whom international States parties to c) Consequence of violation: “A treaty is void if,
owed community, in the same treaty, at the time of its conclusion, it conflicts with a
any given case in any given case peremptory norm of general international law.”
The common The common (i.e. a jus cogens norm) [VCLT, art. 53]
values of the values of States
international parties and their d) Notes:
Interest
community and concern for  There is no authoritative listing of jus
concern for compliance cogens norms and erga omnes
compliance obligations. Also, only the prohibition
on the use of force has been held by the

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ICJ as a jus cogens norm. Note, however,


that ICJ opinions are only subsidiary
II. International and
means for determining rules of law.
[infra]
National Law
 Jus cogens is different from erga omnes.
(One is not even the subset of the A. INTERNATIONAL AND NATIONAL
other.) Jus cogens pertains to the non- (MUNICIPAL) LAW, DISTINGUISHED
derogability of a norm and the validity
of rules and acts that conflict with it. International Law Municipal Law
Erga omnes pertains to the legal The conduct of Apply to a single
States and country or
interest of a State in the violation of a
international nation, within a
norm.
organizations, determined
their relations territory and its
C. CONCEPT OF EX AEQUO ET BONO with each other inhabitants.
Literally, “what is equitable and good.” and, in certain
Scope
circumstances,
A standard that a court may apply to decide a their relations
case when the parties to the dispute so agree. with persons,
[ICJ Stat., art. 38(2)] This means that the court natural or
juridical.
may reach a fair compromise in balancing the
[American Third
interests of the parties.
Restatement]
Through Issued by a
Effect: Judgment will not be on the basis of the consent, political superior
sources of international law, but on the grounds adopted by for observance.
How made
of fairness and justice. The court may have to States as a
rely on its own understanding of the broader common rule of
context of equity and outside the accepted action.
norms of law. Regulates Regulates
relations of relations of
States and other individuals
Relations
international among
Regulated
persons. themselves or
with their own
States.
Derived Consists mainly
principally from of enactments
treaties, from the
international lawmaking
Sources custom and authority of each
general State.
principles of law.
[ICJ Stat., art.
38(1)]

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By means of By means of Coordinationist view


State-to-State local  International law and municipal law
Settlement of
transactions. administrative operate in different spheres. Hence, the
Disputes
and judicial
laws themselves do not conflict.
processes.
 However, there may be a conflict in
Collective Breach of
responsibility national law obligations imposed by either systems. In
Responsibility because it entails such a case, the result is not the invalidation
for Wrongful attaches directly individual of national law but responsibility under
Acts to the State and responsibility. international law on the part of that State.
not to its
nationals. b) Role of international law within the national
legal order
B. RELATIONSHIP
Norms or principles of international law may be
a) Theories incorporated or transformed into national law
and applied or enforced within the territorial
Monist view jurisdiction of a state as part of “the law of the
 International and municipal legal systems land.” [Magallona]
are fundamentally part of one legal order.
This view considers international law to be Doctrine of Incorporation: Through
superior, with municipal law being a mere incorporation, norms of international law are
subset of international law. deemed part of national law, whether or not
 Thus, international norms are applicable they are enacted as statutory or legislative rules.
within municipal systems even without [Magallona]
some positive act of the state.  In the Philippines, what are
 Monist-naturalist view: Public international incorporated are “generally accepted
law is superior to municipal law, and both principles of international law as part of
systems are but a part of a higher system of the law of the land.” [CONST. art. II, sec.
natural law. 2]

Dualist view Doctrine of Transformation: Under this doctrine,


 International law and municipal law are rules of international law are not part of
separate systems. Only those problems municipal law unless they are so transformed by
affecting international relations are within means of legislation. [Magallona]
the scope of international law.  National law defines the requisite act
 Thus, before an international norm can have which must be fulfilled before norms of
an effect within a municipal legal system, international law become part of
that norm must be transformed, or adopted national law.
into the municipal system through a  In the Philippines, what are transformed
positive act by a state organ. are norms of international law
 Customary international law and general embodied in treaties concurred in by the
principles of international law, however, Senate. [CONST. art. VII, sec. 21]
need not be transformed or adopted.

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c) Role of national law in international legal constitute evidence of what the law
regulation is.
 There is no stare decisis: Case law is
Irrelevance of Internal Law: A State cannot considered only a “subsidiary
invoke its own national law to resist an means.” Even the decisions of the
international claim or excuse itself from breach ICJ itself do not create binding
of duty under international law [VCLT, art. 6; precedent, since it only binds the
Polish Nationals in Danzig Case (PCIJ, 1932); parties and in respect of the
VCLOT; Articles on State Responsibility, art. 32] particular case [ICJ Statute, art. 59].
 Teachings of publicists may include
III. Sources the work of organizations such as
the International Law Commission
(a UN body) and private institutions.
A. IN GENERAL
B. TREATIES AND CONVENTIONS
Primary sources
1. Conventional International Law:
A treaty is an international agreement
International conventions, whether
concluded between states in written form and
general or particular, establishing rules
governed by international law, whether
expressly recognized by the contracting
embodied in a single instrument or in two or
states (Treaties);
more related instruments and whatever its
2. International Law: International custom,
particular designation.” [VCLT, art. 2(1)]
as evidence of a general practice
accepted as law;
Treaty obligation is based on consent. No state
3. General Principles of Law: General
may be bound by a treaty obligation unless it
principles of law recognized by civilized
has so consented. [VCLT, art. 34]
nations. [ICJ Statute, art. 38(1)(a)-(c)]
Under the principle of pacta sunt servanda, a
Notes:
state party to a treaty is bound to comply with
 Art. 38 does not provide a hierarchy.
the obligations it assumed under such treaty in
 General Rule: Parties can modify custom good faith. [VCLT, art. 26]
by convention (e.g. treaties)
 Exception: When the custom is a jus C. CUSTOMARY INTERNATIONAL
cogens norm, it cannot be defeated by
LAW
agreement. [See VCLT, art. 53]
Basis: Norms of international law are those that
result from a (1) general and consistent practice
Subsidiary sources
of States which they follow under a (2) sense of
4. Judicial decisions and teachings of the
legal obligation.
most highly qualified publicists of the
various nations. [ICJ Statute, art.
Unlike treaties, customary norms are legally
38(1)(d)]
binding upon all States regardless of whether
they consent, subject to the persistent objector
 While the primary sources create
rule [infra].
law, the subsidiary sources

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(a) Elements  UN General Assembly resolutions are


Before a norm may become customary generally just recommendations. They have
international law binding on all States, there generally no binding effect under the
must be: Charter. However, such resolutions may
(a) State Practice nonetheless be an evidence of state practice
(b) Opinion Juris [North Sea Continental that is relevant in the development of
Shelf Cases (ICJ, 1969)] custom. [See Nicaragua Case (ICJ, 1986)]

No particular length of time is required for the (2) Opinio juris sive necessitates: This refers to
formation of customary norms. What becomes the belief on the part of states that a
necessary is such length of time as to make particular practice is required by law, and
manifest the existence of the two elements of not because of courtesy or political
custom [North Sea Continental Shelf Cases (ICJ, expediency [North Sea Continental Shelf
1969)] Cases (ICJ, 1969)].
 It is the existence of opinio juris that
The number of parties, the explicit acceptance distinguishes binding custom from mere
of rules of law, and, in some cases, the usage, from comity, and from courtesy
declaratory nature of the provisions produces a or protocol.
strong law-creating effect at least as great as
the general practice considered sufficient to (b) Scope: Custom may be
support a customary rule [BROWNLIE]. (1) General, which is binding upon all or
most states; or
(1) State practice: For custom to exist, the (2) Particular, which is binding only
customary practice must be both consistent between two or among a few states.
and general.
 Consistency requires substantial uniformity  The ICJ has recognized the possibility of
and not necessarily complete uniformity in regional custom [Asylum Case (ICJ,
practice [Asylum Case (ICJ, 1950)]. 1950)] and of bilateral custom [Right of
Generality likewise does not require Passage over Indian Territory Case (ICJ,
universality. 1960)].
 The absence of protest could be considered
evidence of the binding nature of customary (c) Principle of Persistent Objector
practice [AKEHURST].  When a State has continuously objected
 Evidence: The following acts may evidence to a new customary norm at the time
state practice: (1) Diplomatic when it is yet in the process of formation,
correspondence; (2) Policy statements; (3) by such persistent objection the norm
Press releases; (4) Opinions of official legal will not be applicable as against that
advisers; (5) Official manuals on legal state [MAGALLONA].
decisions (executive decisions and practices,  For instance, the ten-mile rule (in the
and government comments on drafts by the delimitation of territorial waters across
ILC); (6) International and national judicial bays) would appear to be inapplicable
decisions; (7) Recitals in treaties and against Norway, inasmuch as she has
international instruments; (8) Practice of always opposed any attempt to apply it
international organs [HARRIS]. to the Norwegian coast [Anglo-
Norwegian Fisheries Case]

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(d) Duality of norms 5. The principle in diplomatic law that the


 It is possible for a norm of international receiving state has the special duty to
law to exist both as a customary norm protect the premises of the diplomatic
and a conventional norm [e.g., mission of the sending state [Reyes v.
prohibition against the use of force]. Bagatsing (1983)];
Such norms are said to be of dual 6. The right of a citizen to return to his
character. own country [Marcos v. Manglapus
 Norms of dual character come into (1989)];
being when (1) a treaty provision simply 7. The principle that “a foreign army
restates a customary norm, as is true of allowed to march through friendly
many of the provisions in the VCLT; (2) a country or to be stationed in it, by
treaty provision constitutes evidence of permission of its government or
custom; or (3) a treaty provision sovereign, is exempt from criminal
crystallizes into a customary norm. jurisdiction of the place” [Raquiza v.
 For a treaty provision to crystallize into Bradford (1945)];
custom, the provision must be norm- 8. The principle that judicial acts, not of a
creating or law-making, creating legal political complexion of a de facto
obligations which are not dissolved by government established by the military
their fulfillment. [North Sea Continental occupant in an enemy territory, are valid
Shelf Cases (ICJ, 1969)] under international law [Montebon v.
 The customary norm retains a separate Director of Prisons (1947)];
identity even if its content is identical 9. The principle that private property
with that of a treaty norm. Thus, a State seized and used by the enemy in times
that cannot hold another State of war under circumstances not
responsible for a breach of a treaty constituting valid requisition does not
obligation can still hold the erring state become enemy property and its private
responsible for the breach of the ownership is retained, the enemy having
identical customary norm [Nicaragua acquired only its temporary use [Noceda
Case (ICJ, 1986)]. v. Escobar (1950)];
10. The principle that a State has the right
(e) Philippine practice: Customary norms to protect itself and its revenues, a right
identified by the Supreme Court not limited to its own territory but
1. Rules and principles of land warfare extending to the high seas [Asaali v.
and of humanitarian law under the Commissioner (1968)].
Hague Convention and the Geneva
Convention [Kuroda v. Jalandoni D. GENERAL PRINCIPLES OF LAW\
(1949)];
2. Pacta sunt servanda [La Chemise These refer to those general principles in
Lacoste v. Fernandez (1984)]; municipal law (particularly those of private law)
3. Human rights as defined under the that may be appropriated to apply to the
Universal Declaration of Human Rights relations of states [OPPENHEIM].
[Reyes v. Bagatsing (1983)];
4. The principle of restrictive sovereign
immunity [Sanders v. Veridiano (1988)];

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The following principles are considered general E. JUDICIAL DECISIONS AND


principles of international law: TEACHINGS OF HIGHLY QUALIFIED
 Roman law principles;
PUBLICISTS
o Principles such as estoppel, res judicata,
res inter alios acta, and prescription;
Evidence of the state of the law: Despite the
o e.g. With respect to estoppel, when
inapplicability of stare decisis in the ICJ,
Thailand did not object to, and has in
decisions of international tribunals exercise
fact benefited from, the Treaty of 1904
considerable influence as impartial and well-
for 50 years, it is deemed to have
considered statements of the law by qualified
accepted said treaty. It is thereby
jurists made in light of actual problems.
precluded from questioning Annex I
thereof, which showed that the Temple
Decisions of international tribunals constitute
of Preah Vihear was within Cambodian
evidence of the state of the law. (BROWNLIE)
territory [Temple of Preah Vihear Case
Writings of highly qualified publicists likewise
(ICJ, 1962)].
constitute evidence the state of the law.
 Other substantive principles, such as the
duty to make reparations [Chorzow Factory Caveat: Some publicists may be expressing not
Case (PCIJ, 1927)], principle of reciprocity, what the law is (lex lata) but what they think the
pacta sunt servanda, separate corporate
law should be or will be (lex ferenda).
personality [see Barcelona Traction Case (ICJ,
1970)];
F. NON-SOURCES
 Procedural rules, such as rules governing The following are not sources of international law,
the use of circumstantial and hearsay but may be used by the ICJ in particular to decide a
evidence are likewise so considered. case.
o e.g. Press reports can be used to  Ex aequo et bono is a standard of “what is
corroborate the existence of a fact. equitable and good,” which the Court may
When they demonstrate matters of apply (in place of the sources of
public knowledge which have received international law) to decide a case when the
extensive press coverage, they can be parties to the dispute so agree. [ICJ Stat.,
used to prove a fact to the satisfaction art. 38(2)]
of the court [Nicaragua Case (ICJ, 1986)].  Equity refers to the application of standards
of justice that are not contained in the letter
o Circumstantial evidence is admitted as
of existing law. It has often been applied in
indirect evidence in all systems of law
cases involving territorial disputes and
and its use is recognized by maritime delimitations.
international decisions. Such  Unilateral declarations concerning legal or
circumstantial evidence, however, must factual situations, may have the effect of
consist of a series of facts or events that creating legal obligations.
lead to a single conclusion [Corfu
Channel Case (ICJ, 1949)]. Nothing in the nature of a quid pro quo, nor any
 Jurisdictional principles, such as the power subsequent acceptance, nor even any reaction
of a tribunal to determine the extent of its from other states is required for such unilateral
own jurisdiction (competence de la declaration to take effect. Verily, unilateral
competence). declarations bind the state that makes them.
[Nuclear Test Cases (ICJ, 1974)].

