Political Law Review: ACADEMIC YEAR 2018-2019 College of Law Bulacan State University

POLITICAL LAW REVIEW
ACADEMIC YEAR 2018-2019

COLLEGE OF LAW
BULACAN STATE UNIVERSITY
GENERAL OUTLINE AND COVERAGE
• CONSTITUTIONAL LAW
• ADMINISTRATIVE LAW
• ELECTION LAW
• LOCAL GOVERNMENTS
• PUBLIC INTERNATIONAL LAW
POLITICAL LAW
• Branch of public law
• Deals with the organization and operations of the governmental
organs of the State
• Defines the relations of the State with the inhabitants of its territory
Constitution, defined
• It is through the Constitution that the fundamental powers of
government are established, limited and defined, and by which these
powers are distributed among the several departments. The
Constitution is the basic and paramount law to which all other laws
must conform and to which all persons, including the highest officials
of the land, must defer. Constitutional doctrines must remain
steadfast no matter what may be the tides of time. It cannot be
simply made to sway and accommodate the call of situations and
much more tailor itself to the whims and caprices of government and
the people who run it. (Biraogo vs. Philippine Truth Commision [2010]
Constitutional Supremacy
• A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable
except by the authority from which it emanates. It has been defined as the
fundamental and paramount law of the nation. It prescribes the permanent
framework of a system of government, assigns to the different departments their
respective powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in accordance with which
all private rights must be determined and all public authority
administered.] Under the doctrine of constitutional supremacy, if a law or
contract violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into by
private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme
law of the nation, it is deemed written in every statute and contract. (Manila
Priince Hotel vs. GSIS [1997])
Parts; Three Constitution in One
Part Provision and importance Provisions in the 1987 Constitution
Constitution of Liberty/Rights The series of provisions setting ARTICLE III
forth the fundamental rights of Civil and Political Rights
• Freedom of Belief citizens and imposing limitations on
• Personal Freedom the powers of government as a
means of securing the enjoyment
of these rights.
Constitution of Government The series of provisions outlining ARTICLE VI, VII, VIII, IX, XI
the organization of government
enumerating its powers, laying
down certain rules relative to its
administration and defining the
electorate
Constitution of Sovereignty The provisions containing the mode PREAMBLE, ARTICLE II, XVII
or procedure in accordance with
which formal changes in the
fundamental law may be brought
about.
AMENDMENTS AND REVISION (Constitution
of Sovereignty)
• Historical Evolution under the 1935, 1973 Constitution
• Article XVII, 1987 Constitution
• Distinction between amendment
• Revision in light of “initiative and referendum”
Distinctions
Amendment Revision
Envisions an alteration of one or more specific and A re-examination of the entire document, to
separable provisions. determine how and to what extent , or of provisions
of the document which have over-all implications for
the entire document, to determine how and to what
extent they should be altered.
The intention of an act to amend is not the change of Revision may involve re-writing the entire
the entire constitution, but only the improvement of constitution.
specific parts or the addition of provisions deemed
essential as a consequence of new conditions or
elimination of parts already considered obsolete or
unresponsive to the needs of the times.
Source: Constitutional Commission Records

Key Questions
Move to change from bicameral to unicameral system?
Move to change from presidential to parliamentary or federal system?

Importance of distinction
• Important in light of limited scope of initiative and referendum
• If the change made de hors (outside) of the Constitution is made by
the sovereign people, the resultant alteration is not unconstitutional
but extra-constitutional. (Bernas, “The1987 Constitution of the
Republic of the Philippines,” [2009])
• Revolution and Revision (1973 Ratification Cases)
Proposal of Amendments and Revision
• Article XVII, SECTION 1. Any amendment to, or revision of, this
Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.
Key Questions:
• Joint Session?
• Voting separately?
• Nothing is said about a joint session, each house may separately formulate
amendments by a vote of ¾ of all its members, and then pass it on to the other
house for a similar process. Disagreements to be settled through a conference
committee.
• Alternatively, Congress may decide to come together in joint session and vote
separately on proposed amendments and revisions. Both houses must vote
separately. Why?
• Congress Is bicameral and not unicameral.
Initiative and Referendum
• INITIATIVE - Method whereby the people directly propose amendments
to the constitution.
• Article XVII, SECTION 2. Amendments to this Constitution may likewise be

directly proposed by the people through initiative upon a petition of at
least twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per centum
of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution
nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this
right.
Initiative and Referendum
• A peoples initiative to change the Constitution applies only to an
amendment of the Constitution and not to its revision. In contrast,
Congress or a constitutional convention can propose both amendments
and revisions to the Constitution. (Lambino vs. COMELEC [2006])
• The Constitution entrusts to the people the power to directly propose

amendments to the Constitution. The Court trusts the wisdom of the
people even if the members of this Court do not personally know the
people who sign the petition. However, this trust emanates from a
fundamental assumption: the full text of the proposed amendment is
first shown to the people before they sign the petition, not after they
have signed the petition.
Logrolling in people’s initiative to amend
• Logrolling - when the initiative petition incorporates an unrelated
subject matter in the same petition. This puts the people in a
dilemma since they can answer only either yes or no to the entire
proposition, forcing them to sign a petition that effectively contains
two propositions, one of which they may find unacceptable.
• Under American jurisprudence, the effect of logrolling is to nullify the

entire proposition and not only the unrelated subject matter.
Constitutional Convention
• Article XVII, SECTION 3. The Congress may, by a vote of two-thirds of
all its Members, call a constitutional convention, or by a majority vote
of all its Members, submit to the electorate the question of calling
such a convention.
• Question: Voting separately?

Ratification
Article XVII, SECTION 4. Any amendment to, or revision of, this
Constitution under Section 1 hereof shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not earlier
than sixty days nor later than ninety days after the approval of such
amendment or revision.
Any amendment under Section 2 hereof shall be valid when ratified by

a majority of the votes cast in a plebiscite which shall be held not
earlier than sixty days nor later than ninety days after the certification
by the Commission on Elections of the sufficiency of the petition.
Self-Executing and Non-Self Executing
Provisions of the Constitution
• As a general rule, the provisions of the Constitution are considered
self-executing, and do not require future legislation for their
enforcement. For if they are not treated as self-executing, the
mandate of the fundamental law can be easily nullified by the
inaction of Congress.
• However, some provisions have already been categorically declared

by the Court as non self-executing.
Jurisprudence (Tondo Medical Employees
Association, et., vs. Court of Appeals [2007])
• In Tanada v. Angara, the Court specifically set apart the sections
found under Article II of the 1987 Constitution as non self-executing
and ruled that such broad principles need legislative enactments
before they can be implemented:
• By its very title, Article II of the Constitution is a declaration of

principles and state policies. x x x. These principles in Article II are not
intended to be self-executing principles ready for enforcement
through the courts. They are used by the judiciary as aids or as guides
in the exercise of its power of judicial review, and by the legislature in
its enactment of laws.
• In Basco v. Philippine Amusement and Gaming
Corporation,this Court declared that Sections 11, 12,
and 13 of Article II; Section 13 of Article XIII; and
Section 2 of Article XIV of the 1987 Constitution are
not self-executing provisions.
• In Tolentino v. Secretary of Finance,the Court referred to Section 1 of
Article XIII and Section 2 of Article XIV of the Constitution as moral
incentives to legislation, not as judicially enforceable rights. These
provisions, which merely lay down a general principle, are
distinguished from other constitutional provisions as non self-
executing and, therefore, cannot give rise to a cause of action in the
courts; they do not embody judicially enforceable constitutional
rights.
• In the remaining provisions, Sections 11 and 14 of Article
XIII and Sections 1 and 3 of Article XV, the State accords
recognition to the protection of working women and the
provision for safe and healthful working conditions; to the
adoption of an integrated and comprehensive approach to
health; to the Filipino family; and to the right of children to
assistance and special protection, including proper care
and nutrition.
• Like the provisions that were declared as non self-executory in the
cases of Basco v. Philippine Amusement and Gaming Corporation[
and Tolentino v. Secretary of Finance, they are mere statements of
principles and policies. As such, they are mere directives addressed
to the executive and the legislative departments. If unheeded, the
remedy will not lie with the courts; but rather, the electorates
displeasure may be manifested in their votes.
General Considerations
• National Territory
• Archipelagic Doctrine
• Maritime Baselines Law
• Jurisprudence
The National Territory
• ARTICLE I
NATIONAL TERRITORY
• The national territory comprises the Philippine archipelago, with all
the islands and waters embraced therein, and all other territories
over which the Philippines has sovereignty or jurisdiction, consisting
of its terrestrial, fluvial and aerial domains, including its territorial sea,
the seabed, the subsoil, the insular shelves, and other submarine
areas. The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines .
National Territory
• Both the 1973 and the 1987 constitutions divide the national
territory into two main groups: (1) the Philippine archipelago and (2)
other territories belonging to the Philippines.
Archipelagic Principle
• ……..The waters around, between, and connecting the islands of the
the internal waters of the Philippines.
• Archipelago is defined as a unit of water studded with islands. Based

on this definition, the land area is everything that comes within the
water area.
Magalllona vs. Ermita [2011]
• In March 2009, Congress amended RA 3046 by enacting RA 9522, the
statute now under scrutiny. The change was prompted by the need to
make RA 3046 compliant with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS III), which the Philippines
ratified on 27 February 1984.Among others, UNCLOS III prescribes the
water-land ratio, length, and contour of baselines of archipelagic
States like the Philippines and sets the deadline for the filing of
application for the extended continental shelf. Complying with these
requirements, RA 9522 shortened one baseline, optimized the
location of some basepoints around the Philippine archipelago and
classified adjacent territories, namely, the Kalayaan Island Group (KIG)
and the Scarborough Shoal, as regimes of islands whose islands
generate their own applicable maritime zones.
• Petitioners, professors of law, law students and a legislator, in their
respective capacities as citizens, taxpayers or x x x legislators,as the
case may be, assail the constitutionality of RA 9522 on two principal
grounds, namely: (1) RA 9522 reduces Philippine maritime territory,
and logically, the reach of the Philippine states sovereign power, in
violation of Article 1 of the 1987 Constitution,embodying the terms of
the Treaty of Paris1 and ancillary treaties, and (2) RA 9522 opens the
countrys waters landward of the baselines to maritime passage by all
vessels and aircrafts, undermining Philippine sovereignty and national
security, contravening the countrys nuclear-free policy, and damaging
marine resources, in violation of relevant constitutional provisions.
• UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones
(i.e., the territorial waters 12 nautical miles from the baselines], contiguous zone
[24 nautical miles from the baselines], exclusive economic zone 200 nautical
miles from the baselines]), and continental shelves that UNCLOS III delimits.
UNCLOS III was the culmination of decades-long negotiations among United
Nations members to codify norms regulating the conduct of States in the worlds
oceans and submarine areas, recognizing coastal and archipelagic States
graduated authority over a limited span of waters and submarine lands along
their coasts.
• On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III
States parties to mark-out specific basepoints along their coasts from which
baselines are drawn, either straight or contoured, to serve as geographic starting
points to measure the breadth of the maritime zones and continental shelf.
• Baselines laws are nothing but statutory mechanisms for UNCLOS III
States parties to delimit with precision the extent of their maritime
zones and continental shelves. In turn, this gives notice to the rest of
the international community of the scope of the maritime space and
submarine areas within which States parties exercise treaty-based
rights, namely, the exercise of sovereignty over territorial waters
(Article 2), the jurisdiction to enforce customs, fiscal, immigration,
and sanitation laws in the contiguous zone (Article 33), and the right
to exploit the living and non-living resources in the exclusive
economic zone (Article 56) and continental shelf (Article 77).
• Whether referred to as Philippine internal waters
under Article I of the Constitution or as archipelagic
waters under UNCLOS III (Article 49 [1]), the
Philippines exercises sovereignty over the body of
water lying landward of the baselines, including the
air space over it and the submarine areas underneath.
UNCLOS III affirms this:
• Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters
and of their bed and subsoil.
1. The sovereignty of an archipelagic State extends to the waters enclosed by the

archipelagic baselines drawn in accordance with article 47, described as archipelagic
waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well as to
their bed and subsoil, and the resources contained therein.
• xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall not in other
respects affect the status of the archipelagic waters, including the sea lanes, or the
exercise by the archipelagic State of its sovereignty over such waters and their air space,
bed and subsoil, and the resources contained therein. (Emphasis supplied)
The National Territory
• ARTICLE I
NATIONAL TERRITORY
• The national territory comprises the Philippine archipelago, with all
the islands and waters embraced therein, and all other territories
over which the Philippines has sovereignty or jurisdiction, consisting
of its terrestrial, fluvial and aerial domains, including its territorial sea,
the seabed, the subsoil, the insular shelves, and other submarine
areas. The waters around, between, and connecting the islands of the
the internal waters of the Philippines .
Philippines’ National Territory (see Magallona
Case)
• Archipelagic states instead of
Baselines drawing normal baselines have
drawn “straight baselines.” The
straight lines are drawn
connecting selected points on the
coast without applicable
departure from the general shape
of the coast.
• Also referred to as inland waters.
Internal Waters Internal or inland waters consist of
all parts of the sea landwards from
the baseline as well as inland
rivers and lakes. All of them are
subject to the sovereingy of the
state to the same extent that the
land domain is. Unlike territorial
waters, they are not subject to the
right of innocent passage by other
states.
• 1. The seabed and subsoil of the submarine
areas adjacent to the coastal state but
Insular Shelf outside the territorial sea, to a depth of two
hundred meters or, beyond that limit, to
ARTICLE I where the depth allows exploitation;
NATIONAL TERRITORY
The national territory comprises the
Philippine archipelago, with all the islands • 2. The seabed and subsoil of areas adjacent
and waters embraced therein, and all other to islands. The coastal state has the right to
territories over which the Philippines has explore and exploit its natural resources, to
sovereignty or jurisdiction, consisting of its erect installations needed, and to erect a
terrestrial, fluvial and aerial domains, safety zone over its installations with a
including its territorial sea, the seabed, the
subsoil, the insular shelves, and other radius of 500 meters. The right does not
submarine areas. The waters around, extend to non-resource material in the shelf
between, and connecting the islands of the area such as wrecked ship and their cargoes.
archipelago, regardless of their breadth and
dimensions, form part of the internal waters
of the Philippines .
Right to Innocent Passage
• A state exercises sovereignty over its territorial sea subject to the
right of innocent passage by other states.
• Innocent passage is understood as passage not prejudicial to the
interests of the coastal state nor contrary to recognized principles of
international law. Note Art. 19 (2) of UNCLOS.
…. Other territories over which the PH has
sovereignty or jurisdiction
• Covers islands over which the PH has historic or legal title.

• It includes as well territory should temporarily be controlled by an
invading force, and any other territory over which the Philippines
might establish sovereignty or jurisdiction in the future.
Declaration of Principles and State Policies
• ….As the Court explained in Taada v. Angara,[7] the provisions of
Article II of the 1987 Constitution, the declarations of principles and
state policies, are not self-executing. Legislative failure to pursue such
policies cannot give rise to a cause of action in the courts. (Espina vs.
Zamora [2010].
• Do they have usefulness in litigation?
• They obligate the judiciary to be be guided by the provisions in the
exercise of the power of judicial review.
Article II, section 2
• Renunciation of war
• Incorporation of international law
• Adheres to the policy of peace, equality, justice, freedom of
cooperation and amity with all nations
Renunciation of War
• As a signatory to the UN Charter, we do not merely renounce war, we also
adhere to Article 2 (4) that says, “all members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the purposes of the United Nations.”
• REPUBLIC ACT NO. 9851
• AN ACT DEFINING AND PENALIZING CRIMES AGAINST INTERNATIONAL
HUMANITARIAN LAW, GENOCIDE AND OTHER CRIMES AGAINST HUMANITY,
ORGANIZING JURISDICTION, DESIGNATING SPECIAL COURTS, AND FOR
RELATED PURPOSES
Incorporation of International Law
• Incorporation Doctrine
• [G]enerally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations. The classical
formulation in international law sees those customary rules
accepted as binding result from the combination [of] two elements:
the established, widespread, and consistent practice on the part of
States; and a psychological element known as
the opinion juris sive necessitates (opinion as to law or necessity).
Implicit in the latter element is a belief that the practice in question
is rendered obligatory by the existence of a rule of law requiring it.
(Pharmaceutical Health Care Association vs. Duque [2007])
Transformation and Incorporation
• Under the 1987 Constitution, international law can become part of the
sphere of domestic law either by transformation or incorporation.[The
transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local
legislation. The incorporation method applies when, by mere constitutional
declaration, international law is deemed to have the force of domestic law.
• Treaties become part of the law of the land

through transformation pursuant to Article VII, Section 21 of the
Constitution which provides that [n]o treaty or international agreement
shall be valid and effective unless concurred in by at least two-thirds of all
the members of the Senate. Thus, treaties or conventional international
law must go through a process prescribed by the Constitution for it to be
transformed into municipal law that can be applied to domestic conflicts.
Generally Accepted Principles of Law
• Generally accepted principles of international law refers to norms of
general or customary international law which are binding on all
states, i.e., renunciation of war as an instrument of national policy,
the principle of sovereign immunity, a person's right to life, liberty and
due process, and pacta sunt servanda.
• Note case of Knights of Rizal vs. DMCI [2018]
• Venice Charter as a guideline and not as law.

Ang Ladlad Case
• We refer now to the petitioner‟s invocation of the Yogyakarta
Principles (the Application of International Human Rights Law In
Relation to Sexual Orientation and Gender Identity), which petitioner
declares to reflect binding principles of international law.
• At this time, we are not prepared to declare that these Yogyakarta
Principles contain norms that are obligatory on the Philippines. There
are declarations and obligations outlined in said Principles which are
not reflective of the current state of international law, and do not find
basis in any of the sources of international law enumerated under
Article 38(1) of the Statute of the International Court of Justice. X x x
• Using even the most liberal of lenses, these Yogyakarta Principles,
consisting of a declaration formulated by various international law
professors, are – at best – de lege refenda – and do not constitute
binding obligations on the Philippines. X x x (Ang LADLAD LGBT Party
v. COMELEC, G.R. No. 190582, 618 SCRA 32, April 8, 2010, En Banc
[Del Castillo])
• Civilian Supremacy
• Pursuant to the maintenance of civilian supremacy over the military, the
Constitution has allocated specific roles to the legislative and executive branches
of government in relation to military affairs. Military appropriations, as with all
other appropriations, are determined by Congress, as is the power to declare the
existence of a state of war. Congress is also empowered to revoke a proclamation
of martial law or the suspension of the writ of habeas corpus.The approval of the
Commission on Appointments is also required before the President can promote
military officers from the rank of colonel or naval captain. Otherwise, on the
particulars of civilian dominance and administration over the military, the
Constitution is silent, except for the commander-in-chief clause which is fertile in
meaning and implication as to whatever inherent martial authority the President
may possess. (Bautista vs. Senga [2006])
Civilian Supremacy
• Protector of the people. Military has no political role?
• Guardian of the state sovereignty.
• Can military exercise of political power be justified as a last resort?
• When civilian supremacy has lost its legitimacy.
Article II, sections 7 and 8
• Independent Foreign Policy
• Freedom from Nuclear Weapons

Filipino First Policy
• In the grant of rights, privileges and concessions
covering the national economy and patrimony, the
State shall give preference to qualified Filipinos (Sec.
10, 2nd par., Art. XII of the Constitution)
Manila Prince Hotel
• Manila Prince Hotel v. GSIS, 267 SCRA 408 (1997) (Bellosillo)
• In this case, the SC ruled that this provision is self-executing. It was also in
this case where the Court clarified that the rule now is that all provisions of
the Constitution are presumed to be self-executing, rather than non-self-
executing. Elaborating, the Court explained that if a contrary presumption
is adopted, the whole Constitution shall remain dormant and be captives of
Congress, which could have disastrous consequences.
• Also, in this case the SC held that “patrimony” simply means “heritage.”
Thus, when we speak of “national patrimony,” we refer not only to the
natural resources of the Philippines but as well as the cultural heritage of
the Filipino people.
Life of the Unborn
• Article II, Section 12 of the Constitution states: “The State recognizes
the sanctity of family life and shall protect and strengthen the family
as a basic autonomous social institution. It shall equally protect the
life of the mother and the life of the unborn from conception.”
•
Imbong vs. Ochoa (2014)
• In its plain and ordinary meaning (a canon in statutory construction), the
traditional meaning of “conception” according to reputable dictionaries
cited by the ponente is that life begins at fertilization. Medical sources also
support the view that conception begins at fertilization.
• The framers of the Constitution also intended for (a) “conception” to refer
to the moment of “fertilization” and (b) the protection of the unborn child
upon fertilization. In addition, they did not intend to ban all contraceptives
for being unconstitutional; only those that kill or destroy the fertilized
ovum would be prohibited. Contraceptives that actually prevent the union
of the male sperm and female ovum, and those that similarly take action
before fertilization should be deemed non-abortive, and thus
constitutionally permissible.
Imbong vs. Ochoa (2014)
• The intent of the framers of the Constitution for protecting the life of
the unborn child was to prevent the Legislature from passing a
measure prevent abortion. The Court cannot interpret this otherwise.
The RH Law is in line with this intent and actually prohibits abortion.
By using the word “or” in defining abortifacient (Section 4(a)), the RH
Law prohibits not only drugs or devices that prevent implantation but
also those that induce abortion and induce the destruction of a fetus
inside the mother’s womb. The RH Law recognizes that the fertilized
ovum already has life and that the State has a bounded duty to
protect it.
• Right to a balanced and healthful ecology
• Intergenerational responsibility
• Linked with the right to health
• Writ of Kalikasan
Precautionary Principle
• Precautionary principle states that when human activities may lead to threats of
serious and irreversible damage to the environment that is scientifically plausible
but uncertain, actions shall be taken to avoid or diminish that threat.
• It is notable x x x that the precautionary principle shall only be relevant if there is
concurrence of three elements, namely: uncertainty, threat of environmental
damage and serious or irreversible harm. In situations where the threat is
relatively certain, or that the causal link between an action and environmental
damage can be established, or the probability of occurrence can be calculated,
only preventive, not precautionary measures, may be taken. Neither will the
precautionary principle apply if there is no indication of a threat of environmental
harm, or if the threatened harm is trivial or easily reversible.( Mosqueda, et al. v.
Pilipino Banana Growers & Exporters Association, Inc., et al., G.R. No. 189185,
August 16, 2016)
• In Mosqueda, et al. v. Pilipino Banana Growers & Exporters
Association, Inc., et al., (G.R. No. 189185, August 16, 2016, En Banc
[Bersamin]), it was argued that the Ordinance enacted by the City of
Davao prohibiting aerial spraying of pesticides is justified since it will
protect the health of residents and the environment against the risks
posed by aerial drift of chemicals applying the precautionary
principle. The Court did not find the presence of the elements for this
principle to apply.
• We should not apply the precautionary approach in sustaining the
ban against aerial spraying if little or nothing is known of the exact or
potential dangers that aerial spraying may bring to the health of the
residents within and near the plantations and to the integrity and
balance of the environment. It is dangerous to quickly presume that
the effects of aerial spraying would be adverse even in the absence of
evidence.
Mammals Case
• Are these marine mammals the proper parties to file the petition? In
this case, actually the SC did not rule squarely on this issue. The Court
ruled instead that the issue of whether these marine mammals have
locus standi to file the petition had been eliminated because of
Section 5, Rules for the Enforcement of Environmental Laws, which
allows any citizen to file a petition for the enforcement of
environmental laws (Citizen‟s Suit) and, in their petition, these
marine mammals were joined by human beings as “stewards of
nature.”
Presidential System
• In a presidential form of government, there is the observance of the
doctrine of separation of powers; in a parliamentary government,
instead of separation of powers, there is the union of the executive
and legislative branches. In a presidential form of government, the
President is elected by the people at large; in a parliamentary
government, the Prime Minister is elected not by the people at large
but by members of Parliament.
State Immunity from suit
• There are two conflicting concepts of sovereign immunity, each
widely held and firmly established. According to the classical or
absolute theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. According to the
newer or restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jure imperii of a
state, but not with regard to private acts or acts jure gestionis. (Holy
See vs. Rosario [1994])
• The Philippines adopts the restrictive view.
•
State Immunity from suit
• The State may not be sued without its consent. (Section 3, Article XVI,
1987 Constitution)
Jusmag vs. NLRC [1994]
• The doctrine of state immunity from suit has undergone further
metamorphosis. The view evolved that the existence of a contract does
not, per se, mean that sovereign states may, at all times, be sued in local
courts. The complexity of relationships between sovereign states, brought
about by their increasing commercial activities, mothered a
more restrictive application of the doctrine.
•
• xxx xxx xxx
•
• As it stands now, the application of the doctrine of immunity from suit
has been restricted to sovereign or governmental activities (jure
imperii). The mantle of state immunity cannot be extended to commercial,
private and proprietary acts (jure gestionis)
• The rule, in any case, is not really absolute for it does not say that the
state may not be sued under any circumstances. On the contrary x x x
the doctrine only conveys, “the state may not be sued without its
consent;” its clear import then is that the State may at times be sued.
The State's consent may be given either expressly or impliedly.
Express consent may be made through a general law (i.e.,
Commonwealth Act No. 327, as amended by Presidential Decree No.
1445 [Sections 49-50], which requires that all money claims against
the government must first be filed with the Commission on Audit
which must act upon it within sixty days. Rejection of the claim will
authorize the claimant to elevate the matter to the Supreme Court on
certiorari and, in effect, sue the State thereby) or a special law.
• In this jurisdiction, the general law waiving the immunity of the state
from suit is found in Act No. 3083, where the Philippine government
“consents and submits to be sued upon any money claim involving
liability arising from contract, express or implied, which could serve as
a basis of civil action between the private parties.” Implied consent,
on the other hand, is conceded when the State itself commences
litigation, thus opening itself to a counterclaim or when it enters into
a contract. In this situation, the government is deemed to have
descended to the level of the other contracting party and to have
divested itself of its sovereign immunity. (Department of Agriculture
v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug])
Not all contracts
• This rule is not without qualification. Not all contracts entered into by
the government operate as a waiver of its non-suability; distinction
must still be made between one which is executed in the exercise of
its sovereign function and another which is done in its proprietary
capacity.
• The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign sovereign,
its commercial activities or economic affairs. Stated differently, a State may
be said to have descended to the level of an individual and can thus be
deemed to have tacitly given its consent to be sued only when it enters
into business contracts. It does not apply where the contracts relate to the
exercise of its sovereign functions. In this case the projects are an integral
part of the naval base which is devoted to the defense of both the United
States and the Philippines, indisputably a function of the government of
the highest order; they are not utilized for nor dedicated to commercial or
business purposes.” (Department of Agriculture v. NLRC, 227 SCRA 693,
Nov. 11, 1993 [Vitug]
Does not apply
• Neither does it apply where the public official is clearly being sued
not in his official capacity but in his personal capacity, although the
acts complained of may have been committed while he occupied a
public position. (Amado J. Lansang v. CA, G.R. No. 102667, Feb. 23,
2000, 2nd Div. [Quisumbing])
Arigo vs. Swift (2014) Tubbatataha Case
• A petition filed for the issuance of a Writ of Kalikasan directed against
the Commander of the US Pacific Fleet for the destruction of our
corrals in Tubbataha reef (a protected area system under the NIPAS
[National Integrated Protected Areas System] and a UN declared
World Heritage Site because of its rich marine bio-diversity) in the
Sulu Sea caused by the USS Guardian, an American naval vessel when
it ran aground there in the course of its voyage to Indonesia from its
base in Okinawa, Japan, will not prosper for lack of jurisdiction
following the doctrine of sovereign equality of all States. In effect, the
suit is a suit against the US government and, therefore, should be
dismissed.
• The waiver of immunity from suit of the US under the Visiting Forces
Agreement (VFA) applies only to waiver from criminal jurisdiction, so that if
an American soldier commits an offense in the Philippines, he shall be tried
by Philippine courts under Philippine laws. The waiver did not include the
special civil action for the issuance of a Writ of Kalikasan.
• Also, the demand for compensation for the destruction of our corrals in
Tubbataha reef has been rendered moot and academic. After all, the US
already signified its intention to pay damages, as expressed by the US
embassy officials in the Philippines, the only request is that a panel of
experts composed of scientists be constituted to assess the total damage
caused to our corrals there, which request is not unreasonable.
Northrail Case (China Natonal Railway vs.
Judge Sta.Maria (2014)
• In Holy See, this Court reiterated the oft-cited doctrine that the
determination by the Executive that an entity is entitled to sovereign
or diplomatic immunity is a political question conclusive upon the
courts, to wit:
• In Public International Law, when a state or international agency
wishes to plead sovereign or diplomatic immunity in a foreign court,
it requests the Foreign Office of the state where it is sued to convey
to the court that said defendant is entitled to immunity.
Immunity from Suit
• The question now is whether any agency of the Executive Branch can make a
determination of immunity from suit, which may be considered as conclusive upon the
courts. This Court, in Department of Foreign Affairs (DFA) v. National Labor Relations
Commission (NLRC),emphasized the DFAs competence and authority to provide such
necessary determination, to wit:
• The DFAs function includes, among its other mandates, the determination of persons
and institutions covered by diplomatic immunities, a determination which, when
challenge, (sic) entitles it to seek relief from the court so as not to seriously impair the
conduct of the country's foreign relations. The DFA must be allowed to plead its case
whenever necessary or advisable to enable it to help keep the credibility of the
Philippine government before the international community. When international
agreements are concluded, the parties thereto are deemed to have likewise accepted
the responsibility of seeing to it that their agreements are duly regarded. In our
country, this task falls principally of (sic) the DFA as being the highest executive
department with the competence and authority to so act in this aspect of the
international arena.
•
• An agreement to submit any dispute to arbitration may be construed
as an implicit waiver of immunity from suit.
• In the United States, the Foreign Sovereign Immunities Act of 1976

provides for a waiver by implication of state immunity. In the said law,
the agreement to submit disputes to arbitration in a foreign country is
construed as an implicit waiver of immunity from suit. Although there
is no similar law in the Philippines, there is reason to apply the legal
reasoning behind the waiver in this case.
Separation of Powers
• The principle of separation of powers ordains that each of the three great
branches of government has exclusive cognizance of and is supreme in
matters falling within its own constitutionally allocated sphere.
• Necessarily imbedded in this doctrine is the principle of non-delegation of

powers, as expressed in the Latin maxim potestas delegata non delegari
potest, which means what has been delegated, cannot be delegated. This
doctrine is based on the ethical principle that such delegated power
constitutes not only a right but a duty to be performed by the delegate
through the instrumentality of his own judgment and not through the
intervening mind of another.However, this principle of non-delegation of
powers admits of numerous exceptions,[one of which is the delegation of
legislative power to various specialized administrative agencies like the
Board in this case. (Bureau of Customs Employees vs. Teves [2011])
Separation of Powers
• The doctrine of separation of powers is not absolute in its application;
rather, it should be applied in accordance with the principle of checks
and balances. The removal from office of elective officials must not be
tainted with partisan politics and used to defeat the will of the voting
public. Congress itself saw it fit to vest that power in a more impartial
tribunal, the court. Furthermore, the local government units are not
deprived of the right to discipline local elective officials; rather, they
are prevented from imposing the extreme penalty of dismissal.
(Sangguniang Barangay Mariano Marcos vs. Punong Barangay
Severino Martiniez [2007])
Delegation of Powers
• The principle of separation of powers ordains that each of the three great
branches of government has exclusive cognizance of and is supreme in matters
falling within its own constitutionally allocated sphere.Necessarily imbedded in
this doctrine is the principle of non-delegation of powers, as expressed in the
Latin maxim potestas delegata non delegari potest, which means what has been
delegated, cannot be delegated. This doctrine is based on the ethical principle
that such delegated power constitutes not only a right but a duty to be
performed by the delegate through the instrumentality of his own judgment and
not through the intervening mind of another. However, this principle of non-
delegation of powers admits of numerous exceptions,[one of which is the
delegation of legislative power to various specialized administrative agencies.
(Bureau of Customs Employees vs. Teves [2011)
Three Branches
• Legislative
• Executive
• Judiciary
• Powers and Limitations

