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REVIEWER IN POLITICAL LAW
Table of Contents
PART I: CONSTITUTIONAL LAW I

CHAPTER I. THE STATE
I. Territory
A. 1987 Consti, Art. I
B. Treaty of Paris
C. Archipelagic Doctrine
II. People
A. Definitions
B. Citizenship
III. Sovereignty
A. Kinds
B. Theory of Auto-Limitation
C. Dominium v. Imperium
D. Jurisdiction
E. Suits Against the State and
the Doctrine of Sovereign
Immunity
IV. Government
A. Definition
B. Functions
C. Doctrine of Parens Patriae
D. De Jure and De Facto
Governments
CHAPTER II. STRUCTURE AND
POWERS OF GOVERNMENTSEPARATION OF POWERS
I. Legislative Department
A. Nature and Classification of
Legislative Power
B. Composition, Qualifications
and Term of Office
C. Election
D. Salaries, Privileges and
Disqualifications
E. Internal Government of
Congress
F. Electoral Tribunals
G. Commission on
Appointments
H. Powers of Congress
II. Judicial Department
A. In General
B. Supreme Court
C. Judicial and Bar Council
III. Executive Department
A. President
B. Vice-President
IV. Constitutional Commissions
A. Common Provisions
B. Civil Service Commission
C. Commission on Elections
D. Commission on Audit
V. Constitutionally-Mandated
Bodies
A. Sandiganbayan
B. Ombudsman
C. Commission on Human
Rights
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CHAPTER III. NATIONAL

ECONOMY AND PATRIMONY
I. General Principles
A. Goals
B. Citizenship Requirements
C. Filipino First
II. Natural Resources
A. Regalian Doctrine
B. Exploration, Development,
Utilization
C. Stewardship Concept
III. Private Lands
IV. Monopolies
V. Central Monetary Authority
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CHAPTER IV. CURRENT EVENTS

AND SPECIAL TOPICS
I. Party-List System
II. Question Hour v. Inquiries in Aid
of Legislation
III. Executive Privilege
IV. Peoples Initiative
V. Right of Reply Bill
VI. The (Erstwhile) Province of
Shariff Kabunsuan
VII.MOA on Ancestral Domain
(MOA-AD)
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Table of Contents
PART II: CONSTITUTIONAL LAW II

CHAPTER I. BILL OF RIGHTS
I. In General
II. Bases and Purpose
A. Bases
B. Purpose
III. Accountability
CHAPTER II. FUNDAMENTAL
POWERS OF THE STATE
I. Police Power
A. Definition
B. Scope and Limitations
C. Who May Exercise
D. Tests for Validity of Exercise
E. Illustration on the Exercise
II. Eminent Domain
A. Definition
B. Who May Exercise
C. Requisites
III. Taxation
A. Definition and Scope
B. Who May Exercise
C. Limitations
D. Double Taxation
CHAPTER III. DUE PROCESS
I. In General
A. Minimum Requirements
B. Noted Exceptions to Due
Process
II. Substantive Due Process
A. Scope
B. Requisites
C. Doctrines
III. Procedural Due Process
A. Scope
B. Kinds
IV. Due Process as Limitation on
Fundamental State Powers
A. Vis-a-Vis Police Power
B. Vis-a-Vis Eminent Domain
C. Vis-a-Vis Power to Tax
CHAPTER IV. EQUAL PROTECTION
OF THE LAWS
I. Definition and Scope of
Protection
II. Requisites of Valid Classification
III. Examples of Valid Classification
A. Aliens
B. Filipino Female Domestics
Working Abroad
C. Land-Based vs. Sea-Based
Filipino Overseas Workers
D. Qualification for Elective
Office
E. Office of the Ombudsman
F. Print vs. Broadcast Media
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IV. Three Standards of Judicial

Review
A. Rational Basis Test
B. Strict Scrutiny Test
C. Intensified Means Test
CHAPTER V. REQUIREMENTS FOR
FAIR PROCEDURE
I. Nature and Scope of the Right in
Art. III, Sec. 2
II. Arrest
A. Requisites for Issuance of
Valid Arrest Warrant
B. When Arrest May Be Made
without a Warrant
III. Search and Seizure
A. Requisites of a Valid Search
Warrant
B. When Search May Be Made
without Warrant
C. Properties Subject of Seizure
IV. Detention/Custodial
Investigation
A. Rights under Custodial
Investigation
B. Tests of Waiver of Miranda
Rights
V. Other Rights Guaranteed under
Art. III. Sec. 12
VI. Protocol after Conduct of
Investigation
VII.Exclusionary Rules
A. Vis--Vis Violation of the
Right Against Unreasonable
Searches and Seizures
B. Vis--Vis Violation of the
Rights of Persons under
Custodial Investigation
C. Vis--Vis Violation of the
Right Against SelfIncrimination
VIII. Right to Bail
CHAPTER VI.
RIGHTS OF THE
ACCUSED
I. Rights During Trial
A. Presumption of Innocence
B. Right to be Heard Personally
or by Counsel
C. Right to be Informed of
Nature and Cause of
Accusation
D. Right to Speedy, Impartial
and Public Trial
E. Right of Confrontation
F. Right to Compulsory
Processes
G. Trial in Absentia
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H. Right Against SelfIncrimination

II. Rights Post Trial
A. Right Against Double
Jeopardy
B. Excessive Fines and Cruel,
Degrading and Inhuman
Punishment
C. Involuntary Servitude
D. Imprisonment for Debt
E. Ex Post Facto Laws and Bills
of Attainder
CHAPTER VII. WRITS
I. Habeas Corpus
II. Writ of Amparo
III. Habeas Data
CHAPTER VIII. PRIVACY OF
COMMUNICATION AND
CORRESPONDENCE
I. Intrusion, When Allowed
II. Forms of Correspondence
Covered
III. Enabling Law
CHAPTER IX. FREEDOM OF
EXPRESSION
I. Basis, Components, Scope and
Limitations
A. Freedom from Censorship or
Prior Restraint
B. Freedom from Subsequent
Punishment
II. Content-Based Restrictions
A. Tests
B. Applications of Various Tests
in Specific Instances
III. Content-Neutral Restrictions
1. Freedom of Assembly
2. Freedom of Association and
Self-Organization
3. Movie Censorship
4. Broadcast Media
CHAPTER X. FREEDOM OF
RELIGION
I. Non-Establishment Clause
A. Concept
B. Basis
C. Acts NOT permitted by the
Establishment Clause
D. Acts permitted by the
E. Test
II. Free Exercise Clause
A. Dual Aspect
B. Laws Justified under the Free
Exercise Clause
III. Tests
Table of Contents
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A. Clear and Present Danger

Test
B. Compelling State Interest
Test
C. Conscientious Objector Test
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CHAPTER XI. LIBERTY OF ABODE

AND TRAVEL
I. Liberty of Abode
II. Right to Travel
III. Right to Return to Ones Country
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CHAPTER XII.RA 9372: HUMAN

SECURITY ACT
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APPENDIX: B.P. 880
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Table of Contents
PART III: ADMINISTRATIVE LAW

CHAPTER I. PRELIMINARY
CONSIDERATIONS
A. Definitions
B. Historical Considerations
C. Modes of Creation of
Administrative Agencies
D. When is an Agency
Administrative?
E. Types of Administrative Agencies
CHAPTER II. POWERS OF
ADMINISTRATIVE AGENCIES
A. Quasi-legislative (Rule-making)
Powers)
1. Definition
2. Non-delegation doctrine
3. Legislative Delegation
a. Requisites of a valid
delegation
b. A sufficient standard
c. Form of the sufficient
standard
d. Permissible Delegation
B. Quasi-Judicial (Adjudicatory)
Powers
1. Definition
2. Source
3. Requisites for Valid Exercise
4. General Rule
5. What Quasi-Judicial Powers
Include
6. Investigative Powers
7. Subpoena Powers
8. Power to Cite in Contempt
9. Warrants of Arrest
10. Administrative Searches
11. Due Process
12. Notice and Hearing
13. Administrative and Judicial
Proceedings Arising from the
Same Facts
14. Rules of Evidence
C. Determinative Powers
CHAPTER III. JUDICIAL REVIEW
AND ENFORCEMENT OF AGENCY
ACTION
A. Considerations
1. Basis
2. Factors to consider in
Judicial Review
3. Doctrines applicable to
administrative agencies
4. General Rule
5. Exceptions
6. When Judicial Review Is Valid
despite Finality of
Administrative Decisions
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7. Availability of Judicial Review

B. Four Important Doctrines in
Judicial Review
1. Primary Jurisdiction
2. Exhaustion of Administrative
Remedies
3. Qualified Political Agency
4. Ripeness
C. Extent of Judicial Review
1. General Rule
2. General Principles
3. Law-Fact Distinction
4. Question of Law
5. Question of Fact
6. Question of Discretion
D. Modes of Judicial Review
1. Certiorari
2. Prohibition
3. Mandamus
4. Declaratory relief
5. Habeas Corpus
6. Writ of Amparo
7. Habeas Data
8. Injunction as Provisional
Remedy
E. Enforcement of Agency Action
1. Res Judicata; Final Judgment
2. Writ of Execution; Mandamus
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Table of Contents
PART IV: LOCAL GOVERNMENT LAW

CHAPTER I. BASIC PRINCIPLES
I. Principles of Local Government
Law
A. State Policy, Principles of
Decentralization
B. Decentralization
C. Devolution
II. The Local Government Code
A. Effectivity
B. Scope
C. Rules of Interpretation
CHAPTER II. CREATION AND
DISSOLUTION OF LGUs
I. Creation
A. General Provisions
B. Specific Requirements
C. Authority to Create LGUs
D. Creation and Conversion of
LGUs
E. Plebiscite
F. Beginning of Corporate
Existence
II. Division and Merger; Abolition
A. Division and Merger
B. Abolition
III. Settlement of Boundary Disputes
A. Jurisdictional Responsibility
for Settlement of Boundary
Dispute
B. Appeal
C. Maintenance of the Status
Quo
CHAPTER IV. LOCAL INITIATIVE

AND REFERENDUM
A. Definition
B. Requirements
C. Procedure
D. Effectivity of Local Propositions
E. Limitations on Initiatives
F. Limitations upon Local Legislative
Bodies
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CHAPTER V. MUNICIPAL LIABILITY

A. Specific Provisions making LGUs
liable
B. Liability for Torts, Violation of the
Law and Contracts
CHAPTER VI.
INTERGOVERNMENTAL RELATIONS
NATIONAL GOVERNMENT AND
LGUs
I. Executive Supervision
II. Consultations
III. Relations with PNP
CHAPTER
CHAPTER VII.
VII. LOCAL
LOCAL OFFICIALS
OFFICIALS
I. Elective Local Officials
A. Qualifications
B. Disqualifications
C. Manner of Election
D. Term of Office
E. Rules on Succession
F. Recall
G. Discipline
II. Appointive Local Officials
A. Appointments
B. Discipline
C. Removal
D. Officials Common to all
Municipalities, Cities and
Provinces
III. Provisions Applicable to Elective
and Appointive Officials
A. Prohibited Interests
B. Practice of Profession
C. Prohibition against
Appointment
IV. Local Boards
A. Local School Board
B. Local Health Board
C. Local Development Council
D. Local Peace and Order Council
CHAPTER VIII. LOCAL
GOVERNMENT UNITS
A. The Barangay
B. The Municipality
C. The City
D. The Province
CHAPTER IX. MISCELLANEOUS AND
FINAL PROVISIONS
A. Posting and Publication of
Ordinances with Penal Sanctions
B. Penalties for Violation of Tax
Ordinances
C. Provisions for Implementation
CHAPTER X. APPLICATION OF LGC
TO AUTONOMOUS REGIONS AND
OTHER ENTITIES
I. ARMM
II. CAR
III. MMDA
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LOCAL GOVERNMENT LAW
CHAPTER III. GENERAL POWERS

AND ATTRIBUTES OF LGUs
I. Powers in General
A. Sources
B. Classification
C. Execution of Powers
II. Political and Corporate Nature of
LGUs
III. Governmental Powers
A. General Welfare
B. Power to Generate Revenue
C. Eminent Domain
D. Basic Services and Facilities
E. Reclassification of Lands
F. Corporate Powers
G. Local Legislative Power
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Table of Contents
PART V: LAW ON PUBLIC OFFICERS

CHAPTER I. PUBLIC OFFICE
AND OFFICERS
A. Public Office
1. Definition
2. Purpose
3. Nature
4. Elements
5. Public Office v. Public
Employment
Contract
7. No Vested Right to Public
Office
8. Public Office v. Property
9. Creation of Public Office
10. Methods of Organizing Public
Office
11. Modification and Abolition of
Public Office
12. Estoppel in Denying Existence
of Office
B. Public Officer
1. Definition
2. A Person Cannot be
Compelled to Accept Public
Office; Exceptions
3. Public Officers Power is
Delegated, not Presumed
C. Classification of Public Offices
and Public Officers
D. De Facto Officers
1. De Facto Doctrine
2. Definition of De Facto Officer
a. De Facto v. De Jure
b. Officer De Facto v.
Intruder
3. Elements of De Facto
Officership
4. Office Created under an
Unconstitutional Statute
5. Legal Effect of Acts of De
Facto Officers
6. Liabilities of De Facto Officers
7. Right to Compensation of De
Facto Officer
A. Definitions
B. Power to Prescribe Qualifications
C. Time of Possession of
Qualifications
D. Presumption of Eligibility
E. Qualifications USUALLY
Prescribed
F. Religious Test/Qualification
Required
G. Disqualifications to Hold Public
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CHAPTER III. FORMATION OF

OFFICIAL RELATION
A. Modes of Commencing Official
Relation
B. Election
C. Appointment
1. Definition
2. Nature of Power to Appoint
3. Classification of
Appointments
4. Steps in Appointing Process
5. Presidential Appointees
D. Qualification Standards and
Requirements under the Civil
Service Law
1. Qualification Standards
2. Political Qualifications for an
Office
3. No Property Qualifications
4. Citizenship
5. Effect of Removal of
Qualifications during the
Term
6. Effect of Pardon upon the
Disqualification to Hold Public
Office
E. Discretion of Appointing Official
F. Effectivity of Appointment
G. Effects of a Complete, Final and
Irrevocable Appointment
H. Civil Service Commissions
(CSCs) Jurisdiction
I. Appointments to the Civil Service
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LAW ON PUBLIC OFFICERS
CHAPTER II. ELIGIBILITY AND

QUALIFICATIONS
Office
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Table of Contents
PART VI: ELECTION LAW

CHAPTER I. GENERAL
PRINCIPLES
1. Theory of Popular Sovereignty
2. Suffrage
1. Definition
2. Object
3. Scope
a) Election
b) Plebiscite
c) Referendum
d) Initiative
e) Recall
4. Substantive Requirements for
Exercise of Right to Suffrage
a) Citizenship
b) Age
c) Residency
d) Absence of
Disqualifications
CHAPTER II. THE COMELEC
A. Purpose
B. Composition and Qualifications
C. Powers and Functions
1. Enforcement and
Administration of Election
Laws and Regulations
2. Quasi-Judicial Powers
3. Decide All Questions Affecting
Elections
4. Power to Deputize
5. Register Political Parties
6. Accredit Citizens' Arms
7. Investigation and Prosecution
of Cases of Violation of
Election Laws
8. Filing of Petitions in Court for
Inclusion or Exclusion of
Voters
9. Recommendatory
10. Supervision/Regulation
D. Rendition of Decision
1. Composition
2. Time Period and Votes
Required
3. Any Decision, Order, or
Ruling of Each Commission
May Be Brought to the
Supreme Court on Certiorari
CHAPTER III. ELECTIONS IN
GENERAL
A. Kinds of Elections
1. General
2. Special
B. Date of Election
C. Time for Holding Elections
D. Place for Holding Elections
E. Manner
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CHAPTER IV. PRE-ELECTION

REQUIREMENTS
A. Precincts and Polling Places
1. Precinct
2. Polling Places
B. Official Ballots, Election Returns
and Ballot Boxes
1. Form and Contents of Ballots
2. Emergency Ballots
3. Printing of Official Ballots and
Election Returns
C. Registration of Voters
1. Definition
2. Election Registration Board
3. When Registration Conducted
4. Re-Registration
5. System of Continuing
Registration
6. List of Voters
7. Inclusion-Exclusion Cases
8. Annulment of Book of Voters
D. Registration of Political Party
1. Political Party
2. Party System
3. Rights and Privileges Granted
4. Procedure for Registration
5. Who May Be Registered
6. Forfeiture of Status and
Cancellation of Registration
E. Registration for Party-List
1. Party List System, Definition
2. Purpose
4. Procedure
5. Grounds for
Refusal/Cancellation
6. Parameters in Determining
Winners
F. Party-List and District
Representatives Distinguished
G. Certificates of Candidacy
1. Candidate, Definition
2. Qualifications
3. Contents of Certificate of
Candidacy
4. Disqualifications
5. Effect of Death,
Disqualification or
Withdrawal
6. Petition to Deny Due
Course/Cancel Certificate
CHAPTER V. ELECTION
CAMPAIGN AND EXPENDITURES
A. Election Campaign
1. Election Campaign or
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Table of Contents
Partisan Political Activity

Campaign Period
Lawful Election Propaganda
Prohibited Acts
Mass Media Campaign
Rallies, Meetings and Other
Political Activity
B. Election Contributions and
Expenditures
1. Contributions, Definition
2. Prohibited Contributions
3. Prohibited Fund-Raising
Activities
4. Limitations on Aggregate
Amount to be Spent for a
Campaign
5. Prohibited Donations
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CHAPTER VI. ELECTION PROPER

A. In General
1. What Constitutes an Election
2. Failure of Elections; Grounds
3. Postponement of Elections
4. Special Elections
B. Casting of Votes
1. Secrecy of the Ballot
2. Absentee Voting
3. Voting Hours
4. Preparing the Ballot and
Voting
5. Challenge of Illegal Voters
C. Counting of Votes
1. Board of Election Inspectors
2. Counting Proper
3. Marked Ballots
4. Appreciation of Ballots
5. Election Returns
6. Issuance of the Certificate of
Votes
D. Canvass(ing of Votes)
1. Definitions
2. Nature of Canvass
Proceedings
3. Composition of Board of
Canvassers
4. Prohibition on BOC
5. Canvass by the BOC
6. Preparation of Certificate of
Canvass and Statement Of
Votes
7. Completion of Certificate of
Canvass
8. Canvass of Votes for the
President and Vice President
9. Proclamation
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3.
4.
5.
6.
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CHAPTER VII. MODES OF

CHALLENGING CANDIDACY AND
ELECTION RESULTS
A. Cancellation of Certificate of
Candidacy
1. Grounds
2. Nature of Proceedings
3. Procedure
B. Pre-Proclamation Controversies
1. Jurisdiction
2. When Not Allowed
3. Nature
4. Issues That May Be Raised
5. Issues That Cannot Be Raised
6. Procedure
7. Effect of Filing of PreProclamation
8. Effect of Proclamation of
Winning Candidate
9. Petition to Annul/Suspend
Proclamation
10. Declaration of Failure of
Election
C. Disqualification Cases
1. Procedure
2. Effect
CHAPTER VIII. ELECTION
OFFENSES
A. Jurisdiction Over Election
Offenses
B. Prosecution of Election Offenses
C. Preferential Disposition of
Election Offenses
D. Election Offenses
1. Registration
2. Certificate of Candidacy
3. Election Campaign
4. Voting
5. Counting of Votes
6. Canvassing
7. Acts of Government and
Public Officers
8. Coercion, Intimidation,
Violence
9. Other Prohibitions
10. Penalties
E. Arrests in Connection with
Election Campaign
F. Prescription
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REVIEWER IN PUBLIC INTERNATIONAL LAW
Table of Contents
PUBLIC INTERNATIONAL LAW

CHAPTER I. PRELIMINARIES
I. Public International Law
II. Contra-Distinctions
III. Relationship between PIL and
Municipal Law
A. Monist View
B. Dualist View
C. Monist-Naturalist View
D. Coordinationist View
IV. The Philippine Doctrine
A. Doctrine of Incorporation
B. Doctrine of Transformation
CHAPTER II. ACTORS OF
INTERNATIONAL LAW
I. Subjects and Objects of
International Law
A. States
B. Individuals
C. International Organizations
CHAPTER III. THE NORMS OF
INTERNATIONAL LAW
I. Concepts
II. Sources of International Law
A. Treaty as Source of Law
B. Customary International Law
C. General Principle of Law
D. Subsidiary Source: Tribunals
E. Subsidiary Source: Publicists
F. Other Sources
III. Status of Norms
1. Jus Cogens or Peremptory
Norms
2. Erga Omnes Norms
CHAPTER IV. THE LAW OF
TREATIES
I. Definition
II. Requisites for Validity
III. The Treaty-Making Process
A. Negotiation
B. Adoption
C. Consent
D. Exchange of Instruments of
Ratification
E. Registration with the UN
IV. Philippine Law on Treaties
V. Amendment or Modification of
Treaty
VI. Reservations
VII. Invalid Treaties
VIII. Grounds for Termination
CHAPTER V. INYRTNATIONAL
RESPONSIBILITY
I. Breach
A. Is fault or malice necessary?
B. The Standard of Diligence
II. Attribution
A. Direct and Indirect Attribution
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270
271
271
271
273
273
274
274
274
274
274
275
276
276
276
277
277
277
278
278
278
278
278
278
279
279
279
279
279
279
279
280
281
281
281
281
281
282
B. Conduct Attributable to the

State
III. Consequences of State
Responsibility
A. Duty to Make Reparation
B. Forms of Reparation
1. Restitution
2. Compensation
3. Satisfaction
4. Declaratory Relief
IV. Circumstances Precluding
Wrongfulness
V. Diplomatic Protection (Espousal of
Claim)
A. Material Dates
B. Exhaustion of Local Remedies
CHAPTER VI. SOVEREIGNTY AND
JURISDICTION
I. Sovereignty
A. Characteristics
B. Sovereign Equality of States
C. Corrolaries
II. Jurisdiction
A. Bases of Criminal Jurisdiction
B. Reserved Domain of Domestic
Jurisdiction
C. Doctrine of State Immunity
CHAPTER VII. THE LAW OF THE
SEA
I. Concepts
A. Distinguished from Maritime or
Admiralty Law
B. Baseline
II. Waters
A. Internal Waters
B. Territorial Waters
C. Contiguous Zone
D. Exclusive Economic Zone
E. High Seas
III. Archipelagic State
IV. Continental Shelf
A. Limits of the Continental shelf
B. Rights of the Coastal State over
the Continental Shelf
C. Rights with Respect to
Continental Shelf vs. EEZ
V. Settlement of Disputes
A. Peaceful Settlement of Disputes
B. Compulsory Settlement of
Disputes
C. Jurisdiction of Court or
Tribunal
D. Composition of the
International Tribunal for the
Law of the Sea (ITLOS)
E. Jurisdiction of ITLOS
F. Applicable Laws in Settlement
of Disputes by the ITLOS
282
282
282
282
282
283
283
283
283
283
284
384
285
285
285
285
295
285
285
285
285
286
286
286
286
286
287
287
287
287
288
289
290
290
290
291
291
291
291
291
291
291
291
ix
CHAPTER VIII. THE USE OF FORCE

IN INTERNATIONAL LAW
I. Jus ad bellum v Jus in bello
II. Rules on the Use of Force
A. General Rule
B. Exceptions
1. Exceptions under the
Charter
2. Exceptions under Custom
CHAPTER IX. INTERNATIONAL
HUMAN RIGHTS LAW
I. Definition of Human Rights
II. Classification of Human Rights
III. Internationalization of Human
Rights
IV. Sources of Human Rights
A. Convention
B. Custom
V. International Bill of Human Rights
A. Universal Declaration of
Human Rights (UDHR)
B. International Covenant on Civil
and Political Rights (ICCPR)
C. International Covenant on
Economic, Social and Cultural
Rights (ICESCR)
D. Common Provisions in the
ICCPR and ICESCR and
Differences
VI. Specific Norms in Human Rights
A. Genocide
B. Torture
C. Rights of the Child
D. Law Against Discrimination
E. Refugee Law
CHAPTER X. INTERNATIONAL
HUMANITARIAN LAW
I. Armed Conflict
II. Fundamental Principles of IHL
III. Application of IHL
IV. The Four Geneva Conventions and
the Two Additional Protocols
V. Application
VI. Concepts
A. Combatants
B. Hors de Combat
C. Protected Persons
D. The Martens Clause
E. Military Objective
F. Belligerency Status
VII. IHL and Weapons of Mass
Destruction
VIII. Non-International Armed Conflict
A. Common Article 3 and Protocol
II
B. Control of Territory
C. War of National Liberation
IX. Neutrality
X. Protective Emblems
A. Who May Use
B. Misuse of Emblem
Table of Contents
292
292
292
292
292
292
292
294
294
294
294
294
294
294
295
295
295
296
296
296
296
297
297
297
298
299
299
299
300
C. Punishment
XI. The International Criminal Court
(ICC)
A. Crimes within the Courts
Jurisdiction
B. Modes of Incurring Criminal
Liability
C. Sources of Law
D. Other Key Concepts
E. Landmark Cases
CHAPTER XI. DIPLOMATIC
INTERCOURSE
I. Agents of Diplomatic Intercourse
A. Head of State
B. The Foreign Office
C. The Diplomatic Corps
II. Functions and Duties
III. Diplomatic Immunities and
Privileges
A. Personal Inviolability
B. Inviolability of Premises and
Archives
C. Right of Official
Communication
D. Immunity from Local
Jurisdiction
E. Exemption from Taxes and
Customs Duties
IV. Consular Relations
A. Ranks
B. Necessary Documents
C. Immunities and Privileges
CHAPTER XII. RECENT
INTERNATIONAL LAW ISSUES IN
PHILIPPINE LAW
I. Daniel Smith and the VFA
II. Constitutionality of the Baselines
Law
III. Violence Against Women as Torture
APPENDICES
304
304
304
305
305
306
306
307
307
307
307
307
307
307
307
308
308
308
308
309
309
309
309
310
310
311
311
313
300
301
301
301
301
301
301
302
302
302
302
303
303
303
303
304
304
304
Table of Contents
CONSTITUTIONAL LAW I
CHAPTER II. STRUCTURE AND

POWERS OF GOVERNMENTSEPARATION OF POWERS
I. Legislative Department
A. Nature and Classification of
Legislative Power
B. Composition, Qualifications
and Term of Office
C. Election
D. Salaries, Privileges and
Disqualifications
E. Internal Government of
Congress
G. Commission on
Appointments
II. Judicial Department
A. In General
B. Supreme Court
III. Executive Department
A. President
B. Vice-President
IV. Constitutional Commissions
V. Constitutionally-Mandated
Bodies
A. Sandiganbayan
B. Ombudsman
C. Commission on Human
Rights
3
3
3
3
4
4
4
4
7
7
7
7
7
CHAPTER III. NATIONAL

ECONOMY AND PATRIMONY
I. General Principles
A. Goals
C. Filipino First
II. Natural Resources
A. Regalian Doctrine
B. Exploration, Development,
Utilization
III. Private Lands
IV. Monopolies
V. Central Monetary Authority
7
9
9
9
9
CHAPTER IV. CURRENT EVENTS

AND SPECIAL TOPICS
I. Party-List System
II. Question Hour v. Inquiries in Aid
of Legislation
III. Executive Privilege
IV. Peoples Initiative
V. Right of Reply Bill
VI. The (Erstwhile) Province of
Shariff Kabunsuan
VII.MOA on Ancestral Domain
(MOA-AD)
10
11
11
58
58
58
58
58
59
59
59
60
60
60
61
62
62
65
66
67
67
68
69
11
11
13
13
15
17
18
19
25
25
27
30
31
31
51
52
52
53
54
55
55
55
56
57
Page 2 of 313
CHAPTER I. THE STATE

I. Territory
A. 1987 Consti, Art. I
B. Treaty of Paris
II. People
A. Definitions
B. Citizenship
III. Sovereignty
A. Kinds
C. Dominium v. Imperium
D. Jurisdiction
E. Suits Against the State and
the Doctrine of Sovereign
Immunity
IV. Government
A. Definition
B. Functions
D. De Jure and De Facto
Governments
Chapter I. The State
FACULTY-STUDENT
STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE
POLITICAL LAW
LECTURES
Carmi Tugday
Joey Capones
Edel Cruz
Prof. Theodore O. Te
FACULTY EDITOR
ACADEMICS COMMITTEE
HEAD
SUBJECT EDITORS
Samantha Poblacion
DIRECTOR FOR ACADEMICS
EDITOR-IN-CHIEF
Rania Joya
DEPUTY DIRECTOR FOR ACADEMICS
LAYOUT HEAD
-------Kae Guerrero
Jason Mendoza
DEPUTY HEAD
Johanna Lorenzo
Malds Menzon
LEAD WRITER
LOGISTICS, HR
Ina Fransisco-Lao
Jill de Dumo
Chris Capul
LOGO, COVER AND TEMPLATE DESIGN
PRINTING AND DISTRIBUTION
Constitutional Law I
I.
TERRITORY
A. 1987 CONSTITUTION, ART.
RT. I
B. TREATY OF PARIS
C. ARCHIPELAGIC DOCTRINE
E
II. PEOPLE
A. DEFINITIONS
1. INHABITANTS
2. ELECTORS
3. CITIZENS
B. CITIZENSHIP
1. WHO ARE CITIZENS?
2. NATURAL BORN
3. WHO MUST BE NATURAL
NATURAL-BORN?
4. GROUNDS
FOR
LOSS
OF
CITIZENSHIP
5. HOW
MAY
CITIZENSHIP
BE
REACQUIRED?
6. DUAL ALLEGIANCE
III. SOVEREIGNTY
A. KINDS
B. THEORY OF AUTO-LIMITATION
LIMITATION
C. DOMINIUM V. IMPERIUM
D. JURISDICTION
E. SUITS AGAINST THE STATE
ATE AND THE
DOCTRINE OF SOVEREIGN IMMUNIT
IMMUNITY
IV. GOVERNMENT
A. DEFINITION
B. FUNCTIONS
C. DOCTRINE OF PARENS PATRIAE
ATRIAE
D. DE
JURE
AND
DE
FACTO
GOVERNMENTS
-------Leo Zulueta
WRITERS
2) All other territories over which the

Philippines
has
sovereignty
or
jurisdiction
3) Territorial sea, Seabed, Subsoil, Insular
shelves, and other submarine areas
corresponding to (1) and (2)
4) (1) and (2) also consist of terrestrial,
fluvial, and aerial
ial domains
B.Treaty
Treaty of Paris, Art. III
Spain cedes to the United States the
archipelago known as the Philippines
Islands, and comprehending the islands
lying within the following line xxx
I. TERRITORY
(Asked 7 times in the Bar)
A.1987 Const., Art. I

SCOPE OF THE NATIONAL TERRITORY AS
DEFINED IN THE CONSTITUTION
1) Philippine archipelago
*Image taken from:

http://media.photobucket.com/image/philippine%20
map%20image%20international%20law/jibrael_2007/
Jibrael%202008/map1_rpterritory.jpg
Page 3 of 313
Refer to PIL, Chap. 12, II for further

discussion on Baselines
II. PEOPLE
A. Definition
The term assumes three different
meanings, depending on the context in
which it is used: (NACHURA)
1. Inhabitants, as used in:
i. 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 x x x
(Sec 2, Art III)
3. Citizens, as used in:

i. We, the sovereign Filipino people
(Preamble)
ii. The Philippines is a democratic and
republican State.
Sovereignty
resides in the people and all
government
authority
emanates
from them. (Sec 1, Art II)
iii. The prime duty of the Government
is to serve and protect the people.
The Government may call upon the
people to defend the State and, in
the fulfillment thereof, all citizens
may be required, under conditions
provided by law, to render personal
military, or civil service. (Sec 4, Art
II)
The right of the people to information on
matters of public concern shall be
recognized. Access to official records, and
to documents, and papers pertaining to
official acts, transactions, or decisions, as
well as to government research data used
as basis for policy development, shall be
afforded the citizen, subject to such
limitations as may be provided by law. (Sec
7, Art III)
As an element of a state, people means
a community of persons adequate in
number for self-sufficiency and defense,
and also capable of maintaining the
continued existence of the community
and held together by a common bond of
law. (BERNAS)
Qua Chee Gan v Deportation

Board, (1963)
The right of an individual to be
secure in his person is guaranteed
by the Constitution. The same is
declared a popular right of the
people and indisputably applies to
both citizens and foreigners in this
country.
ii. Civilian authority is, at all times,
supreme over the military. The

Armed Forces of the Philippines is
the protector of the people and the
State. Its goal is to secure the
sovereignty of the State and the
integrity of the national territory.
(Sec 3, Art II)
2. Electors, as used in:

i. The President and the VicePresident shall be elected by direct
vote of the people (Sec 4, Art VII)
B. Citizenship
1. Who are citizens?
i. Citizens of the Philippines at the
time of the adoption of this
Constitution;
ii. Those whose fathers or mothers are
citizens of the Philippines;
iii. Those who elected to be citizens.
This is available only to:
- those born before January 17,
1973,
- to Filipino mothers,
- and elect Philippine citizenship
upon reaching the age of
majority
iv. Those naturalized in accordance
with law.
ARTICLE IV, Section 1 (3), 1987
Constitution is also applicable to those
Page 4 of 313
Elements:
1. Internal waters waters around,
between and connecting the islands of
the archipelago
2. Straight baseline method consists of
drawing straight lines connecting
appropriate points on the coast without
departing to any appreciable extent
from the general direction of the
coast, in order to delineate the internal
waters from the territorial waters of an
archipelago
2. Natural-born
i. citizens of the Philippines from birth
without having to perform any act
to acquire or perfect their Philippine
citizenship; and
ii. those
who
elect
Philippine
citizenship in accordance with
ARTICLE IV, Section 1 (3)
Tecson v. Comelec, (2004)
The term "natural-born citizens," is
defined to include "those who are
citizens of the Philippines from birth
without having to perform any act to
acquire or perfect their Philippine
citizenship."
Only two, i.e., jus soli and jus
sanguinis, could qualify a person to
being a "natural-born" citizen of the
Philippines. Jus soli, per Roa vs.
Collector of Customs (1912), did not
last long. With the adoption of the 1935
Constitution and the reversal of Roa in
Tan Chong vs. Secretary of Labor
(1947),
jus
sanguinis
or
blood
relationship would now become the
primary basis of citizenship by birth.
3. Who must be Natural-Born?
i. President (Sec. 2, Art VII)
ii. Vice-President (Sec. 3, Art VII)
iii. Members of Congress (Secs. 3 and
6, Art VI)
iv. Justices of SC and lower collegiate
courts (Sec. 7 (1), Art VIII)
v. Ombudsman and his deputies (Sec.
8, Art XI)
vi. Members
of
Constitutional
Commissions
vii. CSC (Sec. 1 (1), Art IX B)
viii. COMELEC (Sec. 1 (1) Art IX C)
ix. COA (Sec. 1 (1), Art IX D)
x. Members of the Central Monetary
Authority (Sec. 20, Art XII)
xi. Members of the Commission on
Human Rights (Sec. 17 (2), Art XIII)
4. Grounds for Loss of Citizenship

i. Naturalization in a foreign country
[Sec.1 (1), CA 63];
ii. Express renunciation or expatriation
[Sec.1 (2), CA 63];
iii. Taking an oath of allegiance to
another country upon reaching the
age of majority;
iv. Accepting a commission and serving
in the armed forces of another
country,
unless
there
is
an
offensive/ defensive pact with the
country, or it maintains armed
forces in RP with RPs consent;
v. Denaturalization;
vi. Being found by final judgment to be
a deserter of the AFP;
vii. Marriage by a Filipino woman to an
alien, if by the laws of her
husbands country, he becomes a
citizen thereof.
Go Gullian v. Government:
Expatriation is a constitutional right.
No one can be compelled to remain a
Filipino if he does not want to.
EXCEPTION: A Filipino may not
divest
himself
of
Philippine
citizenship in any manner while the
Republic of the Philippines is at war
with any country. (Sec. 1 (3), Com.
Act No. 63)
Aznar v COMELEC, (1995)
Loss of Philippine citizenship cannot be
presumed. Considering the fact that
admittedly, Osmea was both a Filipino
and an American, the mere fact that he
has a certificate stating that he is an
American does not mean that he is not
still a Filipino, since there has been NO
EXPRESS renunciation of his Philippine
citizenship.
5. How may citizenship be reacquired?
i. Naturalization (CA No. 63 and CA
No. 473)
now an abbreviated process, no
need to wait for 3 years (1 year
for declaration of intent, and 2
years for the judgment to
become executory)
requirements:
a.) be 21 years of age
b.) be a resident for 6 months
c.) have good moral character
d.) have no disqualification
Republic vs. Guy (1982)
Naturalization is never final and
Page 5 of 313
who are born to Filipino mothers and

elected Philippine citizenship before
February 2, 1987.
This is to correct the anomalous
situation where one born of a Filipino
father and an alien mother was
automatically granted the status of a
natural-born citizen, while one born of a
Filipino mother and an alien father
would still have to elect Philippine
citizenship. (Co v. Electoral Tribunal of
the House of Representatives, 1991)
may be revoked if one commits acts

of moral turpitude.
Bengson III vs. HRET, (2001)
Repatriation results in the recovery
of the original nationality. Therefore,
if he is a natural-born citizen before
he lost his citizenship, he will be
restored to his former status as a
natural-born Filipino.
Frivaldo v COMELEC, (1989)
Mere filing of certificate of
candidacy is not a sufficient act
of repatriation.
Repatriation
requires an express and equivocal
act.
Labo v COMELEC, (1989)
In the absence of any official action
or approval by proper authorities, a
mere application for repatriation
does not, and cannot, amount to
an automatic reacquisition of the
applicants Philippine citizenship.
iii. Legislative Act
both a mode of acquiring and

reacquiring citizenship
6. Dual Allegiance
i. aliens who are naturalized as
Filipinos but remain loyal to their
country of origin (cite source)
ii. public officers who, while serving
the government, seek citizenship in
another country (cite source)
disqualified from running for any

elective local position. (Sec 40d,
Local Government Code)
Mercado v. Manzano, (1999)

Once a candidate files his candidacy, he
is deemed to have renounced his foreign
citizenship.
Clearly, in including 5 in Article IV

on citizenship, the concern of the
Constitutional Commission was
not with dual citizens per se but
with naturalized citizens who
maintain their allegiance to their
countries of origin even after
their naturalization. Hence, the
phrase dual citizenship in R.A.
No. 7160, 40(d) and in R.A. No.
7854, 20 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,
therefore, 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 certificates 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.
Cf: RA 9225 (Citizenship Retention and Reacquisition

Act
of
2003)
Sec. 3. Retention of Philippine Citizenship.
Any provision of law to the contrary
notwithstanding, natural-born citizens of the
Philippines who have lost their Philippine
citizenship by reason of their naturalization as
citizens of a foreign country are hereby deemed
to have re-acquired Philippine citizenship upon
taking the following oath of allegiance to the
Republic: xxx
Natural-born citizens of the Philippines who,
after the effectivity of this Act, become citizens of
a foreign country shall retain their Philippine
citizenship upon taking the aforesaid oath.
Sec. 4.
Derivative Citizenship. The
unmarried child, whether legitimate, illegitimate
or adopted, below eighteen (18) years of age, of
those who re-acquire Philippine citizenship upon
effectivity of this Act shall be deemed citizens of
the Philippines.
Sec. 5. Civil and Political Rights and Liabilities.
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:
(1) Those intending to exercise their right of
suffrage must meet the requirements under
Sec. 1, Art. V of the Constitution, RA 9189,
otherwise known as "The Overseas Absentee
Voting Act of 2003" and other existing laws;
(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;
(3) Those appointed to any public office shall
subscribe and swear to an oath of allegiance
to the Republic of the Philippines and its
Page 6 of 313
ii. Repatriation
III.SOVEREIGNTY
Supreme and uncontrollable power

inherent in a State by which the State is
governed.
ii. Personal jurisdiction
It is the property of the State-force due

to which a State has exclusive legal
competence of self-limitation and selfrestriction.
Tanada v Angara, (1997)

Sovereignty is subject to restrictions and
limitations voluntarily agreed to by the
Philippines, expressly or impliedly, as a
member of the family of nations.
(Lee Hong Hok v. David, 1972)

Dominium
capacity of the State to own
property.
covers such rights as title to land,
exploitation and use of it, and
disposition or sale of the same.
Regalian doctrine
authority of the State over its

nationals,
their
persons,
property, and acts, whether
within or outside its territory.
(Art 15, CC: Laws relating to
family rights and duties, or to
the status, condition and legal
capacity of persons are binding
upon citizens of the Philippines,
even though living abroad.)
iii. Extraterritorial jurisdiction
C. Dominium v Imperium
Jurisdiction is the manifestation of

sovereignty.
The jurisdiction of the
state is understood as both its authority
and the sphere of the exercise of that
authority. (SINCO)
1. KINDS:
i. Territorial jurisdiction
authority of the State to have all
persons and things within its
territorial limits to be completely
subject to its control and
protection.
Imperium
States authority to govern.
covers such activities as passing
laws
governing
a
territory,
maintaining peace and order over it,
and defending it against foreign
invasion.
When the State acts in this capacity,
it
generally
enjoys
sovereign
immunity.
D. Jurisdiction
A. Kinds
1. Legal sovereignty - power to issue final
commands.
2. Political sovereignty - power behind the
legal sovereign, or the sum total of the
influences that operate upon it.
3. Internal sovereignty - power to control
domestic affairs.
4. External sovereignty (also known as
independence) - power to direct
relations with other states.
all lands of the public domain

belong to the State, and anyone
claiming title has the burden to
show ownership, comes within
this concept. In this capacity,
the State descends to the status
of ordinary persons and thus
becomes liable as such. (Cruz v.
Sec of DENR, 2000)
authority of the State over

persons, things, or acts, outside
its territorial limits by reason of
their effects to its territory
E. Suits Against the State and the

Doctrine of Sovereign Immunity
(Asked two times in the Bar)
The State may not be sued without its

Page 7 of 313
duly constituted authorities prior to their

assumption of office: provided, that they
renounce their oath of allegiance to the
country where they took that oath;
(4) Those intending to practice their profession
in the Philippines shall apply with the
proper authority for a license or permit to
engage in such practice; and
(5) That right to vote or be elected or appointed
to any public office in the Philippines cannot
be exercised by, or extended to, those who:
(a) are candidates for or are occupying any
public office in the country of which
they are naturalized citizens; and/or
(b) are in active service as commissioned or
non-commissioned officers in the armed
forces of the country which they are
naturalized citizens.
ii. Implied consent
1. A suit is against the State regardless of

who is named the defendant if:
i. it produces adverse consequences to
the public treasury in terms of
disbursement of public funds and
loss of government property.
ii. cannot prosper unless the State has
given its consent.
2. In the following instances, it was held
that the suit is not against the State:
i. when the purpose of the suit is to
compel an officer charged with the
duty
of
making
payments
pursuant to an appropriation
made by law in favor of the plaintiff
to make such payment, since the
suit
is
intended
to
compel
performance of a ministerial duty.
(Begoso v. PVA, 1970)
ii. when from the allegations in the
complaint, it is clear that the
respondent is a public officer sued
in a private capacity;
iii. when the action is not in personam
with the government as the named
defendant, but an action in rem
that
does
not
name
the
government in particular.
3. How the States consent to be sued is
given:
i. Express consent
a. It is effected only by the will of the
legislature through the medium of a
duly enacted statute.
b. may be embodied either in a:
General Law
authorizes any person who
meets the conditions stated in
the law to sue the government in
accordance with the procedure
in the law
Special Law
may come in the form of a
private bill authorizing a named
individual to bring suit on a
special claim
Art 2189, CC: Provinces, cities

and municipalities shall be liable
for damages for the death or
injuries suffered by any person
by reason of the defective
conditions of roads, streets,
public buildings and other
public works under their control
and supervision.
when the State enters into a

business
contract
or
itself
commences litigation.
State may only be liable for
proprietary acts (jure gestioni)
and not for sovereign acts (jure
imperii)
When state files complaint,
suability will result only where
the government is claiming
affirmative
relief
from
the
defendant. (US v. Guinto, 1990)
When it would be inequitable for the
State to invoke its immunity.
In instances when the State takes
private property for public use or
purpose.
iii. When does Liability Attach?
a. The Government is only liable for

the acts of its agents, officers and
employees, when they act as
special agents within the meaning
of (Art. 2180 (6) CC).
Merritt v. Govt of the Philippine

Islands, (1916):
Special Agent
one who receives a definite and
fixed order or commission,
foreign to the exercise of the
duties of his office if he is a
special official.
This concept does not apply to
any executive agent who is an
employee
of
the
active
administration and who on his
own responsibility performs the
functions which are inherent in
and naturally pertain to his
office and which are regulated by
law and the regulations.
Lansang v CA, (2000):

Unauthorized
acts
of
government
officials
or
officers are not acts of the
State, and an action against the
officials or officers by one whose
Page 8 of 313
consent. (Sec 3, Art XVI)

Kawananakoa v. Polyblank
(1907):
There can be no legal right as against
the authority that makes the laws on
which the right depends. also called
the doctrine of Royal Prerogative of
Dishonesty.
Republic vs. Villasor (1973): If the State
is amenable to suits, all its time would
be spent defending itself from suits and
this would prevent it from performing it
other functions.
rights have been invaded or

violated by such acts, for the
protection of his rights, is not a
suit against the State.
The doctrine of immunity from
suit will not apply and may not
be invoked where the public
official is being sued in his
private and personal capacity as
an ordinary citizen, for acts
without authority or in excess of
the powers vested in him.
b. When the Government creates a

corporation, it invariably provides
this corporation a separate entity
and with the capacity to sue and be
sued.
Consent to be sued includes
actions based on quasi-delict
even though committed by
regular, and not special, agents.
Rule: a government entity can be
sued for tort, but if it is, it can
invoke the defense that it acted
through its regular employee,
and not through a special agent.
c. The principle of State immunity
from suit does not apply when the
relief demanded requires no
affirmative official action on the
part of the State no the affirmative
discharge of any obligation which
belongs to the State in its political
capacity, even though the officers or
agents who are made defendants
claim to hold or act only by virtue of
a title of the State and as its agents
and servants. (Republic v Sandoval,
1993)
aggregate of institutions by which an

independent society makes and carries out
those rules of action which are necessary to
enable men to live in a social state or which
are imposed upon the people forming that
society by those who possess the power or
authority of prescribing them.
B. Functions
1. Constituent functions - constitute the
very bonds of society; compulsory.
i. keeping of order and providing
protection
ii. fixing of legal relations between man
and wife, and children
iii. regulation
of
the
holding,
transmission and interchange of
property
iv. define crime and punishment
v. regulates and determines contract
between individuals
vi. dealings of state with foreign powers
2. Ministrant functions - undertaken to
advance the general interests of society;
optional.
i. public works
ii. public education
iii. public charity
iv. health and safety regulations
v. trade and industry
ACCFA v. Federation of Labor Unions,

(1969)
The distinction between constituent and
ministrant functions is not relevant in our
jurisdiction.
IV. GOVERNMENT
(Asked two times in the Bar)
A. Definition
Sec. 2(1) Administrative Code. Government of
the Republic of the Philippines is defined as:
the corporate governmental entity through
which the functions of government are exercised
throughout the Philippines, including
the various arms through which political

authority
is
made
effective
in
the
Philippines, whether pertaining to:
1. the autonomous regions,
2. the provincial, city, municipal, or
barangay subdivisions, or
3. other forms of local government.
US v Dorr, (1903)
Government is that
institution
or
Parens patriae is the task of the

government to act as guardian of the
rights of the people.
This prerogative of parens patriae is
inherent in the supreme power of every
state, whether that power is lodged in a
royal person or in the legislature
Government of the Philippine Islands v.

Monte de Piedad, (1916)
The Monte de Piedad y Caja de Ahorros de
Manila is an institution organized in
accordance with the canon law, having
been created by the royal order of the King
of Spain of July 8, 1880, made under the
royal patronate powers then existing in the
Crown of Spain. The royal order referred to
created, according to the purpose expressed
therein, an institution for the safe
investment of the savings of the poor
Page 9 of 313
D. De
Jure
and
Governments
De
Facto
1. De jure government
i. has rightful title
ii. no power or control, either because
this has been withdrawn from it, or
because it has not yet actually
entered into the exercise thereof. (In
re Letter of Associate Justice Puno,
1992)
2. De facto government
i. government of fact, that is, it
actually exercises power or control
without legal title. (Co Kim Cham v.
Valdes, 1945)
In re Bermudez, (1986)
The legitimacy of the Aquino government is
not a justiciable matter. It belongs to the
realm of politics where only the people of
the Philippines are the judge. And the
people have made the judgment; they
have accepted the government of President
Corazon C. Aquino which is in effective
control of the entire country so that it is
not merely a de facto government but in
fact and law a de jure government.
Moreover, the community of nations has
recognized the legitimacy of the present
government. All the eleven members of this
Court, as reorganized, have sworn to
uphold the fundamental law of the Republic
under her government. [citing Lawyers
League for a Better Philippines v. Aquino,
1986]
Cf: Estrada v Desierto/ Estrada v GMA,

(2001)
In the cited cases [Lawyers League for a
Better Philippines and/or Oliver A. Lozano v.
President Corazon C. Aquino, et al], we held
that the government of former President
Aquino was the result of a successful
revolution by the sovereign people, albeit a
peaceful one. No less than the Freedom
Constitution declared that the Aquino
government was installed through a direct
exercise of the power of the Filipino people
"in defiance of the provisions of the
1973 Constitution, as amended."
It is familiar learning that the
of a government sired by a
revolution by people power
judicial scrutiny for that
automatically
orbits
out
of
the
constitutional loop. In checkered contrast,
the government of respondent Arroyo is
not revolutionary in character. The oath
that she took at the EDSA Shrine is the
oath under the 1987 Constitution. In her
oath, she categorically swore to preserve
and defend the 1987 Constitution.
Indeed, she has stressed that she is
discharging the powers of the presidency
under
the
authority
of
the
1987
Constitution.
In fine, the legal distinction between
EDSA People Power I EDSA People Power II
is clear. EDSA I involves the exercise of the
people power of revolution which overthrew
the whole government. EDSA II is an
exercise of people power of freedom of
speech and freedom of assembly to petition
the government for redress of grievances
which only affected the office of the
President. EDSA I is extra-constitutional
and
the
legitimacy
of
the
new
government that resulted from it cannot
be the subject of judicial review, but
EDSA II is intra-constitutional and the
resignation of the sitting President that
it caused and the succession of the Vice
President as President are subject to
judicial review. EDSA I presented a
political question; EDSA II involves legal
questions. xxx
Even if the petitioner can prove that he did
not resign, still, he cannot successfully
claim that he is a President on leave on the
ground that he is merely unable to govern
temporarily. That claim has been laid to
rest by Congress and the decision that
respondent Arroyo is the de jure,
president made by a co-equal branch of
government cannot be reviewed by this
Court.
legitimacy
successful
is beyond
government
Page 10 of 313
classes and to assist the needy in time of

need by loaning such savings to them at a
low rate of interest.
Chapter II. Structure and Powers of Government Separation of Powers
I.
II.
III.
IV.
V.
LEGISLATIVE DEPARTMENT
A. NATURE AND CLASSIFICATION OF
LEGISLATIVE POWER
B. COMPOSITION, QUALIFICATIONS AND
TERM OF OFFICE
C. ELECTION
D. SALARIES,
PRIVILEGES
AND
DISQUALIFICATIONS
E. INTERNAL
GOVERNMENT
OF
CONGRESS
F. ELECTORAL TRIBUNALS
G. COMMISSION ON APPOINTMENTS
H. POWERS OF CONGRESS
JUDICIAL DEPARTMENT
A. IN GENERAL
B. SUPREME COURT
C. JUDICIAL AND BAR COUNCIL
EXECUTIVE DEPARTMENT
A. PRESIDENT
B. VICE-PRESIDENT
CONSTITUTIONAL COMMISSIONS
A. COMMON PROVISIONS
B. CIVIL SERVICE COMMISSION
C. COMMISSION ON ELECTIONS
D. COMMISSION ON AUDIT
CONSTITUTIONALLY-MANDATED BODIES
A. SANDIGANBAYAN
B. OMBUDSMAN
C. COMMISSION ON HUMAN RIGHTS
I. LEGISLATIVE DEPARTMENT
A. Nature and Classification

Legislative Power
of
1. Nature:
The authority to make laws and to
alter or repeal them.
Vested in Congress, except to the
extent reserved to the people by
provision
on
initiative
and
referendum
Plenary (Congress may legislate on
any subject matter provided that the
limitations are observed.)
2. Classification of Legislative Power:
Original - possessed by the

sovereign people
Derivative - delegated by the

sovereign people to legislative
bodies and is subordinate to the
original power of the people
Constituent - power to amend and

revise the Constitution
Ordinary - power to pass ordinary

laws
B. Composition, Qualifications and Term of Office
Composition
Qualifications
Senate
(Art. VI secs. 2-4)
24 senators elected at large
6 years
House of Representatives
(Art. VI secs. 5-8)
Not more than 250 members, unless
otherwise provided by law, consisting
of:
1. District Representatives
2. Party-List Representatives
3. Sectoral Representatives
Natural-born citizens
At least 25 years old on the day of the
election
Able to read and write
Registered voter in the district he
seeks to represent
A resident of the said district for at
least 1 year immediately preceding the
day of the election
3 years
2 consecutive terms.
3 consecutive terms.
Term
of
Office
Term Limits
Natural-born citizen
At least 35 years old on the day
of the election
Able to read and write
A registered voter
Resident of the Philippines for at
least
2
years
immediately
preceding the day of the election
1. Senate
(Art. VI Secs. 2-4)
Composition:
large
24 senators elected at
Qualifications:
1. Natural-born citizen
2. At least 35 years old on the day of
the election
3. Able to read and write
4. A registered voter
Page 11 of 313
Chapter II. Structure and

Powers of Government
Separation of Powers
Term of Office: 6 years, commencing

at noon on the 30th day of June next
following their election
Term Limits: only up to 2 consecutive

terms. However, they may serve for
more than 2 terms provided that the
terms are not consecutive.
2. House of Representatives
(Art. VI Secs. 5-8)
Composition:
Not more than 250
members, unless otherwise provided by
law, consisting of:
i.
District Representatives
elected from legislative districts
apportioned
among
the
provinces, cities, and the Metro
Manila area.
Rules on Apportionment of
Legislative Districts:
1. Proportional representation
based
on
number
of
inhabitants
a. Each
city
with
a
population of at least
250,000,
or
each
province, shall have at
least 1 representative.
Each
province,
irrespective
of
the
number of inhabitants,
shall have at least 1
representative.
b. Each legislative district
shall comprise, as far as
practicable, contiguous,
compact, and adjacent
territory.
2. Re-apportionment
by
Congress within 3 years after
the return of each census
ii. Party-List Representatives

20% of the total number of
representatives
chosen indirectly through a
party selected by voters
RA 7941 (An Act Providing For
The
Election
Of
Party-List
Representatives Through The
Party-List
System,
And
Appropriating Funds Therefor)
o Parties, organizations, and
coalitions must obtain at
least 2% of all votes cast to

obtain a party-list seat
Those garnering more than
2% are entitled to additional
seats in proportion to their
total number of votes, but
may not have more than 3
seats
Disqualified:
1. Religious Sects
2. Foreign Organizations
3. Those
Advocating
Violence
or
Unlawful
Means
Qualified Sectors:
1. Labor
2. Peasant
3. Fisherfolk
4. Urban Poor
5. Indigenous Cultural
Communities
6. Elderly
7. Handicapped
8. Women
9. Youth
10. Veterans
11. Overseas Workers
12. Professionals
iii. Sectoral Representatives

For 3 consecutive terms from 2
February 1987, 25 seats shall
be
allotted
to
sectoral
representatives.
to be chosen by appointment or
election, as may be provided by
law
Until a law is passed, they are
appointed by the President
from a list of nominees by the
respective sectors. (Art. XVIII,
sec. 7)
Sec. 41, RA 7160 (An Act Providing for a Local
Government Code of 1991): Manner of Election.
(c) In addition thereto, there shall be one (1)
sectoral representative from the women, one (1)
from the workers, and one (1) from any of the
following sectors: the urban poor, indigenous
cultural communities, disabled persons, or any
other sector as may be determined by the
sanggunian concerned within ninety (90) days
prior to the holding of the next local elections, as
may be provided for by law. The Comelec shall
promulgate the rules and regulations to
effectively provide for the election of such
sectoral representatives.
Qualifications of
Representatives:
1. Natural-born citizens
Page 12 of 313
5. Resident of the Philippines for at

least 2 years immediately preceding
the day of the election
Term of Office:
3 years,
commencing at noon on the 30th day
of June next following their election.
Dimaporo v. Mitra (1991)
In B.P. Blg. 881 members of the
legislature
included
in
the
enumeration of elective public
officials are to be considered
resigned from office from the
moment of the filing of their
certificates of candidacy for another
office, except for President and VicePresident. The term of office
prescribed by the Constitution may
not be extended or shortened by the
legislature, but the period during
which an officer actually holds the
office (tenure) may be affected by
circumstances within or beyond the
power of said officer.
Tenure may be shorter than the
term or it may not exist at all. These
situations will not change the
duration of the term of office.
Term Limits: No member of the
House of Representatives shall serve
for more than 3 consecutive terms.
3. Synchronized Terms of Office

(Secs 1-2, Art XVIII)
C. Election
1. Regular Elections
Unless otherwise provided by law,
the regular election of the Senators
and the Members of the House of
Representatives shall be held on the
second Monday of May. (Sec 8, Art
VI)
2. Special Election
In case of vacancy in the Senate or
in the House of Representatives, a
special election may be called to fill
such vacancy in the manner
prescribed by law,
but the Senator or Member of the
House of Representatives thus

elected shall serve only for the
unexpired term. (Sec 9, Art VI)
Lozada v. COMELEC, (1983):
The Constitution mandates that there
should always be adequate representation
for every province or legislative district. If a
vacancy
occurs
in
a
manner
contemplated in the Constitution, then
Congress has the authority if not the duty to
call for special elections.
D. Salaries,
Privileges
Disqualifications
and
1. Salaries
The salaries of Senators and
Members
of
the
House
of
Representatives shall be determined
by law.
No increase in said compensation
shall take effect until after the
expiration of the full term of all the
Members of the Senate and the
House of Representatives approving
such increase. (Ligot v. Mathay,
1974)
Official
President
Vice-President,
President
of
the
Senate, Speaker of the
House
of
Representatives, and
Chief Justice of the
Supreme Court
Senators, Members of
the
House
of
Representatives,
Associate Justices of
the Supreme Court,
and Chairmen of the
Constitutional
Commissions
Members
of
the
Constitutional
Commissions
Annual Salary
Php 300,000
Php 240,000
Php 204,000
Php 180,000
2. Freedom from arrest

(Art VI Sec 11, 1987 Consti)
A Senator or Member of the House
of Representatives shall, in all
offenses punishable by not more
than six years imprisonment, be
privileged from arrest while the
Congress is in session.
No Member shall be questioned nor
be held liable in any other place for
any speech or debate in the
Congress or in any committee
thereof.
Page 13 of 313
2. At least 25 years old on the

day of the election
3. Able to read and write
4. Registered voter in the
district he seeks to represent
5. A resident of the said district
for
at
least
1
year
immediately preceding the
day of the election.
Osmena v. Pendatun, (1960)

Each House of the Congress can
discipline its members for disorderly
conduct or behavior.
What
constitutes
disorderly
behavior is entirely up to Congress to
define.
Although a member of Congress
shall not be held liable in any other
place for any speech or debate in the
Congress or in any committee thereof,
such immunity, although absolute in
its protection of the member of
Congress against suits for libel, does
not shield the member against the
disciplinary
authority
of
the
Congress.
May not hold any other office or
employment in the government
during his term without forfeiting
his seat. (Art VI Sec 13)
May not be appointed to any office
created or the emoluments thereof
were increased during the term for
which he was elected. (Art VI Sec 13)
Cannot
personally
appear
as
counsel before any court, electoral
tribunal,
quasi-judicial
and
administrative bodies during his
term of office. (Art VI Sec 14)
Shall not be financially interested,
directly or indirectly, in any contract
with, or franchise or special privilege
granted by the government during
his term of office. (Art VI Sec 14)
Shall not intervene in any matter
before any office of the government
when it is for his pecuniary benefit
or where he may be called upon to
act on account of his office. (Art VI
Sec 14)
Puyat v De Guzman, (1982)

Certain salient circumstances militate
against
the
intervention
of
Assemblyman Fernandez in the SEC
Case.
He had acquired a mere P200.00
worth of stock in IPI, representing ten
shares out of 262,843 outstanding
shares.
He
acquired
them
after
the
contested election of Directors, after the
quo warranto suit had been filed before
SEC, and one day before the scheduled
hearing of the case before the SEC.
Before he moved to intervene, he
had signified his intention to appear as
counsel for respondent, but which was
objected to by petitioners. Realizing,
perhaps, the validity of the objection, he
decided, instead, to "intervene" on the
ground of legal interest in the matter
under litigation.
Under
those
facts
and
circumstances that there has been an
indirect "appearance as counsel before
... an administrative body" and that is a
circumvention of the Constitutional
prohibition.
The
"intervention"
was
an
afterthought to enable him to appear
actively in the proceedings in some
other capacity.
5. Duty to Disclose
A public officer or employee shall,
upon assumption of office and as
often as may be required by law,
submit a declaration under oath
of his assets, liabilities, and net
worth.
Cases wherein declaration shall be
disclosed to the public in the
manner provided by law:
o President
o Vice-President
o the Members of the Cabinet
o the Congress
o the Supreme Court
o the Constitutional Commissions
and other constitutional offices
o
officers of the armed forces with
general or flag rank (Art XI Sec
17)
All Members of the Senate and the
House of Representatives shall,
upon assumption of office, make a
full disclosure of their financial and
business interests.
o They shall notify the House
concerned of a potential conflict
Page 14 of 313
3. Speech and Debate Clause

Jimenez v. Cabangbang, (1966)
In this case, a clarification of the scope
and limitation of the parliamentary
immunity was made. There was
reiteration that,
First, Congressional immunity is a
guarantee
of
immunity
from
answerability before an outside forum
but not from answerability to the
disciplinary authority of congress itself;
Second,
to
come
under
the
guarantee the speech or debate" must
be one made "in Congress or in any
committee thereof."
of interest that may arise from

the
filing
of
a
proposed
legislation of which they are
authors. (Art VI Sec 12)
The records and books of accounts
of the Congress shall be preserved
and be open to the public in
accordance with law,
o such books shall be audited by
the Commission on Audit which
shall
publish
annually
an
itemized list of amounts paid to
and expenses incurred for each
Member. (Art VI Sec 20)
3. Rules of Proceedings
4. Discipline of Members
E. Internal Government of Congress

1. Election of officers
Officers:
1. Senate President
2. Speaker of the House
3. Such officers as deemed by each house
to be necessary
Election of Officers: By a majority vote of
all respective members
2. Quorum
Majority
of
each
House
shall
constitute a quorum.
A smaller number may adjourn from
day to day and may compel the
attendance of absent members.
Avelino v. Cuenco, (1949):
In computing a quorum, members who
are outside the country, thus outside of
each Houses coercive jurisdiction, are
not included.
Majority refers to the number of
members within the jurisdiction of
the Congress (those it can order
arrested for the purpose of questioning).
In this case, one Senator was out of the
Philippines which is not within the
jurisdiction of the Senate, so that the
working majority was 23 Senators.
There is a difference between a
majority of "all members of the House"
and a majority of "the House", the latter
requiring less number than the first.
Therefore, an absolute majority (12) of
all members of the Senate less one (23)
constitutes constitutional majority of
the Senate for the purpose of the
quorum.
Each House shall determine its own

procedural rules.
Issues may either be:
o Political- On matters affecting only
internal operation of the legislature,
the legislatures formulation and
implementation of its rules.
o Justiciable - when the legislative
rule affects private rights.
Each house may punish its members

for disorderly behavior, and with the
concurrence of 2/3 of ALL its
members:
1. Suspension (shall not exceed 60
days)
2. Expulsion
Other disciplinary measures:
1. deletion of unparliamentary remarks
from the record
2. fine
3. imprisonment
4. censure
Alejandrino v. Quezon, (1924):

Senate expelled Senator Alejandrino for
disorderly conduct for assaulting Senator
de Vera during one of their debates in
session. Senate adopted a resolution
depriving Senator Alejandrino of all the
prerogatives, privileges and emoluments
of his office for the period of one year.
The Court held that the resolution
was illegal since it amounted to expulsion
and it would deprive the electoral
district of representation without any
means to fill the vacancy. The Senate had
no authority to suspend an appointed
Senator like Senator Alejandrino.
5. Journal
Records
and
Congressional
a. The Enrolled Bill Theory

An enrolled bill is the official copy of
approved legislation and bears the
certifications
of
the
presiding
officers of each House.
where the certifications are valid
and are not withdrawn, the contents
of the enrolled bill are conclusive
upon the courts.
Page 15 of 313
Casco v Gimenez, (1963)

Respect due to a co-equal department
requires the courts to accept the
certification of the presiding officer of
the legislative body.
Mabanag v. Lopez Vito, (1947)
A duly authenticated bill or resolution
imports absolute verity and is binding
on the courts.
b. Probative value of the Journal
The Journal is conclusive upon
courts.
But when the contents of
journal conflicts with that of
enrolled bill, the enrolled
prevails over the contents of
journal.
the
the
an
bill
the
US v. Pons, (1916):
Congress may validly continue enacting
bills even beyond the reglementary
period of adjournment.
When the
journal shows that Congress conducted
a sine die session where the hands of
the clock are stayed in order to afford
Congress the opportunity to continue
its session. All bills enacted during
the sine die session are valid and
conclusive upon the Courts.
The
Journals
are
conclusive
evidence of the contents thereof and
Courts are bound to take judicial
notice of them.
c.
Matters required to be entered in the

Journal
Yeas and Nays on third and final
reading of a bill
Veto message of the President
Yeas and Nays on the repassing of a
bill vetoed by the President
Yeas and Nays on any question at
the request of 1/5 of members
present.
d. Journal
Theory
Entry
Rule
v.
Enrolled Bill
Astorga v. Villegas, (1974):

It may be noted that the enrolled bill
theory is based mainly on "the respect
due to coequal and independent
departments," which requires the
judicial department "to accept, as
having passed Congress, all bills
authenticated in the manner stated."
Thus it has also been stated in other
cases that if the attestation is absent
and the same is not required for the
validity of a statute, the courts may
resort to the journals and other records
of Congress for proof of its due
enactment.
e. Congressional Record
6. Sessions
a. Regular Sessions
Convenes once every year on the 4th
Monday of July.
Continues to be in session until 30
days before the start of its next
regular
session,
exclusive
of
Saturdays, Sundays, and legal
holidays.
b. Special Sessions
Called by the President at any time
when Congress is not in session
c.
Adjournments
Neither House can adjourn for more
than 3 days during the time
Congress is in session without the
consent of the other House.
Neither can they adjourn to any
other place than that where the two
houses are sitting, without the
consent of the other.
d. Joint Sessions
Voting separately
Choosing the President (Sec. 4,
Art VII)
Page 16 of 313
Astorga v. Villegas, (1974)

RATIONALE OF ENROLLED BILL
THEORY- An enrolled Act in the
custody of the Secretary of State, and
having the official attestations of the
Speaker
of
the
House
of
Representatives, of the President of the
Senate, and of the President of the
United States, carries, on its face, a
solemn assurance by the legislative
and executive departments of the
government, charged, respectively, with
the duty of enacting and executing the
laws, that it was passed by Congress.
The respect due to coequal and
independent departments requires the
judicial department to act upon that
assurance, and to accept, as having
passed Congress, all bills authenticated
in the manner stated; leaving the courts
to determine, when the question
properly arises, whether the Act, so
authenticated, is in conformity with the
Constitution [citing Field vs. Clark].
1. Composition
3 Supreme Court Justices to be

designated by the Chief Justice (The
senior Justice in the Electoral Tribunal
shall be its Chairman).
6 Members of the Senate or House, as
the case may be, chosen on the basis of
proportional representation from the
political
parties
and
party-list
organizations.
The ET shall be constituted within 30
days after the Senate and the House
shall have been organized with the
election of the President and the
Speaker.
Members chosen enjoy security of
tenure and cannot be removed by mere
change of party affiliation.
Abbas v. SET, (1988)

The five LDP members who are also
members of the Senate Electoral Tribunal
may not inhibit themselves since it is
clear that the Constitution intended
legislative and judiciary membership to
the tribunal. As a matter of fact, the 2:1
ratio of legislative to judiciary indicates that
legislative membership cannot be ignored.
To exclude themselves is to abandon a duty
that no other court can perform.
2. Nature of Function
Jurisdiction: be the sole judge of all
CONTESTS relating to the election,
returns, and qualifications of their
respective members. ET has jurisdiction
only when there is an election contest.
Election Contest - one where a defeated

candidate challenges the qualification
and claims for himself the seat of a
proclaimed winner.
Angara v. Electoral Commission, (1936):

The Electoral Tribunal of each House is the
SOLE judge of all contests relating to the
election, returns, and qualifications of the
members of Congress.
In the absence of election contest, the
Electoral Tribunal has no jurisdiction.
The Electoral Tribunals are independent
constitutional bodies and cannot be
regulated by Congress.
Supreme Court has jurisdiction over
the Electoral Commission and the subject
matter of the present controversy for the
purpose of determining the character,
scope and extent of the constitutional
grant to the Electoral Commission as
"the sole judge of all contests relating to
the election, returns and qualifications of
the members of the National Assembly."
3. Independence
Tribunals
of
the
Electoral
Since
the
ETs
are
independent
constitutional bodies, independent even of
the respective House, neither Congress nor
the Courts may interfere with procedural
matters relating to the functions of the
ETs. (Co v. HRET, 1991)
Bondoc v. Pineda, (1991):
The HRET was created to function as a
nonpartisan court although two-thirds of
its members are politicians. It is a nonpolitical body in a sea of politicians.
To be able to exercise exclusive
jurisdiction, the House Electoral Tribunal
must be independent. Its jurisdiction to
hear and decide congressional election
contests is not to be shared by it with the
Legislature nor with the Courts. "The
Electoral Commission is a body separate
from and independent of the legislature and
though not a power in the tripartite scheme
of government, it is to all intents and
purposes, when acting within the limits of
its authority, an independent organ; while
composed of a majority of members of
the legislature it is a body separate from
and independent of the legislature.
Valid grounds / Just cause for

termination of membership to the
tribunal.
o Expiration of Congressional term of
office;
o Death or permanent disability;
o Resignation form political party
which one represents in the
tribunal;
o Removal from office for other valid
reasons.
Page 17 of 313
Determining the Presidents

temporary disability (Id., Sec.
11, Par 4)
Confirming the nomination of a
Vice-President (Id., Sec. 9)
Declaring a state of war (Sec.
23(1), Art VI)
Amending the Constitution (Sec.
1(1), Art XVII)
Voting Jointly
To revoke or extend martial law

or suspension of privilege of
habeas corpus (Sec. 18 Art VII)
4. Powers
Co v. HRET, (1991)
As constitutional creations invested with
necessary power, the Electoral Tribunals
are, in the exercise of their functions
independent organs independent of
Congress and the Supreme Court. The
power granted to HRET by the Constitution
is intended to be as complete and
unimpaired as if it had remained originally
in the legislature (citing Angara vs.
Electoral Commission [1936]).
5. Judicial Review of Decisions of

Electoral Tribunals
With the SC only insofar as the decision

or resolution was rendered
o without or in excess of jurisdiction,
or
o with grave abuse of discretion
tantamount to denial of due
process.
Garcia v HRET, (1999)

To question the jurisdiction of the lower
court or the agency exercising judicial or
quasi-judicial functions, the remedy is a
special civil action for certiorari under
Rule 65 of the Rules of Court. The
petitioner in such cases must clearly show
that the public respondent acted without
jurisdiction or with grave abuse of
discretion amounting to lack or excess of
jurisdiction. Grave abuse of discretion
defies exact definition, but generally refers
to "capricious or whimsical exercise of
judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must
be patent and gross as to amount to an
evasion of positive duty or a virtual refusal
to perform a duty enjoined by law, or to act
at all in contemplation of law, as where the
power is exercised in an arbitrary and
despotic manner by reason of passion and
hostility.
(Sec, Art VII)
1. Composition:
a. Senate President as ex-officio chairman
(shall not vote except in case of a tie.)
b. 12 Senators
c. 12 Members of the House
The 12 Senators and 12 Representatives
are elected on the basis of proportional
representation from the political parties
and party-list organizations.
Daza v Singson, (1989)
The
authority
of
the
House
of
Representatives
to
change
its
representation in the Commission on
Appointments to reflect at any time the
changes that may transpire in the political
alignments of its membership. It is
understood
that
such
changes
in
membership must be permanent and do
not include the temporary alliances or
factional divisions not involving severance
of political loyalties or formal disaffiliation
and permanent shifts of allegiance from one
political party to another.
Guingona, Jr. v Gonzales, (1993)
The
provision
of
Section
18
on
proportional
representation
is
mandatory in character and does not
leave any discretion to the majority party in
the Senate to disobey or disregard the rule
on proportional representation RATIONALE:
The party with a majority representation in
the Senate or the house of Representatives
can by sheer force of numbers impose its
will on the hapless minority.
By
requiring
a
proportional
representation in the Commission on
Appointments, Section 18 in effect works as
a check on the majority party in the Senate
and helps to maintain the balance of power.
No party can claim more than what it is
entitled to under such rule.
The Commission on Appointments shall

be constituted within 30 days after the
Senate and the House of Representative
shall have been organized with the
election of the President and the
Speaker.
act on all appointments within 30
session days from their submission to
Congress.
rule by a majority vote of all its
members.
Page 18 of 313
Lazatin v. HRET, (1988)

The HRET will only gain jurisdiction
upon proclamation of the candidate.
Until such proclamation, he is not yet a
member of the House; hence, the HRET will
not
have
jurisdiction
over
him.
Jurisdiction over such remains with the
COMELEC.
G. Commission on Appointments
2. Meetings
Commission on Appointments shall

meet only while Congress is in session.
Meetings are held either at the call of
the Chairman or by a majority of all its
members.
Since the Commission on Appointments
is also an independent constitutional
body, its rules of procedure are also
outside the scope of congressional
powers as well as that of the judiciary.
3. Jurisdiction
a. Commission on Appointments shall
confirm the appointments by the
President with respect to the following
positions:
Heads of the Executive Departments
(except if it is the Vice-President
who is appointed to the post);
Ambassadors,
other
public
ministers or consuls;
Officers of the AFP from the rank of
Colonel or Naval Captain;
Other officers whose appointments
are
vested
in
him
by
the
Constitution
(e.g.
COMELEC
members);
b. Congress cannot by law require that the
appointment of a person to an office
created by such law shall be subject to
confirmation by the Commission on
Appointments.
c. Appointments
extended
by
the
President to the above-mentioned
positions while Congress is not in
session shall only be effective until
disapproval by the Commission on
Appointments or until the next
adjournment of Congress.
1. General
(Sec Art VI)
a. Legislative Powers: (Scope: vested in
Congress by the Constitution except to
the extent reserved to the people by the
provision on initiative and referendum).
powers of appropriation, taxation
and expropriation
authority to make, frame and enact
laws
b. Non-legislative Powers (Scope)
power to canvass the presidential
elections;
declare the existence of war;
give concurrence to treaties and
amnesties;
propose constitutional amendments;
impeach;
derivative and delegated power;
implied powers such as the power to
punish contempt in legislative
investigations.
2. Specific Powers
a.
b.
c.
d.
e.
f.
Constituent power
Legislative Inquiries
Appropriation
Taxation
Concurrence
in
treaties
and
international agreements
War powers and delegations powers
3. Inherent Powers
a. Police Power
Make, ordain, and establish all
manner
of
wholesome
and
reasonable laws, statutes and
ordinances as they shall judge for
the good and welfare of the
constituents.
Includes maintenance of peace and
order, protection of life, liberty and
property and the promotion of
general welfare
b. Power of Taxation
c. Power of Eminent Domain
d. Contempt power
4. Limitations:
a. Formal or Procedural Limitations
Prescribes the manner of passing
bills in the form they should take
Limitations provided by Sec 26, Art
VI
o Every bill passed by the
Congress shall embrace only one
subject which shall be expressed
in the title
o No bill passed by either house
shall become law unless it has
passed 3 readings on separate
days
o Printed copies in its final form
have been distributed to its
members 3 days before the
passage of the bill
Exception: president certifies
to the necessity of its
Page 19 of 313
b. Substantive Limitations
Circumscribe both the exercise of
the power itself and the allowable
subject of legislation
Express limitations:
o Sec 24-26, 28-30, Art VI
Express limitations on general
powers
o Bill of rights
Implied Limitations
o No power to pass irrepealable
law
o Non-encroachment on powers of
other departments
o Non-delegability of powers
5. Discussion of Specific Powers

a. Constituent Powers
Power to propose amendments to
the Constitution
b. Legislative Inquiries (Sec 21, Art VI)
Requisites:
o Must be in aid of legislation
o In
accordance
with
duly
published rules of procedure
o Right of persons appearing in or
affected by such inquiries shall
be respected
Additional
limitation:
Executive
Privilege (Refer to Chap 4, III)
c. Appropriation
General Limitations:
o Appropriations must be for a
PUBLIC PURPOSE.
o Cannot appropriate public funds
or
property,
directly
or
indirectly, in favor of
1. Any
sect,
church,
denomination, or sectarian
institution or system of
religion or
2. Any
priest,
preacher,
minister, or other religious
teacher or dignitary as such.
EXCEPT if the priest, etc is
assigned to:
1. the Armed Forces;
2. any penal institution;
3. government orphanage;
4. leprosarium
o Government is not prohibited
from appropriating money for a
valid secular purpose, even if it
incidentally benefits a religion,
e.g. appropriations for a national

police force is valid even if the
police also protects the safety of
clergymen.
Also, the temporary use of public
property for religious purposes is
valid, as long as the property is
available for all religions.
Specific Limitations
o For General Appropriations Bills
1. Congress may not increase
the
appropriations
recommended
by
the
President for the operation of
the Government as specified
in the budget.
2. Form, content and manner of
preparation of the budget
shall be prescribed by law.
3. No provision or enactment
shall be embraced in the
general appropriations bill
unless it relates specifically
to
some
particular
appropriation therein.
4. Procedure
in
approving
appropriations FOR THE
CONGRESS shall strictly
follow the procedure for
approving appropriations for
other
departments
and
agencies.
5. No law shall be passed
authorizing any transfer of
appropriations. However, the
following may, BY LAW, be
authorized to AUGMENT any
item
in
the
general
appropriations law for their
respective
offices
from
savings in other items of
their
respective
appropriations:
i. President
ii. Senate President
iii. Speaker of the House
iv. Chief Justice of the
Supreme Court
v. Heads
of
the
Constitutional
Commissions
Guidelines for disbursement of
DISCRETIONARY
FUNDS
appropriated FOR PARTICULAR
OFFICIALS:
i. For public purposes
ii. To be supported by appropriate
vouchers
Page 20 of 313
immediate
enactment
to
meet a public calamity or
emergency
iii. Subject to such guidelines as

may be prescribed by law
For Special Appropriations Bill

1. Shall specify the purpose for
which it is intended
2. Shall be supported by funds
actually available as certified
by the National Treasurer or
to
be
raised
by
corresponding
revenue
proposal therein
Limitation on Use of Public Funds

(Sec 29, Art VI):
1. No money shall be paid out
of the National Treasury
EXCEPT in pursuance of an
appropriation made by law.
2. However, this rule does not
prohibit
continuing
appropriations, e.g. for debt
servicing, for the reason that
this rule does not require
yearly
or
annual
appropriation.
Four phases of Governments

budgeting process:
1. Budget preparation
2. Legislative authorization
3. Budget execution
4. Budget accountability
d. Taxation (Sec 28, Art VI)

Nature
o Sec 28 is an enumeration of the
limits on the inherent and
otherwise unlimited power
Purposes
o Pay debts and provide for the
common defense and general
warfare;
o Raise revenue;
o Instrument of national and
social policy;
o Instrument for extermination of
undesirable
acts
and
enterprises;
o Tool for regulation;
o Imposition of tariffs designed to
Limitations
o Public. Power to tax should be
exercised only for a public
purpose.
o Uniform and Equitable.
1. Operates with the same force
and effect in every place
where the subject of it is
found
2. Does
not
prohibit
classification for the purpose
of taxation
3. Requirements
for
valid
classification:
i. Based on substantial
distinctions which make
real differences
ii. Germane to the purpose
of law
iii. Applies to present and
future
conditions
substantially identical to
those of the present
iv. Applies equally to those
who belong to the same
class
o Progressivity.
1. The rate increases as the tax
base increases
2. Tax burden is based on the
taxpayers capacity to pay
3. Suited
to
the
social
conditions of the people
4. Reflects
aim
of
the
Convention that legislature
following
social
justice
command
should
use
taxation as an instrument
for
more
equitable
distribution of wealth
o Constitutional Tax Exemptions:
1. Religious,
charitable,
educational institutions and
their properties
2. All revenues and assets of
NON-STOCK
NON-PROFIT
EDUCATIONAL institutions
are exempt from taxes and
duties PROVIDED that such
revenues and assets are
actually,
directly
and
exclusively
used
for
educational purposes ( sec. 4
(3) Art XIV).
3. Grants,
endowments,
donations or contributions
used actually, directly and
Page 21 of 313
If Congress fails to pass the

general appropriations bill by the
end of any fiscal year:
i. The general appropriations bill
for the previous year is deemed
reenacted
ii. It shall remain in force and effect
until the general appropriations
bill is passed by Congress.
encourage and protect locally

produced
goods
against
competition for imports.
exclusively for educational

purposes shall be exempt
from
tax,
subject
to
conditions prescribed by law
(sec. 4 (4) Art XIV).
Special Funds
1. Money collected on a tax
levied for a special purpose
shall be treated as a special
fund and paid out for such
purpose only.
2. Once the special purpose is
fulfilled or abandoned, any
balance shall be transferred
to the general funds of the
Government
e. Concurrence
in
Treaties
and
international agreements (Sec 21, Art VII)
Treaties and other international
agreements which are in the nature
of
original
agreements
of
a
permanent
nature
or
which
establish national policy, or involve
political issues or changes in
national
policies
need
the
concurrence
of
2/3
of
the
members of the Senate.
Executive agreements which are
merely implementation of treaties or
statutes or of well-established
policies
or
are
of
transitory
effectivity do not require Senate
concurrence.
f.
War Powers (Sec 23 (1), Art VI)

Congress in joint session assembled
and voting separately shall have the
sole power to declare the existence
of war
Philippines renounces war as an
instrument of national policy
Even though the legislature can
declare existence of war and enact
measures to support it, the actual
power to make war is lodged
nonetheless in the executive
6. Delegation of Powers
a. General rule: Congress cannot delegate
its legislative power (Potestas delegate
non potest delegare)
b. Exceptions
1. Delegation of tariff powers to the
President (Art VI sec. 28(2)).
2. Delegation of emergency powers to
the President (Art VI sec. 23(2)).
o Preconditions:
i. Limited time period
CA 671 passed delegative

emergency powers to the
president in times of war
and
other
national
emergencies.
Since
said
grant was given to meet the
emergencies incidental to
the war, such powers ceased
at the time the war stopped
ii. Power may be withdrawn by
resolution, not necessary
that it be done through
statute
iii. Subject to restrictions as the
congress may provide
3. Delegation to the people at large.
4. Delegation to local governments.
5. Delegation to administrative bodies
(rule-making power).
Tests for a Valid Delegation
1. The Completeness Test
The law must be complete in all its terms
and conditions when it leaves the
legislature so that there will be nothing left
for the delegate to do when it reaches him
except enforce it.
2. The Sufficient Standard Test
The law must fix a standard, the limits of
which are sufficiently determinate or
determinable, to which the delegate must
conform in the performance of his
functions. (Pelaez vs. Auditor General, 1965)
7. Legislative Process
A. Bills
that
Must
Originate
EXCLUSIVELY from the House of
Representatives
(Sec. 24, Art VI):
i.
vi.
vii.
Appropriation bills (A bill appropriating

a sum of money from the public
treasury.) A bill creating a new office,
and appropriating funds therefor is NOT
an appropriation bill.
Revenue bills (A bill
specifically
designed to raise money or revenue
through imposition or levy.)
A law regulating an industry, though
incidentally imposing a tax, does not
make the law a revenue bill.
Tariff bills
Bills authorizing the increase of public
debt
Bills of local application
Private bills
Tolentino vs. Secretary of Finance (1994)
ii.
iii.
iv.
v.
Page 22 of 313
B. Procedure for the Passage of Bills

i.
Procedure for Enactment:

Introduction: must be by any member
of the House of Representatives or
Senate except for some measures that
must originate only from the former
chamber
First reading: The reading of the title
and the number; the bill is passed by
the Senate President or Speaker to the
proper committee
Second reading: Entire text is read
and debates are held, and amendments
introduced.
The bill as approved in the second
reading is printed in its final form and
copies are distributed three days before
the third reading
Third reading: Only the title is read,
no amendments are allowed. Vote shall
be taken immediately thereafter and the
yeas and nays entered in the journal.
Sent to the other chamber: once the
bill passes the third reading, it is sent
to the other chamber where it will also
go under three readings
Enrolled Bill: The bill is printed as

finally approved by the Congress,
authenticated with the signatures of the
Senate President or the Speaker and the
Secretary
and
approved
by
the
President
ii. Submission to the President; Presidents
Veto power (Sec 27, Art VI)
Every bill, in order to become a law,
must be presented to and signed by
the President.
If the President does not approve of

the bill, he shall veto the same and
return it with his objections to the
House from which it originated. The
House shall enter the objections in
the
journal
and
proceed
to
reconsider it.
The President must communicate
his decision to veto within 30 days
from the date of receipt thereof. If
he fails to do so, the bill shall
become a law as if he signed it.
To override the veto, at least 2/3 of
ALL the members of each House
must agree to pass the bill. In such
case, the veto is overridden and
becomes a law without need of
presidential approval.
Item veto
o The President may veto particular items
in an appropriation, revenue or tariff
bill.
o This veto will not affect items to which
he does not object.
Veto of a Rider
o A rider is a provision which does not
relate to a particular appropriation
stated in the bill.
o Since it is an invalid provision under
Section 25(2), the President may veto it
as an item.
Bolinao Electronics Corp vs. Valencia,

(1964)
The executive's veto power does not
carry with it the power to strike out
conditions or restrictions. If the veto is
unconstitutional, it follows that the
same produced no effect whatsoever, and
the restriction imposed by the appropriation
bill, therefore, remains.
Gonzales vs. Macaraig, (1990)
DOCTRINE
OF
INAPPROPRIATE
PROVISIONSA
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.
Bengzon vs. Drilon, (1992)
The Constitution provides that only a
particular item or items may be vetoed. The
power to disapprove any item or items in an
appropriate bill does not grant the authority
to veto a part of an item and to approve the
remaining portion of the same item.
The terms item and provision in budgetary
legislations and practice are concededly
Page 23 of 313
RA 7716 (EVAT Law) did not violate Sec. 24,

Art. VI (Origination Clause). It is important
to emphasize that it is the law, and not
the bill, which is required to originate
exclusively from the HoR, because the bill
may undergo such extensive changes in the
Senate that the result may be the rewriting
of the whole.
To insist that a revenue statute, and not
just the bill, must be substantially the
same as the House bill would be to deny
the Senates power not only to concur with
amendments
but
also
to
propose
amendments. It would violate the coequality of legislative power of the Senate.
The president cannot veto unavoidable

obligations such as the payment of
pensions which has already been vested by
the law. The veto is invalid since it is
violated the separation of property and the
judiciarys fiscal autonomy.
C. Effectivity of Laws
Article 2 (CC)
Laws shall take effect after fifteen days following
the completion of their publication in the Official
Gazette, unless it is otherwise provided. This
code shall take effect one year after such
publication.
unless otherwise provided this phrase

refers to the date of effectivity, and not
to the very act of publication. Complete
publication is indispensable.
Executive Order No. 200 (June 18,
1987): Amended Art II of CC to include
any newspaper of general circulation as
a means of publication other than the
Official Gazette
8. Initiative and Referendum

(Sec 32, Art VI)
a. Limited only to the proposal of
amendments
b. Requirements for peoples initiative:
12 % of the total number of
registered voters
at least 3% of all registered voters in
every district should be represented
c. No amendments shall be authorized
within 5 years following the ratification
of the new Constitution.
Santiago v Comelec, (1997)
The right of the people to directly propose
amendments to the Constitution through
the system of initiative would remain
entombed in the cold niche of the
Constitution until Congress provides for its
implementation. Stated otherwise, while the
Constitution has recognized or granted that
right, the people cannot exercise it if
Congress, for whatever reason, does not

provide for its implementation.
Held: RA 6735 is incomplete, inadequate, or
wanting in essential terms and conditions
insofar as initiative on amendments to the
Constitution is concerned.
The court cited the following reasons:
1. Sec 2 of the Act does not suggest an
initiative on amendments to the
Constitution. The inclusion of the word
"Constitution" therein was a delayed
afterthought. That word is neither
germane nor relevant to said section.
2. Unlike in the case of the other systems
of initiative, the Act does not provide for
the contents of a petition for initiative
on the Constitution.
3. While the Act provides subtitles for
National Initiative and Referendum and
for Local Initiative and Referendum, no
subtitle is provided for initiative on the
Constitution. Also, while RA 6735
exerted utmost diligence and care in
providing for the details in the
implementation
of
initiative
and
referendum on national and local
legislation, it failed, rather intentionally,
to do so on the system of initiative on
amendments to the Constitution.
Lambino v Comelec, (2006)
The court cited the following reasons for
holding that there was failure to comply
with 2, Art.XVII of the Constitution: (a) the
initiative petition did not present the full
text of the proposed amendments; and (b)
the proposed changes constituted revision
not
amendment.
The
essence
of
amendments directly proposed by the
people
through
initiative
upon
a
petition is that the entire proposal on its
face is a petition by the people. This
means two essential elements must be
present. First, the people must author and
thus sign the entire proporal. No agent or
representative can sign on their behalf.
Second, as an initiative upon a petition, the
proposal must be embodied in a petition.
Further, a peoples initiative could only
propose amendments not revisions. Only
Congress or a constitutional convention can
propose both amendments and revisions to
the Constitution. A change in the form of
government from presidential and
bicameral Congress to parliamentary and
unicameral
legislatureconstitutes
revision and not merely amendment.
Page 24 of 313
different. An item in a bill refers to the

particulars, the details, the distinct and
severable parts . . . of the bill. It is an
indivisible sum of money dedicated to a
stated
purpose.
An
'item'
of
an
appropriation bill means an item which in
itself is a specific appropriation of money,
not some general provision of law, which
happens to be put into an appropriation
bill.'"
II. JUDICIARY
1. Judicial Power v. Judicial Review

Where
vested
Definition
Requisites
for exercise
review
under
the
Functions of Judicial Review
A. In General
JUDICIAL
POWER
Supreme Court
Lower courts
Duty 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
[Art. VIII, Sec. 1,
Par. 2]
Jurisdiction
power to decide
and hear a case
and execute a
decision thereof
power of judicial
Constitution.
a. Checking
b. Legitimating
c. Symbolic [NACHURA]
JUDICIAL
REVIEW
Supreme Court
Lower courts
Power of the
courts to test
the validity of
executive and
legislative acts
in light of their
conformity with
the
Constitution
[Angara
v.
Electoral
Commission
(1936)]
Essential
Review
1. Appropriate
case: actual
case or
controversy
2. Standing:
personal and
substantial
interest
3. Question
raised at the
earliest
opportunity
4. Lis mota of
the case
b. Standing: NOT the same as real party in

interest
A proper party is one who has sustained
or is in imminent danger of sustaining a
direct injury as a result of the act
complained of [NACHURA, citing IBP
v. Zamora (2000)]. The alleged injury
must also be capable of being redressed
by a favorable judgment [Tolentino v.
Comelec, (2004)].
i. requires partial consideration of the
merits of the case in view of its
constitutional and public policy
underpinnings
[Kilosbayan
v.
Morato, (1995)]
ii. may be brushed aside by the court
as a mere procedural technicality in
view
of
transcendental
importance of the issues involved
[Kilosbayan v. Guingona, (1994);
Tatad v. DOE, (1995)]
iii. Who are proper parties?
taxpayers, when public funds
are
involved
[Tolentino
v.
Comelec, (2004)]
Government of the Philippines,
when questioning the validity of
its own laws [People v. Vera,
(1937)]
Angara v. Electoral Commission, (1936)

When the judiciary mediates to allocate
constitutional boundaries, it does not
assert any superiority over the other
departments; it does not in reality nullify
or invalidate an act of the legislature, but
only asserts the solemn and sacred
obligation
assigned
to
it
by
the
Constitution to determine conflicting
claims
of
authority
under
the
Constitution and to establish for the
parties in an actual controversy the
rights which that instrument secures
and guarantees to them. This is in truth
all that is involved in what is termed
"judicial supremacy" which properly is the
Requisites
for
Judicial
a. Actual case or controversy

John Hay v. Lim, (2003)
This means that there must be a
genuine conflict of legal rights and
interests which can be resolved through
judicial determination.
This
precludes
the
courts
from
entertaining the following:
i. Request for an advisory opinion
[Guingona v. CA, (1998)]
ii. Cases that are or have become moot
and academic, unless -- capable of repetition yet evading
review [Alunan III v. Mirasol,
(1997); Sanlakas v. Executive
Secretary, (2004)]; or
when the court feels called upon
to exercise its symbolic function
and provide future guidance
[Salonga v. Pao, (1985)]
Page 25 of 313
c.
legislators, when the powers of

Congress are being impaired
[Philconsa v. Enriquez, (1994)]
citizens, when the enforcement
of a public right is involved
[Taada v. Tuvera, (1985)]
Constitutional question must be raised at

the earliest possible opportunity, except:
i. in criminal cases, at the discretion
of the court
ii. in civil cases, if necessary for the
determination of the case itself
iii. when the jurisdiction of the court is
involved [NACHURA]
d. Decision on the constitutional question

must be determinative of the case itself.
De la Llana v. Alba, (1982)
The reason for this is the doctrine of
separation of powers which requires that
due respect be given to the co-equal
branches, and because of the grave
consequences
of
a
declaration
of
unconstitutionality.
Political Question Doctrine

Taada v. Cuenco, (1957)
The term political question refers to: (1)
matters to be exercised by the people in
their primary political capacity; or (2)
those specifically delegated to some other
department or particular office of the
government, with discretionary power to
act. It is concerned with issues dependent
upon the wisdom, not legality, of a
particular measure.
In recent years, the Court has set aside this
doctrine
and
assumed
jurisdiction
whenever it found constitutionally-imposed
limits on the exercise of powers conferred
upon the Legislative and Executive
branches [BERNAS].
POLITICAL
QUESTION
Alejandrino v. Quezon,
(1924):
The
legislatures exercise of
disciplinary power over
its member is not to be
interfered with by the
Court.
Vera v. Avelino, (1946):
inherent right of the
legislature
to
determine who shall be
admitted
to
its
membership
Mabanag v. Lopez-Vito,
(1947): Proposal to
JUSTICIABLE
CONTROVERSY
Avelino
v.
Cuenco,
(1949):
election
of
Senate President was
done
without
the
required quorum
Taada
v.
Cuenco,
(1957): The selection of
the members of the
Senate
Electoral
Tribunal is subject to
constitutional
limitations.
Cunanan v. Tan, Jr.,
(1962):
The
amend
the
Constitution
is
a
highly
political
function performed by
Congress
in
its
sovereign capacity.
Osmea v. Pendatun,
(1960):
disciplinary
power
of
the
legislature
Severino v. GovernorGeneral,
(1910):
Mandamus
and
injunction could not
lie
to
enforce
or
restrain a duty which
is discretionary (calling
a
special
local
election).
Montenegro
v.
Castaeda,
(1952):
Authority to decide
whether the exigency
has arisen requiring
the suspension of the
privilege of the writ of
habeas corpus belongs
to the President.
Manalang
v.
Quitoriano,
(1954):
Presidents appointing
power is not to be
interfered with by the
Court.
Javellana v. Executive
Secretary, (1973): The
people may be deemed
to have cast their
favorable votes in the
belief that in doing so
they did the part
required of them by
Article XV, hence, it
may be said that in its
political aspect, which
is what counts most,
after all, said Article
has been substantially
complied with, and, in
effect,
the
1973
Constitution has been
constitutionally
ratified.
Effect
of
a
Unconstitutionality
Commission
on
Appointments
is
a
constitutional creation
and does not derive its
power from Congress.
Gonzales v. Comelec,
(1967); Tolentino v.
Comelec,
(1971):
abandoned Mabanag v.
Lopez-Vito
Lansang v. Garcia,
(1971): Suspension of
the privilege of the writ
of habeas corpus is not
a political question.
Javellana v. Executive
Secretary, (1973): WON
the 1973 Constitution
had been ratified in
accordance with the
1935 Constitution is
justiciable.
Declaration
of
a. Orthodox view
An unconstitutional act is not a law; it
confers no rights; it imposes no duties;
it affords no protection; it creates no
office; it is inoperative, as if it had not
been passed at all.
b. Modern view
Pelaez v. Auditor General, (1965)
Page 26 of 313
2. Appointment and Qualifications
Citizenship
Age
Experience
Tenure
Characteristics
SC and
CA
JUSTICE
Naturalborn
Filipino
At least
40 years
old
RTC
JUDGE
MTC/
MCTC
JUDGE
Filipino
At least At least
35
30
years
years
old
old
Has been engaged
for at least 5 years
in the practice of
law*
in
the
Philippines or has
held public office
in the Philippines
requiring
admission to the
practice of law as
an indispensable
requisite
15 years
or more
as
a
judge or
a
lower
court or
has been
engaged
in
the
practice
of law in
the Phils.
for
the
same
period
Hold
office
during
good
behavior until they reach the
age of 70 or
become
incapacitated
to
discharge their duties
Person of proven competence,
integrity,
probity
and
independence
* Cayetano v. Monsod, (1991): Practice of

law is not confined to litigation. It
means any activity in and out of court,
which requires the application of law, legal
procedure,
knowledge,
training
and
experience.
3. Disqualification from Other

Positions or Offices
Art. VIII, Sec. 12. The Members of the Supreme
Court and of other courts established by law
shall not be designated to any agency
performing quasi-judicial or administrative
functions.
Meralco v. Pasay Transportation Co.,

(1932)
The issue concerns the legal right of the
members of the SC, sitting as a board of
arbitrators, the decision of a majority of
whom shall be final, to act in that
capacity.
It was held that the SC and its members

should not and cannot be required to
exercise any power or to perform any trust
or to assume any duty not pertaining to or
connected w/ the administering of judicial
functions.
Garcia v. Macaraig, (1972)
A judge in the CFI shall not be detailed with
the Department of Justice to perform
administrative
functions
as
this
contravenes the doctrine of separation of
powers.
4. Grounds Removal from Office on

Impeachment of Members of the
SC
(Art. XI, Sec. 2)
i.
ii.
iii.
iv.
v.
vi.
Culpable violation of the Constitution

Treason
Bribery
Graft and corruption
Other high crimes
Betrayal of public trust
B. Supreme Court
1. Composition
i. Chief Justice and 14 Associate Justices
ii. May sit en banc or in divisions of three,
five, or seven Members
iii. Vacancy shall be filled within 90 days
from the occurrence thereof
2. Powers: Jurisdiction
i.
Original
a. Cases affecting ambassadors, other
public ministers and consuls [Art.
VIII, Sec. 5(1)];
b. Petitions for certiorari, prohibition,
mandamus, quo warranto, and
habeas corpus [Art. VIII, Sec. 5(1)];
c. Sole judge of all contests relating to
the
election,
returns,
and
qualifications of the President or
Vice-President, and may promulgate
its rules for the purpose [Art. VII,
Sec. 4, par. 7];
d. Sufficiency of the factual basis of
the proclamation of martial law or
the suspension of the privilege of the
writ of habeas corpus or the
extension thereof [Art. VII, Sec. 18,
par. 3].
Page 27 of 313
Certain legal effects of the statute prior

to its declaration of unconstitutionality
may be recognized.
[NACHURA]
ii. Appellate
iii. Congressional power vis--vis SC

Art. VIII, Sec. 2. The Congress shall have
the power to define, prescribe, and apportion
the jurisdiction of the various courts
[subject
to
the
following
conditions/limitations:
a. It may not increase or decrease the

appellate jurisdiction of SC
b. It may not pass a law reorganizing
the Judiciary when it undermines
the security of tenure of the
Members of the latter
Fabian v. Desierto, (1998)
Section 27 of Republic Act No. 6770
(Ombudsman Act of 1989), together
with
Section
7,
Rule
III
of
Administrative Order No. 07 (Rules of
Procedure of the Office of the
Ombudsman), and any other provision
of law or issuance implementing the
aforesaid Act and insofar as they
provide for appeals in administrative
disciplinary cases from the Office of the
Ombudsman to the Supreme Court, are
declared INVALID for increasing the
Courts appellate jurisdiction. However,
it cannot be said that transfer of
appellate jurisdiction to the CA is an act
of creating a new right of appeal
because such power of the SC to
transfer
appeals
to
subordinate
appellate courts is purely a procedural
and not a substantive power.
i.
Rule-making
Art. VIII, Sec. 5. The Supreme Court shall
have the following powers:
xxx
(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.
Echegaray v Secretary of Justice,

(1999)
The 1987 Constitution took away the
power of Congress to repeal, alter, or
supplement rules concerning pleading,
practice and procedure. In fine, the
power
to
promulgate
rules
of
pleading, practice and procedure is
no longer shared by this Court with
Congress,
more
so
with
the
Executive.
Limitations:
a. Shall provide a simplified and
inexpensive procedure for speedy
disposition of cases
b. Uniform for all courts in the same
grade
c. Shall not diminish, increase or
modify substantive rights
ii. Administrative
a. Assign temporarily judges of lower
courts to other stations as public
interest may require;
shall not exceed 6 months
without the consent of the judge
concerned
b. Order a change of venue or place of
trial to avoid a miscarriage of
justice;
c. Appoint all officials and employees
of the Judiciary in accordance with
the Civil Service Law;
d. Supervision over all courts and the
personnel thereof;
e. Discipline judges of lower courts, or
order their dismissal by a vote of a
majority of the Members who
actually
took
part
in
the
deliberations on the issues in the
case and voted [en banc].
Page 28 of 313
Art. VIII, Sec. 5. The Supreme Court shall

have the following powers:
xxx
(2) Review, revise, reverse, modify, or affirm
on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments
and orders of lower courts in:
(a) All cases in which the constitutionality or
validity of any treaty, international or
executive agreement, law, presidential
decree, proclamation, order, instruction,
ordinance, or regulation is in question.
(b) All cases involving the legality of any tax,
impost, assessment, or toll, or any penalty
imposed in relation thereto.
(c) All cases in which the jurisdiction of any
lower court is in issue.
(d) All criminal cases in which the penalty
imposed is reclusion perpetua or higher.
(e) All cases in which only an error or
question of law is involved.
3. Other Powers
i.
En banc
a. decided with the concurrence of a
actually
took
part
in
the
deliberations and voted.
b. Instances when the SC sits en banc:
(C-DD-MM-PO)
Those
involving
the
constitutionality, application, or
operation of: (TOIL-PIPOO)
Treaty
Orders
International or executive
agreement
Law
Presidential decrees
Instructions
Proclamations
Ordinances
Other regulations
Exercise of the power to
discipline judges of lower courts,
or order their dismissal [Art.
VIII, Sec. 11]
Cases or matters heard by a
division where the required
number of votes to decide or
resolve (the majority of those
who
took
part
in
the
deliberations on the issues in
the case and voted thereon and
in no case less than 3 members)
is not met [Art. VIII, Sec. 4(3)]
Modifying or reversing a doctrine
or principle of law laid down by
the court in a decision rendered
en banc or in division [Art. VIII,
Sec. 4(3)]
Actions instituted by citizen to
test
the
validity
of
a
proclamation of martial law or
suspension of the privilege of the
writ [Art. VII, Sec. 18]
When sitting as Presidential
Electoral Tribunal [Art. VII, Sec.
4, par. 7]
All other cases which under the
Rules of Court are required to be
heard by the SC en banc. [Id.,
Sec. 4(2)]
ii. In divisions
Requirement and Procedures:
With the concurrence of a
actually took part in the
deliberations and voted
In
no
case
without
the
concurrence of at least three of
such Members
When required number is not
obtained, the case shall be
decided en banc:
Provided: that no doctrine or
principle of law laid down by the
court in a decision rendered en
banc or in division may be
modified or reversed except by
the court sitting en banc
Firestone Ceramics v. CA, (2000)

The Supreme Court sitting en banc is
not an appellate court vis--vis its
Divisions. The only constraint is that
any doctrine or principle of law laid
down by the Court, either rendered en
banc or in division, may be overturned
or reversed only by the Court sitting en
banc.
iii. Provisions of the Rules of Court
Rule 56, Sec. 7. Procedure if opinion is
equally divided. Where the court en banc is
equally divided or the necessary majority
cannot be had, the case shall again be
deliberated on, and if after such deliberation
no decision is reached, the original action
commenced in the court shall be
dismissed; in appealed cases, the judgment
or order appealed from shall stand
affirmed; and on all incidental matters, the
petition or motion shall de denied.
Rule 125, Sec. 3. Decision if opinion is

equally divided. When the Supreme
Court en banc is equally divided or the
necessary majority cannot be had on
whether to acquit the appellant, the
case shall again be deliberated upon
and if no decision is reached after redeliberation,
the
judgment
of
conviction of the lower court shall be
reversed and the accused acquitted.
5. Requirements as to Decisions
(applicable also to lower collegiate
courts)
i.
Conclusions shall be reached in

consultation before the case is
assigned to a Member for the writing of
the opinion;
ii. Certification to this effect signed by the
Chief Justice shall be issued and a copy
thereof attached to the record of the
case and served upon the parties;
Page 29 of 313
4. Manner of Sitting and Required

Votes
6. Mandatory Period for Deciding

Cases
SUPREME
COURT
24 months
from date
of
submission
LOWER
COLLEGIATE
COURTS
12
months,
unless
reduced by SC
LOWER
COURTS
3
months,
unless reduced
by SC
resolution has not been rendered or issued

within said period.
Art. VIII, Sec. 15(4). Despite the expiration of
the applicable mandatory period, the court,
without prejudice to such responsibility as may
have been incurred in consequence thereof, shall
decide or resolve the case or matter
submitted thereto for determination, without
further delay.