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IV. Subjects Special (particular) international personality


exists where an entity is established by
particular states for special purposes.
Enumeration
(1) States
A. STATES
(2) International organizations
Elements of Statehood: The state as a person of
(3) Individuals
international law should possess the following
qualifications:
Subjects and objects distinguished
(a) a permanent population;
Subjects of international law refer to entities:
(b) a defined territory;
(1) Capable of possessing international
(c) government; and
rights and duties; and
(d) capacity to enter into relations with the
(2) Having the capacity to maintain these
other states. [Montevideo Convention on
rights by bringing international claims.
the Rights and Duties of States (1933),
[Reparations for Injuries Advisory
art. 1]
Opinion (ICJ, 1949)]
Definition: There is no standard definition of
Objects of international law are persons or
what the State is in international law. The
things in respect of which rights are held and
Montevideo Convention merely enumerates the
obligations are assumed by the subject. They
elements by which one may say that a state
are not directly governed by the rules of
exists.
international law. Their rights (e.g., human
rights of individuals) may be asserted and their
States remain the most important actors in
responsibilities imposed indirectly, through the
international law. They possess objective or erga
instrumentality of an intermediate agency (e.g.,
omnes personality.
state).
a) Elements of Statehood
This traditional distinction has been criticized as
unhelpful as non-state actors (e.g., individuals
i. Permanent Population
and civil society organizations) already have
The population does not have to be
standing to bring suits in the fields of
homogeneous racially, ethnically, tribally,
international criminal law and international
religiously, linguistically, or otherwise. But, it
human rights law. Thus, some call the entities
must be a settled population, although the
actors. [HIGGINS]
presence of certain nomadic inhabitants does
not matter. [AUST]
Objective and special personality
Objective (general) international personality
ii. Defined Territory
exists wherever the rights and obligations of an
Definition: State territory is that defined portion
entity are conferred by general international law
of the surface of the globe which is subjected to
(e.g., states).
the sovereignty of the State. [OPPENHEIM]
The United Nations has objective international
personality. [Reparations for Injuries Advisory
A state must exercise control over a certain area.
Opinion (ICJ, 1949)]
It need not be exactly defined by metes and
bounds, so long as there exists a reasonable

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certainty of identifying it. No minimum land Accession or accretion


area is required. Accession or accretion is the natural process of
land formation resulting in the increase of
Modes of acquiring territory: There are four territory.
modes of acquiring territory. The first two are
original modes while the last two are derivative
modes.
(1) Occupation;
(2) Accession or accretion; Cession
(3) Cession; and Cession means the transfer of territory from one
(4) Prescription. state to another by treaty (derivative). It is the
only bilateral mode of acquiring territorial
Occupation sovereignty.
Occupation refers not to mere discovery, but to The validity of cession depends on the valid
effective exercise of sovereignty over a territory title of the ceding state. The cessionary state
which is terra nullius (i.e., not subject to the cannot have more rights than what the ceding
sovereignty of any other state). state possessed. [MAGALLONA].

Occupation is different from conquest, which is Prescription


the taking of a territory of another sovereign by Through prescription, title is acquired by
force of arms. Conquest is generally accepted to continuous and undisturbed exercise of
have been outlawed as aggression and violative sovereignty over a period of time.
of the prohibition on the use of forece and
territorial integrity. [See Definition of Aggression, Requisites: Possession must be:
UN GA Res. 3314 (XXIX) (1974)] (1) Exercised under titre de souverain;
(2) Peaceful and uninterrupted;
Effective occupation means continued display of (3) Public; and
authority. It involves (1) the intention and will to (4) Endure for a certain length of time
act as sovereign or animus occupandi; and (2) [JOHNSON]
some actual exercise or display of such
authority [Eastern Greenland Case (PCIJ, 1933)]. iii. Government
Animus occupandi must be demonstrated and Government is the physical manifestation of a
evidenced by some administrative or political state. Government must be organized,
acts in relation to the territory in question and exercising control over and capable of
such acts must be under titre de souverain (title maintaining law and order within its territory.
of sovereignty). Under the rules on succession of States,
even changes of entire governments do not
To constitute effective occupation, exercise of affect the identity and personality of the state.
sovereignty must be peaceful, actual, Once statehood is established, neither invasion
continuous and sufficient to confer valid title to nor disorder alone can remove its character as a
sovereignty. state [BROWNLIE].

Effective government
General Rule: There must be a central
government operating as a political body within

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the law of the land and in effective control of Jus Postlimium: Acts (executive, legislative, and
the territory. [AUST] judicial) done under the control of a de facto
government, when they are not of a political
Exception: The requirement of effective complexion remain good even upon the
government is not strictly applied when the restoration of the legitimate government. [See
State, already long-existing, happens to Co Kim Cham v. Valdez Tan Keh (1945)]
undergo a period of civil strife or internal chaos
due to natural disaster or invasion.  Conversely, the establishment of a de facto
Failed State: One which has not had a government does not by itself abolish all
government in control of most of the territory laws and structures established by the
for several years. [AUST] A failed State does not deposed government. Only laws of political
cease to be a State. (See, e.g. Somalia, which nature affecting political relations are
has not had an effective government in years, suspended ipso facto; laws that enforce
but continues to be recognized by the UN). public order and regulate social and
Further, some States were deemed States commercial life remain in effect unless they
even before their governments were very well- are changed by the de facto sovereign.
organized (e.g., Poland, Burundi, and Rwanda).
iv. Capacity to enter into relations with the other
Governments de facto and de jure states
 Government de jure: Government from law,
that is, one with a color of legitimacy.  A state must be free from outside control in
 Government de facto: One that governs conducting foreign and internal affairs, i.e.
without a mandate of law. So long as it is in sovereign and independent.
place, it may command obedience from the  It is sufficient for a State to possess external
inhabitants of the occupied area. The de appearance of capacity to enter into
facto ruler may suspend laws and enact new international relations. [BROWNLIE] That a
ones. State may be acting under the direction of
another State does not affect this requirement.
Kinds of De Facto Governments [See Treaty of Friendship (Ind. and Bhu.),
1. De facto Proper / Government by where Bhutan agreed to be guided in its
Revolution: That which usurps, either by external relations by Indian advice.] [AUST]
force or the will of the majority, the legal
government and maintains control against b) Concepts on Creation of States
it;
2. Government by paramount force / i. Effectiveness
Government by Occupation: Results from The issue of possession of the status of a state
the occupation of a state or a part thereof (statehood) under international law,
by invading forces in time of war; and traditionally defined as “effectiveness,” is
3. Government by Secession: Government closely linked to the concept of sovereignty,
established as an independent government although the latter is not itself a criterion for
by inhabitants of a country who rise in statehood. Instead, it is the “totality of
insurrection against the parent state. [See international rights and duties recognized by
Co Kim Cham v. Valdez Tan Keh (1945)] international law” as embodied in an
independent territorial unit that is the state. In
other words, an entity endowed with statehood

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has sovereignty, but sovereignty itself is not a Grounds for Secession


precondition but only an attribute, or “an 1. Colonization;
incident or consequence of statehood.” 2. Alien subjugation, domination, or
exploitation outside the colonial context;
3. Remedial Secession: When a people is
ii. Declaration of independence blocked from the meaningful exercise of its
General Rule: International law contains to right to self-determination internally, it is
prohibition on declarations of independence. entitled, as a last resort, to exercise it by
secession. [In re Secession of Quebec (Can.,
Exception: If the declaration is connected with 1998)]
(1) the unlawful use of force or (2) other  This ground may take the form of
egregious violations of jus cogens norms. massive human rights violations or
Hence, the Kosovo declaration of inadequate political representation.
independence did not violate general  However, it remains unclear whether
international law just because it was unilateral. this third ground actually reflects an
[Kosovo Advisory Opinion (ICJ, 2008)] established international law
standard (or is merely lex ferenda). [In
iii. Right to self-determination re Secession of Quebec (Can., 1998)]

Internal self-determination vs. External self- c) Recognition


determination:
 Through internal self-determination, the Concept
state recognizes a people’s pursuit of its  Recognition is an act by which a state
political, economic, social and cultural acknowledges the existence of another state,
development within the framework of an government or belligerent community and
existing state. indicates willingness to deal with the entity
 A right to external self-determination (which as such under international law.
in this case potentially takes the form of the  Not a legal duty: As a public act of state,
assertion of a right to unilateral secession) recognition is an optional and political act
arises in only the most extreme of cases and, and there is no legal duty in this regard.
even then, under carefully defined
circumstances. [Akbayan v. Aquino (2008, Two views:
on the MOA-AD) citing In re Secession of 1. Declaratory School: Recognition is a mere
Quebec (Can., 1998) declaration or acknowledgement of an
existing state of law and fact, legal
Secession: Secession is the effort of a group or personality having been previously conferred
section of a state to withdraw itself from the by operation of law. This is the prevailing
political and constitutional authority of that view.
state, with a view to achieving statehood for a 2. Constitutive School: The political act of
new territorial unit on the international plane. recognition is a precondition to the existence
[In re Secession of Quebec (Can., 1998)] of legal rights of a state. In its logical
extreme, this is to say that the very
personality of a state depends on the
political decision of other states. This is the
minority view. [BROWNLIE]

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Legal functions that dealing or not dealing with the


The typical act of recognition has two legal government established through a political
functions: upheaval is not a judgment on the legitimacy
1. Evidence of statehood: The determination of of the said government. [After Mexican
statehood as a question of law which may Minister Genaro Estrada (1930)] [SHAW]
have evidential effect before a tribunal; and
2. Establishment of relations: A condition of the B. INTERNATIONAL ORGANIZATIONS
establishment of formal, optional, and
bilateral relations, including diplomatic Generally, special personality: The status and
relations and the conclusion of treaties. powers of an international organization is
[BROWNLIE] determined by agreement and not by general or
customary international law. They are
Effects considered subjects of international law “if their
1. Establishment of diplomatic relations; legal personality is established by their
2. Grant of right to sue in courts of recognizing constituent instrument.”
state; Further, its constituent rights and duties, or
3. Grant of right to possession of properties of capacities and immunities, are limited to those
predecessor in the recognizing state; set forth in the treaty creating the international
4. Retroactive validity: All acts of the organization. Thus, legal personality in this
recognized state or government are context is a relative concept. [MAGALLONA]
validated retroactively, preventing the
recognizing state from passing upon their Exception: United Nations: The United Nations
legality in its own court. has objective international personality. Its
personality is binding on the whole
Doctrines on Recognition of De Facto international community, including States who
Governments are not UN members. [Reparations for Injuries
1. Wilson/Tobar Doctrine: Also known as Advisory Opinion (ICJ, 1949)]
“Doctrine of Legitimacy” or “Policy of
Democratic Legitimacy.” Holds that Preconditions for international personality
governments which came into power by 1. It must constitute a permanent association
extra-constitutional means [e.g. revolution, of states, with lawful objects, equipped with
civil war, coup d’etat or other forms of organs;
internal violence] should not be recognised, 2. There must be a distinction, in terms of legal
at least until the change had been accepted powers and purposes, between the
by the people. [After US President Wilson, organization and its member states; and
1913 and Ecuadorian FM Tobar (1907)] 3. It must have legal powers that it may
2. Stimson Doctrine: Doctrine of not exercise on the international plane and not
recognizing any situation, treaty or solely within the national systems of one or
agreement brought about by non-legal more states. [BROWNLIE]
means. Precludes recognition of any
government established as a result of
external aggression. [After US Sec. of State
Henry Stimson (1932)]
3. Estrada Doctrine: Automatic recognition of
governments in all circumstances. Posits

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Capacity to bring claim for reparation of the d. The London Agreement of the International
United Nations Military Tribunal at Nuremberg, relating to
 As the “supreme type of international crimes against peace, war crimes and crimes
organization,” the UN must be deemed to against humanity, imposed duties and
have such powers which, though not liabilities upon individuals as well as upon
expressly granted in its Charter, are states.
conferred upon it by necessary implication as e. Convention on the Prevention and
being essential to the performance of its Punishment of the Crime of Genocide, art. VI
duties. defined “parties charged with genocide” as
 Thus, though the UN Charter did not including individuals. [MAGALLONA]
expressly clothe the UN with the capacity to f. The International Criminal Court has
bring an international claim for reparations, jurisdiction over individuals who commit
the UN nevertheless possessed functional genocide, crimes against humanity and war
personality. [Reparations for Injuries crimes, subject to conditions under the ICC
Advisory Opinion (ICJ, 1949)] Statute. [ICC Stat., art. 25(1) in relation to art.
5]
C. INDIVIDUALS
V. Diplomatic and
 Special personality: Individuals may assume
the status of subjects of international law Consular Law
only on the basis of agreement by states and
in specific context, not in accordance with A. DIPLOMATIC INTERCOURSE
general or customary international law. Diplomatic intercourse, also referred to as the
right of legation, is the right of a state to send
Examples and receive diplomatic missions, which enables
a. UNCLOS, art. 187(c)-(e) provides for states to carry on friendly intercourse.
jurisdiction of the Sea-Bed Disputes
Chamber of the ITLOS over disputes between Diplomatic relations and diplomatic missions
parties to contracts relating to the are separately established by mutual consent.
exploitation of marine resources. Parties to [See Vienna Conv. on Diplomatic Rel. (“VCRD”),
such contracts may be natural or juridical art. 2]
persons.
b. The Claims Settlement Declaration of 1981 A State may have diplomatic relations without a
between US and Iran provides for direct diplomatic mission, e.g. through non-resident
access to the Iran-US Claims Tribunal to ambassadors. [MAGALLONA]
individuals for the settlement of their claims
involving more than $250,000 either against a) Agents of diplomatic intercourse
Iran or the US.
c. The Mixed Claims Tribunals established in i. Head of state
the Treaties of Peace concluded at the end of The head of State represents the sovereignty of
World War I provided for locus standi of the State, and enjoys the right to special
individuals in actions against states relating protection for his physical safety and the
to contracts, debts, and property adversely preservation of his honor and reputation.
affected by the war.