• Attributes
• Exercise
Legislative Power
• The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the
provision on initiative and referendum. (Section 1, Article VI, 1987
Constitution)
• Legislative power is not exclusive to Congress.
• Section 1 in relation to Section 32 reserved for the people ordinary

legislative power through “initiative and referendum.”
Bicameral System
• The Principle of Bicameralism
• The Bicameral Conference Committee
• It is a mechanism for compromising differences between the Senate
and the House of Representatives. By the nature of its function, a
Bicameral Conference Committee is capable of producing unexpected
results – results which sometimes may even go beyond its own
mandate. (Philippine Judges Association v. Secretary Prado; Tolentino
v. Secretary of Finance)
Composition of the House of Representatives
• 1. District Representatives
• 2. Party List Representatives

District Representatives
• Section 5 (1) prescribes that district representatives shall be elected
from legislative districts apportioned among the provinces, cities, and
the Metropolitan Manila area in accordance with the number of their
respective inhabitants and on the basis of a uniform and progressive
ratio.
• Equality of representation
Constitutional Framework (Art. VI, section 5)
On the Four Rules of Apportionment
SECTION 5. (1) The House of Representatives shall be composed of not more than two hundred and
fifty members, unless otherwise fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the
number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those
who, as provided by law, shall be elected through a party-list system of registered national, regional,
and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided
by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious sector.
Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent
territory. Each city with a population of at least two hundred fifty thousand, or each province, shall
have at least one representative.
(3) Within three years following the return of every census, the Congress shall make a
reapportionment of legislative districts based on the standards provided in this section.
The Rule on Apportionment; Aquino vs.
COMELEC [2010]
• The second sentence of Section 5(3), Article VI of the Constitution,
succinctly provides: Each city with a population of at least two
hundred fifty thousand, or each province, shall have at least one
representative.
• The provision draws a plain and clear distinction between the

entitlement of a city to a district on one hand, and the entitlement of
a province to a district on the other. For while a province is entitled
to at least a representative, with nothing mentioned about
population, a city must first meet a population minimum of 250,000
in order to be similarly entitled.
Aquino vs. Comelec [2010]
• The use by the subject provision of a comma to separate the phrase
each city with a population of at least two hundred fifty
thousand from the phrase or each province point to no other
conclusion than that the 250,000 minimum population is only
required for a city, but not for a province.
• Plainly read, Section 5(3) of the Constitution requires a 250,000

minimum population only for a city to be entitled to a
representative, but not so for a province.
Aquino vs. Comelec [2010]
• The Mariano case limited the application of the 250,000 minimum population
requirement for cities only to its initial legislative district. In other words, while
Section 5(3), Article VI of the Constitution requires a city to have a minimum
population of 250,000 to be entitled to a representative, it does not have to
increase its population by another 250,000 to be entitled to
an additional district.
• There is no reason why the Mariano case, which involves the creation of
an additional district within a city, should not be applied to additional districts in
provinces. Indeed, if an additional legislative district created within a city is not
required to represent a population of at least 250,000 in order to be valid,
neither should such be needed for an additional district in a province,
considering moreover that a province is entitled to an initial seat by the mere
fact of its creation and regardless of its population.
Difference between Legislative Apportionment and
Reapportionment (Bagabuyo vs. COMELEC [2008]
• Legislative apportionment is defined by Blacks Law Dictionary as the
determination of the number of representatives which a State, county
or other subdivision may send to a legislative body. It is the allocation
of seats in a legislative body in proportion to the population; the
drawing of voting district lines so as to equalize population and voting
power among the districts.
• Reapportionment, on the other hand, is the realignment or change

in legislative districts brought about by changes in population and
mandated by the constitutional requirement of equality of
representation.
• Article VI (entitled Legislative Department) of the 1987 Constitution lays down the
rules on legislative apportionment under its Section 5 which provides:
• Sec. 5(1). (1) The House of Representatives shall be composed of not more than two
hundred fifty members unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional and sectoral parties or
organizations.
• xxx
• (3) Each legislative district shall comprise, as far as practicable, continuous, compact, and
adjacent territory. Each city with a population of at least two hundred fifty thousand, or
each province, shall have at least one representative.
• (4) Within three years following the return of every census, the Congress shall make a
reapportionment of legislative districts based on the standards provided in this section.
• Legislative apportionment does not mean, and does not even imply, a
division of a local government unit where the apportionment takes
place.
• Thus, the plebiscite requirement that applies to the division of a

province, city, municipality or barangay under the Local Government
Code should not apply to and be a requisite for the validity of a
legislative apportionment or reapportionment
Sectoral Representations
• Three different groups may participate in the party-list system: (1)
national parties or organizations, (2) regional parties or organizations,
and (3) sectoral parties or organizations.
• National parties or organizations and regional parties or organizations
do not need to organize along sectoral lines and do not need to
represent any “marginalized and underrepresented” sector.
Sectoral Representation
• Political parties can participate in party-list elections provided they
register under the party-list system and do not field candidates in
legislative district elections. A political party, whether major or not,
that fields candidates in legislative district elections can participate in
party-list elections through its sectoral wing that can separately
register under the party-list system.
Sectoral Representation
• Sectoral parties or organizations may either be “marginalized and
underrepresented” or lacking in “well-defined political
constituencies.” It is enough that their principal advocacy pertains to
the special interest and concerns of their sector. The sectors that are
“marginalized and underrepresented” include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities,
handicapped, veterans, and overseas workers. The sectors that lack
“well-defined political constituencies” include professionals, the
elderly, women and the youth.
• A majority of the members of sectoral parties or organizations that
represent the “marginalized and underrepresented” must belong to the
“marginalized and underrepresented” sector they represent.
• Similarly, a majority of the members of sectoral parties or organizations
that lack “well-defined political constituencies” must belong to the sector
they represent. The nominees of sectoral parties or organizations that
represent the “marginalized and underrepresented,” or that represent
those who lack “well-defined political constituencies,” either must belong
to their respective sectors, or must have a track record of advocacy for
their respective sectors. The nominees of national and regional parties or
organizations must be bona fide members of such parties or organizations.
• National, regional, and sectoral parties or organizations shall not be
disqualified if some of their nominees are disqualified, provided that
they have at least one nominee who remains qualified. (Atong
Paglaum, Inc., et al. v. COMELEC, G.R. No. 203766, 694 SCRA 477,
April 2, 2013, En Banc [Carpio])
Two Questions on Party List
1. How many votes must an organization receive in order to qualify for

a seat in House of Representatives?
2. Whether the allocated 20% of the total membership in the House

of Representatives must be filled up?
First Question
• Parties, organizations, and coalitions participating in the system to
obtain at least 2% of the total votes cast for the party list system in
order to be entitled to a party list seat. Those garnering more than
this percentage may have additional seats in proportion to their total
number of votes.
• No winning party, organization or coalition may have more than 3

seats in the House of Representatives.
Barangay Association for National Advancement and
Transparency (BANAT) v. COMELEC, G.R. No. 179271, 586 SCRA
210, July 2, 2009, En Banc (Carpio)
• “We rule that, in computing the allocation of additional seats, the continued operation of
the two percent threshold for the distribution of the additional seats as found in the
second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that
the two percent threshold makes it mathematically impossible to achieve the maximum
number of available party list seats when the number of available party list seats exceeds
50. The continued operation of the two percent threshold in the distribution of the
additional seats frustrates the attainment of the permissive ceiling that :
• “20% of the members of the House of Representatives shall consist of party-list
representatives. “X x x
• “We therefore strike down the two percent threshold only in relation to the distribution
of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941.
The two percent threshold presents an unwarranted obstacle to the full implementation
of Section 5(2), Article VI of the Constitution and prevents the attainment of “the
broadest possible representation of party, sectoral or group interests in the House of
Representatives.”
Parameters
• the twenty (20) percent allocation;
• the two (2) percent threshold;
• the three (3) - seat limit; and
• proportional representation
Second Question
• Whether the allocated 20% of the total membership in the House of
Representatives must be filled up?
• The 20% prescription of the Constitution was merely a maximum
limit to the number of party list representatives but the maximum
need not be filled. (Veterans Federation Party vs. COMELEC;
reiterated in the case of Partido vs. COMELEC [2000])
Qualifications and Privileges
• Once elected, both the district representatives and the party-list
representatives are treated in like manner. They have the same
deliberative rights, salaries, and emoluments. They can participate in
the making of laws that will directly benefit their legislative districts
or sectors. They are also subject to the same term limitation of three
years for a maximum of three consecutive terms. (Daryl Grace J.
Abayon v. The Honorable House of Representatives Electoral Tribunal,
et al., G.R. Nos. 189466 and 189506, 612 SCRA 375, 11 February
2010, En Banc [Abad])
Residence Requirement
• The constitution does not use the word domicile, but residence.
• Residence means a place of abode, whether permanent or
temporary.
• Domicile means permanent residence to which one when absent, has
the intention to return. Residence, in other words, is not necessarily
domicile; but domicile necessarily residence.
• The enumeration of qualifications in Section 6, Article VI is exclusive.
Congress may not add anything to it.
Privilege from Arrest
• Section 11, Article VI
• Limited only to offenses punishable by not more than 6 years
imprisonment.
• The immunity applies for as long as Congress is in session, whether or
not the legislator involved is actually attending it.
• Popular sovereignty is not a ground to evade arrest.
Privilege of speech and debate
• It is a guarantee of immunity from answerability before an outside
forum, but not answerability to the disciplinary authority of Congress
itself.
• The speech or debate must be one made in Congress or in any
committee thereof.
Questions on Officers of Congress
• Avelino vs. Cuenco [1949]; Santiago vs. Guingona [1998]
• Question is political in nature. In the absence of any constitutional or
statutory guidelines or specific rules, the High Court is devoid of any
basis upon which to determine the legality of acts of the Senate
relative thereto.
When journal conflicts with another official act
of Congress?
• Enrolled Bill
• The enrolled bill is the duly authenticated copy of a bill or resolution
bearing the signature of the Speaker and the Senate President and
the certification of the secretaries of both houses that such bill was
passed.
• It is the certification of the officers of both houses that gives
probative weight to an enrolled bill.
Electoral Tribunals
• Nature?
• Independent from both Congress and COMELEC.
• It is for the HRET to interpret the meaning of this particular
qualification of a nominee – the need for him or her to be a bona fide
member or a representative of his party-list organization – in the
context of the facts that characterize the nominee respectively, and
the marginalized and underrepresented interests that they
presumably embody.
Electoral Tribunals
• Section 17, Article VI of the Constitution provides that the HRET shall be
the sole judge of all contests relating to, among other things, the
qualifications of the members of the House of Representatives. Since
party-list nominees are “elected members” of the House of
Representatives, the HRET has jurisdiction to hear and pass upon their
qualifications. By analogy with the cases of district representatives, once
the party or organization of the party-list nominee has been proclaimed
and the nominee has taken his oath and assumed office as member of the
House of Representatives, the COMELEC‟s jurisdiction over election
contests relating to his qualification ends and the HRET‟s own jurisdiction
begins. (Daryl Grace J. Abayon v. The Honorable House of Representatives
Electoral Tribunal, et al., G.R. Nos. 189466 and 189506, 612 SCRA 375, 11
February 2010, En Banc [Abad])
Is the decision of HRET or SET subject to
review?
• No. HRET/SET is the sole judge of all contests relating to, among
other things, the qualifications of the members of the House of
Representatives/Senate.
• Exception: Grave abuse of discretion, amounting to lack or excess of

jurisdiction.
Can the ET determine issues on terrorism and
Fraud in an election?
• Yes, it has jurisdiction to determine acts of terrorism.
• It can annul the election results in precint to remain faithful to its

constitutional mandate.
Power of Appropriation
• No money shall be paid out of the Treasury except in pursuance of an
appropriations made by law. (Section 29 [1], Article VI, 1987
Constitution)
• Under the Constitution, the power of appropriation is vested in the

Legislature, subject to the requirement that appropriations bills
originate exclusively in the House of Representatives with the option
of the Senate to propose or concur with amendments.
Pork Barrel System
• The Court defines the Pork Barrel System as the collective body of
rules and practices that govern the manner by which lump-sum,
discretionary funds, primarily intended for local projects, are utilized
through the respective participations of the Legislative and Executive
branches of government, including its members. The Pork Barrel
System involves two (2) kinds of lump-sum, discretionary funds:
Two kinds of lump sum
• First, there is the Congressional Pork Barrel which is herein defined
as a kind of lump-sum, discretionary fund wherein legislators, either
individually or collectively organized into committees, are able to
effectively control certain aspects of the fund‟s utilization through
various post-enactment measures and/or practices; and
• Second, there is the Presidential Pork Barrel which is herein defined
as a kind of lump-sum, discretionary fund which allows the President
to determine the manner of its utilization. X x x the Court shall delimit
the use of such term to refer only to the Malampaya Funds and the
Presidential Social Fund. (Belgica v. Ochoa, G.R. No. 208566, 710 SCRA
1, 105-106, Nov. 19, 2013, En Banc [Perlas-Bernabe])
Question Hour
• The Question Hour (Section 22, Article VI, 1987 Constitution)
• As explained by the Court in Senate v. Ermita, this question hour is
not really a regular feature of a presidential government, but is
merely a borrowed concept from a parliamentary government.
Right to Information
• The right to information does not extend to matters recognized as
„privileged information‟ under the separation of powers, by which
the Court meant Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings.
Presidential Communications Privilege
• Thus, if what is involved is the presumptive privilege of presidential
communications when invoked by the President on a matter clearly
within the domain of the Executive, the said presumption dictates
that the same be recognized and be given preference or priority, in
the absence of proof of a compelling or critical need for disclosure
by the one assailing such presumption. Any construction to the
contrary will render meaningless the presumption accorded by
settled jurisprudence in favor of executive privilege. In fact, Senate v.
Ermita reiterates jurisprudence citing “the considerations justifying a
presumptive privilege for Presidential communications.”
Inquiries
• Congressional Investigations
• There are two (2) kinds of congressional investigations, i.e., inquiry in
aid of legislation (Section 21, Article VI, 1987 Constitution); and the
question hour (Section 22, Article VI, 987 Constitution)
Inquiry
• In Arnault v. Nazareno, the Court held that intrinsic in the grant of
legislative power itself to Congress by the Constitution is the power to
conduct inquiries in aid of legislation, for Congress may not be
expected to enact good laws if it will be denied the power investigate.
• Note that Arnault was decided in the 1950‟s under the 1935
Constitution, and in that Constitution there was no provision similar
to that which is expressly provided in the present Constitution. Yet, as
early as that case, the Court already recognized that this power is
intrinsic in the grant of legislative power itself to Congress by the
Constitution.
Relevant Questions
• In Bengzon, Jr. v. Senate Blue Ribbon Committee, two (2) relevant
questions were raised.
• First, is this power of each House of Congress to conduct inquiries in
aid of legislation absolute, or are there limitations?
• Second, is this power subject to judicial review, or is it a political
question?
NOT ABSOLUTE
• As to the first question, the Court clarified that a mere reading of
Section 21, Article VI of the Constitution will show that the power is
not really absolute; in fact there are three (3) important limitations
imposed therein, and these are:
• The inquiry must be in aid of legislation;
• It must be conducted in accordance with the duly published rules of
procedure of a
• House of Congress conducting such inquiry; and
• The rights of persons appearing in or affected by such inquiry shall be
respected.
SUBJECT TO JUDICIAL REVIEW
• As to the second, the Court held that since it had already been shown
that the power is not really absolute, in fact, there are important
limitations, it follows, therefore, that such is subject to judicial review
especially in view of the expanded power of the Court to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the government.
COMMISSION ON APPOINTMENTS
• Composition
• Proportional Representation of all political parties and parties and
organizations registered under the party list system.
• Total number of representatives divided by number of representatives
in the Commission (complement). The full complement of 12 was not
mandatory.
• Independent body; can promulgate its own rules; the Supreme Court
cannot pass upon the correctness of the interpretation placed by the
Commission of its own rules.
• CA can only meet when Congress is in session.
• Intended to serve as check and balance
• Should act on all appointments submitted to within 30 “session” days
of Congress from their submission and that the Commission should
rule by majority vote.
Power to declare war
• Who exercises power and what kind of war is covered?
• Congress by a vote of 2/3 of both houses in joint session assembled, voting
separately shall have the sole power to declare the existence of a state of
war (section 23, article VI)
• War is defined as armed hostilities between two states; Emphasize Article
II, section 2 renouncing aggressive war as an instrument of national policy.
• Does not prohibit the waging of a defensive war even in the absence of a
declaration of war or of a declaration of the existence of a state of war.
• The actual power to make war is an executive power. It may make war even
in the absence of a declaration of war.
Delegation of Emergency powers
• War or other national emergency
• Congress may authorize the president to exercise powers necessary
and proper to carry out a declared national policy. A delegation of real
legislative power.
• Subject to two restrictions: (1) For a limited period. Unless sooner
withdrawn by resolution of the congress, such powers shall cease
upon the next adjournment thereof; (2) Subject to such restrictions
as the Congress may provide.
Doctrine of Inappropriate Provisions
• Related to the veto power of the president;
• A provision that is constitutionally inappropriate for an appropriation
bill may be singled out for veto even if it is not an appropriation or
revenue item.
• Valid?
• An exercise of presidential judgment.
The Executive Power
• The executive power shall be vested in the President of the Philippines.
(Section 1, Article VII, 1987 Constitution)
• Nature of the Executive Power in relation to Separation of Powers;Checks
and Balances
• It has already been established that there is one repository of executive
powers, and that is the President of the Republic. This means that when
Section 1, Article VII of the Constitution speaks of executive power, it is
granted to the President and no one else. Corollarily, it is only the
President, as Chief Executive, who is authorized to exercise emergency
powers as provided under Section 23, Article VI, of the Constitution, as well
as what became known as the calling- out powers under Section 18, Article
VII thereof. (Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3,
2012)
Power of the Executive
• The duty to protect the State and its people must be carried out
earnestly and effectively throughout the whole territory of the
Philippines in accordance with constitutional provision on national
territory. Hence, the President of the Philippines, as the sole
repository of executive power, is the guardian of the Philippine
archipelago, including all the islands and waters embraced therein
and all other territories over which the Philippines and sovereignty or
jurisdiction. X x x
Power to call out
• To carry out this important duty, the President is equipped with
authority over the Armed Forces of the Philippines (AFP), which is the
protector of the people and the state. X x x. In addition, the Executive
is constitutionally empowered to maintain peace and order, protect
life, liberty, and property, and promote the general welfare. In
recognition of these powers, Congress has specified that the
President must oversee, ensure, and reinforce our defensive
capabilities against external and internal threats and, in the same
vein, ensure that the country is adequately prepared for all national
and local emergencies arising from natural and man- made disasters.
• To be sure, this power is limited by the Constitution itself. X x x (Rene
A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al.,
G.R. No. 212426, Jan. 12, 2016, En Banc [Sereno, CJ])
Faithful Execution Clause
• The Court has interpreted the faithful execution clause as an
obligation imposed on the President, and not a separate grant of
power. Section 17, Article VII of the Constitution, expresses this duty
in no uncertain terms and includes it in the provision regarding the
President‟s power of control over the executive department
• In light of this constitutional duty, it is the President‟s prerogative to
do whatever is legal and necessary for Philippine defense interests.
• It s no coincidence that the constitutional provision on the faithful
execution clause was followed by that on the President‟s
commander- in-chief powers, which are specifically granted during
extraordinary events of lawless violence, invasion, or rebellion. And
this duty of defending the country is unceasing, even in times when
there is no state of lawless violence, invasion, or rebellion. At such
times, the President has full powers to ensure the faithful execution
of the laws.
• It would therefore be remiss for the President and repugnant to the
faithful-execution clause of the Constitution to do nothing when the
call of the moment requires increasing the military‟s defensive
capabilities, which could include forging alliances with states that
hold a common interest with the Philippines or bringing an
international suit against an offending state.
Deference to the Presidential Initiative
• This approach of giving utmost deference to presidential initiatives in
respect of foreign affairs is not novel to the Court. The President‟s act of
treating EDCA as an executive agreement is not the principal power being
analyzed x x x. Rather, the preliminary analysis is in reference to the
expansive power of foreign affairs. We have long treated this power as
something the Courts must not unduly restrict. X x x
• Xxx
• Understandably, this Court must view the instant case with the same
perspective and understanding, knowing full well the constitutional and
legal repercussions of any judicial overreach. (Rene A.V. Saguisag, et al. v.
Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 212426, Jan. 12,
2016, En Banc [Sereno, CJ])
Doctrine of Qualified Political Agency
• Under this doctrine, which recognizes the establishment of a single
executive, all executive and administrative organizations are adjuncts of
the Executive Department, the heads of the various executive
departments are assistants and agents of the Chief Executive, and, except
in cases where the Chief Executive is required by the Constitution or law
to act in person or the exigencies of the situation demand that he act
personally, the multifarious executive and administrative functions of the
Chief Executive are performed by and through the executive
departments, and the acts of the Secretaries of such departments,
performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive presumably the acts of
the Chief Executive. (Resident Marine Mammals of the Protected Seascape
Tanon Strait, et al. v. Secretary Angelo Reyes, et al., GR Nos. 180771 and
181527, April 21, 2015, En Banc [Leonardo-De Castro])
Appointing Power
• Conformably, as consistently interpreted and ruled in the leading case of
Sarmiento III v. Mison, and in the subsequent cases of Bautista v. Salonga,
Quintos-Deles v. Constitutional Commission, and Calderon v. Carale, under
Section 16, Article VII, of the Constitution, there are four groups of officers
of the government to be appointed by the President:
• First, the heads of the executive departments, ambassadors, other public
ministers and consuls, officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him
in this Constitution;
• Second, all other officers of the Government whose appointments are not
otherwise provided for by law;
• Third, those whom the President may be authorized by law to
appoint;
• Fourth, officers lower in rank whose appointments the Congress may
by law vest in the President alone.
• It is well-settled that only presidential appointees belonging to the
first group require the confirmation by the Commission on
Appointments. (Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999, En
Banc [Purisima])
Ad Interim Appointment; Nature and
Character
• An ad interim appointment is a permanent appointment because it
takes effect immediately and can no longer be withdrawn by the
President once the appointee has qualified into office. The fact that
it is subject to confirmation by the Commission on Appointments
does not alter its permanent character.
• The Constitution itself makes an ad interim appointment permanent
in character by making it effective until disapproved by the
Commission on Appointments or until the next adjournment of
Congress. X x x Thus, the ad interim appointment remains effective
until such disapproval or next adjournment, signifying that it can no
longer be withdrawn or revoked by the President.
• The Constitution imposes no condition on the effectivity of an ad
interim appointment, and thus an ad interim appointment takes
effect immediately. The appointee can at once assume office and
exercise, as a de jure officer, all the powers pertaining to the office.
• Thus, the term “ad interim appointment”, as used in letters of
appointment signed by the President, means a permanent
appointment made by the President in the meantime that Congress
is in recess. It does not mean a temporary appointment that can be
withdrawn or revoked at any time. The term, although not found in
the text of the Constitution, has acquired a definite legal meaning
under Philippine jurisprudence.
• An ad interim appointee who has qualified and assumed office becomes at
that moment a government employee and therefore part of the civil
service.
• He enjoys the constitutional protection that “[n]o officer or employee in
the civil service shall be removed or suspended except for cause provided
by law.” (Section 2[3], Article IX-B of the Constitution) Thus, an ad interim
appointment becomes complete and irrevocable once the appointee has
qualified into office. X x x Once an appointee has qualified, he acquires a
legal right to the office which is protected not only by statute but also by
the Constitution. He can only be removed for cause, after notice and
hearing, consistent with the requirements of due process. (Matibag v.
Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])
Limitations on power to appoint
• Two months immediately before the next presidential elections and
up to the end of his term, a President or Acting President shall not
make appointments, except temporary appointments to executive
positions when continued vacancies therein will prejudice public
service or endanger public safety. (Section 15, Article VII, 1987
Constitution)
May a Solicitor General be appointed as SOJ?
• Section 7 (2), Article IX-B of the 1987 Constitution; Section 13, Article
VII
• Members of the Cabinet, and their deputies or assistants shall not,
unless otherwise provided in the Constitution hold any other office or
employment during their tenure.
• The prohibition against dual or multiple offices being held by one
official must be construed as to apply to all appointments or
designations, whether permanent or temporary.
Exceptions to Prohibition against Multiple
Positions
• 1. Those provided under the 1987 Constitution such as Article VII,
section 3 authorizing the Vice President to become a member of the
cabinet.
• 2. Posts occupied by Executive Officials specified in Section 13, Article

