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POLITICAL AND

PUBLIC
INTERNATIONAL
LAW

2014 GOLDEN NOTES


UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
MANILA
The UST GOLDEN NOTES is the annual student-edited bar review
material of the University of Santo Tomas, Faculty of Civil Law,
thoroughly reviewed by notable and distinct professors in the
field. Communications regarding the NOTES should be addressed
to the Academics Committee of the Team: Bar-Ops.

ADDRESS: Academics Committee


Team Bar-Ops
Faculty of Civil Law
University of Santo Tomas
Espaa, Manila 1008

TEL. NO.: (02) 731-4027


(02) 4061611 loc. 8578

Academics Committee
Faculty of Civil Law
University of Santo Tomas
Espaa, Manila 1008

All Rights Reserved by the Academics Committee of the Faculty of Civil Law of the
Pontifical and Royal University of Santo Tomas, the Catholic University of the
Philippines.

2014 Edition

No portion of this material may be copied or reproduced in books, pamphlets, outlines


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A copy of this material without the corresponding code either proceeds from an illegal
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No. __________

Printed in the Philippines, June 2014.


ACADEMIC YEAR 2014-2015

CIVIL LAW STUDENT COUNCIL


VICTOR LORENZO L. VILLANUEVA PRESIDENT
GLORIA ANASTASHA T. LASAM VICE PRESIDENT INTERNAL
JOHN ROBIN G. RAMOS TREASURER
RAE GENEVIEVE L. ACOSTA AUDITOR
RAFAEL LORENZ S. SANTOS CHIEF-OF-STAFF

TEAM: BAR-OPS
VANESSA ANNE VIRAY CHAIRPERSON
ERIKA PINEDA HEAD, DOCUMENTATIONS & BAR REQUIREMENTS
JOHN LESTER TAN ASST. HEAD, DOCUMENTATIONS & BAR REQUIREMENTS
HAZEL NAVAREZ HEAD, HOTEL ACCOMODATIONS COMMITTEE
HANNAH QUIAMBAO ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
JULIA THERESE MAGARRO ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
RAFAEL LORENZ SANTOS HEAD, FINANCE COMMITTEE
DEXTER SUYAT ASST. HEAD, FINANCE COMMMITTEE
AL MAYO PAGLINAWAN HEAD, LOGISTICS COMMITTEE
ALBERTO VERNON VELASCO ASST. HEAD, LOGISTICS COMMITTEE
KEVIN TIMOTHY PILE ASST. HEAD, LOGISTICS COMMITTEE
JEAN PEROLA HEAD, PUBLIC RELATIONS
PATRICIA LACUESTA ASST. HEAD, PUBLIC RELATIONS
REINALD VILLARAZA ASST. HEAD, PUBLIC RELATIONS

ATTY. AL CONRAD B. ESPALDON


ADVISER
ACADEMICS COMMITTEE
MARY GRACE L. JAVIER
JAMES BRYAN V. ESTELEYDES EXECUTIVE COMMITTEE
MA. SALVE AURE M. CARILLO

WILLIAM RUSSEL S. MALANG SECRETARY GENERAL

KAREN T. ELNAS ADMINISTRATION AND FINANCE


RAFAEL LORENZ S. SANTOS LAYOUT AND DESIGN
VICTOR LORENZO L. VILLANUEVA

POLITICAL LAW COMMITTEE


JOHN HENRY N. TAMAYO POLITICAL LAW COMMITTEE HEAD
DEXTER JOHN C. SUYAT POLITICAL LAW, ASST. HEAD
CAMILLE ANGELICA B. GONZALES CONSTITUTIONAL LAW, ASST. HEAD
ANDREA VICTORIA R. AMOG ELECTION, PUBLIC OFFICERS,ADMINISTRATIVE LAW, ASST. HEAD
REUBEN BERNARD M. SORIANO PUBLIC CORPORATION LAW, ASST. HEAD
LESLIE ANN D. JOSE PUBLIC INTERNATIONAL LAW, ASST. HEAD
EMMA RUBY J. AGUILAR MEMBER
SONIA MAE C. BALBABOCO MEMBER
MA. KRISTINA JIHAN C. BANA MEMBER
KATRINA MARIE S. DELA CRUZ MEMBER
ERIKA DENICE G. ONG MEMBER
ERINN MARIEL C. PEREZ MEMBER
MA. CIELO R. SANTOS MEMBER
GEMMA F. TIAMA MEMBER

ATTY. AL CONRAD B. ESPALDON


ADVISER
FACULTY OF CIVIL LAW
UNIVERSITY OF SANTO TOMAS

ACADEMIC OFFICIALS

ATTY. NILO T. DIVINA REV. FR. ISIDRO C. ABAO, O.P.


DEAN REGENT

ATTY. ARTHUR B. CAPILI


FACULTY SECRETARY

ATTY. ELGIN MICHAEL C. PEREZ


LEGAL COUNSEL
UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC

JUDGE PHILIP A. AGUINALDO


SWDB COORDINATOR

LENY G. GADANIA, R.G.C.


GUIDANCE COUNSELOR
OUR DEEPEST APPRECIATION TO OUR
MENTORS & INSPIRATION

JUSTICE AMY LAZARO-JAVIER

JUSTICE OSWALDO D. AGCAOILI

ATTY. ENRIQUE V. DELA CRUZ

ATTY. RENE B. GOROSPE

ATTY. VICTORIA V. LOANZON

ATTY. RAFAELITO M. GARAYBLAS

ATTY. EDWIN R. SANDOVAL

ATTY. MAURICIO C. ULEP

For being our guideposts in understanding the intricate


sphere of Political Law.
- Academics Committee 2014
March on with confidence, head up high, a
smile on your face and faith in yourself. The Bar
exercise is just a good opportunity to prove and
improve yourself. It is not an adversary but an
ally, and even if it were, it is one that you can
persuade and convince to become a lifelong
friend.

- Atty. Rene B. Gorospe


COVERAGE
POLITICAL AND INTERNATIONAL LAW
2014 BAR EXAMINATIONS

I. The Philippine Constitution............................................................................................................... 1


A. Constitution: definition, nature and concepts .. 1
B. Parts . 1
C. Amendments and revisions .. 2
D. Self-executing and non-self-executing provisions 3
E. General provisions . 4

II. General Considerations..................................................................................................................... 5


A. National territory . 5
1. Archipelagic doctrine . 5
B. State immunity . 6
C. General principles and state policies .... 10
D. Separation of powers ... 15
E. Checks and balances .. 17
F. Delegation of powers .. 17
G. Forms of government .... 19

III. Legislative Department ..................................................................................................................... 22


A. Who may exercise legislative power . 22
1. Congress
2. Regional/Local legislative power
3. Peoples initiative on statutes
a) Initiative and referendum
4. The President under a martial law rule or in a revolutionary government
B. Houses of Congress ... 22
1. Senate
2. House of Representatives
a) District representatives and questions of apportionment
b) Party-list system
C. Legislative privileges, inhibitions and disqualifications ......... 28
D. Quorum and voting majorities .. 30
E. Discipline of members .... 32
F. Electoral tribunals and the Commission on Appointments ... 32
1. Nature
2. Powers
G. Powers of Congress . 35
1. Legislative 35
a) Legislative inquiries and the oversight functions
b) Bicameral conference committee
c) Limitations on legislative power
(i) Limitations on revenue, appropriations and tariff measures
(ii) Presidential veto and Congressional override
2. Non-legislative ....................................... 43
a) Informing function
b) Power of impeachment
c) Other non-legislative powers

IV. Executive Department........................................................................................................................ 46


A. Privileges, inhibitions and disqualifications ...................... 46
1. Presidential immunity
2. Presidential privilege
B. Powers........................... 51
1. Executive and administrative powers in general
2. Power of appointment
a) In general
b) Commission on Appointments confirmation
c) Midnight appointments
d) Power of removal
3. Power of control and supervision
a) Doctrine of qualified political agency
b) Executive departments and offices
c) Local government units
4. Military powers
5. Pardoning power
a) Nature and limitations
b) Forms of executive clemency
6. Diplomatic power
7. Powers relative to appropriation measures
8. Delegated powers
9. Veto powers
10. Residual powers
11. Executive privilege
C. Rules of Succession .... 61

V. Judicial Department........................................................................................................................... 63
A. Concepts . 63
1. Judicial power
2. Judicial review
a) Operative fact doctrine
b) Moot questions
c) Political question doctrine
B. Safeguards of Judicial independence .......... 66
C. Judicial restraint ......... 67
D. Appointments to the Judiciary ...... 67
E. Supreme Court ........ 68
1. En banc and division cases
2. Procedural rule-making
3. Administrative supervision over lower courts
4. Original and appellate jurisdiction
F. Judicial privilege ......... 69

VI. Constitutional Commissions..................................................................................................... 71


A. Constitutional safeguards to ensure independence of commissions ..... 71
B. Powers and functions of each commission ........... 71
C. Prohibited offices and interests ... 73
D. Jurisdiction of each constitutional commission .. 73
E. Review of final orders, resolutions and decisions 74
1. Rendered in the exercise of quasi-judicial functions
2. Rendered in the exercise of administrative functions

VII. Bill of Rights .................................................................................................... 76


A. Fundamental powers of the state (police power, eminent domain, taxation) . 76
1. Concept, application and limits
2. Requisites for valid exercise
3. Similarities and differences
4. Delegation.
B. Private acts and the Bill of Rights . 82
C. Due process the rights to life, liberty & property 83
1. Relativity of due process
2. Procedural and substantive due process
3. Constitutional and statutory due process
4. Hierarchy of rights
5. Judicial standards of review
6. Void-for-vagueness doctrine
D. Equal protection .. 87
1. Concept
2. Requisites for valid classification
3. Standards of judicial review
a) Rational Basis Test
b) Strict Scrutiny Test
c) Intermediate Scrutiny Test
E. Searches and seizures .......... 90
a) Concept
b) Warrant requirement
c) Requisites
d) Warrantless searches
e) Warrantless arrests
f) Administrative arrests
g) Drug, alcohol and blood tests
F. Privacy of communications and correspondence ......... 98
1. Private and public communications
2. Intrusion, when allowed
3. Writ of habeas data
G. Freedom of expression ...... 100
1. Concept and scope
a) Prior restraint (censorship)
b) Subsequent punishment
2. Content-based and content-neutral regulations
a) Tests
b) Applications
3. Facial challenges and the overbreadth doctrine
4. Tests
5. State regulation of different types of mass media
6. Commercial speech
7. Private v. government speech
8. Hecklers veto
H. Freedom of religion ..... 110
1. Non-establishment clause
a) Concept and basis
b) Acts permitted and not permitted by the clause
c) Test
2. Free exercise clause
3. Tests
a) Clear and Present Danger Test
b) Compelling State Interest Test
c) Conscientious Objector Test
I. Liberty of abode and freedom of movement ..... 113
1. Limitations
2. Right to travel
a) Watch-list and hold departure orders
3. Return to ones country
J. Right to information .... 116
1. Limitations
2. Publication of laws and regulations
3. Access to court records
4. Right to information relative to:
a) Government contract negotiations
b) Diplomatic negotiations
K. Right of association ...... 117
L. Eminent domain ...... 77
1. Concept
2. Expansive concept of public use
3. Just compensation
a) Determination
b) Effect of delay
4. Abandonment of intended use and right of repurchase
5. Miscellaneous application
M. Contract clause ............. 117
1. Contemporary application of the contract clause
N. Legal assistance and free access to courts .......... 118
O. Rights of suspects ......... 119
1. Availability
2. Requisites
3. Waiver
P. Rights of the accused ...... 120
1. Criminal due process
2. Bail
3. Presumption of innocence
4. Right to be heard
5. Assistance of counsel
6. Right to be informed
7. Right to speedy, impartial and public trial
8. Right of confrontation
9. Compulsory process
10. Trials in absentia
Q. Writ of habeas corpus ........ 127
R. Writs of amparo, habeas data, and kalikasan ........... 128
S. Self-incrimination clause
1. Scope and coverage
a) Foreign laws
2. Application
3. Immunity statutes
T. Involuntary servitude and political prisoners ........... 134
U. Excessive fines and cruel and inhuman punishments ...... 134
V. Non-imprisonment for debts ..... 134
W. Double jeopardy ........ 135
1. Requisites
2. Motions for reconsideration and appeals
3. Dismissal with consent of accused
X. Ex post facto laws and bills of attainder ........ 137

VIII. Citizenship......................................................................................................... 139


A. Who are Filipino citizens
B. Modes of acquiring citizenship
C. Naturalization and denaturalization
D. Dual citizenship and dual allegiance
E. Loss and re-acquisition of Philippine citizenship
F. Natural-born citizens and public office
IX. Law on Public Officers ......................................................................................................................... 146
A. General principles ... 148
B. Modes of acquiring title to public office ..... 148
C. Modes and kinds of appointment ..... 148
D. Eligibility and qualification requirements ... 151
E. Disabilities and inhibitions of public officers ....152
F. Powers and duties of public officers ........ 154
G. Rights of public officers ........ 155
H. Liabilities of public officers ... 156
1. Preventive suspension and back salaries
2. Illegal dismissal, reinstatement and back salaries
I. Immunity of public officers ... 158
J. De facto officers ...... 159
K. Termination of official relation ..... 161
L. The Civil Service .... 163
1. Scope
2. Appointments to the civil service
3. Personnel actions
M. Accountability of public officers ....167
1. Impeachment
2. Ombudsman (Secs. 5 to 14, Art. XI of the 1987 Constitution, in relation to R.A. No. 6770, or otherwise
known as "The Ombudsman Act of 1989.")
a) Functions
b) Judicial review in administrative proceedings
c) Judicial review in penal proceedings
3. Sandiganbayan
4. Ill-gotten wealth
N. Term limits ... 174

X. Administrative Law ............................................................................................................................175


A. General principles ... 175
B. Administrative agencies .. 175
1. Definition
2. Manner of creation
3. Kinds
C. Powers of administrative agencies ..... 176
1. Quasi-legislative (rule-making) power
a) Kinds of administrative rules and regulations
b) Requisites for validity
2. Quasi-judicial (adjudicatory) power
a) Administrative due process
b) Administrative appeal and review
c) Administrative res judicata
3. Fact-finding, investigative, licensing and rate-fixing powers
D. Judicial recourse and review ... 183
1. Doctrine of primary administrative jurisdiction
2. Doctrine of exhaustion of administrative remedies
3. Doctrine of finality of administrative action

XI. Election Law ...................................................................................................................................... 187


A. Suffrage .. 187
B. Qualification and disqualification of voters .. 188
C. Registration of voters 188
D. Inclusion and exclusion proceedings ..... 192
E. Political parties ............. 193
1. Jurisdiction of the COMELEC over political parties
2. Registration
F. Candidacy ........ 194
1. Qualifications of candidates
2. Filing of certificates of candidacy
a) Effect of filing
b) Substitution of candidates
c) Ministerial duty of COMELEC to receive certificate
d) Nuisance candidates
e) Petition to deny or cancel certificates of candidacy
f) Effect of disqualification
g) Withdrawal of candidates
G. Campaign ... 199
1. Premature campaigning
2. Prohibited contributions
3. Lawful and prohibited election propaganda
4. Limitations on expenses
5. Statement of contributions and expenses
H. Board of Election Inspectors and Board of Canvassers ....... 206
1. Composition
2. Powers
I. Remedies and jurisdiction in election law ........ 209
1. Petition not to give due course to or cancel a certificate of candidacy
2. Petition for disqualification
3. Petition to declare failure of elections
4. Pre-proclamation controversy
5. Election protest
6. Quo warranto
J. Prosecution of election offenses ..... 215

XII. Local Governments............................................................................................................................ 217


A. Public corporations .... 217
1. Concept
a) Distinguished from government-owned or controlled corporations
2. Classifications
a) Quasi-corporations
b) Municipal corporations
B. Municipal corporations ...... 218
1. Elements
2. Nature and functions
3. Requisites for creation, conversion, division, merger or dissolution
C. Principles of local autonomy ...... 222
D. Powers of local government units (LGUs) ............. 223
1. Police power (general welfare clause)
2. Eminent domain
3. Taxing power
4. Closure and opening of roads
5. Legislative power
a) Requisites for valid ordinance
b) Local initiative and referendum
6. Corporate powers
a) To sue and be sued
b) To acquire and sell property
c) To enter into contracts
(i) Requisites
(ii) Ultra vires contracts
7. Liability of LGUs
8. Settlement of boundary disputes
9. Succession of elective officialS
10. Discipline of local officials
a) Elective officials
(i) Grounds
(ii) Jurisdiction
(iii) Preventive suspension
(iv) Removal
(v) Administrative appeal
(vi) Doctrine of condonation
b) Appointive officials
11. Recall
12. Term limits

XIII. National Economy and Patrimony...................................................................................................... 245


A. Regalian doctrine
B. Nationalist and citizenship requirement provisions
C. Exploration, development and utilization of natural resources
D. Franchises, authority and certificates for public utilities
E. Acquisition, ownership and transfer of public and private lands
F. Practice of professions
G. Organization and regulation of corporations, private and public
H. Monopolies, restraint of trade and unfair competition

XIV. Social Justice and Human Rights......................................................................................................... 254


A. Concept of social justice ...........................................................
B. Commission on Human Rights ...........................................................

XV. Education, Science, Technology, Arts, Culture and Sports ... 256
A. Academic freedom...........................................................

XVI. Public International Law..................................................................................................................... 259


A. Concepts .... 259
1. Obligations erga omnes
2. Jus cogens
3. Concept of ex aequo et bono
B. International and national law ...... 260
C. Sources ... 261
D. Subjects ........ 262
1. States
2. International organizations
3. Individuals
E. Diplomatic and consular law ... 268
F. Treaties ... 272
G. Nationality and statelessness ..... 275
1. Vienna Convention on the Law of Treaties
H. State responsibility .... 276
1. Doctrine of state responsibility
I. Jurisdiction of States ....... 278
1. Territoriality principle
2. Nationality principle and statelessness
3. Protective principle
4. Universality principle
5. Passive personality principle
6. Conflicts of jurisdiction
J. Treatment of aliens .... 279
1. Extradition
a) Fundamental principles
b) Procedure
c) Distinguished from deportation
K. International Human Rights Law 281
1. Universal Declaration of Human Rights
2. International Covenant on Civil and Political Rights
3. International Covenant on Economic, Social and Cultural Rights
L. International Humanitarian Law and neutrality . 283
1. Categories of armed conflicts
a) International armed conflicts
b) Internal or non-international armed conflict
c) War of national liberation
2. Core international obligations of states in International Humanitarian Law
3. Principles of International Humanitarian Law
a) Treatment of civilians
b) Prisoners of war
4. Law on neutrality
M. Law of the sea ... 294
1. Baselines
2. Archipelagic states
a) Straight archipelagic baselines
b) Archipelagic waters
c) Archipelagic sea lanes passage
3. Internal waters
4. Territorial sea
5. Exclusive economic zone
6. Continental shelf
a) Extended continental shelf
7. International Tribunal for the Law of the Sea
N. Madrid Protocol and the Paris Convention for the Protection of Industrial Property .. 307
O. International environmental law 308
1. Principle 21 of the Stockholm Declaration
P. International economic law 310
DISCLAIMER

THE RISK OF USE, MISUSE OR NON-


USE OF THIS BAR REVIEW MATERIAL
SHALL BE BORNE BY THE USER/
NON-USER.
THE PHILIPPINE CONSTITUTION

THE PHILIPPINE CONSTITUTION NOTE: The Philippine Constitution is written, enacted,


and rigid.

CONSTITUTION: Ways to interpret the Constitution


DEFINITION, NATURE AND CONCEPTS
1. Verba legis Whenever possible, the words used
Political Law in the Constitution must be given their ordinary
meaning except where technical terms are
Branch of public law that deals with the organization employed.
and operations of the governmental organs of the 2. Ratio legis et anima Where there is ambiguity,
State and defines its relations with the inhabitants of the words of the Constitution should be
the territory. (People v. Perfecto, G.R. No. L-18463, interpreted in accordance with the intent of the
October 4, 1922) framers.
3. Ut magis valeat quam pereat The Constitution
Scope of Political Law has to be interpreted as a whole. (Francisco v. HR,
G.R. No. 160261, November 10, 2003)
1. Political Law
2. Constitutional Law NOTE: In case of doubt, the provisions of the Constitution
3. Administrative Law should be construed as self-executing; mandatory rather
4. Law on Municipal Corporations than directory; and prospective rather than retroactive.
5. Law on Public Officers
A provision is not self-executing when it merely indicates the
6. Election laws principles without laying down rules giving them the force of
7. Public International Law law.

Constitution The provisions of the Constitution are to be considered as


self-executing because if they are not treated as such, the
The basic and paramount law to which all other laws legislature can ignore and practically nullify the direction of
must conform and to which all persons, including the the fundamental law.
highest officials, must defer.
Doctrine of Constitutional Supremacy
Effectivity date of the present Constitution
If a law or contract violates any norm of the
Took effect on February 2, 1987, which was the date Constitution, that law or contract, whether
of the plebiscite. (De Leon v. Esguerra, G.R. No. L- promulgated by the legislative or by the executive
78059, August 31, 1987) branch or entered into by private persons for private
purposes, is null and void and without any force and
Classifications of the Constitution effect. Thus, since the Constitution is the
fundamental, paramount and supreme law of the
1. Written Precepts are embodied in one nation, it is deemed written in every statute and
document or set of documents. contract. (Manila Prince Hotel v. GSIS, G.R. No. 122156,
Unwritten Consists of rule, which have not been February 3, 1997)
integrated into a single, concrete form but are
scattered in various sources. PARTS

2. Enacted (Conventional) Formally struck off at a Parts of a Written Constitution


definite time and place following a conscious or
deliberate effort taken by a constituent body or 1. Constitution of Sovereignty This refers to the
ruler. provisions pointing out the modes or procedure in
Evolved (Cumulative) Result of political accordance with which formal changes in the
evolution, not inaugurated at any specific time but Constitution may be made. (Art. XVII,
changing by accretion rather than by any Amendments or Revisions)
systematic method. 2. Constitution of Liberty The series of
prescriptions setting forth the fundamental civil
3. Rigid Can be amended only by a formal and and political rights of the citizens and imposing
usually difficult process. limitations on the power of the government as a
Flexible Can be changed by ordinary legislation. means of securing the enjoyment of those rights.
(Art. III, Bill of Rights)

UNIVERSITY OF SANTO TOMAS


1 FACULTY OF CIVIL LAW
Political and International Law

3. Constitution of Government Provides for a NOTE: Congress may call a ConCon:


structure and system of government; refers to the 1. By a vote of 2/3 of all its members; or
provisions outlining the organization of the 2. By a majority vote of all its members, submit such
question to the electorate.
government, enumerating its powers, laying
down certain rules relative to its administration
If Congress, acting as a ConAss, calls for a ConCon but
and defining the electorate. (Art. VI, Legislative does not provide details for the calling of such ConCon,
Dept, Art. VII, Exec. Dept, Art. VIII, Judicial Dept, Congress by exercising its ordinary legislative power
Art. IX, Constitutional Commissions) may supply such details. But in so doing, the Congress
(as legislature) should not transgress the resolution of
AMENDMENT AND REVISION Congress acting as a ConAss.

Amendment v. Revision The choice between ConAss or ConCon is left to the


discretion of Congress. In other words, it is a political
question, but the manner of calling a ConCon is subject
AMENDMENT REVISION to judicial review because the Constitution has
Isolated or piecemeal A revamp or rewriting provided for voting requirements.
change merely by adding, of the whole
deleting, or reducing instrument altering the c. By Peoples Initiative upon a petition of at
without altering the basic substantial entirety of least 12% of the total number of registered
principles involved. the Constitution. voters, of which every legislative district must
be represented by 3% of the registered voters
Tests to determine whether a proposed change is an therein.
amendment or a revision
2. Ratification Amendments or revisions to the
1. Quantitative test Asks whether the proposed Constitution should be ratified by the majority in
change is as extensive in its provisions as to a plebiscite which should be held not earlier than
change directly the substantial entirety of the 60 days nor later than 90 days after the approval
Constitution by the deletion or alteration of of such amendment.
numerous existing provisions. One examines only
the number of provisions affected and does not Requisites for a valid ratification
consider the degree of the change.
2. Qualitative test Asks whether the change will 1. Held in a plebiscite conducted under Election Law
accomplish such far reaching changes in the 2. Supervised by COMELEC
nature of our basic governmental plan as to 3. Where only registered voters take part
amount to a revision. (Lambino v. Comelec, G.R.
No. 174153, October 25, 2006) NOTE:
GR: Presidential proclamation is not required for effectivity
Ways to amend or revise the Constitution of amendments/revisions.

XPN: Proposed amendment/revision provides otherwise.


1. Proposal
a. By Congress upon a vote of of all its
Doctrine of Proper Submission
members acting as Constituent Assembly
(ConAss)
A plebiscite may be held on the same day as a regular
election (Gonzales v. COMELEC, G.R. No. L-28196,
NOTE: The substance of the proposals is not
subject to judicial review since what to propose is
November 9, 1967), provided the people are
left to the wisdom of the ConAss. sufficiently informed of the amendments to be voted
upon, for them to conscientiously deliberate thereon,
The manner the proposals are made is subject to to express their will in a genuine manner. Submission
judicial review. of piece-meal amendments is unconstitutional. All
amendments must be submitted for ratification in one
Since ConAss owes their existence to the plebiscite only. The people have to be given a proper
Constitution, the courts may determine whether frame of reference in arriving at their decision.
the assembly has acted in accordance with the
(Tolentino v. COMELEC, G.R. No. L-34150, October 16,
Constitution.
1971)
b. By Constitutional Convention (ConCon)

UNIVERSITY OF SANTO TOMAS


2014 GOLDEN NOTES 2
THE PHILIPPINE CONSTITUTION

Initiative and local laws, it intentionally did not do so on the


system of initiative on amendments to the
Power of the people to propose amendments to the Constitution. (Defensor-Santiago v. COMELEC, G.R. No.
Constitution or to propose and enact legislation. 127325, March 19, 1997)

Kinds of initiative under the Initiative and Referendum


Referendum Act (RA 6735)
Power of the electorate to approve or reject legislation
1. Initiative on the Constitutionrefers to a petition through an election called for that purpose.
proposing amendments to the Constitution.
2. Initiative on statutesrefers to a petition to enact Kinds of referendum
a national legislation.
3. Initiative on local legislationrefers to a petition 1. Referendum on Statutes- Refers to a petition to
proposing to enact a regional, provincial, approve or reject a law, or part thereof, passed by
municipal, city, or barangay law, resolution or Congress.
ordinance. (Sec. 2 [a], RA 6735) 2. Referendum on Local Law- Refers to a petition to
approve or reject a law, resolution or ordinance
NOTE: Sec. 2 (b) of RA 6735 provides for: enacted by regional assemblies and local
a. Indirect Initiative- Exercise of initiative by the people legislative bodies.
through a proposition sent to Congress or the local
legislative body for action. NOTE: The following cannot be subject of an initiative or
b. Direct Initiative- The people themselves filed the referendum:
petition with the COMELEC and not with Congress. a. Petition embracing more than one subject shall be
(Ibid.) submitted to the electorate.
b. Statutes involving emergency measures, the enactment
Inadequacy of the RA 6735 in covering the system of of which is specifically vested in Congress by the
initiative on amendments to the Constitution Constitution, cannot be subject to referendum until 90
days after their effectivity. (Sec. 10, RA 6735)
Under the said law, initiative on the Constitution is
confined only to proposals to amend. The people are Initiative v. Referendum
not accorded the power to "directly propose, enact,
approve, or reject, in whole or in part, the INITIATIVE REFERENDUM
Constitution" through the system of initiative. They The power of the Power of the electorate
can only do so with respect to "laws, ordinances, or people to propose to approve or reject
resolutions." Secondly, the Act does not provide for amendments to the legislation through an
the contents of a petition for initiative on the Constitution or to election called for that
Constitution. The use of the clause "proposed laws propose and enact purpose. (Sec. 3, RA No.
sought to be enacted, approved or rejected, amended legislations through an 6735 [1989])
or repealed" denotes that RA 6735 excludes initiative election called for the
on the amendments of the Constitution. purpose.

Also, while the law provides subtitles for National Local initiative v. Local referendum
Initiative and Referendum and for Local Initiative and
Referendum, no subtitle is provided for initiative on LOCAL INITIATIVE LOCAL REFERENDUM
the Constitution. This means that the main thrust of The legal process The legal process
the law is initiative and referendum on national and whereby the registered whereby the registered
local laws. If RA 6735 were intended to fully provide voters of a local voters of the local
for the implementation of the initiative on government unit may government units may
amendments to the Constitution, it could have directly propose, enact, approve, amend or
provided for a subtitle therefor, considering that in the or amend any reject any ordinance
order of things, the primacy of interest, or hierarchy of ordinance. (Sec. 120) enacted by the
values, the right of the people to directly propose Sanggunian. (Sec. 126)
amendments to the Constitution is far more important
than the initiative on national and local laws.

While RA 6735 specially detailed the process in


implementing initiative and referendum on national

UNIVERSITY OF SANTO TOMAS


3 FACULTY OF CIVIL LAW
Political and International Law

SELF-EXECUTING AND NON-SELF-EXECUTING


PROVISIONS

Self-executing provisions of the Constitution

1. Provisions in the Bill of Rights on arrests, searches


and seizures, the rights of a person under
custodial investigation, the rights of an
accused, and the privilege against self-
incrimination;
2. Fundamental rights of life, liberty and the
protection of property;
3. Provisions forbidding the taking or damaging of
property for public use without just
compensation.

NOTE:
GR: A constitutional provision is self-executing.

XPNs: Where it merely announces a policy and its language


empowers the legislature to prescribe the means by which
the policy shall be carried into effect:

a. Art. II on "Declaration of Principles and State Policies".

XPN to the XPN: Sec. 16, Art. II - Right of the people to


a balanced and healthful ecology in accord with the
rhythm and harmony of nature. (Oposa v. Factoran,
G.R. No. 101083, July 30, 1993)

b. Art. XIII on "Social Justice and Human Rights".


c. Art. XIV on "Education Science and Technology, Arts,
Culture end Sports". (Manila Prince Hotel v. GSIS, G.R.
122156, February 3, 1997)

GENERAL PROVISIONS

Symbols of nationality

1. Philippine Flag the flag may be changed by


constitutional amendment
2. Name for the country
3. National anthem
4. National seal

NOTE: Congress may, by law, adopt new symbols in numbers


2, 3 and 4 subject to ratification by the People in a
referendum.

UNIVERSITY OF SANTO TOMAS


2014 GOLDEN NOTES 4
GENERAL CONSIDERATIONS

GENERAL CONSIDERATIONS virtue of the military bases agreement of 1947. They


are not and cannot be foreign territory.
NATIONAL TERRITORY
Not even the embassy premises of a foreign power are
to be considered outside the territorial domain of the
Territory
host state. The ground occupied by an embassy is not
in fact the territory of the foreign State to which the
Fixed portion of the surface of the Earth inhabited by
premises belong through possession or ownership.
the people of the State. As an element of a State, it is
The lawfulness or unlawfulness of acts they committed
an area over which a state has effective control.
is determined by the territorial sovereign. If an attach
commits an offense within the precincts of an
Composition of the Philippine Territory
embassy, his immunity from prosecution is not
because he has not violated the local law, but rather
1. The Philippine archipelago That body of water
for the reason that the individual is exempt from
studded with islands which is delineated in the
prosecution. If a person not so exempt, or whose
Treaty of Paris, as amended by the Treaty of
immunity is waived, similarly commits a crime therein,
Washington and the Treaty with Great Britain.
the territorial sovereign, if it secures custody of the
offender, may subject him to prosecution, even
CONSISTS OF INCLUDING ITS
though its criminal code normally does not
a. Terrestrial 1. Territorial Sea
contemplate the punishment of one who commits an
b. Fluvial 2. Seabed
offense outside of the national domain. It is not
c. Aerial Domains 3. Subsoil
believed, therefore, that an ambassador himself
4. Insular shelves
possesses the right to exercise jurisdiction, contrary to
5. Other Submarine areas
the will of the State of his sojourn, even within his
embassy with respect to acts there committed. Nor is
2. All other territories over which the Philippines has there apparent at the present time any tendency on
sovereignty or jurisdiction Includes any territory the part of States to acquiesce in his exercise of it.
that presently belongs or might in the future
belong to the Philippines through any of the In the light of the above, the crucial error imputed that
accepted international modes of acquiring it should have held that the Clark Air Base is foreign
territory. soil or territory for purposes of income tax legislation
is clearly without support in law. There is nothing in
Components of the National Territory the Military Bases Agreement that lends support to
such an assertion. It has not become foreign soil or
1. Terrestrial Domain territory. This country's jurisdictional rights therein,
2. Maritime Domain certainly not excluding the power to tax, have been
3. Aerial Domain preserved. As to certain tax matters, an appropriate
exemption was provided for. As it ought to be and as
NOTE: RA 9522 which was approved by President Arroyo on it is, Philippine soil or territory, her claim for
March 10, 2009 amended certain provisions of RA 3046, as exemption from the income tax due was distinguished
amended by RA 5446 and defined the archipelagic baselines only by its futility. (William C. Reagan v. Commissioner
of the Philippines. of Internal Revenue, G.R. No. L-26379, December 27,
1969)
Q: An income tax was imposed on Emma Aguilar, an
American. She, however, protested on the imposition ARCHIPELAGIC DOCTRINE
of the income tax arguing that the income was
earned in Clark Air Base, which was considered Archipelagic State
"foreign soil" the same as that of a foreign embassy
in the Philippines, thus, outside of Philippine A state constituted wholly by one or more
jurisdiction. Is Emma Aguilars argument acceptable? archipelagos and may include other islands.

A: No. Clark Air Base and foreign embassies retain Archipelagic Doctrine
their status as native soil. They are still subject to
Philippines authority. Its jurisdiction may be All waters, around between and connecting different
diminished, but it does not disappear. So it is with the islands belonging to the Philippine Archipelago,
bases under lease to the American armed forces by irrespective of their width or dimension, are necessary

UNIVERSITY OF SANTO TOMAS


5 FACULTY OF CIVIL LAW
Political and International Law

appurtenances of its land territory, forming an integral Spratly Group of Islands (SGI) is not part of the
part of the national or inland waters, subject to the Philippine Archipelago because it is too far to be
exclusive sovereignty of the Philippines. included within the archipelagic lines encircling the
internal waters of Philippine Archipelago. The SGI,
It is found in the 2nd sentence of Art. I of the 1987 however, is part of the Philippine territory because it
Constitution. was discovered by a Filipino seaman in the name of
Tomas Cloma who later renounced his claim over it in
The Archipelagic Doctrine emphasizes the unity of the favor of the Republic of the Philippines. Subsequently,
land and waters by defining an archipelago as group of then Pres. Marcos issued a Presidential Decree
islands surrounded by waters or a body of waters constituting SGI as part of the Philippine territory and
studded with islands. sending some of our armed forces to protect said
island and maintain our sovereignty over it.
NOTE: To emphasize unity, an imaginary single baseline is
drawn around the islands by joining appropriate points of SGI and Scarborough Shoal as part of the National
the outermost islands of the archipelago with straight lines Territory
and all islands and waters enclosed within the baseline form
part of its territory.
Art. I of the Constitution provides: The national
territory comprises the Philippine archipelago, x xx,
Purposes of the Archipelagic Doctrine
and all other territories over which the Philippines has
sovereignty or jurisdiction, xxx. The SGI and
a. Territorial Integrity
Scarborough Shoal fall under the second phrase, and
b. National Security
all other territories over which the Philippines has
c. Economic reasons
sovereignty or jurisdiction. It is part of our national
territory because the Philippines exercise sovereignty
NOTE: The main purpose of the archipelagic doctrine is to
protect the territorial interests of an archipelago, that is, to (through election of public officials) over the Spratly
protect the territorial integrity of the archipelago. Without Group of Islands. Moreover, under the Philippine
it, there would be pockets of high seas between some of Baselines Law of 2009 (RA 9522), the Spratly Islands
our islands and islets, thus foreign vessels would be able to and the Scarborough Shoal are classified as islands
pass through these pockets of seas and would have no under the regime of the Republic of the Philippines.
jurisdiction over them. (Philippine Baselines Law of 2009)

Effect of RA 9522 (An Act to Amend Certain Provisions STATE IMMUNITY


of RA 3046, As Amended by RA 5446, To Define the
Archipelagic Baseline of the Philippines and For Other Doctrine of State Immunity
Purposes) on specific description and affirmation of
sovereignty over our national territory The State cannot be sued without its consent. (Sec. 3,
Art. XVI, 1987 Constitution)
RA 9522 amends RA 3046, which defines the baselines
of the territorial sea of the Philippines. The Kalayaan Basis of the Doctrine of State Immunity
Island Group as constituted under PD 1596 and Bajo
de Masinloc, also known as Scarborough Shoal is It reflects nothing less than the recognition of the
determined as Regime of Islands under the Republic sovereign character of the State and an express
of the Philippines consistent with Art. 121 of the affirmation of the unwritten rule effectively insulating
United Convention on the Law of the Sea which states: it from the jurisdiction of courts. It is based on the very
1. An island is a naturally formed area of land, essence of sovereignty. (Department of Agriculture v.
surrounded by water, which is above water at high NLRC, G.R. No. 104269, November 11, 1993)
tide.
2. Except as provided for in par. 3, the territorial sea, NOTE: There can be no legal right against the authority
the contiguous zone, the exclusive economic zone which makes the law on which the right depends. (Republic
and the continental shelf of an island are v. Villasor, G.R. No. L-30671, November 8, 1973) However, it
determined in accordance with the provisions of may be sued if it gives consent, whether express or implied.
this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or This doctrine also applies to foreign governments because of
economic life of their own shall have no exclusive the sovereign equality of all the states. Accordingly,
economic zone or continental shelf. immunity is enjoyed by other States, consonant with the
public international law principle of par in parem non habet
imperium. The head of State, who is deemed the

UNIVERSITY OF SANTO TOMAS


2014 GOLDEN NOTES 6
GENERAL CONSIDERATIONS
personification of the State, is inviolable, and thus, enjoys with the military personnel involved in the
immunity from suit. (JUSMAG Philippines v. NLRC, G.R. No. Mendiola incident instituted an action against
108813, December 15, 1994) the Republic of the Philippines before the trial
court. Respondent Judge Sandoval dismissed the
Remedy of a person who feels aggrieved by the acts complaint on the ground that there was no
of a foreign government waiver by the State. Petitioners argued that the
State has impliedly waived its immunity from
Under both Public International Law and Transnational suit with the recommendation of the
Law, a person who feels aggrieved by the acts of a Commission to indemnify the heirs and victims of
foreign sovereign can ask his own government to the Mendiola incident by the government and by
espouse his cause through diplomatic channels. (Holy the public addresses made by then President
See v. Rosario, Jr., 238 SCRA 524, December 1, 1994) Aquino in the aftermath of the killings. Is the
argument meritorious?
WHEN THE STATE CONSENTS TO BE SUED
A: No. The actions of President Aquino cannot be
Forms of consent deemed as a waiver of State immunity. Whatever
acts or utterances that then President Aquino may
1. Express consent have done or said, the same are not tantamount
a. General law to the State having waived its immunity from suit.
i. Act No. 3083 and CA 327 as amended by The President's act of joining the marchers, days
Secs. 49-50, PD 1445 money claims after the incident, does not mean that there was
arising from contracts which could serve an admission by the State of any liability. In fact to
as a basis of civil action between private borrow the words of petitioners (Caylao group),
parties to be first filed with COA before a "it was an act of solidarity by the government with
suit may be filed in court. The COA must the people". Moreover, petitioners rely on
act upon the claim within 60 days. President Aquino's speech promising that the
Rejection of the claim authorizes the government would address the grievances of the
claimant to elevate the matter to the rallyists. By this alone, it cannot be inferred that
Supreme Court on certiorari. the State has admitted any liability, much less can
ii. Art. 2180, NCC tort committed by it be inferred that it has consented to the suit.
special agent; (Republic v. Sandoval, G.R. No. 84607, March 19,
iii. Art. 2189, NCC LGUs liable for injuries 1993)
or death caused by defective condition of
roads or public works under their b. Special law
control. (City of Manila v. Teotico, G.R. By virtue of PD 1620, the grant of immunity
No. L-23052, January 29, 1968); to IRRI is clear and unequivocal, and express
iv. Sec. 22(2), RA 7160, LGC of 1991 LGUs waiver by its Director General is the only way
have power to sue and be sued; by which it may relinquish or abandon this
v. Sec. 24 of LGC LGUs and their officials immunity. (Callado, v. IRRI, G.R. No. 106483,
are not exempt from liability for death or May 22, 1995)
injury or damage to property.
2. Implied consent
NOTE: The express consent of the State to be sued must a. When the State commences litigation, it
be embodied in a duly-enacted statute and may not be becomes vulnerable to counterclaim. (Froilan
given by a mere counsel of the government. (Republic
v. Pan Oriental Shipping, G.R. No. L-6060,
v. Purisima, G.R. No. L-36084, August 31, 1977)
September 30, 1950)
Q: The members of the Kilusang Mambbukid sa
Q: In a property dispute, the Attorney General of
Pilipinas (KMP) and other members of sectoral
the United States and the defendant-intervenor
organizations clashed with the anti-riot squad
Republic of the Philippines each filed an answer
which resulted to 13 deaths and several
alleging by way of affirmative defense that the
casualties. In the aftermath of the confrontation,
lower court had no jurisdiction over the claim
President Corazon C. Aquino issued AO 11
since the action in that regard constituted a suit
creating the Citizens Mendiola Commission to
against the United Sates to which it had not given
conduct the investigation about the incident. The
its consent. Did the Republic of the Philippines by
commission recommended compensating the
victims. The petitioners (Caylao group) together

UNIVERSITY OF SANTO TOMAS


7 FACULTY OF CIVIL LAW
Political and International Law

its intervention waive its right of immunity from functions. (Department of Agriculture v. NLRC G.R. No.
suit? 104269, November 11, 1993)

A: No. The Republic of the Philippines did not Restrictive Theory of State Immunity from suit
waive its immunity from suit. The Republic of the
Republic of the Philippine intervened in the case The State may be said to have descended to the level
merely to unite the defendant Attorney General of an individual and can thus be deemed to have tacitly
of the United States in resisting plaintiffs claims, given its consent to be sued only when it enters into
and for that reason asked no affirmative relief business contracts. However, the restrictive
against any party in the answer in intervention it application of State immunity is proper only when the
filed, and in its answer to the amended complaint, proceedings arise out of commercial transactions of
"reproduced and incorporated by reference" all the foreign sovereign, its commercial activities or
the affirmative defenses contained in the answer economic affairs. It does not apply where the contract
of the defendant Attorney General, one of which relates to the exercise of its sovereign functions. (US v.
is that the lower court had no jurisdiction over the Ruiz, G.R. No. L-35645, May 22, 1985)
claim for rentals because of lack of consent to be
sued. This is not a case where the state takes the A suit is considered as suit against the State when
initiative against a private party by filing a
complaint in intervention, thereby surrendering 1. The Republic is sued by name;
its privileged position and coming down to the 2. The suit is against an unincorporated government
level of the defendant, but one where the state, agency;
as one of the defendants, merely resisted a claim 3. The suit is on its face against a government officer
against it precisely on the ground among others, but the case is such that ultimate liability will
of its privileged position, which exempts it from belong not to the officer but to the government.
suit. (Lim v. Brownwell, 107 SCRA 345) (Republic v. Sandoval, G.R. No. 84607, March 19,
1993)
b. When State enters into a business contract.
Q: Spouses Bana sued the Philippine National
Capacities of the State in entering into contracts Railways for damages for the death of their son who
fell from an overloaded train belonging to the PNR.
1. In jure gestionis By right of economic or business The trial court dismissed the suit on the ground that
relations; commercial, or proprietary acts. MAY the charter of the PNR, as amended by PD 741, has
BE SUED. (US v. Guinto, G.R. No. 76607, February made the same a government instrumentality, and
26, 1990) thus immune from suit. Is the dismissal proper?
2. In jure imperii By right of sovereign power and in
the exercise of sovereign functions. No implied A: No. The correct rule is that not all government
consent. (US v. Ruiz, No. L-35645, May 22, 1985) entities, whether corporate or non-corporate, are
immune from suits. Immunity from suit is determined
NOTE: In exercising the power of eminent domain, the by the character of the objects for which the entity is
State exercises a power jus imperii, where property has organized. When the government enters into a
been taken without just compensation being paid, the commercial business, it abandons its sovereign
defense of immunity from suit cannot be set up in an
capacity and is to be treated like any other
action for payment by the owner. (Republic v.
corporation. In this case, the State divested itself of its
Sandiganbayan, G.R. No. 90478, November 21, 1991)
sovereign capacity when it organized the PNR which is
Q: Do all contracts entered into by the government no different from its predecessors, the Manila Railroad
operate as a waiver of its non-suability? Company. Thus, PNR is not immune from suit. It did
not remove itself from the operation of Arts. 1732 to
A: No. Distinction must still be made between one 1766 of the Civil Code on common carriers. (Malang v.
which is executed in the exercise of its sovereign PNRC, G.R. No. L-49930, August 7, 1985)
function and another which is done in its proprietary
capacity. A State may be said to have descended to the
level of an individual and can be deemed to have
actually given its consent to be sued only when it
enters into business contracts. It does not apply where
the contract relates to the exercise of its sovereign

UNIVERSITY OF SANTO TOMAS


2014 GOLDEN NOTES 8
GENERAL CONSIDERATIONS

Unincorporarted government agency performing retains the right to raise all lawful defenses. (Philippine
governmental function v. one performing proprietary Rock Industries, Inc. v. Board of Liquidators, G.R. No.
functions 84992, December 15, 1989)

UNINCORPORATED UNINCORPORATED Suability v. Liability of the State


GOVERNMENT AGENCY GOVERNMENT AGENCY
PERFORMING PERFORMING SUABILITY LIABILITY
GOVERNMENTAL PROPRIETARY FUNCTIONS Depends on the consent Depends on the
FUNCTIONS of the State to be sued applicable law and the
Immunity has been Immunity has not been established facts
upheld in its favor upheld in its favor whose The circumstance that a The State can never be
because its function is function was not in State is suable does not held liable if it is not
governmental or pursuit of a necessary necessarily mean that it suable.
incidental to such function of government is liable.
function. but was essentially a
business. (Air Rule on the liabilities of the following:
Transportation Office v.
Spouses David, G.R. No. 1. Public officers By their acts without or in excess
159402, February 23, of jurisdiction: any injury caused by him is his own
2011) personal liability and cannot be imputed to the
State.
NOTE: The Doctrine of State Immunity from suit applies to 2. Government agencies Establish whether or not
complaints filed against public officials for acts done in the the State, as principal which may ultimately be
performance of their duties within the scope of their
held liable, has given its consent.
authority. In which case, the suit filed against the public
official is deemed as a suit against the State. 3. Government Doctrine of State immunity is
available.
GR: The rule is that the suit must be regarded as one against
the state where the satisfaction of the judgment against the Determination of suability of government agencies
public official concerned will require the state to perform a
positive act, such as appropriation of the amount necessary GOVERNMENT AGENCIES SUABILITY
to pay the damages awarded to the plaintiff.
Incorporated agencies Test of suability is stated
XPNs: The rule does not apply where: in their charters. If its
1. The public official is charged in his official capacity for charter says so, it is
acts that are unlawful and injurious to the rights of suable
others. Public officials are not exempt, in their personal Unincorporated Suable if the nature of
capacity, from liability arising from acts committed in government agencies their acts is proprietary
bad faith; or
2. The public official is clearly being sued not in his official
capacity but in his personal capacity, although the acts Instances when a public officer may be sued without
complained of may have been committed while he the States consent
occupied a public position. (Lansang v. CA, G.R. No.
102667, February 23, 2000) 1. To compel him to do an act required by law
2. To restrain him from enforcing an act claimed to
Implications of the phrase waiver of immunity by be unconstitutional
the State does not mean a concession of its liability 3. To compel payment of damages from an already
appropriated assurance fund or to refund tax
When the State gives its consent to be sued, all it over-payments from a fund already available for
does is to give the other party an opportunity to the purpose
show that the State is liable. Accordingly, the phrase 4. To secure a judgment that the officer impleaded
that waiver of immunity by the State does not mean may satisfy the judgment himself without the
a concession of liability means that by consenting to State having to do a positive act to assist him
be sued, the State does not necessarily admit that it is 5. Where the government itself has violated its own
liable. laws because the doctrine of State immunity
cannot be used to perpetrate an injustice
In such a case, the State is merely giving the plaintiff a
chance to prove that the State is liable but the State NOTE: The true test in determining whether a suit against a
public officer is a suit against the State is that, if a public

UNIVERSITY OF SANTO TOMAS


9 FACULTY OF CIVIL LAW
Political and International Law
officer or agency is sued and made liable, the State will have However, principles in Art. II are not intended to be
to perform an affirmative act of appropriating the needed self-executing principles ready for enforcement
amount to satisfy the judgment. If the State will have to do through the courts. They are used by the judiciary as
so, then, it is a suit against the State.
aids or guides in the exercise of its power of judicial
review, and by the legislature in its enactment of laws.
Garnishment of government funds (Tondo Medical v. CA, G.R. No. 167324, July 17, 2007)
GR: Whether the money is deposited by way of XPN: But a provision that is complete in itself, and
general or special deposit, they remain government provides sufficient rules for the exercise of rights, is
funds and are not subject to garnishment. self-executing. Thus, certain provisions in Art. II are
self-executing, one of which is that provided in Sec. 16,
XPN: Where a law or ordinance has been enacted Art. II, The State shall protect and advance the right
appropriating a specific amount to pay a valid of the people to a balanced and healthful ecology in
government obligation, then the money can be accord with the rhythm and harmony of nature.
garnished. (Oposa v. Factoran, supra.) The duty of full public
disclosure is self executing provision. (Province of
NOTE: Funds belonging to government corporations, which
North Cotabato v. GRP G.R. 183591 October 14, 2008)
can sue and be sued and are deposited with a bank, can be
garnished. (PNB v. Pabalan, G.R. No. L-33112, June 15, 1978)
Republican State
If the local legislative authority refuses to enact a law
appropriating the money judgment rendered by the court, A state wherein all government authority emanates
the winning party may file a petition for mandamus to from the people and is exercised by representatives
compel the legislative authority to enact a law. (Municipality chosen by the people. (Dissenting Opinion of Justice
of Makati v. CA, G.R. Nos. 89898-99, October 1, 1990) Puno, G.R. No. 148334, January 21, 2004)

Q: Can the government be made to pay interest in Manifestations of Republicanism


money judgments against it?
1. Ours is a government of laws and not of men.
A: GR: No. 2. Rule of Majority (Plurality in elections)
3. Accountability of public officials
XPNs: 4. Bill of Rights
1. Eminent domain. 5. Legislature cannot pass irrepealable laws
2. Erroneous collection of taxes. 6. Separation of powers
3. Where government agrees to pay interest
pursuant to law. NOTE: The Philippines is not only a representative or
republican state but also shares some aspects of direct
Q: Dexter Suyat filed an action directly in court democracy such as initiative and referendum.
against the government seeking payment for a parcel
of land which the national government utilized for a Constitutional Authoritarianism
road widening project. Can the government invoke
the doctrine of non-suitability of the state? As understood and practiced in the Marcos regime
under the 1973 constitution, it is the assumption of
A: No. When the government expropriates property extraordinary powers by the President including
for public use without paying just compensation, it legislative and judicial and even constituent powers.
cannot invoke its immunity from suit. Otherwise, the
right guaranteed in Sec. 9, Art. III of the 1987 Compatibility of constitutional authoritarianism with
Constitution that private property shall not be taken a republican state
for public use without just compensation will be
rendered nugatory. (Ministerio v. Court of First Constitutional authoritarianism is compatible with a
Instance, L-31635, August 31, 1971) republican state if the Constitution upon which the
Executive bases his assumption of power is a
GENERAL PRINCIPLES AND STATE POLICIES legitimate expression of the peoples will and if the
Executive who assumes power received his office
Provisions in Art. II not self-executing through a valid election by the people.

GR: By its very title, Art. II of the Constitution is a


declaration of principles and state policies.

UNIVERSITY OF SANTO TOMAS


2014 GOLDEN NOTES 10
GENERAL CONSIDERATIONS

State policy on war which provides: The State shall protect and
advance the right of the people to a balanced and
The State renounces war as an instrument of national healthful ecology in accord with the rhythm and
policy. (Sec. 2, Art. II, 1987 Constitution) harmony of nature. As a constitutionally
guaranteed right of every person, it carries the
NOTE: The Philippines does not renounce defensive war correlative duty of non-impairment. Hence, the
because it is duty bound to defend its citizens. Under the issuance of the cease and desist order by the LLDA
Constitution, the prime duty of the government is to serve is a proper exercise of its power and authority
and protect the people.
under its charter and in consonance with the
declared policy of the state to protect and
Policies of the State on the following promote the right to health of the people and
instill health consciousness among them. (Laguna
1. Working women Sec. 14, Art. XIII of the Lake Development Authority v. Court of Appeals,
Constitution provides: "The State shall protect G.R. No. 110120, March 16, 1994)
working women by providing safe and healthful
working conditions, taking into account their 3. The symbols of statehood - Sec. 1, Art. XVI of the
maternal functions, and such facilities and Constitution provides: "The Flag of the Philippines
opportunities that will enhance their welfare and shall be red, white, and blue, with a sun and three
enable them to realize their full potential in the stars, as consecrated and honored by the people
service of the nation." and recognized by law."
2. Ecology Sec. 16, Art. II of the Constitution
provides: The State shall protect and advance the Sec. 2, Art. XVI of the Constitution states: The
right of the people and their posterity to a Congress may by law, adopt a new name for the
balanced and healthful ecology in accord with the country, a national anthem, or a national seal,
rhythm and harmony of nature." which shall all be truly reflective and symbolic of
the ideals, history, and traditions of the people.
Q: The residents of Taguig City brought a Such law shall take effect only upon its ratification
complaint before Laguna Lake Development by the people in a national referendum."
Authority (LLDA) about an open garbage
dumpsite in their city and sought its closure due 4. Cultural minorities Sec. 22, Art. II of the
to its harmful effects on health and the pollution Constitution provides: The State recognizes and
it brings to the lake. Upon investigation, LLDA promotes the rights of indigenous cultural
discovered that the Taguig City Government has communities within the framework of national
been maintaining the said dumpsite without an unity and development."
Environmental Compliance Certificate from the
Environmental Management Bureau of the Sec. 5, Art. XII of the Constitution reads: The
DENR, and also found the water to have been State, subject to the provisions of this
directly contaminated by the dumpsite Constitution and national development policies
operations. Then, LLDA, under RA 4850, issued a and programs, shall protect the rights of
cease and desist order against the City indigenous cultural communities to their
Government to completely stop the dumping of ancestral lands to ensure their economic, social
any form or kind of waste matter to the and cultural well-being.
dumpsite. Does the LLDA have the power and
authority to issue a cease and desist order The Congress may provide for the applicability of
under RA 4850 enjoining the dumping of garbage customary laws governing property rights or
in Taguig City? relations in determining the ownership and extent
of the ancestral domains."
A: Yes. In the exercise, therefore, of its express
powers under its charter as a regulatory and Sec. 6, Art. XIII of the Constitution provides: The
quasi-judicial body with respect to pollution cases State shall apply the principles of agrarian reform
in the Laguna Lake region, the authority of the or stewardship, whenever applicable in
LLDA to issue a cease and desist order is implied accordance with law, in the disposition or
and need not necessarily be express. Moreover, utilization of other natural resources, including
the immediate response to the demands of "the lands of the public domain under lease or
necessities of protecting vital public interests" concession suitable to agriculture, subject to prior
gives vitality to the statement on ecology rights, homestead rights of small settlers, and the
embodied in Art. II, Sec. 16 of the Constitution

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11 FACULTY OF CIVIL LAW
Political and International Law

rights of indigenous communities to their Sec. 11, Art. XIV of the Constitution provides: "The
ancestral lands. Congress may provide for incentives, including tax
deductions, to encourage private participation in
The State may resettle landless farmers and farm programs of basic and applied scientific research.
workers in its own agricultural estates which shall Scholarships, grants-in-aid or other forms of
be distributed to them in the manner provided by Incentives shall be provided to deserving science
law." students, researchers, scientists, investors,
technologists, and specially gifted citizens."
Sec. 17, Art. XIV of the Constitution states: "The
State shall recognize, respect and protect the Sec. 12, Art. XIV of the Constitution reads: The
rights of indigenous cultural communities to State shall regulate the transfer and promote the
preserve and develop their cultures, traditions, adaptation of technology from all sources for the
and institutions. It shall consider these rights in national benefit. It shall encourage widest
the formulation of national plans and policies participation of private groups, local
governments, and community-based
5. Science and technology Sec. 17, Art. II of the organizations in the generation and utilization of
Constitution provides: "The State shall give science and technology."
priority to education, science and technology,
arts, culture and sports to foster patriotism and Constitutional provision on transparency in matters
nationalism, accelerate social progress, and of public concern
promote total human liberation and
development." The 1987 Constitution provides for a policy of
transparency in matters of public interest:
Sec. 14, Art. XII of the Constitution reads in part:
"The sustained development of a reservoir of 1. Sec. 28, Art. II of the 1987 Constitution provides:
national talents consisting of Filipino scientists, "Subject to reasonable conditions prescribed by
entrepreneurs, professionals, managers, high- law, the State adopts and implements a policy of
level technical manpower and skilled workers and full disclosure of all its transactions involving
craftsmen shall be promoted by the State. The public interest,"
State shall encourage appropriate technology and
regulate its transfer for the national benefit. 2. Sec. 7, Art. III states: "The right of the people to
information on matters of public concern shall be
Sub-sec. 2, Sec. 3, Art. XIV of the Constitution recognized, access to official records, and to
states: "They (educational institutions) shall documents, and papers pertaining to official acts,
inculcate patriotism and nationalism, foster love transactions, or decisions, as well as to
of humanity, respect for human rights, government research data used as basis for policy
appreciation of the role of national heroes in the development, shall be afforded the citizen,
historical development of the country, teach the subject to such limitations as may be provided by
rights and duties of citizenship, strengthen ethical law."
and spiritual values, develop moral character and
personal discipline, encourage critical and 3. Sec. 20, Art. VI reads: "The records and books of
creative thinking, broaden scientific and account of the Congress shall be preserved and be
technological knowledge, and promote vocational open to the public in accordance with law, and
efficiency." such books shall be audited by the Commission on
Audit which shall publish annually an itemized list
Sec. 10, Art. XIV of the Constitution declares: of amounts paid to and expenses incurred for
"Science and Technology are essential for national each member."
development and progress. The State shall give
priority to research and development, invention, 4. Sec. 17, Art. XI provides: A sworn statement of
innovation, and their utilization; and to science assets, liabilities and net worth of the President,
and technology education, training, services. It the Vice-President, the Members of the Cabinet,
shall support indigenous, appropriate, and self- the Congress, the Supreme Court, the
reliant scientific and cultural capabilities, and Constitutional Commission and other
their application to the country's productive constitutional offices, and officers of the armed
systems and national life." forces with general or flag rank filed upon their

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2014 GOLDEN NOTES 12
GENERAL CONSIDERATIONS

assumption of office shall be disclosed to the Sovereignty: Imperium v. Dominium


public in the manner provided by law. IMPERIUM DOMINIUM
The States authority to Capacity of the state to
5. Sec. 21, Art. XII declares in part: "Information on govern as embraced in own or acquire
foreign loans obtained or guaranteed by the the concept of property.
government shall be made available to the sovereignty; includes
public." passing laws governing a
territory, maintaining
NOTE: These provisions on public disclosures are intended to peace and order over it,
enhance the role of the citizenry in governmental decision- and defeating it against
making as well as in checking abuse in government.
foreign invasion.
(Valmonte v. Belmonte, G.R. No. 74930, February 13, 1989)
(Lee Hong Hok v. David, G.R. No. L-30389, December
Doctrine of Incorporation v. Doctrine of 27, 1972)
Transformation
Doctrine of Autolimitation
DOCTRINE OF DOCTRINE
While sovereignty has traditionally been deemed
INCORPORATION TRANSFORMATION
absolute and all encompassing on the domestic level,
It means that the rules Generally accepted it is however subject to restrictions and limitations
of International Law rules of international voluntarily agreed to by the Philippines, expressly or
form part of the law of law are not per se impliedly as a member of the family of nations.
the land and no binding upon the state
legislative action is but must first be By the doctrine of incorporation, the country is bound
required to make them embodied in legislation by generally accepted principles of international law,
applicable in a country. enacted by the which are considered to be automatically part of our
By this doctrine, the lawmaking body and so own laws. (Taada v. Angara, G.R.No. 118295, May 2,
Philippines is bound by transformed into 1997)
generally accepted municipal law.
principles of Civilian supremacy is ensured
international law, which
are considered to be 1. By the installation of the President, the highest
automatically part of civilian authority, as the commander-in-chief of all
our own laws. (Taada the armed forces of the Philippines. (Sec. 18, Art.
v. Angara, G.R. No. VII, 1987 Constitution)
118295, May 2, 1997) 2. Through the requirement that members of the
AFP swear to uphold and defend the Constitution,
NOTE: The fact that the international law has been made which is the fundamental law of civil government.
part of the law of the land does not by any means imply the
(Sec. 5, Par. 1, Art. XVI, 1987 Constitution)
primacy of international law over national law in the
municipal sphere. (Philip Morris, Inc. v. CA, G.R. No. 91332,
July 16, 1993) NOTE: By civilian supremacy, it is meant that civilian
authority is, at all times, supreme over the military.
Sovereignty
Mandatory rendition of military services to defend
Supreme and uncontrollable power inherent in a State the State
by which the State is governed.
One cannot avoid compulsory military service by
Characteristics invoking ones religious convictions or by saying that
he has a sick father and several brothers and sisters to
1. Permanent; support. Accordingly, the duty of government to
2. Exclusive; defend the State cannot be performed except through
3. Comprehensive; an army. To leave the organization of an army to the
4. Absolute; will of the citizens would be to make this duty to the
5. Indivisible; Government excusable should there be no sufficient
6. Inalienable; men who volunteer to enlist therein. The right of the
7. Imprescriptible. (Laurel v. Misa, G.R. No. L-409, Government to require compulsory military service is
January 30, 1947) a consequence of its duty to defend the State and is

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13 FACULTY OF CIVIL LAW
Political and International Law

reciprocal with its duty to defend the life, liberty, and of religion may be allowed, not to promote the
property of the citizen. (People v. Zosa, G.R. No. L- governments favored form of religion, but to
45892-93, July 13, 1938) allow individuals and groups to exercise their
religion without hindrance. (Estrada v. Escritor,
Provisions of the Constitution that support the A.M. No. P-02-1651, June 22, 2006)
principle of separation of Church and State
NOTE: In the Philippine context, the Court categorically ruled
1. The non-establishment clause. (Sec. 5, Art. III) that, the Filipino people, in adopting the Constitution,
2. Sectoral representation in the House of manifested their adherence to the benevolent neutrality
approach that requires accommodations in interpreting the
Representatives. Various sectors may be
religion clauses. (Estrada v. Escritor, A.M. No. P-02-1651,
represented except the religious sector. (Sec. 5,
June 22, 2006)
par. 2, Art. VI)
3. Religious groups shall not be registered as political Kinds of accommodation that result from free
parties. (Sec. 5, par. 2, Art. IX-C, 1987 Constitution) exercise claim
NOTE: Exceptions to the above-mentioned rule are the
1. Mandatory - Those which are found to be
following provisions:
1. Churches, parsonages, etc. actually, directly and constitutionally compelled, i.e. required by the
exclusively used for religious purposes shall be exempt Free Exercise Clause;
from taxation; (Sec. 28, par. 3, Art. VI) 2. Permissive - Those which are discretionary or
2. When a priest, preacher, minister or dignitary is legislative, i.e. not required by the Free Exercise
assigned to the armed forces, or any penal institution Clause;
or government orphanage or leprosarium, public 3. Prohibited - Those which are prohibited by the
money may be paid to them; (Sec. 29, par. 2, Art. VI) religion clauses.
3. Optional religious instruction for public elementary and
high school students; (Sec. 3, par. 3, Art. VI)
NOTE: Based on the foregoing, and after holding that the
4. Filipino ownership requirement for education
Philippine Constitution upholds the benevolent neutrality
institutions, except those established by religious
doctrine which allows for accommodation, the Court laid
groups and mission boards. (Sec. 4, par. 2, Art. XIV)
down the rule that in dealing with cases involving purely
conduct based on religious belief, it shall adopt the strict-
Theories on the separation of church and state compelling State interest test because it is most in line with
the benevolent neutrality-accommodation.
1. Separation Standard - May take the form of either
(a) strict separation or (b) the tamer version Mandatory accommodation v. Permissive
of strict neutrality, or what Mr. Justice Carpio accommodation v. Prohibited accommodation
refers to as the second theory of governmental MANDATORY PERMISSIVE PROHIBITED
neutrality. ACCOMODATION ACCOMODATION ACCOMMODATION
Based on the Means that the Results when the
a. Strict Separationist - The establishment premise that state may, but Court finds no
clause was meant to protect the State from when religious is not required basis for a
the church, and the States hostility towards conscience to, accomodate mandatory
religion allows no interaction between the conflicts with a religious accommodation,
two. government interests. or it determines
b. Strict Neutrality Approach - It is not hostility obligation or that the
towards religion, but a strict holding that prohibition, legislative
religion may not be used as a basis for the accommodation
classification for purposes of governmental government runs afoul of the
action, whether the action confers rights or sometimes establishment or
privileges or imposes duties or obligations. may have to the free exercise
Only secular criteria may be the basis of give way. This clause. In this
government action. It does not permit; much accomodation case, the Court
less require accommodation of religious occurs when all finds that
belief in secular programs. three establishment
conditions of concerns prevail
2. Benevolent Neutrality Approach - States that the
the compelling over potential
wall of separation is meant to protect the
State interest accommodation
church from the State. It believes that with
test are met. interests.
respect to governmental actions, accommodation

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2014 GOLDEN NOTES 14
GENERAL CONSIDERATIONS
NOTE: The purpose of accommodations is to remove a ALTERNATIVE ANSWER:
burden on, or facilitate the exercise of, a persons or Sec. 1, Art. XI of the 1987 Constitution provides that
institutions religions. public officers must at all times be accountable to the
people. Sec. 22 of the Ombudsman Act provides that
SEPARATION OF POWERS the Office of the Ombudsman has the power to
investigate any serious misconduct allegedly
Doctrine of Separation of Powers committed by officials removable by impeachment for
the purpose of filing a verified complaint for
The legislation belongs to the Congress, execution to impeachment if warranted. The Ombudsman can
the executive, and settlement of legal controversies to entertain the complaint for this purpose.
the judiciary. Each is therefore prevented from
invading the domain of the others. Q: May the RTC or any court prohibit a committee of
the Senate like the Blue Ribbon Committee from
Purposes of Separation of Powers requiring a person to appear before it when it is
conducting investigation in aid of legislation?
1. Secure action
2. Forestall over-action A: No, because that would be violative of the principle
3. Prevent despotism of separation of powers. The principle essentially
4. Obtain efficiency means that legislation belongs to Congress, execution
to the Executive and settlement of legal controversies
NOTE: To prevent the concentration of authority in one to the Judiciary. Each is prevented from invading the
person or group of persons that might lead to irreparable domain of the others. (Senate Blue Ribbon Committee
error or abuse in its exercise to the detriment of republican
v. Majaducon, G.R. No. 136760, July 29, 2003)
institutions. The purpose was not to avoid friction, but, by
means of the inevitable friction incident to the distribution
of governmental powers among the three departments, to Principle of blending of powers
save the people from autocracy.
Refers to an instance when powers are not confined
Powers vested in the three branches of government exclusively within one department but are assigned to
or shared by several departments.
EXECUTIVE LEGISLATIVE JUDICIARY
Implementation Interpretation of Examples of the blending of powers
Making of laws
of laws laws
and power of the a. Power of appointment which can be exercised by
(Power of the (Power of judicial
purse each department and be rightfully exercised by
sword) review)
each department over its own administrative
NOTE: Legislative power is given to the legislature whose personnel;
members hold office for a fixed term; (Sec. 1, Art. VI) b. General Appropriations Law President prepares
Executive power is given to a separate Executive who holds the budget which serves as the basis of the bill
office for a fixed term; (Sec. 1, Art. VII) and Judicial power is adopted by Congress;
held by an independent Judiciary. (Sec. 1, Art. VIII) c. Amnesty granted by the President requires the
concurrence of the majority of all the members of
Q: A group of losing litigants in a case decided by the the Congress; and
SC filed a complaint before the Ombudsman charging d. COMELEC does not deputize law-enforcement
the Justices with knowingly and deliberately agencies and instrumentalities of the government
rendering an unjust decision in utter violation of the for the purpose of ensuring free, orderly, honest,
penal laws of the land. Can the Ombudsman validly peaceful and credible elections alone (consent of
take cognizance of the case? the President is required).