1. Composition
i. Ex Officio Members
Chief Justice as ex officio
Chairman
Secretary of Justice
Representative of the Congress
ii. Regular Members
appointed by the President for a
term of 4 years with the consent
of
the
Commission
on
Appointments but the term of
those initially appointed shall be
staggered as to create continuity
Representative of the Integrated
Bar (4 years)
Professor of Law (3 years)
Retired Member of the SC (2
years)
Representative of the private
sector (1 year)
iii. Clerk of SC as Secretary ex officio
2. Function
i. Recommending appointees to the
Judiciary;
ii. Such other functions and duties as
the SC may assign.
3. Procedure
i. Members of the SC and Judges of
lower courts
appointed by the Pres. from a
list of at least 3 nominees
prepared by the JBC for every
vacancy
no confirmation needed
ii. Lower courts
President
shall
issue
the
appointments within 90 days
from the submission of the list
Art. VIII, Sec. 15(3). Upon the expiration of

the corresponding period, a certification to this
effect signed by the Chief Justice or the
presiding judge shall forthwith be issued and a
copy therefor attached to the record of the case
or matter, and served upon the parties. The
certification shall state why a decision or
Page 30 of 313
iii. Any Member who took no part, or

dissented, or abstained from a decision
or resolution must state the reason;
iv. Decision shall clearly and distinctly
express the facts and the law on
which it is based
No petition for review or MR of a
decision shall be refused due course
or denied without stating the legal
basis
Borromeo vs. Court of Appeals,
(1990): The Court reminds all lower
courts, lawyers, and litigants that it
disposes of the bulk of its cases by
minute resolutions and decrees
them as final and executory, as
where a case is patently without
merit, where the issues raised are
factual in nature, where the decision
appealed from is supported by
substantial evidence and is in
accord with the facts of the case and
the applicable laws, where it is clear
from the records that the petition is
filed merely to forestall the early
execution of judgment and for noncompliance with the rules. The
resolution denying due course or
dismissing the petition always gives
the legal basis. As emphasized in In
Re: Wenceslao Laureta (1987), The
Court is not duty bound to render
signed Decisions all the time. It has
ample discretion to formulate
Decisions
and/or
Minute
Resolutions, provided a legal
basis is given, depending on its
evaluation of a case. This is the
only way whereby it can act on all
cases filed before it and, accordingly
discharge
its
constitutional
functions.
III.EXECUTIVE
A. THE PRESIDENT
1. Qualifications, Election, Term and
Oath
i.
Qualifications (Sec. 2, Art VII)

natural-born
citizen
of
the
Philippines
a registered voter
able to read and write
at least forty years of age on the day
of the election
a resident of the Philippines for at
least
ten
years
immediately
preceding such election.
o residency and domicile mean the
same thing under election law
o The ff must be taken into
consideration:
1. bodily presence
2. animus manendi
3. animus revertendi
The candidate must be qualified on
the day of the elections.
ii. Term and Election (Sec. 4, Art VII)

Elected by direct vote of the people
Unless otherwise provided by law,
the regular election for President
and Vice-President shall be held on
the second Monday of May.
Canvassing of votes:
o Congress shall promulgate rules
for canvassing of the certificates.
o Board
of
canvassers
duly
certifies returns of every election
for President and VP and
transmits them to Congress,
directed to the Senate President.
o Senate President shall, not later
than 32 after the day of election
(2nd Tuesday of June), open all
certificates in the presence of the
members of Congress in a joint
public session. The Congress,
upon determination of the
authenticity and due execution
of the certificates, shall canvass
the votes.
o The persons having the highest
number of votes shall be proclaimed elected. In case of a tie,
one of the candidates shall be
chosen by the vote of a majority
of all the members of Congress,
voting separately.
o The Supreme Court en banc,
shall be the sole judge of all
contests relating to the election,

returns, and qualifications of the
President, or VP, and may
promulgate its rules for the
purpose.
Regular Election and Term
o The President and Vice-President
(who shall be elected with and in the
same manner as the President) shall
be elected by direct vote of the
people for a term of 6 years
o
Term shall begin on the noon of
June 30 next following the day of
election. *The regular election for
President and Vice-President shall
be held on the 2nd Monday of May.
(Art. VII, Sec. 4 pars. 1 & 3).
Special Election and Term
o A special election to elect the
President and Vice-President shall
be called by Congress, pursuant to
VII, 10 if
1. a vacancy occurs in the offices of
President and Vice- President
2. more than 18 months
3. before the date of the next
regular presidential election.
o Philippine Bar Association, Inc. v
COMELEC, (1985): The failure of the
SC to issue an injunction on time is
a decision in itself in favor of the
validity of the law calling for Snap
Elections despite the absence of
vacancy.
o The Constitution is silent as to
whether the persons elected in the
special election shall serve only for
the unexpired portion of the term.
Whether the new President can
run for re- election if he has not
served more than 4 years, which
depends on the construction of the
phrase "has succeeded as the
President.
Re-election
A. President
o Not eligible for any re-election.
o No person who has "succeeded"
as President and has served as
such for more than 4 years, shall
be qualified for any election to
the same office (the Presidency)
at any time. (par. 1 Sec. 4, Art
VII)
The person who succeeds as
President and not just in an
Page 31 of 313
2. Privilege and Salary

o
o
The President shall have an official

residence.
The salaries of the President and VicePresident shall be determined by law
and shall not be decreased during their
tenure.
No increase in said compensation
shall take effect until after the
expiration of the term of the
incumbent during which such
increase was approved.
Unless
the
Congress
provides
otherwise,
the
President
shall
receive an annual salary of P
300,000 (Sec 17, Art XVIII)
They shall not receive during their
tenure any other emolument from the
Government or any other source.
3. Prohibitions (Sec 13, Art VII)

Canvassing of Election Returns
o Congress
acts
as
Board
of
Canvassers of every election for
President and Vice-President.
Prohibited acts:
i. Hold any other office or employment
during
their
tenure,
unless
otherwise
provided
in
the
Constitution
ii. Directly or indirectly practice any
other profession
iii. Directly or indirectly participate in
any business
iv. Be financially interested in any
contract with, or in any franchise, or
special privilege granted by the
Government or any subdivision,
agency or instrumentality thereof,
including
GOCCs
or
their
subsidiaries.
v. Appoint Presidents spouse and
relatives by consanguinity or affinity
within the 4th civil degree as
Members of the Constitutional
Commissions, or the Office of the
Ombudsman, or as Secretaries,
Undersecretaries,
chairmen
or
heads of bureaus or offices,
including
GOCCs
and
their
subsidiaries.
Who are prohibited?

1. President
2. Vice-President,
3. the Members of the Cabinet, and
their deputies or assistants
Civil Liberties Union v Executive

Secretary, (1991):
The stricter prohibition applied to the
Pres. and his official family under Sec.
13, Art. VII as compared to the
Electoral Tribunal for the Election of

the President and Vice- President
o The Supreme Court, sitting en banc,
shall be the sole judge of all
returns, and qualifications of the
President or Vice-President, and
may promulgate its rules for that
purpose. (par 7, Sec. 4, Art VII.)
while election controversies in
the Congress are under the
exclusive jurisdiction of their
respective Electoral Tribunals,
those in the Executive are under
the Supreme Court itself.
iii. Oath of Office (Sec 5, Art VII)
Before they enter into office, the
President, the Vice-President or the
Acting President shall take the
following oath or affirmation:
"I do solemnly swear (or affirm) that
I will faithfully and conscientiously
fulfill my duties as President (or
Vice-President or Acting President)
of the Philippines, preserve and
defend its Constitution, execute its
laws, do justice to every man, and
consecrate to myself to the service of
the Nation. So help me God." (In
case of affirmation, last sentence
will be omitted.)
Page 32 of 313
acting capacity, could either

be
(i) the Vice-President, or
(ii) one who was elected
President in a special
election.
B. Vice President
o shall not serve for more than 2
successive terms.
o
a voluntary renunciation of
office for any length of time,
shall not be considered an
interruption in the continuity of
the service for the full terms for
which he was elected. (par 2,
Sec. 4, Art VII).
applicable beginning 1992,
because of the Transitory
Provisions. This prohibition
is similar to that applicable
to Senators.
Prohibitions against other officials

(1.) Sec. 13, Art VI
No Senator or Member of the House
of Representatives, during his term,
may:
o hold any other office or employment
in the Government, or any of its
subdivisions,
agencies,
or
instrumentalities including GOCCs
or their subsidiaries
o be appointed to any office which
may have been created or the
emoluments
thereof
increased
during the term for which he was
elected
(2.) Sec. 2, Art IX-A
No member of the Constitutional
Commission during his term, shall:
o hold any other office or employment.
o engage in the practice of any
profession
or
in
the
active
management or control of any
business which in any way may be
affected by the functions of his office
o 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
government-owned or controlled
corporations or their subsidiaries.
(3.) Sec. 7. Art IX B

No elective official during his tenure
shall:
o be eligible for appointment or
designation in any capacity to any
public office or position.
No appointive official shall:
o hold any other office or employment
in the Government or any of its
subdivisions,
agencies
or
instrumentalities, including GOCCs
or their subsidiaries.
(4.) Sec. 12, Art VIII
The Members of the Supreme Court and
of other courts established by law shall
not be designated to any agency
performing
quasi-judicial
or
administrative functions.
o
Exceptions
to
rule
prohibiting
executive officials from holding
additional positions:
a. President
(1) The President can assume a
Cabinet post, (because the
departments
are
mere
extensions of his personality,
according to the Doctrine of
Qualified Political Agency, so
no objection can be validly
raised based on Sec. 13, Art VII.)
(2) The President is the Chairman of
NEDA. (Sec. 9, Art XII)
b. Vice-President
xxx The Vice-President may be
appointed as member of the
Cabinet.
Such
appointment
requires no confirmation (Sec 3, Art
VII)
c. Cabinet
(1) The Secretary of Justice shall be
an ex-officio member of the
Judicial and Bar Council. ( Sec.
8[1], Art VIII)
(2) Unless otherwise allowed by law
or by the primary functions of
his position, appointive officials
shall not hold any other office or
employment in the Government
or any subdivision, agency or
instrumentality
thereof,
including government- owned or
controlled corporations or their
subsidiaries. (Art. IX, B, 7, par.
2)
Page 33 of 313
prohibition applicable to appointive

officials in general under Art. IX, B, Sec.
7, par. 2 are proof of the intent of the
1987 Constitution to treat them as a
class by itself and to impose upon
said class stricter prohibitions.
However, the prohibition against
holding dual or multiple offices or
employment under Art. VII, Sec. 13
must not be construed as applying to
posts occupied by the Executive
officials
specified
therein
w/o
addition compensation in an exofficio capacity as provided by law and
as required by the primary functions of
said official's office. The reason is that
these posts do not comprise "any
other office" w/in the contemplation of
the constitutional prohibition but are
properly an imposition of additional
duties and function on said officials.
Thus, the Constitution allows a

Cabinet member to hold another
office provided either
(1) such is necessitated by the
primary functions of his position
a. Secretary of Trade and
Industry as Chairman of
NDC
b. Secretary of Agrarian Reform
as Chairman of the Land
Bank
(2) such is allowed by law.
4. Succession
Vacancy in the Presidency
Two sets of rules in succession:
1. vacancy took place before the beginning
of the term on June 30
2. vacancy during the pendency of the
terms that commences on June 30
i.
Temporary or permanent vacancy in

the Presidency before the term
Causes
President has not
yet qualified (e.g.
he
had
an
operation and so
he could not take
his oath of office
on June 30)
2. President has not
yet been "chosen"
and qualified (e.g.
there is a tie and
Congress has not
yet broken the tie)
President-elect
1. dies, or
2. becomes
permanently
disabled
Both President and VP
1. have
not
been
"chosen" or
2. have not qualified,
or
3. die, or
4. become
permanently
disabled
1.
Effect
VP
shall
act
as
President until the
President-elect
shall
have qualified, or shall
have been "chosen
and qualified, as the
case may be. (pars. 2
& 3, sec 7, Par VII).
VP elect shall become

the President. (par. 4,
Sec 7, Art VII)
Senate President, or in
case of his inability,
the Speaker of the
House, shall act as
President
until
a
President or a VP shall
have been "chosen"
and qualified. (par. 5)
In case both Senate
President and Speaker
of the House are
unable
to
act
as
President,
Congress
shall by law, provide
for the "manner of
selecting" the one who
will act as President
until a President or VP
shall have been either
"chosen" or "elected"
pursuant to the special
election referred to in
Art VII, Sec 10, and
qualified.
ii. Permanent
Vacancy
in
Presidency during the term
Causes
President's
1. death
2. permanent
disability,
3. removal from office
(impeached), or
4. resignation*
Both the President's
and VP's
1. death
2. permanent
disability
3. removal from office
(impeached)
4. resignation
Acting President
1. dies
2. becomes
permanently
disabled
3. resigns
the
Effect
VP
shall
become
President
for
the
unexpired portion of
the term. (par. 1)
Senate President or, in

case of his inability,
the Speaker of the
House, shall become
Acting President until
the President or VP
shall
have
been
"elected" (pursuant to
Art. VII, Sec. 10) and
qualified. (par. 1.)
Congress shall by law,
provide "who" shall be
Acting President until
the President or VP
shall
have
been
"elected" (pursuant to
Art. VII, Sec. 10) and
qualified.
Acting
President
shall
be
subject to the same
restrictions of powers
and
disqualifications.(par.
2)
Estrada v. Desierto (2001):

The
presidents resignation must be willful
and intentional, and it must be strictly
construed.
When
impeachment
proceedings have become moot due to
the resignation of the Pres, proper
criminal and civil cases may already be
filed against him.
Resn on the Motion for Recon (2001):

The totality test was applied to
determine whether or not the president
has indeed resigned. Many things were
considered including the Angara Diary.
Page 34 of 313
Art. VII, Sec. 13 talks of "unless

otherwise provided by the Constitution."
In the case of Cabinet
members, this refers to Art. IX, B, 7,
par. 2.
Comparisons and distinctions between

the two vacancies:
The incumbent President never holds-over
the Presidency in any case.
b) The vacancy must occur in the offices of

both the President and Vice-President in
order for the Senate President, or the
Speaker, or, in their inability, the one
provided to succeed according to the Law
of Succession passed by the Congress, to
succeed as Acting President until the
qualification of the President.
c)
The Law on Succession must be passed

by the Congress in both cases in the event
that the President, Vice-President, Senate
President and the Speaker are all unable
to act as President. But in the case of a
vacancy occurring before the term, the
law provides only for the "manner of
selecting" the Acting President, while in
the case of a vacancy occurring during the
term, it provides for "the person" who
shall act as President. In both cases, the
stint of the Acting President is temporary.
d) When the vacancy comes before the term,

the Constitution talks of the successor
acting as President until a President has
been "chosen" and "qualified"; when it
comes during, it talks of "elected" and
qualified. The reason is that before the
term, the vacancy in the Presidency need
not be filled up by election, since it may
be filled up by a vote of Congress in case
of a tie (Art. VII, Sec. 4, par. 5); but during
the term, the only way to fill up the
vacancy is by special election.
e)
f)
2. Within seven days enact a law calling

for a special election to elect a President
and a Vice-President to be held not
earlier than forty-five days nor later
than sixty days from the time of such
call.
A special election in both cases is held,

pursuant to Art. VII, Sec. 10, only when
both offices of President and VicePresident are vacant.
However, if the
vacancy occurs before the term, the
grounds are limited to 2 (death and
permanent disability or both), while if the
vacancy occurs during the term, the
grounds are 4 (death, permanent
disability, removal, and resignation).
The vacancy that occurs before the term
of office may be temporary or permanent;
the vacancy that occurs during the term
of office can only be a permanent one.
Thus, a different set of rules applies, to be
discussed next following, in case of the
temporary inability of the President
during the term of office.
Special election in Sec. 10, Art VII.

1. The Congress shall, at ten o'clock in the
morning of the third day after the
The bill calling such special election:

a. is
deemed
certified
under
paragraph 2, Section 26, Article VI
(xxx the President certifies to the
necessity
of
its
immediate
enactment to meet a public
calamity or emergency xxx)
b. shall become law upon its
approval on third reading by the
Congress.
Appropriations for the special

election
a. charged against any current
appropriations
b. exempt from the requirements of
paragraph 4, Section 25, Article VI
of this Constitution.
(A special appropriations bill
shall specify the purpose for
which it is intended, and shall be
supported by funds actually
available as certified by the
National Treasurer, or to be raised
by
a
corresponding
revenue
proposal therein)
3. The convening of the Congress cannot

be suspended nor the special election
postponed.
4. No special election shall be called if the
vacancy occurs within eighteen months
before the date of the next presidential
election.
iii. Temporary
Vacancy
in
Presidency During the term
the
A vacancy in the Presidency arising

from his disability can occur in any of
the ff ways:
1. A written declaration by the
President
2. Written declaration by the Cabinet
3. Finding by Congress by 2/3 vote
that the President is disabled.
In all these cases, the Vice-President

temporarily acts as the President.
Page 35 of 313
a)
vacancy in the offices of the President

and Vice-President occurs, convene in
accordance with its rules without need
of a call
Contested
Inability of the
President
Actions Required
President transmits to Senate
President and Speaker of the
House his written declaration
that he is unable to discharge
the powers and duties of his
office
1. Majority of all Cabinet
members transmit to the
Senate President and Speaker
of the House their written
declaration that the President
is unable to discharge his
office.
2. President contests by
sending his own written
declaration to the Senate
President and Speaker that no
inability exists.
3. Majority of the Cabinet
insist on their original stand
by transmitting a second
written declaration of the
President's inability within 5
days from resumption of office
of the President.
Serious Illness of the President (Sec 12,

Art VII)
a. The public shall be informed of the
state of his health.
b. The members of the Cabinet in
charge of national security and
foreign relations and the Chief of
Staff of the Armed Forces of the
Philippines, shall not be denied
access to the President during such
illness.
5. Removal
i.
Impeachment, Sec. 2, Art XI.

o
Who are Subject to Impeachment:

The President
the Vice-President
the Members of the Supreme
Court
the
Members
of
the
Constitutional Commissions
Ombudsman
Reasons for Impeachment
culpable
violation
of
the
Effect
VP to become Acting President until the
President transmits to Senate President and
Speaker of the House a written declaration
that he is no longer unable to discharge his
office.
VP shall immediately assume the Presidency
in an acting capacity
President shall automatically assume his

office.
a. Congress shall convene, if it is not in

session, within 48 hours, without need of
call, in accordance with its rules, and decide
before the 12th day after it is required to
assemble. If it is already in session, it must
meet immediately, and decide within 10 days
after receipt of the second written declaration
by the Cabinet
b. If the President, by a 2/3 vote of both
houses voting separately, is determined to be
"unable" to discharge his office, then the VP
shall act as President. If less than 2/3 find
him unable, the President shall continue
exercising the powers and duties of his office.
Constitution
treason
bribery
graft and corruption
other high crimes
betrayal or public trust.
All other public officers and
employees may be removed from
office as provided by law, but not by
impeachment.
ii. Impeachment Process Art. XI, Sec. 3.

1. Who may initiate
The House of Representatives shall
have the exclusive power to initiate
all cases of impeachment.
2. Verified Complaint
a. A
verified
complaint
for
impeachment may be filed by
any Member of the House of
Representatives or by any citizen
upon resolution of endorsement
by any Member thereof
b. Verified Complaint shall be
included in the Order of
Page 36 of 313
Voluntary
Declaration of
Inability
by
President
3. Number of votes necessary

A vote of at least one-third of all the
Members of the House shall be
necessary either to affirm a
favorable resolution with the Articles
of Impeachment of the Committee,
or override its contrary resolution.
The vote of each Member shall be
recorded.
4. In case the verified complaint or
resolution of impeachment is filed
by at least one-third of all the
Members of the House.
The same shall constitute the
Articles of Impeachment, and trial
by the Senate shall forthwith
proceed.
5. No impeachment proceedings shall
be initiated against the same official
more than once within a period of
one year.
6. The Senate shall have the sole
power to try and decide all cases of
impeachment. No person shall be
convicted without the concurrence
of two-thirds of all the Members of
the Senate.
o When sitting for that purpose,
the Senators shall be on oath or
affirmation.
o When the President of the
Philippines is on trial, the Chief
Justice of the Supreme Court
shall preside, but shall not vote.
7. Judgment in cases of impeachment
shall not extend further than:
o removal from office and
o disqualification to hold any office
under the Republic of the
Philippines.
But the party convicted shall
nevertheless be liable and subject to
prosecution, trial, and punishment

according to law.
The officer can still be tried for a
criminal
case
aside
from
impeachment. (BERNAS)
Initiation - governed by the rules
of the House of Reps;
Trial-governed by the rules of the
Senate.
Francisco
v.
House
of
Representatives, (2003): The basic
issue here was the constitutionality
of the filing of the second
impeachment complaint against
then Chief Justice Davide. The
following
are
the
pertinent
constitutional provisions:
Art. XI, Section 3 (1) The House of
Representatives shall have the
exclusive power to initiate all cases
of impeachment.
xxx
(5) No impeachment proceedings
shall be initiated against the same
official more than once within a
period of one year.
The Court held that once an
impeachment complaint has been
initiated
and
subsequently
dismissed, another impeachment
complaint may no longer be filed
until after the lapse of one year. In
so ruling, the Court differentiated
between the initiation of the
impeachment
case
and
the
impeachment proceeding. The latter
is
initiated
when
a
verified
complaint is filed and referred to the
House Committee on Justice for
action, or by the filing of at least 1/3
of the Members of the House with
the Secretary General of the House.
In consequence therefore, once an
impeachment complaint has been
initiated,
another
impeachment
complaint may not be filed against
the same official within a 1-year
period. The House Impeachment
Rules
were
thereby
declared
unconstitutional for giving the term
initiate a different meaning, i.e., it
pegged
the
initiation
of
the
impeachment proceedings to, among
others, the finding by the House
Committee on Justice that the
verified complaint and/or resolution
is sufficient in substance.
Page 37 of 313
Business within ten session

days, and referred to the proper
Committee within three session
days thereafter.
c. The Committee, after hearing,
and by a majority vote of all its
Members, shall submit its report
to the House within sixty session
days from such referral, together
with
the
corresponding
resolution.
d. The
resolution
shall
be
calendared for consideration by
the House within ten session
days from receipt thereof.
o
o
o
o
o
o
o
o
o
o
o
Functions
of
the
Executive power
Control of executive departments
General
supervision
of
local
governments
Power of appointment
Executive clemencies
Commander in chief powers
Military powers
Suspension of the writ if habeas
corpus
Martial law
Emergency powers
Contracting and guaranteeing foreign
loans
Powers over foreign affairs
Power over legislation
Immunity from suit
(A) Executive Power

o
It is the duty to implement the laws

within the standards imposed by the
legislature. *This power is exercised by
the President. (Sec 1 Art VII)
The President shall have control of all
the executive departments, bureaus,
and offices. He shall ensure that the
laws be faithfully executed (Sec 17).
National Electrification Commission

vs. CA (1997):
The Court held that as administrative
head of the government, the President is
vested with the power to execute,
administer and carry out laws into
practical operation.
Marcos vs Manglapus (1989):

The powers of the President cannot be
said to be limited only to the specific
power enumerated in the Constitution.
In other words, executive power is more
than the sum of specific powers so
enumerated.
The framers did not intend that by
enumerating the powers of the Pres, he
shall exercise those powers and no
other.
These unstated residual powers are
implied from the grant of executive
power and which are necessary for the
Pres to comply with his duties under
the Constitution.
(B) Control of Executive Departments

(Sec 17, Art VII)
Control is the power of an officer to alter or
modify or nullify or to set aside what a
subordinate has done in the performance of
his duties and to substitute one's own
judgment in that of a subordinate.
Free Telephone Workers Union vs. Minister
of Labor and Employment (1981): Qualified
political agency doctrine (also alter ego
principle)- all the different executive and
administrative organizations are mere
adjuncts of the Executive Department, the
heads of the various executive departments
are assistants and agents of the Chief
Executive, and, except in cases wherein the
Chief Executive is required by the Consti or
by the 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 depts., performed and
promulgated in the regular course of
business, are, unless disapproved or
reprobated
by
the
Chief
Executive,
presumptively acts of the Chief Executive.
(C) General
Supervision
Governments
and
Regions
of
Local
Autonomous
The President shall exercise general

supervision over local governments. (sec 4,
Art X)
supervision over autonomous regions to
ensure that laws are faithfully executed.
(sec 16, Art X)
Supervision and Control Distinguished
Supervision
- Overseeing
or
the
power or authority of
the officer to see that
subordinate
officers
perform their duties,
and if the latter fail or
neglect to fulfill them,
then the former may
take such action or
steps as prescribed by
law to make them
perform these duties.
- This does not include the
power to overrule their
acts, if these acts are
within their discretion.
Control
- Power of an
officer to alter,
modify, nullify or
set aside what a
subordinate officer
had done and to
substitute
the
judgment of the
former for that of
the latter.
Page 38 of 313
6. Powers and
President
(D) Power of appointment

Definition: the selection, by the
authority vested with the power, of an
individual who is to exercise the
functions of a given office.
Appointment is distinguished from:

1. Designation
imposition
of
additional duties, usually by law, on
a person already in the public
service
2. Commission written evidence of
the appointment
Classification of Power of Appointment:

1. With the consent of the Commission
on Appointments
Sarmiento vs Mison, (1987):
There are 4 groups of officers whom
the Pres may appoint:
1. Heads
of
the
Executive
Department, 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;
2. All
other
officers
of
the
government whose appointments
are not otherwise provided by
law;
3. Those whom the President may
be authorized to appoint;
4. Officers lower in rank whose
appointments Congress may by
law vest in the President alone.
Heads of bureaus were deliberately
moved from the provision of
appointments
requiring
confirmation and were included in
the 4th group and hence, their
appointments
no
longer
need
confirmation.
Quintos-Deles vs Commission on
Constitutional Commissions, and
Offices, (1989):
The seats reserved for sectoral reps
may be filled by appointment by the
President under Art XVIII, Sec7. It
is
indubitable
that
sectoral
representatives to the House are
among the other officers whose
appointments are vested in the Pres
in this Consti, referred to in the 1st
sentence of Art. VII, Sec. 16. These
appointments
require
the
1. Confirmation by the CA is
required only for presidential
appointees as mentioned in the
first sentence of Sec. 16, Art. VII,
including those officers whose
appointments
are
expressly
vested by the Constitution itself
in the President (like sectoral
representatives to Congress and
members of the constitutional
commissions of Audit, Civil
Service and Election).
(a) Heads of the executive
departments
(b) Ambassadors, other public
ministers and consuls
(c) Officers of the Armed Forces
of the Philippines with the
rank of colonel or naval
captain (because these are
officers
of
a
sizeable
command enough to stage a
coup)
(d) Other
officers
whose
appointments are vested in
the
President
in
the
Constitution:
(i) Chairman
and
Commissioners of the
Constitutional
Commissions (Sec 1 Art
IX-B, Sec 1 (2) Art IX-B,
Sec 1(2) Art Ix-D)
(ii) Regular members of the
Judicial and Bar Council
(Sec 8 (2) Art VII)
(iii) Sectoral representatives
(Sec 7 Art XVIII, Sec 18
Art X)
2. Confirmation is not required
when the President appoints
other government officers whose
appointments are not otherwise
provided for by law or those
officers whom he may be
authorized by law to appoint
(like the Chairman and Members
of the Commission on Human
Rights). Also, as observed in
Sarmiento
v.
Mison,
when
Congress:
Page 39 of 313
confirmation of the Commission on

Appointments.
Notes:
From the rulings in
Sarmiento III v. Mison 1987,
Bautista v. Salonga 1989, and Deles
v. Constitutional Commission 1989,
these doctrines are deducible:
of inferior rank, the basis was the

phrase, "the Congress may, by law,
vest in the appointment of other
officers lower in rank in the
President alone". This meant that
until a law is passed giving such
appointing power to the President
alone, then such appointment has
to be confirmed. The SC dismissed
this view however, saying that the
inclusion of the word "alone" was
an
oversight.
Thus,
the
Constitution should read "The
Congress may, by law, vest the
appointment of other officers lower
in rank in the President."
2. Upon
Recommendation
Judicial and Bar Council
of
the
(a) Members of the Supreme Court

and all other courts. (sec 9, Art
VIII)
a. Appointments
need
no
confirmation
b. For
lower
courts,
appointment shall be issued
within
90
days
from
submission of the list
(b) Ombudsman and his 5 deputies
(for Luzon, Visayas, Mindanao,
general and military) Sec 9 Art
XI
a. Such appointments shall
require no confirmation.
b. All vacancies shall be filled
within three months after
they occur.
3. Appointment of Vice-President as
Member of the Cabinet (Sec 3, Art
VIII)
o
Appointment
confirmation
requires
no
4. Appointments solely by the President

(Sec. 16, Art VII)
1. Those vested by the Constitution
on the President alone (e.g.
appointment of Vice-President to
the Cabinet) [Art. VII, Sec. 3(2)]
2. Those whose appointments are
not otherwise provided by law.
3. Those
whom
he
may
be
authorized by law to appoint.
4. Those other officers lower in
rank whose appointment is
vested by law in the President
(alone).The
phraseology
is
muddled:
Limitations on appointing power of

the President
a. The spouse and relatives by
consanguinity
or
affinity
within the 4th civil degree of the
President shall not, during his
"tenure". be appointed as (sec
13, Art VII)
(i) members
of
the
Constitutional Commissions,
(ii) member of the Office of
Ombudsman,
(iii) Secretaries,
(iv) Undersecretaries,
(v) Chairmen
or
heads
of
bureaus or offices, including
government-owned
or
controlled corporations and
their subsidiaries.
b. The President shall have the
power to make appointments
during the recess of the
Congress, whether voluntary or
compulsory,
but
such
appointments shall be effective
only until disapproval by the
Commission on Appointments or
until the next adjournment of
the Congress. (Sec 16, Art VI)
c. Two months immediately before
the next presidential elections
(2nd Monday of March), and up
to the end of his "term" (June
30), a President (or Acting
President)
shall
not
make
appointments.
(Sec 15, Art
VII)
Sarmiento v Mison (1987):

In arguing that even bureau chiefs
needed confirmation even if they are
Page 40 of 313
creates inferior offices but

omits
to
provide
for
appointment thereto, or
o provides
in
an
unconstitutional manner for
such appointments
the officers are considered as
among
those
whose
appointments are not otherwise
provided for by law.
o
Aytona v Castillo (1962):

The SC ruled that while "midnight
appointments" (note: made by
outgoing President near the end of
his term) are not illegal, they should
be made in the capacity of a
"caretaker" doubly careful and
prudent in making the selection, so
as not to defeat the policies of the
incoming administration. The filling
up of vacancies in important posts,
if few, and so spaced as to afford
some assurance of deliberate action
and careful consideration of the
need for the appointment and the
appointees qualifications, may be
undoubtedly permitted. But the
issuance of 350 appointments in
one
night,
and
the
planned
induction of almost all of them a few
hours before the inauguration of the
new President may be regarded as
abuse of presidential prerogatives.
Quimsing v Tajanglangit (1964):
The SC emphasized that the Aytona
ruling does not declare all midnight
appointments as invalid, and that
the ad interim appointment of the
petitioner chief of police here, whose
qualification and regularity were not
disputed, except for the fact that it
was made during the last few days
of the old administration, is thus
not invalid.
De Rama v. CA (2001):
The prohibition against midnight
appointments applies only to the
president and does not extend to
local elective officials. Moreover,
there is no law that prohibits local
elective
officials
from
making
appointments during the last days
of his or her tenure.
Interim or recess appointments

1) Regular and recess (ad-interim)
appointments
Appointments
requiring
confirmation are of two kinds
(i) regular, if the CA, that is,
Congress, is in session
(ii) during the recess of
Congress (because the
Commission shall meet
only while Congress is in
session [Art. VI, Sec. 19]).
Regular appointment - one

made by the President while
Congress is in session, takes
effect only after confirmation by
the
Commission
on
Appointments,
and
once
approved, continues until the
end of the term of the appointee.
Ad-interim appointment - one
made by the President while
Congress is not in session, takes
effect immediately, but ceases to
be valid if disapproved by the
Commission on Appointments or
upon the next adjournment of
Congress. (Art. VII, Sec. 16, par.
2)
Matibag vs Benipayo (2002):
Ad interim appointment a
permanent appointment made
by the Pres in the meantime that
Congress is in recess.
It is
permanent as 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 the confirmation of
the
Commission
on
Appointments does not alter its
permanent character.
Hence,
said appointment is effective
until (1) disapproved by the CA
or (2) the next adjournment of
Congress
2) Acting/Temporary appointment
can be withdrawn or revoked
at the pleasure of the appointing
power. The appointee does not
enjoy security of tenure. This is
the kind of appointment that the
Constitution prohibits the Pres
from making to the independent
constitutional commissions.
Page 41 of 313
Exception:
Temporary
appointments,
to
executive positions, when continued
vacancies will
(1) prejudice public service (e.g
Postmaster) or
(2) endanger public safety (e.g.
Chief of Staff).
Also, the power to approve or

disapprove
appointments
is
conferred on the CA as a body
and not on the individual
members.
3) Temporary Designations
Admin Code of 1987, Book III Sec.
17
The President may designate an
officer already in the govt. service or
any other competent person to
perform the functions of any office
in
the
executive
branch,
appointment to which is vested in
him by law, when:
(a) The officer regularly appointed
to the office is unable to perform
his duties by reason of illness,
absence or any other cause; or
(b) There exists a vacancy;
In no case shall a temporary
designation exceed one (1) year.
Limitations on the appointing power

of the Acting President
1. Appointments extended by an
Acting President shall remain
effective unless revoked by the
elected President within ninety
days from his assumption or
reassumption of office. (Sec. 14
Art VII)
2. A President or Acting President
shall not make appointments
two months immediately before
the next presidential elections
and up to the end of his term
except
temporary
appointments to executive
positions when continued
vacancies therein will prejudice
public
service
or
endanger public safety. (Sec
15, Art VII)
7. Executive Clemencies
o
The President may grant:

a. Reprieves
a temporary relief from or
postponement of execution of
criminal penalty or sentence or a
stay of execution. (BLACK)
It is the withholding of a
sentence for an interval of time,
a postponement of execution, a
temporary
suspension
of
execution. (People vs. Vera)
b. Commutations
Reduction of sentence. (BLACK)
It is a remission of a part of the
punishment; a substitution of a
less penalty for the one originally
imposed. (People vs. Vera)
c. Pardons, and
Permanent
cancellation
of
sentence. (BLACK)
It is an act of grace proceeding
from the power entrusted with
the execution of the laws, which
exempts the individual on whom
it
is
bestowed,
from
the
punishment the law inflicts for
the crime he has committed. It is
a
remission
of
guilt,
a
forgiveness
of
the
offense.
(People v Vera)
Plenary or partial
o Plenary - extinguishes all the
penalties imposed upon the
offender, including accessory
disabilities
o Partial does not extinguish
all penalties imposed
Absolute or conditional
o Conditional - the offender
has the right to reject the
same since he may feel that
the condition imposed is
more onerous than the
penalty
sought
to
be
remitted.
o Absolute pardon - pardonee
has no option at all and
must accept it whether he
likes it or not. In this sense,
an absolute pardon is similar
to commutation, w/c is also
not subject to acceptance by
the offender.
d. Remit fines and forfeitures, after
conviction by final judgment
Page 42 of 313
Pacete vs Secretary (1971):

The mere filing of a motion for
reconsideration
of
the
confirmation of an appointment
cannot have the effect of
recalling or setting aside said
appointment.
The Consti is
clear there must either be a
rejection by the Commission on
Appointments or non-action on
its part for the confirmation to
be recalled.
Except:
(a) In cases of impeachment, and
(b) As otherwise provided in this
Constitution
No pardon, amnesty, parole or
suspension of sentence for violation of election laws, rules, and
regulations shall be granted by
the
President
without
the
favorable recommendation by
the Commission (on Elections.)
(Sec 5, Art IX)
The President shall also have the power
to grant amnesty with the concurrence
of a majority of all the Members of the
Congress. (Sec 19, Art VII)
Amnesty - a sovereign act of oblivion
for past acts, granted by government
generally to a class of persons who
have been guilty usually of political
offenses and who are subject to trial
but have not yet been convicted,
and often conditioned upon their
return to obedience and duty within
a prescribed time. (BLACK; Brown v
Walker, 161 US 602).
Probation - a disposition under
which a defendant after conviction
and sentence is released subject to
conditions imposed by the court and
to the supervision of a probation
officer. [Sec. 3 (a), PD 968.]
Parole - suspension of the sentence
of a convict granted by a Parole
Board after serving the minimum
term of the indeterminate sentence
penalty, without granting a pardon,
prescribing the terms upon which
the sentence shall be suspended.
[REYES]
Effects of Pardon (Case Law)
Cristobal v Labrador (1940):
There are 2 limitations upon the
exercise
of
the
constitutional
prerogative of the Pres. to grant pardon:
(1)
that the power be exercised after
conviction; (2) that such power does not
extend to cases of impeachment.
Pelobello v. Palatino (1941):
Absolute pardon has the effect of
removing the disqualification from
voting and being elected incident to
criminal conviction under Sec 94(a) of
the Election Code.
The Chief Executive, after inquiry
into the environmental facts, should be
at liberty to atone the rigidity of the law

to the extent of relieving completely the
party or parties concerned from the
accessory and resultant disabilities of
criminal conviction.
Monsanto vs Factoran:
Pardon implies guilt and does not erase
the fact of the commission of the crime
and the conviction thereof. It does not
ipso facto restore a convicted felon to a
public office necessarily relinquished or
forfeited by reason of the conviction
although such pardon undoubtedly
restores his eligibility for appointment
to that office.
Notes:
"Pardon granted after conviction frees
the individual from all the penalties and
legal disabilities and restores him to all
his civil rights.
But unless expressly grounded on
the person's innocence (w/c is rare), it
cannot bring back lost reputation for
honesty, integrity and fair dealing.
This must be constantly kept in
mind lest we lose track of the true
character and purpose of the privilege.
xxx"
o
Application of Pardoning
Administrative Cases
Powers
to
Llamas v Executive Secretary (1991):

If the President can grant reprieves,
commutations and pardons, and remit
fines and forfeitures in criminal cases,
with much more reason can she grant
executive clemency in administrative
cases, which are clearly less serious
than criminal offenses.
However, the power of the President
to
grant
executive
clemency
in
administrative cases refers only to
administrative cases in the Executive
branch and not in the Judicial or
Legislative branches of the govt.
Removal of Administrative Penalties

Sec. 53, Chapter 7, Subtitle A, Title I,
Book V, Administrative Code of 1987
Removal of Administrative Penalties or
Disabilities.-- In meritorious cases and
upon recommendation of the (Civil
Service) Commission, the President may
commute or remove administrative
penalties or disabilities imposed upon
officers or employees in disciplinary
cases, subject to such terms and
conditions as he may impose in the
interest of the service
Page 43 of 313
Who may avail of amnesty? (Case Law)

Macaga-an vs People (1987):

The SC agreed with the Sandiganbayan
that in fact the petitioners were
expressly disqualified from amnesty.
The acts for which they were
convicted were ordinary crimes
without any political complexion and
consisting only of diversion of public
funds to private profit. The amnesty
proclamation covered only acts in the
furtherance of resistance to duly
constituted authorities of the Republic
and applies only to members of the
MNLF, or other anti-government groups.
8. Powers as Commander-in-Chief
o
Powers as Commander-in-Chief:
a. He may call out such armed forces
to prevent or suppress lawless
violence, invasion or rebellion.
b. He may suspend the privilege of the
writ of habeas corpus, or
c. He may proclaim martial law over
the entire Philippines or any part
thereof.
Subject to judicial review to determine

whether or not there has been a grave
abuse of discretion amounting to lack
or excess of jurisdiction (par. 2, Sec 1,
Art VIII)
a. Call out the AFP to prevent lawless

violence
This is merely a police measure meant

to quell disorder. As such, the
Constitution does not regulate its
exercise radically
Sanlakas v Executive Secretary (2004):

It is not disputed that the President has full
discretionary power to call out the armed
forces and to determine the necessity for
the exercise of such power. While the
Court may examine whether the power was
exercised within constitutional limits or in a
David v. Arroyo (2006):

Assailed is PP1017 (Declaration of State of
National Emergency). It is different from the
law in Sanlakas as this proclamation was
woven out of the calling out and take
care powers of the President joined with
the temporary takeover provision under
Art. XII, section 17.
PP1017 purports to grant the President,
without authority or delegation from
Congress, to take over or direct the
operation of any privately-owned public
utility or business affected with public
interest.
The SC held that while the President could
validly declare the existence of a state of
national emergency even in the absence of a
Congressional enactment, the exercise of
the emergency powers, such as the taking
over of privately-owned public utility or
business affected with public interest,
requires a delegation from Congress
which is the repository of emergency
powers.
PP1017 did not authorize said temporary
take over without authority from Congress.
b. Suspend the privilege of the writ of
habeas corpus
A "writ of habeas corpus" is an order

from the court commanding a detaining
officer to inform the court
(i) if he has the person in custody, and
(ii) his basis in detaining that person.
The "privilege of the writ" is that portion

of the writ requiring the detaining officer to
show cause why he should not be tested.
Note that it is the privilege that is
suspended, not the writ itself.
o
Requisites:
1) There must be
rebellion, and
an
invasion
or
Page 44 of 313
Tolentino vs Catoy (1948):

Amnesty Proclamation No. 76 applies
even to Hukbalahaps already undergoing sentence upon the date of its
promulgation. The majority of the Court
believe that by its context and
pervading spirit the proclamation
extends to all members of the
Hukbalahap.
manner constituting grave abuse of

discretion, none of the petitioners here
have, by way of proof, supported their
assertion that the President acted without
factual basis. The President, in declaring a
state of rebellion and in calling out the
armed forces, was merely exercising a
wedding of her Chief Executive and
Commander-in-Chief powers. These are
purely executive powers, vested on the
President by Sections 1 and 18, Article VII,
as opposed to the delegated legislative
powers contemplated by Section 23 (2),
Article VI.
2) The public
suspension.
requires
the
Effects of the suspension of the

privilege:
1) The suspension of the privilege of
the writ applies only to persons
"judicially charged" for rebellion or
offenses inherent in or directly
connected with invasion (Art. VII,
Sec. 18, par. 5).
Such persons suspected of the
above crimes can be arrested
and detained without a warrant
of arrest.
The
suspension
of
the
privilege does not make the
arrest without warrant legal.
But the military is, in effect,
enabled to make the arrest,
anyway
since,
with
the
suspension of the privilege, there
is no remedy available against
such unlawful arrest (arbitrary
detention).
The arrest without warrant is
justified by the emergency
situation and the difficulty in
applying
for
a
warrant
considering the time and the
number of persons to be
arrested.
The crime for which he is
arrested must be one related to
rebellion or the invasion. As to
other crimes, the suspension of
the privilege does not apply.
2) During the suspension of the
privilege of the writ, any person thus
arrested or detained shall be
judicially charged within 3 days, or
otherwise he shall be released. (Art.
VII, Sec. 18, par. 6).
The effect of the suspension of
the privilege, therefore, is only to
extend the periods during which
he can be detained without a
warrant. When the privilege is
suspended,
the
period
is
extended to 72 hours.
What happens if he is not
judicially charged nor released
after 72 hours?
The public
officer becomes liable under Art.
125 for "delay in the delivery of
detained persons."
3) The right to bail shall not be
impaired even when the privilege of
the writ of habeas corpus

suspended. (Art. III, Sec. 13)
is
c. Proclaim Martial Law

o
Requisites:
1) There must be an invasion or
rebellion, and
2) Public
safety
requires
the
proclamation of martial law all over
the Philippines or any part thereof.
Effects of the proclamation of martial

law:
The President can:
1) Legislate
2) Order the arrest of people who
obstruct the war effort.
But the following cannot be done (Art.

VII, Sec. 18, par. 4)
a. Suspend the operation of the
Constitution.
b. Supplant the functioning of the civil
courts
and
the
legislative
assemblies.
martial law is proclaimed only
because the courts and other
civil institutions like Congress
have been shut down. It should
not happen that martial law is
declared in order to shut down
the civil institutions.
c. Confer jurisdiction upon military
courts and agencies over civilians,
where civil courts are able to
function.
"open court" doctrine
o holds that civilians cannot
be tried by military courts if
the civil courts are open and
functioning.
o if the civil courts are not
functioning, then civilians
can be tried by the military
courts.
o Martial
law
usually
contemplates a case where
the courts are already closed
and the civil institutions
have already crumbled, that
is a "theater of war." If the
courts are still open, the
President can just suspend
the privilege and achieve the
same effect.
d. Automatically suspend the privilege
of the writ of habeas corpus.
The President must suspend the
privilege expressly.
Page 45 of 313
safety
The Role of Congress [Art. VII, Sec. 18,

pars. 1-2]
The Role of the Supreme Court

[Art. VII, Sec. 18, par. 3]
o
The Supreme Court may review, in an

appropriate proceeding filed by any
citizen, the sufficiency of the factual
basis of:
(a) the proclamation of martial law or
the suspension of the privilege of the
writ, or
(b) the extension thereof.
It must
promulgate its decision thereon
within 30 days from its filing. (Sec
18 (3), Art. VII)
The jurisdiction of the SC may be

invoked in a proper case.
Petition for habeas corpus

When a person is arrested without a
warrant for complicity in the
rebellion or invasion, he or someone
else in his behalf has the standing
to question the validity of the
proclamation or suspension.
Before the SC can decide on the
legality of his detention, it must first
pass upon the validity of the
Test of Arbitrariness: (IBP v. Zamora,

2000)
to be used by the Supreme Court in
so reviewing the act of the President
in proclaiming or suspending, or the
act of Congress in extending
seeks to determine the sufficiency of
the factual basis of the measure.
The question is not whether the
President
or
Congress
acted
correctly, but whether he acted
arbitrarily in that the action had no
basis in fact.
amounts to a determination of
whether or not there was grave
abuse of discretion amounting to
lack or excess of jurisdiction Sec
1(2) Art. VIII.
b. Upon such proclamation or suspension,

Congress shall convene at once. If it is
not in session, it shall convene in
of a call within 24 hours following the
c. Within 48 hours from the proclamation
or the suspension, the President shall
submit a report, in person or in writing,
to the Congress (meeting in joint
session of the action he has taken).
d. The Congress shall then vote jointly, by
an absolute majority.
It has two
options:
(i) To revoke such proclamation or
suspension.
When
it
so
revokes,
the
President cannot set aside (or
veto) the revocation as he
normally would do in the case of
bills.
(ii) To extend it beyond the 60-day
period of its validity.
Congress can only so extend the
proclamation
or
suspension
upon the initiative of the
President.
The period need not be 60 days;
it could be more, as Congress
would determine, based on the
persistence of the emergency.
If Congress fails to act before
measure expires, it can
longer extend it until
President again redeclares
measure.
the
no
the
the
Congress
cannot
"validate"
the
proclamation or suspension, because it
is already valid.
If Congress extends the measure, but

before the period of extension lapses,
the requirements for the proclamation
or suspension no longer exist, Congress
can lift the extension, since the power to
confer implies the power to take back.
If Congress does not review or lift the

order, this can be reviewed by the
Lansang v Garcia (1971):

The issue there raised was whether in
suspending the privilege of the writ in
1971, Marcos had a basis for doing so.
The SC, in considering the fact that the
President based his decision on (a) the
Senate report on the condition in
Central Luzon and (b) a closed door
briefing by the military showing the
Page 46 of 313
a. Congress may revoke the proclamation

of martial law or suspension of the
privilege of the writ of habeas corpus
before the lapse of 60 days from the
date of suspension or proclamation
Supreme Court pursuant to the next

section.
2 conditions must concur for the valid

exercise of authority to suspend the
privilege:
(a) there must be an actual invasion,
insurrection, rebellion or imminent
danger and
(b) public safety must require the
suspension of the privilege. [This
holding of the SC is now found in
Art. VII, Sec. 18, par. 3.] The
function of the court is to check and
not supplant the executive or to
ascertain merely whether he has
gone beyond the constitutional
limits of jurisdiction. The proper
standard is not correctness but
arbitrariness.
There are 4 ways, then, for the
proclamation or suspension to be lifted:
1)
2)
3)
4)
Lifting by the President himself

Revocation by Congress
Nullification by the Supreme Court
Operation of law after 60 days
they shall be tried by the proper civil

court, except when the offense, as
determined before arraignment by
the civil court, is service-connected
in which case it shall be tried by
court-martial.
Olaguer vs Military Commission No.

34 (1987):
The assertion of military authority over
civilians cannot rest on the President's
power as Commander in Chief or on any
theory of martial law. As long as civil
courts remain open and are regularly
functioning, military tribunals cannot
try and exercise jurisdiction over
civilians for offenses committed by them
and which are properly cognizable by
civil courts. To hold otherwise is a
violation of the right to due process.
9. Emergency powers (Sec 23, Art.

VI).
o
The Congress may by law authorize the

President to exercise powers necessary
and proper to carry out a declared
national policy.
Different from the Commander-in-Chief

clause:
When the President acts under the
Commander-in-Chief clause, he acts
under a constitutional grant of
military power, which may include
the law-making power.
When the President acts under the
emergency power, he acts under a
Congressional delegation of lawmaking power.
Meaning of power necessary and

proper
Power to issue rules and regulations
Military trial of civilians void even

under Martial Law, if civil courts are
open. (Sec 18(4) Art. VII,).
Cf.
RA
7055
(1991)
"An
Act
Strengthening Civilian Supremacy over
the Military by Returning to the Civil
Courts the Jurisdiction over Certain
Offenses involving Members of the
Armed Forces of the Philippines, other
Persons Subject to Military Law, and
the Members of the Philippine National
Police, Repealing for the Purpose
Certain Presidential Decrees"
RA 7055 effectively placed upon the

civil courts the jurisdiction over
certain offenses involving members
of the AFP and other members
subject to military law.
RA 7055 provides that when these
individuals
commit
crimes
or
offenses penalized under the RPC,
other special penal laws, or local
government ordinances, regardless
of whether civilians are co-accused,
victims, or offended parties which
may be natural or juridical persons,
This power is:

(1) for a limited period, and
(2) subject to such restrictions
Congress may provide.
as
The power ceases:

(a) upon being withdrawn by resolution
of the Congress, or, if Congress fails
to adopt such resolution,
(b) upon
the
next
(voluntary)
adjournment of Congress. For the
fact that Congress is able to meet in
session
uninterruptedly
and
adjourn of its own will proves that
the emergency no longer exists is to
justify the delegation.
Page 47 of 313
extent of subversion, concluded that the

President did not act arbitrarily. One
may disagree with his appreciation of
the facts, but one cannot say that it is
without basis.
Araneta v Dinglasan (1949):

The Congress granted the President
certain emergency powers. (CA671)
After the war, Congress held a special
session.
The SC held that the
emergency power lasted only until
Congress held its regular session. The
fact that Congress could now meet
meant that there was no emergency
anymore that would justify the delegation. The assertion that new legislation
is needed to repeal CA671 is not in
harmony with the Consti. If a new law
were necessary to terminate it, then it
would be unlimited and indefinite. This
would create an anomaly since what
was intended to meet a temporary
emergency becomes a permanent law.
10. Contracting and

Foreign Loans
o
Requisites
for
contracting
and
guaranteeing foreign loans:
1. With the concurrence of the
monetary board (Sec 20, Art VII)
2. subject to limitations as may be
provided by law (Sec 21, Art XII)
3. information
on
foreign
loans
obtained or guaranteed shall be
made available to the public (sec 21,
Art XII)
Cf. Republic Act 4860

An Act Authorizing The President Of
The Philippines To Obtain Such
Foreign Loans And Credits, Or To
Incur Such Foreign Indebtedness,
As May Be Necessary To Finance
Approved Economic Development
Purposes Or Projects, And To
Guarantee, In Behalf Of The
Republic Of The Philippines, Foreign
Loans Obtained Or Bonds Issued By
Corporations Owned Or Controlled
By
The
Government
Of
The
Philippines
For
Economic
Development Purposes Including
Those Incurred For Purposes Of ReLending To The Private Sector,
Appropriating The Necessary Funds
Therefore, And For Other Purposes
Approved, September 8, 1966.
Role of Congress:
1. The President does not need prior
approval by the Congress
a. Because the Constitution places
the
power
to
check
the
Presidents
power
on
the
monetary Board
b. Congress may provide guidelines
and have them enforced through
the Monetary Board
Rodriguez v Gella (1953):

The specific power to continue in force
laws and appropriations which would
lapse or otherwise become inoperative is
a limitation on the general power to
exercise such other powers as the
executive may deem necessary to enable
the
government
to
fulfill
its
responsibilities and to maintain and
enforce its authority.
o
Inconsistency between the Constitution

and the cases: (BARLONGAY)
The Consti. [Art. VI, Sec. 23 (2)]
states that the emergency powers
shall
cease
upon
the
next
adjournment of Congress unless
sooner withdrawn by resolution of
Congress
Cases tell us that the emergency
powers shall cease upon resumption
of session.
Reconciling the two: it would not be
enough for Congress to just resume
session in order that the emergency
powers shall cease. It has to pass a
resolution
withdrawing
such
emergency powers, otherwise such
powers shall cease upon the next
adjournment of Congress.
Guaranteeing
11. Powers over Foreign Affairs

(a) Treaty-making power
o
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. (Sec 21, Art
VII)
Treaty distinguished
agreements:
from
executive
1. Executive Agreements
entered into by the President
need no concurrence.
Page 48 of 313
This rule or the termination of the grant

of emergency powers is based on
decided cases, which in turn became
Art. VII, Sec. 15 of the 1973
Constitution.
USAFFE Veterans Assn. vs Treasurer

(1959):
The agreement is not a "treaty" as the
term is used in the Constitution. The
agreement was never submitted to the
Senate for concurrence. It must be
noted that a treaty is not the only form
that an international agreement may
assume. For the grant of treaty making
power to the Executive and the Senate
does not exhaust the power of the govt.
over international relations.
Consequently, executive agreements
may be entered into with other states
and are effective even without the
concurrence of the Senate. From the
point of view of international law, there
is no difference between treaties and
executive agreements in their binding
effect upon states concerned as long as
the negotiating functionaries have
remained within their powers.
The
distinction
between
an
executive
agreement and a treaty is purely a
constitutional
one
and
has
no
international legal significance.
o
Bayan vs Executive Secretary (2000):

The issue in this case is the
constitutionality of the VFA. The SCH
held that once the Senate performs the
power to concur with treaties or
exercise its prerogative within the
boundaries
prescribed
by
the
Constitution, the concurrence cannot
be viewed as an abuse of power, much
less a grave abuse of discretion. The
President, in ratifying the VFA and
submitting the same for concurrence of
the Senate, acted within the confines
and limits of the power vested in him by
the Constitution. The President merely
performed a constitutional task and
exercised a prerogative that chiefly
pertains to the functions of his office.
(b) Deportation of undesirable aliens
Qua Chee Gan v Deportation Board

(1963):
The Pres may deport only according to

grounds enumerated by law since it
would
be
unreasonable
and
undemocratic to hold that an alien be
deported
upon
an
unstated
or
undefined ground depending merely on
the use of an unlimited discretion by
the President.
2 ways of deporting an undesirable

alien:
(a) by order of the Pres after due
investigation
(b) by the Commissioner of Immigration
The Pres can delegate the power of

investigation not to order the arrest of
an alien.
The Deportation Board may not order

the arrest of the alien in this case. If an
implied grant of power, considering that
no express authority was granted by
Nature of Executive Agreements:

There are 2 classes:
(1) agreements
made
purely
as
executive acts affecting external
relations and independent of or
without legislative authorization,
which
may
be
termed
as
presidential agreements, and
(2) agreements
entered
into
in
pursuance of acts of Congress, or
Congressional-Executive
Agreements.
Gonzales v Hechanova (1963):
Although the President may, under the
American constitutional system enter
into executive agreements without
previous legislative authority, he may
Page 49 of 313
not, by executive agreement, enter into

a transaction which is prohibited by
statutes enacted prior thereto. Under
the Constitution, the main function of
the Executive is to enforce laws enacted
by Congress. The former may not
interfere in the performance of the
legislative powers of the latter, except in
the exercise of his veto power. He may
not defeat legislative enactments that
have acquired the status of law, by
indirectly repealing the same through
an executive agreement providing for
the performance of the very act
prohibited by said laws.
Commissioner
of
Customs
vs.
Eastern Sea Trading (1961):
International
agreements
involving
political issues or changes in national
policy and those involving international
agreements of permanent character
usually take the form of TREATIES.
But
the
international
agreements
involving adjustments in detail carrying
out well-established national policies
and traditions and those involving a
more or less temporary character
usually take the form of EXECUTIVE
AGREEMENTS.
Go Tek v Deportation Board (1977):
The Deportation Board can entertain

deportation based on grounds not
specified in Sec 37 of the Immigration
Law.
The Board has jurisdiction to
investigate Go Tek even if he had not
been convicted yet.
The Presidents power to deport aliens

and to investigate them subject to
deportation are provided in the Revised
Admin Code.
The State has inherent power to deport

undesirable aliens.
This power is
exercised by the President.
There is no legal nor constitutional

provision defining the power to deport
aliens because the intention of the law
is to grant the Chief Executive the full
discretion to determine whether an
aliens residence in the country is so
undesirable as to affect the security,
welfare or interest of the state.
The Chief Executive is the sole and

exclusive judge of the existence of facts
which would warrant the deportation of
aliens.
This budget is the upper limit of the

appropriations bill to be passed by
Congress. Through the budget, therefore,
the President reveals the priorities of the
government.
(c) Veto power
o
As a general rule, all bills must be

approved by the President before they
become law, except when:
(i) the veto of the President is
overridden by 2/3 vote, and
(ii) the bill passed is the special law to
elect the President and VicePresident.
This gives the President an actual hand

in legislation. However, his course of
action is only to approve it or veto it as
a whole.
(See Legislative Power of
Congress)
PHILCONSA v Enriquez (1994):
It is true that the Constitution provides

a mechanism for overriding a veto (Art.
VI, Sec. 27 [1]). Said remedy, however,
is available only when the presidential
veto is based on policy or political
considerations but not when the veto is
claimed to be ultra vires. In the latter
case, it becomes the duty of the Court
to draw the dividing line where the
exercise of executive power ends and
the bounds of legislative jurisdiction
begin.
12. Power over Legislation

(a) Message to Congress
The President shall address the

Congress at the opening of its regular
session. He may also appear before it at
any other time. (Sec 23, Art VII)
Every 4th Monday of July, the President

delivers the State of the Nation Address,
which contains his proposals for legislation.
Through this speech, he can
influence the course of legislation that
Congress can take during the regular
session.
(b) Prepare and Submit the Budget

The President shall submit to 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)
The budget is the plan indicating:

(a) expenditures of the government,
(b) sources of financing, and
(c) receipts
from
revenue-raising
measures.
(d) Emergency Power

o
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. (Sec 23,
Art VI see discussion above)
Page 50 of 313
law, would curtail the right of a person

then a delegation of the implied power
must be rejected as inimical to the
liberties of the people.
(e) Fixing of tariff rates (Sec 28, Art VI)
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
other duties or imposts within
the framework of the national
development program of the
Government.
Reason for delegation: highly technical
nature of international commerce, and
the need to constantly and with relative
ease adapt the rates to prevailing
commercial standards.
Gloria v CA (2000):
Petitioners theorize that the present petition
for prohibition is improper because the
same attacks an act of the President, in
violation of the doctrine of presidential
immunity from suit. Petitioners contention
is untenable for the simple reason that the
petition is directed against petitioners
and not against the President. The
questioned acts are those of petitioners and
not
of
the
President.
Furthermore,
presidential decisions may be questioned
before the courts where there is grave
abuse of discretion or that the President
acted
without
or
in
excess
of
jurisdiction.
13. Immunity from Suit
B. VICE PRESIDENT
Carillo vs. Marcos (1981):

The President as such cannot be sued,
enjoying as he does immunity from suit,
but the validity of his acts can be tested
by an action against the other executive
officials
or
such
independent
constitutional
agencies
as
the
Commission
on
Elections
and
the
Commission on Audit.
Section 3. There shall be a Vice President

who shall have the same qualifications and
term of office and be elected with, and in
the same manner, as the President. He may
be removed from office in the same manner
as the President.
In Re Bermudez (1986):
The petition seeks clarification as to whom
the Consti refers to as the incumbent Pres
and Vice Pres. The petition amounts in
effect to a suit against the incumbent Pres.
Aquino and it is equally elementary that
incumbent Presidents are immune from
suit or from being brought to court during
the period of their incumbency and tenure.
Soliven vs Makasiar (1988); Beltran vs

Makasiar (1988):
The SC held that the privilege of immunity
from suit, pertains to the President by
virtue of the office and may be invoked
only by the holder of the office; not by
any other person in the President's
behalf. Thus, an accused in a criminal
case where the President is a complainant
cannot raise the presidential privilege as a
defense to prevent the case from proceeding
against the accused. Moreover, there is
nothing in our laws that would prevent
the President from waiving the privilege.
The President may shed the protection
afforded by the privilege and submit to the
court's jurisdiction.
The VicePresident may be appointed as a

Member of the Cabinet. Such appointment
requires no confirmation.
1. Qualifications, Election, Term and

Oath
a. Qualifications
* same as President (Sec. 3, Art VII)
b. Term and Election
* same as President (Sec. 4, Art VII)
c. Oath
* same as President (except for the
statement of position)
2. Privilege and Salary

* same as President
except: the Vice-President, xxx [shall receive
annual salary of] P240,000 (Sec 17, Art
XVIII)
3. Prohibitions
* same as President
4. Succession
* same as President (Art. VII, Sec. 9)
Page 51 of 313
The Presidents immunity from suit extends

beyond his term so long as the act in
question was done during his term.
2. Composition and Qualifications
Impeachment Process
CSC
COMELEC
COA
Chairman and 2 Chairman
Chairman
Commissioners
and
6 and 2 Comm
(Comm)
Comm
Natural-born citizens
At least 35 years of age
Proven
Holders of Certified
capacity
for a
college public
degree, and accountants
public
not with not less
administration, must
and must not have
been than 10 years
have
been candidates
auditing
candidates
for for
any experience, or
any
elective elective
Members of
position in the position in the
lections
the
Philippine
immediately
immediately
Bar who have
preceding their preceding
been engaged
appointment
elections
in
the
practice
of
law
for
at
Majority,
least
10
including
years,
and
the
Chairman,
must
not
shall
be have
been
Members of candidates for
any
elective
the
position
in
Philippine
Bar
who the elections
have
been immediately
engaged in preceding
the practice their
of law for at appointment
least
10
years
At no time
shall
all
Members
of
the
Commission
belong to the
same
profession.
* same as President (Art. XI, Sec. 3)
6. Functions
a. Right of succession
The Vice-President shall assume the
functions of the president in case of:
1. death, permanent disability, removal
from office, or resignation of the
President(Sec 8, Art VII)
2. Whenever the President transmits to
the President of the Senate and the
Speaker of the House of Representatives
his written declaration that he is unable
to discharge the powers and duties of
his office, and until he transmits to
them a written declaration to the
contrary (Sec 11, Art VII)
3. Whenever a majority of all the Members
of the Cabinet transmit to the President
of the Senate and to the Speaker of the
House of Representatives their written
declaration that the President is unable
to discharge the powers and duties of
his office
b. Membership in Cabinet
xxx The Vice-President may be appointed as
member of the Cabinet. Such appointment
requires no confirmation. (sec 3, Art VII)
IV. CONSTITUTIONAL COMMISSIONS

1. Disqualifications; Inhibitions
o
No
member
of
a
Constitutional
Commission shall, during his tenure:
i. hold any other office or employment
ii. engage in the practice of any
profession
iii. engage in the active management
and control of any business which
in any way may be affected by the
functions of his office
iv. 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
or their subsidiaries. (Art. IX, sec.2)
Appointed by the President with the consent of

the Commission on Appointments for a term of 7
years without reappointment
Staggered term Staggered
Staggered
of those first term
of term of those
appointed:
those
first first
a) Chairman 7 appointed:
appointed:
years
a)
3 a) Chairman
b) 1 Comm 5 Members
7 years
years
7 years
b) 1 Comm
c) Other Comm b)
2 5 years
3 years
Members c)
Other
5 years
Comm 3
c) Last 2 years
Members
3 years
Appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor.
In no case shall any Member be appointed or
designated in a temporary or acting capacity.
Page 52 of 313
5. Removal
3. Compensation
Fixed by law and shall not be decreased
during their tenure. (sec. 3)
4. Power to Appoint Personnel (sec. 4)

5. Fiscal Autonomy (sec. 5)
6. Rule-Making Power
shall not diminish, increase, or modify

substantive rights (sec. 6)
7. Procedure
i.
Decision on any case or matter

brought before it shall be decided by
a majority vote of all its Members
within 60 days of submission for
decision or resolution
ii. SC has certiorari jurisdiction
which a party aggrieved by any
decision, order, or ruling of each
Commission can invoke within 30
days from receipt of a copy.
(sec.16)
8. Other functions provided by law
(sec. 8)
CSC v. DBM, (2005):
At issue was the no report, no release
policy of the DBM which the latter is
invoking , in addition to the fact that there
is an alleged shortage of funds, to justify the
withholding of the balance of the CSCs
annual budget. It was held that such policy
may not be validly enforced against
offices vested with fiscal autonomy like
the CSC and other Constitutional
Commissions. Being automatic means
that the budget releases cannot be made
contingent on the performance of a
particular act or the availability of funds,
otherwise, the constitutional mandate of
automatic and regular release would be
significantly emasculated.

1. Scope of Civil Service
Art. IX-B, Sec. 2(1). The civil service embraces
all branches, subdivisions, instrumentalities,
and agencies of the Government, including
government-owned or controlled corporations
with original charters.
i.
ii.
iii.
iv.
v.
Merit-based system
No holding of other positions
Standardization of salary
No partisan political activity
Security of tenure Temporary
employees of the Government shall be
given such protection as may be
provided by law.
vi. Right to self-organization (v. Right to
strike)
Art. XIII, Sec. 3. [The State] shall guarantee the
rights
of
all
workers
to
selforganization,peaceful concerted activities,
including the right to strike in accordance with
law.
Art. III, Sec. 8. The right of the people,
including those employed in the public and
private sectors, to form unions, association, or
societies for purposes not contrary to law shall
not be abridged.
Art. IX-B, Sec. 2(5). The right to selforganization shall not be denied to government
employees.
Sec. 38, Book V, Title I, Subtitle A, Chapter
6, Administrative Code of 1987.
Who: All government employees, including those
in GOCCs with original charters
Exception: (1) members of the AFP, (2) police
officers and policemen, (3) firemen, (4) jail
guards.
Scope of right: (1) form, join or assist employees'
organizations of their own choosing for the
furtherance and protection of their interests
(2) form, in conjunction with appropriate
government
authorities,
labor-management
committees, work councils and other forms of
workers' participation schemes to achieve the
same objectives
SSS Employees Association v. CA,

(1989):
Employees in the Civil Service may not
resort to strikes, walkouts and other
temporary work stoppages in order to alter
the terms and conditions of their
employment, which are generally governed
and fixed by law. Government employees
may, through their unions or associations,
either
(1) petition the Congress for the betterment
of the terms and conditions of
employment which are within the ambit
of legislation, or
(2) negotiate
with
the
appropriate
government
agencies
for
the
improvement of those which are not
fixed by law. If there be any unresolved
Page 53 of 313
2. Terms and Conditions of Government

Employment
i.
Candidate who has lost in any election,

within 1 year after such election, cannot
be appointed to any office in the Civil
Service;
ii. No elective official shall be eligible for
appointment or designation in any
capacity to any public office or position
during his tenure;
iii. No appointive official shall hold any
other office or employment in the Civil
Service unless otherwise allowed by law
or by the primary functions of his
position.
4. Powers and Functions
Art. IX-B, Sec. 3. The Civil Service Commission,
as the central personnel agency of the
Government, shall establish a career service
and adopt measures to promote morale,
efficiency,
integrity,
responsiveness,
progressiveness, and courtesy in the civil
service. It shall strengthen the merit and
rewards system, integrate all human
resources development programs for all levels
and
ranks,
and
institutionalize
a
management climate conducive to public
accountability. It shall submit to the President
and the Congress an annual report on its
personnel programs.
5. Salary
Standardized compensation, taking
into account the nature of the
responsibilities pertaining to, and the
qualifications
required
for
their
positions
ii. No additional, double, or indirect
compensation
unless
specifically
authorized by law
iii. No elective or appointive public officer
or employee shall accept without the
consent of the Congress, any present,
emolument, office, or title of any kind
from any foreign government
i.
i.
Enforce all laws relating to the conduct

of election:
o Recommend
to
the
Congress
effective measures to minimize
election spending, and to prevent
and penalize all forms of election
frauds, offenses, malpractices, and
nuisance candidacies
o Submit to the President and the
Congress, a comprehensive report
on the conduct of each election,
plebiscite, initiative, referendum, or
recall
ii. Decide
administrative
questions
pertaining to election except the right
to vote;
iii. File petitions in court for inclusion or
exclusion of voters;
iv. Investigate and prosecute cases of
violations of election laws;
v. Recommend pardon, amnesty, parole or
suspension of sentence of election law
violators;
vi. Deputize law enforcement agencies and
instrumentalities of the Government for
the exclusive purpose of ensuring free,
orderly, honest, peaceful, and credible
elections;
vii. Recommend to the President the
removal of any officer or employee it has
deputized for violation or disregard of,
or disobedience to its directive;
viii.Registration
of
political
parties,
organizations
and
coalitions
and
accreditation of citizens arms;
ix. Regulation of public utilities and media
of information.
National Press Club v. Comelec,

(1992):
The law limits the right of free
speech and of access to mass media
of the candidates themselves. The
limitation however, bears a clear and
reasonable
connection
with
the
objective set out in the Constitution. For
it is precisely in the unlimited purchase
of print space and radio and television
time that the resources of the
financially affluent candidates are likely
to make a crucial difference. The
purpose
is
to
ensure
"equal
opportunity, time, and space, and the
right to reply," as well as uniform and
reasonable rates of charges for the use
of such media facilities, in connection
Page 54 of 313
grievances, the dispute may be referred

to the Public Sector Labor-Management
Council for appropriate action.
with "public information campaigns and

forums among candidates."
x. Decide election cases
Art. IX-C, Sec. 3. The Commission on Elections
may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to
expedite disposition of election cases, including
pre- proclamation controversies. All such
election cases shall be heard and decided in
division,
provided
that
motions
for
reconsideration of decisions shall be decided
by the Commission en banc.
2. Jurisdiction
Exclusive original: all contests relating
to
the
lections,
returns,
and
qualifications of all elective regional,
provincial, and city officials
ii. Appellate:
o elective municipal officials decided
by trial courts of general jurisdiction
o elective barangay officials decided by
trial courts of limited jurisdiction
i.
Aggabao v. Comelec, (2005):

Once a winning candidate has been
proclaimed, taken his oath, and assumed
office as a Member of the House of
Representatives, the Comelecs jurisdiction
over election contests relating to his
election, returns, and qualifications ends,
and the HRETs own jurisdiction begins.
Flores v. Comelec, (1990):
Congress cannot make decisions of MTC or
MCTC in a barangay election appealable to
the trial court, because Comelec has
exclusive appellate jurisdiction over all
contests involving barangay elective officials
decided by trial courts of limited
jurisdiction. The jurisdiction of the
Comelec, however, is over questions of fact;
questions of law go to the SC.
ii. Exclusive Authority

o Define the scope of its audit and
examination;
o Establish techniques and methods
required ;
o Promulgate accounting and auditing
rules and regulations.
Art. IX-D, Sec. 3. No law shall be passed
exempting any entity of the Government or its
subsidiaries in any guise whatever, or any
investment of public funds, from the jurisdiction
of the Commission on Audit.
V. CONSTITUTIONALLY-MANDATED
BODIES
A. Sandiganbayan
(Asked 1 time in the Bar)
Art. XI, Sec. 4. The present anti-graft court
known as the Sandigan-bayan shall continue to
function and exercise its jurisdiction as now or
hereafter may be provided by law.
Under RA 8249 (AN ACT FURTHER

DEFINING THE JURISDICTION OF
THE SANDIGANBAYAN, AMENDING
FOR THE PURPOSE PRESIDENTIAL
DECREE NO. 1606, AS AMENDED,
PROVIDING FUNDS THEREFOR, AND
FOR OTHER PURPOSES), to determine
whether
the
Sandiganbayan
has
jurisdiction, one must look into two (2)
criteria, namely:
1) The nature of the offense, and
2) The salary grade of the public
official.
To further strengthen the functional

and structural organization of the
Sandiganbayan, several amendments
have been introduced to the original
law creating it, the latest of which
are Republic Acts No. 7975 and No.
8249.
Under these new laws, the jurisdiction

of the Sandiganbayan is now confined to
cases
involving
public
officials
occupying positions classified as
salary grade 27 and higher.
As restructured, the Sandiganbayan is

presently composed of:
a Presiding Justice and
fourteen (14) Associate Justices
i.
Examine, audit, and settle accounts

pertaining to Government funds or
property:
its
revenue,
receipts,
expenditures, and uses
o Post-audit
basis:
Constitutional
bodies, commissions and offices;
Autonomous state colleges and
universities; GOCCs with no original
charters and their subsidiaries;
Non-governmental entities receiving
subsidy or equity, directly or
Page 55 of 313
indirectly, from or through the

Government, which are required by
law or the granting institution to
submit such audit as a condition of
subsidy or equity
who sit in five (5) Divisions of

three Justices
each
in
the
trial
and
determination of cases.
B. Ombudsman
1. Qualification
Natural born citizen at time of
appointment
At least 40 yrs old
With probity and independence
Member of the Bar
Not a candidate for elective office in
immediately preceding election
At least 10 yrs had been a judge OR
in practice of law
2. Appointment
JBC to nominate at least 6 for
original Ombudsman
JBC to nominate at least 3 for every
vacancy thereafter
Vacancies to be filled within 3
months after occurrence
Appointed by the President
Appointment needs no confirmation
3. Term
7 yrs without reappointment
4. Removal
By impeachment for:
culpable violation of the constitution
treason
bribery
graft and corruption
other high crimes
betrayal of public trust
5. Benefits
Ombudsman has rank of Chairman
of a ConCom
Enjoys fiscal autonomy
Automatic and regular release of
funds
Salary cannot be decreased during
term
6. Powers/Duties
MAIN PURPOSE: protectors of the
people
Shall act promptly on complaints
against
public
officials/govt
employees AND notify complainants
of action taken and the result
Investigate on its own or any
complaint when appears to be:
Illegal
Unjust
Improper
Inefficient
Direct, on its own or upon
complaint, any public official/govt
employee to:
perform
and
expedite
an
act/duty required
stop/prevent/correct any abuse
or impropriety of duty
Direct the officer concerned to take
appropriate action against the
public official/govt employee
Recommend for their:
removal
suspension
demotion
fine
censure
prosecution
Ensure
compliance
of
the
recommendation
Subject to limitations of law, direct
the officer concerned to furnish
copies
of
related
documents/contracts entered by his
office involving use of public funds:
Further report any irregularity to
the Commission on Audit
Request assistance and information
from other govt agencies for the
discharge of his duties
Publicize,
with
due
prudence,
matters covered by investigation,
whenever warranted
Determine the causes of the ff and
make recommendations for their
eradication, and observance of high
standards of ethics/efficiency:
Inefficiency
Red tape
Mismanagement
Fraud
Govt corruption
Promulgate its rules of procedure
Exercise other functions provided by
law
Declare his assets, liabilities, and
net worth upon assumption of office
and when required by law
7. Disqualification
Cannot hold any other office or
employment during tenure
Cannot engage in any profession or
active management/control of any
business affecting their office
Cannot be financially interested,
directly or indirectly, in any
contract, franchise, or privilege
Page 56 of 313
granted by the Government or its

agencies/corporations (Sec. 2, Art.
IX-A)
Cannot run for any office in the
election immediately succeeding
their term of office
Cannot be granted any financial
accommodation
for
business
purposes, directly or indirectly,
within tenure.
C. Commission
on
Human
duplicate much less take over the functions

of the latter. It is conceded, however, that
the Commission may investigate, i.e.,
receive evidence and make findings of
fact as regards claimed human rights
violations involving civil and political
rights.
Rights

1. Composition and Qualifications
Chairman and 4 Members

o natural-born Filipinos
o majority shall be members of the
Bar
o The term of office and other
qualifications shall be provided
by law.
Investigate, on its own or on

complaint by any party, all forms of
human rights violations involving
civil and political rights
Simon v. CHR, (1994):

The Commission can only protect civil and
political rights, which do not include the
less traditional social and economic rights.
o
Note, however, that the reason for these

modest objectives of the Framers of the
Constitution is the desire not to
overburden the CHR during its initial
years. The limitation does not exclude
the possibility of expanding the
Commissions scope later --- as in fact
Section 19 specifically allows (BERNAS).
IMPT: Section 25 of the Universal

Declaration of Human Rights (UDHR) as
well as the International Covenant on
Economic, Social, and Cultural Rights
(ICESCR) are deemed part of Philippine law
pursuant to the Incorporation Clause of the
Constitution.
Art. XIII, Sec. 19. The Congress may provide for
other cases of violations of human rights that
should fall within the authority of the
Commission,
taking
into
account
its
recommendations.
Cario v. CHR, (1991):

The Commission was not meant by the
fundamental law to be another court or
quasi-judicial agency in this country, or
Page 57 of 313
Chapter III. National Economy and Patrimony

I.
II.
III.
IV.
V.
GENERAL PRINCIPLES
A. GOALS
B. CITIZENSHIP REQUIREMENTS
C. FILIPINO FIRST
NATURAL RESOURCES
A. REGALIAN DOCTRINE
B. EXPLORATION, DEVELOPMENT,
UTILIZATION
C. STEWARDSHIP CONCEPT
PRIVATE LANDS
MONOPOLIES
CENTRAL MONETARY AUTHORITY
I. GENERAL PRINCIPLES
A. Goals
1.
2.
3.
More
equitable
distribution
of
opportunities, income and wealth
Sustained increase in amount of goods
and services produced by the nation for
the benefit of the people
Expanding production as the key to
raising the quality of life for all,
especially the underprivileged.
100% Filipino
Marine Wealth
[Art. XII, Sec.
2, par. 2]
Agricultural
lands [Art. XII,
Sec. 3]
o Lease:
<
500 ha.
o Purchase,
homestead
or grant: <
12 ha.
o Private
corporations may
lease not
60-40
Natural
Resources
[Art. XII, Sec.
2, par. 1]
(Coproduction,
Joint venture,
Production
sharing
agreemenents)
Agreements
shall
not
exceed
a
period of 25
years
renewable for
another
25
years.
Educational
Institutions
[Art. XIV, Sec.
4(2)]
70-30
Advertising
Industry [Art.
XVI, Sec. 11]
100% Filipino
more than
1,000 ha.
for
25
years,
renewable
for another
25 years.
Practice
of
professions
[Art. XII, Sec.
14]
Small-scale
utilization
of
natural
resources (as
may
be
provided
by
law) [Art. XII,
Sec. 2, par. 3]
60-40
70-30
Chapter III. National Economy

and Patrimony
Areas
of
Investment as
Congress may
prescribe
(percentage
can be higher)
[Art. XII, Sec.
10]
Operation
of
public utility
[Art. XII, Sec.
11]
o Cannot be
for longer
period
than
50
years
o Executive
and
managing
officers
must
be
Filipino
JG Summit Holdings v. CA, (2000):

A public utility is a business or service
engaged in regularly supplying the public
with some commodity or service of public
consequence. A joint venture falls within
the purview of an association pursuant to
Sec. 11, Art. XII; thus a joint venture which
would engage in the business of operating a
public utility must comply with the 60%40%
Filipino-foreign
capitalization
requirement.
C. Filipino First
Art. XII, Sec. 10. In the grant of rights,
privileges, and concessions covering the national
economy and patrimony, the State shall give
preference to qualified Filipinos.
The State shall regulate and exercise authority
over foreign investments within its national
jurisdiction and in accordance with its national
goals and priorities.
Manila Prince Hotel v. GSIS, (1997):

The term patrimony pertains to
heritage, and given the history of the
Manila Hotel, it has become a part of our
national economy and patrimony. Thus, the
Filipino First policy provision of the
Constitution is applicable. Such provision
is per se enforceable, and requires no
Page 58 of 313
further guidelines or implementing rules

or laws for its operation.
II. NATURAL RESOURCES

A. Regalian Doctrine [Jura Regalia]
Cario v. Insular Government, (1909):
The universal theory that all lands were
held from the Crown.
As in previous Constitutions, the 1987
Constitution adheres to this doctrine as
illustrated by this section:
Art. XII, Sec. 2. All lands of the public domain,
waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by
the State. With the exception of agricultural
lands, all other natural resources shall not be
alienated.
(1) The State may directly undertake such

activities;
(2) The State may enter into co-production,
joint venture or production-sharing
agreements with Filipino citizens or
qualified corporations;
(3) Congress may, by law, allow small-scale
utilization of natural resources by
Filipino citizens; or
(4) For
the
large-scale
exploration,
development and utilization of minerals,
petroleum and other mineral oils, the
President may enter into agreements
with
foreign-owned
corporations
involving
technical
or
financial
assistance.
Parties
Size
of
Activities
Republic v. Register of Deeds of Quezon,

(1994):
Under the Regalian Doctrine, all lands not
otherwise clearly appearing to be privately
owned are presumed to belong to the State.
The classification of public lands is an
exclusive prerogative of the Executive
Department through the Office of the
President.
B. Exploration, Development, and

Utilization
Art. XII, Sec. 2, par. 4. The President may
enter into agreements with foreign-owned
corporations involving either technical or
financial
assistance
for
large-scale
exploration, development, and utilization of
minerals, petroleum, and other mineral oils
according to the general terms and conditions
provided by law, based on real contributions to
the economic growth and general welfare of the
country. In such agreements, the State shall
promote the development and use of local
scientific and technical resources.
La Bugal-BLaan Tribal Assn. v. Ramos,

(Jan. 2004):
The State, being the owner of the natural
resources, is accorded the primary power
and responsibility in the exploration,
development and utilization thereof. As
such it may undertake these activities
through four modes:
FTAA
(1987
Const.)
Only
the
President (in
behalf of the
State),
and
only
with
corporations
Only
largescale
exploration,
development
and
utilization
Natural
Resources
Covered
Minerals,
petroleum
and
other
mineral oils
Scope
of
the
Agreements
Involving
either
financial or
technical
assistance
SERVICE
CONTRACT
(1973 Const.)
A
Filipino
citizen,
corporation or
association
with a foreign
person or entity
Contractor
provides
all
necessary
services
and
technology and
the
requisite
financing,
performs
the
exploration work
obligations, and
assumes
all
exploration risks
Virtually
the
entire range of
the
countrys
natural
resources
Contractor
provides
financial
or
technical
resources,
undertakes the
exploitation or
production of a
given resource,
or
directly
manages
the
productive
enterprise,
operations of the
exploration and
exploitation
of
the resources or
the disposition of
marketing
or
resources
Page 59 of 313
Art. XII, Sec. 12. The State shall promote the

preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt
measures that help make them competitive.
i.
Section
90,
which
provides
for
incentives to contractors in FTAAs
insofar as it applies to said contractors;
The following provisions of the same Act

were likewise deemed void as they are
dependent on the foregoing provisions and
cannot stand on their own:
a. Section 3 (g), which defines the term
contractor, insofar as it applies to a
financial
or
technical
assistance
agreement;
b. Section 34, which prescribes the
maximum contract area in a financial or
technical assistance agreements;
c. Section 36, which allows negotiations
for financial or technical assistance
agreements;
d. Section 37, which prescribes the
procedure for filing and evaluation of
financial
or
technical
assistance
agreement proposals;
e. Section 38, which limits the term of
financial
or
technical
assistance
agreements;
f. Section
40,
which
allows
the
assignment or transfer of financial or
technical assistance agreements;
g. Section 41, which allows the withdrawal
of the contractor in an FTAA;
h. The second and third paragraphs of
Section 81, which provide for the
Governments share in a financial and
technical assistance agreement;
in the disposition or utilization of other natural

resources, including lands of the public domain
under lease or concession
suitable to
agriculture,
The Court then struck down the Financial

and Technical Assistance Agreement (FTAA)
itself between the Government and Western
Mining Corporation (Phils.), Inc. (WMCP) for
being
similar
to
service
contracts,
previously
allowed
under
the
1973
Constitution but which are now proscribed
under the 1987 Constitution.
Art. XII, Sec. 6. The use of property bears a
social function, and all economic agents shall
contribute to the common good.
Individuals and private groups, including
corporations, cooperatives, and similar collective
organizations, shall have the right to own,
establish, and operate economic enterprises,
subject to the duty of the State to promote
distributive justice and to intervene when the
common good so demands.
Art. XIII, Sec. 6. The State shall apply the
principles of agrarian reform or stewardship,
whenever applicable in accordance with law,
subject to prior rights, homestead rights of small

settlers,
and
the
rights
of
indigenous
communities to their ancestral lands.
III.
PRIVATE LANDS
A. General Rule
No private lands shall be transferred or
conveyed
except
to
individuals,
corporations, or associations qualified to
acquire or hold lands of the public domain.
(Art. XII, sec. 7)
B. Exceptions
i.
Hereditary succession
(Art. XII, sec. 7)
ii. A natural-born citizen of the Philippines
who has lost his Philippine citizenship
may be a transferee of private lands,
subject to limitations provided by law.
(Art. XII, sec. 8)
IV. MONOPOLIES
Art. XIII, Sec. 19. The State shall regulate or
prohibit monopolies when the public interest so
requires. No combinations in restraint of trade
or unfair competition shall be allowed.
Page 60 of 313
La Bugal-Blaan Tribal Assn. v. Ramos,

(Dec. 2004):
On a resolution of a motion for
reconsideration of their Jan. 2004 Decision,
the SC reversed the previous ruling, which
declared unconstitutional the following
provisions of the Philippine Mining Act of
1995 (RA 7942) for being contrary to Sec. 2,
Art. XII of the 1987 Constitution:
a. The proviso in Sec. 3(aq), which defines
a qualified person, to wit: Provided,
That a legally foreign-owned corporation
shall be deemed a qualified person for
purposes of granting an exploration
permit, FTAA or mineral processing
permit
b. Sec. 23, which specifies the rights and
obligations of an exploration permitee
c. Sec. 33, which prescribes the eligibility
of a contractor in an FTAA
d. Sec. 35, which enumerates the terms
and conditions for every FTAA
e. Sec. 39, which allows the contractor to
convert the FTAA into a mineral
production-sharing agreement (MPSA)
f. Sec. 56, which authorizes the issuance
of a mineral processing permit to a
contractor in an FTAA
Philippine Coconut Dessicators v. PCA,

(1998):
Although the Constitution enshrines free
enterprise as a policy, it nevertheless
reserves to the Government the power to
intervene whenever necessary for the
promotion of the general welfare.
Agan, Jr. v. PIATCO, (2003):
Monopolies are not per se prohibited by the
Constitution but may be permitted to exist
to aid the government in carrying on an
enterprise or to aid in the performance of
various services and functions in the
interest of the public. Nonetheless, a
determination must first be made as to
whether
public
interest
requires
a
monopoly. As monopolies are subject to
abuses that can inflict severe prejudice to
the public, they are subject to a higher level
of State regulation than an ordinary
business undertaking.
V. CENTRAL MONETARY
AUTHORITY
[Art. XII, Sec. 20]
Functions:
1. Provide policy directions in the areas of
money, banking, and credit;
2. Supervise the operations of banks;
3. Exercise such regulatory powers as
may be provided by law over the
operations of finance companies and
other institutions performing similar
functions
Qualifications of the Governors:
1. Natural-born Filipino;
2. Known probity, integrity and patriotism;
3. Majority shall come from the private
sector
Subject to such other qualifications and

disabilities as may be provided by law
Until the Congress otherwise provides, the

Central Bank of the Philippines operating
under existing laws, shall function as the
central monetary authority.
Page 61 of 313
Chapter IV. Current Events and Special Topics
shall thenceforth be referred to as the first

party.
I. PARTY-LIST SYSTEM
II. QUESTION HOUR V. INQUIRIES IN AID OF
LEGISLATION
III. EXECUTIVE PRIVILEGE
IV. PEOPLES INITIATIVE
V. RIGHT OF REPLY BILL
VI. THE (ERSTWHILE) PROVINCE OF
SHARIFF KABUNSUAN
VII. MOA ON ANCESTRAL DOMAIN (MOA-AD)
Step Two. The next step is to determine the

number of seats the first party is entitled
to, in order to be able to compute that for
the other parties. Since the distribution is
based on proportional representation, the
number of seats to be allotted to the
other parties cannot possibly exceed
that to which the first party is entitled
by virtue of its obtaining the most
number of votes.
I. PARTY-LIST SYSTEM
Ang Bagong Bayani v. Comelec,
(2001):
The SC laid down the following guidelines

for screening party-list participants --1) The parties must represent the
marginalized and underrepresented.
2) Major political parties must comply with
this statutory policy
3) Religious sects are prohibited by the
Constitution
4) The party must not be disqualified
under RA 7941
5) The part must not be an adjunct of an
entity or project funded by the
government
6) The party and its nominees must
comply with the requirements of the law
7) The members must come from the
marginalized
and
underrepresented
sectors
8) The nominee must be able to contribute
to the formulation and enactment of
appropriate legislation that will benefit
the nation
9) Their nominees must come from the
same party.
Veterans
Federation
Comelec, (2000):
Party
v.
The Legal and Logical Formula for the

Philippines
Step One. The initial step is to rank all the
participating parties, organizations and
coalitions from the highest to the lowest
based on the number of votes they each
received. Then the ratio for each party is
computed by dividing its votes by the
total votes cast for all the parties
participating in the system. All parties
with at least two percent of the total
votes are guaranteed one seat each.
Only these parties shall be considered in
the computation of additional seats. The
party receiving the highest number of votes
For example, the first party received

1,000,000 votes and is determined to be
entitled to two additional seats. Another
qualified party which received 500,000
votes cannot be entitled to the same
number of seats, since it garnered only fifty
percent of the votes won by the first party.
Depending on the proportion of its votes
relative to that of the first party whose
number of seats has already been
predetermined, the second party should be
given less than that to which the first one is
entitled.
The other qualified parties will always
be allotted less additional seats than
the first party for two reasons: (1) the
ratio between said parties and the first
party will always be less than 1:1, and (2)
the formula does not admit of mathematical
rounding off, because there is no such
thing as a fraction of a seat. Verily, an
arbitrary rounding off could result in a
violation of the twenty percent allocation.
An academic mathematical demonstration
of such incipient violation is not necessary
because the present set of facts, given the
number of qualified parties and the voting
percentages obtained, will definitely not end
up in such constitutional contravention.
The Court has previously ruled in Guingona
Jr. v. Gonzales that a fractional membership
cannot be converted into a whole
membership of one when it would, in effect,
deprive
another
party's
fractional
membership. It would be a violation of the
constitutional mandate of proportional
representation. We said further that "no
party can claim more than what it is
entitled to x x x.
Page 62 of 313
Chapter IV. Current Events and

Special Topics
Formula for Determining Additional Seats

for the First Party
Number of votes
of first party
-----------------Total votes for
party-list system
Proportion of
votes relative to
total votes for
party list
If the proportion of votes received by the

first party without rounding it off is
equal to at least six percent of the total
valid votes cast for all the party list
groups, then the first party shall be
entitled to two additional seats or a
total of three seats overall. If the
proportion of votes without a rounding off is
equal to or greater than four percent, but
less than six percent, then the first party
shall have one additional or a total of two
seats. And if the proportion is less than
four percent, then the first party shall not
be entitled to any additional seat.
Note that the above formula will be
applicable only in determining the number
of additional seats the first party is entitled
to. It cannot be used to determine the
number of additional seats of the other
qualified parties. As explained earlier, the
use of the same formula for all would
contravene the proportional representation
parameter.
Formula for Additional Seats of Other
Qualified Parties
Step Three. The next step is to solve for the
number of additional seats that the other
qualified parties are entitled to, based on
proportional representation. The formula is
encompassed by the following complex
fraction:
Additional
seats for
concerned
party
No. of votes of
concerned
party
=
--------------No. of votes of
the first party
No. of
additional
seats
allocated to
first party
Incidentally, if the first party is not

entitled to any additional seat, then the
ratio of the number of votes for the
other party to that for the first one is
multiplied by zero. The end result would
be zero additional seats for each of the
other qualified parties as well.
To repeat, rounding off may result in the

awarding of a number of seats in excess of
that provided by the law.
Furthermore,
obtaining
absolute
proportional representation is restricted by
the
three-seat-per-party
limit
to
a
maximum of two additional slots. An
increase in the maximum number of
additional representatives a party may be
entitled to would result in a more accurate
proportional representation. But the law
itself has set the limit: only two additional
seats. Hence, we need to work within such
extant parameter.
Barangay Association for National

Advancement and Transparency
(BANAT) v. Comelec, (2009):*
SC declared the 2%-threshhold used for
computing the allocation of additional seats
under the Veterans Formula, pursuant to
Sec. 11, RA 7941, unconstitutional,
because it renders the attainment of the
maximum number of available party seats
mathematically
impossible
once
the
available party list seats exceeds 50, as in
the present state of the law, where 55 seats
are available to party-list representatives.
In determining the allocation of seats for
party-list representatives under Section 11
of R.A. No. 7941, the following procedure
shall be observed:
1. The
parties,
organizations,
and
coalitions shall be ranked from the
highest to the lowest based on the
number of votes they garnered during
the elections.
2. The
parties,
organizations,
and
coalitions receiving at least two percent
*
EDITORS NOTE: As of the making of this reviewer,

the Office of the Bar Confidant has not yet released the
2009 Bar Examination Coverage. It is doubtful that
this case will become part of the coverage for this
years exam. Nevertheless, the faculty adviser Prof. Te
and the rest of the writing and editing team, think it
would be prudent to include this development in the
discussion of the party-list system, seeing that it
involves a separate opinion from Justice Nachura, the
2009 Bar Exam Chairman.
Page 63 of 313
The formula for computing the number of

seats to which the first party is entitled is as
follows:
The above formula does not give an exact

mathematical representation of the number
of additional seats to be awarded since, in
order to be entitled to one additional seat,
an exact whole number is necessary. In
fact, most of the actual mathematical
proportions are not whole numbers and are
not rounded off for the reasons explained
earlier.
In computing the additional seats, the

guaranteed seats shall no longer be
included because they have already been
allocated, at one seat each, to every twopercenter. Thus, the remaining available
seats for allocation as additional seats are
the maximum seats reserved under the
Party List System less the guaranteed
seats. Fractional seats are disregarded in
the absence of a provision in R.A. No. 7941
allowing for a rounding off of fractional
seats.
The three-seat cap, as a limitation to the
number of seats that a qualified party-list
organization may occupy, remains a valid
statutory device that prevents any party
from dominating the party-list elections.
However, by a vote of 8-7, the Court
decided to continue the ruling in Veterans
disallowing major political parties from
participating in the party-list elections,
directly or indirectly.
Puno, C.J., Concurring and Dissenting

Opinion:
Limiting the party-list system to the
marginalized and excluding the major
political parties from participating in the
election of their representatives is aligned
with the constitutional mandate to reduce
social, economic, and political inequalities,
and remove cultural inequalities by
equitably diffusing wealth and political
power for the common good.
The evils that faced our marginalized and
underrepresented people at the time of the
framing of the 1987 Constitution still haunt
them today. It is through the party-list
system that the Constitution sought to
address this systemic dilemma. In ratifying
the Constitution, our people recognized how
the interests of our poor and powerless
sectoral groups can be frustrated by the
traditional political parties who have the
machinery and chicanery to dominate our

political institutions. If we allow major
political parties to participate in the partylist system electoral process, we will surely
suffocate the voice of the marginalized,
frustrate their sovereignty and betray the
democratic spirit of the Constitution.
Nachura, J., Separate Opinion:

The inflexible 2% threshold vote required
for entitlement by a party-list group to a
seat in the House of Representatives in
Republic
Act
(R.A.)
No.
7941
is
unconstitutional.
This minimum vote requirement fixed at
2% of the total number of votes cast for the
party
list
system
presents
an
unwarranted
obstacle
to
the
full
implementation of Section 5 (2), Article VI,
of the Philippine Constitution.
As such, it effectively defeats the declared
constitutional policy, as well as the
legislative objective expressed in the
enabling law, to allow the peoples broadest
representation in Congress, the raison
detre for the adoption of the party-list
system.
A
legal
provision
that
poses
an
insurmountable
barrier
to
the
full
implementation and realization of the
constitutional provision on the party-list
system should be declared void.
I submit that, until Congress shall have
effected an acceptable amendment to the
minimum vote requirement in R.A. 7941,
we abide by the sensible standard of
proportional representation and adopt a
gradually regressive threshold vote
requirement, inversely proportional to
the increase in the number of party-list
seats.
Thus, at present, considering that there are
55 seats allocated for party-list groups, the
formula should be:
100%
(Total # of votes cast for
party-list)
55 party-list seats
1.818%
The minimum vote requirement will

gradually lessen as the number of partylist seats increases. Accordingly, if the
scenario we presented above should ever
come to pass, and there are 100 seats
allocated for party-list groups, then the
Page 64 of 313
(2%) of the total votes cast for the partylist system shall be entitled to one
guaranteed seat each.
3. Those garnering sufficient number of
votes, according to the ranking in
paragraph 1, shall be entitled to
additional seats in proportion to their
total number of votes until all the
additional seats are allocated.
4. Each party, organization, or coalition
shall be entitled to not more than three
(3) seats.
threshold vote should be 1%, based on the

following computation:
5. Likewise, Congress exercises legislative

scrutiny thru its power of confirmation.
=
1%
II. QUESTION HOUR v. INQUIRIES IN

AID OF LEGISLATION
Macalintal v. Comelec, (2003), Puno,
C.J., Concurring and Dissenting
Opinion:
Categories
Functions
of
Congressional
Oversight
A. Scrutiny
1. Primary purpose is to determine
economy and efficiency of the operation
of government activities
2. In the exercise of legislative scrutiny,
Congress may request information and
report from the other branches of
government.
3. based primarily on the power of
appropriation of Congress
4. Congress can ask the heads of
departments to appear before and be
heard by either House of Congress on
any
matter
pertaining
to
their
departments.
Art. VI, Sec. 22. The heads of departments
may, upon their own initiative, with the consent
of the President, or upon the request of either
House, as the rules of each House shall provide,
appear before and be heard by such House on
any matter pertaining to their departments.
Written questions shall be submitted to the
President of the Senate or the Speaker of the
House of Representatives at least three days
before
their
scheduled
appearance.
Interpellations shall not be limited to written
questions, but may cover matters related
thereto. When the security of the State or the
public interest so requires and the President so
states in writing, the appearance shall be
conducted in executive session
Under the 1973 Constitution, a similar

provision expressly referred to this
appearance as the question hour. In
contrast to such provision, however, the
tenor of its counterpart in the present
Constitution is merely permissive.
Hence, the President may or may not
consent to the appearance of the heads
of departments; and even if he does, he
may require that the appearance be in
executive
session.
Reciprocally,
B. Congressional Investigation
Art. VI, Sec. 21. The Senate or the House of
Representatives or any of its respective
committee may conduct inquiries in aid of
legislation in accordance with its duly
published rules of procedure. The rights of
persons appearing in or affected by such
inquiries shall be respected.
Limitations
i. Must be in aid of legislative
functions
ii. Must be conducted in accordance
with duly published rules of
procedure
iii. Persons appearing therein are
afforded their constitutional rights
Arnault v. Nazareno, (1950):

Although there is no provision in the
Constitution expressly investing either
House of Congress with power to make
investigations and exact testimony to
the end that it may exercise its
legislative functions advisedly and
effectively, such power is so far incidental
to the legislative function as to be implied.
In other words, the power of inquiry with
process to enforce it is an essential and
appropriate auxiliary to the legislative
function. A legislative body cannot legislate
wisely or effectively in the absence of
information respecting the conditions which
legislation is intended to affect or change;
and where the legislative body does not
itself possess the requisite information
which is not frequently true recourse
must be had to others who do possess it.
C. Legislative Supervision
Congress exercises supervision over the
executive agencies through its veto power.
It typically utilizes veto provisions when
granting the President or an executive
agency the power to promulgate regulations
with the force of law. These provisions
require the President or an agency to
present the proposed regulations to
Congress, which retains a right to approve
or disapprove any regulation before it takes
effect.
III.EXECUTIVE PRIVILEGE
Page 65 of 313
100%
(Total # of votes cast for
party-list)
100 party-list seats
Congress may refuse the initiative taken

by a department secretary.
Senate v. Ermita, (2006):
exempts the executive from disclosure

requirements applicable to the ordinary
citizen or organization
where such exemption is necessary to
the discharge of highly important
executive responsibilities involved in
maintaining governmental operations,
and
extends not only to military and
diplomatic
secrets
but
also
to
documents integral to an appropriate
exercise of the executive domestic
decisional and policy making functions,
that is, those documents reflecting the
frank expression necessary in intragovernmental advisory and deliberative
communications.
Neri v Senate (2008):

Two kinds of executive privilege:
[citing In re: Sealed Case]
1. Presidential Communications Privilege
2. Deliberative Process Privilege
Presidential Communications
Communications, documents or other materials
that reflect presidential decision-making and
deliberations and that the President believes should
remain confidential
o applies to documents in their entirety, and covers
final and post-decisional materials as well as predeliberative ones
Who are President
covered
operational proximity test: meant to
encompass only those functions that form the
core of presidential authority, involving what the
court characterized as quintessential and nondelegable
Rooted in the constitutional principle of separation
Basis
of power and the Presidents unique constitutional
role
1. The protected communication must relate to a
Elements
quintessential and non-delegable presidential
power.
2. The communication must be authored or
solicited and received by a close advisor of the
President or the President himself. The judicial
test is that an advisor must be in operational
proximity with the President.
3. The
presidential
communications
privilege
remains a qualified privilege that may be
overcome by a showing of adequate need, such
that the information sought likely contains
important evidence and by the unavailability of
the information elsewhere by an appropriate
investigating authority.
Scope
Deliberative Process
advisory
opinions,
recommendations
and
deliberations comprising part of
a process by which governmental
decisions
and
policies
are
formulated.
Executive officials
Common law privilege
Page 66 of 313
Citing American sources, the SC defined

and explained executive privilege as
follows --(1) It is the right of the President and highlevel executive branch officers to
withhold information from Congress,
the courts, and ultimately the public;
(2) It takes on various forms, whereby U.S.
Presidents invoke it in order to prevent
a subversion of crucial military or
diplomatic objectives, or to protect the
identity of informers, or to maintain the
internal nature of the formulation of
governmental decisions and policies;
(3) It is based on the constitutional
doctrine of separation of powers.
2) As an initiative upon a petition,

the proposal must be embodied in
the petition.
o
Further, a peoples initiative could only

propose amendments, not revisions.
Only a Congress or a Constitutional
Convention
can
propose
both
amendments and revisions to the
Constitution. A change in the form of
governmentfrom
presidential
and
bicameral
to
parliamentary
and
unicameralconstitutes revision and
not merely an amendment.
V. RIGHT OF REPLY*
Highlights of House Bill No. 3306
IV. PEOPLES INITIATIVE

Lambino v. COMELEC (2006):
In Santiago v. COMELEC (1997), the SC
declared RA. 6735 on Peoples Initiative to
be incomplete, inadequate, or wanting in
essential terms and conditions insofar as
initiative
on
amendments
to
the
Constitution is concerned.
The Lambino petition seeks to use the same
law for a new peoples initiative in order to
convert the present government set-up into
a parliamentary-unicameral system.
Held:
o The Court held that the Santiago
decision need not be revisited. The
Lambino petition warranted outright
dismissal for failure to comply with the
basic requirement of Section 2, Art. XVII
such that an affirmation or reversal of
Santiago will not change the outcome of
the case.
o
The Lambino petition failed to comply

because:
a) the initiative petition did not present
the full text of the proposed
amendments, and
b) the proposed changes constituted
revision, not amendment.
The essence of amendments directly
proposed by the people through
initiative upon petition is that the
entire proposal on its face is a petition
by the people. This means the 2
essential elements must be present:
1) The people must author and thus
sign the entire proposal. No agent or
representative can sign on their
behalf.
A. To Whom the Right to Reply is

Granted
1. All persons accused of any crime or
offense defined by law, or
2. Criticized by innuendo, suggestion
or rumor for any lapse in behavior
in public or private life.
B. Where
Reply
Broadcast
is
Published
or
1. Same space of the printed media

where accusation or criticism was
published
2. Same program where accusation or
criticism was broadcast
Media covered include websites
and any electronic devices
C. When Reply is Published or Broadcast
Not later than 1 day after the reply shall
have been delivered to the editorial office of
the publication concerned or to the station
that carried the broadcast being replied to.
D. Length of Reply
Not longer than the accusation or criticism.
EDITORS NOTE: Another improbable inclusion: it is

way beyond the usual cut-off period and its not even a
law yet. But since the section is on current events vis-vis constitutional law, the main purpose is to create
an awareness (at the very least) of this potential
development within the consciousness of the reader
while hoping to high heavens that there is enough
kindness for this NOT to be included in the coverage
But we digress. To put it another way, we would rather
err on the side of caution while stacking all the
possible cards in our deck.
Page 67 of 313
How does one draw the line, or balance,

the competing claims of the presidency
and the legislature?
o Citing Senate v. Ermita (2006), the
Court held that the oversight
function of Congress may be
facilitated by compulsory process
only to the extent that it is
performed
in
pursuit
of
legislation.
o It is conceded that it is difficult to
draw the line between an inquiry in
aid of legislation and an inquiry in
the exercise of oversight function of
Congress. In this regard, much will
depend on the content and the
manner the inquiry is conducted.
E. Other Provisions
VI. THE (ERSTWHILE) PROVINCE OF

SHARIFF KABUNSUAN
Sema v. Comelec, (2008):
Facts:
o Muslim Mindanao Autonomy Act No.
201 (MMA Act 201) created the Province
of Shariff Kabunsuan composed of the 8
municipalities in the first district of
Maguindanao,
pursuant
to
the
legislative power of the ARMM Regional
Assembly as granted under its Organic
Act.
o Comelec issued Resolution No. 7902
treating Cotabato City as part of the
legislative district of the Province of
Shariff Kabunsuan.
o Sema, who was a candidate in the 2007
elections for Representative of Shariff
Kabunsuan with Cotabato City, prayed
for the nullification of COMELEC
Resolution No. 7902, contending that,
Shariff Kabunsuan is entitled to one
representative
in
Congress
under
Section 5 (3), Article VI of the
Constitution and Section 3 of the
Ordinance
appended
to
the
Constitution.
Held:
1. There
is
no
provision
in
the
Constitution that conflicts with the
delegation to regional legislative bodies
of the power to create municipalities
and barangays, provided Section 10,
Article X of the Constitution is followed.
However, the creation of provinces and

cities is another matter.
Section 5 (3), Article VI of the
Constitution provides, Each city with a
population of at least two hundred fifty
thousand, or each province, shall have
at least one representative in the
House of Representatives.
Similarly, Section 3 of the Ordinance
appended to the Constitution provides,
Any province that may hereafter be
created, or any city whose population
may hereafter increase to more than
two hundred fifty thousand shall be
entitled in the immediately following
election to at least one Member.
Thus, the power to create a province
or city inherently involves the power
to create a legislative district.
The creation of the ARMM, and the
grant of legislative powers to its
Regional Assembly under its organic
act, did not divest Congress of its
exclusive authority to create legislative
districts. To allow the ARMM Regional
Assembly to create a national office is to
allow its legislative powers to operate
outside
the
ARMMs
territorial
jurisdiction.
This violates Section 20, Article X of the
Constitution which expressly limits the
coverage of the Regional Assemblys
legislative powers [w]ithin its territorial
jurisdiction x x x.
Thus, the creation of the Province of
Shariff
Kabunsuan
without
a
legislative
district
is
unconstitutional.
2. Only Congress can create provinces and
cities because the creation of provinces
and cities necessarily includes the
creation of legislative districts, a power
only Congress can exercise under
Section 5, Article VI of the Constitution
and Section 3 of the Ordinance
appended to the Constitution.
The
ARMM Regional Assembly cannot create
a province without a legislative district
because the Constitution mandates that
every province shall have a legislative
district. Thus, MMA Act 201, enacted by
the ARMM Regional Assembly and
creating
the
Province
of
Shariff
Kabunsuan, is void.
Page 68 of 313
1. It is the obligation of the

publication or broadcast network
which featured the accusations
against a person, if the latter is
eventually cleared of the crime
alluded to him, to correct its
previous report.
2. The publication or broadcasting of
the reply shall be free of charge,
payment or fees.
3. Failure or refusal to publish or
broadcast a reply or the correction
of an erroneous news item is carries
penal sanctions consisting of both
fines and imprisonment.
4. The publication of the reply or
correction
does
not
preclude
recourse to the exercise of other
legal rights and remedies available
to the party concerned.
Province of North Cotabato v. GRP,

Esperon (2008)
Facts:
In lieu of the historical hostilities occurring
in Mindanao perpetrated by Muslim
secessionist groups and the failure of a
number of peace talks entered into between
the government and the MNLF (the MILF
broke away from MNLF and continued
armed hostilities), President Arroyo issued
Executive Order No.3 defining the policy
and administrative structure for the
governments comprehensive peace effort.
Later on, she issued Memorandum of
Instructions to the GRP Peace Panel
providing the General Guidelines on the
Peace Talks with the MILF. MILF and the
AFP suspended all military actions and
began the peace talks. Despite two rounds
of formal peace talks, violence still ensued.
The GRP and the MILF again agreed to a
cessation of hostilities to give way to
exploratory talks conducted in Kuala
Lumpur. The exploratory talks culminated
in the drafting of the subject of MOA-AD
intended to be signed on August 5, 2008 in
Kuala Lumpur.
Petitioners wanted to secure copies of the
MOA but they were denied. They filed
petitions which resulted to a cease and
desist order from the Supreme Court
restraining the government to sign the
MOA-AD and prompted the SolGen to
submit to the court the final draft of the
MOA-AD.
Later on, the Executive Department
pronounced that it would not longer sign
the MOA-AD and dissolved the GRP Peace
Panel.
Petitioners still filed 13 petitions assailing
the constitutionality of the MOA-AD
arguing that there remains a justiciable
controversy to resolve.
Held:
1. The Presidential Adviser on Peace
Process, General Esperon, committed
grave abuse of discretion when he failed
to carry out the pertinent consultation
process as required by EO 3, RA 7160
(LGC) and RA 8371 (IPRA).
2. The MOA-AD cannot be reconciled with
the Constitution and laws, particularly
the associative relationship envisioned
between GRP and BJE. Therefore, it is
unconstitutional.
3. The clause on the MOA-AD that
inconsistent provisions will not take
effect until the framework is amended
does
not
cure
the
MOA-ADs
unconstitutionality.
4. Respondents act of guaranteeing the
amendments is, by itself, already a
constitutional violation.
Nachuras Dissent:
In light of supervening events, there is no
more actual case or controversy to be
resolved. There can be no violation of the
Constitution because the MOA-AD was not
consummated. On the substantive aspect,
Nachura believed that the constitutionality
of the MOA-AD should be viewed from the
perspective of executive power. As Chief
Executive and Commander-in-Chief, there
is an implied power given to the President
as protector of peace. Implied from the
calling out power of the President which
does not require existence of actual
invasion or rebellion, the President may
exercise not only emergency powers, but
day-to-day problems of maintaining peace
and
order
and
ensuring
domestic
tranquility. The mandate of the GRP Peace
Panel emanated from Executive Order No. 3
which was issued pursuant to the power of
the President to maintain peace and order.
- end of Constitutional Law I -
Page 69 of 313
VII. MOA ON ANCESTRAL DOMAIN

(MOA-AD)
Table of Contents
CONSTITUTIONAL LAW II
CHAPTER I. BILL OF RIGHTS
I. In General
II. Bases and Purpose
A. Bases
B. Purpose
III. Accountability
CHAPTER III. DUE PROCESS

I. In General
B. Noted Exceptions to Due
Process
II. Substantive Due Process
A. Scope
B. Requisites
C. Doctrines
III. Procedural Due Process
A. Scope
B. Kinds
IV. Due Process as Limitation on
Fundamental State Powers
A. Vis-a-Vis Police Power
B. Vis-a-Vis Eminent Domain
C. Vis-a-Vis Power to Tax
CHAPTER IV. EQUAL PROTECTION
OF THE LAWS
I. Definition and Scope of
Protection
II. Requisites of Valid Classification
III. Examples of Valid Classification
A. Aliens
B. Filipino Female Domestics
Working Abroad
C. Land-Based vs. Sea-Based
Filipino Overseas Workers
D. Qualification for Elective
Office
75
75
75
75
75
75
75
77
78
78
78
79
79
79
79
80
81
81
81
81
81
81
82
82
82
82
83
83
83
84
85
86
86
86
86
86
87
87
87
87
87
IV. Three Standards of Judicial

Review
87
87
87
87
CHAPTER V. REQUIREMENTS FOR

FAIR PROCEDURE
I. Nature and Scope of the Right in
Art. III, Sec. 2
II. Arrest
A. Requisites for Issuance of
Valid Arrest Warrant
B. When Arrest May Be Made
without a Warrant
III. Search and Seizure
A. Requisites of a Valid Search
Warrant
B. When Search May Be Made
without Warrant
C. Properties Subject of Seizure
IV. Detention/Custodial
Investigation
Investigation
B. Tests of Waiver of Miranda
Rights
V. Other Rights Guaranteed under
Art. III. Sec. 12
VI. Protocol after Conduct of
Investigation
VII.Exclusionary Rules
A. Vis--Vis Violation of the
Right Against Unreasonable
Searches and Seizures
B. Vis--Vis Violation of the
Rights of Persons under
Custodial Investigation
C. Vis--Vis Violation of the
Right Against SelfIncrimination
VIII. Right to Bail
CHAPTER VI.
RIGHTS OF THE
ACCUSED
I. Rights During Trial
B. Right to be Heard Personally
or by Counsel
C. Right to be Informed of
Nature and Cause of
Accusation
D. Right to Speedy, Impartial
and Public Trial
F. Right to Compulsory
Processes
88
88
88
88
89
91
91
92
94
94
94
97
98
98
98
98
98
98
99
102
102
102
103
103
103
103
103
104
Page 71 of 313
CHAPTER II. FUNDAMENTAL

POWERS OF THE STATE
I. Police Power
A. Definition
C. Who May Exercise
D. Tests for Validity of Exercise
E. Illustration on the Exercise
II. Eminent Domain
A. Definition
B. Who May Exercise
C. Requisites
III. Taxation
B. Who May Exercise
C. Limitations
D. Double Taxation
73
73
73
73
73
74
H. Right Against SelfIncrimination

II. Rights Post Trial
A. Right Against Double
Jeopardy
B. Excessive Fines and Cruel,
Degrading and Inhuman
Punishment
E. Ex Post Facto Laws and Bills
of Attainder
CHAPTER VIII. PRIVACY OF

COMMUNICATION AND
CORRESPONDENCE
I. Intrusion, When Allowed
II. Forms of Correspondence
Covered
III. Enabling Law
CHAPTER IX. FREEDOM OF
EXPRESSION
I. Basis, Components, Scope and
Limitations
A. Freedom from Censorship or
Prior Restraint
B. Freedom from Subsequent
Punishment
II. Content-Based Restrictions
A. Tests
B. Applications of Various Tests
in Specific Instances
III. Content-Neutral Restrictions
2. Freedom of Association and
Self-Organization
3. Movie Censorship
4. Broadcast Media
CHAPTER X. FREEDOM OF
RELIGION
I. Non-Establishment Clause
A. Concept
B. Basis
C. Acts NOT permitted by the
D. Acts permitted by the
E. Test
II. Free Exercise Clause
A. Dual Aspect
B. Laws Justified under the Free
Exercise Clause
III. Tests
104
105
105
106
106
106
A. Clear and Present Danger

Test
B. Compelling State Interest
Test
124
124
124
CHAPTER XI. LIBERTY OF ABODE

AND TRAVEL
I. Liberty of Abode
II. Right to Travel
III. Right to Return to Ones Country
125
125
125
125
CHAPTER XII.RA 9372: HUMAN

SECURITY ACT
126
APPENDIX: B.P. 880
128
106
107
107
109
109
112
112
112
112
114
114
114
115
116
116
117
119
119
120
121
121
122
122
122
122
122
122
123
123
123
123
124
Page 72 of 313
CHAPTER VII. WRITS

I. Habeas Corpus
II. Writ of Amparo
III. Habeas Data
Table of Contents
Chapter I. Bill of Rights
FACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE

FACULTY EDITOR
ACADEMICS COMMITTEE
Samantha Poblacion
EDITOR-IN-CHIEF
POLITICAL LAW
LECTURES
Carmi Tugday
Joey Capones
Edel Cruz
SUBJECT EDITORS
Jason Mendoza
HEAD
Rania Joya
LAYOUT HEAD
Malds Menzon
-------Kae Guerrero
LEAD WRITER
Gab Libang
Rachel Mayuga
Louie Macabodbod
Nikki Mendez
Constitutional Law 2
I. IN GENERAL
II. BASES AND PURPOSE
A. BASES
B. PURPOSE
III. ACCOUNTABILITY
I. IN GENERAL
It is a declaration and enumeration of a
person's fundamental civil and political
rights. It also imposes safeguards against
violations
by
the
government,
by
individuals, or by groups of individuals.
People vs Marti G.R. No. 81561 (1991):
That the Bill of Rights embodied in the
Constitution is not meant to be invoked
against acts of private individuals finds
support in the deliberations of the
Constitutional Commission. x x x The Bill
of Rights governs the relationship
between the individual and the state. Its
concern is not the relation between
individuals, between a private individual
and other individuals. What the Bill of
Rights does is to declare some forbidden
zones in the private sphere inaccessible to
any power holder. (Sponsorship Speech of
Commissioner Bernas , Record of the
Constitutional Commission, Vol. 1, p. 674;
July 17, 1986; Emphasis supplied)
It is generally self-executing.
Article III contains the chief protection for
human rights but the body of the
Constitution guarantees other rights as
well.
1. Civil rights rights that belong to an
individual by virtue of his citizenship in
a state or community (eg., rights to
-------Leo Zulueta
WRITERS
property, marriage, freedom to contract,

equal protection, etc.)
2. Political rights rights that pertain to
an individuals citizenship vis--vis the
management of the government (eg.,
right of suffrage, right to petition
government for redress, right to hold
public office, etc.)
3. Social and economic rights rights
which are intended to insure the wellbeing and economic security of the
individual
4. Rights of the accused civil rights
intended for the protection a person
accused of any crime
II. BASES AND PURPOSE

A. Bases:
1. Importance accorded to the dignity
and worth of the individual.
2. Protection against arbitrary actions
of government and other members
of society
B. Purpose:
1. To preserve democratic ideals
2. To safeguard fundamental rights
3. To promote the happiness of an
individual
Philippine
Blooming
Mills
Employees
Organization v. Philippine Blooming Mills
Co., Inc, (1973):
The primacy of human rights
property rights is recognized.
over
The rights of free expression and of

assembly occupy a preferred position.
A mere reasonable or rational relation
between the means employed by the law
and its object or purpose-that the law is
Page 73 of 313
LAYOUT TEAM
Pau Caspellan
DEPUTY HEAD
neither arbitrary nor discriminatory nor

oppressivewould suffice to validate a law
which restricts or impairs property rights.
But a constitutional or valid infringement of
human rights require a more stringent
criterion, namely existence of a grave and
immediate danger of a substantive evil
which the State has the right to prevent.
III.
ACCOUNTABILITY
People vs Marti G.R. No. 81561 (1991):

That the Bill of Rights embodied in the
Constitution is not meant to be invoked
against acts of private individuals finds
support in the deliberations of the
Constitutional Commission. see above
Serrano vs NLRC G.R. No. 117040

(2000):
Section 3 of Article XIII of the Constitution
requires the State to give full protection to
labor. We cannot be faithful to this duty if
we give no protection to labor when the
violator of its rights happens to be private
parties like private employers. A private
person does not have a better right than
the government to violate an employee's
right to due process. To be sure, violation
of the particular right of employees to
security of tenure comes almost always
from their private employers.
Page 74 of 313
Chapter II. Fundamental Powers of the State
Specifically
Chapter II. Fundamental Powers

of the State
I.
I. POLICE POWER
A. Definition
Ermita-Malate Hotel and Motel Operators
Association, Inc. v Mayor of Manila, (1967):
It is the inherent and plenary power of
the state which enables it to prohibit all
that is hurtful to the comfort, safety and
welfare of society.