VII without additional compensation in ex oficio capacities as
provided by law and required by the primary functions of the officials’
offices
Calling out power as Commander in Chief
• While the President is still a civilian, Article II, Section 3 of the Constitution
mandates that civilian authority is, at all times, supreme over the military,
making the civilian president the nation‟s supreme military leader. The net
effect of Article II, Section 3, when read with Article VII, Section 18, is that a
civilian President is the ceremonial, legal and administrative head of the
armed forces.
• The Constitution does not require that the President must be possessed of
military training and talents, but as Commander-in-Chief, he has the power
to direct military operations and to determine military strategy. Normally,
he would be expected to delegate the actual command of the armed forces
to military experts, but the ultimate power is his. (Jamar Kulayan v. Gov.
Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc [Sereno, CJ])
Subject to Judicial Review or Political
Question ?
• When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary
power solely vested in his wisdom.
• This is clear from the intent of the framers and from the text of the
Constitution itself. The Court, thus, cannot be called upon to overrule the
President's wisdom or substitute its own. However, this does not prevent
an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting
grave abuse of discretion. In view of the constitutional intent to give the
President full discretionary power to determine the necessity of calling out
the armed forces, it is incumbent upon the petitioner to show that the
President's decision is totally bereft of factual basis.. (Integrated Bar of the
Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En
Banc [Kapunan])
Basis for the full discretionary power on call
out power by the President
• Full discretionary power under section 18, Article VII
• Call out such Armed Forces to prevent or suppress lawless violence,
invasion or rebellion
• Reinforced by Article VII, section 18 - no such power on Congress to
revoke or review the President’s action to call out the Armed Forces
Two conditions to exercise the power to suspend
the privilege of Habeas Corpus or impose ML
• 1. There must be actual invasion or rebellion; and
• 2. Public safety must require it.
• These two conditions are not required in the power to call out the
AFP. The only criterion is that “whenever it becomes necessary”.
President’s authority to declare a state of Exercise of Emergency Power (Art.VI)
Distinction
national emergency (Article VII)
Section 18. The President shall be the Commander-in-Chief Section 23.
of all armed forces of the Philippines and whenever it The Congress, by a vote of two-thirds of both Houses
becomes necessary, he may call out such armed forces to in joint session assembled, voting separately, shall
prevent or suppress lawless violence, invasion or rebellion. In
have the sole power to declare the existence of a state
case of invasion or rebellion, when the public safety requires
it, he may, for a period not exceeding sixty days, suspend the of war.
privilege of the writ of habeas corpus or place the Philippines In times of war or other national emergency, the
or any part thereof under martial law. Within forty-eight Congress may, by law, authorize the President, for a
hours from the proclamation of martial law or the limited period and subject to such restrictions as it
suspension of the privilege of the writ of habeas corpus, the may prescribe, to exercise powers necessary and
President shall submit a report in person or in writing to the proper to carry out a declared national policy. Unless
Congress. The Congress, voting jointly, by a vote of at least a sooner withdrawn by resolution of the Congress, such
majority of all its Members in regular or special session, may
powers shall cease upon the next adjournment
revoke such proclamation or suspension, which revocation
shall not be set aside by the President. Upon the initiative of thereof.
the President, the Congress may, in the same manner, extend
such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.
Note Article XII
• Section 17. In times of national emergency, when the public interest
so requires, the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately-owned public utility or business affected
with public interest.
• Requires delegation of power from Congress
Emergency construed
• 1. Economic
• 2. Natural Disaster
• 3. National Security
• It may include economic crisis, epidemic, typhoon, flood or other

similar catastrophe of nationwide proportions
Pardoning Power
• Except in cases of impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves, commutations, and
pardons, and remit fines and forfeitures, after conviction by final
judgment.
• He shall also have the power to grant amnesty with the concurrence
of all the Members of the Congress. (Section 19, 1987 Constitution)
• The 1987 Constitution specifically Section 19 of Article VII and Section
5 of Article IX-C, provides that the President of the Philippines
possesses the power to grant pardons, along with other acts of
executive clemency.
• It is apparent that the only instances in which the President may not
extend pardon remain to be: (1) impeachment cases; (2) cases that
have not yet resulted in a final conviction; and (3) cases involving
violations of election laws, rules and regulations in which there was
no favorable recommendation coming from the COMELEC. Therefore,
it can be argued that any act of Congress by way of statute cannot
operate to delimit the pardoning power of the President.
• It is unmistakably the long-standing position of this Court that the exercise
of the pardoning power is discretionary in the President and may not be
interfered with by Congress or the Court, except only when it exceeds the
limits provided for by the Constitution.
• This doctrine of non-diminution or non-impairment of the President‟s
power of pardon by acts of Congress, specifically through legislation, was
strongly adhered to by an overwhelming majority of the framers of the
1987 Constitution when they finally rejected a proposal to carve out an
exception from the pardoning power of the President in the form of
“offenses involving graft and corruption” that would be enumerated and
defined by Congress through the enactment of a law. (Atty. Alicia Risos-
Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En Banc [Leonardo-
De Castro])
PARDON AMNESTY
Infraction of laws of the state or ordinary Addressed to political offenses

offfenses
Granted to Individuals Granted to a class or classes of persons
Must be accepted Need not be accepted
No need for concurrence of Congress Requires the concurrence of Congress
Looks backward and relieves pardonee Looks forward

of the consequences of the offenses
Diplomatic and Treaty Making power
• No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the
Senate. (Section 21, Article VII, 1987 Constitution)
• After the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning
Military Bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by
the Senate and, when the Congress so requires, ratified by a majority
of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting State.
(Section 25, Article XVIII, 1987 Constitution)
• The President also carries the mandate of being the sole organ in the
conduct of foreign relations. Since every state has the capacity to interact
with and engage in relations with other sovereign states, it is but logical
that every state must vest in an agent the authority to represent its
interests to those other sovereign states.
• Xxx
• The role of the President in foreign affairs is qualified by the Constitution in
that the Chief Executive must give paramount importance to the
sovereignty of the nation, the integrity of its territory, its interest, and the
right of the sovereign Filipino people to self-determination. X x x(Rene A.V.
Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No.
212426, Jan. 12, 2016, En Banc [Sereno, CJ])
Power to ratify treaty
• In our jurisdiction, the power to ratify is vested in the President and
not, as commonly believed, in the legislature. The role of the Senate
is limited only to giving or withholding its consent, or concurrence, to
the ratification. (BAYAN [Bagong Alyansang Makabayan] v. Executive
Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc
[Buena])
General Rule
• Section 21, Article VII deals with treaties or international agreements
in general, in which case, the concurrence of at least two-thirds (2/3)
of all the Members of the Senate is required to make the subject
treaty, or international agreement, valid and binding on the part of
the Philippines.
• This provision lays down the general rule on treaties or international
agreements and applies to any form of treaty with a wide variety of
subject matter, such as, but not limited to, extradition or tax treaties
or those economic in nature. All treaties or international agreements
entered into by the Philippines, regardless of subject matter,
coverage, or particular designation or appellation, requires the
concurrence of the Senate to be valid and effective.
Special Rule
• In contrast, Section 25, Article XVIII is a special provision that applies to
treaties which involve the presence of foreign military bases, troops or
facilities in the Philippines.
• Under this provision, the concurrence of the Senate is only one of the
requisites to render compliance with the constitutional requirements and
to consider the agreement binding on the Philippines.
• Section 25, Article XVIII further requires that “foreign military bases,
troops, or facilities” may be allowed in the Philippines only by virtue of a
treaty duly concurred in by the Senate, ratified by a majority of the votes
cast in a national referendum held for that purpose if so required by
Congress, and recognized as such by the other contracting State.
• It is a finely-imbedded principle in statutory construction that a
special provision or law prevails over a general one. Lex specialis
derogat generali. (BAYAN [Bagong Alyansang Makabayan] v. Executive
Secretary Ronaldo Zamora, G.R. No. 138570 and Companion Cases,
Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc [Buena])
EDCA
• Despite the President‟s roles as defender of the State and sole authority in
foreign relations, the 1987 Constitution expressly limits his ability in
instances when it involves the entry of foreign military bases, troops or
facilities. The initial limitation is found in Section 21 of the provisions on
the Executive Department x x x. The specific limitation is given by Section
25 of the Transitory Provisions x x x.
• It is quite plain that the Transitory Provisions of the 1987 Constitution
intended to add to the basic requirements of a treaty under Section 21 of
Article VII. This means that both provisions must be read as additional
limitations to the President‟s overarching executive functions in matters of
defense and foreign relations. (Rene A.V. Saguisag, et al. v. Executive
Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 2016, En Banc
[Sereno, CJ])
Power to enter into Executive Agreements
• As the sole organ of our foreign relations, and the constitutionally
assigned chief architect of our foreign policy, the President is vested
with the exclusive power to conduct and manage the country‟s
interface with other states and governments. Being the principal
representative of the Philippines, the Chief Executive speaks and
listens for the nation; initiates, maintains, and develops diplomatic
relations with other states and governments; negotiates and enters
into international agreements; promotes trade, investments, tourism
and other economic relations; and settles international disputes with
other states.
• As previously discussed, this constitutional mandate emanates from
the inherent power of the President to enter into agreements with
other stats, including the prerogative to conclude binding executive
agreements that do not require further Senate concurrence. The
existence of this presidential power is so well-entrenched that Section
5(2)(a), Article VIII of the Constitution, even provides for a check on
its exercise
Defined
• In Commissioner of Customs v. Eastern Sea Trading (113 Phil. 333
[1961]) executive agreements are defined as “international
agreements embodying adjustments of detail carrying out well-
established national polices and traditions and those involving
arrangements of a more or less temporary nature.” In Bayan Muna v.
Romulo, this Court further clarified that executive agreements can
cover a wide array of subjects that have various scopes and purposes.
They are no longer limited to the traditional subjects that are usually
covered by executive agreements as identified in Eastern Sea Trading.
• One of the distinguishing features of executive agreements is that
their validity and effectivity are not affected by a lack of Senate
concurrence. This distinctive feature was recognized as early as in
Eastern Sea Trading (1961) x x x (Rene A.V. Saguisag, et al. v. Executive
Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 2016, En
Banc [Sereno, CJ])
Binding Effect of Executive Agreements
• In international law, there is no difference between treaties and
executive agreements in their binding effect upon states concerned,
as long as the functionaries have remained within their powers.
International law continues to make no distinction between treaties
and executive agreements: they are equally binding obligations upon
nations. (BAYAN [Bagong Alyansang Makabayan] v. Executive
Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc
[Buena])
Powers relative to Appropriation
• The President shall submit to the Congress within thirty days from the
opening of every regular session, as the basis of the general
appropriations bill, a budget of expenditures and sources of financing,
including receipts from existing and proposed revenue measures.
(Sec. 22, Art. VII, 1987 Constitution)
• The Congress may not increase the appropriations recommended by
the President for the operation of the Government as specified in the
budget. The form, content, and manner of preparation of the budget
shall be prescribed by law. (Sec. 25[1], Art. VI, 1987 Constitution)
JUDICIAL DEPARTMENT
• The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
• Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
(Section 1, Article VIII, 1987 Constitution)
• The Constitution states that judicial power includes the duty of the
courts of justice not only “to settle actual controversies involving
rights which are legally demandable and enforceable” but also “to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government.” It has thereby expanded the
concept of judicial power, which up to then was confined to its
traditional ambit of settling actual controversies involving rights that
were legally demandable and enforceable.
JUDICIAL POWER and POLITICAL QUESTION
• n Tanada v. Cuenco, we held that political questions refer “to those
questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure.”
(Vinuya, et al. v. The Honorable Executive Secretary Alberto G.
Romulo, et al., G.R. No. 162230, April 28. 2010, En Banc [Del Castillo])
MARCOS BURIAL CASE
• In sum, there is no clear constitutional or legal basis to hold that there was
a grave abuse of discretion amounting to lack or excess of jurisdiction
which would justify the Court to interpose its authority to check and
override an act entrusted to the judgment of another branch. Truly, the
President‟s discretion is not totally unfettered. X x x. At bar, President
Duterte x x x acted within the bounds of the law and jurisprudence,
Notwithstanding the call of human rights advocate, the Court must uphold
what is legal and just. And that is not to deny Marcos of his rightful place at
the LNMB. For even the Framers of our Constitution intend that full respect
for human rights is available at any stage of a person‟s development, from
the time he or she becomes a person to the time he or she leaves this
earth.
Marcos Burial Case
• There are certain things that are better left for history – not this Court
– to adjudge. The Court could only do so much in accordance with
clearly established rules and principles. Beyond that, it is ultimately
for the people themselves, as the sovereign, to decide, a task that
may require the better perspective that the passage of time provides.
• Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al.,
G.R. No. 225973, November 8, 2016, En Banc (Peralta)
COMFORT WOMEN
• The SC may not compel the President to take up the cause of the
petitioners (comfort women during World War II) against Japan. That will
violate the doctrine of separation of powers for that is a political question –
a question in regard to which full discretionary authority has been
delegated by the Constitution to the President as the chief architect of our
foreign policy and as the spokesman of the nation in matters of foreign
relations. The most that the SC may do is to exhort her, to urge her to take
up petitioners cause – but not to compel her.
• In matters of foreign policy, the Executive and the Judiciary must speak
with just one voice to avoid serious embarrassments and strained relations
with foreign countries. (Vinuya, et. al. v. The Honorable Executive Secretary
Alberto G. Romulo, et. al., G.R. No. 162230, April 28. 2010, En Banc (Del
Castillo)
Requisites to exercise judicial review
• The prevailing rule in constitutional litigation is that no question
involving the constitutionality or validity of a law or governmental act
may be heard and decided by the Court unless there is compliance
with the legal requisites for judicial inquiry, namely: (a) there must be
an actual case or controversy calling for the exercise of judicial power;
(b) the person challenging the act must have the standing to question
the validity of the subject act or issuance; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d)
the issue of constitutionality must be the very lis mota of the case. Of
these requisites, case law states that the first two are the most
important. (Belgica, et al. v. Exec. Sec. Paquito N. Ochoa, et al., G.R.
No. 208566, 710 SCRA 1, 89, Nov. 19, 2013, En Banc [Perlas-Bernabe])
• It is well-settled that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by
the Court unless the following requisites for judicial inquiry are
present: (a) there must be an actual case of controversy calling for the
exercise of judicial power; (b) the person challenging the act must
have the standing to question the validity of the subject or issuance;
(c) the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the very lis
mota of the case. In this case, the absence of the first two, which are
the most essential, renders the discussion of the last two superfluous.
(Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et
al., G.R. No. 225973, November 8, 2016, En Banc [Peralta])
Actual Case or Controversy
• An “actual case or controversy” is one which involves a conflict of
legal rights, an assertion of opposite legal claims, susceptible of
judicial resolution as distinguished from a hypothetical or abstract
difference or dispute. There must be contrariety of legal rights that
can be interpreted and enforced on the basis of existing law or
jurisprudence. Related to the requisite of an actual case or
controversy is the requisite of “ripeness,” which means that
something hadbeen accomplished or performed by either branch
before a court may come into the picture, and the petitioner must
allege the existence of an immediate or threatened injury to itself as a
result of the challenged action.
• Moreover, the limitation on the power of judicial review to actual
cases and controversies carries the assurance that the courts will not
intrude into areas committed to the other branches of the
government. Those areas pertain to questions which, under the
Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. As
they are concerned with questions of policy and issues dependent
upon the wisdom, not legality of a particular measure, political
questions used to be beyond the ambit of judicial review.
• An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion. (Republic
Telecommunications Holding, Inc. v. Santiago, 556 Phil. 83, 91-92 [2001]) The rule
is that courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must be justiciable –
definite and concrete, touching on the legal relations of parties having adverse
legal interests. In other words, the pleadings must show an active antagonistic
assertion of a legal right, on the one hand, and a denial thereof, on the other;
that is, it must concern a real, tangible and not merely a theoretical question or
issue. There ought to be an actual and substantial controversy admitting of
specific relief through a decree conclusive in nature, as distinguished from an
opinion advising what the law would be upon a hypothetical state of facts.
(Information Technology Foundation of the Philippines v. Commission on
Elections, 499 Phil. 281, 304-305 [2005])
• However, the scope of the political question doctrine has been limited
by Section 1 of Article VIII of the 1987 Constitution when it vested in
the judiciary the power to determine whether or not there has been
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
(Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et
al., G.R. No. 225973, November 8, 2016, En Banc [Peralta])
Ripeness of Actual Case
• Corollary to the requirement of an actual case or controversy is the
requirement of ripeness (Lawyers against Monopoly and Poverty [LAMP] v.
The Secretary of Budget and Management, GR No. 164987, April 24, 2012,
670 SCRA 373, 383). A question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it.
For a case to be considered ripe for adjudication, it is a prerequisite that
something has then been accomplished or performed by either branch
before a court may come into the picture, and the petitioner must allege
the existence of an immediate or threatened injury to himself as a result of
the challenged action. He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of the act
complained of (The Province of North Cotabato v. The Government of the
Republic of the Philippines, 589 Phil. 387, 481 [2008]). (James M. Imbong,
et al. v. Hon. Paquito N. Ochoa, Jr., et al., GR No. 204819, April 8, 2014,
Moot and Academic
• An action is considered “moot” when it no longer presents a justiciable
controversy because the issued involved have become academic or dead,
or when the matter in dispute has already been resolved and hence, one is
not entitled to judicial intervention unless the issue is likely to be raised
again between the parties (Santiago v. Court of Appeals, 348 Phil. 792, 800
[1998]). Time and again, courts have refrained from even expressing an
opinion in a case where the issues have become moot and academic, there
being no more justiciable controversy to speak of, so that a determination
thereof would be of no practical use or value (Barbieto v. Court of Appeals,
GR No. 184646, October 30, 2009, 604 SCRA 825, 840). (International
Service for the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace
Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015, En
Banc [Villarama])
Exceptions to Moot and Academic
• Even on the assumption of mootness, jurisprudence dictates that
“the „moot and academic‟ principle is not a magical formula that can
automatically dissuade the Court in resolving a case.” The Court will
decide cases, otherwise moot, if first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and
the paramount public interest is involved; third, when the
constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and fourth, the
case is capable of repetition yet evading review. (Belgica, et al. v. Exec.
Sec. Paquito N. Ochoa, et al., G.R. No. 208566, 710 SCRA 1, 93, Nov.
19, 2013, En Banc [Perlas-Bernabe])
Legal Standing
• Defined as a right of appearance in a court of justice on a given
question, locus standi requires that a party alleges such personal
stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which
the court depends for illumination of difficult constitutional
questions. Unless a person has sustained or is in imminent danger of
sustaining an injury as a result of an act complained of, such party has
no standing. (Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C.
Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc
[Peralta])
• Locus standi is “a right of appearance in a court of justice on a given question (Bayan
Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244, 254, citing David v.
Macapagal-Arroyo, 522 Phil. 705, 755 [2006]).
• Specifically, it is “a party‟s personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result” of the act being challenged, and “calls
for more than just a generalized grievance.” (Id., citing Jumamil v. Café, 507 Phil. 455,
465 [2005], citing Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 632-633
[2000]) However, the rule on standing is a procedural matter which this Court has
relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers and legislators when
the public interest so requires, such as when the subject matter of the controversy is of
transcendental importance, of overreaching significance to society, or of paramount
public interest. (Biraogo v. Philippine Truth Commission of 2010, G.R. Nos. 192935 &
193036, December 7, 2010, 637 SCRA 78, 151 citing Social Justice Society [SJS] v.
Dangerous Drugs Board, et al., 591 Phil. 393404 [2008]; Tatad v. Secretary of the
Department of Energy, 346 Phil. 321 [1997] and De Guia v. COMELEC, G.R. No. 104712,
May 6, 1992, 208 SCRA 420, 422.)
Standard on Interest
• Lawyers against Monopoly and Poverty vs. Secretary of
Budget and Management, et al., G.R. No. 164987, April 24,
2012
In the determination of the degree of interest essential to
give the requisite standing to attack the constitutionality of a
statute, the general rule is that not only persons individually
affected, but also taxpayers have sufficient interest in
preventing the illegal expenditures of moneys raised by
taxation and may therefore question the constitutionality of
statutes requiring expenditure of public moneys.
Mammals Case
• had been suggested by animal rights advocates and environmentalists that
not only natural and juridical persons should be given legal standing
because of the difficulty for persons, who cannot show that they by
themselves are real parties-in-interests, to bring actions in representation
of these animals or inanimate objects. For this reason, many environmental
cases have been dismissed for failure of the petitioner to show that he/she
would be directly injured or affected by the outcome of the case.
• However, in our jurisdiction, locus standi in environmental cases has been
given a more liberalized approach. While developments in Philippine
legal theory and jurisprudence have not progressed as far as Justice
Douglas's paradigm of legal standing for inanimate objects, the current
trend moves towards simplification of procedures and facilitating court
access in environmental cases.
Guidelines on Non-Traditional Parties
• ) For taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
• 2) For voters, there must be a showing of obvious interest in the
validity of the election law in question;
• 3) For concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must be
settled early; and
• 4) For legislators, there must be a claim that the official action
complained of infringes their prerogatives as legislators.
FACIAL CHALLENGE
• James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., (GR No.
204819, April 8, 2014, En Banc [Mendoza])
• In United States (US) constitutional law, a facial challenge, also known as a
First Amendment Challenge, is on that is launched to assail the validity of
statutes concerning not only protected speech, but also all other rights in
the First Amendment (See United States v. Salerno, 481 U.S. 739 [1987]).
These include religious freedom, freedom of the press, and the right of the
people to peaceably assemble, and to petition the Government for a
redress of grievances. After all, the fundamental right to religious freedom,
freedom of the press and peaceful assembly are but component rights of
the right to one‟s freedom of expression, as they are modes which one‟s
thoughts are externalized.
• In this jurisdiction, the application of doctrines originating from the U.S. has been
generally maintained, albeit with some modifications. While this Court has
withheld the application of facial challenges to strictly penal statutes (Romualdez
v. Commission on Elections, 576 Phil. 357 [2008]; Romualdez v. Sandiganbayan,
479 Phil. 265 [2004]; Estrada v. Sandiganbayan, 421 Phil. 290 [2001]),
• It has expanded its scope to cover statutes not only regulating free speech, but
also those involving religious freedom, and other fundamental rights (Resolution,
Romualdez v. Commission on Elections, 594 Phil. 305, 316 [2008]). The underlying
reason for this modification is simple. For unlike its counterpart in the U.S., this
Court, under its expanded jurisdiction, is mandated by the Fundamental Law not
only to settle actual controversies involving rights which are legally demandable
and enforceable, but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. Verily, the framers of Our
Constitution envisioned a proactive Judiciary, ever vigilant with its duty to
maintain the supremacy of the Constitution.
• In the determination of the degree of interest essential to give the
requisite standing to attack the constitutionality of a statute, the
general rule is that not only persons individually affected, but also
taxpayers have sufficient interest in preventing the illegal
expenditures of moneys raised by taxation and may therefore
question the constitutionality of statutes requiring expenditure of
public moneys
VOID FOR VAGUENESS AND OVERBREADTH
• Southern Hemisphere Engagement Network, Inc., et al. v. Anti-Terrorism Council,
et al. (G.R. Nos. 178552, 178581, 178890, 179157, & 179461, 5 October 2010, En
Banc (Carpio- Morales)
• In addition, a statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must necessarily
guess at its meaning and differ as to its application.
• The overbreadth doctrine, meanwhile, decrees that a governmental purpose to
control or prevent activities constitutionally subject to state regulations may not
be achieved by means which sweep unnecessarily broadly and thereby invade
the area of protected freedoms. Distinguished from an as-applied challenge
which considers only extant facts affecting real litigants, a facial invalidation is an
examination of the entire law, pinpointing its flaws and defects, not only on the
basis of its actual operation to the parties, but also on the assumption or
prediction that its very existence may cause others not before the court to refrain
from constitutionally protected speech or activities.
• The most distinctive feature of the overbreadth technique is that it marks an
exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or
her. Moreover, challengers to a law are not permitted to raise the rights of third
parties and can only assert their own interests.
• In overbreadth analysis, those rules give way; challenges are permitted to raise
the rights of third parties; and the court invalidates the entire statute “on its
fact,” not merely “as applied for” so that the overbreadth law becomes
unenforceable until a properly authorized court construes it more narrowly. The
factor that motivates courts to depart from the normal adjudicatory rules is the
concern with the “chilling” deterrent effect of the overbreadth statute on third
parties not courageous enough to bring suit. The Court assumes that an
overbreadth law‟s “very existence may cause others not before the court to
refrain from constitutionally protected speech or expression.” An overbreadth
ruling is designed to remove that deterrent effect on the speech of those third
parties.
• The rule established in our jurisdiction is, only statutes on free
speech, religious freedom, and other fundamental rights may be
facially challenged. Under no case may ordinary penal statutes be
subjected to a facial challenge. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of
free speech.
RULE MAKING POWER
• ARTICLE VIII, SECTION 5(5) Promulgate rules concerning the
protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of
law, the integrated bar, and legal assistance to the under-privileged.
Such rules shall provide a simplified and inexpensive procedure for
the speedy disposition of cases, shall be uniform for all courts of the
same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies
shall remain effective unless disapproved by the Supreme Court.
• The 1987 Constitution took away the power of Congress to repeal, alter or
supplement rules concerning pleading, practice, and procedure; and that the
power to promulgate these rules is no longer shared by the Court with Congress
and the Executive, thus:
• Since the payment of legal fees is a vital component of the rules promulgated by
this Court concerning pleading, practice and procedure, it cannot be validly
annulled, changed or modified by Congress. As one of the safeguards of this
Courts institutional independence, the power to promulgate rules of pleading,
practice and procedure is now the Courts exclusive domain. That power is no
longer shared by this Court with Congress, much less the Executive. (In re:
Exemption of the National Power Corporation, A.M. no.05-10-2010 SC, March 10,
2010;reiterated in the case of In re: Exemption of Perpetual Health Cooperative
[2012])
CITIZENSHIP
• Value
• Citizenship is not a matter of convenience. It is a badge of identity