A: No. Pursuant to the principle of separation of Q: A provision in the 2014 General Appropriations Act
powers, the correctness of the decisions of the SC as (GAA) granted the legislators lump-sum allocations
final arbiter of all justiciable disputes is conclusive and gave them post-enactment measures, such as
upon all other departments of the government; the project identification, execution and operation
Ombudsman has no power to review the decisions of aspects of the identified projects. Is such provision
the SC by entertaining a complaint against the Justices violative of the principle of separation of powers?
of the SC for knowingly rendering an unjust decision.
(In re: Laureta, G.R. No. L-68635, May 14, 1987)

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15 FACULTY OF CIVIL LAW
Political and International Law

A: Yes. There is a violation of the principle when there Senator and was suspended for disorderly behavior,
is impermissible (a) interference with and/or (b) because it could not compel a separate and co-equal
assumption of another department's functions. department to take any particular action. In Osmea v.
Pendatun (109 Phil. 863 [1960]), it was held that the
These post-enactment measures, which govern the Supreme Court could not interfere with the
areas of project identification, fund release and fund suspension of a Congressman for disorderly behavior,
realignment are not related to functions of because the House of Representatives is the judge of
congressional oversight and, hence, allow legislators what constitutes disorderly behavior. The assault of a
to intervene and/or assume duties that properly fellow Senator constitutes disorderly behavior.
belong to the sphere of budget execution. Legislators However, under Sec. 1, Art. VIII of the 1987
have been, in one form or another, authorized to Constitution, the Supreme Court may inquire whether
participate in "the various operational aspects of or not the decision to expel Avi Amog is tainted with
budgeting in violation of the separation of powers grave abuse of discretion amounting to lack or excess
principle. of jurisdiction.

From the moment the law becomes effective, any Q: Paul Martin was convicted of estafa. When his case
provision of law that empowers Congress or any of its reached the Supreme Court, some Justices proposed
members to play any role in the implementation or to alter the penalties provided for under RPC on the
enforcement of the law violates the principle of basis of the ratio of P1.00 to P100.00, believing that
separation of powers and is thus unconstitutional. Any it is not just to apply the range of penalties, which
post-enactment congressional measure should be was based on the value of money in 1932, to crimes
limited to scrutiny and investigation. Any action or committed at present. However, other justices
step beyond that will undermine the separation of opposed the said proposal for it amounts to judicial
powers guaranteed by the Constitution. (Belgica, et al. legislation. Is the opposition correct?
vs Ochoa, et al., G.R. No. 208566, November 19, 2013)
A: Yes. This Court cannot modify the said range of
Q: Can any other department or agency of the penalties because that would constitute judicial
government review a decision of the Supreme Court? legislation. What the legislature's perceived failure in
Why or why not? amending the penalties provided for in the said crimes
cannot be remedied through this Court's decisions, as
A: No. The Supreme Court is the highest arbiter of legal that would be encroaching upon the power of another
questions. (Javier v. Comelec, 144 SCRA 194 [198]) To branch of the government.
allow review of its decision by the other departments
of government would upset the classic pattern of Verily, the primordial duty of the Court is merely to
separation of powers and destroy the balance apply the law in such a way that it shall not usurp
between the judiciary and the other departments of legislative powers by judicial legislation and that in the
government. course of such application or construction, it should
not make or supervise legislation, or under the guise
Q: Avi Amog was elected Congressman. Before the of interpretation, modify, revise, amend, distort,
end of her first year in office, she inflicted physical remodel, or rewrite the law, or give the law a
injuries on a colleague, Camille Gonzales, in the construction which is repugnant to its terms. The
course of a heated debate. Charges were filed in court Court should apply the law in a manner that would give
against her as well as in the House Ethics Committee. effect to their letter and spirit, especially when the law
Later, the HoR, dividing along party lines, voted to is clear as to its intent and purpose. Succinctly put, the
expel her. Claiming that her expulsion was railroaded Court should shy away from encroaching upon the
and tainted by bribery, she filed a petition seeking a primary function of a co-equal branch of the
declaration by the SC that the House gravely abused Government; otherwise, this would lead to an
its discretion and violated the Constitution. She inexcusable breach of the doctrine of separation of
prayed that her expulsion be annulled and that she powers by means of judicial legislation. (Lito Corpuz v.
should be restored by the Speaker to her position as People, G.R. No. 180016, April 29, 2014)
Congressman. Is Avi Amogs petition before the
Supreme Court justiciable?

A: No. In Alejandrino v. Quezon (46 Phil. 83 [1924]), the


Supreme Court held that it could not compel the
Senate to reinstate a Senator who assaulted another

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2014 GOLDEN NOTES 16
GENERAL CONSIDERATIONS

CHECKS AND BALANCES Q: An appropriations law granting the legislators


lump-sum funds in which they have full discretion on
Principle of Checks and Balances what project it would fund and how much the project
would cost, was passed. Is such law unconstitutional?
Allows one department to resist encroachments upon
its prerogatives or to rectify mistakes or excesses A: Yes. The appropriations merely provide for a
committed by the other departments. singular lump-sum amount to be tapped as a source of
funding for multiple purposes. Since such
Executive check on the other two branches appropriation type necessitates the further
determination of both the actual amount to be
EXECUTIVE CHECK expended and the actual purpose of the appropriation
Legislative Judiciary which must still be chosen from the multiple purposes
stated in the law, appropriation law does not indicate
Through its - Through its power of pardon,
a "specific appropriation of money" and hence,
veto power it may set aside the
without a proper line-item which the President may
judgment of the judiciary.
veto.
- Also by power of
appointment power to
This setup connotes that the appropriation law leaves
appoint members of the
the actual amounts and purposes of the appropriation
Judiciary.
for further determination and, therefore, does not
readily indicate a discernible item which may be
Legislative check on the other two branches subject to the Presidents power of item veto.

LEGISLATIVE CHECK Also, the fact that individual legislators are given post-
Executive Judiciary enactment roles in the implementation of the budget
Override the veto of Revoke or amend the makes it difficult for them to become disinterested
the President decisions by either: "observers" when scrutinizing, investigating or
- Enacting a new law monitoring the implementation of the appropriation
- Amending the old law law. To a certain extent, the conduct of oversight
- Giving it certain would be tainted as said legislators, who are vested
with post-enactment authority, would, in effect, be
definition and
checking on activities in which they themselves
interpretation participate. (Belgica, et al. vs Ochoa, et al., G.R. No.
different from the 208566, November 19, 2013)
old.
Judicial check on the other two branches
Reject certain Impeachment of SC
appointments made members It may declare (through the SC as the final arbiter) the
by the president acts of both the legislature and executive as
Revoke the Define, prescribe, unconstitutional or invalid so long as there is grave
proclamation of apportion jurisdiction of abuse of discretion.
martial law or lower courts:
NOTE: The first and safest criterion to determine whether a
suspension of the - Prescribe the
given power has been validly exercised by a particular
privilege of the writ of qualifications of lower department is whether the power has been constitutionally
habeas corpus court judges conferred upon the department claiming its exercise.
- Impeachment However, even in the absence of express conferment, the
exercise of the power may be justified under the Doctrine of
- Determination of Necessary Implication - the grant of express power carried
salaries of judges. with it all other powers that may be reasonably inferred from
it.
Impeachment
Determine the DELEGATION OF POWERS
salaries of the
president or vice Non-delegation of powers
president
GR: A delegated power cannot be re-delegated.

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17 FACULTY OF CIVIL LAW
Political and International Law

the legislature so that there will be nothing left for


NOTE: Delegated power constitutes not only a right but a the delegate to do when it reaches him except to
duty to be performed by the delegate through the enforce it.
instrumentality of his own judgment and not through the
b. Sufficient Standard Test If the law does not spell
intervening mind of another.
out in detail the limits of the delegates authority,
it may be sustained if delegation is made subject
XPNs: Permissible delegations:
to a sufficient standard.
1. Delegation to the People through initiative and
referendum. (Sec. 1, Art. VI, 1987 Constitution)
NOTE: The sufficient standard test maps out the boundaries
2. Emergency powers delegated by Congress to the of the delegates authority and indicating the circumstances
President. (Sec. 23(2), Art. VI) under which it is to be pursued and effected. Its purpose is
to prevent total transference of legislative power.
NOTE: The conditions for the vesture of emergency
powers are the following: Invalid delegation of legislative power
a. There must be war or other national emergency.
b. The delegation is for a limited period only.
If there are gaps that will prevent its enforcement, the
c. Delegation is subject to restrictions as Congress
may prescribe. delegate is given the opportunity to step into the
d. Emergency powers must be exercised to carry a shoes of the legislature and exercise discretion in
national policy declared by Congress. order to repair the omissions.

3. Congress may delegate Tariff powers to the NOTE: This is tantamount to an abdication of power in favor
President. (Sec. 28 (2),Art. VI) of the delegate, which is in violation of the doctrine of
separation of powers.
NOTE: The Tariff and Customs Code is the enabling law
that grants such powers to the President. Q: A law, which delegated some appropriation
powers to the President, was passed. The law
The power to impose tariffs in the first place is not contains provisions such as and for such other
inherent in the President but arises only from purposes as may be hereafter directed by
congressional grant. Thus, it is the prerogative of the President and to finance the
Congress to impose limitations and restrictions on such priority infrastructure development projects and to
powers which do not normally belong to the executive
finance the restoration of damaged or destroyed
in the first place. (Southern Cross Cement Corporation v.
facilities due to calamities, as may be directed
Philippine Cement Manufacturing Corp., G.R. No.
158540, August 3, 2005) and authorized by the Office of the President of the
Philippines. Are the provisions valid?
4. Delegation to Administrative bodies also known
as the power of subordinate legislation/ quasi- A: No. Said provisions constitute an undue delegation
legislative powers. of legislative power insofar as it does not lay down a
sufficient standard to adequately determine the limits
NOTE: This refers to the authority vested by Congress of the Presidents authority with respect to the
to the administrative bodies to fill in the details which purpose for which the law may be used (sufficient
Congress cannot provide due to lack of opportunity or standard test). It gives the President wide latitude to
competence. This includes the making of use the funds for any other purpose he may direct and,
supplementary rules and regulations. They have the thus, allows him to unilaterally appropriate public
force and effect of law. funds beyond the purview of the law.
Congress can only delegate rule-making power to
It gives him carte blanche authority to use the same
administrative agencies.
fund for any infrastructure project he may so
determine as a priority. The law does not supply a
5. Delegation to Local Governments It is not
definition of priority infrastructure development
regarded as a transfer of general legislative
projects and hence, leaves the President without any
power, but rather as the grant of authority to
guideline to construe the same. To note,
prescribe local regulations.
the delimitation of a project as one of infrastructure
is too broad of a classification since it could pertain to
Tests to determine whether the delegation of
any kind of facility. Thus, the phrase to finance the
legislative power is valid
priority infrastructure development projects must be
stricken down as unconstitutional since it lies
a. Completeness Test The law must be complete in
independently unfettered by any sufficient standard of
all essential terms and conditions when it leaves

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2014 GOLDEN NOTES 18
GENERAL CONSIDERATIONS

the delegating law. (Belgica, et al. v. Ochoa, et al., G.R. government; single, centralized government,
No. 208566, November 19, 2013) exercising powers over both the internal and
external affairs of the State.
Q: Rosalie Jaype-Garcia filed a petition before the b. Federal government One in which the
RTC of Bacolod City for the issuance of a Temporary powers of the government are divided
Protection Order against her husband, Jesus Garcia, between two sets of organs, one for national
pursuant to RA 9262. She claimed to be a victim of affairs and the other for local affairs, each
physical abuse and emotional, psychological, and organ being supreme within its own sphere;
economic violence. During the pendency of the civil consists of autonomous local government
case, Jesus Garcia filed a petition before the SC, units merged into a single State, with the
alleging that RA 9262 is unconstitutional because of national government exercising a limited
undue delegation of judicial power to barangay degree of power over the domestic affairs but
officials by allowing them to issue a Barangay generally full discretion of the external affairs
Protection Order. Is RA 9262 unconstitutional for of the State.
undue delegation of judicial power to barangay
officials? 2. As to the existence or absence of title and/or
control
A: No. There is no undue delegation of judicial power a. De jure Has a rightful title but no power or
to barangay officials. The BPO issued by the Punong control, either because the same has been
Barangay or, in his unavailability, by any available withdrawn from it or because it has not yet
Barangay Kagawad, merely orders the perpetrator to actually entered into the exercise thereof
desist from (a) causing physical harm to the woman or
her child; and (2) threatening to cause the woman or The government under Cory Aquino and the
her child physical harm. Such function of the Punong Freedom Constitution was de jure
Barangay is, thus, purely executive in nature, in government because it was established by
pursuance of his duty under the Local Government authority of the legitimate sovereign, the
Code to "enforce all laws and ordinances," and to people. (In re Letter of Associate Justice Puno,
"maintain public order in the barangay." (Garcia v. A.M. No. 90-11-2697-CA, June 29, 1992)
Drilon, G.R. No. 179267, June 25, 2013)
The government under Gloria Macapagal-
Presidents authority to declare a state of national Arroyo, established after the ouster of
emergency v. Presidents authority to exercise Estrada was a de jure government. (Estrada v.
emergency powers Desierto, G.R. Nos. 146710-15, March 2,
2001)
DECLARE A STATE OF EXERCISE EMERGENCY
NATIONAL EMERGENCY POWERS b. De facto Actually exercises power or control
Granted by the Requires a delegation but without legal title (Lawyers League for a
Constitution, no from Congress. (David, Better Philippines v. Aquino, G.R. No. 73748,
legitimate objection et al. v. Gloria May 22, 1986)
can be raised. Macapagal-Arroyo, et
al., G.R. No. 171396, Kinds of de facto government
May 3, 2006) i. De facto proper Government that gets
possession and control of, or usurps, by
NOTE: Conferment of force or by the voice of the majority, the
emergency powers on the rightful legal government and maintains
President is not mandatory itself against the will of the latter;
on Congress. ii. Government of paramount force
Established and maintained by military
FORMS OF GOVERNMENT forces who invade and occupy a
territory of the enemy in the course of
Classifications of government war; and
iii. Independent government Established
1. As to the centralization of control by the inhabitants of the country who
a. Unitary government One in which the rise in insurrection against the parent
control of national and local affairs is State. (Kop Kim Cham v. Valdez Tan Key,
exercised by the central or national G.R. No. L- 5, September 17, 1945)

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19 FACULTY OF CIVIL LAW
Political and International Law

EDSA 1 v. EDSA 2 4. Provides that subject to the enactment of an


implementing law, the people may directly
EDSA 1 EDSA 2 propose amendments to the Constitution
Involves the exercise Exercise of the people through initiative. (Sec. 2, Art. XVII)
of the people power of power of freedom of
revolution which speech and freedom of 3. As to the concentration of powers in a government
overthrew the whole assembly to petition branch
government. the government for a. Presidential government There is separation
redress of grievances of executive and legislative powers
which only affected b. Parliamentary government There is fusion
the office of the of both executive and legislative powers in
President. Parliament, although the actual exercise of
Extra-constitutional Intra-constitutional the executive powers is vested in a Prime
and the legitimacy of and the resignation of Minister who is chosen by, and accountable
the new government the then sitting to, Parliament.
that resulted from it President that it
cannot be the subject caused and the The Philippines adheres to the presidential system
of judicial review. succession of the Vice
President as the The principal identifying feature of a presidential form
president are subject of government is the separation of powers doctrine.
to judicial review.
Presented political Involves legal question NOTE: In presidential system, the President is both the head
question of State and the head of government.
The Cory Aquino The oath that Arroyo
government was took at the EDSA Essential characteristics of a parliamentary form of
installed through a Shrine is the oath government
direct exercise of the under the 1987
power of the Filipino Constitution. In her 1. The members of the government or cabinet or the
people in defiance of oath, she categorically executive arm are, as a rule, simultaneously
the provisions of the swore to preserve and members of the legislature;
2. The government or cabinet consisting of the
1973 Constitution, as defend the 1987
amended. Constitution. political leaders of the majority party or of a
coalition who are also members of the legislature,
Revolutionary in Not revolutionary in
is in effect a committee of the legislature;
character. character.
3. The government or cabinet has a pyramidal
(Estrada v. Desierto, G.R. Nos. 146710-15, March
structure at the apex of which is the Prime
2, 2001)
Minister or his equivalent;
4. The government or cabinet remains in power only
People Power under the Constitution
for so long as it enjoys the support of the majority
of the legislature;
1. Guarantees the right of the people to
5. Both the government and the legislature are
peaceably assemble and petition the
possessed of control devices which each can
government for redress of grievances. (Sec. 4,
demand of the other immediate political
Art. III)
responsibility. In the hands of the legislature is the
2. Requires Congress to pass a law allowing the
vote of non-confidence (censure) whereby
people to directly propose and enact laws
government may be ousted. In the hands of the
through initiative and to approve or reject
government is the power to dissolve the
any act or law or part of it passed by Congress
legislature and call for new elections.
or a local legislative body. (Sec. 32, Art. VI)
3. Provides that the right of the people and their
organizations to participate at all levels of
social, political, and economic decision-
making shall not be abridged and that the
State shall, by law, facilitate the
establishment of adequate consultation
mechanisms. (Sec. 16, Art. XIII)

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2014 GOLDEN NOTES 20
GENERAL CONSIDERATIONS

Functions of the Government

1. Constituent Mandatory for the government to


perform because they constitute the very bonds
of society.
2. Ministrant Intended to promote the welfare,
progress and prosperity of the people.

NOTE: Distinction of function is no longer relevant because


the Constitution obligates the State to promote social justice
and has repudiated the laissez faire policy. (ACCFA v.
Federation of Labor Unions, G.R. No. L-221484, November
29, 1969)

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21 FACULTY OF CIVIL LAW
Political and International Law

LEGISLATIVE DEPARTMENT obnoxious because it significantly constricts the future


legislators room for action and flexibility. (Datu
WHO MAY EXERCISE LEGISLATIVE POWER Michael Abas Kida, et al. v. Senate of the Philippines,
et al. G.R. No. 196271, October 18, 2011)
The following may exercise legislative power
NOTE: Every legislative body may modify or abolish the acts
passed by itself or its predecessors. This legislature cannot
1. Congress bind a future legislature to a particular mode of repeal. It
2. Regional/Local Government Units cannot declare in advance the intent of subsequent
3. The People through initiative and referendum. legislatures or the effect of subsequent legislation upon
existing statutes. (Datu Michael Abas Kida, et al. v. Senate of
Limitations on the legislative power of Congress the Philippines, et al. G.R. No. 196271, October 18, 2011)

1. Substantive: limitations on the content of laws. Classes of legislative power (ODCO)


2. Procedural: limitations on the manner of passing
laws. 1. Original: Possessed by the people in their
3. Congress cannot pass irrepealable laws. sovereign capacity i.e. initiative and referendum.
4. Congress, as a general rule, cannot delegate its 2. Delegated: Possessed by Congress and other
legislative power. legislative bodies by virtue of the Constitution.
3. Constituent: The power to amend or revise the
XPN: See Delegation of Legislative Powers. Constitution.
4. Ordinary: The power to pass ordinary laws.
Q: Is the supermajority vote requirement under RA
9054, the second Organic Act of ARMM which reset HOUSES OF CONGRESS
the regular elections for the ARMM regional officials
to the second Monday of September 2001 Composition of Congress
unconstitutional by giving it a character of an
irrepealable law? The Congress is bicameral in nature. It is composed of:
1. Senate
A: Yes. Even assuming that RA 9333 and RA 10153 did 2. House of Representatives
in fact amend RA 9054, the supermajority (2/3) voting a. District representatives
requirement required under Sec. 1, Art. XVII of RA b. Party-list system
9054 has to be struck down for giving RA 9054 the
character of an irrepealable law by requiring more Composition, qualifications, and term of office of
than what the Constitution demands. members of Congress

Sec. 16(2), Art. VI of the Constitution provides that a HOUSE OF


majority of each House shall constitute a quorum to SENATE
REPRESENTATIVES
do business. In other words, as long as majority of the Composition
members of the House of Representatives or the
24 Senators (elected at Not more than 250
Senate are present, these bodies have the quorum
large by qualified members, unless
needed to conduct business and hold session. Within
Filipino voters) otherwise provided by
a quorum, a vote of majority is generally sufficient to law.
enact laws or approve acts.
Qualifications
In contrast, Sec. 1, Art. XVII of RA 9054 requires a vote 1. Natural-born 1. Natural-born citizen
of no less than two-thirds (2/3) of the Members of the citizen of the of the Philippines;
House of Representatives and of the Senate, voting Philippines; 2. Except youth party-
separately, in order to effectively amend RA 9054. 2. At least 35 years of list representatives,
Clearly, this 2/3 voting requirement is higher than age on the day of at least 25 years of
what the Constitution requires for the passage of bills, election; age on the day of
and served to restrain the plenary powers of Congress 3. Able to read and election;
to amend, revise or repeal the laws it had passed. write; 3. Able to read and
4. A registered voter; write;
While a supermajority is not a total ban against repeal, 5. Resident of the 4. Except the party-list
it is a limitation in excess of what the Constitution Philippines for not representatives, a
requires on the passage of bills and is constitutionally less than 2 years registered voter in

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2014 GOLDEN NOTES 22
LEGISLATIVE DEPARTMENT

immediately the district in which Expulsion of members of Congress


preceeding the day he shall be elected;
of election. 5. Resident thereof for MEMBERS OF THE
a period of not less SENATORS HOUSE OF
NOTE: Enumeration is than 1 year REPRESENTATIVES
exclusive immediately the day Expulsion by the Senate Expulsion by the House
of the election. with the concurrence of is with the concurrence
2/3 of all its members. of 2/3 of all its
NOTE: Enumeration is (Sec. 16, par. 3, Art. VI) members. (Sec. 16, par.
exclusive. 3, Art. VI)
Term of office
6years, commencing at 3 years, commencing at Q: Can Congress or COMELEC impose an additional
noon on the 30th day of noon on the 30th day of qualification for candidates for senator /
June next following June next following their representative?
their election. election.
A: No. The Congress cannot validly amend or
Term limit: 3 Term limit: 3 consecutive otherwise modify these qualification standards, as it
consecutive terms. terms. cannot disregard, evade, or weaken the force of a
However, they may constitutional mandate, or alter or enlarge the
serve for more than 3 Constitution. (Cordora v. COMELEC, G.R. No. 176947,
terms provided that the February 19, 2009; Social Justice Society v. DDB and
terms are not PDEA, G.R Nos. 157870, 158633, 161658, November 3,
consecutive. 2008)

Disqualifications of members of Congress Rule on voluntary renunciation of office

SENATE HOUSE OF Voluntary renunciation of office for any length of time


REPRESENTATIVES shall not be considered as an interruption in the
No Senator shall Shall not serve for more continuity of his service for the full term for which he
serve for more than than three (3) consecutive was elected. (Secs. 4 and 7, Art. VI)
two (2) consecutive terms. Voluntary
terms. Voluntary renunciation of the office Composition of the HoR
renunciation of the for any length of time shall
office for any length not be considered as an DISTRICT PARTY-LIST
of time shall not be interruption in the REPRESENTATIVE REPRESENTATIVE
considered as an continuity of his service for Elected according to Elected nationally with
interruption in the the full term for which he legislative district by the party-list organizations
continuity of his was elected. (Sec. 7, Art. VI) constituents of such garnering at least 2% of
service for the full district. all votes cast for the
term for which he party-list system
was elected. (Sec. 4, entitled to 1 seat, which
Art. VI) is increased according to
One who has been declared by competent authority proportional
as insane or incompetent. representation, but is in
no way to exceed 3
One who has been sentenced by final judgment for: seats per organization.
a. Subversion; Must be a resident of his No special residency
b. Insurrection; legislative district for at requirement.
c. Rebellion; least 1 year immediately
d. Any offense for which he has been sentenced to before the election.
a penalty of not more than 18 months; or Elected personally, by Voted upon by party or
e. A crime involving moral turpitude, unless given name. organization. It is only
plenary pardon o granted amnesty. (Sec. 12, BP 881) when a party is entitled
to representation that it
designates who will sit
as representative.

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23 FACULTY OF CIVIL LAW
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Does not lose seat if If he/she changes party


he/she changes party or or affiliation, loses his NOTE: The question of the validity of an apportionment law
affiliation. seat, in which case is a justiciable question. (Macias v. Comelec, G.R. No. L-
he/she will be 18684, September 14, 1961)
substituted by another
qualified person in the Conditions for apportionment
party /organization
based on the list 1. Elected from legislative districts which are
submitted to the apportioned in accordance with the number of
COMELEC. inhabitants of each area and on the basis of a
In case of vacancy, a In case of vacancy, a uniform and progressive ratio.
special election may be substitution will be 2. Uniform Every representative of Congress shall
held provided that the made within the party, represent a territorial unit with more or less
vacancy takes place at based on the list 250,000 population. All the other representatives
least 1 year before the submitted to the shall have the same or nearly the same political
next election. COMELEC. constituency so much so that their votes will
constitute the popular majority.
A district representative A party-list
3. Progressive It must respond to the change in
is not prevented from representative cannot
times. The number of House representatives must
running again as a sit if he ran and lost in
not be so big as to be unwieldy. (Let us say, there
district representative if the previous election.
is a growth in population. The ratio may then be
he/she lost in the
increased. From 250,000 constituents/1
previous election.
representative it may be reapportioned to 300,
A change in affiliation A change in affiliation
000 constituents/1 representative)
within months prior to within 6 months prior to
4. Each city with a population of at least 250,000 or
election does not election prohibits the
each province shall at least have one
prevent a district party-list representative
representative.
representative from from listing as
running under his new representative under his
NOTE: GR: There must be proportional representation
party. new party or according to the number of their
organization. constituents/inhabitants.

District representatives XPN: In one city-one representative/one province-one


representative rule.
Those who are elected from legislative districts
apportioned among the provinces, cities and the 5. Legislative districts shall be re-apportioned by
Metropolitan Manila area. Congress within 3 years after the return of each
census. (Senator Aquino III v. COMELEC, G.R. No.
Apportionment of legislative districts 189793, April 7, 2010)

Legislative districts are apportioned among the Essence of apportionment


provinces, cities, and the Metropolitan Manila area.
They are apportioned in accordance with the number The underlying principle behind the rule for
of their respect inhabitants and on the basis of a apportionment is the concept of equality of
uniform and progressive ratio. (Sec. 5, Art. VI, 1987 representation, which is a basic principle of
Constitution) republicanism. One mans vote should carry as much
weight as the vote of every other man.
Each city with a population of at least 250,000 shall
have at least one representative. Each province shall NOTE: Sec. 5 provides that the House shall be composed of
have at least one representative. not more than 250 members unless otherwise provided by
law. Thus, Congress itself may by law increase the
composition of the HoR. (Tobias v. Abalos, G.R. No. L-
While Sec. 5(3) of Art. VI of the Constitution requires a
114783, December 8, 1994)
city to have a minimum population of 250,000 to be
entitiled to one representative; it does not have to As such, when one of the municipalities of a congressional
increase its population by another 250,000 to be district is converted to a city large enough to entitle it to one
entitled to an additional district. (Senator Aquino III v. legislative district, the incidental effect is the splitting of
COMELEC, G.R. No. 189793, April7, 2010) district into two. The incidental arising of a new district in

UNIVERSITY OF SANTO TOMAS


2014 GOLDEN NOTES 24
LEGISLATIVE DEPARTMENT
this manner need not be preceded by a census. (Tobias v. democracy. (Ang BagongBayani-OFW Labor Party v.
Abalos, G.R. No. L-114783, December 8, 1994) COMELEC, G.R. No. 147589, June26, 2001)

Manner of reapportionment The party-list system is intended to democratize


political power by giving political parties that cannot
Reapportionment may be made thru a special law. As win in legislative district elections a chance to win
thus worded, the Constitution did not preclude seats in the HoR. (Atong Paglaum, Inc. v. COMELEC,
Congress from increasing its membership by passing a G.R. 203766, April 2, 2013)
law, other than a general reapportionment of the law.
Moreover, to hold that reapportionment can only be Different parties under the party-list system
made through a general apportionment law, with a
review of all the legislative districts allotted to each No votes cast in favor of political party, organization or
local government unit nationwide, would create an coalition shall be valid except for those registered
inequitable situation where a new city or province under the party-list system.
created by Congress will be denied legislative 1. Political party Organized group of citizens
representation for an indeterminate period of time. advocating ideology or platform, principles and
(Mariano, Jr. v. COMELEC, G.R. No. 118577, March 7, policies for the general conduct of government
1995) and which, as the most immediate means of
securing their adoption, regularly nominates and
Increase in membership of the HoR supports certain of its leaders and members as
candidate in public office. (Bayan Muna v.
The Constitution does not preclude Congress from COMELEC, G.R. No. 147612, June 28, 2001)
increasing its membership by passing a law, other than 2. National party Its constituency is spread over
a general re-apportionment law. Thus, a law the geographical territory of at least a majority of
converting a municipality into a highly-urbanized city regions.
automatically creates a new legislative district and, 3. Regional party Its constituency is spread over
consequently, increases the membership of the HoR. the geographical territory of at least a majority of
(Mariano, Jr. v. COMELEC, G.R. No. 118577, March 7, the cities and provinces comprising the region.
1995) 4. Sectoral party Organized group of citizens
belonging to any of the following sectors: labor,
Gerrymandering peasant, fisherfolk, urban poor, indigenous,
cultural communities, elderly, handicapped,
Formation of one legislative district out of separate women, youth, veterans, overseas workers and
territories for the purpose of favoring a candidate or a professionals, whose principal advocacy pertains
party. It is not allowed because the Constitution to the special interest and concerns of their
provides that each district shall comprise, as far as sectors.
practicable, contiguous, compact and adjacent 5. Sectoral Organization Refers to a group of
territory. citizens who share similar physical attributes or
characteristics, employment, interest or
Party-list system concerns.
6. Coalition Refers to an aggregation of duly
Mechanism of proportional representation in the registered national, regional, sectoral parties or
election of representatives to the HoR from national, organizations for political and/or election
regional and sectoral parties or organizations or purposes.
coalitions thereof registered with the COMELEC.
Q: Is the party-list system solely for the benefit of
NOTE: Party-list representatives shall constitute 20% of the sectoral parties?
total number of representatives in the HoR. (Sec. 5, par. 2,
Art. VI, 1987 Constitution)
A: No. Sec. 5(1), Art. VI of the Constitution is crystal-
clear that there shall be a party-list system of
Purpose of the party-list system
negistered national, regional, and sectoral parties or
organizations. The commas after the words national
The partylist system intends to make the marginalized
(,) and regional (,) separate national and regional
and the underrepresented not merely passive
parties from sectoral parties. Had the framers of the
recipients of the States benevolence, but active
1987 Constitution intended national and regional
participants in the mainstream of representative
parties to be at the same time sectoral, they would

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25 FACULTY OF CIVIL LAW
Political and International Law

have stated national and regional sectoral parties. Q: Can sectoral wings of major political parties
They did not, precisely because it was never their participate in the party-list election?
intention to make the party-list system exclusively
sectoral. A: Yes. The participation of major political parties
through their sectoral wings, a majority of whose
What the framers intended, and what they expressly members are marginalized and underrepresented or
wrote in Sec. 5(1), could not be any clearer: the party- lacking in well-defined political constituencies, will
list system is composed of three different groups, and facilitate the entry of the marginalized and
the sectoral parties belong to only one of the three underrepresented and those who lack well-defined
groups. The text of Sec. 5(1) leaves no room for any political constituencies as members of the HoR.
doubt that national and regional parties are separate (Atong Paglaum, Inc. v. COMELEC, G.R. 203766, April
from sectoral parties. (Atong Paglaum, Inc. v. 2, 2013)
COMELEC, G.R. 203766, April 2, 2013)
Qualifications of party-list nominees
Composition of the party-list system
A party-list nominee must be a bona fide member of
(1) National parties or organizations; (2) Regional the party or organization which he or she seeks to
parties or organizations; and (3) Sectoral parties or represent. In the case of sectoral parties, to be a bona
organizations. National and regional parties or fide party-list nominee one must either belong to the
organizations are different from different parties or sector represented, or have a track record of advocacy
organizations. National and regional parties or for such sector. (Atong Paglaum, Inc. v. COMELEC, G.R.
organizations need not be organized along sectoral 203766, April 2, 2013)
lines and need not represent any particular sector.
(Atong Paglaum, Inc. v. COMELEC, G.R. 203766, April Guidelines in determining who may participate in the
2, 2013) party-list elections

Q: Does the party-list law require national and 1. Three different groups may participate in the
regional parties or organizations to represent the party-list system:
marginzalized and underrepresented sectors? a. National parties or organizations;
b. Regional parties or organizations; and
A: No. To require all national and regional parties c. Sectoral parties or organizations.
under the party-list system to represent the 2. National parties or organizations and regional
marginalized and underrepresented is to deprive parties or organizations do not need to organize
and exclude, by judicial fiat, ideology-based and cause- along sectoral lines neither represent any
oriented parties from the party-list system. How will marginalized and underrepresented sector.
these ideology-based and cause-oriented parties, who 3. All political parties must register under the party-
cannot win in legislative district elections, participate list system and do not field candidates in
in the electoral process if they are excluded from the legislative district elections. A political party,
party-list system? To exclude them from the party-list whether major or not, that fields candidates in
system is to prevent them from joining the legislative district elections can participate in
parliamentary struggle, leaving as their only option party-list elections only through its sectoral wing
armed struggle. To exclude them from the party-list that must separately register under the party-list
system is, apart from being obviously senseless, system. The sectoral wing is by itself an
patently contrary to the clear intent and express independent sectoral party; it is linked to a
wording of the 1987 Constitution and RA 27941. political party through a coalition.
(Atong Paglaum, Inc. v. COMELEC, G.R. 203766, April 4. Sectoral parties or organizations may either be
2, 2013) marginalized and underrepresented or lacking
in well-defined political constituencies. It is
NOTE: Major political parties cannot participate in the party- enough that their principal advocacy pertains to
list elections since they neither lack well-defined political the special interests and concerns of their sector.
constituencies nor represent marginalized and
underrepresented sectors (Atong Paglaum, Inc. v. NOTE: The sectors that are marginalized and
COMELEC, G.R. 203766, April 2, 2013) underrepresented include labor, peasant, fisherfolk,
urban poor, indigenous cultural communities,
handicapped, veterans, and overseas workers.

The sectors that lack well-defined political

UNIVERSITY OF SANTO TOMAS


2014 GOLDEN NOTES 26
LEGISLATIVE DEPARTMENT
constituencies include professionals, the elderly, party-list groups in question. (Bantay RA 7941 v. COMELEC,
women, and the youth. G.R. No. 177271; G.R. No. 177314, May 4, 2007)

5. A majority of the members of sectoral parties or Effect of the change in affiliation of any party-list
organizations that represent the marginalized ad representative
underrepresented or those representing parties
or organizations that lack well-defined political Any elected party-list representative who changes his
constituencies must belong to the sector they party-list group or sectoral affiliation during his term
respectively represent. of office shall forfeit his seat; provided that if he
6. The nominees of sectoral parties or organizations changes his political party or sectoral affiliation within
that represent the marginalized and 6 months before an election, he shall not be eligible
underrepresented or that represent those who for nomination as party-list representative under his
lack well-defined political constituencies, either new party or organization. (Amores v. HRET, G.R. No.
must belong to their respective sectors, or must 189600, June29, 2010)
have a track record of advocacy for their
respective sectors. NOTE: In case of vacancy in the seat reserved for party-list
7. The nominees of national and regional parties or representatives, it shall be automatically occupied by the
organizations must be bona-fide members of their next representative from the list of nominees in the order
respective parties or organizations. submitted by the same party to the COMELEC and such
representative shall serve for the unexpired term. If the list
8. National, regional, and sectoral parties or
is exhausted, the party, organization, or coalition concerned
organizations shall not be disqualified if some of
shall submit additional nominees.
their nominees are disqualified, provided that
they have at least one nominee who remains Formula mandated by the Constitution in
qualified. (Atong Paglaum, Inc. v. COMELEC, G.R. determining the number of party-list representatives
203766, April 2, 2013)
The House of Representatives shall be composed of
Q: Who shall be voted in a party-list election? not more than 250 members, unless otherwise fixed
by law. (Sec. 5, par. 1, Art. VI, 1987 Constitution)
A: The registered national, regional, or sectoral party-
list groups or organizations and not their candidates. The number of seats available to party-list
representatives is based on the ratio of party-list
Q: Who are elected into office in a party-list election? representatives to the total number of
representatives. Accordingly, we compute the number
A: It is the party-list representatives who are elected of seats available to party-list representatives from the
into office, not their parties or organizations. (Abayon number of legislative districts.
v. HRET, G.R. No. 189466, February 11, 2010)
Number of
Qualifications of a party-list nominee seats available
to legislative Number of seats
districts
0.20 = available to party-list
1. Natural- born citizen of the Philippines; 0.8
representatives
2. Registered voter; ( )
3. Resident of the Philippines for at least 1 year
immediately preceding the day of the election; The above formula allows the corresponding increase
4. Able to read and write; in the number of seats available for party-list
5. Bona fide member of the party or organization representatives whenever a legislative district is
which he seeks to represent at least 90 days created by law.
preceding election day;
6. At least 25 years of age. (For youth sector After prescribing the ratio of the number of party-list
nominees, at least 25 years and not more than 30 representatives to the total number of
years of age) representatives, the Constitution left the manner of
allocating the seats available to party-list
NOTE: There is absolutely nothing in RA 7941 that prohibits representatives to the wisdom of the legislature.
COMELEC from disclosing or even publishing through any
(BANAT v. COMELEC, G.R. No. 179271, April 21, 2009)
medium other than the Certified List the names of the
party-list nominees. As may be noted, no national security or
like concerns is involved in the disclosure of the names of the

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27 FACULTY OF CIVIL LAW
Political and International Law

Guidelines in the allocation of seats for party-list sectoral parties, organizations or coalitions under the
representatives under Sec. 11 of RA 7941 party-list system.

1. The parties, organizations, and coalitions shall be Its basic defect lies in its characterization of the non-
ranked from the highest to the lowest based on participation of a party-list organization in an election
the number of votes they garnered during the as similar to a failure to garner the 2% threshold party-
elections. list vote. What Minero effectively holds is that a party
2. The parties, organizations, and coalitions list organization which does not participate in an
receiving at least 2% of the total votes cast for the election necessarily gets, by default, less than 2% of
party-list system shall be entitled to one the party-list votes. To be sure, this is a confused
guaranteed seat each. interpretation of the law, given the laws clear and
3. Those garnering sufficient number of votes, categorical language and the legislative intent to treat
according to the ranking in paragraph 1, shall be the two scenarios differently. Minero did unnecessary
entitled to additional seats in proportion to their violence to the language of the law, the intent of the
total number of votes until all the additional seats legislature, and to the rule of law in general.
are allocated.
4. Each party, organization, or coalition shall be Clearly, the Court cannot allow PGBI to be prejudiced
entitled to not more than 3 seats. by the continuing validity of an erroneous ruling. Thus,
the Court now abandons Minero and strikes it out from
NOTE: In computing the additional seats, the guaranteed our ruling case law. (Philippine Guardians
seats shall no longer be included because they have already Brotherhood, Inc. [PGBI] v. COMELEC, G.R. No. 190529,
been allocated at one seat each to every two percent. Thus, April 29, 2010)
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
LEGISLATIVE PRIVILEGES, INHIBITIONS AND
disregarded in the absence of a provision in RA 7941 allowing DISQUALIFICATIONS
for a rounding off of fractional seats. (BANAT v. COMELEC,
G.R. No. 179271, April21, 2009) Immunity from arrest

Status of the 2% threshold as regards the allocation Grants the legislators the privilege from arrest while
of additional seats Congress is in session with respect to offenses
punishable by more than 6 years of imprisonment.
It is not valid anymore. The Court strikes down the 2% (Sec. 11, Art. VI of 1987 Constitution)
threshold only in relation to the distribution of the
additional seats as found in the second clause of Sec. Purpose of parliamentary immunities
11 (b) of RA 7941. The 2% threshold presents an
unwarranted obstacle to the full implementation of It is not for the benefit of the officials; rather, it is to
Sec. 5(2), Art. VI of the Constitution and prevents the protect and support the rights of the people by
attainment of the broadest possible representation ensuring that their representatives are doing their jobs
of party, sectoral or group interests in the House of according to the dictates of their conscience. It is
Representatives. (BANAT v. COMELEC, G.R. No. indispensable no matter how powerful the offended
179271, April 21, 2009) party is.

NOTE: The 2% threshold is constitutional insofar as the Q: May a congressman who committed an offense
determination of the guaranteed seat is concerned. punishable for less than 6 years, but is not attending
the session, be arrested?
Q: Is the Philippine Mines Safety Environment
Association v. COMELEC ruling, also known as the A: No. So long as he is an incumbent congressman and
Minero Ruling, providing that a party-list so long as Congress is in session, whether or not he is
organization that does not participate in an election attending it, he shall be immune from arrest. (People
necessarily gets, by default, less than 2% of the party- v. Jalosjos, G.R. Nos. 132875-76, February 3, 2000)
list votes, a valid application of RA 7941?
Q: Can a senator-lawyer be disbarred or disciplined
A: No. The Minero Ruling is an erroneous application by the Supreme Court for statements made during a
of Sec. 6(8) of RA 7941 [also known as the Party-List privilege speech?
System Act]. Hence, it cannot sustain PGBIs delisting
from the roster of registered national, regional or

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LEGISLATIVE DEPARTMENT

A: No. Indeed, the senator-lawyers privilege speech is Corrupt Practices Act?


not actionable criminally or be subject to a disciplinary
proceeding under the Rules of Court. The Court, A: Yes. The accused cannot validly argue that only his
however, would be remiss in its duty if it let the peers in the HoR can suspend him because the court-
Senators offensive and disrespectful language that ordered suspension is a preventive measure that is
definitely tended to degrade the institution pass-by. It different and distinct from the suspension ordered by
is imperative on the Courts part to re-instill in his peers for disorderly behaviour which is a penalty.
Senator/Atty. Santiago her duty to respect courts of (Paredes, Jr. v. Sandiganbayan, G.R. No. 118354,
justice, especially this Tribunal, and remind her anew August 8, 1995)
that parliamentary non-accountability thus granted to
members of Congress is not to protect them against Requirements for the privilege of speech and debate
prosecutions for their own benefit, but to enable to operate
them, as the peoples representatives, to perform the
functions of their office without fear of being made 1. The remarks must be made while the legislature
responsible before the courts or other forums outside or the legislative committee is functioning, that is,
the congressional hall. It is intended to protect in session;
members of congress against government pressure 2. They must be made in connection with the
and intimidation aimed at influencing the decision- discharge of official duties.
making prerogatives of Congress and its members.
(Pobre v. Sen. Defensor-Santiago, A.C. No. 7399, Coverage of speech or debate
August 25, 2009)
It includes utterances made by Congressmen in the
Q: Is Congress considered in session during a recess? performance of their official functions, such as
speeches delivered, statements made, or votes cast in
A: No. It is not in session. During a recess, a the halls of Congress, while the same is in session, as
congressman who has committed an offense well as bills introduced in Congress, whether the same
punishable by not more than 6 years imprisonment is in session or not, and other acts performed by
may be arrested. Congressmen, either in Congress or outside the
premises housing its offices, in the official discharge of
Inapplicability of immunity to searches their duties as members of Congress and of
Congressional Committees duly authorized to perform
The Constitution provides only a privilege from arrest its functions as such, at the time of the performance of
in order to ensure the attendance of Congressmen. the acts in question. (Jimenez v. Cabangbang, G.R. No.
L-15905, August 3, 1966)
Legislative privilege
NOTE: The purpose of the privilege is to ensure the effective
Provides that no member shall be questioned or held discharge of functions of Congress. The privilege may be
liable in any forum other than his respective abused but it is said that such is not so damaging or
detrimental as compared to the denial or withdrawal of such
Congressional body for any debate or speech in
privilege.
Congress or in any committee thereof. (Sec. 11, Art. VI;
Pobre v. Sen. Santiago, A.C.No, 7399, August 25, 2009)
Prohibitions attached to a legislator during his term
Limitations on legislative privilege
1. Incompatible office No senator or member of
the HoR may hold any other office or employment
1. Protection is only against the forum other than
in the Government, or any subdivision, agency, or
the Congress itself. Thus, for defamatory remarks,
instrumentality thereof, including government
which are otherwise privileged, a member may be
owned and controlled corporations or their
sanctioned by either the Senate or the HoR as the
subsidiaries during his term without forfeiting his
case may be.
seat. (Sec. 13, Art.VI)
2. The speech or debate must be made in
performance of their duties as members of
NOTE: Forfeiture of the seat in Congress shall be
Congress. automatic upon the members assumption of such
other office deemed incompatible with his seat in
Q: Can the Sandiganbayan order the preventive Congress. However, no forfeiture shall take place if the
suspension of a Member of the HoR being prosecuted member of Congress holds the other government office
criminally for the violation of the Anti-Graft and in an ex-officio capacity.

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2. Forbidden office Neither shall a senator or a Legislators cannot be If the office was created or
member of the House of Representatives be appointed to any office. the emoluments thereof
appointed to any office which may have been (Sec. 13, Art. VI) increased during the term
created or the emoluments thereof increased for which he was elected.
during the term for which he was elected. (Sec. 13, (Sec. 13, Art. VI)
Art. VI) Legislators cannot During his term of office.
personally appear as
NOTE: With this, even if the member of the Congress is counsel before any
willing to forfeit his seat therein, he may not be court of justice,
appointed to any office in the government that has electoral tribunal, quasi-
been created or the emoluments thereof have been
judicial and
increased during his term. Such a position is forbidden
office. The purpose is to prevent trafficking in public administrative bodies.
office. The provision does not apply to elective offices. (Sec. 14, Art. VI)
Legislators cannot be During his term of office.
The appointment of the member of the Congress to the financially interested
forbidden office is not allowed only during the term for directly or indirectly in
which he was elected, when such office was created or any contract with or in
its emoluments were increased. After such term, and any franchise, or special
even if the legislator is re-elected, the disqualification
privilege granted by the
no longer applies and he may therefore be appointed to
the office.
Government, or any
subdivision agency or
Rule on increase in salaries instrumentality thereof,
including the GOCC or
Increase in the salaries shall take effect until after the its subsidiary. (Sec. 14,
expiration of the full term of all the members of the Art. VI)
Senate and the House of Representatives approving Legislators cannot When it is for his pecuniary
such increase. intervene in any matter benefit or where he may be
before any office of the called upon to act on
Particular inhibitions attached to the respective Govt. account of his office.
offices of Senators and Representatives (Sec. 14, Art. VI)

1. Senators and Representatives are prohibited from Disclosure of legislators of their assets, liabilities, and
personally appearing as counsel before any networth
court of justice or before the Electoral Tribunals,
or quasi-judicial or other administrative bodies. All members of the Senate and HoR shall, upon
(Sec. 14, Art. VI) assumption of office and as often thereafter as may be
2. Upon assumption of office, must make a full required by law, submit a declaration under oath of his
disclosure of financial and business interests. Shall assets, liabilities and net worth. (Sec. 12, Art. VI)
notify the House concerned of a potential conflict
in interest that may arise from the filing of a QUORUM AND VOTING MAJORITIES
proposed legislation of which they are authors.
(Sec. 12, Art. VI) Quorum

Disqualifications attached to Senators and Such number which enables a body to transact its
Representatives offices and their applications busines and gives such body the power to pass a law
or ordinance or any valid act that is binding.
DISQUALIFICATION WHEN APPLICABLE
NOTE: In computing quorum, members who are outside the
Cannot hold any other During his term. If he does
country and, thus, outside of each Houses jurisdiction are
office or employment in so, he forfeits his seat. (Sec.
not included. The basis for determining the existence of a
the Govt or any 13, Art. VI) quorum in the Senate shall be the total number of Senators
subdivision, agency, or who are within the coercive jurisdiction of the Senate.
instrumentality thereof, (Avelino v. Cuenco, G.R. No. L-2821, March 4, 1949)
including GOCCs or their
subsidiaries. (Sec. 13,
Art. VI)

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LEGISLATIVE DEPARTMENT

Effect if there is no quorum Instances when Congress votes by majority

In the absence of quorum, each House may adjourn INSTANCES WHEN NUMBER OF VOTES
from day to day and may compel the attendance of CONGRESS VOTES REQUIRED
absent members in such manner and under such Elect the Senate Majority vote of all its
penalties as each House may provide. President or House of respective members
Representatives (Sec. 16 [1])
NOTE: The members of the Congress cannot compel absent Speaker
members to attend sessions if the reason of absence is a Commission on Majority vote of all the
legitimate one. The confinement of a Congressman charged
Appointments ruling members (Sec. 18)
with a non-bailable offense is certainly authorized by law and
has constitutional foundations (People v. Jalosjos, G.R. No. Passing a law granting Majority of all the
132875-76, February 3, 2000) any tax exemption members of Congress
(Sec. 28 [4])
Majority vote
Instances when Congress votes other than majority
Pertains only to such number or quantity as may be
required to elect an aspirant as such. There is no INSTANCES WHEN NUMBER OF VOTES
indication that by such election, the Houses are CONGRESS VOTES REQUIRED
already divided into the majority camp and the To suspend or expel a 2/3 of all its members
minority camp. Majority refers to more than half of the
member in accordance (Sec. 16, Par. 3, Art. VI)
total or aggregate. Although the Constitution provides
with its rules and
that the Speaker and the Senate President shall be proceedings
elected by a majority of all members, the Constitution
To enter the Yeas and 1/5 of the members
does not provide that those who will not vote for the
nays in the Journal present
winner (by majority vote) are ipso facto the minority
(Sec. 16, Par. 4,
who can elect the minority leader.
Art. VI)
To declare the 2/3 of both houses in
Majority vote refers to the political party with the
existence of a state of joint session voting
most number of backings; refer to the party, faction or
war separately
organization with the number of votes but not
(Sec. 23, Art. VI)
necessarily more than one half (plurality). (Santiago v.
Guingona, G.R. No. 134577, November 18, 1998)
Non-intervention of courts in the implementation of
Instances when Congress is voting separately and the internal rules of Congress
voting jointly
As part of their inherent power, Congress can
SEPARATE JOINT determine their own rules. Hence, the courts cannot
- Choosing the - When revoking or intervene in the implementation of these rules insofar
President in case of extending the as they affect the members of Congress (Osmea v.
a tie (Sec. 4, Art. VII) proclamation Pendatun, G.R. No L-17144, October 28, 1960)
- Determining suspending the
Presidents disability privilege of writ Elected officers of Congress
(Sec. 11, Art. VII) of habeas corpus
- Confirming (Sec. 18, Art. VII) 1. Senate President
nomination of Vice- - When revoking or 2. Speaker of the House
President (Sec. 9, extending the 3. Such officers as deemed by each house to be
Art. VI) declaration of necessary
- Declaring the martial law
existence of a state (Sec. 18, Art. VII) Vote required in election of officers
of war in joint
session (Sec. 23, Art. Majority vote of all respective members. (Sec.16, par.
VI) 1, Art. VI)
- Proposing
Constitutional
amendments
(Sec. 1, Art. XVII)

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Regular session of Congress DISCIPLINE OF MEMBERS

Congress convenes once every year on the 4th Monday Disciplinary power of Congress
of July, unless otherwise provided for by law. It
continues in session for as long as it sees fit, until 30 Each house may punish its members for disorderly
days before the opening of the next regular session, behavior and, with concurrence of 2/3 of all its
excluding Saturdays, Sundays, and legal holidays. (Sec. members, suspend, for not more than 60 days, or
15, Art. VI) expel a member. (Sec. 16, par. 3, Art. VI)

Instances when there are special sessions Determination of disorderly behavior

1. Due to vacancies in the offices of the President It is the prerogative of the House concerned and
and Vice President at 10 oclock a.m. on the third cannot be judicially reviewed. (Osmea v. Pendatun,
day after the vacancies (Sec. 10, Art. VI) G.R. No. L-17144, October 28, 1960)
2. To decide on the disability of the President
because a majority of all the members of the NOTE: Members of Congress may also be suspended by the
cabinet have disputed his assertion that he is Sandiganbayan or by the Office of the Ombudsman. The
able to discharge the powers and duties of his suspension in the Constitution is different from the
office (Sec. 11, Art. VII) suspension prescribed in RA 3019, Anti-Graft and Corrupt
Practices Act. The latter is not a penalty but a preliminary
3. To revoke or extend the Presidential Proclamation
preventive measure and is not imposed upon the petitioner
of Martial Law or suspension of the privilege of for misbehaviour as a member of Congress. (Santiago v.
the writ of habeas corpus (Sec. 18, Art. VII) Sandiganbayan, G.R. No. 128055, April 18, 2001)
4. Called by the President at any time when Congress
is not in session (Sec. 15, Art. VI) ELECTORAL TRIBUNAL AND THE
5. To declare the existence of a state of war in a joint COMMISSION ON APPOINTMENTS
session, by vote of 2/3rds of both Houses (Sec. 23,
par. 1, Art. VI) Composition of the Electoral Tribunal (ET)
6. When the Congress acts as the Board of
Canvassers for the Presidential and Vice- 1. 3 Supreme Court Justices designated by the Chief
Presidential elections (Sec. 4, Art. VII) Justice;
7. During impeachment proceedings (Sec. 3, par. 4 2. 6 members of the Chamber concerned (Senate or
and 6, Art. XI) HoR) chosen on the basis of proportional
representation from the political parties and
Mandatory recess parties registered under the party-list system (Sec.
17, Art. VI).
The 30-day period prescribed before the opening of
the next regular session, excluding Saturdays, NOTE: The senior Justice in the Electoral Tribunal shall be its
Sundays, and legal holidays. This is the minimum chairman.
period of recess and may be lengthened by the
Congress in its discretion. It may however, be called in Jurisdiction of the ETs
special session at any time by the President. (Sec. 15,
Art. VI) Each electoral tribunal shall be the sole judge of all
contests relating to the election, returns, and
Rule on Adjournment qualifications of their respective members (Sec. 17,
Art. VI). This includes determining the validity or
Neither House during the sessions of the Congress invalidity of a proclamation declaring a particular
shall, without the consent of the other, adjourn for candidate as the winner. Each ET is also vested with
more than 3 days, nor to any other place than that in rule-making power. (Lazatin v. HRET, G.R. No. L-84297,
which the two Houses shall be sitting. (Sec. 16, par. 5, December 8, 1988)
Art. VI)
It is independent of the Houses of Congress and its
Adjournment sine die decisions may be reviewed by the Supreme Court only
upon showing of grave abuse of discretion.
An interval between the session of one Congress and
that of another.

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2014 GOLDEN NOTES 32
LEGISLATIVE DEPARTMENT

Electoral contest Power of each House over its members in the absence
of election contest
Where a defeated candidate challenges the
qualification and claims for himself the seat of the The power of each House to expel its members or even
proclaimed winner. In the absence of an election to defer their oath-taking until their qualifications are
contest, ET is without jurisdiction. determined may be exercised even without an
election contest.
NOTE: Once a winning candidate has been proclaimed, taken
his oath, and assumed office as a member of the HoR, Q: Imelda ran for HoR. A disqualification case was
COMELECs jurisdiction over election contests relating to his filed against her on account of her residence. The
election, returns, and qualification ends, and the HRETs own
case was not resolved before the election. Imelda
jurisdiction begins. The phrase election, returns, and
won the election. However, she was not proclaimed.
qualifications should be interpreted in its totality as
referring to all matters affecting the validity of the Imelda now questions the COMELECs jurisdiction
contestees title. (Vinzons-Chato v. COMELEC, G.R. No. over the case. Does the COMELEC have jurisdiction
172131, April 2, 2007) over the case?

Q: Gemma ran for Congresswoman of Muntinlupa in A: Yes. HRETs jurisdiction as the sole judge of all
the May 2013 elections. However, before the contests relating to elections, etc. of members of
elections, the COMELEC cancelled her CoC after Congress begins only after a candidate has become a
hearing a complaint filed against her. Later, she was member of the HoR. Since Imelda has not yet been
declared winner as Congresswoman of Muntinlupa. proclaimed, she is not yet a member of the HoR. Thus,
She has not yet taken her Oath of Office and has not COMELEC retains jurisdiction. (Romualdez-Marcos v.
assumed her office as Congresswoman. COMELEC, G.R. No. 119976, September 18, 1995)
Subsequently, COMELEC issued a certificate of
finality on its earlier resolution cancelling Gemmas Q: Does the HRET have the authority to pass upon the
COC. Gemma comes before the Court arguing that eligibilities of the nominees of the party-list groups
COMELEC has lost jurisdiction over the case and it is that won in the lower house of Congress?
the HRET that has jurisdiction as she is already
declared a winner. Is Gemmas contention tenable? A: Yes. By analogy with the cases of district
representatives, once the party or organization of the
A: No. The jurisdiction of the HRET begins only after party-list nominee has been proclaimed and the
the candidate is considered a Member of the House of nominee has taken his oath and assumed office as
Representatives, as stated in Sec. 17, Art. VI of the member of the HoR, the COMELECs jurisdiction over
1987 Constitution. To be considered a Member of the election contests relating to his qualifications ends and
House of Representatives, there must be a the HRETs own jurisdiction begins. (Abayon v. HRET,
concurrence of the following requisites: (1) a valid G.R. No. 189466, February 11, 2010)
proclamation, (2) a proper oath, and (3) assumption of
office. Valid grounds or just causes for termination of
membership to the tribunal
In this case, Gemma cannot be considered a Member
of the House of Representatives because, primarily, 1. Expiration of Congressional term of Office
she has not yet assumed office. To repeat what has 2. Death or permanent disability
earlier been said, the term of office of a Member of the 3. Resignation from the political party he represents
House of Representatives begins only at noon on the in the tribunal
thirtieth day of June next following their election. 4. Formal affiliation with another political party
Thus, until such time, the COMELEC retains 5. Removal from office for other valid reasons
jurisdiction. Consequently, before there is a valid or (Bondoc v. Pineda, G.R. No. 97710, September 26,
official taking of the oath it must be made (1) before 1991)
the Speaker of the House of Representatives, and (2)
in open session. Here, although she made the oath Q: Can the ET meet when Congress is not in session?
before Speaker Belmonte, there is no indication that it
was made during plenary or in open session and, thus, A: Yes. Unlike the Commission on Appointments, the
it remains unclear whether the required oath of office ET shall meet in accordance with their rules, regardless
was indeed complied with. (Ongsiako Reyes v. of whether Congress is in session or not.
COMELEC, G.R. No. 207264, June 25, 2013)

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33 FACULTY OF CIVIL LAW
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ET as the sole judge Presidential appointments subject to confirmation by


the Commission
Sec. 17, Art. VI provides that the SET/HRET is the sole
judge of all contests. Hence, from its decision, there is 1. Heads of the Executive departments. (except if it
no appeal. Appeal is not a constitutional right but is the Vice-President who is appointed to the post)
merely a statutory right. 2. Ambassadors, other Public ministers, or Consuls
3. Officers of the AFP from the rank of colonel or
Remedy from an adverse decision of the ET naval captain
4. Other officers whose appointments are vested in
A special civil action for certiorari under Rule 65 of the him by the Constitution (i.e. COMELEC members)
Rules of Court may be filed. This is based on grave (Bautista v. Salonga, G.R. No. 86439, April 13,
abuse of discretion amounting to lack or excess of 1989)
jurisdiction. This shall be filed before the Supreme
Court. NOTE: The enumeration is exclusive.

Composition of the Commission on Appointments Rules on voting


(CA)
1. The CA shall rule by a majority vote of all the
1. Senate President as ex-officio chairman members.
2. 12 Senators 2. The chairman shall only vote in case of tie.
3. 12 members of the HoR (Sec. 18, Art. VI) 3. The CA shall act on all appointments within 30
session days from their submission to Congress
NOTE: A political party must have at least 2 elected senators (Sec. 18, Art. VI)
for every seat in the Commission on Appointments. Thus,
where there are two or more political parties represented in Limitations in the confirmation of such appointment
the Senate, a political party/coalition with a single senator in
the Senate cannot constitutionally claim a seat in the 1. Congress cannot by law prescribe that the
Commission on Appointments. It is not mandatory to elect
appointment of a person to an office created by
12 senators to the Commission; what the Constitution
such law be subject to confirmation by the
requires is that there must be at least a majority of the entire
membership. (Guingona, Jr. v. Gonzales, G.R. No. 106971, Commission.
October 20, 1992) 2. Appointments extended by the President to the
above-mentioned positions while Congress is not
Membership in the ET in session shall only be effective until disapproval
by the Commission or until the next adjournment
The members of the Commission shall be elected by of Congress. (Sarmiento III v. Mison, G.R. No. L-
each House on the basis of proportional 79974, December 17, 1987)
representation from the political party and party list.
Accordingly, the sense of the Constitution is that the Guidelines in the meetings of the Commission on
membership in the Commission on Appointments Appointments
must always reflect political alignments in Congress
and must therefore adjust to changes. It is understood 1. Meetings are held either at the call of the
that such changes in party affiliation must be Chairman or a majority of all its members.
permanent and not merely temporary alliances. 2. Since the Commission is also an independent
Endorsement is not sufficient to get a seat in COA. constitutional body, its rules of procedure are also
(Daza v. Singson, G.R. No. 86344, December 21, 1989) outside the scope of congressional powers as well
as that of the judiciary. (Bondoc v. Pineda, G.R. No.
NOTE: The provision of Sec. 18, Art. VI of the Constitution, 97710, September 26, 1991)
on proportional representation is mandatory in character
and does not leave any discretion to the majority party in the NOTE: The ET and the CA shall be constituted within 30 days
Senate to disobey or disregard the rule on proportional after the Senate and the HoR shall have been organized with
representation; otherwise, the party with a majority the election of the Senate President and the Speaker of the
representation in the Senate or the HoR can by sheer force House.
of numbers impose its will on the hapless minority. By
requiring a proportional representation in the CA, Sec. 18 in
effect works as a check on the majority party in the Senate
and helps maintain the balance of power. No party can claim
more than what it is entitled to under such rule. (Guingona,
Jr. v. Gonzales, G.R. No. 105409, March 1, 1993)

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2014 GOLDEN NOTES 34
LEGISLATIVE DEPARTMENT

POWERS OF CONGRESS 3. Failure of the President to veto the bill and to


return it with his objections to the House where it
LEGISLATIVE originated, within 30 days after the date of receipt
4. A bill calling a special election for President and
Legislative powers of Congress Vice-President under Sec. 10. Art. VII becomes a
law upon its approval on the third reading and
1. General plenary power (Sec. 1, Art. VI) final reading
2. Specific power of appropriation
3. Taxation and expropriation
4. Legislative investigation
5. Question hour

Legislative power

The power or competence of the legislative to


propose, enact, ordain, amend/alter, modify, abrogate
or repeal laws. It is vested in the Congress which shall
consist of a Senate and a House of Representatives,
except to the extent reserved to the people by the
provision on initiative and referendum.

Doctrine of Shifting Majority

For each House of Congress to pass a bill, only the


votes of the majority of those present in the session,
there being a quorum, is required.

Rules regarding the passage of bills

1. No bill passed by either House shall become a law


unless it has passed three readings on separate
days.
2. Printed copies of the bill in its final form should be
distributed to the Members 3 days before its
passage (except when the President certifies to
the necessity of its immediate enactment to meet
a public calamity or emergency)
3. Upon the last reading of a bill, no amendment
thereto shall be allowed.
4. The vote on the bill shall be taken immediately
after the last reading of a bill.
5. The yeas and the nays shall be entered in the
Journal.