1. Scope
Generally
Rubi v. Provincial Board, 39 Phil. 660
"The police power of the State," one
court has said, ... "is a power
coextensive with self-protection, and is
not inaptly termed the 'law of overruling
necessity.' It may be said to be that
inherent and plenary power in the State
which enables it to prohibit all things
hurtful to the comfort, safety and
welfare of society." (Lake View vs. Rose
Hill Cemetery Co. [1873], 70 Ill., 191.)
Ermita-Malate Hotel and Motel

Operators Assoc. vs Mayor of Manila
(1967):
It extends to all the great public needs
and is the most pervasive, least
limitable and most demanding of the
three powers
Ortigas & Co. v. CA (2000):
Police power prevails over future
contracts as well as past ones. The
non-impairment of contracts clause,
and other vested rights, have to yield
to the legitimate exercise of State
police power.
Public
Public
Public
Public
Health
Morals
Safety
Welfare
2. Limitations
US v Toribio, (1910):
The legislative determination of what is
a proper exercise of its police power is
not final or conclusive, but is subject to
the supervision of the courts.
C. Who May Exercise

1. Legislature
Police power is lodged primarily in the
national legislature.
2. Executive
By virtue of a valid delegation of
legislative power, it may also be
exercised
by
the
president,
administrative bodies, and lawmaking
bodies of LGUs (R.A. 7160, sec. 16).
Note: MMDA v Garin: The MMDA is not
delegated with police power (MMDA v. BelAir Village Association) but it is mandated
by R.A. 7924 to enforce traffic rules and
regulations.
D. Tests for Validity of Exercise of

Police Power
1. Interest of the general public (as
distinguished from a particular class
required exercise) LAWFUL SUBJECT.
2. Means
employed
is
reasonably
necessary for the accomplishment of the
purpose, and is not unduly oppressive.
LAWFUL MEANS.
E. Illustrations on the Exercise of

Police Power
1. National Security
Lao Ichong v. Hernandez (1957)
SC upheld the constitutionality of RA

1180 (An Act to Regulate the Retail
Business) which sought to nationalize
the retail trade business by prohibiting
aliens in general from engaging directly
or indirectly in the retail trade. Aliens
did not question the exercise of police
power; they claim, however, that there
Page 75 of 313
POLICE POWER
A. DEFINITION
B. SCOPE AND LIMITATIONS
C. WHO MAY EXERCISE
D. TESTS FOR VALIDITY OF EXERCISE
E. ILLUSTRATION ON THE EXERCISE
II. EMINENT DOMAIN
A. DEFINITION
B. WHO MAY EXERCISE
C. REQUISITES
III. TAXATION
A. DEFINITION AND SCOPE
B. WHO MAY EXERCISE
C. LIMITATIONS
D. DOUBLE TAXATION
was a violation of the due process and

equal protection clauses.
Scope of the police power: Since the
Courts cannot foresee the needs and
demands of public interest and welfare,
they cannot delimit beforehand the
extent or scope of the police power by
which and through which the state seeks to
attain or achieve public interest and
welfare.
3. Public Morals
Ermita-Malate
Motel
and
Motel
Operators Assn. V. City Mayor of Manila
(1967)
Ermita
Malate
Hotel
and
Motel
Operations
Assoc.
assails
the
constitutionality of Ordinance No. 4760.
The grounds adduced were:

(1)
unreasonable and violative of due
process insofar as it would impose
different fees for different classes of
hotels/motels and prohibit 18 year-olds
from being accepted in such hotels,
unless accompanied by parents or a
lawful guardian and making it unlawful
for the owner, manager, keeper or duly
authorized representative of such
establishments to lease any room or
portion more than twice every 24 hours,
and (2)
invasion of the right to
privacy and the guaranty against selfincrimination because it requires
clients to fill up the prescribed form in a
lobby open to public view at all times
and in his presence, wherein personal
information are mandated to be
divulged.
Police power and national security: The

disputed law was enacted to remedy a
real actual threat and danger to
national
economy
posed
by
alien
dominance and control of the retail
business; the enactment clearly falls within
the scope of the police power of the State,
thru which and by which it protects its own
personality and insures its security and
future.
2. Public Safety
Agustin v. Edu (1979)
Agustin questions President Marcos

Letter
of
Instruction
No.
229
compelling owners of motor vehicles
to install specific early warning
devices to reduce road accidents.
Agustin already installed warning
devices in his car but they were not the
same ones specified in the LOI. He
argued that the said LOI violated the
police power of the state for being
oppressive,
arbitrary
and
unconscionable.
Police power, public safety: The Court

identified police power as a dynamic
agency, suitably vague and far from
precisely defined, rooted in the conception
that men in organizing the state and
imposing upon its government limitations
to safeguard constitutional rights did not
intend to enable an individual citizen or
a
group
of
citizens
to
obstruct
unreasonably the enactment of such
salutary
measures
calculated
to
communal peace, safety, good order,
and welfare. According to the Court, a
heavy burden lies in the hands of the
petitioner who questions the states police
power if was clearly intended to promote
public safety.
Police power, public morals: The mantle

of protection associated with the due
process guaranty does not cover petitioners.
This particular manifestation of a police
power measure being specifically aimed
to safeguard public morals is immune
from such imputation of nullity resting
purely on conjecture and unsupported by
anything of substance. Police power is
"that inherent and plenary power in the
State which enables it to prohibit all
that is hurt full to the comfort, safety,
and welfare of society xxx There is no
question but that the challenged ordinance
was precisely enacted to minimize certain
practices hurtful to public morals.
Cf. White Light Corporation, et al v. City
of Manila (2008)
The case of White Light v. City of Manila

was termed by Justice Tinga as a
middle case. It was meant identify its
case within a spectrum of cases decided
by the Supreme Court which dealt with
ordinances which has for its view the
regulation of public morals.
It is called a middle case because

unlike its predecessors where the issue
is either a wholesale ban against hotels
and motels or a reasonable regulatory
device as the one found in ErmitaPage 76 of 313
Malate v. City of Manila. This is a case

where the ordinance in question
severely restricts the services of the
abovementioned establishments.
The ratio decidendi started with an outline
of the test of a valid ordinance i.e. it must
be within the corporate powers of the local
government to enact and pass and it must
conform with substantive requirements.
These prohibitions are anchored in the

power of the LGU to implement ordinances
hinged on the general welfare clausethe
devolved aspect of police power.
This case churned out three standards
for judicial review: the STRICT SCRUTINY
TEST for laws dealing with freedom of the
mind and curtailment of political process
and the RATIONAL BASIS STANDARD OF
REVIEW for economic legislation. A third
standard was created known as the
IMMEDIATE SCRUTINY for evaluating
standards based on gender and legitimacy.
The
Supreme
Court
justified
the
application of the strict scrutiny test to
this particular ordinance despite its lack of
political significance by saying that it is
not gravitas alone which is sheltered by
the Bill of Rights. It is precisely these
reflexive exercises of fundamental acts
which best reflect the degree of liberty
enjoyed.
Sexual behavior is one of these
fundamental acts covered by the
penumbra of rights. While the reality of
illicit activity is judicially recognized, it
cannot be denied that sexual behavior
between
consenting
adults
is
constitutionally protected.
Apart from the right to privacy, the
ordinance also proscribes other legitimate
activities most of which are grounded on
the convenience of having a place to stay
during the short intervals between travels.
The Ordinance was struck down as an
arbitrary intrusion to private rights. It
made no distinction between lodgings
and placed every establishment as
susceptible to illicit patronage.
4. The National Economy

U.S. v. Toribio (1910)
Police power, national economy The
State can restrict or limit private use, if
such is deemed by the legislature to be
detrimental to the public welfare.
In this case, the general public interest
and the countrys material welfare is
affected because of the contagious
disease that threatened to kill all the
carabaos in the country, such carabaos
being the work animal almost exclusively in
use in the fields as well as for draft
purposes.
The scarcity of these animals, the
increase in their sale value, and the
prevalence of carabao thefts, justified
Legislature to adopt reasonable measures
for the preservation of these work
animals, even to the extent of prohibiting
and penalizing what would, under ordinary
conditions, be a perfectly legitimate and
proper exercise of rights of ownership and
control of the private property of the citizen.
The police power rests upon necessity
and the right of self-protection and. it
is clear that the enactment of the
provisions
of
the
statute
under
consideration was required by "the
interests of the public generally, as
distinguished from those of a particular
class;" and that the prohibition of the
slaughter of carabaos for human
consumption, so long as these animals
are fit for agricultural work or draft
purposes was a "reasonably necessary"
limitation on private ownership, to
protect the community from the loss of the
services of such animals by their slaughter
by improvident owners.
II. EMINENT DOMAIN

Art. III, Sec. 9. Private property shall not be
take for public use without just compensation.
Art. XII, Sec. 18.
The State may, in the
interest of national welfare or defense, establish
and operate vital industries and, upon payment
of just compensation, transfer to public
ownership utilities and other private enterprises
to be operated by the government.
Art. XIII, Sec. 4 The State shall, by law,
undertake an agrarian reform program
founded on the right of farmers and regular
farmworkers who are landless, to own
directly or collectively the lands they till or,
in the case of other farmworkers, to receive a
Page 77 of 313
A reading of the ordinance at bar would

yield that it prohibits two practices: the
wash rate admission and renting out a
room more than twice per day.
just share of the fruits thereof.

To this end, the State shall encourage and
undertake
the
just
distribution
of
all
agricultural lands, subject to such priorities and
reasonable retention limits as the Congress may
prescribe, taking into account ecological,
developmental, or equity considerations, and
subject to the payment of just compensation.
In determining retention limits, the State shall
respect the right of small landowners. The State
shall further provide incentives for voluntary
land-sharing.
It shall also promote adequate employment

opportunities to such
citizens. In
the
implementation of such program the State shall
respect the rights of small property owners.
Art XIV, Sec. 13. The National assembly may
authorize, upon payment of just compensation,
the expropriation of private lands to be
subdivided into small lots and conveyed at cost
to deserving citizens.
Executive cannot proceed to condemn

property for its own uses without the
authority of some statute.
Once authority is given to be exercised, the
matter ceases to be wholly legislative.
4. By Delegation:
Municipal corporations and other

entities within the State may exercise it
upon delegation by the legislature of
such power. (City of Manila vs. Chinese
Community of Manila, year)
Private
entities
operating
public
utilities. (Tenorio vs. Manila Railroad Co,
1912)
Extent of
Power
Question
of
Necessity
AS
EXERCISED
BY
CONGRESS
Pervasive and
allencompassing
Political
question
A. Definition
Visayan Refining Co. vs Camus, (1919):
It is the right of the government to take
private
property
with
just
compensation.
The power of eminent domain does not
depend for its existence on a specific
grant in the constitution.
It is inherent in sovereignty and exists
in a sovereign state without any
recognition of it in the constitution.
The provision found in most of the
state constitutions relating to the taking
of property for the public use do not by
implication grant the power to the
government of the state, but limit a
power which would otherwise be
without limit.
B. Who May Exercise

3. Inherently:
Executive
Legislative
Visayan Refining Co. vs Camus, (1919): It is

by tradition lodged in the Executive branch
but the power is dormant until the
Legislature sets it in motion because the
Re:
private
property
AS EXERCISED
BY DELEGATES
Can only be as
broad
as
the
enabling law and
the
conferring
authorities want
it to be
Justiciable
question.
RTC
has to determine
whether there is a
genuine necessity
for its exercise, as
well as what the
propertys value is
Delegate
cannot
expropriate
private
property
already devoted to
public use
C. Requisites
1. Generally
a. Taking of Private Property
b. for Public Use,
c. with Just Compensation, and
d. Due Process.
2. Specifically
(LGUs, Sec. 19, Local Government
Code):
a. Ordinance by a local legislature
council is enacted authorizing local
chief executive to exercise eminent
domain,
b. For public use, purpose or welfare
or for the benefit of the poor and of
the landless,
c. Payment of just compensation,
Page 78 of 313
Art. XIII, Sec. 9 The State shall, by law, and for

the common good, undertake, in cooperation
with the private sector, a continuing program
of urban land reform and housing which will
make available at affordable cost, decent
housing and basic services to underprivileged and homeless citizens in urban
centers and resettlement areas.
d. Valid and definite offer has been

previously made to owner of the
property sought to be expropriated
but such offer was not accepted
(Municipality of Paraaque v VM
Realty, 1998)
III.TAXATION
It is the enforced proportional contributions
from persons and property, levied by the
State by virtue of its sovereignty, for the
support of the government and for all
public needs.
It is as broad as the purpose for which it is
given.
Purpose:
a. To raise revenue
b. Tool for regulation
c. Protection/power to keep alive
B. Who May Exercise

1. legislature (primarily)
2. local legislative bodies (Sec. 5 Art. 10,
1987 Consti)
3. President (o a limited extent, when
granted delegated tariff powers under
Sec. 28 (2) Art. 6, 1987 Consti)
C. Limitations
1. General Limitations
Power to tax exists for the general

welfare; should be exercised only
for a public purpose
might be justified as for public
purpose even if the immediate
beneficiaries are private individuals
Tax should not be confiscatory.
2. Specific Limitations
a. Uniformity of taxation: simply
geographical uniformity, meaning it
operates with the same force and
effect in every place where the
subject of it is found
But
does
not
prohibit
classification for purposes of
taxation
Requisites:
a. standards
used
are
substantial and not arbitrary
b. categorization is germane to
achieve
the
legislative
purpose
c. the law applies, all things
being equal to both present
and future conditions
d. applies equally to members
of the same class
b. Equal protection clause: taxes
should be uniform (persons or
things belonging to the same class
shall be taxed at the same rate) and
equitable
(taxes
should
be
apportioned among the people
according to their capacity to pay)
c. Progressive system of taxation
The rate increases as the tax
base increases
Basis is social justice
Taxation as an instrument for a
more equitable distribution of
wealth
d. Delegated tax legislation
Congress may delegate lawmaking authority when the
constitution itself specifically
authorizes it.
3. Impairment of Obligations of Contracts
Power of taxation may not be used

to violate the constitutional right of
every person to be secured against
any statute that impairs the
obligation of contracts;
Page 79 of 313
Heirs of Ardona v. Reyes (1983):

Exercising eminent domain based on
developing tourism is for public purpose.
Public purpose should not be strictly
construed to mean only use by the public.
It is synonymous with public interest,
public benefit, public convenience and
public welfare. What may be beneficially
employed for the general welfare satisfies
the requirement of public purpose. There
is still public purpose even if the
expropriated land will be later on sold to
private concessionaires. Furthermore, the
legislative can determine what is for public
use.
If a tax measure is so
unconscionable as to amount to
confiscation of property, the
Court will invalidate it.
But
invalidating a tax measure must
be
exercised
with
utmost
caution, otherwise, the States
power to legislate for the public
welfare might be seriously
curtailed
But if the statute exempts a party

from any one class of taxes, the
imposition of a different tax is not
an impairment of the obligation of
contracts.
4. Tax Exemptions
D. Double Taxation
Occurs when additional taxes are laid

on the same subject by the same taxing
jurisdiction during the same taxing
period for the same purpose
No provision in the Constitution

specifically prohibiting double taxation,
but will not be allowed if it violates
equal protection clause.
Comparative Table
Police Power
Compensation
Use of Property
Objective
What it Regulates
Eminent Domain
Taxation
None
(the protection given
Just compensation
and
public
(full and fair equivalent
improvements
of the property taken)
instituted by the State
required.
because of these taxes
- NACHURA)
Use taxing power as
an implement for the
Appropriated for public
Not appropriated for
attainment
of
a
use
public use
legitimate
police
objectiveto regulate
a business or trade
To destroy noxious
Property
taken
for
property
or
to
Earn revenue for the
public use; it is not
restrain the noxious
government
necessarily noxious
use of property
None
(the altruistic feeling
that
one
has
contributed to the
public
good
NACHURA)
Liberty and Property Property rights only
Property rights only
Page 80 of 313
A corollary power but must be for a

public
purpose,
uniform
and
equitable and in conformity with the
equal protection clause
Tax
exemptions
are
granted
gratuitously and may be revoked at
will, except when it was granted for
valuable consideration
May either be constitutional or
statutory :
o If statutory, it has to have been
passed by majority of all the
members of Congress (Art. VI,
sec. 28 (4))
Constitutional exemptions (1987
CONST., art. VI, sec. 28(3))
o Educational institutions (both
profit and non-profit)
Benefits redound to students

Only applied to property
taxes not excise taxes
Charitable institutions
Religious
and
charitable
institutions give considerable
assistance to the State in the
improvement of the morality
of the people and the care of
the
indigent
and
the
handicapped.
Religious property
Chapter III. Due Process

I.
Art. III, Sec. 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.
Art. XIII, Sec. 1. The Congress shall give
highest priority to the enactment of measure
that protect and enhance the right of all the
people to human dignity, reduce social,
economic, and political inequalities and remove
cultural inequities by equitably diffusing wealth
and political power for the common good.
To this end, the State shall regulate the
acquisition, ownership, use, and disposition of
property and its increments.
I. IN GENERAL
ultimately
presumed
There are instances when the need for

expeditious action will justify omission
of these requisites, as in the summary
abatement of a nuisance per se, like a
mad dog on the loose, which may be
killed on sight because of the
immediate danger it poses to the safety
and lives of the people.
Pornographic materials, contaminated

meat and narcotic drugs are inherently
pernicious and may be summarily
destroyed.
The passport of a person sought for a

criminal offense may be cancelled
without hearing, to compel his return to
the country he has fled.
Filthy restaurants may be summarily

padlocked in the interest of the public
health and bawdy houses to protect
the public morals.
In such instances, previous judicial

hearing
may
be
omitted
without
violation of due process in view of: 1) the
nature of the property involved or 2) the
urgency of the need to protect the general
welfare from a clear and present danger.
II. SUBSTANTIVE DUE PROCESS
Due process of law simply states that [i]t

is part of the sporting idea of fair play to
hear "the other side" before an opinion is
formed or a decision is made by those who
sit in judgment. (Ynot v. IAC, 1987)
City of Manila v. Laguio, (2005)

Substantive due process, asks whether the
government has an adequate reason for
taking away a persons life, liberty, or
property.
It covers any governmental action which

constitutes a deprivation of some
person's life, liberty, or property.
In other words, substantive due process looks to

whether there is a sufficient justification for the
governments action.
A. Scope
Due process of law guarantees:

notice and
opportunity to be heard
to persons who would be affected by
the order or act contemplated.
1. Substantive due process is an aspect of

due process which serves as a
restriction on the law-making and rulemaking power of the government.
B. Noted Exceptions to Due Process

(Ynot v. IAC, 1987)
2. The law itself, not merely the

procedures by which the law would be
enforced, should be fair, reasonable,
and just.
The conclusive presumption, bars the

admission of contrary evidence as long
as such presumption is based on
human experience or there is a rational
connection between the fact proved and
Page 81 of 313
IN GENERAL
A. MINIMUM REQUIREMENTS
B. NOTED
EXCEPTIONS
TO
DUE
PROCESS
II. SUBSTANTIVE DUE PROCESS
A. SCOPE
B. REQUISITES
C. DOCTRINES
III. PROCEDURAL DUE PROCESS
A. SCOPE
B. KINDS
IV. DUE PROCESS AS LIMITATION ON
FUNDAMENTAL STATE POWERS
A. VIS-A-VIS POLICE POWER
B. VIS-A-VIS EMINENT DOMAIN
C. VIS-A-VIS POWER TO TAX
the
fact
therefrom.
B. Requisites
(US vs Toribio 1910)
Laws which interfere with life, liberty

or property satisfy substantive due
process when there is:
Taada vs Tuvera (1986):

Publication of laws is part of substantive
due process.
People vs Nazario (1988):
VOID FOR VAGUENESS DOCTRINE: An
accused is denied the right to be informed
of the charge against him and to DUE
PROCESS where the statute itself is
couched in such INDEFINITE LANGUAGE
that its not possible for men of ordinary
intelligence to determine therefrom what
acts/omissions are punished.
C. Doctrines
1. Void for Vagueness
An act is vague when it lacks

comprehensible standards that men
of
common
intelligence
must
necessarily guess at its common
meaning and differ as to its application
The statute is repugnant to the

constitution in 2 respects:
a. It violates due process for failure to
accord persons, especially the
parties targeted by it, fair notice of
what conduct to avoid,
b. It leaves law enforcers an unbridled
discretion in carrying out its
provisions.
only spoken words. Such claims have

been curtailed when invoked against
ordinary criminal laws that are sought
to be applied to protected conduct.
2) A facial challenge using the overbreadth
doctrine will require the Court to
examine PP 1017 and pinpoint its
flaws and defects, not on the basis of
its actual operation to petitioners,
but on the assumption or prediction
that its very existence may cause
others not before the Court to refrain
from
constitutionally
protected
speech or expression.
3) Also, the challenger must establish that
there can be no instance when the
assailed law may be valid.
A plain reading of PP 1017 shows that it
is not primarily directed to speech /
speech-related conduct. It is actually a
call upon the AFP to prevent or
suppress all forms of lawless violence.
Petitioners did not show WON theres an
instance when PP1017 may be valid.
David vs. Arroyo (2006)
VOID FOR VAGUENESS:
Related to the "overbreadth" doctrine is the
"void for vagueness doctrine" which holds
that "a law is facially invalid if men of
common intelligence must necessarily
guess at its meaning and differ as to its
application." It is subject to the same
principles governing overbreadth doctrine.
For one, it is also an analytical tool for
testing "on their faces" statutes in free
speech cases. Like overbreadth, it is said
that a litigant may challenge a statute on
its face only if it is vague in all its
possible applications.
A facial review of PP 1017 on the ground of
vagueness is unwarranted. Petitioners did
not even attempt to show that PP 1017 is
vague in all its application. They also failed
to establish that men of common
intelligence
cannot
understand
the
meaning and application of PP 1017.
2. Overbreadth Doctrine
III.PROCEDURAL DUE PROCESS
A. Scope
A governmental purpose may not be

achieved by means which sweep
unnecessarily broadly and thereby
invade the area of protected freedoms.
David vs. Arroyo (2006)

OVERBREADTH DOCTRINE:
1) Claims of facial overbreadth are
entertained in cases involving statutes
which by their terms seek to regulate
Procedural due process is that aspect of

due process which serves as a restriction
on actions of judicial and quasi-judicial
agencies of the government. It refers to the
method or manner by which a law is
enforced.
Page 82 of 313
1. Lawful object i.e. the interests of the

public in general (as distinguished from
those of a particular class) require the
intervention of the State, and
2. Lawful means i.e. means employed are
reasonably
necessary
for
the
accomplishment of the purpose and not
unduly oppressive on individuals.
B. Kinds
2. Administrative due process
1. Judicial Due Process
Civil Due Process
Note: NOTICE is an essential

element of due process, otherwise
the
Court
will
not
acquire
jurisdiction and its judgment will
not bind the defendant.
To be meaningful, it must be both
as to time and place.
c) The defendant must be given an
opportunity to be heard
d) Judgment must be rendered upon
lawful hearing and must clearly
explain its factual and legal bases..
(Sec. 14, Art. 8, 1987 Consti; Banco
Espaol-Filipino vs Palanca)
Note: Reyes v. CA (1977): The

allowance or denial of motions
for extension rests principally on
the sound discretion of the court to
which it is addressed, but such
discretion must be exercised wisely
and prudently, with a view to
substantial
justice.
Poverty
is
recognized as a sufficient ground for
extending existing period for filing.
The right to appeal is part of due
process of law.
Criminal Due Process
Requisites (People v. Vera, 1937)

a) Accused is heard by a court of
competent jurisdiction;
b) Accused is proceeded against under
the orderly process of law;
c) Accused is given notice
opportunity to be heard;
and
d) Judgments rendered is within the

authority of a constitutional law.
(Mejia vs Pamaran 1988)
IV. DUE PROCESS AS LIMITATION ON

FUNDAMENTAL STATE POWERS
A. Vis--vis Police Power
Cruz v. Paras (1983):
Petitioners are operators of nightclubs in
Bulacan. They filed a prohibition suit to
stop the Municipality of Bacaue from
enforcing an ordinance prohibiting the
operation of said nightclubs. The Court
held that a municipal corp cannot
prohibit the operation of nightclubs.
They may only regulate such. RA 938
granted municipalities the power to
regulate establishments. While another act
amended it to include the power to prohibit
its operation, such a construction of the
amendatory act would be to construe it in a
way that it violates the constitutional
provision that every bill shall embrace only
1 subject which shall be expressed in the
title thereof. Here, the title of the amended
Page 83 of 313
Requisites (Banco Espanol vs. Palanca

(1918)
a) An impartial court of tribunal
clothed with judicial power to hear
and determine the matter before it.
b) Jurisdiction
must
be
lawfully
acquired over the person of the
defendant and over the property
subject matter of the proceeding
Requisites of Procedural Due Process

in Administrative Agencies (Ang Tibay
v. CIR; also known as the Ang Tibay
Rules):
a. Right to a hearing to present own
case and submit evidence in support
thereof.
b. Tribunal must consider the evidence
presented.
c. Decision rendered must have a
basis
d. Evidence which supports the finding
or conclusion is substantial (such
relevant evidence as a reasonable
mind accept as adequate to support
a conclusion).
e. The decision must be rendered on
the evidence presented at the
hearing, or at least contained in the
record and disclosed to the parties
affected.
f. The tribunal or any of its judges,
must act on its or his own
independent consideration of the
law and facts of the controversy,
and not simply accept the views of a
subordinate in arriving at a
decision.
g. The
tribunal
should,
in
all
controversial questions, render its
decision in such a manner that the
parties to the proceeding can know
the various issues involved, and the
reasons for the decision rendered.
RA remained the same so that the power

granted is still regulation not prohibition.
Bautista v. Juinio (1984)
LOI No. 869 banned the use of vehicles with
A and EH plates on weekends and holidays
in view of the energy crisis. Some
exceptions are service, truck, consular
corps vehicles. Petitioners, owners of an 8
cylinder 1969 Buick and a 6 cylinder Willys
Kaiser Jeep questioned the validity of LOI
on grounds of it being discriminatory and a
denial of due process.
B. Vis--vis Eminent Domain

De Knecht v. Bautista (1980):
CHOICE
OF
PROPERTY
TO
BE
EXPROPRIATED
IS
SUBJECT
TO
JUDICIAL
REVIEW
AS
TO
REASONABLENESS: Under Section 2,
Article IV of the Philippine Constitution, the
Republic of the Philippines can take private
property
upon
payment
of
just
compensation. However, private property
to be taken cannot be chosen arbitrarily
and capriciously, as the landowner is
entitled to due process. The Department
of Public Highways originally established
the extension in Cuneta Avenue, and it is
assumed that they made extensive studies
regarding it. The change from Cuneta
Avenue to Fernando Rein-Del Pan Streets
cannot be justified on the ground of social
impact, as the properties to be affected
along Cuneta Avenue are mostly motels.
EPZA v. Dulay (1987):
DETERMINATION
OF
JUST
COMPENSATION
IS
JUDICIAL
FUNCTION:
The Presidential Decrees
merely serve as a guide or a factor for the
courts in determining amount of just
compensation (which should be the fair and
full value of the property at time of taking).
The courts have the power and authority to
determine just compensation, independent
of what the decrees state, and thus may
appoint
commissioners
to
help
in
determining just compensation.
Sumulong v. Guerrero (1987):

SCOPE
OF
JUDICIAL
REVIEW
IN
EXPROPRIATION PROCEEDINGS: In this
case the Court held that socialized
housing falls under the scope of public
use, and is therefore a valid basis for
expropriation.
Manotok vs. NHA (1987):
HEARING: What the due process clause
requires is that the landowner must be
given reasonable opportunity to be heard
and to present his claim or defense.
Although due process does not always
necessarily demand that a proceeding be
had before a court of law, it still mandates
some form of proceeding wherein notice and
reasonable opportunity to be heard are
given to the owner to protect his property
rights. Although there are exceptional
situations when in the exercise of the power
of eminent domain, the requirement does
not need judicial process, when it is alleged
that the landowners right to due process of
law has been violated in the taking of his
property, the courts can probe and check
on the alleged violation.
Subjects of Judicial Review:
a. Validity of taking
b. Adequacy of compensation,
c. Public use character of the purpose of
taking.
1. Taking
Definition
A physical dispossession of the
owner of his actual property, or
its use.
It may include trespass without
actual eviction of owner, such as
the material impairment of value
of property, or preventions of
ordinary uses for which the
property was intended.
Requisites for a valid taking:

a. The expropriator must enter a
private property
b. Entry must be for more than a
momentary period
c. Entry must be under warrant or
color of legal authority
d. Property must be devoted to
public
use
or
otherwise
informally
appropriated
or
injuriously affected
e. Utilization of the property must
be in such a way as to oust the
Page 84 of 313
Court held that it cannot be held void on its

face. It has a presumption of validity. LOI
is an energy conservation measure; it is an
appropriate response to a problem. Nor
does it deny equal protection to petitioners
since the LOI operates equally and
uniformly w/ class to w/c petitioners
belong. The government is not required to
adhere to a policy of all or none.
owner and deprive him of

beneficial enjoyment of the
property (Republic v. Castelvi,
1974)
Q: What happens if the expropriator does
not use the property for a public purpose
but sells it to a private user?
Landowners v. Secretary of Agrarian

Reform) as it is a means to regulate
private property.
C. Vis--vis Power to Tax

The inherent limitation on the power of
taxation is public purpose. Taxes are
exacted only for a public purpose. They
cannot be used for purely private
purposes or for the exclusive benefit of
private persons
The reason for this is simple. The power

to tax exists for the general welfare;
hence, implicit in its power is the
limitation that it should be used only
for a public purpose.
Taxation should be exercised with

caution to minimize the 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 eggs. in order
to maintain the general publics trust
and confidence in the Government, this
power must be used justly and not
treacherously. Roxas y Cia vs. CTA, 23
SCRA 276
Premature issuance of final assessment

notice and demand letter is tantamount
to denial of reply to the preliminary
assessment
notice.
[THESE
ARE]
essential elements of due process
because they constitute the notice and
opportunity to present ones side. (Phil.
Health Care Providers vs. CIR, 2008)
A: Property reverts back to the owner in fee

simple. (Heirs of Moreno vs. Mactan-Cebu
International Airport 2005)
2. Public Use
Definition
The idea that "public use" means
"use by the public" has been
discarded. At present, whatever
may be beneficially employed for
the general welfare satisfies the
requirement of public use. (Heirs of
Juancho Ardona v. Reyes, 123 SCRA
220)
That only a few benefit from the
expropriation does not diminish its
public-use character, inasmuch as
pubic use now includes the broader
notion of indirect public benefit or
advantage (Filstream International
v. CA, 284 SCRA 716)
3. Just Compensation
Definition
Province of Tayabas vs Perez, (1938):
It is the just and complete
equivalent of the loss which the
owner of the thing expropriated has
to suffer by reason of the
expropriation.
Basis: Fair Market Value

Price fixed by a buyer (desirous but
not compelled to buy) and a seller
(willing but not compelled to sell).
Must
include
consequential
damages (damages to other interest
of the owner attribute to the
expropriation)
and
deduct
consequential benefits (increase of
value of other interests attribute to
new use of the former property)
Taking via eminent domain vs.

taking under social justice clause
Agrarian Reform (Art. XIII, Sec. 4)
This provision is an exercise of the
police power of the State through
eminent domain (Association of Small
Page 85 of 313
Chapter IV. Equal Protection of the Laws
II. REQUISITES
OF
CLASSIFICATION
Chapter IV. Equal Protection

of the Laws
(People vs. Cayat 1939)
I.
SCOPE
OF
Definition
(City of Manila v. Laguio (2005) citing
Ichong v. Hernandez, 1957)
Equal protection requires that all

persons or things similarly situated
should be treated alike, both as to
rights conferred and responsibilities
imposed.
Similar subjects, in other words, should
not be treated differently, so as to give
undue favor to some and unjustly
discriminate against others.
The guarantee means that no person or
class of persons shall be denied the
same protection of laws which is
enjoyed by other persons or other
classes in like circumstances.
Scope
Natural and juridical Persons (the equal

protection clause extends to artificial
persons but only insofar as their
property is concerned.)
A corporation as an artificial person is
protected under the Bill of Rights
against denial of due process, and it
enjoys the equal protection of the law.
(Smith, Bell & Co., vs. Natividad, 1919).
A corporation is also protected against
unreasonable searches and seizures.
(See Stonehill vs. Diokno, 1967.)
It can only be proceeded against by due
process of law, and is protected against
unlawful discrimination. (Bache & Co.
vs. Ruiz, 1971)
a. It must rest on substantial distinctions;

b. It must be germane to the purpose of
the law;
c. It must not be limited to existing
conditions only.
Ormoc Sugar Co. vs Treasurer of Ormoc

City: An ordinance was declared void
because it taxes only centrifugal sugar
produced and exported by the Ormoc
Sugar Company and none other, such
that if a new sugar central is
established in Ormoc, it would not be
subject to the ordinance.
d. It must apply equally to all members of

the same class.
III.EXAMPLES
OF
CLASSIFICATION
VALID
Lacson vs Executive Secretary, (1999):

All classifications made by law are generally
presumed to be valid unless shown
otherwise by petitioner.
A. Aliens
General rule:
The general rule is that a legislative act may
not validly classify the citizens of the State
on the basis of their origin, race or
parentage.
Exceptions:
1. In times of great and imminent
danger, such as a threatened
invasion
or
war,
such
a
classification is permitted by the
Constitution when the facts so
warrant
(e.g.
discriminatory
legislation against Japanese citizens
during WWII).
2. The political rights of aliens do not
enjoy the same protection as that of
citizens.
3. Statutes may validly limit to citizens
exclusively the enjoyment of rights
or privileges connected with the
public domain, the public works,
or the natural resources of the
State.
4. The rights and interests of the state
in these things are not simply
political but also proprietary in
Page 86 of 313
DEFINITION
AND
SCOPE
OF
PROTECTION
II. REQUISITES OF VALID CLASSIFICATION
III. EXAMPLES OF VALID CLASSIFICATION
A. ALIENS
B. FILIPINO
FEMALE
DOMESTICS
WORKING ABROAD
C. LAND-BASED VS. SEA-BASED FILIPINO
OVERSEAS WORKERS
D. QUALIFICATION
FOR
ELECTIVE
OFFICE
E. OFFICE OF THE OMBUDSMAN
F. PRINT VS. BROADCAST MEDIA
IV. THREE
STANDARDS
OF
JUDICIAL
REVIEW
A. RATIONAL BASIS TEST
B. STRICT SCRUTINY TEST
C. INTENSIFIED MEANS TEST
I. DEFINITION AND
PROTECTION
VALID
Chapter IV. Equal Protection of the Laws
nature; and so the citizens may

lawfully be given preference over
'aliens in their use or enjoyment.
Ichong vs Hernandez, 1957:
The
Court
upheld
the
Retail
Trade
Nationalization Law despite the objection that
it violated the EP clause, because there exists
real and actual, positive and fundamental
differences between an alien and a national.
B. Filipino
Female
Working Abroad
Domestics
C. Land-based vs. Sea-based Filipino

Overseas Workers
There is dissimilarity as to work environment,
safety, danger to life and limb, and
accessibility to social, civil and spiritual
activities. (Conference of Maritime Manning
Agencies vs. POEA)
D. Qualification for Elective Office

Disqualification from running in the same
elective office from which he retired of a
retired elective provincial/municipal official
who has received payment of retirement
benefits and who shall have been 65 y.o. at
the commencement of the term of office to
which he seeks to be elected is valid. (Dumlao
vs Comelec)

Allowing it to start an investigation based on
an anonymous letter does not violate EP
clause. The Office of the Ombudsman is
different from other investigatory and
prosecutory agencies of government because
those subject to its jurisdiction are public
officials who, through official pressure and
influence, can quash, delay or dismiss
investigations against them (Almonte vs
Vasquez).

There are substantial distinctions between the
two to warrant their different treatment under
BP 881 (Telecommunications and Broadcast
Attorneys of the Phil vs. COMELEC)
OF
JUDICIAL

The classification should bear a reasonable
relation to government's purpose.
Important when there is no plausible
difference between the disadvantaged class
and those not disadvantaged.
Also important when the government attaches
a morally irrelevant and negative significance
to a difference between the advantaged and
the disadvantaged.

Requires the government to show an
overriding or compelling government
interest so great that it justifies the limitation
of fundamental constitutional rights (the
courts make the decision of WON the purpose
of the law makes the classification necessary).
Applied also when the classification has a
"suspect" basis (Suspect Classes classes
subject to such a history of purposeful
unequal treatment or relegated to such a
position of political powerlessness as to
command extraordinary protection from the
majoritarian political process.)

The Court accepts the articulated purpose of
the legislation but it should closely
scrutinize the relationship between the
classification and the purpose based on a
spectrum of standards, by gauging the
extent
to
which
constitutionally
guaranteed rights depend upon the
affected individual interest.
The balancing test or the equality test is
used.
Applicable to certain sensitive but not
suspect classes; certain important but not
fundamental interest.
Immediate Scrutiny Test

White Light Corporation v. City of Manila
(2009):
A third standard, denominated as heightened
or immediate scrutiny, was later adopted by
the U.S. Supreme Court for evaluating
classifications
based
on
gender
and
legitimacy. Immediate scrutiny was adopted
by the U.S. Supreme Court in Craig. While the
test may have first been articulated in equal
protection analysis, it has in the United
States since been applied in all substantive
due process cases as well.
Page 87 of 313
They are a class by themselves because of the

special risks to which their class was exposed.
(Phil Association of Service Exporters vs Drilon)
IV. STANDARDS
REVIEW
Chapter V. Requirements
for Fair Procedure
Chapter V. Requirements for Fair Procedure
Scope
A. Natural Persons
THIS SECTION DEALS WITH THE RIGHTS OF

A PERSON BEFORE AND DURING CUSTODIAL
INVESTIGATIONS I.E. BEFORE HE HAS BEEN
ACCUSED OF A CRIME
It protects all persons including aliens

(Qua Chee Gan vs Deportation Board
1963).
I.
B. Artificial Persons
I. NATURE AND SCOPE

Nature
A. Personal
It may be invoked only by the person
entitled to it. (Stonehill vs. Diokno)
It may be waived expressly or impliedly
only by the person whose right is invaded,
not by one who is not duly authorized to
effect such waiver. (People vs. Damaso
1992)
B. Directed Against the Government & its
Agencies (State Action Requirement)
The right cannot be set up against acts
committed by private individuals (People v.
Marti)
Artificial persons are protected to a limited

extent. (Bache & Co. Inc vs Ruiz 1971) The
opening of their account books is not
protected, by virtue of police and taxing
powers of the State.
II. ARREST
A. Requisites for Issuance of a Valid
Arrest Warrant
1. Existence of probable cause
Such facts and circumstances which
would lead a reasonably discreet and
prudent mean to believe that an
offense has been committed by the
person sought to be arrested. (Webb
vs. De Leon 1995)
2.
Determination of probable
personally by the judge.
cause
How done:
i. Personally evaluate the report
and
supporting
documents
submitted by the fiscal regarding
the existence of probable cause
and, on the basis thereof, issue the
arrest warrant; OR
ii. If he finds no probable cause, he
may disregard the prosecutors
report
and
require
the
submission
of
supporting
affidavits of witnesses to aid him
in arriving at a conclusion as to the
existence of probable cause (Cruz v.
Judge Areola 2002).
(Beltran v. Makasiar, 1988)
What the Constitution underscores
is the exclusive and personal
responsibility of the issuing judge
to satisfy himself of the existence of
probable cause.
In satisfying himself of the
existence of probable cause for the
issuance of a warrant of arrest, the
judge is not required to personally
examine the complainant and his
witnesses.
Page 88 of 313
NATURE AND SCOPE OF THE RIGHT IN

ART. III, SEC. 2
II. ARREST
A. REQUISITES FOR ISSUANCE OF
VALID ARREST WARRANT
B. WHEN ARREST MAY BE MADE
WITHOUT A WARRANT
III. SEARCH AND SEIZURE
A. REQUISITES OF A VALID SEARCH
WARRANT
B. WHEN SEARCH MAY BE MADE
WITHOUT WARRANT
C. PROPERTIES SUBJECT OF SEIZURE
IV. DETENTION/CUSTODIAL
INVESTIGATION
A. RIGHTS UNDER CUSTODIAL
INVESTIGATION
B. TESTS OF WAIVER OF MIRANDA
RIGHTS
V. OTHER RIGHTS GUARANTEED UNDER
ART. III. SEC. 12
VI. PROTOCOL
AFTER
CONDUCT
OF
INVESTIGATION
VII. EXCLUSIONARY RULES
A. VIS--VIS VIOLATION OF THE RIGHT
AGAINST UNREASONABLE SEARCHES
AND SEIZURES
B. VIS--VIS VIOLATION OF THE RIGHTS
OF PERSONS UNDER CUSTODIAL
INVESTIGATION
C. VIS--VIS VIOLATION OF THE RIGHT
AGAINST SELF-INCRIMINATION
VIII. RIGHT TO BAIL
3. On the basis of their

knowledge of the facts
testifying to.
personal
they are
Parulan vs. Dir of Prisons: Though

kidnapping w/ serious illegal detention
is deemed a continuing crime, it can be
considered as such only when the
deprivation of liberty is persistent and
continuing from one place to another.
People vs. De Lara (1994): HOT

PURSUIT: The arrest of the accused
inside his house following hot pursuit
of the person who committed the
offense in flagrante was held valid.
People vs Hindoy (2001): BUY-BUST: A

buy-bust operation is a valid in
flagrante arrest. The subsequent
search of the person arrested and the
premises within his immediate control
is valid as an incident to a lawful
arrest.
People vs Rodrigueza: EXCEPTION TO

BUY-BUST. Instead of arresting the
suspect after the sale in a buy-bust op,
the officer returned to the police
headquarters and filed his report. It
was only in the evening that he,
without warrant, arrested the suspect
at his house where dried marijuana
leaves were found and seized. Unlawful
arrest.
4. The arrest warrant must describe

particularly the person to be seized.
How done:
i. By stating the name of the person
to be arrested.
ii. If not known, then a John Doe
warrant may be issued, with
some descriptio persona that
will enable the officer to identify
the accused.
Pangandaman vs. Casar, 1988:
JOHN DOE WARRANT: Warrants
issued against 50 John Does, none of
whom the witnesses could identify,
were considered as general warrants
and thus void.
2. When an offense has just been

committed and he has probable
cause to believe based on personal
knowledge of facts or circumstances
that the person to be arrested has
committed it;
i. Offense had JUST been committed;

ii. Person making the arrest has
probable cause to believe based on
PERSONAL KNOWLEDGE.
B. Requisites of a Valid Warrantless

Arrest
(Rule 113,
Procedure)
s5,
Rules
on
Note: There must be a large measure

of immediacy between the time the
offense is committed and the time of
the arrest.
If there was an
appreciable lapse of time bet arrest
and commission of crime, warrant of
arrest must be secured. (NACHURA)
Criminal
1. When, in his presence, the person to

be arrested has committed, is
actually
committing,
or
is
attempting to commit an offense;
Umil vs. Ramos: Rebellion is a

continuing offense. Therefore a rebel
may be arrest w/o a warrant at any
time of day of day or night as he is
deemed to be in the act of committing
rebellion.
Requisites:
People vs Kimura: Warrantless arrest of

accused for selling MJ 2 days after he
escaped is invalid.
People
vs
Gerente:
PERSONAL
KNOWLEDGE: The police saw the
victim dead at the hospital and when
they inspected the crime scene, they
found the instruments of death. The
Page 89 of 313
Following established doctrine and

procedure, he shall:
1) Personally evaluate the report
and the supporting documents
submitted
by
the
fiscal
regarding the existence of
probable cause and, on the
basis thereof, issue a warrant
of arrest; or
2) If he finds no probable cause,
He may disregard the
fiscal's report and
Require the submission of
supporting
affidavits
of
witnesses to aid him in
arriving at a conclusion as
to the existence of probable
cause.
eyewitnesses reported the happening

and pointed to Gerente as one of the
killers. Here the warrantless arrest
only 3 hrs after the killing was held
valid since personal knowledge was
established as to the fact of death and
facts indicating that Gerente killed the
victim.
People v. Burgos (1986)
Exceptions to warrant of arrest: Art. IV,

Sec. 3 of the Constitution safeguards
against wanton and unreasonable invasion
of the privacy and liberty of a citizen as to
his person, papers, and effects. Rule 113,
Sec. 6 of the Rules of Court provides the
exceptions to the warrant requirement.
However, the instant case does not fall
under any of the exceptions in Rule 113,
Sec. 6. First, it requires that the officer
arresting a person who has committed,
is committing, or is about to commit an
offense must have personal knowledge
of that fact. The offense must be
committed in his presence or within his
view. In the instant case:
the knowledge as to the offense was
furnished by Masamlok.
The location of the firearm was given
by the Burgos wife.
At the time of the arrest, Burgos was
not in actual possession of any firearm
or subversive document.
Neither was he committing any act

which
could
be
described
as
subversive. He was in fact plowing his
field at the time of his arrest.
It is clear that the arresting officers had

no
personal
knowledge
of
the
commission of the offense because such
information was only supplied to them
by an informant.
Neither has Burgos committed any offense
in their presence as he was merely plowing
his field at the time of arrest. On the other
hand, Sec. 6 (b) of Rule 113 requires
that a crime must in fact or actually
have been committed first. It is not
enough that there is reasonable ground
to believe that the person to be arrested
has committed a crime. That a crime
has actually been committed is an
essential precondition. In the instant
case, it was not even established that
indeed a crime has been committed. The
information that a crime was probably
committed was supplied by Masamlok
who did not even give his testimony
under oath.
Finally, the Court finds no compelling
reason for the haste of the arresting
officers to arrest Burgos if indeed he
committed a crime. There is no showing
that there was real apprehension that
Burgos was on the verge of flight or escape
and that his whereabouts are unknown.
3. When the person to be arrested is a
prisoner who has escaped from a
penal establishment or place where
he is serving final judgment or is
temporarily confined while his case
is pending, or has escaped while
being
transferred
from
one
confinement to another.
ADDITIONAL EXCEPTION (NOT IN THE
RULES): When the right is voluntarily
waived (estoppel).
People vs. Salvatierra: Appellant is

estopped from questioning the illegality
of the arrest when he voluntarily
submitted himself to the jurisdiction of
the court by entering a plea of not
guilty and by participating in the trial.
SCOPE OF WAIVER: Waiver is limited to

the illegal arrest. It does not extend to the
search made as an incident thereto, or the
subsequent seizure of evidence allegedly
Page 90 of 313
Burgos was convicted for the crime of

Illegal Possession of Firearms in
Furtherance
of
Subversion.
One
Masamlok claimed that he had been
forcibly recruited by Burgos to the
NPA, threatening him with the use of
firearm against his life and family.
Masamlok
was
also
allegedly
threatened to attend an NPA seminar.
The next day the authorities went to
arrest Burgos without a warrant. They
found him in his residence plowing his
field. Burgos denied the accusation,
but his wife pointed to a place below
their house where a gun was buried in
the ground. After the firearm was
recovered, Burgos allegedly pointed to
a stock pile of cogon where he had
hidden subversive documents. The
prosecution presented an extrajudicial
confession made by Burgos. However,
Burgos claimed that he had been
mauled and hit repeatedly until he
would admit and sign an extrajudicial
confession.
personal
they are
found during the search (People vs. Peralta

2004).
4. On the basis of
knowledge of the
testifying to.
III.SEARCH AND SEIZURE
5. The
warrant
must
describe
particularly the place to be searched
and the persons or things to be
seized.
A. Requisites
Warrant
of
Valid
Search
1. Existence of probable cause
PLACE TO BE SEARCHED: The

search warrant issued to search
petitioners compound for unlicensed
firearms was held invalid for failing to
describe the place with particularity,
considering that the compound was
made up of 200 bldgs, 15 plants, 84
staff houses, 1 airstrip etc spread out
over 155 hectares. (PICOP vs. Asuncion,
1999).
DESCRIPTION
OF
PLACE:
The
description of the property to be seized
need not be technically accurate nor
precise. Its nature will vary according
to whether the identity of the property
is a matter of concern. The description
is required to be specific only in so far
as the circumstances will allow. (Kho
vs. Judge Makalintal, (1999)
DESCRIPTION
OF
PERSONS
SEARCHED: SW valid despite the
mistake in the name of the persons to
be searched. The authorities conducted
surveillance and test-buy ops before
obtaining the SW and subsequently
implementing it. They had personal
knowledge of the identity of the
persons and the place to be
searched, although they did not
specifically know the names of the
accused. (People vs. Tiu Won Chua
(2003)
GENERAL WARRANT: One that (1)

does not describe with particularity the
things subject of the search and
seizure, and (2) where probable cause
has not been properly established. It is
a void warrant. (Nolasco vs. Pao,
1985)
EXCEPTION
TO
GENERAL
WARRANTS: General descriptions will
not invalidate the entire warrant if
other items have been particularly
described. (Uy v. BIR, (2000)
Such facts and circumstances;

which would lead a reasonably discreet
and prudent man to believe
that an offense has been committed
and
that the objects sought in connection
with the offense are in the place sought
to be searched. (Burgos vs. Chief of
Staff 1984)
2. Determination of probable
personally by the judge.
cause
3. After personal examination under

oath or affirmation of the complainant
and the witnesses he may produce.
How done: in the form of searching
questions and answers, in writing and
under oath (Sec. 6 Rule 126, ROC)
Mere affidavits of the complainant

and his witnesses are thus not
sufficient.
The examining Judge has to take
depositions in writing of the
complainant and the witnesses
he may produce and attach them to
the record.
Such
written
deposition
is
necessary in order that the
Judge may be able to properly
determine the existence or nonexistence of the probable cause,
to hold liable for perjury the person
giving it if it will be found later that
his declarations are false
xxx
It is axiomatic that the examination
must be probing and exhaustive,
not merely routinary or proforma, if the claimed probable
cause is to be established.
The examining magistrate must
not simply rehash the contents
of the affidavit but must make
his own inquiry on the intent and
justification of the application.
(Roan v. Gonzales (1984))
Page 91 of 313
their
facts
People vs. Gesmundo: Failure to

comply with Sec. 7 Rule 126
invalidates the search.
People vs Salanguit: FORCIBLE

ENTRY JUSTIFIED: Occupants of
the house refused to open the door
despite the fact that the searching
party knocked several times, and
the
agents
saw
suspicious
movements of the people inside the
house.
People vs Benny Go (2003):

UNLAWFUL
SEARCH:
Police
officers arrived at appellants
residence and side-swiped (sinagi)
appellants car (which was parked
outside) to gain entry into the
house. Appellants son, who is the
only one present in the house,
opened
the
door
and
was
immediately handcuffed to a chair
after being informed that they are
policemen with a warrant to search
the premises.
B. Searches without Warrant, when

Valid
General rule: Areas within the reach and
control of the accused are the permissible
areas of search for both stop-and-frisk and
search-incident-to-a-valid-arrest (Espano
vs. CA; People vs. Cubcubin 2001).
People vs Veloso (1925):
It was alleged that Parliamentary Club was
a gambling house; search warrant was
obtained. Veloso read the warrant and
said that he was not John Doe. The
Court ruled that the John Doe search
warrant was valid and held that there is
nothing to prevent issue and service of
warrant against a party whose name is
unknown. Besides, the officers had the
right to arrest the persons engaged in

prohibited game. An officer making an
arrest may take from the person
arrested any money / property found
upon his person, w/c was used in
commission of crime, or was the fruit of
the crime, or w/c may furnish the
person w/ means of committing
violence or escaping, or w/c may be
used as evidence on trial, but not
otherwise.
Other specific situations:
Quick Look:
1. Search is an Incident to a Lawful Arrest.
2. Search of Moving Vehicles
3. Plain View Doctrine
4. Stop and Frisk Searches
5. Valid Express Waiver
6. Customs search
7. Visual Search at Checkpoints
8. Conduct of Areal Target Zoning and
saturation drive
9. Exigent and Emergency Circumstances
1. Search is an incident to a lawful

arrest.
Sec. 12, Rule 126, Rules of Court. Search
incident to lawful arrest.- A person lawfully
arrested may be searched for dangerous
weapons or anything which may be used as
proof of the commission of an offense, without a
search warrant.
The provision (R126, S12) is declaratory in
the sense that it is confined to the search,
without a search warrant, of a person who
had been arrested.
It is also a general rule that, as an incident
of an arrest, the place or premises where
the arrest was made can also be search
without a search warrant. In this latter
case, "the extent and reasonableness of
the search must be decided on its own
facts and circumstances.
What must be considered is the balancing
of the individual's right to privacy and the
public's interest in the prevention of crime
and the apprehension of criminals. (Nolasco
v. Pano, 1985)
Test for validity:

Item to be searched was within the
arresters custody;
Search was contemporaneous with the
arrest
Nolasco vs Cruz Pao (1985):
Aguilar-Roque and Nolasco, allegedly
connected w/ the CPP-NPA and accused of
rebellion and subversion, assert that the
search warrant in this case is void because
(1) it doesnt sufficiently describe things
Page 92 of 313
Conduct of the Search (Sec. 7, Rule

126, ROC)
in the presence of a lawful
occupant thereof or any member
of his family, OR
if occupant or members of the
family are absent: in the presence
of 2 witnesses of
o sufficient age
o discretion
o residing in the same locality
Force may be used in entering a
dwelling if justified by Rule 126
ROC.
Nolasco vs Cruz Pao M.R. - G.R. No.

69803 (Jan. 30 1987):
In this Motion for Partial Reconsideration
of the 1985 decision, the petitioners
submit that a warrantless search can be
justified only if its an incident to a lawful
arrest and that since Aguilar wasnt
lawfully arrested, a search w/o warrant
couldnt be made. The SolGen offered no
objection to declaration that the search
was illegal and to the return of the seized
items.
The
Motion
for
Partial
Reconsideration is granted.
2. Search of Moving Vehicles

Securing SW is not practicable since the
vehicle can be quickly moved out of the
locality or jurisdiction in which the
warrant must be sought (Papa v. Mago
1968)
3. Plain View Doctrine: things

seized are within plain view of a
searching party
Requisites (People v. Musa; People v.

Sarap, 2003):
a. Prior valid intrusion into a place;
b. Evidence:
inadvertently discovered
by police who had the right
to be where they were;
c. Evidence must be immediately
apparent and
d. Noticed without further search
4. Stop and Frisk Searches
There should be a genuine reason to

stop-and-frisk in the light of the
police
officers
experience
and
surrounding conditions to warrant a
belief that the person detained has

weapons concealed. (Malacat vs CA
1997, citing Terry vs. Ohio)
5. Valid
Express
Waiver
made
Voluntarily and Intelligently.
Requisites (People vs. Peralta, 2004):
a. Must appear that right exists;
b. Person
involved
had
actual/
constructive knowledge of the existence
of such right;
c. Said person had an actual interest to
relinquish the right;
d. Waiver is limited only to the arrest;
e. Waiver does not extend to search made
as an incident thereto, or to any
subsequent seizure of evidence found
in the search.
People vs Kagui Malasugui (1936)
It was ruled that the right to be secure
from unreasonable search may be
waived.
Waiver may be express or
implied. When one voluntarily submits
to a search or consents to have it made
of his person / premises, he is
precluded from later complaining. In
this case, the appellant neither made
objection nor even muttered a bit of
protest when the search was conducted on
his person. Also, as held in Weeks v.
United States, when the search of the
person detained or arrested and seizure of
effects found in his possession are
incidental to an arrest made in conformity
w/ the law, they cannot be considered
unreasonable, much less unlawful.
6. Customs Search
Searches of vessel and aircraft for

violation of immigration and smuggling
laws (Papa vs. Mago, 1968)
7. Visual Search at Checkpoints

(Valmonte vs. de Villa)
8. Conduct of areal target zoning

and saturation drive in the
exercise of the military powers of the
President (Guanzon vs de Villa, 1990)
9. Exigent
and
Circumstances
Emergency
(People vs. de Gracia 1994)

Example: 1989 Coup detat
Page 93 of 313
subject of the search & seizure and (2)

probable cause hasnt been established for
lack of searching questions propounded to
applicants witness. Court ruled that the
search warrant is void.
However, the
Court also ruled that the search in
question did not need a search warrant.
Under the Rules of Court, a person
charged w/ an offense may be searched
for dangerous weapons or anything w/c
may be used as proof of the commission
of the offense. As an incident of an
arrest, the premises where the arrest
was made can also be searched w/o
search warrant.
C. Properties Subject to Seizure

General
rule:
Only
the
articles
particularly described in the warrant may
be seized.
a) Property subject of an offense
b) Stolen or embezzled property and other
proceeds or fruits of an offense
c) Used or intended to be used as a
means of committing an offense (Sec. 2
Rule 126, ROC)
Burgos vs Chief of Staff:

It is not necessary that the property to be
searched or seized should be owned by the
person against whom the person is issued;
it is sufficient that the property is within
his control or possession.
describing the place to be searched and

the things to be seized which may be
anywhere in the Philippines.
IV. DETENTION/CUSTODIAL
INVESTIGATION
Investigation
ART. III, S12, 1987 CONSTITUTION
1.
2.
Comparison of Procedures in Obtaining

Search Warrants and Arrest Warrants
R112, Sec. 6. When warrant of arrest may
issue. (a) By the Regional Trial Court.
Within ten (10) days from the filing of the
complaint or information, the judge shall
personally evaluate the resolution of
the prosecutor and its supporting
evidence. He may immediately dismiss
the case if the evidence on record
clearly fails to establish probable cause.
If he finds probable cause, he shall issue a
warrant of arrest, or a commitment order if
the accused has already been arrested
pursuant to a warrant issued by the judge
who
conducted
the
preliminary
investigation or when the complaint or
information was filed pursuant to section 7
of this Rule. In case of doubt on the
existence of probable cause, the judge
may order the prosecutor to present
additional evidence ( THIS IS NOT
FOUND IN THE PROCEDURE FOR A
SEARCH WARRANT) within five (5) days
from notice and the issue must be resolved
by the court within thirty (30) days from
the filing of the complaint of information.
R126, Sec. 4. Requisites for issuing search
warrant. A search warrant shall not
issue except upon probable cause in
connection with one specific offense to
be determined personally by the judge
after examination under oath or
affirmation of the complainant and the
witness he may produce, and particularly
3.
4.
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.
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.
Any confession or admission obtained in
violation of this or Section 17 hereof shall
be inadmissible in evidence against him.
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.
In the Miranda v. Arizona, the Federal

Supreme Court made it clear that what
is prohibited is the "incommunicado
interrogation of individuals in a
police
dominated
atmosphere,
resulting in self- incriminating
statements without full warnings of
constitutional rights.
MIRANDA RIGHTS
People vs Galit (1985)
The long question during the appraisal
of Galits constitutional rights followed
by a monosyllabic answer does not
satisfy the requirements of the law
that the accused be informed of his
rights. Instead there should be
several short and clear questions
and every right explained in simple
words in a dialect or language known
to the person under investigation. In
this case, the accused is from Samar
and there is no showing that he
understands Tagalog. Furthermore,
waiver of the right to counsel must be
done in the presence of counsel,
Page 94 of 313
People vs Salanguit:
Where the warrant authorized only the
seizure of shabu, and not marijuana, the
seizure of the latter was held unlawful.
otherwise, the procured statements will

be inadmissible.
People vs Andag (1980):

The SC reversed the lower courts
imposition of death penalty because
the accused was not even informed at
the start of the investigation of his
right to counsel, much less afforded
the service of counsel notwithstanding
his insistence. He was given the
unacceptable excuse that there were
no available lawyers.
As used in this Act, "custodial

investigation" shall include the
practice of issuing an "invitation"
to a person who is investigated in
connection with an offense he is
suspected to have committed,
without prejudice to the liability of
the "inviting" officer for any violation
of law.
The person under custodial investigation

must be warned that
1)
2)
3)
He has a right to remain silent,

That any statement he does make may
be used as evidence against him, and
That he has a right to the presence of
an
attorney,
either
retained
or
appointed.
These rights were further reiterated

under RA 7438, otherwise known
as AN ACT DEFINING CERTAIN
RIGHTS OF PERSON ARRESTED,
DETAINED
OR
UNDER
CUSTODIAL INVESTIGATION AS
WELL AS THE DUTIES OF THE
ARRESTING,
DETAINING
AND
INVESTIGATING OFFICERS, AND
RA 7438, Rights of Persons

Custodial Investigation;
FOR
under
Section 1. Statement of Policy. - It is the

policy of the Senate to value the dignity of
every human being and guarantee full
respect for human rights
Section 2. Rights of Persons Arrested,
Detained or Under Custodial Investigation;
Duties of Public Officers.
(b) Any public officer or employee, or
anyone acting under his order or his place,
who arrests, detains or investigates any
person for the commission of an offense:
shall inform the latter, in a language

known to and understood by him,
of his rights to remain silent and
to have competent and independent

counsel, preferably of his own choice,
who shall at all times be allowed to

confer privately with the person
arrested, detained or under custodial
investigation.
If such person cannot afford the services

of his own counsel, he must be
provided with a competent and
independent
counsel
by
the
investigating officer.
1. When Rights are Available:
When the person is already in

custody
Custodial investigation involves
any questioning initiated by law
enforcement
During critical pre-trial stages
in the criminal process
People vs Mara, (1994):

The rights under sec. 12, Art. 3 are
available when the investigation is no
longer a general inquiry unto an unsolved
crime but has begun to focus on a
particular suspect, as when the suspect
has been taken into police custody and the
police
carries
out
a
process
of
interrogation that lends itself to eliciting
incriminating statements.
People vs. Escordial:
An out-of-court identification may be made
in a show up (accused is brought face to
face with the witness for identification), or
police line-up (suspect is identified by
witness from a group of persons gathered
for that purpose).
Page 95 of 313
People vs Duero (1985):

Inasmuch as the prosecution in this
case failed to prove that before Duero
made his alleged oral confession he
was informed of his rights to remain
silent and to have counsel and
because there is no proof that he
knowingly and intelligently waived
those rights, his confession is
inadmissible in evidence. Accused
repudiated his alleged oral confession
during trial. Since, the SC found that
the procedure set out in the Miranda
case
was
not
followed,
oral
confession of accused to police station
commander
is
inadmisible
in
evidence. (enshrined in Art. III, Sec. 12
of the 1987 Constitution)
PROVIDING
PENALTIES
VIOLATIONS THEREOF
During custodial investigations, these

types of identification have been recognized
as critical confrontations of the
accused
by
the
prosecution,
necessitating presence of counsel for the
accused. Otherwise, the identification will
be inadmissible in evidence.
Note: INVITATIONS - Sec. 2, RA 7438
provides that custodial investigation shall
include the practice of issuing an invitation
to a person who is under investigation in
connection with an offense he is suspected
to have committed.
Babst v. NBI (1984):
Ordinarily, an invitation to attend a
hearing and answer some questions which
the person invited may heed or refuse is
not unconstitutional. Under certain
circumstances,
however,
such
an
invitation can easily assume a different
appearance. Here, where the invitation
comes from a powerful group composed
predominantly of ranking military officers
issued at a time when the country has just
emerged from martial rule and when the
suspension of the privilege of the writ of
habeas corpus has not entirely been lifted
and the designated interrogation site is a
military camp, the same can easily be
taken not as a strictly voluntary invitation
but as an authoritative command which
one can only defy at his peril, especially
where the invitation carries the ominous
seaming that "failure to appear . . . shall
be considered as a waiver . . . and this
Committee will be constrained to proceed
in accordance with law."
2. Discussion of Rights Accorded

People vs. Agustin, (1995): This carries the
correlative obligation on the part of the
investigator to explain, and contemplates
effective communication which results in
the subject/accused understanding what
is conveyed.
a. Right to Remain Silent
The warning is needed simply to
make the person under custodial
investigation aware of the existence
of the right;
This warning is the threshold
requirement for an intelligent
decision as to its exercise.
More importantly, such a warning
is an absolute pre-requisite in
overcoming the inherent pressures
of the interrogation atmosphere.
Further, the warning will show the
individual that his interrogators are
prepared to recognize his privilege
should he choose to exercise it.
b. Right against Self-Incrimination under
Art. III, s12.
The warning of the right to remain
silent must be accompanied by the
explanation that anything said can
and will be used against the
individual in court.
This warning is needed in order to
make him aware not only of the
privilege to remain silent, but also
of the consequences of forgoing it.
c.
Right to Counsel
RA 7438, Rights of Persons under Custodial

Investigation; Section 2. Rights of Persons
Arrested,
Detained
or
Under
Custodial
Investigation; Duties of Public Officers.
(a) Any person arrested detained or under
custodial investigation shall at all times be
assisted by counsel;
The Miranda doctrine was modified to

qualify the right to counsel to mean
competent and independent counsel
preferably of the suspect's own
choice.
An individual need not make a preinterrogation request for a lawyer.
While
such
request
affirmatively
secures his right to have one, his
failure to ask for a lawyer does not
constitute a waiver.
Page 96 of 313
U.S. vs Wade 388 U.S. 218 (1967):

Neither the lineup itself nor anything
required therein violated respondent's
Fifth Amendment privilege against selfincrimination, since merely exhibiting his
person for observation by witnesses and
using his voice as an identifying physical
characteristic involved no compulsion of
the accused to give evidence of a
testimonial nature against himself which
is prohibited by that Amendment.
HOWEVER,
the
Sixth
Amendment
guarantees an accused the right to
counsel not only at his trial but at any
critical
confrontation
by
the
prosecution at pretrial proceedings
where the results might well determine his
fate and where the absence of counsel
might derogate from his right to a fair
trial.
B. Tests of Waiver of Miranda Rights

1. What Cannot be Waived
POLICE LINE-UPS (Gamboa v. Cruz, 1988)

When petitioner was identified by the
complainant at the police line-up, he had
not been held yet to answer for a
criminal offense.
The police line-up is not a part of the
custodial inquest, hence, he was not yet
entitled to counsel.
Thus, it was held that when the process
had not yet shifted from the investigatory to
the accusatory as when police investigation
does not elicit a confession the accused
may not yet avail of the services of his
lawyer (Escobedo v. Illinois of the United
States Federal Supreme Court, 1964).
However, given the clear constitutional
intent in the 1987 Constitution, the
moment there is a move or even an urge
of said investigators to elicit admissions
or confessions or even plain information
which
may
appear
innocent
or
innocuous at the time, from said suspect,
he should then and there be assisted by
counsel, unless he waives the right, but
the waiver shall be made in writing and in
the presence of counsel.
d. Rights to Visitation and Conference
The right to remain silent and the right to

counsel may be waived.
What cannot be waived is THE RIGHT TO
BE GIVEN THE MIRANDA WARNINGS.
2. Rule on Waiver
ART. III, s12
(1) Must be in writing
(2) Made in the presence of counsel
Arrested,
Detained
or
Under
Custodial
(e) Any waiver by a person arrested or
detained under the provisions of Article
125 of the Revised Penal Code, or under
custodial investigation, shall be in writing
and signed by such person in the presence
of his counsel; otherwise the waiver shall
be null and void and of no effect.
3. Burden of Proving Voluntariness

of Waiver
(People v. Jara, 1986)

(f) Any person arrested or detained or
under custodial investigation shall be
allowed visits by or conferences with
any member of his immediate
family, or
any medical doctor;
priest
or
religious
minister
chosen by him; or
by his counsel; or
by
any
national
nongovernmental organization duly
accredited by the Commission on
Human Rights or
by
any
international
nongovernmental organization duly
accredited by the Office of the
President.
The person's "immediate family"
shall include his or her spouse,
fiance or fiancee, parent or child,
brother or sister, grandparent or
grandchild, uncle or aunt, nephew
or niece, and guardian or ward.
Whenever a protection given by the

Constitution is waived by the person
entitled to that protection, the
presumption is always against the
waiver.
Consequently, the prosecution must
prove with strongly convincing
evidence to the satisfaction of this
Court that indeed the accused:
Willingly and voluntarily submitted
his confession and
Page 97 of 313
No effective waiver of the right to

counsel during interrogation can be
recognized unless specifically made
AFTER the warnings have been
given.
o The accused who does not know
his rights and therefore does not
make a request may be the person
who most needs counsel.
If an individual indicates that he
wishes the assistance of counsel before
any
interrogation
occurs,
the
authorities cannot rationally ignore
or deny his request on the basis that
the individual does not have or
cannot afford a retained attorney.
In order fully to apprise a person
interrogated of the extent of his rights
under this system then, it is necessary
to warn him not only that he has the
right to consult with an attorney, but
also that if he is indigent a lawyer
will be appointed to represent him.
Knowingly
and
deliberately
manifested that he was not
interested in having a lawyer assist
him during the taking of that
confession.
V. PROTOCOL AFTER CONDUCT OF

INVESTIGATION
EFFECT
OF
FAILURE
TO
FOLLOW
PROTOCOL: Such investigation report shall
be null and void and of no effect whatsoever.
VI. OTHER RIGHTS GUARANTEED

UNDER ART. III. S12
A. No torture, force, violence, threat
intimidation or any other means
which vitiate the free will shall be used
against him
B. Secret detention places, solitary,
incommunicado, or other similar forms
of detention are prohibited
C. Confessions or admissions obtained
in violation of these rights are
inadmissible evidence.
VII. EXCLUSIONARY RULES

Arrested,
Detained
or
Under
Custodial
(d) Any extrajudicial confession made by a
person arrested, detained or under custodial
investigation:
shall be in writing and signed by such

person in the presence of his counsel or in
the latter's absence,
upon a valid waiver, and
in the presence of any of the parents, elder

brothers and sisters, his spouse, the
municipal mayor, the municipal judge,
district school supervisor, or priest or
minister of the gospel as chosen by him;
otherwise, such extrajudicial confession
shall be inadmissible as evidence in any
proceeding.
A. Vis--vis Violation of the Right

Against Unreasonable Searches
and Seizures
Sec. 3(2), Art. 3, 1987 CONSTI. Any evidence
obtained in violation of this or the preceding
section shall be inadmissible for any purpose in
any proceeding.
Evidence obtained in violation of Sec. 2

Art. 3 shall be inadmissible for any
purpose and in any proceeding
(Stonehill vs, Diokno. 1967)
Nardone vs. US: Once the primary

source is shown to have been
unlawfully obtained, any secondary or
derivative
evidence
is
also
inadmissible.
B. Vis--vis Violation of the Rights

of
Persons
under
Custodial
Investigation
ART. III, s12(3): Any confession or admission
obtained in violation of this or Section 17
hereof shall be inadmissible in evidence
against him.
C. Vis--vis Violation of the Right

Against Self-incrimination
ART. III. s17: No person shall be compelled to
be a witness against himself. [in relation to
s12(3)]
Page 98 of 313
(c) The custodial investigation report shall

be:
Reduced to writing by the
investigating officer;
It shall be read and adequately
explained to him by his counsel
or by the assisting counsel
provided by the investigating officer
in the language or dialect known
to such arrested or detained
person,
The
reading
and
explanation
SHOULD BE DONE BEFORE such
report is signed, or thumbmarked (if the person arrested or
detained does not know how to
read and write).
RA 7438, Rights of Persons under Custodial Investigation

Section 4. Penalty Clause.
For What Acts
fails to inform any person arrested,
detained
or
under
custodial
investigation of his right to remain
silent and to have competent and
independent counsel preferably of his
own choice
Public
officer
or
employee, or anyone
acting upon orders of
such
investigating
officer or in his place
fails to provide a competent and

independent counsel to a person
arrested, detained or under custodial
investigation for the commission of an
offense if the latter cannot afford the
services of his own counsel
who obstructs, prevents or prohibits
any lawyer, any member of the
immediate family of a person arrested
from visiting and conferring privately
with him, or from examining and treating
him, or from ministering to his spiritual
needs, at any hour of the day or, in urgent
cases, of the night
Any person
VIII. RIGHT TO BAIL

Art. III. Sec. 13. All persons, except those
charged with offenses punishable by reclusion
perpetua when the 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.
A. Definition
(Sec. 1, Rule 114, ROC)
Bail is the security given for the release of a
person in custody of the law, furnished by
him or a bondsman, conditioned upon his
appearance before any court as may be
required.
Dela Camara v. Enage (1971)
Before conviction, every person is bailable
except if charged with capital offenses when
the evidence of guilt is strong. Such a right
flows from the presumption of innocence in
favor of every accused who should not be
subjected to the loss of freedom as
thereafter he would be entitled to acquittal,
unless his guilt be proved beyond
reasonable doubt.
Comendador v. De Villa (1991)
The military men who participated in the
failed coup d etat should be denied release
Penalty
o a fine of Six thousand pesos
(P6,000.00) or a penalty of
imprisonment of not less than
eight (8) years but not more than
ten (10) years, or both.
o The penalty of perpetual absolute
disqualification shall also be
imposed upon the investigating
officer who has been previously
convicted of a similar offense.
Same as above
penalty of imprisonment of not less

than four (4) years nor more than
six (6) years, and a fine of four
thousand pesos (P4,000.00)
on bail. The argument that denial from the

military of the right to bail would violate the
equal protection clause is not acceptable,
given that the officers and members of the
military are not similarly situated with
others. They are allowed a fiduciary use of
firearms and can easily continue their
insurgent activities against the government.
National security considerations should
impress upon the Court that release on bail
of respondents constitutes a damaging
precedent.
Enrile v. Perez (enbanc resolution,
2001)
It has not been alleged that the persons to
be arrested for their alleged participation in
the "rebellion" on
May 1, 2001 are
members of an outlawed organization
intending to overthrow the government.
Therefore,
to
justify
a warrantless
arrest under Section 5(a), there must be
a showing that the persons arrested or to
be arrested has committed, is actually
committing or is attempting to commit
the offense of rebellion. In other words,
there must be an overt act constitutive of
rebellion taking place in the presence of the
arresting officer.
xxx
This requirement was not complied with

particularly in the arrest of Senator
Enrile. In the Court's Resolution of May
5, 2001 in the petition for habeas
Page 99 of 313
Person Liable
Any arresting public
officer or employee, or
any
investigating
officer
2. When Available:
From the very moment of arrest (which

may be before or after the filing of
formal charges in court) up to the time
of conviction by final judgment (which
means after appeal).
No charge need be filed formally before

one can file for bail, so long as one is
under arrest. (Heras Teehankee v.
Rovica 75 Phil.634 1945)
Lavides vs CA, (2000): Arraigment of the

accused is not essential to the approval
of the bail bond. When bail is
authorized, it should be granted before
arraignment. Otherwise the accused
may be precluded from filing a motion
to quash. Also, the court will be assured
of the presence of the accused at the
arraignment precisely by grating bail
and ordering his presence at any stage
of the proceeding.
Since the evidence in this case is hearsay,

the evidence of guilt is not strong, bail is
allowed.
1. Bail as a Matter of Right vs.

Matter of Discretion
Matter of
right
Bail
is
a
matter of right
in all cases
not
punishable by
reclusion
perpetua.
Matter of Discretion
In case the evidence of guilt is
strong.
In such a case, according to
People v. San Diego, (1966), the
court's discretion to grant bail
must be exercised in the light
of a summary of the evidence
presented
by
the
prosecution.
Thus, the order granting or
refusing bail must contain a
summary of the evidence for
the prosecution followed by the
conclusion on whether or not
the evidence of guilt is strong
(Note: it is not the existence
of guilt itself which is
concluded but the strength
of the probability that guilt
exists).
Also
discretionary
in
extradition
proceedings,
because extradition courts do
not
render
judgments
of
conviction or acquittal so it
does not matter WON the
crimes the accused is being
extradited for is punishable by
reclusion
perpetua
(US
Government
v.
Judge
Puruganan and Mark Jimenez,
G.R. 138571, December 17,
2002)
3. Standards for Fixing Bail

R114, Sec. 9. Amount of bail; guidelines.
The judge who issued the warrant or granted the
application shall fix a reasonable amount of bail
considering primarily, but not limited to, the
following factors:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Financial liability of the accused to give bail;

Nature and circumstance of the offense;
Penalty for the offense charged;
Character and reputation of the accused;
Age and health of the accused;
Weight of the evidence against the accused;
Probability of the accused appearing at the
trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive
from justice when arrested; and
(j) Pendency of other cases where the accused
is on bail.
Excessive bail shall not be required.
Dela Camara v. Enage (1971):

STANDARDS FOR FIXING BAIL: Citing
Villaseor v. Abano, guidelines in the fixing
of bail are: (1) ability of the accused to give
bail; (2) nature of the offense; (3) penalty for
the offense charged; (4) character and
reputation of the accused; (5) health of the
accused; (6) character and strength of the
evidence; (7) probability of the accused
appearing in trial; (8) forfeiture of other
bonds; (9) whether the accused wasa
fugitive from justice when arrested; and
(10) if the accused is under bond for
appearance at trial in other cases."
Page 100 of 313
corpus filed by Senator Enrile, the Court

noted that the sworn statements of the
policemen who purportedly arrested him
were hearsay. Senator Enrile was arrested
two (2) days after he delivered allegedly
seditious speeches. Consequently, his
arrest without warrant cannot be justified
under Section 5(b) which states that an
arrest without a warrant is lawful when
made after an offense has just been
committed and the arresting officer or
private person has probable cause to
believe based on personal knowledge of
facts and circumstances that the person
arrested has committed the offense.
"Discretionis with the court called upon

to rule on the question of bail. We must
stress, however, that where conditions
imposed upon a defendant seeking bail
would amount to a refusal thereof and
render nugatory the constitutional right
to bail, we will not hesitate to exercise
our supervisory powers to provide the
required remedy.
4. Right to Bail and Right to Travel

Abroad
Manotok vs CA (1986):
The main issue in this case is WON a
person facing a criminal indictment and
provisionally released on bail have an
unrestricted right to travel. The Court held
that the constitutional right to travel being
invoked by petitioner is not an absolute
right. Section 5, Article IV of the 1973
Constitution states: The liberty of abode
and of travel shall not be impaired except
upon lawful order of the court, or when
necessary in the interest of national security,
public safety or public health.
The Court considered the order of the TC
releasing petitioner on bail as a lawful order
contemplated
by
the
above-quoted
constitutional provision.
Page 101 of 313
Chapter VI. Rights of the Accused
promulgation of the judgment. The

accused may, however, waive his
presence at the trial pursuant to the
stipulations set forth in his bail, unless
his presence is specifically ordered by
the court for purposes of identification.
I.
RIGHTS DURING TRIAL

A. PRESUMPTION OF INNOCENCE
B. RIGHT TO BE HEARD PERSONALLY OR
BY COUNSEL
C. RIGHT TO BE INFORMED OF NATURE
AND CAUSE OF ACCUSATION
D. RIGHT TO SPEEDY, IMPARTIAL AND
PUBLIC TRIAL
E. RIGHT OF CONFRONTATION
F. RIGHT TO COMPULSORY PROCESSES
G. TRIAL IN ABSENTIA
H. RIGHT AGAINST SELF-INCRIMINATION
II. RIGHTS POST TRIAL
A. RIGHT AGAINST DOUBLE JEOPARDY
B. EXCESSIVE
FINES
AND
CRUEL,
DEGRADING
AND
INHUMAN
PUNISHMENT
C. INVOLUNTARY SERVITUDE
D. IMPRISONMENT FOR DEBT
E. EX POST FACTO LAWS AND BILLS OF
ATTAINDER
Sec. 14, Art. 3.

(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.
RULE 115 - RIGHTS OF ACCUSED
Section 1. Rights of accused at trial.
In all criminal prosecutions, the accused
shall be entitled to the following rights:
(a) To be presumed innocent until the
contrary is proved beyond reasonable
doubt.
(b) To be informed of the nature and
cause of the accusation against him.
(c) To be present and defend in person
and by counsel at every stage of the
proceedings, from arraignment to
When an accused under custody

escapes, he shall be deemed to have
waived his right to be present on all
subsequent trial dates until custody
over him is regained. Upon motion,
the accused may be allowed to defend
himself in person when it sufficiently
appears to the court that he can
properly protect his rights without the
assistance of counsel.
(d) To testify as a witness in his own
behalf
but
subject
to
crossexamination on matters covered by
direct examination. His silence shall
not in any manner prejudice him.
(e) To be exempt from being compelled
to be a witness against himself.
(f) To confront and cross-examine the
witnesses against him at the trial.
Either party may utilize as part of its
evidence the testimony of a witness
who is deceased, out of or cannot with
due diligence be found in the
Philippines, unavailable, or otherwise
unable to testify, given in another case
or
proceeding,
judicial
or
administrative, involving the same
parties and subject matter, the adverse
party having the opportunity to crossexamine him.
(g) To have compulsory process issued
to
secure
the
attendance
of
witnesses and production of other
evidence in his behalf.
(h) To have speedy, impartial and public
trial.
(i) To appeal in all cases allowed and in
the manner prescribed by law.
People
v.
Dramavo,
(1971):
The
requirement of proof beyond reasonable
doubt is a necessary corollary of the
constitutional right to be presumed
innocent.
Alejandro v. Pepito, (1980): The accused

cannot present evidence before the
Page 102 of 313
I. RIGHTS DURING TRIAL
The absence of the accused without

justifiable cause at the trial of which he
had notice shall be considered a waiver
of his right to be present thereat.
prosecution does so, even if the accused

pleads
guilty.
It
violates
the
presumption of innocence.
resident of the province and of good

repute for probity and ability.
People v. Acuram: The presumption of

regularity (in official duties) cannot by
itself prevail over the presumption of
innocence of the accused.
C. Right to be Informed of Nature

and Cause of Accusation
Corpus v. People: EQUIPOISE RULE:

Where the evidence adduced by the
parties are evenly balanced, the
constitutional presumption of innocence
should tilt the balance in favor of the
accused.
B. Right to be Heard Personally or by

Counsel
ART. III, S12, 1987 CONSTITUTION
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.
RA 7438, Rights of Persons under

Custodial Investigation; Section 2. Rights
of Persons Arrested, Detained or Under
Custodial Investigation; Duties of Public
Officers. (a)
Any
person
arrested
detained or under custodial investigation
shall at all times be assisted by counsel;
Elements of the Right to Counsel:

1. Courts duty to inform the accused
of right to counsel before being
arraigned;
2. It must ask him if he desires the
services of counsel;
3. If he does, and is unable to get one,
the Court must give him one; if the
accused wishes to procure private
counsel, the Court must give him
time to obtain one.
4. Where no lawyer is available, the
Court may appoint any person
Vera v. People: Procedural due process

requires that the accused must be
informed why he is being prosecuted
and what charge he must meet.
D. Right to Speedy, Impartial and

Public Trial
Art. III. Sec. 16, All persons shall have the
right to a speedy disposition of their cases
before all judicial, quasi-judicial, or
administrative bodies.
Art. II. Sec. 3, Civilian authority is, at all
times, supreme over the military. xxx
Sec. 10. Law on speedy trial not a bar to
provision
on
speedy
trial
in
the Constitution. No provision of law on
speedy trial and no rule implementing the
same shall be interpreted as a bar to any
charge of denial of the right to speedy trial
guaranteed by Section 14(2), Article III, of
the 1987 Constitution.
Olaguer v. Military Commission, (1987):

IMPARTIAL TRIAL: A civilian cannot be
tried by a military court so long as the
civil courts are open and operating,
even during Martial Law.
Acevedo v. Sarmiento, (1970): Dismissal

based on the denial of the right to
speedy trial amounts to an acquittal.
Note: RA 8493 provides: a 30-day

arraignment within the filing of the
information or from the date the accused
appeared before the court; trial shall
commence 30 days from the arraignment,
as fixed by the court. The entire trial period
shall not exceed 180 days, except as
otherwise authorized by the SC Chief
Justice.
This is the basis of the right to crossexamination.
F. Right to Compulsory Processes

1. Right to Secure Attendance of Witness
2. Right to Production of Other Evidence
Page 103 of 313
But where it is not the sole basis for

conviction,
the
presumption
of
regularity of performance of official
functions
may
prevail
over
the
constitutional
presumption
of
innocence.
Gimenez v. Nazareno (1988)

After arraignment, during which accused
pleaded not guilty, case was set for hearing
but the accused escaped. He was tried in
absentia. Lower court held the proceedings
against him in abeyance to give him the
opportunity to cross examine witnesses
against him and present his evidence.
The Court held that abeyance of proc. was
invalid. Such right to cross examine and
present evidence on his behalf is waived
by failure to appear during the trial of
which he had notice.
When Presence of the Accused is a DUTY
1) Arraignment and Plea
2) During Trial, for identification
3) Promulgation of Sentence
(Exception: Light offense -> can be via
counsel)
AQUINO v. Military Commission (1975)
Petitioner challenges the jurisdiction

of military commissions to try him
(for murder, illegal possession of
firearms and for violation of the
Anti-Subversion Act) arguing that he
being a civilian, such trial during
martial law deprives him of his right
to due process.
An issue has been raised as to WON
petitioner could waive his right to be
present during trial.
On a 7-5 voting: SEVEN justices voted that

petitioner may waive his right to be present
at ALL stages of the proceedings while FIVE
voted that this waiver is qualified, he
cannot waive when he is to be identified.
Trial in absentia: As a general rule,
subject
to
certain
exceptions,
any
constitutional or statutory right may be

waived if such waiver is not against public
policy.
Considering Art IV, Sec 19, 1973
Constitution (trial of a capital offense may
proceed even in the absence of the accused)
and the absence of any law specifically
requiring his presence at all stages of his
trial, there appears, no logical reason
why petitioner, although he is charged
with a capital offense, should be
precluded from waiving his right to be
present in the proceedings for the
perpetuation of testimony, since this right
was conferred upon him for his protection
and benefit.
H. Right Against Self-Incrimination

Sec. 17, Art. 3. No person shall be
compelled to be a witness against himself.
1. Scope
Compulsory
incrimination
It refers therefore to the use of the

mental
process
and
the
communicative faculties, and not to a
merely physical activity.
If the act is physical or mechanical, the

accused can be compelled to allow or
perform the act, and the result can be
used in evidence against him.
testimonial
self-
2. Examples
a. Handwriting in connection with a
prosecution for falsification is NOT
allowed, for this involves the use of the
mental processes (Beltran v. Samson, 53
Phil 570; Bermudez v. Castillo, 1937).
b. Reenactment of the crime by the
accused is NOT allowed, for this also
involves the mental process.
c. The accused can be required to allow a
sample of a substance taken from his
body (U.S. v. Tan Teh, 1912), or be
ordered to expel the morphine from his
mouth (U.S. v. Ong Sio Hong, 1917)
d. Accused may be made to take off her
garments
and
shoes
and
be
photographed (People v. Otadura, 96
Phil 244, 1950); compelled to show her
body for physical investigation to see if
Page 104 of 313
Borja v. Mendoza (1977):

WHEN CAN TRIAL IN ABSENTIA BE
DONE: Accused failed to appear for trial
despite postponement and notice to his
bondsmen. The Court then allowed
prosecution to present evidence despite the
fact that accused had not been arraigned.
Petitioner was found guilty. The issue is
WON the court has jurisdiction. The Court
held that because accused was not
arraigned, he was not informed of the
nature and cause of accusation against
him, TF Court has no jurisdiction. The
indispensable requisite for trial in
absentia is that it should come after
arraignment.
she is pregnant by an adulterous

relation (Villaflor v. Summers, 1920)
e. Order to give a footprint sample to see if
it matches the ones found in the scene
of the crime is allowed (People v. Salas
and People v. Sara).
3. Kinds of Proceeding Applicable
a. It extends to administrative proceedings

which possess a criminal or penal
aspect. A doctor who was being
investigated by a medical board for
alleged malpractice who would lose his
license if found guilty, could not be
compelled to take the witness stand
without his consent. (Pascual v. Board
of Medical Examiners, 1969)
b. It
extends
to
a
fact-finding
investigation by an ad hoc body. A
person can be compelled to testify
provided he is given immunity coextensive with the privilege against selfincrimination (Galman v. Pamaran,
1985)
4. Use Immunity v. Transactional

Immunity
a. Transactional Immunity
1987 Constitution, Art. XIII, Section 18.
The Commission on Human Rights shall
have the following powers and functions:
xxx
(8) Grant immunity from prosecution to any
person whose testimony or whose
possession of documents or other
evidence is necessary or convenient to
determine the truth in any investigation
conducted by it or under its authority;
b. Use and Fruit of Immunity
Galman v. Pamaran (1985):
Use immunity prohibits use of a witness
compelled testimony and its fruits in any
manner in connection with the criminal
prosecution of the witness. On the other
hand transactional immunity grants
immunity to witness from prosecution for
an offense to which his compelled
testimony relates.
5. Effect of Denial of Privilege

EXCLUSIONARY RULE under Art. III, s17
in relation to s12: When the privilege
against
self-incrimination
is
violated
outside of court (e.g. police), then the
testimony, as already noted, is not
admissible.
OUSTED OF JURISDICTION: When the
privilege is violated by the Court itself, that
is, by the judge, the court is ousted of its
jurisdiction, all its proceedings and even
judgment are null and void. (Chavez v. CA,
1968)
II. RIGHTS POST TRIAL

A. Right against Double Jeopardy
Sec. 21, Art. 3. 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.
1. Elements of Double Jeopardy

(Rule 117, Sec 7; People v. Obsania, 23
SCRA 249, 1968)
a. Court of competent jurisdiction;
b. A Complaint/Information sufficient in
form and substance to sustain a
conviction;
c. Arraignment and plea by the accused;
d. Conviction, acquittal, or dismissal of the
case without the express consent, of
the accused.
2. When Subsequent Prosecution is

Barred
a.
b.
c.
d.
Same offense
Attempt of the same offense
Frustration of the same offense
Offense necessarily included in the 1st
offense (All the elements of the 2nd
constitute some of the elements of the
1st offense)
e. Offense that necessarily includes the
1st offense (All the elements of the 1st
constitute some of the elements of the
2nd offense)
3. Exceptions
a. The graver offense developed due to
"supervening facts" arising from the
Page 105 of 313
General rule: The privilege is available in

any proceedings, even outside the court, for
they may eventually lead to a criminal
prosecution.
same act or omission constituting the

former charged.
b. The facts constituting the graver charge
became known or were discovered only
after the filing of the former complaint
or information.
c. The plea of guilty to the lesser offense
was made without the consent of the
fiscal and the offended party.
4. When Defense of Double Jeopardy

is Available
5. When Defense of Double Jeopardy

is NOT Available
Rule 117, Sec. 8, par 1. Provisional dismissal.A
case shall not be provisionally dismissed except
with the express consent of the accused and
with notice to the offended party.
When the case is dismissed other than

on the merits, upon motion of the
accused
personally,
or
through
counsel, such dismissal is regarded as
with express consent of the accused,
who is therefore deemed to have
waived the right to plea double
jeopardy.
a. By acquittal
b. By final conviction
c. By dismissal without express consent of
accused
d. By dismissal on the merits
and
Cruel,
Inhuman
1987 Constitution, Art. III, Sec 19.

1.
People v. dela Cruz (1953):

In this case the Court took into account, in
lowering the penalty to reclusion perpetua of
the accused most of whom were already
death row convicts, the deplorable subhuman
conditions
of
the
National
Penitentiary
where
the
crime
was
committed.
RA 9346 (June 24, 2006): An Act Prohibiting
the Imposition of Death Penalty in the
Philippines:
Sec. 1. The imposition of the penalty of death is
hereby prohibited. Accordingly, R.A. No. 8177,
otherwise known as the Act Designating Death
by Lethal Injection is hereby repealed. R.A. No.
7659, otherwise known as the Death Penalty
Law, and all other laws, executive orders and
decrees, insofar as they impose the death
penalty are hereby repealed or amended
accordingly.
1987 Constitution, Art. III, Sec 19. Section
18. No involuntary servitude in any form shall
exist except as a punishment for a crime whereof
the party shall have been duly convicted.

1987 Constitution, Art. III, Sec. 20. No person
shall be imprisoned for debt or non-payment of a
poll tax.
6. Termination of Jeopardy
B. Excessive
Fines
Degrading
and
Punishment
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.
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.
E. Ex Post Facto Laws and Bills Of

Attainder
1987 Constitution, Art. III, Sec. 22. No ex post
facto law or bill of attainder shall be enacted.
People vs. Ferrer (1972):

RA 1700 which declared the Communist
Party of the Philippines a clear and present
danger to Philippine security, and thus
prohibited
membership
in
such
organization, was contended to be a bill of
attainder. Although the law mentions the
CPP in particular, its purpose is not to
define a crime but only to lay a basis or to
justify the legislative determination that
membership in such organization is a crime
because of the clear and present danger to
national security.
Page 106 of 313
a. Dismissal based on insufficiency of

evidence;
b. Dismissal because of denial of right to
speedy trial;
c. Accused is discharged to be a state
witness.
2.
Chapter VII. Writs
the factual basis of the proclamation

of martial law or the suspension of
the privilege of the writ or the
extension thereof, and 5) must
promulgate its decision thereon within
thirty
days
from
its
filing.
Chapter VII. Writs

I. HABEAS CORPUS
II. WRIT OF AMPARO
III. HABEAS DATA
I. HABEAS CORPUS
1987 Constitution, Art. III
A state of martial law does not

suspend
the
operation
of
the
Constitution,
nor
supplant
the
functioning of the civil courts or
legislative assemblies, nor authorize the
conferment of jurisdiction on military
courts and agencies over civilians where
civil courts are able to function, nor
automatically suspend the privilege
of the writ.
The suspension of the privilege of the

writ shall apply only to persons
judicially charged for rebellion or
offenses
inherent
in
or
directly
connected with invasion.
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.
1987 Constitution, Art. VII, Section 18.
The
President
shall
be
the
Commander-in-Chief of all armed forces
of the Philippines and whenever it
becomes necessary, he may call out
such armed forces to prevent or
suppress lawless violence, invasion or
rebellion.
In case of invasion or rebellion, when
the public safety requires it, he may,
for a period not exceeding sixty days,
suspend the privilege of the writ of
habeas corpus or place the Philippines
or any part thereof under martial law.
Within forty-eight hours from the
proclamation of martial law or the
suspension of the privilege of the
writ of habeas corpus, the President
shall submit a report in person or in
writing to the Congress.
The Congress, voting jointly, by a vote

of at least a majority of all its
Members in regular or special
session, may revoke such proclamation
or suspension, which revocation shall not
be set aside by the President.
Upon the initiative of 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.
The Congress, if not in session, shall,

within twenty-four hours following such
proclamation or suspension, convene in
of a call.
The Supreme Court may: 1) review, 2)

in an appropriate proceeding; 3) filed
by any citizen, 4) the sufficiency of
Villavicencio vs Lukban (1919):

"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.
The forcible taking of these women from
Manila by officials of that city, who
handed them over to other parties, who
deposited them in a distant region,
deprived these women of freedom of
locomotion just as effectively as if they
had been imprisoned. Placed in Davao
without
either
money
or
personal
belongings, they were prevented from
exercising the liberty of going when and
where they pleased.
The restraint of liberty which began in
Manila continued until the aggrieved
parties were returned to Manila and
released or until they freely and truly
waived his right. "
"We believe the true principle should be
that, if the respondent is within the
jurisdiction of the court and has it in his
power to obey the order of the court and
thus to undo the wrong that he has
inflicted, he should be compelled to do so.
Even if the party to whom the writ is
addressed has illegally parted with the
Page 107 of 313
custody
of
a
person
before
the
application for the writ is no reason why
the writ should not issue.
Lansang v. Garcia (1971):
Petitioners were arrested without warrants
and detained, upon the authority of
Proclamation 889 (Which suspended the
privilege of the Writ of Habeas Corpus) and
subsequently filed a petition for writ of
habeas corpus, assailing the validity of the
said Proclamation and their detention.
Thus, the Court has the authority to

inquire into the existence of the factual
bases for the proclamation in order to
determine its constitutional sufficiency. The
test for such judicial inquiry is whether or
not the Executive acted arbitrarily in
issuing the Proclamation. The test is not
correctness, but arbitrariness.
For the suspension of the privilege of the
writ to be valid, (a) there must be "invasion,
insurrection or rebellion" or, pursuant to
paragraph (2), section 10 of Art. VII of the
Constitution, "imminent danger thereof";
and (b) public safety must require the
aforementioned suspension. The President
declared in Proclamation No. 889, as
amended, that both conditions are present,
and the Supreme Court agreed. The
President did not act arbitrarily; the
Court acknowledged the existence of a
sizeable group of men (Communists and
the NPA) who have publicly risen in arms
to overthrow the government and have
thus been and still are engaged in rebellion
against the Government of the Philippines.
Moncupa vs. Enrile (1986):
It is not physical restraint alone which
can be inquired into by means of the
writ of habeas corpus. In this case, the
petition is valid as petitioners temporary
release from detention is accompanied with
restrictions w/ the ff effects: 1) curtailed
freedom of movement by the condition that
he must get approval of respondents for any
travel outside Metro Manila, 2) abridged
liberty of abode because prior approval of
resp. is required in case pet. wants to
change place of residence, 3) abridged
freedom of speech due to prohibjtion from

taking any interviews inimical to national
security, and 4) pet. is required to report
regularly to respondents or their reps.
Gumabon vs. Director of Prisons (1971):
It being undeniable that if the Hernandez
ruling were to be given a retroactive effect
petitioners had served the full term for
which they could have been legally
committed,
is
habeas
corpus
the
appropriate remedy?
YES. In Cruz v. Director of Prisons (1910),
"The courts uniformly hold that where a
sentence imposes punishment in excess
of the power of the court to impose,
such sentence is void as to the excess,
The rule is that the petitioner is not
entitled to his discharge on a writ of
habeas corpus unless he has served out
so much of the sentence as was valid."
xxx While the above decision speaks of a
trial judge losing jurisdiction over the case,
insofar as the remedy of habeas corpus is
concerned, the emphatic affirmation that it
is the only means of benefiting the
accused by the retroactive character of
a
favorable
decision
holds
true.
Petitioners clearly have thus successfully
sustained the burden of justifying their
release.
Sombong vs. CA (1990):
Sombong claims that she is the mother of
the child Christina, who is under the
custody of Neri, and filed a petition for the
issuance of the writ of habeas corpus. The
Supreme Court denied the petition.
In order to justify the grant of the writ of
habeas corpus, the restraint of liberty must
be in the nature of an illegal and
involuntary deprivation of freedom of
action. However, habeas corpus may still
be resorted to even if the restraint is
voluntary in cases where the rightful
custody of any person is withheld from
the person entitled thereto. The said writ
is the proper legal remedy to enable parents
to regain the custody of a minor child even
if the child is in the custody of a third
person of her own free will.
Sombong does not have the right of custody
over the child, because the evidence
adduced does not warrant the conclusion
that Christina is the same person as her
child Arabella.
Velasco v. CA (1995):
Larkins was arrested after a certain Alinea
filed a complaint-affidavit for rape against
Page 108 of 313
The Court upheld the violation of the

Proclamation and dismissed the petitions.
The Supreme Court held that the authority
to suspend the privilege of the writ is
circumscribed, confined and restricted,
not only by the prescribed setting or the
conditions essential to its existence, but,
also, as regards the time when and the
place where it may be exercised.
Chapter VII. Writs
Chapter VII. Writs
him before the NBI. There was no warrant.