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Upon the principle of extraterritoriality, his nationals, within the limits allowed by
quarters, archives, property and means of international law;
transportation are inviolate. 3. Negotiate with the government of the
He is immune from criminal and civil receiving State;
jurisdiction, except when he himself is the 4. Ascertain, by all lawful means, the
plaintiff, and is not subject to tax or exchange or conditions and developments in the
currency restrictions. receiving State and reporting the same
to the sending State;
ii. Foreign office 5. Promote friendly relations between the
The body entrusted with the conduct of actual sending State and receiving State, and
day-to-day foreign affairs. developing their economic, cultural and
It is headed by a secretary or a minister who, scientific relations. [VCRD, art. 3(1)]
in proper cases, may make binding declarations 6. If diplomatic relation is severed, entrust
on behalf of his government [Eastern Greenland the protection of its nationals to the
Case (PCIJ, 1933)] diplomatic mission of a third state
acceptable to the receiving state. [VCDR,
III. DIPLOMATIC CORPS
art. 45]
This refers to the collectivity of all diplomatic
7. May protect the interest of a third State
envoys accredited to a state composed of:
by agreement with the receiving State, if
1. Head of mission, classified into:
there is no diplomatic relations between
a) Ambassadors or nuncios, accredited to
the third state and the receiving state.
heads of state, and other heads of
[VCDR, art. 46] [MAGALLONA]
mission of equivalent rank;
b) Envoys, Ministers and Internuncios,
c) Immunities and privileges
accredited to heads of state;
c) Charges d’affaires, accredited to
THEORETICAL BASES – DIPLOMATIC IMMUNITIES AND PRIVILEGES
Ministers of Foreign Affairs; HAVE BEEN JUSTIFIED UNDER THE FOLLOWING THEORIES:
2. Diplomatic staff, engaged in diplomatic 1. Extraterritoriality theory: The premises of the
activities and are accorded diplomatic diplomatic mission represent a sort of
rank; extension of the territory of the sending
3. Administrative and technical staff, those State.
employed in the administrative and 2. Representational theory: The diplomatic
technical service of the mission; mission personifies the sending State.
4. Service staff, engaged in the domestic 3. Functional necessity theory: The privileges
service of the mission. [NACHURA] and immunities are necessary to enable the
diplomatic mission to perform its functions.
In the Philippines, the President appoints, sends [MAGALLONA] This theory was adopted by the
and instructs the diplomatic and consular ILC when it drafted the draft articles of the
representatives. [CONST. art. VII, sec. 16] VCRD. [Id.]

b) Functions and duties of agents


1. Represent the sending State in the
receiving State;
2. Protect in the receiving State the
interests of the sending State and its

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i. Personal inviolability the peace of the mission or impairment of its


dignity.
Aspects
1. The duty of the receiving State to refrain  The principle of inviolability continues to
from exercising its sovereign rights, in apply even if diplomatic relations are broken
particular law enforcement rights against the off, or if a mission is permanently or
diplomat; temporarily recalled. In that case, the
receiving state must respect and protect the
General rule: The diplomatic representative premises of the mission, together with its
shall not be liable to any form of arrest or property and archives. [VCDR, art. 45]
detention.  “Premises of the mission” mean the buildings
or parts of the buildings and the land
Exception: The diplomatic envoy may be ancillary thereto used for the purposes of the
arrested temporarily in case of urgent danger, mission including the residence of the
such as when he commits an act of violence diplomatic agent. [VCDR, art. 30] This is
which makes it necessary to put him under irrespective of the ownership of the premises
restraint for the purpose of preventing [MAGALLONA, citing ILC Yearbook]
similar acts. [Diplomatic and Consular Staff  The inviolability of the premises appears to be
in Tehran Case (ICJ, 1980)]. absolute. [SHAW] The envoy must consent to
such entry. Such premises cannot be entered
2. The duty to treat him with due respect and or searched, and neither can the goods,
protect his person, freedom or dignity from records and archives be detained by local
physical interference by other persons. authorities even under lawful process.
[VCRD, art. 22] Portions of the draft VCRD which provided
an exception for emergencies were rejected.
 The receiving State shall treat him with  Also, the service of writs, summons, orders or
due respect and take all steps to prevent processes within the premises of mission or
any attack on his person, freedom or residence of the envoy is prohibited. Even if a
dignity [VCDR. art. 29]. criminal takes refuge within the premises,
the peace officers cannot break into such
Scope: The inviolability of a diplomatic agent
covers: premises to apprehend the same.
1. His private residence; o The fugitive should, however, be
2. Papers and correspondence; surrendered upon demand by local
3. Property, generally. authorities, except when the right of
asylum exists.
ii. Inviolability of premises of the mission and
archives
This consists of two elements:
1. The duty of the receiving state to refrain from
entering the premises, except with the
consent of the head of the mission; and
2. The special duty of the receiving state to
protect the premises against any intrusion or
damage and to prevent any disturbance of

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iii. Right to official communication Duration of immunities and privileges


The envoy is entitled to fully and freely  Beginning: From the moment the person
communicate with his government. enters the territory of the receiving state to
1. The receiving state shall permit and protect take up his post;
free communication on the part of the  End: When he (a) exits the country, or (b)
mission for all official purposes; upon expiration of a reasonable period in
2. The mission may employ all appropriate which to leave the country. [VCRD, art. 39]
means to send and receive messages by any
of the usual modes of communication or by Waiver of immunity from jurisdiction
diplomatic courier, which shall enjoy In proceedings, whether criminal, civil or
inviolability; administrative, the waiver must be (1) made by
3. The official correspondence of the mission is the sending State itself and (2) express. [VCRD,
inviolable; and art. 32]
4. The diplomatic bag shall not be opened or State practice indicates that the authority to
detained [VCDR, art. 27]. exercise the waiver rests with the sovereign
organs, and not the diplomatic agent or official
iv. Immunity from local jurisdiction himself. [MAGALLONA]

PERSONS ENTITLED Criminal jurisdiction


1. Diplomatic agent and family: Diplomatic
 A diplomatic agent enjoys immunity from
agent and members of the family of the
criminal jurisdiction of the receiving State
diplomatic agent forming part of his
[VCDR, art. 31].
household, who are not nationals of the
 He may not be arrested, prosecuted,
receiving state;
prosecuted or punished for any offense he
2. Administrative and technical staff:
may commit, unless his immunity is waived.
 As to criminal jurisdiction, members of
 This privilege, however, only exempts a
the administrative and technical staff of
diplomatic agent from local jurisdiction. It
the diplomatic mission, as well as
does not import immunity from legal liability.
members of their families forming part
of their respective households, who are
Civil and administrative jurisdiction
not nationals of or permanent residents
General rule: The diplomatic agent enjoys
in the receiving state;
immunity from the civil and administrative
 As to civil and administrative
jurisdiction of the receiving state, even with
jurisdiction, immunity shall not extend
respect to his private life. [VCDR, art. 31]
to acts performed outside the course of
their duties; and
Exceptions:
3. Service staff: Members of the service staff of
1. A real action relating to private
the diplomatic mission, who are not
immovable property situated in the
nationals of or permanent residents in the
territory of the receiving state, unless he
receiving state, with respect to acts
holds it in behalf of the sending state
performed in the course of their duties
for the purposes of the mission;
[VCDR, art. 37].
2. An action relating to succession in
which the diplomatic agent, involved as
executor, administrator, heir or legatee,

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as a private person and not on behalf of Exceptions:


the sending state; 1. As to the sending state, exemption does
3. An action relating to any professional or not include dues or taxes which
commercial activity exercised by the represent payment for specific services
diplomatic agent in the receiving state rendered. [VCDR, art. 23(1)]
outside his official functions. [VCDR, art. 2.As to diplomatic agents, the following are
31(1)] not included:
a. Indirect taxes incorporated in the
 His properties, however, are not subject to price of goods purchased or services
garnishment, seizure for debt, execution and availed;
the like. b. Dues and taxes on private
 Cannot be compelled to give evidence: The immovable property situated in the
diplomatic agent also cannot be compelled receiving state;
to testify, not even by deposition, before any c. Estate, succession or inheritance
judicial or administrative tribunal in the taxes levied by the receiving state;
receiving state without the consent of his d. Dues and taxes on private income
government. sourced within the receiving state;
e. Capital taxes on investments in
Exemption from taxes and customs duties commercial ventures in the
General rule: receiving state;
1. As to the sending state, exemption f. Charges levied for specific services
applies to the “premises of the mission” rendered;
whether owned or leased, with respect g. Registration, court or record fees,
to “all national, regional or municipal mortgage dues and stamp duty,
dues and taxes” [VCDR, art. 32]. with respect to immovable property.
2. As to diplomatic agents, they are [VCDR, art. 34]
exempt from all dues and taxes,
whether personal or real, national, Who are entitled to tax exemptions:
regional or municipal. [VCDR, art. 34] 1. Diplomatic agent and household: Members
of the family of the diplomatic agent
 He is also exempt from all customs forming part of his household, who are not
duties of articles for the official use of nationals of the receiving state;
the mission and those for the personal 2. Administrative and technical staff: Members
use of the envoy or members of the of the administrative and technical staff of
family forming part of his household, the diplomatic mission, as well as members
including articles intended for his of their families forming part of their
establishment. respective households, who are not
 Baggage and effects are entitled to nationals of or permanent residents in the
free entry and are usually exempt receiving state;
from inspection. 3. Service staff: Members of the service staff of
the diplomatic mission, who are not
nationals of or permanent residents in the
receiving state, with respect to emoluments
they receive by reason of their employment;

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4. Private servants: Private servants of d. Consular Functions


members of the mission if they are not CONSULAR FUNCTIONS INCLUDE THE FOLLOWING:
nationals or permanent residents of the 1. Protecting the interests of the sending state
receiving state, with respect to emoluments in the territory of the receiving state;
they receive by reason of their employment. 2. Protecting and assisting the nationals of the
[VCDR, art. 37] sending state;
3. Furthering the development of commercial,
economic, cultural and scientific relations
B. CONSULAR RELATIONS
between the sending state and the receiving
a. Establishment and severance
state and promoting friendly relations
 Consular relations are established by between them;
mutual consent. [Vienna Convention on 4. Ascertaining by all lawful means the
Consular Relations (“VCCR”), art. 2] conditions and developments in the
 The consent given to the establishment commercial, economic, and cultural and
of diplomatic relations between two scientific life of the receiving state, reporting
States implies consent to the thereon to the government of the sending
establishment of consular relations, state, and giving information to persons
unless otherwise stated. [Id.] interested;
 But the severance of diplomatic 5. Issuing passports and travel documents to
relations shall not ipso facto involve the nationals of the sending state and visas and
severance of consular relations. [Id.] travel documents to persons wishing to
 The above are rules of customary travel to the sending state;
international law. [MAGALLONA, citing 6. Acting as notary, civil registrar and similar
ILC] administrative capacities; and
7. Exercising rights of supervision and
b. Consuls inspection pertaining to the sending state as
Consuls are state agents residing abroad mainly flag state and state of registry of aircraft.
for the following purposes:
1. In the interest of commerce and navigation; E. RIGHT TO CONSULAR ASSISTANCE
2. Issuance of visa (permit to visit his country);  Diplomatic protection: The right of a state to
and claim rights for its nationals abroad.
3. Such other functions as are designed to  States have a positive duty to accord
protect nationals of the appointing state. consular privileges to sending states whose
[VCCR, art. 9] nationals have run into trouble in the
jurisdiction of the receiving states. [Avena
c. Ranks
Case (ICJ, 2004) and LaGrand Case (ICJ,
1. Consul general heads several consular
2001)]
districts, or one exceptionally large consular
See VCCR, art. 36(1), which gives consular
district;
officers the right to communicate with
2. Consul is in charge of a small district or town
nationals of the sending state and to have
or port;
access to them, and give consular officers
3. Vice Consul assists the consul;
the right to visit a national of the sending
4. Consular agent is one entrusted with the
state who is in prison, custody or detention.
performance of certain functions by the
[LaGrand Case (ICJ, 2001)]
consul.