XPN: The certification of the President dispenses


with the reading on separate days and the printing
of the bill in the final form before its final
approval. (Tolentino v. Secretary of Finance, G.R.
No. 115455, October 30, 1995)

Instances when a bill becomes a law

1. Approved and signed by the President


2. Presidential veto overridden by 2/3 vote of all
members of both Houses

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35 FACULTY OF CIVIL LAW
Political and International Law

LEGISLATIVE INQUIRIES AND OVERSIGHT the power to impose such penalty is the right to
FUNCTIONS self-preservation. And such right is enforceable
only during the existence of the legislature. (Lopez
Basis v. Delos Reyes, G.R. No. L-3436, November 5,
1930)
The Senate or the House of Representatives or any of 6. Congress may no longer inquire into the same
its respective committees may conduct inquiries in aid justiciable controversy already before the court.
of legislation in accordance with its duly published (Bengzon v. Blue Ribbon Committee, G.R. No.
rules of procedure. The rights of persons appearing in, 89914, November 20, 1991)
or affected by, such inquiries shall be respected. (Sec.
21, Art. VI of the 1987 Constitution) Q: Sen. Jogie Repollo accused the Vice Chairman of
the Standard Chartered Bank of violating the
Scope of the subject matter of the power to conduct Securities Regulation Code for selling unregistered
inquiries in aid of legislation foreign securities. This has led the Senate to conduct
investigation in aid of legislation. SCB refused to
Indefinite. The field of legislation is very wide as attend the investigation proceedings on the ground
compared to that of the American Congress. And that criminal and civil cases involving the same issues
because of such, the field of inquiry is also very broad. were pending in courts. Decide.
It may cover administrative inquiries, social, economic,
political problem (inquiries), discipline of members, A: The mere filing of a criminal or an administrative
etc. Suffice it to say that it is co-extensive with complaint before a court or a quasi-judicial body
legislative power. (Arnault v. Nazareno, G.R. No. L- should not automatically bar the conduct of legislative
3820, July 18, 1950) investigation. Otherwise, it would be extremely easy
to subvert any intended inquiry by Congress through
NOTE: In aid of legislation does not mean that there is the convenient ploy of instituting a criminal or an
pending legislation regarding the subject of the inquiry. In administrative complaint. Surely, the exercise of
fact, investigation may be needed for purposes of proposing sovereign legislative authority, of which the power of
future legislation. legislative inquiry is an essential component, cannot
be made subordinate to a criminal or an administrative
If the stated purpose of the investigation is to determine the
existence of violations of the law, the investigation is no
investigation. (Standard Chartered Bank v. Senate,
longer in aid of legislation but in aid or prosecution. This G.R. No. 167173, December 27, 2007)
violates the principle of separation of powers and is beyond
the scope of Congressional powers. Distiction between Standard Chartered Bank v.
Senate and Bengzon v. Senate Blue Ribbon
Limitations on legislative investigation Committee

1. Under Sec. 21, Art. VI, the persons appearing in or It is true that in Bengzon, the Court declared that the
affected by such legislative inquiries shall be issue to be investigated was one over which
respected. jurisdiction had already been acquired by the
2. The Rules of procedures to be followed in such Sandiganbayan, and to allow the [Senate Blue Ribbon]
inquiries shall be published for the guidance of Committee to investigate the matter would create the
those who will be summoned. This must be strictly possibility of conflicting judgments; and that the
followed so that the inquiries are confined only to inquiry into the same justiciable controversy would be
the legislative purpose. This is also to avoid an encroachment on the exclusive domain of judicial
abuses. jurisdiction that had set in much earlier.
3. The investigation must be in aid of legislation.
4. Congress may not summon the President as To the extent that, in the case at bench, there are a
witness or investigate the latter in view of the number of cases already pending in various courts and
doctrine of separation of powers except in administrative bodies involving the petitioners,
impeachment cases. relative to the alleged sale of unregistered foreign
securities, there is a resemblance between this case
NOTE: It is the Presidents prerogative, whether to and Bengzon. However, the similarity ends there.
divulge or not the information, which he deems
confidential or prudent in the public interest. Central to the Courts ruling in Bengzon -- that the
Senate Blue Ribbon Committee was without any
5. Congress may no longer punish the witness in constitutional mooring to conduct the legislative
contempt after its final adjournment. The basis of

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LEGISLATIVE DEPARTMENT

investigation -- was the Courts determination that the Question hour v. Legislative investigation
intended inquiry was not in aid of legislation. The
Court found that the speech of Senator Enrile, which LEGISLATIVE
QUESTION HOUR
sought such investigation, contained no suggestion of INVESTIGATION
(SEC. 22, ART. VI,
any contemplated legislation; it merely called upon (SEC. 21, ART. VI,
1987 CONSTITUTION)
the Senate to look into possible violations of Sec. 5, RA 1987 CONSTITUTION)
No. 3019. Thus, the Court held that the requested As to persons who may appear
probe failed to comply with a fundamental
requirement of Sec. 21, Art. VI of the Constitution. Only a department head Any person
(Standard Chartered Bank v. Senate, G.R. No. 167173, As to who conducts the investigation
December 27, 2007)
Entire body Committees/Entire Body
Contempt powers of Congress As to subject matter
Matters related to the Any matter for the purpose
Even if the Constitution only provides that Congress department only of legislation
may punish its members for disorderly behavior or
expel the same, it is not an exclusion of power to hold
Oversight power of the Congress
other persons in contempt.

NOTE: Congress has the inherent power to punish Embraces all activities undertaken by Congress to
recalcitrant witnesses for contempt, and may have them enhance its understanding of and influence over the
incarcerated until such time that they agree to testify. The implementation of legislation it has enacted. It
continuance of such incarceration only subsists for the concerns post-enactment measures undertaken by
lifetime, or term, of such body. Thus, each House lasts for Congress. (Concurring and Dissenting Opinion of
only 3 years. But if one is incarcerated by the Senate, it is Justice Puno, Macalintal v. COMELEC, G.R. No. 157013,
indefinite because the Senate, with its staggered terms as an July 10, 2003)
instuitution, is a continuing body.
Scope of the power of oversight
Legislative contempt vis--vis pardoning power of the
president 1. Monitor bureaucratic compliance with program
objectives;
Legislative contempt is a limitation on the Presidents 2. Determine whether agencies are properly
power to pardon by virtue of the doctrine of administered;
separation of powers. 3. Eliminate executive waste and dishonesty;
4. Prevent executive usurpation of legislative
Question Hour authority; and
5. Assess executive conformity with the
Where the heads of departments may, upon their own congressional perception of public interest.
initiative, with the consent of the President, or upon (Concurring and Dissenting Opinion of Justice
the request of either House, as the rules of each House Puno, Macalintal v. COMELEC, G.R. No. 157013,
shall provide, appear before and be heard by such July 10, 2003)
House on any matter pertaining to their departments.
Written questions shall be submitted to the President Bases of oversight power of Congress
of the Senate or the Speaker of the HoR at least 3 days
before their scheduled appearance. Interpellations 1. Intrinsic in the grant of legislative power itself;
shall not be limited to written questions, but it may 2. Integral to the system of checks and balances; and
cover matters related thereto. When the security of 3. Inherent in a democratic system of government.
the State or the public interest so requires and the
President so states in writing, the appearance shall be Categories of Congressional Oversight Functions
conducted in executive session (Sec. 22, Art. VI)
1. Scrutiny Implies a lesser intensity and
continuity of attention to administrative
operations. Its primary purpose is to determine
economy and efficiency of the operation of
government activities. In the exercise of
legislative scrutiny, Congress may request
information and report from the other branches

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37 FACULTY OF CIVIL LAW
Political and International Law

of government. It can give recommendations or separation of powers. (ABAKADA Guro Party-list v.


pass resolutions for consideration of the agency Purisima, G.R. No. 166715, August 14, 2008)
involved. It is based primarily on the power of
appropriation of Congress. But legislative scrutiny Q: May the Senate be allowed to continue the
does not end in budget hearings. Congress can ask conduct of a legislative inquiry without a duly
the heads of departments to appear before and published rules of procedure?
be heard by either the House of Congress on any
matter pertaining to their department. Likewise, A: No. The phrase duly published rules of procedure
Congress exercises legislative scrutiny thru its requires the Senate of every Congress to publish its
power of confirmation to find out whether the rules of procedure governing inquiries in aid of
nominee possesses the necessary qualifications, legislation because every Senate is distinct from the
integrity and probity required of all public one before it or after it. (Garcillano v. House of
servants. Representatives Committee on Public Information,
2. Congressional Investigation Involves a more G.R. No. 170338, December 23, 2008)
intense digging of facts. It is recognized under Sec.
21, Art. VI. Even in the absence of constitutional Publication in the internet
mandate, it has been held to be an essential and
appropriate auxiliary to the legislative functions. The invocation of the Senators of the Provisions of
3. Legislative Supervision Connotes a continuing The Electronic Commerce Act of 2000, to support
and informed awareness on the part of their claim of valid publication through the internet is
congressional committee regarding executive all the more incorrect. The law merely recognizes the
operations in a given administrative area. It allows admissibility in evidence of electronic data messages
Congress to scrutinize the exercise of delegated and/or electronic documents. It does not make the
law-making authority, and permits Congress to internet a medium for publishing laws, rules and
retain part of that delegated authority. regulations. (Garcillano v. House of Representatives
Committee on Public Information, G.R. No. 170338,
Legislative veto December 23, 2008)

A statutory provision requiring the President or an Publication of the internal rules of Congress
administrative agency to present the proposed IRR of
a law to Congress which, by itself or through a The Constitution does not require publication of the
committee formed by it, retains a right or power internal rules of the House or Senate. Since rules of the
to approve or disapprove such regulations before they House or Senate affect only their members, such rules
take effect. As such, a legislative veto in the form of a need not be published, unless such rules expressly
congressional oversight committee is in the form of an provide for their publication before the rules can take
inward-turning delegation designed to attach a effect. (Pimentel, Jr., et al v. Senate Committee of the
congressional leash to an agency to which Congress Whole, G.R. No. 187714, March 8, 2011)
has by law initially delegated broad powers. It radically
changes the design or structure of the Constitutions Q: During a hearing of the Senate Committee of the
diagram of power as it entrusts to Congress a direct Whole, some proposed amendments to the Rules of
role in enforcing, applying or implementing its own the Ethics Committee that would constitute the Rules
laws. Thus, legislative veto is not allowed in the of the Senate Committee of the Whole were adopted.
Philippines. (ABAKADA Guro Party-list v. Purisima, G.R. Senator Sonia raised as an issue the need to publish
No. 166715, August 14, 2008) the proposed amended Rules of the Senate
Committee of the Whole, as directed by the amended
Q: Can Congress exercise discretion to approve or Rules itself. However, the Senate Committee of the
disapprove an IRR based on a determination of Whole proceeded without publication of the
whether or not it conformed to the law? amended Rules. Is the publication of the Rules of the
Senate Committee of the Whole required for their
A: No. In exercising discretion to approve or effectivity?
disapprove the IRR based on a determination of
whether or not it conformed to the law, Congress A: Yes. In this particular case, the Rules of the Senate
arrogated judicial power unto itself, a power Committee of the Whole itself provide that the Rules
exclusively vested in the Supreme Court by the must be published before the Rules can take effect.
Constitution. Hence, it violates the doctrine of Thus, even if publication is not required under the
Constitution, publication of the Rules of the Senate

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LEGISLATIVE DEPARTMENT

Committee of the Whole is required because the Rules A. In a bicameral system, bills are independently
expressly mandate their publication. xxx. To comply processed by both Houses of Congress. It is not
with due process requirements, the Senate must unusual that the final version approved by one House
follow its own internal rules if the rights of its own differs from what has been approved by the other.
members are affected. (Pimentel, Jr., et al v. Senate
Committee of the Whole, G.R. No. 187714, March 8, The conference committee, consisting of members
2011) nominated from both Houses, is an extra-
constitutional creation of Congress whose function is
Q: Is the Senate a continuing legislative body? to propose to Congress ways of reconciling conflicting
provisions found in the Senate version and in the
A: No. The present Senate under the 1987 Constitution House version of a bill. (Concurring and Dissenting
is no longer a continuing legislative body. The present Opinion, J. Callejo, Sr., G.R. No. 168056, September 1,
Senate has 24 members, twelve of whom are elected 2005)
every 3 years for a term of 6 years each. Thus, the term
of 12 Senators expires every 3 years, leaving less than Extent of the power of the Committee
a majority of Senators to continue into the next
Congress since the Rules of Procedure must be The conferees are not limited to reconciling the
republished by the Senate after every expiry of the differences in the bill but may introduce new
term of the 12 Senators. (Garcillano v. House of provisions germane to the subject matter or may
Representatives Committee on Public Information, et report out an entirely new bill on the subject.
al., G.R. No. 170338, December 23, 2008) (Tolentino v. Secretary of Finance, G.R. No, 115455,
August 25, 1994)
NOTE: There is no debate that the Senate as an institution is
"continuing", as it is not dissolved as an entity with each Scope of the powers of the Committee
national election or change in the composition of its
members. However, in the conduct of its day-to-day
1. Adopt the bill entirely
business the Senate of each Congress acts separately and
2. Amend or Revise
independently of the Senate of the Congress before it.
3. Reconcile the House and Senate Bills
Undeniably, all pending matters and proceedings, 4. Propose entirely new provisions not found in
i.e.unpassed bills and even legislative investigations, of the either the Senate or House bills
Senate of a particular Congress are considered terminated
upon the expiration of that Congress and it is merely optional LIMITATIONS ON LEGISLATIVE POWER
on the Senate of the succeeding Congress to take up such
unfinished matters, not in the same status, but as if Limitations on legislative powers
presented for the first time. The logic and practicality of such
a rule is readily apparent considering that the Senate of the
succeeding Congress (which will typically have a different Substantive
composition as that of the previous Congress) should not be 1. Express:
bound by the acts and deliberations of the Senate of which a. Bill of Rights (Art. III, 1987 Constitution)
they had no part. (Neri v. Senate Committee on b. On Appropriations (Secs. 25 and 29, pars. 1
Accountability of Public Officers and Investigations, GR. No. and 2, Art. VI)
180643, September 4, 2008) c. On Taxation (Secs. 28 and 29, par. 3, Art. VI)
d. On Constitutional appellate jurisdiction of SC
THE BICAMERAL CONFERENCE COMMITTEE (Sec. 30, Art. VI)
e. No law granting title of royalty or nobility
Purpose of the Bicameral Conference Committee shall be passed (Sec.31, Art. VI)
f. No specific funds shall be appropriated or
A Conference Committee is constituted and is paid for use or benefit of any religion, sect,
composed of Members from each House of Congress etc., except for priests, etc., assigned to AFP,
to settle, reconcile or thresh out differences or penal institutions, etc. (Sec. 29, par. 2, Art. VI)
disagreements on any provision of the bill. 2. Implied:
a. Prohibition against irrepealable laws
Q: If the version approved by the Senate is different b. Non-delegation of powers
from that approved by the HoR, how are the
differences reconciled? Procedural
1. Only one subject, to be stated in the title of the
bill. (Sec. 26, par. 1, Art. VI)

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2. Three (3) readings on separate days; printed expression or indication of the real subject or scope of
copies of the bill in its final form distributed to the act, is bad.
members 3 days before its passage, except if
President certifies to its immediate enactment to In determining sufficiency of particular title, its
meet a public calamity or emergency; upon its last substance rather than its form should be considered,
reading, no amendment allowed and the vote and the purpose of the constitutional requirement, of
thereon taken immediately and the yeas and nays giving notice to all persons interested, should be kept
entered into the Journal. (Sec.26, par. 2, Art. VI) in mind by the court. (Lidasan v. COMELEC, G.R. No. L-
3. Appropriation bills, revenue bills, tariff bills, bills 28089, October 25, 1967)
authorizing the increase of public debt, bills of
local application and private bills shall originate Q: How many readings must a bill undergo before it
exclusively in the House of Representatives. (Sec. may become a law?
24, Art. VI)
A: Each bill must pass 3 readings in both Houses. In
NOTE: During the First Reading, only the title of the bill is other words, there must be a total of 6 readings.
read and it is passed to the proper committee. On the
Second Reading, the entire text is read, debates and
GR: Each reading shall be held on separate days and
amendments are held. On the Third Reading, only the title is
printed copies thereof in its final form shall be
read, votes are taken immediately thereafter.
distributed to its Members, 3 days before its passage.
One bill-one subject rule
XPN: If a bill is certified as urgent by the President as
Every bill passed by the Congress shall embrace only to the necessity of its immediate enactment to
one subject. The subject shall be expressed in the title meet a public calamity or emergency, the 3 readings
of the bill. This rule is mandatory. can be held on the same day. (Sec. 26, Art. VI)

NOTE: The purposes of such rule are: (1) To prevent Reasons for the three readings on three separate
hodgepodge or log-rolling legislation; (2) To prevent surprise days rule
or fraud upon the legislature; and, (3) To fairly apprise the
people of the subjects of legislation. (Central Capiz v. 1. Address the tendency of legislators (on the last
Ramirez, G.R. No. 16197, March 12, 1920) day of the legislative year when legislators are
eager to go home)
Determination of the sufficiency of the title 2. Rush bills through
3. Insert alterations which would not otherwise
The Constitution does not require Congress to employ stand scrutiny in leisurely debate
in the title of an enactment, language of such precision
as to mirror, fully index or catalogue all the contents Appropriation bill
and the minute details therein. It suffices if the title
should serve the purpose of the constitutional demand Primarily made for the appropriation of sum of money
that it informs the legislators, the persons interested from the public treasury.
in the subject of the bill, and the public, of the nature,
scope and consequences of the proposed law and its Revenue bill
operation. And this, to lead them to inquire into the
body of the bill, study and discuss the same, take Specifically designed to raise money or revenue
appropriate action thereon, and, thus, prevent through imposition or levy.
surprise or fraud upon the legislators.
Bill of local application
The test of the sufficiency of a title is whether or not it
is misleading; and, which technical accuracy is not A bill limited to specific localities, such as for instance
essential, and the subject need not be stated in the creation of a town. Hence, it is one involving purely
express terms where it is clearly inferable from the local or municipal matters, like a charter of a city.
details set forth, a title which is so uncertain that the
average person reading it would not be informed of Private bills
the purpose of the enactment or put on inquiry as to
its contents, or which is misleading, either in referring Those which affect private persons, such as for
to or indicating one subject where another or different instance a bill granting citizenship to a specific
one is really embraced in the act, or in omitting any

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LEGISLATIVE DEPARTMENT

foreigner. They are illustrated by a bill granting Implied limitations on appropriation power
honorary citizenship to a distinguished foreigner.
1. Must specify public purpose;
LIMITATIONS ON APPROPRIATION, REVENUE, AND 2. Sum authorized for release must be determinate,
TARIFF MEASURES or at least determinable. (Guingona v. Carague,
G.R. No. 94571, April 22, 1991)
Constitutional limitations on the legislatives power
to enact laws on appropriation, revenue and tariff Constitutional limitations on special appropriations
(ART) measures measures

1. All appropriation, revenue or tariff bills, bills 1. Must specify public purpose for which the sum
authorizing increase of the public debt, bills of was intended;
local application, and private bills, shall originate 2. Must be supported by funds actually available as
exclusively in the House of Representatives, but certified by the National Treasurer or to be raised
the Senate may propose or concur with by corresponding revenue proposal included
amendments. (Sec. 24, Art. VI) therein. (Sec. 25, par. 4, Art. VI, 1987 Constitution)

NOTE: The initiative for filing of ART bills must come Constitutional rules on General Appropriations Laws
from the House, but it does not prohibit the filing in the
Senate of a substitute bill in anticipation of its receipt of 1. Congress may not increase appropriations
the bill from the House, so long as the action by the recommended by the President for the operations
Senate is withheld pending the receipt of the House bill.
of the government;
(Tolentino v. Sec. of Finance, G.R. No. 115455, August
25, 1994)
2. Form, content and manner of preparation of
budget shall be provided by law;
2. The President shall have the power to veto any 3. No provision or enactment shall be embraced in
particular item or items in an appropriation, the bill unless it releases specifically to some
revenue, or tariff bill, but the veto shall not affect particular appropriations therein;
the item or items to which he does not object. 4. Procedure from approving appropriations for
(Sec.27, Art. VI) Congress shall be the same as that of other
departments in order to prevent sub-rosa
Power of appropriation appropriations by Congress;
5. Prohibition against transfer of appropriations.
The spending power, also called the power of the Nonetheless, the following may, by law, be
purse, belongs to Congress, subject only to the veto authorized to augment any item in the general
power of the President. It carries with it the power to appropriations law for their respective offices
specify the project or activity to be funded under the from savings in other items of their respective
appropriation law. appropriations (Doctrine of Augmentation):
a. President
Appropriation law b. Senate President
c. Speaker of the HoR
A statute which primary and specific purpose is to d. Chief Justice
authorize release of public funds from the treasury. e. Heads of Constitutional Commissions;
6. Prohibitions against appropriations for sectarian
Budget benefit; and
7. Automatic re-appropriation If, by the end of any
Financial program of the national government for the fiscal year, the Congress shall have failed to pass
designated calendar year, providing for the estimates the general appropriations bill for the ensuing
of receipts of revenues and expenditures. fiscal year, the general appropriations law for the
preceding fiscal year shall be deemed reenacted
Classifications of appropriations and shall remain in force and effect until the
general appropriations bill is passed by the
1. General appropriation law Passed annually, Congress. (Sec. 25, par. 7, Art. VI)
intended for the financial operations of the entire
government during one fiscal period;
2. Special appropriation law Designed for a specific
purpose.

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41 FACULTY OF CIVIL LAW
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Q: May each legislator exercise the appropriation


power of Congress? NOTE: The proposed budget is not final. It is subject to the
approval of Congress but the President may exercise his or
A: No. Legislative power shall be exclusively exercised her veto power. Accordingly, the power of the purse belongs
to Congress, subject only to the veto power of the President.
by the body to which the Constitution has conferred
The President may propose the budget but still the final say
the same. The power to appropriate must be exercised
on the matter of appropriation is lodged in the Congress.
only through legislation, pursuant to Sec. 29(1), Art. VI (Philippine Constitution Association v. Enriquez, G.R. No.
of the Constitution which states: No money shall be 113105, August 19, 1994)
paid out of the Treasury except in pursuance of
an appropriation made by law. (Belgica, et al. v. Modification of Congress of the budget proposal
Ochoa, et al., G.R. No. 208566, November 19, 2013)
Congress may only reduce but not increase the
Q: The budget of a predominantly Muslim province budget.
provides the Governor with a certain amount as his
discretionary funds. Recently, however, the NOTE: Congress may not increase its outlay for itself, the
Sangguniang Panlalawigan passed a resolution judiciary and the Constitutional Commissions because it is
appropriating P100,000 as a special discretionary presumed that their needs have already been identified
fund of the Governor, to be spent by him in leading a while drafting the budget.
pilgrimage of his provincemates to Mecca, Saudi
Arabia, Islam's holiest city. PRESIDENTIAL VETO AND CONGRESSIONAL
OVERRIDE
Philconsa, on constitutional grounds, has filed suit to
nullify the resolution of the Sangguniang Rule on presidential veto
Panlalawigan giving the special discretionary fund to
the Governor for the stated purpose. How would you GR: If the President disapproves a bill enacted by
decide the case? Give your reasons. Congress, he should veto the entire bill. He is not
allowed to veto separate items of a bill.
A: The resolution is unconstitutional.
XPN: Item-veto is allowed in case of Appropriation,
1. First, it violates Art. VI, Sec. 29(2) of the Revenue, and Tariff bills. (Sec. 27, Par. 2, Art. VI)
Constitution, which prohibits the appropriation of
public money or property, directly or indirectly, XPNs to the XPN:
for the use, benefit or support of any system of 1. Doctrine of inappropriate provisions A
religion; provision that is constitutionally
2. Second, it contravenes Art. VI, Sec. 25(6), which inappropriate for an appropriation bill may be
limits the appropriation of discretionary funds singled out for veto even if it is not an
only for public purposes. appropriation or revenue item. (Gonzales v.
Macaraig, Jr., G.R. No. 87636, November 19,
The use of discretionary funds for purely religious 1990)
purpose is unconstitutional, and the fact that the 2. Executive impoundment Refusal of the
disbursement is made by resolution of a local President to spend funds already allocated by
legislative body and not by Congress does not make it Congress for specific purpose. It is the failure
any less offensive to the Constitution. Above all, the to spend or obligate budget authority of any
resolution constitutes a clear violation of the Non- type. (Philconsa v. Enriquez, G.R. No. 113105,
establishment Clause of the Constitution. August 19, 1994)

Budget proposal Instances of pocket veto

The President shall propose the budget and submit it 1. When the President fails to act on a bill; and
to Congress. It shall indicate the expenditures, sources 2. When the reason he does not return the bill to the
of financing, as well as, receipts from previous Congress is that Congress is not in session.
revenues and proposed revenue measures. It will
serve as a guide for Congress: NOTE: Pocket veto is not applicable in the Philippines
because inaction by the President for 30 days never
1. In fixing the appropriations;
produces a veto even if Congress is in recess. The President
2. In determining the activities which should be must still act to veto the bill and communicate his veto to
funded. (Sec. 22, Art. VII)

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2014 GOLDEN NOTES 42
LEGISLATIVE DEPARTMENT
Congress without need of returning the vetoed bill with his (Sec. 2, Art. XII)
veto message. 11. Power of internal organization (Sec. 16, Art. VI)
a. Election of officers
Rider b. Promulgate internal rules
c. Disciplinary powers (Sec. 16, Art. VI)
A provision in a bill which does not relate to a 12. Informing Function
particular appropriation stated in the bill. Since it is an
invalid provision under Sec. 25, Par. 2, Art. VII, 1987 Congressional grant of emergency powers to the
Constitution, the President may veto it as an item. President

Congressional override Under Sec. 23[2], Art. VI of the Constitution, Congress


may grant the President emergency powers subject to
If, after reconsideration, 2/3 of all members of such the following conditions:
House agree to pass the bill, it shall be sent to the 1. There is a war or other national emergency;
other House by which it shall likewise be reconsidered 2. The grant of emergency powers must be for a
and if approved by 2/3 of all members of that House, limited period;
it shall become a law without the need of presidential 3. The grant of emergency powers is subject to such
approval. restrictions as Congress may prescribe; and
4. The emergency powers must be exercised to carry
Instances when the Constitution requires that the out a national policy declared by Congress
yeas and nays of the Members be taken every time a
House has to vote Policy on war

1. Upon the last and third readings of a bill; (Sec. 26, The Philippines renounces war as an instrument of
par. 2, Art. VI) national policy. (Sec. 2, Art. II)
2. At the request of 1/5 of the members present;
(Sec. 16, par. 4, Art. VI) and Voting requirements to declare the existence of a
3. In repassing a bill over the veto of the President. state of war
(Sec. 27, par. 1, Art. VI)
1. 2/3 vote of both Houses
NON-LEGISLATIVE POWERS 2. In joint session
3. Voting separately
Non-legislative powers of Congress
NOTE: Even though the legislature can declare an existence
1. Power to declare the existence of state of war of war and enact measures to support it, the actual power to
(Sec. 2, Par. 1, Art. VI) engage in war is lodged, nonetheless, in the executive.
2. Power to act as Board of Canvassers in election of
President (Sec. 10, Art. VII) INFORMING FUNCTIONS
3. Power to call a special election for President and
Vice-President (Sec. 10, Art. VII) Informing function of Congress
4. Power to judge Presidents physical fitness to
discharge the functions of the Presidency (Sec. 11, The informing function of the legislature includes its
Art. VII) function to conduct legislative inquiries and
5. Power to revoke or extend suspension of the investigation and its oversight power.
privilege of the writ of habeas corpus or
declaration of martial law (Sec. 18, Art. VII) The power of Congress does not end with the finished
6. Power to concur in Presidential amnesties. task of legislation. Associated with its principal power
Concurrence of majority of all the members of to legislate is the auxiliary power to ensure that the
Congress (Sec. 19, Art. VII) laws it enacts are faithfully executed. As well stressed
7. Power to concur in treaties or international by one scholar, the legislature fixes the main lines of
agreements; concurrence of at least 2/3 of all the substantive policy and is entitled to see that
members of the Senate (Sec. 21, Art. VII) administrative policy is in harmony with it; it
8. Power to confirm certain appointments/ establishes the volume and purpose of public
nominations made by the President (Secs. 9 and expenditures and ensures their legality and propriety;
16, Art. VII) it must be satisfied that internal administrative
9. Power of Impeachment (Sec. 2, Art. XI) controls are operating to secure economy and
10. Power relative to natural resources

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43 FACULTY OF CIVIL LAW
Political and International Law

efficiency; and it informs itself of the conditions of Steps in the impeachment process
administration of remedial measure.
1. Initiating impeachment case
The power of oversight has been held to be intrinsic in a. Verified complaint filed by any member of the
the grant of legislative power itself and integral to the HoR or any citizen upon resolution of
checks and balances inherent in a democratic system endorsement by any member thereof.
of government. Woodrow Wilson went one step b. Included in the order of business within 10
farther and opined that the legislatures informing session days.
function should be preferred to its legislative function. c. Referred to the proper committee within 3
He emphasized that [E]ven more important than session days from its inclusion.
legislation is the instruction and guidance in political d. The committee, after hearing, and by
affairs which the people might receive from a body majority vote of all its members, shall submit
which kept all national concerns suffused in a broad its report to the HoR together with the
daylight of discussion. (Concurring and Dissenting corresponding resolution.
Opinion of Justice Puno, Macalintal v. COMELEC, G.R. e. Placing on calendar the Committee resolution
No. 157013, July 10, 2003) within 10 days from submission;
f. Discussion on the floor of the report;
POWER OF IMPEACHMENT
NOTE: If the verified complaint is filed by at least
Impeachment 1/3 of all the members of the HoR, the same shall
constitute the Articles of Impeachment, and trial
by the Senate shall forthwith proceed. (Sec. 3, par.
The method by which persons holding government
4, Art. XI, 1987 Constitution)
positions of high authority, prestige, and dignity and
with definite tenure may be removed from office for
g. A vote of at least 1/3 of all the members of
causes closely related to their conduct as public
the HoR shall be necessary either to affirm a
officials.
favorable resolution with the Articles of
Impeachment of the committee or override
NOTE: It is a national inquest into the conduct of public men.
its contrary resolution. (Sec. 3, par. 3, Art. XI.
It is primarily intended for the protection of the State, not 1987 Constitution)
for the punishment of the offender. The penalties attached
to the impeachment are merely incidental to the primary 2. Trial and Decision in impeachment proceedings
intention of protecting the people as a body politic. a. The Senators take an oath or affirmation
b. When the President of the Philippines is on
Impeachable officers trial, the Chief Justice of the SC shall preside
but shall not vote.
1. President c. A decision of conviction must be concurred in
2. Vice-President by at least 2/3 of all the members of Senate.
3. Members of the Supreme Court
4. Members of the Constitutional Commissions NOTE: The Senate has the sole power to try and decide all
5. Ombudsman (Sec. 2, Art. XI, 1987 Constitution) cases of impeachment. (Sec. 3(6), Art. XI, 1987 Constitution)

NOTE: The enumeration is exclusive. Initiated impeachment

Grounds for impeachment The proceeding is initiated or begins, when a verified


complaint is filed and referred to the Committee on
1. Culpable violation of the Constitution Justice for action. This is the initiating step which
2. Treason triggers the series of step that follow. The term to
3. Bribery initiate refers to the filing of the impeachment
4. Graft and Corruption complaint coupled with Congress taking initial action
5. Other high crimes of said complaint. (Francisco v. House of Rep., G.R. No.
6. Betrayal of public trust (Sec. 2, Art. XI, 1987 160261, November 10, 2003)
Constitution)
Determination of sufficiency of form and substance
NOTE: The enumeration is exclusive. of an impeachment complaint

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2014 GOLDEN NOTES 44
LEGISLATIVE DEPARTMENT

Determination of sufficiency of form and substance of NOTE: An impeachment case is the legal controversy that
an impeachment complaint is an exponent of the must be decided by the Senate while an impeachment
express constitutional grant of rulemaking powers of proceeding is one that is initiated in the House of
Representatives. For purposes of applying the one year ban
the HoR. In the discharge of that power and in the
rule, the proceeding is initiated or begins when a verified
exercise of its discretion, the House has formulated
complaint is filed and referred to the Committee on Justice
determinable standards as to form and substance of for action. (Francisco v. House of Representatives, et. al., G.R.
an impeachment complaint. Furthermore the No. 160261, November 10, 2003)
impeachment rules are clear in echoing the
constitutional requirements in providing that there The power to impeach is essentially a non-legislative
must be a verified complaint or resolution and that prerogative and can be exercised by Congress only within the
the substance requirement is met if there is a recital limits of the authority conferred upon it by the Constitution.
of facts constituting the offense charged and (ibid)
determinative of the jurisdiction of the committee.
Initiation takes place by the act of filing of the impeachment
(Gutierrez v. The House of Representatives Committee
complaint and referral to the House Committee on Justice.
on Justice, G.R. No. 193459, February 15, 2011) Once an impeachment complaint has been initiated in the
foregoing manner, another may not be filed against the
Essence of the one-year bar rule same official within a one year period. (Gutierrez v. House of
Representatives Committee on Justice, G.R. No. 193459,
The purpose of the one-year bar is two-fold: February 15, 2011)
1. To prevent undue or too frequent harassment
2. To allow the legislature to do its principal task of
legislation. (Francisco v. House of Rep., G.R. No.
160261, November 10, 2003)

The consideration behind the intended limitation


refers to the element of time, and not the number of
complaints. The impeachable officer should defend
himself in only one impeachment proceeding, so that
he will not be precluded from performing his official
functions and duties. Similarly, Congress should run
only one impeachment proceeding so as not to leave
it with little time to attend to its main work of law-
making. The doctrine laid down in Francisco that
initiation means filing and referral remains congruent
to the rationale of the constitutional provision.
(Gutierrez v. The House of Representatives Committee
on Justice, G.R. No. 193459, February 15, 2011)

Effects of conviction in impeachment

1. Removal from office


2. Disqualification to hold any other office under the
Republic of the Philippines
3. Party convicted shall be liable and subject to
prosecution, trial and punishment according to
law. (Sec. 3 (7), Art. XI, 1987 Constitution)

Limitations imposed by the Constitution upon the


initiation of impeachment proceedings

1. The HoR shall have the exclusive power to initiate


all cases of impeachment.
2. Not more than one impeachment proceeding
shall be initiated against the same official within a
period of one year.

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45 FACULTY OF CIVIL LAW
Political and International Law

EXECUTIVE DEPARTMENT Such was the case of former President Joseph


Estrada. Immunity cannot be claimed to shield a
Head of the executive department non-sitting President from prosecution for alleged
criminal acts done while sitting in office. (Estrada
The President is both the head of State and head of v. Desierto, G.R. Nos. 146710-15, March 2, 2001)
government; hence, executive power is exclusively
vested on him. Q: Is a non-sitting President immune from suit for
acts committed during his tenure?
PRIVILEGES, INHIBITIONS AND DISQUALIFICATIONS
A: No. A non-sitting President does not enjoy
IMMUNITY AND PRIVILEGES immunity from suit, even though the acts were done
during her tenure. The intent of the framers of the
Privileges of the President and Vice-President Constitution is clear that the immunity of the
president from suit is concurrent only with his tenure
PRESIDENT VICE-PRESIDENT and not his term. Former President Arroyo cannot use
the presidential immunity from suit to shield herself
1. Official residence; 1. Salary shall not be
from judicial scrutiny that would assess whether,
2. Salary is determined decreased during his
within the context of amparo proceedings, she was
by law and not to be tenure;
responsible or accountable for the abduction of
decreased during his 2. If appointed to a
Rodriguez. (In Re: Petition for the Writ of Amparo and
tenure; (Sec. 6, Art. Cabinet post, no need
Habeas Data in favor of Noriel H. Rodriguez; Noriel H.
VII) for Commission on
Rodriguez v. Gloria Macapagal-Arroyo, et al., G.R. Nos.
3. Immunity from suit Appointments
191805 &193160. November 15, 2011)
for official acts. confirmation. (Sec. 3,
Art. VII)
Purpose of presidential immunity
PRESIDENTIAL IMMUNITY
1. Separation of powers The separation of powers
principle is viewed as demanding the executives
Presidential or executive immunity
independence from the judiciary, so that the
President should not be subject to the judiciarys
The President is immune from suit during his
whim. (Almonte v. Vasquez, G.R. No. 95367, May
incumbency.
23, 1995)
2. Public convenience The grant is to assure the
Rules on executive immunity
exercise of presidential duties and functions free
from any hindrance or distraction, considering
A. Rules on immunity during tenure (not term):
that the presidency is a job that, aside from
1. The President is immune from suit during his
requiring all of the office-holders time, demands
tenure. (In re: Bermudez, G.R. No. 76180,
undivided attention. (Soliven v. Makasiar, G.R. No.
October 24, 1986)
82585, November 14, 1988)
2. An impeachment complaint may be filed
against him during his tenure. (Art. XI)
Principle of command responsibility
3. The President may not be prevented from
instituting suit. (Soliven v. Makasiar, G.R. No.
According to Fr. Bernas, command responsibility, in
82585, November 14, 1988)
its simplest terms, means the responsibility of
4. There is nothing in our laws that would
commanders for crimes committed by subordinate
prevent the President from waiving the
members of the armed forces or other persons subject
privilege. The President may shed the
to their control in international wars or domestic
protection afforded by the privilege. (Soliven
conflict.
v. Makasiar, G.R. No. 82585, November 14,
1988)
It is an omission mode of individual criminal liability,
5. Heads of departments cannot invoke the
whereby the superior is made responsible for crimes
Presidents immunity. (Gloria v. Court of
committed by his subordinates for failing to prevent or
Appeals, G.R. No. 119903, August 15, 2000)
punish the perpetrators (as opposed to crimes he
ordered). (Rubrico, et al. v. GMA, et al., G.R. No.
B. Rule on immunity after tenure:
183871, February 18, 2010)
Once out of office, even before the end of the 6-
year term, immunity for non-official acts is lost.

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2014 GOLDEN NOTES 46
EXECUTIVE DEPARTMENT

Elements of command responsibility


Q: Upon complaint of the incumbent President,
1. The existence of a superior-subordinate Dexter Suyat was charged with libel before the RTC.
relationship between the accused as superior and Dexter contends that if the proceedings ensue by
the perpetrator of the crime as his subordinate; virtue of the Presidents filing of his complaint-
2. The superior knew or had reason to know that the affidavit, he may subsequently have to be a witness
crime was about to be or had been committed; for the prosecution, bringing her under the trial
3. The superior failed to take the necessary and courts jurisdiction. May Dexter invoke the
reasonable measures to prevent the criminal acts Presidents immunity?
or punish the perpetrators thereof. (Rodriguez v.
GMA, et al., G.R. Nos. 191805 &193160, A: No. The immunity of the President from suit is
November 15, 2011) personal to the President. It may be invoked only by
the President and not by any other person. The
Application of the doctrine of command privilege of immunity from suit pertains to the
responsibility in amparo proceedings President by the virtue of the office and may be
invoked only by the holder of that office; and not by
It should, at most, be only to determine the author any other person in his behalf. (Soliven v. Makasiar,
who, at the first instance, is accountable for, and has G.R. No. 82585, November 14, 1988)
the duty to address, the disappearance and
harassments complained of, so as to enable the Court PRESIDENTIAL PRIVILEGE
to devise remedial measures that may be appropriate
under the premises to protect rights covered by the Presidential or executive privilege
writ of amparo. (Rubrico, et al. v. GMA, et al., G.R. No.
183871, February 18, 2010) The power of the President and high-level executive
branch officers to withhold certain types of
Q: May the President be held liable for extrajudicial information from Congress, the courts, and ultimately
killings and enforced disappearances as the the public.
Commander-in-Chief of the Philippine military?
Invocation of the privilege
A: Yes. The President may be held accountable under
the principle of command responsibility. The Executive privilege must be invoked in relation to
President, being the commander-in-chief of all armed specific categories of information and not to
forces, necessarily possesses control over the military categories of persons.
that qualifies him as a superior within the purview of
the command responsibility doctrine. NOTE: While executive privilege is a constitutional concept,
a claim thereof may be valid or not depending on the ground
On the issue of knowledge, it must be pointed out that invoked to justify it and the context in which it is made.
although international tribunals apply a strict standard Noticeably absent is any recognition that executive officials
are exempt from the duty to disclose information by the
of knowledge, i.e. actual knowledge, the same may
mere fact of being executive officials. (Senate v. Ermita, G.R.
nonetheless be established through circumstantial No. 169777, April 20, 2006)
evidence. In the Philippines, a more liberal view is
adopted and superiors may be charged with Q: Does the invocation of this privilege through
constructive knowledge. Knowledge of the executive orders, prohibiting executive officials from
commission of irregularities, crimes or offenses is participating in legislative inquiries, violate the
presumed when: (a) the acts are widespread within constitutional right to information on matters of
the government officials area of jurisdiction; (b) the public concern of the people?
acts have been repeatedly or regularly committed
within his area of responsibility; or (c) members of his A: Yes. To the extent that investigations in aid of
immediate staff or office personnel are involved. legislation are generally conducted in public, however,
any executive issuance tending to unduly limit
As to the issue of failure to prevent or punish, it is disclosures of information in such investigations
important to note that as the commander-in-chief of necessarily deprives the people of information which,
the armed forces, the President has the power to being presumed to be in aid of legislation, is presumed
effectively command, control and discipline the to be a matter of public concern. The citizens are
military. (Rodriguez v. GMA, et al., G.R. Nos. 191805 thereby denied access to information which they can
&193160, November 15, 2011.) use in formulating their own opinions on the matter

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47 FACULTY OF CIVIL LAW
Political and International Law

before Congress opinions which they can then Limitation of executive privilege
communicate to their representatives and other
government officials through the various legal means Claim of executive privilege is subject to balancing
allowed by their freedom of expression. (Senate v. against other interest. Simply put, confidentiality in
Ermita, G.R. No. 169777, April 20, 2006) executive privilege is not absolutely protected by the
Constitution. Neither the doctrine of separation of
Persons who can invoke executive privilege powers nor the need for confidentiality of high-level
communications can sustain an absolute, unqualified
1. President Presidential privilege of immunity from judicial
process under all circumstances. (Neri v. Senate, G.R.
NOTE: The privilege being an extraordinary power, it No. 180643, March 25, 2008)
must be wielded only by the highest official in the
executive department. Thus, the President may not Q: Sec. 1 of EO 464 required all heads of departments
authorize her subordinates to exercise such power. in the Executive branch to secure the consent of the
President before appearing in an inquiry conducted
2. Executive Secretary, upon proper authorization by either House of Congress, pursuant to Art. VI, Sec.
from the President 22 of the Constitution. Is the Sec. 1 of EO 464 valid?

NOTE: The Executive Secretary must state that the A: Sec. 1, in view of its specific reference to Sec. 22,
authority is By order of the President, which means Art. VI of the Constitution and the absence of any
he personally consulted with her. reference to inquiries in aid of legislation, must be
construed as limited in its application to appearances
Requirement if an official is summoned by Congress of department heads in the question hour
on a matter which in his own judgment might be contemplated in the provision of said Sec. 22 of Art. VI.
covered by executive privilege The reading is dictated by the basic rule of
construction that issuances must be interpreted, as
When an official is being summoned by Congress on a much as possible, in a way that will render it
matter which, in his own judgment, might be covered constitutional.
by executive privilege, he must be afforded reasonable
time to inform the President or the Executive The requirement then to secure presidential consent
Secretary of the possible need for invoking the under Sec. 1, limited as it is only to appearances in the
privilege. This is necessary in order to provide the question hour, is valid on its face. For under Sec. 22,
President or the Executive Secretary with fair Art. VI of the Constitution, the appearance of
opportunity to consider whether the matter indeed department heads in the question hour is
calls for a claim of executive privilege. If, after the discretionary on their part. (Senate v. Ermita, G.R. No.
lapse of that reasonable time, neither the President 169777, April 20, 2006)
nor the Executive Secretary invokes the privilege,
Congress is no longer bound to respect the failure of NOTE: Sec. 1 of EO 464 cannot, however, be applied to
the official to appear before Congress and may then appearances of department heads in inquiries in aid of
opt to avail of the necessary legal means to compel his legislation. Congress is not bound in such instances to
appearance. (Senate v. Ermita, G.R. No. 169777, April respect the refusal of the department head to appear in such
20, 2006) inquiry, unless a valid claim of privilege is subsequently
made, either by the President herself or by the Executive
Requirement in invoking the privilege Secretary. (Senate v. Ermita, G.R. No. 169777, April 20, 2006)

A formal claim of the privilege is required. A formal Kinds of executive privilege


and proper claim of executive privilege requires a
specific designation and description of the documents 1. State secret privilege Invoked by Presidents on
within its scope as well as precise and certain reasons the ground that the information is of such nature
for preserving their confidentiality. Without this that its disclosure would subvert crucial military or
specificity, it is impossible for a court to analyze the diplomatic objectives.
claim short of disclosure of the very thing sought to be 2. Informers privilege Privilege of the government
protected. Congress, however, must not require the not to disclose the identity of persons who furnish
Executive to state the reasons for the claim with such information in violations of law to officers charged
particularity as to compel disclosure of the with the enforcement of the law.
information, which the privilege is meant to protect. 3. Generic privilege For internal deliberations. Said
(Senate v. Ermita, G.R. No. 169777, April 20, 2006) to attach to intra-governmental documents

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2014 GOLDEN NOTES 48
EXECUTIVE DEPARTMENT

reflecting advisory opinions, recommendations important evidence and by the unavailability of


and deliberations comprising part of a process by the information elsewhere by an appropriate
which governmental decisions and policies are investigating authority.
formulated.
Presumed privilege status of presidential
NOTE: In determining the validity of a claim of privilege, the communications
question that must be asked is not only whether the
requested information falls within one of the traditional The presumption is based on the Presidents
privileges, but also whether that privilege should be honored
generalized interest in confidentiality. The privilege is
in a given procedural setting.
necessary to guarantee the candor of presidential
Kinds of executive privilege advisors and to provide the President and those who
assist him with freedom to explore alternatives in the
1. Presidential communications privilege; process of shaping policies and making decisions and
2. Deliberative process privilege. (In Re: Sealed Case to do so in a way many could be unwilling to express
No. 96-3124, June 17, 1997) except privately. The presumption can be overcome
only by mere showing of public need by the branch
Presidential communications privilege v. Deliberative seeking access to conversations. The courts are
process privilege enjoined to resolve the competing interests of the
political branches of the government in the manner
that preserves the essential functions of each Branch.
PRESIDENTIAL
DELIBERATIVE
COMMUNICATIONS
PROCESS PRIVILEGE Q: The HoRs House Committee conducted an inquiry
PRIVILEGE
on the Japan-Philippines Economic Partnership
Pertains to Includes advisory
Agreement (JPEPA), then being negotiated by the
communications, opinions,
Philippine Government. The House Committee
documents or other recommendations and
requested DTI Usec. Jamie Arlos to furnish it with a
materials that reflect deliberations
copy of the latest draft of the JPEPA. Arlos replied
presidential decision- comprising part of a
that he shall provide a copy thereof once the
making and process by which
negotiations are completed.
deliberations that the governmental decisions
President believes and policies are
A petition was filed with the SC which seeks to obtain
should remain formulated
a copy of the Philippine and Japanese offers
confidential
submitted during the negotiation process and all
Applies to decision- Applies to decision-
pertinent attachments and annexes thereto. Arlos
making of the President making of executive
invoked executive privilege based on the ground that
officials
the information sought pertains to diplomatic
Rooted in the Rooted in common law
negotiations then in progress. On the other hand,
constitutional principle privileges
Akbayan for their part invoked their right to
of separation of powers
information on matters of public concern.
and the Presidents
unique constitutional
Are matters involving diplomatic negotiations
role
covered by executive privilege?
Elements of presidential communications privilege A: Yes. It is clear that while the final text of the JPEPA
may not be kept perpetually confidential, the offers
1. The protected communication must relate to a exchanged by the parties during the negotiations
quintessential and non-delegable presidential continue to be privilege even after the JPEPA is
power. published. Disclosing these offers could impair the
2. The communication must be authored or ability of the Philippines to deal not only with Japan
solicited and received by a close advisor of the but with other foreign governments in future
President or the President himself. The judicial negotiations. (AKBAYAN Citizens Action Party v.
test is that an advisor must be in operational Aquino, G.R No. 170516, July 16, 2008)
proximity with the President.
3. The presidential communications privilege NOTE: Such privilege is only presumptive.
remains a qualified privilege that may be
overcome by a showing of adequate need, such
that the information sought likely contains

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49 FACULTY OF CIVIL LAW
Political and International Law

Q: Matters involving diplomatic negotiations are b. Office of the Ombudsman;


covered by executive privilege. However, such c. Secretaries;
privilege is only presumptive. How can this d. Undersecretaries;
e. Chairmen or heads of bureaus or offices,
presumption be overcome?
including GOCCs and their subsidiaries.

A: Recognizing a type of information as privileged does If the spouse, etc., was already in any of the above
not mean that it will be considered privileged in all offices at the time before his/her spouse became
instances. Only after a consideration of the context in President, he/she may continue in office. What is
which the claim is made may it be determined if there prohibited is appointment and reappointment, not
is a public interest that calls for the disclosure of the continuation in office.
desired information, strong enough to overcome its
traditionally privileged status. (AKBAYAN Citizens Spouses, etc., can be appointed to the judiciary and as
ambassadors and consuls.
Action Party v. Aquino, et al., G.R No. 170516, July 16,
2008)
Q: Christian, the Chief Presidential Legal Counsel
(CPLC), was also appointed as Chairman of the PCGG.
PROHIBITIONS, INHIBITIONS AND
May the two offices be held by the same person?
DISQUALIFICATIONS
A: No. The two offices are incompatible. Without
Prohibitions attached to the President, Vice-
question, the PCGG is an agency under the Executive
President, Cabinet Members, and their deputies or
Department. Thus, the actions of the PCGG Chairman
assistants, unless otherwise provided in the
are subject to the review of the CPLC. (Public Interest
Constitution
Group v. Elma, G.R. No. 138965, June 30, 2006)
1. Shall not receive any other emolument from the
Q: Pres. Espaldon appointed Anthony as the Acting
government or any other source (Sec. 6, Art. VII)
Secretary of Justice. After a couple of days, Pres.
2. Shall not hold any other office or employment
Espaldon designated Anthony as the Acting Solicitor
during their tenure unless:
General in a concurrent capacity. Ben contested the
a. Otherwise provided in the Constitution (e.g.
appointment of Anthony on the ground that the
VP can be appointed as a Cabinet Member
appointment violated Sec. 13, Art. VII of the
without the need of confirmation by
Constitution which expressly prohibits the President,
Commission on Appointments; Sec. of Justice
Vice-President, the Members of the Cabinet, and
sits in the Judicial and Bar Council)
their deputies or assistants from holding any other
b. The positions are ex-officio and they do not
office or employment during their tenure unless
receive any salary or other emoluments
otherwise provided in the Constitution. On the other
therefor (e.g. Sec. of Finance is head of the
hand, Anthony claims that according to Sec. 7, par.
Monetary Board)
(2), Art. IX-B of the Constitution, his appointment to
NOTE: This prohibition must not, however, be such positions is outside the coverage of the
construed as applying to posts occupied by the prohibition under Sec. 13 of Art. VII as it falls into one
Executive officials without additional compensation in of the exceptions as being allowed by law or by the
an ex-officio capacity, as provided by law and as primary functions of his position. Does the
required by the primary functions of the said officials designation of Anthony as the Acting Secretary of
office. (National Amnesty Commission v. COA, G.R. No. Justice, concurrently with his position as Acting
156982, September 2, 2004) Solicitor General, violate the constitutional
prohibition against dual or multiple offices for the
3. Shall not practice, directly or indirectly, any other Members of the Cabinet and their deputies and
profession during their tenure assistants?
4. Shall not participate in any business
5. Shall not be financially interested in any contract A: Yes. While all other appointive officials in the civil
with, or in any franchise, or special privilege service are allowed to hold other office or
granted by the Government, including GOCCs employment in the government during their tenure
6. Shall avoid conflict of interest in conduct of office when such is allowed by law or by the primary
7. Shall avoid nepotism (Sec. 13, Art. VII) functions of their positions, members of the Cabinet,
their deputies and assistants may do so only when
NOTE: The spouse and relatives by consanguinity or
expressly authorized by the Constitution itself. In other
affinity within the 4th civil degree of the President shall
not, during his tenure, be appointed as:
words, Sec. 7, Art. IX-B is meant to lay down the
a. Members of the Constitutional Commissions; general rule applicable to all elective and appointive

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2014 GOLDEN NOTES 50
EXECUTIVE DEPARTMENT

public officials and employees, while Sec. 13, Art. VII is administration of the government. The law he is
meant to be the exception applicable only to the supposed to enforce includes the Constitution,
President, the Vice-President, Members of the statutes, judicial decisions, administrative rules and
Cabinet, their deputies and assistants. Since the regulations and municipal ordinances, as well as
evident purpose of the framers of the 1987 treaties entered into by the government.
Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet, Power of administrative reorganization
their deputies and assistants with respect to holding
multiple offices or employment in the government The President has the continuing authority to
during their tenure, the exception to this prohibition reorganize the national government, which includes
must be read with equal severity. On its face, the the power to group, consolidate bureaus and agencies,
language of Sec. 13, Art. VII is prohibitory so that it to abolish offices, to transfer functions, to create and
must be understood as intended to be a positive and classify functions, services and activities and to
unequivocal negation of the privilege of holding standardize salaries and materials; it is effected in
multiple government offices or employment. Verily, good faith if it is for the purpose of economy or to
wherever the language used in the constitution is make bureaucracy more efficient. (MEWAP v.
prohibitory, it is to be understood as intended to be a Executive Secretary, G.R. No. 160093, July 31, 2007)
positive and unequivocal negation. The phrase "unless
otherwise provided in this Constitution" must be given Scope of executive power
a literal interpretation to refer only to those particular
instances cited in the Constitution itself, to wit: the 1. Executive power is vested in the President of the
Vice-President being appointed as a member of the Philippines. (Sec. 1, Art. VII, 1987 Constitution)
Cabinet under Sec. 3, par. (2), Art. VII; or acting as 2. It is not limited to those set forth in the
President in those instances provided under Sec. 7, Constitution (Residual powers). (Marcos v.
pars. (2) and (3), Art. VII; and, the Secretary of Justice Manglapus, G.R. No. 88211, October 27, 1989)
3. Privilege of immunity from suit is personal to the
being ex-officio member of the Judicial and Bar Council
President and may be invoked by him alone. It
by virtue of Sect. 8 (1), Art. VIII. (Funa v. Agra, G.R. No. may also be waived by the President, as when he
191644, February 19, 2013) himself files suit. (Soliven v. Makasiar, G.R. No.
82585, November 14, 1988)
Being designated as the Acting Secretary of Justice 4. The President cannot dispose of state property
concurrently with his position of Acting Solicitor unless authorized by law. (Laurel v. Garcia, G.R.
General, therefore, Anthony was undoubtedly covered No. 92013, July 25, 1990)
by Sec. 13, Art. VII, whose text and spirit were too clear
to be differently read. Hence, Anthony could not Specific powers of the President
validly hold any other office or employment during his
tenure as the Acting Solicitor General, because the 1. Appointing power (Sec. 16, Art. VII)
Constitution has not otherwise so provided. 2. Power of control over all executive departments,
bureaus and offices (Sec. 17, Art. VII)
POWERS OF THE PRESIDENT 3. Commander-in-Chief powers (calling-out power,
power to place the Philippines under martial law,
EXECUTIVE AND ADMINISTRATIVE POWERS IN and power to suspend the privilege of the writ of
GENERAL habeas corpus) (Sec. 18, Art. VII)
4. Pardoning power (Sec. 19, Art. VII)
Executive Power 5. Borrowing power (Sec. 20, Art. VII)
6. Diplomatic/Treaty-making power (Sec. 21, Art. VII)
Power vested in the President of the Philippines. The 7. Budgetary power (Sec. 22, Art. VII)
President shall have control of all executive 8. Informing power (Sec. 23, Art. VII)
departments, bureaus and offices. He shall ensure that 9. Veto power (Sec. 27, Art. VI)
laws are faithfully executed. (Sec. 17, Art. VII, 1987 10. Power of general supervision over local
Constitution) governments (Sec. 4, Art. X)
11. Power to call special session (Sec. 15, Art. VI)
Faithful Execution Clause

The power to take care that the laws be faithfully


executed makes the President a dominant figure in the

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51 FACULTY OF CIVIL LAW
Political and International Law

Q: Is the power of the President limited only to such or re-assumption of office. (Sec. 14, Art. VII)
specific powers enumerated in the Constitution?
Designation
A: No. The powers of the President cannot be said to
be limited only to the specific power enumerated in The imposition of additional duties on a person
the Constitution. Executive power is more than the already in the public service. It is considered only as an
sum of specific powers so enumerated. The framers acting or temporary appointment, which does not
did not intend that by enumerating the powers of the confer security of tenure on the person named.
President he shall exercise those powers and no other. (Binamira v. Garrucho, G.R. No. 92008, July 30, 1990)
Whatever power inherent in the government that is
neither legislative nor judicial has to be executive. NOTE: The President has the power to temporarily designate
These unstated residual powers are implied from the an officer already in the government service or any other
grant of executive power and which are necessary for competent person to perform the functions of an office in
the executive branch. In no case shall the temporary
the President to comply with his duties under the
designation exceed one year.
Constitution. (Marcos v. Manglapus, G.R. No. 88211,
October 27, 1989)
Presidential appointments that need prior
recommendation or nomination by the Judicial and
Administrative power
Bar Council
Power concerned with the work of applying policies
1. Members of the Supreme Court and all lower
and enforcing orders as determined by proper
courts (Sec. 9, Art. VIII)
governmental organs. It enables the President to fix a
2. Ombudsman and his 5 deputies
uniform standard of administrative efficiency and
check the official conduct of his agents. To this end,
Appointments made solely by the President
he can issue administrative orders, rules and
regulations. (Ople v. Torres, G.R. No. 127685, July 23,
1. Those vested by the Constitution on the President
1998)
alone;
2. Those whose appointments are not otherwise
POWER OF APPOINTMENT provided by law;
3. Those whom he may be authorized by law to
Appointment appoint; and
4. Those other officers lower in rank whose
The selection, by the authority vested with the power, appointment is vested by law in the President
of an individual who is to exercise the functions of a alone. (Sec. 16, Art. VII)
given office. It may be made verbally but it is usually
done in writing through what is called the commission. COMMISSION ON APPOINTMENTS
CONFIRMATION
NOTE: The appointing power of the President is executive in
nature. While Congress and the Constitution in certain cases
Instances where confirmation of the Commission on
may prescribe the qualifications for particular offices, the
determination of who among those who are qualified will be Appointments is required
appointed is the Presidents prerogative. (Pimentel, et al. v.
Ermita, et al., G.R. No. 164978, October 13, 2005) 1. Heads of executive departments

Kinds of Presidential appointments GR: Appointment of cabinet secretaries requires


confirmation.
1. Appointments made by an Acting President
2. Midnight Appointment (Sec. 15, Art. VII) XPN: Vice-president may be appointed as a
3. Regular Presidential Appointments, with or member of the Cabinet and such
without the confirmation by the CA appointment requires no confirmation. (Sec. 3(2),
4. Ad-interim Appointments Art. VII)

Rule on the effectivity of appointments made by an 2. Ambassadors, other public ministers and consuls
acting President Those connected with the diplomatic and
consular services of the country.
These shall remain effective unless revoked by the
elected President within 90 days from his assumption

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EXECUTIVE DEPARTMENT

3. Officers of AFP from the rank of colonel or naval Appointee enjoys Appointee does not
captain security of tenure enjoy security of tenure

NOTE: PNP of equivalent ranks and the Philippine Coast


Q: Is the act of the President in appointing acting
Guard are not included.
secretaries even without the consent of the
Commission while Congress is in session,
4. Other officers of the government whose
constitutional?
appointments are vested in the President in the
Constitution (Sec. 16, Art. VII), such as:
A: Yes. Congress, through a law, cannot impose on the
a. Chairmen and members of the CSC, COMELEC
President the obligation to appoint automatically the
and COA (Sec. 1[2], Art. IX-B, C, D)
undersecretary as her temporary alter ego. An alter
b. Regular members of the JBC (Sec. 8[2], Art.
ego, whether temporary or permanent, holds a
VIII)
position of great trust and confidence. The office of a
NOTE: The enumeration is exclusive. department secretary may become vacant while
Congress is in session. Since a department secretary is
Appointing procedure for those that need the alter ego of the President, the acting appointee to
Commissions confirmation the office must necessarily have the Presidents
confidence. (Pimentel v. Ermita, G.R. No. 164978,
1. Nomination by the President October 13, 2005)
2. Confirmation by the CA
3. Issuance of commission NOTE: Acting appointments cannot exceed one year. (Sec.
17[3], Chapter 5, Title I, Book III of EO 292)
4. Acceptance by the appointee

NOTE: At any time, before all four steps have been complied Non-justiability of appointments
with, the President can withdraw the nomination and
appointment. (Lacson v. Romero, G.R. No. L-3081, October Appointment is a political question. So long as the
14, 1949) appointee satisfies the minimum requirements
prescribed by law for the position, the appointment
Proedure for those that do not need Commissions may not be subject to judicial review.
confirmation
Limitations on the appointing power of the President
1. Appointment
2. Acceptance 1. The spouse and relatives by consanguinity or
affinity within the 4th civil degree of the President
Ad interim Appointment shall not, during his "tenure" be appointed as:
a. Members of the Constitutional Commissions;
An appointment made by the president while b. Member of the Office of Ombudsman;
Congress is in session. It takes effect only after c. Secretaries;
confirmation by the Commission on Appointments. d. Undersecretaries;
Once the same is approved, it continues until the end e. Chairmen or heads of bureaus or offices,
of the term of the appointee. including government-owned or controlled
corporations and their subsidiaries. (Sec.
Ad interim appointment v. Appointment in an acting 13[2], Art. VII)
capacity
2. Appointments made by the acting-President shall
AD INTERIM APPOINTMENT IN AN remain effective unless revoked within 90 days
APPOINTMENT ACTING CAPACITY from assumption of office by elected President.
Made if Congress is not Made at any time there (Sec. 14, Art. VII)
in session is vacancy, i.e., whether
Congress is in session or 3. GR: Two months immediately before the next
not Presidential elections (2nd Monday of May), and
Requires confirmation Does not require up to the end of his "term" (June 30), a President
of the Commission confirmation of the (or Acting President) shall not make
Commission appointments.
Permanent in nature Temporary in nature

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53 FACULTY OF CIVIL LAW
Political and International Law

XPN: Temporary appointments, to executive next presidential elections and up to the end of the
positions, when continued vacancies therein will Presidents or Acting Presidents term does not refer
prejudice public service; (Sec. 15, Art. VII) (e.g. to the Members of the Supreme Court. (De Castro v.
Postmaster) or endanger public safety. (e.g. Chief JBC, G.R. No. 191002, March 17, 2010)
of Staff)
NOTE: Ban on midnight appointments is applicable in the
MIDNIGHT APPOINTMENTS entire judiciary except on the Supreme Court. (Ibid)

Sec. 15, Art. VII of the 1987 Constitution prohibits the POWER OF REMOVAL
President from making appointments two months
before the next presidential elections and up to the Power of removal
end of his term.
GR: From the express power of appointment, the
Prohibited appointments under Sec. 15, Art. VII of the President derives the implied power of removal.
Constitution
XPN: Thos appointed by him where the Constitution
1. Those made for buying votes refers to those prescribes certain methods for separation from public
appointments made within two months preceding service (e.g. impeachment).
the Presidential election and are similar to those
which are declared election offenses in the Source of power of removal
Omnibus Election Code; and
2. Those made for partisan considerations consists The President derives his implied power of removal
of the so-called midnight appointments. (In Re: from other powers expressly vested in him.
Hon. Mateo A. Valenzuela and Hon. Placido B. 1. It is implied from his power to appoint.
Vallarta, A.M. No. 98-5-01-SC November 9, 1998) 2. Being executive in nature, it is implied from the
constitutional provision vesting the executive
Q: Does an outgoing President have the power to power in the President.
appoint the next Chief Justice within the period 3. It may be implied from his function to take care
starting two months before the presidential elections that laws be properly executed; for without it, his
until the end of the presidential term? Discuss orders for law enforcement might not be
thoroughly. effectively carried out.
4. The power may be implied from the Presidents
A: Yes. Art. VII is devoted to the Executive control over the administrative departments,
Department, and, among others, it lists the powers bureaus, and offices of the government. Without
vested by the Constitution in the President. The the power to remove, it would not be always
presidential power of appointment is dealt with in possible for the President to exercise his power of
Secs. 14, 15, and 16 of the Article. In particular, Sec. 9 control.
states that the appointment of Supreme Court Justices
can only be made by the President upon the Limitation on the power of removal of the President
submission of a list of at least three nominees by the
JBC; Sec. 4(1) of the Article mandates the President to Not all officials appointed by the President are also
fill the vacancy within 90 days from the occurrence of removable by him since the Constitution prescribes
the vacancy. certain methods for the separation from the public
service of such officers.
Had the framers intended to extend the prohibition
contained in Sec. 15, Art. VII to the appointment of NOTE: Members of the career service of the Civil Service who
are appointed by the President may be directly disciplined
Members of the Supreme Court, they could have
by him (Villaluz v. Zaldivar, G.R. No. L-22754, December 31,
explicitly done so. They could not have ignored the 1965) provided that the same is for cause and in accordance
meticulous ordering of the provisions. They would with the procedure prescribed by law.
have easily and surely written the prohibition made
explicit in Sec. 15, Art. VII as being equally applicable Members of the Cabinet and such officers whose continuity
to the appointment of Members of the Supreme Court in office depend upon the President may be replaced at any
in Art. VIII itself, most likely in Sec. 4 (1), Art. VIII. That time. Legally speaking, their separation is effected not by the
such specification was not done only reveals that the process of removal but by the expiration of their term.
prohibition against the President or Acting President (Aparri v. CA, G.R. No. L-30057, January 31, 1984)
making appointments within two months before the

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EXECUTIVE DEPARTMENT

Q: Deputy Ombudsman Gonzales was dismissed from DOCTRINE OF QUALIFIED POLITICAL AGENCY
service by the Office of the President (OP) by virtue
of Sec. 8(2) of RA 6770 vesting disciplinary authority Doctrine of Qualified Political Agency or Alter Ego
in the President over the Deputy Ombudsman. OP Principle
found him guilty of gross neglect of duty and
misconduct of office. Gonzales filed a petition to set The acts of the secretaries of the Executive
aside the dismissal on the ground that it is only the departments performed and promulgated in the
Ombudsman who can exercise administrative regular course of business are presumptively the acts
disciplinary jurisdiction over the Deputy of the Chief Executive. (Villena v. Secretary of the
Ombudsman. Does the OP have administrative Interior, G.R. No. L-46570, April 21, 1939)
disciplinary jurisdiction over Deputy Ombudsman
Gonzales? Exceptions to the Alter Ego doctrine

A: No. Sec. 8(2) of RA 6770 vesting disciplinary 1. If the acts are disapproved or reprobated by the
authority on the President over the Deputy President;
Ombudsman violates the independence of the Office 2. If the President is required to act in person by law
of the Ombudsman and is, thus, unconstitutional. or by the Constitution.
Subjecting the Deputy Ombudsman to discipline and
removal by the President, whose own alter egos and NOTE: The SC held that the Secretary of Finance can act as
officials in the Executive Department are subject to the an agent of the Legislative Dept. to determine and declare
Ombudsman's disciplinary authority, cannot but the event upon which its expressed will is to take effect.
Thus, being the agent of Congress and not of the President,
seriously place at risk the independence of the Office
the latter cannot alter, or modify or nullify, or set aside the
of the Ombudsman itself. The law directly collided not
findings of the Secretary of Finance and to substitute the
only with the independence that the Constitution judgment of the former for that of the latter. (ABAKADA
guarantees to the Office of the Ombudsman, but Guro v. Executive Secretary, G.R. No. 168056, September 1,
inevitably with the principle of checks and balances 2005)
that the creation of an Ombudsman office seeks to
revitalize. What is true for the Ombudsman must be Essence of the Alter Ego doctrine
equally and necessarily true for her Deputies who act
as agents of the Ombudsman in the performance of Since the President is a busy man, he is not expected
their duties. (Emilio Gonzales III v. Ochoa, G. R. No. to exercise the totality of his power of control all the
196231 & 196232, February 26, 2014) time. He is not expected to exercise all his powers in
person. He is expected to delegate some of them to
POWER OF CONTROL AND SUPERVISION men of his confidence, particularly to members of his
Cabinet.
Power of control
NOTE: Applying this doctrine, the power of the President to
The power of an officer to alter or modify or nullify or reorganize the National Government may be validly
to set aside what a subordinate has done in the delegated to his Cabinet Members exercising control over a
performance of his duties and to substitute ones own particular executive department. (DENR v. DENR Region XII
Employees, G.R. No. 149724, August 19, 2003)
judgment for that of a subordinate.