A complaint for rape was subsequently filed
before the RTC. His common-law wife filed a
petition for habeas corpus.
Another is the filing of a complaint or

information for the offense for which the
accused is detained.
By then, the restraint of liberty is already
by virtue of the complaint or information
and, therefore, the writ of habeas corpus is
no longer available.
Section 4 of Rule 102 reads in part as
follows: "Nor shall anything in this rule be
held to authorize the discharge of a person
charged with an
offense in the
Philippines." It may also be said that by
filing his motion for bail, Larkins
admitted that he was under the custody of
the court and voluntarily submitted his
person to its jurisdiction.
II. WRIT OF AMPARO

III.WRIT OF HABEAS DATA
Query
What is the writ
amparo?
of
Writ of Amparo
Remedy
Available to any person
Whose right to life, liberty, and
security
has
been
violated
or
is
threatened with violation
By an unlawful act or omission
of a public official or employee,
or of a private individual or
entity.
The writ covers extralegal killings

and enforced disappearances or
threats thereof.
What
rule
governs
petitions for and the
issuance of a writ of
amparo?
What is the Supreme

Courts basis in issuing
the Rule?
When does
take effect?
the
Rule
It is governed by The Rule on the

Writ of Amparo (A.M. No. 07-9-12SC ), which was approved by the
Supreme Court on 25 September
2007. This Rule also governs
existing cases involving extralegal
killings
and
enforced
disappearances or threats thereof.
The Rule was drafted pursuant to
the Supreme Courts constitutional
power to promulgate rules for the
protection and enforcement of
constitutional rights (Constitution,
Art. VIII, Sec. 5[5]).
The Rule takes effect on 24 October
2007, following its publication in
three (3) newspapers of general
circulation.
Habeas Data
Remedy
Available to any person
Whose right to life, liberty, and
security
has been violated or is
threatened with violation
By an unlawful act or omission
of a public official or employee,
or of a private individual or
entity
engaged
in
the
gathering,
collecting or storing of data or
information
regarding
the
person,
family,
home
and
correspondence of the aggrieved
party.
The Rule on the Writ of Habeas
Data (A.M. No. 08-1-16-SC), which
was approved by the Supreme
Court on 22 January 2008. That
Rule shall not diminish, increase
or modify substantive rights.
(Constitution, Art. VIII, Sec. 5[5]).
The Rule takes effect on 2

February
2008,
following
its
publication in three (3) newspapers
of general circulation.
Page 109 of 313
The Supreme Court held that even if the

arrest of a person is illegal, supervening
events may bar his release or discharge
from custody. The court must thus look
into the legality of his detention as of, at the
earliest, the filing of the application for a
writ of habeas corpus, for even if the
detention is at its inception illegal, it may,
by reason of some supervening events, such
as the instances mentioned in Section 4 of
Rule 102, be no longer illegal at the time of
the filing of the application. Among such
supervening events is:
The issuance of a judicial process
preventing the discharge of the detained
person.
Who may file a petition

for the issuance of a
writ of amparo?
the aggrieved party or by any

qualified person or entity in the
following order:
Any member of the immediate
family, namely: the spouse,
children and parents of the
aggrieved party;
Any ascendant, descendant or
collateral relative of the
aggrieved party within the
fourth
civil
degree
of
consanguinity or affinity, in
default of those mentioned in
the preceding paragraph; or
Any
concerned
citizen,
organization, association or
institution, if there is no
known
member
of
the
immediate family or relative of
the aggrieved party.
The petition may be filed on any
day and at any time with:
The Regional Trial Court of the
place where the threat, act or
omission was committed or any of
its elements occurred,
the writ shall be returnable
before such court or judge.
or with the Sandiganbayan, the
Court of Appeals, or any justice
of such courts.
The
writ
shall
be
enforceable anywhere in the
Philippines.
It may be returnable before
such court or any justice
thereof, or to any Regional
Trial Court to any Regional
Trial Court of the place
where the threat, act or
omission was committed or
any
of
its
elements
occurred.
How much is the docket

or filing fees for the
The Supreme Court, or any

justice
The
writ
shall
be
enforceable anywhere in the
Philippines.
it may be returnable before
such Court or any justice
thereof,
or
before
the
Sandiganbayan or the Court
of Appeals or any of their
justices, or to any Regional
Trial Court of the place
where the threat, act or
omission was committed or
any
of
its
elements
occurred.
There is NO docket and other lawful
fees for the petition. The court,
The aggrieved party.

However, in cases of extralegal
killings and enforced
disappearances, the petition
may be filed by
o Any member of the
immediate family of the
aggrieved party, namely:
the spouse, children and
parents; or
o Any ascendant, descendant
or collateral relative of the
aggrieved party within the
fourth civil degree of
consanguinity or affinity, in
default of those mentioned
in the preceding paragraph.
Regional Trial Court

where the petitioner or
respondent resides,
or that which has
jurisdiction over the place
where the data or
information is gathered,
collected or stored, at the
option of the petitioner.
Supreme Court;
Court of Appeals;
Sandiganbayan: when the action
concerns public data files of
government offices.
No docket and other lawful fees

shall be required from an indigent
Page 110 of 313
Where can the petition

be filed?
Chapter VII. Writs
petition?
What
is
required burden
proof?
Chapter VII. Writs
justice or judge shall docket the

petition
and
act
upon
it
immediately.
the
of
The petition of the indigent shall

be docketed and acted upon
immediately, without prejudice
to subsequent submission of
proof of indigency not later than
15 days from the filing of the
petition.
The parties shall establish their

claims by substantial evidence.
The respondent who is a private
individual or entity must prove that
ordinary diligence as required by
applicable
laws,
rules
and
regulations was observed in the
performance of duty.
The respondent who is a public
official or employee must prove that
extraordinary
diligence
as
required by applicable laws, rules
and regulations was observed in the
performance of duty.
Instead of having the

hearing in open court,
can it be done in
chambers?
Can the respondent

invoke
the
legal
presumption (Rules of
Court, Rule 131, Sec.
3[m]) that official duty
has
been
regularly
performed?
petitioner.
Yes. It can be done when the

respondent invokes the defense
that the release of the data or
information in question shall
compromise national security or
state secrets, or when the data or
information cannot be divulged to
the public due to its nature or
privileged character
No. The respondent public official
or employee cannot invoke the
presumption that official duty has
been regularly performed to evade
responsibility or liability.
Secretary of National Defense V. Manalo

(2008):
The Manalo brothers were abducted,
detained, and tortured repeatedly by the
military. After their escape, they filed a
petition for the privilege of the Writ of
Amparo. The Supreme Court granted the
petition and held that there was a
continuing violation of the Manalos
right to security. Considering that they
only escaped from captivity and have
implicated military officers, there is still a
threat to their lives, liberty, and
security. The threat vitiates their free
will and they are forced to limit their
movements
and
activities.
The
government also failed to provide them
protection because the military themselves
perpetrated the abduction, detention, and
torture. The government also failed to

provide an effective investigation.
As regards the relief granted, the Court
held that the production order under the
Amparo rule is different from a search
warrant and may be likened to the
production of documents or things
under Rule27.1, ROC.
They also said that the disclosure of the
present places of assignment of the
implicated military officers would not
jeopardize the exercise of the military
functions of the officers. Such disclosure
is relevant in ensuring the safety of the
Manalo brothers.
Page 111 of 313
Chapter VIII. Privacy of Communication and Correspondence
Chapter VIII. Privacy of

Communication and
Correspondence
3. For any person, be he a participant

or not in the act or acts penalized in
the next preceding sentence, to
knowingly
possess
any
tape
record, wire record, disc record,
or any other such record, or
copies
thereof,
of
any
communication or spoken word
secured either before or after the
effective date of this Act in the
manner prohibited by this law
I. INTRUSION, WHEN ALLOWED

II. FORMS OF CORRESPONDENCE COVERED
III. ENABLING LAW
Sec 3 (1), Art. 3, 1987 Consti. 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.
4. to replay the same for any other

person/persons
6. to furnish transcriptions thereof,

complete or partial, to any other
person
I. INTRUSION, WHEN ALLOWED

1. By lawful order of the court
2. When public safety or public order
requires otherwise, as may be provided
by law
II. FORMS OF
COVERED
1.
2.
3.
4.
CORRESPONDENCE
letters
messages
telephone calls
telegrams, and the like (BERNAS)
III.ENABLING LAW
Republic Act 4200: AN ACT TO
PROHIBIT
AND
PENALIZE
WIRE
TAPPING
AND
OTHER
RELATED
VIOLATIONS OF THE PRIVACY OF
COMMUNICATION, AND FOR OTHER
PURPOSES (1965)
Section 1.
Unlawful Acts:
1. For any person not being authorized
by all the parties to any private
communication or spoken word to
tap any wire or cable, or by using
any other device or arrangement,
2. to secretly overhear, intercept, or
record such communication or
spoken word
by using a device commonly known
as a dictaphone or dictagraph or
detectaphone or walkie-talkie or
tape recorder, or however otherwise
described.
Exception 1:
That the use of such record or any copies

thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned
in Sec. 3 hereof, shall not be covered by
this prohibition.
Section 3.
Exception 2:
Any peace officer, who is authorized by a

written order of the Court may lawfully
execute any of the acts declared to be
unlawful in the two preceding Sections in
cases involving the crimes of:
1. treason
2. espionage
3. provoking war and disloyalty in case of
war
4. piracy, and mutiny in the high seas,
5. rebellion, conspiracy and proposal to
commit rebellion, inciting to rebellion
6. sedition, conspiracy to commit sedition,
inciting to sedition
7. kidnapping as defined by the RPC
8. violations of Commonwealth Act No.
616, punishing espionage and other
offenses against national security
Requirements for valid issuance of

written order:
1. Upon
written
application
and
examination under oath or affirmation
of the applicant and the witnesses he
may produce, and
Page 112 of 313
5. to communicate the contents

thereof, either verbally or in
writing,
(2) Any evidence obtained in violation of

this or the preceding section shall be
inadmissible for any purpose in any
proceeding.
Chapter VIII. Privacy of Communication and Correspondence
2. A showing of:
GAANAN vs. IAC, (1986):

The Court held that the use of a telephone
extension for the purpose of overhearing a
private conversation without authorization
did NOT violate R.A. 4200 because a
telephone extension device was not among
those
"device(s)
or
arrangement(s)"
enumerated therein, following the principle
that "penal statutes must be construed
strictly in favor of the accused.
Chavez v Gonzales (2006)
An announcement of a public figure to
prohibit the media to issue a specific kind
of statement amounts to prior restraint,
which is violative of the right to free
press.
Contents of the order:
1. the identity of the person/persons

whose communications, conversations,
discussions, or spoken words are to be
overheard, intercepted, or recorded and,
in the case of telegraphic or telephonic
communications, the telegraph line or
the telephone number involved and its
location;
2. the identity of the peace officer
authorized to overhear, intercept, or
record
the
communications,
conversations, discussions, or spoken
words
3. the offense/offenses
sought to be prevented
committed
or
4. the period of the authorization. The

authorization shall be effective for
the period specified in the order
which shall not exceed sixty (60) days
from the date of issuance of the order,
unless extended or renewed by the
court upon being satisfied that such
extension or renewal is in the public
interest.
Section 4.
Inadmissibility:
Any communication or spoken word, or the

existence, contents, substance, purport,
effect, or meaning of the same or any part
Page 113 of 313
reasonable grounds to believe that

any of the crimes enumerated
hereinabove has been committed
or is being committed or is about to
be committed: Provided, however,
That in cases involving the offenses
of
rebellion,
conspiracy
and
proposal
to
commit
rebellion,
inciting
to
rebellion,
sedition,
conspiracy to commit sedition, and
inciting to sedition, such authority
shall be granted only upon prior
proof that a rebellion or acts of
sedition, as the case may be, have
actually
been
or
are
being
committed;
ii. reasonable grounds to believe that
evidence
will
be
obtained
essential to the conviction of any
person for, or to the solution of, or
to the prevention of, any such
crimes; and
iii. no other means readily available
for obtaining such evidence.
i.
thereof, or any information therein

contained obtained or secured by any
person in violation of the preceding
sections of this Act shall not be
admissible in evidence in any judicial,
quasi-judicial, legislative or administrative
hearing or investigation.
Chapter IX. Freedom of Expression
Chapter IX. Freedom of

Expression
I.
I. BASIS,
COMPONENTS,
AND LIMITATIONS
SCOPE
Basis
Sec. 4, Art. 3. No law shall be passed

abridging the freedom of speech, of
expression, or of the press, or the right of
the people peaceably to assemble and
petition the Government for redress of
grievance.
Components
Speech, expression, and press include:
a) Written or spoken words (recorded or
not)
b) Symbolic
speech
(e.g.
wearing
armbands as symbol of protest)
c) Movies (BERNAS)
Scope of Protected Freedoms
Any and all modes of protection are
embraced in the guaranty. It is reinforced
by Sec. 18(1), Art. 3.
A. Freedom from Censorship or Prior

Restraint
Censorship conditions the exercise of

freedom of expression upon the prior
approval of the government.
The censor serves therefore as the
political, moral, social and artistic
arbiter for the people, usually applying
only his own subjective standards in
determining what is good and whats not.
General rules:
1.
Any system of prior restraints of

expression comes to the Court bearing
a heavy presumption against its
constitutionality,
giving
the
government a heavy burden to show
justification for the imposition of such
restraint. (New York v. United States
(1971)
2.
There need not be total suppression.

Even
restriction
of
circulation
constitutes censorship (Grosjean vs.
American Press Co. 297 US 233)
Sec. 18. (1), Art. 3 No person shall be

detained solely by reason of his political
beliefs and aspirations.
All
are
indispensable
to
the
uninhibited, robust and wide-open
debate in the free marketplace of ideas
(Abrams vs US)
U.S. vs. Bustos (1909):

While indeed, the news item subject of the
present case might have ruffled the
sensitivities of plaintiff, this Court however
believes that the alleged defamatory articles
falls within the purview of a qualifiedly
privileged matter, and that therefore, it
cannot be presumed to be malicious. The
onus of proving malice is accordingly
shifted to the plaintiff, that is, that he
must prove that the defendants were
actuated by ill-will in what they caused
to be printed and published, with a
Concept:
Examples
Restraint:
of
Unconstitutional
Prior
1.
COMELEC prohibition against radio

commentators or newspaper columnists
from commenting on the issues
involved in a scheduled plebiscite
(Sanidad vs COMELEC)
2.
Arbitrary closure of a radio station

(Eastern Broadcasting vs. Dans)
3.
COMELEC resolution prohibiting the

posting of decals and stickers in mobile
Page 114 of 313
BASIS,
COMPONENTS,
SCOPE
AND
LIMITATIONS
A. FREEDOM FROM CENSORSHIP OR
PRIOR RESTRAINT
B. FREEDOM
FROM
SUBSEQUENT
PUNISHMENT
II. CONTENT-BASED RESTRICTIONS
A. TESTS
B. APPLICATIONS OF VARIOUS TESTS IN
SPECIFIC INSTANCES
1. FREEDOM OF EXPRESSION AND
NATIONAL SECURITY
LIBEL
THE RIGHT TO PRIVACY
THE ADMINISTRATION OF JUSTICE
5. FREEDOM OF INFORMATION
III. CONTENT-NEUTRAL RESTRICTIONS
1. FREEDOM OF ASSEMBLY
2. FREEDOM OF ASSOCIATION AND
SELF-ORGANIZATION
3. MOVIE CENSORSHIP
4. BROADCAST MEDIA
design to carelessly or wantonly injure

the plaintiff.
units like cars and other

vehicles (Adiong vs COMELEC)
4.
moving
might be provoking the vengeance of the

officials he has criticized (chilling effect).
Search, padlocking and sealing of the

offices of newspaper publishers (We
Forum) by military authorities (Burgos
vs Chief of Staff)
If criticism is not to be conditioned on the

governments consent, then neither should
it be subject to the governments
subsequent chastisement.
Examples
Restraint:
of
Constitutional
Prior
2. Prohibition on any person making use

of the media to sell or to give free of
charge print space or air time
for
campaign or other political purposes
except to the COMELEC. Ratio: police
power of State to regulate media for
purpose of ensuring equal opportunity,
time and space for political campaigns.
(National Press Club vs COMELEC,
Osmena vs COMELEC)
3. Movie censorship: the power of the
MTCRB can be exercised only for
purposes of reasonable classification,
not censorship. (NACHURA citing
Gonzales vs Katigbak and Ayer vs.
Judge Capulong.
4. Near v. Minnesota, (1931):
a. When a nation is at war, many
things that might be said in time of
peace are such a hindrance to its
effort that their utterance will not be
endured so long as men fight and
that no court could regard them as
protected by any constitutional right
b. Actual
obstruction
to
the
governments recruiting service or
the publication of the sailing dates
of transports or the number and
location of troops
c. Obscene publications.
d. Incitements to acts of violence and
the overthrow by force of orderly
government.
B. Freedom
from
Punishment
Subsequent
Concept:
of
Valid
Subsequent
1. Libel. Every defamatory imputation is

presumed to be malicious. (Alonzo vs
CA) Exceptions to this presumption are
found in Art. 354 of the RPC.
2. Obscenity. The determination of what
is obscene is a judicial function. (Pita vs
CA)
U.S. vs Kottinger:
Accused was convicted for exhibiting
nude
painting
and
pictures,
notwithstanding his claim that he had
done so in the interest of art. Court
said that the purpose was commercial,
not merely artistic, because he charged
admission fees to the exhibition.
3. Contempt for criticism/publications
tending to impede, obstruct, embarrass
or influence the courts in administering
justice in a pending suit or proceeding
(sub judice) (People vs. Alarcon)
4. Being a public figure does not
automatically destroy in toto a person's
right to privacy. The limits of freedom
of expression are reached when it
touches upon matters of private
concern (Lagunzad v. Gonzales)
5. Right of students to free speech
school premises must not infringe
the schools right to discipline
students (Miriam College Foundation
CA 2000).
in
on
its
vs
Exceptions:
1. Fair comment on matters of public

interest. Fair comment is that which is
true or, if false, expresses the real
opinion of the author based upon
reasonable degree of care and on
reasonable grounds.
2. Criticism of official conduct is given the
widest latitude (US vs. Bustos).
Freedom of speech includes freedom

after speech. Without this assurance, the
citizen would hesitate to speak for fear he
Page 115 of 313
1. Law which prohibits, except during the

prescribed election period, the making
of
speeches,
announcements
or
commentaries for or against the election
of any candidate for office (Gonzales vs.
COMELEC)
Examples
Restraints:
II. CONTENT-BASED RESTRICTIONS

A. Tests
1. Dangerous Tendency Test
Cabansag vs Fernandez:
If the words uttered create a dangerous
tendency of an evil which the State has the
right to prevent, then such words are
punishable.
2. Clear and Present Danger Test

Schenck v. United States (1919):
The question in every case 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
Congress has a right to prevent. It is a
question of proximity and degree.
Gonzales v. COMELEC, (27 SCRA 835):
This rule requires that the danger created
must not only be clear and present but also
traceable to the ideas expressed
Note: This test has been adopted by the
Philippine SC lock, stock and barrel and is
the test most applied to cases re: freedom of
expression.
3. Balancing of Interest Test
American Communications Assoc. vs.

Douds, (339 US 282):
When a particular conduct is regulated in
the interest of public order, and the
regulation
results
in
an
indirect,
conditional and partial abridgement of
speech, the duty of the courts is to
determine
which
of the two conflicting
interests demands greater protection.
Gonzales v. Comelec:
The test is applied when two legitimate
values not involving national security
crimes compete.
4. Direct Incitement Test

Salonga vs. Cruz Pao (1986):
Petitioner was charged with violation of the
Revised Anti-Subversion Act after being
apparently implicated by a certain Victor
Lovely as being involved in the series of

bombings in Metro Manila.
Direct Incitement Test: In the case before
us, there is no teaching of the moral
propriety of a resort to violence, much less
an advocacy of force or a conspiracy to
organize the use of force against the duly
constituted authorities.
The alleged remark about the likelihood of
violent struggle
unless reforms are
instituted is not a threat against the
government. Nor is it even the uninhibited,
robust, caustic, or unpleasantly sharp
attack which is protected by the guarantee
of free speech.
Parenthetically, the American case of
Brandenburg v. Ohio (395 U.S. 444) states
that the constitutional guarantees of free
speech and free press do not permit a
State to forbid or proscribe advocacy of
the use of force or of law violation
except where such advocacy is directed
to inciting or producing imminent
lawless action and is likely to incite or
produce such action.
Political discussion even among those
opposed to the present administration is
within the protective clause of freedom
of speech and expression. The same
cannot be construed as subversive activities
per se or as evidence of membership in a
subversive organization.
5. Grave-But-Improbable Danger Test

Dennis v. U.S. (1951):
Petitioners, leaders of the Communist Party
in this country, were indicted in a federal
district court under 3 of the Smith Act for
willfully and knowingly conspiring (1) to
organize as the Communist Party a group of
persons to teach and advocate the
overthrow
and
destruction
of
the
Government of the United States by force
and violence, and (2) knowingly and
willfully to advocate and teach the duty and
necessity of overthrowing and destroying
the Government of the United States by
force and violence.
Grave-But-Improbable Danger Test: To
determine the clear and present danger of
the utterances bringing about the evil
within which that legislature has the power
to punish, "In each case [courts] must
ask whether the gravity of the 'evil,'
discounted by its improbability, justifies
such invasion of free speech as is
Page 116 of 313
People vs Perez, (45 Phil 599):

It is sufficient if the natural tendency and
the probable effect of the utterance were to
bring about the substantive evil that the
legislative body seeks to prevent.
necessary to avoid the danger." In this

case, an attempt to overthrow the
Government by force is a sufficient evil for
Congress to prevent. It is the existence of
the conspiracy which creates the danger.
B. Applications of Various Tests in

Specific Instances
1. Freedom
of
Expression
National Security
and
These reasons point to the Roxas

administration, his disappointments and
humiliations because of the former and his
lask of power to put under Juez de Cuchillo
all the Roxas people in power. Finally, the
letter instructed the wife to teach their
children to burn pictures of Roxas if they
come across one. Espuelas admitted the
fact that he wrote the letter and caused its
publication and that he had impersonated
one Alberto Reveniera and posed himself as
Alberto Reveniera in a picture taken
wherein he was shown hanging by the end
of a rope tied to a limb of a tree.
Freedom
of
Expression,
national
security: The letter is a scurrilous libel
against the Government. It suggests or
incites rebellious conspiracies or riots and
tends to stir up the people against the
constituted authorities, or to provoke violence
from opposition groups who may seek to
silence the writer, which is the sum and
substance
of
the
offense
under
consideration. Such writings are criminal
not only because they tend to incite to a
breach of the peace but because they are
conducive to the destruction of the very
government itself. Malicious endeavors to
stir up public strife are prohibited.
The privilege of any citizen to criticize his

government and government officials and to
submit his criticism to the "free trade of
ideas" and to plead for its acceptance in
"the competition of the market" is not to be
restrained. However, let such criticism be
specific and therefore constructive,
reasoned or tempered, and not a
contemptuous condemnation of the
entire government set-up.
Such wholesale attack is nothing less than
an
invitation
to
disloyalty
to
the
government. When the use of irritating
language centers not on persuading the
readers but on creating disturbance, the
rationale of free speech cannot apply
and the speaker or writer is removed
from the protection of the constitutional
guaranty.
2. Freedom of Expression and Libel

Beltran vs Makasiar (1988)
President of the Phil Corazon Aquino filed a
complaint for libel against the publisher
and columnist of the Philippine Star, wrt to
a statement in Beltrans forum saying that
the President hid under her bed during a
coup attempt.
The Court held that as regards the
contention of Beltran that he could not be
held liable for libel because of the
privileged character of the publication,
the Court is not a trier of facts and that
such defense is best left to the trial
court to appreciate after receiving the
evidence of the parties.
Bulletin Publishing vs Noel
NATIONAL COMMUNITY STANDARD AS
BASIS OF WHAT IS DEFAMATORY: An
article in Phil Panorama described Amir
Mindalano as not belonging to a royal
house. Court held that there is no libel.
Such a description cannot be regarded as
defamatory, an imputation of a vice or
Page 117 of 313
Espuelas v. People (1951)

Espuelas was convicted in the lower court
of the crime of inciting to sedition. Espuelas
had his picture taken, making it to appear
as if he were hanging lifeless at the end of a
piece of rope suspended from the limb of a
tree, when in truth and in fact, he was
merely standing on a barrel. After securing
copies of his photograph, he sent copies to
several newspapers and weeklies of general
circulation throughout the Philippines and
abroad, for their publication with a suicide
note or letter, wherein he made to appear
that it was written by a fictitious suicidee,
Alberto Reveniera and addressed to the
latter's supposed wife.
Our Legislature has spoken in article 142 of

the RPC and the law must be applied. This
kind of legislation must be weighed
carefully vis--vis the fundamental right to
freedom of speech. Such
freedom,
although secured by the Constitution,
does not confer an absolute right to
speak or publish without responsibility
whatever one may choose. It is not
unbridled license that gives immunity
for every possible use of language and
prevents the punishment of those who
abuse this freedom.
defect, or tending to cast dishonor, discredit

or contempt or to blacken the memory of
one who is dead. In a community like
ours w/c is both republican and
egalitarian, such an ascription, whether
correct or not, cannot be defamatory.
It is to the standards of the national
community, not to those of the region
that a court must refer especially where
a newspaper is national in reach and
coverage.xxx
Also, the report in the Newsweek article

referring as it does to an official act
performed by an elective public official (i.e.
that the victim had been arrested by
members of special police unit brought by
the mayor of Kabankalan who incidentally
is a sugar planter), is w/in the realm of
privilege
and
is
protected
by
the
constitutional guarantess of free speech
and press.
MVRS v. Islamic DaWah Council of the

Phil (2003)
Islamic DaWah Council of the Philippines,
Inc., a local federation of more than 70
Muslim religious organizations, filed a
complaint for damages against MVRS
Publications, Inc., arising from an article,
which says that the pig is sacred for the
Muslims.
Freedom of Expression, Libel: As the size
of these groups increases, the chances for
members of such groups to recover
damages on tortious libel become elusive.
This principle is said to embrace two
important public policies: first, where the
group referred to is large, the courts
presume that no reasonable reader would
take the statements as so literally applying
to each individual member; and second,
the
limitation
on
liability
would
satisfactorily safeguard freedom of speech
and expression, as well as of the press,
effecting a sound compromise between the
conflicting fundamental interests involved

in libel cases.
Courts must be viewpoint-neutral when it
comes to religious matters if only to affirm
the neutrality principle of free speech rights
under modern jurisprudence where "all
ideas are treated equal in the eyes of the
First Amendment - even those ideas that
are universally condemned and run counter
to constitutional principles."
Under the right to free speech, "there is no
such thing as a false idea. However
pernicious an opinion may seem, we
depend for its correction not on the
conscience of judges and juries but on the
competition of other ideas."
Denying certiorari and affirming the
appellate court decision would surely
create
a
chilling
effect
on
the
constitutional guarantees of freedom of
speech, of expression, and of the press.
3. Freedom of Expression and the

Right to Privacy
Lagunzad vs Sotto (1979)
Being
a
public
figure
does
not
automatically destroy in toto a persons
right to privacy. The right to invade a
persons privacy to disseminate public
info does not exted to a fictional
representation of a person, no matter how
public a figure he/she may be. In the case
at bar, petitioner admits that he included a
little romance in the film about Moises
Padilla (despite efforts to present the trueto-life story of the latter) because w/o it, it
would be a drab story of torture and
brutality.
Ayer Productions vs Capulong (1988):
TC issued a writ of prelim inj. against
petitioners ordering them to desist from
producing the movie The Four-day
Revolution, a docu-drama of EDSA I, on
the ground that it violated the right to
privacy of Juan Ponce Enrile who was
feautured in the documentary.
The Court held that:
1) Freedom of speech and expression
includes freedom of film and produce
motion pictures and to exhibit them.
The fact that such film prod. is a
commercial
activity
is
not
a
disqualification for availing of freedom
of speech and expression.
Page 118 of 313
Newsweek vs. IAC (1986):

REPORT OF OFFICIAL CONDUCT IS
PRIVILEGED AND COVERED BY PRESS
FREEDOM: Where the defamation is
alleged to have been directed at a
group/class, it is essential that the
statement must be so sweeping or allembracing as to apply to every individual in
that group or class, or sufficiently specific
so that each individual in the class/grp can
prove that the defamatory statement
specifically pointed to him, so that he can
bring the action separately, if need be.
4. Freedom of Expression and the

Administration Of Justice
Cabansag v. Fernandez (1957)
Due to the delay in the disposition of his
original case, Cabansag asked for help from
the President through a letter addressed to
the PCAC (Presidential Complaints and
Actions Commission). A contempt charge
was brought against him for sending that
letter which tended to degrade the lower
court in the eyes of the President and of the
people. SC reversed the ruling which cited
him in contempt.
Freedom
of
Expression
and
the
Administration of Justice: For his act (of
sending his letter to the President and not
to the Sec of Justice or SC) to be
contemptuous, the danger must cause a
serious
imminent
threat
to
the
administration of justice. We cannot infer
that such act has "a dangerous tendency"
to belittle the court or undermine the
administration of justice for the writer
merely exercised his constitutional right to
petition the government for redress of a
legitimate grievance.
5. Freedom of Information
Valmonte vs Belmonte
Media practitiones requested information
from the GM of GSIS re clean loans granted
to certain members of the defunct Batasang
Pambansa on the guaranty of Imelda
Marcos shortly before the Feb 1986
elections. Request was refused on the
ground of confidentiality.
The Court held that the right to information
is not absolte. It is limited to matters of
public concern and is subject to such
limitations as may be provided by law. That
the GSIS was exercising a proprietary

function would not justify its exclusion of
the transactions from the coverage of the
right to info. But although citizens have
such right and, pursuant thereto, are
entitled to access to official records, the
Consti does not accord them the right to
compel custodians of official records to
prepare lists, summaries and the like in
their desire to get info on matters of pub
concern.
III.CONTENT-NEUTRAL
RESTRICTIONS
Primicias vs. Fugoso (1948):
The right to freedom of speech and to
peaceably assemble and petition the
government for redress of grievances are
fundamental personal rights of the people
guaranteed
by
the
constitutions
of
democratic countries. City or town mayors
are not conferred the power to refuseto
grant the permit, but oonly the
discretion in issuing the permit to
determine or specify the streets or
public places where the parade may pass
or the meeting may be held.
J.B.L. Reyes vs Bagatsing (1983):
The Court held here that freedom of speech
and freedom to peaceably assemble is
entitled to be accorded utmost deference
and respect, and cannot be limited or
denied unless there is showing of a clear
and present danger of a substantive evil
that the State has a right to prevent. For
the constitutional right to be invoked,
riotous conduct, injury to property, and
acts of vandalism must be avoided.
Furthermore, absent any clear and present
danger of a substantive evil, peacable
assembly in public places like streets or
parks cannot be denied, unless there is
showing of a clear and present danger of
substantive evil.
Bayan v. Ermita (2006)*
The CPR, insofar as it would purport to
differ from or be in lieu of maximum
tolerance, is NULL and VOID
CPR serves no valid purpose if it means

the same thing as maximum tolerance
(Sec. 3 [c] of B.P. 880), and is illegal if it
Editors Note: This case was argued by Justice

Nachura while he was still the Solicitor General. The
Full Text of BP 880 is available as an appendix.
Page 119 of 313
2) The right to privacy cannot be involved

to resist publication and dissemination
of matter of pub interest.
3) The intrusion is no more than
necessary to keep the film a truthful
historical account.
Enrile is a pub
figure because of his participation as a
principal actor in the culminating
events of the revolution.
4) There must be no knowing or reckless
disregard of truth in depicting the
participation of Enrile in EDSA I. Also,
there must be no presentation of his
private life and no revelation of intimate
or embarrassing personal facts.
means something else. Accordingly,

what is to be followed is and should be
that mandated by the law itself, namely,
maximum tolerance.
Freedom Parks
B.P. 880 provides that every city and
municipality must set aside a freedom
park within six months from the
laws effectivity in 1985, or 20 years
ago. Section 15 of the law provides for
an alternative forum through the
creation of freedom parks where no
prior permit is needed for peaceful
assembly and petition at any time.
According to the SolGen (Nachura) ,
however, he is aware of only ONE
declared freedom park - Fuente
Osmena in Cebu City. Without such
alternative forum, to deny the permit
would in effect be to deny the right.
Hence, local governments are given a

deadline of 30 days within which to
designate specific freedom parks as
provided under B.P. No. 880. If, after
that period, no such parks are so
identified in accordance with Section 15
of the law, all public parks and plazas of
the municipality or city concerned shall
in effect be deemed freedom parks; no
prior permit of whatever kind shall be
required to hold an assembly therein.
The only requirement will be written
notices to the police and the mayor
office to allow proper coordination and
orderly activities.
Permit Application
There is need to address the situation
adverted to by petitioners where mayors
do not act on applications for a permit
and when the police demand a permit
and the rallyists could not produce one,
the rally is immediately dispersed.
In such a situation, as a necessary

consequence and part of maximum
tolerance, rallyists who can show the
Conclusion
For
this
reason,
the
so-called
calibrated
preemptive
response
policy has no place in our legal
firmament and must be struck down
as a darkness that shrouds freedom.
It merely confuses our people and is
used by some police agents to justify
abuses. On the other hand, B.P. No.
880
cannot
be
condemned
as
unconstitutional; it does not curtail or
unduly restrict freedoms; it merely
regulates the use of public places as to
the time, place and manner of
assemblies.
Far from being insidious, maximum

tolerance is for the benefit of rallyists,
not the government. The delegation to
the mayors of the power to issue rally
permits is valid because it is subject to
the constitutionally-sound clear and
present danger standard.
2. Freedom of Association and SelfOrganization

Sec. 17, Human Security Act:
SEC.
17.
Proscription
of
Terrorist
Organizations, Association, or Group of
Persons. -- Any organization, association, or
group of persons organized for the purpose
of engaging in terrorism, or which, although
not organized for that purpose, actually
uses the acts to terrorize mentioned in this
Act or to sow and create a condition of
widespread and extraordinary fear and
panic among the populace in order to
coerce the government to give in to an
unlawful demand shall, upon application of
the Department of Justice before a
competent Regional Trial Court, with due
notice and opportunity to be heard given to
the organization, association, or group of
persons concerned, be declared as a
terrorist
and
outlawed
organization,
Page 120 of 313
B.P. 880 not unconstitutional

B.P. No. 880 is not an absolute ban of
public assemblies but a restriction that
simply regulates the time, place and
manner of the assemblies. The law not
vague or overbroad. There is, likewise,
no prior restraint, since the content of
the speech is not relevant to the
regulation. A fair and impartial reading
of B.P. No. 880 thus readily shows that
it refers to all kinds of public assemblies
that would use public places.
police an application duly filed on a

given date can, after two days from said
date, rally in accordance with their
application without the need to show a
permit, the grant of the permit being
then presumed under the law, and it
will be the burden of the authorities to
show that there has been a denial of the
application, in which case the rally may
be peacefully dispersed following the
procedure
of
maximum
tolerance
prescribed by the law.
association, or group of persons by the said

Regional Trial Court.
People vs. Ferrer (1972):
The right to associate is not absolute.
Sec. 2 (5), Art 9-B. 1987 Constitution.
The right to self-organization shall not be
denied to government employees.
Sec. 8, Art. 3, 1987 Constitution. The

right of the people, including those
employed in the public and private sectors,
to form unions, associations, or societies for
purposes not contrary to law shall not be
abridged.
par.2, Sec. 3, Art. 13, 1987 Constitution.
It shall guarantee the rights of all workers
to self-organization, collective bargaining
and negotiations, and peaceful concerted
activities, including the right to strike in
accordance with law. They shall be entitled
to security of tenure, humane conditions of
work, and a living wage. They shall also
participate in policy and decision-making
processes affecting their rights and benefits
as may be provided by law.
3. Movie Censorship
Gonzales v. Kalaw Katigbak (1985):
Gonzales was the producer of the movie
Kapit sa Patalim w/c the Board of Review
for Motion Pictures and Televisions
classified as fit For Adults Only.
Here the Court held that the power of the
Board is limited to the classification of
films. For freedom of expression is the rule
and restrictions the exception. Censorship
is allowable only under the clearest proof
of a clear and present danger of a
substantive evil to public safety, morals,
helath or any other legit public interest.
1) There should be no doubt what is
feared may be traced to the expression
complained of. 2) Also, there must be
reasonable
apprehension
aout
its
imminence. It does not suffice that the
danger is only probable.
4. Broadcast Media
Page 121 of 313
Chapter X. Freedom of Religion

I.
Art. III, Sec. 5. No law shall be made

respecting an establishment of religion; or
prohibiting the free exercise thereof. The
free exercise and enjoyment of religious
profession
and
worship,
without
discrimination or preference, shall forever
be allowed.
No religious test shall be
required for the exercise of civil or political
rights.
I. NON-ESTABLISHMENT CLAUSE
A. Concept
The clause prohibits excessive government
entanglement
with,
endorsement
or
disapproval of religion (Victoriano v. Elizalde
Rope Workers Union 1974, Lynch v.
Donnelly, 465 US 668 (1984) O'Connor, J.,
concurring); Allegheny County v. Greater
Pittsburg ACLU 1989).
B. Basis
Rooted in the separation of Church and
State (Sec. 2(5), Art. 9-C; Sec. 5(2), Sec.
29(2) Art. 6, 1987 Consti).
C. Acts NOT permitted

establishment Clause
by
Mandatory
religious
subjects
or
prohibition
on
secular
subjects
(evolution) in schools (Epperson vs.
Arkansas)
5.
Mandatory bible reading in school (a

form of preference for belief over
nonbelief) (School District vs. Schempp)
6.
word God in the Pledge of Allegiance
Newdow vs. US, (2003): Mandatory

recitation in school of such a Pledge
of
Allegiance
would
tend
to
discriminate against students who
are atheists.
D. Acts
Permitted
by
the
1. Tax exemption
Sec. 28 (3), Art. 6. Charitable institutions,
churches and personages or convents
appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and
improvements, actually, directly, and
exclusively used for religious, charitable, or
educational purposes shall be exempt from
taxation.
2. Operation of sectarian schools
Sec. 4(2), Art. 6. Educational institutions,
other than those established by religious
groups and mission boards, shall be owned
solely by citizens of the Philippines or
corporations or associations at least sixty
per centum of the capital of which is owned
by such citizens
Non-
1.
Prayer and Bible-reading in public

schools (Engel v. Vitale 1967; Abington
School District v. Schemp 1963)
2.
Financial subsidy for parochial schools

(Lemon vs. Kurtzman)
3.
Religious displays in public spaces
4.
Glassroth vs. Moore, 335 F.3d 1282

(11th Cir. 2003):
Display of granite monument of 10
commandments in front of courthouse
3. Religious instruction in public schools

Sec. 3(3), Art. 14. At the option expressed
in writing by the parents or guardians,
religion shall be allowed to be taught to
their children or wards in public elementary
and high schools within the regular class
hours by instructors designated or
approved by the religious authorities of the
religion to which the children or wards
belong, without additional cost to the
Government.
Page 122 of 313
NON-ESTABLISHMENT CLAUSE
A. CONCEPT
B. BASIS
C. ACTS NOT PERMITTED BY THE
ESTABLISHMENT CLAUSE
D. ACTS
PERMITTED
BY
THE
ESTABLISHMENT CLAUSE
E. TEST
II. FREE EXERCISE CLAUSE
A. DUAL ASPECT
B. LAWS JUSTIFIED UNDER THE FREE
EXERCISE CLAUSE
III. TESTS
A. CLEAR AND PRESENT DANGER TEST
B. COMPELLING STATE INTEREST TEST
C. CONSCIENTIOUS OBJECTOR TEST
is unconstitutional is unmistakably
non-secular. Nothing in its setting deemphasizes
its
religious
nature,
engenders in viewers a sense that
Christianity
is
endorsed
by
the
government.
Civil Code, Art. 359. The government

promotes the full growth of the faculties of
every child.
For this purpose, the
government
will
establish,
whenever
possible:
9. Financial support for secular academic

facilities
(1) Schools in every barrio, municipality

and
city
where
optional
religious
instruction shall be taught as part of the
curriculum at the option of the parent or
guardian.xxx
Tilton vs. Richardson, (403 U.S. 672):

WON law granting financial support
for
expansion
of
educational
facilities in parochial schools is
constitutional.
HELD: Yes, secular purpose
facilities to be used for secular
activities.
Since
no
constant
monitoring there is also no excessive
entanglement (unlike Lemon).
4. Public aid to religion

10. Exemption from zoning requirements to
accommodate
unique
architectural
features of religious buildings
5. Postage stamps depicting Philippines as

the site of a significant religious event
Aglipay vs. Ruiz, (64 Phil. 201):
Postage stamps which promote a
Catholic event is constitutional. The
benefit to religious sect is incidental to
promotion of Philippines as a tourist
destination.
6. Government
sponsorship
of
town
fiestas. Traditions which used to be
purely religious but have now acquired
secular character are permissible
(Garces vs. Estenzo)
7. Book lending program for students in
parochial schools. Benefit redounds to
students and parents not to any
particular sect. (Board of Education vs.
Allen, 392 U.S. 236)
8. Display of crche in a secular setting
Lynch vs. Donnely, (1984):
Crche is displayed in a secular
manner, and merely depicts the origins
of the holiday. The Constitution
mandates accommodation and not
merely
tolerance.
Instead
of
an
absolutist approach, court inquires if
the law or conduct has a secular
purpose.
Martin vs. Corporation of the

Presiding Bishop, (434 Mass. 141):
WON zoning law giving exemption to
religious sect (Mormons building a
tall
pointed
steeple)
is
constitutional.
HELD: Yes, court may not determine
whether architectural features are
necessary for a particular religion,
e.g. steeple pointing upwards into
heaven for Mormons.
E. Test
Lemon vs. Kurtzman, (403 U.S. 602):

Lemon Test
1. Statute must have a secular
legislative purpose.
2. Primary effect must be one that
neither
advances
nor
inhibits
religion.
3. Must
not
foster
excessive
entanglement between government
and religion.
II. FREE EXERCISE CLAUSE

A. Dual Aspect
1. Freedom to believe - absolute
2. Freedom to act on ones belief subject
to regulation
B. Laws
Justified
Exercise Clause
under
Free
1. Exemption from flag salute
Ebralinag v. Division Superintendent

of Schools of Cebu, (1993):
Conscientious Objectors cannot be
compelled to salute the flag on pain of
Page 123 of 313
Sec. 29 (2), Art. 6. No public money or

property shall be appropriated, applied,
paid, or employed, directly or indirectly, for
the use, benefit, or support of any sect,
church,
denomination,
sectarian
institution, or system of religion, or of any
priest, preacher, minister, other religious
teacher, or dignitary as such, except when
such priest, preacher, minister, or
dignitary is assigned to the armed
forces, or to any penal institution, or
government orphanage or leprosarium.
being dismissed from one's job or of

being expelled from school.
2. Freedom
doctrines
to
propagate
religious
3. Exemption from union shop
(from a benevolent neutrality stance)
1. Determine sincerity and centrality of

claimed religious belief and practice
2. Compelling state interest must override
religious belief and practice
3. The means adopted in pursuing its
interest is the least restrictive to
religious freedom
Estrada v Escritor, (2003):
Although the morality contemplated by
laws is secular, benevolent neutrality
could allow for accommodation of
morality based on religion, provided it
does not offend compelling state
interests.
Victoriano v. Elizalde Rope Workers

Union, (1974):
Neither does the law constitute an
establishment of religion. It has been
held that in order to withstand
objections based on this ground, the
statute must have a secular purpose
and that purpose must not directly
advance or diminish the interest of any
religion. Congress acted merely to
relieve persons of the burden imposed
by union security agreements. The
free exercise of religious profession
or belief is superior to contract
rights.
4. Non-disqualification
government office
from
local
For lack of votes, law disqualifying

religious leaders from public office is
held valid. As per free exercise clause it
is invalid for it requires a religious test
for qualification. Dean Pangalangan:
There should be no distinction between
ordinary believer and the Pope; if the
former can hold office, why not the
latter. [Pamil v. Teleron, (1978)].

1. Conscientiously opposed to war in any
form.
2. Opposition is based
training and belief.
upon
religious
3. Objection is sincere. (See Cassious Clay

vs US)
Note: Meaning of religious training and
belief: WON it is sincere and meaningful
and occupies a place in the life of its
possessor parallel to that filled by the
orthodox belief in God. (US vs. Seeger, 380
US 163). This expands the meaning of
religion to cover not just recognized sects
but also personal beliefs akin to
traditional religion.
III.TESTS
A. Clear and Present Danger Test
Ebralinag vs. Div. Superintendent:
The existence of a grave and present danger
of a character both grave and imminent, of
a serious evil to public safety, public
morals, public health or any other
legitimate interest, that the state has a
right to prevent.
Page 124 of 313
American Bible Society v. City of

Manila, (1957):
The power to tax the exercise of the
privilege is the power to control or
suppress its enjoyment. Those who
can tax the exercise of religious
practice can make its exercise so
costly as to deprive it of the
resources
necessary
for
its
maintenance.
B. Compelling State Interest Test
Chapter XI. Liberty of Abode

and Travel
I. LIBERTY OF ABODE
II. RIGHT TO TRAVEL
III. RIGHT TO RETURN TO ONES COUNTRY
I. LIBERTY OF ABODE
Rubi vs. Provincial Board (1919):
"Liberty" as understood in democracies, is
not license; it is "Liberty regulated by law."
None of the rights of the citizen can be

taken away except by due process of law.
The government's measure in relocating the
Manguianes, a nomadic people with a
wayfaring life and without permanent
individual property is necessary both in the
interest of the public as owner of the lands
about which they are roving and for the
proper accomplishment of the purposes
and objectives of the government. For as
people accustomed to nomadic habit, they
will always long to return to the mountains
and follow a wayfaring life, and unless a
penalty is provinced for, you can not make
them live together and the noble intention
of the Government of organizing them
politically
will
come
to
naught.
Furthermore, their relocation (and the
imposition that they are not allowed to
emigrate to some other places under
penalty of imprisonment) is a proper
restraint to their liberty, they being taught
and guided in Tigbao to improve their living
conditions, and improve their education. In
short, everything is being done from them
in order that their advancement in
civilization and material prosperity may be
assured.
law from one locality to another within the

country, then officialdom can hold the same
club over the head of any citizen.
II. RIGHT TO TRAVEL

Manotok vs. CA (1986):
RIGHT
NOT
ABSOLUTE:
The
Constitutional Right to Travel under Sec. 5,
Art. IV of the 1973 Consitution is not an
Absolute Right, and can only be impaired
upon lawful order of the court, or when
necessary in the interest of national
security, public safety or public health.
Releasing the petitioner on bail and that as
a condition he make himself available at all
times is a valid restriction on his right to
travel, as to allow him to travel, especially
abroad, will make the order of the court
nugatory, as the court's jurisdiction cannot
extend beyond the Philippines.
III.RIGHT TO RETURN TO ONES

COUNTRY
Marcos vs. Manglapus (1989):
The threats to the government, to which the
return of the Marcoses has been viewed to
provide a catalytic effect, have not been
shown to have ceased. The President has
unstated residual powers which are implied
from the grant of executive power and
which are necessary for her to comply with
her duties under the Constitution. One of
her duties is to protect and promote the the
interest and welfare of the people. Her
decision to bar the return of the Marcoses
and subsequently, the remains of Mr.
Marcos at the present time and under
present circumstances is in compliance
with this bounden duty.
Villavicencio vs. Lukban (1919):

The executive of a municipality does not
have the right to force citizens of the
Philippine Islands to change their domicile
from one locality to another. Law defines
power, and there is no law nor regulation
that allows a mayor or a police chief to
restrain the liberty of abode of citizens of
the Philippines. If any official can send a
prostitute against her wishes and under no
Page 125 of 313
The right of the individual is necessarily

subject to reasonable restraint by general
law for the common good. The Liberty of the
citizens may be restrained in the interest of
the public health, or of the public order and
safety, or otherwise within the proper scope
of the police power.
Chapter XI. Liberty of Abode and Travel
Chapter XII. RA 9372: Human Security Act
Chapter XII. RA 9372: Human Security Act*

RELEVANT PROVISIONS VIS--VIS CONSTITUTIONAL GUARANTEES
CRITICISM
If terrorism is defined by result, then how
can a conspiracy to commit the section 3
offense arise?
Surveillance of suspects and interception

and recording of communications, 7
ARTICLE
III,
Section
3,
1987
CONSTITUTION
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.
2. Any evidence obtained in violation of
this or the preceding section shall be
inadmissible for any purpose in any
proceeding.
Upon written order of the Court of Appeals,

The provisions of RA 4200 to the
contrary notwithstanding Intercept and
record, with the use of any mode, form, kind
or type of electronic or other surveillance
equipment of intercepting and tracking
devices, or with the use of any other suitable
ways and means for that purpose, any
communication,
message,
conversation,
discussion, or spoken or written words
between members of a judicially declared
and
outlawed
terrorist
organization,
association or group of persons or of any
person charged with or suspected of the
crime of terrorism or of conspiracy to
commit terrorism.
Proscription of Terrorist Organizations,
Association or Group of Persons, 17
Any organization, association or group of
persons organized for the purpose of
engaging in terrorism, or which although not
organized for this purpose, actually uses the
acts to terrorize shall, upon application of the
Department of Justice before a competent
Regional Trial Court, with due notice and
opportunity to be heard given to the
organization, association or group of persons
concerned, be declared as a terrorist and
outlawed organization, association, or group
of persons by the court.
Note: to terrorize to commit the crime of

terrorism?
Periods of Detention without Judicial (sic)
Warrant of Arrest, 18
o
The provisions of Article 125 of the

Revised Penal Code to the contrary
notwithstanding, any police or law
enforcement personnel, who, having been
duly authorized in writing by the AntiTerrorism Council has taken custody of a
person charged with or suspected of the
crime of terrorism or the crime of
conspiracy to commit terrorism shall,
without incurring any criminal liability
for delay in the delivery of detained
persons
to
the
proper
judicial
authorities, deliver said charged or
suspected person to the proper judicial
ARTICLE III, 1987 Constitution

Section 4. No law shall be passed abridging
the freedom of speech, of expression, or of
the press, or the right of the people
peaceably to assemble and petition the
government for redress of grievances.
Section 8. The right of the people, including
those employed in the public and private
sectors, to form unions, associations, or
societies for purposes not contrary to law
shall not be abridged.
Section 18. 1) No person shall be detained
solely by reason of his political beliefs and
aspirations.
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.
Art. 125., REVISED PENAL CODE
Delay in the delivery of detained persons to
the proper judicial authorities. The
penalties provided in the next preceding
article shall be imposed upon the public
officer or employee who shall detain any
person for some legal ground and shall fail
to deliver such person to the proper judicial
authorities within the period of; twelve (12)
hours, for crimes or offenses punishable by
Page 126 of 313
REPUBLIC ACT 9327

Conspiracy to Commit Terrorism, 4
authority within a period of three (3)

days counted from the moment the said
charged or suspected person has been
apprehended or arrested, detained, and
taken into custody by the said police, or
law enforcement personnel.
Periods of Detention in the Event of an

Actual or Imminent Terrorist Attack, 19
o
Situation contemplated: Bail is granted

because evidence of guilt is not strong
Court may, upon application of the
prosecution, limit the right to travel of the
accused to within the municipality or city
where he resides or where the case is
pending, in the interest of national
security and public safety;
May also be placed under house arrest by
order of the court at his or her usual
place of residence; while under house
arrest, he/she may not use telephones,
cellphones,
emails,
computers,
the
internet
or
other
means
of
communication with people outside the
residence until otherwise ordered by the
court.

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. XXX
2.
In all criminal prosecutions, the
until the contrary is proved,
_____________________________________________
* Acknowledgment: Thank you to professor
Te for allowing us to substantially lift the
materials from his report on the HSA.
Page 127 of 313
light penalties, or their equivalent; eighteen

(18) hours, for crimes or offenses
punishable by correctional penalties, or
their equivalent and thirty-six (36) hours,
for crimes, or offenses punishable by
afflictive or capital penalties, or their
equivalent.
suspects may be detained for more than

3 days without the written approval of the
Human Rights Commission or judge of
the nearest court.
Note: Law is silent as to the MAXIMUM

PERIOD OF DETENTION
Restriction on Travel, 26
o
Chapter XII. RA 9372: Human Security Act
BATAS PAMBANSA BLG. 880

AN ACT ENSURING THE FREE EXERCISE BY
THE PEOPLE OF THEIR RIGHT PEACEABLY
TO
ASSEMBLE
AND
PETITION
THE
GOVERNMENT
FOR
OTHER
PURPOSES
Section 1. Title - This Act shall be known as
"The Public Assembly Act of 1985."
Section 3. Definition of terms - For purposes of

this Act:
(a) "Public
assembly"
means
any
rally,
demonstration, march, parade, procession
or any other form of mass or concerted
action held in a public place for the purpose
of presenting a lawful cause; or expressing
an opinion to the general public on any
particular issue; or protesting or influencing
any state of affairs whether political,
economic or social; or petitioning the
government for redress of grievances.
The
processions,
rallies,
parades,
demonstrations,
public
meetings
and
assemblages for religious purposes shall be
governed by local ordinances: Provided,
however, That the declaration of policy as
provided in Section 2 of this Act shall be
faithfully observed.
The definition herein contained shall not
include picketing and other concerted action
in strike areas by workers and employees
resulting from a labor dispute as defined by
the Labor Code, its implementing rules and
regulations, and by the Batas Pambansa
Bilang 227.
(b) "Public place" shall include any highway,
boulevard, avenue, road, street, bridge or
other thoroughfare, park, plaza, square,
and/or any open space of public ownership
where the people are allowed access.
(c) "Maximum tolerance" means the highest
degree of restraint that the military, police
and other peace keeping authorities shall
observe during a public assembly or in the
dispersal of the same.
(d) "Modification of permit" shall include the
change of the place and time of the public
assembly, rerouting of the parade or street
march, the volume of loud-speakers or
sound system and similar changes.
Section 4. Permit when required and when not
required - A written permit shall be required for
any person or persons to organize and hold a
public assembly in a public place. However, no
permit shall be required if the public assembly
shall be done or made in a freedom park duly
established by law or ordinance or in private
property, in which case only the consent of the

owner or the one entitled to its legal possession
is required, or in the campus of a governmentowned and operated educational institution
which shall be subject to the rules and
regulations of said educational institution.
Political meetings or rallies held during any
election campaign period as provided for by law
are not covered by this Act.
Section 5. Application requirements - All
applications for a permit shall comply with the
following guidelines:
(a) The applications shall be in writing and
shall include the names of the leaders or
organizers; the purpose of such public
assembly; the date, time and duration
thereof, and place or streets to be used for
the intended activity; and the probable
number of persons participating, the
transport and the public address systems to
be used.
(b) The application shall incorporate the duty
and responsibility of applicant under Section
8 hereof.
(c) The application shall be filed with the office
of the mayor of the city or municipality in
whose jurisdiction the intended activity is to
be held, at least five (5) working days before
the scheduled public assembly.
(d) Upon receipt of the application, which must
be duly acknowledged in writing, the office
of the city or municipal mayor shall cause
the same to immediately be posted at a
conspicuous place in the city or municipal
building.
Section 6. Action to be taken on the application (a) It shall be the duty of the mayor or any
official acting in his behalf to issue or grant
a permit unless there is clear and
convincing
evidence that the public
assembly will create a clear and present
danger to public order, public safety, public
convenience, public morals or public health.
(b) The mayor or any official acting in his behalf
shall act on the application within two (2)
working days from the date the application
was filed, failing which, the permit shall be
deemed granted. Should for any reason the
mayor or any official acting in his behalf
refuse to accept the application for a permit,
said application shall be posted by the
applicant on the premises of the office of the
mayor and shall be deemed to have been
filed.
(c) If the mayor is of the view that there is
imminent and grave danger of a substantive
evil warranting the denial or modification of
the permit, he shall immediately inform the
applicant who must be heard on the matter.
(d) The action on the permit shall be in writing
and served on the application within twentyfour hours.
(e) If the mayor or any official acting in his
behalf denies the application or modifies the
terms thereof in his permit, the applicant
Page 128 of 313
Section 2. Declaration of policy - The

constitutional right of the people peaceably to
assemble and petition the government for
redress of grievances is essential and vital to the
strength and stability of the State. To this end,
the State shall ensure the free exercise of such
right without prejudice to the rights of others to
life, liberty and equal protection of the law.
Appendix: BP 880
Section 7. Use of public thoroughfare - Should

the proposed public assembly involve the use,
for an appreciable length of time, of any public
highway, boulevard, avenue, road or street, the
mayor or any official acting in his behalf may, to
prevent grave public inconvenience, designate
the route thereof which is convenient to the
participants or reroute the vehicular traffic to
another direction so that there will be no serious
or undue interference with the free flow of
commerce and trade.
Section 8. Responsibility of applicant - It shall
be the duty and responsibility of the leaders and
organizers of a public assembly to take all
reasonable measures and steps to the end that
the intended public assembly shall be conducted
peacefully in accordance with the terms of the
permit. These shall include but not be limited to
the following:
(a) To inform the participants of their
responsibility under the permit;
(b) To police the ranks of the demonstrators in
order to prevent non-demonstrators from
disrupting the lawful activities of the public
assembly;
(c) To confer with local government officials
concerned and law enforcers to the end that
the public assembly may be held peacefully;
(d) To see to it that the public assembly
undertaken shall not go beyond the time
stated in the permit; and
(e) To take positive steps that demonstrators do
not molest any person or do any act unduly
interfering with the rights of other persons
not participating in the public assembly.
Section 9. Non-interference by law enforcement
authorities - Law enforcement agencies shall not
interfere with the holding of a public assembly.
However, to adequately ensure public safety, a
law enforcement contingent under the command
of a responsible police officer may be detailed

and stationed in a place at least one hundred
(100) meter away from the area of activity ready
to maintain peace and order at all times.
Section 10. Police assistance when requested It shall be imperative for law enforcement
agencies, when their assistance is requested by
the leaders or organizers, to perform their duties
always mindful that their responsibility to
provide proper protection to those exercising
their right peaceably to assemble and the
freedom of expression is primordial. Towards
this end, law enforcement agencies shall observe
the following guidelines:
(a) Members of the law enforcement contingent
who deal with the demonstrators shall be in
complete uniform with their nameplates and
units to which they belong displayed
prominently on the front and dorsal parts of
their uniform and must observe the policy of
"maximum tolerance" as herein defined;
(b) The members of the law enforcement
contingent shall not carry any kind of
firearms but may be equipped with baton or
riot sticks, shields, crash helmets with visor,
gas masks, boots or ankle high shoes with
shin guards;
(c) Tear gas, smoke grenades, water cannons,
or any similar anti-riot device shall not be
used unless the public assembly is attended
by actual violence or serious threats of
violence, or deliberate destruction of
property.
Section 11. Dispersal of public assembly with
permit - No public assembly with a permit shall
be dispersed. However, when an assembly
becomes violent, the police may disperse such
public assembly as follows:
(a) At the first sign of impending violence, the
ranking officer of the law enforcement
contingent shall call the attention of the
leaders of the public assembly and ask the
latter to prevent any possible disturbance;
(b) If actual violence starts to a point where
rocks or other harmful objects from the
participants are thrown at the police or at
the non-participants, or at any property
causing damage to such property, the
ranking officer of the law enforcement
contingent
shall
audibly
warn
the
participants that if the disturbance persists,
the public assembly will be dispersed;
(c) If the violence or disturbances prevailing as
stated in the preceding subparagraph
should not stop or abate, the ranking officer
of the law enforcement contingent shall
audibly issue a warning to the participants
of the public assembly, and after allowing a
reasonable period of time to lapse, shall
immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or
participant shall also be made during the
public assembly unless he violates during
the assembly a law, statute, ordinance or
any provision of this Act. Such arrest shall
Page 129 of 313
may contest the decision in an appropriate

court of law.
(f) In case suit is brought before the
Metropolitan Trial Court, the Municipal Trial
Court, the Municipal Circuit Trial Court, the
Regional Trial Court, or the Intermediate
Appellate Court, its decisions may be
appealed to the appropriate court within
forty-eight (48) hours after receipt of the
same. No appeal bond and record on appeal
shall be required. A decision granting such
permit or modifying it in terms satisfactory
to the applicant shall, be immediately
executory.
(g) All cases filed in court under this Section
shall be decided within twenty-four (24)
hours from date of filing. Cases filed
hereunder shall be immediately endorsed to
the executive judge for disposition or, in his
absence, to the next in rank.
(h) In all cases, any decision may be appealed to
the Supreme Court.
(i) Telegraphic appeals to be followed by formal
appeals are hereby allowed.
Appendix: BP 880
be governed by Article 125 of

Penal Code, as amended:
(e) Isolated acts or incidents of
branch of the peace during
assembly shall not constitute
dispersal.
Appendix: BP 880
the Revised
disorder or
the public
a group for
Section 12. Dispersal of public assembly without

permit - When the public assembly is held
without a permit where a permit is required, the
said public assembly may be peacefully
dispersed.
Section 15. Freedom parks - Every city and

municipality in the country shall within six
months after the effectivity of this Act establish
or designate at least one suitable "freedom park"
or mall in their respective jurisdictions which, as
far as practicable, shall be centrally located
within the poblacion where demonstrations and
meetings may be held at any time without the
need of any prior permit.
In the cities and municipalities of
Metropolitan Manila, the respective mayors shall
establish the freedom parks within the period of
six months from the effectivity of this Act.
Section 16. Constitutionality - Should any
provision of this Act be declared invalid or
unconstitutional, the validity or constitutionality
of the other provisions shall not be affected
thereby.
Section 17. Repealing clause - All laws, decrees,
letters of instructions, resolutions, orders,
ordinances or parts thereof which are
inconsistent with the provisions of this Act are
hereby
repealed,
amended,
or
modified
accordingly.
Section 18. Effectivity - This Act shall take
effect upon its approval.
Approved, October 22, 1985.
- end of Constitutional Law II -
Page 130 of 313
Section 13. Prohibited acts - The following shall

constitute violations of this Act:
(a) The holding of any public assembly as
defined in this Act by any leader or organizer
without having first secured that written
permit where a permit is required from the
office concerned, or the use of such permit
for such purposes in any place other than
those set out in said permit: Provided,
however, That no person can be punished or
held criminally liable for participating in or
attending an otherwise peaceful assembly;
(b) Arbitrary
and
unjustified
denial
or
modification of a permit in violation of the
provisions of this Act by the mayor or any
other official acting in his behalf.
(c) The unjustified and arbitrary refusal to
accept or acknowledge receipt of the
application for a permit by the mayor or any
official acting in his behalf;
(d) Obstructing,
impeding,
disrupting
or
otherwise denying the exercise of the right to
peaceful assembly;
(e) The unnecessary firing of firearms by a
member of any law enforcement agency or
any person to disperse the public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed
within one hundred (100) meters from the
area of activity of the public assembly or on
the occasion thereof;
1. the carrying of a deadly or offensive
weapon or device such as firearm,
pillbox, bomb, and the like;
2. the carrying of a bladed weapon and the
like;
3. the malicious burning of any object in
the streets or thoroughfares;
4. the carrying of firearms by members of
the law enforcement unit;
5. the interfering with or intentionally
disturbing the holding of a public
assembly by the use of a motor vehicle,
its horns and loud sound systems.
Section 14. Penalties - Any person found guilty

and convicted of any of the prohibited acts
defined in the immediately preceding Section
shall be punished as follows:
(a) violation of subparagraph (a) shall be
punished by imprisonment of one month
and one day to six months;
(b) violations of subparagraphs (b), (c), (d), (e),
(f), and item 4, subparagraph (g) shall be
punished by imprisonment of six months
and one day to six years;
(c) violation of item 1, subparagraph (g) shall be
punished by imprisonment of six months
and one day to six years without prejudice
to prosecution under Presidential Decree No.
1866;
(d) violations of item 2, item 3, or item 5 of
subparagraph (g) shall be punished by
imprisonment of one day to thirty days.
Table of Contents
ADMINISTRATIVE LAW
CHAPTER I. PRELIMINARY
CONSIDERATIONS
A. Definitions
C. Modes of Creation of
D. When is an Agency
Administrative?
CHAPTER III. JUDICIAL REVIEW

AND ENFORCEMENT OF AGENCY
ACTION
A. Considerations
1. Basis
2. Factors to consider in
Judicial Review
3. Doctrines applicable to
4. General Rule
5. Exceptions
6. When Judicial Review Is Valid
despite Finality of
Administrative Decisions
133
133
133
134
134
134
134
134
134
134
134
134
137
137
137
137
137
7. Availability of Judicial Review

B. Four Important Doctrines in
Judicial Review
1. Primary Jurisdiction
2. Exhaustion of Administrative
Remedies
3. Qualified Political Agency
4. Ripeness
1. General Rule
3. Law-Fact Distinction
4. Question of Law
5. Question of Fact
1. Certiorari
2. Prohibition
3. Mandamus
4. Declaratory relief
5. Habeas Corpus
6. Writ of Amparo
7. Habeas Data
8. Injunction as Provisional
Remedy
1. Res Judicata; Final Judgment
143
143
143
144
145
145
145
146
146
146
146
146
147
148
148
148
149
150
150
151
151
151
152
152
152
137
137
137
137
137
138
139
140
140
140
141
142
142
142
142
142
142
142
143
Page 132 of 313
ADMINISTRATIVE LAW
CHAPTER II. POWERS OF

A. Quasi-legislative (Rule-making)
Powers)
1. Definition
2. Non-delegation doctrine
3. Legislative Delegation
a. Requisites of a valid
delegation
b. A sufficient standard
c. Form of the sufficient
standard
B. Quasi-Judicial (Adjudicatory)
Powers
1. Definition
2. Source
3. Requisites for Valid Exercise
4. General Rule
5. What Quasi-Judicial Powers
Include
6. Investigative Powers
7. Subpoena Powers
8. Power to Cite in Contempt
9. Warrants of Arrest
10. Administrative Searches
11. Due Process
12. Notice and Hearing
13. Administrative and Judicial
Proceedings Arising from the
Same Facts
14. Rules of Evidence
133
133
133
Chapter I. Preliminary Considerations

POLITICAL LAW
LECTURES
FACULTY EDITOR
ACADEMICS COMMITTEE
Carmi Tugday
Joey Capones
Edel Cruz
Samantha Poblacion
SUBJECT EDITORS
Jason Mendoza

EDITOR-IN-CHIEF
ADMINISTRATIVE LAW
DEPUTY HEAD
Rania Joya
LEAD WRITER

LAYOUT HEAD
HEAD
-------Kae Guerrero
Sherwin Dwight Ebalo

Therese Anne Cunanan
-------Leo Zulueta
WRITER
Administrative Law
Chapter I. Preliminary
Considerations
A. DEFINITIONS
B. HISTORICAL CONSIDERATIONS
C. MODES
OF
CREATION
OF
D. WHEN IS AN AGENCY ADMINISTRATIVE?
E. TYPES OF ADMINISTRATIVE AGENCIES
C. Modes
of
Creation
of
1. 1987 Constitution
(e.g. CSC, Comelec, COA, CHR, Commission
on Appointments, Judicial and Bar Council
and NEDA)
2. Legislative Enactment
A. Definitions
1. Administrative Law is that branch of
modern law under which the executive
department of the government,
acting in a quasi-legislative or quasijudicial capacity, interferes with the
conduct of the individual for the
purpose of promoting the well-being of
the
community
(DEAN
ROSCOE
POUND)
2. Administrative Agencies are the
organs of government, other than a
court and other than legislature, which
affects the rights of private parties
either through adjudication or rulemaking.
3. Executive Order/ Authority of law
1. Why did administrative agencies come

about?
Growing complexities of modern life
Multiplication of number of subjects
needing government regulation; and
Increased difficulty of administering
laws [Pangasinan Transportation v
Public Service Commission (1940)]
2. Why
are
administrative
agencies
needed? Because the government lack:
Time,
Expertise, and
Organizational aptitude for effective
and continuing regulation of new
developments in society (STONE)
(e.g. Fact-finding Agencies)
D. When
is
administrative?
an
agency
1. Where
its
function
is
primarily
regulatory
EVEN IF it conducts hearings and
determines controversies to carry
out its regulatory duty.
2. On its rule-making authority, it is
administrative when it does not have
discretion to determine what the law
shall be but merely prescribes details
for the enforcement of the law.
1.
Government grant or gratuity, special

privilege (e.g. Bureau of Lands, Phil.
Veterans Admin., GSIS, SSS, PAO);
2.
3.
4.
Carrying out the actual business of

government
(e.g.
BIR,
Customs,
Immigration, Land Registration Authority);
Service for public benefit (e.g. Philpost,
PNR, MWSS, NFA, NHA);
Regulation of businesses affected with

public
interest
(e.g.
Insurance
Commission, LTFRB, NTC, HLURB);
Regulation of private businesses and

individuals (e.g. SEC);
6. Adjustment of individual controversies
because of a strong social policy
involved (e.g. ECC, NLRC, SEC, DAR, COA).
5.
Page 133 of 313
ADMINISTRATIVE LAW
(e.g. NLRC, SEC, PRC, Social Security

Commission, Commission on Immigration
and Deportation, Philippine Patent Office,
Games and Amusement Board, Board of
Energy, and Insurance Commission)
Chapter II. Powers of Administrative Agencies
Chapter II. Powers of

A.
b. A sufficient standard:
i. Defines legislative policy, marks
its limits, maps out its boundaries
and specifies the public agency to
apply it; and
ii. Indicates
the
circumstances
under
which
the
legislative
command is to be effected. [Santiago
v COMELEC (1997); ABAKADA Guro
List v Ermita (2005)]
c. Form of the sufficient standard:
i. Express
ii. Implied [Edu v Ericta (1970)]
iii. Embodied in other statutes on the
same matter and not necessarily in
the same law being challenged.
[Chiongbian v Orbos (1995)]
i. Ascertainment of Fact
ii. Filling in of Details
iii. Fixing of Rates, Wages, Prices
iv. Licensing Function, and
v. Administrative Rule-Making
i.
Ascertainment of Fact. A statute

may give to non-judicial officers:
power to declare the existence of
facts which call into operation
the statutes provisions and
may grant them and their
subordinate officers power to
ascertain
and
determine
appropriate facts as a basis of
procedure in the enforcement of
laws.
[Lovina v Moreno (1963)] Such
functions are merely incidental
to the exercise of power granted
by law to clear navigable
streams
of
unauthorized
obstructions.
They
can
be
conferred
upon
executive
officials provided the party
affected is given the opportunity
to be heard.
ii.
Filling in of details
For necessity and as a means of
enforcement
and
execution
[Alegre v Collector of Customs
(1920)]
The powers of administrative agencies are:

Quasi-legislative (Rule-making),
Quasi-judicial (Adjudicatory), and
Determinative.
A. Quasi-Legislative
Powers
(Rule-making)
1. Definition.
The authority delegated by the law-making
body to the administrative agency to adopt
rules and regulations intended to carry out
the provisions of a law and implement
legislative policy.
2. Non-delegation doctrine.
Potestas delegata non delegare potest. What
has been delegated cannot be delegated.
3. Legislative Delegation.
a. Requisites for a valid delegation
i. The law must be complete in itself
and must set forth the policy to be
executed
iii. Fixing of rates, wages, prices
Page 134 of 313
ADMINISTRATIVE LAW
QUASI-LEGISLATIVE (RULE-MAKING)
POWERS)
1. DEFINITION
2. NON-DELEGATION DOCTRINE
3. LEGISLATIVE DELEGATION
a. REQUISITES
OF
A
VALID
DELEGATION
b. A SUFFICIENT STANDARD
c. FORM
OF
THE
SUFFICIENT
STANDARD
d. PERMISSIBLE DELEGATION
B. QUASI-JUDICIAL
(ADJUDICATORY)
POWERS
1. DEFINITION
2. SOURCE
3. REQUISITES FOR VALID EXERCISE
4. GENERAL RULE
5. WHAT
QUASI-JUDICIAL
POWERS
INCLUDE
6. INVESTIGATIVE POWERS
7. SUBPOENA POWERS
8. POWER TO CITE IN CONTEMPT
9. WARRANTS OF ARREST
10. ADMINISTRATIVE SEARCHES
11. DUE PROCESS
12. NOTICE AND HEARING
13. ADMINISTRATIVE
AND
JUDICIAL
PROCEEDINGS ARISING FROM THE
SAME FACTS
14. RULES OF EVIDENCE
C. DETERMINATIVE POWERS
ii. The law must fix a standard, the

limits of which are sufficiently
determinate or determinable, to
which the delegate must conform
Sec. 2(3), 1987 Admin Code. Rate

means any charge to the public for a
service open to all and upon the same
terms, including individual or joint
rates, tolls, classification or schedules
thereof, as well as communication,
mileage, kilometrage and other special
rates which shall be imposed by law of
regulation to be observed and followed
by any person.
Sec. 9, 1987 Admin Code. Public
Participation.
(2) In the fixing of rates, no rule or final
order shall be valid unless the proposed
rates shall have been published in a
newspaper of general circulation at least
2 weeks before the first hearing thereon.
iv. Licensing Function

Sec. 17, 1987 Admin Code. Licensing
Procedure. (1) When the grant,
renewal, denial or cancellation of a
license is required to be preceded by
notice and hearing, the provisions
concerning contested cases shall apply
insofar as practicable.
(2) Except in cases of willful violation of
pertinent laws, rules and regulations or
when public security, health, or safety
requires otherwise, no license may be
withdrawn, suspended, revoked or
annulled without notice and hearing.
Sec. 18, 1987 Admin Code. Nonexpiration of License. Where the
licensee has made timely and sufficient
application for the renewal of a license
with reference to any activity of a
continuing nature, the existing license

shall not expire until the application
shall have been finally determined by
the agency.
Sec. 2(10), 1987 Admin Code. License
includes the whole or any party of any
agency permit, certificate, passport,
clearance,
approval,
registration,
charter,
membership,
statutory
exemption or other form of permission,
or regulation of the exercise of a right or
privilege.
Sec.
2(11),
1987
Admin
Code.
Licensing includes agency process
involving the grant, renewal, denial,
revocation, suspension, annulment,
withdrawal,
limitation,
amendment,
modification or conditioning or a
license.
When is notice and hearing

required in licensing? Only if it
is a contested case. Otherwise,
it can be dispensed with.(e.g.
drivers licenses).
Gonzalo Sy Trading v Central
Bank (1976): No expiry date does
not
mean
the
license
is
perpetual. A license permit is a
special privilege, a permission or
authority to do what is within its
terms. It is always revocable.
v. Administrative Rule-making
o Types of Administrative Rules:
a. Supplementary legislation
b. Interpretative legislation
c. Contingent legislation
a. Supplementary legislation
Pertains to rules and regulations to
fix details in the execution of a
policy in the law. e.g. IRRs of the
Labor Code.
b. Interpretative legislation
Pertains to rules and regulations
construing or interpreting the
provisions of a statute to be
enforced and they are binding on all
concerned until they are changed,
i.e. BIR Circulars.
GENERAL DISTINCTIONS FROM
LEGISLATIVE RULES
Legislative Rules
Promulgated
pursuant to its quasilegislative
/
rulemaking functions.
Create a new law, a
Interpretative Rules
Passed pursuant to its
quasi-judicial capacity.
Merely
clarify
the
Page 135 of 313
ADMINISTRATIVE LAW
Generally, the power to fix rates

is a quasi-legislative function.
However, it becomes judicial
when the rate is applicable
only to an individual.
Can the power to fix rates be
delegated to a common carrier or
other public service? NO. The
latter may propose new rates,
but these will not be effective
without the approval of the
administrative agency. [KMU v
Garcia (1994)]
What are considered in the fixing
of rates? (1) the present
valuation of all the property of a
public utility, and (2) the fixed
assets. The property is deemed
taken and condemned by the
public at the time of filing the
petition, and the rate should go
up and down with the physical
valuation
of
the
property.
[Ynchausti
v
Public
Utility
Commissioner (1922)]
new policy, with the

force and effect of
law.
Need publication.
So long as the court
finds
that
the
legislative rules are
within the power of
the
administrative
agency to pass, as
seen in the primary
law, then the rules
bind the court. The
court cannot question
the
wisdom
or
correctness of the
policy contained in
the rules.
Due process involves
whether the parties
were
afforded
the
opportunity
to
be
notified and heard
before the issuance of
the ruling.
meaning of a pre-existing
law
by
inferring
its
implications.
Need not be published.
The court may review
their correctness of the
interpretation of the law
given
by
the
administrative body, and
substitute its own view of
what is correct to the
administrative body. If it
is not within the scope of
the
administrative
agency, court can only
invalidate the same but
not substitute its decision
or interpretation or give
its own set of rules.
Due process means that
the body observed the
proper
procedure
in
passing rules.
Restrictions on interpretative
regulations: (a) does not change
the character of a ministerial
duty, (b) does not involve
unlawful use of legislative or
judicial power.
Administrative interpretations:
may eliminate construction
and uncertainty in doubtful
cases.
When
laws
are
susceptible of two or more
interpretations,
the
administrative agency should
make known its official position.
Administrative
construction/
interpretation not controlling
as to the proper construction of
a statute, but generally it is
given great weight, has a very
persuasive influence and may
actually be regarded by the
courts as the controlling factor.
Administrative interpretation is
merely advisory; Courts finally
determine what the law means.
c. Contingent legislation
Pertains to rules and regulations
made by an administrative authority
on the existence of certain facts or
things upon which the enforcement
of the law depends.
o
Requisites
of
a
administrative rule
authorized by law
valid
within the scope or authority

of law
reasonableness
promulgated in accordance
with prescribed procedure
Publication Rules
Administrative rules and
regulations are subject to the
publication and effectivity
rules of the Admin Code in
relation to the Civil Code.
EO 200 requires publication
of laws in the Official Gazette
or in a newspaper of general
circulation. Publication is
indispensable, especially if
the rule is general.
EXCEPTIONS:
Interpretative rules
Internal regulations (i.e.
regulating personnel)
Letters of instructions
issued by administrative
superior to subordinates
Effectivity:
15
days
after
publication, not 15 days from
date of filing with the UP Law
Center.
EXCEPTIONS:
Different date is fixed by law
or specified in the rule.
In case of imminent danger
to public health, safety and
welfare.
Penal Rules
Sec. 6, 1987 Admin Code. Omission
of Some Rules. (2) Every rule
establishing an offense or defining
an act which, pursuant to law is
punishable as a crime or subject to
a penalty shall in all cases be
published in full text.
a) The law itself must declare

the act as punishable and
must also define or fix the
penalty for the violation.
b) Can administrative bodies
make penal rules? NO. Penal
statutes are exclusive to the
legislature and cannot be
delegated.
Administrative
rules and regulations must
not include, prohibit or
punish acts which the law
does not even define as a
criminal
act.
[People
v
Maceren (1977)]
Page 136 of 313
ADMINISTRATIVE LAW
c) People v Que Po Lay, (1954):

If a rule is penal, it must be
published before it takes
effect.
B. Quasi-Judicial
Powers
(Adjudicatory)

1. Definition.
The
power
of
the
administrative agency to determine
questions of fact to which the legislative
policy is to apply, in accordance with
the standards laid down by the law
itself.
2. Source. Incidental to the power of
regulation but is often expressly
conferred by the legislature through
specific provisions in the charter of the
agency.
DISTINCTIONS FROM JUDICAL
PROCEEDINGS
Administrative
Judicial
Inquisitorial
Adversarial
Liberally applied
Nature and
Extent
of
Decision
Decision limited
to matters of
general concern
Follow
technical
rules in the
Rules
of
Court
Decision
includes
matters
brought as
issue by the
parties
The parties
are only the
private
litigates
Parties
The agency itself

may be a party
to
the
proceedings
before it
3. Requisites for Valid Exercise:

a. Jurisdiction
b. Due process
4. General Rule: A tribunal, board or
officer exercising judicial functions acts
without jurisdiction if no authority has
been conferred by law to hear and
decide cases.
a. Jurisdiction to hear is explicitly or
by necessary implication, conferred
through the terms of the enabling
statute.
b. Effect of administrative acts outside
jurisdictionVOID.
5. Quasi-judicial powers include:
a. Investigative
6. Investigative powers. Administrative

agencies
power
to
conduct
investigations and hearings, and make
findings and recommendations thereon
are inherent in their functions as
Findings of facts by administrative

bodies which observed procedural
safeguards (e.g. notice and hearing
parties, and a full consideration of
evidence) are accorded the greatest
respect by courts
7. Subpoena powers. All agencies with

quasi-judicial functions have the
power to issue subpoena even if the
charter is silent as to such power.
Why? Adjudicative power will be
rendered inutile if there is no subpoena
power.
Test for valid enforcement of

subpoena: [Evangelista v Jarencio
(1975)]
(a) Within the authority of the
agency.
(b) Demand not too indefinite.
(c) Information reasonably relevant.
8. Power to cite in contempt. This power

must be expressly granted in the
charter (ex. PD 902-A creating the SEC).
If there is no grant, the agency must
go to the RTC. Why? Because the
power to cite in contempt is
inherently judicial.
Contempt power can be used for
quasi-judicial functions (but NOT
ministerial
ones)
[Guevarra
v
COMELEC (1958)]
9. Warrants of arrest. Administrative
agencies cannot issue warrants of
arrest.
Only a judge may issue
warrants. [Salazar v Achacoso (1990)]
EXCEPTION: Deportation of illegal and
undesirable aliens following a final
order of deportation. [Qua Chee Gan v
Deportation Board (1963)]
Two ways of deporting:

i. Commissioner of Immigration (
Sec 37 of CA618)
Page 137 of 313
ADMINISTRATIVE LAW
Kind
of
Proceedings
Nature
of
Proceedings
Rules
of
Procedure
b. Subpoenas
c. Power to Cite in Contempt
d. Warrants of Arrest (only upon final
order of deportation)
e. Administrative Searches
f. Imposition of fines and penalties
ii. President after due investigation

(Sec 69 of Admin Code)
Can
the
Commissioner
issue
warrants of arrest?
Issuance of the warrants of arrest by
the Commissioner, solely for the
purpose of investigation and before
a final order of deportation is
issued, conflicts with paragraph 3,
Sec. 1, Art. III of the 1935
Constitution, which states that the
power to determine probable cause
for warrants of arrest is limited to
judges. Warrants of arrest issued
solely
for
the
purpose
of
investigation and before a final order
of deportation is issued are therefore
null and void. Notice and bonds are
sufficient to ensure that the subject
will appear at the hearing without
prejudice to more drastic measures
in case of recalcitrant respondents.
[Vivo v Montesa (1968)]
sworn complaints of a single

individual. The essential requisite of
probable
cause
is
absent
(Implication: the Commissioner may
issue warrants of arrest upon
finding of probable cause).
Harvey
v
Defensor-Santiago
(1988].
The Commissioner can arrest aliens
upon a warrant issued by him and
deported upon warrant issued by the
same after a determination of the
existence of a ground for deportation
by the Board of Commissioners.
Deportation
proceedings
are
administrative in nature, not penal,
but merely preventive. Thus, it need
not be conducted strictly in
accordance with ordinary court
proceedings. The requirement of
probable cause, determined by a
judge,
does
not
extend
to
deportation proceedings. What is
essential however is that (1) there be
a specific charge against the alien,
(2) there be a fair hearing
conducted, and (3) the charge be
substantiated
by
competent
evidence
Lucien Tran Van Nghia v Liwag

(1989).
In this case, the arrest and
detention by the CID preparatory to
the deportation proceedings was
illegal.
Here, the particular
circumstances place doubt on the
propriety of the arrest. The Mission
Order was issued on the basis of
Harvey or Qua Chee Gan? Qua

Chee Gan prevails. It is supported
by more recent cases. Note also that
Salazar was decided en banc, while
Harvey was decided by a division.
10. Administrative Searches. Warrantless

non-emergency inspection of residential
and commercial premises are significant
intrusions upon the interests protected
by the 4th Amendment.
Camara v Municipal Court, (1967): It
is surely anomalous to say that the
individual and his private property
are
fully
protected
by
the
constitution only when he is
suspected of criminal behavior.
Warrants should normally be sought
only after entry is refused unless
there is a citizen complaint or other
satisfactory reason for securing
immediate entry.
There is no justification for relaxing
4th Amendment safeguards for
commercial
establishments.
Warrants are a necessary and
tolerable limitation on the right to
enter upon and inspect places of
business.
Limitations
on
administrative
subpoenas of corporate books and
documents are:
Page 138 of 313
ADMINISTRATIVE LAW
Salazar v Achacoso (1990)

Art. 38 of the Labor Code allowing
the Secretary of Labor the power to
issue
warrants
of
arrest
is
unconstitutional. Only a judge may
issue search or arrest warrants.
The SC reaffirms the following
principles: (1) Under Sec.2, Art. III of
the Constitution, only judges may
issue search warrants and warrants
of arrest; and (2) the exception is in
cases of deportation of illegal and
undesirable
aliens,
whom
the
President or the Commissioner may
order arrested, following a final
order of deportation, for the purpose
of the same.
The cases of Harvey and Lucien

Tran Van Nghia, however, diverge
from the Qua Chee Gan ruling.
The Qua Chee Gan ruling is

reinforced by a case more recent
than the Harvey and Lucien cases.
i. Limited in scope.
ii. Relevant in purpose.
iii. Specific directives so compliance will
not be unreasonably burdensome.
iv. Subpoena must designate the
needed documents.
v. Subpoena may not be made and
enforced in the field.
vi. Subpoenaed party may obtain
judicial review of reasonableness of
demand prior to suffering penalties
for refusal to comply.
vii. The particular agencys demand for
access will be measured against a
flexible standard of reasonableness
that takes into account the public
need for effective enforcement of
regulations. [See v Seattle (1967)]
there must be a chance to seek

reconsideration.
Presence of a party at a trial is not
always the essence of due process.
All that the law requires is the
element of fairness; that the
parties be given notice of trial and
i. an opportunity to be heard
ii. in administrative proceedings,
an
opportunity
to
seek
reconsideration
iii. an opportunity to explain ones
side
Rivera v CSC, (1995): The law, in

prescribing a process of appeal to a
higher level, contemplates that the
reviewing officer is a person different
from the one who issued the
appealed decision. Otherwise, the
review becomes a farce; it is
rendered meaningless.
Is a trial necessary? NO. WON to

hold
an
adversarial
trial
is
discretionary.
Parties
cannot
demand it as a matter of right.
[Vinta Maritime v NLRC (1978)].
Bachrach Motors v CIR, (1978): The

right of a party to confront and
cross-examine opposing witness is a
fundamental right which is part of
due process. If without his fault,
this right is violated, he is entitled to
have the direct examination stricken
off the record.
Evidence on record must be fully

disclosed to the parties. [American
Inter-Fashion v Office of
the
President (1991)] BUT respondents
in administrative cases are not
entitled to be informed of findings of
investigative committees but only of
the decision of the administrative
body. [Pefianco v Moral (2000)]
Due process is violated when:

i. There is failure to sufficiently
explain the reason for the
decision rendered; or
ii. If not supported by substantial
evidence;
iii. And imputation of a violation
and imposition of a fine despite
absence of due notice and
hearing. [Globe Telecom v NTC
(2004)].
[Nos. 11-14 covers

Administrative
Procedure (Asked 9 times in the Bar)]
11. Due Process.
Ang Tibay v CIR (1950) lays down
the cardinal primary rights:
i. Right to a hearing (Includes the
right of a part to present his own
case and submit evidence in
support thereof)
ii. The tribunal must consider the
evidence presented
iii. Decision must be supported by
evidence.
iv. Evidence must be substantial.
Substantial Evidence: such
relevant
evidence
as
a
reasonable mind might accept as
adequate
to
support
a
conclusion, even if other minds
equally reasonable would opine
otherwise
v. Decision must be rendered on
the evidence presented at the
hearing or at least contained in
the record and disclosed to the
parties affected
vi. Independent consideration of
judge (Must not simply accept
the views of a subordinate)
vii. Decision rendered in such a
manner as to let the parties
know the various issues involved
and the reasons for the decision
rendered.
UP Board of Regents v CA, (1999):

Due process does not always entail
notice and hearing prior to the
deprivation of a right. Hearing may
occur after deprivation, as in
emergency cases, in which case,
Page 139 of 313
ADMINISTRATIVE LAW
blunting effect on the conviction.

Due process should be upheld.
Conviction does not ex proprio vigore
justify automatic suspension.
Self-incrimination. The right against

self-incrimination may be invoked by
the respondent at the time he is called
by the complainant as a witness.
However, if he voluntarily takes the
witness stand, he can be cross
examined; but he may still invoke the
right when the question calls for an
answer which incriminates him for an
offense other than that charged. [People
v Ayson (1989)]
13. Administrative and judicial proceedings

arising from the same facts.
The practice in the Philippines has
been to allow an administrative
proceeding and a judicial proceeding
to take place at the same time so
long
as
the
2
actions
are
independent of each other.
Galang v CA (1961): The difference

in
the
proceeding
(one
administrative, the other criminal) is
not legal incompatibility, but merely
physical incompatibility.
They
involve different causes of action
and
therefore
can
proceed
simultaneously.
Villanos v Subido (1971): Material

matters in an administrative case
are not necessarily relevant in the
criminal case. Findings in criminal
cases cannot be conclusive for
administrative purposes. There are
defenses, excuses, and attenuating
circumstances of value in admin
proceedings that are not admissible
in criminal cases which can have a
Police Commission v Lood, (1980):

Acquittal in the criminal case does
not carry with it relief from
administrative liability. Different
standards
apply.
The
administrative case requires only a
preponderance
of
evidence
to
establish administrative guilt; the
criminal case requires proof beyond
reasonable doubt of the criminal
charge.
Villanos v Subido (supra): There can

be a conviction in a criminal case
and
an
acquittal
in
the
administrative case.
14. Rules of Evidence. Generally, apply the

specific rules of the administrative
agency. In the absence thereof, apply
the general rules on procedure.
However, administrative agencies
are not bound by the technical rules
of evidence of ordinary courts, so
long as due process is observed.
(the Pervasive Principle) Why? To
allow administrative agencies to act
with speed and flexibility.
The Pervasive Principle applies in at
least three areas:
i. Admissibility: Generally, agencies
are not bound by the technical
rules of admissibility.
ii. Judicial
Notice:
Administrative
bodies may take into account not
only such evidence as may be
presented by the parties in the
determination of the case. They
may also make their inquiry into
facts at issue, and take judicial
notice of certain other matters.
iii. Quantum of Evidence:
Only
substantial evidence is required to
support a decision.
Phil. Movie Pictures Workers Assoc v

Premier Productions (1953): Ocular
inspection is not equivalent to a trial
or presentation of evidence, as it is
only an auxiliary remedy. Parties
are still entitled to hearing. But if
the issue can be resolved through
ocular inspection, there is no
prohibition.
Page 140 of 313
ADMINISTRATIVE LAW
12. Notice and Hearing.

When required:
i. When
the
law
specifically
requires it.
ii. When it affects a persons status
and liberty.
When not required:
i. Urgent reasons.
ii. Discretion is exercised by an
officer vested with it upon an
undisputed fact.
iii. If it involves the exercise of
discretion and there is no grave
abuse.
iv. When rules to govern future
conduct
of
persons
or
enterprises, unless law provides
otherwise.
v. In the valid exercise of police
power.
Can the order of testimony be

changed? YES, it is within the
discretion of the court. Such a
relaxed procedure is especially true
in administrative bodies. In the
broad interest of justice, the
administrative body may except
itself from technical rules and apply
such suitable procedure as shall
promote the objectives. [Maceda v
ERB (1991)]
When are findings of fact of

administrative
agencies
not
conclusive upon the courts?
i. When the decision was rendered
by an almost evenly divided
court and the division was
precisely on the facts as borne
out by the evidence. [Gonzales v
Victory Labor Union (1969)]
ii. When the decision was rendered
in consequence of fraud,
imposition or mistake, other
than error of judgment in
estimating the value or effect of
the evidence. [Ortua v Singson
(1934)]
iii. When the decision is not
supported
by
substantial
evidence. [Manahan v People
(1988)]
iv. When the findings are based
merely
on
their
position
papers.
There is no trial
through position papers where
the adversarial process would
ensure a better presentation and
appreciation of the evidence.
[PAL v Confessor (1994)]
Universal Camera v NLRC, (1951):

The SC will intervene only when the
standard appears to have been
misapprehended
or
grossly
misapplied.
books, papers, and the attendance of

witnesses
and
compelling
their
testimony
e. Summary power to apply compulsion
or force to effect a legal purpose without
a judicial warrant to authorize such
action, e.g. fields of health inspection,
abatement of nuisances.
ADMINISTRATIVE LAW
Determinative powers are: (D.E.E.D.S.)
a. Enabling to permit or allow
something which the law undertakes to
regulate, e.g. licenses
b. Directing i.e. assessment by the BIR
or Customs
c. Dispensing to exempt from a general
prohibition, or relieve an individual or
corporation from an affirmative duty,
e.g. authority of zoning
d. Examining investigatory power;
consists in requiring production of
Page 141 of 313
Chapter III. Judicial Review and

Enforcement of Agency Action
A.
B.
C.
E.
A. Considerations
1. Basis
There is an underlying power in the courts
to scrutinize the acts of administrative
agencies exercising quasi-judicial power on
questions of law and jurisdiction even
though no right of review is given by the
statute.
Judicial review keeps the administrative
agency within its jurisdiction and protects
substantial rights of parties affected by its
decisions.
Judicial review is proper in
cases of lack of jurisdiction, error of law,
grave abuse of discretion, fraud or
collusion, or in case the administrative
decision is corrupt, arbitrary or capricious.
[San Miguel Corp. v Labor Secretary (1975)]
2. Factors to
Review:
Consider
in
Judicial
a. If what is involved is a question of

constitutionality, judicial review is
available.
b. Intention of Congress prevails.
EXCEPTION: when the Constitution
requires or allows it, judicial review may
be granted or withheld as Congress
chooses. Thus, the law may provide that
a
determination
made
by
an
administrative agency shall be final and
irreviewable. In such a case, there is no
violation of due process.
However, Art. 8 Sec. 1 par. 2 of the
1987 Constitution, which provides that
the judicial power includes the power of
the courts of justice to determine WON
there has been a grave abuse of
discretion amounting to lack or excess
of jurisdiction on the part of any
government agency or instrumentality,
clearly means that judicial review of
administrative decisions cannot be
denied the courts when there is an
allegation
of
grave
abuse
of
discretion.
c. Nature of problem involved:
i. Right (should be protected by law) vs
Privilege
(can
be
unilaterally
withdrawn)
ii. Question of Law v Question of Fact
(refer to discussion on Extent of
Judicial Review)
d. Finality of the administrative decision.
3. The doctrines of forum shopping, litis

pendentia and res judicata also
apply to administrative agencies.
4. General Rule
Courts will refuse to interfere with
proceedings undertaken by administrative
bodies or officials in the exercise of
administrative functions.
5. Exceptions
Administrative
proceedings
may
be
reviewed by the courts upon a showing that
the board or official:
a. Has
gone
beyond
his
statutory
authority;
b. Exercised unconstitutional powers;
Page 142 of 313
ADMINISTRATIVE LAW
D.
CONSIDERATIONS
1. BASIS
2. FACTORS TO CONSIDER IN JUDICIAL
REVIEW
3. DOCTRINES
APPLICABLE
TO
4. GENERAL RULE
5. EXCEPTIONS
6. WHEN JUDICIAL REVIEW IS VALID
DESPITE
FINALITY
OF
ADMINISTRATIVE DECISIONS
7. AVAILABILITY OF JUDICIAL REVIEW
FOUR
IMPORTANT
DOCTRINES
IN
JUDICIAL REVIEW
1. PRIMARY JURISDICTION
2. EXHAUSTION OF ADMINISTRATIVE
REMEDIES
3. QUALIFIED POLITICAL AGENCY
4. RIPENESS
EXTENT OF JUDICIAL REVIEW
1. GENERAL RULE
2. GENERAL PRINCIPLES
3. LAW-FACT DISTINCTION
4. QUESTION OF LAW
5. QUESTION OF FACT
6. QUESTION OF DISCRETION
MODES OF JUDICIAL REVIEW
1. CERTIORARI
2. PROHIBITION
3. MANDAMUS
4. DECLARATORY RELIEF
5. HABEAS CORPUS
6. AMPARO
7. HABEAS DATA
8. INJUNCTION
AS
PROVISIONAL
REMEDY
ENFORCEMENT OF AGENCY ACTION
1. RES JUDICATA; FINAL JUDGMENT
2. WRIT OF EXECUTION; MANDAMUS
Chapter III. Judicial Review and Enforcement of Agency Action
c. Clearly acted arbitrarily and without

regard to his duty, or with grave abuse
of discretion; or
d. The decision is vitiated by fraud,
imposition or mistake. [Manuel v Villena
(1971)]
6. When judicial review is valid despite

finality of administrative decisions:
a. Decision is wrong;
b. Manifestly arbitrary, capricious, unjust
decision;
c. Not based upon any reasonable
interpretation of law;
d. Vitiated by fraud, imposition or
mistake;
e. Violates or fails to comply with some
mandatory provision of law;
f. Administrative body or officer has gone
beyond its/his statutory authority;
g. Administrative
agency
exercised
unconstitutional powers;
h. Lack of jurisdiction; Grave abuse of
discretion.
of
Judicial
B. Four Important
Judicial Review
1.
2.
3.
4.
in
Primary Jurisdiction
Exhaustion of Administrative Remedies
Qualified Political Agency
Ripeness
1. Doctrine of Primary Jurisdiction or

Preliminary Resort
a. General rule. Courts will not intervene if
the question to be resolved is one which
requires the expertise of administrative
agencies and the legislative intent on
the matter is to have uniformity in the
rulings.
It can only occur where there is a
concurrence of jurisdiction between the
court and the administrative agency.
Review
a. Whether the enabling statute permits

judicial review. There is no problem
when the statute itself expressly grants
or prohibits judicial review. But when it
is silent, generally, judicial review is
available
b. Whether the plaintiff has standing.
c. Whether the defendant is the proper
defendant. The defendant could either
be a private party, or the very
administrative agency before whom the
right is being applied.
d. Whether the forum is the proper
forum. The forum is usually provided
for in the enacting statute. In its
absence, the Uniform Appeals Act is
applicable. It is very seldom that the
forum
is
in
the
RTC,
since
administrative agencies are usually
given the rank equal to or higher than
the RTC.
e. Whether the time for the filing of the
case is proper. The period for filing the
case must also be considered in view of
the statute of limitations, as well as the
period required by the statute or rules
for the filing of appeals.
f. Whether the case is ripe for
adjudication. When a person has not
exhausted
all
the
administrative
remedies available to him, his case is
Doctrines
It is a question of the court yielding to

the agency because of the latters
expertise, and does not amount to
ouster of the court. [Texas & Pacific
Railway v Abilene (1907)
o
It is the recent jurisprudential trend

to apply the doctrine of primary
jurisdiction in many cases that
demand the special competence of
administrative agencies. It may occur
that the Court has jurisdiction to take
cognizance of a particular case, which
means that the matter involved is also
judicial in character. However, if the
determination of the case requires the
expertise,
specialized
skills
and
knowledge of the proper administrative
bodies because technical matters or
intricate questions of facts are involved,
then relief must first be obtained in
an administrative proceeding before
a remedy will be supplied by the
courts even though the matter is
within the proper jurisdiction of a
court. [Industrial Enterprises v CA
(1990)]
Well-entrenched is the rule that courts

will not interfere in matters which are
addressed to the sound discretion of the
Page 143 of 313
ADMINISTRATIVE LAW
7. Availability
depends on:
said to be not ripe for judicial review

yet. He is said to have invoked the
intervention of the court prematurely.
Although this is not a jurisdictional
requirement, failure to abide by the
doctrine affects petitioners cause of
action.
government agency entrusted with the

regulation of activities coming under
the special and technical training and
knowledge
of
such
agency.
Administrative agencies are given a
wide latitude in the evaluation of
evidence and in the exercise of their
adjudicative
functions,
latitude
which includes the authority to take
judicial notice of facts within their
special competence [(Quiambao vs CA
(2005))
o
GMA vs ABS CBN (2005) offers a

practical reason: In this era of clogged
docket courts, the need for specialized
administrative boards with the special
knowledge and capability to hear and
determine
promptly
disputes
on
technical matters has become well nigh
indispensable. Between the power
lodged in an administrative body and a
court, the unmistakable trend has been
to refer it to the former.
b. Requisites:
i. Administrative body and the regular
court have concurrent and original
jurisdiction
ii. Question to be resolved requires
expertise of administrative agency
iii. Legislative intent on the matter is to
have uniformity in rulings
iv. Administrative agency is performing
a quasi-judicial or adjudicatory
function (not rule-making or quasilegislative.) [Smart vs NTC (2003)]
c. Rationale: It is presumed that an
administrative agency, if afforded an
opportunity to pass upon a matter,
would decide the same correctly, or
correct any previous error committed in

its forum [Caballes v Sison (2004)]
d. When the Doctrine is Inapplicable:
i. If
the
agency
has
exclusive
jurisdiction
ii. When the issue is not within the
competence of the administrative
body to act on.
iii. When the issue involved is clearly a
factual question that does not
require
specialized
skills
and
knowledge for resolution to justify
the exercise of primary jurisdiction.
e. Effect. The case is not dismissed, but
merely suspended until after the
matters within the competence of the
administrative agency are threshed out
and determined. [Viadad vs RTC (1993)]
2. Doctrine
of
Exhaustion
Administrative Remedies
of
a. General Rule:
Where the law has
delineated the procedure by which
administrative appeal or remedy could
be effected, the same should be followed
before recourse to judicial action can be
initiated. [Pascual v Provincial Board
(1959)]
b. Requisites:
i. The
administrative
agency
is
performing a quasi-judicial function.
ii. Judicial review is available.
iii. The court acts in its appellate
jurisdiction.
c. Rationales:
i. Legal reason: The law prescribes a
procedure.
ii. Practical reason: To give the agency
a chance to correct its own errors
[and prevent unnecessary and
premature resort to the courts ;
iii. Reasons of comity: Expedience,
courtesy, convenience.
d. Exceptions
to
the
Doctrine
of
Exhaustion of Remedies:
Purely legal questions. [Castro v
Secretary (2001)]
Steps to be taken are merely
matters of form. [Pascual v Provincial
Board (1959)]
Administrative remedy not exclusive
but
merely
cumulative
or
concurrent to a judicial remedy.
[Pascual]
Page 144 of 313
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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, have been placed within the
special
competence
of
an
administrative body; in such case, the
judicial process is suspended pending
referral of such issues to the
administrative body for its view. And, in
such cases, the courts cannot arrogate
into itself the authority to resolve a
controversy, the jurisdiction over which
is initially lodged with an administrative
body of special competence. [Sherwill
vs Sitio Sto Nino (2005)]
e. Effect
of
Failure
to
Exhaust
Administrative Remedies:
Does not affect jurisdiction of the court.
The only effect of non-compliance is it
will deprive complainant of a cause of
action, which is a ground to dismiss.
But if not invoked at the proper time,

this ground is deemed waived.[Republic
v Sandiganbayan (1996)]
3. Doctrine of Qualified Political Agency

a. The act of the department head is
presumptively the act of the President
(as his alter ego), unless revoked by the
latter.
b. Example: The President - through his
duly constituted political agent and
alter ego, the DOTC Secretary - may
legally
and
validly
decree
the
reorganization of the Department. [Sec
of DOTC v Mabalot (2002)]
c. Exception: Where the law expressly
provides for exhaustion via an appeal to
the President. [Tan v Director of Forestry
(1983)]
4. Ripeness
a. When applied:
i. Administrative agencys decision is
final.
ii. Judicial
review
available/appropriate.
iii. Administrative agency exercising its
rule-making
or
quasi-legislative
function
b. Purpose [Abbot Laboratories v Gardner
(1967)]
i. To prevent courts, thru avoidance of
premature
adjudication,
from
entangling themselves in abstract
agreement
over
administrative
policies.
ii. To protect agencies from judicial
interference until a decision has
been formalized and its effect is felt
in a concrete way or the imminence
of the effect is demonstrable.
c. Two-fold test for a controversy to be ripe
[Abbot]
Fitness of the issue for judicial
decision.
Hardship
to
the
parties
of
withholding such court action.