that comes with attendant civil and political rights accorded by the
State to its citizens. It likewise demands the concomitant duty to
maintain allegiance to one‟s flag and country. (Casan Macode
Maquiling v. COMELEC, et al., G.R. No. 195649, April 16, 2013, En
Banc [Sereno, CJ])
Adherence to Jus Sanquinis
• The Philippine law on citizenship adheres to the principle of jus
sanguinis. Thereunder, a child follows the nationality or citizenship of
the parents regardless of the place of his/her birth, as opposed to the
doctrine of jus soli which determines nationality or citizenship on the
basis of place of birth. (Valles v. COMELEC, 337 SCRA 543, Aug. 9,
2000, En Banc [Purisima])
Acquiring Citizenship
• There are two ways of acquiring citizenship: (1) by birth, and (2) by
naturalization. These ways of acquiring citizenship correspond to the two
kinds of citizens: the natural-born citizen, and the naturalized citizen. A
person who at the time of his birth is a citizen of a particular country, is a
natural-born citizen thereof.
• As defined in the Constitution, natural-born citizens “are those citizens of
the Philippines from birth without having to perform any act to acquire or
perfect his Philippine citizenship.”
• On the other hand, naturalized citizens are those who have become Filipino
citizens through naturalization, generally under Commonwealth Act No.
473, otherwise known as the Revised Naturalization Law, which repealed
the former Naturalization Law (Act No. 2927), and by Republic Act No. 530.
(Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc
[Kapunan])
Natural Born Citizens
• Natural-born citizens are those who are citizens of the Philippines
from birth without having to perform any act to acquire or perfect
their Philippine citizenship. Those who elect Philippine citizenship in
accordance with paragraph (3), Section 1 hereof shall be deemed
natural-born citizens. (Section 2, Article IV, 1987 Constitution)
• In general, there are only two (2) kinds of Filipino citizens, i.e.,
natural-born and naturalized. There is no third category. If one did not
have to undergo the cumbersome process of naturalization, it means
that he is natural-born. (Antonio Bengson III v. HRET, G.R. No. 142840,
May 7, 2001, En Banc [Kapunan])
Foundling as a Citizen
• To deny full Filipino citizenship to all foundlings and render them
stateless just because there may be a theoretical chance that one
among the thousands of these foundlings might be the child of not
just one, but two, foreigners is downright discriminatory, irrational,
and unjust. It just doesn‟t make any sense.
• Given the statistical certainty 99.9% - that any child born in the
Philippines would be a natural-born citizen, a decision denying
foundlings such status is effectively a denial of their birthright. There
is no reason why this Honorable Court should use an improbable
hypothetical to sacrifice the fundamental political rights of an entire
class of human beings.
• As a matter of fact, foundlings are as a class, natural-born citizens.
While the 1935 Constitution‟s enumeration is silent as to foundlings,
there is no restrictive language which would definitely exclude
foundlings either
• Domestic laws on adoption also support the principle that foundlings
are Filipinos. These laws do not provide that adoption confers
citizenship upon the adoptee. Rather, the adoptee must be a Filipino
in the first place to be adopted. X x x
• Foundlings are likewise citizens under international law. Under the
1987 Constitution, an international law can become part of the
sphere of domestic law either by transformation or incorporation
• The common thread of the UDHR (Universal Declaration of Human
Rights), UNCRC (UN Convention on the Rights of the Child) and ICCPR
(International Covenant on Civil and Political Rights) is to obligate the
Philippines to grant nationality from birth and ensure that no child is
stateless.
• This grant of nationality must be at the time of birth, and it cannot be
accomplished by the application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of
which require the applicant to be at least eighteen (18) years old .
(Mary Grace Natividad S. Poe-Llamanzares v. COMELEC, G R. No.
221697, March 8, 2016, En Banc [Perez])
Loss or Reacquisition of Citizenship
• Philippine citizenship may be lost or reacquired in the manner
provided by law (Section 3, Article IV, 1987 Constitution)
• There are three (3) ways by which Philippine citizenship may be
reacquired, namely: (1) by naturalization; (2) by repatriation; and (3)
by direct act of Congress.
Effect of Marriage
• Citizens of the Philippines who marry aliens shall retain their
citizenship, unless by their act or omission they are deemed, under
the law, to have renounced it. (Section 4, Article IV, 1987
Constitution)
Dual Citizenship vs. Dual Allegiance
• Dual allegiance of citizens is inimical to the national interest and shall
be dealt with by law. (Section 5, Article IV, 1987 Constitution)
• This provision is not self-executing. The word employed by Section 5

is “shall.” The law referred to is a future law.
Dual Allegiance vs. Citizenship
• Dual citizenship arises when, as a result of the concurrent application
of the different laws of two or more states, a person is simultaneously
considered a national by the said states. For instance, such a situation
may arise when a person whose parents are citizens of a state which
adheres to the principle of jus sanguinis is born in a state which
follows the doctrine of jus soli. Such a person, ipso facto and without
any voluntary act on his part, is concurrently considered a citizen of
both states.
• Dual allegiance, on the other hand, refers to a situation in which a
person simultaneously owes, by some positive act, loyalty to two or
more states. While dual citizenship is involuntary, dual allegiance is
the result of an individual‟s volition. (Mercado v. Manzano, 307 SCRA
630, May 26, 1999, En Banc [Mendoza])
Are persons with mere dual citizenship disqualified to run for elective
local positions under Section 40(d) of the Local Government Code?
• The phrase “dual citizenship” in R.A. No. 7160, Section 40(d) (Local
Government Code) must be understood as referring to “dual
allegiance.” Consequently, persons with mere dual citizenship do not
fall under this disqualification. Unlike those with dual allegiance, who
must be subject to strict process with respect to the termination of
their status, for candidates with dual citizenship, it should suffice if,
upon the filing of their certificate of candidacy, they elect Philippine
citizenship to terminate their status as persons with dual citizenship
considering that their condition is the unavoidable consequence of
conflicting laws of different states.
• By electing Philippine citizenship, such candidates at the same time
forswear allegiance to the other country of which they are also
citizens and thereby terminate their status as dual citizens. It may be
that, from the point of view of the foreign state and of its laws, such
an individual has not effectively renounced his foreign citizenship.
That is of no moment. (Mercado v. Manzano, G.R. No. 135083, 307
SCRA 630, May 26, 1999 [Mendoza])
Instances when a citizen of the Philippines may possess dual citizenship
considering the citizenship clause (Article IV) of the Constitution.
• 1) Those born of Filipino fathers and/or mothers in foreign countries
which follow the principle of jus soli;
• 2) Those born in the Philippines of Filipino mothers and alien fathers
if by the laws of their father‟s country such children are citizens of
that country;
• 3) Those who marry aliens if by the laws of the latter‟s country the
former are considered citizens, unless by their act or omission they
are deemed to have renounced Philippine citizenship. (Mercado v.
Manzano, G.R. No. 135083, 307 SCRA 630, May 26, 1999 [Mendoza])
Dual Citizenship Law (RA 9225)
• The law applies to: (1) former natural-born citizens of the Philippines
who have already become citizens of a foreign country through
naturalization; and (2) natural-born citizens of the Philippines who
may wish to become a citizen of a foreign country through
naturalization after the effectivity of this Act.
• In both cases, they are given the opportunity to either reacquire
(reacquisition) or retain (retention) their Philippine citizenship. Thus,
in effect, they will possess dual citizenship.
• Casan Macode Maquiling v. COMELEC, et al., G.R. No. 195649, April
16, 2013, En Banc (Sereno, CJ)
• FACTS: When after renouncing his American citizenship upon his filing
of certificate of candidacy for mayor, it was established that he
travelled several times to the US using his American passport, that
was an effective recantation of his renunciation of his foreign
citizenship. Thus, he reverted to his prior status as a person having
dual citizenship and, therefore, disqualified to run for mayor pursuant
to Sec. 40 (d) of the Local Government Code (R.A. No. 7061).
• Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003
provides:
• Those who retain or re-acquire Philippine citizenship under this Act shall
Enjoy full civil and political rights and be subject to all attendant liabilities
and responsibilities under existing laws of the Philippines and the following
conditions: xxxx
• (2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution
and existing laws and, at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath.
• We agree with the pronouncement of the COMELEC
First Division that “Arnado‟s act of continuously using
his US passport effectively negated his Affidavit of
Renunciation.” This does not mean that he failed to
comply with the twin requirements under R.A. No.
9225, for he in fact did. It was after complying with
the requirements that he performed positive acts
which effectively disqualified him from running for an
elective public office pursuant to Section 40(d) of the
Local Government Code of 1991.
• Besides, Arnado‟s subsequent use of his Philippine passport does not
correct the fact that after he renounced his foreign citizenship and prior to
filing his certificate of candidacy, he used his US passport. In the same way
that the use of his foreign passport does not undo his Oath of
Renunciation, his subsequent use of his Philippine passport does not undo
his earlier use of his US passport.
• We therefore hold that Arnado, by using his US passport after renouncing

his American citizenship, has recanted the same Oath of Renunciation he
took. Section 40(d) of the Local Government Code applies to his situation.
He is disqualified not only from holding the public office but even from
becoming a candidate in the May 2011 elections.
Naturalization
• Naturalization signifies the act of formally adopting a foreigner into
the political body of a nation by clothing him or her with the
privileges of a citizen. (Edison So v. Republic of the Philippines, G.R.
No. 170603, January 29, 2007, 3rd Div., [Callejo, Sr.])
Ways to become a PH citizen
• Under current and existing laws, there are three ways by which an
alien may become a citizen by naturalization:
• (a) administrative naturalization pursuant to R.A. No. 9139;
• (b) judicial naturalization pursuant to C.A. No. 473, as amended; and
• (c) legislative naturalization in the form of a law enacted by Congress
bestowing Philippine citizenship to an alien. (Edison So v. Republic of
the Philippines, G.R. No. 170603, January 29, 2007, 3rd Div., [Callejo,
Sr.])
• R.A. No. 9139 may be availed of only by native-born aliens who lived here
in the Philippines all their lives, who never saw any other country and all
along thought that they were Filipinos; who have demonstrated love and
loyalty to the Philippines and affinity to the customs and traditions of the
Filipino people.
• To reiterate, the intention of the legislature in enacting R.A. No. 9139 was
to make the process of acquiring Philippine citizenship less tedious, less
technical and more encouraging which is administrative rather than judicial
in nature. What the legislature had in mind was merely to prescribe
another mode of acquiring Philippine citizenship which may be availed of
by native born aliens. The only implication is that, a native born alien has
the choice to apply for judicial or administrative naturalization, subject to
the prescribed qualifications and disqualifications. (Edison So v. Republic of
the Philippines, G.R. No. 170603, January 29, 2007, 3rd Div., [Callejo, Sr.]
Constitutional Commissions
• Legal Framework : Article IX- A, 1987 Constitution
• Civil Service Commission
• Commission on Audit
• Commission on Elections
• Declared as “independent by the constitution”
Inhibitions
• 1. Cannot hold any other office or employment
• 2. Cannot engage in the practice of any profession
• 3. Cannot take part in the active management or control of any
business which are affected by the functions of their office
• 4. Shall not be financially interested directly or indirectly, in any
contract with, or in any franchise or privilege granted by the
Government, any of its subdivisions, agencies or instrumentalities
including GOCCs.
Evidence of Independence Principle
• 1. Salaries of their Commissioners are fixed by law and shall not be
decreased during their tenure (section 3, Article IX-A)
• 2. Enjoy Fiscal Autonomy (section 5)
• 3. Commissioners can be removed by impeachment only (Art. XI,
section 2)
• 4. President cannot designate an Acting Chairman, like the Chairman
of the Comelec (Brillantes vs. Yorac [1990])
Fiscal Autonomy
• The agencies which the Constitution has vested with fiscal autonomy
should be given priority in the release of their approved
appropriations against all other agencies not similarly vested when
there is a revenue shortfall. (CSC vs. DBM [2005])
• Mandamus may be availed of to enforce fiscal autonomy.

Promotional Appointment
• There is nothing in section 1 [2], Article IX-D that explicitly precludes a
promotional appointment from Commissioner to Chairman, provided
it is made under the condition – as long as the commissioner has not
served a full term of 7 years, and that the appointment to any
vacancy shall be only for the unexpired portion of the term of the
predecessor. In addition, the aggregate service of the Commissioner
in said position and the term to which he shall be appointed to the
position of Chairman must not exceed 7 years so as not to disrupt the
rotational system in the Commission.
Civil Service Commission
• The civil service embraces all branches, subdivisions, intrumentalities,
and agencies of the Government including Government Owned and
Controlled Corporations with original charters.
• Appointments in the civil service shall be made only according to

merit and fitness to be determined as far as practicable, by
competitive examination. (section 2[2], Article IX-B)
• Exempt from competitive examination – Positions which are policy

determining, primarily confidential and highly technical.
Limitations/Restrictions
• An officer or employee of the civil service may be removed or
suspended only for cause provided by law. (section 2 [3], Article IX-B)
• No officer or employee in the civil service shall engage directly or

indirectly in any electioneering or partisan political campaign. (section
2 [4], Article IX-B)
• Not allowed to engaged in strike, but entitled to right to self-

organization
Limitations/Restrictions
• No candidate who has lost in any election shall, within one year after such election be
appointed to any office in the Government, or in any GOCC, or any of its subsidiaries.
(Article IX-B, section 6)
• No elective official shall be eligible for appointment or designation in any capacity to any
public office or position during his tenure. (section 7, Article IX-B)
• No elective or appointive officer or employee shall receive additional, double or indirect

compensation unless specifically authorized by law. (section 8, Article IX-B)
• No elective or appointive public officer or employee shall accept without the consent of
the Congress, any present, emolument or title of any kind from any foreign government.
(section 8, Article IX-B)
What is the only act that a civil service employee
may do which is not partisan political activity?
• Vote
• Section 79 (B) of the Omnibus Election Code – any act that is

designed to elect or promote the election of a candidate is an
electioneering or partisan political activity.
The BILL OF RIGHTS
• Contextual Framework before details
• Principles
• Discussion of Rights
• Relation to International Law

Context
• Constitutional Law is the study of the fundamental powers of the
State, namely, the police power, the power of eminent domain and
the power of taxation, and the liberties or rights enshrined in the Bill
of Rights of the Constitution, as well as the proper equilibrium
between the three inherent powers of the State on the one hand and
the liberties as secured by the Bill of Rights, on the other hand. The
Bill of Rights marks the line beyond which power exceeds or rights
abused, and the judiciary which construes the law decides whether
one or the other has crossed the line, so as to maintain the proper
balance which ordered society requires. (Agpalo, 2006)
Civil Rights and Natural Rights
• “With the establishment of civil government and a constitution, there arises
a conceptual distinction between natural rights and civil rights, difficult
though to define their scope and delineation. It has been proposed that
natural rights are those rights that "appertain to man in right of his
existence." These were fundamental rights endowed by God upon human
beings, "all those rights of acting as an individual for his own comfort and
happiness, which are not injurious to the natural rights of others." On the
other hand, civil rights are those that "appertain to man in right of his
being a member of society." These rights, however, are derived from the
natural rights of individuals ….
• (CJ Puno in his dissenting opinion in Republic vs. Sandiganbayan [2003])
Classification of Rights
• Rights have been classified in various manners. One classification
made a distinction between classical and social rights. The other and
more common classification are those referred to in international law
as civil, political, economic, cultural and social rights .
• Foremost of the rights that can be found in our Constitution are
those which are collectively known as “civil and political rights”
which serves to protect the individual from excesses of the state.
These rights in our Constitution are similar to those enshrined in the
Universal Declaration of Human Rights, of which the Philippines is a
state party.
Guaranty Liberty
• These broad guaranty are classified under two headings as
enunciated before by former Chief Justice Enrique Fernando under
the broad guaranty of liberty:
1. Freedom of Belief, whether secular or religious, freedom of

expressing such beliefs, and freedom to associate with others of
like persuasion; and
2. Personal Freedom, which includes the constitutionally guaranteed
freedom of an accused against excessive state action.
Classification of Rights
• The economic, social and cultural rights are enshrined in the
International Covenant of Economic, Social and Cultural Rights which
entered into force in 1976.
• The Universal Declaration of Human Rights, the International

Covenant on Economic, Social and Cultural Rights and the
International Covenant on Civil and Political Rights and its Optional
Protocol all belong to what we refer to as the International Bill of
Human Rights.
Historical Context of the PH Bill of Rights
• Pre-Spanish
• Spanish Period
• Malolos Constitution - Title IV – The Filipinos and their National and
Individual Rights
• Commonwealth – 1935 Constitution
• The War Constitution – 1943 Constitution – Article VII – Duties and Rights
of Every Citizen
• 1973 Constitution
• The 1986 Freedom Constitution
• 1987 Constitution
Right to Liberty and Property: State’s Power to
Restrict
• Universal Declaration of Human Rights, Article 3
Everyone has the right to life, liberty and the security of person.
• Universal Declaration of Human Rights, Article 17

Everyone has the right to own property alone as well as in association with
others.
• No one shall be arbitrarily deprived of his property.
• 1987 Constitution, Article IV, Section 1.

No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws
Right to Liberty and Property under PH
• The Philippine is a state party to about 23 international human rights
instruments.
• Whilst, the rights to liberty and property are provided for by the
international law instruments, the Philippines through its national
constitution has provided for the adequate and substantial
recognition of these rights.
Juridical Concept of Liberty
• The right to Liberty guaranteed by the Constitution includes the right
to exist and the right to be free from arbitrary personal restraint or
servitude.
• Liberty includes the right of the citizens to be free to use his faculties
in all lawful ways; to live an work where he will; to earn his livelihood
by an lawful calling; to pursue any avocations, an for that purpose. to
enter into all contracts which may be proper, necessary, and essential
to his carrying out these purposes to a successful conclusion. The chief
elements of the guaranty are the right to contract, the right to choose
one's employment, the right to labor, and the right of locomotion.
• Rubi vs. Provincial Board [1919]
Restriction
• The rights to liberty and property are subject to three restrictions or
limitations – police power, eminent domain and taxation.
• These three are referred to as the great and inherent powers of

sovereignty. They constitute the totality of sovereign power.
• Agan vs. International Air Terminals, 420 SCRA 575 (2004)

Police Power of the State
• Rooted on the Latin maxims, salus populi suprema est lex (the welfare
of the people is the supreme law) and sic utere tuo ut alienum non
laedas (so use your property as not to injure the property of others),
• A similar sentiment was echoed by our own Justice Laurel in Calalang
v. Williams who defined police power as the "state authority to enact
legislation that may interfere with personal liberty or property in
order to promote the general welfare.
Police Power
• Police power, as an inherent attribute of sovereignty, is the power to
prescribe regulations to promote the health, morals, peace, education,
good order, or safety, and the general welfare of the people.
• To determine the validity of a police measure, two questions must be
asked: (1) Does the interest of the public in general, as distinguished
from those of a particular class, require the exercise of police power? and
(2) Are the means employed reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals?
(FRANCISCO I. CHAVEZ, petitioner, vs. COMMISSION ON ELECTIONS,
represented by its Chairman, BENJAMIN S. ABALOS, ESMERALDA AMORA-
LADRA, in her capacity as Acting Director IV, National Capital Judicial Region,
Commission on Elections, and the SOLICITOR GENERAL, respondents., G.R.
No. 162777. August 31, 2004)
Defined
• Police power has also been defined as the "state authority to enact legislation
that may interfere with personal liberty or property in order to promote the
general welfare." It consists of two essential elements. First, it is an imposition
of restraint upon liberty or property. Second, the power is exercised for the
benefit of the common good. Its definition in elastic terms underscores its all-
encompassing and comprehensive embrace. It is and still is the "most essential,
insistent, and illimitable" of the State's powers. It is familiar knowledge that
unlike the power of eminent domain, police power is exercised without provision
for just compensation for its paramount consideration is public welfare.
(DEMOSTHENES P. AGAN, JR., vs. PHILIPPINE INTERNATIONAL AIR TERMINALS CO.,
INC., MANILA INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS and SECRETARY LEANDRO M.
MENDOZA, in his capacity as Head of the Department of Transportation and
Communications, respondents., G.R. No. 155001. January 21, 2004.)
• Police power is essentially regulatory in nature and the power to issue
licenses or grant business permits, if exercised for a regulatory and not
revenue-raising purpose, is within the ambit of this power.
• By virtue of a valid delegation of legislative power, it may also be exercised
by the President and administrative boards, as well as the lawmaking
bodies on all municipal levels, including the barangay. Delegation of
legislative powers to the President is permitted in Sections 23(2) and 28(2)
of Article VI of the Constitution.
• ARTICLE VI, SECTION 23. (2) In times of war or other national
emergency, the Congress may, by law, authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy.
Unless sooner withdrawn by resolution of the Congress, such powers shall
cease upon the next adjournment thereof.
• ARTICLE VI, SECTION 28 (2) The Congress may, by law, authorize the
President to fix within specified limits, and subject to such limitations
and restrictions as it may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts
within the framework of the national development program of the
Government.
(CAMARINES NORTE ELECTRIC COOPERATIVE, INC. (CANORECO) vs.
HON. RUBEN D. TORRES, in his capacity as Executive Secretary; REX
TANTIONGCO; HONESTO DE JESUS; ANDRES IBASCO; TEODULO M.
MEA; and VICENTE LUKBAN, respondents., G.R. no.127249, February
27, 1998)
Requisites for valid delegation of Police Power
• Such delegation confers upon the President quasi-legislative power
which may be defined as the authority delegated by the law-making
body to the administrative body to adopt rules and regulations
intended to carry out the provisions of the law and implement
legislative policy. To be valid, an administrative issuance, such as an
executive order, must comply with the following requisites:
• (1) Its promulgation must be authorized by the legislature;
• (2) It must be promulgated in accordance with the prescribed

procedure;
• (3) It must be within the scope of the authority given by the
legislature; and
• (4) It must be reasonable.

(HON. EXECUTIVE SECRETARY,, vs. SOUTHWING HEAVY INDUSTRIES,
INC., represented by its President JOSE T. DIZON, UNITED
AUCTIONEERS, INC., represented by its President DOMINIC SYTIN, and
MICROVAN, INC., represented by its President MARIANO C. SONON,
respondents., G.R.no.164171, February 20, 2006)
• Police power is inherent in the state but not in municipal corporations
(Balacuit v. CFI of Agusan del Norte, 163 SCRA 182).
• Before a municipal corporation may exercise such power, there must be a
valid delegation of such power by the legislature which is the repository of
the inherent powers of the State. A valid delegation of police power may
arise from express delegation, or be inferred from the mere fact of the
creation of the municipal corporation; and as a general rule, municipal
corporations may exercise police powers within the fair intent and purpose
of their creation which are reasonably proper to give effect to the powers
expressly granted, and statutes conferring powers on public corporations
have been construed as empowering them to do the things essential to the
enjoyment of life and desirable for the safety of the people.
Local Government Code
• Our Congress delegated police power to the local government units in the Local
Government Code of 1991.
• This delegation is found in Section 16 of the same Code, known as the general
welfare clause, viz: "Sec. 16. General Welfare. — Every local government unit
shall exercise the powers expressly granted, those necessarily implied therefrom,
as well as powers necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the promotion of the
general welfare. Within their respective territorial jurisdictions, local government
units shall ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the right of the people
to a balanced ecology, encourage and support the development of appropriate
and self-reliant scientific and technological capabilities, improve public morals,
enhance economic prosperity and social justice, promote full employment among
their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants."
Undue delegation
• The case of Review Center Association vs. Executive Secretary is a case
in point. In this case, Executive Order no. 566 issued by President
Arroyo in 2006 which authorized the Commission on Higher
Education (CHED) to supervise the establishment and operation of all
review centers and similar entities in the Philippines was in issue. The
Review Center Association of the Philippines asserted that, the said
executive order is a usurpation of the legislative power. The CHED
however argues that the same is a valid delegation of the State’s
police power to regulate review centers, and an exercise of the
executive’s residual powers.
• G.R. No. 180046. April 2, 2009
Eminent Domain
• The power of eminent domain is the inherent right of the state (and of
those entities to which the power has been lawfully delegated) to
condemn private property to public use upon payment of just
compensation. On the other hand, police power is the power of the state
to promote public welfare by restraining and regulating the use of liberty
and property. Although both police power and the power of eminent
domain have the general welfare for their object, and recent trends show a
mingling of the two with the latter being used as an implement of the
former, there are still traditional distinctions between the two.
(G.R. No. 157882. March 30, 2006., DIDIPIO EARTH-SAVERS' MULTI-PURPOSE

ASSOCIATION, INCORPORATED (DESAMA), et.al., petitioners, vs. ELISEA
GOZUN,
Distinction between Police Power and Eminent
Domain
• Police power must be distinguished from the power of eminent
domain. In the exercise of police power, there is a restriction of
property interest to promote public welfare or interest which involves
no compensable taking.
• When the power of eminent domain, however, is exercised, property
interest is appropriated and applied to some public purpose,
necessitating compensation therefor.
Police Power and Power of Taxation
• Police power and the power of taxation are inherent powers of the State.
These powers are distinct and have different tests for validity. Police power
is the power of the State to enact legislation that may interfere with
personal liberty or property in order to promote the general welfare, while
the power of taxation is the power to levy taxes to be used for public
purpose. The main purpose of police power is the regulation of a
behavior or conduct, while taxation is revenue generation. The "lawful
subjects" and "lawful means" tests are used to determine the validity of
a law enacted under the police power. The power of taxation, on the
other hand, is circumscribed by inherent and constitutional limitations.
PLANTERS PRODUCTS, INC., petitioner, vs. FERTIPHIL CORPORATION,

respondent., G.R.no.166006, March 14, 2008
Coconut Levy
• The coconut levy funds are also deemed as an exercise of the State’s police
and taxing power. Coconut levy funds partake of the nature of taxes which,
in general, are enforced proportional contributions from persons and
properties, exacted by the State by virtue of its sovereignty for the support
of government and for all public needs. Based on this definition, a tax has
three elements, namely: a) it is an enforced proportional contribution from
persons and properties; b) it is imposed by the State by virtue of its
sovereignty; and c) it is levied for the support of the government. The
coconut levy funds fall squarely into these elements.
(REPUBLIC OF THE PHILIPPINES, represented by the PRESIDENTIAL
COMMISSION ON GOOD GOVERNMENT (PCGG), petitioner, vs. COCOFED et
al. and BALLARES et al., 1 EDUARDO M. COJUANGCO JR. and the
SANDIGANBAYAN (First Division) respondents., G.R.no.147062-64,
December 14, 2001)
Not absolute
• The rule on taxation as an implement of the State’s police power is
however not absolute. In Philippine Airlines, Inc. v. Edu, it was held
that the imposition of a vehicle registration fee is not an exercise by
the State of its police power, but of its taxation power. (G.R. No. L-
41383, August 15, 1988, 164 SCRA 32)
Cannot be diminished
• Police power cannot be diminished, let alone defeated by any contract for its
paramount consideration is public welfare and interest.
• The welfare of the people is the supreme law. Thus, no franchise or right can be
availed of to defeat the proper exercise of police power (Surigao Electric Co., Inc.
vs. Municipality of Surigao, 24 SCRA 898, Aug. 30, 1968). The State has inherent
power enabling it to prohibit all things hurtful to comfort, safety, and welfare of
society (Edu vs. Ericta, 35 SCRA 481, Oct. 24, 1970).
• (Taxicabs of Metro Manila, Inc., et al. v. Board of Transportation, et al., G.R. No. L-
59234, September 30, 1982, 202 Phil. 925; Ynot v. Intermediate Appellate Court,
G.R. No. 74457, March 20, 1987; Presidential Commission on Good Government
v. Pena, G.R. No. L-77663, April 12, 1988; WENCESLAO VINZONS TAN, petitioner-
appellant, vs. THE DIRECTOR OF FORESTRY, APOLONIO RIVERA, THE SECRETARY
OF AGRICULTURE AND NATURAL RESOURCES JOSE Y. FELICIANO, respondents-
appellees, RAVAGO COMMERCIAL CO., JORGE LAO HAPPICK and ATANACIO
MALLARI, intervenors., G.R.no. L-24548, October 27, 1983)
• No franchise or right can be availed of to defeat the proper exercise of
police power — the authority "to enact rules and regulations for the
promotion of the general welfare." So it is, that by the exercise of the
police power, which is a continuing one, "a business lawful today may
in the future, because of the changed situation, the growth of
population or other causes, become a menace to the public health
and welfare, and be required to yield to the public good.”
• Public welfare, we have said, lies at the bottom of any regulatory
measure designed "to relieve congestion of traffic, which is, to say the
least, a menace to public safety."
• A reasonable relation must exist between the purposes of the police
measure and the means employed for its accomplishment, for even
under the guise of protecting the public interest, personal rights and
those pertaining to private property will not be permitted to be
arbitrarily invaded. Lacking a concurrence of these two requisites, the
police measure shall be struck down as an arbitrary intrusion into
private rights — a violation of the due process clause.
• CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of
Manila HON. JOSELITO L. ATIENZA, in his capacity as Vice-Mayor of
the City of Manila and Presiding Officer of the City Council of Manila.
G.R. No. 118127. April 12, 2005.
• In the case of PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of
139 members, represented by its President Amado P. Macasaet and
its Executive Director Ermin F. Garcia, Jr., petitioner, vs. COMMISSION
ON ELECTIONS, respondent., the Supreme Court on the question of
compelling print media companies to donate so-called “COMELEC”
space ruled against it as an invalid exercise of police power.
(G.R. No. 119694. May 22, 1995)

Lawful Subject and Lawful Method
• The proper exercise of the police power requires the concurrence of a
lawful subject and a lawful method. The subject of the challenged
regulation is certainly within the ambit of the police power.
(DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS) and
DIRECTOR OF CENTER FOR EDUCATIONAL MEASUREMENT, petitioners,
vs. ROBERTO REY C. SAN DIEGO and JUDGE TERESITA DIZON-
CAPULONG, in her capacity as Presiding Judge of the Regional Trial
Court of Valenzuela, Metro Manila, Branch 172, respondents.,
G.R.no.89572, December 21, 1989)
Emergency Laws as Police Power
• Emergency laws are police power legislations designed to meet

certain declared emergencies. To be valid, the law must be for a
limited and definite period of time, and the period must be
reasonable in relation to the nature and duration of the crisis it seeks
to overcome or surmount.
• Ruben Agpalo, “Philippine Constitutional Law,” Rex Book Store, 2006,
p. 55
Subject to judicial inquiry
• Police power, however, is subject to judicial inquiry. It may not be
exercised arbitrarily or unreasonably and could be set aside if it is
either capricious, discriminatory, whimsical, arbitrary, unjust, or is
tantamount to a denial of due process and equal protection clauses
of the Constitution.
(Banco Filipino Savings and Mortgage Bank v. Monetary Board, Central
Bank of the Philippines, G.R. Nos. 70054, 68878, 77255-58, 78766,
78767, 78894, 81303, 81304, 90473, December 11, 1991, 204 SCRA
767, 798.)
• Where such exercise of police power may be considered as either
capricious, whimsical, unjust or unreasonable, a denial of due process
or a violation of any other applicable constitutional guaranty may call
for correction by the courts.
• ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC.,
HOTEL DEL MAR, INC. and GO CHIU, petitioners-appellees, vs. THE
HONORABLE CITY MAYOR OF MANILA, respondent-appellant, VICTOR
ALABANZA, intervenor-appellee., G.R.no. L-24693, July 31, 1967
Power of Eminent Domain
• Eminent domain is defined as "the power of the nation or a sovereign
state to take, or to authorize the taking of, private property for a public
use without the owner's consent, conditioned upon payment of just
compensation." It is acknowledged as "an inherent political right,
founded on a common necessity and interest of appropriating the
property of individual members of the community to the great
necessities of the whole community."
BARANGAY SINDALAN, SAN FERNANDO, PAMPANGA, rep. by BARANGAY

CAPTAIN ISMAEL GUTIERREZ, petitioner, vs. COURT OF APPEALS, JOSE
MATOTO III, and PATRICIA SINDAYAN, respondents., G.R.no.150640, March
22, 2007
Inseparable from sovereignty
• Eminent domain is a fundamental State power that is inseparable
from sovereignty. It is the Government's right to appropriate, in the
nature of a compulsory sale to the State, private property for public
use or purpose. However, the Government must pay the owner
thereof just compensation as consideration therefore.
THE CITY OF CEBU, petitioner, vs. SPOUSES APOLONIO and BLASA

DEDAMO, respondents. G.R. No. 142971. May 7, 2002.
The power of eminent domain is lodged in the legislative branch of the
government. It delegates the exercise thereof to local government
units, other public entities and public utility corporations, subject only
to Constitutional limitations.
LOURDES DE LA PAZ MASIKIP, petitioner, vs. THE CITY OF PASIG, HON.