NOTE: The Presidents power over GOCCs comes not from


EXECUTIVE DEPARTMENTS AND OFFICES
the Constitution, but from statute. Hence, it may be taken
away by statute. Q: Can Department Heads exercise power of control
in behalf of the President?
The President has full control of all the members of his
Cabinet. He may appoint them as he sees fit, shuffle them at A: Yes. The Presidents power of control means his
pleasure, and replace them in his discretion without any power to reverse the judgment of an inferior officer. It
legal inhibition whatever. However, such control is may also be exercised in his behalf by Department
exercisable by the President only over the acts of his
Heads.
subordinates and not necessarily over the subordinate
himself. (Ang-Angco v. Castillo, G.R. No.L-17169, November
NOTE: The Sec. of Justice may reverse the judgment of a
30, 1963)
prosecutor and direct him to withdraw information already
filed. One, who disagrees, however, may appeal to the Office
of the President in order to exhaust administrative remedies
prior filing to the court.

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55 FACULTY OF CIVIL LAW
Political and International Law

Q: Can the Executive Secretary reverse the decision MILITARY POWERS


of another department secretary? In re COMMANDER-IN-CHIEF POWERS

A: Yes. The Executive Secretary when acting by Scope of the Presidents Commander-in-Chief Powers
authority of the President may reverse the decision of
another department secretary. (Lacson-Magallanes 1. Command of the Armed Forces The Commander-
Co., Inc. v. Pao, G.R. No. L-27811, November 17, 1967) in-Chief clause vests on the President, as
Commander-in-Chief, absolute authority over the
LOCAL GOVERNMENT UNITS persons and actions of the members of the armed
forces. (Gudani v. Senga, G.R. No. 170165, August
Power of general supervision 15, 2006)

The power of a superior officer to ensure that the laws NOTE: By making the President the Commander-in-
are faithfully executed by subordinates. The power of Chief of all the armed forces, the principle announced
the President over LGUs is only of general supervision. in Art. II, Sec. III is bolstered. Thus, the Constitution
Thus, he can only interfere in the affairs and activities lessens the danger of a military take-over of the
government in violation of its republican nature.
of a LGU if he finds that the latter acted contrary to
law. The President or any of his alter egos cannot The President as Commander-in-Chief can prevent the
interfere in local affairs as long as the concerned LGU Army General from appearing in a legislative
acts within the parameters of the law and the investigation and, if disobeyed, can subject him to court
Constitution. Any directive, therefore, by the martial. (Gudani v. Senga, G.R. No. 170165, August 15,
President or any of his alter egos seeking to alter the 2006)
wisdom of a law-conforming judgment on local affairs
of a LGU is a patent nullity, because it violates the 2. Calling-out powers Call the armed forces to
principle of local autonomy, as well as the doctrine of prevent or suppress lawless violence, invasion, or
separation of powers of the executive and the rebellion. The only criterion for the exercise of this
legislative departments in governing municipal power is that whenever it becomes necessary.
corporations. (Dadole v. COA, G.R. No. 125350,
December 3, 2002) NOTE: The declaration of a state of emergency is merely
a description of a situation which authorizes her to call
Control v. Supervision out the Armed Forces to help the police maintain law
and order. It gives no new power to her, nor to the
police. Certainly, it does not authorize warrantless
CONTROL SUPERVISION arrests or control of media. (David v. Ermita, G.R. No.
An officer in control The supervisor or 171409, May 3, 2006)
lays down the rules in superintendent merely
the doing of an act. sees to it that the rules The Constitution does not require the President to
are followed, but he declare a state of rebellion to exercise her calling out
himself does not lay power. Sec. 18, Art. VII grants the President, as
down such rules. Commander-in-Chief a sequence of graduated
powers. (Sanlakas v. Executive Secretary, G.R. No.
If the rules are not The supervisor does not
159085, February 3, 2004)
followed, the officer in have the discretion to
control may, in his modify or replace them. If
3. Suspension of the privilege of the writ of habeas
discretion, order the the rules are not
corpus
act undone or re-done observed, he may order
by his subordinate or the work done or re-done NOTE: A writ of habeas corpus is an order from the
he may even decide to but only to conform to court commanding a detaining officer to inform the
do it himself. the prescribed rules. court if he has the person in custody, and what is his
(Drilon v. Lim, G.R. No. basis in detaining that person.
112497, August 4, 1994)
The privilege of the writ is that portion of the writ
NOTE: The power of supervision does not include the power requiring the detaining officer to show cause why he
of control; but the power of control necessarily includes the should not be tested. What is permitted to be
power of supervision. suspended by the President is not the writ itself but its
privilege.

4. He may proclaim martial law over the entire


Philippines or any part thereof.

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EXECUTIVE DEPARTMENT

Requisites for the suspension of the privilege of the 4. It does not automatically suspend the privilege of
writ of habeas corpus the writ of habeas corpus. (Sec. 18 (2), Art. VII)

1. There must be an invasion or rebellion; and NOTE: When martial law is declared, no new powers are
2. Public safety requires the suspension given to the President; no extension of arbitrary authority is
recognized; no civil rights of individuals are suspended. The
NOTE: The invasion and rebellion must be actual and not relation of the citizens to their State is unchanged. The
merely imminent. Supreme Court cannot rule upon the correctness of the
Presidents actions but only upon its arbitrariness.
Non-impairment of the right to bail
Ways to lift the proclamation of martial law
The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. 1. Lifting by the President himself
(Sec. 13, Art. III, 1987 Constitution) 2. Revocation by Congress
3. Nullification by the SC
Limitations on the suspension of the privilege of writ 4. By operation of law after 60 days (Sec. 18, Art. VII)
of habeas corpus
Q: Is the actual use of the armed forces by the
1. Applies only to persons judicially charged for President subject to judicial review?
rebellion or offenses inherent in or directly
connected with invasion; and A: No. While the suspension of the privilege of the writ
2. Anyone arrested or detained during suspension of habeas corpus and the proclamation of martial law
must be charged within 3 days. Otherwise, he is subject to judicial review, the actual use by the
should be released. President of the armed forces is not. Thus, troop
deployments in times of war are subject to the
Guidelines in the declaration of martial law Presidents judgment and discretion. (IBP v. Zamora,
G.R. No. 141284, August 15, 2000)
1. There must be an invasion or rebellion, and
2. Public safety requires the proclamation of martial Q: May the President, in the exercise of peace
law all over the Philippines or any part thereof. negotiations, agree to pursue reforms that would
3. Duration: Not more than 60 days following which require new legislation and constitutional
it shall be automatically lifted unless extended by amendments, or should the reforms be restricted
Congress. only to those solutions which the present laws allow?
4. Duty of the President to report to Congress: within
48 hours personally or in writing. A: If the President is to be expected to find means for
5. Authority of Congress to revoke or extend the bringing this conflict to an end and to achieve lasting
effectivity of proclamation: by majority vote of all peace in Mindanao, then she must be given the leeway
of its members voting jointly. to explore, in the course of peace negotiations,
solutions that may require changes to the Constitution
NOTE: Once revoked by Congress, the President cannot set for their implementation. So long as the President
aside the revocation. limits herself to recommending these changes and
submits to the proper procedure for constitutional
Limitations on the declaration of martial law amendment and revision, her mere recommendation
need not be construed as unconstitutional act. Given
1. It does not suspend the operation of the the limited nature of the Presidents authority to
Constitution; propose constitutional amendments, she cannot
2. It does not supplant the functioning of the civil guarantee to any third party that the required
courts or legislative assemblies; amendments will eventually be put in place, nor even
3. It does not authorize conferment of jurisdiction be submitted to a plebiscite. The most she could do is
over civilians where civil courts are able to submit these proposals as recommendations either to
function; Congress or the people, in whom constituent powers
are vested. (Province of North Cotabato v. Govt of the
NOTE: Civilians cannot be tried by military courts if the Republic of the Philippines Peace panel on Ancestral
civil courts are open and functioning (Open Court Domain, G.R. No. 183591, October 14, 2008)
Doctrine). (Olaguer v. Military Commission No. 34, G.R.
No. L-54558, May 22, 1987)

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57 FACULTY OF CIVIL LAW
Political and International Law

Nature of martial law Role of the Supreme Court in reviewing the factual
bases of the promulgation of a suspension of the
Martial law is a joint power of the President and the privilege of the writ of habeas corpus
Congress. Although Art. VII, Sec. 18 of the 1987
Constitution vests in the President the power to Although the Constitution reserves to the Supreme
proclaim martial law or suspend the privilege of the Court the power to review the sufficiency of the
writ of habeas corpus, he shares such power with the factual basis of the proclamation or suspension in a
Congress. Thus: proper suit, it is implicit that the Court must allow
Congress to exercise its own review powers, which is
1. The Presidents proclamation or suspension is automatic rather than initiated. Only when Congress
temporary, good for only 60 days; defaults in its express duty to defend the Constitution
2. He must, within 48 hours of the proclamation or through such review should the Supreme Court step in
suspension, report his action in person or in as its final rampart. The constitutional validity of the
writing to Congress; Presidents proclamation of martial law or suspension
3. Both houses of Congress, if not in session must of the writ of habeas corpus is first a political question
jointly convene within 24 hours of the in the hands of Congress before it becomes a
proclamation or suspension for the purpose of justiciable one in the hands of the Court. (Fortun v.
reviewing its validity; and PGMA, March 20, 2012)
4. The Congress, voting jointly, may revoke or affirm
the Presidents proclamation or suspension, allow Q: Can the President deploy AFP and PNP personnel
their limited effectivity to lapse, or extend the pursuant to a declaration of a state of emergency in
same if Congress deems warranted. 3 places in Mindanao without an act of Congress?

It is evident that under the 1987 Constitution the A: Yes. The President did not proclaim a national
President and the Congress act in tandem in emergency, only a state of emergency in the three
exercising the power to proclaim martial law or places mentioned. And she did not act pursuant to any
suspend the privilege of the writ of habeas law enacted by Congress that authorized her to
corpus. They exercise the power, not only exercise extraordinary powers. The calling out of the
sequentially, but in a sense jointly since, after the armed forces to prevent or suppress lawless violence
President has initiated the proclamation or the in such places is a power that the Constitution directly
suspension, only the Congress can maintain the vests in the President. She did not need a
same based on its own evaluation of the situation congressional authority to exercise the same. (Datu
on the ground, a power that the President does Zaldy Uy Ampatuan, et al. v. Hon. Ronaldo Puno, et al.,
not have. (Fortun v. Macapagal-Arroyo, G.R. No. G.R. No. 190259, June 7, 2011)
190293, March 20, 2012)
PARDONING POWER
Role of the Supreme Court in inquiring into the
factual bases of the Presidents declaration of a state Pardon
of national emergency
An act of grace, which exempts individual on whom it
While it is true that the Court may inquire into the is bestowed from punishment which the law inflicts for
factual bases for the Presidents exercise of the above a crime he has committed. As a consequence, pardon
power, it would generally defer to her judgment on the granted after conviction frees the individual from all
matter. It is clearly to the President that the the penalties and legal disabilities and restores him to
Constitution entrusts the determination of the need all his civil rights. But unless expressly grounded on the
for calling out the armed forces to prevent and persons innocence (which is rare), it cannot bring back
suppress lawless violence. Unless it is shown that such lost reputation for honesty, integrity and fair dealing.
determination was attended by grave abuse of (Monsanto v. Factoran, G.R. No. 78239, February 9,
discretion, the Court will accord respect to the 1989)
Presidents judgment. (Datu Zaldy Uy Ampatuan, et al.
v. Hon. Ronaldo Puno, et al., G.R. No. 190259. June 7, NOTE: Because pardon is an act of grace, no legal power can
compel the President to give it. Congress has no authority to
2011)
limit the effects of the Presidents pardon, or to exclude from
its scope any class of offenders. Courts may not inquire into
the wisdom or reasonableness of any pardon granted by the
President.

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EXECUTIVE DEPARTMENT

Purpose of pardon (Torres v. Gonzales, G.R. No. L-76872, July 23, 1987)

Relieve the harshness of the law or correcting mistakes Options of the convict when granted pardon
in the administration of justice. The power of
executive clemency is a non-delegable power and 1. Conditional Pardon The offender has the right to
must be exercised by the President personally. reject it since he may feel that the condition
imposed is more onerous than the penalty sought
NOTE: Clemency is not a function of the judiciary; it is an to be remitted.
executive function. The grant is discretionary, and may not 2. Absolute Pardon The pardonee has no option at
be controlled by the legislature or reversed by the court, all and must accept it whether he likes it or not.
save only when it contravenes its limitations. It includes
cases involving both criminal and administrative cases.
NOTE: In this sense, an absolute pardon is similar to
commutation, which is also not subject to acceptance by the
Kinds of executive clemency offender.

1. Pardons (conditional or plenary) Q: Erinn Perez, the assistant city treasurer of


2. Reprieves Caloocan, was convicted of estafa through
3. Commutations falsification of public documents. She was, however,
4. Remission of fines and forfeitures granted an absolute pardon, prompting her to claim
5. Amnesty that she is entitled to be reinstated to her former
public office. Is Erinns contention tenable?
NOTE: The first 4 require conviction by final judgment while
amnesty does not.
A: No. Pardon does not ipso facto restore a convicted
felon neither to his former public office nor to his
Limitations on the Presidents pardoning power rights and privileges, which were necessarily
relinquished or forfeited by reason of the conviction
1. Cannot be granted in cases of impeachment. (Sec. although such pardon undoubtedly restores his
2, Art. XI) eligibility to that office. (Monsanto v. Factoran, G.R.
2. Cannot be granted for violations of election laws No. 78239, February 9, 1989)
without favorable recommendations of the
COMELEC. Reprieve
3. Can be granted only after convictions by final
judgment (except amnesty). The postponement of sentence to a date certain, or
4. Cannot be granted in cases of civil or legislative stay of execution.
contempt.
5. Cannot absolve convict of civil liability. NOTE: It may be ordered to enable the government to secure
6. Cannot restore public offices forfeited. additional evidence to ascertain the guilt of the convict or, in
the case of the execution of the death sentence upon a
Kinds of pardon pregnant woman, to prevent the killing of her unborn child.

As to presence of condition: Commutation


a. Absolute pardon One extended without any
conditions. The reduction or mitigation of the penalty, from death
b. Conditional pardon One under which the convict penalty to life imprisonment, remittances and fines.
is required to comply with certain requirements. Commutation is a pardon in form but not in substance,
because it does not affect his guilt; it merely reduces
As to effect: the penalty for reasons of public interest rather than
a. Plenary pardon Extinguishes all the penalties for the sole benefit of the offender.
imposed upon the offender, including accessory
disabilities partial pardon does not extinguish all NOTE: Commutation does not have to be in any particular
penalties. form. Thus, the fact that a convict was released after 6 years
b. Partial pardon Does not extinguish all the and placed under house arrest, which is not a penalty,
already leads to the conclusion that the penalty has been
penalties.
shortened.
NOTE: A judicial pronouncement that a convict who was
granted a pardon subject to the condition that he should not
again violate any penal law is not necessary before he can be
declared to have violated the condition of her pardon.

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59 FACULTY OF CIVIL LAW
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Q: Can the SC review the correctness of the action of to the past and erases whatever shade of guilt there
the President in granting executive clemency by was. In the eyes of the law, a person granted amnesty
commuting the penalty of dismissal to a dismissed is considered a new-born child.
clerk of court?
Amnesty v. Pardon
A: Yes. By doing so, the SC is not deciding a political
question. What it is deciding is whether or not the AMNESTY PARDON
President has the power to commute the penalty of Addressed to Political Addressed to Ordinary
the said clerk of court. As stated in Daza v. Singson, offenses offenses
G.R. No. 87721-30, December 21, 1989, it is within the Granted to a Class of Granted to Individuals
scope of judicial power to pass upon the validity of the Persons
actions of the other departments of the Government. Requires concurrence Does not require
of majority of all concurrence of
Remission of fines and forfeitures members of Congress Congress
Public act which the Private act which must
Merely prevents the collection of fines or the court may take judicial be pleaded and proved
confiscation of forfeited property. It cannot have the notice of
effect of returning property which has been vested in Looks backward and Looks forward and
third parties or money already in the public treasury. puts to oblivion the relieves the pardonee
offense itself of the consequence of
NOTE: The power of the President to remit fines and the offense
forfeitures may not be limited by any act of Congress. But a
May be granted before Only granted after
statue may validly authorize other officers, such as
department heads or bureau chiefs, to remit administrative or after conviction conviction by final
fines and forfeitures. judgment
Need not be accepted Must be accepted
Probation
DIPLOMATIC POWERS
A disposition under which a defendant after conviction
and sentence is released subject to conditions Scope of the foreign relations powers of the
imposed by the court and to the supervision of a President
probation officer.
1. Negotiate treaties and other international
Parole agreements. However, such treaty or
international agreement requires the
The suspension of the sentence of a convict granted by concurrence of the Senate (Sec. 21, Art. VII) which
a Parole Board after serving the minimum term of the may opt to do the following:
indeterminate sentence penalty, without granting a a. Approve with 2/3 majority;
pardon, prescribing the terms upon which the b. Disapprove outright; or
sentence shall be suspended. c. Approve conditionally, with suggested
amendments which if re-negotiated and the
Amnesty Senates suggestions are incorporated, the
treaty will go into effect without need of
The grant of general pardon to a class of political further Senate approval.
offenders either after conviction or even before the
charges is filed. It is the form of executive clemency 2. Appoint ambassadors, other public ministers, and
which under the Constitution may be granted by the consuls.
President only with the concurrence of the legislature. 3. Receive ambassadors and other public ministers
accredited to the Philippines.
NOTE: Thus, the requisites of amnesty are (a) concurrence of 4. Contract and guarantee foreign loans on behalf of
a majority of all the members of Congress and (b) a previous RP. (Sec. 20, Art. VII)
admission of guilt. 5. Deport aliens:
a. This power is vested in the President by virtue
Effects of the grant of amnesty of his office, subject only to restrictions as
may be provided by legislation as regards to
The total extinguishment of the criminal liability and of the grounds for deportation. (Sec. 69, Revised
the penalty and all its effects. Amnesty reaches back Administrative Code)

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2014 GOLDEN NOTES 60
EXECUTIVE DEPARTMENT

b. In the absence of any legislative restriction to


authority, the President may still exercise this RULES ON SUCCESSION
power.
c. The power to deport aliens is limited by the Rules to be applied if there is vacancy before the
requirements of due process, which entitles beginning of the term of the President
the alien to a full and fair hearing.
d. An alien has the right to apply for bail CAUSE OF VACANCY CONSEQUENCE
provided certain standard for the grant is In case of death or The Vice-President elect
necessarily met. (Government of Hong Kong permanent disability of shall become President.
Special Administrative Region v. Olalia, the President-elect.
G.R.No. 153675, April 19, 2007) In case of failure to The Vice-President shall
elect the President (i.e. act as the President until
NOTE: The adjudication of facts upon which the Presidential elections the President shall have
deportation is predicated devolved on the President
has not been held or been chosen and
whose decision is final and executory. (Tan Tong v.
Deportation Board, G.R. No. L-7680, April 30, 1955)
non-completion of the qualified.
canvass of the
6. Decide that a diplomatic officer who has become Presidential elections)
persona non grata be recalled. In case no President The Senate President, or
7. Recognize governments and withdraw and Vice-President in case of his inability, the
recognition. shall have been chosen Speaker of the HoRs shall
and qualified, or where act as President until a
Sources of the Presidents diplomatic powers both shall have died or President or a Vice-
become permanently President shall have been
1. The Constitution disabled. chosen and qualified.
2. The status of sovereignty and independence
Congress shall by law
A provision in a bill which does not relate to a provide for the manner in
particular appropriation stated in the bill. Since it is an which one who is to act as
invalid provision under Sec. 25, par. 2, Art. VII, 1987 President shall be
Constitution, the President may veto it as an item. selected until a President
or a Vice-President shall
NOTE: The Presidents powers over foreign affairs makes the have qualified, in case of
President the chief architect of foreign relations. By reason death, permanent
of the President's unique position as Head of State, he is the disability or inability of
logical choice as the nation's spokesman in foreign relations. the officials.
The Senate, on the other hand, is granted the right to share
in the treaty-making power of the President by concurring Rules to be applied if the vacancy occurs during the
with him with the right to amend.
incumbency of the President
RESIDUAL POWER
CAUSE OF CONSEQUENCE
VACANCY
Whatever power inherent in the government that is
In case of : The Vice President shall
neither legislative nor judicial has to be executive.
a. Death; become the President
These unstated residual powers are implied from the
b. Permanent Disability; to serve the unexpired
grant of executive power and which are necessary for
c. Removal from office; term.
the President to comply with his duties under the
or
Constitution. (Marcos v. Manglapus, G.R. No. 88211,
d. Resignation of the
October 27, 1989)
President

In case of : The Senate President,


a. Death; or in case of his
b. Permanent Disability; inability, the Speaker of
c. Removal from office; the HoRs, shall act as
or President until the
President or Vice

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61 FACULTY OF CIVIL LAW
Political and International Law

d. Resignation of both President shall have his written declaration


the President and ben elected and that no inability exists.
the Vice-President qualified.

Rules and procedure to be followed if a vacancy


occurs in the offices of the President and Vice-
President

1. At 10:00 A.M. of the third day after said vacancy


occurs Congress shall convene in accordance
with its rules without need of call.
2. Within 7 days Congress shall enact a law calling
for a special election to elect a President and a
Vice President.
3. Said special election shall be held Not earlier
than forty-five (45) days nor later than sixty (60)
days from the time of such call.
4. The bill calling such special election Shall be
deemed certified under Sec. 26, par. 2, Art. VI of
this Constitution and shall become law upon its
approval on third reading by Congress.
5. Appropriations for said special election Shall be
charged against any current appropriations and
shall be exempt from the requirements of, Sec. 25,
par. 4, Art. VI of the Constitution.
6. The convening of Congress and the special
electioncannot be suspended or postponed
7. No special election shall be calledIf the vacancy
occurs within eighteen (18) months before the
date of the next presidential elections.

Instances when there is presidential inability to


discharge powers and duties of his office

INSTANCE CONSEQUENCE
When the President The powers and
transmits to the Senate duties of his office
President and to the shall be discharged by
Speaker of the HoR his the Vice-President as
written declaration that Acting President.
he is unable to discharge
the powers and duties of
his office.

When a majority of all The Vice-President


the members of the shall immediately
Cabinet transmit to the assume the powers
Senate President and to and duties of the
the Speaker of the HoR office as Acting
their written declaration President.
that the President is
unable to discharge the NOTE: The President
powers and duties of his can reassume power
office . and duties of his office
once he transmits to the
Senate President and to
the Speaker of the HoR

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JUDICIAL DEPARTMENT

JUDICIAL DEPARTMENT a party who possesses locus standi or the standing to


challenge it brings the constitutional question or the
JUDICIAL POWER assailed illegal movement or act before it.

Judicial power 2. Proper party One who has sustained or is in


immediate danger of sustaining an injury as a
The duty of the courts of justice to settle actual result of the act complained of. To have standing,
controversies involving rights, which are legally one must show that 1) he has suffered some
demandable and enforceable and to determine actual or threatened injury as a result of the
whether or not there has been a grave abuse of allegedly illegal conduct of the government; 2) the
discretion amounting to lack or excess of jurisdiction injury is fairly traceable to the challenged action;
on the part of any branch or instrumentality of the 3) the injury is likely to be redressed by a favorable
Government. (Sec. 1[2], Art. VIII) action. (Francisco, Jr. & Hizon v. Toll Regulatory
Board, et. al., G.R. Nos. 166910, October 19, 2010)
Body vested with judicial power
Locus Standi v. Real party-in-interest
It is vested in one Supreme Court (SC) and such lower
courts as may be established by law. (Sec. 1, Art. VIII) LOCUS STANDI REAL PARTY-IN-
INTEREST
Judicial inquiry One who has The party who stands to
sustained or is in be benefited or injured
The power of the court to inquire into the exercise of imminent danger of by the judgment in the
discretionary powers to determine whether there has sustaining an injury as suit, or the part entitled
been a grave abuse of discretion amounting to lack or a result of the act to the avails of the suit.
excess of jurisdiction. complained of (direct Unless otherwise
injury test). (Ex Parte authorized by law or
JUDICIAL REVIEW Levitt, 302 U.S. 633) these Rules, every action
must be prosecuted or
Judicial review defended in the name of
the real party in interest.
The power of the SC to declare a law, treaty, ordinance (Sec. 2, Rule 3, Rules of
and other governmental act unconstitutional. Court)
Has constitutional A concept of civil
NOTE: When the judiciary mediates to allocate underpinnings procedure
constitutional boundaries, it does not assert any superiority Whether such parties Whether he is "the party
over other departments; it does not in reality nullify or have "alleged such a who would be benefited
invalidate an act of the legislature, but only asserts the personal stake in the or injured by the
solemn and sacred obligation assigned to it by the outcome of the judgment, or the 'party
Constitution to determine conflicting claims of authority
controversy as to entitled to the avails of
under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures assure that concrete the suit. (Francisco v.
and guarantees to them. This is in truth all that is involved in adverseness which House of
what is termed as judicial supremacy, which properly is the sharpens the Representatives, G.R. No.
power of judicial review under the Constitution. (Angara v. presentation of issues 160261, November 10,
The Electoral Commission, et. al., G.R. No. L-45081, July 15, upon which the court 2003)
1936) so largely depends for
illumination of
Requisites of judicial review difficult constitutional
questions."
1. Actual case An existing case or controversy
which is both ripe for resolution and susceptible NOTE: One who stands in that status sues to secure judicial
of judicial determination, and that which is not relief that would benefit other persons or the community as
conjectural or anticipatory, or that which seeks to a whole is called a non-Hohfeldian plaintiff.
resolve hypothetical or feigned constitutional
problems. There are many examples of non-Hohfeldian plaintiffs whose
prosecution in behalf of others is authorized by the common
NOTE: But even with the presence of an actual case or law: (l) the qui tam plaintiff-one who sues primarily to
controversy, the Court may refuse judicial review unless benefit a public entity-is typically non-Hohfeldian; (2) in a

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63 FACULTY OF CIVIL LAW
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stockholder's derivative suit the plaintiff stands in the very before the Court of Appeals (CA), which is the
same category as a qui tam plaintiff; (3) in actions by bailee competent court, the constitutional question was
for recovery of damage to bailed personality, the bailee may raised at the earliest opportune time. (Estarija v.
press a claim for conversion of, or injury to, the chattel, Ranada, G.R. No. 159314, June 26, 2006)
though ownership of the damaged or lost chattel remains in
the bailor; (4) actions for recovery in behalf of an underage 4. Necessity of deciding constitutional questions
child. As a joint act of the legislative and executive
authorities, a law is supposed to have been
Legal personality carefully studied and determined to be
constitutional before it was finally enacted. As
GR: If there is no actual or potential injury, long as there are other bases which courts can
complainant has no legal personality to raise use for decision, constitutionality of the law will
constitutional questions. not be touched.

XPN: If the question is of transcendental Requisites before a law can be declared partially
importance. unconstitutional
NOTE: The Principle of Transcendental Importance is
1. The legislature must be willing to retain valid
determined by:
portion (separability clause);
1. The character of the funds or other assets involved
in the case; 2. The valid portion can stand independently as law.
2. The presence of a clear case of disregard of a
constitutional or statutory prohibition by the Principle of Stare Decisis
public respondent agency or instrumentality of the
government; Deemed of imperative authority, controlling the
3. The lack of any other party with a more direct and decisions of like cases in the same court and in lower
specific interest in raising the questions being courts within the same jurisdiction, unless and until
raised. (Francisco, Jr. v. House of Representatives,
the decision in question is reversed or overruled by a
G.R. No. 160261, November 10, 2003)
court of competent authority. (De Castro v. JBC, G.R.
3. Earliest opportunity Constitutional question No. 191002, April 20, 2010)
must be raised at the earliest possible
opportunity. Slippery Slope Doctrine

GR: It must be raised in pleadings. The slippery slope argument is the claim that "we
ought not to make a sound decision today, for fear of
XPN: having to draw a sound distinction tomorrow. To
1. Criminal case It may be brought at any stage critics of slippery slope arguments, the arguments
of the proceedings according to the themselves sound like a slippery slope: if you accept
discretion of the judge (trial or appeal) this slippery slope argument, then you'll end up
because no one shall be brought within the accepting the next one and then the next one until you
terms of the law who are not clearly within eventually slip down the slope to rejecting all
them and the act shall not be punished when government power (or all change from the status quo),
the law does not clearly punish them. and thus "break down every useful institution of man.
2. Civil case It may be brought anytime if the
resolution of the constitutional issue is Q: Is the SC obliged to follow precedents?
inevitable in resolving the main issue.
3. When the jurisdiction of the lower court is in A: No. The Court, as the highest court of the land, may
question except when there is estoppel. be guided but is not controlled by precedent. Thus, the
Court, especially with a new membership, is not
NOTE: The earliest opportunity to raise a constitutional obliged to follow blindly a particular decision that it
issue is to raise it in the pleadings before a competent determines, after re-examination, to call for a
court that can resolve the same, such that, if not raised rectification. (De Castro v. JBC, G.R. No. 191002, April
in the pleadings, it cannot be considered in trial and, if 20, 2010)
not considered in trial, it cannot be considered on
appeal. Functions of judicial review
The Ombudsman has no jurisdiction to entertain
1. Checking Invalidating a law or executive act that
questions regarding constitutionality of laws. Thus,
when the issue of constitutionality of a law was raised is found to be contrary to the Constitution.

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JUDICIAL DEPARTMENT

2. Legitimizing Upholding the validity of the law Moot and academic


that results from a mere dismissal of a case
challenging the validity of the law. It is moot and academic when it ceases to present a
3. Symbolic To educate the bench and bar as to the justiciable controversy by virtue of supervening events
controlling principles and concepts on matters of so that a declaration thereon would be of no practical
grave public importance for the guidance of and use or value.
restraint upon the future. (Igot v. COMELEC, G.R.
No. L-352245, January 22, 1980) Court actions over moot and academic cases

Power of judicial review in impeachment proceedings GR: The courts should decline jurisdiction over such
includes the power of review over justiciable issues in cases or dismiss it on ground of mootness.
impeachment proceedings. (Francisco, Jr. v. House of
Representatives, G.R. No. 160261, November 10, 2003) XPNs:
1. There is a grave violation of the Constitution
Doctrine of Relative Constitutionality 2. There is an exceptional character of the situation
and the paramount public interest is involved
Where the constitutionality of certain rules may 3. When the constitutional issue raised requires
depend upon the times and get affected by the formulation of controlling principles to guide the
changing of the seasons. A classification that might bench, the bar, and the public
have been perfectly all right at the time of its inception 4. The case is capable of repetition yet evading
may be considered dubious at a later time. review. (David v. Arroyo, G.R. No. 171396, May 3,
2006)
OPERATIVE FACT DOCTRINE
Q: Atty. Al Conrad filed a petition to set aside the
Doctrine of Operative Fact award of the ZTE-DOTC Broadband Deal. The OSG
opposed the petition on the ground that the Legal
Under this doctrine, the law is recognized as Service of the DOTC has informed it of the Philippine
unconstitutional but the effects of the Governments decision not to continue with the ZTE-
unconstitutional law, prior to its declaration of nullity, NBN Project. That said, there is no more justiciable
may be left undisturbed as a matter of equity and fair controversy for the court to resolve. Hence, the OSG
play. It is a rule of equity. (League of Cities of the claimed that the petition should be dismissed. Atty.
Philippines v. COMELEC, G.R. No. 176951, November Al Conrad countered by saying that despite the
18, 2008) mootness, the Court must nevertheless take
cognizance of the case and rule on the merits due to
NOTE: The invocation of this doctrine is an admission that the Courts symbolic function of educating the bench
the law is unconstitutional. and the bar by formulating guiding and controlling
principles, precepts, doctrines, and rules. Decide.
Applicability on executive acts
A: The OSG is correct. The petition should be dismissed
The Operative Fact Doctrine also applies to executive for being moot. Judicial power presupposes actual
acts subsequently declared as invalid. A decision made controversies, the very antithesis of mootness. In the
by the president or the administrative agencies has to absence of actual justiciable controversies or disputes,
be complied with because it has the force and effect of the Court generally opts to refrain from deciding moot
law. (Hacienda Luisita Inc., v. Presidential Agrarian issues. Where there is no more live subject of
Reform Council, et. al., G.R. No. 171101, November 22, controversy, the Court ceases to have a reason to
2011) render any ruling or make any pronouncement.
(Suplico v. NEDA, G.R. Nos. 178830, July 14, 2008)
MOOT QUESTIONS
POLITICAL QUESTIONS
Moot questions
Political Question Doctrine
Questions on which a judgment cannot have any
practical legal effect or, in the nature of things, cannot The doctrine that the power of judicial review cannot
be enforced. (Baldo, Jr. v. COMELEC, G.R. No. 176135, be exercised when the issue is a political question. It
June 16, 2009) constitutes another limitation on such power of the
judiciary.

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Political questions SAFEGUARDS OF JUDICIAL INDEPENDENCE

Those questions which, under the Constitution, are to Constitutional safeguards that guarantee the
be decided by the people in their sovereign capacity, independence of the judiciary
or in regard to which full discretionary authority has
been delegated to the legislative or executive branch 1. The SC is a constitutional body and may not be
of the government. (Taada v. Cuenco, G.R. No. L- abolished by law.
10520, February 28, 1957) 2. Members are only removable by impeachment.
(Sec. 2, Art. XI, 1987 Constitution)
Justiciable questions v. Political questions 3. The SC may not be deprived of its minimum and
appellate jurisdiction; appellate jurisdiction may
JUSTICIABLE POLITICAL QUESTIONS not be increased without its advice or
QUESTIONS concurrence. (Sec. 2, Art VIII, 1987 Constitution)
Imply a given right Questions which involve 4. The SC has administrative supervision over all
legally demandable and the policy or the wisdom inferior courts and personnel. (Sec. 6, Art. VIII,
enforceable, an act or of the law or act, or the 1987 Constitution)
omission violative of morality or efficacy of 5. The SC has exclusive power to discipline
such right, and a the same. Generally it judges/justices of inferior courts. (Sec, 22, Art. VIII,
remedy granted and cannot be inquired by 1987 Constitution)
sanctioned by law for the courts. Further, 6. The members of the judiciary enjoy security of
said breach of right. these are questions tenure. (Sec. 2 [2], Art. VIII, 1987 Constitution)
which under the 7. The members of the judiciary may not be
Constitution: designated to any agency performing quasi-
a. Are decided by the judicial or administrative functions. (Sec 12, Art.
people in their VIII, 1987 Constitution)
sovereign capacity; 8. The salaries of judges may not be reduced; the
and judiciary enjoys fiscal autonomy. (Sec. 3, Art. VIII,
b. Where full 1987 Constitution)
discretionary 9. The SC alone may initiate the promulgation of the
authority has been Rules of Court. (Sec. 5 [5], Art. VIII, 1987
delegated by the Constitution)
Constitution either to 10. The SC alone may order temporary detail of
the executive or judges. (Sec. 5 [3], Art. VIII, 1987 Constitution)
legislative 11. The SC can appoint all officials and employees of
department. the Judiciary. (Sec. 5 [6], Art. VIII, 1987
Constitution)
Effect of the expanded definition of judicial power on
the political question doctrine Constitutional guarantee of fiscal autonomy

The 1987 Constitution expands the concept of judicial In Bengzon v. Drilon, G.R. No. 103524, April 15, 1992,
review. Under the expanded definition, the Court the SC explained that fiscal autonomy contemplates a
cannot agree that the issue involved is a political guarantee of full flexibility to allocate and utilize
question beyond the jurisdiction of the court to resources with the wisdom and dispatch that the
review. When the grant of power is qualified, needs require. It recognizes the power and authority
conditional or subject to limitations, the issue of to deny, assess and collect fees, fix rates of
whether the prescribed qualifications or conditions compensation not exceeding the highest rates
have been met or the limitations respected is authorized by law for compensation and pay plans of
justiciablethe problem being one of legality or the government and allocate and disburse such sums
validity, not its wisdom. Moreover, the jurisdiction to as may be provided by law or prescribed by it in the
delimit constitutional boundaries has been given to course of the discharge of its functions.
the SC. When political questions are involved, the
Constitution limits the delimitation as to whether or
not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part
of the official whose action is being questioned.

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JUDICIAL DEPARTMENT

JUDICIAL RESTRAINT Composition of the JBC

Principle of Judicial Restraint 1. Chief Justice, as ex-officio chairman


2. Secretary of Justice, as an ex-officio member
Theory of judicial interpretation that encourages 3. Representative of Congress, as an ex- officio
judges to limit the exercise of their own power. member
4. Representative of the Integrated Bar
In terms of legislative acts, the principle of judicial 5. A professor of law
restraint means that every intendment of the law must 6. A retired member of the SC
be adjudged by the courts in favor of its 7. Private sector representative
constitutionality, invalidity being a measure of last
resort. In construing therefore the provisions of a Representative of Congress in the JBC
statute, courts must first ascertain whether an
interpretation is fairly possible to sidestep the Only one. The word Congress used in Sec. 8(1), Art.
question of constitutionality. (Estrada v. VIII of the Constitution is used in its generic sense. No
Sandiganbayan, G.R. No. 148560, November 19, 2001) particular allusion whatsoever is made on whether the
Senate or the HoR is being referred to, but that, in
NOTE: The doctrine of separation of powers imposes upon either case, only a singular representative may be
the courts proper restraint born of the nature of their allowed to sit in the JBC. The seven-member
functions and of their respect for the other departments in composition of the JBC serves a practical purpose, that
striking down acts of the legislature as unconstitutional.
is, to provide a solution should there be a stalemate in
(Francisco, Jr. v. The House of Representatives, G.R. No.
voting.
160261, Bellosillo J., Separate Opinion, November 10, 2003)

APPOINTMENTS TO THE JUDICIARY It is evident that the definition of Congress as a


bicameral body refers to its primary function in
Judicial appointment government to legislate. In the passage of laws, the
Constitution is explicit in the distinction of the role of
The members of the judiciary are appointed by the each house in the process. The same holds true in
President of the Philippines from among a list of at Congress non-legislative powers. An inter-play
least three nominees prepared by the Judicial and Bar between the two houses is necessary in the realization
Council (JBC) for every vacancy. of these powers causing a vivid dichotomy that the
Court cannot simply discount. This, however, cannot
NOTE: The appointment shall need no confirmation from the be said in the case of JBC representation because no
Commission on Appointments. (Sec. 9, Art. VIII) liaison between the two houses exists in the workings
of the JBC. Hence, the term Congress must be taken
Rules on vacancies in the SC to mean the entire legislative department. The
Constitution mandates that the JBC be composed of
1. Vacancies in the SC should be filled within 90 days seven (7) members only. (Chavez v. Judicial and Bar
from the occurrence of the vacancy. Council, G.R. No. 202242, July 17, 2012)
2. Vacancies in lower courts should be filled within
90 days from submission to the President of the Functions of the JBC
JBC list.
3. The filling of the vacancy in the Supreme Court The principal function of the JBC is to recommend
within the 90-day period is an exception to the appointees to the judiciary. It may, however, exercise
prohibition on midnight appointments of the such functions as the SC may assign to it. (Sec. 8, Art.
president. This means that even if the period falls VIII)
on the period where the president is prohibited
from making appointments (midnight NOTE: The duty of the JBC to submit a list of nominees
before the start of the Presidents mandatory 90-day period
appointments); the president is allowed to make
to appoint is ministerial, but its selection of the candidates
appointments to fill vacancies in the Supreme
whose names will be in the list to be submitted to the
Court. (De Castro v. JBC, G.R. No. 191002, April 20, President lies within the discretion of the JBC. (De Castro v.
2010) JBC, G.R. No. 191002, March 17, 2010)

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67 FACULTY OF CIVIL LAW
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Tenure of the members of the SC and judges 6. Administrative cases involving the discipline or
dismissal of judges of lower courts;
Members of the SC and judges of lower courts can hold 7. Election contests for president or vice-president.
office during good behavior until:
1. The age of 70 years old; or NOTE: Other cases or matters may be heard in division, and
2. They become incapacitated to discharge their decided or resolved with the concurrence of a majority of
duties. the members who actually took part in the deliberations on
the issues and voted thereon, but in no case without the
concurrence of at least three such members.
General qualification for appointments to the
judiciary No law shall be passed increasing the appellate jurisdiction
of the SC as provided in the Constitution without its advice
Of proven competence, integrity, probity and and concurrence. (Sec. 30, Art. VI)
independence. (Sec. 7 [3], Art. VIII)
PROCEDURAL RULE-MAKING POWER
Qualifications for appointments to the SC
Scope of the rule making power of the SC
1. Natural born citizen of the Philippines;
2. At least 40 years of age; 1. The protection and enforcement of constitutional
3. A judge of a lower court or engaged in the practice rights
of law in the Philippines for 15 years or more. (Sec. 2. Pleadings, practice and procedure in all courts
7 [1], Art. VIII) 3. Admission to the practice of law
4. The Integrated Bar
General qualifications for appointments to lower 5. Legal assistance to the underprivileged
collegiate courts
Limitations on its rule making power
1. Natural born citizen of the Philippines;
2. Member of the Philippine Bar. 1. It should provide a simplified and inexpensive
procedure for the speedy disposition of cases.
General qualifications for appointments to lower 2. It should be uniform for all courts of the same
courts grade.
3. It should not diminish, increase, or modify
1. Citizen of the Philippines; substantive rights.
2. Member of the Philippine Bar.
ADMINISTRATIVE SUPERVISION OVER LOWER
NOTE: For both lower collegiate courts and lower courts, COURTS
Congress may prescribe other qualifications. (Sec. 7 [1] and
[2], Art. VIII)
SCs disciplinary power over judges of lower court
SUPREME COURT 1. Only the SC en banc has jurisdiction to discipline
or dismiss judges of lower courts.
EN BANC DECISIONS 2. Disciplinary action/dismissal Majority vote of
the SC Justices who took part in the deliberations
Cases that should be heard by the SC en banc and voted therein. (Sec. 11, Art. VIII)
1. All cases involving the constitutionality of a treaty, NOTE: The Constitution provides that the SC is given
international or executive agreement, or law; exclusive administrative supervision over all courts and
2. All cases which under the Rules of Court may be judicial personnel.
required to be heard en banc;
3. All cases involving the constitutionality, Administrative cases, which the SC may hear en banc,
application or operation of presidential decrees, under Bar Matter No. 209, include:
proclamations, orders, instructions, ordinances,
and other regulations; 1. Administrative judges;
4. Cases heard by a division when the required 2. Disbarment of lawyers;
majority in the division is not obtained; 3. Suspension of more than 1 year; or
5. Cases where the SC modifies or reverses a 4. Fine exceeding Php10, 000. (People v. Gacott, G.R.
doctrine or principle of law previously laid either No. 110930, July 13, 1995)
en banc or in division;

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2014 GOLDEN NOTES 68
JUDICIAL DEPARTMENT

Q: Does the CSC have jurisdiction over an employee confidential matters, which refer to information not
of the judiciary for acts committed while said yet publicized by the Court like (1) raffle of cases, (2)
employee was still in the executive branch? actions taken in each case in the Courts agenda, and
(3) deliberations of the Members in court sessions on
A: No. Administrative jurisdiction over a court cases matter pending before it. This privilege,
employee belongs to the SC, regardless of whether the however, is not exclusive to the Judiciary and it
offense was committed before or after employment in extends to the other branches of government due to
the Judiciary. (Ampong v. CSC, G.R. No. 167916, August our adherence to the principle of separation of
26, 2008) powers. (IN RE: Production of Court Records and
Documents and the Attendance of Court Officials and
ORIGINAL AND APELLATE JURISDICTION OF SC Employees as Witnesses under the Subpoenas of
February 10, 2012 and the Various Letters of the
Original jurisdiction v. Appellate jurisdiction Impeachment Prosecution Panel dated January 19 and
25, 2012, February 14, 2012)
1. Original Jurisdiction - A court has original
jurisdiction when it is the proper court to first hear Purpose of Judicial Privilege
the case. This is where the court makes
determinations of law and fact. The DPP is intended to prevent the chilling of
e.g.: deliberative communications. It insulates the Judiciary
a. Over cases affecting ambassadors, other from an improper intrusion into the functions of the
public ministers and consuls; judicial branch and shields judges, justices, and court
b. Over petitions for certiorari, prohibition, officials and employees from public scrutiny or the
mandamus, quo warranto, and habeas pressure of public opinion that would impair their
corpus; and ability to render impartial decisions. (Ibid.)
c. Review of the martial law or suspension of
the privilege of writ of habeas corpus. Requisites for a document to be protected by DPP

2. Appellate Jurisdiction - A court has appellate It must be shown that the document is both (1)
jurisdiction when it is reviewing a case that has predecisional and (2) deliberative. A document is
already been heard by a lower court and it only predecisional if they were made in the attempt to
looks at the matters of law. reach a final decision, and it is deliberative if it reflects
e.g.: the give-and-take of the consultative process such as
a. Over final judgments and orders of lower the disclosure of the information would discourage
courts in all cases in which the open discussion within the agency. Court records
constitutionality or validity of any treaty, which are predecisional and deliberative in nature are
international or executive agreement, law, thus protected and cannot be the subject of subpoena
presidential decree, proclamation, order, if judicial privilege is to be preserved. (Ibid.)
instruction, ordinance, or regulation is in
question; Q: During the impeachment proceedings against the
b. All cases involving the legality of any tax SC Chief Justice, the House Impeachment Panel,
impost, assessment or toil, or any penalty through letters, asked for the examination of records
imposed in relation thereto; and the issuance of certified true copies of the rollos
c. All cases in which the jurisdiction of any lower and the Agenda and Minutes of Deliberations of
court is in issue; specific SC-decided cases. Also, the same panel
d. All criminal cases in which the penalty requested for the attendance of court officials
imposed is reclusion perpetua or higher; and including judges, justices, and employees as
e. All cases in which only a question of law is witnesses under subpoenas. May judges, justices,
involved and Court officials and employees testify in an
impeachment proceeding against a Member of the
JUDICIAL PRIVILEGE Court on confidential matters learned in their official
capacity?
Judicial Privilege (Deliberative Process Privilege)
A: No. Members of the Court may not be compelled to
Deliberative process privilege is the privilege against testify in the impeachment proceedings against the
disclosure of information or communications that Chief Justice or other Members of the Court about
formed the process of judicial decisions. This applies to information acquired in the performance of their

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69 FACULTY OF CIVIL LAW
Political and International Law

official adjudicatory functions and duties; otherwise,


their disclosure of confidential matters learned in their
official capacity violates judicial privilege as it pertains
to the exercise of the constitutional mandate of
adjudication. (Ibid.)

XPN: If the intent only is for them to identify or certify


the genuineness of documents within their control
that are not confidential and privileged, their
presence in the Impeachment Court may be excused.

Q: May an individual SC Justice waive judicial


privilege?

A: No. This privilege, incidentally, belongs to the


Judiciary and is for the Supreme Court (as the
representative and entity speaking for the Judiciary),
and not for the individual justice, judge, or court
official or employees to waive. Thus, every proposed
waiver must be referred to the Supreme Court for its
consideration and approval. (Ibid.)

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2014 GOLDEN NOTES 70
CONSTITUTIONAL COMMISSIONS

CONSTITUTIONAL COMMISSIONS A of the Constitution. The automatic release of approved


annual appropriations to a Constitutional Commission
Constitutional Commissions vested with fiscal autonomy should thus be construed to
mean that no condition to fund releases may be imposed.
(CSC v. DBM, G.R. No. 158791, July 22, 2005)
1. Civil Service Commission (CSC)
2. Commission on Elections (COMELEC)
Requisites for the effective operation of the
3. Commission on Audit (CoA)
rotational scheme of terms of constitutional bodies
NOTE: The CSC, COMELEC, and CoA are equally pre-eminent
in their respective spheres. Neither one may claim 1. The original members of the Commission shall
dominance over the others. In case of conflicting rulings, it is begin their terms on a common date;
the judiciary, which interprets the meaning of the law and 2. Any vacancy occurring before the expiration of
ascertains which view shall prevail. (CSC v. Pobre, G.R. No. the term shall be filled only for the balance of such
160508, September 15, 2004) term. (Republic v. Imperial, G.R. No. L-8684,
March 31, 1995)
Purpose
POWERS AND FUNCTIONS OF EVERY COMMISSION
The creation of the Constitutional Commissions is
established in the Constitution because of the CIVIL SERVICE COMMISSION
extraordinary importance of their functions and the
need to insulate them from the undesired political As the central personnel agency of the government, it:
interference or pressure. Their independence cannot 1. Establishes a career service;
be assured if they were to be created merely by 2. Adopts measures to promote morale, efficiency,
statute. integrity, responsiveness, progressiveness and
courtesy in the Civil Service;
CONSTITUTIONAL SAFEGUARDS TO ENSURE 3. Strengthens the merits and rewards system;
INDEPENDENCE OF COMMISSIONS 4. Integrates all human resources and development
programs for all levels and ranks;
Guarantees of independence provided for by the 5. Institutionalizes a management climate conducive
Constitution to the 3 Commissions to public accountability. (Sec. 3, Art. IX-B)

1. They are constitutionally-created; may not be COMMISSION ON ELECTIONS


abolished by statute of its judicial functions.
2. Each is conferred certain powers and functions Constitutional powers and functions of the COMELEC
which cannot be reduced by statute.
3. Each is expressly described as independent. 1. Enforce and administer all laws and regulations
4. Chairmen and members are given fairly long term relative to the conduct of an election, plebiscite,
of office for 7 years. initiative, referendum, and recall.
5. Chairmen and members cannot be removed
except by impeachment. 2. Exercise:
6. Chairmen and members may not be reappointed a. Exclusive original jurisdiction over all contests
or appointed in an acting capacity. relating to the election, returns and
7. Salaries of chairmen and members are relatively qualifications of all elective:
high and may not be decreased during ii. Regional
continuance in office. iii. Provincial
8. Commissions enjoy fiscal autonomy. iv. City officials
9. Each commission may promulgate its own b. Exclusive appellate jurisdiction over all
procedural rules. contests involving:
10. Chairmen and members are subject to certain i. Elective municipal officials decided by
disqualifications calculated to strengthen their trial courts of general jurisdiction.
integrity. ii. Elective barangay officials decided by
11. Commissions may appoint their own officials and courts of limited jurisdiction.
employees in accordance with Civil Service Law. c. Contempt powers
i. COMELEC can exercise this power only in
NOTE: The Supreme Court held that the no report, no relation to its adjudicatory or quasi-
release policy may not be validly enforced against offices judicial functions. It cannot exercise this
vested with fiscal autonomy, without violating Sec. 5, Art. IX-

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71 FACULTY OF CIVIL LAW
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in connection with its purely executive or 8. Recommend to the President the removal of any
ministerial functions. officer or employee it has deputized, or the
ii. If it is pre-proclamation controversy, the imposition of any other disciplinary action, for
COMELEC exercises quasi-judicial/ violation or disregard of, or disobedience to its
administrative powers. directive, order, or decision.
iii. Its jurisdiction over contests (after 9. Submit to the President and the Congress a
proclamation), is in exercise of its judicial comprehensive report on the conduct of each
functions. election, plebiscite, initiative, referendum, or
recall.
NOTE: The COMELEC may issue writs of certiorari,
prohibition, and mandamus in exercise of its Q: All election cases, including pre-proclamation
appellate functions. controversies, must be decided by the COMELEC in
division. Should a party be dissatisfied with the
3. Decide, except those involving the right to vote, all decision, what remedy is available?
questions affecting elections, including
determination of the number and location of A: The disatisfied party may file a motion for
polling places, appointment of election officials reconsideration before the COMELEC en banc. If the en
and inspectors, and registration of voters. bancs decision is still not favorable, the same, in
accordance with Sec. 7, Art. IX-A, may be brought to
NOTE: Questions involving the right to vote fall within
the Supreme Court on certiorari. (Reyes v. RTC of
the jurisdiction of ordinary courts.
Oriental Mindoro, G.R. No. 108886, May 5, 1995)
4. Deputize, with the concurrence of the President,
NOTE: The fact that decisions, final orders or rulings of the
law enforcement agencies and instrumentalities COMELEC in contests involving elective municipal and
of the government, including the AFP, for the barangay offices are final, executory and not appealable,
exclusive purpose of ensuring free, orderly, (Art. IX-C, Sec. 2[2]) does not preclude recourse to the
honest, peaceful and credible elections. Supreme Court by way of a special civil action of certiorari.
(Galido v. COMELEC, G.R. No. 95346, January 18, 1991)
5. Registration of political parties, organizations, or
coalitions and accreditation of citizens arms of Q: Can the COMELEC exercise its power of contempt
the COMELEC. in connection with its functions as the National Board
of Canvassers during the elections?
6. File, upon a verified complaint, or on its own
initiative, petitions in court for inclusion or A: Yes. The effectiveness of the quasi-judicial power
exclusion of voters; investigate and, where vested by law on a government institution hinges on
appropriate, prosecute cases of violations of its authority to compel attendance of the parties
election laws, including acts or omissions and/or their witnesses at the hearings or proceedings.
constituting election frauds, offenses and In the same vein, to withhold from the COMELEC the
malpractices. power to punish individuals who refuse to appear
a. COMELEC has exclusive jurisdiction to during a fact-finding investigation, despite a previous
investigate and prosecute cases for violations notice and order to attend would render nugatory the
of election laws. COMELECs investigative power, which is an essential
b. COMELEC can deputize prosecutors for this incident to its constitutional mandate to secure the
purpose. The actions of the prosecutors are conduct of honest and credible elections. (Bedol v.
the actions of the COMELEC. COMELEC, G.R. No. 179830, December 3, 2009)

NOTE: Preliminary investigations conducted by the COMMISSION ON AUDIT


COMELEC are valid.
Powers and duties of COA
7. Recommend to the Congress effective measures
to minimize election spending, including 1. Examine, audit and settle all accounts pertaining
limitation of places where propaganda materials to revenue and receipts of, and expenditures or
shall be posted, and to prevent and penalize all uses of funds and property owned or held in trust
forms of election frauds, offenses, malpractices, or pertaining to government.
and nuisance candidacies. 2. Keep general accounts of government and
preserve vouchers and supporting papers.

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2014 GOLDEN NOTES 72
CONSTITUTIONAL COMMISSIONS

3. Authority to define the scope of its audit and COMMISSION ON ELECTION


examination, establish techniques and methods
required therefore. Cases that fall under the jurisdiction of COMELEC by
4. Promulgate accounting and auditing rules and division
regulations, including those for prevention and
disallowance. (Sec. 2, Art. IX-D) Election cases should be heard and decided by a
division. If a division dismisses a case for failure of
Q: The PNB was then one of the leading government- counsel to appear, the MR may be heard by the
owned banks and it was under the audit jurisdiction division.
of the COA. A few years ago, it was privatized. What
is the effect, if any, of the privatization of PNB on the NOTE: According to Balajonda v. COMELEC, G.R. No. 166032,
audit jurisdiction of the COA? February 28, 2005, the COMELEC can order immediate
execution of its own judgments.
A: Since the PNB is no longer owned by the
Government, the COA no longer has jurisdiction to Cases that fall under the jurisdiction of COMELEC en
audit it as an institution. Under Sec. 2(2), Art. IX-D of banc
the Constitution, it is a GOCC and their subsidiaries
which are subject to audit by the COA. However, in Motion for Reconsideration of decisions should be
accordance with Sec. 2(1), Art. IX-D, the COA can audit decided by COMELEC en banc. It may also directly
the PNB with respect to its accounts because the assume jurisdiction over a petition to correct manifest
Government still has equity in it. (PAL v. COA, G.R. No. errors in the tallying of results by Board of Canvassers.
91890, June 9, 1995)
NOTE: Any decision, order or ruling of the COMELEC in the
exercise of its quasi-judicial functions may be brought to the
PROHIBITED OFFICES & INTERESTS
SC on certiorari under Rules 64 and 65 of the Revised Rules
of Court within 30 days from receipt of a copy thereof.
No member of a Constitutional Commission shall,
during his tenure: These decisions or rulings refer to the decision or final order
1. Hold any other office or employment of the COMELEC en banc and not of any division thereof.
2. Engage in the practice of any profession
3. Engage in the active management and control of Acts that fall under the COMELECs power to
any business which in any way may be affected by supervise or regulate
the function of his office
4. Be financially interested, directly or indirectly, in 1. The enjoyment or utilization of all franchises or
any contract with, or in any franchise or privilege permits for the operation of transportation and
granted by the Government, any of its other public utilities, media of communication or
subdivisions, agencies or instrumentalities, information.
including GOCCs or their subsidiaries 2. Grants, special privileges or concessions granted
by the government or any subdivision, agency or
instrumentality thereof, including any GOCC or its
JURISDICTION OF EACH CONSTITUTIONAL subsidiary. (Sec. 4, Art. IX-C, 1987 Constitution)
COMMISSION
Instances when COMELEC can exercise its
CIVIL SERVICE COMMISSION constitutional powers and functions

Scope of the Civil Service 1. During election period 90 days before the day of
the election and ends 30 days thereafter. In
The civil service embraces all branches, subdivisions, special cases, COMELEC can fix a period.
instrumentalities, and agencies of the Government, 2. Applies not only to elections but also to plebiscites
including government-owned or controlled and referenda.
corporations with original charters. (Sec. 2[1], Art. IV-
B)

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73 FACULTY OF CIVIL LAW
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Jurisdiction of the COMELEC before the proclamation


v. its jurisdiction after proclamation 2. CSC: In the case of decisions of the CSC,
Administrative Circular 1-95538 which took effect
The difference lies in the due process implications. on June 1, 1995, provides that final resolutions of
the CSC shall be appealable by certiorari to the CA
OVER PRE- OVER CONTESTS within 15 days from receipt of a copy thereof.
PROCLAMATION (AFTER From the decision of the CA, the party adversely
CONTROVERSY PROCLAMATION) affected thereby shall file a petition for review on
COMELECs jurisdiction COMELECs jurisdiction certiorari under Rule 45 of the Rules of Court.
is administrative or is judicial and is
quasi-judicial and is governed by the
governed by the less requirements of judicial 3. COMELEC: only decision en banc may be brought
stringent requirements process. to the Court by certiorari since Art. IX-C, says that
of administrative due motions for reconsideration of decisions shall be
process (although the decided by the Commission en banc. (Reyes v.
SC has insisted that Mindoro, G.R. No. 108886, May 5, 1995)
question on
qualifications should Procedural requisite before certiorari to the Supreme
be decided only after a Court may be availed of
full-dress hearing).
Sec. 1 of Rule 65 says that certiorari may be resorted
NOTE: Hence, even in the case of regional or provincial or to when there is no other plain or speedy and
city offices, it does make a difference whether the COMELEC adequate remedy. But reconsideration is a speedy and
will treat it as a pre-proclamation controversy or as a adequate remedy. Hence, a case may be brought to
contest. the Supreme Court only after reconsideration.

COMMISSION ON AUDIT Decision-making process in these Commissions

Q: Can the COA be divested of its power to examine 1. Each Commission shall decide matter or cases by a
and audit government agencies? majority vote of all the members within 60 days
from submission.
A: No law shall be passed exempting any entity of the a. COMELEC may sit en banc or in 2 divisions.
Government or its subsidiary in any guise whatsoever, b. Election cases, including pre-proclamation
or any investment of public funds, from the jurisdiction controversies are decided in division, with
of the Commission on Audit. motions for reconsideration filed with the
The mere fact that private auditors may audit COMELEC en banc.
government agencies does not divest the COA of its c. The SC has held that a majority decision
power to examine and audit the same government decided by a division of the COMELEC is a
agencies. (DBP v. COA, G.R. No. 88435, January 16, valid decision.
2002) 2. As collegial bodies, each Commission must act as
one, and no one member can decide a case for the
REVIEW OF FINAL ORDERS, RESOLUTION & entire commission.
DECISIONS
Rule on appeals
RENDERED IN THE EXERCISE OF QUASI-JUDICIAL
FUNCTION 1. Decisions, orders or rulings of the COMELEC/COA
may be brought on certiorari to the SC under Rule
SCs jurisdiction over decisions of the Commissions 65.
2. Decisions, orders or rulings of the CSC should be
1. COA: Judgments or final orders of the Commission appealed to the CA under Rule 43.
on Audit may be brought by an aggrieved party to
the Supreme Court on certiorari under Rule 65.
Only when COA acts without or excess in
jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, may
the SC entertain a petition for certiorari under
Rule 65.

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2014 GOLDEN NOTES 74
CONSTITUTIONAL COMMISSIONS

RENDERED IN THE EXERCISE OF ADMINISTRATIVE


FUNCTION

Power of the CSC to hear and decide administrative


cases

Under the Administrative Code of 1987, the CSC has


the power to hear and decide administrative cases
instituted before it directly or on appeal, including
contested appointments.
Body which has the jurisdiction on personnel actions,
covered by the civil service

CSC. It is the intent of the Civil Service Law, in requiring


the establishment of a grievance procedure, that
decisions of lower officials (in cases involving
personnel actions) be appealed to the agency head,
then to the CSC. The RTC does not have jurisdiction
over personnel actions. (Olanda v. Bugayong, G.R. No.
140917, October 10, 2003)

Jurisdiction of the COMELEC

The COMELEC has exclusive original jurisdiction over


all contests relating to returns, and qualifications of all
elective regional, provincial, and city officials.It also
has appellate jurisdiction over all contests involving
elective municipal officials decided by trial courts of
general jurisdiction, or involving elective barangay
officials decided by trial courts of limited jurisdiction.