1.
2.
3.
4.
General Rule
General Principles
Law-fact Distinction
Question of Law
a. General rule
b. What may be questioned?
c. Examples
5. Question of Fact
Page 145 of 313
ADMINISTRATIVE LAW
Validity and urgency of judicial

action or intervention. [Paat v CA
(1997)]
No other plain, speedy, adequate
remedy in the ordinary course of the
law. [Paat; Information Technology
Foundn v COMELEC (2004)]
Resort to exhaustion will only be
oppressive
and
patently
unreasonable. [Paat; Cipriano v
Marcelino (1972)]
Where the administrative remedy is
only permissive or voluntary and not
a prerequisite to the institution of
judicial proceedings. [Corpuz v
Cuaderno (1962)]
Application of the doctrine will only
cause great and irreparable damage
which cannot be prevented except
by taking the appropriate court
action. [Cipriano; Paat]
When it involves the rule-making or
quasi-legislative functions of an
administrative agency. [Smart v NTC
(2003)]
Administrative agency is in estoppel.
[Republic v Sandiganbayan (1996)]
Doctrine of qualified political agency
Subject of controversy is private
land in land case proceedings. [Paat]
Blatant violation of due process.
[Paat; Pagara v CA]
Where there is unreasonable delay
or official inaction. [Republic v
Sandiganbayan]
Administrative action is patently
illegal amounting to lack or excess
of jurisdiction. [Paat]
Resort to administrative remedy will
amount to a nullification of a claim.
[DAR v Apex Investment (2003); Paat]
No administrative review provided
by law. [Estrada v CA (2004)]
Issue
of
non-exhaustion
of
administrative remedies rendered
moot. [Estrada]
In
quo
warranto
proceedings.
[Corpus vs Cuaderno (1962)]
Law expressly provides for a
different
review
procedure.
[Samahang Magbubukid v CA (1999)]
a. Definition
b. General Rule
c. Examples
a. Discretionary Acts v Ministerial Acts
b. Judicial review of administrative
discretion v. Substitution of judicial
discretion for administrative
discretion
c. General rule
d. Rationale
e. Exception
f. Examples
1. General Rule
Laws creating administrative agencies and
providing for judicial review may indicate
the scope of that review.
Whether the
courts may inquire into questions of law, of
fact or of both as well as of administrative
discretion will depend on the enabling act.
3. Law-fact Distinction
a. There is no clear-cut line that separates
questions of law from questions of fact.
There may be cases where the issues
raised may easily be classified under
one or the other, but some cases may
involve mixed questions of law and fact;
b. Brandeis Doctrine of Assimilation of
Facts: Where what purports to be a
finding upon a question of fact is so
involved with and dependent upon a
question of law as to be in substance
and effect a decision on the latter, the
court will, in order to decide the legal
question, examine the entire record
including the evidence if necessary.
4. Question of Law
a. General rule: Questions of law are
subject to judicial review.
b. What may be questioned?
i. Constitutionality of the statute
creating the agency and granting its
powers;
ii. Validity of the agency action if
this transcend the limit established
by law; or
iii. Correctness
of
the
agencys
interpretation and application of
the law.
c. Examples:
i. Administrative officials action which
is based on a misconstruction of law
can be corrected and is not
conclusive upon the courts.
ii. When the conclusion drawn by an
administrative official from the facts
found is erroneous or not warranted
by law.
iii. Where the act of the administrative
official constitutes not only an
excess of regulatory power conferred
upon him, but also an exercise of
legislative power which he does not
have.
iv. Ysmael v CIR, (1960): The issue of
WON
an
Employer-Employee
relationship exists is a question of
law.
5. Question of Fact
a. Definition. A question of fact exists if
the issue involved is the existence of a
fact, the happening of an event, or
which of the two versions of the
happening of an event is correct.
b. General Rule: Finality is attached to
findings of fact of some agencies when
these findings are supported by
substantial evidence and as long as
there is no grave abuse of discretion.
c. Examples:
GENERAL RULE:
i. Mollaneda v Umacob, (2001):
It is not for the reviewing court to weigh
the conflicting evidence, determine the
credibility of witnesses, or otherwise
substitute its judgment for that of the
administrative
agency
on
the
sufficiency of evidence.
The court recognizes that the trial
court or administrative body, as a trier
of facts, is in a better position to assess
the demeanor of the witnesses and the
credibility of their testimonies as they
Page 146 of 313
ADMINISTRATIVE LAW
a. Questions of law are always reviewable

by the courts;
b. Substantial Evidence Rule: Findings of
fact, if based on substantial evidence,
are conclusive and binding on the
courts;
c. If the decision of a case is discretionary
on the part of the agency, courts can
review if the decision is attended with
capriciousness; and
d. Questions of jurisdiction are always
reviewable as they go into the question
of authority to decide.
were within its proximal view during

the hearing or investigation.
ii. Velasquez v Hernandez, (2004)
Administrative
proceedings
are
governed by the substantial evidence
rule.
A
finding
of
guilt
in
an
administrative case would have to be
sustained for as long as it is supported
by substantial evidence that the
respondent has committed the acts
stated in the complaint or formal
charge.
This is different from the quantum
of
proof
required
in
criminal
proceedings which necessitates a
finding of guilt of the accused beyond
reasonable doubt.
Ergo, the dismissal of the criminal
case will not foreclose administrative
action against respondent.
EXCEPTIONS:
i. Gonzales v Victory Labor Union,
(1969)
One circumstance where the court may
not accept the agencys findings of fact
is when the decision rendered by an
almost evenly divided court and the
division was precisely on the facts as
borne out by the evidence.
In such a situation the court, in
order to determine the substantiality of
the evidence, must consider evidence
not only in its quantitative but also
in its qualitative aspects. For, to be
substantial, evidence must first of all be
credible.
ii. Banco Filipino v
Central Bank,
(1991)
When there is grave abuse of
discretion amounting to lack of
jurisdiction, there is a justification for
the
courts
to
set
aside
the
administrative determination.
iii. PAL v. Confessor, (1994)
The court is inclined to review the
findings of fact of an administrative
official if they are not based on a
thorough examination of the parties
contending
claims
wherein
the
adversarial process would ensure a
better presentation and appreciation

of evidence.
a. Discretionary Acts v Ministerial Acts
Discretionary
When
applied
to
public functionaries,
discretion
may
be
defined as the power
or
right
conferred
upon them by law to
act officially under
certain circumstances,
according
to
the
dictates of their own
judgment
and
conscience and not
controlled
by
the
judgment of others.
Discretion
is
the
power to make a
choice
among
permissive actions or
policies.
The
very
essence
of
discretionary power is
that the person or
persons exercising it
may choose which of
several
courses
of
action
should
be
followed.
Ministerial
A ministerial act has
been defined as one
performed in response
to a duty which has
been
positively
imposed by law and its
performance required
at a time and in a
manner
or
upon
conditions specifically
designated, the duty to
perform
under
the
conditions
specified
not being dependent
upon
the
officers
judgment or discretion.
Ministerial duty is one
in respect to which
nothing is left to
discretion. It is a
simple, definite duty
arising
under
conditions admitted or
proved to exist, and
imposed by law.
b. Judicial
review
of
administrative
discretion v. Substitution of judicial
discretion for administrative discretion
o Questions of policy or discretion are
reviewable
only
for
unreasonableness, departure from
statutory standards, or lack of
evidentiary support; and questions
of wisdom, propriety or expediency
are for the agency and not for the
courts.
The court will not substitute its
discretion or judgment for that of
the administrative agency, but will
determine the lawfulness of its
action.
The ruling of an administrative
agency, on questions of law, while
not as conclusive as its findings of
facts, is nevertheless persuasive and
given much weight especially if the
agency is one of special competence
and experience.
Page 147 of 313
ADMINISTRATIVE LAW
iii. Universal Camera v NLRC, (1951)

The substantial evidence standard is
not modified in any way when officials
of an administrative agency disagree in
their findings.
c. General rule: In the exercise of

discretion lawfully given, the court will
not interfere.
d. Rationale: Recognition of the expertise
of the agency.
d. St. Martin Funeral Homes v. NLRC,

(1998): The special civil action of
certiorari is still the proper vehicle for
judicial review of the decision of the
NLRC.
A special civil action for certiorari
however is within the concurrent
original jurisdiction of the SC and CA
and it would be advantageous to the
aggrieved party to recourse from the
NLRC to CA as an initial step in the
process of judicial review.
e. Exception: If discretion was exercised in

a capricious, whimsical, arbitrary,
abusive, partial, and hostile manner.
f.
e. Purefoods Corp. v. NLRC, (1989): A

motion for reconsideration is a
remedy and since Purefoods filed a
motion for reconsideration beyond the
reglementary period, it should suffer the
consequences of its own negligence.
f.
Azores v. SEC, (1996): Failure of a party

to perfect his appeal in the manner and
within the period fixed by law renders
the decision sought to be appealed final,
with the result that no court can
exercise appellate jurisdiction to review
the decision.
2. Prohibition
The Modes of Judicial Review are:

1. Certiorari
2. Prohibition
3. Mandamus
5. Habeas Corpus
6. Amparo
7. Habeas Data
8. Injunction as provisional remedy
a. Nature. This action is preventive and

not for acts already performed. Issues
on the same grounds as certiorari must
be timely availed of.
1. Certiorari
a. Purpose: The purpose of a certiorari is
to set aside or nullify proceedings.
b. Requisites
i. Involves
question
of
lack
of
jurisdiction or grave abuse of
discretion
ii. No plain, adequate, and speedy
remedy available
iii. The administrative agency must be
performing a quasi-judicial function.
Certiorari cannot be invoked if what
is involved is merely a ministerial
function.
c. NOTE:
Certiorari
for
COMELEC
decisions is limited to Rule 65. For CSC
and COA decisions, the rules on
ordinary appeal apply.
b. Purpose. The purpose of prohibition is

to prohibit or stop proceedings.
c. Prohibition
is
broader
in
scope
compared to Certiorari because it
applies to agencies performing both
quasi-judicial and ministerial actions.
d. Requisites
i. Ground raised is lack of jurisdiction
or grave abuse of discretion;
ii. No plain, adequate and speedy
remedy available;
iii. Applies to agencies performing both
quasi-judicial
and
ministerial
functions.
e. Chua Hiong v. Deportation Board,
(1955): When the evidence submitted is
conclusive of his citizenship, the courts
should promptly enjoin the deportation
proceedings.
When the evidence is not conclusive
on either side, the citizenship issue
should be allowed to be decided first in
a judicial proceeding, suspending the
Page 148 of 313
ADMINISTRATIVE LAW
Examples:
i. Laguna Tayabas v PSC (1957)
The erroneous appreciation of the
significance of the facts before the
administrative agency does not mean
that the administrative agency had
abused its discretion. [
ii. PLDT v NTC, (1995)
Courts should not intervene in that
administrative process, save upon a
very clear showing of serious violation of
law or of fraud, personal malice or
wanton oppression.
Courts have none of the technical
and economic or financial competence
which
specialized
administrative
agencies have at their disposal.
administrative proceedings in the

meantime
that
the
alienage
or
citizenship is being determined in the
courts.
f.
Co v. Deportation Board, (1977): The

exception stated in Chua Hiong should
be allowed only in the sound discretion
of a competent court in a proper
proceeding
g. Simon, Jr. v. CHR, (1994): CHR had no

jurisdiction to issue the writ of
preliminary injunction since what is
involved is neither political nor civil
rights.
CHRs
contention
that
prohibition is moot and academic
cannot be sustained.
While it is true that prohibition as a
preventive remedy is not intended as a
remedy to restrain what has already
accomplished, the CHR, in this case,
has yet to promulgate its resolutions,
and the prohibition is intended to
prevent just that.
g. Policarpio v. Phil. Veterans Board,

(1956): Mandamus will lie only to
compel the board to take some action
when it refuses but it will not prescribe
the action to be taken. Mandamus will
not lie to review or control the action or
decision of the Board where such action
or decision is one resting in the
discretion of the Board and involves the
construction of the law and the
application of the facts thereto.
h. Tan v. Veterans Backpay Commission,
(1959): The Backpay Law enumerates
those not entitled to backpay, and no
prohibition is made against aliens in
receiving backpay. Having been satisfied
that Tan is not among those excluded
from the coverage of said law, it
becomes the ministerial duty of the
Commission to give due course to
petitioners application.
Province of Pangasinan v. Reparations
Commission, (1977): If one seeks to
settle contractual rights and obligations
and to regulate a course of conduct, the
remedy in this case is specific
performance. The difference between
the 2 remedies lies in their basis:
mandamus is based on the ministerial
duty imposed by law, while specific
performance is based on contract.
j.
Meralco
Securities
Corporation
v.
Savellano, (1982): Tax assessment is
discretionary, therefore, mandamus will
not lie. The Commissioner cannot be
compelled to impose tax assessment not
found by him to be due for that would
be tantamount to a usurpation of an
executive function.
3. Mandamus
a. Nature.
Mandamus
is
an
order
compelling a party to perform an act
arising out of a positive duty imposed
by law.
b. Mandamus will lie against a ministerial
duty when the official/agency refuses to
exercise its ministerial duty to act on its
quasi-judicial functions.
c. Mandamus will not lie to enforce a
contractual obligation. The remedy will
be specific performance.
d. Requisites:
i. Duty is ministerial.
ii. Petitioner has a clear, controlling
right.
iii. No other plain, speedy and adequate
remedy.
e. Blanco v. Board of Examiners, (1924):
Mandamus will not issue to control or
review the exercise of discretion of a
public officer. The act of confirming is
not a ministerial duty.
f.
Ng Gloc Liu v. Sec. of Foreign Affairs,

(1950): The issuance of a visa is a
discretionary function on the part of the
consul and carries with it the concern of
public safety. Mandamus only lies to
compel the performance of a ministerial
duty.
k. Cruz v. CA, (1996): Mandamus will not

issue to:
o
compel an official to do anything
which is not his duty to do or
o give the applicant anything to which
he is not entitled by law.
It is simply a command to exercise a
power already possessed and to perform
a duty already imposed.
l.
PRC v. De Guzman, (2004): Mandamus

is a command issuing from a court of
competent jurisdiction, in the name of
the state or the sovereign, directed to
some inferior court, tribunal, or board,
or to some corporation or person
requiring
the
performance
of
a
particular duty therein specified, which
duty results from the official station of
Page 149 of 313
ADMINISTRATIVE LAW
i.
the party to whom the writ is directed,

or from operation of law.
m. MMDA v. Concerned Citizens of Manila
Bay (2008) MMDAs obligation to
perform their duties as defined by law,
on one hand, and how they are to carry
out such duties, on the other, are two
different
concepts.
While
the
implementation
of
the
MMDAs
mandated tasks may entail a decisionmaking process, the enforcement of the
law or the very act of doing what the law
exacts to be done is ministerial in
nature and may be compelled by
mandamus.
A
continuing
mandamus
is
a
mandamus issued by the court under
extraordinary
circumstances
with
directives with the end of ensuring that
its decision would not be set to naught
by
administrative
inaction
or
indifference.
a. Purpose: To determine the construction,
validity and declaration of rights.
b. An action for declaratory relief must be
brought in the RTC. It is not among the
actions within the original jurisdiction
of the SC even if only questions of law
are involved.
c. Requisites.
1) Subject matter must be a deed, will,
contract or written instrument in
which petitioner is legally interested,
or law or governmental regulation
which affects his rights.
2) The terms of the written instrument
are, or the validity of the law or
regulation is doubtful and requires
judicial construction.
3) Petition is filed before breach or
violation of the instrument or
regulation.
4) There must be an actual justiciable

controversy between persons with
adverse interests.
5) Petitioner must have legal interest in
the controversy.
6) Controversy must be ripe for
adjudication
7) All administrative remedies have
been exhausted.
8) Adequate relief is not available
through other means or other forms
of action or proceeding.
d. When Not Applicable
In securing a judicial declaration of
citizenship.
Where petition for declaratory relief
is filed after the breach of law took
place.
Where petitioner never acquired any
interest in the object of the
controversy, and enjoyed no rights
which were violated.
Where declaratory relief would not
terminate
the
uncertainty
of
controversy.
Where the relief sought would be
determinative of issues rather
than a construction of definite
stated rights, status and other
relations commonly expressed in
written instruments since this
remedy is available only if it is
limited to a declaration of rights,
and not to a determination, trial or
judicial investigation of issues.
5. Habeas Corpus
a. Nature: The great writ of liberty is
intended as a speedy remedy to secure
the release of a person deprived of his
liberty.
A person detained upon the orders of an
agency may test the validity of his
detention through the privilege of the
writ of habeas corpus, which is a
constitutionally guaranteed right. (Art.
III, sec. 15, Consti.)
b. Requisites
i. There is illegal confinement or
detention.
ii. There is illegal restraint of liberty.
iii. Rightful custody of any person is
withheld from the person entitled
thereto.
c. Purpose: Secure the release of a person
deprived of his liberty, and test the
Page 150 of 313
ADMINISTRATIVE LAW
n. 2 Situations when a writ of mandamus

may
issue:
When
any
tribunal,
corporation, board, officer or person
unlawfully:
i. Neglects the performance of an act
which the law specifically enjoins as
a duty resulting from an office,
trust, or station; or
ii. Excludes another from the use and
enjoyment of a right or office to
which the other is entitled.
validity of detention as ordered by an

agency.
d. Mejoff v Director of Prisons, (1951): The
writ of habeas corpus will issue when:
an alien has been detained by the
DOJ for an unreasonably long
period of time after it has become
apparent that the deportation order
cannot be effectuated; and
no criminal charges have been
formally made or a judicial order
issued for his detention.
In such case, the order of deportation
which was not executed is functus
officio and the alien is being held
without authority of law.
e. Co v Deportation Board, (1977): Bail
renders a writ of habeas corpus moot
and academic, as the bail bond gives
petitioner liberty.
f.
6. Writ of Amparo
c. Philippine Version:
i. Rights protected: (1) right to life, (2)
liberty and (3) security of persons.
ii. The reason for limiting the coverage
of its protection only to the three
rights is that other constitutional
rights of our people are already
enforced through different remedies.
iii. It covers both actual and threatened
violations of such rights.
iv. It covers violations committed by
public officials or employees and
private individuals or entities.
(Annotation to the Writ of Amparo)
7. Habeas Data
a. Nature and Purpose: The writ of habeas
data is an independent remedy to
protect the right to privacy, especially
the right to informational privacy.
The writ of habeas data is also a
remedy to protect the right to life,
liberty or security of a person from
violation or threatened violation by an
unlawful act or omission of a public
official or employee or of a private
individual or entity. It complements the
writ of amparo and writs of habeas
corpus. (Annotation to the Writ of
Habeas Data)
a. Nature: Amparo, literally to protect, is

designed to protect those other
fundamental rights in Constitution not
covered by habeas corpus. (The
Rationale for the Writ of Amparo)
8. Injunction as Provisional Remedy
b. Purposes/Types:
i. For the protection of personal
freedom, equivalent to the habeas
corpus writ (called amparo libertad);
ii. For the judicial review of the
constitutionality of statutes (called
amparo contra leyes);
iii. For the judicial review of the
constitutionality and legality of a
judicial decision (called amparo
casacion);
iv. For
the
judicial
review
of
administrative
actions
(called
amparo administrativo); and
v. For the protection of peasants
rights derived from the agrarian
reform process (called amparo
agrario). (Annotation to the Writ of
Amparo)
b. Purpose.
i. To prevent the commission of
certain acts complained of; or
ii. To order the continued performance
of some act for the purpose of
preventing further injury.
a. Nature: An ancillary remedy provided to

preserve the petitioners rights while
main action is pending.
c. Requisites:
i. Plaintiff
is
entitled
to
relief
demanded. The right to the writ is
clear when:
There is willful invasion of the
petitioners right, and the injury
is a continuing one; and 2)
effect of the writ is to reestablish
the
pre-existing
relation. [Lemi vs. Valencia
(1966)]
Commission or continuance of
an act complained of would
probably work injustice to him.
Page 151 of 313
ADMINISTRATIVE LAW
Lucien Tran Van Nghia v. Liwag, (1989):

The release of a detained person,
whether permanent or temporary,
renders a petition for the writ of habeas
corpus moot and academic, unless
there are restraints attached which
precludes his freedom.
Defendant, is doing, threatens

or about to do an act in
violation of petitioners rights
which may render the judgment
ineffective.
d. Honda v San Diego, (1966): Injunction

can only be issued by superior to an
inferior
body;
if
co-equals,
the
injunction cannot prosper.
e. Types
i. Preliminary Mandatory Injunction:
Plaintiff wants to compel defendant
to do something.
ii. Preliminary Injunction: To prevent or
stop
defendant
from
doing
something
iii. Restraining Order: Life span of 20
days, after which hearing is then
held to decide propriety of the
injunction.
iv. Permanent Injunction: If plaintiff
wins the case, injunction becomes
permanent (otherwise, the writ is
dissolved).
Collector vs. Reyes, (1957): The general
rule is that injunction cannot be issued
in tax collection. An exception is that if
the collection of the tax is prejudicial to
the interest of the government and of
the taxpayer, the CTA is authorized to
restrain the Collector from proceeding
with its collection.
g. Sec. 11, RA 1125 (An Act Creating the

Court of Tax Appeals): Who may appeal;
effect of appeal. xxx
No appeal taken by the Court of Appeals
from the decision of the Collector of
Internal Revenue or the Collector of
Customs shall suspend the payment,
levy, distraint, and or sale of any
property of the taxpayer for the
satisfaction of his tax liability as
provided by existing law; Provided,
however, That when in the opinion of
the Court the collection by the Bureau
of
Internal
Revenue
or
the
Commissioner
of
Customs
may
jeopardize
the
interest
of
the
Government and/or the taxpayer the
Court at any stage of the proceeding
may suspend the said collection and
require the taxpayer either to deposit
the amount claimed or to file a surety
bond for not more than double the
amount with the Court.

1. Res Judicata; Finality of Judgment
a. When it applies. The doctrine of res
judicata applies only to judicial or
quasi-judicial proceedings and not to
the exercise of purely administrative
functions. Administrative proceedings
are non-litigious and summary in
nature; hence, res judicata does not
apply.
[Nasipit Lumber Co. v NLRC
(1989)]
b. Requisites:
i. The former judgment must be final;
ii. It must have been rendered by a
court having jurisdiction over the
subject matter and the parties;
iii. It must be a judgment on the
merits; and
iv. There must be identity of parties,
subject matter and cause of action
[Ipekdijan Merchandising v CTA
(1963, Firestone Ceramics v CA
(1999), DBP v CA (2001)]
c. Effect.
Decisions
and
orders
of
administrative
bodies
rendered
pursuant
to
their
quasi-judicial
authority have, upon their finality, the
force and effect of a final judgment
within the purview of the doctrine of res
judicata, which forbids the reopening of
matters once judicially determined by
competent authorities.

a. General rule: Administrative agencies
performing
quasi-judicial
functions
have the implied power to issue writs of
execution.
b. EXCEPT: If the enabling law expressly
provides otherwise.
c. Apolega v Hizon, (1968): If the law is
silent, presume that the agency has the
power
to
enforce
its
decisions
emanating
from
its
quasi-judicial
powers.
d. The legislature may aid the enforcement
of administrative determination by
providing a penalty for failure to comply
therewith.
Also, direct and positive sanctions
(grant of subpoena power and contempt
powers) are afforded by provisions for
administrative or judicial processes to
Page 152 of 313
ADMINISTRATIVE LAW
f.
compel obedience or prevent violation of

the determination.
e. Administrative enforcement includes:
i. Revocation;
ii. Suspension;
iii. Refusal to renew license;
iv. Refusal to grant clearance paper to
ships;
v. Withholding or denying benefits;
vi. Imposing conditions seizure and
sale or destruction of property;
vii. Exclusion and deportation;
viii.Imposition and collection of fines
and penalties; and
ix. Summary enforcement without need
for adjudication:
Distraint of personal property or
levy
on
real
property
(Commissioner
of
Internal
Revenue);
Abatement
of
nuisance
(Secretary of Health); and
Sequestration of ill-gotten wealth
(PCGG);
What is the remedy if officials refuse to
implement a final and executory
judgment? Mandamus. [Vda. De Corpuz
v The Commanding General of the
Philippine Army (1978)]
ADMINISTRATIVE LAW
f.
g. Clavano v HLURB, (2002): Execution

must conform to that ordained or
decreed in the dispositive part of the
decision.
Where the order of execution is not in
harmony
with
and
exceeds
the
judgment which gives it life, the order
pro tanto has no validity.
- end of Administrative Law -
Page 153 of 313
Table of Contents

CHAPTER I. BASIC PRINCIPLES
I. Principles of Local Government
Law
A. State Policy, Principles of
Decentralization
B. Decentralization
C. Devolution
II. The Local Government Code
A. Effectivity
B. Scope
CHAPTER II. CREATION AND
DISSOLUTION OF LGUs
I. Creation
C. Authority to Create LGUs
D. Creation and Conversion of
LGUs
E. Plebiscite
F. Beginning of Corporate
Existence
II. Division and Merger; Abolition
B. Abolition
III. Settlement of Boundary Disputes
A. Jurisdictional Responsibility
for Settlement of Boundary
Dispute
B. Appeal
C. Maintenance of the Status
Quo
CHAPTER IV. LOCAL INITIATIVE

AND REFERENDUM
A. Definition
B. Requirements
C. Procedure
D. Effectivity of Local Propositions
E. Limitations on Initiatives
F. Limitations upon Local Legislative
Bodies
156
156
156
157
157
157
157
157
158
158
158
158
159
159
159
159
163
163
163
163
163
163
164
165
165
165
165
165
165
167
167
169
170
172
173
174
175
180
180
180
180
180
181
181
CHAPTER V. MUNICIPAL LIABILITY

A. Specific Provisions making LGUs
liable
B. Liability for Torts, Violation of the
Law and Contracts
CHAPTER VI.
INTERGOVERNMENTAL RELATIONS
NATIONAL GOVERNMENT AND
LGUs
I. Executive Supervision
II. Consultations
III. Relations with PNP
CHAPTER VII. LOCAL OFFICIALS
I. Elective Local Officials
A. Qualifications
D. Term of Office
F. Recall
G. Discipline
II. Appointive Local Officials
A. Appointments
B. Discipline
C. Removal
D. Officials Common to all
Municipalities, Cities and
Provinces
III. Provisions Applicable to Elective
and Appointive Officials
C. Prohibition against
Appointment
IV. Local Boards
CHAPTER VIII. LOCAL
GOVERNMENT UNITS
A. The Barangay
B. The Municipality
C. The City
D. The Province
182
182
182
184
184
185
186
187
187
187
188
190
190
192
194
195
200
200
201
202
202
202
202
203
204
204
204
204
204
204
205
205
205
206
206
CHAPTER IX. MISCELLANEOUS AND

FINAL PROVISIONS
A. Posting and Publication of
B. Penalties for Violation of Tax
Ordinances
CHAPTER X. APPLICATION OF LGC
TO AUTONOMOUS REGIONS AND
OTHER ENTITIES
I. ARMM
II. CAR
III. MMDA
207
207
207
207
208
208
208
208
Page 155 of 313
CHAPTER III. GENERAL POWERS

AND ATTRIBUTES OF LGUs
I. Powers in General
A. Sources
B. Classification
II. Political and Corporate Nature of
LGUs
III. Governmental Powers
A. General Welfare
C. Eminent Domain
F. Corporate Powers
156
Chapter I. Basic Principles

POLITICAL LAW
LECTURES
Carmi Tugday
Joey Capones
Edel Cruz
SUBJECT EDITORS
Jason Mendoza
FACULTY EDITOR
ACADEMICS COMMITTEE
Samantha Poblacion
HEAD

EDITOR-IN-CHIEF
Carmi Tugday
Rania Joya
LAYOUT HEAD
DEPUTY HEAD
-------Kae Guerrero
LEAD WRITER
Karl Landoy
Joanna Orbe
Khristine Mendoza
Ralph Catedral
-------Leo Zulueta
WRITERS
Local
Government Law
Sec. 4. The President of the Philippines shall

exercise
general
supervision
over
local
governments.
Provinces with respect to component cities and
municipalities, and cities and municipalities
with respect to component barangays
shall ensure that the acts of their

component units are within the scope of
their prescribed powers and functions.

I.
I.
PRINCIPLES OF LOCAL GOVERNMENT

LAW
A. STATE POLICY, PRINCIPLES OF
DECENTRALIZATION
B. DECENTRALIZATION
C. DEVOLUTION
THE LOCAL GOVERNMENT CODE
A.
EFFECTIVITY
B.
SCOPE
C.
RULES OF INTERPRETATION
I. PRINCIPLES
OF
GOVERNMENT LAW
Principles
Local Government Code (RA 7160)
of
Art. X, 1987 Consti.

Sec. 2. The territorial and political subdivisions
shall enjoy local autonomy.
Sec. 3. The Congress shall enact a local
government code which shall
o provide for a more responsive and
accountable local government structure
instituted
through
a
system
of
decentralization
with effective mechanisms of recall,

initiative, and referendum,
o allocate
among
the
different
local
government
units
their
powers,
responsibilities, and resources,
o and provide for the qualifications, election,
appointment and removal, term, salaries,
powers and functions and duties of local
officials,
o and all other matters relating to the
organization and operation of the local units.
Sec. 2 (c) It is likewise the policy of the State to

require all national agencies and offices to
conduct periodic consultations with:
appropriate local government units,
nongovernmental
and
people's
organizations,
and other concerned sectors of the

community before any project or program is
implemented
in
their
respective
jurisdictions.
B. Decentralization
Limbona v. Mangelin (1989): Now, autonomy
is either decentralization of administration
or decentralization of power. There is
decentralization of administration when
the
central
government
delegates
administrative
powers
to
political
subdivisions in order to broaden the base of
government power.
It relieves the central government of the

burden of managing local affairs and
enables it to concentrate on national
concerns.
Page 156 of 313
A. State
Policy,
Decentralization
LOCAL
Sec. 5. Each local government unit shall have

the power to create its own sources of revenues
and to levy taxes, fees and charges,
o subject to such guidelines and limitations as
the Congress may provide,
consistent with the basic policy of local

autonomy.
Such taxes, fees, and charges shall accrue
exclusively to the local governments.
The
President
exercises
"general
supervision" over them, but only to
"ensure
that
local
affairs
are
administered according to law." He
has no control over their acts in the
sense that he can substitute their
judgments with his own.
[Note: For more discussion on Supervision

v. Control, refer to Consti1 reviewer.]
Cf. Decentralization of power is the
abdication of political power in favor of LGUs
declared to be autonomous. There is selfimmolation
where
autonomous
government is accountable, not to the
central government, but to its constituents.
(note: not allowed by our Constitution.)
Pimentel v. Aguirre (2000): Sec. 1 of AO 372
(Adoption of Economy Measures in
Government for FY 1998), insofar as it
directs LGUs to reduce expenditures by at
least 25%, is a valid exercise of the
Presidents power of general supervision
over LGUs as it is advisory only.
Supervisory power, when contrasted with
control, is the power of mere oversight over
an inferior body; it does not include any
restraining authority over such body. (The
other doctrine in this case is under Power to
generate revenue, infra.)
C. Devolution
(asked in 1999)
II. THE LOCAL GOVERNMENT CODE

A. Effectivity
LGC, Sec. 536
January 1, 1992, unless otherwise
provided;
After complete publication in at least
one (1) newspaper of general
circulation.
B. Scope
RA 7160 (LGC), Sec. 4
The LGC shall apply to:
provinces
cities
municipalities
barangays
other political subdivisions as may be
created by law; and
to the extent herein provided, to
officials, offices, or agencies of the
national government.
LGC, Sec. 5
Sec. 5. Rules of Interpretation. - In the
interpretation of the provisions of this Code,
the following rules shall apply:
In case of doubt on any provision on a
power of an LGU:
Liberal interpretation
in favor of devolution of powers
in favor of existence of power
In case of doubt on any tax ordinance or
revenue measure:
Construed strictly against LGU
Construed liberally in favor of
taxpayer
Tax exemption, incentive or relief is
construed strictly against person
claiming it
General welfare provisions
Liberally interpreted to give more
powers to LGU in accelerating
economic
development
and
upgrading quality of life for the
people of the community
Rights and obligations existing on
effectivity of LGC:
Arising from contracts or other
source
Shall be governed by
original terms and conditions of
contract, OR
law in force at the time the
rights were vested
Resolution of controversies under the
LGC:
Where no legal
provision
or
jurisprudence applies
Resort to customs and traditions in
the place where the controversies
take place
Page 157 of 313
Refers to the act by which the national

government
confers
power
and
authority upon the various local
government units to perform specific
functions and responsibilities (Sec. 17,
LGC); the transfer of power and
authority from the National Government
to LGUs to enable them to perform
specific functions and responsibilities
(Art. 24, IRR of the LGC).
Chapter II. Creation and

Dissolution of LGUs
I.
CREATION
A. GENERAL PROVISIONS
B. SPECIFIC REQUIREMENTS
1. METROPOLITAN
POLITICAL
SUBDIVISIONS
2. HIGHLY URBANIZED CITIES AND
INDEPENDENT
COMPONENT
CITIES
3. AUTONOMOUS REGIONS
C. AUTHORITY TO CREATE LGUS
D. CREATION AND CONVERSION OF
LGUS
E. PLEBISCITE
F. BEGINNING
OF
CORPORATE
EXISTENCE
II. DIVISION AND MERGER; ABOLITION
A. DIVISION AND MERGER
B. ABOLITION
III. SETTLEMENT OF BOUNDARY DISPUTES
A. JURISDICTIONAL
RESPONSIBILITY
FOR SETTLEMENT OF BOUNDARY
DISPUTE
B. APPEAL
C. MAINTENANCE OF THE STATUS QUO
I. CREATION
(Art. X, 1987 Consti.)
Sec. 13. Local government units may:
group themselves,
consolidate or coordinate their efforts,

services, and resources
for purposes:
commonly beneficial to them
in accordance with law.

Sec. 14. The President shall provide for regional
development councils or other similar bodies
composed of local government officials, regional
heads of departments and other government
offices,
and
representatives
from
nongovernmental organizations within the regions:
for
purposes
of
administrative
decentralization
to strengthen the autonomy of the units

therein and
to accelerate the economic and social growth

and development of the units in the region.
1) Metropolitan Political Subdivisions
Sec. 11. The Congress may, by law, create
special metropolitan political subdivisions,
subject to a plebiscite as set forth in Section 10
hereof.
The component cities and municipalities:
shall retain their basic autonomy and
shall be entitled to their own local executive

and legislative assemblies.
The jurisdiction of the metropolitan authority
that will thereby be created shall be limited to
basic services requiring coordination.
2) Highly
Urbanized
Cities
Independent Component Cities
and
Sec.12. Cities that are highly urbanized, as

determined by law, and component cities whose
charters prohibit their voters from voting for
provincial elective officials,
shall be independent of the province.
The voters of component cities within a province,
whose charters contain no such prohibition,
shall not be deprived of their right to vote for
elective provincial officials.
3) Autonomous Regions
Sec. 15. 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.
Sec. 16. The President shall exercise general
supervision over autonomous regions to ensure
that laws are faithfully executed.
Sec.
17.
All
powers,
functions,
and
responsibilities not granted by this Constitution
or by law to the autonomous regions
shall be vested in the National Government.

Sec.18. 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 multi-sectoral 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.
Page 158 of 313
Sec. 10. 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.
Chapter II. Creation and Dissolution of LGUs
C. Authority
to
Create
Government Units
Local
requirements of its populace.
LGC, Sec. 6
A local government unit may be
o created, divided, merged, abolished, or its
boundaries substantially altered
either by law enacted by Congress in the

case of a province, city, municipality, or
any other political subdivision, OR
by ordinance passed by the sangguniang

panlalawigan
or
sangguniang
panlungsod concerned in the case of a
barangay located within its territorial
jurisdiction,
o subject
to
such
limitations
and
requirements prescribed in this Code.
D. Creation and Conversion of LGUs

Requirements
1. In
accordance
with
the
criteria
established in the LGC
2. Majority of the votes cast in a plebiscite
in the political units directly affected.
Purpose of plebiscite: to prevent
gerrymandering (i.e. the practice of
creating legislative districts to favor a
particular candidate or party) and
creation or abolition of units for purely
political purposes.
Criteria
E. Plebiscite
LGC, Sec. 10
No creation, division, merger, abolition,
or substantial alteration of boundaries
of local government units shall take
effect unless there is:
Law or ordinance
Approved by a majority of the votes
cast in a plebiscite called for the
purpose in the political unit or units
directly affected.
Said plebiscite shall be conducted
by the commission on elections
(COMELEC)
Within one hundred twenty (120)
days from the date of effectivity of
the law or ordinance effecting such
action, unless said law or ordinance
fixes another date.
F. Beginning of Corporate Existence

LGC, Sec. 14
Sec. 14. When a new local government unit is
created,
its corporate existence

o shall commence upon the election and
qualification of its chief executive and a
majority of the members of its
sanggunian,
o unless some other time is fixed therefor
by the law or ordinance creating it.
Pelaez v. Auditor General (1965): The

alleged power of the President to create
municipalities under Sec. 68 of the
Admin Code amounts to an undue
delegation of legislative power. The
authority
to
create
municipal
corporations
is
essentially
legislative in nature The power of
control of the President over executive
departments, bureaus or offices implies
no more than the authority to assume
directly the functions thereof or to
interfere in the exercise of discretion by
its officials. It does not include the
authority either to abolish or create
such.
However, in Municipality of Jimenez v.
Page 159 of 313
LGC, Sec. 7
As a general rule, the creation of a local
government unit or its conversion from one
level to another level shall be based on
verifiable indicators of viability and
projected capacity to provide services, to
wit:
1. Income. - must be sufficient, based on
acceptable standards, to provide for all
essential government facilities and
services
and
special
functions
commensurate with the size of its
population.
2. Population.
total
number
of
inhabitants
within
the
territorial
jurisdiction of the local government unit
concerned.
3. Land Area. - must be:
Contiguous
o unless it comprises two or more
islands or is separated by a LGU
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
Compliance attested to by:

Department of Finance (DOF)
National Statistics Office (NSO)
Lands Management Bureau (LMB) of
the Department of Environment and
Natural Resources (DENR).
Baz (1996), the SC held that the

Municipality of Sinacban1 possesses
legal personality. Where a municipality
created as such by executive order is
later impliedly recognized and its acts
are accorded legal validity, its creation
can no longer be questioned.
Sinacban has attained de jure status2
by virtue of the Ordinance appended to
the 1987 Constitution, apportioning
legislative districts throughout the
country, which considered Sinacban
part of the Second District of Misamis
Occidental. Above all, Sec. 442(d) of
the LGC of 1991 must be deemed to
have cured any defect in the creation
of Sinacban.
Padilla v. COMELEC (1992): When the

law states that the plebiscite shall be
conducted in the political units
directly affected, it means that the
residents of the political entity who
would be economically dislocated by
the separation of a portion thereof
have the right to vote in said
plebiscite. What is contemplated by the
phrase political units directly affected
is the plurality of political units
which would participate in the
plebiscite.
Miranda
v.
Aguirre
(1999):
The
downgrading of Santiago City from an
ICC to a component city falls within the
meaning of creation, division, merger,
abolition, or substantial alteration of
boundaries; hence, ratification in a
plebiscite is necessary. There is material
change in the political and economic
rights of the LGUs directly affected as
well as the budget preparation, which
budget should reflect the estimates of
people therein. It is therefore but
reasonable to require the consent of the
people to be affected.
Since Sinacban had attained de facto

status
at
the
time
the
1987
Constitution took effect on February 2,
1987, it is not subject to the
plebiscite
requirement.
This
requirement applies only to new
municipalities created for the first
time under the Constitution.
Note:
De facto municipal corporation: defect in
creation;
legal
existence
has
been
recognized and acquiesced publicly and
officially.
Requisites:
(a) valid law authorizing incorporation;
(b) attempt in good faith to organize it;
(c) colorable compliance with law; and
(d) assumption of corporate powers.
Torralba v. Sibagat (1987):

The
enactment of an LGC is not a
condition sine qua non for the
creation of a municipality, and before
the enactment of such code, the power
remains plenary except that the
creation should be approved by the
people concerned in a plebiscite called
for the purpose.
Sinacaban was created by EO 258 of then President

Elpidio Quirino, pursuant to Sec. 68 of the Revised
Administrative Code of 1917.
1
De jure: by virtue of the ordinance appended to the

1987 Constitution; Sec. 442 (d), LGC curative.
2
Sec. 442(d), LGC: Municipalities existing as of the date

of the effectivity of this Code shall continue to exist
and operate as such. Existing municipal districts
organized pursuant to presidential issuances or
executive orders and which have their respective set of
elective municipal officials holding office at the time of
the effectivity of this Code shall henceforth be
considered as regular municipalities.
Tobias v. Abalos (1994): The creation of

a separate congressional district of
Mandaluyong is not a subject separate
and distinct from the subject of its
conversion into a highly-urbanized city
but
is
a
natural
and
logical
consequence of its conversionThe
Court found no need for the people of
San Juan to participate in the plebiscite.
They had nothing to do with the change
of status of neighboring Madaluyong.
Mariano v. COMELEC (1995): The

requirement on metes and bounds was
meant merely as a tool in the
establishment of LGUs. So long as the
territorial jurisdiction of a city may be
reasonably ascertained, the intent
behind the law (i.e., the determination
of the territorial jurisdiction over which
governmental powers may be exercised)
has been sufficiently served. A
Page 160 of 313
Effects of downgrading:
(a) the city mayor will be placed under
the administrative supervision of the
governor;
(b) resolutions and ordinances will have
to be reviewed by the provincial
board;
(c) taxes will have to be shared with the
province.
cadastral type
necessary.
description
is
not
As such, for purposes of budget

preparation, which budget should
reflect the estimates of the income of
the LGU, among others, the IRAs and
the share in the national wealth
utilization proceeds are considered
items of income.
NOTE: The ruling in Mariano is an

exception to the general rule of proper
identification because of its peculiar
facts: (1) the legislature deliberately
omitted the description in metes and
bounds because of the pending
litigation between Makati and Taguig
over Fort Bonifacio; (2) RA 7854
provided that the territory of the City of
Makati will be the same as that of the
Municipality of Makati, thus making the
territorial
jurisdiction
of
Makati
ascertainable (subject, of course, to the
result of the unsettled boundary
dispute).
Samson v. Aguirre (1999): Compliance

with population OR land area, in
addition to income, is sufficient to
satisfy the requirements in the
creation of a city.
Alvarez v. Guingona (1996): Internal

Revenue Allocations (IRAs) form part
of the income of LGUs. The funds
generated from local taxes, IRAs and
national wealth utilization proceeds
accrue to the general fund of the LGU
and are used to finance its operations
subject to specified modes of spending
the same as provided for in the LGC
and its implementing rules and
regulations.
Bai Sema v. COMELEC (2008):

The SC held that sec. 19 of RA 9054
insofar as it grants ARMM Regional
Assembly the power to create provinces
and cities is void. (Constitution allows
delegation of creating municipalities
and barangays only.)
[For more discussion on Bai Sema case,
refer to Consti1 Reviewer under Special
Cases.]
NOTES:
For provinces and cities, the income
requirement must be satisfied; and
EITHER population OR territory.
In the creation of barangays, there is no

minimum requirement for area and
income.
As to the income requirement, average

annual income shall include the income
accruing to the general fund, exclusive
of special funds, transfers, and
non-recurring income.
Requirements
Income
Population
Province
LGC 460-461
Average annual
income,
as
certified by the
Department of
Finance, of not
less
than
P20,000,000
based on 1991
constant prices
City
RA 9009 (2001)
Average annual
income,
as
certified by the
Department
of
Finance, of at
least
P100,000,000
for the last 2
consecutive
years based on
2000
constant
prices
Municipality
LGC 441-442
Average
annual
income,
as
certified by the
provincial
treasurer, of at
least
P2,500,000.00 for
the
last
two
consecutive years
based on 1991
constant prices
Barangay
LGC 385-386
No
minimum
requirement
for
income
250,000
inhabitants
150,000
inhabitants
25,000
inhabitants
2,000 inhabitants
5,000 inhabitants,
in
cities
and
For creation of specific LGUs, please check LGC 385-386, 441-442, 449-450, 460-461
Page 161 of 313
Summary: Creation of Specific LGUs3
Requirements
Province
LGC 460-461
City
RA 9009 (2001)
Territory
contiguous
territory of at
least
2,000
km2
territory need
not
be
contiguous if it
comprises 2 or
more islands or
is separated by
a chartered city
or cities which
do
not
contribute
to
the income of
the province
By an Act of
Congress
contiguous
territory of at
least 100 km2
contiguous
territory of
least 50 km2
requirement on
land area shall
not apply where
the city proposed
to be created is
composed of 1 or
more
islands;
the
territory
need
not
be
contiguous if it
comprises 2 or
more islands
By an Act of
Congress
requirement
on
land area shall
not apply where
the municipality
proposed to be
created
is
composed of 1 or
more
islands;
territory need not
be contiguous if it
comprises 2 or
more islands
By an Act of
Congress
Manner of
Creation
Municipality
LGC 441-442
at
Barangay
LGC 385-386
municipalities
within
MM
and
other metropolitan
political
subdivisions or in
highly
urbanized
cities
No
minimum
requirement for area
Territory need not
be contiguous if it
comprises 2 or more
islands
By
an
Act
of
Congress,
to
enhance the delivery
of basic services in
the
indigenous
cultural
communities
Plebiscite
(in LGUs
drectly
affected)
Approval must
be by majority
of the votes
cast;
except
otherwise
provided in the
Act
of
Congress, the
plebiscite shall
be held within
120 days from
effectivity
Approval
must
be by majority of
the votes cast;
except otherwise
provided in the
Act of Congress,
the
plebiscite
shall be held
within 120 days
from effectivity
Approval must be
by majority of the
votes cast; except
otherwise
provided in the
Act of Congress,
the
plebiscite
shall
be
held
within 120 days
from effectivity
Approval must be by
majority of the votes
cast; plebiscite shall
be held within such
period of time as
may be determined
by
the
law
or
ordinance creating
said barangay.
Page 162 of 313
By law or by an
ordinance of the
sangguniang
panlalawigan
or
panlungsod; In case
of the creation of
barangays by the
sangguniang
panlalawigan,
the
recommendation of
the
sangguniang
bayan
concerned
shall be necessary
II. DIVISION
ABOLITION
AND
MERGER;

LGC, Sec. 8.
Division and merger of existing local
government units shall comply with the
same requirements herein prescribed
for their creation:
Provided,
however,
That
such
division shall not reduce the
income, population, or land area of
the local government unit or units
concerned
to
less
than
the
minimum requirements prescribed
in this Code:
Provided, further, That the income
classification of the original local
government unit or units shall not
fall below its current classification
prior to such division.
The income classification of local
government units shall be updated
within six (6) months from the effectivity
of this Code to reflect the changes in
their financial position resulting from
the increased revenues as provided
herein.
B. Abolition
III.SETTLEMENT
DISPUTES
OF
BOUNDARY
(asked in 2005)
LGC, Sec. 118-119
Boundary disputewhen a portion or
the whole of the territorial area of an
LGU is claimed by two or more LGUs.
A. Jurisdictional Responsibility for

Settlement of Boundary Dispute
LGC, Sec. 118
If
the
LGUs
involved are:
two (2) or more
barangays in the
same
city
or
municipality
two (2) or more
municipalities
within
the
same
province
municipalities
or
component cities of
different provinces
a component city or
municipality on the
one hand and a
highly
urbanized
city on the other; or
two (2) or more
highly
urbanized
cities,
Boundary disputes
shall be referred
for settlement to:
sangguniang
panlungsod
or
sangguniang bayan
concerned.
sangguniang
panlalawigan
concerned.
jointly referred to
the sanggunians of
the
province
concerned.
jointly referred for
settlement to the
respective
sanggunians of the
parties.
In the event the sanggunian fails to

effect an amicable settlement within
sixty (60) days from the date the dispute
was referred thereto, it shall issue a
certification to that effect.
Thereafter, the dispute shall be formally

tried by the sanggunian concerned
which shall decide the issue within sixty
(60) days from the date of the
certification referred to above.
B. Appeal
LGC, Sec. 119.
Within the time and manner prescribed
by the Rules of Court, any party may
elevate the decision of the sanggunian
concerned to the proper Regional Trial
Court having jurisdiction over the area
in dispute.
The Regional Trial Court shall decide the
appeal within one (1) year from the
filing thereof. Pending final resolution of
the disputed area prior to the dispute
shall be maintained and continued for
all legal purposes.
Page 163 of 313
LGC, Sec. 9
A local government unit may be
abolished:
when its income, population, or land
area has been irreversibly reduced
to less than the minimum standards
prescribed for its creation under
Book III of this Code, as certified by
the national agencies mentioned in
Section 7 hereof to Congress or to
the sangguniang concerned, as the
case may be.
The law or ordinance abolishing a local
government unit shall specify the
province,
city,
municipality,
or
barangay with which the local
government unit sought to be
abolished will be incorporated or
merged.
Policy: Boundary disputes between or

among LGUs shall, as much as
possible, be settled amicably.
C.
Maintenance of the Status Quo
IRR of LGC, Sec. 18

Pending final resolution of the dispute:
status of the affected area prior to the
dispute shall be maintained and continued
for all purposes.
Municipality of Jimenez v. Baz (1996):

The power of provincial boards to settle
boundary disputes is limited to
implementing the law creating a
municipality. Thus, provincial boards
do not have the authority to approve
agreements which in effect amend the
boundary stated in the creating statute.
City of Pasig v. COMELEC (1999): The

conduct of plebiscites, to determine
whether or not a barangay is to be
created, should be suspended or
cancelled in view of a pending boundary
dispute between two local governments.
Precisely because territorial jurisdiction
is an issue raised in the pending
boundary dispute, until and unless
such issue is resolved with finality, to
define the territorial jurisdiction of the
proposed barangays would only be an
exercise in futility.
Page 164 of 313
Chapter III. General Powers and Attributes of LGUs
Chapter III. General Powers

and Attributes of LGUs
I.
POWERS IN GENERAL
A. SOURCES
B. CLASSIFICATION
C. EXECUTION OF POWERS
II. POLITICAL AND CORPORATE NATURE OF
LGUs
III. GOVERNMENTAL POWERS
A. GENERAL WELFARE
B. POWER TO GENERATE REVENUE
C. EMINENT DOMAIN
D. BASIC SERVICES AND FACILITIES
E. RECLASSIFICATION OF LANDS
F. CORPORATE POWERS
G. LOCAL LEGISLATIVE POWER
I. POWERS IN GENERAL
A. Sources of Powers of LGUs
1987 Consti., Sec. 25, Art. II ; Sec. 5-7,

Art. X
Statutes, e.g. LGC
Charter (particularly of cities)
Doctrine of the right of self-government,
but applies only in States which adhere
to the doctrine
B. Classification of Powers of LGUs
Express, Implied, Inherent

Public or Governmental, Private
Proprietary
Intramural, Extramural
Mandatory, Directory; Ministerial,
Discretionary
or
Municipal Corporations
Where statute prescribes the manner of

exercise, the procedure must be
followed
Where statute is silent, LGUs have
discretion to select reasonable means
and methods of exercise
II. POLITICAL
AND
NATURE OF LGUS
CORPORATE
(LGC Sec.18)
LGC Sec. 14. Beginning of Corporate Existence
Local government units shall have the

power and authority to generate and
apply resources
Establish an organization responsible
for implementation of development
plans,
program
objectives,
and
priorities.
The election and qualification of

chief executive AND
majority of the members of the
Sanggunian
unless some other time is fixed
therefore by the law or ordinance
creating it.
Note: Art.14 applies when the law creating

it is SILENT as to the beginning of its
corporate existence.
LGC Sec.15. Political and Corporate Nature of
Local Government Units
Local government unit created or

recognized under this Code is a
Body politic AND
Page 165 of 313
Own sources of revenues (Sec.5, Art.X,

Constitution;
Sec.18
LGC)
which
include:
Power to create own sources
Levy taxes, fees and charges
o Shall accrue exclusively for their
own use and disposition
o Limitation: guidelines Congress
may provide
Just share in national taxes
(Sec.6, Art.X, Constitution; Sec.18
LGC)
o Determined by law
o Automatically
and
directly
released
Equitable share in utilization and
development of national wealth
(Sec.7, Art.X Constitution; Sec.18
LGC)
o Within
respective
territorial
jurisdictions
o In the manner provided by law
o Sharing with inhabitants by way
of direct benefits
Acquire, develop, lease, encumber,
alienate, or otherwise dispose of
property (Ses.18 LGC)
o Real or personal property
o Made in a proprietary capacity
Apply resources and assets (Sec.18
LGC)
o Purpose:
productive,
development,
or
welfare
purposes
o In
the
exercise
of
their
governmental
or
proprietary
powers and functions
Coporate endowed with powers to be

exercised by it in conformity with
law
Exercise of power (as a):
Political subdivision of the national
government AND
Corporate entity representing the
inhabitants of its territory
Villas v. City of Manila (1911): The action

was brought upon the theory that the city,
under its present charter from the
government of the Philippine Islands, was
the same juristic person, and liable upon
the obligations of the old city. The city was
held liable since the juristic identity of
the corporation was not affected, and
the present city is, in every legal sense,
the successor of the old. As such it is
entitled to the property and property rights
of the predecessor corporation, and is also
subject to all of its liabilities.
Lidasan v COMELEC (1967): A municipal
corporation
performs
twin
functions.
Firstly, it serves as an instrumentality of
the State in carrying out the functions of a
government. Secondly, it acts as an agency
of the community in the administration of
local affairs. It is in the latter character that
it is a separate entity acting for its own
purposes and not a subdivision of the state.
municipal plaza
Establishment of
schools, post
offices, etc.
Malabanan v Benito (1969): There can be no

color of authority in an unconstitutional
statute. An unconstitutional act confers no
rights, imposes no duties, affords no
protection, and creates no office. However,
even if the EO was invalid, it does not mean
that the acts done by the municipality of
Balabagan in the exercise of its corporate
powers are a nullity. This is because the
existence of the EO is an operative fact
which cannot justly be ignored.
Notes:
Requisites for de facto municipal
corporations
1. Valid law authorizing incorporation
2. Attempt in good faith to organize
under it
3. Colorable compliance with the law
4. Assumption of corporate powers
When the inquiry is focused on the legal
existence of a body politic, the action is
reversed to the state in a proceeding for
quo warranto or any other direct
proceeding. Collateral attacks shall not
lie.
Proceeding must be:
1. Brought in the name of the
Republic of the Philippines
2. Commenced by the Solgen or the
fiscal when directed by the
president
3. Timely raised (Municipality of
San Narciso v Mendez)
In Municipality of San Narciso v.

Mendez, the SC held that the
municipality can still be considered to
have attained at least a status closely
approximating that of a de facto
corporation despite the invalidity of the
EO creating it. This is because the State
itself recognized the continued existence
of San Andres when it classified it as a
5th class municipality. And, more
importantly, Sec.442(d) of the LGC
cured whatever defect there was in its
creation.
Difference Between the Political Nature

and Corporate Nature of LGUs
Includes
the
legislative,
judicial,
public and political
LGU cannot be held
liable except:
o If statute provides
otherwise
Art.2189, Civil Code
Examples:
Regulations against
fire, disease
Preservation of
public peace
Maintenance of
Corporate/
Municipal
Corporate
entity
representing
inhabitants
of
its
territory
Includes those which
are
ministerial,
private and corporate
Can be held liable ex
contractu
or
ex
delicto
Examples:
Municipal
waterworks
Slaughterhouses
Markets
Stables
Page 166 of 313
Torio v Fontanilla (1978): The holding of a

town fiesta is a proprietary function,
though not for profit, for which a
municipality is liable for damages to 3rd
persons ex contractu or ex delicto.
Political/
Governmental
Political subdivision
of
national
government
Bathing
establishments
Wharves
Fisheries
Maintenance of
parks, golf courses,
cemeteries, airports
III.GOVERNMENTAL POWERS
A. General Welfare
(LGC Sec.16)
This includes: Police Power, Abatement of
Nuisance and Closure of Roads)
1. Police Power
Laguna Lake Development Authority v. CA

(1995): The power of the municipal
government to issue fishing privileges is
only for revenue purposes. The power of the
LLDA to grant permits is for the purpose of
effectively
regulating
and
monitoring
activities in the lake region and is in the
nature of police power.
Binay v Domingo (1991): The police power of
a municipal corporation extends to all the
great public needs, and, in a broad sense
includes all legislation and almost every
function of the municipal government.
Public purpose is not unconstitutional

merely because it incidentally benefits a
limited number of persons. The drift is
towards social welfare legislation geared
towards state policies to provide adequate
social services, the promotion of general
welfare and social justice
Rural Bank of Makati, Inc v Municipality of
Makati (2004):
The General Welfare Clause has 2
branches:
(1) the general legislative power which
authorizes municipal councils to
enact
ordinances
and
make
regulations not repugnant to law as
may be necessary to carry into effect
and discharge the powers and
duties conferred upon it by law;
(2) the police power, which authorizes
the municipality to enact ordinances
as may be proper and necessary for
the health and safety, prosperity,
morals, peace, good order, comfort
and convenience of the municipality
and its inhabitants, and for the
protection of their property.
Here, the ordinances imposing the
licenses and permits for any business
establishments,
for
purposes
of
regulation enacted by the municipal
council of Makati, falls under the 1st
branch.
Notes:
1. The General Welfare Clause cannot be
used to justify an act that is not
specifically authorized by law.
2. Powers of the LGUs under the general
welfare clause LGC Sec.16
Powers expressly granted to the LGU
Power necessarily implied therefrom
Powers necessary, appropriate, or
incidental for its efficient and
effective governance
Powers which are essential to the

promotion of general welfare clause:
A municipal ordinance prescribing
the zonification and classification of
merchandise and foodstuff sold in
the
public
market
(Ebona v
Municipality of Daet)
A proclamation reserving parcels of
the public domain for street
widening
and
parking
space
purposes (Republic v Gonzales)
Condemnation and demolition of
buildings found to be in a
dangerous or ruinous condition
within the authority provided for by
Page 167 of 313
Preservation of peace and order within

respective regions (Sec.21, Art. X,
Constitution)
1. Responsibilities of local police
agencies
2. Local police shall be organized,
maintained, supervised and utilized
in accordance with applicable laws.
Defense and security of regions (Sec.21,
Art.X, Constitution)
o Responsibility
of
National
Government
General Welfare Clause (Sec.16 LGC)
1. Powers expressly granted
2. Powers necessarily implied
3. Powers necessary, appropriate or
incidental for efficient and effective
governance
4. Powers essential to the promotion of
general welfare
5. Shall ensure and support:
Preservation and enrichment of
culture
Promotion of health and safety
Enhancement of the right of the
people to a balance ecology
Development of self reliant
scientific
and
technological
capabilities
Improvement of public morals
Economic prosperity and social
justice
Promotion of full employment
among residents
Maintenance of peace and order
Preservation of the comfort and
convenience of inhabitants
Not part of police power:

Balacuit v CFI (1988): Butuan city
board passes an ordinance requiring
that the sale of tickets to movies,
exhibitions or other performances to
children between 7-12 years of age
should be at half price.The said
ordinance was declared void. The
theater
operators
are
merely
conducting
their
legitimate
business.
There
is
nothing
immoral or injurious in charging
the same price for both children
and adults. In fact, no person is
under compulsion to purchase a
ticket.
To constitute public use:

The public in general should
have equal or common rights to
use the land or facility involved
on the same terms
The number of users is not the
yardstick
in
determining
whether property is properly
reserved for public use or public
benefit (Republic v. Gonzales)
For ordinance to be valid exercise of
police power (Tatel v. Virac):
1. Not contrary to the Constitution
and/or statute
2. Not unfair or oppressive
3. Must not be partial or
discriminatory
4. Not prohibit but may regulate
trade
5. General and consistent with
public policy
6. Not unreasonable
2. Abatement of Nuisance
LGC sec.447 and 458
Sangguniang Bayan and Sangguniang
Panlungsod have:
Power to regulate activities relative to
the use of land, buildings and
structures within their jurisdiction
To promote the general welfare and
For said purpose declare, prevent or
abate any nuisance
Estate
of
Francisco
v
CA
(1991):
Respondents cannot seek cover under the
General Welfare Clause authorizing the
abatement of nuisances without judicial
proceedings. That tenet applies to a
nuisance er se, or one which affects the
immediate safety of persons and property
and may be summarily abated under the
undefined law of necessity (Monteverde v
Generoso).
NOTES:
The provisions of the Code DO NOT make a
distinction between nuisance per se and
nuisance per acccidens, thus creating a
presumption that LGUs can abate all kinds
of nuisances without need of a judicial
order. However, the jurisprudence holds
that LGUs can abate extrajudicially only
nuisances per se.
Page 168 of 313
municipal ordinances (Chua Huat v

CA)
LTO v City of Butuan (2000): LGUs
now have the power to regulate the
operation of tricycles-for-hire and to
grant franchises for the operation
thereof. However, this power is still
subject to the guidelines prescribed
by the DOTC. Moreover, the newly
delegated powers pertain to the
franchising and regulatory powers
therefore exercised by the LTFRB.
Patalinhug v CA (1994): The
declaration of an area as a
commercial
zone
through
a
municipal
ordinance
is
an
exercise of police power of the
people in the locality. Corollary
thereto, the state may interfere with
personal liberty with property,
business, and occupations. Thus,
persons may be subjected to certain
kinds of restraints and burdens in
order to secure the general welfare
of the state and to this fundamental
aim of government, the rights of the
individual may be subordinated.
Villanueva v Castaneda (1987): In
1961, the municipal council of San
Fernando
authorized
some
merchants to construct permanent
stalls and sell along a public
market. In 1982, the incumbent
mayor issued a resolution requiring
the demolition of the stalls. The
problems
caused
by
the
usurpation of the place by the
merchants, such as obstruction of
traffic
and
deteriorated
sanitation, are covered by the
police power as delegated to the
municipality under the general
welfare clause.
3. Closure of Roads
(LGC Sec.21)
What roads are subject, those within

jurisdiction of LGU
Local road
Alley
Park
Square
Permanently close or open

Ordinance: Vote of at least 2/3 of all
members of the Sanggunian
When necessary, an adequate
substitute for the public facility
should be provided
Make provision for public safety
If permanently withdrawn from
public use
May be used or conveyed for any
purpose for which other real
property belonging in LGU may be
lawfully used or conveyed
Freedom park: must have provision
for relocation to new site
Temporary closure and regulation of

any local street, road, thoroughfare, or
any other public place
By any city, municipality, or
barangay
Where shopping malls, Sunday, flea
or night markets, or shopping areas
may be established
Where
goods,
merchandise,
foodstuffs, commodities, or articles
of commerce may be sold
Dacanay v Asistio (1992): A public street is

property for public use hence, outside the
commerce of man. It may not be the subject
of lease or other contract. Such leases are
null and void for being contrary to law. The
right of the public to use the city street may
not be bargained away through contract.

The authorization given for the use of the
city street as a vending area for stallholders
who were granted licenses by the City
Government contravenes the general law
that reserves city streets and roads for
public use. It may not infringe upon the
vested right of the public to use city streets
for the purpose they were intended to serve.
NOTES:
In Cabrera v CA (1991), the provincial
council has the authority to determine
whether or not a certain property (in this
case a provincial road) is still necessary for
public use.
In Favis v City of Baguio, it was similarly
ruled that the city council has the
authority.

(LGC Sec.18)
Sources of LGU funds:

1. Own sources of revenues
2. Taxes, fees and charges: which shall
accrue exclusively for their use and
disposition and which shall be retained
by them
3. Just share in national taxes which shall
be automatically and directly released
to them without need for any further
action
4. Equitable share in the proceeds from
the utilization and development of the
national wealth and resources within
their respective territorial jurisdictions
including sharing the same with the
inhabitants by way of direct benefits
Fundamental principles governing the

exercise of the taxing and other revenueraising powers of LGUs (LGC Sec 130)
1. Taxation shall be uniform in each LGU;
2. Taxes,
fees,
charges
and
other
impositions shall be equitable and
based as far as practicable on the
taxpayers ability to pay; levied and
collected only for public purposes; not
unjust, excessive, oppressive, or
confiscatory; not contrary to law,
public policy, national economic policy,
or in restraint of trade;
3. The collection of local taxes, fees,
charges and other imposition shall in
no case be left to any private person;
4. The revenue shall inure solely to the
benefit of, and be subject to
disposition by, the LGU, unless
Page 169 of 313
Temporary close or open

Ordinance
May be done:
During actual emergency
Fiesta celebrations
Public rallies
Agricultural or industrial fairs
Undertaking of public works and
highways, telecommunications,
and waterworks projects
Duration specified in written order
by local chief executive
If for athletic, cultural, or civic
activities:
must
be
officially
sponsored, recognized, or approved
by LGU.
otherwise specifically provided herein;

and
5. Each LGU shall, as far as practicable,
evolve a progressive system of
taxation.
Fundamental principles governing the

financial affairs, transactions and
operations of LGUs (LGC sec 305)
12. The LGU shall endeavor to have a

balanced budget in each fiscal year of
operation
Pimentel v Aguirre (2000): LGUs, in addition
to administrative autonomy, also enjoy
fiscal autonomy. LGUs have the power to
create their own sources and revenue, in
addition to their equitable share in the
national taxes as well as the power to
allocate resources in accordance with their
own priorities. A basic feature of local fiscal
autonomy is the automatic release of the
shares of the LGUs in the national internal
revenue. This is mandated by no less than
the
constitution.
Any
retention
is
prohibited.
C. Eminent Domain
(LGC Sec.19)
Eminent Domain -- It is the ultimate right
of the sovereign power to appropriate not
only public but private property of citizens
within the territorial sovereignty to public
purpose [Charles River Bridge vs. Warren
Bridge, (1837)]
Requisites for a
Eminent Domain
Valid
Exercise
of
a. Through the Chief Executive of LGU

b. Acting pursuant to an ordinance
c. For the purposes of:
Public use or welfare
For the benefit or the poor and the
landless
d. Payment of just compensation
Amount determined by proper court
Based on fair market value at the
time of the taking
e. Valid and definite offer made
Right by the State to immediately take
possession:
Upon filing of expropriation proceedings
Upon deposit with proper court of at
least 15% of the fair market value of the
property
Article 35 IRR of LGC
Offer to buy private property for public
use or purpose shall be in WRITING. It
shall specify the property sought to be
acquired,
the
reasons
for
the
acquisition, and the price offered.
If the owners accept the offer in its
entirety, a contract of sale shall be
executed and payment made
If the owner/s are willing to sell their
property but at a price higher that that
Page 170 of 313
1. No money shall be paid out of the local

treasury except in pursuance of an
appropriations ordinance or law;
2. Local government funds and monies
shall be spent solely for public
purposes;
3. Local revenue is generated only from
sources expressly authorized by law or
ordinance, and collection thereof shall
at all times be acknowledged properly;
4. All monies officially received by a local
government officer in any capacity or on
any occasion shall be accounted for as
local funds, unless otherwise provided
by law;
5. Trust funds in the local treasury shall
not be paid out except in fulfillment of
the purpose for which the trust was
created or the funds received;
6. Every officer of the LGU whose duties
permit or require the possession or
custody of local funds shall be properly
bonded, and such officer shall be
accountable and responsible for said
funds and for the safekeeping thereof in
conformity with the provisions of law;
7. Local governments shall formulate
sound financial plans, and the local
budgets shall be based on functions,
activities, and projects, in terms of
expected results;
8. Local budgets shall operationalize
approved local development plans;
9. LGUs shall ensure that their respective
budgets incorporate the requirements of
their component units and provide for
equitable allocation of resources among
these component units;
10. National planning shall be based on
local planning to ensure that the needs
and aspirations of the people as
articulated by the local government
units
in
their
respective
local
development plans are considered in the
formulation of budgets of national line
agencies or offices;
11. Fiscal responsibility shall be shared by
all those exercising authority over the
financial affairs, transactions, and
operations of the local government
units; and
offered to them, the local chief executive

shall call them to a conference for the
purpose of reaching an agreement on
the selling price. The chairman of the
appropriation or finance committee of
the Sanggunian, or in his absence, any
member of the Sanggunian duly chosen
as its representative, shall participate in
the conference. When an agreement is
reached by the parties, a contract of
sale shall be drawn and executed.
The contract of sale shall be supported
by the following documents:
Resolution
of
the
Sanggunian
authorizing the local chief executive
to enter into a contract of sale. The
resolution shall specify the terms
and conditions to be embodied in
the contract.
Ordinance
appropriating
the
amount specified in the contract,
and
Certification of the local treasurer as
to availability of funds together with
a statement that such fund shall not
be disturbed or spent for any
purpose other than to pay for the
purchase of the property involved.
Bardilion v Masili (2003): Requisites for

immediate entry of LGU:
1. Filing of complaint for expropriation
sufficient in form and substance
2. The deposit of the amount equivalent to
15% of the fair market value of the
property to be expropriated based on
the current tax declaration
City of Iloilo v Legaspi (2004): Upon
compliance with the requirements for
immediate entry, the issuance of a writ of
possession
becomes
ministerial.
No
hearing is required for the issuance of
the writ. The LGC did not put a time limit
as to a LGU may immediately take
possession of the property. As long as the

expropriation
proceedings
have
been
commenced and the deposit made, the LGU
cannot be barred from praying for the
issuance of writ of possession.
NOTES:
Requisites in the Exercise of the Power
of Eminent Domain (Sugultan v City of
Mandaluyong)
1. An ordinance is enacted by the local
legislative council authorizing the
local chief executive, in behalf of the
LGU, to exercise the power of
eminent
domain
or
pusue
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 just payment of just
compensation (based on the fair
market value at the time of the
taking, not at the time of payment),
as required by sec.9 Art 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.
Socialized Housing
The UDHA and the Expropriation by
the LGUs i.e. Sec.9 of the Urban Land
and Housing Act, which speaks of
PRIORITIES in acquisition) should be
read in connection with Sec.10 (MODES
of acquisition).
If the land sought to be expropriated is
located in urban areas and fall under
the UDHA, the LGU must allege
compliance with Secs.9 and 10 for their
suit to prosper. Otherwise, it would be
premature.
Filstream International Inc v CA (1998):
Under the Urban Land and Housing Act,
there is a priority in expropriation of which
the properties of the government or any of
its subdivision rank number one and
privately owned properties ranked last.
Also,
the
said
act
provides
that
expropriation should be the last alternative,
giving way to other modes of acquisition
like community mortgage and swapping.
Otherwise it would be deprivation of
property.
Page 171 of 313
City of Cebu v Apolonio (2002): Although the

general
rule
in
determining
just
compensation in eminent domain is the
value of the property as of the date of filing
of the complaint, the rule admits of an
exception: where the SC fixed the value of
the property as of the date it was taken and
not at the date of the commencement of the
expropriation proceedings. Finally, while
sec.4, Rule 67 of the Rules of Court
provides that just compensation shall be
determined at the time of the filing of the
complaint for expropriation, such law
cannot prevail over the Local Government
Code, which is substantive law.
City of Manadaluyong v Aguilar (2001): The

UDHA introduced a limitation on the size of
the land sought to be expropriated for
socialized housing. It exempted small
property owners. The elements of small
property owners are: 1. Those owners of
real property which consists of residential
lands with an area of not more than 300
sq.meters in highly urbanized cities (800 in
other urban cities); 2. They do not own real
property other than the same.
Municipality of Paranaque v VM Realty: If

and when an expropriation proceeding is
dismissed for noncompliance to the
requisites, it could be instituted again. The
exercise of eminent domain is not barred by
Province of Camarines Sur v CA: LGUs do
not have all encompassing eminent domain
power. If just compensation is not paid, the
land could be given back to its former
owner.

(LGC Sec . 17)
Barangay
Agricultural
services
support
Municipality
Agriculture
and
fishery extension and
on-site
research
services and facilities
Health services
Same; health centers

and clinics
Social welfare services
Same
General hygiene and

sanitation
Solid waste collection
Same
Infrastructure
facilities (e.g. plaza,
multi-purpose hall)
Information
and
reading center
Satellite
market
or
public
Road,
bridges,
communal irrigation,
artesian
wells,
drainage,
flood
control
Municipal buildings,
cultural
centers,
public parks
Information services,
tax and marketing
information systems
and public library
Public
markets,
slaughterhouses
Implementation
of
community-based
forestry projects
City
See municipality and
province

province
province

province
N/A
N/A
Similar to those for

municipality

province

province
Upgrading
and
modernization of tax
information
and
collection services
Enforcement
of
forestry laws, limited
to community-based
forestry
projects,
pollution control law,
small-scale
mining
law,
mini-

province
province
province
Page 172 of 313
Katarungang
Pambarangay
Maintenance of roads,
bridges and water
supply systems
Solid waste disposal

system
or
environmental
management system
N/A
Province
Agricultural extension
and on-site research
services and facilities;
organization
of
farmers
and
fishermens
cooperatives
Same,
including
hospitals and tertiary
health services
Same, including rebel
returnees
and
evacuees,relief
operations population
development services
Barangay
Municipality
Province
hydroelectric projects
for local purposes
School Buildings
Public cemetery
Tourism facilities
Police, fire station, jail
Tourism development
and
promotion
programs
Same
Industrial
research
and
development
services
Low cost housing and
other mass dwellings
Investment
support
services
Inter-municipal
telecommunication
services
(LGC Sec. 20)

province
province
province
Same
Same
Same
Same
Adequate
communication
transportation
facilities.
and
Nothing repealing, amending or

modifying RA6657
By
Approval of national agency

When required, shall not be
unreasonably withheld
Failure to act: deemed approval
Within 3 mos. from receipt
Proper and complete application
for reclassification
Comprehensive Land Use Plans
Enacted
through
zoning
ordinances
Shall be the primary and
dominant bases for the future
use of land resources
Factors
to
considerrequirements for
o Food production
o Human settlements
o Industrial expansion
the President
When public interest so requires
Upon recommendation of the NEDA
May authorize a city or municipality
to reclassify lands in excess of the
limits
NOTES:
Land use conversion: the act or
process of changing the current use of a
piece of agricultural land into some
other use as approved by the DAR
Reclassification: designation of
intended use of land within the
territory. The land is not currently used
Page 173 of 313
By a City or Municipality
Through an ordinance passed by
Sanggunian
After conducting public hearings
Provide manner of disposition
Land ceases to be economically
feasible
and
sound
for
agricultural
purposes
as
determined by the Department
of Agriculture
Land shall have substantially
greater economic value for
residential,
commercial,
or
industrial
purposes,
as
determined by the Sanggunian
Limited to the following percentage
of the total agricultural land area at
the time of passage of the ordinance
For
highly
urbanized
and
independent component cities:
15%
For component cities and first to
the third class of municipalities:
10%
For fourth to sixth class
municipalities: 5%
Limited by RA 6657 or the
Comprehensive Agrarian Reform
Law
Agricultural lands distributed to
agrarian reform beneficiaries
shall not be affected
Conversion into other purposes
governed by sec.56 RA6657
City
as agricultural, although it is classified

as such
Requisites for Reclassification of Land:
1. Ordinance passed by Sanguniang
Bayan or Panglungsod after public
hearings conducted for the purpose
2. Agricultural land must either:
a. cease to be economically feasible
and sound for agricultural purposes
as determined by the Department of
Agriculture, OR
b. have substantially greater economic
value for residential, commercial, or
industrial purposes, as determined
by the Sanggunian concerned
3. Reclassification shall be limited to the
percentages of the total agricultural land
area at the time of the passage of the
ordinance as prescribed by the LGC
Take note however, of:
o Fortich v Corona (1998): LGU need not
obtain approval of DAR to convert or
reclassify land from agri to non-agri
o Roxas v CA (1999): DAR is mandated to
approve or disapprove applications for
conversion
F. Corporate Powers
(LGC Sec 22)
Every LGU, as a corporation has the
following powers:
a. To have continuous succession in
its corporate name
b. To sue and be sued
c. To have and use a corporate seal
d. To acquire and convey real or
personal property
e. To enter into contracts
f. To exercise such other powers as
are granted to corporations
Limitations: as provided in LGC
and other laws
Corporate Seal
LGUs may continue using, modify,
or change their existing corporate
seals
Newly established LGUs or those
without corporate seals
May create own corporate seals
Registered with the DILG
Change of corporate seal shall be
registered with the DILG
Contact entered into by local chief

executive un behalf of LGU
Prior authorization by Sanggunian
Legible copy of contract posted at a

conspicuous place in the
Provincial capitol or
City, municipal or barangay hall
NAWASA v Dator (1967): The authority of a

municipality to fix and collect rents for
water supplied by its waterwork system is
expressly granted by law. However, even
without these provisions the authority of
the municipality to fix and collect fees from
its waterworks would be justified from its
inherent power to administer what it owns
privately.
Province of Zamboanga v City of Zamboanga
(1968): If the property is owned by the
municipality in its public and governmental
capacity, the property is public and
Congress has absolute control over it; if the
property is owned in its private or
proprietary capacity, then it is patrimonial
and Congress has no absolute control. In
which case, the municipality cannot be
deprived of it without due process and
payment of just compensation.
Authority to Negotiate and Secure Grants
(LGC Sec.23)
Who may negotiate:
Local
Chief
Executive
(upon
authority of Sangunian)
What are negotiated
Financial grants or donations in
kind in support of basic services or
facilities
From local and foreign assistance
agencies
Approval by national agency concerned
No necessity of securing clearance
from national agency
IF
with
national
security
implications
Shall be approved by national
agency concerned
Failure to act on request for
approval within 30 days from
receipt: deemed approved
Reporting duty: local chief executive
shall report to both Houses of Congress
and the President
Nature
Amount
Terms
Within 30 days upon signing of
grant agreement or deed of donation
Page 174 of 313
suspension for not more than 60

days or expulsion
o Suspension or expulsion:
requires concurrence of at
least
2/3
vote
of
all
Sanggunian members
o A member convicted by final
judgment to imprisonment of
at least 1 year for any crime
involving moral turpitude
shall
be
automatically
expelled
from
the
Sanggunian
Other
rules
as
the
Sanggunian may adopt
(LGC Sec.48-59)
Exercised by (Sec.48)
Sangguniang panlalawigan for
province
Sangguniang panglungsod for
city
Sangguniang
bayan
for
municipality
Sangguniang barangay for
barangay
the
the
the
the
Presided by (Sec.49):
Vice-governor or vice-mayor or
punong barangay
he will vote
only in case of a tie (Because he is
not a member of the Sanggunian
Perez v Dela Cruz (1969))
Inability of the above: members
present and constituting a quorum
shall elect from among themselves a
temporary presiding officer
Who shall certify within 10 days
from the passage of the ordinances
enacted and resolutions adopted by
the sanggunian in the session over
which he temporarily presided
Quorum (Sec.53)
Quorum. Majority of all members of
the Sanggunian who have been
elected and qualified
Questions of quorum is raised: the
presiding officer shall immediately
proceed to call the roll of the
members and announce the results
No quorum: the presiding officer
may declare a recess until such time
as a quorum is constituted
OR a majority of the members
present may adjourn from day to
day and may compel the
immediate attendance of any
member
absent
without
justifiable cause by arresting the
absent member and present him
at the session
No business shall be transacted
Sessions (Sec.52)
Regular sessions: fixed by resolution
on
1st
day
of
the
session
immediately following the election of
its members
Minimum numbers of regular
sessions:
once
a
week
(panlalawigan,
panlungsod,
bayan) and twice a month for
the Sangguniang Barangay
Special session: may be called by
the local chief executive or by a
majority of the members of the
Sanggunian-cause: when public
interest demands
Written notice: served personally
at the members usual place of
residence at least 24 hours
before the session
Unless otherwise concurred in
by 2/3 vote of the Sangguniang
member present, there being a
quorum, no other matters ay be
Page 175 of 313
Internal Rules of Procedure (Sec.50):

Adopted/update on the 1st regular
session following election of its
members- within 90 days
Provides for:
Organization of the Sanggunian
and the election of its officers
Standing Committees
o Creation
(Including
the
committees
on
appropriations, women and
family, human rights, youth
and
sports
development,
environmental
protection,
and cooperatives; the general
jurisdiction
of
each
committee
o Election of the chairman and
members of each committee
Order and calendar of
business for each session
Legislative process
Parliamentary
procedures
(including
the
conduct
of
members during sessions)
Discipline
of
members
for
disorderly
behavior
and
absences (without justifiable
cause for 4 consecutive sessions)
Penalty: censure, reprimand, or
exclusion from the session,
considered except those stated

in the notice
Open to the public
UNLESS a closed-door session is
ordered by an affirmative vote of
a majority of the members
present (there being a quorum)
In the public interest or for r
easons of secrecy, decency or
morality
No 2 sessions may be held in a
single day
Journal
and
record
of
its
proceedings
which
may
be
published upon resolution of the
Sanggunian concerned
Page 176 of 313
Approval,
Veto
and
Review
of
Ordinances
Every ordinance shall be presented
to the governor or mayor, as the
case may be
Approves: affix his signature on
each and every page
Disapproves: veto it and return
the same with his objections to
the Sanggunian
o Override: 2/3 vote of all its
members
making
the
ordinance
effective
even
without the approval of the
local
chief
executive
concerned
o Veto communicated to the
Sangunian within 15 days in
the case of a province, and
10 days in the case of a city
or a municipality; otherwise,
the ordinance shall
be
deemed approved
Veto (Sec.55): local chief executive
may veto any ordinance on the
ground that it is ultravires or
prejudicial to the public welfare,
stating his reasons for writing
Veto an ordinance or resolution
only once
Local chief executive (except the
punong barangay) power to veto
any particular item or items
o An appropriations ordinance
o Ordinance
or
resolution
adopting a local development
plan and public investment
program
o Ordinance
directing
the
payment
of
money
or
creating liability
(where the veto shall not

affect the item or items
which are not subjected to)
Review of (component) City or
Municipal Ordinances
o Within 3 days after approval,
the secretary shall forward to
the
Sangguniang
Panlalawigan
for
review,
copies
of
approved
ordinances
and
the
resolutions approving the
local development plans and
public investment programs
formulated by the local
development councils
o Within 30 days after the
receipt
of
copies,
the
Sangguniang
Panlalawigan
shall examine the documents
or transmit them to the
provincial attorney, or if
there be none, to the
provincial
prosecutor
or
examination.
Provincial
attorney
or
prosecutor shall: within 10
days from receipt, inform the
Sanggunian in writing of his
comments
or
recommendations
Finding: beyond the power
conferred, it shall declare such
ordinance or resolution invalid
in whole or in part--action
entered in the minutes and shall
advise the corresponding city or
municipal authorities of the
action(sec 58). Any attempt to
enforce any ordinance or any
resolution approving the local
development plan and public
investment program, after the
disapproval, shall be sufficient
ground for the suspension or
dismissal of the official or
employee
o No action within 30 days
after submission: presumed
consistent with the law and
valid
Ordinance
enacted
by
the
Sangguniang barangay shall upon
approval by the majority of all its
members, be signed by the punong
barangay
Review
by
Sangguniang
Panglungsod or Bayan
o
Within
10
days
after
its
enactment, the sangguniang
barangay shall furnish copies to
The sangguniang panglungsod
or
sangguniang
bayan
concerned for review as to
whether
the
ordinance
is
consistent with law and city or
municipal ordinances
No action for 30 days from
receipt: ordinance shall be
deemed approved
Finding: inconsistent with law or

city or municipal ordinances
the sanggunian shall, within 30
days from receipt, return the
same with its comments and
recommendations
to
the
sangguniang
barangay
for
adjustment,
amendment,
or
modification
Effectivity: suspended until such
time as the revision called for is
effected
o
Summary of Review of Ordinances

Component City or Municipality
Ordinances and Resolutions
Sangguniang panlalawigan
Reviewed by
Furnish
copies
ordinances
resolution within
Period
to
documents
3 days after approval of ordinance or

resolution
approving
the
local
development
plans
and
public
investment programs formulated by
the local development councils
examine
30 days after receipt of copies, after

which the ordinance or resolution is
presumed valid if no action is taken.
Within 30 days, it may also be
transmitted
to
the
provincial
attorney
or
prosecutor
for
examination; said atty. or prosecutor
shall
give
his
written
recommendations within 10 days
from receipt of document
Ordinance or resolution is beyond
the power conferred upon the
Sanggunian concerned
Ground to invalidate
ordinance or resolution
Effectivity of Ordinances or Resolutions

(sec 59)
General rule: the same shall take
effect after 10 days from the date a
copy is posted
Sangguniang panglungsod or
sangguniang bayan
10 days after enactment of
ALL ordinances
30 days after receipt of

copies, after which ordinance
is presumed valid if no action
is taken
Ordinance is inconsistent
with
law
and
city
or
municipal ordinances
In
such
case,
the
sangguniang baranagay may
adjust, amend or modify the
ordinance within 30 days
from
receipt
from
the
sangguniang panglungsod or
sangguninang bayan
Exception: unless otherwise stated

in the ordinance or the resolution
approving
the local development
and public investment program
Ordinances with penal sanctions:
gist shall be published in a
Page 177 of 313
of
or
Barangay Ordinances
newspaper of general circulation

within the province where the local
legislative body concerned belongs
Absence of any newspaper: posting
shall be made in all municipalities
and cities of the province where the
sanggunian of origin is situated.
Highly urbanized and independent
component
cities:
the
main
features of the ordinance or
resolution in addition to being
posted , be published in a local
within the city
Absence of local newspaper: any
TEST: One where it may be reasonably

deduced that a member of a sanggunian
may not act in the public interest due to
some private, pecuniary, or other personal
considerations that may tend to affect his
judgment to the prejudice of the service or
the public
Castillo v CA (1991): Although the general
law requires only a majority, the higher
requisite vote shall govern since municipal
authorities are in a better position to
determine the evils sought to be prevented
by the inclusion or incorporation of
particular
provisions
in
enacting
a
particular statute and, therefore, to pass
the appropriate ordinance to attain the
main object of the law.
Malonzo v Zamora (1999):The LGC does not

mandate that no other business may be
transacted on the first regular session
except to take up the matter of adopting or
updating rules. All that the law requires is
that on the 1 regular sessionthe
sanggunian concerned shall adopt or
update its existing rules or procedures.
Until the completion of the adopted or
updated rules, the rules of the previous
year may be used.
Disclosure shall be made in writing and
submitted to the secretary of the
sanggunian
Form part of the record of the
proceedings and shall be made in the
following manner:
Made
before
the
member
participates in the deliberations on
the ordinance or resolution under
consideration
o If the member did not participate
during the deliberations, the
disclosure shall be made before
voting on the ordinance or
resolution on second and third
readings
o
Made when a member takes a
position or makes a privilege
speech on a matter that may
affect the business interest,
financial
connections,
or
professional relationship
Updated rules, the rules of the previous
year may be used.
Delos Reyes v Sandiganbayan (1997): The
signature of the mayor is not a mere
ministerial act, but involves the exercise of
discretion on the part of the local chief
executive.
Incidents
Power:
of
Law-Making
(Legislative)
Posting and Publication of:

Tax ordinances and Revenue
measures (sec188)
Within 10 days after approval
Certified true copies of all
provincial, city ,or municipal tax
ordinances or revenue measures
Published
in
full
for
3
consecutive days
In
a
newspaper
of
local
circulation
Where no such newspaper:
posted
in
at
least
2
conspicuous and publicity
accessible place
Page 178 of 313
Full disclosure of Financial and Business

Interests of Sanggunian Members
(sec50):
Upon assumption of office, make a
full disclosure of:
His business and financial
interests
Professional relationship or any
relation by affinity or
consanguinity within the fourth
civil degree
Which he may have with any
person, firm, or entity affected by
any ordinance or resolution which
relationship may result in conflict of
interest including:
Ownership of stock or capital, or
investment, in the entity or firm
to which the ordinance or
resolution may apply
Contracts or agreements with
any person or entity which the
ordinance or resolution under
consideration may affect conflict
of interest.
Ordinance with penal sanctions (sec

511)
At prominent places in the
provincial
capitol,
city,
municipal or barangay hall
Minimum period: 3 consecutive
weeks
Publication
In a newspaper of a general
circulation
Within territorial jurisdiction
Except: barangay ordinances
Effectivity:
unless
otherwise
provided on the day following its
publication or at the end of
period of posting, whichever is
later
Violation by public officer or
employee
o May be meted administrative
disciplinary action
o Without prejudice to filing of
appropriate civil or criminal
action
Duty
of
Secretary
of
Sanggunian:
o The transmit official copies
to the chief executive of
Official Gazette
o Within 7 days following
approval of ordinance
o Purpose for publication
o If with penal sanction: for
archival
and
reference
purposes
affected neither the jurisdiction of the trial

court nor the validity of the proceedings.
Judicial Intervention
(Rules of Court, Rule 63, Sec.4)
Actions involving the validity of a local
government ordinance:
Prosecutor or attorney of the LGU
involved shall be notified and
entitled to be heard;
Alleged to be
unconstitutional:
Solicitor General shall also be
notified and entitled to be heard.
Homeowners Association of the Phil. Inc. v

Municipal Board of Manila (1968): the failure
of the SolGen to appear in the lower court
to defend the constitutionality of an
ordinance is not fatal to the case. The
determination of the question of WON
the SolGen should be required to appear
in any action involving the validity of
any treaty, law, executive order, rule or
regulation is a matter left to the
discretion of the Court. Inasmuch as the
said requirement is not mandatory, but
discretionary, noncompliance therewith
Page 179 of 313
Chapter IV. Local Initiative and

Referendum
A.
B.
C.
D.
E.
F.
DEFINITION
REQUIREMENTS
PROCEDURE
EFFECTIVITY OF LOCAL PROPOSITIONS
LIMITATIONS ON INITIATIVES
LIMITATIONS UPON LOCAL LEGISLATIVE
BODIES
A. DEFINITION
NOTE:
Garcia v COMELEC (1994): Both a
resolution and an ordinance may be the
proper subjects of an initiative or a
referendum
(Based on LGC Sec. 120-127 and RA
6735: AN ACT PROVIDING FOR A
SYSTEM
OF
INITIATIVE
AND
REFERENDUM)
Initiative: legal process whereby the

registered voters of a LGU may directly
propose, enact, or amend any ordinance
Referendum: legal process whereby the

registered voters of the LGUs may
approve, amend or reject any ordinance
enacted by the sanggunian.
Who may exercise all registered

voters
of
the
provinces,
cities,
municipalities and barangays
B. REQUIREMENTS
b. Referendum
or
initiative
on
an
ordinance passed in a municipality:
petition must be signed by at least 10%
of the registered voters in the
municipality, of which every barangay is
represented by at least 3% of the

registered voters therein
c. Referendum or initiative on a barangay
resolution or ordinance: must be
signed by at least 10% of the registered
voters in said barangay
C. PROCEDURE
a. Not less than 1,000 registered in case of
provinces and cities, 100 in case of
municipalities, and 50 in case of
barangays, may file a petition with the
local legislative body, respectively,
proposing the adoption, enactment,
repeal, or amendment, of any law,
ordinance or resolution
b. If no favorable action thereon is made
by local legislative body within 30 days
from its presentation, the proponents
through their duly authorized and
registered representative may invoke
their power of initiative, giving notice
thereof to the local legislative body
concerned
c. 2 or more propositions may be
submitted in an initiative
d. Proponents shall have 90 days in case
of provinces and cities, 60 days in case
of municipalities, and 30 days in case of
barangays, from notice mentioned in
subsec. (b) hereof to collect the required
number of signatures
e. The petition shall be signed before the
Election Registrar, or his designated
representative, in the presence of a
representative of the proponent, and a
representative
of
the
regional
assemblies and local legislative bodies
concerned in a public place in the LGU
f. If the required number of the signatures
is obtained, the COMELEC shall then
set a date for the initiative for approval
of the proposition within 60 days from
the date of certification by the
COMELEC in case of provinces and
cities, 45 days in case of municipalities,
and 30 days in case of barangays
D. EFFECTIVITY
PROPOSITIONS
OF
LOCAL
If the proposition is approved by a majority

of the votes cast, it shall take effect 15 days
after certification by the COMELEC
Page 180 of 313
a. Referendum or initiative affecting a

resolution or ordinance passed by the
legislative assembly of a province or
city:
o petition must be signed by at least
10% of the registered voters in the
province or city,
o of which every legislative district
must be represented by at least 3%
of the registered voters therein;
o Provided, however, that if the
province or city is composed only of
1 legislative district, then at least
each municipality in a province or
each barangay in a city should be
represented by at least 3% of the
registered voters therein.
Chapter IV. Local Initiative and Referendum
Chapter IV. Local Initiative and Referendum
E. LIMITATIONS ON INITIATIVES
a. The power of local initiative shall not be
exercised more than once a year.
b. Initiative shall extend only to subjects
or matters which are within the legal
powers of the local legislative bodies to
enact.
c. If at any time before the initiative is
held, the local legislative body shall
adopt in toto the proposition presented,
the initiative shall be cancelled.
However, those against such action
may, if they so desire, apply for
initiative in the manner herein provided.
F. LIMITATIONS
UPON
LEGISLATIVE BODIES
LOCAL
Any proposition or ordinance or resolution

approved through the system of initiative
and referendum as herein provided shall:
a. not be repealed, modified or amended,
by the local legislative body concerned
within 6 months from the date
therefrom, and
b. may be amended, modified or repealed
by the local legislative body within 3
years by a vote of 3/4 of all its
members:
c. Provided, however, that in case of
barangays, the period shall be 18
months after the approval.
Local
Referendum
Any
local
legislative body may submit to the
registered voters of autonomous region,
provinces, cities, municipalities and
barangays for the approval or rejection,
any ordinance or resolution duly
enacted or approved.
Courts are not precluded from declaring

null and void any proposition approved
for violation of the Const. or want of
capacity of the local legislative body to
enact the said measure.
Referendum is the right reserved to the

people to adopt or reject any act or
measure which has been passed by a
legislative body and which in most
cases would without action on the part
of electors become law.
These law-making powers belong to the

people and the
COMELEC only
exercises
administration
and
supervision of the process.
Hence,
COMELEC cannot control or change the
substance or the content of the
legislation.
SBMA v. COMELEC (1996):

Initiative: power of the people to propose
bills and laws, and to enact or reject
them at the polls independent of the
legislative assembly.
Page 181 of 313
Chapter V. Municipal Liability

(asked in 1994)
A. SPECIFIC PROVISIONS MAKING LGUS
LIABLE
B. LIABILITY FOR TORTS, VIOLATION OF
THE LAW AND CONTRACTS
A. SPECIFIC PROVISIONS
LGUs LIABLE
MAKING
If
damage
resulted from an
act of LGU in the
performance
of
governmental
functions
If
engaged
in
proprietary
functions,
LGC, Sec. 24
LGUs and their officials are not exempt
from liability for death or injury to persons
or damage to property.
Civil Code, Art. 34
When a member of a city or municipal
police force refuses or fails to render aid or
protection to any person in case of danger
to life or property, such peach officer shall
be primarily liable for damages, and the city
or municipality shall be subsidiarily
responsible therefor.
Civil Code, Art. 2180, par. 6
The obligation imposed by Article 2176 is
demandable not only for ones own acts or
omissions, but also for those of persons for
whom one is responsible. X X X The State is
responsible in like manner when it acts
through a special agent; but not when the
damage has been caused by the official to
whom the task done properly pertains, in
which case what is provided in Article 2176
shall be applicable.
B. LIABILITY
FOR
TORTS,
VIOLATION OF THE LAW AND
CONTRACTS
LIABLE
Exercise of due
diligence in the
selection
and
supervision is not
a defense.
Defense of due
diligence in the
selection
and
supervision
available only if
the
function
involved
is
a
corporate
function because
this defense is
available only to
private
employers.
Among those that can make the LGU liable

are:
Back pay or wages of employees
illegally dismissed, including those
involving
primary
governmental
functions (eg policemen) [Guillergan v
Ganzon (1966)]
LGUs are also liable to pay their
employees statutory minimum wage
(even though the reason is lack of
funds) [Racho v Municipality of Iligan
(1968)]
Damages suffered through accidents

in national roads under the control
and supervision of an LGU ( cause is
unsafe road conditions, especially when
there is gross negligence [Municipality
of San Juan v. CA (2005)]
Also exemplary damages when
public officials acted with gross
negligence [Quezon City v Dacana
(2005)]
Contempt for refusal to abide by a TRO

issued by the court [Moday v CA (1997)]
Personal liability of public official:

Mayor
exceeding
authority
in
vetoing a resolution passed by the
Sanggunian [Pilar v Sangguniang
Bayan ng Dasol (1984)]
[Note that under CC27, a public
servant is personally liable for
damages for his refusal or neglect to
perform his official duty]
The LGU is liable on a contract it enters

into, provided the contract is intra vires.
If the contract is ultra vires, the LGU is
not liable.
NOTES:
If the LGU fails to
perform
a
governmental
function
(e.g.,
maintenance
of
roads under CC
Art.
2189,
rendering aid and
protection under
CC Art. 34)
LIABLE
Page 182 of 313
Civil Code, Art. 2189

Provinces, cities and municipalities shall be
liable for damages for the death of, or
injuries suffered by, any person by reason
of the defective condition of roads, streets,
bridges, public buildings, and other public
works under their control or supervision.
NOT
LIABLE
A private individual who deals with a

LGU is imputed with constructive
knowledge of the extent of the power or
authority of the LGU to enter into
contracts. Thus, ordinarily, the doctrine
of estoppel does not lie against the LGU.
Mendoza v. De Leon (1916): Municipal

corporations liability to private persons for
the wrongful exercise of the corporate
powers is the same as that of a private
corporation or individual.
Officers of municipalities charged with the
administration of patrimonial property of a
municipal
corporation
are
managing
officers of private corporations;
not for mere mistakes of judgment, but
only when their acts are so far opposed
to the true interests of the municipality
as to lead to the clear inference that no
one thus acting could have been
influenced by any honest desire to
secure such interests,
but that they must have acted with an
intent to serve some outside purpose
regardless of the consequences to the
municipality
and
in
a
manner
inconsistent with its interests.
Tuzon v. CA (1992): A public officer,
whether
judicial,
quasi-judicial
or
executive, is not personally liable to one
injured in consequence of an act performed
within the scope of his official authority,
and in line of his official duty.
Torio v. Fontanilla (1978): The holding of a

town fiesta is a proprietary function,
though not for profit, for which a
municipality is liable for damages to 3rd
persons ex contractu or ex delicto.;
that under the principle of respondeat
superior the principal is liable for the
negligence of its agents acting within
the scope of their assigned tasks; and
that the municipal councilors have a
personality distinct and separate from
the municipality,
Hence, as a rule they are not coresponsible in an action for damages for
tort or negligence unless they acted in bad
faith or have directly participated in the
commission of the wrongful act.
Page 183 of 313
Chapter VI. Intergovernmental Relations National Government and LGUs
Chapter VI. Intergovernmental

Relations National
Government and LGUs
Direct supervision over

Provinces
Highly urbanized cities
Independent component
cities
Through the province, with

respect to
Component cities
Municipalities
Through the city and

municipality, with respect to
barangays
I. EXECUTIVE SUPERVISION
II. CONSULTATIONS
III. RELATIONS WITH PNP
I. EXECUTIVE SUPERVISION
A. 1987 Constitution, Art. X, Sec. 2
and 4
(supra)
B. Administrative Code
Title XII Chapter I
OF
1987,
(as amended by RA 6975)

The Department of the Interior and
Local Government
DILG has primary role of preserving
internal security (including suppression
of insurgency)
AFP has primary role in preserving

external security
Supportive role of PNP

Upon call of President upon
recommendation of peace and order
council
In areas where there are serious
threats to national security and
public order
insurgents
have
gained
considerable foothold in the
community
thereby
necessitating the employment of
bigger tactical forces and the
utilization of higher caliber
armaments and better armored
vehicles
National Supervision over LGU

Supervision is exercised:
1. To ensure that acts of local
governments
and
their
component units are within the
scope of their prescribed powers
and functions. (Sec. 4, Art. X,
Constitution; Sec. 25(a) LGC)
2. To ensure that laws are
faithfully
executed
in
autonomous regions. (Sec. 16,
Art. X, Constitution)
President of the Philippines shall

exercise general supervision over:
Local governments (Sec.4,
Art. X, Constitution; Sec.
National Agencies (Sec. 25 (b),(c),(d)

LGC)
With project implementation
functions: ensure participation
of LGUs in planning and
implementation
of
national
projects;
With field units or branches in
an LGU: furnish the local chief
executive of the LGU concerned
with monthly reports including
duly
certified
budgetary
allocations and expenditures;
Upon request of LGU, the
President
may
direct
the
appropriate national agency to
provide financial, technical or
other forms of assistance at no
extra cost to the LGU concerned.
Ganzon v. CA, supra: The petitioners are

under the impression that the 1987
Constitution has left the President mere
supervisory powers, which supposedly
excludes disciplinary authority and the
power of investigation.
It is a mistaken impression because
supervision is not incompatible with
disciplinary authority, and investigating
is not inconsistent with overseeing in
supervision, although it is a lesser power
than altering in control. The Constitution
did not, for the sake of local autonomy,
intend to deprive the legislature or the
President of all authority over municipal
corporations, in particular, concerning
discipline.
Drilon v. Lim (1994): Sec. 187 of the LGC
authorizes the Secretary of Justice to
review only the Constitutionality or legality
of the tax ordinance and, if warranted, to
revoke it on either or both of these grounds.
He is not permitted to substitute his
Page 184 of 313
25(a) LGC)
Autonomous regions (Sec.16,
Art. X, Constitution)
own judgment for the judgment of the

local government that enacted the
measure. An officer in control may order
the act undone, or redone, or may even
decide to do it himself. Thus, the act of the
DOJ Secretary in declaring the Manila
Revenue Code null and void for noncompliance with the requirements of the
law was not an act of control but of mere
supervision.
II. CONSULTATIONS
(LGC Sec. 2(c), 26, 27)
A. Declaration of Policy
o
o
Policy of the State: require all national

agencies and offices to conduct periodic
consultations (before implementation of
any project or program) with
appropriate local government units
nongovernmental
and
people's
organizations
other concerned sectors of the
community
B. Maintenance
Balance
of
Ecological
(Sec. 26, LGC)
C. Prior Consultation
(Sec. 27, LGC)
No
project
implemented:
or
program
shall
be
1. Without prior consultation

with LGUs, non-governmental and
people's organizations, and other
concerned
sectors
of
the
community,
conductedRELATIONS
by
all
national agencies and offices (Sec.
2(c) LGC)
with
LGUs,
nongovernmental
organizations, and other sectors
concerned (Sec. 26 LGC)
o conducted by the national
2. Without prior approval of sanggunian

concerned
3. Without provision for appropriate
relocation sites for occupants who will
be evicted
MEMORANDUM CIRCULAR NO. 521993
All officers and employees of National
Government agencies and offices, including
GOCCs, to strictly comply with the
provisions of the LGC (and its IRR) on
consultation
Lina v. Pao (2001): The provisions on

consultation apply only to national
programs and/or projects which are to
implemented
in
a
particular
local
community. Moreover, Sec. 27 of the LGC
should be read in conjunction with Sec. 26
thus, the projects and programs mentioned
in Sec. 27 should be interpreted to mean
projects and programs that may:
o cause pollution
o bring about climactic change
o cause the depletion of non-renewable
resources
o result in the loss of crop land, rangeland or forest cover
o eradicate certain animal or plant
species from the face of the planet; and
o call for the eviction of a particular group
of people residing in the locality where
the said project/program will be
implemented
NOTES:
It shall be the duty of every national
agency or GOCC authorized or involved
Page 185 of 313
Duty of national agency or governmentowned or controlled corporation

Involved
in
planning
and
implementation of any project
That may cause pollution, climatic
change, depletion of non-renewable
resources, loss of crop land,
rangeland, or forest cover, and
extinction of animal or plant species
Consultation
with
LGUs,
nongovernmental organizations, and
other sectors concerned
agency or government-owned or
-controlled corporation
authorized or involved in the
planning and implementation of
any project or program that may
cause
- pollution
- climatic change
- depletion of non-renewable
resources
- loss of crop land, rangeland,
or forest cover
- extinction of animal or plant
species
Explain the goals and objectives
Explain its impact upon the
people and the community in
terms of
environmental or
ecological balance
Measures
that
will
be
undertaken
to
prevent
or
minimize the adverse effects
in the planning and implementation of

any project or program that may cause
pollution, climactic change, depletion of
non-renewable resources, loss of crop
land, rangeland or forest cover,
extinction of animal of plant species:
1. To consult with the LGUs, NGOs and
other sectors concerned; and
2. To explain: (a) the goals and objectives
of the project or program (b) its impact
upon the people and the community
in
terms
of
environmental
or
ecological balance; (c) the measures
that will be undertaken to prevent or
minimize the adverse effects thereof
(LGC, Sec. 26)
No project or program shall be
implemented by government authorities
unless:
1. the consultations mentioned above
are complied with; and
2. sanggunian concerned gave prior
approval (LGC, Sec. 27)
Occupants in areas where such projects
are to be implemented shall not be
evicted unless appropriate relocation
sites have been provided, in accordance
with the Const.
III.RELATIONS WITH
NATIONAL POLICE
PHILIPPINE
maintenance of peace and order

within the locality
1) Authority to choose the chief of police

from a list of 5 eligibles recommended
by the provincial police director,
preferably from the same province,
city or municipality
2) Authority to recommend to the
provincial
director
the
transfer,
reassignment or detail of PNP
members outside of their respective
city or town residences
3) Authority to recommend from a list of
eligibles previously screened by the
peace
and
order
council
the
appointment of new members of the
PNP to be assigned to their respective
cities or municipalities without which
no such appointments shall be
attested
Control and supervision of antigambling operations shall be within the

jurisdiction
of
local
government
executives
Governors and mayors, upon having

been elected and living qualified as
such, are automatically deputized as
representatives of the National Police
Commission
in
their
respective
jurisdiction
As
deputized
agents
of
the
Commission,
local
government
executives can inspect police forces
and units, conduct audit, and
exercise other functions as may be
duly authorized by the Commission
Powers of Local Chief Executives over

the Units of the PNP
Extent of operational supervision
and control of local chief executives
shall be governed by RA6975 (DILG
Act of 1991) and other rules and
regulations over the following:
o police force
o fire protection unit
o jail
management
personnel
assigned in their respective
jurisdictions
Grounds for suspension or withdrawal

of deputation:
1. frequent unauthorized absences
2. abuse of authority
3. providing material support to criminal
elements
4. engaging in acts inimical to national
security
or
which
negate
the
effectiveness of the peace and order
campaign
Participation
of
Local
Government
Executives in the Administration of the
PNP (RA 8551, Sec. 62065 )
Operational supervision and control:

power to direct, superintend, and
oversee the day-to-day functions of
police investigation of crime, crime
prevention activities, and traffic control
includes the power to direct the
employment and deployment of
units or elements of the PNP,
through the station commander, to
ensure public safety and effective
Andaya v. RTC (1999): The authority of the

mayor to choose the chief of police is very
limited. In reality, he has no power of
appointment; he has only the limited power
of selecting one from among the list of
recommendees. In effect, the power to
appoint the chief of police is vested in the
Regional Director.
Page 186 of 313
LGC, Sec. 28
City and municipal mayors shall have

the following authority over the PNP
units in their respective jurisdictions:
Chapter VII. Local Officials

I.
ELECTIVE LOCAL OFFICIALS

A. QUALIFICATIONS
B. DISQUALIFICATIONS
C. MANNER OF ELECTION
D. TERM OF OFFICE
E. RULES ON SUCCESSION
F. RECALL
G. DISCIPLINE
1. ADMINISTRATIVE ACTION
2. PENALTIES
i) SUSPENSION
ii) REMOVAL
3. POWER OF TRIBUNALS
4. ADMINISTRATIVE APPEALS
5. EFFECT OF RE-ELECTION
II. APPOINTIVE LOCAL OFFICIALS
A. APPOINTMENTS
B. DISCIPLINE
C. REMOVAL
D. OFFICIALS
COMMON
TO
ALL
MUNICIPALITIES,
CITIES
AND
PROVINCES
III. PROVISIONS APPLICABLE TO ELECTIVE
AND APPOINTIVE OFFICIALS
A. PROHIBITED INTERESTS
B. PRACTICE OF PROFESSION
C. PROHIBITION AGAINST APPOINTMENT
IV. LOCAL BOARDS AND COUNCILS
A. LOCAL SCHOOL BOARD
B. LOCAL HEALTH BOARD
C. LOCAL DEVELOPMENT COUNCIL
D. LOCAL PEACE AND ORDER COUNCIL
I. ELECTIVE LOCAL OFFICIALS

A. Qualifications
18
18
at least 15 years
of age but not
more than 18
years of age on
election day
(as
amended
under RA 9164)
Cipriano
v.
COMELEC
(2004):
The
COMELEC may not deny due course or
cancel
a
certificate
without
proper
proceedings. To receive and acknowledge
receipt of the certificates of candidacy is a
ministerial duty of the COMELEC. The
COMELEC does not have discretion to give
or not to give due course to the certificate.
It may not look into matters not appearing
on their face.
Minimum Age at
Election Day
21
Frivaldo v. COMELEC (1996): The LGC does

not specify any particular date or time
when the candidate must possess
citizenship, unlike the requirements for
residence and age. An official begins to
discharge his functions only upon his
proclamation and on the day the law
mandates his term of office to begin. Since
Frivaldo reassumed his citizenship on the
very day the term of office began, he was
therefore already qualified to be proclaimed,
to hold office and to discharge the functions
and responsibilities thereof.
Residency
Torayno v. COMELEC (2000): The residence
requirement is rooted in the desire that
officials of districts or localities be
acquainted with the needs, difficulties, and
other matters vital to the common welfare
of the constituents. The actual, physical
and personal presence is substantial
enough to show his intention to fulfill
the duties of mayor and for the voters to
Page 187 of 313
1. citizen of the Philippines

2. registered voter in the place where s/he
seeks to be elected
3. residency, in place where s/he seeks to
be elected, for at least 1 year
immediately preceding the day of the
election
4. able to read and write Filipino or any
other local language or dialect
5. age requirements:
- Governor
- Vice-governor
- Member of the
Sangguniang
Panlalawigan
- Mayor
- Vice-mayor
- Member of the
Sangguniang
Panlungsod of Highly
21
Citizenship
(Asked in 1992)
LGC Sec. 39
(Asked in 1992, 2003, 2005)
Candidate for
Urbanized Cities
- Mayor or
- Vice-mayor of
independent
component cities,
component cities, or
municipalities
- Member of the
Sangguniang
Panlungsod or
Sangguniang Bayan
- Punong barangay or
member of the
Sangguniang
Barangay
- Sangguniang
Kabataan
evaluate his qualifications for the

mayorship. A very legalistic, academic and
technical approach to the residence
requirement does not satisfy the rationale
for the said requirement.
Coquilla v. COMELEC (2002):
The term residence is to be
understood as referring to domicile or
legal residence, i.e., the place where a
party actually or constructively has
his permanent home, where he, no
matter where he may be found at any
given time, eventually intends to
return and remain (animus manendi).
Unlike citizenship, which may be

complied with even on the day the
candidate assumes office, residency
requires that the candidate must have
been a resident of the municipality for
at
least
1
year
immediately
preceding the day of the election.
(Asked in 1986, 1993, 1994, 1999,
2001)
Second-Placer Rule
(asked in 2003)
Labo v. COMELEC (1992):
The ineligibility of a candidate receiving
the majority of votes does not entitle
the eligible candidate receiving the
next highest number of votes to be

declared winner.
The rule would be different if the
electorate, fully aware of a candidates
disqualification so as to bring such
awareness within the realm of notoriety,
would nonetheless cast the votes in
favor of the ineligible candidate.
In such case, the electorate may be said
to have waived the validity and efficacy
of their votes by notoriously applying
their franchises or throwing away their
votes in which case, the eligible
candidate obtaining the next highest
number of votes may be deemed elected.
RA 8295: An Act Providing for the

Proclamation of a Lone Candidate for any
Elective Office in a Special Election, and for
other purposes
Sec. 4. Disqualification
In addition to the disqualifications in
Sec. 12 and 68 of the Omnibus Election
Code and LGC Sec. 40
whenever the evidence of guilt is
strong, the following persons are
disqualified to run in a special
election
Any elective official who has
resigned from his office by
accepting an appointive office or
for whatever reason which he
previously occupied but has
caused to become vacant due to
his resignation
Any person who, directly or
indirectly,
coerces,
bribes,
threatens, harasses, intimidates
or actually causes, inflicts or
produces any violence, injury,
punishment, torture, damage,
loss or disadvantage to any
person or persons aspiring to
become a candidate or that of
the immediate member of his
family, his honor or property
that is meant to eliminate all
other potential candidate [also
constitutes an election offense
under
Sec.5
RA8295
and
punishable under Sec. 264 of
the Omnibus Election Code]
RA 9225: Citizenship Retention and Reacquisition Act of 2003
Sec 5. Civil and Political Rights and
Liabilities:
(2) Those seeking elective public office in
the
Philippines
shall
meet
the
Page 188 of 313
LGC, Sec. 40
The following persons are disqualified
from running for any elective local
position:
Sentenced by final judgment for
an offense involving moral

turpitude or for an offense
punishable by 1 year or more of
imprisonment, within 2 years
after serving sentence
Removed from office as a result of
an administrative case
Convicted by final judgment for
violating the oath of allegiance to the
Republic
With dual citizenship
Fugitives from justice in criminal or
non-political cases here or abroad
Permanent residents in a foreign
country or those who have acquired
the right to reside abroad and
continue to avail of the same right
after the effectivity of this LGC
Insane or feeble-minded
Fugitive from justice:

Rodriguez v. COMELEC (1996): Intent
to evade must be the compelling
factor which animates ones flight
from a particular jurisdiction. There
is intent if there is knowledge by the
fleeing subject of an already instituted
indictment or of a promulgated
judgment of conviction.
Green Card holder:

(asked in 1993, 1994)
As provided in Caasi v. Court of
Appeals,
a
Filipino
citizens
acquisition of a permanent resident
status
abroad
constitutes
an
abandonment of his domicile and
residence
in
the
Philippines.
Ugdoracions acquisition of a lawful
permanent resident status in the
United States amounted to an
abandonment and renunciation of his
status as a resident of the Philippines;
it constituted a change from his
domicile
of
origin,
which
was
Albuquerque, Bohol, to a new domicile
of choice, which is the USA.
[Ugdoracion v. COMELEC (2008,
Nachura)]
Grounds for Disqualification
Other grounds:
Vote-buying (upon determination in
a
summary
administrative
proceeding) [Nolasco v. COMELEC
(1997)]
Removal
by
administrative
proceedings:
(perpetual
disqualification
[Lingating
v.
COMELEC (2002)])
Removal of a candidate prior to
LGC cannot be used as a ground
for disqualification [Grego v.
COMELEC (1997)]
Should be a final determination
[Lingating v. COMELEC (2002)]
Subsequent re-election cannot be
deemed a condonation if there was
already a final determination of his
guilt before the re-election [Reyes v.
COMELEC (1996)]
When re-election considered a
condonation: if the proceedings are
abated due to elections. In this case,
there is no final determination of
misconduct [Malinao v. Reyes
(1996)]
Effect of probation:
Probation has no effect to
applicability of Sec. 40(a) as it only
suspends the execution of the
sentence [dela Torre v COMELEC
(1996)]
(Sec. 40, LGC)
Moral Turpitude:
Fencing (Dela Torre v. COMELEC
[1996])
Direct bribery (Magno v. COMELEC
[2002])
Dual Citizenship:
Not an automatic disqualification;
filing of certificate of candidacy is
sufficient
to
renounce
foreign
citizenship (declaration under oath
of maintenance of true faith and
allegiance to the Constitution of the
Philippines) [Valles v. COMELEC
(2000)]
Mercado v. Manzano (1999): Dual

citizenship is not equivalent to
dual
allegiance
(a
person
simultaneously owes, by some
positive act, loyalty to 2 or more
states).
Dual citizenship is the result of the
concurrent application of different
laws of two or more states, wherein
a
person
is
simultaneously
considered a national by the said
states.
Page 189 of 313
qualification 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 and oath.
(3) Those appointed to any public office
shall subscribe and swear to an oath of
allegiance to the Republic of the
Philippines and its duly constituted
authorities prior to assumption of office.
Provided, that they renounce their oath
of allegiance to the country where they
took that oath;
(5) That right to vote or be elected or
appointed to any public office in the
Philippines cannot be exercised by, or
extended to, those who are:
candidates for or are occupying any
public office in the country of which
they are naturalized citizens; and/or
in active service as commissioned
officers in the armed forces of the
country which they are naturalized
citizens.
Sec. 41, LGC

Governor
Vice-governor, Mayor
Vice-mayor
(city/municipal)
Punong Barangay
SK Chairman
Regular Members of
Sangguniang
Panlalawigan,
Sangguniang
Panlungsod
and
Sangguniang Bayan
Elected at large by
qualified voters in
respective units
Elected
by
registered voters of
the katipunan ng
kabataan
Elected by district:
1st and 2nd-class
provinces= 10
regular members
D. Term of Office
(Asked in 1995, 2001, 2005, 2006,
2008)
All elective local officials, except
barangay officials (Sec. 8, Art. X,
Constitution; Sec. 43 LGC)
Term of office: 3 years from noon of
June 30, 1992 or the date provided
by law
All local officials first elected during the

local elections immediately following the
ratification of the 1987 Constitution
shall serve until noon of June 30, 1992;
No official shall serve for more than
3 consecutive terms for the same
position;
Voluntary renunciation of the office
for any length of time is not an
interruption in the continuity of his
service for the full term for which he
was elected
Barangay officials and members of

the Sangguniang Kabataan (Sec. 43
LGC)
Term of office: 3 years
After the regular
election
of
barangay officials on the second
Monday of May 1994
Existing
sub-provinces
converted
into regular provinces (Sec. 462 LGC)
New legislative districts continue to
be represented in Congress by the
duly-elected representatives of the
original districts out of which the
new provinces or districts were
created
until
their
own
representatives are elected in the
next regular congressional elections
and qualified
5th and 6th-class

=6
Sangguniang
Barangay Members
Presidents of Leagues of Sanggunian

Members of component cities &
municipalities shall serve as ex officio
members
of
the
sangguniang
panlalawigan concerned.
Presidents of Liga ng mga Barangay and

Pederasyon ng SK elected by their
respective chapters shall serve as ex
officio members of the sangguniang
panlalawigan, panlungsod and bayan
There shall be one (1) sectoral

representative
from
the
following
sectors:
o Women;
o Workers; and
o 1 from any of the following:
urban poor;
indigenous
cultural
communities;
disabled persons; or
any other sector determined by
the sanggunian within 90 days
prior to holding of next local
election
Vacancy in the offices occupied by

incumbent
elected
officials
or
resulting from expiration of their
terms of office in case of a negative
vote in the plebiscite results:
by appointment of the President;
appointees shall hold office until
their successors are elected in
the
regular
local
elections
following the plebiscite
After conversion of the newlycreated province, President shall

appoint:
Page 190 of 313
3rd and 4th-class

=8
Provided:
If
province
has
more
than
5
districts,
each
district shall have
2
sangguniang
panlalawigan
members.
Elected at large
COMELEC shall promulgate rules for

election
of
such
sectoral
representatives.
Governor
Vice-governor
Members of the sangguniang
panlalawigan
who shall hold office until
their successors are elected in
the next regular local elections
and qualified.
Qualified appointive officials and

employees in the career service of the
subprovinces at the time of their
conversion into regular provinces
shall continue in office in accordance
with civil service law, rules and
regulations.
RA 9164: Synchronized Barangay and

Sangguniang Kabataan Elections (2002)
Sec. 2 Term of Office
Term of office of barangay and
sangguniang kabataan officials: 3 years
No barangay elective official shall serve
for more than 3 consecutive terms in
the same position
Reckoned from the 1994 barangay
elections
Voluntary renunciation of office for
any length of time shall not be
considered as an interruption
RA 9006 Fair Election Act (2001)
Note: Sec. 14 of RA 9006 expressly

repealed Sec. 67 of BP 881 or the
Omnibus Election Code which states
that any elective official, whether
national or local, running for any office
other than the one which he is holding
in a permanent capacity, except for
President and Vice-President, shall be
considered ipso facto resigned from his
office upon the filing of his certificate of
candidacy.
What constitutes term of office?