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 Hence, the duty of the (sending) state is to ii. Inviolability of consular premises
ensure that other states treat their nationals Inviolability of the consular premises has the
abroad in a manner that complies with following scope:
human standards recognized under the 1. Authorities of the receiving state shall not
International Covenant on Civil and Political enter that part of the consular premises
Rights, among others documents. exclusively used for consular work, except
 N.B. However, the VCCR violation does not with the consent of the head of the consular
automatically result in the partial or total post, his designee, or the head of the
annulment of conviction or sentence. [Avena diplomatic mission; but consent of the
Case (ICJ, 2004)] consular head may be assumed in case of
fire or other disaster requiring prompt
f. Necessary documents protective action;
The following documents are necessary for the  Note that this “assumed consent” is not
assumption of consular functions: available as to the inviolability of the
1. Letters patent (letter de provision): The premises of the mission.
letter of appointment or commission which 2. The receiving state has the special duty to
is transmitted by the sending state to the take all appropriate steps to protect the
Secretary of Foreign Affairs of the country consular premises against intrusion or
where the consul is to serve; [VCCR, art. 11] damage and to prevent any disturbance of
and peace of the consular post or impairment of
2. Exequatur: The authorization given to the its dignity;
consul by the sovereign of the receiving 3. Consular premises, their furnishings, the
State, allowing him to exercise his function property of the consular post and its means
within the territory. [VCCR, art. 12(1)] of transport shall be immune from any form
o The receiving State may refuse to give of requisition for purposes of national
an exequatur and is not required to defense or public utility;
give its reasons for refusal. [VCCR, art. 4. In case of consular premises, their
12(2)] furnishings, the property of the consular
post and its means of transport are
g. Immunities and privileges expropriated for national defense or public
i. Personal inviolability utility, all possible steps shall be taken to
Personal inviolability of consular officials means avoid impeding the performance of consular
that: functions, and prompt, adequate and
1. They are not liable to arrest or detention effective compensation shall be paid to the
pending trial, except in case of a grave sending state. [VCCR, art. 31]
crime and pursuant to a decision of a
competent judicial authority. Consular premises refer to “the buildings or
2. They shall not be committed to prison parts of buildings and the land ancillary thereto,
nor be subject to any other form of irrespective of ownership, used exclusively for
restriction to personal freedom, except the purposes of consular post.” Also, consular
in the case of grave crime pursuant to a premises have:
decision of competent judicial authority, 1. Exemption from local jurisdiction for
or in the execution of a final judicial offenses committed in the discharge of
decision. [VCCR, art. 41] official functions, but not for other offense,
except for minor infractions;

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2. Exemption from testifying on official v. Immunity from local jurisdiction


communications or on matters pertaining to General rule: Consular officers and employees
consular functions; are entitled to immunity from the jurisdiction of
3. Exemption from taxes, customs duties, administrative and judicial authorities in the
military or jury service; receiving state.
4. PERSONAL INVIOLABILITY OF CONSULAR OFFICIALS.
Exceptions: This immunity shall not apply to a
Iii. Inviolability of archives civil action either:
The inviolability of archives is unconditional. 1. Arising out of a contract by a consular
They shall be inviolable at all times and officer or employee, which he did not
wherever they may be. [VCCR, art. 33] conclude expressly or impliedly as an
agent of the sending state; or
IV. FREEDOM OF COMMUNICATION
2. By a third party for damage arising from
1. The receiving state shall permit and protect
an accident caused by vehicle, vessel or
freedom of information on the part of the
aircraft in the receiving state. [VCCR, art.
consular post for all official purposes;
43]
2. In communicating with the government, the
diplomatic missions and other consular
posts of the sending state, the consular post VI. Treaties
may employ all appropriate means,
including diplomatic or consular bags and
A. CONCEPT
messages in code or cipher;
3. The official correspondence of the consular
A.1. UNDER INTERNATIONAL LAW
post shall be inviolable;
A treaty is:
4. The consular bag shall neither be opened
1. An international agreement;
nor detained. [VCCR, art. 35]
2. Concluded between states;
3. In written form;
The receiving state may, however, request that
4. Governed by international law;
the consular bag be opened if the authorities
5. Whether embodied in a single
have serious reasons to believe that the bag
instrument or in two or more related
contains something other than correspondence,
instruments; and
documents or articles intended exclusively for
6. Whatever its particular designation
official use.
[VCLT, art. 2(1)]
1. If the request is accepted, the bag may be
opened in the presence of the authorized
Under the VCLT, the term “treaty” includes all
representative of the sending state;
agreements between states, regardless of how
2. If the request is refused, the bag shall be
they are called. Thus, for purposes of
returned to its place of origin. [VCCR, art.
international law, treaties, executive
35]
agreements, exchanges of notes, etc., are all
treaties.

N.B. The definitions under the VCLT are


“without prejudice to the use of those terms or
to the meanings which may be given to them in
the internal law of any State.” [VCLT, art. 2(2)]

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A.2. UNDER PHILIPPINE LAW (c) deals with a narrower range of subject
Philippine law, however, makes a distinction matters.
between treaties and executive agreements.  Despite these differences, to be considered
Both are equally binding, but treaties require an executive agreement, the following three
the concurrence of the Senate to be effective. requisites provided under the Vienna
Convention must nevertheless concur: (a) the
Executive agreement must be between states; (b) it
Treaty
agreements must be written; and (c) it must governed by
Subject matter international law. [Bayan Muna v. Romulo
(1) Political issues, (1) Transitory effectivity,
(2011)]
(2) changes in national (2) adjusts details to
policy, carry out well- Examples of Executive Agreements
(3) involves agreements established national  A loan agreement, coupled with an
of a permanent policies and traditions,
(3) temporary, (4) exchange of notes between two
character
implements treaties, governments, constitutes an executive
statutes, policies agreement. The exchange of notes
Ratification indicated that the two governments have
Requires ratification by Does not require reached an understanding concerning
the two-thirds (2/3) of concurrence by Senate Japanese loans to be extended to the
the Senate to be valid to be binding Philippines and that these loans were
and effective [CONST. art. aimed at promoting our country’s economic
VII, sec. 21] stabilization and development efforts.
[Abaya v. Ebdane (2007), where the Court
Thus, treaties have to be transformed in order applied the definition of “treaty” in the
to be part of Philippine law. A treaty is VCLT]
“transformed” when it is ratified by the Senate.  In contrast, The contract between Northrail
[CONST. art. VII, sec. 21] After ratification, a and CNMEG (the Chinese contractor) is
treaty shall be deemed as if legislated by our therefore not an executive agreement
legislature. because (1) by the terms of the contract
agreement, both Northrail and CNMEG
A.3 EXECUTIVE AGREEMENT UNDER entered into the contract agreement as
PHIL. LAW entities with personalities distinct and
Agreements concluded by the President which separate from the Philippine and Chinese
fall short of treaties are commonly referred to as governments, respectively; and (2) the
executive agreements and are no less common contract agreement itself expressly stated
in our scheme of government than are the more that is to be governed by Philippine law,
formal instruments: treaties and conventions. while as defined in the VCLT, a treaty or an
They sometimes take the form of exchange of executive agreement is governed by
notes and at other times that of more formal international law. [China National
documents denominated “agreements” or Machinery & Equipment Corp. v. Sta. Maria
“protocols.” (2012)]
 Contrasted with treaties, an executive
agreement (a) does not require legislative
concurrence; (b) is usually less formal; and

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REQUISITES FOR VALIDITY TREATY-MAKING PROCESS


1. TREATY MAKING CAPACITY, WHICH IS POSSESSED BY Negotiation. The state representative
ALL STATES AS AN ATTRIBUTE OF SOVEREIGNTY.
INTERNATIONAL ORGANIZATIONS ALSO POSSESS
1 discuss the terms and provisions of the
TREATY-MAKING CAPACITY, ALTHOUGH LIMITED BY treaty.
THE ORGANIZATION’S PURPOSE;
2. COMPETENCE OF THE REPRESENTATIVE/ORGAN
Adoption. When the form and content have
MAKING THE TREATY, WHICH MAY BE THE HEAD OF been settled by the negotiating states, the
STATE, WHICH GENERALLY HAS FULL POWERS, OR treaty is adopted. This is only preparatory to
OTHER PERSONS CALLED PLENIPOTENTIARIES, WHICH 2
(1) the authentication of the text of the
MUST PRODUCE AN INSTRUMENT SHOWING
AUTHORITY TO SIGN A TREATY BINDING THEIR treaty and (2) the signing thereof. [VCLT,
GOVERNMENT; art. 9]
3. CONSENT FREELY GIVEN BY THE PARTIES. IF
CONSENT WAS GIVEN ERRONEOUSLY, OR WAS Authentication. A definitive text of the
INDUCED BY FRAUD, THE TREATY SHALL BE 3 treaty is established as the correct and
VOIDABLE;
authentic one. [VCLT, art. 10]
4. OBJECT AND SUBJECT MATTER, WHICH MUST BE
LAWFUL; Expression of consent. The state parties
5. RATIFICATION IN ACCORDANCE WITH THE
express their consent to be bound by the
CONSTITUTIONAL PROCESS OF THE PARTIES 4
CONCERNED.
terms of the treaty. The modes of such
expression are provided in the VCLT.
IN ADDITION TO THE CONSTITUTIONAL REQUIREMENT, Registration. The treaty is then registered
RATIFICATION IS NECESSARY UNDER INTERNATIONAL with the Secretariat of the United Nations.
LAW WHEN: 5 Otherwise, the treaty may not be invoked
1. The treaty provides for consent to be before any UN organ [UN Charter, art.
expressed by means of ratification; 102(2)] including the ICJ.
2. It is otherwise established that the
negotiating states agreed that
In the Philippines, the negotiation of treaties
ratification should be required;
and their ratification are executive functions,
3. The representative of the state has
subject to concurrence of the Senate.
signed the treaty subject to ratification
[VCLT, art. 14(1)], that is, when the
Consent to be bound by the terms of a treaty
intent was to make it subject to
may be expressed through:
ratification.
1. Signature, when the negotiator is
authorized to sign the treaty. This signature
Under the Philippine law, the power to ratify is
is sufficient to bind the state under the
vested in the President, subject to the
treaty if:
concurrence of the Senate. The role of the
a. The treaty provides that signature shall
Senate is limited only to giving or withholding
have that effect;
its consent, or concurrence, to the ratification.
b. It is otherwise established that the
Although the refusal of a state to ratify a treaty
negotiating states agreed that
which has been signed in its behalf is a serious
signature should have that effect; or
step that should not be taken lightly, such
c. The state can be shown to have had the
decision is within the competence of the
intention to be bound by the signature
President alone, which cannot be encroached
(e.g., based on the powers of its
by Supreme Court via a writ of mandamus
representative) (Article 12(1), VCLOT);
(Pimentel v. Executive Secretary (2005)).

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2. Ratification, the formal consent to the treaty 2. If the conclusion of a treaty is procured
given by the head of state, sometimes in by threat or use of force;
conjunction with the legislature; 3. Error of fact, provided that such fact
3. Exchange of instruments constituting the formed an essential basis of a state’s
treaty; consent to be bound;
4. Acceptance; 4. If the representative of a state was
5. Approval; corrupted to consent by another
6. Accession, the method by which a state, negotiating state;
under certain conditions, becomes a party 5. If consent was obtained through
to a treaty of which it is not a signatory and fraudulent conduct of another
in the negotiation of which it did not take negotiating state;
part; 6. If the representative consented in
7. By any other means agreed by the parties. violation of specific restrictions on
authority, provided the restriction was
Amendment or modification of treaty notified to the other negotiating states
General rule: Consent of all the parties is prior to the representative expressing
required. such consent;
7. If consent was given in violation of
Exception: If the treaty itself so allows, two provisions of internal law regarding
states may modify a provision only insofar as competence to conclude treaties that is
their relationship inter se. manifest and of fundamental
importance. [VCLT]
Reservations
General rule: A reservation is a unilateral Grounds for termination
statement made by a state upon entering a 1. Expiration of the term, or withdrawal of
treaty and operates to exclude or modify the a party in accordance with the treaty;
legal effect of certain provision/s of the treaty in 2. Extinction of a party to the treaty, when
their application to the reserving state. [VCLT, the treaty rights and obligations would
art. 19] not devolve upon the successor-state;
3. Mutual agreement of parties;
Exceptions: A reservation shall not operate to 4. Denunciation or desistance by a party;
modify or exclude the provisions of a treaty: 5. Supervening impossibility of
1. Where the treaty expressly prohibits performance;
reservations in general; 6. Conclusion of a subsequent inconsistent
2. Where the treaty expressly prohibits treaty;
that specific reservation being made; or 7. Loss of subject matter;
3. Where the reservation is incompatible 8. Material breach or violation of treaty
with the object and purpose of the 9. Fundamental change in circumstance
treaty. [Reservation to the Genocide (similar to the customary norm of rebus
Conventions Advisory Opinion (ICJ, sic stantibus) such that the foundation
1951)] upon which the consent of a state to be
bound initially rested has disappeared.
Invalid treaties [VCLT, art. 62]. The requisites are:
1. If the treaty violates a jus cogens norm a. The change is so substantial that
of international law; the foundation of the treaty has