Certiorari jurisdiction of the SC over these


Commissions

Proceedings are limited to issues involving grave abuse


of discretion resulting in lack or excess of jurisdiction
and do not ordinarily empower the Court to review the
factual findings of the Commissions. (Aratuc v.
COMELEC, G.R. No. L-49705-09, February 8, 1979)

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75 FACULTY OF CIVIL LAW
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BILL OF RIGHTS Compens Value of


Protection
ation Intangible; the
and public
FUNDAMENTAL POWERS OF THE STATE general property
improveme
welfare expropria
nts
Fundamental powers of the State ted

1. Police Power POLICE POWER


2. Power of Eminent Domain
3. Power of Taxation Police Power

NOTE: These powers are considered inherent because they Inherent and plenary power of the State which enables
belong to the very essence of government and without them it to prohibit all that is hurtful to the comfort, safety,
no government can exist. and welfare of society. (Ermita-Malate Hotel and
Motel Operators Association, Inc. v. Mayor of Manila,
Similarities among the fundamental powers of the L-24693, July 31, 1967)
State
Police power easily outpaces the other two powers. It
1. They are inherent in the State and may be regulates not only property, but also the liberty of
exercised by it without need of express persons. Police power is considered the most
constitutional grant. pervasive, the least limitable, and the most demanding
2. They are not only necessary but also of the three powers. It may be exercised as long as the
indispensable. The State cannot continue or be activity or property sought to be regulated has some
effective unless it is able to exercise them. relevance to the public welfare. (Gerochi v.
3. They are methods by which the State interferes Department of Energy, G. R. 159796, July 17, 2007)
with private rights.
4. They all presuppose an equivalent compensation Police power rests upon public necessity and upon the
for the private rights interfered with. right of the State and of the public to self-protection.
5. They are exercised primarily by the legislature. For this reason, its scope expands and contracts with
the changing needs. (Churchill v. Rafferty, 32 Phil. 580,
Common limitations on these powers 602-603, 1915)
1. May not be exercised arbitrarily to the prejudice Generally, police power extends to all the great public
of the Bill of Rights needs. Its particular aspects, however, are the
2. Subject at all times to the limitations and following:
requirements of the Constitution and may in 1. Public health
proper cases be annulled by the courts, i.e. when 2. Public morals
there is grave abuse of discretion. 3. Public safety
4. Public welfare
Police Power v. Taxation v. Eminent Domain
GR: Police power is lodged primarily in the national
POLICE EMINENT legislature.
TAXATION
BASIS POWER DOMAIN
Extent of Regulates Affects only Affects XPN: By virtue of a valid delegation of legislative
power liberty and property only power, it may be exercised by the:
property rights property 1. President
rights 2. Administrative bodies
Power Exercised Exercised Maybe 3. Lawmaking bodies on all municipal levels,
exercised only by the only by the exercised including the barangay. Municipal governments
by whom governmen governmen by private exercise this power under the general welfare
t t entities clause.
Purpose Property Property is Property
taken is taken for is taken Q: Can the MMDA exercise police power?
destroyed public use for
public A: No. The MMDAs powers are limited to the
use formulation, coordination, regulation,
implementation, preparation, management,

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2014 GOLDEN NOTES 76
BILL OF RIGHTS

monitoring, setting of policies, installing a system, and representatives. It increased their annual license fees
administration. Nothing in RA No. 7924 granted the as well. Is the ordinance constitutional?
MMDA police power, let alone legislative power.
(MMDA v. Trackworks GR. No. 179554, December 16, A: Yes. The mantle of protection associated with the
2009) due process guaranty does not cover the hotel and
motel operators. This particular manifestation of a
Requisites for the valid exercise of police power by police power measure being specifically aimed to
the delegate safeguard public morals is immune from such
imputation of nullity resting purely on conjecture and
1. Express grant by law unsupported by anything of substance. To hold
2. Must not be contrary to law otherwise would be to unduly restrict and narrow the
3. GR: Within territorial limits of LGUs scope of police power which has been properly
characterized as the most essential, insistent and the
XPN: When exercised to protect water supply least limitable of powers, extending as it does "to all
(Wilson v. City of Mountain Lake Terraces, 417 the great public needs." There is no question but that
P.2d 632, 1966) the challenged ordinance was precisely enacted to
minimize certain practices hurtful to public morals.
NOTE: The exercise of police power lies within the discretion The challenged ordinance then proposes to check the
of the legislative department. The only remedy against clandestine harboring of transients and guests of these
legislative inaction is a resort to the court of public opinion, establishments by requiring these transients and
a refusal of the electorate to turn to the legislative members
guests to fill up a registration form, prepared for the
who, in their view, have been remiss in the discharge of their
purpose, in a lobby open to public view at all times,
duties.
and by introducing several other amendatory
Q: Can the courts interfere with the exercise of police provisions calculated to shatter the privacy that
power? characterizes the registration of transients and guests.
Moreover, the increase in the licensed fees was
A: No. If the legislature decides to act, the choice of intended to discourage "establishments of the kind
measures or remedies lies within its exclusive from operating for purpose other than legal" and at
discretion, as long as the requisites for a valid exercise the same time, to increase "the income of the city
of police power have been complied with. government." (Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila,
Requisites for a valid exercise of police power G.R. No. L-24693, July 31, 1967)

1. Lawful subject The interests of the public EMINENT DOMAIN


generally, as distinguished from those of a
particular class, require the exercise of the police Power of eminent domain
power
2. Lawful means The means employed are Power of the state to forcibly acquire the needed
reasonably necessary for the accomplishment of property in order to devote it to the intended public
the purpose and not unduly oppressive upon use, upon payment of just compensation.
individuals. (NTC v. Philippine Veterans Bank, 192
SCRA 257) Conditions for the exercise of the power of eminent
domain
Q: Hotel and motel operators in Manila sought to
declare Ordinance 4670 as unconstitutional for being 1. Taking of private property
unreasonable, thus violative of the due process 2. For public use
clause. The Ordinance requires the clients of hotels, 3. Just compensation
motels and lodging house to fill up a prescribed form 4. Observance of due process
in a lobby, open to public view and in the presence of
the owner, manager or duly authorized The following, however, may exercise this power by
representative of such hotel, motel or lodging house. virtue of a valid delegation
The same law provides that the premises and
facilities of such hotels, motels and lodging houses 1. The President of the Philippines
would be open for inspection either by the City 2. Various local legislative bodies
Mayor, or the Chief of Police, or their duly authorized 3. Certain public corporations e.g. Land Authority
and National Housing Authority

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4. Quasi-public corporations e.g. Philippine National Eminent Domain v. Destruction from necessity
Railways
BASIS EMINENT DESTRUCTION
Power of expropriation as exercised by Congress v. DOMAIN FROM NECESSITY
Power of expropriation as exercised by delegates Who can Only authorized May be validly
exercise public entities or undertaken by
When exercised by Congress, the power is pervasive public officials private
and all-encompassing. It can reach every form of individuals
property which may be needed by the State for public Kind of right Public right Right of self-
use. In fact, it can reach even private property already defense, self-
dedicated to public use, or even property already preservation,
devoted to religious worship. (Barlin v. Ramirez, 7 Phil. whether applied
41) But when exercised by delegates, it can only be to persons or to
broad as the enabling law and the conferring property
authorities want it to be. Requirement Conversion of No need for
property taken for conversion; no
As to the question of necessity, the same is a political public use; just
question when the power is exercised by Congress. On payment of just compensation
the other hand, it is a judicial question when exercised compensation but payment in
by delegates. The courts can determine whether there the form of
is genuine necessity for its exercise, as well as the damages when
value of the property. applicable
Beneficiary State/public Private
Requisites for a valid taking (PMAPO)
EXPANSIVE CONCEPT OF PUBLIC USE
1. The expropriator must enter a Private property
2. Entry must be for more than a Momentary period Expansive concept of Public Use
3. Entry must be under warrant or color of legal
Authority The requisite of public use does not necessarily mean
4. Property must be devoted to Public use or use by the public at large. Whatever may be
otherwise informally appropriated or injuriously beneficially employed for the general welfare satisfies
affected the requirement. Moreover, that only few people
5. Utilization of property must be in such a way as to benefit from the expropriation does not diminish its
Oust the owner and deprive him of beneficial public-use character because the notion of public use
enjoyment of the property (Republic v. vda. De now includes the broader notion of indirect public
Castellvi, G.R. No. L-20620, Aug. 15, 1974) benefit or advantage. (Manosca v. CA, G.R. 166440,
Jan. 29, 1996).
All private property capable of ownership, including
services, can be taken. Q: The National Historical Institute declared the
parcel of land owned by Petitioners as a national
Money and choses in action, personal right not historical landmark, because it was the site of the
reduced in possession but recoverable by a suit at law, birth of Felix Manalo, the founder of Iglesia ni Cristo.
right to receive, demand or recover debt, demand or The Republic filed an action to appropriate the land.
damages on a cause of action ex contractu or for a tort Petitioners argued that the expropriation was not for
or omission of duty cannot be taken. a public purpose. Is this correct?
NOTE: A chose in action is a property right in something
A: Public use should not be restricted to the traditional
intangible, or which is not in ones possession but
enforceable through legal or court action. Ex. cash, a right of
uses. The taking is for a public use because of the
action in tort or breach of contract, an entitlement to cash contribution of Felix Manalo to the culture and history
refund, checks, money, salaries, insurance claims. of the Philippines. (Manosca v. CA , G.R. No. 106440,
Jan. 29, 1996)

Q: The NHA failed to relocate squatters from Metro


Manila to the Dasmarias Resettlement Project in
Cavite. Marina, one of the owners, seeks to reclaim
her portion of the land expropriated on the ground

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that NHA failed to comply with the stated public


purpose of the expropriation. Is the contention NOTE: The owner is entitled to the payment of interest from
correct? the time of taking until just compensation is actually paid to
him. Taxes paid by him from the time of the taking until the
transfer of title (which can only be done after actual
A: No. The expropriation of private lands for slum
payment of just compensation), during which he did not
clearance and urban development is for public
enjoy any beneficial use of the property, are reimbursable by
purpose. The Constitution itself allows the State to the expropriator.
undertake, for the common good and in cooperation
with the private sector, a continuing program of urban An interest of 12% per annum on the just compensation due
land reform and housing which will make at affordable the landowner should be used in computing interest. (LBP
cost decent housing and basic services to v. Wycoco G.R. No. 140160, January 13, 2004)
underprivileged and homeless citizens in urban
centers and resettlement areas. The expropriation of DETERMINATION
private property for the purpose of socialized housing
for the marginalized sector is in furtherance of the The value of the property must be determined either
social justice provision under Sec. 1, Art. XIII of the at the time of taking or filing of the complaint,
Constitution. To this end, the State shall require the whichever comes first. (EPZA v. Dulay, G.R. No. 59603,
acquisition, ownership, use and disposition of April 29, 1987)
property and its increments. Thus, it follows that the
low cost housing project of respondent NHA on the The Regional Trial Court determines the amount of just
expropriated lots is in compliance with the public compensation. A trial is indispensable to give the
use requirement. It is for public purpose even if the parties the opportunity to present evidence on the
developed area is later sold to private homeowners, issue of just compensation. (Manila Electric Co. v.
commercial firms, entertainment and service Pineda, 206 SCRA 196)
companies and other private concerns. (Reyes v. NHA,
G.R. No. 147511, Jan. 20, 2003) EFFECT OF DELAY

JUST COMPENSATION GR: Non-payment by the government does not entitle


private owners to recover possession of the property
Just compensation because expropriation is an in rem proceeding, not an
ordinary sale, but only entitle them to demand
It is the full and fair equivalent of the property taken payment of the fair market value of the property.
from the private owner (owners loss) by the
expropriator. It is usually the fair market value (FMV) XPNs:
of the property and must include consequential 1. When there is deliberate refusal to pay just
damages (damages to the other interest of the owner compensation
attributed to the expropriation) minus consequential 2. Governments failure to pay compensation within
benefits (increase in the value of other interests 5 years from the finality of the judgment in the
attributed to new use of the former property). expropriation proceedings. This is in connection
with the principle that the government cannot
NOTE: FMV is the price fixed by the parties willing but not keep the property and dishonor the judgment.
compelled to enter into a contract of sale. (Republic v. Lim, G.R. No. 161656, June 29, 2005)

Form of payment ABANDONMENT OF INTENDED USE AND RIGHT


OF REPURCHASE
GR: Compensation has to be paid in money.
Q: Several parcels of lands located in Lahug, Cebu City
XPN: In cases involving CARP, compensation may be in
were the subject of expropriation proceedings filed
bonds or stocks, for it has been held as a non-
by the Government for the expansion and
traditional exercise of the power of eminent domain.
improvement of the Lahug Airport. The RTC rendered
It is not an ordinary expropriation where only a specific
judgment in favor of the Government and ordered
property of relatively limited area is sought to be taken
the latter to pay the landowners the fair market value
by the State from its owner for a specific and perhaps
of the land. The landowners received the payment.
local purpose. It is rather a revolutionary kind of
expropriation. (Association of Small Landowners in the
The other dissatisfied landowners appealed. Pending
Philippines, Inc. v. Secretary of Agrarian Reform, G.R.
appeal, the Air Transportation Office (ATO),
No. 78742, 14 July 1989)

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proposed a compromise settlement whereby the the judgment would violate the property owners
owners of the lots affected by the expropriation right to justice, fairness, and equity.
proceedings would either not appeal or withdraw
their respective appeals in consideration of a In light of these premises, we now expressly hold that
commitment that the expropriated lots would be the taking of private property, consequent to the
resold at the price they were expropriated in the Governments exercise of its power of eminent
event that the ATO would abandon the Lahug domain, is always subject to the condition that the
Airport, pursuant to an established policy involving property be devoted to the specific public purpose for
similar cases. Because of this promise, the which it was taken. Corollary, if this particular purpose
landowners did not pursue their appeal. Thereafter, or intent is not initiated or not at all pursued, and is
the lot was transferred and registered in the name of peremptorily abandoned, then the former owners, if
the Government. The projected improvement and they so desire, may seek the reversion of the property,
expansion plan of the old Lahug Airport, however, subject to the return of the amount of just
was not pursued. From the date of the institution of compensation received. In such a case, the exercise of
the expropriation proceedings up to the present, the the power of eminent domain has become improper
public purpose of the said expropriation (expansion for lack of the required factual justification. (Mactan-
of the airport) was never actually initiated, realized, Cebu International Airport Authority and Air
or implemented. Transportation Office v. Lozada, et. al, G.R. No.
176625, Feb. 25, 2010)
Thus, the landowners initiated a complaint for the
recovery of possession and reconveyance of MISCELLANEOUS APPLICATION
ownership of the lands based on the compromised
agreement they entered into with the ATO. On the Q: An ordinance of Quezon City requires memorial
other hand, the Government anchor their claim to park operators to set aside at least 6% of their
the controverted property on the supposition that cemetery for charity burial of deceased persons who
the decision in the pertinent expropriation are paupers and residents of Quezon City. The same
proceedings did not provide for the condition that ordinance also imposes fine or imprisonment and
should the intended use of the land for the expansion revocation of permit to operate in case of violation.
of the Lahug Airport be aborted or abandoned, the Is this a valid exercise of police power?
property would revert to respondents, being its
former owners. Do the former owners have the right A: No. It constitutes taking of property without just
to redeem the property? compensation. The power to regulate does not include
the power to prohibit. The power to regulate does not
A: Yes. It is well settled that the taking of private include the power to confiscate. The ordinance in
property by the Governments power of eminent question not only confiscates but also prohibits the
domain is subject to two mandatory requirements: (1) operation of a memorial park cemetery, because
that it is for a particular public purpose; and (2) that under Sec. 13 of said ordinance, 'Violation of the
just compensation be paid to the property owner. provision thereof is punishable with a fine and/or
These requirements partake of the nature of implied imprisonment and that upon conviction thereof the
conditions that should be complied with to enable the permit to operate and maintain a private cemetery
condemnor to keep the property expropriated. shall be revoked or cancelled. The confiscatory clause
and the penal provision in effect deter one from
More particularly, with respect to the element of operating a memorial park cemetery. Moreover,
public use, the expropriator should commit to use the instead of building or maintaining a public cemetery
property pursuant to the purpose stated in the for this purpose, the city passes the burden to private
petition for expropriation filed, failing which, it should cemeteries. (City Government of Quezon City v. Ericta,
file another petition for the new purpose. If not, it is G.R. No. L-34915, Jun. 24, 1983)
then incumbent upon the expropriator to return the
said property to its private owner, if the latter desires Q: NPC negotiated with Maria for an easement of
to reacquire the same. Otherwise, the judgment of right of way over her property. NPC contends that
expropriation suffers an intrinsic flaw, as it would lack they shall only pay easement fee, not just
one indispensable element for the proper exercise of compensation. Is a right of way easement subject to
the power of eminent domain, namely, the particular expropriation?
public purpose for which the property will be
devoted. Accordingly, the private property owner A: Yes. There can be expropriation in the right of way
would be denied due process of law, and easement. Expropriation is not limited to the

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acquisition of real property with a corresponding sought to be done, the tax may be successfully
transfer of title or possession the right of way attacked as an inordinate and unconstitutional
easement resulting in a restriction of limitation on exercise of the discretion that is usually vested
property right over the land traversed by transmission exclusively in the legislature in ascertaining the
lines also falls within the ambit of the term amount of tax.
expropriation. (NPC v. Maria Mendoza San Pedro, G.R.
No. 170945 Sept. 26, 2006) 1. The power to tax is primarily vested in the
legislature. This power, however, may now be
Q: Causby sued the United States for trespassing on exercised by local legislative bodies, no longer by
his land, complaining specifically about how low- virtue of a valid delegation as before, but pursuant
flying military planes caused his chickens to jump up to a direct authority conferred by Art. X, Sec. 5 of
against the side of the chicken house and the walls the 1987 Constitution.
and burst themselves open and die. Are they entitled
to compensation by reason of taking clause? 2. The power to tax is subject to the limitations
imposed by the Constitution.
A: Yes. There is taking by reason of the frequency and
altitude of the flights. Flights of aircraft over private 3. The power of taxation is inherent in the State and
land which are so low and frequent as to be a direct the State therefore can still exercise this power
and immediate interference with the enjoyment and even if the constitution had not mentioned about
use of the land are as much an appropriation of the use it.
of the land as a more conventional entry upon it. If the
flights over Causby's property rendered it Payment of taxes is an obligation based on law, and
uninhabitable, there would be a taking compensable not on contract. It is a duty imposed upon the
under the Fifth Amendment. It is the owner's loss, not individual by the mere fact of his membership in the
the taker's gain, which is the measure of the value of body politic and his enjoyment of the benefits
the property taken. Morever, Causby could not use his available from such membership.
land for any purpose. (US v. Causby, 328 U.S. 256 ,
1946) NOTE: Except only in the case of poll (community) taxes,
non-payment of a tax may be the subject of criminal
TAXATION prosecution and punishment. The accused cannot invoke the
prohibition against imprisonment for debt as taxes are not
considered debts.
Taxes are
Matters left to the discretion of the legislature
1. Enforced proportional contributions from persons
and property
1. Whether to tax in the first place
2. Levied by the State by virtue of its sovereignty
2. Whom or what to tax
3. For the support of the government
3. For what public purpose
4. For public needs
4. Amount or rate of the tax
Taxation
Limitations, in general, on the power of taxation
Process by which the government, through its
Inherent and Constitutional limitations
legislative branch, imposes and collects revenues to
defray the necessary expenses of the government, and
Inherent limitations
to be able to carry out, in particular, any and all
projects that are supposed to be for the common
1. Public purpose
good. Simply put, taxation is the method by which
2. Non-delegability of power
these contributions are exacted.
3. Territoriality or situs of taxation
4. Exemption of government from taxation
The power to tax includes the power to destroy only if
5. International comity
it is used as a valid implement of the police power in
discouraging and in effect, ultimately prohibiting
Constitutional limitations
certain things or enterprises inimical to public welfare.
But where the power to tax is used solely for the
1. Due process of law (Art. III, Sec.1)
purpose of raising revenues, the modern view is that it
2. Equal protection clause (Art. III, Sec.1)
cannot be allowed to confiscate or destroy. If this is

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3. Uniformity, equitability and progressive system of Tax exemptions may either be


taxation (Art. VI, Sec 28)
4. Non-impairment of contracts (Art. III, Sec. 10) 1. Constitutional
5. Non-imprisonment for non-payment of poll tax 2. Statutory
(Art. III, Sec. 20)
6. Revenue and tariff bills must originate in the Tax exemptions may be revoked if
House of Representatives (Art I, Sec. 7)
7. Non-infringement of religious freedom (Art. III, 1. Exemption is granted gratuitously revocable
Sec.4) 2. Exemption is granted for valuable consideration
8. Delegation of legislative authority to the President (non-impairment of contracts) irrevocable
to fix tariff rates, import and export quotas,
tonnage and wharfage dues Tax v. License fee
9. Tax exemption of properties actually, directly and
exclusively used for religious, charitable and TAX LICENSE FEE
educational purposes (NIRC, Sec 30) Levied in exercise of Imposed in the exercise
10. Majority vote of all the members of Congress the taxing power of the police power of
required in case of legislative grant of tax the state
exemptions The purpose of the tax License fees are imposed
11. Non-impairment of SCs jurisdiction in tax cases is to generate for regulatory purposes
12. Tax exemption of revenues and assets of, revenues which means that it must
including grants, endowments, donations or only be of sufficient
contributions to educational institutions amount to include
expenses in issuing a
Q: Should there be notice and hearing for the license; cost of necessary
enactment of tax laws? inspection or police
surveillance, etc.
A: It depends. From the procedural viewpoint, due If its primary purpose If regulation is the
process does not require previous notice and hearing is to generate primary purpose, the
before a law prescribing fixed or specific taxes on revenue, and fact that incidental
certain articles may be enacted. But where the tax to regulation is merely revenue is also obtained
be collected is to be based on the value of taxable incidental does not make the
property, the taxpayer is entitled to be notified of the imposition a tax
assessment proceedings and to be heard therein on
the correct valuation to be given the property. NOTE: Ordinarily, license fees are in the nature of the
exercise of police power because they are in the form of
Uniformity in taxation regulation by the State and considered as a manner of paying
off administration costs. However, if the license fee is higher
Refers to geographical uniformity, meaning it operates than the cost of regulating, then it becomes a form of
taxation. (Ermita-Malate Hotel and Motel Operators Assoc.,
with the same force and effect in every place where
Inc. v. City Mayor of Manila, G.R. No. L-24693, Oct. 23, 1967)
the subject of it is found.
PRIVATE ACTS AND THE BILL OF RIGHTS
Progressive system of taxation
Bill of Rights
Means that the tax rate increases as the tax base
increases.
Set of prescriptions setting forth the fundamental civil
and political rights of the individual, and imposing
Double taxation occurs when:
limitations on the powers of government as a means
of securing the enjoyment of those rights.
1. Taxes are laid on the same subject
2. By the same authority
In the absence of governmental interference, the
3. During the same taxing period
liberties guaranteed by the Constitution cannot be
4. For the same purpose
invoked against the State. The Bill of Rights guarantee
NOTE: There is no provision in the Constitution specifically governs the relationship between the individual and
prohibiting double taxation, but it will not be allowed if it the State. Its concern is not the relation between
violates equal protection private individuals. What it does is to declare some
forbidden zones in the private sphere inaccessible to

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any power holder. (People v. Marti, G.R. No. 81561, Requirements of due process in judicial proceedings
Jan. 18, 1991)
Whether in civil or criminal judicial proceedings, due
Bill of Rights cannot be invoked against private process requires that there be:
individuals. In the absence of governmental
interference, the liberties guaranteed by the 1. An impartial and disinterested court clothed by
Constitution cannot be invoked. Put differently, the law with authority to hear and determine the
Bill of Rights is not meant to be invoked against acts of matter before it.
private individuals. (Yrasegui v. PAL, G.R. No. 168081,
Oct. 17, 2008) NOTE: The test of impartiality is whether the judges
intervention tends to prevent the proper presentation
NOTE: However, where the husband invoked his right to of the case or the ascertainment of the truth.
privacy of communication and correspondence against a
private individual, his wife, who had forcibly taken from his 2. Jurisdiction lawfully acquired over the defendant
cabinet and presented as evidence against him documents or the property which is the subject matter of the
and private correspondence, the Supreme Court held these proceeding
papers inadmissible in evidence, upholding the husbands 3. Notice and opportunity to be heard be given to
right to privacy. (Zulueta v. CA, G.R. No. 107383, Feb. 20
the defendant
1996)
4. Judgment to be rendered after lawful hearing,
clearly explained as to the factual and legal bases
DUE PROCESS
(Art. VII, Sec. 14, 1987 Constitution)
Due process means that:
Requisites of administrative due process
1. There shall be a law prescribed in harmony with
1. The right to hearing which includes the right to
the general powers of the legislature;
present ones case and submit evidence to
2. It shall be reasonable in its operation;
support thereof.
3. It shall be enforced according to the regular
2. Tribunal or body or any of its judges must act on
methods of procedure prescribed; and
its own independent consideration of the law and
4. It shall be applicable alike to all citizens of the
facts of the controversy.
State or to all of a class. (People v. Cayat, G.R. No.
3. Tribunal must consider the evidence presented.
L-45987, May 5, 1939)
4. Evidence must be substantial, which means
relevant evidence as a reasonable man might
Kinds of due process
accept as adequate to support a conclusion.
5. The decision must have something to support
1. Procedural Due Process
itself.
2. Substantive Due Process
6. Decision must be based on evidence presented
during hearing or at least contained in the record
RELATIVITY OF DUE PROCESS
and disclosed by the parties.
7. Decision must be rendered in a manner that the
Relativity of due process
parties can know the various issues involved and
the reason for the decision rendered. (Ang Tibay
Arises when the definition of due process has been left
vs CIR, Gr. No. L-46496, February 27, 1940).
to the best judgment of our judiciary considering the
peculiarity and the circumstances of each case. In a
NOTE: When a regulation is being issued under the quasi-
litany of cases that have been decided in this legislative authority of an administrative agency, the
jurisdiction, the common requirement to be able to requirements of notice, hearing and publication must be
conform to due process is fair play, respect for justice observed. (Commissioner of Internal Revenue v. CA, G.R. No.
and respect for the better rights of others. In 119761, Aug. 29, 1996)
accordance with the standards of due process, any
court at any particular time, will be well guided, Administrative v. Judicial due process
instead of being merely confined strictly to a precise
definition which may or may not apply in every case. BASIS ADMINISTRATIVE JUDICIAL
Essence Opportunity to A day in court
explain ones side

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Political and International Law

Means Usually through Submission of 6. Issuance of warrants of distraint and/or levy by


seeking a pleadings and the BIR Commissioner
reconsideration of oral arguments 7. Cancellation of the passport of a person charged
the ruling or the with a crime
action taken, or 8. Suspension of a banks operations by the
appeal to a Monetary Board upon a prima facie finding of
superior authority liquidity problems in such bank
Notice Required when the Both are
and administrative essential: Q: Ordinance 6537 of the City of Manila makes it
Hearing body is exercising 1. Notice unlawful for non- Filipino citizens to be employed or
quasi-judicial 2. Hearing to be engaged in any kind of trade, business or
function (PhilCom- occupation within the City of Manila, without
Sat v. Alcuaz, G.R. securing an employment permit from the Mayor of
No. 84818, Dec. Manila. Lee Min Ho sought to enjoin its enforcement.
18, 1989) Is the said ordinance unconstitutional?

Requisites of student discipline proceedings A: Yes. The ordinance is unconstitutional. While it is


true that the Philippines as a State is not obliged to
Student discipline proceedings may be summary and admit aliens within its territory, once an alien is
cross-examination is not an essential part thereof. admitted, he cannot be deprived of life without due
However, to be valid, the following requirements must process of law. This guarantee includes the means of
be met: livelihood. The ordinance amounts to a denial of the
1. Written notification sent to the student/s basic right of the people of the Philippines to engage
informing the nature and cause of any accusation in the means of livelihood. (Mayor Villegas v. Hiu Ching
against him/her; Tsai Pao Hao, G.R. No. L-29646, Nov. 10, 1978)
2. Opportunity to answer the charges, with the
assistance of a counsel, if so desired; PROCEDURAL AND SUBSTANTIVE DUE PROCESS
3. Presentation of ones evidence and examination
of adverse evidence; Procedural v. Substantive due process
4. Evidence must be duly considered by the
investigating committee or official designated by SUBSTANTIVE PROCEDURAL
the school authorities to hear and decide the case. DUE PROCESS DUE PROCESS
(Guzman v. National University, G.R. No. L-68288, Purpose This serves as a Serves as a
July 11, 1986) restriction on the restriction on
5. The student has the right to be informed of the governments law actions of
evidence against him and rule-making judicial and
6. The penalty imposed must be proportionate to powers. quasi-judicial
the offense. agencies of the
government.
Due process required in deportation proceedings Requisites 1. The interests of 1. Impartial
the public in court or
Although deportation proceedings are not criminal in general, as tribunal
nature, the consequences can be as serious as those of distinguished clothed with
a criminal prosecution. The provisions of the Rules of from those of a judicial
Court for criminal cases are applicable. (Lao Gi alias particular class, power to
Chia, Jr. v. CA, GR. No. 81789, Dec. 29, 1989.) require the hear and
intervention of determine
Instances when hearings are not necessary the state. the matters
2. The means before it.
1. When administrative agencies are exercising their employed are 2. Jurisdiction
quasi-legislative functions reasonably properly
2. Abatement of nuisance per se necessary for acquired
3. Granting by courts of provisional remedies the over the
4. Cases of preventive suspension accomplishment person of
5. Removal of temporary employees in the of the purpose the
government service and not unduly defendant

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oppressive upon and over other social ills, it can instead impose reasonable
individuals. property regulations such as daily inspections of the
which is the establishments for any violation of the conditions of
subject their licenses or permits, it may exercise its authority
matter of to suspend or revoke their licenses for these
the violations; and it may even impose increased license
proceeding. fees. (City of Manila v. Laguio, Jr. GR. No. 1118127,
3. Opportunity April 12, 2005)
to be heard.
4. Judgment PROCEDURAL DUE PROCESS
rendered
upon lawful Procedural due process
hearing and
based on Relates to the mode of procedure which government
evidence agencies must follow in the enforcement and
adduced. application of laws.

SUBSTANTIVE DUE PROCESS The fundamental elements of procedural due process

Substantive due process 1. Notice (to be meaningful, must be as to time and


place)
A guarantee that life, liberty and property shall not be 2. Opportunity to be heard
taken away from anyone without due process of law. 3. Court/tribunal must have jurisdiction
If a law is invoked to take away ones life, liberty or
property, the more specific concern of substantive due Q: Does an extraditee have a right of access to the
process is not to find out whether said law is being evidence against him?
enforced in accordance with procedural formalities
but whether the said law is a proper exercise of A: It depends. During the executive phase of an
legislative power. extradition proceeding, an extraditee does not have
the right of access to evidence in the hands of the
Q: The City of Manila enacted Ordinance 7783, which government. But during the judicial phase he has.
prohibited the establishment or operation of (Secretary v. Judge Lantion, GR. No. 139465, Oct. 17,
business providing certain forms of amusement, 2000)
entertainment, services and facilities where women
are used as tools in entertainment and which tend to Due process does not require a trial-type proceeding.
disturb the community, among the inhabitants and The essence of due process is to be found in the
adversely affect the social and moral welfare of reasonable opportunity to be heard and to submit any
community. Owners and operators concerned were evidence one may have in support of ones defense.
given three months to wind up their operations or to To be heard does not always mean verbal arguments
transfer to any place outside the Ermita-Malate area, in court. One may be heard also through pleadings.
or convert said business to other kinds of business Where opportunity to be heard, either through oral
which are allowed. Does the ordinance violate the arguments or pleadings, is accorded, there is no denial
due process clause? of due process (Zaldivar v. Sandiganbayan, G.R. No. L-
32215, Oct. 17, 1988).
A: Yes. These lawful establishments may only be
regulated. They cannot be prohibited from carrying on NOTE: The meetings in the nature of consultations and
their business. This is a sweeping exercise of police conferences cannot be considered as valid substitutes for
the proper observance of notice and hearing. (Equitable
power, which amounts to interference into personal
Banking Corporation v. NLRC, G.R. No. 102467, June 13,
and private rights which the court will not 1987)
countenance. There is a clear invasion of personal or
property rights, personal in the case of those Q: A complaint was filed against respondent Camille
individuals desiring of owning, operating and Gonzales, then Chief Librarian, Catalog Division, of
patronizing those motels and property in terms of the National Library for dishonesty, grave misconduct
investments made and the salaries to be paid to those and conduct prejudicial to the best interest of the
who are employed therein. If the City of Manila service. The complaint charged respondent Gonzales
desired to put an end to prostitution, fornication, and with the pilferage of some historical documents from

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the vaults of the Filipiniana and Asian Division (FAD) opportunity to respond to the charge, present his
of the National Library which were under her control evidence or rebut the evidence against him.
and supervision as Division Chief and keeping in her 3. Written Notice of Termination Served on the
possession, without legal authority and justification, Employee Indicating that upon due
some forty-one (41) items of historical documents consideration of the circumstances, grounds have
which were missing from the FAD vaults of the been established to justify his termination. In case
National Library. The DECS investigating committee of termination, the foregoing notices shall be
was created to inquire into the charges against served on the employees last address.
Gonzales. Is she entitled to be informed of the
findings and recommendations of the investigating II. If the dismissal is based on authorized causes under
committee? Arts. 283 and 284

A: No. It must be stressed that the disputed The employer must give the employee and the
investigation report is an internal communication Department of Labor and Employment written notices
between the DECS Secretary and the Investigation 30 days prior to the effectivity of his separation.
Committee, and it is not generally intended for the
perusal of respondent or any other person for that HIERARCHY OF RIGHTS
matter, except the DECS Secretary. She is entitled only
to the administrative decision based on substantial There is a hierarchy of constitutional rights. While the
evidence made of record, and a reasonable Bill of Rights also protects property rights, the primacy
opportunity to meet the charges and the evidence of human rights over property rights is
presented against her during the hearings of the recognized. Property and property rights can be lost
investigation committee. (Pefianco v. Moral, GR. No. thru prescription; but human rights are
132248, January 19, 2000) imprescriptible. In the hierarchy of civil liberties, the
rights of free expression and of assembly occupy a
CONSTITUTIONAL AND STATUTORY DUE PROCESS preferred position as they are essential to the
preservation and vitality of our civil and political
Constitutional due process v. Statutory due process institutions (Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc., G.R.
CONSTITUTIONAL STATUTORY DUE No. L-31195, June 5, 1973).
DUE PROCESS PROCESS
Protects the individual While found in the JUDICIAL STANDARDS OF REVIEW
from the government Labor Code and
and assures him of his Implementing Rules, it 1. Deferential review Laws are upheld if they
rights in criminal, civil protects employees rationally further a legitimate governmental
or administrative from being unjustly interest, without courts seriously inquiring into
proceedings terminated without just the substantiality of such interest and examining
cause after notice and the alternative means by which the objectives
hearing (Agabon v. could be achieved
NLRC, G.R. No. 158693, 2. Intermediate review The substantiality of the
November 17, 2004) governmental interest is seriously looked into and
the availability of less restrictive alternatives is
I. For Termination of Employment Based On Just considered.
Causes (Art. 282, Labor Code) 3. Strict scrutiny The focus is on the presence of
compelling, rather than substantial governmental
The following standards of due process shall be interest and on the absence of less restrictive
substantially observed. means for achieving that interest (Separate
opinion of Justice Mendoza in Estrada v.
1. Written Notice served on the Employee Sandiganbayan, G.R. No. 148965, Feb. 26, 2002)
Specifying the grounds of termination and giving
to said employee reasonable opportunity within NOTE: Given the fact that not all rights and freedoms or
which to explain his side. liberties under the Bill of Rights and other values of society
2. Hearing or conference During which the are of similar weight and importance, governmental
regulations that affect them would have to be evaluated
employee concerned, with the assistance of
based on different yardsticks, or standards of review.
counsel, If the employee so desires, is given the

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VOID-FOR-VAGUENESS DOCTRINE identity of rights. It does not forbid discrimination as


to persons and things that are different. What it
Void-for-vagueness doctrine forbids are distinctions based on impermissible criteria
unrelated to a proper legislative purpose, or class or
A law is vague when it lacks comprehensive standards discriminatory legislation, which discriminates against
that men of common intelligence must necessarily some and favors others when both are similarly
guess at its common meaning and differ as to its situated.
application. In such instance, the statute is repugnant
to the Constitution because: Q: EO 1 was issued by President Aquino to investigate
1. It violates due process for failure to accord reported cases of graft and corruption of the Arroyo
persons, especially the parties targeted by it, fair administration. Is such action valid?
notice of what conduct to avoid
2. It leaves law enforcers an unbridled discretion in A: No. It must be borne in mind that the Arroyo
carrying out its provisions. (People v. de la Piedra, administration is but just a member of a class, that is,
G.R. No. 128777, Jan. 24, 2001) a class of past administrations. It is not a class of its
own. Not to include past administrations similarly
The "void-for-vagueness" doctrine does not apply as situated constitutes arbitrariness which the equal
against legislations that are merely couched in protection clause cannot sanction. Such discriminating
imprecise language but which specify a standard differentiation clearly reverberates to label the
though defectively phrased; or to those that are commission as a vehicle for vindictiveness and
apparently ambiguous yet fairly applicable to certain selective retribution. (Biraogo v. The Philippine Truth
types of activities. The first may be "saved" by proper Commission of 2010, G.R. No. 192935, Dec. 7, 2010)
construction, while no challenge may be mounted as
against the second whenever directed against such Q: Are aliens entitled to the protection of equal
activities. protection clause?

The Supreme Court held that the doctrine can only be A: GR: It applies to all persons, both citizens and aliens.
invoked against that species of legislation that is The Constitution places the civil rights of aliens on
utterly vague on its face, i.e., that which cannot be equal footing with those of the citizens.
clarified either by a saving clause or by construction.
(Estrada v. Sandiganbayan, G.R. No. 148560, Nov. 19, XPN: Statutes may validly limit exclusively to citizens
2001) the enjoyment of rights or privileges connected with
public domain, the public works, or the natural
The test in determining whether a criminal statute is resources of the State.
void for uncertainty is whether the language conveys
a sufficiently definite warning as to the proscribed NOTE: The rights and interests of the State in these things
are not simply political but also proprietary in nature and so
conduct when measured by common understanding
citizens may lawfully be given preference over aliens in their
and practice. It must be stressed, however, that the use or enjoyment.
"vagueness" doctrine merely requires a reasonable
degree of certainty for the statute to be upheld - not Aliens do not enjoy the same protection as regards political
absolute precision or mathematical exactitude. (Ibid.) rights. (Inchong v. Hernandez, G.R. No. L-7995, May 31,
1957)
NOTE: The void-for-vagueness doctrine cannot be used to
impugn the validity of a criminal statute using facial REQUISITES FOR VALID CLASSIFICATION
challenge but it may be used to invalidate a criminal statute
as applied to a particular defendant.
The classification must
1. Rest on substantial distinctions
EQUAL PROTECTION OF THE LAWS 2. Be germane to the purpose of the law
3. Not be limited to existing conditions only;
CONCEPT 4. Apply equally to all members of the same class.
(People v. Cayat, GR. No. L-45987, May 5, 1939)
Equal protection of the laws
Q: Rosalie Garcia filed a case against her husband,
All persons or things similarly situated should be Jesus Garcia, for violation of RA 9262. The RTC then
treated alike, both as to rights conferred and issued a Temporary Protection Order. Jesus argues
responsibilities imposed. It guarantees equality, not that RA 9262 violates the guarantee of equal

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protection because the remedies against personal equally apply to all medical practitioners without
violence that it provides may be invoked only by the distinction whether they belong to the public or
wives or women partners but not by the husbands or private sector. After all, the freedom to believe is
male partners even if the latter could possibly be intrinsic in every individual and the protective robe
victims of violence by their women partners. Does RA that guarantees its free exercise is not taken off even
9262 violate the equal the protection clause of the if one acquires employment in the government.
Constitution? (Imbong et. al., v. Ochoa G.R. No. 204819 April 8, 2014)

A: No. RA 9262 rests on substantial distinction. There Q: The New Central Bank Act created two categories
is an unequal power relationship between women and of employees: (1) Bangko Sentral ng Pilipinas officers
men and the fact that women are more likely than who are exempt from the Salary Standardization Law
men to be victims of violence and the widespread (SSL) and (2) rank-and-file employees with salary
gender bias and prejudice against women all make for grade 19 and below who are not exempt from the
real differences justifying the classification under the SSL. Subsequent to the enactment of the Act, the
law. The classification is germane to the purpose of the charters of the Land Bank of the Philippines and all
law. The distinction between men and women is other Government Financial Institutions (GFIs) were
germane to the purpose of RA 9262, which is to amended exempting all their personnel, including the
address violence committed against women and rank-and-file employees, from the coverage of the
children. As spelled out in its Declaration of Policy, the SSL. BSP Employees Association filed a petition to
State recognizes the need to protect the family and its prohibit the BSP from implementing the provision of
members particularly women and children, from the Act for they were illegally discriminated against
violence and threats to their personal safety and when they were placed within the coverage of the
security. Moreover, the application of RA 9262 is not SSL. Was there a violation of the equal protection
limited to the existing conditions when it was clause of the Constitution?
promulgated, but to future conditions as well, for as
long as the safety and security of women and their A: Yes. In the field of equal protection, the guarantee
children are threatened by violence and abuse. that no person shall be denied the equal protection
Furthermore, RA 9262 applies equally to all women of the laws includes the prohibition against enacting
and children who suffer violence and abuse. (Garcia v. laws that allow invidious discrimination, directly or
Drilon G.R. No. 179267 June 25, 2013) indirectly. If a law has the effect of denying the equal
protection of the law, or permits such denial, it is
NOTE: In his separate concurring opinion, Justice Abad said unconstitutional. It is against this standard that the
that 9262 is discriminatory but it does not deny equal disparate treatment of the BSP rank-and-file from the
protection because of the concept of expanded equal
other Government Financial Institutions (GFI) cannot
protection clause enshrined by Sec. 1 Art. XIII and Sec 14 Art
stand judicial scrutiny. For, as regards the exemption
II of the Constitution and because of this, the equal
protection clause can be interpreted not only as a guarantee from the coverage of the SSL, there exists no
of formal equality (if it passes the reasonableness test) but substantial distinction so as to differentiate the BSP
also of substantive equality. The expanded equal protection rank-and-file from the other rank-and-file of other
clause should be understood as meant to reduce social, GFIs. The challenged provision of the New Central
economic, and political inequalities, and remove cultural Bank Act was facially neutral insofar as it did not
inequities by equitably diffusing wealth and political power differentiate between the rank-and-file employees of
for the common good. the BSP and the rank-and-file employees of other GFIs,
and yet its effects, when taken in light of the
Q: Sec. 5.23 of the RH-IRR provides that skilled health exemption of the latter employees from the SSL, were
professional such as provincial, city or municipal discriminatory. (Central Bank Employees Association,
health officers, chiefs of hospital, head nurses, Inc., v. Bangko Sentral ng Pilipinas, G.R. No. 148208,
supervising midwives cannot be considered as Dec. 15, 2004)
conscientious objectors. Is this provision
constitutional? Q: A law was passed, which aggravates estafa if the
accused originated from China or whose any parents
A: No. This is discriminatory and violative of the equal were Chinese. Al Paglinawan, whose mother was
protection clause. The conscientious objection clause Chinese, files a petition before the court arguing that
should be equally protective of the religious belief of the law violates the Equal Protection Clause because
public health officers. There is no perceptible it does not amount to a valid classification. May
distinction why they should not be considered exempt Congress enact a law whose classification is based on
from the mandates of the law. The protection origin, race or parentage?
accorded to other conscientious objectors should

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operation of the last proviso of Sec. 15(c), Art. II of RA


A: No. The legislature may not validly classify the 7653, specifically in relation to the fact that the rank-
citizens of the State on the basis of their origin, race, and-file employees of other GFIs were already
or parentage. But the difference in status between exempted from the operation of the SSL and those
citizens and aliens constitutes a basis for reasonable under BSP were not exempted. Hence, due to the
classification in the exercise of police power. (Demore recent laws enacted by Congress, the substantial
v. Kim, 538 U.S. 510, 2003) distinctions that initially validated the inclusion of the
rank-and-file employees in the SSL, is rendered moot
Rationale for allowing, in exceptional cases, valid and academic. The SC held that the classification must
classification based on citizenship not only be reasonable, but must also apply equally to
all members of the class. The proviso may be fair on
Aliens do not naturally possess the sympathetic its face and impartial in appearance but it cannot be
consideration and regard for customers with whom grossly discriminatory in its operation, so as practically
they come in daily contact, nor the patriotic desire to to make unjust distinctions between persons who are
help bolster the nations economy, except in so far as without differences. Hence, the law which was valid
it enhances their profit, nor the loyalty and allegiance initially becomes void for being a violation of the equal
which the national owes to the land. These limitations protection clause. (Central Bank Employees
on the qualifications of aliens have been shown on Association, Inc. v. Bangko Sentral ng Pilipinas, 446
many occasions and instances, especially in times of SCRA 229)
crisis and emergency. (Ichong v. Hernandez, G.R. No. L-
7995, May 31, 1957) Tests in determining compliance with the equal
protection clause
Intensified means test or the balancing of
interest/equality test 1. Rational Basis Test - Courts will not overturn
government action unless the varying treatment
Test which does not look solely into the governments of different groups or persons is so unrelated to
purpose in classifying persons or things (as done in the achievement of any combination of legitimate
Rational Basis Test) nor into the existence of an purposes that the court can only conclude that the
overriding or compelling government interest so great government's actions were irrational. (Warren v.
to justify limitations of fundamental rights (Strict City of Athens, 411 F.3d 697, 710, 6th Cir. 2005)
Scrutiny Test) but closely scrutinizes the relationship
between the classification and the purpose, based on The guaranty of the equal protection of the laws
spectrum of standards, by gauging the extent to which is not violated by legislation based on reasonable
constitutionally guaranteed rights depend upon the classification. This standard of review is typically
affected individuals interest. quite deferential; legislative classifications are
presumed to be valid largely for the reason that
STANDARDS OF JUDICIAL REVIEW the drawing of lines that create distinctions is
peculiarly a legislative task and unavoidable one.
The Doctrine of Relative Constitutionality or Principle
of Altered Circumstance 2. Intermediate Scrutiny Test Provides that to
withstand constitutional challenge, it must be
A statute may be valid at one time as applied to a set shown that the law or policy being challenged
of facts but it may become void at another time furthers an important government interest in a
because of altered circumstances. way that is substantially related to that interest. It
is generally applied in sex-based classifications,
Example: Sec. 15 (c) of Art. II of RA 7653 exempted the illegitimacy, sexual orientation and free speech.
BSP Officers from the Salary Standardization Law (SSL), (Craig v. Boren, 429 U.S. 190)
but did not exempt rank and file employees. Said law
is held to be constitutional as there were substantial Rational Basis Test v. Strict Scrutiny
distinctions that made real differences between two
classes. Subsequently, certain laws were enacted by RATIONAL BASIS TEST STRICT SCRUTINY
Congress extending the SSL exemption to the rank- Applies to legislative Applies to legislative
and-file employees of other Government Financial classifications in classifications affecting
Institutions (GFIs). The subsequent enactments general, such as those fundamental rights or
constitute significant changes in circumstance that pertaining to economic suspect classes.
considerably alter the reasonability of the continued or social legislation,

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which do not affect ones private activities in such a way as to cause


fundamental rights of humiliation to a persons ordinary sensibilities.
suspect classes; or is not
based on gender or Search warrant v. Warrant of arrest
illegitimacy
Legislative purpose Legislative purpose BASIS SEARCH WARRANT OF
must be legitimate must be compelling WARRANT ARREST
Classification must be Classification must be As to The judge It is not
rationally related to thenecessary and narrowly authority, must necessary that
legislative purpose tailored to achieve the which personally the judge
legislative purpose examines examine in the should
(Central Bank Employees Association Inc. v. BSP, GR. form of personally
No. 148208, December 15, 2004) searching examine the
questions and complainant
3. Strict Scrutiny Test - It is applied when the answers, in and his
challenged statute either: writing and witnesses; the
a. Classifies on the basis of an inherently under oath, judge would
suspect characteristic; the simply
b. Infringes fundamental constitutional rights; complainant personally
that all legal restrictions which curtail the civil and the review the
rights of a single racial group are immediately witnesses he initial
suspect. That is not to say that all such may produce determination
restrictions are unconstitutional. It is to say on facts of the
that courts must subject them to the most personally prosecutor to
rigid scrutiny. The presumption of known to see if it is
constitutionality is reversed; that is, such them. supported by
legislation is assumed to be unconstitutional substantial
until the government demonstrates evidence.
otherwise. (Central Bank Employees The He merely
Association Inc. v. BSP, GR. No. 148208. Basis of determination determines the
December 15, 2004) determination of probable probability, not
cause depends the certainty of
SEARCHES AND SEIZURES to a large guilt of the
extent upon accused and, in
CONCEPT the finding or so doing, he
opinion of the need not
Right against unreasonable searches and seizures judge who conduct a new
conducted the hearing.
Right of the people to be secure in their persons, required
houses, papers, and effects against unreasonable examination
searches and seizures of whatever nature and for any of the
purpose shall be inviolable, and no search warrant or applicant and
warrant of arrest shall issue except upon probable the witnesses.
cause to be determined personally by the judge after
examination under oath or affirmation of the WARRANT REQUIREMENT
complainant and the witnesses he may produce, and
particularly describing the place to be searched and Requisites of a valid search warrant and warrant of
persons or things to be seized. (1987 Constitution, Art. arrest
3, Sec. 2)
1. There should be a search warrant or warrant of
Essence of privacy arrest issued by a judge;
2. Probable cause supported the issuance of such
The right to be left alone. In context, the right to warrant;
privacy means the right to be free from unwarranted 3. Such probable cause had been determined
exploitation of ones person or from intrusion into personally by a judge;

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4. Judge personally examined the complainant and Properties subject to seizure


his witnesses;
5. The warrant must particularly describe the place 1. Property subject of the offense
to be searched and the persons or things to be 2. Stolen or embezzled property and other proceeds
seized. or fruits of the offense
3. Property used or intended to be used as means for
NOTE: General warrant is not allowed. It must be issued the commission of an offense
pursuant to specific offense.
Probable cause
General warrants
Such facts and circumstances antecedent to the
Warrants of broad and general characterization or issuance of a warrant that in themselves are sufficient
sweeping descriptions which will authorize police to induce a cautious man to rely on them and act in
officers to undertake a fishing expedition to seize and pursuance thereof.
confiscate any and all kinds of evidence or articles
relating to an offense. Personal knowledge

Purpose of particularity of description in search 1. The person to be arrested must execute an overt
warrants act indicating that he had just committed, is
actually committing, or is attempting to commit a
1. Readily identify the properties to be seized and crime; and
thus prevent the peace officers from seizing the 2. Such overt act is done in the presence or within
wrong items the view of the arresting officer.
2. Leave peace officers with no discretion regarding
the articles to be seized and thus prevent Searching questions
unreasonable searches and seizures. (Bache and
Co. v. Ruiz, 37 SCRA 823) Examination by the investigating judge of the
complainant and the latters witnesses in writing and
Purpose of particularity of description in warrant of under oath or affirmation, to determine whether there
arrest is a reasonable ground to believe that an offense has
been committed and whether the accused is probably
For warrant of arrest, this requirement is complied guilty thereof so that a warrant of arrest may be issued
with if it contains the name of the person/s to be and he may be held liable for trial.
arrested. If the name of the person to be arrested is
not known, a John Doe warrant may be issued. A John Court which has the primary jurisdiction in issuing
Doe warrant will satisfy the constitutional search warrants
requirement of particularity of description if there is
some descriptio personae which is sufficient to enable The RTC where the criminal case is pending or if no
the officer to identify the accused. information has yet been filed, in RTC in the area/s
contemplated. An RTC not having territorial
Particularity of description for a search warrant is jurisdiction over the place to be searched, however,
complied with when: may issue a search warrant where the filing of such is
necessitated and justified by compelling
1. The description therein is as specific as the considerations of urgency, subject, time, and place.
circumstances will ordinarily allow; or
2. The description expresses a conclusion of fact, not Power of the Commissioner
of law, by which the warrant officer may be
guided in making the search and seizure; or The Commissioner of Immigration is also given, by
3. The things described are limited to those which legislative delegation, the power to issue warrants of
bear direct relation to the offense for which the arrests.
warrant is being issued
NOTE: Sec. 1 (3), Art. III of the Constitution does not require
NOTE: If the articles desired to be seized have any direct judicial intervention in the execution of a final order of
relation to an offense committed, the applicant must deportation issued in accordance with law. The
necessarily have some evidence other than those articles to constitutional limitation contemplates an order of arrest in
prove said offense. The articles subject of search and seizure the exercise of judicial power as a step preliminary or
should come in handy merely to strengthen such evidence. incidental to prosecution or proceedings for a given offense

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91 FACULTY OF CIVIL LAW
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or administrative action, not as a measure indispensable to 8. Exigent and emergency circumstances. (People v.
carry out a valid decision by a competent official, such as a De Gracia, 233 SCRA 716)
legal order of deportation, issued by the Commissioner of
Immigration, in pursuance of a valid legislation. (Morano v.
Plain View Doctrine
Vivo, G.R. No. L-22196, June 30, 1967)

Provides that objects falling in plain view of an officer


Nature of search warrant proceeding
who has a right to be in the position to have that view
are subject to seizure even without a search warrant
Neither a criminal action nor a commencement of a
and may be introduced as evidence. Requisites for the
prosecution. It is solely for the possession of personal
application of the doctrine are the following:
property. (United Laboratories, Inc. v. Isip, G.R. No.
a. The law enforcer in search of the evidence has a
163858, June 28, 2005)
prior justification for an intrusion, or is in a
position from which he can view a particular area;
Q: Can the place to be searched, as set out in the
b. The discovery of the evidence in plain view is
warrant be amplified or modified by the officers
inadvertent;
personal knowledge of the premises or evidence they
adduce in support of their application for the
Stop-and-frisk search
warrant?
Limited protective search of outer clothing for
A: No. Such a change is proscribed by the Constitution
weapons. Probable cause is not required but a genuine
which requires a search warrant to particularly
reason must exist in light of a police officers
describe the place to be searched; otherwise it would
experience and surrounding conditions to warrant the
open the door to abuse of the search process, and
belief that the person detained has weapons
grant to officers executing the search that discretion
concealed. (Malacat v. CA, G.R. No. 123595, Dec. 12,
which the Constitution has precisely removed from
1997)
them.
Checkpoints
WARRANTLESS SEARCHES
Searches conducted in checkpoints are lawful,
Instances of a valid warrantless search
provided the checkpoint complies with the following
requisites:
1. Visual search is made of moving vehicles at
1. The establishment of checkpoint must be
checkpoints
pronounced;
2. Search is an incident to a valid arrest
2. It must be stationary, not roaming; and
3. The search must be limited to visual search and
NOTE: An officer making an arrest may take from the
person:
must not be an intrusive search.
a. Any money or property found upon his person
which was used in the commission of the offense NOTE: Not all searches and seizures are prohibited. Between
b. Was the fruit thereof the inherent right of the State to protect its existence and
c. Which might furnish the prisoner with the means promote public welfare and an individuals right against
of committing violence or escaping warrantless search which is however reasonably conducted,
d. Which might be used as evidence in the trial of the the former should prevail.
case
A checkpoint is akin to a stop-and-frisk situation whose
object is either to determine the identity of suspicious
3. Search of passengers made in airports
individuals or to maintain the status quo momentarily while
4. When things seized are within plain view of a the police officers seek to obtain more information.
searching party (Plain View Doctrine) (Valmonte v. De Villa, GR.83988, Sept. 29, 1989)
5. Stop and frisk (precedes an arrest)
6. When there is a valid express waiver made Q: When may motorists and their vehicles passing
voluntarily and intelligently though checkpoints be stopped and extensively
searched?
NOTE: Waiver is limited only to the arrest and does not
extend to search made as an incident thereto, or to any
A: While, as a rule, motorists and their vehicles passing
subsequent seizure of evidence found in the search.
(People v. Peralta, G.R. 145176, March 30, 2004)
though checkpoints may only be subjected to a routine
inspection, vehicles may be stopped and extensively
7. Customs search searched when there is probable cause which justifies
a reasonable belief among those at the checkpoints

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that either the motorist is a law offender or the chief of the Mamamayan Muna Hindi Mamaya Na
contents of the vehicle are or have been instruments division, Briccio Ricky A. Pollo. Consequently, a
of some offense. (People v. Vinecario, G.R. No. 141137, team with IT background was formed to back up all
Jan. 20, 2004) the files in the computers found in the Mamamayan
Muna Public Assistance and Liaison Division (PALD)
Q: Police officer Jim Santos suspected Alfred Vitug of and Legal Division. Pollo was not present during the
growing marijuana in his apartment. Indoor backing-up and was only informed through text
marijuana growth typically requires high-intensity message. It was then found that most of the files
lamps. Santos used an Agema Thermovision 210 sourced from the computer used by Pollo were
thermal imager to scan the apartment. The scan pleadings and letters connected with pending cases
showed that the roof over the garage and a side wall in CSC and other tribunals. He was found guilty of
of Vitugs house were relatively hot compared to the dishonesty, grave misconduct and conduct
rest of the house and substantially warmer than prejudicial to the best interest of the service and
neighboring house. Santos concluded that Vitug was violation of RA 6713 and penalized him with
using halide lights to grow marijuana. Vitug was then dismissal. Were the searching and copying of Pollos
indicted of one count of manufacturing marijuana. computer files reasonable in its inception and scope?
1. Was the search reasonable?
2. Is the use of thermal imaging constitutional? A: Yes. First, Pollo failed to prove that he had an actual
(subjective) expectation of privacy either in his office
A: or government-issued computer which contained his
1. No. The Government uses a device that is not in personal files. The CSC had implemented a policy that
general public use, to explore details of a private put its employees on notice that they have no
home that would previously have been expectation of privacy in anything they create, store,
unknowable without physical intrusion, the send or receive on the office computers, and that the
surveillance is a Fourth Amendment search, and CSC may monitor the use of the computer resources
is presumptively unreasonable without a warrant. using both automated and human means. This implies
2. No. Such an approach would be wrong in principle that on-the-spot inspections may be done to ensure
because, in the sanctity of the home, all details are that the computer resources were used only for such
intimate details. (Kyllo v. United States 533 U.S. legitimate business purposes. Second, the search of
27) petitioners computer files was conducted in
connection with investigation of work-related
Q: Jamie was a lady frisker whose duty is to frisk misconduct prompted by an anonymous letter-
departing passengers, employees, and crew and complaint addressed to Chairperson David regarding
check for weapons, bombs, prohibited drugs, anomalies in the CSC-ROIV where the head of
contraband goods, and explosives. When she frisked the Mamamayan Muna Hindi Mamaya Na division is
Rozanne, a boarding passenger, she felt something supposedly lawyering for individuals with pending
hard on Rozannes abdominal area which was later cases in the CSC. A search by a government employer
found to be 3 packs of shabu. Can Rozanne Dela Cruz of an employees office is justified at inception when
invoke a violation of the search and seizure clause? there are reasonable grounds for suspecting that it will
turn up evidence that the employee is guilty of work-
A: No. Persons may lose the protection of the search related misconduct. (Pollo v. David G.R. No. 181881
and seizure clause by exposure of their persons or October 18, 2011)
property to the public in a manner reflecting a lack of
subjective expectation of privacy, which expectation Q: A search was conducted on Mar. 3, 1986 during
society is prepared to recognize as reasonable. Such which, the Philippines has no Constitution. The
recognition is implicit in airport security procedures. Constabulary raiding team searched the house of
With increased concern over airplane hijacking and Elizabeth Dimaano by virtue of a search warrant and
terrorism has come increased security at the nations thereafter seized some items not included in the
airport. (People v. Leila Johnson, G.R. No.138881, Dec. 18, warrant. Dimaano questioned the search for being
2000) violative of the Constitution. Can she invoke her right
against unreasonable searches and seizures during
Q: Civil Service Commission (CSC) Chairperson Karina the interregnum?
Constantino-David received an anonymous letter
alleging that an employee of CSC acts as a lawyer of A: Yes. The Bill of Rights under the 1973 Constitution
an accused government employee who has pending was not operative during the interregnum. Be that as
case in CSC. Said employees were referred to as the it may, under Art. 17(1) of the International Covenant

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on Civil and Political Rights, the revolutionary the premises under the immediate control of the
government had the duty to insure that no one shall accused. The accused may not successfully invoke the
be subjected to arbitrary or unlawful interference with right against a warrantless search, even as regards the
his privacy, family, home or correspondence. Art. 17 plastic container with dried marijuana leaves found on
(2) provides that no one shall be arbitrarily deprived of the table in her store. (People v. Salazar, G.R. No.
his property. Although the signatories to the 98060, Jan. 27, 1997)
Declaration did not intend it as a legally binding
document, being only a declaration, the Court has Q: Is Sec. 19 of the Cybercrime Law, which provides
interpreted the Declaration as part of the generally that, when a computer data is prima facie found to
accepted principles of international law and binding on be in violation of the provisions of this Act, the DOJ
the state. The revolutionary government did not shall issue an order to restrict or block access to such
repudiate the Covenant or the Declaration during the computer data constitutional?
interregnum. It was also obligated under international
law to observe the rights of individuals under the A: No. The Department of Justice order cannot be a
Declaration. (Republic of the Philippines v. substitute for judicial search warrant. The
Sandiganbayan G.R. No. 104768 July 21, 2003) Government, in effect, seizes and places the computer
data under its control and disposition without a
Q: While sleeping in his room, Rex was arrested by warrant. Not only does Sect. 19 preclude any judicial
virtue of a warrant of arrest. Thereafter, some police intervention, but it also disregards jurisprudential
officers ransacked the locked cabinet inside the room guidelines established to determine the validity of
where they found a firearm and ammunition. Are the restrictions on speech for the content of the computer
warrantless search and seizure of the firearm and data can also constitute speech. Sec. 19 merely
ammunition justified as an incident to a lawful requires that the data to be blocked be found prima
arrest? facie in violation of any provision of the cybercrime
law. It does not take into consideration any of the
A: No. The scope of the warrantless search is not three tests: the dangerous tendency doctrine, the
without limitations. A valid arrest allows the seizure of balancing of interest test and the clear and present
evidence or dangerous weapons either on the person danger rule. Therefore, Sec. 19 is unconstitutional.
of the one arrested or within the area of his immediate (Disini v. Secretary of Justice G.R. No. 203335 February
control. The purpose of the exception is to protect the 11, 2014)
arresting officer from being harmed by the person
arrested, who might be armed with a concealed Q: Sgt. Victorino Noceja and Sgt. Alex de Castro, while
weapon, and to prevent the latter from destroying on a routine patrol in Pagsanjan, Laguna, spotted a
evidence within reach. In this case, search was made passenger jeep unusually covered with "kakawati"
in the locked cabinet which cannot be said to have leaves. Suspecting that the jeep was loaded with
been within Valeroso's immediate control. Thus, the smuggled goods, the two police officers flagged down
search exceeded the bounds of what may be the vehicle driven by Rudy. The police officers then
considered as an incident to a lawful arrest. (Valeroso checked the cargo and they discovered bundles of
v. Court of Appeals, G.R. No. 164815, Sept. 3, 2009) 3.08 mm aluminum/galvanized conductor wires
exclusively owned by National Power Corporation
Q: A buy-bust operation was conducted in Jogies (NPC). Police officers took Rudy into custody and
store. Police Officer CA Mindaro posed as a buyer and seized the conductor wires. Was Rudys right against
bought marijuana from Jogie. After the exchange of unreasonable searches and seizures violated when
marked money and marijuana, Mindaro arrested the police officers searched his vehicle and seized the
Jogie without a warrant. The other police officer wires found therein without a search warrant?
searched the store and seized a plastic container
containing six marijuana stocks. Thereafter, Jogie A: Yes. When a vehicle is stopped and subjected to an
was charged with selling marijuana. Is the extensive search, such a warrantless search would be
warrantless seizure of marijuana legal? constitutionally permissible only if the officers
conducting the search have reasonable or probable
A: Yes. The search being an incident to a lawful arrest, cause to believe, before the search, that either the
it needed no warrant for its validity. The accused motorist is a law-offender or they will find the
having been caught in flagrante delicto, the arresting instrumentality or evidence pertaining to a crime in
officers were duty bound to apprehend her the vehicle to be searched. However, the fact that the
immediately. The warrantless search and seizure, as vehicle looked suspicious simply because it is not
an incident to a lawful arrest, may extend to include common for such to be covered with kakawati leaves

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does not constitute "probable cause" as would justify legality of the warrant issued therefore, or from assailing the
the conduct of a search without a warrant. regularity or questioning the absence of a preliminary
Furthermore, the police authorities did not claim to investigation of the charge against him, provided that he
raises them before entering his plea. (Sec. 26, Rule 114, Rules
have received any confidential report or tipped
of Court)
information that Rudy was carrying stolen cable wires
in his vehicle which could otherwise have sustained
Arrest with warrant v. Warrantless arrest as to the
their suspicion. It cannot likewise be said that the
element of time
cable wires found in Rudy's vehicle were in plain view,
making its warrantless seizure valid. The cable wires
Arrest with Warrant Warrantless Arrest
were not exposed to sight because they were placed
There is an appreciable There must be a large
in sacks and covered with leaves. The articles were
lapse of time between measure of immediacy
neither transparent nor immediately apparent to the
the arrest and the between the time the
police authorities. (Caballes v. Court of Appeals, G. R.
commission of the offense is committed
No. 136292, January 15, 2002)
crime. and the time of the
arrest.
WARRANTLESS ARRESTS
Q: SPO2 Luigi Morales and PO2 Yael Padilla received
Instances of a valid warrantless arrest
information that Neil Banzon was about to deliver
drugs at the Thunder Bird Resort in Angeles City.
1. In flagrante delicto The person to be arrested
When Neil Banzon arrived at the resort, he was
has either committed, is actually committing, or
carrying a sealed Zest-O juice box. The police men
is about to commit an offense in the presence of
hurriedly accosted him and introduced themselves as
the arresting officer.
police officers. When SPO2 Morales peeked into the
2. Hot Pursuit When an offense has in fact just
contents of the Zest-O box, he saw that it contained
been committed and the arresting officer has
a crystalline substance. He instantly confiscated the
probable cause to believe, based on personal
said box. Neil was then found guilty of illegal
knowledge of the facts and circumstances
possession of shabu. Was the search lawful?
indicating, that the person to be arrested has
committed it
A: No. Neither the in flagrante delicto nor the stop and
3. Escaped Prisoner or Detainee When the person
to be arrested is a prisoner who has escaped from frisk principle is applicable to justify the warrantless
a penal establishment or place where he is arrest and consequent search and seizure made by the
serving final judgment or temporarily confined police operatives on accused-appellant. In in flagrante
while his case is pending, or has escaped while delicto arrests, the accused is apprehended at the very
being transferred from one confinement to moment he is committing or attempting to commit or
another. (Sec. 5, Rule 113, Rules of Court) has just committed an offense in the presence of the
4. Waiver When the right is waived by the person arresting officer. Emphasis should be laid on the fact
arrested, provided he knew of such right and that the law requires that the search be incidental to a
knowingly decided not to invoke it. lawful arrest. Therefore, it is beyond cavil that a lawful
5. Continuing offenses A peace officer can validly arrest must precede the search of a person and his
conduct a warrantless arrest in crimes of belongings. Accordingly, for this exception to apply
rebellion, subversion, conspiracy or proposal to two elements must concur: (1) the person to be
commit such crimes, and crimes or offenses arrested must execute an overt act indicating that he
committed in furtherance thereof, or in has just committed, is actually committing, or is
connection therewith constitute direct assaults attempting to commit a crime; and (2) such overt act
against the State, which are in the nature of is done in the presence or within the view of the
continuing crimes. Since rebellion is a continuing arresting officer. Neil did not act in a suspicious
offense, a rebel may be arrested at any time, with manner. For all intents and purposes, there was no
or without a warrant, as he is deemed to be in the overt manifestation that he has just committed, is
act of committing the offense at any time of the actually committing, or is attempting to commit a
day or night. (Umil v. Ramos, 187 SCRA 311) crime. (People v. Sy Chua, G.R. Nos. 136066-
67. February 4, 2003)
NOTE: The waiver is limited to invalid arrest and does not
extend to illegal search. Q: Pat. Ben Reyes was instructed by P/Lt. Vic Laurel
to monitor the activities of Edwin Alcaraz because of
An application for or admission to bail shall not bar the information that the latter
accused from challenging the validity of his arrest or the was selling marijuana. Pat. Reyes positioned himself

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under a house which was adjacent to a ADMINISTRATIVE ARREST


chapel. Thereafter, Pat. Reyes saw Edwin enter the
chapel, taking something which turned out later to be There is an administrative arrest when there is an
marijuana from the compartment of a cart found arrest as an incident to deportation proceedings.
inside the chapel, and then return to the street where
he handed the same to Jack Acebes. Police officers The following aliens shall be arrested upon the
then pursued Jack. Upon seeing the police, he threw warrant of the Commissioner of Immigration or of any
something to the ground which turned out to be a tea other officer designated by him for the purpose and
bag of marijuana. When confronted, Jack admitted deported upon the warrant of the Commissioner of
that he bought the same from Edwin. Thus, Edwin Immigration after a determination by the Board of
was convicted for violating Dangerous Drugs Act. Was Commissioners of the existence of the ground for
the warrantless arrest lawful? Was the evidence deportation as charges against the alien:
resulting from such arrest admissible?
1. Any alien who enters the Philippines after the
A: Yes. When a police officer sees the offense, effective date of this Act by means of false and
although at a distance, or hears the disturbances misleading statements or without inspection and
created thereby, and proceeds at once to the scene admission by the immigration authorities at a
thereof, he may effect an arrest without a warrant. designated port of entry or at any place other than
There is nothing unlawful about the arrest considering at a designated port of entry; [As amended by
its compliance with the requirements of a warrantless Republic Act No. 503, Sec. 13]
arrest. Ergo, the fruits obtained from such lawful arrest 2. Any alien who enters the Philippines after the
are admissible in evidence. (People v. Sucro, G.R. No. effective date of this Act, who was not lawfully
93239 March 18, 1991) admissible at the time of entry;
3. Any alien who, after the effective date of this Act,
Q: At about 7:00 a.m. of April 3, 2003 Gibo Cayetano, is convicted in the Philippines and sentences for a
together with Juan Villar and Bong Escudero, started term of one year or more for a crime involving
drinking liquor and smoking marijuana in the house moral turpitude committed within five years after
of Gibo. They started talking about their intention to his entry to the Philippines, or who, at any time
kill Simeon Marcos. The three carried out their plan after such entry, is so convicted and sentenced
at about 2:00 p.m. of the same day by mauling more than once;
Simeon. At about 4:00 p.m. of the same day, 4. Any alien who is convicted and sentenced for a
Patrolman Jaime Santos received a report about a violation of the law governing prohibited drugs;
mauling incident. Right away, Patrolman Santos [As amended by Republic Act No. 503, Sec. 13]
proceeded to Paseo de Blas where the mauling 5. Any alien who practices prostitution or is an
incident took place. Patrolman Santos frisked Gibo inmate of a house of prostitution or is connected
and found a coin purse in his pocket which contained with the management of a house of prostitution,
dried leaves wrapped in cigarette foil. The dried or is a procurer;
leaves were found to be marijuana. He was 6. Any alien who becomes a public charge within five
held guilty for violating the Dangerous Drugs years after entry from causes not affirmatively
Act. Was the search lawful? shown to have arisen subsequent to entry;
7. Any alien who remains in the Philippines in
A: Yes. The search conducted on Gibo's person was violation of any limitation or condition under
lawful because it was made as an incident to a valid which he was admitted as a non-immigrant;
arrest. This is in accordance with Sec. 12, Rule 126 of 8. Any alien who believes in, advises, advocates or
the Revised Rules of Court which provides: "Sec. 12. teaches the overthrow by force and violence of
Search incident to lawful arrest. A person lawfully the Government of the Philippines, or of
arrested may be searched for dangerous weapons or constituted law and authority or who disbelieves
anything which may be used as proof of the in or is opposed to organized government, or who
commission of an offense, without a search warrant." advises, advocates or teaches the assault or
The frisk and search of appellant's person upon his assassination of public officials because of their
arrest was a permissible precautionary measure of office, or who advises, advocates, or teaches the
arresting officers to protect themselves, for the person unlawful destruction of property, or who is a
who is about to be arrested may be armed and might member of or affiliated with any organization
attack them unless he is first disarmed. (People v. entertaining, advocating or teaching such
Gerente, G.R. No. 95847-48. March 10, 1993) doctrines, or who in any manner whatsoever

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lends assistance, financial or otherwise, to the unbridled discretion to schools and employers to
dissemination of such doctrines; determine the manner of drug testing as well as it can
9. Any alien who commits any of the acts described be used to harass a student or an employee deemed
in Sec.s forty-five of this Act, independent of undesirable. Is the provision constitutional?
criminal action which may be brought against him:
Provided, that in the case of alien who, for any A: Yes. A law requiring mandatory drug testing for
reason, is convicted and sentenced to suffer both students of secondary and tertiary schools is not
imprisonment and deportation, said alien shall unconstitutional. It is within the prerogative of
first serve the entire period of his imprisonment educational institutions to require, as a condition for
before he is actually deported: Provided, admission, compliance with reasonable school rules
however, that the imprisonment may be waived and regulations and policies. To be sure, the right to
by the Commissioner of Immigration with the enroll is not absolute; it is subject to fair, reasonable,
consent of the Department Head, and upon and equitable requirements. In sum:
payment by the alien concerned of such amount
as the Commissioner may fix and approved by the 1. Schools and their administrators stand in loco
Department Head; [Paragraph added pursuant to parentis with respect to their students;
Republic Act No. 144, Sec. 3] 2. Minor students have contextually fewer rights
10. Any alien who, at any time within five years after than an adult, and are subject to the custody and
entry, shall have been convicted of violating the supervision of their parents, guardians, and
provisions of the Philippine Commonwealth Act schools;
Numbered Six hundred and fifty-three, otherwise 3. Schools acting in loco parentis, have a duty to
known as the Philippine Alien Registration Act of safeguard the health and well-being of their
1941**(now Alien Registration Act of 1950, students and may adopt such measures as may
Republic Act No. 562, as amended) or who, at any reasonably be necessary to discharge such duty;
time after entry, shall have been convicted more and
than once of violating the provisions of the same 4. Schools have the right to impose conditions on
Act; [Added pursuant to Republic Act No. 503, Sec. applicants for admission that are fair, just and
13] non-discriminatory. (SJS v. DDB, G.R. No. 157870,
11. Any alien who engages in profiteering, hoarding, Nov. 3, 2008)
or black-marketing, independent of any criminal
action which may be brought against him; [Added A law requiring mandatory drug testing for officers and
pursuant to Republic Act No. 503, Sec. 13] employees of public and private offices is not
12. Any alien who is convicted of any offense unconstitutional. As the warrantless clause of Sec. 2,
penalized under Commonwealth Act Numbered Art. III of the Constitution is couched and as has been
Four hundred and seventy-three, otherwise held, reasonableness is the touchstone of the
known as the Revised Naturalization Laws of the validity of a government search or intrusion. And
Philippines, or any law relating to acquisition of whether a search at issue hews to the reasonableness
Philippine citizenship; [Added pursuant to standard is judged by the balancing of the
Republic Act No. 503, Sec. 13] government-mandated intrusion on the individuals
13. Any alien who defrauds his creditor by absconding privacy interest against the promotion of some
or alienating properties to prevent them from compelling state interest. In the criminal context,
being attached or executed. [Added pursuant to reasonableness requires showing probable cause to be
Republic Act No. 503, Sec. 13] (Philippine personally determined by a judge. Given that the drug-
Immigration Act of 1940) testing policy for employeesand students for that
matterunder RA 9165 is in the nature of
DRUG, ALCOHOL, AND BLOOD TESTS administrative search needing what was referred to in
Veronia case as swift and informal procedures, the
Q: Congress enacted the Comprehensive Dangerous probable cause standard is not required or even
Drugs Act of 2002 requiring the mandatory drug practicable. (SJS v. DDB and PDEA, G.R. No. 157870,
testing of candidates for public office, students of Nov. 3, 2008)
secondary and tertiary schools, officers and
employees of public and private offices, and persons Q: R.A. 9165 requires mandatory drug testing for
charged before the prosecutors office with certain persons charged before the prosecutors office with
offenses. Social Justice Society questions this criminal offenses punishable with 6 years and 1 day
provision for being unconstitutional for it constitutes imprisonment. Petitioner SJS questions the
undue delegation of legislative power when it give constitutionality of the law on the ground that it

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violates the rights to privacy and against self- of certain rights is necessary to accommodate
incrimination of an accused. Decide. institutional needs and objectives of prison facilities,
primarily internal security. As long as the letters are
A: The Court finds the situation entirely different in the not confidential communication between the detainee
case of persons charged before the public prosecutors and his lawyer the detention officials may read them.
office with criminal offenses punishable with But if the letters are marked confidential
imprisonment. The operative concepts in the communication between detainee and lawyer the
mandatory drug testing are randomness and officer must not read them but only inspect them in
suspicionless. In the case of persons charged with a the presence of detainees. A law is not needed before
crime before the prosecutors office, a mandatory an executive officer may intrude into the rights of
drug testing can never be random or suspicionless. The privacy of a detainee or a prisoner. By the very fact of
ideas of randomness and being suspicionless are their detention, they have diminished expectations of
antithetical to their being made defendants in a privacy rights. (Alejano v. Cabuay, G.R. No. 160792, Aug.
criminal complaint. They are not randomly picked; 25, 2005)
neither are they beyond suspicion. When persons
suspected of committing a crime are charged, they are Q: Does an officer charged with a crime in connection
singled out and are impleaded against their will. The with his office have a reasonable expectation of
persons thus charged, by the bare fact of being hauled privacy in his office and computer files?
before the prosecutors office and peaceably
submitting themselves to drug testing, if that be the A: No. The Supreme Court cited the US case of
case, do not necessarily consent to the procedure, let OConnor v. Ortega, which ruled that government
alone waive their right to privacy. To impose agencies, in their capacity as employers, rather than
mandatory drug testing on the accused is a blatant law enforcers, could validly conduct search and seizure
attempt to harness a medical test as a tool for criminal in the governmental workplace without meeting the
prosecution, contrary to the stated objectives of R.A. probable cause or warrant requirement for search
9165. Drug testing in this case would violate a persons and seizure. Moreover, he failed to prove that he had
right to privacy guaranteed under Sec. 2, Art. III of the an actual (subjective) expectation of privacy either in
Constitution. Worse still, the accused persons are his office or government-issued computer which
veritably forced to incriminate themselves. (SJS v. contained his personal files. (Pollo v. David G.R. No.
DDB, G.R. No. 157870, Nov. 3, 2008) 181881 October 18, 2011)

RIGHT TO PRIVACY IN COMMUNICATION AND Q: Under the Cybercrime Law, cybersex is the willful
CORRESPONDENCE engagement, maintenance, control, or operation,
directly or indirectly, of any lascivious exhibition of
PRIVATE AND PUBLIC COMMUNICATIONS sexual organs or sexual activity, with the aid of a
computer system, for favor or consideration.
GR: Right to privacy of communication and Petitioners expressed their fear that private
correspondence is inviolable. communications of sexual character between
consenting adults, which are not regarded as crimes
XPNs: under the penal code, would now be regarded as
1. By lawful order of the court; crimes when done for favor in cyberspace. Is the
2. Public safety or public order as prescribed by law argument of the petitioners valid?