MARIETTA A. LEGASPI, in her capacity as Presiding Judge of the
Regional Trial Court of Pasig City, Branch 165 and THE COURT OF
APPEALS, respondents., [G.R. No. 136349. January 23, 2006.
Not Limitless
• However, the power of eminent domain is not limitless. Any arm of
the State that exercises the delegated power of eminent domain must
wield that power with circumspection and utmost regard for
procedural requirements. A government instrumentality that fails to
observe the constitutional guarantees of just compensation and due
process abuses the authority delegated to it, and is liable to the
property owner for damages.
• THE REPUBLIC OF THE PHILIPPINES REPRESENTED BY THE NATIONAL
IRRIGATION ADMINISTRATION, petitioner, vs. THE HONORABLE
COURT OF APPEALS and FRANCISCO DIAZ, IN HIS CAPACITY AS
ADMINISTRATOR OF THE INTESTATE ESTATE OF THE LATE MANUEL
DIAZ, respondents., G.R.no.147245, March 31, 2005
Requisites
• Over the years and in a plethora of cases, this Court has recognized
the following requisites for the valid exercise of the power of eminent
domain: (1) the property taken must be private property; (2) there
must be genuine necessity to take the private property; (3) the taking
must be for public use; (4) there must be payment of just
compensation; and (5) the taking must comply with due process of
law.
• FERMIN MANAPAT, petitioner, vs. COURT OF APPEALS and NATIONAL
HOUSING AUTHORITY, respondents., G.R.no.110478, October 15,
2007
Two stages
• Expropriation proceedings consists of two stages:
• first, condemnation of the property after it is determined that its
acquisition will be for a public purpose or public use and
• second, the determination of just compensation to be paid for the
taking of private property to be made by the court with the
assistance of not more than three commissioners.
How exercised
• The power of eminent domain is exercised by the filing of a complaint
which shall join as defendants all persons owning or claiming to own,
or occupying, any part of the expropriated land or interest therein. If
a known owner is not joined as defendant, he is entitled to intervene
in the proceeding; or if he is joined but not served with process and
the proceeding is already closed before he came to know of the
condemnation, he may maintain an independent suit for damages.
The defendants in an expropriation case are not limited to the
owners of the property condemned. They include all other persons
owning, occupying or claiming to own the property.
Elements of Taking
• The Supreme Court has defined the elements of "taking" as the main
ingredient in the exercise of power of eminent domain, in the following
words: "A number of circumstances must be present in the 'taking' of
property for purposes of eminent domain: (1) the expropriator must enter
a private property; (2) the entrance into private property must be for more
than a momentary period; (3) the entry into the property should be under
warrant or color of legal authority; (4) the property must be devoted to a
public use or otherwise informally appropriated or injuriously affected; and
(5) the utilization of the property for public use must be in such a way to
oust the owner and deprive him of all beneficial enjoyment of the
property."
• NATIONAL POWER CORPORATION, petitioner, vs. COURT OF APPEALS and
MACAPANTON MANGONDATO, respondents. G.R. No. 113194. March 11,
1996.
Neither acquisition of title nor destruction
• It is a settled rule that neither acquisition of title nor total destruction of value is
essential to taking. It is usually in cases where title remains with the private
owner that inquiry should be made to determine whether the impairment of a
property is merely regulated or amounts to a compensable taking. A regulation
that deprives any person of the profitable use of his property constitutes a taking
and entitles him to compensation, unless the invasion of rights is so slight as to
permit the regulation to be justified under the police power. Similarly, a police
regulation that unreasonably restricts the right to use business property for
business purposes amounts to a taking of private property, and the owner may
recover therefor.
• THE OFFICE OF THE SOLICITOR GENERAL, petitioner, vs. AYALA LAND
INCORPORATED, ROBINSON'S LAND CORPORATION, SHANGRI-LA PLAZA
CORPORATION and SM PRIME HOLDINGS, INC., respondents., G.R.no. 177056,
September 18, 2009
Public Use
• There is no precise meaning of "public use" and the term is susceptible of
myriad meanings depending on diverse situations.
• The limited meaning attached to "public use" is "use by the public" or
"public employment," that "a duty must devolve on the person or
corporation holding property appropriated by right of eminent domain to
furnish the public with the use intended, and that there must be a right on
the part of the public, or some portion of it, or some public or quasi-public
agency on behalf of the public, to use the property after it is condemned."
• The term "public use" has now been held to be synonymous with "public
interest," "public benefit," "public welfare," and "public convenience."
Public Use = Public Benefit
• The more generally accepted view sees "public use" as "public advantage,
convenience, or benefit, and that anything which tends to enlarge the
resources, increase the industrial energies, and promote the productive
power of any considerable number of the inhabitants of a section of the
state, or which leads to the growth of towns and the creation of new
resources for the employment of capital and labor, [which] contributes to
the general welfare and the prosperity of the whole community." In this
jurisdiction, "public use" is defined as "whatever is beneficially employed
for the community."
• BARANGAY SINDALAN, SAN FERNANDO, PAMPANGA, rep. by BARANGAY
CAPTAIN ISMAEL GUTIERREZ, petitioner, vs. COURT OF APPEALS, JOSE
MATOTO III, and PATRICIA SINDAYAN, respondents. G.R. No. 150640.
March 22, 2007.
Public Use
• The use of land by the Government for military and aviation purposes
is a public use within the meaning of the provisions of law authorizing
the Government of the Philippine Islands to acquire real estate for
public uses by the exercise of the right of eminent domain.
• VISAYAN REFINING COMPANY, DEAN C. WORCESTER, and FRED A.
LEAS, petitioners, vs. HON. MANUEL CAMUS, Judge of the Court of
First Instance of the Province of Rizal and HON. QUINTIN PAREDES,
Attorney-General of the Philippine Islands, respondents. G.R. No.
15870. December 3, 1919.
Just Compensation
• Just compensation refers to the sum equivalent to the market value of the
property, broadly described to be the price fixed by the seller in open
market in the usual and ordinary course of legal action and competition, or
the fair value of the property as between one who receives and one who
desires to sell. It is fixed at the time of the actual taking by the State. Thus,
if property is taken for public use before compensation is deposited with
the court having jurisdiction over the case, the final compensation must
include interests on its just value, to be computed from the time the
property is taken up to the time when compensation is actually paid or
deposited with the court.
APO FRUITS CORPORATION and HIJO PLANTATION, INC., petitioners, vs. THE
HON. COURT OF APPEALS and LAND BANK OF THE PHILIPPINES, respondents.
G.R. No. 164195. December 4, 2009.
Just Compensation
• The general rule in determining "just compensation" in eminent domain is
the value of the property as of the date of the filing of the complaint.
Normally, the time of the taking coincides with the filing of the complaint
for expropriation. Hence, many rulings of this Court have equated just
compensation with the value of the property as of the time of filing of the
complaint consistent with the above provision of Section 4, Rule 67 of the
Revised Rules of Court. So too, where the institution of the action precedes
entry into the property, the just compensation is to be ascertained as of
the time of the filing of the complaint.
• NATIONAL POWER CORPORATION, petitioner, vs. COURT OF APPEALS and
MACAPANTON MANGONDATO, respondents. G.R. No. 113194. March 11,
1996.]
Judicial Function
• The determination of 'just compensation is a judicial function. Well-settled is the
rule that the determination of "just compensationn' in eminent domain cases is
" in eminent domain cases is a judicial function. In Export Processing Zone
Authority v. Dulay, the Court held that any valuation for just compensation laid
down in the statutes may serve only as guiding principle or one of the factors in
determining just compensation but it may not substitute the court's own
judgment as to what amount should be awarded and how to arrive at such
amount. The executive department or the legislature may make the initial
determinations but when a party claims a violation of the guarantee in the Bill of
Rights that private property may not be taken for public use without just
compensation, no statute, decree, or executive order can mandate that its own
determination shall prevail over the court's findings.
• NATIONAL POWER CORPORATION, petitioner, vs. PUREFOODS CORPORATION,
SOLID DEVELOPMENT CORPORATION, J. G.R. No. 160725. September 12, 2008.
Local Government
• Local government units have no inherent power of eminent domain and
can exercise it only when expressly authorized by the legislature. By virtue
of RA 7160, Congress conferred upon local government units the power to
expropriate.
SEC. 19. Eminent Domain. — A local government unit may, through its
chief executive and acting pursuant to an ordinance, exercise the power of
eminent domain for public use, or purpose, or welfare for the benefit of the
poor and the landless, upon payment of just compensation, pursuant to the
provisions of the Constitution and pertinent laws . . .. (italics supplied).
DIOSDADO LAGCAO, DOROTEO LAGCAO and URSULA LAGCAO, petitioners,

vs. JUDGE GENEROSA G. LABRA, Branch 23, Regional Trial Court, Cebu, and
the CITY OF CEBU, respondent. G.R. No. 155746. October 13, 2004.
Requisite for Local Government
• Before a local government unit may enter into the possession of the
property sought to be expropriated, it must (1) file a complaint for
expropriation sufficient in form and substance in the proper court and
(2) deposit with the said court at least 15% of the property's fair
market value based on its current tax declaration. The law does not
make the determination of a public purpose a condition precedent to
the issuance of a writ of possession.
• AMOS P. FRANCIA, JR., CECILIA P. FRANCIA, AND HEIRS OF BENJAMIN
P. FRANCIA, petitioners, vs. MUNICIPALITY OF MEYCAUAYAN,
respondent. G.R. No. 170432. March 24, 2008.
•
Local Government Exercise
• It is clear therefore that several requisites must concur before an LGU can exercise the
power of eminent domain, to wit:
• 1.An ordinance is enacted by the local legislative council authorizing the local chief
executive, in behalf of the local government unit, to exercise the power of eminent
domain or pursue expropriation proceedings over a particular private property.
• 2.The power of eminent domain is exercised for public use, purpose or welfare, or for the
benefit of the poor and the landless.
• 3.There is payment of just compensation, as required under Section 9, Article III of the
Constitution, and other pertinent laws.
• 4.A valid and definite offer has been previously made to the owner of the property
sought to be expropriated, but said offer was not accepted.
Antonio v. Geronimo, G.R. No. 124779, November 29, 2005, 476 SCRA 340, 350.
Will a resolution suffice?
• The Court in no uncertain terms have pronounced that a local
government unit cannot authorize an expropriation of private
property through a mere resolution of its lawmaking body. R.A. No.
7160 otherwise known as the Local Government Code expressly
requires an ordinance for the purpose and a resolution that merely
expresses the sentiment of the municipal council will not suffice.
• Municipality of Parañaque v. V.M. Realty Corporation, supra at 687;
Heirs of Suguitan v. City of Mandaluyong, supra; Antonio v.
Geronimo, supra at 352.
Necessity of an Offer
• A valid and definite offer is a mandatory requirement. It is the Local
Government Unit who bears the burden of proving compliance with
this mandatory requirement. It is incumbent upon the condemnor to
exhaust all reasonable efforts to obtain the land it desires by
agreement. Failure to prove compliance with the mandatory
requirement will result in the dismissal of the complaint.
Pequonnock Yacht Club, Inc. v. City of Bridgeport, 259 Conn. 592, 790
A.2d 1178 (2002).
•
Necessity of an Offer
• The purpose of the requirement of a valid and definite offer to be first
made to the owner is to encourage settlements and voluntary
acquisition of property needed for public purposes in order to avoid
the expense and delay of a court action. The law is designed to give to
the owner the opportunity to sell his land without the expense and
inconvenience of a protracted and expensive litigation. This is a
substantial right which should be protected in every instance.
Res Judicata not a bar
• The Supreme Court has held that the principle of res judicata, which
finds application in generally all cases and proceedings, cannot bar
the right of the State or its agent to expropriate private property. The
very nature of eminent domain, as an inherent power of the State,
dictates that the right to exercise the power be absolute and
unfettered even by a prior judgment or res judicata. The scope of
eminent domain is plenary and, like police power, can "reach every
form of property which the State might need for public use."
Bernas, Joaquin G., The 1987 Constitution of the Republic of the

Philippines: A Commentary, 1996 ed., p. 348.
• While the principle of res judicata does not denigrate the right of the
State to exercise eminent domain, it does apply to specific issues
decided in a previous case.
• For example, a final judgment dismissing an expropriation suit on the
ground that there was no prior offer precludes another suit raising
the same issue; it cannot, however, bar the State or its agent from
thereafter complying with this requirement, as prescribed by law, and
subsequently exercising its power of eminent domain over the same
property.
The Power of Taxation
• Taxes are the lifeblood of the government, for without taxes, the
government can neither exist nor endure. A principal attribute of
sovereignty, the exercise of taxing power derives its source from the
very existence of the state whose social contract with its citizens
obliges it to promote public interest and common good. The theory
behind the exercise of the power to tax emanates from necessity;
without taxes, government cannot fulfill its mandate of promoting the
general welfare and well-being of the people.
• NATIONAL POWER CORPORATION, petitioner, vs. CITY OF
CABANATUAN, respondent., G.R. no.149110, April 9, 2003
Attribute of sovereignty
• Taxation is an attribute of sovereignty. The power to tax is the
strongest of all the powers of government. If approximate equality in
taxation is to be attained, all property subject to a tax must respond,
or there is resultant inequality. To prevent such a lamentable
situation, the law ordains that the claim of the State upon the
property of the tax debtor shall be superior to that of any other
creditor
Power to destroy
• The power of taxation is sometimes called also the power to destroy.
It should, therefore, be exercised with caution to minimize injury to
the proprietary rights of a taxpayer. It must be exercised fairly, equally
and uniformly, lest the tax collector kill the "hen that lays the golden
egg".
• ANTONIO ROXAS, EDUARDO ROXAS and ROXAS Y CIA., in their own
respective behalfs and as judicial co-guardians of JOSE ROXAS,
petitioners, vs. COURT OF TAX APPEALS and COMMISSIONER OF
INTERNAL REVENUE, respondents., G.R. no.L-25043, April 26, 1968
Free to select subjects
• It is inherent in the power to tax that the State be free to select the
subjects of taxation, and it has been repeatedly held that
"inequalities which result from a singling out of one particular class
for taxation, or exemption, infringe no constitutional limitation.
• COMMISSIONER OF INTERNAL REVENUE and COMMISSIONER OF
CUSTOMS, petitioners, vs. HON. APOLINARIO B. SANTOS, in his
capacity as Presiding Judge of the Regional Trial Court, Branch 67,
Pasig City; ANTONIO M. MARCO; JEWELRY BY MARCO & CO., INC.,
and GUILD OF PHILIPPINE JEWELERS, INC., respondents. G.R. No.
119252. August 18, 1997.
Freedom to classify
• This power has aptly been described as "of wide range and flexibility." Indeed, it
is said that in the field of taxation, more than in other areas, the legislature
possesses the greatest freedom in classification. The reason for this is that,
classification has been a device for fitting tax programs to local needs and usages
in order to achieve an equitable distribution of the tax burden. The classification
is likewise based on considerations of administrative convenience. For it is now a
settled principle of law that "considerations of practical administrative
convenience and cost in the administration of tax laws afford adequate grounds
for imposing a tax on a well recognized and defined class."
• BENJAMIN P. GOMEZ, petitioner-appellee, vs. ENRICO PALOMAR, in his capacity
as Postmaster General; HON. BRIGIDO R. VALENCIA, in his capacity as Secretary of
Public Works and Communications and DOMINGO GOPEZ, in his capacity as
Acting Postmaster of San Fernando, Pampanga, respondents-appellants. , G.R.
No. L-23645. October 29, 1968.
Rights and Liberties
• Right and Liberty to Property
• Intellectual Liberties
• Physical Liberties
Intellectual Liberties
• Section 4, Article III, 1987 Constitution
• No law shall be passed abridging the freedom of speech, of expression, or the
press, or the right of the people peaceably to assembly and petition the
government for redress of grievances.
• Section 5, Article III, 1987 Constitution
• No law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof. The free exercise and enjoyment of religious profession and
worship without discrimination or preference shall forever be allowed. No
religious test shall be required for the exercise of civil or political rights.
• Section 8, Article IIII, 1987 Constitution
• The right of the people including those employed in the public and private
sectors, to form unions, associations or societies, to form unions, associations for
purposes not contrary to law shall not be abridged.
Religious Freedom
• Freedom of religion has been accorded a preferred status by the
framers of our fundamental laws, past and present. We have
affirmed this preferred status well aware that it is "designed to
protect the broadest possible liberty of conscience, to allow each
man to believe as his conscience directs, to profess his beliefs, and
to live as he believes he ought to live, consistent with the liberty of
others and with the common good.”
• IGLESIA NI CRISTO (INC), petitioner, vs. THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR
MOVING PICTURES AND TELEVISION and HONORABLE HENRIETTA S. MENDEZ, respondents, G.R. no.
119673, July 26, 1996; ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., herein represented by
PROF. ABDULRAFIH H. SAYEDY, petitioner, vs. OFFICE OF THE EXECUTIVE SECRETARY of the Office of
the President of the Philippines, herein represented by HON. ALBERTO G. ROMULO, Executive
Secretary, and the OFFICE ON MUSLIM AFFAIRS, herein represented by its Executive Director, HABIB
MUJAHAB HASHIM, respondents, G.R. No. 153888. July 9, 2003
• What is guaranteed by our Constitution is religious liberty, not mere
religious toleration. Religious freedom, however, as a constitutional
mandate is not inhibition of profound reverence for religion and is not
a denial of its influence in human affairs. Religion as a profession of
faith to an active power that binds and elevates man to his Creator is
recognized. And, in so far as it instills into the minds the purest
principles of morality, its influence is deeply felt and highly
appreciated.
• GREGORIO AGLIPAY, petitioner, vs. JUAN RUIZ, respondent, G.R. No.
45459. March 13, 1937
• While it is beyond debate that every citizen has the undeniable and
inviolable right to religious freedom, the exercise thereof, and of all
fundamental rights for that matter, must be done in good faith. As
Article 19 of the Civil Code admonishes: "Every person must in the
exercise of his rights and in the performance of his duties . . . observe
honesty and good faith."
• RELI GERMAN, RAMON PEDROSA, TIRSO SANTILLAN, JR., et.al.,
petitioners, vs. GEN. SANTIAGO BARANGAN and MAJOR ISABELO
LARIOSA, respondents, G.R. No. 68828. March 27, 1985.
•
• Freedom to Believe
• Freedom to Act
• Subject to limitations
Benevolent Neutrality Accomodation
• In the leading case of ALEJANDRO ESTRADA, complainant, vs.
SOLEDAD S. ESCRITOR, the Supreme Court ruled on the extent of the
State’s interference on religious freedom and the application of the
so-called “Benevolent-Neutrality Accomodation”
• A.M. No. P-02-1651. August 4, 2003

• Benevolent neutrality recognizes the religious nature of the Filipino
people and the elevating influence of religion in society; at the same
time, it acknowledges that government must pursue its. secular goals.
In pursuing these goals, however, government might adopt laws or
actions of general applicability which inadvertently burden religious
exercise. Benevolent neutrality gives room for accommodation of
these religious exercises as required by the Free Exercise Clause. It
allows these breaches in the wall of separation to uphold religious
liberty, which after all is the integral purpose of the religion clauses.
• The case at bar involves this first type of accommodation where an
exemption is sought from a law of general applicability that inadvertently
burdens religious exercise. Although our constitutional history and
interpretation mandate benevolent neutrality, benevolent neutrality does
not mean that the Court ought to grant exemptions every time a free
exercise claim comes before it. But it does mean that the Court will not
look with hostility or act indifferently towards religious beliefs and
practices and that it will strive to accommodate them when it can within
flexible constitutional limits; it does mean that the Court will not simply
dismiss a claim under the Free Exercise Clause because the conduct in
question offends a law or the orthodox view for this precisely is the
protection afforded by the religion clauses of the Constitution, i.e., that in
the absence of legislation granting exemption from a law of general
applicability, the Court can carve out an exception when the religion
clauses justify it.
• We here lay down the doctrine that in Philippine jurisdiction, we adopt the
benevolent neutrality approach not only because of its merits as discussed
above, but more importantly, because our constitutional history and
interpretation indubitably show that benevolent neutrality is the launching
pad from which the Court should take off in interpreting religion clause
cases. The ideal towards which this approach is directed is the protection
of religious liberty "not only for a minority, however small — not only for a
majority, however large — but for each of us" to the greatest extent
possible within flexible constitutional limits. Benevolent neutrality is
manifest not only in the Constitution but has also been recognized in
Philippine jurisprudence, albeit not expressly called "benevolent neutrality"
or "accommodation".
Compelling State Interest
• We cannot therefore simply take a passing look at respondent's claim
of religious freedom, but must instead apply the "compelling state
interest" test. The government must be heard on the issue as it has
not been given an opportunity to discharge its burden of
demonstrating the state's compelling interest which can override
respondent's religious belief and practice. To repeat, this is a case of
first impression where we are applying the "compelling state
interest" test in a case involving purely religious conduct. The careful
application of the test is indispensable as how we will decide the case
will make a decisive difference in the life of the respondent who
stands not only before the Court but before her Jehovah God.
Free Speech and Free Press
• Restraints on freedom of speech and expression are evaluated by either or
a combination of three tests, i.e., (a) the dangerous tendency doctrine
which permits limitations on speech once a rational connection has been
established between the speech restrained and the danger contemplated;
(b) the balancing of interests tests, used as a standard when courts need to
balance conflicting social values and individual interests, and requires a
conscious and detailed consideration of the interplay of interests
observable in a given situation of type of situation; and (c) the clear and
present danger rule which rests on the premise that speech may be
restrained because there is substantial danger that the speech will likely
lead to an evil the government has a right to prevent. This rule requires
that the evil consequences sought to be prevented must be substantive,
"extremely serious and the degree of imminence extremely high."
• As articulated in our jurisprudence, we have applied either
the dangerous tendency doctrine or clear and present
danger test to resolve free speech challenges. More recently,
we have generally adhered to the clear and present danger
test.
• Philippine jurisprudence, even as early as the period
under the 1935 Constitution, has recognized four
aspects of freedom of the press. These are (1)
freedom from prior restraint; (2) freedom from
punishment subsequent to publication (3) freedom of
access to information; and (4) freedom of circulation.
• Prior restraint refers to official governmental restrictions on the press
or other forms of expression in advance of actual publication or
dissemination.
• Freedom from prior restraint is largely freedom from government