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altogether disappeared; behalf for injuries suffered by him in a foreign


b. The change was unforeseen or jurisdiction. This remedy would not be available
unforeseeable at the time of the to a stateless individual.
perfection of the treaty;
c. The change was not caused by the B. ACQUISITION OF NATIONALITY
party invoking the doctrine
d. The doctrine was invoked within a a. Birth
reasonable time; 1. Jus soli, where a person acquires the
e. The duration of the treaty is nationality of the state where he is born;
indefinite; 2. Jus sanguinis, where a person acquires
f. The doctrine cannot operate the nationality of his parents.
retroactively (it must not adversely
affect provisions which have already b. Naturalization
been complied with prior to the vital Naturalization is a process by which a person
change); acquires, voluntarily or by operation of law, the
10. Outbreak of war between the parties, nationality of another state.
unless the treaty relates to the conduct
of war; There are two (2) types of naturalization:
11. Severance of diplomatic relations, if 1. Direct:
such relationship is indispensable for a. By individual proceedings, usually
the treaty’s application; judicial, under general
12. Jus cogens application, or the naturalization laws;
emergence of a new peremptory norm b. By special act of legislature;
of general international law which c. By collective change of nationality
renders void any existing, conflicting as a result of cession or subrogation
treaty. (naturalization en masse);
d. By adoption (in some cases);
VII. Nationality and 2. Derivative, which is usually subject to
stringent restrictions and conditions:
Statelessness a. On the wife of the naturalized
husband;
b. On the minor children of the
A. NATIONALITY naturalized parent;
c. On the alien woman upon marriage
Nationality is the tie that binds and individual to to a national.
his state, from which he can claim protection
and whose laws he is obliged to obey. It is
C. MULTIPLE NATIONALITY
membership in a political community with all its
concomitant rights and obligations.
Multiple nationality is acquired as the result of
the concurrent application to an individual of
Nationality is important in international law
the conflicting municipal laws of two or more
because an individual ordinarily can participate
states claiming him as their national.
in international relations only through the
instrumentality of the state to which he belongs,
as when his government asserts a claim on his

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a. Illustrations D. LOSS OF NATIONALITY


1. A child born in the United States of
Filipino parents would be an American 1. Voluntary
national under jus soli and a Filipino a. Renunciation (express or implied);
national under jus sanguinis; b. Request for release.
2. A woman marrying a foreigner may 2. Involuntary
retain her own nationality under the a. Forfeiture as a result of some
laws of her state while also acquiring disqualification or prohibited act;
the nationality of her husband under the b. Substitution of one nationality for
laws of his state. another.

b. Doctrine of indelible allegiance E. STATELESSNESS


An individual may be compelled to retain his
original nationality notwithstanding that he has Statelessness is the condition or status of an
already renounced or forfeited it under the laws individual who is born without any nationality or
of a second state whose nationality he has who loses his nationality without retaining or
acquired. acquiring another [CRUZ].

c. Conflict of nationality laws Under the Convention Relating to the Status of


UNDER THE HAGUE CONVENTION OF 1930, ANY QUESTION AS TO
WHETHER A PERSON POSSESSES THE NATIONALITY OF A
Stateless Persons (1960), a stateless person is
PARTICULAR STATE SHALL BE DETERMINED IN ACCORDANCE WITH entitled to, among others, the right to religion
THE LAW OF THAT STATE. THESE LAWS SHALL BE RECOGNIZED BY and religious instruction, access to courts,
OTHER STATES SO LONG AS THEY ARE CONSISTENT WITH
elementary education, public relief and
INTERNATIONAL CONVENTIONS, INTERNATIONAL CUSTOMS AND
THE PRINCIPLES OF LAW GENERALLY RECOGNIZED WITH REGARD TO assistance and rationing of products in short
NATIONALITY. supply, as well as treatment of no less favorable
than that accorded to aliens.
d. Principle of effective nationality
Within a third state, a person having more than
Also, under the Universal Declaration of Human
one nationality shall be treated as if he had only
Rights:
one. The third state shall recognize conclusively
1. Everyone has a right to the nationality.
in its territory either the nationality of the
2. No one shall be arbitrarily deprived of his
country in which he is habitually and principally
nationality nor denied the right to change
present or the nationality of the country with
his nationality.
which he appears to be in fact most closely
connected.
The courts of third states resolve the conflict by
having recourse to international criteria and
their prevailing tendency is to prefer the real
and effective nationality. [Nottebohm Case (ICJ,
1955)]

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VIII. State Responsibility 4. Acts done in excess of authority or in


contravention of instructions (ultra vires
acts) (art. 7);
A. DOCTRINE OF STATE 5. Conduct directed or controlled by a
RESPONSIBILITY state (art. 8);
6. Conduct carried out in the absence or
A.1. DEFINITION default of the official authorities (art. 9);
It is a set of principles for when and how states 7. Conduct of insurrectional or other
shall become responsible for breaches of movements (art. 10);
international obligation and who shall be held 8. Conduct acknowledged and adopted by
responsible for such. a state as its own (art. 11).
Every internationally wrongful act of a state
entails the international responsibility of that A.4 EFFECTIVE CONTROL
State [Articles on State Responsibility (“ASR”), In the 2007 Application of the Convention on
art. 1] the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia
N.B. Portions of the ASR codify customary and Montenegro), the ICJ held that the
international law on State responsibility. respondent could not be held responsible under
the Genocide Convention for the conduct of
A.2. ELEMENTS Serbian forces not under its control and
There is an internationally wrongful act of a direction. It thus affirmed the effective control
state when the conduct consisting of an action test, and not the over-all control test.
or omission: However, it said that the respondent is
1. Is attributable to the State under responsible for failing to prevent Serbian forces
international law; and from committing the genocide in Srebrenica.
2. Constitutes a breach of an international Consequently, the question arose as to whether
obligation of a State. [ASR, art. 2]. the respondent is also liable to pay reparations
for damages suffered by the applicant for its
The characterization of an act of a state as failure to abide by its duty to prevent genocide.
internationally wrongful is governed by The ICJ said there should be a “sufficiently
international law. Such characterization is not direct and certain causal nexus” between the
affected by the characterization of the same act damage incurred by the applicant and the
as lawful by internal law. [ASR, art. 4] respondent’s breach of the obligation to prevent
genocide. Moreover, such a nexus obtains if it is
A3. ATTRIBUTION able to establish “from the case as a whole and
UNDER THE ASR, THE FOLLOWING ACTS ARE ATTRIBUTABLE TO with a sufficient degree of certainty that the
STATES, I.E. STATES MAY BE HELD INTERNATIONALLY genocide at Srebrenica would in fact have been
RESPONSIBLE FOR THEM: averted if the respondent had acted in
1. Conducts of organs of a state (art. 4); compliance with its legal obligations.” To do
2. Conducts of persons or entities this, it must ask itself “whether, and to what
exercising elements of governmental extent” the injury asserted by the applicant is
authority (art. 5); the result of wrongful conduct by the
3. Conducts of organs placed at the respondent. Its conclusion: a financial award
disposal of a state by another state (art. cannot be done, as no such nexus can be
6); established. However, the ICJ ruled that

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satisfaction in the form of a declaration that the Injury includes any damage, whether material
respondent failed to perform its duty to prevent or moral, caused by the internationally wrongful
genocide under the Convention is in order. act of a State. [ASR, art. 31]
The applicant argued that genocide is such a
complex crime involving so many specific acts The responsible State may not rely on the
that it requires a reexamination of the effective provisions of its internal law as justification for
control test established in the Nicaragua case failure to comply with its obligations to make
(the need to establish specific direction and reparations. [ASR, art. 32]
control by the state of alleged agents who
perpetrated the crime), and proposed instead There are three forms of reparation:
the “over-all control test” reached in the Tadic 1. Restitution;
case by the International Tribunal on the 2. Compensation; and
Former Yugoslavia (ICTY). 3. Satisfaction.
The ICJ said the “over-all control test” was
only relevant in in so far as the question of the i. Restitution
characterization of the Yugoslav conflict as an A State responsible for an internationally
international armed conflict or whether or not wrongful act is under an obligation to make
the conflict has been internationalized; it is not restitution, that is, to re-establish the situation
relevant in so far but not to the task of which existed before the wrongful act was
determining whether a state is responsible for committed, provided and to the extent that
the acts of certain non-state organs involved in restitution:
that same international armed conflict. 1. Is not materially impossible;
Under the law on state responsibility, a state 2. Does not involve a burden out of all
is responsible only for the acts of its organs and proportion to the benefit of the party
per the Nicaragua case, for those non-state deriving from restitution instead of
actors over which it exercised “effective compensation. [ASR, art. 35]
control,” that is, it should have instructions or
provided the direction pursuant to which the ii. Compensation
perpetrators of the wrongful act acted. The State responsible for an internationally
wrongful act is under an obligation to
B. CONSEQUENCES OF STATE compensate for the damage caused thereby,
RESPONSIBILITY insofar as such damage is not made good by
restitution.
a. Duty to cease the act
The State responsible for the wrongful act is The compensation shall cover any financially
under the obligation to: assessable damage including loss of profits
1. Cease the act if it is still continuing; and insofar as it is established. [ASR, art. 36]
2. Offer appropriate assurances and
guarantees of non-repetition [ASR, art. iii. Satisfaction
30] The State responsible for an internationally
wrongful act is under an obligation to give
b. Duty to make reparations satisfaction for the injury caused by that act
The responsible State is under an obligation to insofar as it cannot be made good by restitution
make full reparation for the injury caused by the or compensation.
internationally wrongful act.

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Satisfaction may consist in an C. RESERVED DOMAIN OF DOMESTIC


acknowledgement of the breach, an expression JURISDICTION
of regret, a formal apology or another
appropriate modality. It is the domain of state activities where the
jurisdiction of the state is not bound by
Satisfaction shall not be out of proportion to the international law. The extent of this domain
injury and may not take a form humiliating to depends on international law and varies
the responsible State. [ASR, art. 37] according to its development (i.e., when a norm
crystallizes into custom).
IX. Jurisdiction of States
The reservation of this domain is without
prejudice to the use of enforcement measures
A. DEFINITION under UN Charter, ch. VII.

Jurisdiction means the power of a state under


D. DOCTRINE OF STATE IMMUNITY
international law to govern persons and
It refers to a principle by which a state, its
property by its municipal law. This may be
agents, and property are immune from the
criminal or civil, and may be exclusive or
jurisdiction of another state [MAGALLONA].
concurrent with other states. [HARRIS]
This principle is premised on the juridical
B. PRINCIPLES OF STATE equality of states, according to which a state
JURISDICTION may not impose its authority or extend its
jurisdiction to another state without the consent
1. Territoriality principle: Jurisdiction is of the latter through a waiver of immunity. Thus,
determined by reference to the place where domestic courts must decline to hear cases
the act occurred or was committed; against foreign sovereigns out of deference to
2. Nationality principle: A court has jurisdiction their role as sovereigns.
if the offender is a national of the forum
State; Immunity may be:
3. Protective principle: A court is vested with 1. Absolute sovereign immunity, where a
jurisdiction if a national interest or policy is state cannot be sued in a foreign court
injured or violated; no matter what the act it is sued for; or
4. Universality principle: Jurisdiction is 2. Restrictive sovereign immunity, where a
asserted with respect to acts considered state is immune from suits involving
committed against the whole world (e.g., governmental actions (jure imperii), but
piracy, see People v. Lo-lo and Saraw not from those arising from commercial
(1922)). or non-governmental activity (jure
5. Passive personality principle: A court has gestionis).
jurisdiction if the offended party of the act is
a national of the forum state. [S.S. Lotus Immunity as a customary norm
Case (PCA, 1927)]  The principle of sovereign immunity from
6. Conflicts of jurisdiction: A dispute can be suits is a customary norm of international
brought entirely or partly before two or law that holds, unless waived by the state
more states. concerned.