NOTE: Any evidence in violation of this right or the right A: No. The deliberations of the Bicameral Committee
against unreasonable searches and seizures shall be of Congress on Sec.4(c)(i) of the law show a lack of
inadmissible for any purpose in any proceedings. intent to penalize a private showing between and
among two private persons although that may be a
INTRUSION, WHEN ALLOWED form of obscenity to some. The understanding of those
who drew up the cybercrime law is that the element
Q: Is a regulation mandating the opening of mail or of engaging in a business is necessary to constitute
correspondence of detainees violative of the the crime of illegal cybersex. The Act actually seeks to
constitutional right to privacy? punish cyber prostitution, white slave trade, and
pornography for favor and consideration. This
A: No. There is no longer a distinction between an includes interactive prostitution and pornography,
inmate and a detainee with regard to the reasonable e.g., by webcam. (Disini v. Secretary of Justice G.R. No.
expectation of privacy inside his cell. The curtailment 203335 February 11, 2014)

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Anti-wiretapping act (RA 4200) commit any of the prohibited acts under R.A. 4200. (Ramirez
v. CA, G.R. No. 93833 Sept. 28, 1995)
This law prohibits any person, not being authorized by
all the parties to any private communication or spoken Q: Respondent DOJ Secretary Raul Gonzales warned
word, to tap any wire or cable, or by using any other that reporters who had copies of the compact disc
device or arrangement, to secretly overhear, (CD) and those broadcasting or publishing its
intercept, or record such communication or spoken contents could be held liable under the Anti-
word by using a device commonly known as a Wiretapping Act. Secretary Gonzales also ordered
dictaphone or dictagraph or dictaphone or walkie- the NBI to go after media organizations found to
talkie or tape recorder, or however otherwise have caused the spread, the playing and the printing
described. of the contents of a tape of an alleged wiretapped
conversation involving the President about fixing
It also prohibits any person, be he a participant or not votes in 2004 national elections. Can the DOJ
in the act or acts penalized in the next preceding Secretary use the Anti-Wiretapping act as a
sentence, to knowingly possess any tape record, wire regulatory measure to prohibit the media from
record, disc record, or any other such record, or copies publishing the contents of the CD?
thereof, of any communication or spoken word
secured either before or after the effective date of this A: No. The Court ruled that not every violation of a law
Act in the manner prohibited by this law; or to replay will justify straitjacketing the exercise of freedom of
the same for any other person or persons; or to speech and of the press. There are laws of great
communicate the contents thereof, either verbally or significance but their violation, by itself and without
in writing, or to furnish transcriptions thereof, more, cannot support suppression of free speech and
whether complete or partial, to any other person. free press. In fine, violation of law is just a factor, a vital
Provided, that the use of such record or any copies one to be sure, which should be
thereof as evidence in any civil, criminal investigation weighed in adjudging whether to restrain freedom of
or trial of offenses mentioned in sect. 3 hereof, shall speech and of the press. The totality of the injurious
not be covered by this prohibition. effects of the violation to private and public interest
must be calibrated in light of the preferred status
Under Sec. 3 of RA 4200, a peace officer, who is accorded by the Constitution and by related
authorized by a written order of the Court, may international covenants protecting freedom of speech
execute any of the acts declared to be unlawful in Sec. and of the press. By all means, violations of law
1 and Sec. 2 of the said law in cases involving the should be vigorously prosecuted by the State for they
crimes of: breed their own evil consequence. But to repeat, the
1. Treason need to prevent their violation cannot per se trump
2. Espionage the exercise of free speech and free press, a preferred
3. Provoking war and disloyalty in case of war right whose breach can lead to greater evils. (Francisco
4. Piracy and mutiny in the high seas Chavez v. Raul M. Gonzales, G.R. No. 168338, Feb. 15,
5. Rebellion (conspiracy and proposal and inciting 2008)
to commit included)
6. Sedition (conspiracy, inciting included) Q: Are letters of a husbands paramour kept inside
7. Kidnapping the husbands drawer, presented by the wife in the
8. Violations of CA 616 (punishing espionage and proceeding for legal separation, admissible in
other offenses against national security) evidence?

The use of telephone extension is not a violation of RA A: No, because marriage does not divest one of his/her
4200 (Anti-WireTapping Law The use of a telephone right to privacy of communication. (Zulueta v. CA,G.R.
extension to overhear a private conversation is neither No. 107383, Feb. 20, 1996)
among those devices, nor considered as a similar
device, prohibited under the law. (Gaanan v. IAC, G.R. Exclusionary rule
No.L-69809 Oct. 16, 1986)
Any evidence obtained in violation of the Constitution
NOTE: Anti-Wiretapping Act only protects letters, messages, shall be inadmissible for any purpose in any
telephone calls, telegrams and the like. proceeding. However, in the absence of governmental
interference, the protection against unreasonable
The law does not distinguish between a party to the private search and seizure cannot be extended to acts
communication or a third person. Hence, both a party and a committed by private individuals. (People v. Marti,
third person could be held liable under R.A. 4200 if they
G.R. No. 78109. Jan. 18, 1991)

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WRIT OF HABEAS DATA Scope of protected freedom of expression under the


Constitution
Writ of habeas data
1. Freedom of speech
A remedy available to any person whose right to 2. Freedom of the press
privacy in life, liberty or security is violated or 3. Right of assembly and to petition the government
threatened by an unlawful act or omission of a public for redress of grievances
official or employee, or of a private individual or entity 4. Right to form associations or societies not
engaged in the gathering, collecting or storing of data contrary to law
or information regarding the person, family, home and 5. Freedom of religion
correspondence of the aggrieved party. (Sec. 1, The 6. Right to access to information on matters of public
Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, concern.
Jan. 22, 2008)
Protected speech includes every form of expression,
The reliefs that may be obtained in the petition for whether oral, written, tape or disc recorded. It
issuance of writ of habeas data may include the includes motion pictures as well as what is known as
updating, rectification, suppression or destruction of symbolic speech such as the wearing of an armband as
the database or information or files kept by the a symbol of protest. Peaceful picketing has also been
respondent and in case of threats of the unlawful act, included within the meaning of speech.
the relief may include a prayer for an order enjoining
the act complained of. A general prayer for other Limitations of freedom of expression
reliefs that are just and equitable under the
circumstances is also allowed. It should be exercised within the bounds of laws
enacted for the promotion of social interests and the
A writ of habeas data may not be issued to protect protection of other equally important individual rights
purely property and commercial concerns. It bears such as:
reiteration that like the writ of amparo, habeas data 1. Laws against obscenity, libel and slander (contrary
was conceived as a response, given the lack of to public policy)
effective and available remedies, to address the 2. Right to privacy of an individual
extraordinary rise in the number of killings and 3. Right of state/government to be protected from
enforced disappearances. Its intent is to address seditious attacks
violations of or threats to the rights to life, liberty or 4. Legislative immunities
security as a remedy independently from those 5. Fraudulent matters
provided under prevailing rules. Writs of amparo and 6. Advocacy of imminent lawless conducts
habeas data will not issue to protect purely property 7. Fighting words
or commercial concerns nor when the grounds 8. Guarantee implies only the right to reach a willing
invoked in support of the petitions therefore are vague audience but not the right to compel others to
or doubtful. Employment constitutes a property right listen, see or read
under the context of the due process clause of the
Constitution. It is evident that respondents Rationale behind the provision on freedom of
reservations on the real reasons for her transfer-a expression
legitimate concern respecting the terms and
conditions of ones employment- are what prompted Consistent with its intended role in society, it means
her to adopt the extraordinary remedy of habeas data. that the people are kept from any undue interference
(Manila Electric Company v. Lim, GR. No. 184769, Oct. from the government in their thoughts and words.
5, 2010) The guarantee basically flows from the philosophy that
the authorities do not necessarily know what is best
FREEDOM OF EXPRESSION for the people.

Freedom of expression Four aspects of freedom of speech and press

No law shall be passed abridging the freedom of 1. Freedom from censorship or prior restraint see
speech, of expression, or of the press, or of the right of discussion on prior restraint.
the people peaceably to assemble and petition the 2. Freedom from subsequent punishment to
government for redress of grievances. publication see discussion on subsequent
punishment.

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3. Freedom of access to information regarding resulting from radio and television coverage will
matters of public interest Official papers, reports inevitably result in prejudice. (Re: Request for Radio-
and documents, unless held confidential and TV Coverage of the Trial in the Sandiganbayan of the
secret by competent authority in the public Plunder Cases Against the Former President Joseph E.
interest, are public records. As such, they are open Estrada, A.M. No. 01-4-03-SC, June 29, 2001)
and subject to regulation, to the scrutiny of the
inquiring reporter or editor. Information obtained In a constitutional sense, public trial is not
confidentially may be printed without synonymous with publicized trial. The right to a public
specification of the source; and that source is trial belongs to the accused. The requirement of a
closed to official inquiry, unless the revelation is public trial is satisfied by the opportunity of the
deemed by the courts, or by a House or members of the public and the press to attend the trial
committee of the Congress, to be vital to the and to report what they have observed. The accuseds
security of the State. right to a public trial should not be confused with the
4. Freedom of circulation Refers to the freedom of the press and the publics right to know as
unhampered distribution of newspapers and a justification for allowing the live broadcast of the
other media among customers and among the trial. The tendency of a high profile case like the
general public. It may be interfered with in several subject case to generate undue publicity with its
ways. The most important of these is censorship. concomitant undesirable effects weighs heavily
Other ways include requiring a permit or license against broadcasting the trial. Moreover, the fact that
for the distribution of media and penalizing the accused has legal remedies after the fact is of no
dissemination of copies made without it, and moment, since the damage has been done and may be
requiring the payment of a fee or tax, imposed irreparable. It must be pointed out that the
either on the publisher or on the distributor, with fundamental right to due process of the accused
the intent to limit or restrict circulation. These cannot be afforded after the fact but must be
modes of interfering with the freedom to circulate protected at the first instance. (In Re: Petition for
have been constantly stricken down as Radio and Television Coverage of the Multiple Murder
unreasonable limitations on press freedom. Cases against Maguindanao Governor Zaldy
(Chavez v. Gonzales G.R. No. 168338, Feb. 15, Ampatuan, et al., A.M. No. 10-11-5-SC, October 23,
2008) 2012)

NOTE: There need not be total suppression; even restriction Q: Members of the faculty of the University of the
of circulation constitutes censorship. Philippus College of Law published a statement on
the allegations of plagiarism and misrepresentation
Q: The Kapisanan ng mga Brodkaster ng Pilipinas relative to a certain Courts decision. Essentially, the
(KBP) sent a letter requesting the Supreme Court to faculty calls for the resignation of Justice Mario
allow live media coverage of the anticipated trial of Pascual in the face of allegations of plagiarism in his
the plunder and other criminal cases filed against work. Does this act of the faculty members squarely
former President Joseph E. Estrada before the fall under the freedom of speech and expression?
Sandiganbayan in order to assure the public of full
transparency in the proceedings. Should they be A: No. The publication of a statement by the faculty of
allowed to cover the trial grounding their petition on the University of the Philippus College regarding the
the constitutional right of the public to information allegations of plagiarism and misrepresentation in the
and freedom of the press? Supreme Court was totally unnecessary, uncalled for
and a rash act of misplaced vigilance. While most agree
A: No. Live TV coverage may be prohibited since the that the right to criticize the judiciary is critical to
right of the accused must prevail over the right of the maintaining a free and democratic society, there is
public to information and freedom of the press. Its also a general consensus that healthy criticism only
presence is a form of mental - if not physical- goes so far. Many types of criticism leveled at the
harassment, resembling a police line-up or the third judiciary cross the line to become harmful and
degree. The inevitable close-up of his gestures and irresponsible attacks. These potentially devastating
expressions during the ordeal of his trial might well attacks and unjust criticism can threaten the
transgress his personal sensibilities, his dignity, and his independence of the judiciary. (Re: Letter of the UP Law
ability to concentrate on the proceedings before him. Faculty entitled Restoring Integrity: A Statement by the
A defendant on trial for a specific crime is entitled to Faculty of the University of the Philippines College of Law
his day in court, not in a stadium, or a city or on the Allegations of Plagiarism and Misrepresentation in
nationwide arena. The heightened public clamor the Supreme Court., A.M. No. 10-10-4-SC, Oct. 19, 2010)

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PRIOR RESTRAINT (CENSORSHIP) online defamation constitutes similar means for


committing libel. Furthermore, the United Nations
Prior restraint Human Rights Committee did not actually enjoin the
Philippines to decriminalize libel. It simply suggested
Means official government restrictions on the press or that defamation laws be crafted with care to ensure
other forms of expression in advance of actual that they do not stifle freedom of expression. Free
publication or dissemination. (Bernas, The 1987 speech is not absolute. It is subject to certain
Philippine Constitution A Comprehensive Reviewer, restrictions, as may be necessary and as may be
2006) provided by law. (Disini v. Secretary of Justice G.R. No.
203335 February 11, 2014)
NOTE: Freedom from prior restraint is largely freedom from
government censorship of publications, whatever the form NOTE: In her dissenting and concurring opinion, Chief
of censorship, and regardless of whether it is wielded by the Justice Maria Lourdes Sereno posits that the ponencia
executive, legislative or judicial branch of the government. correctly holds that libel is not a constitutionally protected
Thus, it precludes governmental acts that required approval conduct. It is also correct in holding that, generally, penal
of a proposal to publish; licensing or permits as prerequisites statutes cannot be invalidated on the ground that they
to publication including the payment of license taxes for the produce a chilling effect, since by their very nature, they
privilege to publish; and even injunctions against are intended to have an in terrorem effect (benign chilling
publication. Even the closure of the business and printing effect) to prevent a repetition of the offense and to deter
offices of certain newspapers, resulting in the criminality. The chilling effect is therefore equated with
discontinuation of their printing and publication, are and justified by the intended in terrorem effect of penal
deemed as previous restraint or censorship. Any law or provisions.
official that requires some form of permission to be had
before publication can be made, commits an infringement of Thus, when Congress enacts a penal law affecting free
the constitutional right, and remedy can be had at the speech and accordingly imposes a penalty that is so
courts. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) discouraging that it effectively creates an invidious chilling
effect, thus impeding the exercise of speech and expression
Exceptions to the prohibition of prior restraint altogether, then there is a ground to invalidate the law. In
this instance, it will be seen that the penalty provided has
1. Pornography gone beyond the in terrorem effect needed to deter crimes
2. False or Misleading Advertisement and has thus reached the point of encroachment upon a
preferred constitutional right.
3. Advocacy of Imminent Lawless Actions
4. Danger to National Security (Soriano v. MTRCB,
Two kinds of chilling effect
G.R. No. 165636, April 29, 2009)
Benign Chilling Effect Invidious Chilling Effect
Near v. Minnesota, 283 US 697 (1931) adds the
following to the enumeration: May be caused by penal May be caused by penal
1. When a nation is at war, many things that might statutes which are laws affecting free
be said in time of peace are such a hindrance to its intended to have an in speech and accordingly
effort that their utterance will not be endured so terrorem effect to imposes a penalty that
long as men fight and that no court could regard prevent a repetition of is so discouraging thus
them as protected by any constitutional right. the offense and to deter impeding the exercise
2. The primary requirements of decency may be criminality. The chilling of speech and
enforced against obscene publications. effect is equated with expression altogether.
3. The security of community life may be protected and justified by the
against incitements to acts of violence and the intended in terrorem
overthrow by force of orderly government. effect of penal
provisions.
Q: Are the provisions of the Revised Penal Code on
NOTE: Allowed NOTE: Not allowed
Libel and the provision of the Cyber Crime Law on
cyber libel constitutional?
Q: Nestor posted on Facebook that Juan Dela Cruz, a
A: Yes. Libel is not a constitutionally protected speech
married person, has an illicit affair with Maria. Dexter
and that the government has an obligation to protect
liked this post and commented: Yes! This is true!
private individuals from defamation. Indeed, cyber
What an immoral thing to do?! This post was
libel is actually not a new crime since Art. 353, in
likewise liked by 23 people. Juan Dela Cruz filed a
relation to Art. 355 of the penal code, already punishes
case for online libel against Nestor, Dexter and 23
it. In effect, Sec. 4(c)(4) above merely affirms that

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other people who liked the post using as his basis Sec. falsehood relating to his official conduct unless he
5 of the Cybercrime law which penalizes any person proves that the statement was made with actual malice.
who willfully abets or aids in the commission of any 4. Rights of students to free speech in school premises not
absolute The school cannot suspend or expel a
of the offenses enumerated in the said law. Is this
student solely on the basis of the articles he has written
provision of the law constitutional?
except when such article materially disrupts class work
or involves substantial disorder or invasion of rights of
A: No. The terms aiding or abetting constitute broad others.(Miriam College Foundation v. CA, GR 127930,
sweep that generates chilling effect on those who Dec. 15, 2000)
express themselves through cyberspace posts,
comments, and other messages. Its vagueness raises Doctrine of Fair Comment
apprehension on the part of internet users because of
its obvious chilling effect on the freedom of While as a general rule, every discreditable public
expression, especially since the crime of aiding or imputation is false because every man is presumed
abetting ensnares all the actors in the cyberspace front innocent, thus every false imputation is deemed
in a fuzzy way. The terms aiding or abetting malicious, as an exception, when the discreditable
constitute broad sweep that generates chilling effect imputation is directed against a public person in his
on those who express themselves through cyberspace public capacity, such is not necessarily actionable. For
posts, comments, and other messages. Hence, Sec. 5 it to be actionable, it must be shown that either there
of the cybercrime law that punishes aiding or is a false allegation of fact or comment based on a false
abetting libel on the cyberspace is a nullity. But supposition. However, if the comment is an expression
Nestor, the author, is still liable for the defamatory of opinion, based on established facts; it is immaterial
words he posted. (Disini v. Secretary of Justice G.R. No. whether the opinion happens to be mistaken, as long
203335 February 11, 2014) as it might reasonably be inferred from facts. (Borjal v.
CA, G.R. No. 126466, Jan. 14, 1999)
FREEDOM FROM SUBSEQUENT PUNISHMENT
Q: A national daily newspaper carried an exclusive
Freedom from subsequent punishment report stating that Senator Ryan Christopher received
a house and lot located at YY Street, Makati, in
A limitation on the power of the State from imposing consideration for his vote to cut cigarette taxes by
a punishment after publication or dissemination. 50%. The Senator sued the newspaper, its reporter,
Without this assurance, the individual would hesitate editor and publisher for libel, claiming the report was
to speak for fear that he might be held to account for completely false and malicious. According to the
his speech, or that he might be provoking the Senator, there is no YY Street in Makati, and the tax
vengeance of the officials he may have criticized. cut was only 20%. He claimed one million pesos in
(Antonio Nachura, Outline Reviewer in Political Law, p. damages. The defendants denied "actual malice,"
152) claiming privileged communication and absolute
freedom of the press to report on public officials and
This second basic prohibition of the free speech and matters of public concern. If there was any error, the
press clause prohibits systems of subsequent newspaper said it would publish the correction
punishment which have the effect of unduly curtailing promptly. Are the defendants liable for damages?
expression.
A: No. Since Senator Ryan Christopher is a public
NOTE: Freedom from subsequent punishment is not person and the questioned imputation is directed
absolute; it may be properly regulated in the interest of the against him in his public capacity, in this case actual
public. The State may validly impose penal and/or malice means the statement was made with
administrative sanctions such as in the following:
knowledge that it was false or with reckless disregard
1. Libel A public and malicious imputation of a crime,
vice or defect, real or imaginary or any act omission,
of whether it was false or not. Since there is no proof
status tending to cause dishonor, discredit or contempt that the report was published with knowledge that it
of a natural or judicial person, or blacken the memory is false or with reckless disregard of whether it was
of one who is dead (Art 353, Revised Penal Code) false or not, the defendants are not liable for damages.
2. Obscenity In Pita v Court of Appeals, the Supreme (Borjal v. CA, G.R. No. 126466, Jan. 14, 1999)
Court declared that the determination of what is
obscene is a judicial function. Q: Is the Borjal doctrine applicable in a case where
3. Criticism of Official Conduct In New York Times v. the allegations against a public official were false and
Sullivan, 376 US 254 (1964), the constitutional
that the journalist did not exert effort to verify the
guarantee requires a federal rule that prohibits a public
official from recovering damages for a defamatory
information before publishing his articles?

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A: No. Borjal may have expanded the protection of No presumption of There is presumption of
qualified privileged communication beyond the unconstitutionality unconstitutionality
instances given in Art. 354 of the RPC, but this
expansion does not cover such a case. The expansion NOTE: The burden of proof
speaks of "fair commentaries on matters of public to overcome the
interest." While Borjal places fair commentaries within presumption of
the scope of qualified privileged communication, the unconstitutionality is with
the government.
mere fact that the subject of the article is a public
Test to be used: Test to be used: Clear and
figure or a matter of public interest does not
Intermediate Present Danger
automatically exclude the author from liability. His
Approach
articles cannot even be considered as qualified
privileged communication under the second
paragraph of Art. 354 of the RPC, which exempts from Intermediate Approach Test
the presumption of malice a fair and true report. Good
faith is lacking. (Tulfo v. People,G.R. No. 161032, Sept. Used when the speech restraints take the form of a
16, 2008) content-neutral regulation, only a substantial
governmental interest is required for its validity.
Q: Erika Ong penned several articles in Malaya Because regulations of this type are not designed to
newspaper regarding alleged bribery incidents in the suppress any particular message, they are not subject
Supreme Court and characterizing the justices as to the strictest form of judicial scrutiny but an
thieves and a basket of rotten apples. The Court intermediate approachsomewhere between the
En Banc required Erika to explain why no sanction mere rationality that is required of any other law and
should be imposed on her for indirect contempt of the compelling interest standard applied to content-
court. Did the order of the Court violate freedom of based restrictions. The test is called intermediate
the press? because the Court will not merely rubberstamp the
validity of a law but also require that the restrictions
A: No. While freedom of speech, of expression and of be narrowly-tailored to promote an important or
the press are at the core of civil liberties and have to significant governmental interest that is unrelated to
be protected at all costs for the sake of democracy, the suppression of expression. (Chavez v. Gonzales,
these freedoms are not absolute. For, if left unbridled, G.R. No. 168338, Feb. 15, 2008)
they have the tendency to be abused and can translate
NOTE: A law is narrowly-tailored if it is for the advancement
to licenses, which could lead to disorder and anarchy. of states interest, if it does not restrict a significant amount
Erika crossed the line, as hers are baseless scurrilous of speech that does not implicate the government interest
attacks which demonstrate nothing but an abuse of and if it is the least restrictive alternative available to serve
press freedom. They leave no redeeming value in such interest. (Eugene Volokh, Freedom of Speech,
furtherance of freedom of the press. They do nothing Permissible Tailoring and Transcending Strict Scrutiny, 144 U.
but damage the integrity of the High Court, undermine Pennsylvania L. Rev. 2417, 1997)
the faith and confidence of the people in the judiciary,
and threaten the doctrine of judicial independence. (In Clear and Present Danger Test
Re: Allegations Contained in the Columns of Mr.
Amado P. Macasaet, A.M. No. 07-09-13-SC, Aug. 8, The government must also show the type of harm the
2008) speech sought to be restrained would bring about
especially the gravity and the imminence of the
CONTENT-BASED & threatened harm otherwise the prior restraint will be
CONTENT-NEUTRAL REGULATION invalid. Prior restraint on speech based on its content
cannot be justified by hypothetical fears, but only by
CONTENT-NEUTRAL CONTENT-BASED showing a substantive and imminent evil that has
REGULATION RESTRAINT taken the life of a reality already on ground. As
Merely concerned The restriction is based on formulated, the question in every case is whether the
with the incidents of the subject matter of the words used are used in such circumstances and are
the speech, or one that utterance or speech. The of such a nature as to create a clear and present
merely controls the cast of the restriction danger that they will bring about the substantive
time, place or manner, determines the test by evils that Congress has a right to prevent. It is a
and under well defined which the challenged act question of proximity and degree. The regulation
standards. is assailed with. which restricts the speech content must also serve an
important or substantial government interest, which is

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unrelated to the suppression of free expression. FACIAL CHALLENGES AND


(Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) OVERBREADTH DOCTRINE

Q: The NTC issued a warning that that the continuous Facial Challenge
airing or broadcast by radio and television stations of
the alleged wiretapped conversation involving the A challenge to a statute in court, in which the plaintiff
President allegedly fixing votes in the 2004 national alleges that the legislation is always, and under all
elections is a continuing violation of the Anti- circumstances, unconstitutional, and therefore void.
Wiretapping Law and shall be just cause for the
suspension, revocation and/or cancellation of the NOTE: Facial challenge to a statute is allowed only when it
licenses or authorizations issued to the said operates in the area of freedom of expression. Invalidation
companies. Were the rights to freedom of expression of the statute on its face, rather than as applied, is permitted
and of the press, and the right of the people to in the interest of preventing a chilling effect on freedom of
information on matters of public concern violated by expression. (Separate opinion of Justice Mendoza in Cruz v.
such warning of the NTC? Secretary of Environment and Natural Resources, GR.
135385, Dec. 6, 2000)
A: Yes. Said rights were violated applying the clear and
present danger test. The challenged acts need to be Distinguished from an as-applied challenge which
subjected to the clear and present danger rule, as they considers only extant facts affecting real litigants,
are content-based restrictions. The acts of NTC and the a facial invalidation is an examination of the entire law,
DOJ Sec. focused solely on but one objecta specific pinpointing its flaws and defects, not only on the basis
content fixed as these were on the alleged taped of its actual operation to the parties, but also on the
conversations between the President and a COMELEC assumption or prediction that its very existence may
official. Undoubtedly these did not merely provide cause others not before the court to refrain from
regulations as to the time, place or manner of the constitutionally protected speech or activities.
dissemination of speech or expression. (Southern Hemisphere Engagement Network, Inc. v.
Anti-Terrorism Council, G.R. No. 178552, Oct. 5, 2010)
A governmental action that restricts freedom of
speech or of the press based on content is given the Q: Is facial challenge to a penal statute allowed?
strictest scrutiny, with the government
having the burden of overcoming the presumed A: No. Facial challenges are not allowed in penal
unconstitutionality by the clear and present danger statutes. Criminal statutes have general in
rule. It appears that the great evil which government terrorem effect resulting from their very existence,
wants to prevent is the airing of a tape recording in and, if facial challenge is allowed for this reason
alleged violation of the anti-wiretapping law. alone, the State may well be prevented from enacting
laws against socially harmful conduct. In the area of
The evidence falls short of satisfying the clear and criminal law, the law cannot take chances as in the
present danger test. Firstly, the various statements of area of free speech. (KMU v. Ermita, G.R. No. 17855,
the Press Secretary obfuscate the identity of the voices Oct. 5, 2010)
in the tape recording. Secondly, the integrity of the
NOTE: A litigant cannot thus successfully mount a facial
taped conversation is also suspect. The Press Secretary
challenge against a criminal statute on either vagueness or
showed to the public two versions, one supposed to overbreadth grounds.
be a complete version and the other, an altered
version. Thirdly, the evidence on the whos and the The rule established in our jurisdiction is, only statutes on
hows of the wiretapping act is ambivalent, especially free speech, religious freedom, and other fundamental
considering the tapes different versions. The identity rights may be facially challenged.(Southern Hemisphere
of the wire-tappers, the manner of its commission and Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.
other related and relevant proofs are some of the 178552, Oct. 5, 2010)
invisibles of this case. Fourthly, given all these
unsettled facets of the tape, it is even arguable Overbreadth Doctrine
whether its airing would violate the anti-wiretapping
law. There is no showing that the feared violation of Permits a party to challenge the validity of a statute
the anti-wiretapping law clearly endangers the even though as applied to him it is not unconstitutional
national security of the State. (Chavez v. Gonzales, G.R. but it might be if applied to others not before the Court
No. 168338, Feb. 15, 2008) whose activities are constitutionally protected.
(Separate opinion of Justice Mendoza in Cruz v.
Secretary of Environment and Natural Resources, GR.

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105 FACULTY OF CIVIL LAW
Political and International Law

135385, Dec. 6, 2000) It is a type of facial challenge government restriction would then be allowed. It
that prohibits the government from achieving its is not necessary though that evil is actually
purpose by means that sweep unnecessarily broadly, created for mere tendency towards the evil is
reaching constitutionally protected as well as enough.
unprotected activity.
Emphasis: Nature of the circumstances under
Note: The application of the overbreadth doctrine is limited which the speech is uttered, though the speech
to a facial kind of challenge. per se may not be dangerous.
The most distinctive feature of the overbreadth technique is
3. Grave-but-Improbable Danger test
that it marks an exception to some of the usual rules of
constitutional litigation. Ordinarily, a particular litigant
claims that a statute is unconstitutional as applied to him or Question: Whether the gravity of the evil,
her; if the litigant prevails, the courts carve away the discounted by its improbability, justifies such an
unconstitutional aspects of the law by invalidating its invasion of free speech as is necessary to avoid the
improper applications on a case to case basis. Moreover, danger. (Dennis v. US, 341 US 494, 1951)
challengers to a law are not permitted to raise the rights of
the third parties and can only assert their own interests. In 4. Balancing of interest test
overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court
Question: Which of the two conflicting interests
invalidates the entire statute on its face, not merely as
(not involving national security crimes) demands
applied for so that the overbroad law becomes
unenforceable until a properly authorized court construes it the greater protection under the particular
more narrowly. The factor that motivates court to depart circumstances presented:
from the normal adjudicatory rules is the concern with the a. When particular conduct is regulated in the
chilling, deterrent effect of the overbroad statute on third interest of public order
parties not courageous enough to bring suit.The Court b. And the regulation results in an indirect,
assumes that an overbroad laws very existence may cause conditional and partial abridgement of
others not before the court to refrain from constitutionally speech. (Gonzales v. COMELEC, G.R. No. L-
protected speech or expression. An overbreadth ruling is
27833, Apr. 18, 1969)
designed to remove that deterrent effect on the speech of
those third parties. (Southern Hemisphere Engagement
Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, Oct. 5. OBrien test
5, 2010)
Question: in situations when speech and non-
TESTS speech elements are combined in the same
course of conduct, whether there is a sufficiently
Tests for valid governmental interference to freedom important governmental interest that warrants
of expression regulating the non-speech element, incidentally
limiting the speech element.
1. Clear and Present Danger test
NOTE: A government regulation is valid if:
a. It is within the constitutional power of the
Question: Whether the words are used in such
government;
circumstances and are of such a nature as to b. In furtherance of an important or substantial
create a clear and present danger that they will governmental interest;
bring about the substantive evils that Congress c. Governmental interest is unrelated to the
has a right to prevent. It is a question of proximity suppression of free expression; and
and degree. (Schenck v. US, 249 US 47, 1919) d. The incidental restriction on the freedom is
essential to the furtherance of that interest.
Emphasis: The danger created must not only be (US v. OBrien, 391 US 367, 1968; SWS v.
clear and present but also traceable to the ideas COMELEC, G.R. 147571, May 5, 2001)
expressed. (Gonzales v. COMELEC, G.R. No. L-
27833, April 18, 1969) 6. Direct Incitement test

2. Dangerous Tendency test Question: What words did a person utter and
what is the likely result of such utterance?
Question: Whether the speech restrained has a
rational tendency to create the danger Emphasis: The very words uttered, and their
apprehended, be it far or remote, thus ability to directly incite or produce imminent
lawless action.

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NOTE: It criticizes the clear and present danger test for being A: No. To compel print media companies to donate
too dependent on the specific circumstances of each case. "Comelec-space, is tantamount to "taking" of private
personal property for public use or purposes. The
STATE REGULATION OF DIFFERENT taking of private property for public use is, of course,
TYPES OF MASS MEDIA authorized by the Constitution, but not without
payment of "just compensation. And apparently the
Q: Can an offensive and obscene language uttered in necessity of paying compensation for "Comelec space"
a prime-time television broadcast which was easily is precisely what is sought to be avoided by the
accessible to the children be reasonably curtailed and Commission. As such, it does not constitute a valid
validly restrained? exercise of the power of eminent domain.

A: Yes. In Soriano v. MTRCB, G.R. No. 165636, Apr. 29, Also, the resolution is a blunt and heavy instrument
2009, the Court, applying the balancing of interest that purports, without a showing of existence of a
doctrine, ruled that the governments interest to national emergency or other imperious public
protect and promote the interests and welfare of the necessity, indiscriminately and without regard to the
children adequately buttresses the reasonable individual business condition of particular newspapers
curtailment and valid restraint on petitioners prayer or magazines located in differing parts of the country,
to continue as program host of Ang Dating to take private property of newspaper or magazine
Daan during the suspension period. Sorianos publishers. No attempt was made to demonstrate that
offensive and obscene language uttered on prime- a real and palpable or urgent necessity for the taking
time television broadcast, without doubt, was easily of print space confronted the Comelec and that the
accessible to the children. His statements could have resolution was itself the only reasonable and
exposed children to a language that is unacceptable in calibrated response to such necessity available to the
everyday use. As such, the welfare of children and the Comelec. Thus, it does not constitute a valid exercise
States mandate to protect and care for them, of the police power of the State. (Philippine Press
as parens patriae, constitute a substantial and Institute, Inc. v. COMELEC, G.R. No. L-119694, May 22,
compelling government interest in regulating 1995)
Sorianos utterances in TV broadcast.
Q: Petitioners challenge the validity of Sec. 92, BP 881
NOTE: In his dissenting opinion, Justice Carpio cited Action which provides: COMELEC Time The Commission
for Children's Television v. FCC which establishes the safe shall procure radio and television time to be known
harbor period to be from 10:00 in the evening to 6:00 in the
as the COMELEC Time which shall be allocated
morning, when the number of children in the audience is at
a minimum. In effect, between the hours of 10:00 p.m. and
equally and impartially among the candidates within
6:00 a.m., the broadcasting of material considered indecent the area of coverage of all radio and television
is permitted. Between the hours of 6:00 a.m. and 10:00 p.m., stations. For this purpose, the franchise of all radio
the broadcast of any indecent material may be sanctioned. broadcasting and television stations is hereby
amended so as to provide radio or television time,
Q: COMELEC promulgated Resolution 2772 stating free of charge, during the period of campaign. Is Sec.
that the Commission shall have free print space in at 92 valid?
least one newspaper as COMELEC Space. This ad
space will be used by candidates for their campaign A: Yes. All broadcasting, whether by radio or by
or platforms of government, and for the television stations, is licensed by the government.
Commissions dissemination of vital information. Airwave frequencies have to be allocated as there are
Moreover, COMELEC released a letter-directive more individuals who want to broadcast than there
ordering the different newspapers to comply with the are frequencies to assign. A franchise is thus a privilege
said resolution. The petitioner contended that subject, among other things, to amended by Congress
COMELEC violated the prohibition imposed by the in accordance with the constitutional provision that
Constitution against the taking of properties without "any such franchise or right granted . . . shall be subject
just compensation. On the other hand, COMELEC to amendment, alteration or repeal by the Congress
asserts their directive is not mandatory and when the common good so requires."
compelling and that they only asked for a donation.
Moreover, they aver that even if the order is In truth, radio and television broadcasting companies,
mandatory, it would still be valid through the use of which are given franchises, do not own the airwaves
police power. Is COMELECs action constitutional? and frequencies through which they transmit
broadcast signals and images. They are merely given
the temporary privilege of using them. Since a

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franchise is a mere privilege, the exercise of the no substitute to breastmilk; and b) that there be a
privilege may reasonably be burdened with the statement that powdered infant formula may contain
performance by the grantee of some form of public pathogenic microorganisms and must be prepared and
service. used appropriately. Sec. 16 of the RIRR prohibits all
health and nutrition claims for products within the
In the granting of the privilege to operate broadcast scope of the Milk Code, such as claims of increased
stations and thereafter supervising radio and emotional and intellectual abilities of the infant and
television stations, the state spends considerable young child. These provisions of the Milk Code
public funds in licensing and supervising such stations. expressly forbid information that would imply or
It would be strange if it cannot even require the create a belief that there is any milk product
licensees to render public service by giving free air equivalent to breastmilk or which is humanized or
time. (Telecommunications and Broadcast Attorneys maternalized, as such information would be
of the Philippines, INC. v. COMELEC, G.R. No. 132922, inconsistent with the superiority of breastfeeding.
April 21, 1998) Thus, the RIRR is a reasonable means of enforcing the
Milk Code and deterring circumvention of the
COMMERCIAL SPEECH protection and promotion of breastfeeding as
embodied in the Milk Code. (Pharmaceutical and
Commercial speech Health Care Association of the Philippines v. Duque,
G.R. No. 173034, October 9, 2007)
Communication which no more than proposes a
commercial transaction. Advertisements of goods or PRIVATE V. GOVERNMENT SPEECH
of services is an example of this.
GOVERNMENT SPEECH PRIVATE SPEECH
To enjoy protection, commercial speech: The government may The right of a person to
1. Must not be false or misleading (Friedman v. advance its own speech freely speak ones mind
Rogers, 440 US 1, 1979) without requiring is a highly valued
2. Should not propose an illegal transaction. viewpoint neutrality freedom in a republican
(Pittsburgh Press Co. v Human Relations when the government and democratic society.
Commissions, 413 US 376, 1973) itself is the speaker. (Ashcroft v. Free Speech
(doctrine was implied Coalition, 535 U.S. 234
NOTE: However, even truthful and lawful commercial in Wooley v. Maynard in (2002))
speech maybe regulated if (1) government has a substantial 1971)
interest to protect; (2) the regulation directly advances that
interest; and (3) it is not more than extensive than is
necessary to protect that interest. (Central Hudson Gas & HECKLERS VETO
Electric Corp v. Public Service Commission of NY, 447 US 557
(1980)) Hecklers Veto
Q: EO 51 (Milk Code) was issued by President Chris Occurs when an acting party's right to freedom of
Bautista on October 28, 1986 by virtue of the speech is curtailed or restricted by the government in
legislative powers granted to the President under the order to prevent a reacting party's behavior. The term
Freedom Constitution. On May 15, 2006, the DOH Hecklers Veto was coined by University of Chicago
issued Revised Implementing Rules and Regulations professor of law Harry Kalven.
(RIRR) which was to take effect on July 7, 2006. The
Association of Healthcare Workers claimed that the It may be in the guise of a permit requirement in the
Milk Code only regulates and does not impose holding of rallies, parades, or demonstrations
unreasonable requirements for advertising and conditioned on the payment of a fee computed on the
promotion while RIRR imposes an absolute ban on basis of the cost needed to keep order in view of the
such activities for breastmilk substitutes intended for expected opposition by persons holding contrary
infants from 0-24 months old or beyond, and forbids views. (Gorospe, 2006, citing Forsyth County v.
the use of health and nutritional claims. Were the Nationalist Movement, 315 U.S. 568, 1942)
labeling requirements and advertising regulations
under the RIRR valid?

A: Yes. Sec. 13 on total effect and Sec. 26 of Rule VII


of the RIRR contain some labeling requirements,
specifically: a) that there be a statement that there is

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FREEDOM OF ASSEMBLY AND PETITION Tests applicable to the exercise of the right to
assembly
Right of the people to assemble and petition the
government for redress of grievances 1. Purpose Test Looks into the purpose of the
assembly regardless of its backers. (De Jonge v.
The right to assembly is not subject to prior restraint. Oregon, 299 US 353, 365, 1937)
It may not be conditioned upon the prior issuance of a 2. Auspices Test Looks into the
permit or authorization from government authorities. backers/supporters.
The right, however, must be exercised in such a way as
will not prejudice the public welfare. NOTE: The ruling in Evangelista v. Earnshaw (G.R. No. 36453,
Sept. 28, 1932) has not yet been abrogated where the Mayor
Permit system revoked permits he already granted because the group, the
Communist Party of the Philippines, was found by the fiscal
to be an illegal association. When the intention and effect of
Before one can use a public place, one must first the act is seditious, the constitutional guaranties of freedom
obtain prior permit from the proper authorities. Such of speech and press and of assembly and petition must yield
is valid if: to punitive measures designed to maintain the prestige of
1. It is concerned only with the time, place, and constituted authority, the supremacy of the Constitution and
manner of assembly; and the laws, and the existence of the State.
2. It does not vest on the licensing authority
unfettered discretion in choosing the groups Q: Exec. Sec. Pat Alampay issued a policy via press
which could use the public place and discriminate release. The policy pertains to the strict
others. implementation of BP 880 also known as the Public
Assembly Act of 1985. It provides for the strict
NOTE: Permits are not required for designated freedom enforcement of no permit, no rally policy, and
parks. arrest of all persons violating the laws of the land,
and dispersal of unlawful mass actions. Is BP Blg. 880
Rules on assembly in public places unconstitutional on the ground that it violates the
constitutionality guaranteed right to peaceful
1. The applicant should inform the licensing assembly?
authority of the date, the public place where and
the time when the assembly will take place. A: No. BP 880 is constitutional. It does not curtail or
2. The application should be filed ahead of time to unduly restrict the freedom. It merely regulates the
enable the public official concerned to apprise use of public places as to the time, place and manner
whether there are valid objections to the grant of of assemblies. Far from being insidious, maximum
the permit or to its grant, but in another public tolerance is for the benefit of the rallyists, not the
place. The grant or refusal should be based on the government. The delegation to the mayors of the
application of the Clear and Present Danger Test. power to issue rally permits is valid because it is
3. If the public authority is of the view that there is subject to the constitutionally sound clear and
an imminent and grave danger of a substantive present danger standard. (Bayan Karapatan v.
evil, the applicants must be heard on the matter. Eduardo Ermita, et al., G.R. No. 169838, April 25, 2006)
4. The decision of the public authority, whether
favorable or adverse, must be transmitted to the Q: Is the policy of Calibrated Preemptive Response
applicants at the earliest opportunity so that they insofar as it would purport to differ from or be in lieu
may, if they so desire, have recourse to the proper of maximum tolerance, void on its face?
judicial authority. (Reyes v. Bagatsing, G.R. No. L-
65366, Nov. 9, 1983) A: Yes. Calibrated Preemptive Response Policy is
illegal. In view of the maximum tolerance policy
Assembly in private properties mandated by BP Blg. 880, CPR serves no valid purpose
if it means the same thing as maximum tolerance, and
Only the consent of the owner of the property or is illegal if it means something else. Accordingly, what
person entitled to possession thereof is required. is to be followed is and should be that mandated by
law itself, namely, maximum tolerance, which
specifically means the highest degree of restraint that
the military, police and other peace keeping
authorities shall observe during a public assembly or in

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dispersal of the same. (Bayan Karapatan v. Eduardo inviolability of the human conscience which is also
Ermita, et al., G.R. No. 169838, April 25, 2006) protected by the free exercise clause. As a social value,
protected by the non-establishment clause, it means
Q. Mayor Reuben Soriano modified the application that the growth of a religious sect as a social force
for permit to rally of IBP outright without informing must come from the voluntary support of its members
the applicants. Is it valid? because of the belief that both spiritual and secular
society will benefit if religions are allowed to compete
A: No. In modifying the permit outright, respondent on their own intrinsic merit without benefit of official
gravely abused his discretion when he did not patronage. Such voluntarism cannot be achieved
immediately inform the IBP who should have been unless the political process is insulated from religion
heard first on the matter of perceived imminent and and unless religion is insulated from politics. Non
grave danger of a substantive evil that may warrant establishment assures such insulation and thereby
the changing of the venue. Respondent failed to prevents interfaith dissention. (Bernas, S.J., 2011)
indicate how he had arrived at modifying the terms of
the permit against the standard of clear and present ACTS PERMITTED AND
danger which is an indispensable condition to such NOT PERMITTED BY THE CLAUSE
modification. (IBP v. Atienza GR No. 175241 February
24, 2010) The non-establishment clause states that the State
cannot
FREEDOM OF RELIGION
1. Set up a church
Religion 2. Pass laws which aid one or all religions or prefer
one over another
A profession of faith to an active power that binds and 3. Influence a person to go to or stay away from
elevates man to his creator. (Aglipay v. Ruiz, GR. No. L- church against his will
45459, Mar. 13, 1937) 4. Force him to profess a belief or disbelief in any
religion
Guarantees contained in Sec. 5 Art. III of the 1987
Constitution Constitutional provisions which express the non-
establishment clause
1. Non-establishment clause;
2. Free exercise clause, or the freedom of religious 1. Art. VI, Sec. 29 No public money/property given to
profession and worship. religious sect or minister/religious personnel
(except for those assigned to army, penal
NON-ESTABLISHMENT CLAUSE institution, government orphanage and
leprosarium)
Non-establishment clause 2. Art. II, Sec. 6 Separation of church and state is
inviolable
Art. III, Sec. 5 No law shall be made respecting an 3. Art. IX(C), Sec. 2 (5) No religious sects can be
establishment of religion, or prohibiting the free registered as political parties
exercise thereof.
Constitutionally created exceptions to the non-
NOTE: The non- establishment clause means that the state establishment clause
should adopt a position of neutrality when it comes to
religious matters. (Political Law Reviewer, Suarez ,p. 252 1. Art. 6, Sec.29 (prohibition on appropriation of
citing CJ Fernando, 2011) public money or property for the use, benefit or
support of any religion)
Purpose of the non-establishment clause 2. Art. 6, Sec. 28 (3) (exemption from taxation of
properties actually, directly and exclusively used
There is no unanimous interpretation of this clause as for religious purposes
a political principle, but there seems to be a 3. Art. 14, Sect. 3 (3) (optional religious instruction in
substantial agreement that this protects voluntarism public elementary and high schools)
and insulation of the political process from interfaith 4. Art. 14, Sec. 4 (2) (citizenship requirement of
dissension. ownership of educational institutions, except
those established by religious groups and mission
Voluntarism as a value is both personal and social. As boards)
a personal value, it is nothing more than the

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5. Art. 6, Sec. 29 (2) (appropriation allowed where thus she should not be allowed to remain employed
ecclesiastic is employed in armed forces, in a therein as it might appear that the court condones
penal institution, or in a government-owned her act. Angel admitted that she has been living with
orphanage or leprosarium) CA without the benefit of marriage for twenty years
6. Tax exemption on property actually, directly and and that they have a son. But as a member of the
exclusively used for religious purposes; religious sect known as the Jehovahs Witnesses and
7. Religious instruction in public schools: the Watch Tower and Bible Tract Society, their
a. At the option of parents/guardians expressed conjugal arrangement is in conformity with their
in writing; religious beliefs. In fact, after ten years of living
b. Within the regular class hours by instructors together, she executed on July 28, 1991 a
designated or approved by religious Declaration of Pledging Faithfulness. Should Angels
authorities of the religion to which the right to religious freedom carve out an exception
children belong; from the prevailing jurisprudence on illicit relations
c. Without additional costs to the government; for which government employees are held
administratively liable?
Exceptions to the non-establishment clause as held
by jurisprudence A: Yes. Angels conjugal arrangement cannot be
penalized as she has made out a case for exemption
1. Government sponsorship of town fiestas, some from the law based on her fundamental right to
purely religious traditions have now been freedom of religion. The Court recognizes that State
considered as having acquired secular character interests must be upheld in order that freedoms
(Garces v. Estenzo, G.R. No. L-53487, May 25, including religious freedom may be enjoyed. In the
1981); and area of religious exercise as a preferred freedom,
2. Postage stamps depicting Philippines as the venue however, man stands accountable to an authority
of a significant religious event benefit to the higher than the State, and so the State interest sought
religious sect involved was merely incidental as to be upheld must be so compelling that its violation
the promotion of Philippines as a tourist will erode the very fabric of the State that will also
destination was the primary objective. (Aglipay v. protect the freedom. In the absence of a showing that
Ruiz, G.R. No. L-45459 March 13, 1937) such State interest exists, man must be allowed to
subscribe to the Infinite. Furthermore, our
Lemon test Constitution adheres to the benevolent
neutrality approach that gives room for
A test to determine whether an act of the government accommodation of religious exercises as required by
violates the non-establishment clause. the Free Exercise Clause. The benevolent neutrality
doctrine allows accommodation of morality based on
To pass the Lemon test, a government act or policy religion, provided it does not offend compelling state
must: interests. (Estrada v. Escritor, A.M. No. P-02-1651,
1. Have a secular purpose; June 22, 2006)
2. Not promote or favor any set of religious beliefs
or religion generally; and Q: Ang Ladlad is an organization composed of men
3. Not get the government too closely involved and women who identify themselves as lesbians,
(entangled) with religion. gays, bisexuals, or transgendered individuals (LGBTs).
Ang Ladlad applied for registration with the
FREE-EXERCISE CLAUSE COMELEC to participate in the party-list elections.
The COMELEC dismissed the petition on moral
Aspects of freedom of religious profession and grounds, stating that definition of sexual orientation
worship of the LGBT sector makes it crystal clear that
petitioner tolerates immorality which offends
1. Right to believe, which is absolute; and religious beliefs based on the Bible and the Koran.
2. Right to act on ones belief, which is subject to Ang Ladlad argued that the denial of registration,
regulation. insofar as it justified the exclusion by using religious
dogma, violated the constitutional guarantees
Q: Angel, a court interpreter, is living with a man not against the establishment of religion. Is this
her husband. Ben filed an administrative case against argument correct?
Angel as he believes that she is committing an
immoral act that tarnishes the image of the court,

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A: Yes. It was grave violation of the non-establishment nature as to create a clear and present danger that
clause for the COMELEC to utilize the Bible and the they will bring about the substantive evils that
Koran to justify the exclusion of Ang Ladlad. Our Congress has a right to prevent. (Schenck v. United
Constitution provides in Art. III, Sec. 5 that no law States, 249 U.S. 47, 1919)
shall be made respecting an establishment of religion,
or prohibiting the free exercise thereof. At bottom, NOTE: The test can be applied with regard to the Freedom
of Religion when what is involved is religious speech as this
what our non-establishment clause calls for is
is often used in cases of freedom of expression.
government neutrality in religious matters. Clearly,
governmental reliance on religious justification is
COMPELLING STATE INTEREST TEST
inconsistent with this policy of neutrality (Ang Ladlad
LGBT Party v. COMELEC, G.R. No. 190582, Apr. 8,
Compelling State Interest test
2010).
Used to determine if the interests of the State are
The government must act for secular purposes and in
compelling enough to justify infringement of religious
ways that have primarily secular effects. That is, the
freedom. It involves a three-step process:
government proscribes this conduct because it is
1. Has the statute or government action created a
"detrimental (or dangerous) to those conditions upon
burden on the free exercise of religion? Courts
which depend the existence and progress of human
often look into the sincerity of the religious belief,
society" and not because the conduct is proscribed by
but without inquiring into the truth of the belief
the beliefs of one religion or the other. (Estrada v.
since the free exercise clause prohibits inquiring
Escritor, A.M. No. P-02-1651, June 22, 2006)
about its truth.
2. Is there a sufficiently compelling state interest to
Q: The petitioners, led by Mylene, members of the
justify this infringement of religious liberty? In
Philippine Independent church, clamored for the
this step, the government has to establish that its
transfer of Fr. B to another parish but Bishop Kevin
purposes are legitimate for the State and that
denied their request. The problem was compounded
they are compelling.
when Bishop Kevin told Mylene not to push through
3. Has the State in achieving its legitimate purposes
with his plan to organize an open mass to be
used the least intrusive means possible so that the
celebrated by Fr. Garry during the town fiesta of
free exercise is not infringed any more than
Socorro. Bishop Kevin failed to stop Mylene from
necessary to achieve the legitimate goal of the
proceeding with her plan. Mylene and her
State? The analysis requires the State to show
sympathizers proceeded with their plan.
that the means in which it is achieving its
Subsequently, Bishop Kevin declared petitioners
legitimate State objective is the least intrusive
expelled/excommunicated from the Philippine
means, or it has chosen a way to achieve its
Independent Church. Petitioners filed a complaint for
legitimate State end that imposes as little as
damages with preliminary Injunction against Bishop
possible intrusion on religious beliefs.
Kevin. Is it within the jurisdiction of the courts to hear
the case involving the expulsion/excommunication of
NOTE: The Compelling State Interest test is used in cases
members of a religious institution? involving purely conduct based on religious belief.

A: No. The church and the state are separate and Q: Shery, Julia, Paula, Joanne, Lisette and Angela
distinct from each other. Said matter involving the were minor school children and member of the sect,
expulsion/excommunication of members of the Jehovahs Witnesses. They were expelled from their
Philippine Independent Church should be left to the classes by various public school authorities for
discretion of the officials of said religious institution in refusing to salute the flag, sing the national anthem
line with the doctrine that the court should not and recite the Panatang Makabayan required by RA
interfere on doctrinal and disciplinary differences. 1265. According to them, the basic assumption in
(Dominador Taruc, et al. v. Bishop Perfirio Dela Cruz, their universal refusal to salute the flags of the
GR. No. 044801, Mar. 10, 2005) countries in which they are found is that such a salute
constitutes an act of religious devotion forbidden by
TESTS God's law and that their freedom of religion is grossly
violated. On the other hand, the public authorities
CLEAR AND PRESENT DANGER TEST claimed that the freedom of religious belief
guaranteed by the Constitution does not mean
The question in every case is whether the words used exception from non-discriminatory laws like the
are used in such circumstances and are of such a saluting of flag and the singing of the national

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anthem. To allow otherwise would


disrupt school discipline and demoralize the A: No. The United States Supreme Court held that
teachings of civic consciousness and duties of there is no dispute that Alis professed beliefs were
citizenship. Is the expulsion justified? founded on basic tenets of the Muslim religion, as he
understood them, and derived in substantial part
A: No. Religious freedom is a fundamental right of from his devotion to Allah as the Supreme Being.
highest priority. The two- fold aspect of right to Thus, his claim unquestionably was within the
religious worship is: 1.) Freedom to believe which is an `religious training and belief' clause of the exemption
absolute act within the realm of thought. 2.) Freedom provision." (Clay v. United States, 403 U.S.698 (1971)
to act on ones belief regulated and translated to
external acts. The only limitation to religious freedom Q: Sec. 23, par. 3 of RH Law mandates medical
is the existence of grave and present danger to public practitioners who are conscientious objectors to
safety, morals, health and interests where State has refer those patients who are seeking information
right to prevent. The expulsion of the petitioners from regarding reproductive health programs and services
the school is not justified. to another medical practitioner. Is this provision
constitutional?
In the case at bar, the students expelled are only
standing quietly during ceremonies. By observing the A: No. The Court is of the view that the obligation to
ceremonies quietly, it doesnt present any danger so refer imposed by the RH Law violates the religious
evil and imminent to justify their expulsion. The belief and conviction of a conscientious objector. Once
expulsion of the students by reason of their religious the medical practitioner, against his will, refers a
beliefs is also a violation of a citizens right to free patient seeking information on modem reproductive
education. The non-observance of the flag ceremony health products, services, procedures and methods,
does not totally constitute ignorance of patriotism and his conscience is immediately burdened as he has
civic consciousness. Love for country and admiration been compelled to perform an act against his beliefs.
for national heroes, civic consciousness and form of As Commissioner Joaquin A. Bernas (Commissioner
government are part of the school curricula. Bernas) has written, "at the basis of the free exercise
Therefore, expulsion due to religious beliefs is clause is the respect for the inviolability of the human.
unjustified. (Ebralinag v. Division Superintedent of Accordingly, a conscientious objector should be
Cebu, G.R.No. 95770, March 1, 1993) exempt from compliance with the mandates of the RH
Law. If he would be compelled to act contrary to his
CONSCIENTIOUS OBJECTOR TEST religious belief and conviction, it would be violative of
"the principle of non-coercion" enshrined in the
Conscientious objector constitutional right to free exercise of religion. The
same holds true with respect to non-maternity
An "individual who has claimed the right to refuse to specialty hospitals and hospitals owned and operated
perform military service on the grounds of freedom of by a religious group and health care service providers.
thought, conscience, and/or religion. (International (Imbong v. Ochoa G.R. No. 204819 April 8, 2014)
Covenant on Civil and Political Rights, Art. 18)
LIBERTY OF ABODE AND FREEDOM OF
Requisites for one to be considered a conscientious MOVEMENT
objector
Rights guaranteed under Sec. 6 of the Bill of Rights
1. The person is opposed to war in any form
2. He must show that this opposition is based upon 1. Freedom to choose and change ones place of
religious training and belief abode; and
3. And he must show that this objection is sincere. 2. Freedom to travel within the country and outside.
(Clay v. United States, 403 U.S.698 (1971)
Liberty of abode
Q: Boxer Muhammad Jerald Tristan Ali, a Muslim,
refused to report for induction into the United States Right of a person to have his home or to maintain or
military forces during the Vietnam War. He applied change his home, dwelling, residence or habitation in
to be exempted based on the teachings of Islam. His whatever place he has chosen, within the limits
local draft board had rejected his application for prescribed by law.
conscientious objector classification. Is the denial
correct?

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Q: The military commander in charge of the Qatar due to growing incidence of physical and
operation against rebel groups directed the personal abuses to female overseas workers. PASEI
inhabitants of the island which would be the target of contends that it impairs the constitutional right to
attack by government forces to evacuate the area travel. Is the contention correct?
and offered the residents temporary military hamlet.
Can the military commander forced the residents to A: No. The deployment ban does not impair the right
transfer their places of abode without a court order? to travel. The right to travel is subject, among other
things, to the requirements of "public safety," "as may
A: No. The military commander cannot do so without be provided by law." Department Order No. 1 is a valid
a court order. Under Sec. 6, Art. III of the Constitution, implementation of the Labor Code, in particular, its
a lawful order of the court is required before the basic policy to "afford protection to labor," pursuant
liberty of abode and of changing the same can be to the Department of Labor's rule-making authority
impaired. vested in it by the Labor Code. (Philippine Association
of Service Exporters, Inc. v. Drilon, G.R. No. 81958, June
LIMITATIONS 30, 1988)

The liberty of abode may be impaired only: WATCH-LIST AND HOLD DEPARTURE ORDERS
a. Upon lawful order of the court and;
b. Within the limits prescribed by law. Watch-list order (WLO)

Examples: Order issued to prevent an individual from travelling.