censorship of publications, whatever the form of censorship, and
regardless of whether it is wielded by the executive, legislative or
judicial branch of the government.
• Thus, it precludes governmental acts that required approval of a
proposal to publish; licensing or permits as prerequisites to
publication including the payment of license taxes for the privilege to
publish; and even injunctions against publication. Even the closure of
the business and printing offices of certain newspapers, resulting in
the discontinuation of their printing and publication, are deemed as
previous restraint or censorship. Any law or official that requires
some form of permission to be had before publication can be made,
commits an infringement of the constitutional right, and remedy can
be had at the courts.
• it is not enough to determine whether the challenged act constitutes
some form of restraint on freedom of speech. A distinction has to be
made whether the restraint is (1) a content-neutral regulation, i.e.,
merely concerned with the incidents of the speech, or one that
merely controls the time, place or manner, and under well defined
standards; or (2) a content-based restraint or censorship, i.e., the
restriction is based on the subject matter of the utterance or speech.
The cast of the restriction determines the test by which the
challenged act is assayed with.
• When the prior restraint partakes of a content-neutral
regulation, it is subjected to an intermediate review. A
content-based regulation, however, bears a heavy
presumption of invalidity and is measured against the clear
and present danger rule. The latter will pass constitutional
muster only if justified by a compelling reason, and the
restrictions imposed are neither overbroad nor vague.
Freedom of Expression
• The right to free expression has two aspects (1) freedom from
previous restraint or censorship and (2) freedom from subsequent
punishment. The first aspect is embodied in Section 4 of Article III of
the 1987 Philippine Constitution, which states:
•
• “No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people to peaceably
assemble and petition the Government for redress of grievances.”
• The second aspect is contained in Section 18 of the same Article,
which reads as follows:
•
• “No person shall be detained solely by reason of his political beliefs
and aspirations.”
• Freedom of expression, traditionally understood, includes
several other rights involved in effective communications like
the freedoms of speech, of the press, of assembly, of
petition, of religion, of association and of access to public
information. It even encompasses the right to be silent, the
right to listen and the right not to listen.
Five cognate rights
• The constitutional provisions enumerates 5 cognate rights,
namely:
• · Freedom of Speech;
• · Freedom of Expression;
• · Freedom of the Press;
• · Right of peaceful assembly; and
• · Right to Petition.
Tests
• There are different tests employed in resolving any challenge to laws
restricting freedom of expression. These tests include the following:
• Dangerous Tendency Rule
• Clear and Present Danger Rule
• Balancing of Interests
Clear and Present Danger
• Clear and present danger rule by saying that the issue to be resolved
is “whether the words used are used in such circumstances and are of
such a nature as to create a clear and present danger that they will
bring about the substantive evils that the State has a right to
prevent.”
• Under this test, any act that restrains speech or other forms of
expression should be greeted with furrowed brows. The Supreme
Court has invariably ruled in favor of freedom of expression, and any
restriction is treated as an exception. The power to exercise prior
restraint is not to be presumed; rather, the presumption is against the
validity of prior censorship.
Dangerous Tendency Rule
• If the words uttered create a dangerous tendency which the State has
a right to prevent, then such words are punishable.
• It is not necessary that some definite or immediate acts of force,
violence, or unlawfulness be advocated. It is sufficient that such acts
be advocated in general terms. Nor is it necessary that the language
used be reasonably calculated to incite persons to acts of force,
violence or unlawfulness. It is sufficient if the natural tendency and
probable effect of the utterance be to bring about the substantive
evil, which the legislative body seeks to prevent.”
• The present Supreme Court adheres to the more liberal “clear and
present danger rule.” In passing upon the legality of exit polls, the
Court said that they created no obvious or imminent risk to society
that could not be prevented by assiduous and circumspect
governance.
Balancing of Interests
• Rests on the theory that it is the court’s function in a case before it when it
finds public interests served by legislation, on the one hand, and the free
expression clause affected by it, on the other, to balance one against the
other and arrive at a judgment where the greater weight shall be
placed. If, on balance, it appears that the public interest served by
restrictive legislation is of such nature that it outweighs the abridgment of
freedom, then the court will find the legislation valid. In short, the
balance-of-interests theory rests on the basis that constitutional freedoms
are not absolute, not even those stated in the free speech and expression
clause, and that they may be abridged to some extent to serve appropriate
and important interests. To the mind of the Court, the balancing of
interest doctrine is the more appropriate test to follow.
• Eliseo Soriano vs. Ma. Consoliza Laguardia, G.R. No. 164785, April 29, 2009
Freedom of Assembly and Petition
• There is no question as to the people’s rights to peaceful assembly to
petition the government for a redress of grievances and, for that
matter, to organize or form associations for purposes not contrary to
law, as well as to engage in peaceful concerted activities. These rights
are guaranteed by no less than the Constitution, particularly Sections
4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of
Article XIII. Jurisprudence abounds with hallowed pronouncements
defending and promoting the people’s exercise of these rights.
Not absolute
• The right to freedom of speech, and to peacefully assemble and
petition the government for redress of grievances, are fundamental
personal rights of the people recognized and guaranteed by the
constitutions of democratic countries. But it is a settled principle
growing out of the nature of well-ordered civil societies that the
exercise of those rights is not absolute for it may be so regulated that
it shall not be injurious to the equal enjoyment of others having equal
rights, nor injurious to the rights of the community or society
Freedom of Association
• The right of individuals to form an association as guaranteed by the
fundamental law includes the freedom to associate or refrain from
association. No man is compelled by law to become a member of a
political party; or after having become such, to remain a member. He
may join such a party for whatever reason seems good to him, and
may quit the party for any cause, good, bad, or indifferent, or without
cause. The decision of a candidate on whether to run as an
independent candidate or to join a political party, group or
aggrupation is left entirely to his discretion.
• EMMANUEL SINACA, petitioner, vs. MIGUEL MULA and COMMISSION
ON ELECTIONS, respondents, G.R. No. 135691. September 27, 1999
Physical Liberty
• 1987 Philippine Constitution, Article IV
• Section 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized.
• Section 3. (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or order
requires otherwise, as prescribed by law.
• Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
• Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired except
in the interest of national security, public safety, or public health, as
may be provided by law.
• Section 11. Free access to the courts and quasi-judicial bodies and
adequate legal assistance shall not be denied to any person by reason
of poverty.
• Section 12. (1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of counsel.
• (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will
shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms
of detention are prohibited.
• (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
• (4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to the rehabilitation of victims of torture or similar practices, and their families.
• Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released
on recognizance as may be provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.
• Section 14. (1) No person shall be held to answer for a criminal offense without due
process of law.
• (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary
is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of
the nature and cause of the accusation against him, to have a speedy, impartial, and
public trial, to meet the witnesses face to face, and to have compulsory process to secure
the attendance of witnesses and the production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the accused: Provided,
that he has been duly notified and his failure to appear is unjustifiable.
• Section 15. The privilege of the writ of habeas corpus shall not be suspended except in
cases of invasion or rebellion, when the public safety requires it.
• Section 16. All persons shall have the right to a speedy disposition of their cases before all
judicial, quasi-judicial, or administrative bodies.
• Section 17. No person shall be compelled to be a witness against himself.
• Section 18. (1) No person shall be detained solely by reason of his political beliefs
and aspirations.
• (2) No involuntary servitude in any form shall exist except as a punishment for a
crime whereof the party shall have been duly convicted.
• Section 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the Congress hereafter provides for
it. Any death penalty already imposed shall be reduced to reclusion perpetua.
• (2) The employment of physical, psychological, or degrading punishment against
any prisoner or detainee or the use of substandard or inadequate penal facilities
under subhuman conditions shall be dealt with by law.
• Section 21. No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another prosecution for the same act.
Rights and Freedoms
• Writ of Habeas Corpus
• Freedom of Persons, Home and Possessions Including
Communication Except when Reasonable Search and Seizure is
conducted
• Rights of an Accused
• Right to Bail
• Right against self-incrimnation
• Right against Double Jeopardy
• Freedom of Movment
Writ of Habeas Corpus
• In general, the purpose of the writ of habeas corpus is to determine whether or
not a particular person is legally held. A prime specification of an application for a
writ of habeas corpus, in fact, is an actual and effective, and not merely nominal
or moral, illegal restraint of liberty. "The writ of habeas corpus was devised and
exists as a speedy and effectual remedy to relieve persons from unlawful
restraint, and as the best and only sufficient defense of personal freedom. A
prime specification of an application for a writ of habeas corpus is restraint of
liberty. The essential object and purpose of the writ of habeas corpus is to inquire
into all manner of involuntary restraint as distinguished from voluntary, and to
relieve a person therefrom if such restraint is illegal. Any restraint which will
preclude freedom of action is sufficient.”
• JOHANNA SOMBONG, petitioner, vs. COURT OF APPEALS and MARIETTA NERI
ALVIAR, LILIBETH NERI and all persons holding the subject child ARABELA
SOMBONG in their custody, respondents. G.R. No. 111876. January 31, 1996.
• A petition for the issuance of a writ of habeas corpus is a special proceeding
governed by Rule 102 of the Rules of Court, as amended. In Ex Parte Billings, it
was held that habeas corpus is that of a civil proceeding in character. It seeks the
enforcement of civil rights. Resorting to the writ is not to inquire into the criminal
act of which the complaint is made, but into the right of liberty, notwithstanding
the act and the immediate purpose to be served is relief from illegal restraint.
The rule applies even when instituted to arrest a criminal prosecution and secure
freedom. When a prisoner petitions for a writ of habeas corpus, he thereby
commences a suit and prosecutes a case in that court.
• GLENN CABALLES y CHUA, petitioner, vs. COURT OF APPEALS, HON. EMMANUEL
D. LAUREA, HON. BENJAMIN T. ANTONIO, and PEOPLE OF THE PHILIPPINES,
respondents., G.R. No. 163108. February 23, 2005
•
•
• Habeas corpus is a summary remedy. It is analogous to a proceeding
in rem when instituted for the sole purpose of having the person of
restraint presented before the judge in order that the cause of his
detention may be inquired into and his statements final. The writ of
habeas corpus does not act upon the prisoner who seeks relief, but
upon the person who holds him in what is alleged to be the unlawful
authority. Hence, the only parties before the court are the petitioner
(prisoner) and the person holding the petitioner in custody, and the
only question to be resolved is whether the custodian has authority
to deprive the petitioner of his liberty.
• In passing upon a petition for habeas corpus, a court or judge must
first inquire into whether the petitioner is being restrained of his
liberty. If he is not, the writ will be refused. Inquiry into the cause of
detention will proceed only where such restraint exists. If the alleged
cause is thereafter found to be unlawful, then the writ should be
granted and the petitioner discharged. Needless to state, if otherwise,
again the writ will be refused.
• NURHIDA JUHURI AMPATUAN, petitioner, vs. JUDGE VIRGILIO V.
MACARAIG, REGIONAL TRIAL COURT, MANILA, BRANCH 37, DIRECTOR
GENERAL AVELINO RAZON, JR., DIRECTOR GEARY BARIAS, PSSUPT. CO
YEE M. CO, JR. and POLICE CHIEF INSPECTOR AGAPITO QUIMSON,
respondents, G.R. No. 182497. June 29, 2010.
• Section 4, Rule 102 of the Rules of Court, as amended, provides that
the writ of habeas corpus is not allowed if the person alleged to be
restrained of his liberty is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment or order of a
court of record.
Freedom of Persons, Home and Possessions Including
Communication Except when Reasonable Search and Seizure is
conducted
• Enshrined in the Constitution is the inviolable right to privacy of home

and person. It explicitly ordains that people have the right to be
secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any
purpose. Inseparable, and not merely corollary or incidental to said
right and equally hallowed in and by the Constitution, is the
exclusionary principle which decrees that any evidence obtained in
violation of said right is inadmissible for any purpose in any
proceeding.
• Verily, the rule is, the Constitution bars State intrusions to a person's
body, personal effects or residence except if conducted by virtue of a
valid search warrant issued in compliance with the procedure
outlined in the Constitution and reiterated in the Rules of Court;
"otherwise such search and seizure become 'unreasonable' within the
meaning of the aforementioned constitutional provision."
• Such warrantless searches and seizures have long been deemed permissible by
jurisprudence in instances of (1) search of moving vehicles, (2) seizure in plain
view, (3) customs searches, (4) waiver or consent searches, (5) stop and frisk
situations (Terry search), and (6) search incidental to a lawful arrest. The last
includes a valid warrantless search and seizure pursuant to an equally valid
warrantless arrest, for, while as a rule, an arrest is considered legitimate if
effected with a valid warrant of arrest, the Rules of Court recognize permissible
warrantless arrests, to wit: (1) arrest in flagrante delicto, (2) arrests effected in
hot pursuit, and (3) arrests of escaped prisoners.
• PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CHUA HO SAN @ TSAY HO

SAN, accused-appellant, G.R. No. 128222. June 17, 1999
•
• In cases of in flagrante delicto arrests, a peace officer or a private
person may without a warrant, arrest a person, when, in his presence,
the person to be arrested has committed, is actually committing, or is
attempting to commit an offense. The arresting officer, therefore,
must have personal knowledge of such fact or as recent case law
adverts to personal knowledge of facts or circumstances convincingly
indicative or constitutive of probable cause. The term probable cause
had been understood to mean a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves to
warrant a cautious man's belief that the person accused is guilty of
the offense with which he is charged.
• with respect to arrests, it is such facts and circumstances which would
lead a reasonably discreet and prudent man to believe that an
offense has been committed by the person sought to be arrested. (1
BERNAS 87) As applied to searches, probable cause refers to the
existence of facts and circumstances which could lead a reasonably
discreet and prudent man to believe that an offense has been
committed and that the items, articles or objects sought in
connection with said offense or subject to seizure and destruction by
law is in the place to be searched
• The Constitution lays down the general rule that a search and seizure
must be carried on the strength of a judicial warrant. Otherwise, the
search and seizure is deemed "unreasonable." Evidence procured on
the occasion of an unreasonable search and seizure is deemed
tainted for being the proverbial fruit of a poisonous tree and should
be excluded. Such evidence shall be inadmissible in evidence for any
purpose in any proceeding
Rights of an Accused
• The rights of the accused during custodial investigation are enshrined
in Article III, Section 12 (1) of the 1987 Constitution which provides
that: "Sec. 12. (1) Any person under investigation for the commission
of an offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in
writing and in the presence of counsel."
• The rights to remain silent and to counsel may be waived by the accused
provided that the constitutional requirements are complied with. It must appear
clear that the accused was initially accorded his right to be informed of his right
to remain silent and to have a competent and independent counsel preferably of
his own choice. In addition, the waiver must be in writing and in the presence of
counsel. If the waiver complies with the constitutional requirements, then the
extrajudicial confession will be tested for voluntariness, i.e., if it was given freely
— without coercion, intimidation, inducement, or false promises; and credibility,
i.e., if it was consistent with the normal experience of mankind. PEOPLE OF THE
PHILIPPINES, plaintiff-appellee, vs. DONATO B. CONTINENTE and JUANITO T.
ITAAS, JOHN DOE, PETER DOE, JAMES DOE, PAUL DOE and SEVERAL OTHER DOES
(at large), accused, DONATO B. CONTINENTE and JUANITO T. ITAAS, accused-
appellants, G.R. Nos. 100801-02. August 25, 2000
•
•
• Sec. 12 (1) Art. III of the Constitution may be invoked only during a
custodial investigation: "The criminal process includes the investigation
prior to the filing of charges, the preliminary examination and investigation
after charges are filed, and the period of trial. The Miranda rights or the
Section 12 (1) rights were conceived for the first of these three phases, that
is, when the enquiry is under the control of police officers. It is in this
situation that the psychological if not physical atmosphere of custodial
investigations, in the absence of proper safeguards, is inherently coercive.
Outside of this situation, Section 12 (1) no longer applies."
• PEOPLE OF THE PHILIPPINES, appellee, vs. SILVENO ESTADO y AMISTOSO
JR., a.k.a. "NONO," appellant, G.R. No. 150867. February 5, 2004
• The right to be informed requires "the transmission of meaningful
information rather than just the ceremonial and perfunctory
recitation of an abstract constitutional principle." It should allow the
suspect to consider the effects and consequences of any waiver he
might make of these rights.
• PEOPLE OF THE PHILIPPINES, appellee, vs. BENJAMIN SAYABOC y
SEGUBA, PATRICIO ESCORPISO y VALDEZ, MARLON BUENVIAJE y
PINEDA, and MIGUEL BUENVIAJE y FLORES, appellants, G.R. No.
147201. January 15, 2004.
• Any information or admission given by a person while in custody
which may appear harmless or innocuous at the time without the
competent assistance of an independent counsel must be struck
down as inadmissible. Even if the confession contains a grain of truth
or even if it had been voluntarily given, if it was made without the
assistance of counsel, it is inadmissible.
• PEOPLE OF THE PHILIPPINES, appellee, vs. REY SUNGA, RAMIL
LANSANG, INOCENCIO PASCUA, LITO OCTAC and LOCIL CUI @
GINALYN CUYOS, accused, G.R. No. 126029. March 27, 2003
• The interdiction against warrantless searches and seizures is not
absolute. The recognized exceptions established by jurisprudence are
(1) search of moving vehicles; (2) seizure in plain view; (3) customs
searches; (4) waiver or consented searches; (5) stop and frisk
situations (Terry search); and (6) search incidental to a lawful arrest.
• The Terry search or the "stop and frisk" situation refers to a case
where a police officer approaches a person who is acting suspiciously,
for purposes of investigating possibly criminal behavior in line with
the general interest of effective crime prevention and detection. To
assure himself that the person with whom he is dealing is not armed
with a weapon that could unexpectedly and fatally be used against
him, he could validly conduct a carefully limited search of the outer
clothing of such person to discover weapons which might be used to
assault him.
• A custodial investigation is understood to mean as "any questioning
initiated by law enforcement authorities after a person is taken into
custody or otherwise deprived of his freedom of action in any
significant manner." It begins when there is no longer a general
inquiry into an unsolved crime but starts to focus on a particular
person as a suspect, i.e., when the police investigator starts
interrogating or exacting a confession from the suspect in connection
with an alleged offense. A person under custodial investigation is
guaranteed certain rights, which attach upon the commencement
thereof.
• Jurisprudence provides that extrajudicial confessions are presumed to be
voluntary. The condition for this presumption, however, is that the
prosecution is able to show that the constitutional requirements
safeguarding an accused's rights during custodial investigation have been
strictly complied with, especially when the extrajudicial confession has
been denounced. The rationale for this requirement is to allay any fear that
the person being investigated would succumb to coercion while in the
unfamiliar or intimidating environment that is inherent in custodial
investigations. Therefore, even if the confession may appear to have been
given voluntarily since the confessant did not file charges against his
alleged intimidators for maltreatment, the failure to properly inform a
suspect of his rights during a custodial investigation renders the confession
valueless and inadmissible.
• The right to a competent and independent counsel means that the
counsel should satisfy himself, during the conduct of the
investigation, that the suspect understands the import and
consequences of answering the questions propounded.
• Ibid
Right to Bail
• Section 13, Article III of the Constitution provides that the right to bail
shall not be impaired, thus:
• Sec. 13. All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
• The decision of the SC in Government of the USA v. Judge Purganan
which says that “no bail rule applies in extradition since bail is
available only to one who had arrested and detained for violation of
Philippine criminal laws” was re-examined and, after re-examination,
the rule now is that an extraditee may be allowed to post bail during
the pendency of an extradition proceeding. However, for him to be
allowed to post bail, still he must prove that (1) once granted bail he
will not be a flight risk or a danger to the community; and (2) that
there exists special, humanitarian and compelling circumstances that
will justify the grant of bail to him, by a clear and convincing
evidence.
Enrile vs. Sandiganbayan (2015)
• In this case, former Senator Enrile was shown not to be a flight risk or
a danger to the community (his voluntary surrender to the authorities
and his record of respect for court processes in earlier cases), and
that there exist special, humanitarian and compelling circumstances
(his advanced age, fragile state of health and medical predicament
that will require the services of doctors of his choice) that will justify
the grant of bail to him. After all, the main purpose of bail is to assure
the presence of an accused during the trial of the case as required by
the cour
• Bail for the provisional liberty to the accused, regardless of the crime
charged, should be allowed independently of the merits of the
charge, provided his continued incarceration is clearly shown to be
injurious to his health or to endanger his life. Indeed, denying him bail
despite imperiling hid health and life would not serve the true
objective of preventive incarceration during the trial.
• “Granting bail to Enrile on the foregoing reasons is not
unprecedented.
Right against self-incrimination
• The taking of pictures of an accused even without the assistance of
counsel, being a purely mechanical act, is not a violation of his
constitutional right against self-incrimination. The constitutional right
of an accused against self-incrimination proscribes the use of physical
or moral compulsion to extort communications from the accused and
not the inclusion of his body in evidence when it may be material.
Purely mechanical acts are not included in the prohibition as the
accused does not thereby speak his guilt, hence the assistance and
guiding hand of counsel is not required. The essence of the right
against self-incrimination is testimonial compulsion, that is, the giving
of evidence against himself through a testimonial act.
• In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we
held that the right against self-incrimination under Section 17, Article
III of the 1987 Constitution which is ordinarily available only in
criminal prosecutions, extends to administrative proceedings which
possess a criminal or penal aspect, such as an administrative
investigation of a licensed physician who is charged with immorality,
which could result in his loss of the privilege to practice medicine if
found guilty. The Court, citing the earlier case of Cabal v. Kapunan (6
SCRA 1059 [1962]), pointed out that the revocation of one‟s license
as a medical practitioner, is an even greater deprivation than
forfeiture of property. (Secretary of Justice v. Lantion, 322 SCRA 160,
184, Jan. 18, 2000, En Banc [Melo])
• [I]t has been held that “a congressional committee‟s right to inquire
is „subject to all relevant limitations placed by the Constitution on
governmental action,‟ including „the relevant limitations of the Bill of
Rights‟.”
• One of the basic rights guaranteed by the Constitution to an
individual is the right against self-incrimination. (Bengzon, Jr. v. Senate
Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En Banc
[Padilla])
• Section 17, Article 3 of the 1987 Constitution provides that "no person
shall be compelled to be a witness against himself." Petitioner asserts
that obtaining samples from him for DNA testing violates his right
against self-incrimination. Petitioner ignores our earlier
pronouncements that the privilege is applicable only to testimonial
evidence
Right against Double Jeopardy
• The Supreme Court ruled that the three requisites before double jeopardy
can be invoked are: (1) the first jeopardy must have attached prior to the
second; (2) the first jeopardy must have been validly terminated; and (3)
the second jeopardy must be for the same offense as that in the first, or
the second offense includes or is necessarily included in the offense
charged in the first information, or is an attempt to commit the same or is
a frustration thereof. In the Court's view, it is clear that no double jeopardy
has attached in this case. The dismissal order made by the trial court was
not valid and cannot be used as basis for a claim of double jeopardy. The
said right cannot be grounded on an error of law.
• PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUCIO ALBERTO y
DANAO, accused-appellant, G.R. No. 132374. August 22, 2002
• The exception to the double jeopardy rule attaches only when the trial
court commits grave abuse of discretion due to a violation of due process,
i.e., that the prosecution was denied the opportunity to present its case or
that the trial was a sham. Conversely, there cannot be a grave abuse of
discretion where the trial court gave both parties the opportunity to
present their case and even required them to submit memoranda from
which its decision is based, as in this case. In other words, if there is no
denial of due process, there can be no grave abuse of discretion that would
merit the application of the exception to the double jeopardy rule.
METROPOLITAN BANK AND TRUST COMPANY, petitioner, vs. HON. REGINO
T. VERIDIANO II, Presiding Judge, RTC-Manila, Branch 31, and DOMINADOR
ONG, respondents.,
•
•
• Our Bill of Rights deals with two (2) kinds of double jeopardy. The first
sentence of Clause 20, Section 1(now Sec. 21), Article III of the
Constitution ordains that “no person shall be twice put in jeopardy of
punishment for the same offense.” The second sentence of said
clause provides that “if an act is punishable by a law and an
ordinance, conviction or acquittal under either shall constitute a bar
to another prosecution for the same act.” Thus, the first sentence
prohibits double jeopardy of punishment for the same offense
whereas, the second contemplates double jeopardy of punishment
for the same act.
• Elsewhere stated, where the offense charged are penalized either by
different sections of the same statute or by different statutes, the
important inquiry relates to the identity of offenses charged. The
constitutional protection against double jeopardy is available only
where an identity is shown to exist between the earlier and the
subsequent offenses charged. The question of identity or lack of
identity of offenses is addressed by examining the essential elements
of each of the two offenses charged, as such elements are set out in
the respective legislative definitions of the offenses involved. (People
v. Quijada, 259 SCRA 191, July 24, 1996)
• Legal jeopardy attaches only: (1) upon a valid indictment; (b) before a
competent court; (c) after arraignment; (d) when a valid plea has
been entered; and (e) the case was dismissed or otherwise
terminated without the express consent of the accused. (Cuison v. CA,
289 SCRA 159, April 15, 1998 [Panganiban])
Freedom of Movement
• Article III, Section 6 of the 1987 Constitution should be interpreted to
mean that while the liberty of travel may be impaired even without Court
Order, the appropriate executive officers or administrative authorities are
not armed with arbitrary discretion to impose limitations. They can impose
limits only on the basis of "national security, public safety, or public health"
and "as may be provided by law," a limitive phrase which did not appear in
the 1973 text (The Constitution, Bernas, Joaquin G., S.J., Vol. I, First Edition,
1987, p. 263).
• RICARDO C. SILVERIO, petitioner, vs. THE COURT OF APPEALS, HON.
BENIGNO G. GAVIOLA, as Judge of the Regional Trial Court of Cebu City,
Branch IX, and PEOPLE OF THE PHILIPPINES, respondents, G.R. No. 94284.
April 8, 1991
•
• Article III, Section 6 of the 1987 Constitution should by no means be
construed as delimiting the inherent power of the Courts to use all
means necessary to carry their orders into effect in criminal cases
pending before them. When by law jurisdiction is conferred on a
Court or judicial officer, all auxiliary writs, process and other means
necessary to carry it into effect may be employed by such Court or
officer (Rule 135, Section 6, Rules of Court).
Right to return
• The right to return to one's country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of
abode and the right to travel.
• It is the court's well-considered view that the right to return may be
considered, as a generally accepted principle of international law and
under our Constitution, is part of the law of the land [Art. II Sec. 2 of
the Constitution.] It is distinct and separate from the right to travel
and enjoys a different protection under the International Covenant of
Civil and Political Rights, i.e., against being "arbitrarily deprived"
thereof [Art. 12 (4).]
Right to Privacy
• The essence of privacy is the “right to be let alone.” In the 1965 case of Griswold
v. Connecticut (381 U.S. 479, 14 L. ed. 2D 510 [1965]), the United States Supreme
Court gave more substance to the right of privacy when it ruled that the right has
a constitutional foundation. It held that there is a right of privacy which can be
found within the penumbras of the First, Third, Fourth, Fifth and Ninth
Amendments x x x. In the 1968 case of Morfe v. Mutuc (22 SCRA 424, 444-445),
we adopted the Griswold ruling that there is a constitutional right to privacy x x x.
• Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution. (Morfe v.
Mutuc, 22 SCRA 424, 444 [1968]; Cortes, The Constitutional Foundations of
Privacy, p. 18 [1970]). It is expressly recognized in Section 3(1) of the Bill of Rights
x x x. Other facets of the right to privacy are protected in various provisions of the
Bill of Rights (viz: Secs. 1, 2, 6, 8, and 17. (Ople v. Torres, G.R. No. 127685, July 23,
1998 [Puno])
• The Civil Code provides that “[e]very person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other persons”
and punishes as actionable torts several acts by a person of meddling and
prying into the privacy of another. It also holds a public officer or employee
or any private individual liable for damages for any violation of the rights
and liberties of another person, and recognizes the privacy of letters and
other private communications. The Revised Penal Code makes a crime the
violation of secrets by an officer, the revelation of trade and industrial
secrets, and trespass to dwelling. Invasion of privacy is an offense in special
laws like the Anti-Wiretapping Law (R.A. 4200), the Secrecy of Bank
Deposits (R.A. 1405) and the Intellectual Property Code (R.A. 8293). The
Rules of Court on privileged communication likewise recognize the privacy
of certain information (Section 24, Rule 130[c], Revised Rules on Evidence).
(Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])
• Two constitutional guarantees create these zones of privacy: (a) the
right against unreasonable searches and seizures, which is the basis of
the right to be let alone, and (b) the right to privacy of
communication and correspondence.
• In assessing the challenge that the State has impermissibly intruded
into these zones of privacy, a court must determine whether a person
has exhibited a reasonable expectation of privacy and, if so, whether
that expectation has been violated by unreasonable government
intrusion.
Administrative Law
• General Principles
• Doctrines
• The Law on Public Officers
Administrative Law
• Definition: All the laws and policies that regulate or control the
administrative organization and operations of the government o
• Classifications:
• 1. Internal and External Administration
• 2. Law that Controls and those made by Administrative Agencies
• 3. Substantive or Procedural Administrative Law
• 4. General or Special Administrative Law
Administrative Agencies
• An agency which exercises some significant form or combination of
executive, legislative or judicial powers (“4th Branch”)
• All Administrative Agencies are Public Offices o Include boards,
commissions, departments, bureaus, offices, authorities, government
corporations, government instrumentalities, and local governments
How are they created
• Constitution
• Congress (Law; GOCCs– economically viable and common good; LGUs
- plebiscite)
• President (Executive Order; by authority under the Constitution or of
law)
• Supreme Court (determines classification)
• Administrative Agencies themselves (Articles of Incorporation; by
authority of law)
• Local Governments (Ordinance; by authority of law)
Administrative Relationship
• Supervision and Control (substitute judgment; rules on how to
execute act; alter-ego)
• Administrative Supervision (oversight, reports, proper performance;
not over appointments and contracts, not reverse decisions; e.g.
Department and Regulatory Agencies; Province and Component City/
Municipality)
• Attachment (sit in Board; reporting; not day-to-day; e.g. DPWH and
MWSS)
Administrative Law: Doctrine of Exhaustion of
Administrative Remedies
• Under the doctrine of exhaustion of administrative remedies, before a
party is allowed to seek the intervention of the court, one should have
availed first of all the means of administrative processes available. If resort
to a remedy within the administrative machinery can still be made by
giving the administrative officer concerned every opportunity to decide on
a matter that comes within his jurisdiction, then such remedy should be
exhausted first before the court‟s judicial power can be sought. For
reasons of comity and convenience, courts of justice shy away from dispute
until the system of administrative redress has been completed and
complied with, so as to give the administrative agency concerned every
opportunity to correct its error and dispose of the case. X x x. (Saturnino C.
Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No. 225973,
November 8, 2016, En Banc [Peralta])
Exceptions to the Doctrine
• It has been held, however, that the doctrine of exhaustion of
administrative remedies and the doctrine of primary jurisdiction are not
ironclad rules. In the case of Republic of the Philippines v. Lacap, the Court
enumerated the numerous exceptions to these rules, namely:
• (a) where there is estoppel on the part of the party invoking the doctrine;
• (b) where the challenged administrative act is patently illegal, amounting
to lack of jurisdiction;
• (c) where there is unreasonable delay or official inaction that will
irretrievably prejudice the complainant;
• (d) where the amount involved is relatively so small as to make the rule
impractical and oppressive;
Exceptions to the Doctrine
• e) where the question involved is purely legal and will ultimately have to be
decided by the courts of justice;
• (f) where judicial intervention is urgent;
• (g) where the application of the doctrine may cause great and irreparable
damage; (h) where the controverted acts violate due process;
• (i) where the issue of non-exhaustion of administrative remedies has been
rendered moot; (j) where there is no other plain, speedy and adequate
remedy; (k) where strong public interest is involved; and (l) in quo warranto
proceedings.
• (Lim vs. Distinction Properties [2012])