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 Such immunity applies even if the claim among States.” [Argentina v. Ghana (ITLOS,
against the state is for violation of a jus 2012)]
cogens norm in international law.
 Furthermore, State assets are also immune
from execution in connection with such
X. Treatment of Aliens
claim. [Jurisdictional Immunities of the State
Case (ICJ, 2012)] A. STANDARD OF TREATMENT

Who determines immunity under Philippine law  No obligation to admit aliens: Flowing from
 Under Philippine law, the DFA’s function its right to existence and as an attribute of
includes the determination of persons and sovereignty, no state is under obligation to
institutions covered by diplomatic admit aliens. The state can determine in
immunities. what cases and in under what conditions it
 When this determination is challenged, the may admit such.
DFA is entitled to seek relief from the court  Once it admits aliens, under the
so as not to seriously impair the conduct of international standard of justice, which calls
the country’s foreign relations. The DFA must for compliance with the ordinary norms of
be allowed to plead its case whenever official conduct observed in civilized
necessary or advisable to enable it to help jurisdictions, aliens should be protected by
keep the credibility of the Philippine certain minimum standards of humane
government before the international protection, however harsh the municipal
community. laws of a state may be.
 This authority is exclusive to the DFA. A  States have concomitant obligations with
determination by the OSG, or by the OGCC their rights as sovereigns over their territories
for that matter, of state immunity does not “Territorial sovereignty […] involves the
inspire the same degree of confidence as a exclusive right to display the activities of a
DFA certification. State. This right has a corollary, a duty: the
 But DFA determination is not conclusive. obligation to protect within the territory the
Even with a DFA certification, however, the rights of other States, in particular their right
court is not precluded from making an to integrity and inviolability in peace and in
inquiry into the intrinsic correctness of such war, together with the rights which each
certification. [China Nat’l Machinery & State may claim for its nationals in foreign
Equipment Corp. (Group) v. Sta. Maria territory.” [Island of Las Palmas Arb. (PCA,
(2012), or the Northrail Case] 1928)]
 However, an alien cannot claim a preferred
Immunity of warships from execution position vis-a-vis the national of the state.
A state’s naval vessel may not be proceeded [see Calvo Doctrine, infra]
against to answer for said state’s financial
liabilities to a third party. It stated that, “in B. STATE RESPONSIBILITY
accordance with general international law, a
warship enjoys immunity” and that “any act A state may be held responsible for:
which prevents by force a warship from 1. An international delinquency;
discharging its mission and duties is a source of 2. Directly or indirectly imputable to it;
conflict that may endanger friendly relations

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3. Which causes injury to the national of D. EXTRADITION


another state.
Extradition means the surrender of a person by
Liability will attach to the state where its one state to another state where he is wanted
treatment of the alien falls below the for prosecution or, if already convicted, for
international standard of justice or where it is punishment [CRUZ].
remiss in according him the protection or
redress that is warranted by the circumstances. It is also the removal of an accused from the
The propriety of governmental acts should Philippines with the object of placing him at the
be put to the test of international standards. disposal of foreign authorities to enable the
The treatment of an alien, in order to constitute requesting state or government to hold him in
an international delinquency, should amount to connection with any criminal investigation
an outrage, to bad faith, to willful neglect of directed against him in connection with any
duty, or to an insufficiency of governmental criminal investigation directed against him or
action so far short of international standards the execution of a penalty imposed on him
that every reasonable and impartial man would under the penal or criminal law of the
readily recognize its insufficiency [Neer Case requesting state or government. [Pres. Dec.
(PCIJ, 1926)]. 1086]

For the enforcement of this state responsibility, Governed by treaty: Extradition is governed by
the following must be complied with: treaty between the state of refuge and the state
1. Exhaustion of local administrative of origin.
remedies;
2. Representation of the alien by his own state a) Fundamental principles
in the international claim for damages. 1. Extradition is based on the consent of
the state of the state of asylum as
C. CALVO CLAUSE expressed in a treaty or manifested as
an act of goodwill.
A stipulation which states that the foreign party 2. Principle of specialty: A fugitive who is
must rely exclusively on local remedies and not extradited may be tried only for the
seek any diplomatic protection. crime specified in the request for
extradition and included in the list of
Rationale: (1) Non-intervention; and (2) aliens offenses in the extradition treaty.
are entitled only to such rights as are accorded 3. Any person may be extradited, whether
nationals and thus had to seek redress for he be a national of the requesting state,
grievances exclusively in the domestic arena. of the state of refuge or of another state.
[SHAW] 4. Political and religious offenders are
e.g. A stipulation may be made by virtue of generally not subject to extradition. For
which an alien waives or restricts his right to the purpose of extradition, genocide
appeal to his own state in connection with any and murder of the head of state or any
claim arising from a contract with a foreign member of his family are not political
state and limits himself to the remedies offenses.
available under the laws of that state. 5. In the absence of special agreement,
the offense must have been committed

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within the territory or against the c) Extradition and deportation distinguished


interests of the demanding state. Extradition Deportation
6. Rule of double criminality: The act for Effected at the request Unilateral act of the
which extradition is sought must be of another state state
punishable in both the requesting and
Based on offenses Based on causes arising
requested states.
committed in the state in the local state.
of origin
b) Procedure
Calls for the return of An undesirable alien
A request for extradition is presented the fugitive to the may be deported to a
through diplomatic channels to the state of requesting state state other than his own
1
refuge with the necessary papers for or the state of origin.
identification.

2
The request is received by the state of
refuge.
XI. International Human
A judicial investigation is conducted by the Rights Law
state of refuge to ascertain if the crime is
3 covered by the extradition treaty and if Definition
there is a prima facie case against the Human rights are those fundamental and
fugitive according to its own laws. inalienable rights which are essential for life as
If there is a prima facie case, a warrant of a human being. They pertain to rights of an
4 surrender will be drawn and the fugitive will individual as a human being which are
be delivered to the state of origin. recognized by the international community as a
whole through their protection and promotion
The evaluation process partakes of the nature of under contemporary international law.
a criminal investigation, having consequences
which will result in deprivation of liberty of the Classification
prospective extraditee. A favorable action in an 1. First generation rights consist of civil
extradition request exposes a person to and political rights;
eventual extradition to a foreign country, thus 2. Second generation rights consist of
exhibiting the penal aspect of the process. economic, social and cultural rights;
3. Third generation rights consists of the
The evaluation process itself is like a rights to development, to peace, and to
preliminary investigation since both procedures environment.
may have the same result: the arrest and
imprisonment of the respondent. The basic First generation Second generation
rights of notice and hearing are applicable in Obligatory force
criminal, civil and administrative proceedings. Strictly (or objectively) Relatively obligatory,
Non-observance of these rights will invalidate obligatory, whatever the states are required to
the proceedings. Individuals are entitled to be economic or other progressively achieve
notified of any pending case affecting their conditions of the states the full realization of
interests, and upon notice, may claim the right obligated
these rights “to the
to appear therein and present their side maximum of their
[Secretary of Justice v. Lantion (2000)]. available resources”

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Derogation/restriction 8. Right to peaceful assembly and


association;
May only be derogated May be restricted for
in a public emergency
9. The right to take part in the government
the general welfare,
of his country.
with or without an
“emergency that
The economic, social and cultural rights
threatens the
enumerated include:
independence or
1. The right to social security;
security of a state
2. The right to work and protection against
party.”
unemployment;
3. The right to equal pay for equal work;
A. UNIVERSAL DECLARATION OF 4. The right to form and join trade unions;
HUMAN RIGHTS 5. The right to rest and leisure.

The UDHR is the first comprehensive catalogue B. INTERNATIONAL COVENANT ON


of human rights proclaimed by an international CIVIL AND POLITICAL RIGHTS
organization.
The ICCPR is an international covenant and is
It is not a treaty. It has no obligatory character binding on the respective state parties.
because it was adopted by the UN General
Assembly as Resolution 217A (III). As a It embodies the first generation of human rights,
resolution, it is merely recommendatory. although it lists more rights than the UDHR:
1. The right to own property;
Despite this, the UDHR is considered a 2. The right to seek in other countries
normative instrument that creates binding asylum from prosecution;
obligations for all states because of the 3. The right of members of ethnic,
consensus evidenced by the practice of states religious or linguistic groups not to be
that the UDHR is now binding as part of denied to enjoy their own culture, to
international law [CARILLO]. profess and practice their own religion,
or to use their own language;
The UDHR embodies both first and second 4. The right to compensation in case of
generation rights. The civil and political rights unlawful arrest;
enumerated include: 5. The right to legal assistance in criminal
1. The right to life, liberty, privacy and prosecution;
security of person; 6. The right against self-incrimination;
2. Prohibition against slavery; 7. Protection against double jeopardy;
3. The right not to be subjected to 8. Right to review by higher tribunal in
arbitrary arrest, detention or exile; case of criminal conviction;
4. The right to fair trial and presumption of 9. Right of every child to nationality;
innocence; 10. Right to protection of a child as required
5. The right to a nationality; by his status as a minor;
6. The right to freedom of thought,
11. Right of persons below 18 years old not
conscience and religion; to be sentenced to death for crimes;
7. The right to freedom of opinion and
expression;

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12. Right against the carrying out of death 4. Rights to enjoy the benefits of scientific
sentence on the part of a pregnant progress;
woman. 5. Freedom for scientific research and
creativity.
The following are obligations of state parties
under the ICCPR: Under the ICESCR, state parties are required to
1. State parties undertake to respect and undertake the necessary steps to the maximum
to ensure to all individuals within their of its available resources, with a view to
territory the rights enumerated therein, achieving progressively the full realization of
without distinction of any kind, such as the rights enumerated in the covenant by all
race, color, sex, language, religion, appropriate means.
political or other opinion, national or
social origin, birth or other status.
2. State parties are required to take the
necessary steps to adopt legislative or Common provisions in the ICCPR and ICESCR
other measures that are necessary to The common provisions of the two covenants
give effect to the rights recognized in deal with collective rights, namely:
the ICCPR. 1. The right of self-determination of
3. State parties must ensure that any peoples;
person whose rights or freedoms are 2. The right of peoples to freely dispose of
violated have an effective remedy, their natural wealth and resources;
notwithstanding that the violation has 3. The right of peoples not to be deprived
been committed by persons action in an of their own means of subsistence.
official capacity.
4. State parties must ensure that any These rights were not covered by the UDHR.
person claiming such remedy shall have
his right thereto determined by
competent judicial, administrative or
XII. International
legislative authority, and that they shall
enforce the remedy when granted.
Humanitarian Law
Definition
C. INTERNATIONAL COVENANT ON
International Humanitarian Law (IHL) is the
ECONOMIC, SOCIAL AND CULTURAL branch of public international law which
RIGHTS governs armed conflicts to the end that the use
of violence is limited and that human suffering
The ICESCR, like the ICCPR, is an international is mitigated or reduced by regulating or limiting
covenant and is binding on the respective State the means of military operations and by
Parties. protecting those who do not or no longer
It embodies the second generation of human participate in the hostilities.
rights, although it lists more rights than the
UDHR: It has two branches:
1. Right to health; 1. Law of The Hague, which establishes
2. Right to strike; the rights and obligations of
3. Right to be free from hunger; belligerents in the conduct of military

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operations, and limits the means of 1990)], regardless of the reasons or the intensity
harming the enemy; and of this confrontation.
2. Law of Geneva, which is designed to
safeguard military personnel who are no Relevant rules of IHL may be applicable even in
longer taking part in the fighting and the absence of open hostilities. Moreover, no
people not actively engaged in formal declaration of war or recognition of the
hostilities (i.e. civilians). [International situation is required.
Committee of the Red Cross (“ICRC”)].
The existence of an international armed conflict,
PHILIPPINE PRACTICE
RA 9851 WAS ENACTED ON DECEMBER 11, 2009. IT IS THE
and as a consequence, the possibility to apply
PHILIPPINE ACT ON CRIMES AGAINST INTERNATIONAL IHL to this situation, depends on what actually
HUMANITARIAN LAW, GENOCIDE, AND OTHER CRIMES AGAINST happens on the ground. It is based on factual
HUMANITY. ITS POLICIES ARE:
conditions. [ICRC]
1. The Philippines renounces war as an
b) Internal or non-international armed conflicts
instrument of national policy, adopts
The main legal sources in this regard are the
the generally accepted principles of
Common Article 3, Geneva Conventions, and
international law as a part of the law of
Article 1, Additional Protocol II.
the land.
2. The state adopts the generally accepted
Common Article 3 applies to “armed conflicts
principles of international law, including
not of an international character occurring in
the Hague Conventions of 1907, the
the territory of one of the High Contracting
Geneva Conventions on the protection
Parties.” These include armed conflicts in which
of victims of war and international
one or more non-governmental armed groups
humanitarian law, as part of the law our
are involved.
nation.
Article 1 develops Common Article 3. It applies
A. CATEGORIES OF ARMED CONFLICT to:
1. All armed conflicts which take place in
IHL distinguishes two types of armed conflicts, the territory of a state party;
namely: 2. Between its armed forces and dissident
1. International armed conflicts, opposing armed forces or other organized groups;
two or more States, and 3. Which, under responsible command,
2. Non-international armed conflicts, exercise such control over a part of its
between governmental forces and non- territory;
governmental armed groups, or 4. As to enable to carry out sustained and
between such groups only. concerted military operations and to
implement the Protocol.
An internationalized non-international armed
conflict is a civil war characterized by the IHL also establishes a distinction between non-
intervention of the armed forces of a foreign international armed conflicts in the meaning of
power [GASSER]. Common Article 3, Geneva Conventions of 1949
a) International armed conflicts and non-international armed conflicts falling
An international armed conflict occurs when within the definition provided in Article 1,
one or more states have recourse to armed force Additional Protocol II.
against another state [Prosecutor v. Tadic (ICTY,

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The definition under the Article 1 is narrower any attempt to suppress such struggle is
than that under Common Article 3: unlawful (Resolution 3103 (XXVIII)).
1. It introduces a requirement of territorial
control, by providing that non- When peoples subjected to alien domination
governmental parties must exercise resort to forcible action in order to exercise their
such territorial control “as to enable right to self-determination, they “are entitled to
them to carry out sustained and seek and to receive support in accordance with
concerted military operations and to the purposes and principles of the Charter.” [UN
implement this Protocol.” GA Reso. 2625 (XXV)]
2. Additional Protocol II expressly applies
only to armed conflicts between State B. CORE INTERNATIONAL
armed forces and dissident armed OBLIGATIONS OF STATES IN IHL
forces or other organized armed groups.
However, Additional Protocol II “develops and COMMON ARTICLE 1 OF ALL FOUR GENEVA
supplements” Common Article 3 “without CONVENTIONS IS A KEY PROVISION WHEN IT COMES TO
modifying its existing conditions of application” A STATE’S RESPONSIBILITIES UNDER IHL. IT PROVIDES
(Article 1, 1st par.). This means that the THAT STATES ARE RESPONSIBLE TO “RESPECT AND
restrictive definition is relevant for the ENSURE RESPECT” FOR THE CONVENTIONS IN ALL
application of Protocol II only, but does not CIRCUMSTANCES.
extend to the law of non-international armed
conflict in general. IN GENERAL, IHL DEFINES THE FOLLOWING
OBLIGATIONS:
In any case, while Common Article 3 is 1. Parties to an armed conflict, together
recognized as a customary norm of with their armed forces, do not have
international law and binding to all states, unlimited choice of methods or means
Additional Protocol II is a treaty binding only to of warfare. They are prohibited from
state parties. Its rules may, however, develop employing weapons or means of
onto customary norms (ICRC). warfare that cause unnecessary damage
or excessive suffering.
c) War of national liberation 2. Parties to an armed conflict shall, at all
An armed conflict may be of such nature in times, distinguish between civilian
which peoples are fighting against colonial population and the combatants
domination and alien occupation and against (principle of distinction). Civilians shall
racist regimes in the exercise of their right to be spared from military attacks which
self-determination. shall be directed only against military
objectives.
This conflict is considered an international 3. Persons hors de combat are those who
armed conflict under Article 1, 3rd and 4th pars., have been injured in the course of
Protocol 1. hostile battle action and are no longer
able to directly take part in hostilities.
Wars by peoples against racist, colonial and They shall be protected and treated
alien domination “for the implementation of humanely without any adverse
their right to self-determination and distinction. Their right to life and
independence is legitimate and in full accord physical and moral integrity shall be
with principles of international law,” and that respected.

