Académique Documents
Professionnel Documents
Culture Documents
1
2
TABLE OF CONTENTS F.1. RULE OF NON-DELEGATION OF LEGISLATIVE
POWER ................................................................... 17
C.3. VACANCY IN THE OFFICE OF THE VICE- E. REVIEW OF FINAL ORDERS, RESOLUTIONS, AND
PRESIDENT ........................................................... 62 DECISIONS ............................................................... 80
C. STANDARDS FOR JUDICIAL REVIEW ................ 116 F. COMMERCIAL SPEECH ....................................... 144
V. SEARCHES AND SEIZURES.................................... 118 G. PRIVATE VERSUS GOVERNMENT SPEECH ...... 145
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
6
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
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
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
9
E.1. REQUISITES .................................................240 C. RESTRICTIONS ON THE POWER TO APPOINT
E.2. PROCEDURE ................................................241 ................................................................................. 250
A. LENGTH OF TERM ............................................. 242 C.2. UNDER THE CONSTITUTION .................... 250
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
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
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
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
IV. 3-SEAT LIMIT ................................................. 305 A.1. PROHIBITED CAMPAIGNING DAYS ............ 313
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.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
18
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
POLITICAL LAW
CONSTITUTIONAL
LAW 1
1
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
2
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
3
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
4
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
5
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
6
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
7
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
8
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
(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
9
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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.
10
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
(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
11
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
(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.
12
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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.
13
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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.
14
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
(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.
15
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
(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
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
17
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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:
18
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
19
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
20
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
21
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
22
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
23
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
24
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
25
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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]
26
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
27
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
28
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
[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
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
32
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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]
Express limitations:
(1) On general powers - Bill of Rights [Art. III]
(2) On taxation [Secs. 28 and 29(3), Art. VII]
33
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
34
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
35
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
36
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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.
37
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
38
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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)]
39
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
40
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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;
41
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
42
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
43
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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;
44
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
(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:
45
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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)]
46
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
47
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
48
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
49
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
"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
50
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
51
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
52
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
53
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
(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
54
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
55
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
56
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
57
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
58
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
59
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
60
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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.
61
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
62
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
63
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
(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]
64
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
65
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
66
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
67
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
68
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
(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)
69
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
70
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
71
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
72
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
73
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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.
74
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
75
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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)]
76
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
77
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
78
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
79
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
80
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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)]
81
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
82
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
83
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
(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
84
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
85
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
86
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
87
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
88
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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:
89
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
(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
90
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
91
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
92
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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)]
93
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
94
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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
95
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
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)]
96
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
POLITICAL LAW
CONSTITUTIONAL
LAW 2
97
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
“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
99
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
100
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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)]
101
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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)]
102
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
103
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
[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
104
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
105
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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)]
Accountability
Rule: The Bill of Rights cannot be invoked
against acts of private individuals. The equal
protection erects no shield against private
106
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
107
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
108
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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.
109
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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)]
110
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
111
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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.
112
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
113
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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]
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
114
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
115
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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.
116
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
117
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
119
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
120
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
121
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
(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.
122
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
123
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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.
124
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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)].
125
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
(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
126
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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.
127
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
128
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
129
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
130
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
131
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
132
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
133
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
Basis
Art. III, Sec. 4. No law shall be passed abridging
the freedom of speech, of expression, or of the
134
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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)]
135
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
136
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
137
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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)]
138
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
139
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
140
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
141
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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)]
142
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
143
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
144
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
(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
145
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
146
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
147
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
148
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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.
149
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
150
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
151
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
152
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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)]
153
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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)]
154
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
155
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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]
156
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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,
157
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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)]
158
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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.
159
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
160
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
161
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
162
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
163
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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.]
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.
164
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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.
165
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
166
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
(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
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]
167
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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;
168
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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;
169
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
170
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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)]
171
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
172
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
173
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
174
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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.
175
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
176
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
177
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
178
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
179
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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
180
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
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]
181
UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
(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)]
182
UP LAW BOC CONSTITUTIONAL LAW 1 POLITICAL LAW
POLITICAL LAW
ADMINISTRATIVE
LAW
183
UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
184
UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
185
UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
186
UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
187
UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
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)]
188
UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
189
UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
190
UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
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.
191
UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
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
192
UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
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
193
UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
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
194
UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
195
UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
196
UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
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
197
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
POLITICAL LAW
LOCAL GOVERNMENT
198
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
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]
“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.”
199
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
200
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
B. CLASSIFICATIONS
201
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
202
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
203
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
204
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
205
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
206
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
207
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
208
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
209
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
[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
210
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
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
211
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
212
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
(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.
213
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
214
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
215
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
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
216
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
217
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
218
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
(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
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
219
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
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]
220
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
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
221
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
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
222
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
__________________________________________________________________________________________
223
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
224
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
225
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
226
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
227
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
228
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
C. APPEAL
229
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
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]
230
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
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
231
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
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)]
232
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
233
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
234
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
235
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
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
236
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
(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
237
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
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
238
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
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
239
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
240
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
241
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
242
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
“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)]
243
UP LAW BOC LOCAL GOVERNMENT POLITICAL LAW
(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)]
244
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
POLITICAL LAW
PUBLIC OFFICERS
AND ELECTION
LAW
245
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
246
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
247
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
248
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
249
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
250
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
251
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
252
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
253
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
254
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
255
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
256
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
257
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
258
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
259
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
260
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
261
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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]
262
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
263
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
264
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
265
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
266
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
267
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
268
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
269
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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]
270
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
271
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
272
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
273
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
(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)]
274
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
275
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
276
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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.
277
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
278
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
279
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
280
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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.
281
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
282
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
283
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
284
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
285
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
286
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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.
287
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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.
288
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
289
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
290
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
291
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
292
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
293
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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:
294
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
(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)]
295
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
296
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
297
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
298
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
299
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
F.2. COVERAGE
Elections for president, vice-president, senators
and party-list representatives [Sec. 3f, R.A. 9189]
300
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
C. PROCESS
301
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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.
302
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
303
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
304
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
305
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
306
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
(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
307
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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]
308
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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)]
309
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
310
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
311
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
312
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
313
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
314
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
(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
315
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
316
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
317
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
318
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
(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
319
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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:
320
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
321
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
322
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
323
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
324
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
325
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
326
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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
327
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
328
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
329
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
330
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
331
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
332
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
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]
333
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
(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
334
UP LAW BOC PUBLIC OFFICERS AND ELECTION LAW POLITICAL LAW
POLITICAL LAW
PUBLIC
INTERNATIONAL
LAW
335
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
336
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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
337
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
338
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
339
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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
340
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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]
341
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
342
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
343
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
344
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
Effective government
General Rule: There must be a central
government operating as a political body within
345
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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
346
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
347
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
348
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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.
349
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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.]
350
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
351
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
352
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
353
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
354
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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;
355
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
356
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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
357
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
358
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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
359
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
360
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
361
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
362
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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.
363
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
364
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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
365
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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
366
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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”
367
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
368
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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
369
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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,
370
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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.
371
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
372
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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.
373
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
374
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
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
375
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
376
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
377
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
378
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
379
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
380
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
381
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
382