Doctrine of Primary Administrative
Jurisdiction
• It may not be amiss to reiterate the prevailing rule that the doctrine
of primary jurisdiction applies where a claim is originally cognizable in
the courts and comes into play whenever enforcement of the claim
requires the resolution of issues which, under a regulatory scheme,
has been placed within the special competence of an administrative
agency. In such a case, the court in which the claim is sought to be
enforced may suspend the judicial process pending referral of such
issues to the administrative body for its view or, if the parties would
not be unfairly disadvantaged, dismiss the case without prejudice.
• SAMELCO vs. Seludo [2012]
Doctrine of finality of administrative action
• Courts are reluctant to interfere with action of an administrative
agency prior to its completion or finality, the reason being that absent
a final order or decision, power has not been fully and finally
exercised, and there can usually be no irreparable harm.
• EXCEPTIONS: Interlocutory order affecting the merits of a
controversy; Preserve status quo pending further action by the
administrative agency; Essential to the protection of the rights
asserted from the injury threatened; Officer assumes to act in
violation of the Constitution and other laws; Order not reviewable in
any other way; Order made in excess of powe
Powers of Administrative Agencies
• Quasi-legislative power / Power of subordinate legislation
• Quasi-judicial power/Power of adjudication
• Determinative power
Quasi-Legislative Power
• It is the authority delegated by the law-making body to the
administrative body to adopt rules and regulations intended to carry
out the provisions of a law and implement legislative policy.
Distinctions between Quasi-legislative power and
legislative power
• LEGISLATIVE power involves the discretion to determine what the law
shall be. QUASI-legislative power only involves the discretion to
determine how the law shall be enforced.
• LEGISLATIVE power CANNOT be delegated. QUASI-legislative power
CAN be delegated.
Tests of Delegation
• COMPLETENESS test. This means that the law must be complete in all
its terms and conditions when it leaves the legislature so that when it
reaches the delegate, it will have nothing to do but to enforce it.
• SUFFICIENT STANDARD test. The law must offer a sufficient standard
to specify the limits of the delegate’s authority, announce the
legislative policy and specify the conditions under which it is to be
implemented.
Quasi-Judicial Power
• It is the power of administrative authorities to make determinations
of facts in the performance of their official duties and to apply the
law as they construe it to the facts so found. The exercise of this
power is only incidental to the main function of administrative
authorities, which is the enforcement of the law.
Determinative Powers
• 1. Enabling
• 2. Directing
• 3. Dispensing
• 4. Summary
• 5. Equitable
Determinative Powers
• 1. ENABLING powers
• Those that PERMIT the doing of an act which the law undertakes to
regulate and would be unlawful without government approval.
• Ex. Issuance of licenses to engage in a particular business.
• 2. DIRECTING powers
• Those that involve the corrective powers of public utility
commissions, powers of assessment under the revenue laws,
reparations under public utility laws, and awards under workmen’s
compensation laws, and powers of abstract determination such as
definition-valuation, classification and fact finding
• 3. DISPENSING powers
• Exemplified by the authority to exempt from or relax a general prohibition,
or authority to relieve from an affirmative duty. Its difference from
licensing power is that dispensing power sanctions a deviation from a
standard.
• 4. SUMMARY powers
• Those that apply compulsion or force against person or property to
effectuate a legal purpose without a judicial warrant to authorize such
action. Usually without notice and hearing.
• Ex. Abatement of nuisance, summary destraint, levy of property of
delinquent tax payers
• 5. EQUITABLE powers
• Those that pertain to the power to determine the law upon a
particular state of facts. It refers to the right to, and must, consider
and make proper application of the rules of equity.
• Ex. Power to appoint a receiver, power to issue injunctions
Kinds of Administrative Regulations
DISTINCTIONS LEGISLATIVE INTERPRETATIVE
1. Capacity that administrative agency Legislative Judicial
is acting in
2. What administrative agency is doing It supplements the statute by It says what the statute means
filling in the details
3. Force and effect Legislative regulations have the Merely persuasive/Received by the
force and effecr of law courts with much respect but not
immediately upon going into accorded with finality
effect. Such is accorded by the
courts or by express provision of
statute.
Requisites of Valid Administrative Regulation
• Its promulgation must be authorized by the legislature.

• It must be within the scope of the authority given by the legislature.
• It must be promulgated in accordance with the prescribed procedure.
• It must be reasonable
Notice and Hearing
• General Rule: Administrative rules of GENERAL application do NOT
require previous notice and hearing.
• Exception: When the legislature itself requires it and mandates that
the regulation shall be based on certain facts as determined at an
appropriate investigation.
• If the regulation is in effect a settlement of a controversy between
specific parties, it is considered an administrative adjudication,
requiring notice and hearing.
Prescribing of Rates
It can be either:
• 1. LEGISLATIVE
• If the rules/rates are meant to apply to all enterprises of a given kind
throughout the country.
• No prior notice and hearing is required.
• 2. QUASI-JUDICIAL
• If the rules and rates imposed apply exclusively to a particular party,
based upon a finding of fact. Prior notice and hearing is required.
Publication Requirement
• Administrative Regulations that MUST be published:
• Administrative regulations of GENERAL application.
• Administrative regulations which are PENAL in nature.
Need not be published (Exceptions)
• Interpretative regulations
• Internal rules and regulations governing the personnel of the
administrative agency.
• Letters of instruction issued by administrative superiors concerning
guidelines to be followed by their subordinates. (Tanada v. Tuvera)
Special Requisites of a Valid Administrative
Regulation with a PENAL sanction
• The law itself must make violation of the administrative regulation
punishable.
• The law itself must impose and specify the penalty for the violation of
the regulation.
• The regulation must be published.
Administrative Due Process : Requirements
• Right to Notice, be it actual or constructive

• Reasonable opportunity to appear and defend his rights and to
introduce witnesses
• Impartial tribunal with competent jurisdiction
• Finding or decision supported by substantial evidence
Exceptions to the Notice and Hearing Requirement
• Urgency of immediate action

• Tentativeness of the administrative action
• Right was previously offered but not claimed
• Summary abatement of a nuisance per se
• Preventive suspension of a public servant facing administrative charges
• Padlocking of filthy restaurants/theaters showing obscene movies
• Cancellation of a passport of a person sought for criminal prosecution
• Summary distraint and levy of properties of a delinquent taxpayer
• Replacement of a temporary or acting appointee
The Law of Public Officers
• Public Office is a Public Trust
• Conchita Carpio-Morales v. Court of Appeals (6th Div.), G.R. Nos.
217126-27, November 10, 2015 (Perlas-Bernabe)
Power of the Ombudsman
• The Office of the Ombudsman shall have disciplinary authority over
all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including Members of
the Cabinet, local government, government-owned or controlled
corporations and their subsidiaries, except over officials who may be
removed only by impeachment or over Members of Congress, and
the Judiciary. (Sec. 21, R.A. No. 6770)
Power to suspend
• The Ombudsman or his Deputy may preventively suspend any officer or
employee under his authority pending an investigation, if in his judgment
the evidence of guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct or neglect
in the performance of duty; (b) the charges would warrant removal from
the service; or (c) the respondent‟s continued stay in office may prejudice
the case filed against him.
• The preventive suspension shall continue until the case is terminated by
the Office of the Ombudsman but not more than six (6) month, except
when the delay in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of the respondent,
in which case the period of such delay shall not be counted in computing
the period of suspension herein provided. (Sec. 24, R.A. No. 6770)
No writ of injunction
• No writ of injunction shall be issued by any court to delay an
investigation being conducted by the Ombudsman under this Act,
unless there is a prima facie evidence that the subject matter of the
investigation is outside the jurisdiction of the Office of the
Ombudsman.
• No court shall hear any appeal or application for remedy against the
decision or findings of the Ombudsman, except the Supreme Court,
on pure question of law. (Sec. 14, R.A. No. 6770)
• The second paragraph of Section 14 of Republic Act No. 6770 is
declared UNCONSTITUTIONAL, while the policy against the issuance
of provisional injunctive writs by courts other than the Supreme
Court to enjoin an investigation conducted by the Office of the
Ombudsman under the first paragraph of the said provision is
declared INEFFECTIVE until the Court adopts the same as part of the
rules of procedure through an administrative circular duly issued
therefor. (Conchita Carpio Morales v. Court of Appeals [Sixth Division],
GR Nos. 217126-27, November 10, 2015, En Banc [Perlas-Bernab
• In all administrative disciplinary cases, orders, directives, or decisions of
the Office of the Ombudsman may be appealed to the Supreme Court by
filing a petition for certiorari within ten (10) days from receipt of the
written notice of the order, directive or decision or denial of the motion for
reconsideration in accordance with Rule 45 of the Rules of Court.
• This provision was declared unconstitutional by the Supreme Court in
Fabian v. Desierto, 356 Phil. 787 [1998], as it contravened Section 30,
Article VI of the Constitution. In effect the provision increased the
appellate jurisdiction of the Supreme Court without its consent under
that provision. Henceforth, decisions of the Ombudsman in
administrative cases should be filed with the Court of Appeals under that
ruling.
The Law on Nepotism
• Under the definition of nepotism, one is guilty of nepotism if an
appointment is issued in favor of a relative within the third civil degree of
consanguinity or affinity of any of the following:
• a) appointing authority;
b) recommending authority;
c) chief of the bureau or office; and
d) person exercising immediate supervision over the appointee.
• Clearly, there are four situations covered. In the last two mentioned
situations, it is immaterial who the appointing or recommending authority
is. To constitute a violation of the law, it suffices that an appointment is
extended or issued in favor of a relative within the third civil degree of
consanguinity or affinity of the chief of the bureau or office, or the person
exercising immediate supervision over the appointee. (CSC v. Pedro O.
Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])
Exceptions
• The following are exempted from the operation of the rules on
nepotism: (a) persons employed in a confidential capacity, (b)
teachers, (c) physicians, and (d) members of the Armed Forces of the
Philippines.
• The rules on nepotism shall likewise not be applicable to the case of a
member of any family who, after his or her appointment to any
position in an office or bureau, contracts marriage with someone in
the same office or bureau, in which event the employment or
retention therein of both husband and wife may be allowed. (Sec. 59,
Chap. 7, Subtitle A, Title I, Bk. V, E.O. No. 292)
• Jurisprudential law (Reyes v. Delim, 368 SCRA 323, 333 [2001]; Yabut
v. Office of the Ombudsman, 233 SCRA 310, 316-317 [1994]; Beja, Sr.
v. Court of Appeals, 207 SCRA 689, 694 [1992]) establishes a clear-cut
distinction between suspension as preventive measure and
suspension as penalty. The distinction, by considering the purpose
aspect of the suspensions, is readily cognizable as they have different
ends to be achieved.
• Preventive suspension is merely a preventive measure, a preliminary
step in an administrative investigation. The purpose of the suspension
order is to prevent the accused from using his position and the
powers and prerogatives of his office to influence potential witnesses
or tamper with records which may be vital in the prosecution of the
case against him. If after such investigation, the charge is established
and the person investigated is found guilty of acts warranting his
suspension or removal, then he is suspended, removed or dismissed.
This is the penalty.
• That preventive suspension is not a penalty is in fact explicitly
provided by Section 24 of Rule XIV of the Omnibus Rules
Implementing Book V of the Administrative Code of 1987 (Executive
Order No. 292) and other Pertinent Civil Service Laws.
• En passant, neither may the concept of crediting, criminal law,
preventive imprisonment in the service of a convict’s term of
imprisonment (Article 29 of the Revised Penal Code) be applied to
preventive suspension during investigation in administrative law in
the service of a respondent’s final penalty of suspension. For not only
are they distinct in the objective or purpose, or in their nature as
preventive imprisonment involves restriction of personal liberties
which is not the case with preventive suspension; the respective laws
covering them are explicit. (Quimbo v. Gervacio, 466 SCRA 277, Aug.
9, 2005, 3rd Div. [Carpio-Morales])
The Doctrine of Condonation
• A public official cannot be removed for administrative misconduct
committed during a prior term, since his re-election to office operates
as a condonation of the officer‟s previous misconduct to the extent
of cutting off the right to remove him therefor. The foregoing rule,
however, finds no application to criminal cases pending against
petitioner. (Aguinaldo v. Santos, 212 SCRA 768, 773 [1992])
• The rationale for this holding is that when the electorate put him back
into office, it is presumed that it did so with full knowledge of his life
and character, including his past misconduct. If, armed with such
knowledge, it still reelects him, then such reelection is considered a
condonation of his past misdeeds. (Mayor Alvin B. Garcia v. Hon.
Arturo C. Mojica, et al., G.R. No. 139043, Sept. 10, 1999
[Quisumbing])
Prospective application abandoning Doctrine
of Condonation
• This Doctrine of Condonation was abandoned by the Supreme Court
in the more recent case of Conchita Carpio Morales v. Court of
Appeals (Sixth Division), GR Nos. 217126-27, November 10, 2015, En
Banc (Perlas-Bernabe). However, the abandonment of the doctrine
was given prospective application only.
LOCAL GOVERNMENT
• Local Governments are the Territorial and Political Subdivisions of
the Republic of the Philippines
• The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays.
There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided. (Section 1, Article X, 1987
Constitution)
• Autonomous Regions
• There shall be created autonomous regions in Muslim Mindanao and
in the Cordilleras consisting of provinces, cities, municipalities, and
geographical areas sharing common and distinctive historical and
cultural heritage, economic and social structures, and other relevant
characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of
the Philippines. (Section 15, Article X, 1987 Constitution)
Organic Act
• The Congress shall enact an organic act for each autonomous region
with the assistance and participation of the regional consultative
commission composed of representatives appointed by the President
from a list of nominees from multisectoral bodies.
• The organic act shall define the basic structure of government for the
region consisting of the executive department and legislative
assembly, both of which shall be elective and representative of the
constituent political units. The organic acts shall likewise provide for
special courts with personal, family and property law jurisdiction
consistent with the provisions of this Constitution and national laws.
Effectivity
• The creation of the autonomous region shall be effective when
approved by majority of the votes cast by the constituent units in a
plebiscite called for the purpose, provided that only provinces, cities,
and geographical areas voting favorably in such plebiscite shall be
included in the autonomous region. (Sec. 18, Art. X, 1987
Constitution)
Creation of Local Governments
• The Province of North Cotabato v. The Government of the Republic of
the Philippines Peace Panel, G.R. No. 183591, 568 SCRA 402, October
14, 2008, En Banc (Carpio- Morales)
Method and Criteria
• No province, city, municipality, or barangay may be created, divided,
merged, abolished, or its boundary substantially altered, except in
accordance with the criteria established in the local government
code and subject to approval by a majority of the votes cast in a
plebiscite in the political units directly affected. (Section 10, Article
X, 1987 Constitution)
• Rodolfo G. Navarro, et al. v. Executive Secretary Eduardo Ermita, et al.,
G.R. No. 180050, 12 May 2010, En Banc (Peralta)
• Section 7, Chapter 2 paragraph (c) of the Local Government Code
(LGC), provides that the land area must be contiguous, unless it
comprises two (2) or more islands, or is separated by a local
government unit independent of the others; properly identified by
metes and bounds with technical descriptions; and sufficient to
provide for such basic services and facilities to meet the
requirements of its populace.
• Therefore, there are two requirements for land area: (1) the land area
must be contiguous; and (2) the land area must be sufficient to
provide for such basic services and facilities to meet the requirements
of its populace.
• A sufficient land area in the creation of a province is at least 2,000

square kilometers, as provided by Section 461 of LGC.
Exemption for Territorial Cotinguity
• Hence x x x the requirement of a contiguous territory and the
requirement of a land area of at least 2,000 square kilometers are
distinct and separate requirements for land area under paragraph (a)
(i) of Section 461 and Section 7 (c) of LGC.
• However, paragraph (b) of Section 461 provides two instances of
exemption from the requirement of territorial contiguity, to wit, “the
territory need not be contiguous if it comprises two (2) or more
islands, or is separated by a chartered city or cities which do not
contribute to the income of the province.”
• The exemption above pertains only to the requirement of territorial
contiguity. It clearly states that the requirement of territorial
contiguity may be dispensed with in the case of a province comprising
two or more islands, or is separated by a chartered city or cities which
do not contribute to the income of the province.
• Nowhere in paragraph (b) is it expressly stated or may it be implied
that when a province is composed of two or more islands, or when
the territory of a province is separated by a chartered city or cities,
such province need not comply with the land area requirement of at
least 2,000 square kilometers or the requirement in paragraph (a) (i)
of Section 461 of LGC.
• Where the law is free from ambiguity, the court may not introduce
exceptions or conditions where none is provided from considerations
of convenience, public welfare, or for any laudable purpose; neither
may it engraft into the law qualifications not contemplated, nor
construe its provisions by taking into account questions of
expediency, good faith, practical utility and other similar reasons so as
to relax non-compliance therewith. Where the law speaks in clear and
categorical language, there is no room for interpretation, but only for
application.
Powers of Local Governments
• Powers of Local Governments
• Corporate Powers of Local Governments
• To be considered as a valid police power, an ordinance must pass a
two-pronged test: the formal (i.e., whether the ordinance is enacted
within the corporate powers of the local government unit, and
whether it is passed in accordance with the procedure prescribed by
law); and the substantive (i.e., involving inherent merit, like the
conformity of the ordinance with the limitations under the
Constitution and the statutes, as well as with the requirements of
fairness and reason, and its consistency with public policy).
• The formalities in enacting an ordinance are laid down in Section 53 and Section
54 of The Local Government Code.
• These provisions require the ordinance to be passed by the majority of the
members of the sanggunian concerned, and presented to the mayor for approval.
X x x.
• The corporate powers of the local government unit confer the basic authority to
enact legislation that may interfere with personal liberty, property, lawful
businesses and occupations in order to promote the general welfare. Such
legislative powers spring from the delegation thereof by Congress through either
the Local Government Code or a special law. The General Welfare Clause in
Section 16 of the Local Government Code embodies the legislative grant that
enables the local government unit to effectively accomplish and carry out the
declared objects of its creation, and to promote and maintain local autonomy. X x
x.
• Section 16 comprehends two branches of delegated powers,
• namely: the general legislative power and the police power proper. General
legislative power refers to the power delegated by Congress to the local
legislative body, or the Sangguniang Panlungsod in the case of Davao City,
to enable the local legislative body to enact ordnances and make
regulations. This power is limited in that the enacted ordinances must not
be repugnant to law, and the power must be exercised to effectuate and
discharge the powers and duties legally conferred to the local legislative
body. The police power, on the other hand, authorizes the local
government unit to enact ordinances necessary and proper for the health
and safety, prosperity, morals, peace, good order, comfort, and
convenience of the local government unit and its constituents, and for the
protection of their property.
• Section 458 of the Local Government Code explicitly vests the local
government unit with the authority to enact ordinances aimed at
promoting the general welfare x x x.
• In terms of the right of the citizens to health and to a balanced and
healthful ecology, the local government unit takes its cue from Section 15
and Section 16, Article II of the 1987 Constitution. Following the provisions
of the Local Government Code and the Constitution, the acts of the local
government unit designed to ensure the health and lives of its constituents
and to promote a balanced and healthful ecology are well within the
corporate powers vested in the local government unit. X x x. (Wilfredo
Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, et al.,
G.R. No. 189185, August 16, 2016, En Banc [Bersamin])
• Requisites of a Valid Ordinance
• A valid ordinance must not only be enacted within the corporate powers of
the local government and passed according to the procedure prescribed by
law. In order to declare it as a valid piece of local legislation, it must also
comply with the following substantive requirements, namely: ]
• (1) it must not contravene the Constitution or any statute; (2) it must be
fair, not oppressive; (3) it must not be partial or discriminatory; (4) it must
not prohibit but may regulate trade; (5) it must be general and consistent
with public policy; and (6) it must not be unreasonable. (Wilfredo
Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, et al.,
G.R. No. 189185, August 16, 2016, En Banc [Bersamin])
• Requisites for a Proper Exercise by Local Governments of Police Power
• In the State‟s exercise of police power, the property rights of
individuals may be subjected to restraints and burdens in order to
fulfill the objectives of the Government. A local government unit is
considered to have properly exercised its police power only if it
satisfies the following requisites, to wit: (1) the interests of the public
generally, as distinguished from those of a particular class, require the
interference of the State; and (2) the means employed are reasonably
necessary for the attainment of the object sought to be accomplished
and not unduly oppressive. The first requirement refers to the Equal
Protection Clause of the Constitution, the second, to the Due Process
Clause of the Constitution.
• Substantive due process requires that a valid ordinance must have a
sufficient justification for the Government‟s action. \
• This means that in exercising police power the local government unit must
not arbitrarily, whimsically or despotically enact the ordinance regardless
of its salutary purpose.
• So long as the ordinance realistically serves a legitimate public purpose,
and it employs means that are reasonably necessary to achieve that
purpose without unduly oppressing the individuals regulated, the
ordnances must survive a due process challenge. (Wilfredo Mosqueda, et
al. v. Pilipino Banana Growers & Exporters Association, et al., G.R. No.
189185, August 16, 2016, En Banc [Bersamin])
Limitation on Term of Office of Local Elective
Officials
• Limitation on Term of Office of Local Elective Officials
• The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such
official shall serve for more than three consecutive terms. Voluntary
renunciation of office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for
which he was elected. (Section 8, Article X, 1987 Constitution)
Term Limits
• The term limit for elective local officials must be taken to refer to the
right to be elected as well as the right to serve in the same elective
position.
• Consequently, it is not enough that an individual has served three
consecutive terms in an elective local office, he must also have been
elected to the same position for the same number of times before
the disqualification can apply. (Borja, Jr. v. COMELEC and Capco, Jr.,
G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza])
• The two conditions for the application of the disqualification
provision are:
• (1) that the local official concerned has been elected three
consecutive times for the same position; and (2) that he has fully
served three consecutive terms. Absent one or both of these two
conditions, the disqualification may not yet apply. (Borja, Jr. v.
COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA
157, En Banc [Mendoza])
• What are the policies embodied in the constitutional provision barring
elective local officials, with the exception of barangay officials, from serving
more than three consecutive terms?
• To prevent the establishment of political dynasties is not the only policy
embodied in the constitutional provision in question (barring elective
local officials, with the exception of barangay officials, from serving more
than three consecutive terms). The other policy is that of enhancing the
freedom of choice of the people. To consider, therefore, only stay in
office regardless of how the official concerned came to that office –
whether by election or by succession by operation of law – would be to
disregard one of the purposes of the constitutional provision in question.
(Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295
SCRA 157, En Banc [Mendoza])
• Socrates v. COMELEC (November 12, 2002)
• What is prohibited by the Constitution is after serving three (3)