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4. It is prohibited to kill or injure an enemy 2. He clearly expresses an intention to


who is hors de combat or who surrender; or
surrenders. 3. He has been rendered unconscious or is
5. The wounded and the sick shall be otherwise incapacitated by wounds or
protected and cared for by the party to sickness, and is therefore incapable of
the conflict which has them in its power. defending himself, provided that in any
Protection shall also apply to medical of these cases, he abstains from any
personnel, establishments, transports hostile act and does not attempt to
and material. escape.
6. Combatants and civilian who are
captured by authority of the party to a Persons hors de combat shall be protected and
dispute are entitled to respect for their treated humanely without any adverse
right to life, dignity, conviction, and distinction. Their right to life and physical and
other personal rights. They shall be moral integrity shall be respected.
protected against acts of violence or
reprisals. [Legality of the Threat or Use c) Protected persons
of Nuclear Weapons Advisory Opinion THEY ARE THOSE WHO ENJOY OR ARE
(1996)] ENTITLED TO PROTECTION UNDER THE
GENEVA CONVENTIONS. CATEGORIES OF
The ICCPR, particularly its protection on the PROTECTED PERSONS INCLUDE:
right to life, does not determine the legality of 1. The wounded, the sick, and
the use of nuclear weapons in an armed shipwrecked;
conflict. What applies is the lex specialis, which 2. Prisoners of war;
is the IHL. It determines whether the taking of 3. Civilians.
life in times of war has been arbitrary.
D) CIVILIANS
For purposes of protection, civilians are further
C. PRINCIPLES OF IHL classified as:
1. Civilians who are victims of conflict in
a) Combatants countries involved;
Members of the armed forces of a party to a 2. Civilians in territories of the enemy;
conflict (Article 3(2), Protocol 1). They have the 3. Civilians in occupied territories;
right to participate directly and indirectly in 4. Civilians internees.
hostilities (Art 43(2) Protocol 1). Only
combatants are allowed to engage in hostilities.
e) Prisoners of war
A combatant is allowed to use force, even to kill,
and will not be held personally responsible for Definition
his acts, as he would be where he to the same Under Article 4, Geneva Convention (III),
as a normal citizen (Gasser). prisoners of war are persons belonging to one of
the following categories:
b) Hors de combat 1. Members of the armed forces of a party
Under Article 41(2), Protocol I, a person is hors to the conflict, including militias or
de combat if: volunteer corps;
1. He is in the power of an adverse party to
the conflict;

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2. Militias or volunteer corps operating in 3. All their personal belonging except their
or outside their own territory, even if arms and military papers remain their
such territory is occupied provided: property.
3. They are being commanded by a person 4. They must be interned in a healthful
responsible for his subordinates; and hygienic place.
4. Have a fixed distinctive sign 5. After the conclusion of peace, their
recognizable at a distance; speedy repatriation must be
5. Carries arms openly; accomplished as soon as is practicable.
6. Conducts their operations in accordance
with the laws and customs of war; Martens clause/principle of humanity
7. Members of regular armed forces who In cases not covered by other international
profess allegiance to a government or agreements, civilians and combatants remain
authority not recognized by the under the protection and authority of the
detaining power; principles of international law derived from
8. Civilians who accompany the armed established custom, from the principles of
forces, provided that they have received humanity and from the dictates of public
authorization from the armed forces conscience.
which they accompany;
9. Members of crews of merchant marine D. LAW ON NEUTRALITY
and the crews of civil aircraft of the
parties to the conflict; It is the law governing a country’s abstention
10. Inhabitants of a non-occupied territory from participating in a conflict or aiding a
who on the approach of the enemy participant of such conflict, and the duty of
spontaneously take up arms to resist participants to refrain from violating the
the invading forces, without having had territory, seizing the possession, or hampering
time to form themselves into regular the peaceful commerce of the neutral countries
armed units, provided they carry arms (The Three Friends, 166 U.S. 1).
openly and respect the laws and
customs of war; Neutrality is the legal status of a State in times
11. Persons belonging to the armed forces of war, by which it adopts impartiality in relation
of the occupied territory to the belligerents with their recognition.

Rights and privileges Neutral power


1. They must be treated humanely, shall The Hague Convention Respecting the Rights
not be subjected to physical or mental and Duties of Neutral Powers (1907) governs
torture, shall be allowed to the status of neutrality by the following rules:
communicate with their families, and 1. The territory of the neutral power is
may receive food, clothing, educational inviolable.
and religious articles. 2. Belligerents are forbidden to move
2. They may not be forced to reveal troops or munitions of war and supplies
military data except their name, rank, across the territory of a neutral power.
serial number, army and regimental 3. A neutral power is forbidden to allow
number and date of birth. They may not belligerents to use its territory for
be compelled to work for military moving troops, establishing
services.

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communication facilities, or forming


corps of combatants.
XIII. Law of the Sea
4. Troops of belligerent armies received by
a neutral power in its territory shall be A. DEFINITION
interned by away from the theatre of
war. The United Nations Convention on Law of the
5. The neutral power may supply them Sea (UNCLOS) is the body of treaty rules and
with food, clothing or relief required by customary norms governing the use of the sea,
humanity. the exploitation of its resources, and the
6. If the neutral power receives escaped exercise of jurisdiction over maritime regimes
prisoners of war, it shall leave them at (Magallona).
liberty. It may assign them a place of
residence if it allows them to remain in It is the branch of public international law which
its territory. regulates the relations of states with respect to
7. The neutral power may authorize the the use of the oceans.
passage into its territory of the sick and
wounded if the means of transport B. BASELINES
bringing them does not carry personnel
or materials of war. A baseline is the line from which a breadth of
the territorial sea and other maritime zones,
The Geneva Convention (III) allows neutral such as the contiguous zone and the exclusive
powers to cooperate with the parties to the economic zone is measured. Its purpose is to
armed conflict in making arrangements for the determine the starting point to begin measuring
accommodation in the former’s territory of the maritime zones boundary of the coastal state.
sick and wounded prisoners of war.
There are two kinds of baselines:
Interned persons among the civilian population, 1. Normal baseline, where the territorial
in particular the children, the pregnant women, sea is the low-water line along the coast
the mothers with infants and young children, as marked on large-scale charts
wounded and sick, may be accommodated in a officially recognized by the coastal state
neutral state in the course of hostilities, by [Article 5, UNCLOS].
agreement between the parties to the conflict. 2. Straight baseline, where the coastline is
deeply indented or cut into, or if there is
Protecting power a fringe of islands along the coast in its
A protecting power is a state or an organization: immediate vicinity, the method of
1. Not taking part in the hostilities; straight lines joining the appropriate
2. Which may be a neutral state; points may be employed in drawing the
3. Designated by one party to an armed baseline from which the breadth of the
conflict with the consent of the other; territorial sea is measured [Article 7,
4. To safeguard or protect its UNCLOS].
humanitarian interests in the conflict,
the performance of which IHL defines
specific rights and duties.

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C. ARCHIPELAGIC STATES C.2. ARCHIPELAGIC WATERS


These are the waters enclosed by the straight
It is a state made up of wholly one or more archipelagic baselines, regardless of their depth
archipelagos. It may include other islands or distance from the coast [Art 49(1), UNCLOS].
[Article 46, UNCLOS].
They are subject to the sovereignty of the
An archipelago is a group of islands, including archipelagic state, but subject to the right of
parts of islands, interconnecting waters and innocent passage for the ships of all states.
other natural features which are so closely
related that such islands, waters and natural C.3. ARCHIPELAGIC SEA LANES PASSAGE
features form an intrinsic geographical, It is the right of foreign ships and aircraft to
economic and political entity, or which have continuous, expeditious and
historically have been regarded as such. unobstructed passage in sea lanes and air
routes through or over the archipelagic
There are two kinds of archipelagos: waters and the adjacent territorial sea of the
1. Coastal, situated close to a mainland archipelagic state, “in transit between one
and may be considered part thereof (i.e., part of the high seas or an exclusive economic
Norway); zone.” All ships and aircraft are entitled to the
2. Mid-Ocean, situated in the ocean at right of archipelagic sea lanes passage
such distance from the coasts of firm [Magallona; Article 53(1) in relation to Article
land, (i.e., Indonesia). 53(3) UNCLOS].

The archipelagic state provisions apply only to The archipelagic state designates the sea lanes
mid-ocean archipelagos composed of islands, as proposals to the “competent international
and not to a partly continental state. organization.” It is the International Marine
Organization (IMO) which adopts them through
C.1. STRAIGHT ARCHIPELAGIC Article 53(9), UNCLOS, which states that “the
BASELINES Organization may adopt only sea lanes and
Straight baselines join the outermost points of traffic separation schemes as may be agreed
the outermost islands and drying reefs of an with the archipelagic state, after which such
archipelago, provided that within such state may designate, prescribe or substitute
baselines are included the main islands and an them.”
area in which the ratio of the water to the area
of the land, including atolls, is between 1 to 1 C.4. OTHER RIGHTS RELATING TO
and 9 to 1. Such are called straight archipelagic ARCHIPELAGIC WATERS
baselines. 1. Rights under existing agreement on the part
of third states should be respected by the
The breadth of the territorial sea, the archipelagic state.
contiguous zone, and the exclusive economic 2. Within its archipelagic waters, the
zone is measured from the straight archipelagic archipelagic state shall recognize traditional
baselines. fishing rights and other legitimate activities
of immediately adjacent neighboring states.
3. The archipelagic state shall respect existing
submarine cables laid by other states and

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“passing through its waters without making E. TERRITORIAL SEA


a landfall.” These waters stretch up to 12 miles from the
baseline on the seaward direction. They are
Under Article 1 of the 1987 Constitution, the subject to the jurisdiction of the coastal state,
archipelagic waters of the Philippines are which jurisdiction almost approximates that
characterized as forming part of “the internal which is exercised over land territory, except
waters of the Philippines.” However, under the that the coastal state must respect the rights to:
UNCLOS, archipelagic waters consist mainly of 1. Innocent passage; and
the “waters around, between, and connecting 2. In the case of certain straits, to transit
the islands of the archipelago, regardless of passage.
breadth or dimension.”
Innocent passage refers to navigation through
Thus, conversion from internal waters under the the territorial sea without entering internal
Constitution into archipelagic waters under the waters, going to internal waters, or coming from
UNCLOS gravely derogates the sovereignty of internal waters and making for the high seas. It
the Philippine state, because sovereignty over must:
internal waters may preclude the right of 1. Involve only acts that are required by
innocent passage and other rights pertaining to navigation or by distress, and
archipelagic waters under the UNCLOS. 2. Not prejudice the peace, security, or
good order of the coastal state.
Also, under Article 47, UNCLOS, it is not
mandatory upon concerned states to declare Transit passage refers to the right to exercise
themselves as archipelagic states; the freedom of navigation and over flight solely for
Philippines did, under its new baselines law, RA the purpose of continuous and expeditious
9522 upheld as constitutional [Magallona v. transit through the straights used for
Executive Secretary (2011)]. international navigation. The right cannot be
unilaterally suspended by the coastal state.
D. INTERNAL WATERS
These are waters of lakes, rivers, and bays Innocent passage Transit passage
landward of the baseline of the territorial sea. Pertains to navigation of Includes the right of over
Waters on the landward side of the baseline ships only flight
of the territorial sea also form part of the
Requires submarines Submarines are allowed
internal waters of the coastal state. However,
and other underwater to navigate in “normal
in case of archipelagic states, waters landward vehicles to navigate on mode” – i.e. submerged
of the baseline other than those rivers, bays and the surface and show
lakes, are archipelagic waters [Article 8(1), their flag.
UNCLOS. Can be suspended, but Cannot be suspended
under the condition that
Internal waters are treated as part of a state’s it does not discriminate
land territory, and are subject to the full among foreign ships,
exercise of sovereignty. Thus, the coastal state and such suspension is
may designate which waters to open and which essential for the
to close to foreign shipping. protection of its security,
and suspension is
effective only after