1. Persons in the danger zone areas (e.g. Mt. It may be issued by the Secretary of Justice motu
Pinatubo, Taal Volcano) may be relocated to safer proprio or upon request, under any of the following
areas and evacuation centers in case of danger circumstances:
and emergency to save lives and property. 1. Against the accused, irrespective of nationality, in
2. Insane persons who roam around in Roxas criminal cases pending trial before the RTCs or
Boulevard may be committed by the government before courts below the RTCs.
to the National Mental Hospital for appropriate 2. Against the respondent, irrespective of
treatment and medical attention. nationality, in criminal cases pending preliminary
investigation, petition for review, or motion for
RIGHT TO TRAVEL reconsideration before the DOJ or any of its
provincial or city prosecution offices.
Right to travel 3. The Secretary of Justice may likewise issue a WLO
against any person, either on his own, or upon the
Right of a person to go where he pleases without request of any government agency, including
interference from anyone. commissions, task forces or similar entities
created by the Office of the President, pursuant to
The limitations on the right to travel the "Anti-Trafficking in Persons Act of 2003" (R.A.
No. 9208) and/or in connection with any
a. Interest of national security; investigation being conducted by it, or in the
b. Public safety; interest of national security, public safety or
c. Public health. public health. (Sec. 2, DOJ Circ. 41, s.2010)

NOTE: With respect to the right to travel, it is settled that NOTE: WLO is available for (a) criminal cases pending before
only a court may issue a hold departure order against an lower courts, or even for (b) cases still under preliminary
individual addressed to the Bureau of Immigration and investigation. A WLO is good for sixty (60) days. (Sec. 4, DOJ
Deportation. However, administrative authorities, such as Circ. 41, and s.2010)
passport-officers, may likewise curtail such right in the
interest of national security, public safety, or public health, Hold Departure Order (HDO)
as may be provided by law.
An order issued to prevent an individual from
Q: PASEI is engaged in the recruitment of Filipino travelling. It may be issued by the Secretary of Justice
workers, male and female, for overseas employment. motu proprio or upon request, under any of the
It challenged the validity of Department Order 1 of following circumstances:
the Department of Labor and Employment (DOLE)
because it suspends the deployment of female
domestic and household workers in Iraq, Jordan and

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BILL OF RIGHTS

1. Against the accused, irrespective of nationality, in The Hold Departure Order can be lifted or cancelled
criminal cases falling within the jurisdiction of as follows:
courts below the Regional Trial Courts (RTCs):
1. When the validity period of the HDO has already
i. If the case against the accused is pending expired;
trial, the application under oath of an 2. When the accused subject of the HDO has been
interested party must be supported by allowed to leave the country during the pendency
(a) a certified true copy of the complaint of the case, or has been acquitted of the charge,
or information; and (b) a Certification or the case in which the warrant/order of arrest
from the Clerk of Court concerned that was issued has been dismissed or the
criminal case is still pending. warrant/order of arrest has been recalled;
3. When the civil or labor case or case before an
ii. If the accused has jumped bail or has administrative agency of the government wherein
become a fugitive from justice, the the presence of the alien subject of the HDO/WLO
application under oath of an interested has been dismissed by the court or by appropriate
party must be supported by (a) a certified government agency, or the alien has been
true copy of the complaint or discharged as a witness therein, or the alien has
information; (b) a certified true copy of been allowed to leave the country.
the warrant/order of arrest; and (c) a
Certification from the Clerk of Court The Watch List Order may be lifted or cancelled under
concerned that the warrant/order of any of the following grounds:
arrest was returned unserved by the
peace officer to whom the same was 1. When the validity period of the WLO has already
delivered for service. expired;
2. When the accused subject of the WLO has been
2. Against the alien whose presence is required allowed by the court to leave the country during
either as a defendant, respondent, or witness in a the pendency of the case, or has been acquitted
civil or labor case pending litigation, or any case of the charge;
before a quasi-judicial or an administrative agency 3. When the preliminary investigation is terminated,
of the government. or when the petition for review, or motion for
reconsideration has been denied and/or
The application under oath of an interested party dismissed.
must be supported by (a) a certified true copy of
the subpoena or summons issued against the RETURN TO ONES COUNTRY
alien; and (b) a certified true copy complaint in
civil, labor or administrative case where the Q: Ferdinand Marcos, in his deathbed, has signified
presence of the alien is required. his desire to return to the Philippines to die. But
President Corazon Aquino barred the return of
3. The Secretary may likewise issue an HDO against Marcos and his family. The Marcoses invoke their
any person, either on his own, or upon the request right to return. Is the right to return a constitutionally
by the Head of a Department of the Government, protected right?
the head or a constitutional body or commission,
the Chief Justice of the Supreme Court for the A: No. The right to return to ones country is not
Judiciary, the Senate President or the House among the rights specifically guaranteed in the Bill of
Speaker for the Legislature, when the adverse Rights, which treats only of the liberty of abode and
party is the Government or any of its agencies or the right to travel. Nevertheless, the right to return
instrumentalities, or in the interest of national may be considered as a generally accepted principle of
security, public safety or public health. (Sec. 1, International law, and under the Constitution, is part
DOJ Circ. 41, s.2010) of the law of the land. However, it is distinct and
separate from the right to travel and enjoys a different
NOTE: A Hold Departure Order can be issued against (a) an protection under the Intl. Covenant of Civil and
accused in criminal cases under the jurisdiction of the Political Rights. (Marcos v. Manglapus, G.R. No. 88211,
Regional Trial Courts and even (b) against aliens whose Sept. 15, 1989 & Oct. 27, 1989)
presence is required either as respondents or as witnesses.

A HDO is valid for five (5) years from issuance.

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RIGHT TO INFORMATION valid publication intended to make full disclosure and


give proper notice to the people.
This right covers information on matters of public
concern. It pertains to access to official records, Publication of regulations
documents and papers pertaining to official acts,
transactions or decisions, as well as to government Publication is necessary to apprise the public of the
research data used as basis for policy development. contents of penal regulations and make the said
penalties binding on the persons affected thereby.
The SC has held in Chavez v. PEA and AMARI (G.R. No. (Pesigan v. Angeles G.R. No. L-6427, April 30, 1984)
133250, July 9, 2002) that the right to information
contemplates inclusion of negotiations leading to the ACCESS TO COURT RECORDS
consummation of the transaction.
Q: During the pendency of the intestate proceedings,
NOTE: The right only affords access to records, documents Ojay, a creditor of the deceased, filed a motion with
and papers, which means the opportunity to inspect and a prayer that an order be issued requiring the Branch
copy them at his expense. The exercise is also subject to
Clerk of Court to furnish him with copies of all
reasonable regulations to protect the integrity of public
records and to minimize disruption of government processes and orders and to require the
operations. administratrix to serve him copies of all pleadings in
the proceedings. The judge denied the motion
LIMITATIONS because the law does not give a blanket authority to
any person to have access to official records and
GR: The access must be for a lawful purpose and is documents and papers pertaining to official acts. The
subject to reasonable conditions by the custodian of judge said that his interest is more of personal than
the records. of public concern. Is the judge correct?

XPNs: A: No. The right to information on matters of public


The right does not extend to the following: concern is a constitutional right. However, such is not
1. Information affecting national security, military absolute. Under the Constitution, access is subject to
and diplomatic secrets. It also includes inter- limitations as may be provided by law. Therefore, a
government exchanges prior to consultation of law may exempt certain types of information from
treaties and executive agreement as may public scrutiny such as national security. The privilege
reasonably protect the national interest against disclosure is recognized with respect to state
2. Matters relating to investigation, apprehension, secrets bearing on the military, diplomatic and similar
and detention of criminals which the court may matters. Since intestate proceedings do not contain
not inquire into prior to arrest, prosecution and any military or diplomatic secrets which will be
detention disclosed by its production, it is an error on the part of
3. Trade and industrial secrets and other banking the judge to deny Ojays motion. (Hidalgo v. Reyes,
transactions as protected by the Intellectual AM No. RTJ-05-1910, Apr. 15, 2005)
Property Code and the Secrecy of Bank Deposits
Act RIGHT TO INFORMATION RELATIVE TO:
4. Other confidential information falling under the
scope of the Ethical Safety Act concerning GOVERNMENT CONTRACT NEGOTIATIONS
classified information
Q: PSALM commenced the privatization of Angat
PUBLICATION OF LAWS AND REGULATIONS Hydro-Electric Power Plant. Korea Water Resources
Corporation won in the public bidding. IDEALS then
Publication of Laws requested for detailed information regarding the
winning bidder, such as company profile, contact
There is a need for publication of laws to reinforce the person or responsible officer, office address and
right to information. In Taada v. Tuvera, the Court Philippine registration but PSALM refused to give
said that Laws must come out in the open in the clear such information. May IDEALS compel PSALM to
light of the sun instead of skulking in the shadows with furnish them those pieces of information invoking
their dark, deep secrets. Mysterious pronouncements their right to information?
and rumored rules cannot be recognized as binding
unless their existence and contents are confirmed by a A: Yes. The Court distinguished the duty to disclose
information from the duty to permit access to

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information on matters of public concern under Sec. 7, dictate the terms and conditions of their employment.
Art. III of the Constitution. Unlike the disclosure of The same is fixed by law and circulars and thus not
information which is mandatory under the subject to any collective bargaining agreement.
Constitution, the other aspect of the peoples right to
know requires a demand or request for one to gain NOTE: Pursuant to Sec. 4, Rule III of the Rules and
access to documents and paper of the particular Regulations to Govern the Exercise of the Right of
agency. Moreover, the duty to disclose covers only Government Employees to Self-Organization, the terms and
conditions of employment in the Government, including any
transactions involving public interest, while the duty to
of its instrumentalities, political subdivision and government
allow access has a broader scope of information which
owned and controlled corporations with original charters,
embraces not only transactions involving public are governed by law and employees therein shall not strike
interest, but any matter contained in official for the purpose of securing changes thereof. (SSS Employees
communications and public documents of the Association v. CA, GR. No. 85279, July 28, 1989) The only
government agency. Such relief must be granted to the available remedy for them is to lobby for better terms of
party requesting access to official records, documents employment with Congress. The right to unionize is an
and papers relating to official acts, transactions, and economic and labor right while the right to association in
decisions that are relevant to a government contract. general is a civil-political right.
(IDEALs v. PSALM, G.R. No. 192088, Oct. 9, 2012)
CONTRACT CLAUSE
DIPLOMATIC NEGOTIATIONS
CONTEMPORARY APPLICATION OF THE
Q: Petitioners request that they be given a copy of the CONTRACT CLAUSE
full text of the JPEPA as well as the offers and
negotiations between the Philippines and Japan. The law impairs the obligation of contracts if
Can these documents be disclosed as matters of
public concern? 1. It changes the terms and conditions of a legal
contract either as to the time or mode of
A: There is a distinction between the text of the treaty performance
and the offers and negotiations. They may compel the 2. It imposes new conditions or dispenses with those
government to disclose the text of the treaty but not expressed if it authorizes for its satisfaction
the offers between RP and Japan, because these are something different from that provided in its
negotiations of executive departments. Diplomatic terms
Communication negotiation is a privileged
NOTE: Mere technical change which does not change the
information. (Akbayan v. Aquino, G.R. No. 170516, July
substance of the contract, and which still leaves an
16, 2008) efficacious remedy for enforcement does NOT impair the
obligation of contracts. A valid exercise of police power is
RIGHT OF ASSOCIATION superior to obligation of contracts.

Freedom of association Non-impairment clause cannot be invoked if there is


neither public interest involved nor a law that supports
The right to form associations shall not be impaired the claim. It can only be invoked if it is against the
without due process of law. It is therefore an aspect of government or when the government intervenes in
the general right of liberty. More specifically, it is an contract between the parties. (Pacific Wide Realty and
aspect of freedom of contract; and in so far as Development Corp. v Puerto Azul Land, Inc., G.R. No.
associations may have for their object the 180893, Nov 25, 2009)
advancement of beliefs and ideas, freedom of
association is an aspect of freedom of expression and Impairment of contracts
of belief. The guarantee also covers the right not to
join an association. Any statute which introduces a change into the
express terms of the contract, or its legal construction,
NOTE: Freedom of association includes the freedom not to or its validity, or its discharge, or the remedy for its
associate, or, if one is already a member, to disaffiliate from enforcement, impairs the contract. (Blacks Law
the association. Dictionary)

The right to strike is not included in the right to form NOTE: Franchises, privileges, licenses, etc. do not come
unions or freedom of assembly by government within the context of the provision, since these things are
employees. Their employment is governed by law. It is subject to amendment, alteration or repeal by Congress
the Congress and administrative agencies which when the common good so requires.

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Applicability of the provision embarrassment. Even granting that the police power
of the State may be exercised to impair the vested
This constitutional provision is applicable only if the rights of privately-owned airlines, the deprivation of
obligation of contract is impaired by legislative act property still requires due process of law. (Kuwait
(statute, ordinance, etc.). The act need not be by a Airline Corporation v. PAL, G.R. No. 156087, May 8,
legislative office; but it should be legislative in nature. 2009)
Furthermore, the impairment must be substantial
(Philippine Rural Electric Cooperatives Assoc. v. DILG LEGAL ASSISTANCE AND FREE ACCESS TO COURTS
Secretary, G.R. 143076, June 10, 2003).
Right to free access to courts
Mutuality of contracts
This right is the basis for Sec. 17, Rule 5 of the New
GR: Valid contracts should be respected by the Rules of Court allowing litigation in forma pauperis.
legislature and not tampered with by subsequent laws Those protected include low paid employees,
that will change the intention of the parties or modify domestic servants and laborers. (Cabangis v. Almeda
their rights and obligations. The will of the parties to a Lopez, G.R. No. 47685, Sept. 20, 1940)
contract must prevail. A later law which enlarges,
abridges, or in any manner changes the intent of the Q: The Municipal Trial Court denied Dexters petition
parties to the contract necessarily impairs the contract to litigate in forma pauperis on the ground that
itself and cannot be given retroactive effect without Dexter has regular employment and sources of
violating the constitutional prohibition against income thus cannot be classified as poor or pauper. Is
impairment of contracts. (Sangalang v. IAC, G.R. No. the courts order justified?
71169, Dec. 22, 1988)
A: No. They need not be persons so poor that they
XPN: Enactment of laws pursuant to the exercise of must be supported at public expense. It suffices that
police power because public welfare prevails over the plaintiff is indigent. And the difference between
private rights. It is deemed embedded in every paupers and indigent persons is that the latter are
contract a reservation of the States exercise of police persons who have no property or sources of income
power, eminent domain and taxation, so long as it sufficient for their support aside from their own labor
deals with a matter affecting the public welfare. (PNB though self-supporting when able to work and in
v Remigio, G.R. No 78508, Mar. 21, 1994) employment. (Acar v. Rosal, G.R. No. L-21707, March
18, 1967)
Q: While still being a GOCC, PAL entered into a
Commercial Agreement and Joint Services Q: The Good Shepherd Foundation, Inc. seeks to be
Agreement with Kuwait Airways. The Commercial exempted from paying legal fees for its indigent and
Agreement established a joint commercial underprivileged clients couching their claim on the
arrangement whereby PAL and Kuwait Airways were free access clause embodied in Sec. 11, Art. III of the
to jointly operate the Manila-Kuwait (and vice versa) Constitution. Is the contention tenable?
route, utilizing the planes and services of Kuwait
Airways. Subsequently, PAL was privatized. After 14 A: No. The Court cannot grant exemption of payment
years, delegations from the Philippine of legal fees to foundations/institutions working for
government and Kuwait government met in Kuwait. indigent and underprivileged people. According to Sec.
The talks culminated in a Confidential Memorandum 19, Rule 141, Rules of Court, only
of Understanding (CMU). Can the execution of the a natural party litigant may be regarded as an indigent
CMU between Kuwait and Philippine Government litigant that can be exempted from payment of legal
automatically terminate the Commercial fees. Exemption cannot be extended to the
Agreement? foundations even if they are working for the indigent
and underprivileged people. (Re: Query of Mr. Roger C.
A: No. An act of the Phil. Govt negating the Prioreschi Re exemption from legal and filing fees of
commercial agreement between the two airlines the Good Shepherd Foundation, Inc., A. M. No. 09-6-9-
would infringe the vested rights of a private individual. SC, August 19, 2009)
Since PAL was already under private ownership at the
time the CMU was entered into, the Court cannot
presume that any and all commitments made by the
Phil. Govt are unilaterally binding on the carrier even
if this comes at the expense of diplomatic

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RIGHTS OF SUSPECTS would then direct interrogatory questions which tend


to elicit incriminating statements.
Miranda rights
NOTE: Sec. 2 of R.A. 7438 provides that custodial
These are the rights to which a person under custodial investigation shall include the practice of issuing an
investigation is entitled. These rights are: invitation to a person who is under investigation in
connection with an offense he is suspected to have
1. Right to remain silent
committed
2. Right to competent and independent counsel,
preferably of his own choice Rights during custodial investigation apply only against
3. Right to be reminded that if he cannot afford the testimonial compulsion and not when the body of the
services of counsel, he would be provided with accused is proposed to be examined (e.g. urine sample;
one photographs; measurements; garments; shoes) which is a
4. Right to be informed of his rights purely mechanical act.
5. Right against torture, force, violence, threat,
intimidation or any other means which vitiate the In the case of Galman v. Pamaran, it was held that the
constitutional safeguard is applied notwithstanding that the
free will
person is not yet arrested or under detention at the time.
6. Right against secret detention places, solitary, However, Fr. Bernas has qualified this statement by saying
incommunicado, or similar forms of detention that jurisprudence under the 1987 Constitution has
7. Right to have confessions or admissions obtained consistently held, following the stricter view, that the rights
in violation of these rights considered begin to be available only when the person is already in
inadmissible in evidence (Miranda v Arizona, 384 custody. (People v. Ting LanUy, G.R. No. 157399, Nov.17,
U.S. 436, 1966) 2005)

NOTE: Even if the person consents to answer questions Furthermore, in the case of People v. Reyes, GR No. 178300,
without the assistance of counsel, the moment he asks for a Mar. 17, 2009, the court held that: The mantle of protection
lawyer at any point in the investigation, the interrogation afforded by the above-quoted provision covers the period
must cease until an attorney is present. from the time a person is taken into custody for the
investigation of his possible participation in the commission
The Miranda Rights are available to avoid involuntary of a crime of from the time he was singled out as a suspect
extrajudicial confession. in the commission of the offense although not yet in custody.

The purpose of providing counsel to a person under Miranda rights is unavailable when
custodial investigation is to curb the police-state practice of
extracting a confession that leads appellant to make self- 1. During a police line-up, unless admissions or
incriminating statements. (People v. Rapeza, G.R. 169431, confessions are being elicited from the suspect
April 3, 2007) (Gamboa v. Cruz, G.R. No. L-56291, June 27, 1988)
2. During administrative investigations (Sebastian, Jr
Rights and limitations of a person in a preliminary v Garchitorena, G.R. No 114028)
investigation 3. Confessions made by an accused at the time he
voluntarily surrendered to the police or outside
1. He cannot cross-examine the context of a formal investigation; (People v
2. No right to counsel except when confession is Baloloy, G.R. No 140740, April 12, 2002) and
being obtained 4. Statements made to a private person (People v
3. He cannot file complaint or information without Tawat, G.R. No 62871, May 25, 1985)
authority 5. Forensic investigation is not tantamount to
4. Right to be present not absolute custodial investigation, therefore Miranda rights
5. No dismissal without approval is not applicable (People v. Tranca, 235 SCRA 455,
6. Right to discovery proceedings 1994)

AVAILABILITY REQUISITES FOR VALID WAIVER

Availability of Miranda rights Requisites for valid waiver

During custodial investigation or as soon as the 1. Made voluntarily, knowingly and intelligently
investigation ceases to be a general inquiry unto an 2. Waiver should be made in writing
unsolved crime and direction is aimed upon a 3. Made with the presence of counsel (People vs
particular suspect, as when the suspect who has been Galit, GR. No. L-51770, Mar. 20, 1985)
taken into police custody and to whom the police

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Q: Is a confession given to a mayor admissible in WAIVER


court?
Rights that may be waived
A: It depends. If such confession was given to the
mayor as a confidant and not as a law enforcement 1. Right to remain silent
officer, it is admissible, in which case, the 2. Right to counsel
uncounselled confession did not violate the suspects
constitutional rights. Otherwise, it is not. (People v NOTE:
Zuela, G.R. No 112177, Jan. 28, 2000) 1. However, the right of the accused to be informed of
these rights is not subject to waiver; and
NOTE: What the Constitution bars is the compulsory 2. The waiver must be in writing and made in the presence
disclosure of the incriminating facts or confessions. The of counsel.
rights under Sec. 12 are guarantees to preclude the slightest
use of coercion by the State, and not to prevent the suspect RIGHTS OF THE ACCUSED
from freely and voluntarily telling the truth. (People v.
Andan, G.R. No. 116437, Mar. 3, 1997) 1. Due process
2. Be presumed innocent
Admissibility as evidence of confessions given to 3. Be heard by himself and counsel
news reporters and/or media and videotaped 4. Be informed of the nature and cause of the
confessions accusation against him
5. A speedy, impartial and public trial
Confessions given in response to a question by news 6. Meet the witnesses face to face
reporters, not policemen, are admissible. Where the 7. Have compulsory process to secure the
suspect gave spontaneous answers to a televised attendance of witnesses and production of
interview by several press reporters, his answers are evidence on his behalf
deemed to be voluntary and are admissible. 8. Against double jeopardy
9. Bail
Videotaped confessions are admissible, where it is
shown that the accused unburdened his guilt willingly, CRIMINAL DUE PROCESS
openly and publicly in the presence of the newsmen.
Such confessions do not form part of confessions in Requisites of criminal due process
custodial investigations as it was not given to
policemen but to media in attempt to solicit sympathy 1. Accused is heard by a court of competent
and forgiveness from the public. jurisdiction
2. Accused is proceeded against under the orderly
However, due to inherent danger of these videotaped processes of law
confessions, they must be accepted with extreme 3. Accused is given notice and opportunity to be
caution. They should be presumed involuntary, as heard
there may be connivance between the police and 4. Judgment must be rendered after lawful hearing
media men. (People v. Endino, G.R. No. 133026, Feb.
20, 2001) NOTE: The right to appeal is neither a natural right nor part
of due process. It is a mere statutory right, but once given,
Fruit of the poisonous tree doctrine denial constitutes violation of due process.

Once the primary source (the tree) is shown to have RIGHT TO BAIL
been unlawfully obtained, any secondary or derivative
evidence (the fruit) derived from it is also inadmissible. Bail

NOTE: The rule is based on the principle that evidence The security given for the release of a person in
illegally obtained by the State should not be used to custody of law, furnished by him or a bondsman,
gain other evidence, because the originally illegally conditioned upon his appearance before any court as
obtained evidence taints all evidence subsequently required (Sec. 1, Rule 114, Rules of Court).
obtained.
GR: All persons shall, before conviction, be bailable.

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XPN: Those who are charged with offenses punishable c. A child in conflict with the law charged with
by reclusion perpetua, life imprisonment or death an offense punishable by death, reclusion
when the evidence of guilt is strong. perpetua or life imprisonment when evidence
of guilt is not strong (Sec. 28, A.M. No. 02-1-
NOTE: The prosecution cannot adduce evidence for the 18-SC).
denial of bail where it is a matter of right. However where
the grant of bail is discretionary, the prosecution may show Grounds for denial of bail
proof to deny the bail.
If the penalty imposed by the trial court is
Statutory provisions connected to right to bail imprisonment exceeding six (6) years, the accused
shall be denied bail, or his bail shall be cancelled upon
a. The suspension of the privilege of the writ of a showing by the prosecution, with notice to the
habeas corpus does not impair the right to bail. accused, of the following or other similar
b. Excessive bail is not required. circumstances:
a. That he is a recidivist, quasi-recidivist, or
Rationale behind the right to bail habitual delinquent, or has committed the
crime aggravated by the circumstance of
An accused is presumed innocent until his guilt is reiteration;
proven beyond reasonable doubt by final judgment. b. That he has previously escaped from legal
The right to bail gives the accused not only an confinement, evaded sentence, or violated
opportunity to obtain provisional liberty but also the the conditions of his bail without valid
chance to prepare for trial while continuing his usual justification;
work or employment. The bail posted by the accused c. That he committed the offense while under
for his provisional liberty is, in effect, an assurance that probation, parole, or conditional pardon;
the accused will attend the court proceedings, d. That the circumstances of his case indicate
particularly when his presence is required. In short, the the probability of flight if released on bail; or
purpose of the bail is to relieve the accused from e. That there is undue risk that he may commit
imprisonment until his conviction and at the time his another crime during the pendency of the
appearance at the trial is secured.(Almeda v. Villaluz, appeal.
66 SCRA 38 (1975) (Suarez, Political Law Reviewer, p.
302, 2011). The appellate court may, motu proprio or on motion of
any party, review the resolution of the RTC after notice
NOTE: The right to bail may be invoked once detention
to the adverse party in either case. (Sec. 5, Rule 114,
commences even if no formal charges have yet to be filed.
(Teehankee v. Rovira, G.R.No. L-101, Dec. 20, 1945) Rules of Court)

1. Bail as a matter of right NOTE: The right to bail is available from the very moment of
arrest (which may be before or after the filing of formal
a. Before or after conviction by the
charges in court) up to the time of conviction by final
metropolitan and municipal trial courts, and
judgment (which means after appeal). No charge need be
b. Before conviction by the RTC of an offense filed formally before one can file for bail, so long as one is
not punishable by death, reclusion perpetua under arrest. (Heras Teehankee v. Rovira, G.R. No. L-101,
or life imprisonment (Sec. 4, Rule 114). Dec. 20 1945)
c. Before final conviction by all children in
conflict with the law for an offense not Two scenarios in which the penalty imposed on the
punishable by reclusion perpetua or life appellant applying for bail is imprisonment exceeding
imprisonment. six years

2. Bail as a matter of discretion a. The first scenario deals with the absence of the
a. Upon conviction by the RTC of an offense not circumstances enumerated in 3rd par., sec. 5 of
punishable by death, reclusion perpetua or Rule 114. In this scenario, bail is a matter of
life imprisonment discretion. This means that, if none of the
b. Regardless of the stage of the criminal circumstances mentioned in the third paragraph
prosecution, a person charged with a capital of Sec. 5, Rule 114 is present, the appellate court
offense, or an offense punishable by reclusion has the discretion to grant or deny bail. An
perpetua or life imprisonment, when application for bail pending appeal may be denied
evidence of guilt is not strong (Sec. 7, Rule even if the bail-negating circumstances in the
114); and third paragraph are absent.

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Q: Why are capital offenses when evidence of guilt is


NOTE: The discretionary nature of the grant of bail strong not bailable?
pending appeal does not mean that bail should
automatically be granted absent any of the A: Due to the gravity of the offenses committed, the
circumstances mentioned in the third paragraph of Sec.
confinement of a person accused of said offenses
5, Rule 114 of the Rules of Court (Jose Antonio Leviste v.
insures his attendance in the court proceedings than if
Court of Appeals, et al., G.R.No. 189122, March 17,
2010). he is given provisional liberty on account of a bail
posted by him.
b. The second scenario contemplates of the
existence of at least one of the said Factors to be considered in setting the amount of bail
circumstances. The appellate court exercises a
more stringent discretion, that is, to carefully 1. Financial ability of accused
ascertain whether any of the enumerated 2. Nature and circumstances of offense
circumstances in fact exists. If it so determines, it 3. Penalty for offense
has no other option except to deny or revoke bail 4. Character and reputation of accused
pending appeal. (Jose Antonio Leviste v. Court of 5. Age and health of accused
Appeals, et al., G.R.No. 189122, March 17, 2010). 6. Weight of evidence against him
7. Probability of appearance at trial
The following are entitled to bail 8. Forfeiture of other bail
9. Whether he was a fugitive from justice when
1. Persons charged with offenses punishable by arrested
reclusion perpetua or death, when evidence of 10. Pendency of other cases where he is on bail
guilt is not strong (Sunga v. Judge Salud, A.M. No. 2205-MJ, Nov. 19,
2. Persons convicted by the trial court. Bail is only 1981)
discretionary pending appeal
3. Persons who are members of the AFP facing a Q: Manolet was arrested for child abuse. She filed a
court martial petition for application of bail. The court granted her
application with a condition that the approval of the
Whether bail is a matter of right or of discretion, bail bonds shall be made only after her arraignment.
reasonable notice of hearing is required to be given Is the courts order valid?
the prosecutor, or at least he must be asked for his
recommendation, because in fixing the amount of bail, A: No. The grant of bail should not be conditioned upon
the judge is required to take into account a number of prior arraignment of the accused. In cases where bail is
factors. (Cortes v. Judge Catral, A.M. No. RTJ-97-1387, authorized, bail should be granted before arraignment,
Sept. 10, 1997) otherwise the accused will be precluded from filing a
motion to quash which is to be done before
Q: In bail application, if the prosecutor interposes no arraignment. If the information is quashed and the case
objection to the accused charged with capital is dismissed, there would be no need for the
offense, may the judge grant the application without arraignment of the accused. To condition the grant of
court hearing? bail on his arraignment would be to place him in a
position where he has to choose between (1) filing a
A: No. Judges are required to conduct hearings if the motion to quash and thus delay his release until his
accused is being charged with a capital offense. motion can be resolved because prior to its resolution,
Absence of objection from the prosecution is never a he cannot be arraigned, and (2) foregoing the filing of a
basis for the grant of bail in such cases, for the judge motion to quash so that he can be arraigned at once
has no right to presume that the prosecutor knows and thereafter be released on bail. These scenarios
what he is doing on a ccount of familiarity with the undermine the accuseds constitutional right not to be
case. (Joselito v. Narciso v Flor Marle Sta. Romana- put on trial except upon valid complaint or information
Cruz, G.R. No. 134504, March 17, 2000) sufficient to charge him with a crime and his right to
bail. (Lavides v. Court of Appeals, G.R. No. 129670,
NOTE: A hearing on the motion for bail must be conducted February 1, 2000)
by the judge to determine whether or not the evidence of
guilt is strong. (Baylon v. Judge Sison, A.M. No. 92-7-360-0, NOTE: It should not be taken to mean that the hearing on a
Apr. 6, 1995) petition for bail should at all times precede arraignment,
because the rule is that a person deprived of his liberty by
virtue of his arrest or voluntary surrender may apply for bail
as soon as he is deprived of his liberty, even before a

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complaint or information is filed against him. (Serapio v. Q: The RTC QC rendered a decision convicting Judge
Sandiganbayan, G.R. No. 148468, January 28, 2003) Bueno of violation of R.A. 7610. The criminal cases
are now on appeal before the Court of Appeals.
Applicability of the right to bail to an alien subject of Meanwhile, Senior State Prosecutor Guinto (SSP
deportation proceedings Guinto) suggested the immediate suspension of
Bueno. SSP Guinto posited that since Judge Bueno
The right to bail is available to an alien during the stands convicted of two counts of child abuse, her
pendency of deportation proceedings provided that moral qualification as a judge is in question. Judge
potential extraditee must prove by clear and Bueno manifested that she still enjoys the
convincing proof that he is not a flight risk and will presumption of innocence since the criminal cases
abide with all orders and processes of the extradition are on appeal. Does she still enjoy the presumption
court. (Government of Hong Kong Special of innocence if the judgment convicting her is on
Administrative Region v. Olalia Jr., G.R 153675, Apr. appeal?
19, 2007)
A: Yes. Judge Bueno still enjoys the constitutional
NOTE: The application or admission of the accused to bail presumption of innocence. Since her conviction of the
shall not bar him from challenging both the validity of his
crime of child abuse is currently on appeal before the
arrest or the legality of the warrant issued therefore,
CA, the same has not yet attained finality. As such, she
provided that he raises them before he enters his plea. It
shall not likewise bar the accused from assailing the still enjoys the constitutional presumption of
regularity or questioning the absence of a preliminary innocence. It must be remembered that the existence
investigation of the charge against him provided the same is of a presumption indicating the guilt of the accused
raised before he enters his plea. (Rule 114, Sec. 26, Rules of does not in itself destroy the constitutional
Court) presumption of innocence unless the inculpating
presumption, together with all the evidence, or the
PRESUMPTION OF INNOCENCE lack of any evidence or explanation, proves the
accuseds guilt beyond a reasonable doubt. Until the
Basis accuseds guilt is shown in this manner, the
presumption of innocence continues. (Re: Conviction
No person shall be compelled to be a witness against of Judge Adoracion G. Angeles, A.M. No. 06-9-545-RTC,
himself. (Sec. 17, Art. III of the Constitution) Jan. 31, 2008)

Every circumstance favoring the innocence of the Equipoise rule


accused must be taken into account. The proof against
him must survive the test of reason; the strongest When the evidence of both sides is equally balanced,
suspicion must not be permitted to sway judgment the constitutional presumption of innocence should
(People v. Austria, G.R. No. 55109, Apr. 8, 1991) tilt the scales in favor of the accused. (Corpuz v. People,
G.R. No. 74259, Feb. 14, 1991)
It can be invoked only by an individual accused of a
criminal offense; a corporate entity has no personality RIGHT TO BE HEARD
to invoke the same.
Q: In a murder case, Christian was convicted in the
Rules regarding presumption of innocence trial court but was not given the right to testify and
to present additional evidence on his behalf. Is the
1. The prosecution has the burden to prove the guilt conviction correct?
of the accused beyond reasonable doubt. (People
v. Colcol., Jr., 219 SCRA 107, February 19, 1993) A: No. An accused has the constitutional right to be
2. The prosecution must rely on the strength of its heard by himself and counsel and the right to testify
evidence and not in the weakness of the defense. as a witness in his own behalf . The denial of such
(People v. Solis, 182 SCRA 182, February 14, 1990) rights is a denial of due process. The constitutional
3. The right to be presumed innocent must be offset right of the accused to be heard in his defense is
by guilt beyond reasonable doubt. (People v. Ortiz, inviolate. No court of justice under our system of
198 SCRA 836, December 3, 1990) government has the power to deprive him of that
4. Any doubt as to the guilt of the accused must be right.(People v. Lumague, G.R. No. L-53586)
resolved in his favor and against the State. (People
v. Mortos, 226 SCRA 29, September 1, 1993)

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ASSISTANCE OF COUNSEL unequivocally, knowingly, and intelligently made and


with the full assistance of a bona fide lawyer, Atty. Dani
Right to assistance of counsel Lacap. Accordingly, denial of due process cannot be
successfully invoked where a valid waiver of rights has
The right of a person under investigation is to have a been made. (People v. Tulin, G.R. 111709, Aug. 30,
competent and independent counsel preferably of his 2001)
own choice. The purpose is to preclude the slightest
coercion as would lead the accused to admit NOTE: In Flores v. Ruiz, G.R. No. L-35707, May 31, 1979, the
something else. (People vs Evanoria, 209 SCRA 577, Supreme Court held that the right to counsel during the trial
June 8, 1992) cannot be waived, because even the most intelligent or
educated man may have no skill in the science of law,
particularly in the rules of procedure, and without counsel,
The accused must be amply accorded legal assistance he may be convicted not because he is guilty but because he
extended by a counsel who commits himself to the does not know how to establish his innocence.
cause of the defense and acts accordingly; an efficient
and truly decisive legal assistance, and not simply a Q: Mao was criminally charged in court. He hired
perfunctory representation. (People v. Bermas, G.R. Justin as counsel who handles high-profile clients.
No. 120420, Apr. 21, 1999) Due to his many clients, Justin cannot attend the
hearing of the case of Mao. He requested many times
Q: Can a PAO lawyer be considered an independent to have the hearings postponed. The case dragged on
counsel within the contemplation of Sec 12, Art III, slowly. Judge Oliver Punay, in his desire to finish the
1987 Constitution? case as early as practicable under the continuous trial
system, appointed a counsel de officio and withdrew
A: Yes. A PAO lawyer can be considered an the counsel de parte. Is the action of the judge valid?
independent counsel within the contemplation of the
Constitution considering that he is not a special A: Yes. The appointment of counsel de officio under
counsel, public or private prosecutor, counsel of the such circumstances is not proscribed under the
police, or a municipal attorney whose interest is Constitution. The preferential discretion is not
admittedly adverse of the accused-appellant. Thus, absolute as would enable an accused to choose a
the assistance of a PAO lawyer satisfies the particular counsel to the exclusion of others equally
constitutional requirement of a competent and capable. The choice of counsel by the accused in a
independent counsel for the accused. (People v. Bacor, criminal prosecution is not a plenary one. If the
306 SCRA 552, April 30, 1999) counsel deliberately makes himself scarce the court is
not precluded from appointing a counsel de officio
Q: Several individuals were tried and convicted of whom it considers competent and independent to
Piracy in Philippine Waters as defined in PD 532. enable the trial to proceed until the counsel of choice
However, it was discovered that the lawyer, Ms. enters his appearance. Otherwise the pace of criminal
Cantos, who represented them was not a member of prosecution will entirely be dictated by the accused to
the bar although evidence shows that she was the detriment of the eventual resolution of the case.
knowledgeable in the rules of legal procedure. The (People v. Larranaga, G.R. No. 138874-75, Feb. 3,
accused now allege that their conviction should be 2004)
set aside since they were deprived of due process.
Are they correct? Q: A police officer told Alex, Ralph, Nats, Andrew and
Ojay to be in a police line-up with other five suspects.
A: No. Sec. 1 of Rule 115 of the Revised Rules of Nats told the police that he wants to be excused in
Criminal Procedure states that "upon motion, the the police line-up until his lawyer, Atty. Barbaza,
accused may be allowed to defend himself in person arrives. Is Nats entitled to the right to counsel at that
when it sufficiently appears to the court that he can stage?
properly protect his rights without the assistance of
counsel." By analogy, but without prejudice to the A: No. The investigation has not yet commenced.
sanctions imposed by law for the illegal practice of law,
it is amply shown that the rights of accused were Q: At what stage shall Nats have the right to counsel?
sufficiently and properly protected by the appearance
of Ms. Cantos. An examination of the record will show A: Nats shall have the right to counsel from the
that she knew the technical rules of procedure. Hence, moment the investigating officer starts to ask
there was a valid waiver of the right to sufficient questions to illicit information or confession or
representation during the trial, considering that it was admission. This right, however, can be waived but said

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waiver shall be made in writing and in the presence of rights under Sec. 12 are guarantees to preclude the
counsel. (Gamboa vs Judge Cruz GR. No. L-56291, Jun. slightest use of coercion by the State and not to
27, 1988) prevent the suspect from freely and voluntarily telling
the truth. (People v. Andan ,G.R. No. 116437, March 3,
Q: Ian Loy is in police custody. Bothered and 1997)
remorseful, he spontaneously admitted guilt and that
he is the one who killed Dr. Neil. Is his confession Q: Accused Antonio Lauga was charged and convicted
admissible? of the crime of rape of his thirteen-year old daughter,
AAA. During the proceedings, Juan Paulo
A: Yes. Ian Loys statement is a spontaneous Nepomuceno, a bantaybayan in the barangay,
statement. It was not elicited through questioning by testified that the accused confessed that he had in
the authorities. (People v. Cabiles, G.R. No. 112035, fact raped AAA. The trial court found him guilty of the
Jan. 16, 1998) crime of rape. Lauga contends that the confession he
made to Nepomuceno is inadmissible in evidence. Is
Q: Arthur had no counsel while giving his statement his contention tenable?
because Atty. Sol Santos, whom he called by
telephone encountered heavy traffic along Sucat A: Yes. A barangay bantaybayan is considered a public
Road. The interrogation was about to end when Atty. officer and any extrajudicial confession made to him
Santos arrived. Atty. Santos immediately requested without the assistance of counsel is inadmissible in
the police investigator to allow him to talk to Arthur. evidence as provided for under Sec. 12, Art. III of the
She discussed with Arthur regarding the statements Constitution. (People v. Lauga, GR. No. 186228, March
he already made. Thereafter, Arthur signed the 15, 2010)
statement. Is the constitutional requirement about
the presence of counsel complied with? RIGHT TO BE INFORMED OF THE NATURE AND
CAUSE OF ACCUSATION
A: No. The right to counsel was a right to effective
counsel from the first moment of questioning and all Rationale of the right to be informed
throughout. (People v. De Jesus, G.R. No. 91535, Sept.
2, 1992) 1. To furnish the accused with such a description of
the charge against him as will enable him to make
Q: Mayor Pineda arrived and proceeded to the his defense
investigation room. Upon seeing the mayor, 2. To avail himself of his conviction or acquittal for
appellant Flores approached him and whispered a protection against further prosecution for the
request to talk privately. The mayor led appellant to same cause
the office of the Chief of Police and there, Flores 3. To inform the court of the facts alleged so that it
broke down and said "Mayor, patawarin mo ako! I may decide whether they are sufficient in law to
will tell you the truth. I am the one who killed support a conviction, if one should be had (US v.
Villaroman." The mayor opened the door of the room Karelsen G.R. No. 1376, Jan. 21, 1904)
to let the public and media representatives witness
the confession. The mayor first asked for a lawyer to Determination of the real nature of the crime
assist appellant but since no lawyer was available she
ordered the proceedings photographed and Description, not designation of the offense, is
videotaped. In the presence of the mayor, the police, controlling. The real nature of the crime charged is
representatives of the media and appellant's own determined from the recital of facts in the
wife and son, appellant confessed his guilt. His information. It is neither determined based on the
confession was captured on videotape and covered caption or preamble thereof nor from the specification
by the media nationwide. Did such uncounselled of the provision of the law allegedly violated.
confession violate the suspects constitutional rights?
Requisites for properly informing the accused of the
A: No. A confession given to the mayor may be nature and cause of accusation
admitted in evidence if such confession by the suspect
was given to the mayor as a confidant and not as a law 1. Information must state the name of the accused
enforcement officer. In such a case, the uncounselled 2. Designation given to the offense by statute
confession did not violate the suspects constitutional 3. Statement of the acts or omission so complained
rights. What the constitution bars is the compulsory of as constituting the offense
disclosure of incriminating facts or confessions. The 4. Name of the offended party

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125 FACULTY OF CIVIL LAW
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5. Approximate time and date of commission of the Right to impartial trial


offense
6. Place where offense was committed Impartial trial meant that the accused is entitled to
7. Every element of the offense must be alleged in cold neutrality of an impartial judge, one who is free
the complaint or information from interest or bias.

NOTE: The accused cannot be convicted thereof if the Right to public trial
information fails to allege the material elements of the
offense even if the prosecution is able to present evidence Trial must be public in order to prevent possible
during the trial with respect to such elements.
abuses which may be committed against the accused.
The attendance at the trial is open to all, irrespective
The right to be informed of the nature and cause of
of their relationship to the accused.
accusation cannot be waived. However, the defense
may waive the right to enter a plea and let the court
XPN: If the evidence to be adduced is offensive to
enter a plea of not guilty.
decency or public morals, the public may be excluded.
Right to be informed vis--vis void-for-vagueness
NOTE: Under Sec. 21, Rule 119 of the Rules of Criminal
doctrine Procedure it is provided that the judge may motu proprio
exclude the public from the court room when the evidence
The accused is also denied the right to be informed of to be adduced is offensive to decency and public morals.
the charge against him, and to due process as well,
where the statute itself is couched in such indefinite RIGHT OF CONFRONTATION
language that it is not possible for men of ordinary
intelligence to determine therefrom what acts or Purpose of the right of confrontation
omissions are punished. In such a case, the law is
deemed void. 1. To afford the accused an opportunity to test the
testimony of a witness by cross-examination;
Variance doctrine 2. To allow the judge to observe the deportment of
the witness.
In spite of the difference between the crime that was
charged and that which was eventually proved, the If the failure of the accused to cross-examine a witness
accused may still be convicted of whatever offense is due to his own fault or was not due to the fault of
that was proved even if not specifically set out in the the prosecution, the testimony of the witness should
information provided it is necessarily included in the not be excluded.
crime charged. (Teves v. Sandiganbayan, G.R. No.
154182, Dec. 17, 2004) The affidavits of witnesses who are not presented
during trial are inadmissible for being hearsay. The
RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL accused is denied the opportunity to cross-examine
the witnesses.
Right to speedy trial
NOTE: Depositions are admissible under circumstances
The term speedy means free from vexatious, provided by the Rules of Court.
capricious and oppressive delays. The factors to be
considered are: RIGHT TO COMPULSORY PROCESS TO SECURE
1. Time expired from the filing of information ATTENDANCE OF WITNESS AND PRODUCTION OF
2. Length of delay EVIDENCE
3. Reasons for the delay
4. Assertion or non-assertion of the right by the Means available to the parties to compel the
accused attendance of witnesses and the production of
5. Prejudice caused to the defendant documents and things needed in the prosecution or
defense of a case
NOTE: The denial of the right to speedy trial is a ground for
acquittal. 1. Subpoena ad testificandum and subpoena duces
tecum
The right to speedy trial [Sec. 14 (2)] particularly refers to 2. Depositions and other modes of discovery
criminal prosecutions which are at the trial stage, while the
3. Perpetuation of testimonies
right to speedy disposition of cases (Sec. 16) applies to all
cases before judicial, quasi-judicial or administrative bodies.

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Ad Testificandum v. Duces Tecum


NOTE: While the accused is entitled to be present during
AD TESTIFICANDUM DUCES TECUM promulgation of judgment, the absence of his counsel during
A process directed to a person The person is also such promulgation does not affect its validity.
requiring him to attend and to required to bring
testify at the hearing or trial of with him any Promulgation of judgment in absentia is valid
an action, or at any books, provided the following are present
investigation conducted by documents, or
competent authority, or for other things 1. Judgment be recorded in the criminal docket
the taking of his deposition. under his control. 2. Copy be served upon accused or counsel

NOTE: Recording the decision in the criminal docket of the


NOTE: The subpoena duces tecum shall contain a reasonable
court satisfies the requirement of notifying the accused of
description of the books, documents or things demanded
the decision wherever he may be. (Estrada v. People, G.R.
which must appear to the court as prima facie relevant.
No. 162371, Aug. 25, 2005)

Requirements for the exercise of the right to secure


WRIT OF HABEAS CORPUS
attendance of witness
Writ of Habeas Corpus
1. The witness is really material
2. The attendance of the witness was previously
The writ of habeas corpus is a writ directed to the
obtained
person detaining another, commanding him to
3. The witness will be available at the time desired
produce the body of the detainee at a designated time
4. No similar evidence could be obtained
and place, and to show the cause of his detention.
NOTE: Right to cross-examine is demandable only during
trials. Thus, it cannot be availed of during preliminary Privilege of the Writ of Habeas Corpus
investigations.
The right to have an immediate determination of the
Principal exceptions to the right of confrontation legality of the deprivation of physical liberty.

1. Admissibility of dying declarations and all Requisites for the suspension of the privilege of the
exceptions to the hearsay rule writ of habeas corpus
2. Trial in absentia under Sec.14 (2) of Art. III of the
Constitution 1. There must be an invasion or rebellion; and
3. With respect to child testimony 2. Public safety requires the suspension

NOTE: The invasion and rebellion must be actual and not


TRIAL IN ABSENTIA
merely imminent.

Trial in absentia may proceed if the following NOTE: The writ applies only to persons judicially charged for
requisites are present rebellion or offenses inherent in or directly connected with
invasion and anyone arrested or detained during suspension
1. Accused has been validly arraigned must be charged within 3 days. Otherwise, he should be
2. Accused has been duly notified of the dates of released.
hearing
3. Failure to appear is unjustifiable Q: Micheal, Victorias husband, disappeared without
a trail. A source says that he saw Micheal at CIDG at
The presence of the accused is mandatory in the Camp Crame, being questioned for the death of Nida
following instances Blanca. Victoria then filed a petition for habeas
corpus in the Regional Trial Court. Will the petition
1. During arraignment and plea prosper?
2. During trial, for identification, unless the accused
has already stipulated on his identity during the A: No. The Court held that the grant of relief in a
pre-trial and that he is the one who will be habeas corpus proceeding is not predicated on the
identified by the witnesses as the accused in the disappearance of a person, but on his illegal detention.
criminal case It may not be used as a means of obtaining evidence
3. During promulgation of sentence, unless for a on the whereabouts of a person, or as a means of
light offense finding out who has specifically abducted or caused

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the disappearance of a certain person. When forcible Main advantages of the Writ of Amparo over the Writ
taking and disappearance not arrest and detention of Habeas Corpus
have been alleged, the proper remedy is not habeas
corpus proceedings, but criminal investigation and WRIT OF
WRIT OF
proceedings. (Martinez v. Mendoza 499 SCRA 234, BASIS HABEAS
AMPARO
2006) CORPUS
As to Interim reliefs, No interim
Q: Jane Lopez was arrested by the military on the availability of such as reliefs
basis of a mission order issued by the Department of interim reliefs temporary
National Defense. A petition for habeas corpus was protection
filed. The writ was issued. Later, an information for order, witness
rebellion was filed against Jane. The military moved protection
that the petition should be dismissed for having order,
become moot and academic. Decide. inspection
order and
A: The function of the special proceeding of habeas production
corpus is to inquire into the legality of ones detention. order, are
Now that the detainees incarceration is by virtue of a available
judicial order in relation to criminal cases As to acts Covers acts Limited to
subsequently filed against them, the remedy of habeas covered which violate cases
corpus no longer lies. The writ has served its purpose. or threaten to involving
(Ilagan v. Enrile, G.R. No. 70748, Oct. 21, 1985) violate the actual
right to life, violation of
WRIT OF AMPARO, HABEAS DATA liberty and right to
AND KALIKASAN security liberty
As to General denial Mere denial
Writ of Amparo allowability of is not allowed; is a ground
denial detailed return for dismissal
A remedy available to any person whose right to life, is required of of the
liberty, and security has been violated or is threatened the petition
with violation by an unlawful act or omission of a respondent
public official or employee, or of a private individual or As to No Presumption
entity. The writ covers extralegal killings and enforced applicability of presumption of regular
disappearances or threats thereof. (Rule on Writ of presumption of regularity; performance
Amparo) of regularity must prove of official
observance of duty is
Extralegal killings extraordinary applicable
diligence
Killings committed without due process of law, i.e., As to Enforceable Only
without legal safeguards or judicial proceedings. enforceability anywhere in enforceable
the Philippines anywhere in
Enforced disappearance the Phil. if
filed with the
An arrest, detention or abduction of a person by a CA or SC
government official or organized groups or private justice
individuals acting with the direct or indirect As to payment Exempted Not
acquiescence of the government. It is further of docket fees from payment exempted
characterized by the refusal of the State to disclose the of docket fees
fate or whereabouts of the person concerned or a As to effect of Release of Release of
refusal to acknowledge the deprivation of liberty release of detained detained
which places such persons outside the protection of detained person does person
law. person not render the renders it
petition moot moot and
and academic academic

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Q: Engr. Peregrina disappeared one day and his wife A: Yes. While Almarius and Aaron were detained, they
filed a petition for the Writ of Amparo with the CA were threatened that if they escaped, their families,
directed against the PNP, claiming that the including them, would be killed. In time, they were
unexplained uncooperative behavior of the able to escape. The condition of the threat to be killed
respondents request for help and their failure and has come to pass. It should be stressed that they are
refusal to extend assistance in locating the now free from captivity not because they were
whereabouts of Peregrina were indicative of their released by virtue of a lawful order or voluntarily freed
actual physical possession and custody of the missing by their abductors. It ought to be recalled that
engineer. The PNP was held responsible for the towards the end of their ordeal their captors even told
enforced disappearance of Engr. Peregrina. Is this them that they were still deciding whether they
valid? should be executed.

A: Yes. The government in general, through the PNP The possibility of Almarius and Aaron being executed
and the PNP-CIDG, and in particular, the Chiefs of stared them in the eye while they were in
these organizations together with Col. Kasim, should detention. With their escape, this continuing threat
be held fully accountable for the enforced to their life is apparent, more so now that they have
disappearance of Peregrina. Given their mandates, the surfaced and implicated specific officers in the military
PNP and the PNP-CIDG officials and members were the not only in their own abduction and torture, but also
ones who were remiss in their duties when the in those of other persons known to have disappeared
government completely failed to exercise such as April, Mela, and Sol, among others.
extraordinary diligence that the Amparo rule requires.
(Razon v. Tagitis, G.R. No. 182498, Dec. 3, 2009) Understandably, since their escape, they have been
under concealment and protection by private citizens
Q: Fr. Reyes was charged with rebellion and his name because of the threat to their life, liberty and
was included in the hold departure list. The case was security. The threat vitiates their free will as they are
later on dismissed but the Hold Departure Order still forced to limit their movements or activities. Precisely
subsisted. Can the Writ of Amparo be invoked to because they are being shielded from the
protect his right to travel? perpetrators of their abduction, they cannot be
expected to show evidence of overt acts of threat such
A: No. The restriction on his right to travel as a as face-to-face intimidation or written threats to their
consequence of the pendency of the criminal case filed life, liberty and security. Nonetheless, the
against him was not unlawful. Fr. Reyes also failed to circumstances of their abduction, detention, torture
establish that his right to travel was impaired in the and escape reasonably support a conclusion that
manner and to the extent that it amounted to a serious there is an apparent threat that they will again be
violation of his right to life, liberty, and security, for abducted, tortured, and this time, even
which there exists no readily available legal remedy. executed. These constitute threats to their liberty,
(Reyes v. CA, G.R. No. 182161, Dec. 3, 2009) security, and life, actionable through a petition for a
Writ of Amparo. (Sec. of National Defense and AFP
Q: Almarius and Aaron were abducted by the CAFGU. Chief of Staff v. Manalo, G.R. No. 180906, Oct. 7, 2008)
They were taken to various military camps, put in
chains and tortured. While detained, they were Liability of the President for the extralegal killings
threatened that if they escape, they and their families and enforced disappearances or threats committed
would be killed. While in captivity they met April, by a public official or employee under the principle
Mela, and Sol who were also prisoners then of command responsibility when the following
eventually, Almarius and Aaron were able to escape. requisites are present:

Presently, Almarius and Aaron are now in protective 1. The existence of a superior-subordinate
custody under private individuals. Almarius and relationship between the accused as superior and
Aaron then filed a petition for the issuance of the the perpetrator of the crime as his subordinate;
Writ of Amparo, implicating several officers of the 2. The superior knew or had reason to know that the
military as their abductors. They allege that their crime was about to be or had been committed;
cause of action consists in the threat to their right to 3. The superior failed to take the necessary and
life and liberty, and a violation of their right to reasonable measures to prevent the criminal acts
security. Considering the fact that they have already or punish the perpetrators thereof.
escaped, will the petition still prosper? 4. The superior has knowledge that a crime or
offense shall be committed, is being committed,

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129 FACULTY OF CIVIL LAW
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or has been committed by his subordinates, or by WRIT OF KALIKASAN


others within his area of responsibility and,
despite such knowledge, he did not take Writ of Kalikasan
preventive or corrective action either before,
during, or immediately after its commission; and A remedy available to a natural or juridical person,
5. President ceases to occupy the office by entity authorized by law, peoples organization, non-
impeachment or expiration of term and shown by governmental organization, or any public interest
substantial evidence. group accredited by or registered with any
government agency, on behalf of persons whose
NOTE: Knowledge of the commission of irregularities, constitutional right to a balanced and healthful
crimes or offenses is presumed when: ecology is violated, or threatened with violation by an
1. The acts are widespread within the government unlawful act or omission of a public official or
officials area of jurisdiction; employee, or private individual or entity, involving
2. The acts have been repeatedly or regularly committed environmental damage of such magnitude as to
within his area of responsibility; and
prejudice the life, health or property of inhabitants in
3. Members of his immediate staff or office personnel is
involved. (In Re: Petition for the Writ of Amparo and
two or more cities or provinces. (A.M. No. 09-6-8-SC)
Habeas Data in Favor of Noriel H. Rodriguez v.
Macapagal-Arroyo, GR. No. 193160, Nov. 15, 2011) Essence for the promulgation of the writ

WRIT OF HABEAS DATA There is an increasing awareness of the need to


protect the environment and conserve the finite
The writ of habeas data is a remedy available to any resources of the Earth. In fact, the urgent call for the
person whose right to privacy in life, liberty or security preservation of the environment was recognized by
is violated or threatened by an unlawful act or the international community as early as June 16, 1972
omission of a public official or employee, or of a during the Stockholm Declaration. After almost two
private individual or entity engaged in the gathering, decades, the Stockholm Declaration was reaffirmed by
collecting or storing of data or information regarding the Rio Declaration.
the person, family, home and correspondence of the
aggrieved party.(Sec. 1, The Rule on the Writ of Habeas Our very own Constitution also considers as a State
Data, A. M. No. 08-1-16-SC, Jan. 22, 2008) policy the obligation of the State to protect and
advance the right of the people to a balanced and
A writ of habeas data cannot be issued to protect healthful ecology in accord with the rhythm and
purely property or commercial concern. It bears harmony of nature. This right was recognized as an
reiteration that like the writ of amparo, habeas data enforceable right in the case of Oposa v. Factoran
was conceived as a response, given the lack of wherein the Supreme Court recognized the
effective and available remedies, to address the Intergenerational Responsibility of the people over
extraordinary rise in the number of killings and the Earths natural resources. The first issue it resolved
enforced disappearances. Its intent is to address was the issue of locus standi on the part of the
violations of or threats to the rights to life, liberty or petitioners who claimed to represent their generation,
security as a remedy independently from those and generations yet unborn. The Court ruled in favor
provided under prevailing rules. Writs of amparo and of the petitioners saying that the minor petitioners
habeas data will not issue to protect purely property assertion of their right to a sound environment is a
or commercial concerns nor when the grounds performance of their duty to preserve such for the
invoked in support of the petitions therefore are vague succeeding generations.
or doubtful. Employment constitutes a property right
under the context of the due process clause of the More importantly, the case of Oposa clarified the fact
constitution. It is evident that respondents that although the right to a balanced and healthful
reservations on the real reasons for her transfer-a ecology is found in the Declaration of Principles of the
legitimate concern respecting the terms and Constitution, this right is of equal importance with the
conditions of ones employment- are what prompted civil and political rights found in the Bill of Rights. Thus,
her to adopt the extraordinary remedy of habeas data. in the exercise of the Supreme Courts power to
(Manila Electric Company v. Lim, 632 SCRA 195, 2010) promulgate rules concerning the protection and
enforcement of constitutional rights , an
environmental writ was established to further to
protect a persons environmental right when the
measures taken by the executive and the legislative
are insufficient.

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Nature of the writ of kalikasan writ does not preclude the filing of separate civil,
criminal, or administrative actions, as discussed in the
The Writ of kalikasan is an extraordinary remedy preceding chapter. The petitioner does not need to
which may be issued depending on the magnitude of pay docket fees. While this is similar to the rule on
the environmental damage. The environmental filing fees for civil and criminal cases under the Rules,
damage must be one which prejudices the life, health the exemption from payment of docket fees under this
or property of inhabitants in two or more cities or remedy is a necessary consequence of the fact that no
provinces, or that which transcends political and award of damages to private individuals can be made
territorial boundaries. under the writ. In comparison to civil or criminal cases
under the Rules of Civil Procedure, the filing fees need
It is also a remedy which enforces the right to not be paid at the time of filing but the same shall be
information by compelling the government or a imputed from the award of damages that may be given
private entity to produce information regarding the to the complainant in the judgment.
environment that is within their custody.
INCRIMINATION CLAUSE
Persons who may file a petition for a writ of kalikasan
Basis
The Writ of Kalikasan may be availed of by any of the
following: No person shall be compelled to be a witness against
a. Natural or juridical persons; himself. (Sec. 17, Art. III of the Constitution)
b. Entities authorized by law; or
c. Peoples organizations, non-governmental NOTE: This constitutional privilege has been defined as a
organizations, or any public interest group protection against testimonial compulsion, but this has since
accredited by or registered with any government been extended to any evidence communicative in nature
agency. acquired under circumstances of duress (People v. Olvis, G.R.
No. 71092, Sept. 30, 1987)
The petition must be on behalf of persons whose What is prohibited is the use of physical or moral compulsion
constitutional right to ahe balanced and healthful to extort communication from the witness or to otherwise
ecology is violated and involving environmental elicit evidence which would not exist were it not for the
damage that injures the life, health or property of actions compelled from the witness.
inhabitants in two or more cities or provinces.
The right is available in:
Persons against whom a petition for a writ of
kalikasan is filed 1. Criminal cases
2. Civil cases
As mentioned in the foregoing paragraphs, the Writ of 3. Administrative cases
Kalikasan may be applied against: 4. Impeachment
a. The government, as represented by a public 5. Other legislative investigations that possess a
official or employee; or criminal or penal aspect
b. A private individual or entity.
NOTE: It does not apply to private investigations done by
Courts where the petition for a writ of kalikasan is private individual. (BPI v. CASA, GR.No.149454, May 28,
filed 2004) When the privilege against self-incrimination is
violated outside of court, say, by the police, then the
testimony, as already noted, is not admissible under the
The petition is filed either with (a) the Supreme Court;
exclusionary rule. When the privilege is violated by the court
or (b) any station of the Court of Appeals. itself, that is, by the judge, the court is ousted of its
jurisdiction, all its proceedings are null and void, and it is as
NOTE: The rationale for this is that the jurisdiction of both if no judgment has been rendered. (Chavez v. CA, G.R. No. L-
tribunals is national in scope which corresponds with the 29169, Aug. 19, 1968)
magnitude of the environmental damage contemplated by
the Rules.
Incriminating question
Procedure for the issuance of a writ of kalikasan
A question tends to incriminate when the answer of
the accused or the witness would establish a fact
The petition shall file his application for a Writ of
which would be a necessary link in a chain of evidence
kalikasan with the proper tribunal as specified in the
preceding paragraph. The filing of a petition for the

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to prove the commission of a crime by the accused or Q: Fiscal Jessa Bernardo petitioned the lower court to
the witness. order Art to appear before the former to take
dictation in Arts own handwriting to determine
NOTE: The privilege against self-incrimination is not self- whether or not it was Art who wrote certain
executing or automatically operational. It must be claimed. documents supposed to be falsified. The lower court
It follows that the right may be waived, expressly, or granted the petition of the fiscal. Art refused what
impliedly, as by a failure to claim it at the appropriate time.
the fiscal demanded and sought refuge in the
constitutional provision of his right against self-
Q: Jane Lopez, a witness, is ordered by the judge to incrimination. Is Arts contention valid?
testify in Court but she refused to abide by the said
order invoking her right against self-incrimination. A: Yes. Under Sec. 17, Art. III of the 1987
Can Jane invoke such right? Constitution, no person shall be compelled to be
a witness against himself. Since the provision
A: No. The privilege against self-incrimination can be prohibits compulsory testimonial incrimination, it
claimed only when the specific question, incriminatory does not matter whether the testimony is taken by
in character, is actually addressed to the witness. It oral or written. Writing is not purely a mechanical act
cannot be claimed at any other time. It does not give a because it requires the application of intelligence and
witness the right to disregard a subpoena, to decline attention. The purpose of the privilege is to avoid and
to appear before the court at the time appointed. prohibit thereby the repetition and recurrence of
(Rosete et. al. v. Lim, G.R. No. 136051, June 8, 2006) compelling a person, in a criminal or any other
case, to furnish the missing evidence necessary for
Right against self incrimination of an accused v. Right his conviction. (Bermudez v. Castillo, July 26, 1937;
against self incrimination of a witness Beltran v. Samson, G.R. No. 32025, Sept. 23, 1929)

ACCUSED ORDINARY WITNESS NOTE: There is similarity between one who is compelled to
Can refuse to take the Cannot refuse to take produce a private document (Boyd v. US, 1886), and one who
witness stand the witness stand; can is compelled to furnish a specimen of his handwriting, for in
altogether by invoking only refuse to answer both cases, the witness is required to furnish evidence
the right against self- specific questions which against himself.
incrimination would incriminate him
in the commission of an Q: During custodial investigation, Jez was asked to
offense sign letters without the assistance of the counsel. The
letters were admitted in evidence and Jez was
NOTE: An accused occupies a different tier of protection convicted. On appeal, Jezs counsel Zenia argued that
from an ordinary witness. Whereas an ordinary witness may the signing of Jezs and her co-accuseds names was
be compelled to take the witness stand and claim the not a mere mechanical act but one which required
privilege as each question requiring an incriminating answer the use of intelligence and therefore constitutes self-
is shot at him, an accused may altogether refuse to take the incrimination. Is there a violation of the accuseds
witness stand and refuse to answer any and all questions. right against self-incrimination?
For, in reality, the purpose of calling an accused as a witness
for the People would be to incriminate him. The rule
positively intends to avoid and prohibit the certainly A: None. The purpose for securing the signature of
inhuman procedure of compelling a person to furnish the petitioner on the envelopes was merely to
missing evidence necessary for his conviction (Chavez v. authenticate the envelopes as the ones seized from
Court of Appeals, G.R. L-29169, August 1968) him. Moreover, when the signatures of the accused
were affixed, such signatures were actually evidence
Q: Brian was asked by Atty. Tamayo to re-enact how of admission obtained from the petitioner and his co-
he robbed the BPI Bank. Brians counsel objected on accused under circumstances constituting custodial
the ground that the question is incriminating. Can investigation. Under the Constitution, among the
Brian validly invoke his right against self- rights of a person under custodial investigation is the
incrimination? right to have competent and independent counsel
preferably of his own choice and if the person cannot
A: Yes. A person who is made to re-enact a crime may afford the services of a counsel, that he must be
rightfully invoke his privilege against self- provided with one. It is on this ground that the letters
incrimination, because by his conduct of acting out with the signature of the accused could be rejected
how the crime was supposedly committed, he thereby (Marcelo v. Sandiganbayan, G.R.No. 109242, January
practically confesses his guilt by action which is as 26, 1999).
eloquent, if not more so, than words.

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Inapplicability of the right against self-incrimination An immunity agreement was entered between Jesus
to juridical persons and the Republic which he undertook to testify for his
government and provide its lawyers with information
It is not available to juridical persons as it would be a needed to prosecute the case. Said agreement gave
strange anomaly to hold that a state having chartered Jesus an assurance that he shall not be compelled to
a corporation to make use of certain franchises, could give further testimonies in any proceeding other than
not, in the exercise of sovereignty, inquire how these the present matter. Jesus complied with his
franchises had been employed, and whether they have undertaking. But after 18 years, Sandiganbayan
been abused, and demand the production of the issued a subpoena against him, commanding him to
corporate books and papers for that purpose. testify and produce documents before said court in
(Bataan Shipyard and Engineering Corporation v. PCG, an action filed against Herminio. Can Jesus be
GR. No. 75885, May 27, 1987) compelled to testify before the Sandiganbayan?

IMMUNITY STATUTES A: No. A contract is the law between the parties. It


cannot be withdrawn except by their mutual consent.
DERIVATIVE-USE TRANSACTIONAL In the case at bar, the Republic, through the PCGG,
IMMUNITY IMMUNITY offered Jesus not only criminal and civil immunity but
Only prevents the Completely protects the also immunity against being compelled to testify in any
prosecution from using witness from future proceeding other than the civil and arbitration cases
the witness' own prosecution for crimes identified in the agreement, just so he would agree to
testimony, or any related to his or her testify. When the Republic entered in such agreement,
evidence derived from testimony. it needs to fulfill its obligations honorably as Jesus did.
the testimony, against The government should be fair. (Disini v.
him. However, should Sandiganbayan, G.R. No. 180564, June 22, 2010)
the prosecutor acquire
evidence substantiating Q: Lisette and Angela were called before the AGRAVA
the supposed crime Board to elicit and determine the surrounding facts
independent of the and circumstances of the assassination of Benigno
witness's testimony Aquino Sr. Sec. 5 of PD 1886 creating the Board
the witness may then be compels a person to take the witness stand, testify or
prosecuted for the produce evidence, under the pain of contempt if they
same. failed or refused to do so. Lisette and Angela gave
Does not protect the Gives the witness the their testimonies without having been informed of
witness quite as much, most protection from their right to remain silent and that any statement
because here the prosecution because given by them may be used against them. The Board
witness is only that witness can never then used the information from the testimonies of
protected from future be prosecuted in the Lisette and Angela to support the prosecution's case
prosecution based on future for any crimes against them in Sandiganbayan. The Board contends
exactly what he or she related to his or her that the fact that Lisette and Angela testified before
says on the witness testimony. the Board constituted as a valid waiver of their
stand, and not from any constitutional rights to remain silent and not to be
evidence the prosecutor Also known as blanket compelled to be a witness against themselves.
finds to substantiate the or total immunity. 1. Was there a valid waiver of the rights?
witness crime. 2. Are the testimonies of Lisette and Angela
admissible in court?
Q: The Republic of the Philippines filed a case against 3. How can the unconstitutional effects be
Westinghouse Corporation before the US District reconciled?
Court due to the belief that Westinghouse contract
for the construction of the Bataan Nuclear power A:
plant, which was brokered by Herminio Disinis 1. None. In the case at bar, Lisette and Angela were
company, had been attended by anomalies. Having under the directive of law and under the
worked as Herminios executive in the latters compulsion of fear for the contempt powers of
company for 15 years, the Republic asked Jesus Disini the Board. They were left with no choice but to
to give his testimony regarding the case. provide testimonies before the Board.