Borja v. COMELEC (1998): The Constitution
contemplates service by local officials for
three consecutive terms as a result of an
election. The term limits for elective local
officials must be taken to refer to:
the right to be elected and

the right to serve in the same elective
position.
Consequently, it is not enough that an
individual has fully 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.
Lonzanida v. COMELEC (1999): [3rd term cut
short as his proclamation was declared
void] His assumption of office in 1995
cannot be deemed to have been by reason
of a valid election. Also, he did not fully
serve the 1995-98 mayoral term by reason
of involuntary relinquishment of office as he
was ordered to vacate his post before the
expiration of the term. Although he served
the greater portion of the said term, he
should not be considered disqualified
because he did not serve three full
consecutive terms.
Socrates v. COMELEC (2002): Involuntary
severance from office for any length of time
interrupts continuity of service and
prevents the service before and after the
interruption from being joined together
from a continuous service or consecutive
terms.
The Constitution does not require that
the interruption be a full term of 3 years.
The clear intent of the framers of the law is
that interruption for any length of time
is sufficient to break an elective local
officials continuity of service.
Latasa v. COMELEC (2003): The mayor of a
municipality held his post for three terms.
During his last term, the municipality
became a city and he was declared holdover mayor by the charter. The said mayor
should not be allowed to run again. If he
were allowed to do so, he would have served
the same people for a term more than what
is allowed by law.
Aguinaldo v. COMELEC (1999): Sec. 67
seeks to ensure that elective public officials
serve out their entire term of office by
discouraging them from running for
another public office and thereby cutting
short their tenure. The provision made it
clear that should they fail in their
candidacy, they cannot go back to their
former position. The law deems such an act
a voluntary renunciation.
Page 191 of 313
Sec. 14
An elective official running for any office
other than the one which he is holding
in a permanent capacity, is no longer
considered ipso facto resigned from his
office upon the filing of his certificate of
candidacy.
1. Successors in permanent vacancies

in office of local chief executive.
Votes
obtained
by
the
winning
candidate
-------------------------------------------Total number of registered voters in
each district
Sec. 44, LGC: (Asked in 1995, 1996,

2002, 2008)
Permanent vacancy entails that an

elective local official:
fills a higher vacant office;
refuses to assume office;
fails to qualify;
dies;
is removed from office;
voluntarily resigns; or
is
otherwise
permanently
incapacitated to discharge the
functions of his office.
Office where
Permanent
Vacancy
Occurs
Governor
Mayor
Office
of
the
governor
or
[and]
vicegovernor, mayor
or [and] vicemayor
the
Vice-governor
Vice-mayor
Highest
ranking
sanggunian member;
In
case
of
his
permanent inability,
the
2nd
highest
ranking sanggunian
member;
Subsequent
vacancies are filled
automatically by the
other
sanggunian
members according
to their ranking.
Highest
ranking
sanggunian barangay
member;
In
case
of
his
permanent inability,
the
2nd
highest
ranking sanggunian
member.
A tie between/ among the highest

ranking
sanggunian
members
is
resolved by drawing of lots.
Successors under S44, LGC serve only
for the unexpired terms of their
predecessors.
2. Permanent
sanggunian.
vacancies
in
the
Sec. 45, LGC (Asked in 1996, 2002)
If automatic succession as provided in

S44 does not apply, vacancy is to be
filled in by appointment made as
follows:
Office where
Permanent
Vacancy Occurs
Member
of
Sanggunian
Panlalawigan
or
Sangguniang
Panlungsod of highly
urbanized cities and
independent
component cities
Member
of
Sangguniang
Panlungsod
of
component
cities
and
the
Sangguniang Bayan
Member
of
the
Sangguniang
Barangay
Representation
of
the youth and the
barangay
in
the
sanggunian
Who Succeeds into

Office
Person appointed by
the
President,
through
the
Executive Secretary
Person appointed by
the governor
Person appointed by
the mayor, upon
recommendation of
the
Sangguniang
Barangay concerned
Official next in rank
of the organization
concerned
General rule: The appointee under Sec.

45 must be a nominee of the political
party under which the sanggunian
member (whose elevation to the position
next higher in rank created the vacancy)
had been elected.
Conditions sine qua non: There must be
a
nomination
and
certificate
of
membership from the highest official of
the political party or else the
appointment is:
null and void ab initio; and
a ground for administrative action
against the responsible official.
Page 192 of 313
Office
of
Punong
Barangay
Who Succeeds into

Office
The ranking in the sanggunian is based

on the immediately preceding local
election:
If sanggunian member who caused

vacancy does not belong to any political
party, the local chief executive shall
appoint a qualified person, upon
recommendation of the sanggunian.
The appointee under S45 serves the
unexpired term of the vacant office.
Exception: Sangguniang barangay.
If the vacancy pertains to barangay or
youth representation in the sanggunian,
the vacancy is automatically filled by
the official next in rank of the
organization concerned.
3. Temporary vacancy in the office of

the local chief executive.
Sec. 46, LGC.
(Asked in 2002)
Examples of local chief executives
temporary incapacity to perform duties
for physical/legal reasons:
leave of absence;
travel abroad;
suspension from office.
General rule: Vice-governor, city/

municipal vice-mayor, or the highest
ranking sangguniang barangay member
shall automatically exercise the powers
and perform the duties and functions of
the local chief executive.
Exception:
The
power
to
appoint/suspend/dismiss
employees can be exercised only if
the period of temporary incapacity
exceeds 30 working days.
If the local chief executive is traveling

within the country but outside his
territorial jurisdiction for a period not
exceeding 3 consecutive days, he may
designate in writing the officer-incharge.
General rule: The local chief executive

cannot authorize any local official to
assume the powers/duties/functions of
his office, other than the vice-governor,
city/municipal vice-mayor, or highest
ranking
sangguniang
barangay
member.
The authorization shall specify the

powers and functions that the officer-incharge shall exercise.
Exception: The power to appoint,
suspend and dismiss employees.
If the local chief executive fails/refuses

to issue the authorization, the vice-
governor, city/municipal vice-mayor, or

highest ranking sangguniang barangay
member has right to assume the
powers, duties, and functions of the
office on the 4th day of absence.
Exception:
The
power
to
appoint/suspend/dismiss
employees.
Office where
Temporary
Vacancy
Occurs
Governor
Mayor
Punong
barangay
Local
chief
executive
traveling
within
the
country
but
outside
his
territorial
jurisdiction
for a period
not exceeding
three
(3)
consecutive
days
Who Temporarily
Succeeds into Office
Vice-governor
(automatically)
Vice-mayor (automatically)
Highest
ranking
sanggunian
member
(automatically)
1) Person designated in
writing by the said
local chief executive
Authorization shall
specify the powers
and functions that
the designate will
exercise, except the
power to appoint,
suspend, or dismiss
employees
2) Vice-governor, vicemayor or highest
Sangguniang Barangay
member, if the local
chief executive fails or
refuses to designate
In this case,
assumption into
office shall be on
the 4th day of
absence of the local
chief executive
(automatically)
Menzon v. Petilla (1991): The LGC is silent

on the mode of succession when there is a
temporary vacancy in the office of the vicegovernor. In this case, there was a vacancy
when the vice-governor automatically
assumed the governorship pending the
determination of who is the local chief
executive. Because of such circumstances,
the President, through the Secretary of
Local
Government,
may
make
the
temporary appointment.
Gamboa v. Aguirre (1999): A vice-governor
who is concurrently an acting governor is
actually a quasi-governor. Being the acting
governor, the vice-governor can no longer
continue to simultaneously exercise the
Page 193 of 313
duties of the latter office, since the nature

of the duties of the governor hinders him
from discharging his duties for such office.
Hence, there is an inability on the part of
the regular presiding officer, the vicegovernor, to preside during the sanggunian
sessions, which calls for the election of a
temporary presiding officer.
Farias v. Barba (1996): The governor has
the power to fill a vacancy in the
Sangguniang Bayan caused by a member
not belonging to any political party. It is the
same manner as where the member
belonged to a political party. Where there is
no political party to make the nomination,
the Sanggunian where the vacancy occurs
must be considered authority for making
the
recommendation.
The
appointing
authority is limited to the appointment of
those recommended to his office. The
recommendation is a condition sine qua
non for the validity of the appointment.
4. Termination
Incapacity:
of
the
for sangguniang
barangay
members
5. Approval of Leaves of Absence.
The
local
executive
chief
punong
If the application for LOA is not acted

upon within 5 working days after
receipt, the application is deemed
approved.
Sec. 69-75, LGC

(Asked in 2002)
Recall is a mode of removal of a public

official by the people before the end of
his term of office. (Garcia v. COMELEC,
(1993))
Who has the power of recall: Power of

recall for loss of confidence is exercised
by the registered voters of the LGU.
[S69, LGC]
Effectivity: Upon the election and

proclamation of a successor in the
person of the candidate receiving the
highest number of votes cast during the
election on recall. Thus, if the official
sought to be recalled receives the
highest number of votes, confidence in
him is affirmed and he shall continue in
office. [S72, LGC]
Prohibition on resignation: An Elective

local official sought to be recalled is not
allowed to resign while the recall
process is in progress. [S73, LGC]
Expenses:
The
Annual
General
Appropriations Act contains a provision
for a contingency fund at the disposal of
the COMELEC. [S75, LGC]
RA 9244: An Act Eliminating the

Preparatory Recall Assembly as a Mode
of Instituting Recall of Elective Local
Government Officials, Amending for the
Purpose sec. 70-71 of the LGC of 1991.
LOA APPROVED BY:

The President or his
duly
authorized
representative
The
barangay
The governor
The Vice-governor or
city/municipal vicemayor
Page 194 of 313
Sec. 47, LGC.
The city/municipal
mayor
F. Recall
Temporary
Upon submission to the sanggunian of

a written declaration that he has
reported back to office.
If the temporary incapacity is due to
legal causes, he must also submit
the necessary documents showing
that the legal causes no longer exist.
LOCAL OFFICIAL
for governors;
mayors of
(i) highly
urbanized
cities or
(ii) independent
component
cities
for vice-governors;
for city/municipal
vice-mayors
for city/municipal
mayors of
component
cities/municipaliti
es
for the sanggunian
panlalawigan,
panlungsod and
pambayan
members;
its employees
for punong
barangays
Sec. 70. Initiation of the Recall Process

Petition of a registered voter in the LGU
concerned, supported by a percentage of
registered voters during the election in
which the local official sought to be recalled
was elected.
(Percentage decreases as population of
people in area increases. Also, the
supporting voters must all sign the petition)
Within 15 days after filing, the COMELEC

must certify the sufficiency of the required
number of signatures. Failure to obtain the
required number automatically nullifies the
petition.
Within 3 days from certification of

sufficiency, COMELEC provides the official
with a copy of the petition and causes its
publication for 3 weeks (once a week) in a
national newspaper and a local newspaper
of general circulation. Petition must also be
posted for 10 to 20 days at conspicuous
places. PROTEST SHOULD BE FILED AT
THIS POINT and ruled with finality 15 days
after filing.
COMELEC verifies and authenticates the

signatures.
COMELEC
candidates
announces
acceptance
of
COMELEC sets election within 30 days

upon completion of previous section in
barangay/city/municipality proceedings
(45 days in case of provinces)
Officials sought to be recalled are
automatically candidates
NOTE: Under RA9244, the Congress

removed the Preparatory Recall Assembly
as a mode of recall.
Paras v. COMELEC (1996): A Regular local
election is necessary in order to replace the
local elective official who is sought to be
recalled.
This does not include SK
elections.
Limitations on the Holding of Recalls
Sec. 74.
No recall shall take place within 1 year

from the date of assumption of office of
the official concerned
Rationale: to provide a reasonable
basis for judging the performance of
an elective local official
No recall shall take place within 1 year
immediately preceding a regular local
election
Rationale: a recall election is
potentially disruptive of the normal
working of the LGU necessitating
additional expenses
Claudio v. COMELEC (2000): Recall, as

used in par. b, sec. 74 prescribing the 1year limitation, refers to the election
itself (not the process of initiating the
recall proceedings). The purpose of the 1year limitation from assumption is to
prevent premature action without having
sufficient time to evaluate the officials
performance.
As long as the election is held outside the
1-year period, the preliminary proceedings
to initiate recall can be held even before the
end of 1 year from assumption.
Evardone v. COMELEC (1991): Whether or

not the electorate of the municipality
has lost confidence in their incumbent
mayor is a political question. Loss of
confidence is the formal withdrawal by the
electorate of their trust in a persons ability
to discharge his office previously bestowed
on him by the same electorate.
The 1-year period before regular local

election does not include the campaign
period.
Garcia v. COMELEC (1993): Recall is a

mode of removal of a public official by
the people before the end of his term of
office. The peoples prerogative to remove a
public official is an incident of their
AO 23, as amended by AO 159 (1994) and

AO 66 (1999): Prescribing the Rules and
Procedures
on
the
Investigation
of
Administrative Disciplinary Cases
G. Discipline
1. Administrative Action
Page 195 of 313
Sec. 71. Election on Recall
sovereign power and in the absence of

constitutional restraint, the power is
implied in all governmental operations.
Such power has been held to be
indispensable for the proper administration
of public affairs.
Coverage: administrative disciplinary

charges against
the governors, and members of the
sangguniang panlalawigan;
the mayors, vice mayors, and
members
of
the
sangguniang
panlungsod of highly urbanized
cities,
independent
component
cities, and component cities; and
the mayors, vice mayors, and
members
of
the
sangguniang
panlungsod or bayan of cities or
municipalities
in
Metropolitan
Manila
Disciplining Authority The President,
who may act through the Executive
Secretary
May still constitute a Special
Investigating Committee in lieu of
the DILG Secretary;
Nothing shall prevent the President
from assuming jurisdiction at any
stage of the proceedings over cases
to be preliminarily investigated by
the DILG; in such an event, the
same
shall
immediately
be
forwarded
to
the
Special
Investigating Committee after it may
have been constituted by the
Disciplining Authority.
Investigating
Authority
DILG
Secretary
o may constitute an Investigating
Committee in the DILG for the
conduct of investigation
Grounds for administrative action

(discipline, suspension, removal):
Disloyalty to the Republic of the
Philippines;
Culpable
violation
of
the
Constitution;
Dishonesty, oppression, misconduct
in office, gross negligence, or
dereliction of duty;
Commission of any offense involving
moral turpitude or any offense
punishable by at least prision
mayor, which is from 6 years and 1
day to 12 years imprisonment;
Abuse of authority;
Unauthorized
absence
for
15
consecutive working days in case of
local chief executives and 4
consecutive sessions in the case of
members of the sanggunian;
Application for, or acquisition of,
foreign citizenship or residence of
the status of an immigrant of

another country; and
Such other grounds as may be
provided by the Local Government
Code of 1991; Republic Act No.
6713; Republic Act No. 3019;
Administrative
Code
of
1987;
Revised Penal Code; and all other
applicable general and special laws.
How Initiated
by any private individual or any
government officer or employee by
filing a sworn written complaint
(verified)
by the Office of the President or any
government agency duly authorized
by law to ensure that LGUs act
within their prescribed powers and
functions
Elective
Official
against
whom
Administrative
Complaint is Filed
Provincial or city
official
Municipal official
Barangay official
Where
to
Complaint
File
Office
of
the
President
Sangguniang
Panlalawigan
Sangguniang
Panlungsod
or
Sangguniang Bayan
Preventive Suspension Sec. 63, LGC

(Asked in 1990, 1996)
Sole Objective: to prevent the
accused official from hampering the
investigation with his influence and
authority over possible witnesses
and keep him off the records and
other evidence. (Ganzon v. CA, 1991)
[cf. suspension as a penalty]
It may be imposed by the

Disciplining Authority in cases where
the respondent is an elective official:
Local Elective
Official of:
provinces
highly
urbanized
cities
independent
component
cities
municipalities
component city
barangay
Who may
impose:
President,
through
the
DILG
Secretary
Provincial
Governor
Mayor
The governor shall, upon the direct

order of the Disciplining Authority,
Page 196 of 313
preventively suspend an elective

official of a component city, who is
under
formal
administrative
investigation by the Office of the
President.
reinstatement, he shall be paid his

full
salary
or
compensation,
including
such
emoluments
accruing during such suspension.
(sec. 64)
At any time after the issues are

joined
(after
respondent
has
answered the complaint)
No preventive suspension shall be

imposed within 90 days immediately
prior to any local election. If the
preventive suspension has been
imposed prior to the 90-day period
immediately
preceding
a local
election,
it
shall
be
deemed
automatically lifted upon the start of
the period
Grounds for Preventive Suspension:

when the evidence of guilt is
strong and,
given the gravity of the offense,
there is a great probability that
the continuance in office of the
respondent could influence the
witnesses or pose a threat to the
safety and integrity of the
records and other evidence
Period:
Any
single
preventive
suspension of local elective officials
shall not extend beyond 60 days;
Espiritu v. Melgar (1992): The provincial

governor is authorized to preventively
suspend the municipal mayor any time
after the issues have been joined and any of
the following grounds were shown to exist:
o When there is reasonable ground to
believe that the respondent has
committed the act or acts complained of
o When the evidence of culpability is
strong
o When the gravity of the offense so
warrants
o When the continuance in office of the
respondent
could
influence
the
witnesses or pose a threat to the safety
and integrity of the records and other
evidence.
There is nothing improper in suspending an
officer before the charges are heard and
before he is given an opportunity to prove
his innocence. Preventive suspension is
allowed so that respondent may not hamper
the normal course of the investigation
through the use of his influence and
authority over possible witnesses. When a
local government official believes that he
has been wrongfully suspended, the proper
procedure is to exhaust administrative
remedies, i.e. seek relief from the DILG
Secretary, and not to file a case in court.
Expiration: the suspended elective

official shall be deemed reinstated in
office without prejudice to the
continuation of the proceedings
against him [which shall be
terminated within 120 days from
formal notice of the case]. However,
if the delay in the proceeding of the
case is due to his fault, or request,
other than the appeal duly filed, the
duration of such delay shall not be
counted in computing the time of
termination of the case. (sec. 63 (c))
Compensation: officer shall receive
no salary or compensation during
such
suspension;
but,
upon
subsequent
exoneration
and
Ganzon
v.
CA
(1991):
Piecemeal
suspensions should not be issued. If there
are several administrative cases against a
public official, these cases should be
consolidated for the purpose of ordering
preventive suspension, instead of issuing
an order of suspension for each case.
Elective local officials should be given the
benefit
of
simultaneous
service
of
suspension.
NOTE: The ruling in this case as to
simultaneous service of suspension is more
of an exception than the rule, because of
the following circumstances:
o Three separate orders of 60-day
preventive suspension were issued
against Ganzon
o Another order of preventive suspension
was issued before the SC promulgated
the decision ruling that suspension
should not be issued piecemeal
o The simultaneous service of suspension
will lessen the harsh effects of whatever
Page 197 of 313
Provided that, in the event that

several administrative cases are filed
against an elective official:
he
cannot
be
preventively
suspended for more than 90
days within a single year
on the same ground or grounds
existing and known at the time
of the first suspension.
ill motive may be behind the successive

suspension orders issued
Rights of the Respondent Official Full

opportunity to:
o Appear and defend himself in
person or by counsel
o Confront and cross-examine the
witnesses against him
o Require attendance of witnesses and
the production of documentary
evidence in his favor through
subpoena
or
subpoena
duces
tecum. (sec. 65)
Form and Notice of Decision
Shall be terminated within 90 days
from start thereof.
Office
of
the
President
or
Sanggunian concerned to render
decision
Within 30 days from end of
investigation
In writing
Stating clearly facts and reasons
Furnish copies to respondent and
interested parties. (sec. 66 a)
2. Penalties
a. Suspension
When the respondent has been meted 2

or more penalties of suspension for 2 or
more administrative offenses, such
penalties shall be served successively
(AO No. 159, Amending AO 23,
Prescribing the Rules and Procedures on
the Investigation of Administrative
Disciplinary Cases Against Elective Local
Officials, 1994)
b. Removal
An elective local official may be removed

by order of the proper court. (sec. 60)
The penalty of removal from office as a

result of administrative investigation
shall be considered a bar to the

candidacy of the respondent for any
elective position. (sec. 66 c)
[cf. effect of penalty of suspension]
Pablico
v.
Villapando
(2002):
Local
legislative bodies and/or the Office of the
President cannot validly impose the penalty
of dismissal or removal from service on
erring local elective officials. It is clear from
Sec. 60 of LGC that an elective local
official may be removed from office on
the grounds enumerated above only by
order of the proper court.
Art. 124 (b), Rule XIX of the Rules and
Regulations Implementing the LGC, which
states that an elective local official may be
removed from office by order of the proper
court or the Disciplining Authority whichever
first acquires jurisdiction to the exclusion of
the other is void for being repugnant to
Sec. 60, LGC.
But remember if its appointive, OP may
remove.
Salalima v. Guingona (1996). Petitioners
contest the administrative action as being
violative of Sec. 60, which mandates that
an elective local official may be removed
from officer only by order of the court, since
the duration of the suspension being 12-20
months exceeded their remaining terms.
The suspension was allegedly tantamount
to a removal.
Held: An administrative offense means
every act or conduct or omission which
amounts to, or constitutes, any of the
grounds for disciplinary action. The
offenses for which suspension may be
imposed are enumerated in Section 60.
Assuming for the moment that the Office of
the President is correct in its decisions in
each of the subject four administrative
cases:
It committed no grave abuse of
discretion in imposing the penalty of
suspension, although the aggregate
thereof exceeded six months and the
unexpired portion of the petitioners
term of office.
What is important is that the suspension
imposed for each administrative offense did
not exceed six months.
Page 198 of 313
Limitations: The penalty of suspension:

shall not exceed the unexpired term
of the respondent
shall not exceed a period of 6
months for every administrative
offense
shall not be a bar to the candidacy
of the respondent so suspended as
long as he meets the qualifications
required for the office. (Sec. 66,
LGC)
3. Power of Tribunals
The Ombudsman
(Asked in 1999, 2003)
Hagad
v.
Gozo-Dadole
(1993):
The
Ombudsman and the Office of the President
have concurrent jurisdiction to conduct
administrative investigations over local
elective officials. The LGC did not withdraw
the power of the Ombudsman under RA
6770.
Preventive
Suspension under
RA 6770
Requirements:
Maximum period:
60 days
Castillo-Co v. Barbers (1998): It is not only

the Ombudsman, but also his Deputy, who
may sign an order preventively suspending
officials. Also, the length of the period of
suspension within the limits provided by
law and the evaluation of the strength of
the evidence both lie in the discretion of the
Ombudsman. It is immaterial that no
evidence has been adduced to prove that
the official may influence possible witnesses
or may tamper with the public records. It is
sufficient that
possibility.
there
exists
such
The Courts
RA 3019
Segovia v. Sandiganbayan (1999): The term

office in Sec. 13 of RA 3019 (pertaining to
mandatory preventive suspension) applies
to any office which the officer might
currently be holding and not necessarily
the particular office in relation to which the
official is charged. The imposition of the
suspension, though mandatory, is not
automatic or self-operative. A pre-condition
is the existence of a valid Information,
determined at a pre-suspension hearing.
Sandiganbayan
PD 1606, as amended by RA 8249
Llorente v. Sandiganbayan (2000): It is the

officials grade that determines his or her
salary, and not the other way around. An
officials grade is not a matter of proof but a
matter of law which the court must take
judicial notice. Under Sec. 444(d) of the
LGC, the municipal mayor shall receive a
minimum
monthly
compensation
corresponding to SG 27. Thus, the cases
filed against the petitioner are within the
exclusive
jurisdiction
of
the
Sandiganbayan.
Inding v. Sandiganbayan (2004): If the
states that a certain officer is within
jurisdiction of the Sandiganbayan, the
that the officer's SG is below 27 does
divest jurisdiction.
law
the
fact
not
Rodriguez v. Sandiganbayan (2004): RA

8249 provides that as long as one of the
accused is an official of the executive
branch occupying the position otherwise
classified as SG 27 and higher, the
Sandiganbayan exercises exclusive original
jurisdiction. To vest Sandiganbayan with
jurisdiction, public office must be an
element of the crime OR that without the
public office, the crime could not have been
committed.
Page 199 of 313
1. the evidence of
guilt is strong;
AND
2. that any of the
following
circumstances
are present:
o the charge
against the
officer or
employee
should involve
dishonesty,
oppression or
grave
misconduct or
neglect in the
performance of
duty;
o the charges
should warrant
removal from
office; or
o the
respondents
continued stay
in office would
prejudice the
case filed
against him
Maximum period:
6 months
Preventive
Suspension under
the LGC
Requirements:
there is
reasonable
ground to believe
that the
respondent has
committed the act
or acts
complained of
the evidence of
culpability is
strong
the gravity of the
offense so
warrants; or
the continuance
in office of the
respondent could
influence the
witnesses or pose
a threat to the
safety and
integrity of the
records and other
evidence
4. Administrative Appeals
Sec. 67
Within 30 days from receipt of

decisions:
Decisions of:
Sangguniang
Panglungsod of
component cities
Sangguniang Bayan
Sangguniang
Panlalawigan
Sangguniang
Panglungsod of:
highly
urbanized cities
independent
component
cities
Office
of
the
President
May be appealed
before:
Sangguniang
Panlalawigan
Office of the President
[final and executory;

may not be appealed]
An appeal shall not prevent a decision

from becoming final or executory.
If respondent wins the appeal:
o He shall be considered as having
been placed under preventive
suspension during the pendency
of the appeal.
o If condoned, he shall be paid his
salary and other emoluments
during the pendency of appeal.
(sec. 68)
5. Effect of Re-election
Aguinaldo v. Santos (1992): Re-election
renders the administrative complaint
against the local official moot and
academic. A public official cannot be
removed for administrative misconduct
committed during a prior term, since the
re-election to office operates as a
condonation of the officers previous
misconduct to the extent of cutting off the
right to remove him therefore. But this rule
is applicable only to administrative cases,
not to criminal cases. (Asked in 2000)
II. APPOINTIVE OFFICIALS

A. Appointments
Dimaandal v. COA (1998): Under the LGC
and RAC, the provincial governor is not
authorized to appoint or even designate a
person in cases of temporary absence or
disability. Power resides in the President or
the Secretary of Finance.
NOTE: Difference between designation and
appointment In designation, additional
tasks are assigned, but there is no
corresponding salary increase.
Flores v. Drilon (1993): The Bases
Conversion Act provides that the mayor of
Olongapo shall be appointed SBMA
chairman for the first year of operations.
This violates the constitutional prohibition
against appointment or designation of
elective officials to other government posts.
Appointive officials may be allowed by law
or by the primary functions of his position
to hold multiple offices whereas elective
officials are not allowed, except as
otherwise recognized in the Constitution.
The provision also encroaches on executive
power to appoint. (Asked in 1995, 2003)
CSCs Role in Appointments
It cannot appoint but it can say if a person is
qualified or unqualified. If unqualified, it can
remove the person from office (basis is the
Omnibus Implementing Rules of RAC).
Grounds for RECALL of appointment
1. Non-compliance with procedure or
criteria provided in the agencys merit
promotion plan
2. Failure to pass through the agencys
selection/promotion board
3. Violation of existing collective agreement
between management and employees
relative to promotion
4. Violation of other existing civil service
law rules and regulations
Mathay v. CSC (1999): In disapproving or
approving
appointments,
CSC
only
examines
the conformity of the appointment with
applicable provisions of law
WON appointee possesses the minimum
qualifications
and
none
of
the
disqualifications
Mathay v. CA (1999): CSC has no authority
to direct that an appointment of a specific
individual be made. It can only attest to
WON the person chosen may fill the
Page 200 of 313
Berces v. Guingona (1995): Sec. 68 of the

LGC merely provides that an appeal shall
not prevent a decision from becoming final
or executory. As worded, there is room to
construe the provision as giving discretion
to the reviewing officials to stay the
execution of the appealed decision.
position. According to BP 337, the power to

appoint rests exclusively with the local chief
executive and cant be usurped by anyone
else.
B. Discipline
The appointing authority is generally

the disciplining authority.
De Rama v. CA (2001): The Constitutional

prohibition on midnight appointments
applies only to presidential appointments.
They do not apply to LGUs. For LGUs,
appointments of such nature are valid as
long as these meet all the requisites of a
valid appointment.
Disciplinary Jurisdiction (sec. 87)

[Except as otherwise provided by law],
the local chief executive may impose:
Removal from service (cf. elective
officials)
Demotion in rank
Suspension for not more than 1 year
w/o pay
- If not more than 30 daysnot
appealable
- If more than 30 days
appealable to the CSC
Fine not exceeding 6 months salary
Reprimand
Or otherwise discipline subordinate
officials and employees under his
jurisdiction.
Once an appointment has been made and

accepted, the appointee acquires a legal
right to the position--the appointing
authority cannot unilaterally revoke it
without cause, notice and hearing. But the
CSC may do so if it decides that the
requirements were not met.
Nepotism
(asked in 2008)
Debulgado v. CSC (1994): Mayor is not
allowed to appoint wife as head of Office of
General Services even if shes qualified
because of the prohibition against nepotic
appointments. This is based on Sec. 59
Book 5 of RAC. This prohibition covers all
appointments and original and personnel
actions (promotion, transfer, reinstatement,
re-employment).
Montuerlo v. Ty (2008, Nachura): The

appointment of Montuerlo was void because
the matter was never submitted to the
Sangguniang Bayan for its concurrence or,
even if so submitted, no such concurrence
was obtained. Even if there was a verbal
concurrence by the Sangunian, such is
not the concurrence required and
envisioned under the law.
The Sanggunian, as a body, acts through a
resolution or an ordinance. Absent such
resolution of concurrence, Montuerlos
appointment failed to comply with the
mandatory requirement of Section 443(a)
and (d) of R.A. No. 7160.
Garcia v. Pajaro (2002): The City Treasurer

has
authority
to
discipline
his
subordinates.
The power to discipline is specifically
granted by the Revised Administrative Code
to heads of departments, agencies and
instrumentalities, provinces, and cities.
The power to commence administrative
proceedings against subordinate officers is
granted by the Omnibus Rules to the
secretary of department, head of office,
head of LGU, chief of agency, regional
director, or person with sworn written
complaint. The City treasurer may also
motu
proprio
institute
disciplinary
proceedings against subordinates.
These rules must be reconciled with the
LGC, which gives the mayor the authority
to institute administrative and judicial
proceedings against any official or
employee of the city. In cases involving
the employees of the city treasurers office,
the mayor must file his complaint with the
treasurers office or with the DOF.
Without a valid appointment, Montuerlo

acquired no legal title to the Office of
Municipal Budget Officer, even if she had
served as such for ten years.
Page 201 of 313
CSC v. Tinaya (2005): The mayors

appointment was considered nepotic and
therefore prohibited when he made
permanent
the
appointment
of
his
daughters husband, who was appointed a
mere temporary post prior to the latters
marriage.
Mendez v. CSC (1991): No remedy of appeal

if the decision of the administrative case
exonerated the officer or employee. Party
adversely affected in PD 807 or The
Philippine Civil Service Law only refers to
the government employee against which the
case is filed.
Sangguniang Bayan of San Andres v. CA

(1998):
Requisites
to
constitute
resignation:
1. Intention
to
relinquish a part
of the term
2. Act
of
relinquishment
3. Acceptance
by
the
proper
authority
(Asked in 2000)
Essential elements
of abandonment:
1. Intent to
abandon
2. Overt act by
which the
intention is to be
carried into
effect
City Government of Makati City v. CSC

(2002): In interpreting its own rules as it
did, the CSC was acting within its
constitutionally
delegated
power
to
interpret its own rules. The CSC, by ruling
that the employee took an automatic leave
of absence, was merely interpreting its own
rule on requirement of approved leave.
n.
o.
p.
q.
r.
s.
III.PROVISIONS
APPLICABLE
TO
ELECTIVE
AND
APPOINTIVE
OFFICIALS
All
and
Secretary to the Sanggunian

Treasurer
Assessor
Accountant
Budget Officer
Planning and Development Coordinator
Engineer
Health Officer
Civil Registrar
Administrator Legal Officer
Agriculturist
Social Welfare and Development Officer
Environment and Natural Resources
Officer
Architect
Information Officer
Cooperatives Officer
Population Officer
Veterinarian
General Services Officer
Exceptions as to appointments by local
chief executive
secretary (appointed by vicegovernor or vice-mayor)
treasurer (appointed by secretary of
Finance)
Prohibited business and pecuniary interest.

Unlawful for any local government
official/employee
to
directly
or
indirectly:
Engage in any business transaction
with LGU local government unit:
in
which
he
is
an
official/employee;
over which he has the power of
supervision;
with any of its authorized
boards, officials, agents, or
attorneys,
if money/property or any thing
of value is to be in/directly
transferred out of the resources
of the LGU to such person or
firm;
Hold interests in any cockpit or
other games licensed by an LGU;
Purchase
any
realty/property
forfeited in favor of the LGU
for unpaid taxes/assessment; or
by virtue of a legal process at the
instance of the LGU.
Be a surety for any person
contracting or doing business with
the LGU which a surety is required;
Possess/use any public property of
the LGU for private purposes.
Other prohibitions governing the
conduct of national public officers
relating to prohibited business and
pecuniary interest:
RA 6713 (Code of Conduct and
Ethical Standards for Public
Officials/EEs);
Other laws.
Teves v. Sandiganbayan (2004): The
variance docrtrine applies here. As
applied in this case, the Variance Doctrine
holds that if the crimes charged include the
crimes proved, then there can be a
conviction for the crimes proved. Also, if
crimes proved include the crimes charged,
Page 202 of 313
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
In the barangay, the mandated

appointive officials are the Barangay
Secretary and the Barangay Treasurer,
although other officials of the barangay
may be appointed by the punong
barangay.
LGC Sec. 89
C. Removal
D. Officials
Common
to
Municipalities,
Cities
Provinces
then there can be a conviction for the

crimes charged.
Elements
of
unlawful
intervention
Accused is public
officer
Accused has direct
or indirect financial
or pecuniary interest
in any business,
contract,
or
transaction,
WON
prohibited by law
He intervenes or
takes part in his
official capacity in
connection
with
such interest
Elements
of
prohibited interest
member
concerned
is
defending the interest of the
government.
Public Officer
He has direct or
indirect financial or
pecuniary interest in
any
business,
contract, transaction
He
is
prohibited
from having such
interest
by
the
Const. or law
LGC, Sec. 90
All
governors
and
mayors
are
prohibited from:
o practicing their profession
o engaging in any occupation other
than the exercise of their functions
as local chief executives.
Sanggunian Members may

o Practice their profession
o Engage in any occupation
o Teach in schools
except during session hours
Provided, a member of the Bar
shall not:
(1) Appear as counsel before any
court in any civil case
wherein a local government
unit or any office, agency, or
instrumentality
of
the
government is the adverse
party;
(2) Appear as counsel in any
criminal case wherein an
officer or employee of the
national or local government
is accused of an offense
committed in relation to his
office.
(3) Collect any fee for their
appearance in administrative
proceedings involving the
local government unit of
which he is an official; and
(4) Use property and personnel
of the government except
when
the
sanggunian
Private Counsel/Lawyers
Local Officials
for
Elective
General Rule: A Legal Officer, one of

the appointive local officals common to
LGUs, is tasked to represent the LGU in
all civil actions and special proceedings
wherein the LGU or any official thereof,
in his official capacity, is a party. (sec.
481)
Ramos v. CA (1981): A municipality cannot

hire private counsel to file a suit in its
behalf. The RAC provides that only the
provincial fiscal and the municipal attorney
can represent a municipality or its official
in its lawsuits, except in cases where:
1) original jurisdiction is vested in the SC
2) where the municipality is a party
adverse to the provincial government or
the case is between two municipalities
3) He or his wife/child is pecuniarily
involved as heir, legatee, creditor, etc.
While a private prosecutor is allowed in
criminal cases, private counsel cannot
represent LGU even if in collaboration with
an authorized government lawyer except
that in the interest of substantial justice,
the municipality may adopt work already
performed in good faith by the private
attorney which was beneficial to it provided.
1) no injustice is heaped on adverse party
2) no compensation of any guise is paid.
Pillilla v. CA (1994): The municipalitys
authority to employ a private lawyer is
expressly limited only to situations where
the provincial fiscal is disqualified to
represent it. For the exception to apply, the
fact that the provincial fiscal was
disqualified to handle the municipalitys
case must appear on record. The refusal
of the provincial fiscal to represent the
municipality is not a legal justification for
employing the services of private counsel.
Instead of engaging the services of a special
attorney, the municipal council should
request the Secretary of Justice to appoint
Page 203 of 313
Doctors of Medicine may practice their

profession even during official hours of
work
o only on occasions of emergency
Provided, That the officials
concerned
do
not
derive
monetary
compensation
therefrom.
an acting provincial fiscal in place of the

provincial fiscal who has declined to handle
and prosecute its case in court.
Mancenido v. CA (2000): In resolving
whether a local government official may
secure the services of a private counsel in
an action filed against him in his official
capacity, the nature of the action and the
relief sought are to be considered. In view of
the damages sought, which if granted,
could
result
in
personal
liability,
respondents could not be deemed to have
been improperly represented by a private
counsel.
NOTES:
Instances when a private lawyer can
represent a LGU
When the municipality is an adverse
party in a case involving the
provincial government or another
municipality or city within the
province
Where original jurisdiction is vested
with the SC
Test as to when a local government
official can secure the services of
private counsel: Nature of the action
and the relief that is sought
C. Prohibition against Appointment
COA Cebu Province v. Province of Cebu

(2001): The Special Education Fund covers
the salary and benefits of extension classes
teachers but not college scholarship funds.
Proposes annual budgetary allocations

for the operation and maintenance of
health facilities and services
Serves as an advisory committee to the
sanggunian
concerned
on
health
matters
Creates committees which shall advice
local health agencies on personnel and
budgetary matters
Primary
duty:
to
initiate
a
comprehensive
multisectoral
development plan for the LGU which is
submitted to the sanggunian for
approval an assist the corresponding
sanggunian in setting the direction of
economic and social development, and
coordinating development efforts within
its territorial jurisdiction.
Formulate
and
recommend
such
measures to improve or enhance peace
and order and public safety
Monitor the implementation
Make periodic assessments of the
prevailing peace and order situation
IV. LOCAL BOARDS AND COUNCILS

Sec. 98-116
Determines the annual supplementary

budgetary needs for the operation and
maintenance of public schools
Authorizes the disbursal of funds from
the Special Education Fund
Serves as an advisory committee to the
Sanggunian concerned on educational
matters
Recommend changes in the names of
public schools.
Page 204 of 313
No elective official shall be eligible for

appointment or designation in any
capacity to any public office or position
during his tenure [Flores v Drilon (1993)]
Except
for
losing
candidates
in
barangay elections, no candidate who
lost in any election shall, within one
year after such election, be appointed to
any office in the government or any
GOCC or their subsidiaries.
Chapter VIII. Local Government Units
Chapter VIII. Local

Government Units
b. One party is a public officer or

employee, and the dispute relates to
the performance of his official
functions
c. Offenses punishable by imprisonment
exceeding 1 yr or a fine exceeding
P5,000.
d. Offenses where there is no private
offended party
e. Dispute involves real
properties
located
in
different
cities
or
municipalities (UNLESS they submit
their dispute to KP)
f. Dispute where parties who actually
reside in barangays of different cities
or municipalities (UNLESS they
submit their dispute to KP)
g. Cases as determined by the President.
A. THE BARANGAY
1. KATARUNGANG PAMBARANGAY
2. SANGGUNIANG KABATAAN
B. THE MUNICIPALITY
C. THE CITY
D. THE PROVINCE
A. THE BARANGAY
LGC Sec. 384-439
People v. Recto (2001): A barangay captain is
a person in authority and an attack on him
would amount to direct assault. On the other
hand, an attack on a barangay chief tanod
who was a mere bystander (not in the
performance of his duties) at the time the crime
was committed, is not direct assault as he is
merely an agent of a person in authority.
2) Conciliation is a precondition to filing of

complaint in court.
Wingarts v Mejia (1995): Initiatory
pleadings, if filed without compliance with
the precondition MAY be dismissed on
motion of any interested party on the
ground that it fails to state a cause of
action.
1. Katarungang Pambarangay
LGC Sec. 399-422
Uy v. Contreras (1994): The previous law on
Katarungang Pambarangay has already
been revised by the LGC and it has three
significant features:
PD 1508
No similar provision
Quick
Facts
Pambarangay
about
Katarungang
1) Subject Matter for Amicable Settlement:

All cases EXCEPT those listed under Sec.
408:
a. One party is the government or any
subdivision or instrumentality thereof
EXCEPTION: Minors and incompetents

may be assisted by their next-of-kin who
are NOT lawyers.
2. Sangguniang Kabataan
LGC Sec. 423-439
RA 9164 (2002) amended Sec. 424 and

428 of the LGC by lowering the maximum
age of the members of the Katipunan ng
Kabataan and elective officials of the
Sangguniang Kabataan from 21 to 18
years of age.
Garvida v. Sales (1997): An elective official of

the Sangguniang Kabataan should not be
more than 21 years (now 18 years) of age on
the day of his election. Not more than 21
years old is not equivalent to less than 22
years old.
B. THE MUNICIPALITY
LGC Sec. 440-447
Olivarez v. Sandiganbayan (1995): The
municipal mayor has the authority to issue
permits and licenses for the holding of
activities for any charitable or welfare
purpose [LGC444(b)(3)].
Page 205 of 313
Authority over criminal

offenses
limited
to
those punishable by
imprisonment
not
exceeding 30 days or a
fine
not
exceeding
P200
No similar provision
Local Government
Code
Authority over criminal
offenses
limited
to
those punishable by
imprisonment
not
exceeding 1 year or a
fine
not
exceeding
P5,000
Disputes arising from
the workplace where
the contending parties
are employed or at the
institution where such
parties are enrolled for
study, shall be brought
in the brgy where such
workplace
or
institution is located
Prescriptive periods of
offenses
suspended
during the pendency of
the
mediation,
conciliation
or
arbitration process
3) In all KP proceedings, the parties must

appear IN PERSON without the assistance
of counsel or representative.
Chapter VIII. Local Government Units
Quick Facts about the Municipality
2. Licenses and Permits
May be created, divided, merged, abolished only

by Congress subject to the approval by a
majority of he votes cast in a plebiscite in the
LGU directly affected.
Gordon v. Veridiano II (1988): A permit issued

by the mayor to a drugstore not previously
cleared with and licensed by the FDA will be a
nullity. However, the issuance of a mayors
permit is not mandatory once it is shown that
the FDA has licensed the operation of the
applicant. The city mayor may only revoke the
permits issued for violation of the local
requirements
imposed,
not
with
the
requirements
of
general
laws
and
implementing administrative rules.
Requisites for creation:

a. Ave. Annual income: 2.5M for the last 2
years;
b. Population: At least 25K
c. Territory: 50 square kilometers
d. Creation must not reduce land area,
population
or
income
of
original
municipality at the time of said creation to
less
than
minimum
requirements
prescribed therein.
C. THE CITY
LGC Sec. 448-458
Quick Facts about the City

a. Ave. Annual income: at least 20M for the
last 2 consecutive years
b. Population: Not less than 150K
c. Territory: 100 square kilometers
population
or
income
of
original
less
than
minimum
requirements
prescribed therein.
1. Authority over Officers
Dadole v. COA (2002): DBM cannot control

amount a city wants to give its judges as
allowance, as long as city has money to do so.
License/permit to do
business
Granted by the local
authorities
Authorizes the person
to engage in business
or
some
form
of
commercial activity
License to engage in
a profession
Board or Commission
tasked to regulate the
particular profession
Authorizes a natural
person to engage in
the practice or exercise
of his or her profession
NOTE: The power to issue licenses and

permits necessarily includes the power to
revoke, withdraw or restrict through the
imposition of certain conditions. However, the
conditions must be reasonable and cannot
amount to an arbitrary interference with the
business.
Canet v. Dacena (2004): Only the Sanggunian,
not the mayor of the city, has the power to
allow cockpits, stadiums, etc. Without an
ordinance, he cannot compel mayor to issue
him a business license.
D. THE PROVINCE
LGC Sec. 459-469
Quick Facts about the Province

a. Ave. Annual income: 20M
b. Population: Not less than 250K
c. Territory: 2K square kilometers
population
or
income
of
original
less
than
minimum
requirements
prescribed therein
Page 206 of 313
Negros Oriental II Electric Cooperative v.

Sangguniang
Panlungsod
(1987):
The
Sangguniang Panlungsod has no authority to
issue subpoenas and punish non-members
for legislative contempt. The contempt power
of the legislature is sui generis and local
legislative bodies cannot correctly claim to
possess it for the same reasons that the
national legislature does. The power to
subpoena witnesses and punish nonmembers for contempt may not also be
implied in the delegation of legislative power
as such partake of a judicial nature.
Acebedo Optical v. CA (2000): Distinction must

be made between the grant of a license or
permit to do business and the issuance of a
license to engage in the practice of a particular
profession. A business permit cannot, by the
imposition of conditions, be used to regulate
the practice of a profession.
Chapter IX. Miscellaneous and Final Provisions
Chapter IX. Miscellaneous and

Final Provisions
A. POSTING
AND
PUBLICATION
OF
ORDINANCES WITH PENAL SANCTIONS
B. PENALTIES FOR VIOLATION OF TAX
ORDINANCES
C. PROVISIONS FOR IMPLEMENTATION
A. Posting
and
Publication
of
Sec. 511, LGC
General rule: Ordinances with penal
sanctions shall be:
(1) posted at prominent places in the
provincial
capitol
or
city/municipal/barangay hall for at
least 3 consecutive weeks; &
(2) published in a newspaper of general
circulation (if available) within the
territorial jurisdiction of the LGU;
Exception: Barangay ordinances.
For publication, the secretary to the

sanggunian shall transmit official copies
of ordinances to the Official Gazette
chief executive office, within 7 days
following the approval of the ordinance.
OG may publish ordinances with penal
sanctions for archival and reference
purposes.
Effectivity of ordinances with penal
sanctions: On the day following its
publication, or at the end of the period
of posting, whichever occurs later.
Ordinance
provides
Penalties are imposed at the discretion

of the court.

Mandatory review every 5 years.
S521, LGC
Congress shall review LGC at least once
every 5 years and as often as it may
deem necessary;
Primary purpose: Providing a more
responsive
and
accountable
local
government structure.
Transitory Provisions
LGC Sec. 538
Deconcentration of Requisite Authority and
Power
6 months after the effectivity of LGC,
the national government shall effect the
deconcentration of requisite authority
and power
o to appropriate regional offices or
field offices of national agencies or
offices (major functions are not
devolved to LGUs)
LGC Sec. 539
Tax Ordinances or Revenue Measures
All existing tax ordinances or revenue
measures of LGUs shall continue to be
in force and effect after the effectivity of
this Code UNLESS
o amended
by
the
sanggunian
concerned
o or inconsistent with, or in violation
of, the provisions of LGC
Effect of public officer/EE violating an

ordinance: Administrative disciplinary
action,
without
prejudice
to
civil/criminal action.
B. Penalties for
Ordinances
Violation
of
Tax
Sec. 516, LGC

LGU sanggunian is authorized to
prescribe penalties for violation of tax
ordinances:
(1) Fines should be at least P1,000 but
not more than P5,000;
Exception:
Sangguniang
barangay may prescribe a fine of
at least P100 but not more than
P1,000.
(2) Imprisonment should be at least 1
month but not more than 6 months.
Page 207 of 313
Exception:
otherwise.
Chapter X. Application of LGC to Autonomous Regions and Other Entities
Chapter X. Application of LGC to

Autonomous Regions and
Other Entities
the powers that are normally granted to

public corporations, e.g. the power to
sue and be sued, the power to own and
dispose of property, the power to create
its own sources of revenue, etc.
I.
AUTONOMOUS
REGION
IN
MUSLIM
MINDANAO
II. CORDILLERA ADMINISTRATIVE REGION
III. THE
METROPOLITAN
MANILA
DEVELOPMENT AUTHORITY
LGC Sec. 526

Application of this Code to Local Government
Units in the Autonomous Regions
LGC applies to all provinces, cities,
municipalities and barangays in the
autonomous regions until such time as
the regional government has enacted its
own LGC.
I. THE AUTONOMOUS REGION IN

MUSLIM MINDANAO
Limbona
v.
Mangelin
(1989):
The
autonomous governments of Mindanao
involved in this case were created by PD
1618, even before the 1987 Const. They
were never meant to exercise the kind of
autonomy wherein the central government
commits an act of self-immolation. In fact, PD
1618 mandates that the President shall
have the power of general supervision and
control over Autonomous Regions.
III.THE METROPOLITAN MANILA

DEVELOPMENT AUTHORITY
RA 7924 (1995): An act creating theMMDA,
defining its powers and functions, providing
funds therefor and for other purposes
Metro Manila is constituted into a

special development and administrative
region subject to direct supervision of
the President.
Cities covered:
Caloocan
Manila
Mandaluyong
Makati
Pasay
Pasig
Quezon, and
Muntinlupa
Municipalities covered:
Las Pias
Malabon
Marikina
Navotas
Paraaque
Pateros
San Juan
Tagig
Valenzuela
The MMDA shall:

perform planning, monitoring and
coordinative functions, and
exercise regulatory and supervisory
authority over the delivery of metrowide services within Metro Manila
without diminution of the autonomy
of the LGUs concerning purely local
matters.
Pandi v. CA (2002): Through the passage of

the Organic Act of 2001 (RA 9054), the
devolved powers and functions under the
LGC could now be applied to the ARMM. This
means that the powers and functions of a
Provincial Governor under the LGC are now
enjoyed, as a minimum, by a Provincial
Governor in the ARMM.
II. CORDILLERA
REGION
ADMINISTRATIVE
EO. 220: Act Creating the Cordillera

Administrative Region
RA 6766: Organic Act of Cordillera
Autonomous Region
Cordillera Broad Coalition v. COA (1990):
The CAR is not a public corporation or a
territorial and political subdivision. It
does not have a separate juridical
personality, unlike provinces, cities and
municipalities. Neither is it vested with
NOTE: Under Sec. 16, Art. X of the Const.,

supervision over autonomous regions to
ensure that the laws are faithfully
executed.
The CAR was created primarily to

coordinate
the
planning
and
implementation
of
programs
and
services in the covered areas. The
creation of administrative regions for
the purpose of expediting the delivery of
services.
Page 208 of 313
Chapter X. Application of LGC to Autonomous Regions and Other Entities
Scope of MMDA Services
The MMDA is not even a "special

metropolitan political subdivision" as
contemplated in Section 11, Article X of
the Constitution. The creation of a "special
metropolitan political subdivision" requires
the approval by a majority of the votes cast
in a plebiscite in the political units directly
affected. R. A. No. 7924 was not submitted
to the inhabitants of Metro Manila in a
plebiscite. The Chairman of the MMDA is
not an official elected by the people, but
appointed by the President with the rank
and privileges of a cabinet member. In
fact, part of his function is to perform such
other duties as may be assigned to him by
the President, whereas in LGUs, the
President merely exercises supervisory
authority.
This
emphasizes
the
administrative character of the MMDA.
MMDA v. Garin. Sec. 5(f) of RA 7924 grants
the MMDA the duty to enforce existing
traffic rules and regulation. Thus, where
there is a traffic law or regulation validly
enacted by the legislature or those agencies
to whom legislative powers have been
delegated, MMDA is not precludedand
is in fact duty-boundto confiscate and
suspend or revoke drivers license in the
exercise of its mandate of transport and
traffic
management,
as
well
as
administration and implementation of all
traffic enforcement operations, traffic
engineering services and traffic education
programs.
This is consistent with the ruling in Bel Air
that the MMDA is a development
authority for the purpose of laying down
policies and coordinating with the various
national government agencies, peoples
organizations, NGOs and the private sector,
which may enforce, but not enact,
ordinances.
- end of Local Government Law -
Page 209 of 313
Services which
have
metro-wide
impact
and
transcend local political boundaries
or
entail huge expenditures such that
it would not be viable for said
services to be provided by the
individual LGUs comprising MM
including:
1. Development
planning,
investments programming, and
coordination and monitoring of
plan, program and project
implementation
2. Transport
and
traffic
management, provision for the
mass transport system and the
institution of a system to
regulate road users, traffic
engineering services and traffic
education programs, including
the institution of a single
ticketing system in MM
3. Solid
waste
disposal
and
management
4. Flood control and sewerage
management
5. Urban renewal, zoning, and land
use
planning,
and
shelter
services
6. Health and sanitation, urban
protection and pollution control
7. Public safety which include:
the
formulation
and
implementation of programs
and policies to achieve public
safety,
especially
preparedness for preventive
or rescue operations during
times of calamities and
disasters,
coordination
and
mobilization of resources and
the
implementation
of
contingency plans for the
rehabilitation
and
relief
operations in coordination
with
national
agencies
concerned.
MMDA v. Bel Air Village Association (2000).

The MMDA is not a political unit of the
government. It has no police power.
There is no grant of authority to enact
ordinances and regulations for the general
welfare of the metropolis.
Table of Contents

CHAPTER I. PUBLIC OFFICE
AND OFFICERS
A. Public Office
1. Definition
2. Purpose
3. Nature
4. Elements
Employment
Contract
7. No Vested Right to Public
Office
8. Public Office v. Property
Office
Public Office
of Office
B. Public Officer
1. Definition
2. A Person Cannot be
Compelled to Accept Public
Office; Exceptions
3. Public Officers Power is
Delegated, not Presumed
C. Classification of Public Offices
and Public Officers
D. De Facto Officers
2. Definition of De Facto Officer
a. De Facto v. De Jure
b. Officer De Facto v.
Intruder
3. Elements of De Facto
Officership
4. Office Created under an
Unconstitutional Statute
5. Legal Effect of Acts of De
Facto Officers
7. Right to Compensation of De
Facto Officer
A. Definitions
B. Power to Prescribe Qualifications
C. Time of Possession of
Qualifications
D. Presumption of Eligibility
E. Qualifications USUALLY
Prescribed
F. Religious Test/Qualification
Required
G. Disqualifications to Hold Public
213
214
214
214
214
215
215
215
215
215
216
216
216
217
217
217
217
218
222
CHAPTER III. FORMATION OF

OFFICIAL RELATION
225
A. Modes of Commencing Official

Relation
B. Election
C. Appointment
1. Definition
3. Classification of
Appointments
D. Qualification Standards and
Requirements under the Civil
Service Law
Office
4. Citizenship
5. Effect of Removal of
Qualifications during the
Term
Office
E. Discretion of Appointing Official
F. Effectivity of Appointment
G. Effects of a Complete, Final and
Irrevocable Appointment
H. Civil Service Commissions
(CSCs) Jurisdiction
I. Appointments to the Civil Service
225
225
225
225
225
225
226
226
227
227
227
227
228
228
228
228
229
229
229
229
218
219
219
219
219
CHAPTER II. ELIGIBILITY AND

QUALIFICATIONS
Office
212
212
212
212
212
213
220
220
220
221
221
221
222
Page 211 of 313
Chapter I. Public Office and Officers

FACULTY EDITOR
ACADEMICS COMMITTEE
Samantha Poblacion
EDITOR-IN-CHIEF
POLITICAL LAW
LECTURES
Carmi Tugday
Joey Capones
Edel Cruz
SUBJECT EDITORS
Jason Mendoza
HEAD
DEPUTY HEAD
-------Kae Guerrero
Justin Vincent La Chica
LEAD WRITER
Rania Joya
LAYOUT HEAD
-------Leo Zulueta
Michelle Maniwang
Law on
Public Officers
Chapter I. Public Office
and Officers
A. PUBLIC OFFICE
1. Definition
Fernandez v. Sto. Tomas (1995): The

term "public office" is frequently used to
refer to the right, authority and duty,
created and conferred by law, by which,
for a given period either fixed by law or
enduring at the pleasure of the creating
power, an individual is invested with
some portion of the sovereign functions
of government, to be exercised by that
individual for the benefit of the public.
Breakdown of the definition:

(nature) right, authority and duty
(origin) created and conferred by law
(duration) by which for a given
period either:
1) fixed by law or
2) enduring at the pleasure of the
appointing power
an individual is invested with some
portion of the sovereign functions of
the government
(purpose) to be exercised by him for
the benefit of the public.
2. Purpose
to effect the end for the governments

institution : common good;
NOT profit, honor, or private interest of

any person, family or class of persons
(63 Am Jur 2d 667)
3. Nature
Philippine Constitution
Art. XI
Sec. 1. Public office is a public trust. Public
officers and employees must, at all times, be
accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and
Page 212 of 313
A. PUBLIC OFFICE
1. DEFINITION
2. PURPOSE
3. NATURE
4. ELEMENTS
5. PUBLIC
OFFICE
V.
PUBLIC
EMPLOYMENT
6. PUBLIC OFFICE V. PUBLIC CONTRACT
7. NO VESTED RIGHT TO PUBLIC OFFICE
8. PUBLIC OFFICE V. PROPERTY
9. CREATION OF PUBLIC OFFICE
10. METHODS OF ORGANIZING PUBLIC
OFFICE
11. MODIFICATION AND ABOLITION OF
PUBLIC OFFICE
12. ESTOPPEL IN DENYING EXISTENCE OF
OFFICE
B. PUBLIC OFFICER
1. DEFINITION
2. A PERSON CANNOT BE COMPELLED
TO
ACCEPT
PUBLIC
OFFICE;
EXCEPTIONS
3. PUBLIC
OFFICERS
POWER
IS
DELEGATED, NOT PRESUMED
C. CLASSIFICATION OF PUBLIC OFFICES
AND PUBLIC OFFICERS
D. DE FACTO OFFICERS
1. DE FACTO DOCTRINE
2. DEFINITION OF DE FACTO OFFICER
A. DE FACTO V. DE JURE
B. OFFICER DE FACTO V. INTRUDER
3. ELEMENTS
OF
DE
FACTO
OFFICERSHIP
4. OFFICE
CREATED
UNDER
AN
UNCONSTITUTIONAL STATUTE
5. LEGAL EFFECT OF ACTS OF DE FACTO
OFFICERS
6. LIABILITIES OF DE FACTO OFFICERS
7. RIGHT TO COMPENSATION OF DE
FACTO OFFICER
WRITER
some of the sovereign functions of

government.
Here, the court held that Laurel, as
chair of the National Centennial
Commission (NCC), is a public
officer. The public office of NCC was
delegated
and
is
performing
executive functions: it enforces the
conservation and promotion of the
nations historical and cultural
heritage.
Such delegated function is a policy
embodied in the Constitution. It is
inconsequential that Laurel was not
compensated during his tenure. A
salary is a usual (but not necessary)
criterion for determining the nature
of a position. Also, the element of
continuance is not indispensable.
efficiency; act with patriotism and justice, and

lead modest lives.
Morfe v. Mutuc (1968): Public office is a

responsibility, not a right.
4. Elements
i.
Created by law or by authority of law

Public office must be created by:
Constitution
National Legislation
Municipal
or
other
bodys
legislation, via authority conferred
by the Legislature;
The first element defines the mode of

creation of a public office while the
other
elements
illustrate
its
characteristics.
ii. Possess a delegation of a portion of the

sovereign powers of government, to be
exercised for the benefit of the public
There are certain GOCCs which, though

created by law, are not delegated with a
portion of the sovereign powers of the
government (those that are purely
proprietary in nature), and thus may
not be considered as a Public Office.
5. Public
Office
Employment
Public employment as a position lacks

either one or more of the foregoing
elements of a public office.
(Bernard v. Humble [182 S.W. 2d. 24.
Cited by De Leon, page 8-9])1
Laurel v. Desierto (2002): the most

important
characteristic
which
distinguishes
an
office
from
an
employment is that:
the creation and conferring of an
office involves a delegation to the
individual of some of the sovereign
functions of government, to be
exercised by him for the benefit of
the public, and
that the same portion of the
sovereignty of the country, either
legislative, executive or judicial,
attached, for the time being, to be
exercised for the public benefit.
Unless the powers so conferred are of
this nature, the individual is not a
public officer.
Note: The elements of permanence and

continuity are dispensable.
On the dispensability of the element of
permanence: an example is the public
office of the Board of Canvassers, yet its
duties are only for a limited period of
time.
Laurel v. Desierto (2002): On the
dispensability of the element of
continuance: Mechem in one case states
that
the
the
most
important
characteristic in characterizing a
position as a public office is the
DELEGATION to the individual of
ALL DE LEON CITATIONS BASED ON: De Leon,

Hector.
THE LAW ON PUBLIC OFFICERS AND
ELECTION LAW. Rex Bookstore (2000).
Page 213 of 313
Public employment is broader than

public office. All public office is public
employment,
but
not
all
public
employment is a public office.
v. Must have permanence and continuity
Public
iii. Powers conferred and duties imposed

must be defined, directly or impliedly
iv. Duties must be performed independently
and without the control of a superior
power other than the law, UNLESS for
duties of an inferior or subordinate office
that created or authorized by the
Legislature and which inferior or
subordinate office is placed under the
general control of a superior office or
body
Defined as unhindered performance.
v.
6. Public Office v. Public Contract

How
Created
Object
Subject
Matter
Scope
Where
duties
are
defined
Public Office
Incident
of
sovereignty.
Sovereignty
is
omnipresent.
To carry out the
sovereign as well
as governmental
functions
affecting
even
persons
not
bound
by
the
contract.
A public office
embraces the idea
of
tenure,
duration,
continuity,
and
the
duties
connected
therewith
are
generally
continuing
and
permanent.
Duties that are
generally
continuing
and
permanent.
The law
Public Contract
Originates from
will
of
contracting
parties.
Obligations
imposed
only
upon
the
persons
who
entered into the
contract.
Limited duration
and specific in its
object. Its terms
define and limit
the rights and
obligations of the
parties,
and
neither
may
depart therefrom
without
the
consent of the
other.
Duties are very
specific to the
contract.
Contract
Modes of Creation of Public Office

by the Constitution
by statute / law
by a tribunal or body to which the
power to create the office has been
delegated
How Public Office is Created

GENERAL RULE: The creation of a
public office is PRIMARILY a
Legislative Function.
EXCEPTIONS:
where the offices are created by
the Constitution;
where the Legislature validly
delegates such power.
Segovia v. Noel (1925): A public office is

neither property nor a public contract.
Yet the incumbent has, in a sense, a
right to his office. If that right is to be
taken away by statute, the terms
should be clear.
Legislature should Validly Delegate

the Power to Create a Public Office
UST v. Board of Tax Appeals (1953):
Or else, the office is inexistent. The
Presidents authority to "reorganize
within one year the different
executive departments, bureaus and
other
instrumentalities
of
the
Government" in order to promote
efficiency in the public service is
limited in scope and cannot be
extended to other matters not
embraced therein.
8. Public Office is not Property.
A public office is not the property of the

public officer within the meaning of the
due process clause of the nonimpairment of the obligation of contract
clause of the Constitution.
Cornejo v. Gabriel (1920): It is a
public trust/agency. Due process is
Page 214 of 313
EXCEPTION: When the law is vague, the

persons holding of the office is protected
and he should not be easily deprived of his
office.
Exceptions:
In quo warranto proceedings
relating to the question as to which
of 2 persons is entitled to a public
office
In an action for recovery of
compensation accruing by virtue of
the public office
7. No vested right to public office.

GENERAL RULE: A public office, being a
mere privilege given by the State, does not
vest any right in the holder of the office.
This rule applies when the law is clear.
violated only if an office is

considered property. However, a
public office is not property within
the constitutional guaranties of due
process. It is a public trust or
agency. As public officers are mere
agents and not rulers of the people,
no man has a proprietary or
contractual right to an office.
Abeja v. Taada (1994): It is
personal.
Public
office
being
personal, the death of a public
officer terminates his right to occupy
the
contested
office
and
extinguishes his counterclaim for
damages. His widow and/or heirs
cannot be substituted in the
counterclaim suit.
Therefore, an executive order

depriving the Courts of First
Instance of jurisdiction over cases
involving recovery of taxes illegally
collected is null and void, as
Congress alone has the "power to
define, prescribe and apportion the
jurisdiction of the various courts."
(Art. VIII sec. 2)
But note: No law shall be passed
increasing the appellate jurisdiction
of the Supreme Court as provided in
this Constitution without its advice
and concurrence. (Art. VI, sec. 30)

of Office

Offices
Method
Singlehead
Board
System
Composition
one
head
assisted
by
subordinates
collegial body for
formulating
polices
and
implementing
programs
Efficiency
Swifter
decision
and action
but
may
sometimes
be
hastily made
Mature
studies
and deliberations
but may be slow
in responding to
issues
and
problems

Public Office
GENERAL RULE: The power to create
an office includes the power to modify
or abolish it (i.e. Legislature generally
has this power)
EXCEPTIONS:
Where the Constitution prohibits
such modification / abolition;
Where the Constitution gives the
people the power to modify or
abolish the office [i.e. Recall]
Ocampo v. Sec. of Justice (1955):
Abolishing an office also abolishes
unexpired term. The legislatures
abolition of an office (i.e. court) also
abolishes the unexpired term. The
legislative power to create a court
carries with it the power to abolish
it.
Is
Abandonment
equivalent
to
Abolition?
When a public official
voluntarily accepts an appointment to
an office newly created by law -- which
new office is incompatible with the
Mendenilla v. Onandia (1962): A person

is estopped from denying that he has
occupied a public office when he has
acted as a public officer; more so when
he has received public monies by virtue
of such office.
B. PUBLIC OFFICER
1. Definition
(What he is) He performs governmental

public functions / duties which involve
the exercise of discretion ( not clerical or
manual)
(How he became Public Officer) by virtue

of direct provision of law, popular
election, or appointment by competent
authority.
(Who ARE Public Officers)

Administrative Code
Sec. 2.
(14) The
term
officer
includes
any
government employee, agent, or body
authorized to exercise governmental
power in performing particular acts or
functions
Persons in authority and their

agents. Article 152, Revised Penal
Code.
A PERSON IN AUTHORITY is
any person, either an individual
or a member of a governmental
body, who is directly vested with
jurisdiction.
o The barrio captains and
barangay
chairmans
are
included.
o For RPC Articles 148 [Direct
Assaults]
and
151
[Resistance
and
Disobedience],
teachers,
professors,
and
persons
charged with the supervision
of public or duly recognized
private schools, colleges and
universities are included.
Page 215 of 313
former -- he will be considered to have

abandoned his former office.
Zandueta v. De La Costa (1938): Except
when the public official is constrained
to accept because the non-acceptance of
the new appointment would affect
public interest. (no abandonment)
An AGENT of a person in
authority is charged with the
maintenance of public order and
the protection and security of life
and property.
o They become such either by
direct provision of law, by
election or by a competent
authoritys appointment.
o Examples are barrio captain,
barrio councilman, barrio
policeman, barangay leader,
and any person who comes
to the aid of persons in
authority.
Temporary
functions.
performer
of
public
Maniego v. People (1951): A person

performing public functions even temporarily is a public
official. Here, a laborer temporarily
in charge of issuing summons and
subpoenas for traffic violations in a
judge's sala was convicted for
bribery under RPC 203.
According to the Court, the law is
comprehensive: who, by direct
provision of law, popular election or
appointment
by
competent
authority, shall take part in the
performance of public functions in the
Philippine Government, or shall
perform in said government or any of
its branches, public duties as an
employee, agent or subordinate
official or any rank or class
Money order-sorter and filer.

People v. Paloma (1997): A person
sorting and filing money orders in
the Auditor's Office of the Bureau of
Posts is obviously doing a public
function or duty. Such person here
was convicted for infidelity in the
custody of documents.
EXCEPTIONS:
When citizens are required, under
conditions provided by law, to
render personal military or civil
service (see Sec. 4, Art. II, 1987
Const.);
When a person who, having been
elected by popular election to a
public office, refuses without legal
motive to be sworn in or to
discharge the duties of said office.
This is a felony.
3. Public
Officers
Power
Delegated (not Presumed)
is
Villegas v. Subido (1971): A public

official exercises power, not rights. The
government itself is merely an agency
through which the will of the state is
expressed and enforced.
Its officers
therefore are likewise agents entrusted
with the responsibility of discharging its
functions.
As such, there is no
presumption
that
they
are
empowered to act. There must be a
DELEGATION of such authority,
either express or implied. In the
absence of a valid grant, they are devoid
of power.
C. CLASSIFICATION
OF
PUBLIC
OFFICES AND PUBLIC OFFICERS
Creation
Public Body Served
Department of government
to which their functions
pertain
Nature of functions
Exercise of Judgment or
Discretion
Legality of Title to office
Compensation
Constitutional
Statutory
National
Local
Legislative
Executive
Judicial
Civil
Military
Quasi-judicial
Ministerial
De Jure
De Facto
Lucrative
Honorary
Page 216 of 313
(Who are NOT Public Officers)

Special policemen salaried by a
private entity and patrolling only the
premises of such private entity
[Manila Terminal Co. v. CIR (1952)]
Concession forest guards [Martha
Lumber Mill v. Lagradante (1956)]
Company cashier of a private
corporation
owned
by
the
government [Tanchoco v. GSIS
(1962)]
2. A Person Cannot be Compelled to

Accept a Public Office.
D. DE FACTO OFFICERS
It is the doctrine that a person who is

admitted and sworn into office by the
proper authority is deemed to be
rightfully in such office until:
(a) he is ousted by judicial declaration
in a proper proceeding; or
(b) his admission thereto is declared
void.
Doctrines Purpose: to ensure the

orderly functioning of government. The
public cannot afford to check the
validity of the officer's title each time
they transact with him.
2. De Facto Officer Defined
Torres v. Ribo (1948): One who has the

reputation of being the officer that he
assumes to be, and yet is not a good
officer in point of law.
He must have:
acted as an officer for such length of
time,
under color of title and under such
circumstances of reputation or
acquiescence by the public and
public authorities,
as to afford a presumption of
election or appointment, and
induce people, without inquiry, and
relying on the supposition that he is
the officer he assumes to be, to
submit to or invoke his action.
A person is a de facto officer when the

duties of his office are exercised under
ANY of the following circumstances:
1. There is no known appointment or

election, but people are induced by
circumstances of reputation or
acquiescence to suppose that he is
the officer he assumes to be.
Consequently, people do not to
inquire into his authority, and
they submit to him or invoke his
action;
2. He possessed public office under
color of a known and valid
appointment or election, but he
failed to conform to some precedent
requirement or condition (e.g., taking
an oath or giving a bond);
3. He possessed public office under
color of a known election or
appointment, but such is VOID
because:
Hes ineligible;
The electing or appointing body
is not empowered to do such;
His exercise of his function was
defective or irregular;
(Important) The public does NOT
KNOW of such ineligibility, want
of power, or defect being.
He possessed public office under
color
of
an
election
or
an
appointment by or pursuant to a
public,
unconstitutional
law,
before the same is adjudged to be
such.
Norton v. County of Shelby
(1886): What is unconstitutional
is the officers appointment to an
office not legally existing, (not
creation of an unconstitutional
office).
a. Officer De Jure v. Officer De Facto

(Asked in 2000, 2004)
Requisites
De Facto
De jure office;
He is legally qualified for the office;
He assumed office under color of

right or general acquiescence by the
public;
He is lawfully chosen to such office;
Basis
Authority
of
He undertakes to perform the duties

of such office according to laws
prescribed mode.
Right:
He has the lawful right / title to the
office
He
actually
and
physically
possessed the office in good faith.
Reputation: He possesses office and
performs its duties under color of
right, but he is not technically
qualified to act in all points of law
Page 217 of 313
De Jure
A de jure office exists;
How ousted
Validity
official acts
Cannot be ousted.
of
Rule
on
Compensation
Valid, subject to exceptions (e.g.,

acting beyond his scope of authority,
etc.)
Rightfully entitled to compensation;
The principle "No work, no pay" is
inapplicable to him.
In
a
direct
proceeding
(quo
warranto);
( collaterally)
Valid as to the public until his title
to the office is adjudged insufficient.
Conditionally entitled to receive
compensation: only when no de jure
officer is declared;
He is paid only for actual services
rendered.
b. Officer De Facto v. Intruder

Nature
Basis
of
authority
Validity
of
"official" acts
Rule
on
compensation
De Facto
He becomes officer under any of the
4 circumstances discussed under
Part II (above).
Color of right or title to office
Valid as to the public until his title
to the office is adjudged insufficient
Entitled to receive compensation

only when no de jure officer is
declared and only for actual services
rendered.
An intruder / usurper may be

presumed a de facto officer with the
passage of time, when the public
presumes in their minds IN GOOD
FAITH that the intruder is rightfully
acting as a public officer.
3. Elements
of
Officership
De
Facto
before
declaration
unconstitutionality
of
Who are NOT considered De Facto

Officers?
Luna v. Rodriguez (1917): A judge
who has accepted an appointment
as finance secretary and yet renders
a decision after his acceptance: if he
has ceased to be judge by actually
accepting and entering into some
other office and has actually entered
upon the performance of the duties
of the other office, it is difficult to
understand how he can still be
considered as actually occupying
and performing the duties of the
office which he had abandoned and
vacated. An abandonment and a
vacation
of
an
office
is
inconsistent and repugnant to the
idea of actually continuing to
perform the duties of such office;
People v. So (1995): A judge whose
position has already been lawfully
abolished, and yet promulgates a
decision in a criminal case after the
abolition and over the fiscals
objection
Page 218 of 313
i. A validly existing public office;

ii. Actual physical possession of the office
in good faith;
iii. Color of title to the office:
c. Reputation or acquiescence;
d. Known and valid appointment or
election but the officer failed to
conform to a legal requirement
e. Known appointment or election but
void because of ineligibility of the
officer, or want of authority of the
appointing or electing authority, or
because of an irregularity in his
appointment or election, such
ineligibility, want of authority or
irregulatiry being unknown to the
public
f. Known appointment or election
pursuant to an unconstitutional law
Intruder
He possesses office and performs
official acts without actual or
apparent authority.
None. Neither lawful title nor color of
right to office.
Absolutely void; His acts can be
impeached at any time in any
proceeding (unless and until he
continues to act for a long time,
creating a presumption of his right
to act) (De Leon, 119)
Not entitled to compensation at all.
4. Office
created
under
unconstitutional statute
an
The prevalent view is that a person

appointed or elected in accordance with a
law later declared to be unconstitutional
may be considered de facto at least before
the declaration of unconstitutionality.
7. Right to Compensation
Facto Officer
5. Legal Effect of Acts of De Facto

Officers [Monroy v. CA (1967)]
As regards the officers themselves: A party

suing or defending in his own right as a
public officer must show that he is an
officer de jure. It is not sufficient that
he be merely a de facto officer.
As regards the public and third persons:
The acts of a de facto officer are valid as
to third persons and the public until
his
title
to
office
is
adjudged
insufficient.
RATIONALE: The doctrine is intended
not for the protection of the public
officer, but for the protection of the
public and individuals who get
involved in the official acts of persons
discharging the duties of a public
office.
De Facto Officers Official Acts are not
subject to collateral attack
RULE: A de facto officers and his
acts validity cannot be collaterally
questioned (in proceedings where he is
not a party, or were not instituted to
determine the very question.
REMEDY:
Quo
warranto
proceedings filed by:
The
person
claiming
entitlement to the office;
The
Republic
of
the
Philippines (represented by
the Solicitor-General or a
public prosecutor)

(De Leon, 130-131)
De
GENERAL RULE: None. A de facto

officer cannot sue for the recover of
salary, fees or other emoluments
attached to the office, for the duties he
has performed. His acts, as far as he
himself is concerned, are void. (63A Am.
Jur. 2d 1094-1095)
Monroy v CA (1967): the rightful
incumbent may recover from the de
facto officer the salary received by the
latter during his wrongful tenure, even
though he entered into the office in good
faith and under color of title.
EXCEPTIONS
Where there is no de jure public officer,
the officer de facto who in good faith
has had possession of the office and
has discharged the duties pertaining
thereto is legally entitled to the
emoluments of the office. (Monroy v.
CA [1967])
In Civil Liberties Union v. Executive
Secretary (1991), even as EO No. 284
was declared unconstitutional because
it allowed Cabinet members to hold
multiple offices in direct contravention
of the Constitution, it was held that
during their tenure in the questioned
positions, the respondents may be
considered de facto officers and as
such entitled to the emoluments of the
office/s for actual service rendered.
A de facto officer, not having good title,
takes the salaries at his risk and must
account to the de jure officer (when
there is one) for whatever salary he
received during the period of his
wrongful tenure, even if he occupied
the office in good faith.
BUT when the de jure officer
assumed another position under
protest, for which she received
compensation:
while
her
assumption to the said position and
her acceptance of the corresponding
emoluments do not constitute
abandonment of her rightful office,
she cannot recover full back
wages for such. She is only entitled
to back pay differentials between
the salary rates for the lower
position she assumed and the
position she is rightfully entitled to.
Gen. Manager,
Philippine Ports
Authority v. Monserate (2002)
Page 219 of 313
A de facto officer generally has the same

degree of liability in accountability for
official acts like a de jure officer.
The de facto officer may be liable for all
imposable penalties for ANY of the
following acts:
usurping or unlawfully holding office;
exercising the functions of public office
without lawful right;
ineligibility for the public office as
required by law
The de facto officer cannot excuse
responsibility for crimes committed in his
official capacity by asserting his de facto
status.
of
Chapter II. Eligibility and Qualifications
Chapter II. Eligibility and

Qualifications
A. DEFINITIONS
B. POWER TO PRESCRIBE QUALIFICATIONS
C. TIME
OF
POSSESSION
OF
QUALIFICATIONS
D. PRESUMPTION OF ELEGIBILITY
E. QUALIFICATIONS USUALLY PRESCRIBED
F. RELIGIOUS
TEST/QUALIFICATION
IS
NOT REQUIRED
G. DISQUALIFICATIONS TO HOLD PUBLIC
OFFICE
A. DEFINITION
Eligibility: endowment / requirement /
accomplishment that fits one for a
public office.
Qualification: endowment / act which a

person must do before he can occupy a
public office.
Note: Failure to perform an act required

by law could affect the officers title to
the given office. Under BP 881, the
office of any elected official who fails or
refuses to take his oath of office within
six months from his proclamation shall
be considered vacant unless said failure
is for cause or causes beyond his
control.
Lecaroz v. Sandiganbayan (1999):
An oath of office is a qualifying
requirement for a public office. Only
when the public officer has satisfied
this prerequisite can his right to
enter into the position be considered
plenary and complete. Until then,
he has none at all, and for as long
as he has not qualified, the holdover
officer is the rightful occupant.
Mendoza v. Laxina (2003): Once
proclaimed and duly sworn in office,
a public officer is entitled to assume
office and to exercise the functions
thereof. The pendency of an election
protest is not sufficient basis to
enjoin him from assuming office or
from discharging his functions.
B. POWER
TO
QUALIFICATIONS
PRESCRIBE
GENERAL RULE: Congress

is
empowered
to
prescribe
the
qualifications for holding public office.
In the absence of constitutional

inhibition, Congress has the same right
to provide disqualifications that it has
RESTRICTIONS on the Power of

Congress to Prescribe Qualifications:
Congress
cannot
exceed
its
constitutional powers;
Congress cannot impose conditions
of
eligibility
inconsistent
with
constitutional provisions;
The qualification must be germane
to the position ("reasonable relation"
rule);
Where the Constitution establishes
specific eligibility requirements for a
particular constitutional office, the
constitutional criteria are exclusive,
and Congress cannot add to them
except if the Constitution expressly
or impliedly gives the power to set
qualifications.
Congress
cannot
prescribe
qualifications so detailed as to
practically amount to making a
legislative appointment:
it is
unconstitutional and therefore void
for being a usurpation of executive
power examples:
Extensions of the terms of office
of the incumbents;
Flores v. Drilon (1993): A proviso
which limits the choices of the
appointing authority to only one
eligible, e.g. the incumbent
Mayor of Olongapo City;
Vargas v. Rilloraza (1948):
Designating
an
unqualified
person. The People's Court Act,
which
provided
that
the
President
could
designate
Judges
of
First
Instance,
Judges-at-large of First Instance
or Cadastral Judges to sit as
substitute
Justices
of
the
Supreme Court in treason cases
without them necessarily having
to
possess
the
required
constitutional qualifications of a
regular Supreme Court Justice.;
Manalang v. Quitorano (1954):
Automatic transfer to a new
office. A legislative enactment
abolishing a particular office and
providing for the automatic
transfer of the incumbent officer
to a new office created;
Cuyegkeng v. Cruz (1960):
Requiring inclusion in a list. A
provision
that
impliedly
prescribes inclusion in a list
Page 220 of 313
to provide qualifications for office. (De

Leon, 23)
submitted by the Executive

Council of the Phil. Medical
Association as one of the
qualifications for appointment;
and which confines the selection
of the members of the Board of
Medical Examiners to the 12
persons included in the list;
C. TIME
OF
POSSESSION
QUALIFICATIONS
OF
At the time specified by the Constitution

or law.
If time is unspecified, 2 views:

g. qualification during commencement
of term or induction into office;
h. qualification / eligibility during
election or appointment
(De Leon, 26-27)
D. ELIGIBILITY IS PRESUMED
IN FAVOR of one who has been elected

or appointed to public office.
The right to public office should be

strictly construed against ineligibility.
(De Leon, 26)
E. QUALIFICATIONS
BY CONSTITUTION
PRESCRIBED
1. For President
(Sec. 2, Art. VI, Constitution) and
Vice President (Sec. 3, Art. VII,
Constitution)
40 years old on election day
Philippine resident for at least 10
years immediately preceding election
day
2. For Senator
(Sec. 3, Art. VI, Constitution)
registered voter
resident of the Philippines for not
less than two years immediately
preceding election day
3. For Congressmen
(Sec. 6, Art. VI, Constitution)
registered voter in district in which
he shall be elected
resident thereof for not less than
one year immediately preceding
election day
4. Supreme Court Justice
Natural born citizen
at least 40 years old
15 years or more a judge or engaged
in law practice
of proven competence, integrity,
probity and independence (C.I.P.I.)
5. Civil Service Commissioners
(Sec. 1 [1], Art. IXB. Constitution)
35 years old at time of appointment
proven
capacity
for
public
administration
not a candidate for any elective
position in election immediately
preceding appointment
6. COMELEC Commissioners
(Sec. 1[1], Art. IXC)
Page 221 of 313
Eligibility is a continuing nature, and

must exist throughout the holding of
the public office. Once the qualifications
are lost, the public officer forfeits the
office.
Castaneda v. Yap (1952): No
estoppel in ineligibility. Knowledge of
ineligibility of a candidate and
failure to question such ineligibility
before or during the election is not a
bar to questioning such eligibility
after such ineligible candidate has
won and been proclaimed. Estoppel
will not apply in such a case.
Frivaldo
v.
COMELEC
(1996):
Citizenship requirement should be
possessed on start of term (i.e. on
filing
candidacy).
The
Local
Government Code does not specify
any particular date or time when the
candidate
must
possess
the
required citizenship, unlike for
residence and age. The requirement
is to ensure that no alien shall
govern our people and country or a
unit of territory thereof. An official
begins to govern or discharge his
functions only upon proclamation
and on start of his term. This liberal
interpretation gives spirit, life and
meaning to our law on qualifications
consistent its purpose.
college degree holder

not a candidate for elective position
in election immediately preceding
appointment
chairman and majority should be
members of the bar who have been
engaged in the practice of law for at
least 10 years
7. COA Commissioners
CPA with >10 year of auditing
experience or
Bar member engaged in practice of
law for at least 10 years
Not candidates for any elective
position in election immediately
preceding appointment.
Practice of Law defined. Cayetano v.

Monsod (1991): Practice of law means
any activity, in or out of court, which
requires the application of law, legal
procedure, knowledge, training and
experience. Generally, to practice law
is to give notice or render any kind of
service which requires the use in any
degree of legal knowledge or skill.
Residency
defined.
Aquino
v.
COMELEC (1995): In election law,
residence refers to domicile, i.e. the
place where a party actually or
constructively has his permanent home,
where he intends to return. To
successfully effect a change of domicile,
the candidate must prove an actual
removal or an actual change of domicile.
Presumption in favor of domicile of origin.

Marcos v. COMELEC (1995): Domicile
requires the twin elements of actual
habitual
residence
and
animus
manendi
(intent
to
permanently
remain). Domicile of origin is not easily
lost; it is deemed to continue absent a
clear and positive proof of a successful
change of domicile.
Philippine Constitution
Art. III
Sec. 5. No religious test shall be required for
the exercise of civil or political rights.
G. DISQUALIFICATIONS
PUBLIC OFFICE
TO
HOLD
IN GENERAL: Individuals who lack ANY

of the qualifications prescribed by the
Constitution or by law for a public office
are ineligible (i.e. disqualified from
holding such office).
Authority: The legislature has the right

to prescribe disqualifications in the
same manner that it can prescribe
qualifications,
provided
that
the
prescribed disqualifications do not
violate the Constitution.
General
Constitutional
Disqualifications
1. Losing candidates can not be
appointed to any governmental
office within one year after such
election. (Art. IX-B Sec. 6)
2. Elective officials during their tenure
are ineligible for appointment or
designation in ANY capacity to ANY
public office or position (Art. IX-B
Sec. 7(1))
3. Appointive officials shall not hold
any other governmental position.
Unless otherwise allowed by law
or
his
positions
primary
functions (Art. IX-B Sec 7 (2))
Note: National Amnesty Commission

v. COA (2004): There is no violation
when another office is held by a
public officer in an ex officio
capacity (where one cant receive
compensation or other honoraria
anyway), as provided by law and as
required by the primary functions of
his office.
8. Specific
Constitutional
Disqualifications
Public Officer
The President, Vice
President,
the
Members
of
the
Cabinet
and
their
deputies or assistants
Senator or Member of
the
House
of
Representatives
Disqualifications
shall not hold any other
office or employment
during their tenure,
UNLESS
otherwise
provided
in
the
Constitution, (Art. VII,
Sec. 13)
may not hold during his
term) any other office or
employment
in
the
Government, or any
subdivision, agency or
instrumentality thereof,
including government owned or -controlled
corporations or their
Page 222 of 313
F. RELIGIOUS TEST OR
QUALIFICATION IS NOT
REQUIRED
subsidiaries
effect: or else he forfeits
his seat
Members
of
the
Supreme Court and
other
courts
established by law
Members
of
Constitutional
Commission
the
Ombudsman and his

Deputies
Members
of
Constitutional
Commissions,
the
Ombudsman and his
Deputies
Members
of
Constitutional
Commissions,
the
Ombudsman and his
Deputies
The
Presidents
spouse and relatives
by consanguinity or
affinity within the
fourth civil degree
shall
also
not
be
appointed to any office
when such was created
or its emoluments were
increased during his
term. (Art. VI, Sec 13)
shall not be designated
to
any
agency
performing
quasijudicial
or
administrative
functions. (Art. VIII,
Sec. 12)
shall not hold any other
office or employment
[during their tenure].
(Art. IX-A, Sec. 2)
(Art. XI, Sec. 8)
must not have been
candidates
for
any
elective position in the
elections
immediately
preceding
their
appointment (Art IX-B,
Sec. 1; Art. IX-C, Sec.
1; Art. IX-D, Sec. 1; Art
XI, Sec. 8)
are appointed to 7-year
term,
without
reappointment
(Sec.
1(2) of Arts. IX-B, C, D;
Art. XI, Sec. 11)
shall not be appointed
during
Presidents
tenure as Members of
the
Constitutional
Commissions, or the
Office
of
the
Ombudsman,
or
as
Secretaries,
Undersecretaries,
chairmen or heads of
bureaus
or
offices,
including governmentowned-or
-controlled
corporations. (Art. VIII,
Sec. 13)
when such ineligibility is not

constitutional or statutory declared.
5. Previous tenure of office: for
example, an appointed Ombudsman
is
absolutely
disqualified
for
reappointment
(Article
XI,
Constitution).
6. Consecutive terms limit:
i. Vice-President = 2 consecutive
terms
ii. Senator = 2 consecutive terms
iii. Representative = 3 consecutive
terms
iv. Elective local officials = 3
consecutive terms (Sec. 8, Art.
X, Constitution)
7. Holding more than one office: to

prevent offices of public trust from
accumulating in a single person,
and to prevent individuals from
deriving, directly or indirectly, any
pecuniary benefit by virtue of their
dual position-holding.
Civil Liberties Union v. Executive
Secretary (1991):
Section 7, Article IX-B of the
Constitution generally prohibits
elective and appointive public
officials from holding multiple
offices or employment in the
government unless they are
otherwise allowed by law or by
the primary functions of their
position.
3. Impeachment
4. Removal or suspension from office:
not
presumed non-imposable
To apply the exceptions found in

Section 7, Article IX-B to Section
13, Article VII would obliterate
the distinction set by the
framers of the Constitution as
to the high-ranking officials of
the Executive branch.
Page 223 of 313
This provision does NOT cover

the President, Vice-President
and cabinet members they are
subject
to
a
stricter
prohibition under Section 13 of
Article VII.
Other Disqualifications
1. Mental or physical incapacity
2. Misconduct
or
crime:
persons
convicted of crimes involving moral
turpitude are USUALLY disqualified
from holding public office.
Public
officers
voluntary
renunciation of office for any
length of time an interruption
in the continuity of his service
for the full term for which he
was elected.
However, public officials holding

positions
without
additional
compensation
in
ex-officio
capacities as provided by law
and as required by their offices
primary
functions
are
not
covered by the Section 13,
Article VII prohibition.
8. Relationship with the appointing

power
General Rule on Nepotism: The
Civil Service Decree (PD 807)
prohibits all appointments in the
national and local governments
or any branch or instrumentality
thereof made in favor of the
relative of:
i. appointing authority;
ii. recommending authority;
iii. chief of the bureau office; or
iv. person exercising immediate
supervision
over
the
appointee
Relative: related within the third
degree of either consanguinity or
of affinity.
Exceptions to rule on nepotism:
persons employed in a
confidential capacity
teachers
physicians
members of the Armed
Forces of the Philippines
9. Under the Local Government Code

(sec. 40)
i. Sentenced by final judgment for
an offense involving moral
turpitude or for an offense
punishable by 1 year or more of
imprisonment, within 2 years
after serving sentence;
ii. Removed from office as a result
of an administrative case;
iii. Convicted by final judgment for
violating the oath of allegiance to
the Republic;
iv. Dual citizenship;
v. Fugitive from justice in criminal
or non-political cases here or
abroad;
vi. Permanent residents in a foreign
country or those who have
acquired the right to reside
abroad and continue to avail of
the same right after the
effectivity
of
the
Local
Government Code;
vii. Insane or feeble-minded.
Page 224 of 313
Chapter III. Formation of Official Relation
Chapter III. Formation of

Official Relation
A.
B.
C.
D.
E.
F.
G.
H.
I.
MODES OF COMMENCING OFFICIAL

RELATION
ELECTION
APPOINTMENT
1. DEFINITION
2. NATURE OF POWER TO APPOINT
3. CLASSIFICATION OF APPOINTMENTS
4. STEPS IN APPOINTING PROCESS
5. PRESIDENTIAL APPOINTEES
QUALIFICATION
STANDARDS
AND
REQUIREMENTS UNDER THE CIVIL
SERVICE LAW
1. QUALIFICATION STANDARDS
2. POLITICAL QUALIFICATIONS FOR AN
OFFICE (I.E. MEMBERSHIP IN A
POLITICAL PARTY)
3. NO PROPERTY QUALIFICATIONS
4. CITIZENSHIP
5. EFFECT
OF
REMOVAL
OF
QUALIFICATIONS
DURING
THE
TERM
6. EFFECT OF PARDON UPON THE
DISQUALIFICATION
TO
HOLD
PUBLIC OFFICE
DISCRETION OF APPOINTING OFFICIAL
EFFECTIVITY OF APPOINTMENT
EFFECTS OF A COMPLETE, FINAL AND
IRREVOCABLE APPOINTMENT
CIVIL SERVICE COMMISSIONS (CSCS)
JURISDICTION
APPOINTMENTS TO THE CIVIL SERVICE
Security
of
tenure?
Is prior/1st
office
abandoned
when
Election
Appointment
Others:
i. Succession by operation of law;
ii. Direct provision of law, e.g. ex-officio
officers
Selection or designation by a popular

vote
Vacancy for Validity. Castin v. Quimbo

(1983): For the appointment to be valid,
the position must be vacant

Concepcion v. Paredes (1921): The power
to appoint is intrinsically an executive
act involving the exercise of discretion.
Must be unhindered and unlimited by

Congress. Congress cannot either
appoint a public officer or impose upon
the President the duty to appoint any
particular person to an office. The
appointing power is the exclusive
prerogative of
the President, upon
which no limitations may be imposed
by Congress, EXCEPT those:
requiring the concurrence of the
Commission on Appointments; and
resulting from the exercise of the
limited legislative power to prescribe
the qualifications to a given
appointive office. (Manalang v.
Quitoriano [1954])
The Presidents power to appoint under

the Constitution should necessarily
have a reasonable measure of freedom,
latitude, or discretion in choosing
appointees. (Cuyegkeng v. Cruz [1960])
Where only one can qualify for the posts

in question, the President is precluded
from exercising his discretion to choose
whom to appoint. Such supposed power
of appointment, sans the essential
element of choice, is no power at all and
goes against the very nature itself of
appointment. (Flores v. Drilon [1993])
Extent
Powers
of
Limited
Appointment
Appointing
authority
selects
an
individual who
will occupy a
certain public
office
Comprehensive
3. Classification of Appointments
Permanent:
the permanent appointee:
must be qualified
must be eligible
Page 225 of 313
1. Definition
Designation
Imposition of
additional
duties
upon
existing office
a
2nd
appointive
position
is
assumed?
Usually YES
C. APPOINTMENT
Definition
a
2nd
designated
position
is
assumed?
NO
Political. Appointment is generally a

political question so long as the
appointee
fulfills
the
minimum
qualification requirements prescribed by
law.
B. ELECTION
Yes.
A. MODES
OF
COMMENCING
OFFICIAL RELATION
1.
2.
3.
No.
is constitutionally guaranteed
security of tenure
(Duration) until lawful termination.
Note: Conditional appointments are
not permanent.
Temporary:
an acting appointment;
the temporary appointee NEED NOT
be qualified or eligible;
(No Security of Tenure) revocable at
will: just cause or valid investigation
UNNECESSARY;
Marohombsar v. Alonto (1991):
an acting appointment is a
temporary
appointment
and
revocable in character.
A temporary appointee is like a
designated officer they:
o occupy a position in an
acting capacity and
o Sevilla v. CA (1992): do not
enjoy security of tenure.
Even a Career Service Officer
unqualified for the position is
deemed temporarily-appointed.
Thus he does not enjoy security
of tenure he is terminable at
will.
Romualdez III v. CSC (1991): A
public officer who later accepts a
temporary
appointment
terminates his relationship with
his former office.
EXCEPT Fixed-Period Temporary
Appointments: may be revoked
ONLY at the periods expiration.
Revocation
before expiration
must be for a valid cause.
(Duration)
until
a
permanent
appointment is issued.
For Appointments requiring confirmation:

Regular Appointments (NCIA)
1. President nominates.
2. Commission on Appointments
confirms.
3. Commission
issues
appointment.
4. Appointee accepts.
Ad-Interim Appointments (NIAC)

1. President nominates.
2. Commission
issues
appointment.
on
Appointments
For Appointments Not Requiring

Confirmation (AIA)
1. Appointing authority appoints.
2. Commission issues appointment.
Note: If a person is appointed to the

career service of the Civil Service, the
Civil Service Commission must bestow
attestation.
Who can be nominated and appointed

only
WITH
the
Commission
on
Appointments consent? (Art. VII, Sec.
16, 1987 Const.)
Heads of the executive departments;
Ambassadors;
Other public ministers and consuls;
Officers of the armed forces from the
rank or colonel or naval captain;
Other officers whose appointments
are
vested
in
him
by
the
Constitution,
including
Constitutional Commissioners (Art.
IX-B, Sec. 1 (2) for CSC; Art. IX-C,
Sec. 1 (2) for COMELEC; Art. IX-D,
Sec. 1 (2) for COA).
Who can the President appoint WITHOUT

CAs approval?
All other officers of the government
whose
appointments
are
not
otherwise provided for by law;
Those whom he may be authorized
by law to appoint;
Members of the Supreme Court;
Judges of lower courts;
Ombudsman and his deputies
Kinds of Presidential Appointments

Regular:
made by the President
while Congress is in session after
the nomination is confirmed by the
Commission of Appointments, and
continues until the end of the term.
Ad interim: made while Congress is
not in session, before confirmation
by
the
Commission
on
Appointments; immediately effective
and ceases to be valid if disapproved
or bypassed by the Commission on
Appointments. This is a permanent
appointment and it being subject to
confirmation does not alter its
permanent character.
Page 226 of 313
4. Commission
confirms.
Efficient. Recess appointment

power keeps in continuous
operation
the
business
of
government when Congress is
not in session. The individual
chosen may thus qualify and
perform his function without
loss of time.
Duration. The appointment shall
cease to be effective upon
rejection by the Commission on
Appointments, or if not acted
upon, at the adjournment of the
next session, regular or special,
of Congress.
Permanent. Matibay v. Benipayo
(2002):
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.
Not Acting. An ad interim
appointment is distinguishable
from an acting appointment
which is merely temporary, good
until
another
permanent
appointment is issued.
Applicable
to
COMELEC
Commissionsers,
being
permanent appointments, do not
violate
the
Constitutional
prohibition on temporary or
acting
appointments
of
COMELEC Commissioners.
D. QUALIFICATION STANDARDS AND

REQUIREMENTS
UNDER
THE
CIVIL SERVICE LAW
It
enumerates
the
minimum
requirements for a class of positions in
terms of education, training and
experience, civil service eligibility,
physical fitness, and other qualities
required for successful performance.
(Sec. 22, Book V, Administrative Code)
The Departments and Agencies are
responsible
for
continuously
establishing,
administering
and
maintaining the qualification standards
as an incentive to career advancement.
(Sec. 7, Rule IV, Omnibus Rules)
Such establishment, administration,
and maintenance shall be assisted and
approved by the CSC and shall be in
consultation with the Wage and Position
Classification Office (ibid)
It shall be established for all positions
in the 1st and 2nd levels (Sec. 1, Rule
IV, Omnibus Rules)

Office (i.e. membership in a political
party)
GENERAL
RULE:
Political
qualifications are NOT Required for
public office.
EXCEPTIONS:
Membership
in
the
electoral
tribunals of either the House of
Representatives or Senate (Art. VI,
Sec. 17, 1987 Const.);
Party-list representation;
Commission on Appointments;
Vacancies in the Sanggunian (Sec.
45, Local Government Code)
Maguera v. Borra and Aurea v.

COMELEC (1965): Since sovereignty
resides in the people, it is necessarily
implied that the right to vote and to be
voted should not be dependent upon a
candidates wealth. Poor people should
also be allowed to be elected to public
office
because
social
justice
presupposes equal opportunity for both
rich and poor.
Page 227 of 313
By-passed Appointee may be

Reappointed. Commission on
Appointments
failure
to
confirm
an
ad
interim
appointment
is
NOT
disapproval. An ad interim
appointee disapproved by the
COA cannot be reappointed. But
a by-passed appointee, or one
whose appointment was not
acted upon the merits by the
COA, may be appointed again
by the President.
4. Citizenship
Aliens not eligible for public office.
Frivaldo v. COMELEC (1996): The

purpose of the citizenship requirement
if to ensure that no alien, i.e., no person
owing allegiance to another nation,
shall govern our people and country or
a unit of territory thereof.
in the nature and character of the

appointment intended (i.e., whether the
appointment
is
permanent
or
temporary).
Inclusive
Power.
The
appointing
authority
holds
the
power
and
prerogative to fulfill a vacant position in
the civil service.
Widely used (need not state reason) in

Transferring, Reinstating, Reemploying
or Certifying.
5. Effect
of
Removal
of
Qualifications During the Term
Pineda v. Claudio (1969): To hold that

the Civil Service Law requires filling up
any vacancy by promotion, transfer,
reinstatement,
reemployment,
or
certification IN THAT ORDER would be
tantamount to legislative appointment
which is repugnant to the Constitution.
What it does purport to say is that as
far as practicable the person next in
rank should be promoted, otherwise
the vacancy may be filled by transfer,
reinstatement,
reemployment
or
certification, as the appointing power
sees fit, provided the appointee is
certified to be qualified and eligible.
Termination from office.

Office
(Asked in 1999)
GENERAL RULE: Pardon

will
not
restore the right to hold public office.
(Art. 36, Revised Penal Code)
EXCEPTIONS:
When the pardons terms expressly
restores such (Art. 36, RPC);
Garcia v. Chairman, COA (1993):
When the reason for granting
pardon is non-commission of the
imputed crime.
E. DISCRETION
OFFICIAL
Promotion of next-in-rank career officer

is not Mandatory. The appointing
authority should be allowed the choice
of men of his confidence, provided they
are qualified and eligible.
When Abused, use Mandamus.

Gesolgon v. Lacson (1961): Where the
palpable excess of authority or abuse of
discretion
in
refusing
to
issue
promotional appointment would lead to
manifest injustice, mandamus will lie to
compel the appointing authority to
issue said appointments.
Upon recommendation is not Merely

Advisory.
APPOINTING
Presumed.
Reyes v. Abeleda (1968): Administrators
of
public
officers,
primarily
the
department heads should be entrusted
with plenary, or at least sufficient,
discretion. Their position most favorably
determines who can best fulfill the
functions of a vacated office. There
should always be full recognition of the
wide scope of a discretionary authority,
UNLESS the law speaks in the most
mandatory
and
peremptory
tone,
considering all the circumstances.
Discretionary Act.
Lapinid v. CSC (1991): Appointment is
an essentially discretionary power. It
must be performed by the officer in
whom it is vested, the only condition
being that the appointee should possess
the qualifications required by law.
Sec. 9. Provincial/City Prosecution Offices.

[par. 3] All provincial and city prosecutors
and their assistants shall be appointed by
the President upon the recommendation of
the Secretary.
The phrase upon recommendation

of the Sec. of Justice should be
interpreted to be a mere advise. It is
persuasive in character, BUT is not
binding or obligatory upon the
person to whom it is made.
Scope. The discretion of the appointing

authority is not only in the choice of the
person who is to be appointed but also
Page 228 of 313
OF
F. EFFECTIVITY OF APPOINTMENT
Immediately
upon
appointing
authoritys issuance. (Rule V, Sec. 10,
Omnibus Rules).
G. EFFECTS OF A COMPLETE, FINAL

AND
IRREVOCABLE
APPOINTMENT
GENERAL RULE:
An appointment, once made, is
irrevocable
and
not
subject
to
reconsideration.
It vests a legal right. It cannot be
taken away EXCEPT for cause, and
with previous notice and hearing
(due process).
It may be issued and deemed
complete
before
acquiring
the
needed assent, confirmation, or
approval of some other officer or
body.
EXCEPTIONS:
Appointment is an absolute nullity
[Mitra v. Subido (1967)];
Appointee commits fraud [Mitra v.
Subido, supra];
Midnight appointments
General Rule: A President or
Acting
President
shall
not
appoint 2 months immediately
before the next presidential
elections until his term ends.
(Art. VII, Sec. 15, 1987 Const.)
Exception:
Temporary
appointments
to
executive
positions
when
continued
vacancies will prejudice public
service or will endanger public
safety.
H. CIVIL SERVICE COMMISSIONS

(CSCS) JURISDICTION
Qualification standards
Recall. Includes the authority to recall
an appointment which has been initially
approved when it is shown that the
same was issued in disregard of
pertinent
CSC
laws,
rules
and
regulations.
Review Appointees Qualifications.

Lapinid v. CSC (1991): The only function
of the CSC is to review the appointment
in the light of the requirements of the
Civil Service Law, and when it finds the
appointee to be qualified and all other
legal requirements have been otherwise
satisfied, it has no choice but to attest
to the appointment.
What it cannot do.