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having been duly optimum utilization of living resources by


published (Article 25, determining allowable catch.
UNCLOS)
In the designation of sea Designation of sea lanes If after determining the maximum allowable
lanes and traffic and traffic separation catch, the coastal state does not have the
separation schemes, the schemes is subject to capacity to harvest the entire catch, it shall give
coastal state shall only adoption by competent other states access to the surplus by means of
take into account the international arrangements allowable under the UNCLOS.
recommendations of the organization upon the The UNLCOS, however, does not specify the
competent international proposal and agreement
method for determining “allowable catch.”
organization. of states bordering the
straits.
Geographically disadvantaged states (i.e., those
who have no EEZ of their own or those coastal
F. EXCLUSIVE ECONOMIC ZONE states whose geographical situations make
them dependent on the exploitation of the
F.1. DEFINITION living resources of the EEZ of other states) and
The exclusive economic zone (EEZ) is the stretch land-locked states have the right to participate,
of area up to 200 miles from the baselines. on equitable basis, in the exploitation of the
Within this zone, a State may regulate non- surplus of the living resources in the EEZ of
living and living resources, other economic coastal states of the same sub region or region.
resources, artificial installations, scientific
research, and pollution control. A coastal state whose economy is
overwhelmingly dependent on the exploitation
F.2. JURISDICTION OVER EEZ of its EEZ, however, is not required to share its
The UNCLOS gives the coastal State resources.
sovereign rights over all economic resources
of the sea, seabed and subsoil in an area Within its EEZ, a coastal state may also:
extending not more than 200 nautical miles 1. Establish and use of artificial islands,
beyond the baseline from which the territorial installations and structures;
sea is measured (Arts. 55 and 57, UNCLOS). 2. Conduct scientific research;
3. Preserve and protect its marine
Under the UNCLOS, states have the sovereign environment.
right to exploit the resources of this zone, but
shall share that part of the catch that is beyond However, under Article 58, UNCLOS, all states
its capacity to harvest. enjoy the freedom of navigation, over flight, and
laying of submarine cables and pipelines in the
The resources covered include living and non- EEZ of coastal states.
living resources in the waters of the seabed and
its subsoil. The coastal state has the right to enforce all
laws and regulations enacted to conserve and
Coastal states have the primary responsibility to manage the living resources in its EEZ. It may
utilize, manage and conserve the living board and inspect a ship, arrest a ship and its
resources within their EEZ (i.e., ensuring that crew and institute judicial proceedings against
living resources are not endangered by them. In detention of foreign vessels, the
overexploitation), and the duty to promote

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coastal state has the duty to promptly notify the


flag state of the action taken. At any rate, the continental shelf shall not
extend beyond 350 nautical miles from the
Conflicts regarding the attribution of rights and baseline of the territorial sea, or 100 nautical
miles from the 2500-meter isobath (i.e., the
jurisdiction in the EEZ must be resolved on the point where the waters are 2500 meters deep).
basis of equity and in the light of all relevant
circumstances, taking into account the G.3. RIGHTS OF THE COASTAL STATE
respective importance of the interests involved The continental shelf does not form part of the
to the parties as well as to the international territory of the coastal state.
community as a whole (Article 59, UNCLOS).
It only has sovereign rights with respect to the
exploration and exploitation of its natural
G. CONTINENTAL SHELF resources, including the mineral and other non-
living resources of the seabed and subsoil
G.1. EXTENDED CONTINENTAL SHELF together with living organisms belonging to the
sedentary species.
It is the seabed and subsoil of the submarine
areas extending beyond the territorial sea of the The coastal state has the exclusive right to
authorize and regulate oil-drilling on its
coastal state throughout the natural
continental shelf.
prolongation of its lands territory up to: These rights are exclusive in the sense that
1. The outer edge of the continental when the coastal state does not explore its
margin; or continental shelf or exploit its resources, no one
2. A distance of 200 nautical miles from may undertake these activities without the
the baselines of the territorial sea where coastal state’s consent.
the outer edge of the continental
margin does not extend up to that Exclusive
Continental shelf
economic zone
distance.
Duty to manage and conserve living resources
Continental margin  the submerged No duty Coastal state is obliged
prolongation of the land mass of the to manage and conserve
continental state, consisting of the continental living resources in the
shelf proper, the continental slope, and the EEZ
continental rise
Rights of the coastal state to natural resources
G.2. LIMITS OF THE CONTINENTAL SHELF Relate to mineral and Have to do with natural
The juridical or legal continental shelf covers other non-living resources of both waters
the area until 200 nautical miles from resources of the seabed super adjacent to the
baselines. and the subsoil seabed and those of the
seabed and subsoil
The extended continental shelf covers the area
Rights of the coastal state to living resources
from the 200-mile mark to 350 nautical miles
from the baselines depending on Apply only to sedentary Do not pertain to
geomorphologic or geological data and species of such living sedentary species
information. resources

When the continental shelf extends beyond 200


nautical miles, the coastal state shall establish
its outer limits.

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H. INTERNATIONAL TRIBUNAL FOR 4. Special arbitral tribunal.


THE LAW OF THE SEA
The court or tribunal has jurisdiction over:
THE ITLOS IS AN INDEPENDENT JUDICIAL BODY ESTABLISHED BY 1. Any dispute submitted to it concerning
THE THIRD UNITED NATIONS CONVENTION ON THE LAW OF THE SEA the application or interpretation of
TO ADJUDICATE DISPUTES ARISING OUT OF THE INTERPRETATION UNCLOS; or
AND APPLICATION OF THE CONVENTION. IT WAS ESTABLISHED
AFTER AMBASSADOR ARVIDO PARDO MALTA ADDRESSED THE
2. Any dispute concerning the
GENERAL ASSEMBLY OF THE UNITED NATIONS AND CALLED FOR interpretation or application of an
“AN EFFECTIVE INTERNATIONAL REGIME OVER THE SEABED AND international agreement:
OCEAN FLOOR BEYOND A CLEARLY DEFINED NATIONAL
a. Related to the purposes of the
JURISDICTION.”
UNCLOS;
ITS JURISDICTION COVERS ALL DISPUTES SUBMITTED TO IT IN b. When such dispute is submitted to it
ACCORDANCE WITH THE UNCLOS. IT ALSO INCLUDES MATTERS in accordance with that agreement.
SUBMITTED TO IT UNDER ANY OTHER AGREEMENT.

IT IS COMPOSED OF 21 INDEPENDENT MEMBERS ELECTED FROM H.3. APPLICABLE LAWS


AMONG PERSONS ENJOYING THE HIGHEST REPUTATION FOR THE COURT OR TRIBUNAL SHALL APPLY THE
FAIRNESS AND INTEGRITY AND OF RECOGNIZED COMPETENCE IN
THE FIELD OF THE LAW OF THE SEA.
UNCLOS AND OTHER RULES OF
INTERNATIONAL LAW NOT INCOMPATIBLE
H.1. PEACEFUL SETTLEMENT OF WITH THE UNCLOS. IT MAY ALSO DECIDE A
DISPUTES CASE EX AEQUO ET BONO (WHAT IS
Under Article 2, 3rd par., UN Charter, states EQUITABLE AND JUST) IF THE PARTIES SO
have the duty to settle disputes by peaceful AGREE.
means. This obligation extends to state parties
of the UNCLOS, underscoring the right of the
parties to resort to peaceful means of their own
XIV. Madrid Protocol
choice on which they can agree any time. and Paris Convention
H.2. COMPULSORY SETTLEMENT OF
A. MADRID PROTOCOL
DISPUTES
WHERE NO SUCCESSFUL SETTLEMENT CAN
The Protocol Relating to the Madrid Agreement
BE ACHIEVED, OR IF THE PARTIES ARE
Concerning the International Registration of
UNABLE TO AGREE ON THE MEANS OF
Marks, or The Madrid Protocol is one of two
SETTLEMENT OF A DISPUTE CONCERNING
treaties comprising the Madrid System for
THE APPLICATION OF UNCLOS, SUCH
international registration of trademarks and it
DISPUTE MAY BE GOVERNED BY THE
deals more with the procedure for filing than
PRINCIPLE OF COMPULSORY SETTLEMENT,
with substantive rights.
WHERE PROCEDURES ENTAIL BINDING
DECISIONS.
Its purpose is to provide a cost-effective and
efficient way for trademark holders – individuals
THE PARTIES MAY CHOOSE, THROUGH A
and businesses – to ensure protection for their
WRITTEN REVOCABLE AND REPLACEABLE
marks in multiple countries through the filing of
DECLARATION, TO SUBMIT THE DISPUTE TO:
one application with a single office, in one
1. ITLOS;
language, with one set of fees, in one currency.
2. ICJ;
3. Arbitral tribunal;

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While an International Registration may be


issued, it remains the right of each country or
XV. INTERNATIONAL
contracting party designated for protection to
determine whether or not protection for a mark
ENVIRONMENTAL LAW
may be granted. Once the trademark office in a
designated country grants protection, the mark A. DEFINITION
is protected in that country just as if that office It is the branch of public international law
had registered it. comprising those substantive, procedural, and
institutional rules which have as their primary
The Madrid Protocol also simplifies the objective the protection of the environment, the
subsequent management of the mark, since a term environment being understood as
simple, single procedural step serves to record encompassing “both the features and the
subsequent changes in ownership or in the products of the natural world and those of
name or address of the holder with World human civilization” (Sands, Principles of
Intellectual Property Organization’s International Environmental Law).
International Bureau. The International Bureau
administers the Madrid System and coordinates B. BASIC PRINCIPLES
the transmittal of requests for protection,
renewals and other relevant documentation to B.1. PRINCIPLE OF COMMON BUT
all members. DIFFERENTIATED RESPONSIBILITY
States shall cooperate in a spirit of global
B. PARIS CONVENTION partnership to conserve, protect and restore the
health and integrity of the earth’s ecosystem. In
The Paris Convention for the Protection of view of the different contributions to global
Industrial Property was signed in 1883 and it is environmental degradation, States have
one of the first treaties dealing with intellectual common but differentiated responsibilities. The
property and its protection. developed countries acknowledge the
responsibility that they bear in the international
Among its substantive provisions are: pursuit to sustainable development in view of
1. It requires that each member state the pressures their societies place on the global
grant the same quality and quantity of environment and of the technologies and
protection to eligible foreigners as it financial resources they command (Principle 7,
grants to its own nationals in respect to Rio Declaration).
the intellectual property enumerated in
the convention. B.2. PRECAUTIONARY PRINCIPLE
2. IT PROVIDES THAT AN APPLICANT ELIGIBLE FOR
In order to protect the environment, the
CONVENTION BENEFITS WHO FILES A FIRST
REGULAR PATENT OR TRADEMARK APPLICATION IN
precautionary approach shall be widely applied
ANY OF THE COUNTRIES OF THE UNION, CAN THEN by States according to their capabilities. Where
FILE SUBSEQUENT APPLICATIONS IN OTHER there are threats of serious or irreversible
COUNTRIES OF THE UNION FOR A DEFINED PERIOD
OF TIME WHICH SUBSEQUENT APPLICATIONS WILL
damage, lack of full scientific certainty shall not
HAVE AN EFFECTIVE FILING DATE AS OF THE FIRST be used as a reason for postponing cost-
FILED APPLICATION. effective measures to prevent environmental
degradation (Principle 15, Rio Declaration).

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C. SUSTAINABLE DEVELOPMENT XVI. INTERNATIONAL


It is development that meets the needs of the ECONOMIC LAW
present without compromising the ability of
future generations to meet their own needs
International economic law regulates the
(Case Concerning the Gabcikovo-Nagymaros
international economic order or economic
Project (1997)).
relations among nations. However, the term
“international economic law” encompasses a
No state has the right to use or permit the use
large number of areas. It is often defined
of its territory in such a manner as to cause
broadly to include a vast array of topics ranging
injury by fumes in or to the territory of another
from public international law of trade to private
or the properties or persons therein, when the
international law of trade to certain aspects of
case is of serious consequence and the injury is
international commercial law and the law of
established by clear and convincing evidence
international finance and investment.
(US v. Canada (Trail Smelter Case) (1938)).
It is a field of international law that
D. PRINCIPLE 21 OF THE STOCKHOLM encompasses both the conduct of sovereign
DECLARATION states in international economic relations, and
the conduct of private parties involved in cross-
The Stockholm Declaration, or the border economic and business transactions.
Declaration of the United Nations Conference
on the Human Environment, was adopted on International economic law covers, among
June 16, 1972 in Stockholm, Sweden. It others, the following:
contains 26 principles and 109 1. International trade law, including both
recommendations regarding the preservation the international law of the World Trade
and enhancement of the right to a healthy Organization and GATT and domestic
environment. trade laws;
2. International economic integration law,
Principle 21 provides: “States have, in including the law of the European Union,
accordance with the Charter of the United NAFTA and Mercosur;
Nations and the principles of international law, 3. Private international law, including
the sovereign right to exploit their own international choice of law, choice of
resources pursuant to their own environmental forum, enforcement of judgments and
policies, and the responsibility to ensure that the law of international commerce;
activities within their jurisdiction or control do 4. International business regulation,
not cause damage to the environment of other including antitrust or competition law,
States or of areas beyond the limits of national environmental regulation and product
jurisdiction.” safety regulation;
5. International financial law, including
private transactional law, regulatory
law, the law of foreign direct investment
and international monetary law,
including the law of the International
Monetary Fund and World Bank;

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6. The role of law in development;


7. International tax law; and
8. International intellectual property law
(Wenger).

International economic law is based on the


traditional principles of international law such
as:
1. Pacta sunt servanda;
2. Freedom;
3. Sovereign equality;
4. Reciprocity;
5. Economic sovereignty.

It is also based on modern and evolving


principles such as:
1. Duty to cooperate;
2. Permanent sovereignty over natural
resources;
3. Preferential treatment for developing
countries in general and the least-
developed countries in particular.

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