consecutive terms to the same position a local elective official shall
run for immediate reelection. Any subsequent reelection, like a recall
election, is no longer covered by the provision, for as long as it is not
an immediate reelection after serving the three (3) consecutive
terms.
• Mendoza v. COMELEC (December 17, 2002)
• Service of the recall term, since it is less than three (3) years, is not
to be considered as one full term for purposes of applying the
disqualification under Section 8, Article X of the Constitution.
• Is the preventive suspension of an elected local government official an
interruption of his term of office for purposes of the three-term limit rule?
• The “interruption” of a term exempting an elective official from the three-term
limit
• rule is one that involves no less than the involuntary loss of title to office. The
elective official must have involuntarily left his office for a length of time,
however short, for an effective interruption to occur. Thus, based on this
standard, loss of office by operation of law, being involuntary, is an effective
interruption of service within a term. On the other hand, temporary inability or
disqualification to exercise the functions of an elective post, even if involuntary,
should not be considered an effective interruption of a term because it does not
involve the loss of title to office or at least an effective break from holding office;
the office holder, while retaining title, is simply barred from exercising the
functions of his office for a reason provided by law.
• An interruption occurs when the term is broken because the office
holder lost the right to hold on to his office, and cannot be equated
with the failure to render service. The latter occurs during an office
holder‟s term when he retains title to the office but cannot exercise
his functions for reasons established by law. Of course, the term
“failure to serve” cannot be used once the right to office is lost;
without the right to hold office or serve, then no service can be
rendered so that none is really lost.
• To put it differently, Sec. 8, Art. X fixes an elective official‟s term of office and
limits his stay in office to three consecutive terms as an inflexible rule that is
stressed no less, by citing involuntary renunciation as an example of a
circumvention. The provision should be read in the context of interruption of
term, not in the context of interrupting the full continuity of the exercise of the
powers of the elective position. The “voluntary renunciation” it speaks of refers
only to the elective official‟s voluntary relinquishment of office and loss of title to
his office. It does not speak of the temporary “cessation of the exercise of power
or authority” that may occur for various reasons, with preventive suspension
being only one of them.
• In all cases of preventive suspension, the suspended official is barred from
performing the functions of his office and does not receive salary in the
meanwhile, but does not vacate and lose title to his office; loss of office is a
consequence that only results upon an eventual finding of guilt or liability.
(Aldovino, Jr. v. COMELEC, G.R. No. 184836, Dec. 23, 2009, En Banc [Brion])
• Recall
• Recall is a mode of removing a local elective official from his post
even before the end of his term on the ground of loss of confidence.
• There is only one ground for Recall: Loss of Confidence
• Loss of confidence as a ground for recall is a political question and
therefore, not subject to judicial review. (Evardone v. COMELEC) After
all, as explained by the Court in that case, the initiation of the recall
process is not the recall itself. There will still be conducted a special
recall election and, in that special recall election, it will be known
whether the people still have confidence in the local elective official
sought to be recalled or whether they no longer have confidence in
him.
• Way of Initiating Recall
• Under current and existing laws, there is only one way of initiating
recall and that is, through a petition to be signed by the registered
voters of the local government unit concerned because of the
enactment by Congress of R.A. No. 9244 (Abolishing the Preparatory
Recall Assembly as a Mode of Initiating Recall) on February 18, 2004.
• A petition signed by just one person is in violation of the minimum
statutory requirement of initiating recall. (Angubung v. COMELEC)
• ELECTION LAWS
• Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age,
and who shall have resided in the Philippines for at least one year and
in the place wherein they propose to vote for at least six months
preceding the election. No literacy, property, or other substantive
requirement shall be imposed on the exercise of suffrage. (Section 1,
Article V, 1987 Constitution)
• The Right of Suffrage
• Kabataan Party-list, et al., v. Commission on Elections, G.R. No.
221318, December 16, 2015, En Banc (Perlas-Bernabe)
• “With these considerations in mind, petitioners‟ claim that
biometrics validation imposed under RA 10367, and implemented
under COMELEC Resolution Nos. 9721, 9863, 10013, must perforce
fail. To reiterate, this requirement is not a “qualification” to the
exercise of the right of suffrage, but a mere aspect of the registration
procedure, of which the State has the right to reasonably regulate. It
was institutionalized conformant to the limitations of the 1987
Constitution and is a mere complement to the Existing Voter‟s
Registration Act of 1996.
• “Thus, unless it is shown that a registration requirement rises to the
level of a literacy, property or other substantive requirement as
contemplated by the Framers of the Constitution – that is, one which
propagates a socio-economic standard which is bereft of any rational
basis to a person‟s ability to intelligently cast his vote and to further
the public good – the same cannot be struck down as
unconstitutional, as in this case.”
• Applying the Strict Scrutiny Test to RA 10367
• “Petitioners assert that biometrics validation gravely violates the
Constitution, considering that, applying the strict scrutiny test, it is
not poised with compelling reason for state regulation and hence, an
unreasonable deprivation of the right to suffrage. X x x
• “In terms of judicial review of statutes or ordinances, strict scrutiny refers
to the standard for determining the quality and the amount of
governmental interest brought to justify the regulation of fundamental
freedoms. Strict scrutiny is used today to test the validity of laws dealing
with the regulation of speech, gender, or race as well as other fundamental
rights as expansion from its earlier applications to equal protection. X x x
the United States Supreme Court has expanded the scope of scrutiny to
protect fundamental rights such as suffrage, judicial access, and interstate
travel.
• “Applying strict scrutiny, the focus is on the presence of compelling, rather
than substantial, governmental interest and on the absence of less
restrictive means for achieving that interest, and the burden befalls upon
the State to prove the same.
• In this case, respondents have shown that the biometrics validation
requirement under RA 10367 advances a compelling state interest. It
was precisely designed to facilitate the conduct of orderly, honest,
and credible elections by containing – if not eliminating, the perennial
problem of having flying voters, as well as dead and multiple
registrants. X x x the objective of the law was to cleanse the national
voter registry so as to eliminate electoral fraud and ensure that the
results of the elections were truly reflective of the genuine will of the
people. The foregoing consideration is unquestionably a compelling
state interest.
• “Also, it was shown that the regulation is the least restrictive means for
achieving the above-said interest. Section 6 of Resolution 9721 sets the
procedure for biometrics validation x x x. It is, in effect, a manner of
updating one‟s registration for those already registered under RA 8189, or
a first-time registration for new registrants. The re-registration process is
amply justified by the fact that the government is adopting a novel
technology like biometrics in order to address the bane of electoral fraud
that has enduringly plagued the electoral exercises in this country. While
registrants may be inconvenienced by waiting in long lines or by not being
accommodated on certain days due to heavy volume of work, these are
typical burdens of voting that are remedied by bureaucratic improvements
to be implemented by the COMELEC as an administrative institution. By
and large, the COMELEC has not turned a blind eye to these realities. It has
tried to account for the exigencies x x x.
• Makalintal v. COMELEC
• There is now an exception to the residence qualification of a voter under
Section 1, Article V on Suffrage of the Constitution, and that is, with
respect to overseas Filipinos, permanent residents of a foreign country
under R.A. No. 9189 (The Absentee Voters Act of 2003). Under said Act,
overseas Filipinos, permanent residents in a foreign country, are now
allowed to register and vote before our embassies and consulates abroad
for President, Vice- President, Senators, and Party-list Representative.
There is a clear intent on the part of the framers of our Constitution to
enfranchise as many of our overseas countrymen in recognition of their
tremendous contributions to the national economy in terms of dollar
remittances. It is but fair that their voices should be heard on who should
be our national leaders.
• Effect of Filing Certificate of Candidacy
• What is the purpose of the law in requiring the filing of certificate of
candidacy and in fixing the time limit therefor?
• The evident purpose of the law in requiring the filing of certificate of
candidacy and in fixing the time limit therefor are: (a) to enable the voters
to know, at least sixty days before the regular election, the candidates
among whom they are to make the choice, and (b) to avoid confusion and
inconvenience in the tabulation of the votes cast. For if the law did not
confine the choice or election by the voters to the duly registered
candidates, there might be as many persons voted for as there are voters,
and votes might be cast even for unknown or fictitious persons as a mark
to identify the votes in favor of a candidate for another office in the same
election. (Miranda v. Abaya, G.R. No. 136351, July 28, 1999)
• May a disqualified candidate and whose certificate of candidacy was denied due
course and/or canceled by the COMELEC be validly substituted?
• Even on the most basic and fundamental principles, it is readily understood that
the concept of a substitute presupposes the existence of the person to be
substituted, for how can a person take the place of somebody who does not exist
or who never was. The Court has no other choice but to rule that in all instances
enumerated in Section 77 of the Omnibus Election Code, the existence of a valid
certificate of candidacy seasonably filed is a requisite sine qua non.
• All told, a disqualified candidate may only be substituted if he had a valid
certificate of candidacy in the first place because, if the disqualified candidate did
not have a valid and seasonably filed certificate of candidacy, he is and was not a
candidate at all. If a person was not a candidate, he cannot be substituted under
Section 77 of the Code. (Miranda v. Abaya, G.R. No. 136351, July 28, 1999, en
Banc [Melo])
• Effect of Disqualification Case
• Abandoning the Doctrine of the Rejection of the Second-Placer
• Resolving the third issue necessitates revisiting Topacio v. Paredes
which is the jurisprudential spring of the principle that a second-
placer cannot be proclaimed as the winner in an election contest. This
doctrine must be re-examined and its soundness once again put to
the test to address the ever-recurring issue that a second placer who
loses to an ineligible candidate cannot be proclaimed as the winner in
the elections.
• An ineligible candidate who receives the highest number of votes is a
wrongful winner. By express legal mandate, he could not even have been a
candidate in the first place, but by virtue of the lack of material time or any
other intervening circumstances, his ineligibility might not have been
passed upon prior to election date. Consequently, he may have had the
opportunity to hold himself out to the electorate as a legitimate and duly
qualified candidate. However, notwithstanding the outcome of the
elections, his ineligibility as a candidate remains unchanged. Ineligibility
does not only pertain to his qualifications as a candidate but necessarily
affects his right to hold public office. The number of ballots cast in his favor
cannot cure the defect of failure to qualify with the substantive legal
requirements of eligibility to run for public office. (Casan Macode
Maquiling v. COMELEC, et al., G.R. No. 195649, April 16, 2013, En Banc
[Sereno, CJ])
• With Arnado‟s disqualification, Maquiling then becomes the winner
in the election as he obtained the highest number of votes from
among the qualified candidates. We have ruled in the recent cases of
Aratea v. COMELEC and Jalosjos v. COMELEC that a void COC cannot
produce any legal effect. Thus, the votes cast in favor of the ineligible
candidate are not considered at all in determining the winner of an
election.
• Even when the votes for the ineligible candidate are disregarded, the
will of the electorate is still respected, and even more so. The votes
cast in favor of an ineligible candidate do not constitute the sole and
total expression of the sovereign voice. The votes cast in favor of
eligible and legitimate candidates form part of that voice and must
also be respected.
• As in any contest, elections are governed by rules that determine the
qualifications and disqualifications of those who are allowed to
participate as players. When there are participants who turn out to be
ineligible, their victory is voided and the laurel is awarded to the next
in rank who does not possess any of the disqualifications nor lacks
any of the qualifications set in the rules to be eligible as candidates.
• The electorate‟s awareness of the candidate‟s disqualifications is not
a prerequisite for the disqualification to attach to the candidate. The
very existence of a disqualifying circumstance makes the candidate
ineligible. Knowledge by the electorate of a candidate‟s
disqualification is not necessary before a qualified candidate who
placed second to a disqualified one can be proclaimed as the winner.
The second-placer in the vote count is actually the first-placer among
the qualified candidates.
• That the disqualified candidate has already been proclaimed and has
assumed office is of no moment. The subsequent disqualifications
based on a substantive ground that existed prior to the filing of the
certificate of candidacy voids not only the COC but the proclamation.
• The disqualifying circumstance surrounding Arnado‟s candidacy involves
his citizenship. It does not involve the commission of election offenses as
provided for in the first sentence of Section 68 of the Omnibus Election
Code, the effect of which is to disqualify the individual from continuing as a
candidate, or if has already been elected, from holding the office.
• The disqualifying circumstance affecting Arnado is his citizenship. X x x
Arnado was both a Filipino and an American citizen when he filed his
certificate of candidacy. He was a dual citizen disqualified to run for public
office based on Section 40(d) of the Local Government Code.
• With Arnado being barred from even becoming a candidate, his certificate
of candidacy is thus rendered void from the beginning. It could not have
produced any other legal effect x x x.
• To hold that such proclamation is valid is to negate the prohibitory
character of the disqualification which Arnado possessed even prior
to the filing of the certificate of candidacy. The affirmation of
Arnado‟s disqualification, although made long after the elections,
reaches back to the filing of the certificate of candidacy. Arnado is
declared to be not a candidate at all in the May 2010 elections.
• Arnado being not a candidate, the votes cast in his favor should not
have been counted. This leaves Maquiling as the qualified candidate
who obtained the highest number of votes therefore, the rule on
succession under the Local Government Code will not apply. (Casan
Macode Maquiling v. COMELEC, et al., G.R. No. 195649, April 16,
2013, En Banc [Sereno, CJ])
PUBLIC INTERNATIONAL LAW
Jus Cogens Norms and Erga Omnes Obligations
• Just cogens literally means “compelling law.” As defined, it means a
peremptory (mandatory) norm of general international law which is
recognized and accepted by the international community of States as a
norm that does not permit of any derogation and which can be replaced or
modified only by a subsequent norm of the same character.
• Under the Vienna Convention on the Law of Treaties, a treaty that violates
a jus cogens norm will have to be invalidated.
• Erga omnes literally means “in relation to the whole.” An erga omnes refers
to an obligation of a State towards the international community of States
as a whole.
• Between an erga omnes obligation and an obligation of a State towards
another State pursuant to a treaty, an erga omnes is superior.
• However, in Vinuya, et. al. v. The Honorable Executive Secretary Alberto G.
Romulo, et. al., (G.R. No. 162230, April 28. 2010, En Banc [Del Castillo]), the SC
clarified that there is yet no consensus on the proper criteria for identifying
peremptory norms. It held:
• Even the invocation of jus cogens norms and erga omnes obligations will not alter
this analysis. Even if we sidestep the question of whether jus cogens norms
existed in 1951, petitioners have not deigned to show that the crimes committed
by the Japanese army violated jus cogens prohibitions at the time the Treaty of
Peace was signed, or that the duty to prosecute perpetrators of international
crimes is an erga omnes obligation or has attained the status of jus cogens.
• The term erga omnes (Latin: in relation to everyone) in international law has been
used as a legal term describing obligations owed by States towards the
community of states as a whole. The concept was recognized by the ICJ in
Barcelona Traction x x x.
• The Doctrine of Incorporation
• The Province of North Cotabato v. The Government of the Republic of the Philippines
Peace Panel, G.R. No. 183591, 568 SCRA 402, October 14, 2008, En Banc (Carpio-
Morales)
• The right to self-determination of peoples has gone beyond mere treaty or convention;
in fact, it has now been elevated into the status of a generally accepted of international
law. However, this right to self-determination of peoples may be understood in two
senses, i.e., the right to internal self-determination (a people‟s pursuit of its own
political, economic, social and cultural development within the framework of an existing
State), and the right to external self- determination (which consists of the assertion of a
right to unilateral secession). But, as normally understood in international law, this right
to self-determination merely refers to the right to internal self-determination. The right
to external self-determination, may be invoked only in extreme cases, i.e., in case of
people under colonial rule, or in case of people under foreign domination or exploitation
outside of a colonial context.
• The State
• The Concept of an Association or Associated State
• An association is formed when two states of unequal power
voluntarily establish durable links. In the basic model, one state, the
associate, delegates certain responsibilities to the other, the principal,
while maintaining its international status as a state. Free associations
represent a middle ground between integration and independence.
Examples of states which maintain an associated state relationship
with the United States are the newly-formed states of Micronesia and
the Marshall Islands in the Pacific.
• In international practice, the “associated state” arrangement has
usually been used as a transitional device of former colonies on their
way to full independence. Examples of states that have passed
through the status of associated states as a transitional phase are
Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and
Grenada. All have since become independent states. (The Province of
North Cotabato v. The Government of the Republic of the Philippines
Peace Panel, G.R. No. 183591, 568 SCRA 402, October 14, 2008, En
Banc [Carpio-Morales])
• The Concept of “Association” is not recognized under the 1987 Philippine
Constitution
• The 1987 Constitution provides that no province, city, or municipality, not
even the Autonomous Region for Muslim Mindanao (ARMM) is recognized
under our laws as having an “associative” relationship with the national
government. Indeed, the concept implies powers that go beyond anything
ever granted by the Constitution to any local or regional government. It
also implies the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this jurisdiction
other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for
independence. (The Province of North Cotabato v. The Government of the
Republic of the Philippines Peace Panel, G.R. No. 183591, 568 SCRA 402,
October 14, 2008, En Banc [Carpio-Morales])
• Sovereignty as an Element of a State
• Is sovereignty really absolute and all-encompassing? If not, what are its
restrictions and limitations?
• While sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is however subject to restrictions
and limitations voluntarily agreed to by the Philippines, expressly or
impliedly, as a member of the family of nations. By the doctrine of
incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our own
laws. One of the oldest and most fundamental rules in international law is
pacta sunt servanda – international agreements must be performed in
good faith. A state which has contracted valid international obligations is
bound to make in its legislations such modifications as may be necessary to
ensure the fulfillment of the obligations.
• By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of their
state power in exchange for greater benefits granted by or derived from a
convention or pact. After all, states, like individuals, live with coequals, and in
pursuit of mutually covenanted objectives and benefits, they also commonly
agree to limit the exercise of their otherwise absolute rights. Thus, treaties have
been used to record agreements between States concerning such widely diverse
matters as, for example, the lease of naval bases, the sale or cession of territory,
the termination of war, the regulation of conduct of hostilities, the formation of
alliances, the regulation of commercial relations, the settling of claims, the laying
down of rules governing conduct in peace and the establishment of international
organizations. The sovereignty of a state therefore cannot in fact and in reality be
considered absolute. Certain restrictions enter into the picture: (1) limitations
imposed by the very nature of membership in the family of nations and (2)
limitations imposed by treaty stipulations. (Tanada v. Angara, 272 SCRA 18, May 2,
1997 [Panganiban])
• Extradition and Asylum Nationality and Statelessness
• Refugees
• A refugee is a person who, owing to a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of his
nationality and is unable or owing to such fear, is unwilling to avail himself
of the protection of that country; or who, not having a nationality and
being outside the country of his former habitual residence, is unable or, or
owing to such fear, is unwilling to return to it. (Convention Relating to the
Status of Refugees, Art. 1 A[2]) (Magallona, Fundamentals of Public
International Law, 2005 Ed., p. 287)
• The Non-Refoulement Principle
• The right of a refugee not to be expelled or returned “in any manner
whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.” The
prohibition of such expulsion or return becomes an obligation of
States parties to the Convention Relating to the Status of Refugees.
(Magallona, Fundamentals of Public International Law, 2005 Ed., p.
289)
• The Law on Treaties
• Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr.,
G.R. No. 212426, January 12, 2016, En Banc (Sereno, CJ)
• The Doctrine of State Responsibility to Aliens
• An important premise for this doctrine to be validly invoked is that a
State is under no legal obligation in international law to admit an alien
in its territory. However, the moment it admits an alien, it is duty-
bound to provide protection to that alien so that once the State is
remiss in the performance of this duty and the alien dies, or suffers
injury or loss, this could lead to liability on the part of the State.
• International Humanitarian Law (IHL)
• International humanitarian law is the branch of public international
law which governs armed conflicts to the end that the use of violence
is limited and that human suffering is mitigated or reduced by
regulating or limiting the means of military operations and by
protecting persons who do not or no longer participate in the
hostilities. (Magallona, Fundamentals of Public International Law,
2005 ed., p. 291)
• International Humanitarian Law (IHL) encompasses both
humanitarian principles and international treaties that seek to save
lives and alleviate suffering of combatants and noncombatants during
armed conflict. Its principal legal documents are the Geneva
Conventions of 1949, four treaties signed by almost every nation in
the world. The Conventions define fundamental rights for combatants
removed from the fighting due to injury, illness, or capture, and for
civilians. The 1977 Additional Protocols, which supplement the
Geneva Conventions, further expand those rights.
• These are:
• (1) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field of August 12, 1949 (First Geneva Convention);
• (2) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea of August 12, 1949 (Second Geneva
Convention);
• (3) Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949
(Third Geneva convention);
• (4) Geneva Convention Relative to the Protection of Civilian Persons in Time of War of
August 12, 1949 (Fourth Geneva Convention);
• (5) Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the
Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977; and
• (6) Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977.
• IHL is not concerned with the lawfulness or unlawfulness of armed conflict.
In violation of the prohibition against the threat or use of force under
international law, a state may engage in armed attack against another
state, resulting in armed conflict between them. The application of IHL in
their conflict pertains solely to the fact of armed conflict as the use of force
remains unlawful. Armed conflict, in which IHL properly applies, may arise
from a legitimate use of force as when a multinational force of UN
members engages in armed attack against a State by authority of the UN
Security Council as an enforcement measure under Article 42 of the UN
Charter. In either case, there will be victims of the conflict who must come
under the protection of IHL, and there may be methods of warfare which
may come under the prohibition of IHL. Hence, the issue of lawfulness or
unlawfulness of the armed conflict is of no legal importance from the
standpoint of IHL. (Magallona, Fundamentals of Public International Law,
2005 ed., p. 293)
• The Principle of Distinction
• An important principle to be observed under IHL is the Principle of
Distinction. Under this principle, persons directly engaged in armed
conflict must, at all times, distinguish between civilians and
combatants; between civilian objects and military objectives, so that
only combatants and military objectives may be subject of attack.
• War of National Liberation
• An armed conflict may be of such nature in which “peoples are
fighting against colonial domination and alien occupation and against
racist regimes in the exercise of their right of self- determination.”
• This conflict involving the right of peoples to self-determination is an
international armed conflict. It is so classified under Article I,
paragraphs 3 and 4 of Protocol I. Under these provisions, this conflict
which may be referred to as “war of national liberation,” is included in
the classification set out in Article 2 common to the four Geneva
Conventions of 1949 x x x. (Magallona, Fundamentals of Public
International Law, 2005 ed., p. 307)
• The International Criminal Court (ICC)
• The Rome Statute
• The Rome Statute established the International Criminal Court which “shall have
the power to exercise its jurisdiction over persons for the most serious crimes of
international concern x x x and shall be complementary to the national criminal
jurisdictions.” (Article I, Rome Statute) Its jurisdiction covers the crime of
genocide, crimes against humanity, war crimes and the crime of aggression as
defined in the Statute (Article 5, Rome Statute). The Statute was opened for
signature by all States in Rome on July 17, 1988 and had remained open for
signature until December 31, 2000 at the United Nations Headquarters in New
York. The Philippines signed the Statute on December 28, 2000 x x x. Its
provisions, however, require that it be subject to ratification, acceptance or
approval of the signatory states (Article 25, Rome Statute). (Pimentel, Jr. v. Office
of the Executive Secretary, 462 SCRA 622, July 6, 2005, En Banc [Puno])
• What offenses fall under the jurisdiction of the International Criminal
Court (ICC)?
• The International Criminal Court (ICC) shall have the power to
exercise jurisdiction over persons for the most serious crimes of
international concern. Its jurisdiction covers the crime of genocide,
crimes against humanity, war crimes and the crime of aggression as
defined in the Statute (Article 5, Rome Statute). (Pimentel, Jr. v. Office
of the Executive Secretary, 462 SCRA 622, July 6, 2005, En Banc
[Puno])
• What is the Principle of Complementarity in the Statute of the
International Criminal Court (ICC)?
• The tenth preambular paragraph of the ICC Statute emphasizes that
“the International Criminal Court x x x shall be complementary to
national criminal jurisdiction.” This principle becomes operative in
Article 1 of the Statute. This, however, has to be correlated with the
sixth preambular paragraph of the Statute which declares that “it is
the duty of every State to exercise its criminal jurisdiction over those
responsible for international crimes.” The principle of
complementarity produces a correlation of the ICC jurisdiction with
that of every state over international crimes under the ICC Statute.
• The principle of complementarity gives primacy to national
jurisdiction x x x.
• The principle of ne bis in idem in Article 20, paragraph 3, of ICC
Statute strengthens complementarity, thus: Unless the proceedings in
the national court is for the purpose of shielding the person
concerned from liability, or not conducted independently or
impartially, “no person who has been tried by another court for
conduct ... [constituting crimes within its jurisdiction] shall be tried by
the Court with respect to the same conduct x x x.” (Magallona,
Fundamentals of Public International Law [2005 ed.])
• The Law of the Sea
• The international law of the sea is generally defined as “a body of treaty
rules and customary norms governing the uses of the sea, the exploitation
of its resources, and the exercise of jurisdiction over maritime regimes. It is
a branch of public international law, regulating the relations of states with
respect to the uses of the oceans.” (Merlin M. Magallona, A Primer on the
Law of the Sea, 1997, p. 1) The UNCLOS is a multilateral treaty which was
opened for signature on December 10, 1982 at Montego Bay, Jamaica. It
was ratified by the Philippines in 1984 but came into force on November
16, 1994 upon the submission of the 60th ratification.
• The UNCLOS is a product of international negotiation that seeks to balance
State sovereignty (mare clausum) and the principle of freedom of the
• The UNCLOS is a product of international negotiation that seeks to balance State
sovereignty (mare clausum) and the principle of freedom of the high seas (mare
liberum). The freedom to use the world‟s marine waters is one of the oldest
customary principle of international law (Anne Bardin, “Coastal State‟s
Jurisdiction Over Foreign Vessels” 14 Pace Int‟l. Rev. 27, 28 [2002]). The UNCLOS
gives to the coastal State sovereign rights in varying degrees over the different
zones of the sea which are: 1) internal waters, 2) territorial sea, 3) contiguous
zone, 4) exclusive economic zone, and 5) the high seas. It also gives coastal States
more or less jurisdiction over foreign vessels depending on where the vessel is
located (Id. At 29).
• Insofar as the internal waters and territorial sea is concerned, the Coastal States
exercises sovereignty, subject to the UNCLOS and other rules of international law.
Such sovereignty extends to the air apace over the territorial sea as well as to its
bed and subsoil (Art. 2, UNCLOS). (Most Rev. Pedro D. Arigo, et al. v. Scott H.
Swift, et al., G.R. No. 206510, September 16, 2014, En Banc [Villarama, Jr.])
• International Environmental Law
• Background Information
• The Convention on Biological Diversity (CBD)
• On December 29, 1993, the Convention on Biological Diversity (CBD) came into
force. This multilateral treaty recognized that “modern biotechnology has great
potential for human well-being if developed and used with adequate safety
measures for the environment and human health.” Its main objectives, as spelled
out in Article I, are the “conservation of biological diversity, the sustainable use of
its components and the fair and equitable sharing of the benefits arising out of
the utilization of genetic resources.” (International Service for the Acquisition of
Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al.,
GR No. 209271, December 8, 2015, En Banc [Villarama])
The Cartagena Protocol
• The precautionary principle originated in Germany in the 1960s,
expressing the normative idea that governments are obligated to
“foresee and forestall” harm to the environment. In the following
decades, the precautionary principle has served as the normative
guideline for policymaking by many national governments. The Rio
Declaration on Environment and Development, the outcome of the
1992 United Nations Conference on Environment and Development
held in Rio de Janeiro, defines the rights of the people to be involved
in the development of their economies, and the responsibilities of
human beings to safeguard the common environment. It states that
the long term economic progress is only ensured if it s linked with the
protection of the environment
• Laude vs. Ginez (2015)
• Article 2, paragraph (3) of the International Covenant on Civil and Political Rights
states: 3. Each State Party to the present Covenant undertakes: (a) To ensure that
any person whose rights or freedoms as herein recognized are violated shall have
an effective remedy, notwithstanding that the violation has been committed by
persons acting in an official capacity; (b) To ensure that any person claiming such
a remedy shall have his right thereto determined by competent judicial,
administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the possibilities of
judicial remedy; (c) To ensure that the competent authorities shall enforce such
remedies when granted. The Philippines, as a State Party, is obligated to comply
with its obligations under the International Covenant on Civil and Political Rights.
To do otherwise would be to ignore completely the nature of the obligation
contemplated by the provision in an attempt to justify their failure to comply with
a domestic procedural rule aimed to protect a human right in a proceeding, albeit
that of the adverse part
• The obligation contemplated by Article 2, paragraph (3) is for the State
Party to establish a system of accessible and effective remedies through
judicial and administrative mechanisms. The present trial of Pemberton,
indicates that there is a legal system of redress for violated rights. That
petitioners chose to act on their own, in total disregard of the mechanism
for criminal proceedings established by this court, should not be tolerated
under the guise of a claim to justice. This is especially in light of petitioners’
decision to furnish the accused in the case a copy of her Motion only
during the hearing. Upholding human rights pertaining to access to justice
cannot be eschewed to rectify an important procedural deficiency that was
not difficult to comply with. Human rights are not a monopoly of
petitioners. The accused also enjoys the protection of these rights.

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POLITICAL LAW REVIEW

ACADEMIC YEAR 2018-2019

Source: Constitutional Commission Records

Move to change from presidential to parliamentary or federal system?

(1) The Congress, upon a vote of three-fourths of all its Members; or

• Article XVII, SECTION 2. Amendments to this Constitution may likewise be

• The Constitution entrusts to the people the power to directly propose

• Under American jurisprudence, the effect of logrolling is to nullify the

• Question: Voting separately?

Any amendment under Section 2 hereof shall be valid when ratified by

• However, some provisions have already been categorically declared

• By its very title, Article II of the Constitution is a declaration of

• Maritime Baselines Law

• Archipelago is defined as a unit of water studded with islands. Based

1. The sovereignty of an archipelagic State extends to the waters enclosed by the

• Covers islands over which the PH has historic or legal title.

• Treaties become part of the law of the land

• Venice Charter as a guideline and not as law.

• Freedom from Nuclear Weapons

• In the United States, the Foreign Sovereign Immunities Act of 1976

• Necessarily imbedded in this doctrine is the principle of non-delegation of

• Powers and Limitations

• Legislative power is not exclusive to Congress.

• Section 1 in relation to Section 32 reserved for the people ordinary

• 2. Party List Representatives

• The provision draws a plain and clear distinction between the

• Plainly read, Section 5(3) of the Constitution requires a 250,000

• Reapportionment, on the other hand, is the realignment or change

• Thus, the plebiscite requirement that applies to the division of a

1. How many votes must an organization receive in order to qualify for

2. Whether the allocated 20% of the total membership in the House

• No winning party, organization or coalition may have more than 3

• Exception: Grave abuse of discretion, amounting to lack or excess of

• Yes, it has jurisdiction to determine acts of terrorism.

• It can annul the election results in precint to remain faithful to its

• Under the Constitution, the power of appropriation is vested in the

• 2. Posts occupied by Executive Officials specified in Section 13, Article

• 2. Public safety must require it.

• It may include economic crisis, epidemic, typhoon, flood or other

Infraction of laws of the state or ordinary Addressed to political offenses

Must be accepted Need not be accepted

No need for concurrence of Congress Requires the concurrence of Congress

Looks backward and relieves pardonee Looks forward

• Citizenship is not a matter of convenience. It is a badge of identity

• This provision is not self-executing. The word employed by Section 5

• We therefore hold that Arnado, by using his US passport after renouncing

• Mandamus may be availed of to enforce fiscal autonomy.

• Appointments in the civil service shall be made only according to

• Exempt from competitive examination – Positions which are policy

• No officer or employee in the civil service shall engage directly or

• Not allowed to engaged in strike, but entitled to right to self-

• No elective or appointive officer or employee shall receive additional, double or indirect

• Section 79 (B) of the Omnibus Election Code – any act that is

• Relation to International Law

1. Freedom of Belief, whether secular or religious, freedom of

• The Universal Declaration of Human Rights, the International

• Universal Declaration of Human Rights, Article 17

• 1987 Constitution, Article IV, Section 1.

• These three are referred to as the great and inherent powers of

• Agan vs. International Air Terminals, 420 SCRA 575 (2004)

• (2) It must be promulgated in accordance with the prescribed

• (4) It must be reasonable.