Lapinid v. CSC (1991): It cannot
order the replacement of the
appointee
simply
because
it
considers another employee to be
better qualified.
The CSC cannot co-manage or be a
surrogate
administrator
of
government offices and agencies.
Luego v. CSC (1986): It cannot
change
the
nature
of
the
appointment
extended
by
the
appointing officer.
I. APPOINTMENTS TO THE CIVIL

SERVICE
SCOPE:
Embraces
all
branches,
subdivisions,
instrumentalities
and
agencies of the Government, including
GOCCs with original charters (Art. IX-B
Sec. 2(1), Constitution)
Classes of Service
1. Career Service Entrance based on
merit and fitness determined by
competitive examinations, or based
on highly technical qualifications,
opportunity for advancement to
higher career positions and security
of tenure.
2. Non-career Service Entrance on
bases other than those of the usual
tests. Tenure limited to a period
specified by law or which is
coterminous with the appointing
authority or the duration of a
particular project. (i.e. elective
officials, Department Heads and
Members of Cabinet)
Page 229 of 313
Exclusive Jurisdiction
Disciplinary cases
Cases involving personnel action
affecting the Civil Service employees
Appointment
through
certification
Promotion
Transfer
Reinstatement
Reemployment
Detail, reassignment
Demotion
Separation
Employment status
Requisites:
Appoint only according to merit and
fitness, to be determined as far as
practicable.
Require a competitive examination.
Exceptions: (Positions where
Appointees are exempt from
Competitive
Examination
Requirements)
o Policy determining - in which
the
officer
lays
down
principal or fundamental
guidelines
or
rules;
or
formulates a method of
action for government or any
of its subsidiaries
o Primarily
Confidential
denoting not only confidence

in the aptitude of the
appointee for the duties of
the office but primarily close
intimacy
which
ensures
freedom
of
intercourse
without embarrassment or
freedom from misgivings or
betrayals
on
confidential
matters
of
the
state
(Proximity
Rule
as
enunciated in De los Santos
v Mallare [1950])
o Highly Technical requires
possession of technical skill
or training in a superior
degree.
(i.e.
City
Legal
Officer)
o
NOTE: It is the nature of the

position which determines
whether a position is policy
determining,
primarily
confidential
or
highly
technical
Other Personnel Actions

Promotion is a movement from one
position to another with increase in
duties
and
responsibilities
as
authorized by law and is usually
accompanied by an increase in pay.
Next-in-rank Rule.
o The person next in rank
shall be given PREFERENCE
in promotion when the
position immediately above
his is vacated.
o BUT the appointing authority
still exercises discretion and
is not bound by this rule,
although he is required to
specify the special reason or
Automatic Reversion Rule.

o All appointments involved in
a chain of promotions must
be submitted simultaneously
for
approval
by
the
Commission.
o The
disapproval
of
the
appointment of a person
proposed to a higher position
invalidates the promotion of
those in the lower positions
and automatically restores
them
to
their
former
positions.
o However,
the
affected
persons are entitled to
payment of salaries for
services actually rendered at
a
rate
fixed
in
their
promotional appointments.
(Sec. 13 of the Omnibus
Rules
Implementing
Administrative Code)
o Requisites:
1. series of promotions
2. all
promotional
appointments
are
simultaneously
submitted
to
the
Commission for approval
3. the
Commission
disapproves
the
appointment of a person
to a higher position.
Appointment through Certification is

issued to a person who is:
selected from a list of qualified
persons certified by the Civil
Service Commission from an
appropriate register of eligibles
qualified
Transfer is a movement from one

position to another which is of
equivalent rank, level or salary
without break in service.
This may be imposed as an
administrative remedy.
If
UNconsented
=
violates
security of tenure.
EXCEPTIONS:
o Temporary Appointee
o Career Executive Service
Personnel whose status and
salaries are based on ranks
( positions)
Page 230 of 313
reasons for not appointing

the officer next-in-rank.
Reinstatement. It is technically the

issuance of a new appointment and
is discretionary on the part of the
appointing power.
It cannot be the subject of an
application
for
a
writ
of
mandamus.
Who may be reinstated to a
position in the same level for
which he is qualified:
o Any permanent appointee of
a career service position
o No
commission
of
delinquency or misconduct,
and is not separated.
Same
effect
as
Executive
Clemency,
which
completely
obliterates the adverse effects of
the
administrative
decision
which found him guilty of
dishonesty. He is restored ipso
facto upon grant of such.
Application for reinstatement =
unnecessary.
Detail is the movement of an

employee from one agency to
another without the issuance of an
appointment.
Only for a limited period.
Only for employees occupying
professional,
technical
and
scientific positions.
Temporary in nature.
Reassignment. An employee may be

reassigned from one organizational
unit to another in the SAME agency.
It is a management prerogative of
the CSC and any dept or agency
embraced in the Civil Service.
It does not constitute removal
without cause.
Requirements:
o NO reduction in rank, status
or salary.
o Should have a definite date
or duration (c.f. Detail).
Otherwise,
a
floating
assignment = a diminution
in status or rank.
Reemployment. Names of persons

who
have
been
appointed
permanently to positions in the
career service and who have been
separated as a result of reduction in
force and/or reorganization, shall be
entered in a list from which
selection from reemployment shall
be made.
- end of Law on Public Officers -
Page 231 of 313
Table of Contents
ELECTION LAW
CHAPTER II. THE COMELEC

A. Purpose
B. Composition and Qualifications
C. Powers and Functions
1. Enforcement and
Administration of Election
Laws and Regulations
3. Decide All Questions Affecting
Elections
4. Power to Deputize
5. Register Political Parties
7. Investigation and Prosecution
of Cases of Violation of
Election Laws
Inclusion or Exclusion of
Voters
9. Recommendatory
10. Supervision/Regulation
D. Rendition of Decision
1. Composition
2. Time Period and Votes
Required
3. Any Decision, Order, or
Ruling of Each Commission
May Be Brought to the
Supreme Court on Certiorari
CHAPTER III. ELECTIONS IN
GENERAL
A. Kinds of Elections
1. General
2. Special
B. Date of Election
C. Time for Holding Elections
D. Place for Holding Elections
E. Manner
235
235
235
235
235
235
235
235
235
235
236
236
236
236
236
236
237
237
237
237
237
237
238
238
238
238
238
238
238
238
238
238
238
239
240
240
240
240
240
240
240
240
CHAPTER IV. PRE-ELECTION

REQUIREMENTS
A. Precincts and Polling Places
1. Precinct
2. Polling Places
B. Official Ballots, Election Returns
and Ballot Boxes
Election Returns
C. Registration of Voters
1. Definition
4. Re-Registration
5. System of Continuing
Registration
6. List of Voters
D. Registration of Political Party
1. Political Party
2. Party System
6. Forfeiture of Status and
E. Registration for Party-List
1. Party List System, Definition
2. Purpose
4. Procedure
5. Grounds for
Refusal/Cancellation
6. Parameters in Determining
Winners
F. Party-List and District
Representatives Distinguished
G. Certificates of Candidacy
2. Qualifications
3. Contents of Certificate of
Candidacy
5. Effect of Death,
Disqualification or
Withdrawal
6. Petition to Deny Due
Course/Cancel Certificate
CHAPTER V. ELECTION
CAMPAIGN AND EXPENDITURES
A. Election Campaign
1. Election Campaign or
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ELECTION LAW
CHAPTER I. GENERAL
PRINCIPLES
A. Theory of Popular Sovereignty
B. Suffrage
1. Definition
2. Object
3. Scope
a. Election
b. Plebiscite
c. Referendum
d. Initiative
e. Recall
4. Substantive Requirements for
Exercise of Right to Suffrage
a. Citizenship
b. Age
c. Residency
d. Absence of
Disqualifications
Table of Contents
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CHAPTER VI. ELECTION PROPER

A. In General
2. Failure of Elections; Grounds
B. Casting of Votes
2. Absentee Voting
3. Voting Hours
4. Preparing the Ballot and
Voting
C. Counting of Votes
2. Counting Proper
3. Marked Ballots
5. Election Returns
6. Issuance of the Certificate of
Votes
D. Canvass(ing of Votes)
1. Definitions
2. Nature of Canvass
Proceedings
3. Composition of Board of
Canvassers
4. Prohibition on BOC
Canvass and Statement Of
Votes
7. Completion of Certificate of
Canvass
8. Canvass of Votes for the
President and Vice President
9. Proclamation
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CHAPTER VII. MODES OF

CHALLENGING CANDIDACY AND
ELECTION RESULTS
A. Cancellation of Certificate of
Candidacy
1. Grounds
3. Procedure
1. Jurisdiction
2. When Not Allowed
3. Nature
6. Procedure
7. Effect of Filing of PreProclamation
8. Effect of Proclamation of
Winning Candidate
9. Petition to Annul/Suspend
Proclamation
10. Declaration of Failure of
Election
C. Disqualification Cases
1. Procedure
2. Effect
CHAPTER VIII. ELECTION
OFFENSES
A. Jurisdiction Over Election
Offenses
B. Prosecution of Election Offenses
C. Preferential Disposition of
Election Offenses
D. Election Offenses
1. Registration
4. Voting
6. Canvassing
7. Acts of Government and
Public Officers
8. Coercion, Intimidation,
Violence
10. Penalties
E. Arrests in Connection with
Election Campaign
F. Prescription
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Page 234 of 313
ELECTION LAW
Partisan Political Activity

Campaign Period
Lawful Election Propaganda
Prohibited Acts
Mass Media Campaign
Rallies, Meetings and Other
Political Activity
B. Election Contributions and
Expenditures
3. Prohibited Fund-Raising
Activities
4. Limitations on Aggregate
Amount to be Spent for a
Campaign
5. Prohibited Donations
2.
3.
4.
5.
6.
Chapter I. General Principles

LECTURES
Carmi Tugday
Joey Capones
Edel Cruz
SUBJECT EDITORS
Jason Mendoza
ACADEMICS COMMITTEE
Samantha Poblacion
HEAD
DEPUTY HEAD
ELECTION LAW

EDITOR-IN-CHIEF
-------Kae Guerrero
Arianne Reyes
LEAD WRITER
-------Leo Zulueta
Rania Joya
LAYOUT HEAD
Election Law
A. THEORY OF POPULAR SOVEREIGNTY
B. SUFFRAGE
1. DEFINITION
2. OBJECT
3. SCOPE
a. ELECTION
b. PLEBISCITE
c. REFERENDUM
d. INITIATIVE
e. RECALL
4. SUBSTANTIVE REQUIREMENTS FOR
EXERCISE OF RIGHT TO SUFFRAGE
a. CITIZENSHIP
b. AGE
c. RESIDENCY
d. ABSENCE OF DISQUALIFICATIONS
A. THEORY
OF
SOVEREIGNTY
POPULAR
A democratic and republican government

derives all its powers, directly or indirectly,
from the people at large. Its essence is
indirect rule.
Actual sovereignty is
exercised by the people by means of
suffrage.
B. SUFFRAGE
1. Definition
The right to vote
in the election of officers chosen by the
people and
in determination of questions submitted
to the people (Nachura).
2. Object
Continuity
of
government
and
the
preservation and perpetuation of benefits.
3. Scope
a. Election: the means by which the people
choose their officials for definite periods
and to whom they entrust, for the time
being as their representatives, the
exercise of powers of government.
b. Plebiscite:
the
submission
of
constitutional amendments or important
legislative measures to the people for
ratification.
c. Referendum: the power of the electorate
to approve or reject legislation
through an election called for the
purpose. (Sec. 2c, R.A. 6735) It may be
of 2 classes:
Referendum on statutes: petition to
approve or reject an act/law/part
thereof passed by Congress;
Referendum on local law: petition to
approve or reject a law, resolution or
ordinance enacted by regional
assemblies and local legislative
bodies
d. Initiative: the power of the people to
propose
amendments
to
the
Constitution or to propose and enact
legislation through an election called for
the purpose. (Sec. 2a, R.A. 6735)
3 systems:
1. Initiative on the Constitution:
petition proposing amendments
to the Constitution;
Note: In the case of Santiago v.
COMELEC,(1997) the SC held
that there is no sufficient
enabling law to amend the
Constitution. R.A. 6735 was
deemed sufficient for statutory
amendments
but
not
Constitutional amendments.
Page 235 of 313
ELECTION LAW
POLITICAL LAW
FACULTY EDITOR
2. Initiative on statutes: petition

proposing to enact a national
legislation;
e.
Recall: the termination of official

relationship of a local elective official for
loss of confidence prior to the expiration
of his term through the will of the
electorate.
4. Substantive
Exercise
Requirements
for
(Art. V, Sec. 1, 1987 Const.)

a. Citizenship: by birth or naturalization
b. Age: at least 18 at the time of the
election
c. Residency:
have
resided
in
the
Philippines for at least 1 year, and in
the place wherein they propose to vote
for at least 6 months immediately
preceding the election.
It is not necessary that a person
should have a house in order to
establish his residence or domicile
in a municipality. Enough that he
should live there, provided that his
stay is accompanied by his intention
to reside therein permanently.
(Marcos v. Comelec, 1995)
d. Absence of disqualifications:
1) Persons sentenced by final judgment
to suffer imprisonment for not less
than 1 year. (shall automatically
reacquire right to vote upon the
expiration of 5 years after the
service of sentence.)
2) Persons adjudged by final judgment
of having committed any crime
involving disloyalty to the duly
constituted
government
(e.g.
rebellion, sedition, violation of the
firearms law) or any crime against
national
security.
(shall
automatically reacquire the right to
vote upon the expiration of 5 years
after the service of sentence.)
3) Insane or incompetent persons as
declared by competent authority.
No
literacy,
property
or
other
substantive
requirement
shall
be
imposed on the exercise of suffrage, and
Page 236 of 313
ELECTION LAW
3. Initiative on local legislation:

petition proposing to enact a
regional,
provincial,
city,
municipal or barangay law,
resolution or ordinance
that Congress may not add or alter the

qualifications. Congress, however, to a
limited extent can regulate the right of
suffrage by:
Defining qualifications of voters
Regulating elections
Prescribing form of official ballot
Providing for manner of choosing
candidates and names to be printed
on the ballot
Regulating manner of conducting
elections
Suppressing whatever evils incident
to the election of public officers,
pursuant to its duty to secure the
secrecy and sanctity of the ballots.
Chapter II. The COMELEC
A. PURPOSE
To protect the sanctity of the ballot and to
ensure the free and honest express of the
popular will.
The COMELEC was created as an
independent administrative tribunal,
co-equal with the other departments
with respect to the powers vested in it,
and not under any of the branches of
Government.
To preserve the independence of the
COMELEC,
appointments
or
designations in temporary or acting
capacities are not allowed.
B. COMPOSITION
1 chairman and 6 commissioners.
The members of the COMELEC must

have the following qualifications:
1. Natural born citizens
2. At least 35 years old
3. Holders of a college degree
4. Not candidates for any elective
position
in
the
immediately
preceding elections
5. Majority of the members, including
the chairman, should be members
of the Bar who have been engaged in
the practice of law for at least 10
years.
The chairman and commissioners are to

be appointed by the President with the
consent
of
the
Commission
on
Appointments.
Commissioners are subject to the

same disabilities imposed on the
President and the Vice-President,
including
the
prohibition
against
holding any other office or engaging in
any other profession or business.
C. POWERS AND FUNCTIONS

1. Enforcement and Administration
of Election Laws and Regulations
(Art. IX-C, Sec. 2 (1), Const.)
a. Promulgation
of
rules
and
regulations.
b. Fixing of election period (which shall
commence 90 days before the
election and end 30 days thereafter,
unless otherwise fixed by the
COMELEC in special cases).
c. Fixing other reasonable periods for
certain pre-election requirements.
d. Declaration
of
failure/
postponement of elections; call for
special elections.
e. Prescribe forms, use or adoption of
latest technological and electronic
devices.
f. Annulment/ cancellation of illegal
registry lists of voters and ordering
the preparation of a new one;
g. Cancellation of canvass of election
returns
and
annulment
of
proclamation based on incomplete
results. (Note: COMELEC does not
have the power to annul an election
which may not have been free,
orderly, and honest; such power is
merely preventive, not curative.)
a. Exclusive original jurisdiction over all
returns and qualifications of all
elective, regional, provincial and city
officials.
b. Exclusive appellate jurisdiction over all
contests involving municipal officials
decided by the RTC, or involving
elective barangay officials decided by
the MTC.
In these cases, the
decisions therein shall be final,
executory and unappealable. (Art. IXC, Sec. 2 (2), Const.)
Page 237 of 313
ELECTION LAW
A. PURPOSE
B. COMPOSITION AND QUALIFICATIONS
C. POWERS AND FUNCTIONS
1. ENFORCEMENT AND ADMINISTRATION
OF
ELECTION
LAWS
AND
REGULATIONS
2. QUASI-JUDICIAL POWERS
3. DECIDE ALL QUESTIONS AFFECTING
ELECTIONS
4. POWER TO DEPUTIZE
5. REGISTER POLITICAL PARTIES
6. ACCREDIT CITIZENS' ARMS
7. INVESTIGATION AND PROSECUTION
OF
CASES
OF
VIOLATION
OF
ELECTION LAWS
8. FILING OF PETITIONS IN COURT FOR
INCLUSION
OR
EXCLUSION
OF
VOTERS
9. RECOMMENDATORY
10. SUPERVISION / REGULATION
D. RENDITION OF DECISION
1. COMPOSITION
2. TIME PERIOD AND VOTES REQUIRED
3. ANY DECISION, ORDER, OR RULING
OF EACH COMMISSION MAY BE
BROUGHT TO THE SUPREME COURT
ON CERTIORARI
3. Decide All
Elections
Questions
Affecting
However, it has no jurisdiction over

questions involving the right to vote
(i.e. disqualifications of voters, right of
a person to be registered, etc.)
Exclusive original jurisdiction of
the MTC, appealable to the RTC.
4. Deputize, with the concurrence of the

President, law enforcement agencies
and
instrumentalities
of
the
Government for the exclusive purpose of
ensuring free, orderly, honest, peaceful
and credible elections (Art. IX-C, Sec.
2(4), Const.)
Any member/s of the AFP, NBI, PNP
or
any
similar
agency
or
instrumentality of the government
(except civilian home defense forces)
during campaign period and ending
30 days thereafter, when in any area
of the country there are persons
committing acts of terrorism to
influence people to vote for or against
any candidate or political party.
5. Register Political Parties, etc.


7. Investigation and Prosecution of

Cases of Violation of Election
Laws
The COMELEC has the power of a
public prosecutor with the exclusive
authority to conduct the preliminary
investigation and the prosecution of
election offenses punishable under the
election law. The power may be
exercised upon complaint or motu
proprio.

Inclusion or Exclusion of Voters
9. Recommendatory
a. to Congress
Effective measures to minimize
election
spending,
including
limitation
of
places
where
b. to the President
For removal of any officer or
employee it has deputized;
For imposition of disciplinary
action for violation or disregard of,
or disobedience to its directive,
order, or decision;
For pardon, amnesty, parole,
suspension
of
sentence
for
violation of election laws, rules
and regulations.
10. Supervision / Regulation, for the

duration of the election period, of use of
all franchises or permits for operation
of:
transportation and other public
utilities;
media
of
communication
or
information;
all grants, special privileges, or
concessions
granted
by
the
Government or any instrumentality
thereof (Art. IX-C, Sec. 4, Const.)
D. RENDITION OF DECISION
1. Composition
The COMELEC may sit en banc or in 2
divisions.
General Rule: Election cases shall
be heard and decided in division.
Exceptions: Decisions that must be
rendered by the COMELEC en banc
include:
a. Decisions
on
motions
for
reconsideration (Art. IX-C, Sec.
3, Const.);
b. Petitions
for
correction
of
manifest errors in the Statement
of Votes (Sec. 5, Rule 27 of the
1993 Rules of the COMELEC);
c. Questions
pertaining
to
proceedings of the Board of
Canvassers
(Mastura
v.
COMELEC, 1998)
d. Postponement of election (Sec. 4,
R.A. 7166)
e. Declaration of failure of election
(Sec. 4, R.A. 7166)
f. Calling of special elections (Sec. 4,
R.A. 7166)
2. Time Period and Votes Required

Decide by majority vote of all its
members any case or matter brought
Page 238 of 313
ELECTION LAW
(Art. IX-C, Sec. 2 (3), 1987 Const.)

a. Determination of the number and
location of polling places.
b. Appointment of election officials and
inspectors.
c. Registration of voters.
propaganda materials shall be

posted, and to prevent and
penalize all forms of election
frauds, offenses, malpractices,
and nuisance candidates.
(Art.
IX-C, Sec. 2 (7), Const.)
before it within 60 days from the date of

its
submission
for
decision
or
resolution. (Art. IX-A, Sec. 7 Const.)
ELECTION LAW
3. Unless
otherwise provided by the

Constitution or by law, any decision,
order,
or
ruling
of
each
Commission may be brought to
the Supreme Court on certiorari
by the aggrieved party within 30 days

from receipt of a copy thereof. (Art. IXA, Sec. 7, Const.)
What is contemplated are decisions,
orders or resolutions rendered by the
COMELEC in the exercise of its
adjudicatory or quasi-judicial powers,
not those which are mere incidents of
its inherent administrative functions
over the conduct of elections.
Questions arising from the latter
may be taken in an ordinary civil
action before the RTC.
By certiorari, a party raises questions
of law in the Supreme Court.
Findings of fact made by the
COMELEC are conclusive upon the
Supreme Court.
The Supreme Court has no power of
supervision over the COMELEC except
to review its decisions on petitions by
certiorari.
Page 239 of 313
Chapter III. Elections in General
C. TIME FOR HOLDING ELECTIONS
Must be fixed by the authoritative power

(i.e. the Constitution; laws in the case of
regular elections; the executive or other
designated power in the case of special
elections).
Enactments declaring the time at

which an election shall be held are
deemed to be matters of substance and
must be substantially observed or the
election will be void.
Substantial observance is sufficient and

slight variations will not invalidate the
election.
A. KINDS OF ELECTIONS
1. General Election
Provided for by law for election to offices
throughout the State or a certain
subdivision thereof, after the expiration
of the full term of former officers.
2. Special Election
Provided for by law under special
circumstances; an election held to fill a
vacancy in an office before the
expiration of the full term for which the
incumbent was elected, or an election at
which some issue or proposition is
submitted to the vote of the qualified
electors.
B. DATE OF ELECTION
In accordance with the Constitutional

policy to synchronize elections, there is
a simultaneous conduct of elections
for national and local officials once
every 3 years. RA 7166: 2nd Monday of
May.
President
Vice-President
Senators
Elective Members
of the House of
Representatives
Elective
Provincial,
City
and
Municipal
Officials
Barangay
Elections
elected on the same

day every 6 years
on the same day every
3 years
except with respect to
the Senators, only 12
of whom shall be
elected every 3 years
D. PLACE FOR HOLDING ELECTIONS
Shall be fixed by general law or by a

proclamation or by the notice by which
the election is called. Such designated
place shall be mandatory. In case of
emergencies which necessitate the
changing of a polling place, adequate
general notice must be given.
E. MANNER
ELECTIONS
OF
HOLDING
Regulations prescribed are merely

directory, and a failure to observe them
fully will not invalidate the election,
where an election has been held in good
faith and irregularities do not affect the
result.
Where a special election is provided for,

but no method of holding it is declared,
it will be sufficient if it is held in the
manner prescribed for the holding of
general elections.
on the same day, and

every
5
years
thereafter, the term for
elective
barangay
officials having been
extended from 3 years
to 5 years. (R.A. 7160,
Sec. 43 (c) as amended
by R.A. 8524)
Now, 3 years as
per RA 9164
(2002)
Page 240 of 313
ELECTION LAW
A. KINDS OF ELECTIONS
1. GENERAL
2. SPECIAL
B. DATE OF ELECTION
C. TIME FOR HOLDING ELECTIONS
D. PLACE FOR HOLDING ELECTIONS
E. MANNER
Chapter III. Elections in General
Chapter IV. Pre-Election Requirements
Chapter IV. Pre-Election

Requirements
A. PRECINCTS
PLACES
AND
2. Polling Places
Definition: Building or place where the

Board of Election Inspectors conducts
its proceedings and where the voters
cast their votes (Sec. 152, BP 881)
The COMELEC may introduce changes

in the location of polling places when
necessary after notice to the registered
political parties and candidates affected
if any, and hearing. No location shall
be changed within 45 days before a
regular election and 30 days before a
special
election,
referendum
or
plebiscite except when it is destroyed or
it cannot be used. (Sec. 153, BP 881)
B. OFFICIAL BALLOTS, ELECTION

RETURNS AND BALLOT BOXES
General Form: Sec. 23
COMELEC may prescribe a different

form to facilitate the voting by illiterate
voters only and to use or adopt the
latest technological and electronic
devices in connection therewith. (Sec.
23, R.A. 7166)
POLLING
1. Precinct
Definition: unit of territory for the

purpose of voting (Sec. 149, BP 881,
Omnibus Election Code)
Each barangay shall have at least 1

such precinct. (Sec. 149, BP 881)
The
COMELEC
may
introduce
adjustments, changes or new divisions
Where it is not practicable to divide a

precinct by territory, the COMELEC
may adjust or split the precinct by
assigning
the
registered
voters
alphabetically and equitably among the
adjusted or split precinct. The polling
places of the said precincts must be in
the same building. (Sec. 8, R.A. 7166 or
An Act Providing for Synchronized
National and Local Elections and for
Electoral
Reforms,
Authorizing
Appropriations Therefor, and for Other
Purposes)
May be used in the event of failure to

receive the official ballots on time, or
where there are no sufficient ballots for
all registered voters, or where they are
destroyed at such time as shall render it
Page 241 of 313
ELECTION LAW
A. PRECINCTS AND POLLING PLACES

1. PRECINCT
2. POLLING PLACES
B. OFFICIAL BALLOTS, ELECTION RETURNS
AND BALLOT BOXED
1. FORM AND CONTENTS OF BALLOTS
2. EMERGENCY BALLOTS
3. PRINTING OF OFFICIAL BALLOTS AND
ELECTION RETURNS
C. REGISTRATION OF VOTERS
1. DEFINITION
2. ELECTION REGISTRATION BOARD
3. WHEN REGISTRATION CONDUCTED
4. RE-REGISTRATION
5. SYSTEM
OF
CONTINUING
REGISTRATION
6. LIST OF VOTERS
7. INCLUSION-EXCLUSION CASES
8. ANNULMENT OF BOOK OF VOTERS
D. REGISTRATION OF POLITICAL PARTY
1. POLITICAL PARTY
2. PARTY SYSTEM
3. RIGHTS AND PRIVILEGES GRANTED
4. PROCEDURE FOR REGISTRATION
5. WHO MAY BE REGISTERED
6. FORFEITURE
OF
STATUS
AND
CANCELLATION OF REGISTRATION
E. REGISTRATION FOR PARTY-LIST
1. PARTY LIST SYSTEM, DEFINITION
2. PURPOSE
3. WHO MAY BE REGISTERED
4. PROCEDURE
5. GROUNDS
FOR
REFUSAL/CANCELLATION
6. PARAMETERS
IN
DETERMINING
WINNERS
F. PARTY-LIST
AND
DISTRICT
REPRESENTATIVES DISTINGUISHED
G. CERTIFICATES OF CANDIDACY
1. CANDIDATE, DEFINITION
2. QUALIFICATIONS
3. CONTENTS
OF
CERTIFICATE
OF
CANDIDACY
4. DISQUALIFICATIONS
5. EFFECT
OF
DEATH,
DISQUALIFICATION OR WITHDRAWAL
6. PETITION
TO
DENY
DUE
COURSE/CANCEL CERTIFICATE
or abolish precincts if necessary. But

no changes shall be introduced within
45 days before a regular election and 30
days before a special election or
referendum or plebiscite. (Sec. 149, BP
881)
impossible to provide other

ballots. (Sec. 182, BP 881)
official

Election Returns
By the Government Printing Office

and/or the Central Bank printing
facilities
exclusively,
under
the
exclusive supervision and control of the
COMELEC. The registered political
parties or coalitions of parties (or their
components should there be any
dissolution or division of said coalition)
whose candidates obtained at least 10%
of the total votes cast in the next
preceding senatorial election are each
entitled to have a watcher and/or
representative.
C. REGISTRATION OF VOTERS
4. Re-Registration
a. If voter transfers residence to another
city or municipality; or
b. his registration has been cancelled on
the ground of disqualification and such
disqualification has been lifted or
removed (Sec. 125, BP 881);
5. System
Registration
1. Definition
Act of accomplishing and filing of a

sworn application for registration by a
qualified voter before the election officer
of the city or municipality wherein he
resides and including the same in the
book of registered voters upon approval
by the Election Registration Board.
(Sec. 3a, R.A. 8189)

a. Composition:
o Chairman: Election Officer.
If disqualified, COMELEC shall
designate an acting Election
Officer.
o Members:
i. Public school official most senior
in rank; and
ii. Local civil registrar, or in his
absence, the city or municipal
treasurer.
If neither are
available, any other appointive
civil service official from the
same locality as designated by
the COMELEC.
Disqualification: relation to each other

or to any incumbent city or municipal
elective official within the 4th civil degree
of consanguinity or affinity.
Not less than 120 days before a regular

election and 90 days before a special
of
Continuing
Daily in the office of the Election Officer

during regular office hours, except
during the period starting 120 days
before a regular election and 90 days
before a special election. The filing of
the
application
must
be
done
personally.
6. List of Voters
The Board of Election Inspectors must

post the final list of voters in each
precinct 15 days before the date of the
regular
or
special
election
or
referendum or plebiscite.
a. Time of filing: During office hours
b. Notice: served upon the members of the
Board and challenged voter upon filing
of the petition.
c. Intervention: any voter, candidate or
political party who may be affected by
the proceedings
d. Evidence: shall be based on the
evidence presented.
In no case shall a decision be
rendered upon a stipulation of facts.
If the case involves the issue of a
fictitious voter, the non-appearance
of the challenged voter on the day
set for hearing shall be prima facie
evidence that such voter is fictitious.
e. Decision must be made within 10 days
from date of filing. Cases appealed to
the RTC shall be decided within 10 days
from receipt of the appeal. In all cases,
the court shall decide these petitions
not later than 15 days before the
Page 242 of 313
ELECTION LAW
election. However, in the case of an

initiative or referendum, the COMELEC
is authorized to set a special
registration day at least 3 weeks before
the scheduled initiative or referendum.
(Sec. 5, R.A. 6735)
election and the decision shall become

final and executory.
Petition for Inclusion of Voters in the

List: May apply at any time except 105
days prior to a regular election or 75
days prior to a special election.
a. any person whose application by
registration has been disapproved
by the Board of Election Inspectors
or
b. any person whose name has been
stricken out from the list
Petition for Exclusion of Voters in the
List: May be filed at any time except 100
days before a regular election or 65 days
before a special election.
a. any registered voter;
b. any representative of a political
party;
c. the Election Officer
The book of voters shall be annulled

after due notice and hearing by the
COMELEC after the filing of a verified
petition. No order, ruling or decision
annulling a book of voters shall be
executed within 90 days before an
election.
Who may file:

1) any voter;
2) any election officer;
3) any duly registered political party
Grounds:
1) The book of voters was not prepared
in accordance with RA 8189 or the
Voters Registration Act of 1996;
2) The book of voters was prepared
through fraud, bribery, forgery,
impersonation, intimidation, force,
or any similar irregularity
3) The book of voters contains data
that are statistically improbable
D. REGISTRATION
PARTIES
OF
POLITICAL
1. Political Party
An organized group of citizens pursuing the
same ideology, political ideas or platforms
of government and includes its branches
and divisions.
3 kinds:
a. national
party
party
whose
2. Party System
A free and open party system shall be
allowed to evolve according to the free
choice of the people (Art. IX-C, Sec. 2(5),
Constitution); no votes cast in favor of a
political party, organization, coalition
shall be valid, except for those registered
under the party-list system (Art. IX-C,
Sec. 7).

a. To be voted upon as a party, provided
that it is registered under the party-list
system (Art. IX-C, Sec. 7, Const.);
b. To have a watcher in every Election
Registration Board (Sec. 15, R.A. 8189,
Voters Registration Act of 1996);
c. To inspect and/or copy at its expense
the accountable registration forms
and/or the list of registered voters in
the precincts (Sec. 42, R.A. 8189)
d. To
have
a
watcher
and/or
representative in the procurement,
watermarking, printing, numbering,
storage and distribution of election
returns and official ballots (Sec. 8, R.A.
6646, The Electoral Reforms Law of
1987);
e. To have watchers who shall verify the
contents of the ballot boxes (Sec. 189,
BP 881. This privilege is only available
to the ruling party and the dominant
opposition party.);
f. To have one watcher in every polling
place and canvassing center (Sec. 26,
R.A. 7166, Synchronized National and
Local Elections and for Electoral
Reforms);
g. To be present and to have counsel
during the canvass of the election
Page 243 of 313
ELECTION LAW
constituency is spread over the

geographical territory of at least a
majority of the regions;
b. regional
party
party
whose
constituency is spread over the
geographical territory of at least a
majority of the cities and provinces
comprising the region;
c. sectoral party organized group of
citizens belonging to any of the following
sectors: labor, peasant, fisherfolk,
urban
poor,
indigenous
cultural
communities, elderly, handicapped,
women, youth, veterans, overseas
workers
and
professionals
whose
principal advocacy pertains to the
special interests and concerns of their
sector.

a. The political party seeking registration
may file with the COMELEC a verified
petition, attaching its constitution and
by-laws, platform or program of
government and such other relevant
information as may be required by the
COMELEC.
b. The COMELEC shall require publication
of the petition for registration or
accreditation in at least 3 newspapers of
general circulation.
c. After due notice and hearing, the
COMELEC shall resolve the petition
within 10 days from the date it is
submitted for decision (Sec. 61, BP
881).
5. Who May Not be Registered

a. Religious denominations and sects (Art.
IX-C, Sec. 2 (5), Const.; Sec. 61, BP
881)
b. Those which seek to achieve their goals
through violence or unlawful means
(Art. IX-C, Sec. 2 (5), Const., Sec. 61,
BP 881)
c. Those which refuse to uphold and
adhere to the Constitution (Art. IX-C,
Sec. 2 (5), Const.)
d. Those
supported
by
foreign
governments (Art. IX-C, Sec. 2 (5),
Const.)
6. Forfeiture
of
Status
b. Cancellation of registration, grounds:

1)Accepting financial contributions from
foreign governments or their agencies
(Art. IX-C, Sec. 2 (5), Const.);
2) Party
is
a
religious
sect
or
denomination,
organization
or
association organized for religious
purposes (Sec. 6 (1), R.A. 7941, PartyList System Act);
3)Party advocates violence or unlawful
means to seek its goal (Sec. 6 (2), R.A.
7941);
4) Party is a foreign party or organization
(Sec. 6 (3), R.A. 7941);
5)Party is receiving support from any
foreign government, foreign political
party,
foundation,
organization,
whether directly (through its officers
or members) or indirectly (through
third parties) for partisan election
purposes (Sec. 6 (4), R.A. 7941);
6)Party violates or fails to comply with
election laws, rules or regulations
(Sec. 6 (5), R. A. 7941);
7)Party declares untruthful statements in
its petition for registration (Sec. 6 (6),
R.A. 7941);
8) Party has ceased to exist for at least 1
year (Sec. 6 (7), R.A. 7941);
9) Party fails to participate in the last 2
preceding elections (Sec. 6 (8), R.A.
7941);
10) If registered under the party-list
system, fails to obtain at least 2% of
the votes in the 2 preceding elections
for the constituency in which it has
registered. (Sec. 6 (8), R.A. 7941)
E. Registration for Party-list

1. Party-List System, Definition
Mechanism
of
proportional
representation in the election of
representatives to the House of
Representatives from national, regional
and sectoral parties or organizations or
coalitions
registered
with
the
COMELEC. (Sec. 3, R.A. 7941)
Component parties or organizations of a

coalition may participate independently,
provided the coalition of which they
form part does not participate in the
party-list system (Sec. 3, R.A. 7941).
Party-list
representatives
shall
constitute 20% of the total number of
representatives in the House of
Representatives (Art. VI, Sec. 5(2),
Constitution).
and
a. Forfeiture of status:
Singly or in coalition with others
fails to obtain at least 10% of the
votes cast
in the constituency in which it
nominated
and
supported
a
candidate/s in the election
next following its registration.
After notice and hearing. (Sec. 60,
BP 881)
Page 244 of 313
ELECTION LAW
returns (Sec. 25, R.A. 6646)

h. To receive the 4th copy (if the dominant
majority party) or the 5th copy (if the
dominant minority party) of the election
returns
(Sec. 27, R.A. 7166 as
amended by R.A. 8045 and R.A. 8173)
[note: as per R.A. 9369, dominant
majority and minority parties are
entitled to the 5th and 6th copies,
respectively.]
2. Purpose

a. Political parties
b. Sectoral parties: organized groups of
citizens belonging to the labor, peasant,
fisherfolk, urban poor, indigenous
cultural
communities,
elderly,
handicapped, women, youth, veterans,
overseas workers, and professional
sectors, and whose principal advocacy
pertains to the special interest and
concerns of their sector (Sec. 3d, R.A.
7941)
c. Sectoral
organizations:
groups
of
citizens or coalitions of groups of
citizens who share similar physical
attributes
or
characteristics,
employment, interest or concerns (Sec.
3e, R.A. 7941)
d. Coalitions: groups of duly registered
national, regional, sectoral parties or
organizations
for
political
and/or
election purposes (Sec. 3f, R.A. 7941)

a. Petition:
verified
by
the
party/organization/coalition's president
5. Grounds
for
Refusal
and/or
Same as for political parties
6. Parameters in Determining the

Winners in Party-list Elections
a. Party-list
representatives
shall
constitute 20% of the total number of
members of the House (inclusive of
party-list representatives)
b. Only parties garnering at least 2% of the
total valid votes cast shall be qualified
c. Each qualified party, regardless of the
number of votes received shall be
entitled to a maximum of 3 seats
d. The additional seats which a qualified
party is entitled to shall be computed
in proportion to their total number of
votes.
F. PARTY-LIST AND DISTRICT REPRESENTATIVES DISTINGUISHED

Scope of electorate
Residence requirement
Manner of election
Effect of disaffiliation
with party
Effect of vacancy
Effect
of
change
in
affiliation
within
6
months prior to election
Effect of loss during
previous election
Party-list representative
National
None
Voted upon by party or
organization.
Loses
his
seat,
will
be
substituted by another
Substitution will be made
within the party
Prohibited from sitting as
representative under his new
party or organization.
Cannot sit
District representative
Legislative district
Resident of his legislative district for
at least 1 year immediately before
the election
Elected personally
Does not lose seat
Special elections provided that the
vacancy takes place at least 1 year
before the next election.
Does
not
prevent
a
district
representative from running under
his new party.
Can run again
Page 245 of 313
ELECTION LAW
To enable Filipino citizens belonging to

marginalized
and
underrepresented
sectors, organizations and parties, and
who
lack
well-defined
political
constituencies but who could contribute
to the formulation and enactment of
appropriate legislation that will benefit
the nation as a whole, to become
members
of
the
House
of
Representatives. (Sec. 2, R.A. 7941)
or secretary. Must state its desire to

participate in the party-list system as a
national, regional or sectoral party or
organization or a coalition.
b. When filed: Not later than 90 days
before the election
c. Must attach: constitution; by-laws;
platform or program of government; list
of officers; coalition agreement (as
applicable); other relevant information
as may be required by the COMELEC
d. After due notice and hearing, the
COMELEC shall resolve the petition
within 15 days from the date it was
submitted for decision, but not later
than 60 days before election. (Sec. 5,
R.A. 7941)
G. CERTIFICATES OF CANDIDACY
Any person aspiring for or seeking an
elective public office, who has filed a
certificate of candidacy by himself or
through an accredited political party,
aggroupment, or coalition of parties.
(Sec. 79, BP 881)
2. Qualifications
Qualifications prescribed by law are

continuing requirements and must be
possessed for the duration of the
officer's active tenure.
(Frivaldo v.
COMELEC; Labo v. COMELEC)
3. Contents
candidacy
of
certificate
of
a. Announcing his candidacy for the office

stated therein and that he/she is
eligible for such office;
b. Political party to which the candidate
belongs;
c. Civil status;
d. Date of birth;
e. Residence;
f. Post office address for all election
purposes;
g. Profession or occupation;
h. That he/she will support and defend
the Constitution and will maintain faith
and allegiance thereto;
i. That he/she will obey the laws, legal
orders, and decrees promulgated by the
duly constituted authorities;
j. That he/she is not a permanent
resident or immigrant to a foreign
country;
k. That the obligation imposed by oath is
assumed voluntarily, without mental
reservation or purpose of evasion;
l. That the facts stated in the certificate of
candidacy are true to the best of his
knowledge.
a. Status
i. Lack of Filipino citizenship;
ii. Lack of residency requirement;
iii. Insanity
or
incompetence,
as
declared by competent authority;
iv. Permanent residence or immigrant
status in a foreign country
unless he has waived such
status in accordance with the
residence requirement
Page 246 of 313
ELECTION LAW
b. Acts:
Sentence by final judgment for:
i. subversion, insurrection, rebellion
ii. offense for which he has been
sentenced to more than 18 months
of imprisonment;
iii. offense involving moral turpitude;
iv. giving money or other material
consideration to influence, induce or
corrupt voters or public officials
performing electoral functions
v.committing acts of terrorism to
enhance his candidacy
vi. spending in his election campaign
an amount in excess of that allowed
vii. soliciting, receiving or making
prohibited contributions
viii.engaging in election campaign or
partisan political activity outside the
campaign period and not pursuant
to a political party nomination
ix. having
removed,
destroyed,
obliterated, defaced or tampered
with or prevented the distribution of
lawful election propaganda
x.violating
election
rules
and
regulations on election propaganda
through mass media
xi. having
coerced,
intimidated,
compelled, or influenced any of his
subordinates,
members,
or
employees to aid, campaign or vote
for or against any candidate or
aspirant for the nomination or
selection of candidates
xii. having
directly
or
indirectly
threatened, intimidated, or caused,
inflicted or produced any violence,
injury, punishment, damage, loss or
disadvantage upon any person or of
the immediate members of his
family, his honor or property, or
used fraud to compel, induce or
prevent the registration of any voter,
or
the
participation
in
any
campaign, or the casting of any vote,
or any promise of such registration,
campaign,
vote,
or
omission
therefrom
xiii.unlawful electioneering
xiv. violating the prohibition against
release,
disbursement
or
expenditure of public funds 45 days
before a regular election (or 30 days
in the case of a special election)
xv. soliciting votes or undertaking
propaganda on election day for or
against any candidate or any
political party within the polling
place or within a 30 m radius
ELECTION LAW
c. Nuisance Candidacy:
Filing a certificate of candidacy:
i. To put the election process in mockery
or disrepute; or
ii. To cause confusion among the
voters by the similarity of the names
of the registered candidates, or
iii. Clearly demonstrating that he/she
has no bona fide intention to run for
the office which the certificate of
candidacy has been filed, and thus
prevents a faithful determination of
the true will of the electorate. (Sec.
69, BP 881)
d. Falsity of Material Representation in the
Certificate of Candidacy
e. Disqualifications under the LGC
Please refer to Locgov Reviewer Chapter
VII.
5. Effect of Death, Disqualification

or Withdrawal
If a candidate of a registered or
accredited
political
party
dies,
withdraws or is disqualified after the
last day for filing of the certificates of
candidacy: ONLY a person belonging
to and certified by the same party
may file a certificate of candidacy to
replace him.
If
the
death,
withdrawal
or
disqualification occurs between the day
before the election and mid-day of the
election day, certificate may be filed
with:
any Board of Election Inspectors in
the political subdivision where he is
a candidate or
with the COMELEC if it is a national
position. (Sec. 77, BP 881)
6. Petition to Deny Due Course or to

Cancel Certificate:
a. Must be verified
b. May be filed by any person exclusively
on the ground that a material
representation contained therein as
required is false
c. Filed not later than 25 days from the
time of filing of the certificate
d. Shall be decided not later than 15 days
before the election. (Sec. 78, BP 881)
Page 247 of 313
Chapter V. Election Campaign and Expenditures
Chapter V. Election Campaign and

Expenditures
A. ELECTION CAMPAIGN
Political Activity
or
Partisan
An act designed to promote the election

or defeat of a particular candidate or
candidates to a public office.
It
does
not
include
public
expressions
of
opinions
or
discussions of probable issues in a
forthcoming election or on attributes
or criticisms of probable candidates
proposed to be nominated in a
forthcoming
political
party
convention.
Persons Prohibited from Campaigning

Members of the board of election
inspections (Sec. 173, BP 881)
Civil service officers or employees
(Art. IX-B, Sec. 2 (4), Const.)
Members of the military (Art. XVI,
Sec. 5 (3), Const.)
2. Campaign Period
It is prohibited for any person, political

party or association of persons to
engage in an election campaign or
partisan political activity except during
the campaign period. (Sec. 80, B.P.
881)
3. Lawful Election Propaganda

a. Pamphlets, leaflets, cards, decals,
stickers, or other written or printed
materials not larger than 8x14 inches;
c. Cloth, paper or cardboard posters,

framed or posted, not larger than 2x3
feet.
Note: Streamers not larger than 3x8
feet are allowed at a public meeting
or rally or in announcing the
holding of such. May be displayed 5
days before the meeting or rally and
shall be removed within 24 hours
after such.
d. Paid advertisements in print or
broadcast media.
Requirements:
i. Bear and be identified by the
reasonably legible or audible
words political advertisement
paid for followed by the true
and correct name and address of
the candidate or party for whose
benefit the election propaganda
was printed or aired. (Sec. 4.1,
R.A. 9006, The Fair Election Act)
ii. If the broadcast is given free of
charge by the radio or TV
station, identified by the words
"airtime for this broadcast was
provided free of charge by"
followed by the true and correct
name and address of the
broadcast entity. (Sec. 4.2, R.A.
9006)
iii. Print, broadcast or outdoor
advertisements donated to the
candidate or political party shall
not be printed, published,
broadcast or exhibited without
the written acceptance by said
candidate or political party.
Written acceptance must be
attached to the advertising
contract and submitted to the
COMELEC within 5 days after
its signing. (Sec. 4.3, R.A. 9006,
cf. Sec. 6.3, R.A. 9006)
e. All other forms of election propaganda
not prohibited by the Omnibus Election
Code or the Fair Election Act of 2001.
4. Prohibited Acts
a. For any foreigner to:
i. Aid any candidate or political party,
directly or indirectly;
ii. Take part or influence in any
manner any election;
Page 248 of 313
ELECTION LAW
A. ELECTION CAMPAIGN
1. ELECTION CAMPAIGN OR PARTISAN
POLITICAL ACTIVITY
2. CAMPAIGN PERIOD
3. LAWFUL ELECTION PROPAGANDA
4. PROHIBITED ACTS
5. MASS MEDIA CAMPAIGN
6. RALLIES, MEETINGS AND OTHER
POLITICAL ACTIVITY
B. ELECTION
CONTRIBUTIONS
AND
EXPENDITURES
1. CONTRIBUTIONS, DEFINITION
2. PROHIBITED CONTRIBUTIONS
3. PROHIBITED
FUND-RAISING
ACTIVITIES
4. LIMITATIONS
ON
AGGREGATE
AMOUNT TO BE SPENT FOR A
CAMPAIGN
5. PROHIBITED DONATIONS
b. Handwritten or printed letters urging

voters to vote for or against any political
party or candidate;
the election period.
6. Application for Rallies, Meetings

and Other Political Activity
b. For any person during the

campaign period to:
i. Remove, destroy, obliterate or in any
manner deface or tamper with
lawful election propaganda;
ii. Prevent the distribution of lawful
election propaganda
a. All applications for permits must

immediately be posted in a conspicuous
place in the city or municipal building,
and the receipt thereof acknowledged in
writing.
c. For any candidate, political

party,
organization
or
any
person to:
i. Give or accept, directly or indirectly,
free of charge, transportation, food
or drinks or things of value during
the five hours before and after a
public
meeting,
on
the
day
preceding the election, and on the
day of the election;
ii. Give or contribute, directly or
indirectly, money or things of value
for such purpose.
[The only justifiable ground for denial of

the application is when a prior written
application by any candidate or political
party for the same purpose has been
approved
5. Mass Media Campaign

a. Bona fide candidates and registered
political parties running for nationally
elective office are entitled to not more
than 120 mins of TV advertisement
and 180 mins of radio advertisement
whether by purchase or by donation;
b. Bona fide candidates and registered
political parties running for locally
elective office are entitled to not more
than 60 mins of TV advertisement
and 90 mins of radio advertisement
whether by purchase or by donation;
c. Broadcast stations or entities are
required to submit copies of their
broadcast logs and certificates of
performance to the COMELEC for the
review and verification of the frequency,
date,
time
and
duration
of
advertisement
broadcast
for
any
candidate or political party;
d. All mass media entities are required to
furnish the COMELEC with a copy of all
contracts for advertising, promoting or
opposing any political party or the
candidacy of any person for public office
within 5 days after its signing;
e. No franchise or permit to operate a
radio or TV station shall be granted or
issued, suspended or cancelled during
b. Applications must be acted upon in

writing by local authorities concerned
within 3 days after their filing. If not
acted upon within said period, deemed
approved.
c. Denial of any application for said permit

is appealable to the provincial election
supervisor or to the COMELEC whose
decision shall be made within 48 hours
and which shall be final and executory.
B. ELECTION CONTRIBUTIONS AND

EXPENDITURES
Gift, donation, subscription, loan,

advance or deposit of money or
anything of value, or a contract,
promise or agreement to contribute,
WON legally enforceable
made for influencing the results of
the elections
but shall not include services
rendered without compensation by
individuals volunteering a portion or
all of their time in behalf of a
candidate or political party.
It shall also include the use of
facilities voluntarily donated by
other persons, the money value of
which can be assessed based on the
rates prevailing in the area.
(Sec. 96, BP 881)
a. From Public or private financial
institutions
Except (not prohibited if):
i. the financial institutions are
legally in the business of lending
Page 249 of 313
ELECTION LAW
iii. Contribute or make any expenditure

in connection with any election
campaign or partisan political
activity
b. Natural and juridical persons operating

a public utility or in possession of or
exploiting any natural resources of the
nation;
c. Natural and juridical persons who hold
contracts or sub-contracts to supply the
government or any of its divisions,
subdivisions or instrumentalities, with
goods or services or to perform
construction or other works;
d. Grantees of franchises, incentives,
exemptions, allocations or similar
privileges or concessions by the
government or any of its divisions,
subdivisions
or
instrumentalities,
including GOCCs;
e. Grantees, within 1 year prior to the date
of the election, of loans or other
accommodations in excess of P100,000
by the government or any of its
divisions,
subdivisions
or
instrumentalities including GOCCs;
f.
Educational institutions which have

received
grants
of
public
funds
amounting to no less than P100,000;
g. Officials or employees in the Civil

Service, or members of the Armed
Forces of the Philippines;
h. Foreigners and foreign corporations,
including foreign governments.
3. Prohibited Fund-raising Activities

a. The following are prohibited if held for
raising campaign funds or for the
support of any candidate from the start
of the election period up to and
including election day:
Dances
Lotteries
Cockfights
Games
Boxing bouts
Bingo
Beauty contests
Entertainments,
or
cinematographic, theatrical or other
performances
b. For any person or organization, civic or
religious, directly or indirectly, to solicit
4. Limitations on Aggregate Amount

to be Spent for a Campaign
a. For Candidates
i. President and VP: P10 for every
voter currently registered
ii. Other candidates: P3 for every voter
currently
registered
in
the
constituency where he filed his
certificate of candidacy
b. Candidates Without a Political Party:
P5 for every voter
c. For Political Parties: P5 for every voter
currently registered in the constituency
or constituencies where it has official
candidates.
5. Requisites
Donation
of
Prohibited
a. By candidate, spouse, relative within

2nd civil degree of consanguinity or
affinity, campaign manager, agent or
representative; treasurers, agents or
representatives of political party
b. During campaign period, day before and
day of the election
c. Directly
or
indirectly:
donation,
contribution or gift in cash or in kind,
or undertake or contribute to the
construction or repair of roads, bridges,
school buses, puericulture centers,
medical clinics and hospitals, churches
or chapels cement pavements, or any
structure for public use or for the use of
any religious or civic organization.
EXCEPTIONS:
Normal and customary religious
dues or contributions
Periodic payments for legitimate
scholarships established and school
contributions
habitually
made
before the prohibited period.
Page 250 of 313
ELECTION LAW
and/or accept from any candidate or

from his campaign manager, agent or
representative, or any person acting in
their
behalf,
any
gift,
food,
transportation, contribution or donation
in cash or in kind from the start of the
election period up to and including
election day.
money
ii. the loan is made in accordance
with laws and regulations AND
iii. the loan is made in the ordinary
course of business
Chapter VI. Election Proper
A. IN GENERAL
Plurality of votes sufficient for:
a choice conditioned on the plurality of

valid votes or
a valid constituency regardless of the
actually number of votes cast.
Those who did not vote are assumed to
assent to the action of those who voted.
May be done by the COMELEC motu

proprio or upon a verified petition by
any interested party;
Decided en banc by a majority vote of its

members. (Sec. 4, R.A. 7166)
Grounds:
a. Violence
b. Terrorism
c. Loss or destruction of election
paraphernalia or records
d. Force majeure
e. Other analogous cause of such a
nature that the holding of a free,
orderly and honest election becomes
impossible
in
any
political
subdivision. (Sec. 5, B.P. 881)
COMELEC shall call for such on a date

reasonably close to the date of the
election not held, suspended, or which
resulted in a failure to elect but not
later than 30 days after the cessation of
the cause for such. (Sec. 5, B.P. 881)
2. Failure of Elections
Held to fill a permanent vacancy in the

House of Representatives occurring at least
1 year before the expiration of the term, to
be held not earlier than 60 days nor longer
than 90 days after the occurrence of the
vacancy.
Causes for the declaration of such may

occur before or after the casting of votes or
on the day of the election. (Sec. 4, R.A.
7166)
But if the vacancy occurs in the Senate, the

special
election
shall
be
held
simultaneously with the succeeding regular
election. (Sec. 4, R.A. 7166)
Grounds: (Sison v. Comelec, 1999)

a. Election in any polling place has not
been held on the date fixed due to
force majeure, violence, terrorism,
fraud, or other analogous causes;
b. Election in any polling place had
been suspended before the hour
fixed for the closing of the voting
B. CASTING OF VOTES
A legal voter will not be compelled to
disclose for whom he voted.
Moreover,
third persons are not permitted to testify to
its purport. The voter may, however, if he
Page 251 of 313
ELECTION LAW
A. IN GENERAL
1. WHAT CONSTITUTES AN ELECTION
2. FAILURE OF ELECTIONS; GROUNDS
3. POSTPONEMENT OF ELECTIONS
4. SPECIAL ELECTIONS
B. CASTING OF VOTES
1. SECRECY OF THE BALLOT
2. ABSENTEE VOTING
3. VOTING HOURS
4. PREPARING THE BALLOT AND VOTING
5. CHALLENGE OF ILLEGAL VOTERS
C. COUNTING OF VOTES
1. BOARD OF ELECTION INSPECTORS
2. COUNTING PROPER
3. MARKED BALLOTS
4. APPRECIATION OF BALLOTS
5. ELECTION RETURNS
6. ISSUANCE OF THE CERTIFICATE OF
VOTES
D. CANVASS(ING OF VOTES)
1. DEFINITIONS
2. NATURE OF CANVASS PROCEEDINGS
3. COMPOSITION
OF
BOARD
OF
CANVASSERS
4. PROHIBITION ON BOC
5. CANVASS BY THE BOC
6. PREPARATION OF CERTIFICATE OF
CANVASS AND STATEMENT OF VOTES
7. COMPLETION OF CERTIFICATE OF
CANVASS
8. CANVASS OF VOTES FOR THE
PRESIDENT AND VICE PRESIDENT
9. PROCLAMATION
due to force majeure, violence,

terrorism, fraud, or other analogous
causes; and
c. After the voting and during the
preparation and transmission of the
election returns or in the custody or
canvass thereof such election
results in a failure to elect due to
force majeure, violence, terrorism,
fraud or other analogous causes.
chooses, waive his privilege of secrecy and

voluntarily disclose the contents of his
ballot.
2. Absentee Voting
Under RA 9189, it is the process by which
qualified citizens of the Philippines exercise
their right to vote pursuant to the
constitutional mandate that Congress shall
provide a system of absentee voting to
qualified Filipinos (Exception to the 6month/1-year residency requirements).
3. Voting Hours
From 7 AM to 3 PM UNLESS
during
closing time there are voters present within
30 meters in front of the polling place who
have not yet cast their votes, in which case
the voting shall continue but only to allow
said voters to cast their votes without
interruption.
4. Preparing the Ballot and Voting

a. No voter shall be allowed to:
i. Enter a booth occupied by another,
nor enter the same accompanied by
somebody, except as provided for in
the law;
ii. Stay therein for a longer time than
necessary
iii. Speak with anyone other than as
provided in the law while inside the
polling place.
b. It shall be unlawful to:
i. Prepare the ballot outside the voting
booth;
ii. Exhibit its contents to any person
iii. Erase any printing from the ballot
iv. Intentionally tear or deface the same
or put thereon any distinguishing
mark;
v. Use carbon paper, paraffin paper, or
other means for making a copy of
the contents of the ballot;
vi. Make use of any other means to
identify the vote of the voter.
c. Preparation of ballots for illiterates and
disabled persons (Sec. 196, B.P. 881)
i. No voter shall be allowed to vote as
an illiterate or as a physically
disabled unless it is so indicated in
his registration record.
ii. He may be assisted in the
preparation of his ballot by:
A
relative
by
affinity
or
No voter shall change his ballot more than

once. (Sec. 14, R.A. 8436)
Spoiled Ballots
When the number does not coincide

with the number of the ballot delivered
to the voter, as entered in the voting
record.
When the signature of the chairman is

absent in the ballot given to a voter as
proof of the authenticity of the ballot.
When the detachable coupon of the

ballot returned to the chairman has
been removed not in the presence of
the board of election inspectors and
of the voter.
EFFECT: The ballot shall be considered

as spoiled and shall be so marked and
signed by the members of the board of
election inspectors.

Any voter or watcher may challenge any
person offering to vote for:
not being registered

using the name of another, or
suffering from existing disqualification.
In such case, the board of election
inspectors shall satisfy itself as to whether
or not the ground for the challenge is true
by requiring proof of registration or the
identity of the voter (Sec. 199, B.P. 881):
a. Grounds for Challenge based on certain
illegal acts (Sec. 200, B.P. 881):
Page 252 of 313
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consanguinity within the fourth

civil degree, or
If the above is not available, then
any person of his confidence
who belongs to the same
household; or
Any member of the board of
election inspectors.
iii. In no case shall an assistor assist
more than 3 times.
iv. The person assisting shall:
Prepare the ballot for the
illiterate or disabled voter inside
the voting booth;
Bind himself in a formal
document under oath to fill out
the ballot strictly in accordance
with the instructions of the voter
and not to reveal the contents of
the ballot prepared by him.
i.
b. Non-conclusiveness of admission of
challenged vote (Sec. 201, B.P. 881):
Admission is not conclusive upon
any court as to the legality of the
registration of the voter challenged
or vote in a criminal action against
such person for illegal registration
or voting.
C. COUNTING OF VOTES
Conducted by the BEI, which shall not

adjourn or postpone or delay the count
until it has been fully completed, unless
otherwise ordered by the COMELEC.

Constituted by COMELEC for each precinct
at least 30 days before the date when the
voters list is to be prepared (regular
election) or 15 days before a special
election.
a. Composition:
Chairman, poll clerk and member,
all public school teachers, with
priority
given
to
those
with
permanent appointments. (Sec. 164,
BP 881, as amended by Sec. 13,
R.A. 6646)
If there are not enough public

school teachers, the following may
be appointed for election duty:
teachers in private schools;
employees in the civil service; or
other citizens of known probity
and
competence
who
are
registered voters of the city or
municipality
b. Powers: (Sec. 168, BP 881)
1) Conduct the voting and counting of
votes in their respective polling
places;
2) Act as deputies of the Commission
in the supervision and control of the
election in the polling places
wherein they are assigned, to assure
the holding of the same in a free,
orderly and honest manner;
3) Perform
such
other
functions
prescribed by the Omnibus Election
Code or by the rules and regulations
promulgated by the COMELEC
c. Prohibitions:
No person shall serve a chairman or
member of the Board if he is related
within the 4th civil degree of
consanguinity or affinity to any
member of the Board, or to any
candidate to be voted for in the
polling place or his spouse (Sec.
167, BP 881)
No member of the Board shall
engage in any partisan political
activity or take part in the election
except to discharge his duties as
such and to vote. (Sec. 173, BP
881)
No member of the Board shall,
before the termination of the voting,
make any announcement as to
whether a certain registered voter
has already voted or not, as to how
many have already voted or how
many so far have failed to vote, or
any other fact tending to show or
showing the state of the polls, nor
shall he make any statement at any
time as to how any person voted,
except as witness before a court.
(Sec. 205, BP 881)
2. Counting Proper
a. Counting must be public and without
interruption
b. Venue for counting: in any other place
within a public building in the same
municipality or city. The public building
shall not be located within the
perimeter of or inside a military or
police camp or reservation nor inside a
prison compound.
Page 253 of 313
ELECTION LAW
Receives or expects to receive, has

paid, offered or promised to pay, has
contributed, offered or promised to
contribute money or anything of
value as consideration for his vote
or for the vote of another;
ii. Has made or received a promise to
influence the giving or withholding
of any such vote; or
iii. Has made a bet or is interested
directly or indirectly in a bet which
depends upon the result of the
election.
The challenged person shall take a
prescribed oath before the BEI that
he has not committed the acts
alleged. Upon the taking of oath,
the challenge shall be dismissed
and the voter allowed to vote, but
in case of his refusal to take such
oath, challenge shall be sustained
and he shall not be allowed to vote.
c. Manner of Counting
Refer to Sec. 210 of B.P. 881 or the
Omnibus Election Code
3. Marked Ballots
Ballots containing a distinguishing mark
which would tend to identify the voter who
cast such ballot.
a. Effect: Invalidated in their entirety, and
none of the votes therein are counted.
b. Determination of marked ballots:
Only in an unmistakable case where
the ballot appeared to be marked,
should it be rejected.
In the absence of evidence aliunde
clearly showing the intention or
plan
was
for
purposes
of
identification, signs on ballots are
BALLOT
Containing name of a candidate affixed
thereto through any MECHANICAL process
Clearly appears to have been filled by 2
different persons
Written with crayon, lead pencil, ink, wholly
or in part
Initials only or illegible or does NOT
sufficiently identify the candidate for whom it
is intended
Vote for a person who has not filed a
certificate of candidacy or in favor of a
candidate for an office for which he did not
present himself
Vote for a candidate who has been disqualified
by final judgment
Only candidates first name or surname is
written; no other candidate with same first
name or surname for same office
Only candidates first name is written which
when read has a sound similar to the
surname of another candidate
2 or more candidates with the same full name,
first name or surname, one is the incumbent,
and on the ballot is written only full name,
first name or surname
Woman candidate uses her maiden name,
married name, or both, there is another
presumed accidental.
A majority vote of the board of
election
inspectors
shall
be
sufficient to determine whether a
ballot is marked or not.
a. Principles
Doubts are to be resolved in favor of
the validity of ballots.
Liberal construction in reading the
ballots, and intendments should be
in favor of a reading which render
the ballot effective.
Minor blemishes should not affect
the validity of the ballot where the
intention of the voter to vote for
certain persons is discernible in the
ballot.
Errors in spelling, honest mistakes
due to ignorance or illiteracy should
not defeat the intention of the voter.
However, if the ballot is so defective
as to fail to show any intention, it
must be disregarded.
b. Rules (Sec. 211, BP 881): Every ballot
shall be presumed valid unless there is
clear and good reason to reject it.
HOW COUNTED
Totally VOID
Totally VOID
Valid
STRAY vote but shall not invalidate whole
ballot
STRAY vote but shall not invalidate the whole
ballot
STRAY vote but shall not invalidate the whole
ballot
Valid
Vote counted in favor of the candidate with
such SURNAME
Vote counted for the INCUMBENT
In favor of
INCUMBENT.
the
candidate
who
is
an
Page 254 of 313
ELECTION LAW
d. Duties of BEI in counting: confined to

the conduct of the elections and the
counting of votes. Counting should be
liberal to effectuate the will of the
electorate. Duty of the BEI to issue a
certificate of the number of the votes
received by a candidate upon request of
the watchers. All the members of the
BEI shall sign the certificate.
candidate with the same surname
2 or more words are written on different lines,

all are surnames of 2 or more candidates with
the same surname for an office which the law
authorizes the election of more than one and
there are the same of such surnames written
as there are candidates with that surname
1 word is written which is the first name of a
candidate and which is also the surname of
his opponent
2 words written, 1 of which is the first name of
the candidate and the other is the surname of
his opponent
Name or surname incorrectly written which
when read has a sound similar to the name or
surname of a candidate when correctly written
(Idem sonans rule)
Name or surname of a candidate appears in
the space for an office for which he is a
candidate and for an office for which he is
NOT a candidate
Name of a candidate is NOT written in the
proper space on the ballot but is preceded by
the name of the office for which he is a
candidate
Words written on the appropriate blank is the
identical name, surname or full name of 2 or
more candidates for the same office, none of
whom is the incumbent
Prefixes: Sr., Mr., Datu, Don, Ginoo, Hon.,
Gob. or Suffixes: Hijo, Jr., Segundo
Circles, crosses, lines on spaces which the
voter has not voted
Space appears a name of a candidate that is
erased and another clearly written
Accidental tearing or perforation
Failure to remove the detachable coupon
Erroneous initial of first name accompanied
by correct surname of the candidate
Erroneous initial of surname accompanied by
correct first name of the candidate
Erroneous middle initial
There exists another person who is not a
candidate with the same first name or
surname of a candidate
Commas, dots, hyphens between the first
name and surname of the candidate or on
other parts of the ballot
Traces of letter T or J or similar ones
First letters or syllables of names which the
voters does not continue
Unintentional
or
strokes, strains
accidental
NOT be counted for any of them unless one is

the surname of the incumbent who has
served for at least 1 year for the INCUMBENT
In favor of all candidates bearing the surname
Vote counted for the opponent

Vote shall NOT be counted for either
Vote counted in favor of such a candidate

Counted for the office for which he is running
for. Vote for the office for which he is not a
candidate, STRAY vote except when it used to
identify the voter, VOID.
Vote counted for the candidate
Vote counted for candidate to whose ticket
belong all the other candidates voted for in
the same ballot for the same constituency.
Valid
NOT invalidate the ballot
Vote for the one clearly written
NOT annul it
NOT annul it
NOT annul it
NOT annul it
NOT annul it
NOT annul it
NOT invalidate it unless it clearly appears

that they were deliberately put by the voter as
IDENTIFICATION marks: VOID
flourishes,
Page 255 of 313
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2 or more words written on the same line,all

are surnames of 2 or more candidates
2 or more candidates are voted for an office

which the law authorizes election of only one
Candidates voted for exceed the number of
those to be elected
Totally written in arabic in localities where it
is of general use
5. Election Returns
It contains:
the date of the election
the province, municipality and the
precinct in which it is held, and
the votes received by each candidate
written in figures and in words.
(Garay v. COMELEC, 1996 )
b. Number of copies and their distribution

(Sec. 27, R.A. 7166, as amended by R.A.
8045 and R.A. 8173): BEI shall prepare
in their handwriting the returns in their
polling places, in the number of copies
provided and in the form to be
prescribed by the COMELEC.
c. Announcement of results: The BEI
chairman shall make an oral and public
announcement of the total number of
votes in the polling place for each
candidate upon the completion of the
election returns.
6. Issuance
Votes
of
the
Counted for the candidate IF there is no other

candidate for the same office with the same
nickname
NOT counted for any candidate having such
first name BUT valid for other candidates
NOT counted in favor of any of them BUT the
ballot is considered valid as to the other
candidates
Valid but the votes counted are those names
which were first written by the voter until the
authorized number is covered
Valid
a. Definition: Official document in which

the Certificates of Canvass are based,
and is the only document that
constitutes sufficient evidence of the
true and genuine results of the
elections.
NOT annul it except when used to identify the

voter: VOID
Certificate
of
a. Definition: Document which contains:

the number of votes obtained by
each candidate written in words and
figures, the number of the precinct
the name of the city or municipality
and province
the total number of voters who voted

in the precinct, and the date and
time issued.
It must be signed and thumbmarked by
each member of the Board. (Sec. 16,
R.A. 6646)
b. Duty of the BEI to issue certificate (Sec.
16, R.A. 6646)
Refusal to do so
constitutes an election offense. (Sec.
27, R.A. 6646)
c. Admissibility in evidence:
To prove tampering, alteration,
falsification
or
any
anomaly
committed in the election returns
concerned, when duly authenticated
by testimonial or documentary
evidence presented to the Board of
Canvassers by at least 2 members of
the BEI who issued the certificate.
This
is
notwithstanding
the
provisions of Secs. 235 and 236 of
BP 881.
Proof of the votes obtained by the
candidates. (Balindong v. Comelec,
2003)
But does not constitute
sufficient evidence of the true and
genuine results of the elections.
(Garay v. Comelec 1996)
Failure to present certificate shall be
a bar to the presentation of other
evidence to impugn the authenticity
of the election returns. (Sec. 17,
R.A. 6646)
D. CANVASSING OF VOTES
1. Definitions
a. canvass - the process by which the
results in the election returns are tallied
and totalled.
Page 256 of 313
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Nickname and appelations of affection and

friendship accompanied by first name or
surname of the candidate
Nickname used is one by which the candidate
is generally or popularly known in the locality
and unaccompanied by a first name or
surname of the candidate
Correctly written first name of the candidate
with a different surname
2. Nature of Canvass Proceedings
b. Certificates of canvass - official

tabulations of votes accomplished by
district, municipal, city and provincial
canvassers based on the election
returns, which are the results of the
ballot count at the precinct level.
Administrative and summary in nature.

ELECTION LAW
3. Composition of Board of Canvassers

(Sec. 221, BP 881, as amended by Sec. 20, RA 6646
Chairman
Province
City
Municipality
Provincial
election
supervisor or lawyer in
the COMELEC regional
office
City election registrar

or
a
lawyer
of
COMELEC;
Election
registrar
or
COMELEC representative
In cities with more than

1 election registrar,
COMELEC
shall
designate
Vice
Chairman
Member
Provincial fiscal
Provincial
superintendent
schools
of
City fiscal
Municipal treasurer
City superintendent of
schools
Most senior district school

supervisor or in his absence,
a principal of the school
district or elementary school
In case of non-availability, absence, disqualification due to relationship, or incapacity for

any cause of any of the members, COMELEC may appoint the following as substitutes, in
the order named:
Chairman
Vice Chairman
Member
Province
City
Municipality
Ranking lawyer of the

COMELEC
a. Provincial auditor
b. Registrar of Deeds
c. Clerk
of
Court
nominated by the
Executive Judge of
the RTC;
d. Any other available
appointive
provincial official

COMELEC
a. City
auditor
or
equivalent;
b. Registrar of Deeds;
c. Clerk
of
Court
nominated by the
Executive Judge of
the RTC;
appointive
city
official
Same as for ViceChairman

COMELEC
a. Municipal
Administrator;
b. Municipal Assessor;
c. Clerk
of
Court
nominated by the
Executive Judge of
the MTC;
appointive
municipal official
Same as for ViceChairman
Same as
Chairman
for
Vice-
4. Prohibitions on BOC
a. Chairman and members shall not be
related within the 4th civil degree of
consanguinity or affinity to any of
the candidates whose votes will be
canvassed by said board, or to any
member of the said board. (Sec. 222,
B.P. 881)
b. No member or substitute member shall
be transferred, assigned or detailed
outside of his official station, nor shall
he leave said station without prior
authority of the COMELEC during the

period beginning election day until the
proclamation of the winning candidates.
(Sec. 223, B.P. 881)
c. No member shall feign illness to be
substituted on election day until the
proclamation of the winning candidates.
Feigning of illness constitutes an
election offense. (Sec. 224, B.P. 881)
Page 257 of 313

a. BOC must meet not later than 6:00 PM
on election day to receive the election
returns and canvass those received.
b. BOC must meet continuously from day
to day until the canvass is completed.
May adjourn only for awaiting other
election returns. When it adjourns, it
shall make a total of all votes canvassed
so far for each candidate for each office
furnishing the COMELEC in Manila a
certified copy and to make available
copies to the media and other interested
parties. BOC must resume canvassing
once more returns are received.
c. The canvass proceedings must be open
and in public.
d. A majority vote of all the members of
the Board of Canvassers is needed in
order to render a decision.
e. Time to complete canvass:
Municipalities: 36 hours
Cities not comprising at least 1
legislative district: 36 hours
Cities comprising
at least
1
legislative district: 48 hours
Provinces: 72 hours
Canvass and Statement of Votes
Number of copies of certificates of

canvass and their distribution (Sec. 29,
R.A. 7166)
City or Municipal Board of Canvassers:
7 copies
Congress as the National BOC (Sec. 30,

R.A. 7166)
Congress
shall
determine
the
authenticity and due execution of
the
certificate
of
canvass
for
President and Vice President as
accomplished and transmitted by the
local board of canvassers, on a showing
that:
a. Each certificate was executed,
signed and thumb-marked by the
chairman and members of the board
of canvassers and transmitted to
Congress by them;
b. Each certificate contains the names
of all the candidates for President,
VP, and their corresponding votes in
7. Completion
Canvass
of
Certificate
of
The Senate President shall require the

BOC concerned to transmit by personal
delivery within 2 days from notice the
election returns from the polling places
that were not included in the certificate
of canvass and supporting statements.
When
there
appear
erasures
or
alterations in the certificate of canvass
which may cast doubt as to the veracity
of the number of votes stated and may
affect the result of the election,
Congress shall, for the sole purpose of
verifying the actual number of votes,
count the votes as they appear in the
copies of the election returns
submitted to it, upon request of a
presidential
or
vice-presidential
candidate or their party. (Sec. 30, R.A.
7166)
8. Canvass of Votes for the President

and Vice President
(Sec. 24, R.A. 8436, Law on Automated
Election System)
a. The certificates of canvass for President
and VP shall be duly certified by the
BOC of each province or city.
b. The certificates of canvass for President
and Vice President shall be transmitted
to Congress, directed to the Senate
President.
Upon receipt of the
certificates of canvass, the Senate
President shall, not later than 30 days
after the day of the election, open all the
certificates in the presence of the
Senate and the House in joint public
session.
c. Congress upon the determination of the
authenticity and due execution thereof,
shall canvass the votes.
d. The person having the highest number
of votes shall be proclaimed elected. In
case 2 or more persons shall have an
equal and highest number of votes,
one of them shall be chosen by vote of
majority of all the members of both the
Senate
and
the
House,
voting
separately.
Page 258 of 313
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words and in figures; and

c. There exists no discrepancy in other
authentic copies of the certificate or
in the votes both in words and
figures in the same certificate.
(Sec. 231, B.P. 881)
9. Proclamation
Proclamation shall be after the canvass
of election returns, in the absence of a
perfected appeal to the COMELEC,
proclaim the candidates who obtained
the highest number of votes cast in the
province, city, municipality or barangay,
on the basis of the certificates of
canvass.
Failure to comply with this

constitutes an election offense.
231, B.P. 881)
duty
(Sec.
a. When proclamation void:

When it is based on incomplete
returns (Castromayor v. Comelec
995) or
When there is yet no complete
canvass (Jamil v. Comelec 1997).
A
void
proclamation
is
no
proclamation at all, and the
proclaimed candidates assumption
into office cannot deprive the
COMELEC of its power to annul the
proclamation.
b. Partial proclamation (Sec. 21, R.A.
7166): Notwithstanding pendency of any
pre-proclamation
controversy,
COMELEC may summarily order
proclamation
of
other
winning
candidates whose election will not be
affected by the outcome of the
controversy.
c. Election resulting in a tie (Sec. 240, B.P.
881): BOC, by resolution, upon 5 days
notice to all tied candidates, shall hold
a special public meeting at which the
board shall proceed to the drawing of
lots of tied candidates and shall
proclaim as elected the candidates who
may be favored by luck.
There is a tie when:
2 or more candidates receive an
equal and highest number of
votes; or
2 or more candidates are to be
elected for the same position and
2 or more candidates received
the same number of votes for the
LAST PLACE in the number to
be elected.
d. Proclamation of a lone candidate (R.A.
8295, Law on Proclamation of Solo
Candidates): Upon the expiration of the
deadline for the filing of certificates of
candidacy in a special election called to
fill a vacancy in an elective position
Page 259 of 313
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other than for President and VP, when

there is only 1 qualified candidate, he
shall be proclaimed elected without
holding the special election upon
certification by the COMELEC that he is
the only candidate for the office and is
therefore deemed elected. (Sec. 2)
Chapter VII. Modes of Challenging Candidacy and Election Results
Chapter VII. Modes of Challenging

Candidacy and Election Results
A.
A. Cancellation
Candidacy
of
Certificate
of
1. Grounds
False material representation in the
certificate of candidacy;
ii. If the certificate filed is a substitute
Certificate of Candidacy, when it is
not a proper case of substitution
under Sec. 77 of BP 881.
i.
Summary
3. Procedure
Who may file: any citizen of voting age,

or a duly registered political party,
organization, or coalition of political
parties
When filed: Within 5 days from the last
day for the filing of certificates of
candidacy
Where filed: With the Law Department
of the COMELEC
(asked in 1987, 1988, 1996)
Any question or matter pertaining to or
affecting:
the proceedings of the board of
canvassers, or
any matter raised under Sec. 233-236

of BP 881 (see below) in relation to the
preparation,
transmission,
receipt,
custody and appreciation of the election
returns. (Sec. 241, BP 881)
1. Jurisdiction
COMELEC has exclusive jurisdiction over
pre-proclamation cases. It may order, motu
proprio or upon written petition, the partial
or total suspension of the proclamation of
any candidate-elect or annul partially or
totally any proclamation, if one has been
made. (Sec. 242, BP 881)
2. When Not Allowed

For the positions of President, VP, Senator,
and
Member
of
the
House
of
Representatives (Sec. 15, R.A. 7166)
Heard summarily by the COMELEC after
due notice and hearing. This is because
canvass and proclamation should be
delayed as little as possible.
This enumeration is restrictive and

exclusive:
i. Illegal composition or proceedings of
the board of election canvassers;
ii. Canvassed election returns are
either:
Incomplete;
Contain material defects;
Appear to be tampered with or
falsified;
Contain discrepancies in the
same returns or in other
authentic copies;
iii. The election returns were:
a) Prepared under duress, threats,
coercion, intimidation or
b) Obviously manufactured or not
authentic
iv. Substituted or fraudulent returns in
controverted polling places were
canvassed, the results of which
materially affected the standing of
the aggrieved candidate(s).
v. Manifest errors in the Certificates of
Canvass or Election Returns (Sec.
15, R.A. 7166; Chavez v. COMELEC)
Page 260 of 313
ELECTION LAW
CANCELLATION OF CERTIFICATE OF
CANDIDACY
1. GROUNDS
2. NATURE OF PROCEEDINGS
3. PROCEDURE
B. PRE-PROCLAMATION CONTROVERSIES
1. JURISDICTION
2. WHEN NOT ALLOWED
3. NATURE OF PROCEEDINGS
4. ISSUES THAT MAY BE RAISED
5. ISSUES THAT CANNOT BE RAISED
6. PROCEDURE
7. EFFECT
OF
FILING
OF
PREPROCLAMATION
8. EFFECT
OF
PROCLAMATION
OF
WINNING CANDIDATE
9. PETITION
TO
ANNUL/SUSPEND
PROCLAMATION
10. DECLARATION
OF
FAILURE
OF
ELECTION
C. DISQUALIFICATION CASES
1. PROCEDURE
2. EFFECT

i.
iii.
iv.
v.
vi.
Where:
Only with the Board of Canvassers
When:
At the time the questioned return is
presented for inclusion in the canvass.
Who:
Any candidate, political
coalition of political parties
7. Effect
of
Filing
of
Proclamation Controversy
2. If the petition is for correction, it

must be filed not later than 5 days
following the date of proclamation,
and must implead all candidates
who may be adversely affected
thereby.
(Sec. 5(b), Rule 27,
COMELEC Rules of Procedure)
Pre-
The period to file an election contest

shall be suspended during the
pendency of the pre-proclamation
contest in the COMELEC or the
Supreme Court.
The right of the prevailing party in the

pre-proclamation
contest
to
the
execution of COMELECs decision does
not bar the losing party from filing an
election contest.
Despite the pendency of a preproclamation contest, the COMELEC

may order the proclamation of other
winning candidates whose election
will not be affected by the outcome of
the controversy.
Where:
Either in the Board of Canvassers or
directly with the COMELEC. (Sec. 17,
R.A. 7166)
When:
1. a petition involves the illegal
composition or proceedings of the
board, must be filed immediately
when the board begins to act as
such (Laodeno v. Comelec), or at the
time of the appointment of the
member whose capacity to sit as
such is objected to if it comes after
the canvassing of the board, or
immediately at the point where the
proceedings are or begin to be
illegal. Otherwise, by participating
in the proceedings, the petitioner is
deemed to have acquiesced in the
composition of the BOC.
or
Note: Non-compliance with any of the

steps above is fatal to the preproclamation petition.
6. Procedure
a. Questions involving the composition or
proceedings of the board of canvassers,
or correction of manifest errors
party
8. Effect of Proclamation of Winning

Candidate
General rule: A pre-proclamation

controversy shall no longer be viable
after the proclamation and assumption
into office by the candidate whose
election is contested. The remedy is an
election protest before the proper forum.
Exceptions: The prevailing candidate

may still be unseated even though he
has been proclaimed and installed in
office if:
The opponent is adjudged the true
winner of the election by final
judgment of court in an election
contest;
The prevailing party is declared
Page 261 of 313
ELECTION LAW
ii.
Appreciation of ballots, as this is

performed by the BEI at the precinct
level and is not part of the proceedings
of the BOC (Sanchez v. Comelec, 1987)
Technical examination of the signatures
and thumb marks of voters (Matalam v.
Comelec 1997)
Prayer for re-opening of ballot boxes
(Alfonso v. Comelec, 1997)
Padding of the Registry List of Voters of
a municipality, massive fraud and
terrorism (Ututalum v. Comelec 1990)
Challenges directed against the Board of
Election
Inspectors
(Ututalum
v.
Comelec)
Fraud, terrorism and other illegal
electoral practices. These are properly
within the office of election contests
over which electoral tribunals have sole,
exclusive jurisdiction.
(Loong v.
Comelec, 1992)
b. Matters relating to the preparation,

transmission, receipt, custody and
appreciation of the election returns and
certificates of canvass
ineligible or disqualified by final

judgment of a court in a quo
warranto case; or
The incumbent is removed from
office for cause.
9. Petition to Annul
Proclamation
or
Suspend
The filing of the petition suspends the

running of the period to file an election
protest. (Alangdeo v. Comelec, 1989)
No law provides for a reglementary

period within which to file a petition for
the annulment of an election if there is
as yet no proclamation.
(Loong v.
Comelec)
10. Declaration
Election
of
its officials who are members of the

Philippine Bar.
5) The
COMELEC
then
decides
whether to grant or deny the
petition.
This lies within the
exclusive
prerogative
of
the
COMELEC.
Failure
of
It is neither an election protest nor a

pre-proclamation controversy. (Borja v.
Comelec, 1998)
Jurisdiction: COMELEC, sitting en

banc, may declare a failure of election
by a majority vote of its members.
Requisites: The following conditions

must concur:
a. No voting has taken place in the
precincts concerned on the date
fixed by law, or even if there was
voting, the election nonetheless
resulted in a failure to elect; and
b. The votes cast would affect the
results of the election.
Procedure:
1) Petitioner files verified petition with
the
Law
Department
of
the
COMELEC.
2) Unless a shorter period is deemed
necessary by circumstances, within
24 hours, the Clerk of Court
concerned serves notices to all
interested parties, indicating therein
the date of hearing, through the
fastest means available.
3) Unless a shorter period is deemed
necessary by the circumstances,
within 2 days from receipt of the
notice of hearing, any interested
party may file an opposition with the
Law Department of the COMELEC.
4) The COMELEC proceeds to hear the
petition.
The COMELEC may
delegate the hearing of the case and
the reception of evidence to any of
C. DISQUALIFICATION CASES
1. Procedure
i.
Who may file: Any citizen of voting age,

or any duly registered political party,
organization or coalition of political
parties
ii. Where:
Law
Department
of
the
COMELEC
iii. When: Any day after the last day for
filing of certificates of candidacy, but
not later than the date of proclamation
2. Effect
(asked in 1990, 1992, 1996, 2003)
Any candidate who has been declared by
final judgment to be disqualified shall not
be voted for, and the votes cast for him
shall not be counted. The fact that the
candidate who obtained the highest
number of votes is later declared to be
disqualified or not eligible for the office to
which
he
was
elected,
does
not
necessarily entitle the candidate who
obtained the second highest number of
votes to be declared the winner of the
elective office.
Page 262 of 313
ELECTION LAW
Chapter VIII. Election Offenses
A. JURISDICTION OVER ELECTION

OFFENSES
RTCs
have
exclusive
original
jurisdiction to try and decide any
criminal actions or proceedings for
violation of election laws. (Sec. 268,
B.P. 881)
B. PROSECUTION
OFFENSES
OF
ELECTION
The COMELEC has the exclusive power

to investigate and prosecute cases
involving violations of election laws.
(Sec. 2 (6), Art. IX-C, 1987 Const)
However, it may validly delegate the
power to the Provincial Prosecutor or to
the Ombudsman.
In the event that the COMELEC fails to
act on any complaint within 4 months
from its filing, the complainant may file
the complaint with the fiscal or the
Department of Justice, if warranted.
(Sec. 265, B.P. 881)
C. PREFERENTIAL DISPOSITION OF
ELECTION OFFENSES
The investigating officer shall resolve

the case within 5 days from submission.
The courts shall give preference to
election cases over all other cases
except petitions for writ of habeas
corpus.
1. Registration
1) Failure of the Board of Election
Inspectors to post the list of
voters in each precinct. (Sec. 9,
R.A. 7166);
2) Change or alteration or transfer of
a voter's precinct assignment in
the permanent list of voters without
the express written consent of the
voter (Sec. 4, R.A. 8189)
1) Continued misrepresentation or
holding out as a candidate of a
disqualified candidate or one
declared by final and executory
judgment
to
be
a
nuisance
candidate (Sec. 27f, R.A. 6646);
2) Knowingly inducing or abetting
such
misrepresentation
of
a
disqualified or nuisance candidate
(Sec. 27f, R.A. 6646);
3) Coercing, bribing, threatening,
harassing,
intimidating,
terrorizing, or actually causing,
inflicting or producing violence,
injury,
punishment,
torture,
damage, loss or disadvantage to
discourage any other person or
persons from filing a certificate of
candidacy in order to eliminate all
other potential candidates from
running in a special election (Sec. 5,
R.A. 8295);
1) Appointment or use of special
policemen, special agents or the
like during the campaign period
(Sec. 261m, B.P. 881)
2) Use of armored land, water or
aircraft during the campaign period
(Sec. 261r, B.P. 881)
3) Unlawful
electioneering
(Sec.
261k, B.P. 881)
4) Acting as bodyguards or security
in the case of policemen and
provincial
guards
during
the
campaign period (Sec. 261t, B.P.
881)
5) Removal,
destruction,
obliteration, or tampering of
lawful election propaganda, or
preventing the distribution thereof
(Sec. 83, B.P. 881 vis--vis Sec. 262,
B.P. 881)
Page 263 of 313
ELECTION LAW
A. JURISDICTION
OVER
ELECTION
OFFENSES
B. PROSECUTION OF ELECTION OFFENSES
C. PREFERENTIAL
DISPOSITION
OF
ELECTION OFFENSES
D. ELECTION OFFENSES
1. REGISTRATION
2. CERTIFICATE OF CANDIDACY
3. ELECTION CAMPAIGN
4. VOTING
5. COUNTING OF VOTES
6. CANVASSING
7. ACTS OF GOVERNMENT AND PUBLIC
OFFICERS
8. COERCION, INTIMIDATION, VIOLENCE
9. OTHER PROHIBITIONS
10. PENALTIES
E. ARRESTS
IN
CONNECTION
WITH
ELECTION CAMPAIGN
F. PRESCRIPTION
D. ELECTION OFFENSES
4. Voting
1) Tampering, increasing, decreasing
votes, or
refusal to correct
tampered
votes
after
proper
verification and hearing by any
member of the board of election
inspectors (Sec. 27b, R.A. 6646)
2) Refusal to issue to duly accredited
watchers the certificate of votes cast
and the announcement of the
election, by any member of the
board of election inspectors (Sec.
27c, R.A. 6646)
6. Canvassing
Any chairperson of the board of

canvassers who fails to give
notice
of
meeting
to other
members of the board, candidate or
political party as required (Sec. 27e,
R.A. 6646)
7. Acts of
Officers
Government or Public
1) Appointment of new employees,

creation
of
new
positions,
promotion,
or
giving
salary
increases within the election period
(Sec. 261g, B.P. 881)
2) Transfer of officers and employees in
3)
4)
5)
6)
7)
8)
the civil service within the election

period without the prior approval of
the COMELEC (Sec. 261h, B.P. 881)
Intervening of public officers and
employees in the civil service in any
partisan political activity (Sec. 261i,
B.P. 881)
Use of public funds for an election
campaign (Sec. 261o, B.P. 881)
Illegal release of prisoners before
and after election (Sec. 261n, B.P.
881)
Release,
disbursement
or
expenditure of public funds during
the prohibited period (Sec. 261v,
B.P. 881)
Construction of public works, etc.
during the prohibited period (Sec.
261w, B.P. 881)
Suspension of elective local officials
during the election period without
prior approval of the COMELEC
(Sec. 261x, B.P. 881)
8. Coercion, Intimidation, Violence

1) Coercion of election officials and
employees
2) Threats, intimidation, terrorism, use
of fraudulent devices or other forms
of coercion (Sec. 261e, B.P. 881)
3) Use of undue influence (Sec. 261j,
B.P. 881)
4) Carrying deadly weapons within the
prohibited area (Sec. 261p, B.P.
881)
5) Carrying firearms outside residence
or place of business (Sec. 261q, B.P.
881)
6) Organization or maintenance of
reaction forces, strike forces, or
similar forces during the election
period (Sec. 261u, B.P. 881)
1) Unauthorized printing of official
ballots and election returns with
printing establishments that are not
under contract with the COMELEC
(Sec. 27a, R.A. 6646)
2) Wagering upon the results of
elections (Sec. 261c, B.P. 881)
3) Sale, etc. of intoxicating liquor on
the day fixed by law for the
registration of voters in the polling
place, or the day before the election
or on election day (Sec. 261dd (1),
B.P. 881)
4) Opening booths or stalls within 30
meters of any polling place (Sec,
Page 264 of 313
ELECTION LAW
1) Vote-buying and vote-selling (Sec.

261a, B.P. 881)
2) Conspiracy to bribe voters (Sec.
261b, B.P. 881): A disputable
presumption of a conspiracy to bribe
voters is created when there is
proof that at least 1 voter in
different precincts representing
at least 20% of the total precincts
in any municipality, city or province
has been offered, promised or
given
money,
valuable
consideration or other expenditure
by a candidate's relatives, leaders
and/or
sympathizers
for
the
purpose of promoting the election of
such candidate.
(Sec. 28, R.A.
6646)
3) Coercion of subordinates to vote
for or against any candidate (Sec.
261d, B.P. 881)
4) Dismissal of employees, laborers,
or tenants for refusing or failing to
vote for any candidate (Sec. 261d(2),
B.P. 881)
5) Being a flying voter (Sec. 261z (2),
B.P. 881)
10.
E. ARRESTS IN CONNECTION WITH

ELECTION CAMPAIGN
Only upon a warrant of arrest issued by

a competent judge after all the
requirements of the Constitution have
been strictly complied with.
F. Prescription
5 years from the date of their commission.
If the discovery of the offense be made in an
election contest proceeding, the period of
prescription shall commence on the date on
which the judgment in such proceedings
becomes final and executory. (Sec. 267,
B.P. 881)
Good faith is not a defense, as

election offenses are generally
mala prohibita.
Penalties
For individuals
Imprisonment of not less than 1
year but not more than 6 years,
without probation (Sec. 264,
B.P. 881)
Disqualification to hold public
office
Deprivation of the right of
suffrage
For a Foreigner
Imprisonment of not less than 1
year but not more than 6 years
(without probation);
Deportation after service of
sentence
For a Political Party

Payment of a fine not less than
P10,000
after
a
criminal
conviction
Persons Required by Law to Keep

Prisoners in their Custody: For
prisoners illegally released from any
penitentiary or jail during the
prohibited period, where such
prisoners commit any act of
intimidation,
terrorism
or
interference in the election, prison
mayor in its maximum period. (Sec.
264, B.P. 881)
- end of Election Law -
Page 265 of 313
ELECTION LAW
261dd (2), B.P. 881)

5) Holding fairs, cockfights, etc. on
election day (Sec. 261dd (3), B.P.
881)
6) Refusal to carry election mail during
the election period (Sec. 261dd (4),
B.P. 881).
In addition to the
prescribed penalty, such refusal
constitutes a ground for cancellation
or revocation of certificate of public
convenience or franchise.
7) Discrimination in the sale of air time
(Sec. 261dd (5), B.P. 881) In
addition to the prescribed penalty,
such refusal constitutes a ground
for cancellation or revocation of the
franchise.
Table of Contents
CHAPTER II. ACTORS OF

INTERNATIONAL LAW
I. Subjects and Objects of
International Law
A. States
B. Individuals
C. International Organizations
CHAPTER III. THE NORMS OF
INTERNATIONAL LAW
I. Concepts
II. Sources of International Law
F. Other Sources
III. Status of Norms
1. Jus Cogens or Peremptory
Norms
2. Erga Omnes Norms
CHAPTER IV. THE LAW OF
TREATIES
I. Definition
II. Requisites for Validity
III. The Treaty-Making Process
A. Negotiation
B. Adoption
C. Consent
D. Exchange of Instruments of
Ratification
IV. Philippine Law on Treaties
V. Amendment or Modification of
Treaty
VI. Reservations
VII. Invalid Treaties
VIII. Grounds for Termination
CHAPTER V. INYRTNATIONAL
RESPONSIBILITY
I. Breach
A. Is fault or malice necessary?
II. Attribution
269
269
269
269
269
270
270
270
270
270
270
271
271
271
273
273
274
274
274
274
274
275
276
276
276
277
277
277
278
278
278
278
278
278
279
279
279
279
279
279
279
280
281
281
281
281
281
282
B. Conduct Attributable to the

State
III. Consequences of State
Responsibility
1. Restitution
2. Compensation
3. Satisfaction
IV. Circumstances Precluding
Wrongfulness
V. Diplomatic Protection (Espousal of
Claim)
A. Material Dates
CHAPTER VI. SOVEREIGNTY AND
JURISDICTION
I. Sovereignty
A. Characteristics
C. Corrolaries
II. Jurisdiction
A. Bases of Criminal Jurisdiction
B. Reserved Domain of Domestic
Jurisdiction
CHAPTER VII. THE LAW OF THE
SEA
I. Concepts
Admiralty Law
B. Baseline
II. Waters
A. Internal Waters
C. Contiguous Zone
E. High Seas
III. Archipelagic State
IV. Continental Shelf
A. Limits of the Continental shelf
C. Rights with Respect to
V. Settlement of Disputes
B. Compulsory Settlement of
Disputes
C. Jurisdiction of Court or
Tribunal
D. Composition of the
International Tribunal for the
Law of the Sea (ITLOS)
F. Applicable Laws in Settlement
of Disputes by the ITLOS
282
282
282
282
282
283
283
283
283
283
284
384
285
285
285
285
295
285
285
285
285
286
286
286
286
286
287
287
287
287
288
289
290
290
290
291
291
291
291
291
291
291
291
Page 267 of 313
CHAPTER I. PRELIMINARIES
I. Public International Law
II. Contra-Distinctions
III. Relationship between PIL and
Municipal Law
A. Monist View
B. Dualist View
IV. The Philippine Doctrine
CHAPTER VIII. THE USE OF FORCE

IN INTERNATIONAL LAW
I. Jus ad bellum v Jus in bello
II. Rules on the Use of Force
A. General Rule
B. Exceptions
1. Exceptions under the
Charter
CHAPTER X. INTERNATIONAL
HUMANITARIAN LAW
I. Armed Conflict
II. Fundamental Principles of IHL
III. Application of IHL
IV. The Four Geneva Conventions and
the Two Additional Protocols
V. Application
VI. Concepts
A. Combatants
B. Hors de Combat
D. The Martens Clause
VII. IHL and Weapons of Mass
Destruction
VIII. Non-International Armed Conflict
A. Common Article 3 and Protocol
II
B. Control of Territory
IX. Neutrality
X. Protective Emblems
A. Who May Use
B. Misuse of Emblem
292
292
292
292
292
292
292
294
294
294
294
294
294
294
295
295
295
296
296
296
296
297
297
297
298
299
299
299
300
C. Punishment
XI. The International Criminal Court
(ICC)
A. Crimes within the Courts
Jurisdiction
B. Modes of Incurring Criminal
Liability
C. Sources of Law
E. Landmark Cases
304
304
304
305
305
306
306
CHAPTER XI. DIPLOMATIC

INTERCOURSE
I. Agents of Diplomatic Intercourse
A. Head of State
II. Functions and Duties
III. Diplomatic Immunities and
Privileges
B. Inviolability of Premises and
Archives
C. Right of Official
Communication
D. Immunity from Local
Jurisdiction
E. Exemption from Taxes and
Customs Duties
IV. Consular Relations
A. Ranks
307
307
307
307
307
307
307
307
308
308
308
308
309
309
309
309
CHAPTER XII. RECENT

INTERNATIONAL LAW ISSUES IN
PHILIPPINE LAW
I. Daniel Smith and the VFA
II. Constitutionality of the Baselines
Law
III. Violence Against Women as Torture
APPENDICES
310
310
311
311
313
300
301
301
301
301
301
301
302
302
302
302
303
303
303
303
304
304
304
Page 268 of 313
CHAPTER IX. INTERNATIONAL

HUMAN RIGHTS LAW
I. Definition of Human Rights
II. Classification of Human Rights
III. Internationalization of Human
Rights
IV. Sources of Human Rights
A. Convention
B. Custom
V. International Bill of Human Rights
A. Universal Declaration of
Human Rights (UDHR)
C. International Covenant on
Rights (ICESCR)
D. Common Provisions in the
ICCPR and ICESCR and
Differences
VI. Specific Norms in Human Rights
A. Genocide
B. Torture
D. Law Against Discrimination
E. Refugee Law
Table of Contents
Chapter I. Preliminaries

FACULTY EDITOR
ACADEMICS COMMITTEE
Samantha Poblacion
EDITOR-IN-CHIEF
POLITICAL LAW
LECTURES
Carmi Tugday
Joey Capones
Edel Cruz
SUBJECT EDITORS
Jason Mendoza
HEAD
DEPUTY HEAD
-------Kae Guerrero
DS Corpuz
LEAD WRITER
Rania Joya
LAYOUT HEAD
-------Leo Zulueta
WRITERS
Public
International Law
I. PUBLIC INTERNATIONAL LAW
II. CONTRA-DISTINCTIONS
III. RELATIONSHIP
BETWEEN
PIL
AND
MUNICIPAL LAW
A. MONIST VIEW
B. DUALIST VIEW
C. MONIST-NATURALIST VIEW
D. COORDINATIONIST VIEW
IV. THE PHILIPPINE DOCTRINE
A. DOCTRINE OF INCORPORATION
B. DOCTRINE OF TRANSFORMATION
I. PUBLIC
(PIL)
INTERNATIONAL
LAW
Traditionally, PIL is understood to be the

body of principles, norms and processes
which regulates the relations of states and
other international persons, and governs
their conduct affecting the interests of
States (MAGALLONA).
Other jurists, however, have defined PIL as
"a continuing process of authoritative
decisions by authorized decision-makers,
when authority and power coincide
(HIGGINS).
It is not just the reference to the trend of
past decisions which are termed 'rules' but
a matrix of norms and process that come
into being through the interaction of
authority
and
international
reality
(MAGALLONA).
II. CONTRA-DISTINCTIONS
Municipal Law deals with the conduct or
status of individuals, corporations, and
other private entities within states. PIL
may be distinguished therefrom in that it
prescribes rules and processes that govern
the relations of states with each other,
and the rights of other entities insofar as
they implicate the community of states
(note: whom it governs). (vs. PIL, Asked 1
time in the Bar))
Private International Law is that part of
the laws of each State (conflict of laws
rules) which determines whether in dealing
with a factual situation involving a foreign
element, the law or judgment of some other
State will be recognized or applied in the
forum (SALONGA). Unlike PIL which is
international in character and origin,
private international law is national or
municipal in character (note: character of
norms being applied).
III.RELATIONSHIP BETWEEN
AND MUNICIPAL LAW
PIL
Although distinct, PIL and Municipal are

interrelated. Below are the four theoretical
views on how they are related (CARTER
AND TRIMBLE):
A. Monist View
International and municipal legal systems
are fundamentally part of one legal order.
This view considers international law to be
superior, with municipal law being a mere
subset of international law.
Thus, international norms are applicable
within municipal systems within even
without some positive act of the State.
Page 269 of 313
Paolo Camacho
Michelle Maniwang
Maximo Sison III
B. Dualist View
International law and municipal law are

separate systems.
The rule is different with respect to treaties.
Only those problems affecting international

relations being within the scope of
international law.
A treaty is transformed when a treaty is

ratified after it has been concurred in by
the Senate (Art.VII, Sec.21, Constitution).
After ratification, a treaty shall be
deemed
as
if
legislated
by
our
Legislature.
Note: Executive Agreements shall be
effective in the Philippines after they are
ratified by the Chief Executive, without
need for Senate concurrence or ratification
(BERNAS).
PIL is superior to municipal law, and that

both systems are but a part of a higher
system of natural law.
International law and municipal law
operate in different spheres, but municipal
law is (generally) obliged to be in
conformity with international law.
IV. THE PHILIPPINE DOCTRINE

The Philippines adopts the generally
accepted principles of international law as
part of the law of the land (Art.II, Sec.2,
Constitution).
These generally accepted principles of
international law refer to norms that are
binding upon all states (international
customs
and
general
principles
of
international law).
Though these principles do not become part
of the Constitution, they nonetheless
become part of the Philippine legal
system, and may be subject to judicial
notice as law (MAGALLONA).
Secretary of Justice vs. Lantion, (2000)
Under the doctrine of incorporation, rules
of international law form part of the law of
the land, and no further legislative action is
needed to make such rules applicable in
the domestic sphere.
Page 270 of 313
Thus, before an international norm can have

an effect within a municipal legal system,
that norm must be transformed, or
adopted into the municipal system through
a positive act by a State organ. (Exception:
Customary International Law and General
Principles of International Law)
They have to be transformed in order to be

part of Philippine law.
Chapter II. Actors of International Law
Chapter II. Actors of

International Law
I.
I. SUBJECTS AND OBJECTS

INTERNATIONAL LAW
OF
1. Requisite Elements
i.
OF
Subjects of International Law refer to

entities:
capable of possessing international
rights and duties and
having the capacity to maintain these
rights by bringing international claims
(Reparations
for
Injuries
Advisory
Opinion, 1949).
A State is a quintessential example of a
subject of international law.
By contrast, an Object of International
Law is the person or thing in respect of
which rights are held and obligations are
assumed by the subject. It is, therefore, not
directly
governed
by
the
rules
of
international law. Its rights may be asserted
and its responsibilities imposed indirectly,
through
the
instrumentality
of
an
intermediate agency (the subject). For
example, individuals are objects in respect
of which human rights obligations are
imposed upon States. When an individuals
human rights is violated by another State,
the aggrieved persons State of nationality
may espouse his claim and invoke the
erring states responsibility (see: Discussion
on Diplomatic Protection in Chapter 5, Part
V).
People
A people is an aggregate of individuals
of both sexes who live together as a
community despite racial or cultural
differences. Although no minimum
number is provided, they should be
permanent, and sufficient to maintain
and perpetuate themselves.
ii. Territory
A state must exercise control over a

certain area. It need not be exactly
defined by metes and bounds, so long
as there exists a reasonable certainty
of identifying it. No minimum land
area is required.
iii. Government
Government
is
the
physical
manifestation of a state. Government
must be organized, exercising control
over and capable of maintaining law
and order within its territory.
Note: Under the Rules on Succession of
States, even changes of entire
governments do not affect the
identity and personality of the state.
Once statehood is established, neither
invasion nor disorder alone can remove
its character as a state (BROWLIE).
a.
The
requirement
of
effective
government is not strictly applied
when the State, already longexisting, happens to undergo a
period of civil strife or internal chaos
due to natural disaster or invasion.
Notwithstanding this distinction, both

subjects and objects are considered
actors in international law. They are:
Thus, with the collapse of their

governments,
Afghanistan
and
Somalia were deemed failed states,
but they remained states.
A. States
States remain the most important actors in
international law.
A state is defined as a group of people, more
or less numerous, permanently living in a
definite territory, under an independent
government organized for political ends and
Effective Government
Although an effective government is
the best evidence of the existence of
a State, an effective government is
not
always
strictly
necessary
(BROWLIE).
b.
Further, some states were deemed

states even before their governments
were "very well organized" (ex.
Poland, Burundi, and Rwanda).
Governments de facto & de jure
Page 271 of 313
SUBJECTS
AND
OBJECTS
INTERNATIONAL LAW
A. STATES
1. REQUISITE ELEMENTS
i. PEOPLE
ii. TERRITORY
iii. GOVERNMENT
iv. INDEPENDENCE OR
SOVEREIGNTY
2. RECOGNITION
B. INDIVIDUALS
C. INTERNATIONAL ORGANIZATIONS
capable of entering into legal relations with

other states (Montevideo Convention on the
Rights and Duties of States, Art.1 [1933]).
A government de jure is a
government from law, that is, one
with a color of legitimacy.
A government de facto is one that
governs without a mandate of law.
So long as it is in place, it may
command
obedience
from
the
inhabitants of the occupied area.
The de facto ruler may suspend laws
and enact new ones.
of a de facto
not by itself
and structures
the
deposed
Only laws of political nature

affecting political relations are
suspended ipso facto; laws that
enforce public order and regulate
social and commercial life remain in
effect unless they are changed by
the de facto sovereign.
Conversely, the re-establishment of
the de jure government does not
void the acts of the preceding de
facto government.
Three kinds of de facto government:
(1) Government de facto in the strict
legal sense is that which
usurps either by force or the
will of the majority the legal
government and maintains and
control against it;
(2) Government
by
paramount
force is that which results from
the occupation of a state or a
part thereof by invading forces in
time of war; and
(3) Government established as an
independent government by
inhabitants of a country who
rise in insurrection against the
parent state.
iv. Independence or Sovereignty

Refers to the capacity to enter into
relations with other states. A state must
be free from outside control in
conducting foreign and internal affairs.
It has, however, been advanced that the
fact that a State may be acting under
the direction of another State is not of
concern
to
(SALONGA).
international
law
The practice of states has been to

ignoreso far as the issue of statehood
is concernedvarious forms of political
and
emotional
blackmail
and
interference directed against the weaker
members of the community."
Thus, it is sufficient for a State to
possess external appearance of capacity
to enter into international relations
(BROWNLIE).
2. Recognition
Act by which a state acknowledges the
existence of another state, government or
belligerent
community
and
indicates
willingness to deal with the entity as such
under international law.
Declaratory View vs. Constitutive View
(Asked 1 time in the Bar).
The Declaratory View (Prevailing View)
posits that recognition is a mere
declaration or acknowledgement of an
existing state of law and fact, legal
personality
having
been
previously
conferred by operation of law (BROWNLIE).
The Constitutive View (Minority View)
posits that the political act of recognition
is a precondition to the existence of
legal rights of a state. In its logical
extreme, this is to say that the very
personality of a state depends on the
political
decision
of
other
states
(BROWNLIE).
Important Doctrines:
Wilson/Tobar Doctrine (Asked 1 time in the
Bar) precludes recognition of government
established by revolution, civil war, coup
detat or other forms of internal violence
until freely elected representatives of the
people have organized a constitutional
government (US President Woodrow Wilson,
1913 and Ecuadorian FM, 1907)
Stimson Doctine precludes recognition of
any government established as a result of
external aggression (US Sec. of State Henry
Stimson, 1932)
Estrada Doctrine (Asked 1 time in the Bar)
dealing or not dealing with the government
established through a political upheaval is
not a judgment on the legitimacy of the said
government
(Mexican
Minister
Genaro
Estrada, 1930)
Page 272 of 313
The establishment
government does
abolish all laws
established
by
government.
Effects of Recognition:
1. Diplomatic relations
2. Right to sue in courts of recognizing state
3. Right to possession of properties of
predecessor in the recognizing state
4. All acts of the recognized state or
government are validated retroactively,
preventing the recognizing state from
passing upon their legality in its own court.
B. Individuals
Thus, though the UN Charter did

not expressly clothe the UN with the
capacity to bring an international
claim for reparations, the UN
nevertheless possessed functional
personality (Reparations for Injuries
Advisory Opinion, 147).
IOs are deemed to have powers not

expressly granted in their charters
where these unstated powers are
either
implicitly bestowed in their
charters or
necessary to effect powers
expressly granted.
C. International Organizations (IO)

The status and powers of an IO is
determined by agreement and not by
general or customary international law.
IOs are considered subjects of international
law if their legal personality is
established
by
their
constituent
instrument (charter).
Further, its constituent rights and duties,
or capacities and immunities, are limited to
those set forth in the treaty creating the
international organization (MAGALLONA).
1. Preconditions for
Personality of IO
International
i.
It must constitute a permanent

association of states, with lawful
objects, equipped with organs;
ii. There must be a distinction, in
terms
of
legal
powers
and
purposes, between the organization
[and] its member states; and
iii. It must have legal powers that it
may exercise on the international
plane and not solely within the
national systems of one or more
states.
2. Capacity to Bring a Claim for

Reparation
An IO such as the United Nations

(UN) must be deemed to have such
powers which, though not expressly
granted in its Charter, are conferred
upon it by necessary implication as
being essential to the performance of
its duties.
Page 273 of 313
While States are have traditionally been

deemed to be subject of international law,
individuals have likewise become in some
degree subjects of that law. (This will be
discussed further in the Chapter on Human
Rights)
Chapter III. The Norms of International Law
Chapter III. The Norms of

International Law
teachings constitute evidence of

what is the law.
With respect to the three primary
sources,
the
order
the
enumeration does not provide a
hierarchy in all cases.
Thus,
although
treaties
are
mentioned first, they are not ipso
facto superior to customs and
general principles.
I. CONCEPTS
Formal Sources vs. Material Sources

Formal sources consist of the methods
and procedures for the creation of rules
of general application which are legally
binding upon States. Material sources,
upon the other hand, are the
substantive evidence of the existence of
the norms.

A 'treaty' means an international agreement
concluded between States in written form
and governed by international law, whether
embodied in a single instrument or in two
or more related instruments and whatever
its particular designation" (Art.2(1), Vienna
Convention on the Law of Treaties (VCLOT))
Material sources supply the substance

of the rule, while formal sources confer
upon it the force of law.
Lex lata vs. Lex ferenda

Lex lata what the law is
Lex ferenda what jurists think the law
should be or will become
II. SOURCES
LAW
OF
INTERNATIONAL

Primary Sources:
International
Conventions,
whether
general or particular, establishing rules
expressly recognized by the contracting
states (Treaties);
International Custom, as evidence of a
general custom accepted as law;
General Principles of Law recognized by
civilized nations;
Subsidiary Sources:
Judicial Decisions; and
Teachings of the most highly qualified
publicists of the various nations (Art.
38, ICJ Statute).
Treaties, Customs and General
Principles (Primary Sources) create
law, while court decisions publicists
Under the VCLOT, the term treaty

includes all agreements between
states, regardless of how they are
called.
Thus, for purposes of
international law, treaties, executive
agreements, exchanges of notes, etc. are
all treaties.
Note, however, that Philippine law
makes a distinction between treaties
and executive agreements.
Although
they are equally binding, only treaties
require the concurrence of the Senate to
be effective.
A state party to a treaty is bound to
comply with the obligations it assumed
under such treaty in good faith [Pacta
sunt servanda] (Art.26, VCLOT).
Treaty Obligation is based on consent.
No state may be bound by a treaty
obligation unless it has so consented
[Pacta tertiis nec nocet nec prosunt ] (Art.
34, VCLOT).
Treaties shall be further discussed on the

Chapter on The Law of Treaties.

Norms of international law that result from
a general and consistent practice of states
which they follow from a sense of legal
obligation. For custom to exist, it requires
the concurrence of 2 elements:
(1) State Practice and
(2) Opinio juris.
Unlike treaties, customary norms are

legally binding upon states regardless
of whether they consent.
Page 274 of 313
I. CONCEPTS
II. SOURCES OF INTERNATIONAL LAW
A. TREATY AS SOURCE OF LAW
B. CUSTOMARY INTERNATIONAL LAW
1.ELEMENTS
2.SCOPE
3.DUALITY OF NORMS
C. GENERAL PRINCIPLE OF LAW
D. SUBSIDIARY SOURCE: TRIBUNALS
E. SUBSIDIARY SOURCE: PUBLICISTS
F. OTHER SOURCES
III. STATUS OF NORMS
A. JUS COGENS OR PEREMPTORY NORMS
B. ERGA OMNES NORMS
1. Elements
i.
State Practice
For custom to exist, the customary
practice must be both consistent and
general.
(1) Consistency requires substantial
uniformity, and not necessarily
complete uniformity in practice.
(2) Generality likewise does not require
universality.
Acts Evidencing State Practice (HARRIS):

a. Diplomatic correspondence
b. Policy statements
c. Press releases
d. Opinions of official legal advisers
e. Official manuals on legal decisions
(executive decisions and practices;
government comments on drafts by the
ILC)
f. International and national judicial
decisions
g. Recitals in treaties and international
instruments
h. Practice of international organs
UN General Assembly Resolutions are
generally just recommendations. They have
no binding effect under the Charter, save
in limited fields like budgetary concerns.
However, such resolutions may nonetheless
constitute a kind of state practice that is
relevant in the development of custom.
In cases it has decided, the ICJ has indeed

recognized the
possibility of regional
custom (Asylum Case) and of bilateral
custom (Right of Passage over Indian
Territory Case).
The Persistent Objector. When a State
has continuously objected to a new
customary norm at the time when it is yet
in the process of formation, by such
persistent objection the norm will not be
applicable as against that State.
3. Duality of Norms
It is possible for a norm of international law
to exist both as a customary norm and a
conventional norm (ex. The Prohibition
Against the Use of Force). Such norms are
said to be of dual character.
Norms of dual character come into being
through any of the following ways:
a. A treaty provision may simply restate a
customary norm (as is true of many of
the provisions in the VCLOT;
b. A treaty provision may constitute
evidence of custom;
c. A treaty provision may crystallize into a
customary norm.
ii. Opinio juris sive necessitatis

Refers to the belief on the part of
States that a particular practice is
required by law. It is the existence of
opinio juris that distinguishes binding
custom from mere usage, from comity,
and from courtesy.
Note: It is not a maxim, it is an
element required in order for custom to
come into fruition.
2. Scope
Custom may be:
General binding upon all or most
states or
Particular binding between only two or
among a few states.
For a treaty provision to crystallize into

custom, the provision must be normcreating. The treaty must be lawmaking, creating legal obligations which
are not dissolved by their fulfillment.
The number of parties, the explicit
acceptance of rules of law, and, in some
cases, the declaratory nature of the
provisions produce a strong lawcreating effect at least as great as the
general practice considered sufficient to
support a customary rule (BROWNLIE).
The customary norm retains a separate
identity even if its content is identical
with that of a treaty norm. Thus, a state
that cannot hold a state responsibility
for a breach of a treaty obligation can
still hold the erring state responsible for
the breach of the identical customary
norm (See Nicaragua vs. US Case).

Refer to those general principles in
municipal law (particularly those of private
law) that may be appropriated to apply to
the relations of states (OPPENHEIM).
Unlike custom, it does not require to be
supported by state practice that is
Page 275 of 313
The absence of protest could be

considered evidence of the binding
nature
of
customary
practice
(AKEHURST).
consistent and virtually uniform; it being

sufficient that such principle is found in a
number of legal jurisdictions (ROQUE).
Examples:
1. Principles in Roman Law estoppel,
res judicata, res inter alios acta,
prescription.
2. Procedural Rules the

circumstantial
evidence,
evidence (press reports).
use of
hearsay
Press reports can be used to

corroborate the existence of a fact; and,
when they demonstrate matters of
public knowledge which have received
extensive press coverage, they can be
used to prove a fact to the satisfaction
of the court (Nicaragua vs. US Case,
62-63).
Circumstantial evidence is admitted
as indirect evidence in all systems of
law and its use is recognized by
international
decisions.
Such
circumstantial evidence, however, must
consist of a series of facts or events that
lead to a single conclusion. (Corfu
Channel Case)
3. Substantive
duty
to
make
reparations, principle of reciprocity,
pacta sunt servanda, separate corporate
personality (Barcelona Traction Case).
Every breach of an engagement
(international obligation) entails the
obligation to make reparation. The
amount of reparation required is that
amount which is necessary to bring
the injured party back to the
situation had the wrong not occurred
[The Standard of Full Reparations]
(Chorzow Factory Case).
4. Jurisdictional Principles The power
of a tribunal to determine the extent of
its own jurisdiction (competence de la
competence).
Note: International tribunals have not

been consistent in their manner of
determining whether a principle in
municipal law constitutes a general
principle. In some instances they have
examined different legal systems; in
others, they merely declared a principle
in municipal law as constituting a
general principle of international law.

a. Preliminary note: International law does
not follow the rule on stare decisis. Art.
59 of the ICJ State (which Art.38(1)(d)
makes reference to) expressly limits the
effect of a decision only to the parties to
the case.
b. Be that as it may, decisions of
international
tribunals
exercise
considerable influence as impartial and
well-considered statements of the law
by (qualified) jurists made in light of
actual
problems.
Decisions
of
international
tribunals
constitute
evidence of the state of the law
(BROWLIE).

Writings of highly qualified publicists
likewise constitute evidence the state of the
law.
The problem, though, is that some
publicists may be expressing not what the
law is (lex lata), but what they think the
law should be or will be (lex ferenda).
F. Other Sources
a. Ex Aequo et Bono the court may
apply this standard of what is
equitable and good to decide a case
when the parties to the dispute so
agree.
b. Equity refers to the application of
standards of justice that are not
contained in the letter of existing law. It
has often been applied in cases
involving
territorial
disputes
and
maritime delimitations.
c. Unilateral Declarations declarations
made by way of unilateral acts,
concerning legal or factual situations,
may have the effect of creating legal
obligations.
Nothing in the nature of a quid pro
quo, nor any subsequent acceptance,
Page 276 of 313
When Thailand did not object to, and

has in fact benefited from, the Treaty of
1904 for 50 years, it is deemed to have
accepted said treaty. It is thereby
precluded from questioning Annex I
thereof, which showed that the Temple
of Preah Vihear was within Cambodian
territory (Temple of Preah Vihear Case).
nor even any reaction from other states

is required for such declaration to take
effect.
Verily, unilateral declarations bind
the State that makes them.
In the Eastern Greenland case, the ICJ held that

Denmark not only had a superior claim over the
contested territory, but that Norway was further
bound by the Ihlen Declaration not to oppose
Denmarks claim. The Ihlen Declaration is a
statement made by the Norwegian Foreign
Minister, Nils Claus Ihlen, on the topic of
Denmark's sovereignty over Greenland, which
Mr. Ihlen declared verbally to the Danish
Minister that "...the plans of the Royal [Danish]
Government respecting Danish sovereignty over
the whole of Greenland would be met with no
difficulties on the part of Norway."
Also in the Nuclear Test cases, France declared
that it would cease atmospheric nuclear tests.
This signaled that there had ceased to be a
dispute, since it had bound itself to do what
Australia and New Zealand wanted.
III.STATUS OF NORMS
A. Jus Cogens or Peremptory Norms
Refer to norms accepted and recognized by

the international community of States as a
norm from which no derogation is
permitted and which can be modified
only by a subsequent norm of such
character (Art.53, VCLOT).
When a treaty provision violates jus cogens
norms, it would be void; and a subsisting
treaty provision shall be voided by the
emergence of a new jus cogens norm.
B. Erga Omnes Norms
International obligations of such character

and importance that:
their violation by any state allows any
other state to invoke the violator's
liability,
even if only one state or only a few
incurred direct material damage.
It usually has to do with issues on

standing.
In the Barcelona Traction Light and Power Co.

Case, the grant of standing to sue because of
violations of an erga omnes obligation is
premised on the idea that the maintenance of
some norms are of interest to the entire
world community, their violation being an
injury to the interest, not only of the state
directly offended, but of all states (i.e. outlawing
acts of genocide or aggression).
Page 277 of 313
Chapter IV. The Law of Treaties
I. DEFINITION
A 'treaty' is:
an international agreement
concluded between States
in written form and
governed by international law,
whether
embodied
in
a
single
instrument or in two or more related
instruments and
whatever its particular designation
(Art.2(1), VCLOT)
Under the VCLOT, the term treaty

includes all agreements between states,
regardless of how they are called. Thus,
for purposes of international law,
treaties,
executive
agreements,
exchanges of notes, etc. are all treaties.
Note, however, that Philippine law
makes a distinction between treaties
and executive agreements.
Both are
equally binding, but only treaties
require the concurrence of the Senate to
be effective.
Treaty
Subject
Matter
1.Political
Issues
2.Changes in
national
policy
3.Involves
international
agreements
of a
permanent
character
Executive
Agreements
1. Transitory
effectivity
2. Adjusts
details to
carry out
wellestablished
national
policies and
traditions
3. Temporary
4. Implements
treaties,
statutes,
Ratification
policies
Does not require
concurrence by
Senate to be
binding
II. REQUISITES FOR VALIDITY

A. Treaty Making Capacity
Possessed by all states as an attribute

of
sovereignty.
International
organizations also possess treatymaking capacity, although limited by
the organizations purpose.
B. Competence
of
the
Representative/Organ Making the
Treaty
Generally exercised by the head of state.
Full Powers refers to the authority of a

person to sign a treaty or convention on
behalf of a state.
Plenipotentiary - Persons other than the
head of state, head of government or foreign
minister must produce such instrument in
order to sign a treaty binding their
government. Such a person is called a
plenipotentiary.
C. Parties Must Freely Give Consent
If consent was given erroneously, or it

was induced by fraud, the treaty shall
be voidable.
D. Object and Subject Matter Must

be Lawful
E. Ratification in Accordance with
the Constitutional Process of the
Parties Concerned
III.THE TREATY-MAKING PROCESS
A. Negotiation
State representatives discuss the terms and
provisions of the treaty.
B. Adoption
Fixes the text of the treaty; but it does not
bind the State yet.
Page 278 of 313
II. DEFINITION
III. REQUISITES FOR VALIDITY
IV. THE TREATY-MAKING PROCESS
A. NEGOTIATION
B. ADOPTION
C. CONSENT
1. SIGNATURE
2. RATIFICATION
D. EXCHANGE OF INSTRUMENTS OF
RATIFICATION
E. REGISTRATION WITH THE UN
V. PHILIPPINE LAW ON TREATIES
VI. AMENDMENT OR MODIFICATION OF
TREATY
VII. RESERVATIONS
VIII.
INVALID
TREATIES
IX. GROUNDS FOR TERMINATION
Requires
ratification by
the 2/3 of the
Senate to be
valid
and
effective
(Art.
VII, Sec. 21)
C. Consent
Consent to be bound by the terms of a
treaty may be expressed through:
1. Signature, when the negotiator
authorized to sign the treaty;
Instruments
of
is
2. Ratification, the formal consent to the

treaty given by the Head of State,
sometimes in conjunction with the
legislature; or
Under international law, ratification is
necessary when
(a) the treaty provides for such consent
to be expressed by means of
ratification;
(b) it is otherwise established that the
negotiating States agreed that
ratification should be required;
(c) the representative of the State has
signed
the treaty
subject to
ratification (Art.14(1), VCLOT), that
is, when the intent was to make it
subject to ratification.
Doctrine of Transformation.
In Philippine Law, treaties have to be
transformed in order to be part of
Philippine law.
A treaty is transformed when a treaty
is ratified after it has been concurred in by
the Senate (Art.VII, Sec.21, Constitution).
After ratification, a treaty shall be
deemed as if legislated by our Legislature.
La Chemise Lacoste Case: Lacoste, a French
corporation, sued local counterfeiters before
Philippine courts. When the counterfeiters
challenged its legal personality to sue before
Philippine courts, the Court held that the
Philippines
has
ratified
international
conventions for the protection of intellectual
property, and it would frustrate the object of
these conventions if Lacoste is barred from filing
its claims directly in Philippine courts.
3. Accession, the acceptance of treaty by

a state that did not participate in its
negotiation.
IV. PHILIPPINE LAW

In the Philippines, the negotiation of
treaties and their ratification are executive
functions, subject to concurrence of the
Senate. Under Art.VII, Sec.21 (Treaty
Clause) of the Constitution, treaties must
receive the concurrence of the Senate before
they may be effective.
V. AMENDMENT OR MODIFICATION
OF TREATY
General Rule: Consent of all parties is
required.
Exception: If the treaty itself so allows, two
States may modify a provision only insofar
as their relationship inter se.
VI. RESERVATIONS
Definition: A unilateral statement made by
a state upon entering a treaty whereby it
purports to exclude or modify the legal effect
of certain provision/s of the treaty in their
application to the reserving state (Art.19.
VCLOT).
Exceptions:
A reservation shall not operate to modify or
exclude the provisions of a treaty:
1. Where the treaty expressly prohibits
reservations in general;
2. Where the treaty expressly prohibits
that specific reservation being made; or
3. Where the reservation is incompatible
with treatys object and purpose
(Reservation
to
the
Genocide
Conventions Advisory Opinion).
VII. INVALID TREATIES

1. If the treaty violates a jus cogens norm
of international law (void);
2. If the conclusion of a treaty is procured
by threat or use of force (void);
3. Error of fact, provided that such fact
formed an essential basis of a states
consent to be bound;
4. If the representative of a state was
corrupted to consent by another
negotiating state;
Page 279 of 313
Art.12(1), VCLOT. Signature alone would be

sufficient to bind the state to the obligations
under the treaty if
(a) the treaty provides that signature shall have
that effect;
(b) it is otherwise established that the
negotiating States agreed that signature
should have that effect; or
(c) if the State can be shown to have had the
intention to be bound by the signature (look
at full powers of its representative)
D. Exchange
of
Ratification
Conventions).
12. Severance of diplomatic relations (if such
relationship is indispensable for the
treatys application).
13. Jus Cogens Application: Emergence of a
new peremptory norm of general
international law which renders void
any existing, conflicting treaty.
5. If consent was obtained through

fraudulent
conduct
of
another
negotiating state;
6. If the representative consented in
violation of specific restrictions on
authority, provided:
the restriction was notified to the
other negotiating States
prior
to
the
representative
expressing such consent;
7. If consent was given in violation of
provisions of internal law regarding
competence to conclude treaties that is
manifest
and
of
fundamental
importance.
VIII. GROUNDS FOR TERMINATION

2. Expiration of the term, or withdrawal of
a party in accordance with the treaty;
3. Extinction of a party to the treaty, when
the treaty rights and obligations would
not devolve upon the successor-state;
4. Mutual agreement of parties;
5. Denunciation or desistance by a party;
6. Supervening
impossibility
of
performance;
7. Conclusion of a subsequent inconsistent
treaty;
8. Loss of subject matter;
9. Material breach or violation of treaty
10. Fundamental Change of Circumstance
(Rebus sic stantibus) (Art.62, VCLOT)
A contracting state may unilaterally withdraw
from a treaty when a vital or fundamental
change of circumstance occurs such that the
foundation upon which its consent to be bound
initially rested has disappeared.
Requisites:
ii. Change is so substantial that the
foundation of the treaty has
altogether disappeared
iii. Change
was
unforeseen
or
unforeseeable at the time of the
treatys perfection
iv. Change was not caused by the party
invoking the doctrine
v. Doctrine was invoked within a
reasonable time
vi. Treatys duration is indefinite
vii. Doctrine
cannot
operate
retroactively (it must not adversely
affect provisions which have already
been complied with prior to the vital
change)
11. Outbreak of war between the parties,
unless the treaty relates to the conduct
of
war
(ex.
The
Four
Geneva
Page 280 of 313
Chapter V. International Responsibility
Chapter V. International
Responsibility
theory of culpa may be relevant in certain

special situations, such as:
I.
II.
III.
V.
Every internationally wrongful act of a State

entails the international responsibility of
that State.
Whether an act is international wrongful
or not depends upon international law, and
its wrongfulness is not affected by a
contrary characterization in domestic
law.
Requisites to Engage the Responsibility
of a State
A binding obligation and a failure to
fulfill that obligation (breach)
The act or omission is attributable to
the she state
I. BREACH
A. Is Fault or Malice Necessary?
The issue of whether the failure to fulfill

a binding obligation must be coupled
with fault or malice is a contested area
in international law.
Those who subscribe to the Doctrine or
Objective (or Strict) Liability hold that
fault or malice is unnecessary to engage
the responsibility of the state, it being
sufficient that there is a causal
connection between the act done and
the injury suffered (or how remote
the injury suffered is from the act
perpetrated).
Though the general rule for determining

liability is objective responsibility, the
i.
When the breach results from acts of

individuals not employed by the state or
from the activities of licensees or
trespassers on its territory;
ii. When a state engages in lawful
activities, in which case responsibility
may result from culpa in executing
these lawful activities;
iii. When determining the amount of the
damages;
iv. When due diligence or liability for culpa
is stipulated in a treaty.
A state breaches its international

obligation if it fails to exercise the due
diligence which could reasonably have
prevented the conduct that caused the
injury.
Where due diligence is relevant, is a

states ability to fulfill an obligation
relevant?
The
Relativist
view
holds
that
circumstances affecting a States ability to
perform its duties would be relevant in
determining the degree of diligence that
must characterize its performance of its
obligations. Thus, a State breaches its
obligation only if:
i. It is aware of its obligation;
ii. It had the means to fulfill them;
iii. Yet it failed to do so (Tehran Hostages
Case).
The Objective view holds that the States
ability to fulfill is irrelevant.
II. ATTRIBUTION
A State becomes liable for the acts of
individuals,
(1) when they are State organs or agent
acting under color of authority.
(2) If they are not officers, the State is
nonetheless liable when the state
adopts the acts of individuals or
(3) when it is negligent in preventing or in
punishing the acts.
EXAMPLE: When a State is bound by a
duty to prosecute, or has an international
obligation to exert efforts to prevent certain
acts, and the State maliciously or
negligently fails to do so.
Page 281 of 313
IV.
BREACH
A. IS FAULT OR MALICE NECESSARY?
B. THE STANDARD OF DILIGENCE
ATTRIBUTION
A. DIRECT AND INDIRECT ATTRIBUTION
B. CONDUCT ATTRIBUTABLE TO THE
STATE
CONSEQUENCES
OF
STATE
RESPONSIBILITY
A. DUTY TO MAKE REPARATION
B. FORMS OF REPARATION
1. RESTITUTION
2. COMPENSATION
3. SATISFACTION
4. DECLARATORY RELIEF
CIRCUMSTANCES
PRECLUDING
WRONGFULNESS
DIPLOMATIC PROTECTION (ESPOUSAL
OF CLAIM)
A. MATERIAL DATES
B. EXHAUSTION OF LOCAL REMEDIES

1. Direct State is liable for an act
imputable to it that breaches an
international obligation.
2. Indirect the State becomes liable for
being negligent in preventing or
punishing the internationally wrongful
conduct, not for the act itself.
B. Conduct Attributable to the State
2. Conduct of persons or entities not

being state organs but exercising
elements of government authority
(Para-Statal Entities) (Art.5, ASR)
3. Conduct of organs placed at the
disposal of a State by another State
(Art.6, ASR)
4. Ultra vires conduct (Art.7, ASR)
The acts of public officials, when
done with apparent authority or in
their official capacity, are imputable
to their State, even when these acts
are beyond their authority or
contravene superior orders
5. Conduct directed or controlled by a
State (Art.8, ASR)
6. Conduct carried out in the absence or
default of official authorities (Levee
en masse) (Art.9, ASR)
7. Conduct
of
an
insurrectional
movement that becomes the new
government of the State (Art.10, ASR)
NOTE:
Where
the
insurrectional
movement does not succeed, its conduct
shall not be attributable to the State.
8. Conduct acknowledged and adopted
by a State as its own (Art.11, ASR)
When a State adopts the acts of
individuals as its own, it becomes
responsible therefor.
9. Failure to Exercise Due Diligence

A
State
becomes
indirectly
responsible
when
it
has
an
international obligation to prevent
the internationally wrongful acts of
individuals under its control, and
the State maliciously or negligently
fails to do so.
III.CONSEQUENCES
RESPONSIBILITY
OF
STATE
The responsible State is under the

obligation:
1. To cease the act, if it is continuing; and
2. To offer appropriate assurances and
guarantees of non-repetition (Art.30,
ASR).

Every breach on an international obligation
involves the duty to make reparations. The
responsible State is under the obligation to
make full reparation for the injury cause by
the internationally wrongful act. Injury
includes any damage, whether material or
moral.
NOTE: While a breach gives rise to state
responsibility, the duty to make reparations
is the consequence of state responsibility.
Full reparation for the injury caused by

the internationally wrongful act shall
take
the
form
of
restitution,
compensation and satisfaction, either
singly or in combination (Art.34, ASR).
1. Restitution (Art.35, ASR)
Wiping out all the consequences of

the breach.
Re-establishing the situation
which would probably have
existed had the wrongful act not
been committed.
Restitution could take the form of:

(i) Legal
Restitution
the
declaration that an offending
Page 282 of 313
1. Conduct of State organs (Art.4,

Articles of State Responsibility (ASR))
Refers to any person or entity that is
considered as such under its
domestic law.
The conduct of a State organ is an
act of that State, whatever the
function of that organ, whatever
position it holds in the organization
of the State, whether it is the organ
of the central government or a local
unit of the State.
Adoption occurs when

(i) the State encourages these acts,
(ii) the individuals effectively act as
agents
in
performing
the
offending acts, and
(iii) the State endorses as its own
the acts of the individuals.
treaty, law, executive act, or

other, is invalid; and
(ii) Specific
Restitution
restitution in kind.
2. Compensation (Art.36, ASR)
Insofar as the injury suffered by the

offended State is not made good by
restitution or compensation, the
responsible State is under the
obligation to render satisfaction. It
may consist of:
i. Apology
and
other
acknowledgment of wrongdoing;
ii. Punishment
of
individuals
concerned; and
iii. Taking measures to prevent a
recurrence of the wrong.
Satisfaction
may
pecuniary form.
Pecuniary satisfaction, however, is

distinguishable from compensation
on the basis of their intention.
Pecuniary satisfaction is meant
to be a token of regret and
acknowledgement of wrongdoing
(a monetary "sorry"), while
compensation is intended to
repair the injury caused.
also
be
in
Tribunals
may
give
declaratory
judgments when:
1. It is, or the parties deem it to be, the
proper way to deal with a dispute
(ex. disputes over territory); or
2. The object is not to give satisfaction
for the wrong received (BROWNLIE)
IV. CIRCUMSTANCES
WRONGFULNESS
4. Act done in compliance with the

offender State's obligations under a
peremptory norm (Art.23, ASR)
5. Author of the wrongful act has no other
reasonable way, in a situation of
distress, to save his life or the life of a
person entrusted to his case.
Exception: When the State caused the
distress or the act in question will cause
a greater peril (Art.23, ASR). In such
cases, the act shall remain wrongful.
6. Act was done due to force majeure
(Art.24, ASR)
3. Satisfaction (Art.37, ASR)
3. Act was a countermeasure taken

against the another State (Art.22, ASR)
PRECLUDING
1. Wronged State consented to the act that

caused injury (Art.20, ASR)
7. Act was done in due to a state of

necessity (Art. 25)
As a general rule, necessity may not

be invoked by a State as a ground
for precluding the wrongfulness of
an act not in conformity with an
international obligation of that
State.
Except when:
a. The act was the only way to
safeguard an essential interest
from a grave and imminent peril
b. Act must not seriously impair an
essential interest of the State or
States to which the obligation
breached is owed, or of the
international community as a
whole
c. The existence and imminence of
such a peril must be duly
established
d. The means to avert the peril
must be absolutely necessary to
avert the danger
e. The obligation violated must not
be of peremptory character.
V. DIPLOMATIC
PROTECTION
(ESPOUSAL OF CLAIM)
DEFINITIONS.
A procedure whereby the State asks relief
for the violation of the rights of the
State
through the harm done to its citizens,
and
the tribunal would award damages to
the State (OPPENHEIM).
Page 283 of 313
The payment of money as valuation

of the wrong done. The amount
thereof must correspond to:
i. The value in which a restitution
in kind would bear; and
ii. The award of damages for loss
sustained which would not be
covered by restitution in kind or
payment in place of it (Chorzow
Factory Case).
2. Act was done in self-defense (Art.21,

ASR)
Consists of the invocation by a State,

through diplomatic action or other means
of peaceful settlement,
of the responsibility of another State
for
an
injury
caused
by
an
internationally wrongful act of that
State
to a natural or legal person that is a
national of the former State
with a view to the enforcement of such
responsibility (Sec.1, Draft Articles on
Diplomatic Protection).
States espousal of its nationals claims

that the individual to the international
scene upon its discretion. The decision
whether to espouse a claim or not is
entirely for the State to determine.
When a person, however, is given

nationality by 2 states, the case now
goes into the realm of international law.
The State entitled to exercise diplomatic

protection is the State of Nationality
(Sec.3(1), DADP).
1. A natural persons State of nationality

pertains to the State whose nationality
that person has acquired, in accordance
with the law of that State, by birth,
descent, naturalization, succession of
States or in any other manner, not
inconsistent with international law
(Sec.4, DADP).
2. A Corporations State of nationality
pertains to the State under whose law
the corporation was incorporated.
However, when the corporation is
controlled by nationals of another
State or States and
has
no
substantial
business
activities
in
the
State
of
incorporation, and
the seat of management and the
financial control of the corporation
are both located in another State,
that State shall be regarded as the State
of nationality (Sec.4, DADP).
A. Material Dates
A State is entitled to exercise diplomatic

protection in respect of a person who
was
a
national
of
that
State
continuously from the (1) date of injury
to the date of the (2) official presentation
of the claim.
Continuity
is
presumed
if
that
nationality existed at both these dates
(Sec.5, DADP).
Mavromattis case: the primary nexus for

diplomatic protection is nationality. An
injury to the national is also an injury
to the State
Amvatielos case: Since individuals are

not within the jurisdiction of an
international court, it is only through a
Nottebohm: Other states are not bound

by another's claim of nationality.
Determining nationality is a matter of
domestic law.
The test for the nationality of a person

is the most significant link. In this
case, Nottebohm failed to satisfy the
test. Even though he was a national of
Liechtenstein, Guatemala was not
bound to recognize such citizenship
because he merely had a citizenship of
convenience (not a genuine link to
Liechtenstein).
Local remedies refers to the legal

remedies which are open to an injured
person
before
the
judicial
or
administrative
courts
or
bodies,
whether ordinary or special, of the State
alleged to be responsible for causing the
injury.
The exhaustion of local remedies is a

pre-condition before a State may present
an international claim in behalf of its
injured national.
Exceptions:
i. There are no reasonably available local
remedies to provide effective redress, or
the
local
remedies
provide
no
reasonable possibility of such redress;
ii. There is undue delay in the remedial
process which is attributable to the
State alleged to be responsible;
iii. There was no relevant connection
between the injured person and the
State alleged to be responsible at the
date of injury;
iv. The injured person is manifestly
precluded from pursuing local remedies;
or
v. The State alleged to be responsible has
waived the requirement that local
remedies be exhausted.
Page 284 of 313
Chapter VI. Sovereignty and

Jurisdiction
I.
SOVEREIGNTY
A. CHARACTERISTICS
B. SOVEREIGN EQUALITY OF STATES
C. CORROLARIES
II. JURISDICTION
A. BASES OF CRIMINAL JURISDICTION
B. RESERVED DOMAIN OF DOMESTIC
JURISDICTION
C. DOCTRINE OF STATE IMMUNITY
Sovereignty
is
the
supreme
and
uncontrollable power inherent in a State
by which that State is governed (CRUZ).
Sovereignty has also been used to refer to
the general legal competence of states,
including its power to exercise legislative
jurisdiction, and the power to acquire title
to territory (BROWNLIE).
A. Characteristics
(CRUZ):
1. Permanent
2. Exclusive
3. Comprehensive
4. Absolute
5. Inalienable
6. Imprescriptible
All States enjoy sovereign equality. They have
equal rights and duties and are equal members
of
the
international
community,
notwithstanding differences of an economic,
social, political or other nature (Principle 6,
Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation
Among States [UN GA Res.2625(XXV)]).
C. Corollaries
1. States are juridically equal;
2. Each State enjoys the rights inherent
in full sovereignty;
3. Each State has the duty to respect the
personality of other States;
4. The territorial integrity and political
independence
of
the
State
are
inviolable;
5. Each State has the right freely to
choose and develop its political, social,
economic and cultural systems;
6. Each State has the duty to comply fully
and in good faith with its international
obligations and to live in peace with
other States.
II. JURISDICTION
State jurisdiction is the power of a state

under international law to govern persons
and property by its municipal law.
This may be criminal or civil, and may

be exclusive or concurrent with other
states (HARRIS).
A. Criminal Jurisdiction
BASES:
1. Territoriality Principle jurisdiction
is determined by reference to the place
where the crime is committed.
2. Protective Principle court is vested
with jurisdiction if a national interest is
injured.
3. Nationality Principle court has
jurisdiction if the offender is a national
of the forum state.
4. Passive Personality Principle a
court has jurisdiction if the victim is a
national of the forum state.
5. Universality Principle jurisdiction is
asserted with respect to crimes
considered committed against the
whole of humanity (hostes humani
generis).
B. Reserved
Domain
of
Domestic
Jurisdiction
The domain of state activities where the
jurisdiction of states is not bound by
international law: the extent of this domain
depends on international law and varies
according to its development (i.e. when a norm
crystallizes into custom).
The reservation of this domain, however, is
without prejudice to the use of enforcement
measures under Chapter VII of the Charter.
Domestic courts must decline to hear cases
against foreign sovereigns out of deference to
their roles as sovereigns.
This doctrine is founded upon the principle
that states are sovereign equals an equal has
no power over an equal (Par in parem non
habet imperium).
Application: (Asked 1 time in the Bar)
1. Absolute Sovereign Immunity - a State
cannot be sued in a foreign court no
matter what act it is sued for.
2. Restrictive Sovereign Immunity a State
is
immune
from
suits
involving
governmental actions (jure imperii), but not
for those arising from purely commercial or
non-governmental activity (jure gestionis).
The Philippine Supreme Court recognizes the
second theory, and has established certain rules
in its application.
Test: Whether, assuming the public officer is
found liable, enforcement of the decision will
require an affirmative act on the part of the State.
If the answer is yes, then the act in question
would be covered by State immunity.
Page 285 of 313
I. SOVEREIGNTY
Chapter VI. Sovereignty and Jurisdiction
REVIEWER IN PUBLIC
UBLIC INTERNATIONAL LAW
Chapter VII. The Law of the Sea

I.
II.
V.
I. CONCEPTS
The Law of the Sea (LOS) is the body of
treaty
rules
and
customary
norms
governing the use of the sea, the
exploitation of its resources, and the
exercise of jurisdiction over maritime
regimes (MAGALLONA).
such as the contiguous zone and the

exclusive economic zone is measured.
Its purpose is to determine the
boundary of the coastal state. It is
either normal or straight. (See Appendix
1)
1. Normal baseline the territorial sea is
the low-water
water line along the coast as
marked on large-scale
scale charts officially
recognized by the coastal state (Art. 5,
UN Convention on the Law of the Sea,
or UNLCOS).
2. Straight baseline where the
th coastline
is deeply indented or cut into, or if there
is a fringe of islands along the coast in
its immediate vicinity, the method of
straight lines joining the appropriate
points may be employed in drawing the
baseline from which the breadth of the
territorial
itorial sea is measured (Art. 7,
UNCLOS)
II. WATERS
The waters of a state can be classified
generally
as
internal,
territorial,
contiguous, or belonging to the exclusive
economic zone (EEZ). The extent of these
waters depend on their distance from the
states baseline
It is the branch of PIL which regulates the

relations
tions of states with respect to the use of
the oceans. (Asked 1 time in the Bar)

Admiralty Law
1. Content: Maritime law is (traditionally)
associated with private law context of
rights and obligations pertaining to
carriage of persons and goods by sea.
2. Scope: Maritime law concerns the
rights and duties of individual private
persons in commercial transactions.
LOS deals with rights and duties of
states.
B. Baseline
The line from which a breadth of the
territorial sea and other maritime zones,
Page 286 of 313
III.
IV.
CONCEPTS
A. DISTINGUISHED FROM M
MARITIME OR
ADMIRALTY LAW:
B. BASELINE
WATERS
A. INTERNAL WATERS
B. TERRITORIAL WATERS
C. CONTIGUOUS ZONE
D. EXCLUSIVE ECONOMIC ZONE
ONE
E. HIGH SEAS
ARCHIPELAGIC STATE
CONTINENTAL SHELF
A. LIMITS OF THE CONTINENTAL
ENTAL SHELF
B. RIGHTS OF THE COASTA
COASTAL STATE
OVER THE CONTINENTAL SHELF
C. RIGHTS
WITH
RESPECT
TO
CONTINENTAL SHELF VS.. EEZ
SETTLEMENT OF DISPUTES
A. PEACEFUL
SETTLEMENT
OF
DISPUTES
B. COMPULSORY
SETTLEMEN
SETTLEMENT
OF
DISPUTES
C. JURISDICTION
OF
COUR
COURT
OR
TRIBUNAL
D. COMPOSITION
OF
THE
INTERNATIONAL
ERNATIONAL TRIBUNAL FOR THE
LAW OF THE SEA (ITLOS)
E. JURISDICTION OF ITLOS
F. APPLICABLE LAWS IN SETTLEMENT
ETTLEMENT OF
DISPUTES BY THE ITLOS
A. Internal Waters
INNOCENT PASSAGE

These are waters of lakes, rivers, and bays
landward of the baseline of the territorial
sea.
However, in case of archipelagic states,
waters landward of the baseline other than
those rivers, bays and lakes, are
archipelagic waters.
These waters stretch up to 12 miles from
the baseline on the seaward direction.
They are subject to the jurisdiction of the
coastal state, which jurisdiction almost
approximates that which is exercised over
land territory.
Except that the coastal state must respect
the rights to (1) innocent passage and, in
the case of certain straits, to (2) transit
passage. (Asked 1 time in the Bar)
1. Innocent passage
navigation
through the territorial sea w/o entering
internal waters, going to internal
waters, or coming from internal waters
and making for the high seas.
It must (a) involve only acts that are
required by navigation or by distress,
and (b) not prejudice the peace,
security, or good order of the coastal
state.
2. Transit passage the right to exercise
freedom of navigation and overflight
solely for the purpose of continuous and
expeditious
transit
through
the
straights
used
for
international
navigation.
The right cannot be unilaterally
suspended by the coastal state.
Pertains to navigation of
ships only
Requires
submarines
and other underwater
vehicles to navigate on
the surface and show
their flag.
TRANSIT
PASSAGE
Includes the right of
overflight
No
requirement
specifically applicable to
submarines
Can be suspended, but

under the condition that
it does not discriminate
among foreign ships,
and such suspension is
essential
for
the
protection
of
its
security,
and
suspension is effective
only after having been
duly published (Art. 25,
UNCLOS)
In the designation of sea
lanes
and
traffic
separation schemes, the
coastal state shall only
take into account the
recommendations of the
competent international
organization.
TRANSIT
PASSAGE
Cannot be suspended
Designation of sea lanes

and traffic separation
schemes is subject to
adoption by competent
international
organization upon the
proposal and agreement
of states bordering the
straits.
C. Contiguous Zone
This is the maritime zone adjacent to the
territorial sea where the coastal state may
exercise certain protective jurisdiction.
Thus, the coastal state may exercise the
control necessary to:
a. Prevent infringement of its customs,
fiscal, immigration or sanitary laws and
regulations within its territory or
territorial sea;
b. Punish infringement of the above laws
and regulations committed within its
territory or territorial sea.
The coastal state must not extend its
contiguous zone beyond 24 nautical miles
from the baseline. Note that the contiguous
zone is merely a zone of jurisdiction for a
particular purpose. It is not a zone of
sovereignty.

A coastal state may establish an EEZ that
may stretch up to 200 miles from its
baselines.
Within this zone, a State may regulate
nonliving and living resources, other
economic resources, artificial installations,
scientific research, and pollution control.
Under the UNCLOS, states have the
sovereign right to exploit the resources of
this zone, but shall share that part of the
catch that is beyond its capacity to harvest.
Page 287 of 313
Internal waters are treated as part of a

State's land territory, and is subject to the
full exercise of sovereignty. Thus, the
coastal state may designate which waters to
open and which to close to foreign shipping.
INNOCENT PASSAGE
living resources in its EEZ. It may

board and inspect a ship, arrest a ship
and its crew and institute judicial
proceedings against them.
2. Coastal states have the primary

responsibility to utilize, manage and
conserve the living resources within
their EEZ, i.e. ensuring that living
resources are not endangered by
overexploitation, and the duty to
promote optimum utilization of living
resources by determining allowable
catch.
Note: In detention of foreign vessels, the

coastal state has the duty to promptly
notify the flag state of the action taken.
3. If after determining the maximum

allowable catch, the coastal state does
not have the capacity to harvest the
entire catch, it shall give other states
access to the surplus by means of
arrangements allowable under the
UNCLOS.
Note however that the UNLCOS does
not specify the method for determining
allowable catch. Hence, states may
establish illusory levels.
4. Geographically disadvantaged states
(those who have no EEZ of their own or
those coastal states whose geographical
situations make them dependent on the
exploitation of the living resources of
the EEZ of other states) and land-locked
states have the right to participate,
on equitable basis, in the exploitation
of the surplus of the living resources
in the EEZ of coastal states of the same
subregion or region.
Note: a coastal state whose economy is
overwhelmingly dependent on the
exploitation of its EEZ is not required to
share its resources.
5. The coastal state has jurisdiction over
the
i. establishment and use of artificial
islands,
installations
and
structures,
ii. scientific research,
iii. the preservation and protection of
marine environment.
6. Under Art. 58 of the UNCLOS, all states
enjoy the freedom of navigation,
overflight, and laying of submarine
cables and pipelines in the EEZ of
coastal states.
7. The coastal state has the right to
enforce all laws and regulations
enacted to conserve and manage the
Conflicts regarding the attribution of rights

and jurisdiction in the EEZ must be
resolved on the basis of
equity and in the light of all relevant
circumstances,
taking into account the respective
importance of the interests involved to
the parties as well as to the
international community as a whole.
(Art. 59, UNCLOS).
E. High Seas
These are all parts of the sea that are not
included in the EEZ, in the territorial sea,
or in the internal waters of a state, or are in
the archipelagic waters of the archipelagic
state.
They are beyond the jurisdiction
sovereign rights of states.
and
a. High seas are open to all states,

whether coastal or land-locked, and
no state may validly purport to subject
any of the high seas to its sovereignty.
b. It is the right of every state to sail
ships flying its flag on the high seas,
and thus no state can prevent ships or
other states from using the high seas
for lawful purposes. The high seas,
however, is reserved for peaceful
purposes.
c. Freedom of the high seas comprises
the
(a) freedom of navigation,
(b) freedom of overflight,
(c) freedom of fishing,
(d) freedom to lay submarine cables
and pipelines,
(e) freedom to construct artificial
islands and installations, and
(f) freedom of scientific research.
All states must exercise these freedoms
with due regard for the interests of
other states.
d. In the high seas, a state has exclusive
jurisdiction over ships sailing under
its flag, hence it is called a flag
state. Warships and ships owned and
Page 288 of 313
1. Resources covered by sovereign rights

of coastal states in the EEZ include
living and non-living resources in the
waters of the seabed and its subsoil.
operated by a State also enjoy immunity

from the jurisdiction of any other state
other than the flag state.
III.ARCHIPELAGIC STATE
It is a state up made up of wholly one or
more archipelagos. It may include other
islands.
An archipelago is a group of islands,
including parts of islands, interconnecting
waters and other natural features which are
so closely related that such islands, waters
and natural features form an intrinsic
geographical, economic and political
entity, or
which historically have been regarded as
such.
Baselines of archipelagic states. Straight
baselines join the outermost points of the
outermost islands and drying reefs of an
archipelago, provided that within such
baselines are included the main islands
and an area in which the ratio of the water
to the area of the land, including atolls, is
between 1 to 1 and 9 to 1. Such are called
straight archipelagic baselines.
Two Kinds of archipelagoes
1. Coastal situated close to a mainland
and may be considered part thereof, i.e.
Norway
2. Mid-ocean situated in the ocean at
such distance from the coasts of firm
land, i.e. Indonesia
Territorial sea and other maritime zones

the breadth of the territorial sea, the
contiguous zone, and the EEZ is
measured from the straight archipelagic
baselines.
Archipelagic waters these are the

waters enclosed by the straight
archipelagic baselines, regardless of
their depth or distance from the coast.
right of innocent passage for the ships

of all states.
Other
Rights
with
Archipelagic Waters
Respect
to
1. Rights under existing agreement on the

part of third states should be respected
by the archipelagic state.
2. Within its archipelagic waters, the
archipelagic
state
shall
recognize
traditional fishing rights and other
legitimate activities of immediately
adjacent neighboring states.
3. The archipelagic state shall respect
existing submarine cables laid by other
states and passing through its waters
without making a windfall.
4. It is the right of foreign ships and
aircraft to have continuous, expeditious,
and unobstructed passage in sea lanes
and air routes through or over
archipelagic waters and the adjacent
territorial sea of the archipelagic state.
Note: the archipelagic state designates
the sea lanes as proposals to the
competent international organization.
It
is
the
International
Marine
Organization (IMO) which adopts them
through Art. 53(9) of the UNCLOS which
states that the Organization may adopt
only sea lanes and traffic separation
schemes as may be agreed with the
archipelagic state, after which such
state may designate, prescribe or
substitute them.
Special Issue:
Under Art. 1 of the 1987 Constitution, the
archipelagic waters of the Philippines are
characterized as forming part of the
internal waters of
the Philippines.
However, under the UNCLOS, archipelagic
waters consist mainly of the waters
around, between, and connecting the
islands of the archipelago, regardless of
breadth or dimension.
Thus, conversion from internal waters
under the Constitution into archipelagic
waters under the UNCLOS gravely
derogates
the
sovereignty
of
the
Philippine
state.
Remember
that
sovereignty over internal waters precludes
the right of innocent passage and other
rights pertaining to archipelagic waters
under the UNCLOS.
It is subject to the sovereignty of the

archipelagic state, but subject to the
Page 289 of 313
Exceptions to this rule include collision of

ships, where the master or any person in
the service of the ship is subject to
concurrent jurisdiction of the flag state and
the state of which such person is a
national. Also, every state may seize a
pirate ship, or ships taken by pirates. In
cases of hot pursuit, a warship or aircraft of
a state may stop and arrest a foreign ship
on the high seas.
REVIEWER IN PUBLIC
IV. CONTINENTAL SHELF

(See Appendix 2)
Definition it is the seabed and subsoil of
the submarine areas extending beyond the
territorial sea of the coastal state
throughout the natural prolongation of its
lands territory up to
1. the outer edge of the continental
margin, or
2. a distance of 200 nautical miles from

the baselines of the territorial sea where
the outer edge of the continental margin
does not extend up to that distance.
Continental margin the submerged
prolongation of the land mass of the
continental
state,
consisting
of
the
continental shelf proper, the continental
slope, and the continental rise.
A. Limits of the Continental Shelf
The continental shelf shall extend

farther than the continental margin
wherever the latter does not extend
beyond 200 nautical miles from the
baselines,
in
which
case,
the
continental shelf extends up to the 200
nautical miles limit (juristic or legal
continental shelf).
The continental margin may likewise
extend beyond the 200 nautical mile
milelimit (geological continental shelf). In
such case, the coastal state shall
establish the outer edge of the
continental margin.
At any rate, the continental shel

shelf shall
not extend beyond 350 nautical miles
from the baseline of the territorial sea
sea,
or 100 nautical miles from the 2500
2500-meter
isobath (or the point where the waters are
2500 meters deep).
including the mineral and other nonnon

living resources of the seabed and
subsoil together with living organisms
belonging to the sedentary species.
species *
For example, the coastal state has
the exclusive right to authorize and
regulate oil-drilling
drilling on its continental
shelf.
These rights are exclusive in the sense

that when the coastal
al state does not
explore its continental shelf or exploit
its resources, no one may undertake
these activities without the coastal
states consent.
Note:: In instances where the continental

margin is more than 200 nautical miles
from the baselines, and hence extends
beyond the EEZ, the coastal state has the
exclusive right to exploit mineral and nonnon
living resources in the excess area.

The continental shelf does not form part

of the territory of the coastal state.
It only has sovereign rights with
respect to the exploration and
exploitation of its natural resources
resources,
Sedentary species are organisms which, at the

harvestable state, are either immobile on or
under the seabed, or are unable to move except
in constant physical contact with the seabed or
subsoil.
Page 290 of 313
C. Rights
with
Respect
Rights of
the coastal
state as to
living
resources
Relate
to
mineral
and
other
nonliving
resources
of
the
seabed
and
the
subsoil
Apply only to
sedentary
species of such
living
resources
to
EEZ
Coastal state is
obliged
to
manage
and
conserve
living
resources in the
EEZ
Have to do with
natural resources
of both waters
superadjacent to
the seabed and
those
of
the
seabed
and
subsoil
Do not pertain to
sedentary species
V. SETTLEMENT OF DISPUTES
Under par. 3, Art. 2 of the UN Charter,
States have the duty to settle disputes by
peaceful means. This obligation extends to
State Parties of the UNCLOS, underscoring
the right of the parties to resort to peaceful
means of their own choice on which they
can agree any time.
B. Compulsory
Disputes
Settlement
of
Where no successful settlement can be

achieved, or if the parties are unable to
agree on the means of settlement of a
dispute concerning the application of
UNCLOS, such dispute may be governed
by
the
principle
of
compulsory
settlement,
where
procedures
entail
binding decisions.
C. Jurisdiction of Court or Tribunal

The court or Tribunal has jurisdiction over:
2. any dispute submitted to it concerning
the application or interpretation of
UNCLOS
3. any
dispute
concerning
the
interpretation or application of an
international agreement:
related to the purposes of the
UNCLOS
when such dispute is submitted to it
in accordance with that agreement.
D. Composition of the International

Tribunal for the Law of the Sea
(ITLOS)
It is composed of 21 independent members
elected from among persons enjoying the
highest reputation for fairness and integrity
and of recognized competence in the field of
the law of the sea.
The
composition
shall
also
be
representative of the worlds principal legal
systems and of equitable geographical
distribution.
Its
jurisdiction
covers
all
disputes
submitted to it in accordance with the
UNCLOS.
It
also
includes
matters
submitted to it under any other agreement.
F. Applicable Laws in Settlement of

Disputes by the ITLOS
The Tribunal shall apply the UNLCOS and
other rules of international law not
incompatible with the UNCLOS.
It may also decide a case ex aequo et bono
(what is equitable and just) if the parties so
agree.
Compulsory Procedures that States Parties

Can Choose From:
i. International Tribunal for the Law of the
Sea*;
ii. International Court of Justice;
iii. Arbitral Tribunal*;
iv. Special Arbitral Tribunal*;
The choice of the State Parties must be
expressed in a written declaration, which is
revocable and replaceable.
*
as established under the UNCLOS.

Page 291 of 313
Duty
to
manage
and
conserve
living
resources
Rights of
the coastal
state as to
natural
resources
Continental
Shelf
No duty
Chapter VIII. The Use of Force

in International Law
Chapter VIII. The Use of Force in International Law
b. Self-Defense
Requisites:
i. There be an armed attack;
An armed attack is understood as
including not merely action by regular
armed forces across an international
border, but also "the sending by or on
behalf of a State of armed bands,
groups, irregulars or mercenaries, which
carry out acts of armed force against
another State of such gravity as to
amount to" (inter alia) an actual armed
attack conducted by regular forces, "or
its substantial involvement therein"
(Art.3(g),
Definition
of
Aggression
annexed to General Assembly resolution
3314 [XXIX])
I. JUS AD BELLUM V JUS IN BELLO

Jus ad bellum
Refers to the body of norms that govern the
conditions when a State may have recourse
to war or other uses of force.
Jus in bello
The laws that govern the conduct of war by
States. (To be discussed further in the
Chapter on International Humanitarian
Law)
ii. The use of force must be necessary

to defend against an armed attack
(Necessity);
iii. The forcible response must be
promptly
after
the
attack
(Immediacy);
iv. The force used must be proportional
to
the
attack
made
(Proportionality) (Nicaragua v. US
Case).
II. RULES ON THE USE OF FORCE

A. General Rule
States are to 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
manner inconsistent with the purposes of
the United Nations.
b. Authorization Enforcement Action by

Security Council acting under its
Chapter VII Powers
This norm is of dual character, existing

both in treaty law (Art.2[4], UN Charter)
and customary international law.
B. Exceptions
1. Exceptions under the Charter
The Charter provides two exceptions to

the general prohibition against the use
of force.
Nothing in the present Charter shall

impair the inherent right of
individual or collective self-defence if
an armed attack occurs against a
Member of the United Nations, until
the Security Council has taken
measures necessary to maintain
international peace and security
(Art.51, UN Charter).
The collective security apparatus

contained in Chapter VII of the
Charter,
which
allows
for
a
successive
process
of
conflict
resolution, culminating in armed
enforcement actions carried out
under the aegis of the Security
Council.
a. Responsibility to Protect (R2P)

A recently developed concept in
international relations which relates to:
(a) a state's responsibilities towards its
population and to
Page 292 of 313
I. JUS AD BELLUM v JUS IN BELLO

II. RULES ON THE USE OF FORCE
A. GENERAL RULE
B. EXCEPTIONS
1. EXCEPTIONS
UNDER
THE
CHARTER
a. SELF-DEFENSE
b. AUTHORIZED ENFORCEMENT
ACTION
2. EXCEPTIONS UNDER CUSTOM
a. RESPONSIBILITY TO PROTECT
(R2P)
b. HUMANITARIAN
INTERVENTION
c. GENERAL
ASSEMBLY
RESOLUTION
d. WARS
OF
NATIONAL
LIBERATION
(b) the international community's

responsibility in case a state fails to
fulfill its responsibilities.
One important aim, among many others,
is to provide a legal and ethical basis for
humanitarian intervention.
Chapter VIII. The Use of Force in International Law
Charter's provisions through the creation of

new norms of customary law (Art.31(3),
VCLOT; Case concerning the Interpretation of
the Air Transport Agreement Between the
United States and Italy)
b. Humanitarian Intervention
The forcible intervention by external
actors (ex. the international community
through the UN) into a state that is
unwilling or unable to prevent or rectify
massive violations of human rights (ex.
Genocide).
Humanitarian intervention, it has been
argued, finds legal support under
Art.1(3), UN Charter may provide a
basis for the use of force to.
c. Peacekeeping Operations through

General Assemblys Uniting for
Peace Resolution
This was necessitated by the paralysis
of the Security Council that resulted
from the disagreement of the latter's
veto-wielding
members,
and
was
inaugurated by the Uniting for Peace
Resolution.
The peacekeeping operations initiated
by the General Assembly constitute an
interpretation of the Charter that
creates another exception to the rule
against the use of force.
d. Wars of National Liberation

Wars by peoples against racist, colonial
and
alien
domination
"for
the
implementation of their right to selfdetermination and independence is
legitimate and in full accord with
principles of international law," and
that any attempt to suppress such
struggle is unlawful (Resolution 3103
[XXVIII]).
When peoples subjected to alien
domination resort to forcible action in
order to exercise their right to selfdetermination, they "are entitled to seek
and to receive support in accordance
with the purposes and principles of the
Charter (1970 Resolution 2625 [XXV]).
These declarations constitute either an

authoritative interpretation of the Charter,
being the subsequent practice of the
parties, or an irregular amendment of the
Page 293 of 313
Chapter IX. International Human Rights Law
Chapter IX. International

Human Rights Law
their
available
resources
may
be
restricted for the
general welfare,
with or without
an emergency
that
threatens
the
independence or
security of a
State Party.
I. DEFINITION OF HUMAN RIGHTS

III.INTERNATIONALIZATION
HUMAN RIGHTS
II. CLASSIFICATION
RIGHTS
OF
Obligatory
Force under
International
Law
First
generation
strictly
(or
objectively)
obligatory,
whatever the
economic or
other
conditions of
the
states
obligated
Second
generation
relatively
obligatory:
States
are
required
to
progressively
achieve the full
realization
of
these rights to
the maximum of
The international community, through

the UN Charter, has accepted the
regulation of human rights, and has
therefore shifted matters or questions
pertaining to human rights from
exclusive domestic jurisdiction to
international regulation.
A. Convention
The
first
important
multilateral
convention protecting human rights was
the United Nations Charter, which
imposes the obligation to promote and
protect human rights (UN Charter, Art
1(1), par. 2).
Two important general conventions

protecting
human
rights
in
international law are the International
Covenant on Civil and Political Rights
(ICCPR), and the International Covenant
on Economic, Social, and Cultural
Rights (ICESCR).
HUMAN
A. First generation consists of civil and

political rights;
B. Second generation consists of
economic, social and cultural rights;
C. Third generation refers to right to
development, right to peace, and right
to environment.
OF
IV. SOURCES OF HUMAN RIGHTS
Human rights are those fundamental

and inalienable rights which are
essential for life as a human being.
They pertain to rights of an individual
as a human being which are recognized
by the international community as a
whole through their protection and
promotion
under
contemporary
international law.
may only be
derogated in a
public
emergency
These are considered to be authoritative

interpretations of the UN Charter
B. Custom
It has been proposed that the protection

of human rights now exists even in
customary law.
This is evidenced by the widespread
acceptance of numerous international
conventions and instruments that
require or signify assent to the
protection of human rights.
Widespread
Declaration
codification
rights law is
acceptance of the UN
of Human Rights as a
of international human
evidence that international
Page 294 of 313
I. DEFINITION OF HUMAN RIGHTS

II. CLASSIFICATION OF HUMAN RIGHTS
III. INTERNATIONALIZATION OF HUMAN
RIGHTS
IV. SOURCES OF HUMAN RIGHTS
A. CONVENTION
B. CUSTOM
V. INTERNATIONAL
BILL
OF
HUMAN
RIGHTS
A. UNIVERSAL DECLARATION OF HUMAN
RIGHTS (UDHR)
B. INTERNATIONAL COVENANT ON CIVIL
AND POLITICAL RIGHTS (ICCPR)
C. INTERNATIONAL
COVENANT
ON
ECONOMIC, SOCIAL AND CULTURAL
RIGHTS (ICESCR)
D. COMMON PROVISIONS IN THE ICCPR
AND ICESCR AND DIFFERENCES
VI. SPECIFIC NORMS IN HUMAN RIGHTS
A. GENOCIDE
B. TORTURE
C. RIGHTS OF THE CHILD
D. LAW AGAINST DISCRIMINATION
E. REFUGEE LAW
Derogation/
Restriction,
when
allowed
custom
protects
(MERON).
human
rights
V. INTERNATIONAL BILL OF HUMAN

RIGHTS
The International Bill of Human

Rights is a convenient designation of
the three main instruments of human
rights on the international plane.
A. Universal Declaration of Human

Rights (UDHR)
The UDHR is the first comprehensive

catalogue of human rights proclaimed
by an international organization.
It must be noted, however, that the
UDHR is not a treaty.
It has no obligatory character because it
was adopted by the UN GA as
Resolution 217A (III). As a resolution, it
is merely recommendatory.
Despite this, the UNDHR is considered
a normative instrument that creates
binding obligations for all States
because of the consensus evidenced by
the practice of States that the
Declaration is now binding as part of
international law (Juan Carillo Salcedo,
Human Rights, Universal Declaration).
The UDHR embodies both first and

second generation rights. The civil and
political rights enumerated include:
1. The right to life, liberty, privacy and
security of person;
2. Prohibition against slavery;
3. The right not to be subjected to
arbitrary arrest, detention or exile;
4. The right to fair trial and
presumption of innocence;
5. The right to a nationality;
6. The right to freedom of thought,
conscience and religion;
7. The right to freedom of opinion and
expression;
8. Right to peaceful assembly and
association;
9. The right to take part in the
government of his country.

The ICCPR is an international covenant

and is binding on the respective State
Parties.
It embodies the first generation of

human rights, although it lists more
rights than the UDHR:
1. The right to own property;
2. The right to seek in other countries
asylum from prosecution;
3. The right of members of ethnic,
religious or linguistic groups not to
be denied to enjoy their own culture,
to profess and practice their own
religion, or to use their own
language;
4. The right to compensation in case of
unlawful arrest;
5. The right to legal assistance in
criminal prosecution;
6. The right against self-incrimination;
7. Protection against double jeopardy;
8. Right to review by higher tribunal in
case of criminal conviction;
9. Right of every child to nationality;
10. Right to protection of a child as
required by his status as a minor;
11. Right of persons below 18 years old
not to be sentenced to death for
crimes;
12. Right against the carrying out of
death sentence on the part of a
pregnant woman.
Obligations of State Parties

1. Under the ICCPR, State Parties
undertake to respect and to ensure to
all individuals within their territory the
rights enumerated therein, without
distinction of any kind, such as race,
color, sec, language, religion, political or
other opinion, national or social origin,
birth or other status.
Page 295 of 313
These are
1.) the Universal Declaration of Human
Rights,
2.) the International Covenant on Civil
and Political Rights, and
3.) the International Covenant on
Rights.
Economic, social and cultural rights

enumerated in the UDHR include:
a. The right to social security;
b. The right to work and protection
against unemployment;
c. The right to equal pay for equal
work;
d. The right to form and join trade
unions;
e. The right to rest and leisure.
2. State Parties are required to take the

necessary steps to adopt legislative or
other measures that are necessary to
give effect to the rights recognized in the
ICCPR.
3. State Parties must ensure that any
person whose rights or freedoms are
violate have an effective remedy,
notwithstanding that the violation has
been committed by persons action in an
official capacity.
3. the right not of peoples not to be

deprived of their own means of
subsistence
Note these rights are not covered by the
UDHR.
VI. SPECIFIC
RIGHTS
Nature of the Prohibition
Note unlike the ICCPR, the states under

the ICESCR merely agree to take steps to
the maximum of its available resources.
The common provisions of the two

Covenants deal with collective rights,
namely:
1. The right of self-determination of
peoples;
2. the right of peoples to freely dispose of
their natural wealth and resources;
Genocide is covered by the Convention

on the Prevention and Punishment of
the Crime of Genocide.
The ICJ, in its advisory opinion,
explained the nature of genocide as a
crime under international law involving a
denial of the right of existence of entire
human groups, a denial which shocks
the conscience of mankind and results in
great losses to humanity.
The ICJ also recognized the customary
nature of the proscription, stating that
the principle under the Convention are
recognized by civilized nations as
binding
on
States
even
without
conventional obligation.
State Parties are required to undertake

the necessary steps to the maximum of
its available resources, with a view to
achieving
progressively
the
full
realization of the rights enumerated in
the covenant by all appropriate means.
D. Common Provisions in the ICCPR

and the ICESCR and differences
Under international law, genocide refers

to any of the following acts (actus reus),
when such acts are committed with
intent to destroy, in whole or in part, a
national, ethnical, racial or religious
group, as such (dolus specialis):
1. Killing members of the group;
2. Causing serious bodily or mental
harm to the members of the group;
3. Deliberately inflicting on the group
conditions of life calculated to bring
about its physical destruction in
whole or in part;
4. Imposing measures intended to
prevent births within the group; and
5. Forcibly transferring children of the
group to another group (Article 6,
Statute of the International Criminal
Court)
Obligations of State Parties
HUMAN
The ICESCR, like the ICCPR, is an

international covenant and is binding
on the respective State Parties.
It embodies the second generation of
human rights, although it lists more
rights than the UDHR:
1. Right to health;
2. Right to strike;
3. Right to be free from hunger;
4. Rights to enjoy the benefits of
scientific progress;
5. Freedom for scientific research and
creativity.
IN
A. Genocide
C. International
Covenant
on
Rights (ICESCR)
NORMS
Acts Punishable
The Convention defines the following

acts as punishable:
1. Genocide;
2. Conspiracy to commit genocide;
3. Direct and public incitement
commit genocide;
4. Complicity in genocide.
to
Page 296 of 313
4. State Parties must ensure that any

person claiming such remedy shall have
his right thereto determined by
competent judicial, administrative or
legislative authority, and that they
shall enforce the remedy when granted.
The Genocide convention provides that

the crime of genocide shall be tried by a
competent tribunal of
the State in which the act was
committed, or
by such international tribunal as
may have jurisdiction with respect
to the State Parties which shall have
accepted its jurisdiction.
One such tribunal is the International
Criminal Court (Art 5, Rome Statute).
public emergency, may be invoked to justify

torture nor a superiors order or other
authority be used as a justification for
torture.
It is an obligation for State Parties to take
measures to prevent torture and to ensure
that the acts of torture are legally
punishable in their jurisdiction.
Concerns pertaining to his personhood,

legal protection and in general human
rights standards have come under the
regime of international law and are no
longer confined to the exclusive
domestic jurisdiction of States that are
parties to the CRC.
Genocide may be committed during

war/armed conflict or during time of peace.
B. Torture
The Convention Against Torture and Other
Cruel, Inhumane or Degrading Punishment
defines torture as any act by which severe
pain or suffering, whether physical or
mental, is intentionally inflicted on a
person for such purposes as
1. Obtaining from him or a third person
information or a confession;
2. Punishing him for an act he or a third
person has committed, or is suspected
of having committed;
3. Intimidating or coercing him or a third
person;
4. For any reason based on discrimination
of any kind
When such pain or suffering is inflicted

by or at the instigation of or with
consent or acquiescence of a public
official or person acting in an official
capacity.
Nature of the prohibition

As a principle of international law,
prohibition against torture is created by an
obligation erga omnes, an obligation of
every state towards the international
community as a whole.
It forms part of the principles and rules
concerning the basic rights of the human
person.
Salient Features
Under the Convention, the prohibition
against torture is non-derogable. No
exceptional circumstance, such as war or
Substantive Rights of the Child Under

the CRC:
1. The inherent right to life
2. To have a name from birth;
3. To acquire a nationality, adequate
standard of living, social security and
health care;
4. Political, civil, economic, social and
cultural rights, including freedom of
thought,
conscience,
religion,
expression,
association,
education,
access to information, minority rights,
and civil and criminal procedural rights;
5. Prohibition against discrimination;
6. Protection during armed conflict and
refugee right;
7. Right to family environment and the
right to know the parents and be cared
for by them.
D. Law against Discrimination
The International Convention on the

Elimination of All Forms of Racial
Discrimination
defines
racial
discrimination as
any
distinction,
exclusion,
restriction or preference based on
race, color, gender, descent, or
national or ethnic origin
which has the purpose or effect of
nullifying
or
impairing
the
recognition, enjoyment or exercise
on an equal footing, of human rights
and fundamental freedoms
Page 297 of 313
Notes Individual criminal liability is

provided for the crime of genocide, whether
such individual is a public official or a
private person.
The Convention on the Rights of the

Child (CRC) is the primary international
instrument concerning the legal status
of the child in international law.
in the political, economic, social,

cultural, or any other field of public
life.
Notes: the definition of racial discrimination

is
considered
as
an
authoritative
interpretation of the non-discrimination
clause of the UN Charter (Art. 55 and 56).
Also,
affirmative
action,
or
positive
discrimination, are not considered as
contrary to the Convention.
1. He has committed a crime against

peace, a war crime, or a crime against
humanity;
2. He has committed a serious, nonpolitical crime outside the country of
refuge prior to his admission to that
country as a refugee;
3. He has been guilty of acts contrary to
the purposes and principles of the UN.
The Right of Non-Refoulment
A refugee is a person who,

owing to a well founded fear of being
persecuted
for reasons of race, religion,
nationality,
membership
in
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, owing to such fear, is
unwell to return to it (Convention
Relating to the Status of Refugees)
Note: the Convention requires that the

refugee
conform
to
the
laws
and
regulations, as well as measures taken for
the maintenance of public order, of the
country of refuge.
Cessation of Status as Refugee

A refugee ceases to be such when:
1. He has voluntarily re-availed himself of
the protection of the country of his
nationality;
2. He has voluntarily acquired his
nationality, having lost it;
3. He has acquired a new nationality and
enjoys the protection of the state of his
new nationality;
4. He
has
voluntarily
re-established
himself in the country which he has left
or outside which he remained owing to
fear of persecution;
5. He can no longer continue to refuse the
protection of the country of his
nationality because the circumstance by
which he has acquire the status of
refugee no longer exists.
Who May Not Qualify as Refugees
A status of a refugee may not apply to

the following persons with respect to
whom there are serious reasons for
considering that:
Page 298 of 313
E. Refugee Law
It is the right of the refugee no 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 of race,
religion, nationality, membership in a
particular social group or political
opinion.
Chapter X. International Humanitarian Law
Chapter X. International
Humanitarian Law
IHL 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 those who
do not or no longer participate in the
hostilities.
IHL has Two Branches: (1) Law of The
Hague, which establishes the rights and
obligations of belligerents in the conduct
of military operations, and limits the
means of harming the enemy; and the
(2) Law of Geneva, which is designed to
safeguard military personnel who are no
longer taking par in the fighting and
people not actively engaged in hostilities
(i.e.
civilians)
(INTERNATIONAL
COMMITTEE OF THE RED CROSS
[ICRC]).
Note: The two branches draw their
names from the cities where each was
HUMANITARIAN LAW V. HUMAN

RIGHTS LAW
IHL and IHR are complementary. Both strive
to protect the lives, health and dignity of
human persons, albeit from different angle.
The following distinctions may be noted
(ICRC):
1. Application. IHL applies in situations
of armed conflict, whereas IHR applies
both in times of peace and in war.
2. Derogation.
Some
human
rights
treaties permit governments to derogate
from certain rights in times of public
emergency
(Art.4,
ICCPR).
No
derogations are permitted under IHL as
it was conceived precisely to emergency
situations, such as an armed conflict.
3. Holder of Obligation. IHL imposes
duties only upon those who are parties
to an armed conflict. Human rights
apply to all State governments.
I. DEFINITION
CONFLICT
OF
ARMED
(Prosecutor vs. Tadic, Para.70).
An Armed Conflict exists when there is

resort to the use of force
between two states (international
armed conflict), or
between government authorities and
an organized armed group, or
between such groups within the
same territory (non-international
armed conflict)
Note: Wars of National Liberation have
been classified as international armed
conflicts (ICRC)
Mere
internal
disturbances
and
tensions, or riots or isolated or sporadic
acts of armed violence does not amount
to an armed conflict (Tadic)
Note: Cases of this type are governed by
the provisions of human rights law and
the relevant domestic laws.
II. FUNDAMENTAL
IHL
PRINCIPLES OF
1. Parties to an armed conflict, together

with their armed forces, do not have
unlimited choice of methods or
means of warfare.
Page 299 of 313
XII.ARMED CONFLICT
XIII.
FUNDAMENTAL PRINCIPLES OF IHL
XIV.
APPLICATION OF IHL
XV. THE FOUR GENEVA CONVENTIONS AND
THE TWO ADDITIONAL PROTOCOLS
XVI.
APPLICATION
XVII. CONCEPTS
G. COMBATANTS
H. HORS DE COMBAT
I. PROTECTED PERSONS
J. THE MARTENS CLAUSE
K. MILITARY OBJECTIVE
L. BELLIGERENCY STATUS
XVIII. IHL AND WEAPONS OF MASS
DESTRUCTION
XIX. NON-INTERNATIONAL ARMED
CONFLICT
D. COMMON ARTICLE 3 AND PROTOCOL
II
E. CONTROL OF TERRITORY
F. WAR OF NATIONAL LIBERATION
XX. NEUTRALITY
XXI.
PROTECTIVE EMBLEMS
D. WHO MAY USE
E. MISUSE OF EMBLEM
F. PUNISHMENT
XXII. THE INTERNATIONAL CRIMINAL
COURT (ICC)
F. CRIMES WITHIN THE COURTS
JURISDICTION
G. MODES OF INCURRING CRIMINAL
LIABILITY
H. SOURCES OF LAW
I. OTHER KEY CONCEPTS
J. LANDMARK CASES
initially codifies. With the adoption of

the Additional Protocols of 1977, which
combine both branches, that distinction
is now of merely historical and
instructive value (ICRC).
They are prohibited from employing

weapons or means of warfare that cause
unnecessary damage or excessive
suffering.
Common Article 2 and 3 of the four

Geneva Conventions states that the
Convention shall apply in all cases of
declared war or any other armed
conflict between to or more [Contracting
Parties] even if the state of war is not
recognized by one of them.
2. Parties to an armed conflict shall, at all

times, distinguish between civilian
population
and
the
combatants
(Principle of Distinction). Civilians shall
be spared from military attacks which
shall be directed only against military
objectives.
4. It is prohibited to kill or injure an

enemy who is hors de combat or who
surrenders.
5. The wounded and the sick shall be
protected and cared for by the party to
the conflict which has them in its
power. Protection shall also apply to
medical
personnel,
establishments,
transports and material.
6. Combatants and civilian who are
captured by authority of the party to a
dispute are entitled to respect for
their right to life, dignity, conviction,
and other personal rights. They shall
be protected against acts of violence or
reprisals. (Legality of the Threat or Use
of Nuclear Weapons, Advisory Opinion
by the ICJ)
III.APPLICATION OF IHL
IHL is not concerned with the

lawfulness or unlawfulness of armed
conflict.
The application of IHL in armed conflict,
whether such is the result of an
unlawful threat or use of force, pertains
solely to the fact of armed conflict, even
if the use of force remains unlawful.
IV. THE
FOUR
GENEVA
CONVENTIONS AND THE TWO
ADDITIONAL PROTOCOLS
The four Geneva Conventions and the

Additional Protocols are the primary
legal instruments that embody IHL.
Namely, they are:
1. The Geneva Convention for the
Amelioration of the Condition of
the Wounded and Sick in Armed
Forces in the Field (1st Geneva
Convention, Aug. 12, 1949);
2. The Geneva Convention for the
Amelioration of the Condition of
Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea
(2nd Geneva Convention, Aug. 12,
1949);
3. The Geneva Convention Relative to
the Treatment of Prisoners of War
(3rd Geneva Convention, Aug. 12,
1949);
4. The Geneva Convention Relative to
the Protection of Civilian Persons
in Time of War (4th Geneva
Convention, Aug. 12, 1949);
5. Protocol Additional to the Geneva
Conventions of 12 August 1949 and
Relating to the Protection of
Victims of International Armed
Conflicts (Protocol I, June 8,
1977);
6. Protocol Additional to the Geneva
Conventions of 12 August 1949 and
Relating to the Victims of NonInternational
Armed
Conflict
(Protocol II, June 8, 1977).
As such, IHL applies to all armed

conflicts, regardless of whether
resort to threat or the use of force
was lawful or unlawful
IHL governs in both international and

non-international armed conflicts.
Page 300 of 313
3. Persons hors de combat are those who

have been injured in the course of
hostile battle action and are no longer
able to directly take part in hostilities.
They shall be protected and treated
humanely
without
any
adverse
distinction. Their right to life and
physical and moral integrity shall be
respected.
As used in Article 3, armed conflict

pertains to non-international armed
conflicts in that it deals with armed
confrontation between the government
and a rebel or insurgent movement, not
between states.
V. APPLICATION OF THE FOUR

GENEVA CONVENTIONS
AND
THE
TWO
ADDITIONAL
PROTOCOLS
In the ICJ advisory opinion in the

Legality of the Threat or Use of Nuclear
Weapons, the Court expressed that the
fundamental rules of IHL are to be
observed by all states whether or not
they have ratified the conventions
that contain them, because they
constitute intransgressible principles of
customary international law.
Under Art. 41(2) of Protocol I, a person

is hors de combat if he:
a. Is in the power of an adverse party
to the conflict;
b. He clearly expresses an intention to
surrender; or
c. He has been rendered unconscious
or is otherwise incapacitated by
wounds or sickness, and is therefore
incapable of defending himself,
provided that in any of these cases,
he abstains from any hostile act and
does not attempt to escape.
Persons hors de combat shall be

protected and treated humanely without
any adverse distinction. Their right to
life and physical and moral integrity
shall be respected
The four Conventions are applicable

only to international armed conflicts,
The principles under the four Geneva

Conventions are regarded by the
international community as a whole
as having a character of general or
customary international law, and
therefore binding on all states.
EXCEPT common Article 3 which

applies in the case of armed conflict not
of an international character occurring
in the territory of one of the State
Parties.
B. Hors de combat
As to the Protocols, Protocol I is

designed for the protection of victims of
international armed conflicts, while
Protocol II pertains to the protection of
victims of non-international armed
conflicts.
Protected persons are those who enjoy or

are entitled to protection under the Geneva
Conventions.
Categories of protected persons include:
a. The
wounded,
shipwrecked;
b. Prisoners of War
c. Civilians
VI. DEFINITION OF CONCEPTS AND

PHRASES
A. Combatants
Combatants are members of the armed

forces of a Party to a conflict (Art. 3(2),
Protocol 1).
sick,
and
For purposes of protection, civilians are

further classified as:
a. Civilians who are victims of conflict
in countries involved
b. Civilians in territories of the enemy;
c. Civilians in occupied territories;
d. Civilians internees
D. Martens clause
They have the right to participate

directly and indirectly in hostilities (Art
43(2) Protocol 1).
The Martens Clause is an umbrella

provision which reads:
In cases not covered by Protocol I, or
by any other international agreements,
civilians and combatants remain under
the protection and authority of the
principles of international law derived
from established custom, from the
principles of humanity, and from the
dictates of public conscience.
In fact, only combatants are allowed to

engage in hostilities.
According to one commentator, a
combatant is allowed to use force, even
to kill, and will not be held personally
responsible for his acts, as he would be
where he to the same as a normal
citizen (Gasser, IHL-An Introduction)
the
Where gaps or loopholes arise in the

interpretation
and
application
of
international agreements or treaties of
humanitarian law, resort to the Martens
Clause may be made.
Page 301 of 313
An object, which by its nature, purpose,

use, or location,
makes an effective contribution to
military action, and
whose total or partial destruction,
neutralization or capture makes an
effective contribution to military
action.
It is the formal acknowledgement by a

third party of the existence of a state of
war between the central government
and a portion of such state.
Belligerency exists when
a sizeable portion of the territory of
a state is under the effective control
of an insurgent community,
which seeks to establish a separate
government and
the insurgents are in de facto
control of a portion of the territory
and population,
have a political organization,
are able to maintain such control,
and
conduct themselves according to the
laws of war (Asked 1 time in the
Bar).
VII. IHL AND WEAPONS OF MASS

DESTRUCTION
Art. 51(4) of Protocol I provide that as a

measure of protection of civilian
population, indiscriminate attacks are
prohibited.
Attacks
which
are
considered
indiscriminate, or those that do not
distinguish between military objectives
and civilians or civilian objects, are:
1. Those which are not directed at a
specific military objective;
2. Those which employ a method or
means of combat which cannot be
directed at a specific military
objective; or
3. Those that employ a method or
means of combat the effect of which
cannot be limited as required by the
protocol.
An
attack
is
also
considered
indiscriminate if it may be expected to
cause incidental loss to human life,
Nuclear Weapons
In its advisory opinion in Legality of the
Threat or Use of Nuclear Weapons, the ICJ
expressed that nuclear weapons, having
been developed after most of the principles
and rules of IHL applicable to armed
conflicts, are governed by such principles
and rules.
VIII. IHL AND NON-INTERNATIONAL

ARMED CONFLICT
Common Article 3 of the four Geneva

Conventions is the only provision
applicable to non-international armed
conflicts.
It defines the following obligations:
1. Persons taking no active part in the
hostilities, including members of the
armed forces who have laid down
their arms and
those placed hors de combat, shall
in all instances be treated humanely
without any adverse distinction
founded on race, color, religion or
faith, sex, birth or wealth, or any
other similar criteria.
2. With respect to the persons
mentioned above, the following acts
shall remain prohibited:
ii. Violence to life and person, in
particular, murder of all kinds,
mutilation, cruel treatment and
torture;
iii. Taking of hostages;
iv. Outrages upon personal dignity,
in particular humiliating and
degrading treatment;
v. The passing of sentences and
the carrying out of executions
without
previous
judgment
pronounced by a regularly
constituted court, affording all
the judicial guarantees which
are recognized as indispensable
by civilized peoples.
3. The wounded and the sick shall be
collected and cared for.
The application of provisions above does

not affect the legal status of the parties to
Page 302 of 313
injury to civilians, damage to civilian

objects, or a combination thereof, which
would be excessive in relation to the
concrete and direct military advantage
anticipated (Art. 54, para. 5(b), Protocol
I)
the conflict. Hence, an insurgent or a rebel

group does not assume belligerency status.
Article 3 is indifferent to the legal character
of such group.
It must be noted that Article 3 is to be
applied as a minimum.
A. Common Article 3 and Protocol II
Protocol II develops and supplements

common Article 3 (Art. 1, Protocol II).
Application of Article 3 and Protocol II

The rules in Article 3 are recognized as
customary norms of international law, and
therefore applicable to all States. However,
Protocol II is a treaty and binding only
States that are parties to it.
Its rules, however, may still develop into
customary norms binding on all states, by
the general practice of states coupled with
their acceptance of them as law (opinio
juris).
B. Control-of-territory
The test of whether a dissident armed

force has control of territory is when
such armed force can (1) carry out
sustained
and
concerted
military
operations, and whether it has (2) the
capacity to comply with the provisions
of the Protocol.
In a non-international armed conflict

where the dissident armed forces do not
exercise such control over territory,
Article 3, and not Protocol II may be
applicable. The result is that this
situation may give rise to two categories
of non-international armed conflicts:
one where only Article 3 applies, and
the other where both Article 3 and
Protocol II apply.
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 to selfdetermination.
This conflict, however, is considered an
international armed conflict under Art.
1, para. 3 and 4 of Protocol I.
Article 2 common to the four Geneva
conventions provides that all cases of
declared war or any other armed
conflict which may arise between two or
more of the High Contracting Parties,
even if the state of war is not recognized
by one of them.
Hence, the Geneva conventions and
Protocol I govern wars of national
liberation.
IX. NEUTRALITY
Neutrality is the legal status of a State in
times of war,
by which it adopts impartiality in
relation to the belligerents with their
recognition.
The Hague Convention Respecting the
Rights and Duties of Neutral Powers (Oct.
18, 1907) governs the status of neutrality
by the following rules:
a. The territory of the neutral Power is
inviolable;
b. Belligerents are forbidden to move
troops or munitions of war and supplies
across the territory of a neutral Power;
c. A neutral power is forbidden to allow
belligerents to use its territory for
moving
troops,
establishing
communication facilities, or forming
corps of combatants.
d. Troops of belligerent armies received by
a neutral Power in its territory shall be
interned by away from the theatre of
war;
e. The neutral Power may supply them
with food, clothing or relief required by
humanity;
f. If the neutral Power receives escaped
prisoners of war, it shall leave them at
liberty. It may assign them a place of
residence if it allows them to remain in
its territory;
g. The neutral power may authorize the
passage into its territory of the sick and
Page 303 of 313
It applies to:
all armed conflicts which take place
in the territory of a State Party,
between its armed forces and
dissident armed forces or other
organized groups
which, under responsible command,
exercise such control over a part
of its territory
as to enable to carry out sustained
and concerted military operations
and to implement the Protocol.
wounded if the means of transport

bringing them does not carry personnel
or materials of war
The Third Geneva Convention (Prisoners of
War) allows neutral Powers to cooperate
with the parties to the armed conflict in
making
arrangements
for
the
accommodation in the formers territory of
the sick and wounded prisoners of war.
Protecting Power
4. Other voluntary relief agencies, subject

to the same conditions as national
societies (ICRC).
B. Misuse of the Emblem

Any use not expressly authorized by IHL
constitutes a misuse. They include:
1. Imitation the use of a sign which, by
its shape and/or color, may cause
confusion with the emblem.
2. Usurpation the use of the emblem by
bodies or persons not entitled to do so.
3. Perfidy making use of the emblem in
time of conflict to protect combatants or
military equipment.
C. Punishment
A protecting power is a State or an

organization
not taking part in the hostilities,
which may be a neutral state,
designated by one party to an armed
conflict with the consent of the other
to safeguard or protect its humanitarian
interests
in
the
conflict,
the
performance of which IHL defines
specific rights and duties.
State Parties to the Geneva Conventions are

required to take steps to prevent and
punish misuse of the emblem both in time
of peace and in war.
X. PROTECTIVE EMBLEMS
The ICC is a permanent criminal tribunal

established to prosecute individuals who
have violated laws applicable during armed
conflict.
Emblems:
1. Red Cross (Geneva Conventions)
2. Red Crescent (Geneva Conventions)
3. Red Crystal (Third Additional Protocol to
the Geneva Conventions)
Note: Protocol III is an amendment to the
Geneva Conventions relating to the
Adoption of an Additional Distinctive
Emblem for use by national societies. It
entered into force on 14 January 2007, six
months after the second ratification.
Art.8(2)(b)(vii) of the ICC Statute makes the

improper use of the distinctive emblems of
the Geneva Conventions a War Crime.
XI. THE INTERNATIONAL CRIMINAL

COURT
Requisites to be held criminally liable:

1. Act constituting a crime within the
Courts jurisdiction; and that
2. Requisite
standards
for
incurring
criminal liability are satisfied.
A. Crimes
within
Jurisdiction
the
Courts
(Art.5, ICC Statute)
A. Who May Use

During armed conflict, the emblem may be
used as a protective device by:
1. Medical services of armed forces;
2. National Red Cross, Red Crescent or
Red Crystal societies duly recognized
and authorized by their governments to
lend assistance to the medical services
of armed forces;
3. Civilian hospitals and other medical
facilities recognized as such by the
government
(i.e.
first-aid
posts,
ambulances);
The jurisdiction of the Court shall be

limited to the most serious crimes of
concern to the international community as
a whole. The Court has jurisdiction in
accordance with this Statute with respect to
the following crimes:
1. Genocide (Art.6, ICC Statute)
Genocide refers to any of the following
acts (actus reus) which are committed
with intent to destroy, in whole or in
part, a national, ethnical, racial or
religious
group,
as
such
(dolus
specialis):
Page 304 of 313
Interned persons among the civilian

population, in particular the children, the
pregnant women, the mothers with infants
and young children, wounded and sick,
may be accommodated in a neutral state in
the course of hostilities, by agreement
between the parties to the conflict.
1. Killing members of the group;

2. Causing serious bodily or mental
harm to the members of the group;
3. Deliberately inflicting on the group
conditions of life calculated to bring
about its physical destruction in
whole or in part;
4. Imposing measures intended to
prevent births within the group; and
5. Forcibly transferring children of the
group to another group (Art.6, ICC
Statute).
3. War Crimes (Art.8, ICC Statute)

Refer to grave breaches of the 1949
Geneva
Conventions
and
other
violations of the laws and customs
applicable in international and noninternational armed conflict.
4. The Crime of Aggression
The ICC shall exercise jurisdiction over
the crime of aggression once a provision
defining the crime and setting out the
conditions under which the Court shall
exercise jurisdiction with respect to this
crime.
Such provision shall be adopted

pursuant
to
the
rules
on
amendment (Art.121, ICC Statute).
This amendment may be proposed
in the Review Conference to be
convened by the UN Secretary
General seven years after the
Statute has entered into force
(Art.123, ICC Statute).
Note: The ICC Statute entered into force

in 2002. The Review Conference is
scheduled to be convened this year
(2009).
B. Modes of
Liability
Incurring
Criminal
1. Individual Criminal Responsibility

(Direct) (Art.25, ICC Statute)
A person shall be criminally responsible
and liable for punishment for a crime
within the jurisdiction of the Court if
that person commits, orders, solicits or

induces the commission of such a
crime, or aids, abets or otherwise
assists in the its commission.
2. Command
and
Superior
Responsibility (Indirect) (Art.28, ICC
Statute)
The
responsibility
of
military
commanders and civilian superiors for
crimes committed by subordinate
members of their armed forces or other
persons subject to their control.
Requisites:
1. The commander or superior must
exercise effective control over
those who committed the crime;
2. The commander knew or should
have known of the violations being
perpetrated by his subordinates
(Art.28(a)(i), ICC Statute);
or that the Superior knew or
consciously
disregarded
information that indicate that the
subordinates were committing or
about to commit such crimes
(Art.28(b)(ii), ICC Statute);
Note: A civilian superior may not be
held criminally liable upon the basis
of imputed knowledge (should have
known). He must have consciously
disregarded
information
which
would have notified him of the
violations being perpetrated by his
subordinates.
3. Failure to prevent or to punish
said violations.
C. Sources of Law
The Court shall apply:
1. In the first place, this Statute, the
Elements of Crimes and its Rules of
Procedure and Evidence;
2. In the second place, applicable treaties
and the principles and rules of
international
law,
including
the
established
principles
of
the
international law of armed conflict;
3. Failing that, General principles of law
derived by the Court from national laws
of legal systems of the world including,
as appropriate, the national laws of
States that would normally exercise
jurisdiction over the crime, provided
that
those
principles
are
not
inconsistent with this Statute and with
international law and internationally
recognized norms and standards.
Page 305 of 313
2. Crimes Against Humanity (CAH)

(Art.7, ICC Statute)
Refers to acts (actus reus) committed
knowingly as part of a widespread or
systematic attack directed against any
civilian population. In any case, the
attack must involve the multiple
commission of such acts, made
pursuant to or in furtherance of a State
or organizational policy.

Principle of Complementarity (Art.17, ICC
Statute)
Nullum crimen sine lege (Art.22, ICC

Statute)
A general principle in criminal law which
provides that a person shall not be
criminally responsible (under the ICC
Statute) unless the conduct in question
constitutes, at the time it takes place, a
crime within the jurisdiction of the Court.
As in any criminal proceeding, the

until proved guilty. The iota of evidence
required to convict an accused is proof
beyond reasonable doubt (Art.66, ICC
Statute).
Applicable Penalties: The ICC may
impose (a) imprisonment for a specified
number of years, which may not exceed
a maximum of 30 years; or (b) a term of
life imprisonment when justified by the
extreme gravity of the crime and the
individual
circumstances
of
the
convicted person. In no case may the
Court impose capital punishment.
Status: The Pre-Trial Chamber I committed

Thomas Lubanga Dyilo for trial. The
Chamber found that there is sufficient
evidence to establish substantial grounds to
believe that Thomas Lubanga Dyilo is
criminally responsible as co-perpetrator for
the war crimes he is charged of.
2. Sudan President Omar Al Bashir
On March 2009, the ICC Pre-Trial Chamber
issued a warrant for the arrest of Omar Al
Bashir, President of Sudan. Al Bashir is
charged of war crimes and crimes against
humanity. He is suspected of being
criminally responsible, as an indirect (co-)
perpetrator, for intentionally directing
attacks against an important part of the
civilian population of Darfur, Sudan,
murdering, exterminating, raping, torturing
and forcibly transferring large numbers of
civilians, and pillaging their property.
Significance: This is the first warrant of
arrest ever issued for a sitting Head of State
by the ICC.
Under Article 27 0f the ICC Statute, Omar
Al Bashirs official capacity as sitting Head
of State does not exclude his criminal
responsibility, nor does it grant him
immunity against prosecution before the
ICC. Immunities or special procedural rules
which may attach to the official capacity of
a person, whether under national or
international law, shall not bar the Court
from exercising its jurisdiction over such a
person.
E. Landmark Cases
1. The Case of Thomas Lubanga Dyilo
Thomas Lubanga Dyilo is a former rebel
leader from the Democratic Republic of the
Congo. He founded and led the Union of
Congolese Patriots (UPC) and was a key
player in the Ituri conflict. Rebels under his
command have been accused of massive
human rights violations, including ethnic
massacres,
murder,
torture,
rape,
mutilation, and forcibly conscripting child
soldiers.
On 17 March 2006, Lubanga became the
first person ever arrested under a warrant
issued by the International Criminal Court.
He is on trial for the war crime of enlisting
children under the age of fifteen years and
using them to participate actively in
hostilities.
Page 306 of 313
The ICC is intended as a court of last

resort, investigating and prosecuting only
where national courts have failed. The ICC
shall assume jurisdiction over a case only
where national criminal jurisdictions are
genuinely unwilling or unable to investigate
and prosecute most serious crimes of
international concern. Where a State is able
or willing, a case is not admissible to the
Court (CASSESE).
Chapter XI. Diplomatic

Intercourse
Diplomatic Intercourse, also referred to

as the Right of Legation, is the right of
the State to send and receive diplomatic
missions, which enables States to carry
on friendly intercourse.
I. AGENTS
OF
INTERCOURSE
It is composed of:
1. Head of Mission classified into: (a)
Ambassadors or nuncios accredited to
Heads of State, and other heads of
mission of equivalent rank; (b) Envoys,
Ministers and Internuncios accredited
to Heads of State; (c) Charges daffaires
accredited to Ministers of Foreign
Affairs.
2. Diplomatic Staff those engaged in
diplomatic activities and are accorded
diplomatic rank.
3. Administrative and Technical Staff
thise employed in the administrative
and technical service of the mission.
4. Service Staff those engaged in the
domestic service of the mission
(NACHURA REVIEWER)
II. FUNCTIONS AND DUTIES
DIPLOMATIC
A. Head of State
The head of State represents the
sovereignty of the State, and enjoys the
right to special protection for his physical
safety and the preservation of his honor
and reputation.
Upon the principle of exterritoriality, his
quarters, archives, property and means of
transportation are inviolate.
He is immune from criminal and civil
jurisdiction, except when he himself is the
plaintiff, and is not subject to tax or
exchange or currency restrictions.

The body entrusted with the conduct of
actual day-to-day foreign affairs.
It is headed by a Secretary or a Minister
who, in proper cases, may make binding
declarations on behalf of his government
(Legal Status of Eastern Greenland Case).

Refers to the collectivity of all diplomatic
envoys accredited to a State.
In the Philippines, the President

appoints (Art.VII,Sec.16, Constitution),
sends and instructs the diplomatic and
consular representatives.
The main functions of a diplomatic

mission are the following:
1. Represent the sending State in the
receiving State;
2. Protect in the receiving State the
interests of the sending State and its
nationals, within the limits allowed
by international law;
3. Negotiate with the government of the
receiving State;
4. Ascertain, by all lawful means, the
conditions and developments in the
receiving State and reporting the
same to the sending State;
5. Promote friendly relations between
the sending State and receiving
State,
and
developing
their
economic, cultural and scientific
relations.
III.DIPLOMATIC
PRIVILEGES
IMMUNITIES
AND
The receiving State shall treat him with

due respect and take all steps to
prevent any attack on his person,
freedom or dignity.
The diplomatic representative shall not
be liable to any form of arrest or
detention.
Page 307 of 313
V. AGENTS OF DIPLOMATIC INTERCOURSE

A. HEAD OF STATE
B. THE FOREIGN OFFICE
C. THE DIPLOMATIC CORPS
VI. FUNCTIONS AND DUTIES
VII. DIPLOMATIC IMMUNITIES AND
PRIVILEGES
F. PERSONAL INVIOLABILITY
G. INVIOLABILITY OF PREMISES AND
ARCHIVES
H. RIGHT OF OFFICIAL COMMUNICATION
I. IMMUNITY FROM LOCAL
JURISDICTION
J. EXEMPTION FROM TAXES AND
CUSTOMS DUTIES
VIII.
CONSULAR RELATIONS
D. RANKS
E. NECESSARY DOCUMENTS
F. IMMUNITIES AND PRIVILEGES
Chapter XI. Diplomatic Intercourse
The diplomatic envoy, however, may be

arrested temporarily in case of urgent
danger, such as when he commits an
act of violence which makes it necessary
to put him under restraint for the
purpose of preventing similar acts.
The premises occupied by a diplomatic

mission, including the private residence
of the diplomatic agent, are inviolable.
His properties are not subject to

garnishment, seizure for debt, execution
and the like.
Such premises cannot be entered or

searched, and neither can the goods,
records and archives be detained by
local authorities even under lawful
process.
The diplomatic agent also cannot be

compelled to testify, not even by
deposition, before any judicial or
administrative tribunal in the receiving
State without the consent of his
government.
Premises
E. Exemption
from
Customs Duties
The service of writs, summons, orders

or processes within the premises of
mission or residence of the envoy is
prohibited.
Taxes
Diplomatic agents are exempt from

all dues and taxes, whether
personal or real, national, regional
or municipal.
He is also exempt from all customs
duties of articles for the official use
of the mission and those for the
personal use of the envoy or
members of the family forming part
of his household, including articles
intended for his establishment.
Even if a criminal takes refuge within

the premises, the peace officers cannot
break into such premises to apprehend
the same.
The fugitive should, however, be
surrendered upon demand by local
authorities, except when the right of
asylum exists.
Baggage and effects are entitled to

free entry and are usually exempt
from inspection.
C. Right of Official Communication
Exception to Tax Exemption:
The envoy is entitled to fully and freely

communicate with his government.
i.
The mission may employ all appropriate

means to send and receive messages by
any
of
the
usual
modes
of
communication
or
by
diplomatic
courier, which shall enjoy inviolability.
ii.
iii.
iv.
D. Immunity from Local Jurisdiction
A diplomatic agent enjoys immunity

from criminal jurisdiction of the
receiving State.
He may not be arrested, prosecuted,

prosecuted or punished for any offense
he may commit, unless his immunity is
waived.
and
v.
Indirect taxes incorporated in the

price of goods purchased or services
availed
Dues and taxes on private immovable
property situated in the receiving
State
Estate, succession or inheritance
taxes levied by the receiving State
Dues and taxes on private income
sourced within the receiving State
Capital taxes on investments in
commercial ventures in the receiving
State
Duration of Immunities and Privileges.

These privileges are enjoyed by the envoy
from the moment he enters the territory of
Page 308 of 313
and
of
The envoy must consent to such entry,

except in extreme cases of necessity (ex.
When there is imminent danger that a
crime of violence is to be perpetrated in
the premises; when the premises are on
fire).
The diplomatic agent also enjoys

immunity
from
the
civil
and
administrative
jurisdiction
of
the
receiving State, even with respect to his
private life.
B. Inviolability
Archives
This privilege, however, only exempts a

diplomatic
agent
from
local
jurisdiction; it does not import
immunity from legal liability.
the receiving State, and shall cease when

he leaves the country.
With respect to official acts, immunity shall
continue indefinitely.
Waiver of Immunities.

1. Freedom of communication;
2. Inviolability of archives, but not of the
premises where legal processes may be
served and arrests made;
3. Exemption from local jurisdiction for
offenses committed in the discharge of
official functions, but not for other
offense except for minor infractions;
4. Exemption from testifying on official
communications
or
on
matters
pertaining to consular functions;
5. Exemption from taxes, customs duties,
military or jury service.
IV. CONSULAR RELATIONS

Consuls are State agents residing abroad
for various purposes but mainly
in the interest of commerce and
navigation,
issuance of visa (permit to visit his
country), and
such other functions as are designed to
protect nationals of the appointing
State.
A. Ranks
1. Consul General: heads several consular
districts, or one exceptionally large
consular district.
2. Consul: in charge of a small district or
town or port.
3. Vice Consul: assists the consul.
4. Consular agent: one entrusted with the
performance of certain functions by the
consul.
The following documents are necessary

for the assumption of Consular
functions:
1. Letters Patent (letter de provision)
the letter of appointment or
commission which is transmitted by
the sending state to the Secretary of
Foreign Affairs of the country where
the consul is to serve.
2. Exequatur the authorization given
to the consul by the sovereign of the
receiving State, allowing him to
exercise his function within the
territory.
Page 309 of 313
Diplomatic privileges may be waived. Such

waiver may be made only by the
government of the sending State if it
concerns the immunities of the head of the
mission. In other cases, the waiver may be
made either by the government or by the
chief of the mission.
Chapter XII. Recent International Law Issues in Philippine Law
Chapter XII. Recent International

Law Issues in Philippine Law
I. DANIEL SMITH AND THE VFA
II. CONSTITUTIONALITY
OF
BASELINES LAW
III. VIOLENCE
AGAINST
WOMEN
TORTURE
THE
AS
I. DANIEL
SMITH
AND
THE
VISITING FORCES AGREEMENT
The controversy centers on a specific

transitory
provision
in
the
1987
Constitution which states that:
After the expiration in 1991 of the
Agreement between 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. (Art. XVIII,
sec. 25).
In particular, the main problem lies on
what it means for the VFA to be
recognized as a treaty by the United
States.
There is apparently an international law
issue in this case involving, as it does, the
recognition of a treaty.
This seems to be the mindset of the
Supreme Court in Bayan v. Zamora when it
affirmed the constitutionality of the VFA
saying that the phrase recognized as a
treaty means that the other contracting
party accepts or acknowledges the
agreement as a treaty even without the US
following its constitutional requirements
(i.e. Senate concurrence) for the acceptance
of a treaty.
Dean Merlin Magallona argues that the

Bayan Court should have treated the issue
as a domestic case because it is a
constitutional attack against the VFA, not a
case in international law.
The petitioners in the recent case of Nicolas
v. Romulo contended that the Philippine
Government should have custody of Daniel
Smith because the VFAwhich will govern
such issue of custodyis void for being
unconstitutional.
They said this in the wake of Medellin v.
Texas (552 U.S. ___ (2008)) decided by the
US Supreme Court which held that treaties
entered into by the United States are not
automatically part of US domestic law
unless:
these treaties are self-executing or
there is an implementing legislation to
make them enforceable.
The Philippine Supreme Court answered
that the VFA is enforceable because it is
considered as an implementation of the RPUS Mutual Defense Treaty and the VFA is
covered by an implementing legislationi.e.
the Case-Zablocki Act, USC Sec. 112(b)
which treats VFA as an executive
agreement to be immediately implemented
60 days from its ratification.
The dissenting opinion of Chief Justice
Reynato Puno follows his dissent in Bayan.
He says that there is an anomalous
asymmetry in the legal treatment of the
VFA between the US and the Philippines
because the VFA can never be considered
as a binding treaty in the US if it has no
concurrence of the US Senate; indeed, the
acknowledgement of the US President of the
VFA as a treaty is not enough.
Moreover, nowhere in the text of the VFA
states that it is self-executory both in the
US and the Philippines.
The dissent of Justice Carpio follows the
same line of reasoning. He points out that
the Case-Zablocki Act operates merely as a
timely notification to the U.S. Congress of
the executive agreements, other than a
treaty, that the U.S. President has entered
Page 310 of 313
The issue of the constitutionality of the

Visiting Forces Agreement (VFA) was once
again raised in Nicolas v. Romulo (G.R. No.
175888) involving the custody of convicted
rapist Lance Corporal Daniel Smith after
the Philippine Supreme Court had already
ruled in favor of its constitutionality in
Bayan v. Zamora.
Notably, the Court in Bayan said that it is

inconsequential whether the United States
treats the VFA only as an executive
agreement because, under international
law, an executive agreement is as binding
as a treatyin other words, treating the
controversy as an international law issue.
into with foreign States as clearly stated in

its provisions.
Art. XVIII, sec. 25 of the Philippine
Constitution, he says, bars the efficacy of
such a treaty that is enforceable as
domestic law only in the Philippines but
unenforceable as domestic law in the other
contracting State.
II. THE CONSTITUTIONALITY

THE BASELINES LAW
OF
The statute amended Republic Act 3046

entitled An Act to Define the Baselines of
the Territorial Sea of the Philippines by
changing the baselines of the Philippines
and specifically excluding the Kalayaan
Island Group and the Scarborough Shoal
(also known as Bajo de Masinloc) from such
baselines.
Instead they are considered as a regime of
islands under Article 121 of the UNCLOS
which can have its own territorial sea,
contiguous zone and exclusive economic
zone and a continental shelf in accordance
with the provisions of the Convention (Sec.
2, RA 9522).
There is currently a petition in the Supreme
Court questioning its constitutionality for it
allegedly violates Article 1 of the 1987
Constitution which used the Treaty of
Paris, the Treaty of Washington and the
1930 Convention between the US and Great
Britain as its basis in defining the
national territory of the Philippines.
The baselines set by RA 9522 is said to be a
radical departure from the baselines set by
such treaties on which our Constitution is
based.
Moreover, by disregarding Article 1 of the
Philippine Constitution, the new baselines
law allegedly converts the internal waters of
the
Philippinesthe
waters
around,
between, and connecting the islands of the
archipelago into archipelagic waters under
the UNCLOS III regime thus rendering
nugatory the reservations of the Philippines
under the UNCLOS and allowing ships of all
states the right of innocent passage
Other provisions of the Constitution that

are said to be violated are:
1. Art. II, sec. 7 on the
independent foreign policy;
pursuit
of
2. Art. II. Sec. 8 on the policy of freedom

from nuclear weapons in Philippine
territorysince foreign ships of all
kinds to navigate in Philippine waters
including nuclear-powered submarines,
nuclear-powered warships and other
ships carrying weapons-grade nuclear
substances (UNCLOS Art. 52 in relation
to Arts. 20, 22, 23);
3. Art. II, sec, 16 on the policy of a
balanced and healthful ecology;
4. Art. XII, sec. 2 on marine wealth and
5. Art. XIII, sec. 7 on the protection on
offshore fishing grounds for fishermen.
III.VIOLENCE
AGAINST
WOMEN
(VAW) AS A FORM OF TORTURE*
State acquiescence in domestic violence can
take many forms, some of which may be
subtly disguised. For instance, Civil laws
that appear to have little to do with violence
also have an impact on womens ability to
protect themselves and assert their rights.
Laws that restrict womens right to divorce
or inheritance, or that prevent them from
gaining custody of their children, receiving
financial compensation or owning property,
all serve to make women dependent upon
men and limit their ability to leave a violent
situationStates
should
be
held
accountable for complicity in violence
against women, whenever they create and
implement discriminatory laws that may
trap women in abusive circumstances
Nowak, Manfred, Special Rapporteur, Report on
Torture and Other Cruel, Inhuman or Degrading
Treatment Or Punishment for Item 3 of the
Provisional Agenda: Promotion and Protection of All
Human Rights, Civil, Including The Right To
Development during the Seventh Session of the United
Nations Human Rights Council last January 15, 2008.
*
Page 311 of 313
Republic Act 9522 was enacted to comply

with the deadline set by the United Nations
Convention of the Law of the Sea (UNCLOS)
for member states to draw its baselines as a
result of the Third United Nations
Conference on the Law of the Sea in 1973
(the UNCLOS III regime).
(UNCLOS Art. 52) and the right of

archipelagic sea lanes passage, i.e., the
rights of navigation and overflight solely for
the purpose of continuous, expeditious,
and unobstructed transit between one part
of the high seas or an exclusive economic
zone and another part of the high seas or
an exclusive economic zone (UNCLOS Art.
53).
State responsibility may also be engaged if

domestic laws fail to provide adequate
protection against any form of torture and
ill-treatment in the home.
International
law
has
developed
considerably over the years to become more
gender-inclusive. In 1996, the Special
Rapporteur on violence against women
stated that: the argument that domestic
violence should be understood and treated
as a form of torture and, when less severe,
ill-treatment,
is
one
that
deserves
consideration by the rapporteurs and treaty
bodies that investigate these violations
together perhaps with appropriate NGO
experts and jurists.
In 2000, the Human Rights Committee
indicated that domestic violence can
give rise to violations of the right not to
be subjected to torture or ill-treatment
under article 7 of the ICCPR.
In line with this statement the Committee
has mentioned the need for States to adopt
specific legislation combating domestic
violence, including legislation criminalizing
marital rape. More specifically, it has called
upon States to ensure that their justice
systems incorporate restraining orders to
protect
women
from
violent
family
members, provide shelters and other
support to victims, establish measures to
encourage women to report domestic
violence to the authorities, and offer
material and psychological relief to the
victims.
Page 312 of 313
REVIEWER IN PUBLIC
Appendices
Appendix 1
STRAIGHT AND NORMAL BASELINES
For States A and B, normal baselines

baselinesthe lines depicting the low water lineare
are used.
For State C, combinations of normal and straight baselines are used. Straight baselines are
employed on the part of the coast which is fringed with islets.
Appendix 2
CONTINENTAL SHELF AND

D THE MARITIME ZONES
- end of Public International Law - end of Political Law -
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REVIEWER IN POLITICAL LAW

PART I: CONSTITUTIONAL LAW I

CHAPTER III. NATIONAL

CHAPTER IV. CURRENT EVENTS

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PART II: CONSTITUTIONAL LAW II

IV. Three Standards of Judicial

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H. Right Against SelfIncrimination

A. Clear and Present Danger

CHAPTER XI. LIBERTY OF ABODE

CHAPTER XII.RA 9372: HUMAN

APPENDIX: B.P. 880

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PART III: ADMINISTRATIVE LAW

7. Availability of Judicial Review

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PART IV: LOCAL GOVERNMENT LAW

CHAPTER IV. LOCAL INITIATIVE

CHAPTER V. MUNICIPAL LIABILITY

LOCAL GOVERNMENT LAW

CHAPTER III. GENERAL POWERS

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PART V: LAW ON PUBLIC OFFICERS

CHAPTER III. FORMATION OF

CHAPTER II. ELIGIBILITY AND

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PART VI: ELECTION LAW

CHAPTER IV. PRE-ELECTION

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Partisan Political Activity

CHAPTER VI. ELECTION PROPER

CHAPTER VII. MODES OF

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PUBLIC INTERNATIONAL LAW

B. Conduct Attributable to the

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CHAPTER VIII. THE USE OF FORCE

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CHAPTER II. STRUCTURE AND

CHAPTER III. NATIONAL

CHAPTER IV. CURRENT EVENTS

CHAPTER I. THE STATE

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Chapter I. The State

LOGO, COVER AND TEMPLATE DESIGN

PRINTING AND DISTRIBUTION

2) All other territories over which the

A.1987 Const., Art. I

*Image taken from:

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Refer to PIL, Chap. 12, II for further

3. Citizens, as used in:

Qua Chee Gan v Deportation

ii. Civilian authority is, at all times,

supreme over the military. The

2. Electors, as used in:

Chapter I. The State

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4. Grounds for Loss of Citizenship

who are born to Filipino mothers and

Chapter I. The State