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2. No. The manner in which testimonies were taken whipping post, or in the pillory, burning at the stake,
from Lisette and Angela falls short of the breaking on the wheel, disemboweling, and the like.
constitutional standards both under the due Fine and imprisonment would not thus be within the
process clause and under the exclusionary rule. prohibition. It takes more than merely being harsh,
excessive, out of proportion, or severe for a penalty to
3. As a rule, such infringement of constitutional right be obnoxious to the Constitution. The fact that the
renders inoperative the testimonial compulsion, punishment authorized by the statute is severe does
meaning, the witness cannot be compelled to not make it cruel and unusual. (Corpuz v. People, G.R.
answer UNLESS a co-extensive protection in the No. 180016, April 29, 2014)
form of IMMUNITY is offered. The only way to
cure the law of its unconstitutional effects is to NOTE: A penalty is cruel and inhuman if it involves torture or
construe it in the manner as if IMMUNITY had in lingering suffering. (ex. being drawn and quartered)
fact been offered. The applicability of the
A penalty is degrading if it exposes a person to public
immunity granted by P.D. 1886 cannot be made to
humiliation. (ex. being tarred and feathered, then paraded
depend on a claim of the privilege against self-
throughout town)
incrimination which the same law practically
strips away from the witness. (Galman v.
NON-IMPRISONMENT FOR DEBTS
Pamaran, G.R. Nos. 71208-09, Aug. 30, 1985)
Basis
INVOLUNTARY SERVITUDE AND POLITICAL
PRISONERS
No person shall be imprisoned for debt or non-
payment of a poll tax. (Sec. 20, Art. III of the
Involuntary servitude Constitution)
Condition where one is compelled by force, coercion, Debt
or imprisonment, and against his will, to labor for
another, whether he is paid or not. Any civil obligation arising from contract
GR: No involuntary servitude shall exist. Poll tax
XPNs: A specific sum levied upon any person belonging to a
1. Punishment for a crime for which the party has certain class without regard to property or occupation
been duly convicted (e.g. Community tax)
2. Personal military or civil service in the interest of
national defense NOTE: A tax is not a debt since it is an obligation arising from
3. In naval enlistment, a person who enlists in a law. Hence, its non-payment maybe validly punished with
merchant ship may be compelled to remain in imprisonment. Only poll tax is covered by the constitutional
service until the end of a voyage provision.
4. Posse comitatusor the conscription of able-bodied
men for the apprehension of criminals If an accused fails to pay the fines imposed upon him, this
5. Return to work order issued by the DOLE may result in his subsidiary imprisonment because his
liability is ex delicto and not ex contractu.
Secretary or the President
6. Minors under patria potestas are obliged to obey
NOTE: Generally, a debtor cannot be imprisoned for failure
their parents
to pay his debt. However, if he contracted his debt through
fraud, he can be validly punished in a criminal action as his
EXCESSIVE FINES AND CRUEL AND responsibility arises not from the contract of loan but from
INHUMAN PUNISHMENTS commission of a crime. (Lozano v. Martinez, G.R. No. L-
63419, Dec.18, 1986)
Coverage
RIGHT AGAINST DOUBLE JEOPARDY
It has long been held that the prohibition of cruel and
unusual punishments is generally aimed at the form or Right against Double Jeopardy
character of the punishment rather than its severity in
respect of duration or amount, and applies to No person shall be twice put in jeopardy of
punishments which public sentiment has regarded as punishment for the same offense. If an act is punished
cruel or obsolete, for instance, those inflicted at the by a law and an ordinance, conviction or acquittal

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under either shall constitute a bar to another Q: Hans, a writer in Q Magazine, published an article
prosecution for the same act about Carlos illicit affairs with other women. The
magazine also happened to have a website where the
Requisites same article was published. Carlo then filed a libel
case against Hans both under the Revised Penal Code
1. Valid complaint or information and the Cybercrime Law. Is there a violation of the
proscription against double jeopardy?
NOTE: Double jeopardy does not attach in preliminary
investigation. A: Yes. There should be no question that if the
published material on print, said to be libelous, is again
2. Filed before a competent court posted online or vice versa, that identical material
3. To which the defendant had pleaded cannot be the subject of two separate libels. The two
4. Defendant was previously acquitted or convicted, offenses, one, a violation of Art. 353 of the Revised
or the case dismissed or otherwise terminated Penal Code and the other a violation of Sec. 4(c)(4) of
without his express consent R.A. 10175 involve essentially the same elements and
are in fact one and the same offense. Online libel
NOTE: Consent of the accused to the dismissal cannot be
implied or presumed; it must be expressed as to have no under Sec. 4(c)(4) is not a new crime but is one already
doubt as to the accuseds conformity. (Caes v. Intermediate punished under the Art. 353. Sec. 4(c)(4) merely
Appellate Court, 179 SCRA 54) establishes the computer system as another means of
publication. Charging the offender under both laws
When the dismissal is made at the instance of the accused, would be a blatant violation of the proscription against
there is no double jeopardy. (People v. Quizada, 160 SCRA double jeopardy. (Disini v. Secretary of Justice, G.R. No.
516) 203335, Feb. 11, 2014)
The grant of a demurrer to evidence is equivalent to an
Doctrine of Supervening Event
acquittal, and any further prosecution of the accused would
violate the constitutional proscription against double
jeopardy. (San Vicente v. People, G.R. No. 132081, November The accused may still be prosecuted for another
28, 2002) offense if a subsequent development changes the
character of the first indictment under which he may
Related protections provided by the right against have already been charged or convicted
double jeopardy
Q: Jet was convicted for Reckless Imprudence
1. Against a second prosecution for the same Resulting in Slight Physical Injuries. Can he still be
offense after acquittal; prosecuted for Reckless Imprudence Resulting in
2. Against a second prosecution for the same Homicide and Damage to Property arising from the
offense after conviction; same incident?
3. Against multiple punishments for the same
offense. A: No. The doctrine that reckless imprudence under
Art. 365 is a single quasi-offense by itself and not
Exceptions to the right against double jeopardy merely a means to commit other crimes such that
conviction or acquittal of such quasi-offense bars
1. Dismissal is based on insufficiency of evidence; subsequent prosecution for the same quasi-offense,
2. Denial of the right to speedy trial regardless of its various resulting acts. Reason and
3. Of course, on occasions, a motion for precedent both coincide in that once convicted or
reconsideration after an acquittal is possible. But acquitted of a specific act of reckless imprudence, the
the grounds are exceptional and narrow as when accused may not be prosecuted again for that same
the court that absolved the accused gravely act. For the essence of the quasi offense of criminal
abused its discretion, resulting in loss of negligence under Art. 365 of the Revised Penal Code
jurisdiction, or when a mistrial has occured. In any lies in the execution of an imprudent or negligent act
of such cases, the State masy assail the decision that, if intentionally done, would be punishable as a
by special civil action of certiorari under Rule 65 felony. The law penalizes thus the negligent or careless
(People v. Tria-Triona, 462 SCRA 463, July 15, act, not the result thereof. The gravity of the
2005) consequence is only taken into account to determine
4. An appeal from order of dismissal shall not the penalty, it does not qualify the substance of the
constitute double jeopardy offense. And, as the careless act is single, whether the
injurious result should affect one person or several

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persons, the offense (criminal negligence) remains one jeopardy of being convicted of the crime of serious
and the same, and cannot be split into different crimes physical injuries; and that another prosecution for
and prosecutions. (Jason Ivler y Aguilar v. Hon. Maria homicide for the same act under the amended
Rowena Modesto-San Pedro, G.R. No. 172716, information would constitute double jeopardy. If you
November 17, 2010) were the judge, how would you resolve the motion?
Explain. (1984 BAR QUESTION, Political Law Reviewer,
Q: Allan was charged with a criminal case in the court. Suarez, 2011).
He was arraigned and he pleaded not guilty. Later the
prosecution moved to dismiss the case. The counsel A: There is no double jeopardy and the motion of the
for the accused wrote No Objection at the bottom accused should be therefore be denied. His plea was
of the prosecutors motion. The court granted the only with respect to the charge of physical injuries but
motion and dismissed the case against Allan. A year not with respect to the crime of homicide.
after Allan was charged for the same case. May Allan
invoke the right against double jeopardy? Q: After a long and protracted trial, the accused
involved in the murder of then Senator Benigno S.
A: No. The act of Allans counsel in writing No Aquino were acquitted by an independent
Objection constituted an express consent to the commission whose members were appointed by then
termination within the meaning of Sec. 9 of Rule 117 President Ferdinand E. Marcos. After the EDSA
Rules of Court. He could not thereafter revoke that People Power Revolution, a commission was
conformity since the court had already acted upon it appointed by then President Corazon C. Aquino,
by dismissing the case. Allan was bound by his recommended the re-opening of the Galman-Aquino
counsels consent to the dismissal. (People v. Pilpa, murder case. Was there double jeopardy?
G.R. No. L-30250, Sept. 22, 1977)
A: No. There was no double jeopardy, the proceedings
Q: Two policemen were charged before the that took place before was a sham and a mock trial
Sandiganbayan for the death of Aki and Kat. The which resulted in the denial of the States right to due
policemen entered their pleas of not guilty. However, process. (Galman v. Sandiganbayan, GR. No. 72670,
the prosecution was ordered to amend the Sept. 12, 1986)
information and the accused were arraigned anew
and consequently convicted. Were they placed in MOTION FOR RECONSIDERATION AND APPEAL
double jeopardy?
Motion for Reconsideration
A: No. The first requirement for jeopardy to attach
that the information were valid has not been At any time before a judgment of conviction becomes
complied with. (Herrera v. Sandiganbayan, G.R. Nos. final, the court may on motion of the accused, or on its
119660-61, Feb. 13, 2009) own instance with the consent of the accused, grant a
new trial or reconsideration. (Rule 121, Sec. 1 of the
Q: If the first case was dismissed due to insufficiency Revised Rules of Criminal Procedure)
of evidence without giving the prosecution the
opportunity to present its evidence, has jeopardy NOTE: A motion for reconsideration is a motion generally
attached? filed by the accused whereby he seeks the modification of
the conclusions of the court in the judgment of conviction on
A: No. The first jeopardy has not yet attached. There is the basis of what is already on record. It does not call for the
introduction of evidence unlike in new trial. (Pineda, The
no question that four of the five elements of legal
Revised Rules of Criminal Procedure, 2006 ed., 536-537)
jeopardy are present. However, the last element
valid conviction, acquittal, dismissal or termination of
Appeal
the case is wanting since the right to due process was
violated. (People v. Dumlao, G.R. No. 168918, Mar. 2,
Any party may appeal from a judgment or final order,
2009)
unless the accused will be placed in double jeopardy.
(Rule 122, Sec. 1 of the Revised Rules of Criminal
Q: Upon arraignment, Arwin pleaded not guilty to the
Procedure)
charge of serious physical injuries. Days later, the
victim died. Hence, the Fiscal moved for the NOTE: The authority to represent the State in appeals of
amendment of the information so as to charge the criminal cases before the Supreme Court and the CA is solely
accused with the crime of homicide. The accused vested in the Office of the Solicitor General (OSG).
objected on the ground that he had been put in

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To be sure, in criminal cases, the acquittal of the accused or EX POST FACTO LAW AND
the dismissal of the case against him can only be appealed BILL OF ATTAINDER
by the Solicitor General, acting on behalf of the State. The
private complainant or the offended party may question
Kinds of ex post facto law
such acquittal or dismissal only insofar as the civil liability of
the accused is concerned.
It can be a law that:
In a special civil action for certiorari filed under Sec. 1, Rule 1. Makes an act, which was innocent when done,
65 of the Rules of Court wherein it is alleged that the trial criminal and punishes such action
court committed a grave abuse of discretion amounting to 2. Aggravates a crime or makes it greater than when
lack of jurisdiction or on other jurisdictional grounds, the it was committed
rules state that the petition may be filed by the person 3. Changes the punishment and inflicts a greater
aggrieved. In such case, the aggrieved parties are the State punishment than the law annexed to the crime
and the private offended party or complainant. The
when it was committed
complainant has an interest in the civil aspect of the case so
he may file such special civil action questioning the decision 4. Alters the legal rules of evidence and receives less
or action of the respondent court on jurisdictional grounds. or different testimony than the law required at
In so doing, complainant should not bring the action in the the time of the commission of the offense in order
name of the People of the Philippines. The action may be to convict the defendant
prosecuted in name of said complainant (Bautista & 5. Assumes to regulate civil rights and remedies
Alcantara v. Cuneta-Pangilinan, G.R. No. 189754, Oct. 24, only. In effect imposes penalty or deprivation of a
2012). right for something which when done was lawful
6. Deprives a person accused of a crime of some
Rule on appeal of judgment against the accused lawful protection to which he has become
entitled, such as the protection of a former
GR: The prosecution may not appeal an acquittal and conviction or acquittal, or a proclamation of
an acquittal is immediately final. amnesty

XPNs: Bill of attainder


1. The dismissal is on motion or with the express
consent of the accused; A legislative act that inflicts punishment without trial,
its essence being the substitution of legislative fiat for
XPN to the XPN: If motion is based on violation of a judicial determination of guilt.(People v. Ferrer)
the right to a speedy trial or on demurrer to
evidence NOTE: It is only when a statute applies either to a named
1. The dismissal does not amount to an acquittal individuals or easily ascertainable members of a group in
or dismissal on the merits such a way as to inflict punishment on them without a
2. The question to be passed upon is purely legal judicial trial that it becomes a bill of attainder.
3. The dismissal violates the right of due process
of the prosecution Two kinds of bill of attainder
4. The dismissal is made with grave abuse of
discretion. 1. Bill of attainder proper (legislative imposition of
the death penalty)
DISMISSAL WITH CONSENT OF ACCUSED 2. Bill of pains and penalties (imposition of a lesser
penalty)
GR: Double jeopardy is not available when the case is
dismissed other than on the merits or other than by Q: Carlos was charged with illegal possession of
acquittal or conviction upon motion of the accused firearms. When Carlos committed the offense, the
personally, or through counsel, since such dismissal is governing law was PD 1866, which provided for the
regarded as with express consent of the accused, who penalty of reclusion temporal to reclusion perpetua.
is therefore deemed to have waived the right to plea However, while the case was pending, PD 1866 was
double jeopardy. amended by RA 8294, which reduced the penalty to
prision correccional but increasing the amount of
XPNs: fine. If Carlos is convicted, which penalty shall be
1. Dismissal based on insufficiency of evidence imposed?
2. Dismissal because of denial of accuseds right to
speedy trial A: R.A. 8294 is the applicable law. As a general rule,
3. Accused is discharged to be a State witness penal laws should not have retroactive application,
lest they acquire the character of an ex post facto law.

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An exception to this rule, however, is when the law is


advantageous to the accused. Although an additional
fine of P15,000.00 is imposed by RA 8294, the same is
still advantageous to the accused, considering that the
imprisonment is lowered to prision correccional in its
maximum period from reclusion temporal in its
maximum period to reclusion perpetua under PD 1866.

Hence, RA 8294 should be applied, without prejudice


to the application of the Indeterminate Sentence Law.
(Valeroso v. People, G.R. No. 164815, Feb. 22, 2008)

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CITIZENSHIP

CITIZENSHIP Caram rule

Citizenship Under the 1935 Constitution, those born in the


Philippines of foreign parent, who before the
Membership in a political community, which is adoption of the Constitution had been elected to
personal and more or less permanent in character. public office, are considered Filipino citizens.
(Chiongbian v. de Leon, G.R. No. L-2007, Jan. 31, 1949)
Citizenship v. Nationality
NOTE: The 1935 Constitution, during which regime FPJ had
Citizenship Nationality seen first light, confers citizenship to all persons whose
A term denoting It has broader meaning, fathers are Filipino citizens regardless of whether such
children are legitimate or illegitimate. (Tecson v. COMELEC,
membership of a citizen embracing all who owe
G.R. No. 161434, Mar. 3, 2004)
in a political society, allegiance to a state,
which membership whether democratic or
MODES OF ACQUIRING CITIZENSHIP
implies, reciprocally, a not, without thereby
duty of allegiance on becoming citizens.
1. By birth
the part of the member Because they owe
a. Jus sanguinis acquisition of citizenship on
and duty of protection allegiance to it, they are
the basis of blood relationship.
on the part of the state. not regarded as aliens.
b. Jus soli acquisition of citizenship on the
basis of the place of birth.
NOTE: Prior to the granting of Philippine Independence by
2. By naturalization the legal act of adopting an
the United States on July 4, 1946, the Filipinos were deemed
American nationals because they owed allegiance to the alien and clothing him with the privilege of a
United States but were not citizens thereof. native-born citizen.
3. By marriage
Citizens of the Philippines
NOTE: Jus sanguinis and naturalization are the modes
followed in the Philippines.
1. Those who are Filipino citizens at the time of the
adoption of the 1987 Constitution:
Statutory formalities in selecting Philippine
a. Those who are citizens under the Treaty of
citizenship
Paris;
b. Those declared citizens by judicial
1. A statement of election under oath;
declaration applying the jus soli principle,
2. An oath of allegiance to the Constitution and
before Tio Tam v. Republic, 25 Apr. 1957, G.R.
Government of the Philippines; and
No. L-9602.
3. Registration of the statement of election and of
c. Those who are naturalized in accordance
the oath with the nearest civil registry.
with law. (Act 2927)
(Balgamelo Cabiling Ma, et al. v. Commissioner
d. Those who are citizens under the 1935
Alipio F. Fernandez, Jr., et al. G.R. No. 183133, July
Constitution.
26, 2010)
e. Those who are citizens under the 1973
Constitution.
Q: Does registration of the act of election confer
Filipino citizenship?
2. Those whose fathers or mothers are Filipino
citizens
A: No. It is not the registration of the act of election,
3. Those born before January 17, 1973, of Filipino
although a valid requirement under Commonwealth
mothers, who elect Philippine citizenship upon
Act No. 625 that will confer Philippine citizenship on
reaching the age of majority;
the petitioners. It is only a means of confirming the
NOTE: Time to elect: within 3 years from reaching the fact that citizenship has been claimed. In other words,
age of majority. the actual exercise of Philippine citizenship for over
half a century by the petitioners is actual notice to the
4. Those naturalized in accordance with law. (Sec. 1, Philippine public, which is equivalent to formal
Art. IV, 1987 Constitution) registration of the election of Philippine citizenship.
(Ibid.)

Q: When is the registration of documents of election


still allowed even beyond the time frame?

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A: It should be allowed if in the meanwhile positive 4. Owns real estate in the Philippines not less than
acts of citizenship have been done publicly, P5,000 in value; or has some lucrative trade,
consistently and continuously. These acts constitute profession or lawful occupation that can support
constructive registration. (Ibid.) himself and his family.
5. Speaks and writes English or Filipino and any
Q: Does the failure to register the election of principal Philippine dialects (as amended by Sec.
citizenship in the civil registry defeat the election and 6 Art. XIV); and
negate the permanent fact that petitioners have a 6. Enrolled minor children in any public or private
Filipino mother? school recognized by the government where
Philippine history, government and civics are
A: No. Having a Filipino mother is permanent. It is the taught as part of the curriculum, during the entire
basis of the right of the petitioners to elect Philippine period of residence prior to hearing of petition.
citizenship. (Ibid.)
Disqualified from Judicial Naturalization (CA 473)
NATURALIZATION AND DENATURALIZATION
1. Persons opposed to organized government or
Naturalization affiliated with any association or group of persons
which uphold and teach doctrines opposing all
Act of formally adopting a foreigner into the organized governments
political body of a nation by clothing him or her 2. Persons defending or teaching necessity or
with the privileges of a citizen. propriety of violence, personal assault or
assassination for the success or predominance of
Modes of becoming a citizen by naturalization their ideas
3. Polygamists or believers of polygamy
1. Administrative naturalization pursuant to RA 4. Persons suffering from mental alienation or
9139 incurable contagious disease
2. Judicial naturalization pursuant to CA 473, as 5. Persons convicted of crime involving moral
amended turpitude
3. Legislative naturalization in the form of a law 6. Persons who, during residence in the Philippines,
enacted by Congress bestowing Philippine have not mingled socially with Filipinos, or did not
citizenship to an alien. (So v. Rep., G.R. No. evince sincere desire to learn and embrace
170603, Jan. 29, 2007) customs, traditions and ideals of Filipinos
7. Citizens or subjects of nations with whom the
Qualifications for Judicial Naturalization (CA No. 473) Philippines is at war, during the period of such
war
1. Not less than 18 years of age on the date of 8. Citizens or subjects of a foreign country whose
hearing the petition (as amended by RA 6809) laws do not grant Filipinos the right to become
2. Resided in the Philippines for not less than 10 naturalized citizens or subjects thereof (no
years; may be reduced to 5 years, if; reciprocity)
a. Honorably held office in the Philippines
b. Established new industry or introduced a Qualifications for Administrative Naturalization (RA
useful invention 9139)
c. Married to a Filipino woman
d. Engaged as teacher in Philippine public or 1. The applicant must be born in the Philippines and
private school not established for exclusive residing therein since birth;
instruction of a particular nationality or race, 2. The applicant must not be less than eighteen (18)
or in any branches of education or industry years of age, at the time of filing of his/her
for a period of not less than 2 years; and petition;
e. Born in the Philippines 3. The applicant must be of good moral character
3. Character and believes in the underlying principles of the
1. Good moral character Constitution, and must have conducted
2. Believes in the Constitution himself/herself in a proper and irreproachable
3. Conducted himself in an irreproachable manner during his/her entire period of residence
conduct during his stay in the Philippines in the Philippines in his relation with the duly
constituted government as well as with the
community in which he/she is living;

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CITIZENSHIP

4. The applicant must have received his/her primary CA 473 v. RA 9139


and secondary education in any public school or
private educational institution dully recognized CA 473 RA 9139
by the Department of Education, Culture and Judicial act Administrative act
Sports, where Philippine history, government and Covers all aliens Applies only to aliens who
civics are taught and prescribed as part of the regardless of class were born in
school curriculum and where enrollment is not the Philippines and have
limited to any race or nationality: Provided, That been residing here.
should he/she have minor children of school age, Less tedious, less technical
he/she must have enrolled them in similar and more encouraging.
schools;
5. The applicant must have a known trade, business, An alien who is not
profession or lawful occupation, from which qualified under R.A. No.
he/she derives income sufficient for his/her 9139 may still be
support and if he/she is married and/or has naturalized under C.A. No.
dependents, also that of his/her family: Provided, 473
however, That this shall not apply to applicants (So v. Rep., G.R. No. 170603, January 29, 2007)
who are college degree holders but are unable to
practice their profession because they are Direct v. Derivative Naturalization
disqualified to do so by reason of their citizenship;
6. The applicant must be able to read, write and DIRECT DERIVATIVE
speak Filipino or any of the dialects of the NATURALIZATION NATURALIZATION
Philippines; and Is effected: Is conferred:
7. The applicant must have mingled with the 1. By individual 1. On the wife of the
Filipinos and evinced a sincere desire to learn and proceedings, usually naturalized husband
embrace the customs, traditions and ideals of the judicial, under 2. On the minor
Filipino people. general children of the
naturalization laws naturalized parent
Persons disqualified for Administrative 2. By specific act of the 3. On the alien woman
naturalization (RA 9139) legislature, often in upon marriage to a
favor of national
1. Those opposed to organized government or distinguished 4. The unmarried child
affiliated with any association of group of persons foreigners who have whether legitimate,
who uphold and teach doctrines opposing all rendered some illegitimate or
organized governments; notable service to adopted, below 18
2. Those defending or teaching the necessity of or the local state years of age, of
propriety of violence, personal assault or 3. By collective change those who re-
assassination for the success or predominance of of nationality acquire Philippine
their ideas; (naturalization en citizenship upon
3. Polygamists or believers in the practice of masse) as a result of effectivity of R.A.
polygamy; cession or 9225 shall be
4. Those convicted of crimes involving moral subjugation deemed citizens of
turpitude; 4. In some cases, by the Philippines.
5. Those suffering from mental alienation or adoption of orphan
incurable contagious diseases; minors as nationals
6. Those who, during the period of their residence of the State where
in the Philippines, have not mingled socially with they are born
Filipinos, or who have not evinced a sincere desire
to learn and embrace the customs, traditions and NOTE: Derivative naturalization does not always follow as a
ideals of the Filipinos; matter of course, for it is usually made subject to stringent
7. Citizens or subjects with whom the Philippines is restrictions and conditions. Our own laws, for instance,
at war, during the period of such war; and provide that an alien woman married to a Filipino shall
acquire his citizenship only if she herself might be lawfully
8. Citizens or subjects of a foreign country whose
naturalized.
laws do not grant Filipinos the right to be
naturalized citizens or subjects thereof.

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141 FACULTY OF CIVIL LAW
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Effects of naturalization DUAL CITIZENSHIP AND DUAL ALLEGIANCE

ON THE WIFE Dual citizenship v. Dual allegiance


Vests citizenship on the wife who might herself be
lawfully naturalized; She need not prove her DUAL CITIZENSHIP DUAL ALLEGIANCE
qualifications but only that she is not disqualified. Arises when, as a result Refers to the situation
(Moy Ya Lim Yao v. Comm. of Immigration, G.R. No. of concurrent where a person
L-21289, Oct. 4, 1971.) application of the simultaneously owes,
ON THE MINOR CHILDREN different laws of two or by some positive act,
Born in the Philippines more States, a person is loyalty to two or more
Automatically becomes a citizen simultaneously States.
Born Abroad considered a citizen of
Before the naturalization of the father said states.
If residing in the Phil. At Automatically Involuntary and allowed Result of an
the time of naturalization becomes a citizen. individuals volition
and is prohibited by
If not residing in the Phil. GR: Considered
the Constitution.
At the time of citizen only during
naturalization minority
LOSS AND RE-ACQUISITION OF PHILIPPINE
CITIZENSHIP
XPN: He begins to
reside permanently in
Grounds for loss of Philippine citizenship
the Phil.
After parents naturalization
1. Naturalization in a foreign country; or
Considered Filipino, provided registered as such
2. Express renunciation of citizenship (expatriation);
before any Phil. consulate within 1 year after
or
attaining majority age and takes oath of allegiance.
NOTE: The mere application or possession of an alien
Denaturalization certificate of registration does not amount to
renunciation. (Mercado v. Manzano, G.R. No. 135083,
The process taken by a government to revoke the May 26, 1999)
citizenship status of an individual.
3. Subscribing to an oath of allegiance to the
Grounds for denaturalization constitution or laws of a foreign country upon
attaining 21 years of age; or
1. Naturalization certificate obtained fraudulently
or illegally NOTE: Citizens may not divest citizenship when the
2. If, within 5 years, he returns to his native country Philippines is at war.
or to some foreign country and establishes
residence therein 4. Rendering service to or accepting commission in
3. Naturalization obtained through invalid the armed forces of a foreign country; or
declaration of intention
4. Minor children failed to graduate through the NOTE: It shall not divest a Filipino of his citizenship if:
fault of parents either by neglecting support or by (a) the Philippines has a defensive and/or offensive
pact of alliance with the said foreign country; (b) the
transferring them to another school
said foreign country maintains armed forces in the
5. Allowing himself to be used as a dummy Philippine territory with its consent provided that at
the time of rendering said service, or acceptance of
Effects of denaturalization said commission, and taking the oath of allegiance
incident thereto, states that he does so only in
1. If ground affects intrinsic validity of proceedings, connection with its service to said foreign country.
denaturalization shall divest wife and children of
their derivative naturalization 5. Cancellation of certificate of naturalization
2. If the ground is personal; the wife and children (Denaturalization); or
shall retain citizenship. 6. Having been declared by final judgment a
deserter of the armed forces of the Philippines in
times of war; or

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CITIZENSHIP

7. In case of a woman, upon her marriage, to a RA 9225


foreigner if, by virtue of the laws in force in her
husbands country, she acquires his nationality. Citizenship Retention and Re-acquisition Act of
2003, approved on August 29, 2003 provides that,
NOTE: Citizenship is renounced expressly. (Mercado v. upon taking the oath of allegiance to the Republic:
Manzano, G.R. No. 135083, May 26, 1999) 1. Natural-born citizens of the Philippines who have
lost their naturalization as citizens of a foreign
Application of Res Judicata in Citizenship cases country are deemed to have re-acquired
Philippine citizenship; and
GR: Res Judicata does not set in citizenship cases. 2. Natural-born citizens of the Philippines who, after
the effectivity of said RA, become citizens of a
XPNs: foreign country shall retain their Philippine
1. Persons citizenship is resolved by a court or an citizenship.
administrative body as a material issue in the
controversy, after a full-blown hearing Condition for the enjoyment of full civil and political
2. With the active participation of the Solicitor rights
General or his representative; and
3. Finding of his citizenship is affirmed by the Those who retain or re-acquire Philippine citizenship
Supreme Court. (Burca v. Republic G.R. No. L- shall enjoy full civil and political rights subject to the
24252, Jan. 30, 1967) following conditions:

Ways to reacquire citizenship 1. Right to vote: must meet the requirements of Sec.
1, Art. V of the Constitution, and of Republic Act
1. Naturalization No. 9189 (The Overseas Absentee Voting Act of
2. Repatriation 2003) and other existing laws;
3. Direct act of Congress
2. Elective Public Office:
Naturalization v. Repatriation i. Possess qualification for holding such public
office as required by the Constitution and
NATURALIZATION REPATRIATION existing laws
Nature ii. Make a personal and sworn renunciation of
A mode of acquisition Mode of reacquisition of any and all foreign citizenship before any
and reacquisition of Philippine Ccitizenship public officer authorized to administer an
Philippine citizenship oath, at the time of the filing of the certificate
As to process of candidacy.
Very cumbersome and Simpler process iii. Appointive Public Office - subscribe and
tedious swear to an oath of allegiance to the Republic
of the Philippines and its duly constituted
NOTE: Repatriation shall be effected by taking the necessary authorities prior to their assumption of
oath of allegiance to the Republic of the Philippines and office: Provided, That they renounce their
registration in the proper civil registry and in the Bureau of oath of allegiance to the country where they
Immigration. The Bureau of Immigration shall thereupon took that oath;
cancel the pertinent alien certificate of registration and
issue the certificate of identification as Filipino citizen to the
NOTE: That right to vote or be elected or appointed to
repatriated citizen.
any public office in the Philippines cannot be exercised
by, or extended to, those who:
Repatriation a. are candidates for or are occupying any public
office in the country of which they are naturalized
Recovery of the original nationality. This means that a citizens; and/or
naturalized Filipino who lost his citizenship will be b. are in active service as commissioned or non-
restored to his prior status as a naturalized Filipino commissioned officers in the armed forces of the
citizen. On the other hand, if he was originally a country which they are naturalized citizens. (R.A.
natural-born citizen before he lost his Philippine 9225)
citizenship, he will be restored to his former status as
a natural-born Filipino. (Bengzon v. HRET and Cruz, iv. Practice of profession: apply with the proper
G.R. No. 142840, May 7, 2001) authority for a license or permit to engage in
such practice. (R.A. 9225)

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143 FACULTY OF CIVIL LAW
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NATURAL-BORN CITIZENS AND PUBLIC OFFICE undertaking other than that which they have
presumably complied with under Sec. 3 thereof (oath
1. Citizens of the Philippines from birth without of allegiance to the Republic of the Philippines). There
having to perform any act to acquire or perfect is little doubt, therefore, that the intent of the
their Philippine citizenship legislators was not only for Filipinos reacquiring or
2. Those born before January 17, 1973 of Filipino retaining their Philippine citizenship under R.A. 9225
mothers, who elect Philippine citizenship upon to take their oath of allegiance to the Republic of the
reaching the age of majority Philippines, but also to explicitly renounce their
foreign citizenship if they wish to run for elective posts
NOTE: The term Natural-born citizens, is defined to in the Philippines. To qualify as a candidate in
include those who are citizens of the Philippines from birth Philippine elections, Filipinos must only have one
without having to perform any act to acquire or perfect their citizenship, namely, Philippine citizenship.
Philippine citizenship. [Tecson v. COMELEC, GR. No.
161434, Mar. 3, 204)
The oath of allegiance contained in the Certificate of
Candidacy, does not constitute the personal and
Rule regarding marriage of a Filipino to an alien
sworn renunciation sought under Sec. 5(2) of RA 9225.
It bears to emphasize that the said oath of allegiance
GR: The Filipino retains Philippine citizenship.
is a general requirement for all those who wish to run
as candidates in Philippine elections; while the
XPN: If, by their act or omission they are deemed,
renunciation of foreign citizenship is an additional
under the law, to have renounced it. (Sec.4, Art. IV,
requisite only for those who have retained or
1987 Constitution)
reacquired Philippine citizenship under R.A. No. 9225
and who seek elective public posts, considering their
Government officials required to be natural-born
special circumstance of having more than one
Filipino citizens
citizenship. (Jacot v. Dal, G.R. No. 179848, Nov.27,
2008)
1. President (Sec.2, Art VII)
2. Vice-President (Sec. 3, Art VII)
Q: Art is a naturalized citizen of another country who
3. Members of Congress (Secs. 3 and 6, Art VI)
reacquires Filipino citizenship. On the other hand,
4. Justices of Supreme Court and lower collegiate
Christian possesses dual citizenship by birth. If
courts (Sec. 7(1), Art VIII)
they desire to run for elective public office, what
5. Ombudsman and his deputies (Sec. 8, Art XI)
requirement must they comply as regards their
6. Members of Constitutional Commissions
citizenship?
7. Members of the Central Monetary Authority (Sec.
20, Art XII)
A: Art must comply with the requirements set in RA
8. Members of the Commission on Human Rights
9225. Sec 5(3) of RA 9225 states that naturalized
(Sec 17 (2), Art XIII)
citizens who reacquire Filipino citizenship and desire
to run for public office shall make a personal and
NOTE: The fact that a person has dual citizenship does not
disqualify him from running for public office. (Cordora v. sworn renunciation of any and all foreign citizenship
COMELEC, G.R. No. 176947, Feb. 19, 2009) before any public officer authorized to administer an
oath aside from the oath of allegiance prescribed in
Q: Dahlia, a naturalized US citizen, sought to Sec. 3 of RA 9225.
reacquire her Philippine citizenship. She took her
oath of allegiance to the Republic of the Philippines Christian need not comply with the twin requirements
before the Vice Consul. She then ran and won as Vice of swearing an oath of allegiance and executing a
Mayor of a municipality. The COMELEC, however, renunciation of foreign citizenship because he is a
disqualified her on the ground that she failed to natural-born Filipino who did not subsequently
renounce her US citizenship. Is Dahlia disqualified become a naturalized citizen of another country. It is
from running as a candidate in the local elections for sufficed, if upon the filing of his certificate of
her failure to make a personal and sworn candidacy, he elects Philippine citizenship to
renunciation of his US citizenship? terminate his status as person with dual citizenship
considering that his condition in the unavoidable
A: Yes. Sec. 5(2) of RA 9225 (on the making of a consequence of conflicting laws of different States.
personal and sworn renunciation of any and all foreign (Cordora v. COMELEC, G.R. No. 176947, Feb. 19, 2009)
citizenship) requires the Filipinos availing themselves
of the benefits under the said Act to accomplish an

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CITIZENSHIP

Q: Is filing by a person with dual citizenship of a


certificate of candidacy, containing an oath of
allegiance, constituted as a renunciation of his
foreign citizenship under RA 9225?

A: No. the filing of a certificate of candidacy does


not ipso facto amount to a renunciation of his foreign
citizenship because R.A. No. 9225 provides for more
requirements. It requires the twin requirements of
swearing to an Oath of Allegiance and executing a
Renunciation of Foreign Citizenship. (Roseller De
Guzman v. Commission on Elections, et al., G.R. No.
180048, June 19, 2009)

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145 FACULTY OF CIVIL LAW
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LAW ON PUBLIC OFFICERS because and by virtue of some law expressly or


impliedly creating and conferring it.
GENERAL PRINCIPLES
Elements of a public office
Public office
1. Created by Constitution or by law or by some
It is the right, authority, and duty created and body or agency to which the power to create the
conferred by law, by which for a given period, either office has been delegated;
fixed by law or enduring at the pleasure of the creating 2. Invested with authority to exercise some portion
power, an individual is invested with some portion of of the sovereign power of the State;
the sovereign functions of the government, to be 3. The powers conferred and the duties to be
exercised by him for the benefit of the public. discharged must be defined directly or impliedly
(Fernandez v. Sto. Tomas, G.R. No. 116418, March 7, by the legislature or through legislative authority;
1995) 4. Duties are performed independently without
control unless those of a subordinate;
Purpose of a public office 5. Continuing and permanent. (Fernandez v. Sto.
Tomas, G.R. No. 116418, March 7, 1995; Tejada v.
A public office is created to effect the end for which Domingo, G.R. No. 91860, January 13, 1992)
government has been instituted which is the common
good; not profit, honor, or private interest of any Public office v. Public contract
person, family or class of persons (63 A Am Jur 2d 667)
BASIS PUBLIC
PUBLIC CONTRACT
Characteristics of public office OFFICE
As to Incident of Originates from the
1. It is a public trust The principle of public office creation sovereignty will of the
is a public trust means that the officer holds the contracting parties,
public office in trust for the benefit of the subject to the
peopleto whom such officers are required to be limitations
accountable at all times, and to serve with utmost imposed by law.
responsibility, loyalty, and efficiency, act with As to Has for its Imposes
patriotism and justice, and lead modest lives. persons object the obligations only
(Sec. 1, Art. XI, Constitution) affected carrying out of upon persons who
2. It is not a property The concept "public office is sovereign as entered the same.
not a property means that it is outside the well as
commerce of man; hence, it cannot be the governmental
subject of a contract. (Santos v. Secretary of functions
Labor, G.R. No.L-21624, February 27, 1968) affecting even
3. It is not a vested right. persons not
bound by
NOTE: However, right to a public office is nevertheless contract
a protected right. With the exception of constitutional As to Embraces the Is almost always
offices that provide for some immunity as regards
subject idea of tenure, limited in its
salary and tenure, right to a public office is protected
by the constitutional provision on security of tenure. It matter duration, and duration and
cannot be taken from its incumbent without due and scope continuity, specific in its
process. (Morfe v. Mutuc, G.R. No. L-20387, January 31, and the duties objects. Its terms
1968; Aparri v. Court of Appeals, G.R. No. L-30057, connected define and limit the
January 31, 1984) therewith are rights and
generally obligations of the
4. It is personal to the public officer It is not a continuing and parties, and neither
property transmissible to the heirs of the public permanent. may depart
officer upon the latters death. (Santos v. therefrom without
Secretary of Labor, G.R. No.L-21624, February 27, the consent of the
1968) other.
5. It is not a natural right Under our political
system, the right to hold public office exists only

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LAW ON PUBLIC OFFICERS

Public officer purpose. (Jocom v.


Regalado, G.R. No.
Any person who, by direct provision of law, popular 77373, August 22, 1991)
election or appointment by competent authority, shall
take part in the performance of public functions in the
government of the Philippine Islands, or shall perform
in said Government or in any of its branches, public Q: President Benigno Aquino III issued EO 1 creating
duties as an employee, agent, or subordinate official, the Philippine Truth Commission (PTC). The legality
of any rank or class. (Art. 203, Revised Penal Code) of the creation of the PTC was assailed before the SC.
The petitioners contend that the PTC is a public office
NOTE: Under Sec. 2. RA 3019, the term public officer and thus the president is without authority to create
includes elective and appointive officials and employees, it. It was further contended that the creation of a
permanent or temporary, whether in the classified, public office lies within the province of the
unclassified or exempt service, receiving compensation, legislature. The OSG countered that the creation of a
even nominal, from the government.
fact-finding body like the PTC is covered by the
Presidents power of reorganization under the
Kinds of a public officer
Administrative Code and the Presidents power of
control. The OSG likewise contends that Congress
A public officer may be:
has delegated to the President the power to create
1. Constitutional or statutory
public offices by virtue of P.D. 1416, as amended by
2. National or local
PD 1772.
3. Legislative, executive, or judicial
4. Lucrative or honorary
Does the creation of the PTC fall within the ambit of
5. Discretionary or ministerial
the power to reorganize as expressed in Sec. 31 of
6. Appointive or elective
the Revised Administrative Code?
7. Civil or military
8. De jure or de facto
A: No. Reorganization refers to the reduction of
personnel, consolidation of offices, or abolition
Kinds of government employment
thereof by reason of economy or redundancy of
functions. This refers to situations where a body or an
1. Career Service
office is already existent but a modification or
2. Non-career Service
alteration thereof has to be effected. The creation of
an office is nowhere mentioned, much less envisioned
Career service v. Non-career service
in said provision. To say that the PTC is borne out of a
restructuring of the Office of the President under Sec.
CAREER SERVICE NON-CAREER SERVICE 31 is a misplaced supposition, even in the plainest
Entrance is based on Entrance is based on meaning attributable to the term restructure and
merits and fitness, qualifications other alteration of an existing structure. Evidently, the PTC
which is determined by than merit and fitness. was not part of the structure of the Office of the
competitive President prior to the enactment of EO 1. (Biraogo v.
examination (except for Philippine Truth Commission of 2010, G.R. No. 192935,
non-competitive December 7, 2010)
positions) or based on
highly technical Q: Is the creation of the PTC justified by the
qualifications. Presidents power of control?

There is opportunity for No such opportunity A: No. Control is essentially the power to alter or
advancement to a advancement to a modify or nullify or set aside what a subordinate
higher career position. higher career position. officer had done in the performance of his duties and
There is security of Tenure is limited to a to substitute the judgment of the former with that of
tenure. period specified by law, the latter. Clearly, the power of control is entirely
coterminous with the different from the power to create public offices. The
appointing authority or former is inherent in the Executive, while the latter
subject to his pleasure, finds basis from either a valid delegation from
or which is limited to the Congress, or his inherent duty to faithfully execute the
duration of a particular laws. (Ibid.)

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Q: What then could be the justification for the MODES AND KINDS OF APPOINTMENT
Presidents creation of the PTC?
Appointment
A: The creation of the PTC finds justification under
Sec. 17, Art. VII of the Constitution imposing upon the The act of designation by the executive officer, board
President the duty to ensure that the laws are or body to whom that power has been delegated, the
faithfully executed. The Presidents power to conduct individual who is to exercise the powers and functions
investigations to aid him in ensuring the faithful of a given office. In this sense, it is to be distinguished
execution of laws in this case, fundamental laws on from the selection or designation by a popular vote.
public accountability and transparency is inherent in (Borromeo v. Mariano, G.R. No. L-16808, January 3,
the Presidents powers as the Chief Executive. That 1921)
the authority of the President to conduct
investigations and to create bodies to execute this It refers to the nomination or designation of an
power is not explicitly mentioned in the Constitution individual to an office. (Borromeo v Mariano, G.R. No.
or in statutes does not mean that he is bereft of such L-16808, January 3, 1921)
authority.
It is, in law, equivalent to filling a vacancy. (Conde v.
The Executive is given much leeway in ensuring that National Tobacco Corp., G.R. No. L-11985 January 28,
our laws are faithfully executed. The powers of the 1961)
President are not limited to those specific powers
under the Constitution. One of the recognized powers Appointment v. Designation
of the President granted pursuant to this
constitutionally-mandated duty is the power to create APPOINTMENT DESIGNATION
ad hoc committees. This flows from the obvious need It is the selection by the It merely connotes the
to ascertain facts and determine if the laws have been proper authority of an imposition of additional
faithfully executed. It should be stressed that the individual who is to duties, usually by law,
purpose of allowing ad hoc investigating bodies to exercise the functions upon a person who is
exist is to allow an inquiry into matters which the of a given office. already in public service
President is entitled to know so that he can be by virture of an earlier
properly advised and guided in the performance of his appointment or election.
duties relative to the execution and enforcement of It connotes It implies temporariness
the laws of the land. (Ibid.) permanency. and therefore does not
confer upon the
NOTE: The SC, however, declared the creation of PTC as designee security of
unconstitutional for violating the equal protection clause.
tenure.

MODES OF ACQUIRING TITLE TO PUBLIC OFFICE Appointing authority

Modes of filling up public offices 1. Inherently belongs to the people.


It belongs to where the people have chosen to
Public offices are filled up either by: place it by their Constitution or laws. (63A Am.
1. Appointment Jur. 2d 738)
2. Election 2. Entrusted to designated elected and appointed
3. Designation the mere imposition of new or public officials.
additional duties upon an officer to be performed The appointment of public officials is generally
by him in a special manner. looked upon as properly belonging to the
4. In some instances by contract or by some other executive department. Appointments may also be
modes authorized by law. (Preclaro v. made by Congress or the courts, but when so made
Sandiganbayan, G.R. No. 111091, August 21, should be taken as an incident to the discharge of
1995) functions within their respective spheres.
(Government v. Springer, 50 Phil. 259 (1927),
NOTE: A public office, being a trust or agency created for the
affirmed in Springer v. Government, 277 U.S. 189,
benefit of the people, can be obtained only in the manner
prescribed by the Constitution or by law. 72 Ed. 845, 48 S.CT. 480 (1928))

The manner of selecting persons for public office is generally NOTE: The general rule is that the appointing power is the
by election or by appointment. (63A Am. Jur. 2d 733) exclusive prerogative of the President, upon which no

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limitations may be imposed by Congress, except those Under Sec. 25(a) of the Civil Service Decree, an
resulting from the need of securing the concurrence of the appointment in the civil service is permanent
Commission of Appointments and from the exercise of the when issued to a person who meets all the
limited power to prescribe the qualifications or
requirements for the position to which he is being
disqualifications to a given appointive office. (Rafael v.
appointed, including the appropriate eligibility
Embroidery and Apparel Control and Inspections Board, G.R.
No. L-19978, September 29, 1967) Where the law is silent as prescribed, in accordance with the provisions of
to who is the appointing authority, it is understood to be the law, rules and standards promulgated in
President of the Philippines. pursuance thereof. It lasts until lawfully
terminated.
Absent any contrary statutory provision, the power to
appoint carries with it the power to remove or discipline. 2. Temporary Extended to a person who may not
(Aguirre, Jr. v. De Castro, G.R. No. 127631, December 17, possess the requisite qualifications or eligibility
1999)
and is revocable at will without necessity of just
cause or investigation. However, if the
Appointees acceptance of office appointment is for a specific period, the
appointment may not be revoked until the
An appointees acceptance of office is not necessary expiration of the term.
to complete or to make the appointment valid where
there is no provision of law to the contrary. Under the Civil Service Decree, an appointment in
the civil service is temporary when the appointee
NOTE: Acceptance, however, is necessary to enable the
does not possess civil service eligibility.
appointee to have full possession, enjoyment, and
responsibility of an office. (Borromeo v Mariano, G.R. No. L- Subsequent acquisition of the required eligibility
16808, January 3, 1921; Lacson v. Romero, G.R. No. L-3081, will not make a temporary appointment regular
October 14, 1949) permanent.

Procedure for the appointment of those that need NOTE: Temporary appointments shall not exceed 12
Commission on Appointments Confirmation months. Acquisition of civil service eligibility will not
automatically convert the temporary appointment into
a permanent one. (Prov. Of Camarines Sur v. CA, G.R.
1. Nomination by the President;
No. 104639, July 14, 1995)
2. Confirmation by the Commission on
Appointments;
Provisional appointment
3. Issuance of commission; and
4. Acceptance by the appointee.
One which may be issued, upon the prior
Deemed complete upon acceptance.
authorization of the Commissioner of the Civil
Pending such acceptance, which is optional
Service Commission, to a person who has not
to the appointee, the appointment may still
qualified in an appropriate examination but who
be validly withdrawn. Appointment to a
otherwise meets the requirements for
public office cannot be forced upon any
appointment to a regular position in the
citizen except for purposes of defense of the
competitive service, whenever a vacancy occurs
State under Sec. 4, Art. 2, as an exception to
and the filling thereof is necessary in the interest
the rule against involuntary servitude.
of the service and there is no appropriate register
(Lacson v. Romero, No. L-3081, Oct. 14, 1949)
of eligibles at the time of appointment. (Jimenea
In ad interim appointments, steps 1, 3 and 4 v. Guanzon, G.R. No. L-24795, January 29, 1968)
precede step 2.
For appointments which do not require Temporary appointment v. Provisional appointment
confirmation, step 2 is skipped.
TEMPORARY PROVISIONAL
Kinds of appointments APPOINTMENT APPOINTMENT
Issued to a person to a Issued prior to
1. Permanent Extended to a person who meets all
position needed only for a authorization of CSC
the requirements for the position to which he is
limited period
being appointed, including the appropriate
Not to exceed 12 Regular position in the
eligibility required, for the position and thus
months/no definite tenure meantime that no
enjoys security of tenure.
and is dependent on the person qualifies for
pleasure of the appointing the position

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power Appointments to reconvene before he could fill a


vacancy occurring during the recess. (Guevara v.
Meets all requirements for Has not qualified in an Inocentes, G.R. No. L-25577, March 15, 1966)
position except civil service appropriate
eligibility examination but Nature of ad interim appointment
otherwise meets
requirements for Ad interim appointments are permanent
appointments appointments. It is permanent because it takes
effect immediately and can no longer be
NOTE: Provisional appointments in general have withdrawn by the President once the appointee
already been abolished by RA 6040. It still, however, qualified into office. The fact that it is subject to
applies with regard to teachers under the Magna Carta confirmation by the CA does not alter its
for Public School Teachers. permanent character. In cases where the term of
said ad interim appointee had expired by virtue of
3. Regular appointment one made by the inaction by the Commission on Appointments, he
President while Congress is in session, which may be reappointed to the same position without
takes effect only after confirmation by the
violating the Constitutional provision prohibiting
Commission on Appointment and, once an officer whose term has expired from being re-
approved, continues until the end of the term of appointed. (Matibag v. Benipayo, G.R. No. 130657,
the appointee.
April 1, 2002)
4. Ad interim appointment one made by the NOTE: Being a permanent appointment, an ad interim
President while Congress is not in session, which appointee pending action by the Commission on
takes effect immediately, but ceases to be valid if: Appointments enjoys security of tenure. (Marombhosar v.
a. disapproved by the Commission on CA, G.R. No. 126481, February 18, 2000)
Appointments; or
b. upon the next adjournment of Congress, Q: Can the President submit to the Commission on
either in regular or special session (inaction Appointments an appointment for confirmation
by the CA). when it does not need the consent of the same?

Purpose of ad interim appointment A: No. Sec. 16 Art. VII of the Constitution made an
exclusive enumeration of the appointments to be
Ad interim appointments are intended to made by the President that need to be approved by
prevent a hiatus in the discharge of official duties. the said Commission. It is only for those appointments
Obviously, the public office would be immobilized that consent of the Commission is needed.
to the prejudice of the people if the President had
to wait for Congress and the Commission of

Regular appointment v. Ad interim appointment v. Temporary appointment v. Designation

TEMPORARY or DESIGNATION
REGULAR AD INTERIM
ACTING
Made when Made when Congress is NOT Those which last until a The mere imposition of new or
Congress is in in session permanent additional duties upon an officer to
session appointment is issued. be performed by him in a special
manner while he performs the
function of his permanent office.
Made only after Made before confirmation Cannot be validly The officer is already in service by
the nomination is of the CA confirmed by the CA virtue of an earlier appointment,
confirmed by CA because there was no performing other functions.
valid nomination.
Continues until the Shall cease to be valid if May be terminated at Maybe terminated anytime
expiration of the disapproved by CA or upon the pleasure of
term the next adjournment of appointing power
Congress. without hearing or
cause.

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Q: What is the nature of an "acting appointment" to discretion of the appointing power. (Medalla v. Sto.
a government office? Does such appointment give Tomas, G.R. 94255, May 5, 1992)
the appointee the right to claim that the
appointment will, in time, ripen into a permanent Protest to appointment
one? Explain.
Any person who feels aggrieved by the appointment
A: According to Sevilla v. CA, G.R. No. 88498, June 9, may file an administrative protest against such
1992, an acting appointment is merely temporary. As appointment. Protests are decided in the first instance
held in Marohombsar v. Alonto, G.R. No. 93711, by the Department Head, subject to appeal to the CSC.
February 25, 1991, a temporary appointment cannot
become a permanent appointment, unless a new The protest must be for a cause (i.e. appointee is not
appointment, which is permanent, is made. qualified; appointee was not the next-in-rank;
unsatisfactory reasons given by the appointing
It is well-settled that one who holds a temporary or authority in making the questioned appointment).
acting appointment has no fixed tenure of office, and, The mere fact that the protestant has the more
therefore, his enjoyment can be terminated at the impressive resume is not a cause for opposing an
pleasure of the appointing power even without appointment. (Aquino v. CSC, G.R. No. 92403, April 22,
hearing or cause. (Erasmo v. Home Insurance & 1992)
Guaranty Corporation, G.R. No. 139251, August 29,
2002) However, if the acting appointment was made Revocation v. Recall of appointment
because of a temporary vacancy, the temporary
appointee holds office until the assumption of office Where an appointment requires the approval of the
by the permanent appointee. In such case, the CSC, such appointment may be revoked or withdrawn
appointing authority cannot use the acting by the appointing authority any time before the
appointment as a justification in order to evade or approval by the CSC. After an appointment is
avoid the security of tenure principle provided for completed, the CSC has the power to recall an
under the Constitution and the Civil Service Law. appointment initially approved on any of the following
(Gayatao v. Civil Service Commission, G.R. No. 93064, grounds:
June 22, 1992) 1. Non-compliance with procedures/criteria in merit
promotion plan;
"Appointment in an acting capacity" extended by a 2. Failure to pass through the selection board;
Department Secretary v. Ad interim appointment 3. Violation of existing collective relative agreement
extended by the President to promotion;
4. Violation of CSC laws, rules and regulations.
An appointment in an acting capacity extended by a (Debulgado v. CSC, G.R. No. 111471, September
Department Secretary is temporary. Hence, the 26, 1994)
Department Secretary may terminate the services of
the appointee at any time. ELIGIBILITY AND QUALIFICATION REQUIREMENTS

On the other hand, an ad interim appointment Requirements for public office


extended by the President is an appointment which is
subject to confirmation by the Commission on 1. Eligibility It is the state or quality of being legally
Appointments and was made during the recess of fit or qualified to be chosen.
Congress. As held in Summers v. Ozaeta (G.R. No. L- 2. Qualification This refers to the act which a
1534, October 24, 1948), an ad interim appointment is person, before entering upon the performance of
permanent. his duties, is by law required to do such as the
taking, and often, subscribing and filing of an
Q: Can the CSC revoke an appointment by the official oath, and, in some cases, the giving of an
appointing power and direct the appointment of an official bond. It may refer to:
individual of its choice? a. Endowments, qualities or attributes which
make an individual eligible for public office,
A: No. The CSC cannot dictate to the appointing power (e.g. citizenship); or
whom to appoint. Its function is limited to determining b. The act of entering into the performance of
whether or not the appointee meets the minimum the functions of a public office, (i.e. taking
qualification requirements prescribed for the position. oath of office).
Otherwise, it would be encroaching upon the

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NOTE: To entitle a public officer to hold a public office, he Perfection of the right of a public officer to enter in
must possess all the qualifications and none of the office
disqualifications prescribed by law for the position not only
at the time of his election or appointment but also during his
Upon his oath of office, it is deemed perfected. Only
incumbency.
when the public officer has satisfied this prerequisite
can his right to enter into the position be considered
General qualifications for public office
complete. Until then, he has none at all, and for as long
as he has not qualified, the holdover officer is the
1. Citizenship
rightful occupant. (Lecaroz v. Sandiganbayan, G.R. No.
2. Age
130872, March 25, 1999)
3. Residence
4. Education
DISABILITIES AND INHIBITIONS OF PUBLIC
5. Suffrage
OFFICERS
6. Civil service examination
7. Ability to read and write
Prohibitions imposed under the Constitution against
8. Political affiliation as a rule is not a qualification.
the holding of 2 or more positions
XPN: Party-List, Membership in the Electoral
Tribunal, Commission on Appointment
A. Members of Congress shall not:
NOTE: The qualifications for public office are continuing 1. Appear as counsel before any court, electoral
requirements and must be possessed not only at the time of tribunal, or quasi-judicial and other administrative
appointment or election or assumption of office but during bodies;
the officers entire tenure. Once any of the required 2. Be interested in any contract with, or in any
qualification is lost, his title may be reasonably challenged. franchise, or special privilege granted by the
(Frivaldo V. COMELEC, G.R. No. 87193, June 23, 1989; Aguila Government, or any subdivision, agency or
v. Genato, G. R No. L-55151, March 17, 1981) instrumentality thereof, including GOCCs, or its
subsidiary;
Authority to prescribe qualifications 3. Intervene in any matter before any office of the
Government for his pecuniary benefit or where he
Congress is generally empowered to prescribe the may be called upon to act on account of his office.
qualifications for holding public office, provided it
does not exceed thereby its constitutional powers or B. The President, Vice President, Members of the
impose conditions of eligibility inconsistent with Cabinet, and their deputies or assistants, unless
constitutional provisions. otherwise allowed by the Constitution, shall not:
1. Directly or indirectly practice any other
Limitation on the power of Congress to prescribe profession;
qualifications 2. Participate in any business, or be financially
interested in any contract with, or in any
Congress has no power to require qualifications other franchise, or special privilege granted by the
than those qualifications specifically set out in the Government, or any subdivision, agency or
Constitution. Such Constitutional criteria are instrumentality thereof, including GOCCs, or its
exclusive. subdivisions; shall avoid conflict of interest in the
conduct of their office.
Power of Congress to prescribe disqualifications
C. Members of the Constitutional Commission shall
In the absence of constitutional inhibition, Congress not:
has the same right to provide disqualifications that it 1. Hold any other office or employment or engage in
has to provide qualification for office. the practice of any profession or in the active
management or control of any business that may
Congress, however, may not add disqualification be affected by the functions of his office;
where the Constitution has provided them in such a 2. Be financially interested, directly or indirectly, in
way as to indicate intention that the disqualifications any contract with, or in any franchise, or special
provided shall embrace all which are to be permitted. privilege granted by the Government, or any
Moreover, when the Constitution has attached a subdivision, agencies or instrumentalities
disqualification to the holding of any office, Congress including GOCCs, or their subsidiaries. These shall
cannot remove it under the power to prescribe also apply to the Ombudsman and his deputies
qualifications as to such offices as it may create. (46 during his term.
C.J. 936-937)

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D. Unless otherwise allowed by law or by the primary NOTE: The Supreme Court held that while all other
functions of his position, no appointive official shall appointive officials in the Civil Service are allowed to hold
hold any other office or employment in the other office or employment in the government during their
tenure when such is allowed by law or by the primary
Government or any subdivision, agency or
functions of their positions, members of the Cabinet, their
instrumentality thereof, including GOCCs or their
deputies and assistants may do so only when expressly
subsidiaries. (Art. IX B, Sec. 7; Flores v Drilon, G.R. No. authorized by the Constitution itself. (Civil Liberties Union v
104732 June 22, 1993) Executive Secretary, 194 SCRA 317)

E. No member of the armed forces in the active service Rule against the appointment of members of the
shall, at any time, be appointed or designated in any official family of the President
capacity to a civilian position in the government
including GOCCs or any of their subsidiaries. (Art XVI The spouses and relatives by consanguinity or affinity
Sec. 5 par. 4) within the 4th civil degree of the President shall not be
appointed as members of the Constitutional
Grounds for disqualification to hold public office Commissions, Office of the Ombudsman, or as
Secretaries, Undersecretaries, chairmen or heads of
1. Mental or physical incapacity bureaus or offices, including GOCCs and their
2. Misconduct or commission of a crime subsidiaries during his tenure. (Sec. 13, Art. VII,
3. Impeachment Constitution)
4. Removal or suspension from office
5. Consecutive terms exceeding the allowable Other prohibitions imposed on public officers
number of terms
6. Holding more than one office (except ex officio) 1. Prohibition against solicitation of gifts (Sec. 7(d),
7. Relationship with the appointing power RA 6713)
(nepotism)
8. Office newly created or the emoluments of which NOTE: Public officers, however, may accept the
have been increased (forbidden office) following gifts from foreign governments:
9. Being an elective official (Flores v Drilon, G.R. No. a. Gifts of nominal value received as souvenir or mark
104732, June 22, 1993) of courtesy;
10. Losing candidate in the election within 1 year b. Scholarship or fellowship grant or medical
treatment;
following the date of election (prohibitions from
c. Travel grants or expenses for travel outside the
office not employment);
Philippines (Sec. 7(d), RA 6713)
XPN: in barangay
11. Grounds provided for under the local government 2. Prohibition against partisan political activities
code. (Sec. 2(4), Art. IX(B), Constitution)

Classes of office which a member of Congress is NOTE: Partisan political activity is an act designed to
disqualified to hold under the Constitution promote the election or defeat of a particular
candidate/s to a public office. It is also known as
1. Incompatible Office electioneering. (Sec. 79, Omnibus Election Code)
2. Forbidden Office
Officers or employees in the Civil Service including
NOTE: See further discussion under Legislative Department members of the Armed Forces cannot engage in such
chapter. activity except to vote. They shall not use their official
authority or influence to coerce the political activity of
Exceptions to the rule against holding 2 or more any person. (Sec. 55, Subtitle A, Title I, Book V, 1987
Administrative Code)
positions by public officers, as allowed by the
Constitution
Officers and employees in the Civil Service can
nonetheless express their views on current political
The Vice-President being appointed as a member of issues and mention the names of the candidates they
the Cabinet under Sec. 3, par. (2), Art. VII; or acting as support.
President in those instances provided under Sec. 7,
pars. (2) and (3), Art. VII; and, the Secretary of Justice 3. Prohibition against engaging in strike (Social
being ex-officio member of the Judicial and Bar Council Security System Employees Assn. v. CA, G.R No.
by virtue of Sec. 8 (1), Art. VIII. 85279, Jul 28,1989)
4. Restriction against engaging in the practice of law
(Sec. 90, RA 7160)

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153 FACULTY OF CIVIL LAW
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5. Prohibition against practice of other professions 3. Shall not collect any fee for their appearance in
(Sec. 90, RA 7160) administrative proceeding involving the LGU of
6. Restriction against engaging in private business which he is an official; and
(Abeto v. Garces, A.M. No. P-88-269, Dec. 29, 4. May not use property and personnel of the Govt.,
1995) except when defending the interest of the Govt.
7. Restriction against accepting certain employment
(Sec. 7(b), RA 6713) Prohibitions against the practice of other professions
under the LGC
Public officers who may engage in partisan political
activities 1. Local Chief Executives (governors, city and
municipal mayors) are prohibited from practicing
1. Those holding political offices, such as the their profession
President of the Philippines, Vice President of the 2. Sanggunian members may practice their
Philippines; Executive Secretary/ Department profession, engage in any occupation, or teach in
Secretaries and other Members of the Cabinet; all schools except during session hours
other elective officials at all levels; and those in 3. Doctors of medicine may practice their profession
the personal and confidential staff of the above even during official hours of work in cases of
officials. emergency provided that they do not derive
monetary compensation therefrom.
NOTE: It shall, however, be unlawful for them to solicit
contributions from their subordinates or subject them Prohibitions under Code of Conduct and Ethical
to any of the acts involving subordinates prohibited in Standards for Public Officials and Employees
the Election Code.
1. Prohibition against financial and material interest
2. National, provincial, city and municipal elective - directly or indirectly having any financial or
officials. (Santos v. Yatco, G.R. No. L- 16133, material interest in any transaction requiring the
November 6, 1959) approval of their office.
2. Prohibition against outside employment and
Q: Does the election or appointment of an attorney other activities related thereto - owning,
to a government office disqualify him from engaging controlling, managing or accepting employment
in the private practice of law? as officer, employee, consultant, counsel, broker,
agent, trustee or nominee in any private
A: Yes. As a general rule, judges, other officials of the enterprise regulated, supervised or licensed by
superior courts, of the office of the Solicitor General their office.
and of other Government prosecution offices; the 3. Engaging in the private practice of their
President; Vice-President, and members of the cabinet profession.
and their deputies or assistants; members of 4. Recommending any person to any position in any
constitutional commissions; and civil service officers private enterprise which has a regular or pending
or employees whose duties and responsibilities official transaction with their office.
require that their entire time be at the disposal of the
government are strictly prohibited from engaging in NOTE: These prohibitions shall continue to apply for a
the private practice of law. period of one year after resignation, retirement, or
separation from public office, except in the case of
Q: Can the members of Sanggunian engage in the subparagraph (b) (2) above, but the professional
practice of law under the LGC? concerned cannot practice his profession in connection
with any matter before the office he used to be with, in
A: GR: Yes. which case the one-year prohibition shall likewise
apply.
XPNs:
1. Cannot appear as counsel in any civil case where
in a local government unit or any office, agency or POWERS AND DUTIES OF PUBLIC OFFICERS
instrumentality of the Govt. is the adverse party;
2. Cannot appear as counsel in any criminal case Powers of public officers
wherein an officer or employee of the national or
local Govt. is accused of an offense committed in 1. Expressly conferred upon him by the Act
relation to his office; appointing him;
2. Expressly annexed to the office by law;

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3. Attached to the office by common law as incidents lives;


to it. 4. Submit a declaration under oath of his assets,
liabilities, and net worth upon assumption of
NOTE: In general, the powers and duties of public officers office and as often thereafter as may be required
are prescribed by the Constitution or by statute or both. by law;
Public officers have only those powers expressly granted or 5. Owe the State and the Constitution allegiance at
necessarily implied by law. If broader powers are desirable,
all times.
they must be conferred by the proper authority. They
cannot merely be assumed by administrative officers, nor
can they be created by the courts in the proper exercise of Reasons for the imposition of the duty to disclose
their judicial functions. (63A Am. Jur. 2d 883) financial records

Doctrine of Necessary Implication To:


1. Maintain public confidence in the Government
All powers necessary for the effective exercise of the and in public officials and employees;
express powers are deemed impliedly granted. 2. Avoid conflicts of interest from arising;
(Pimentel v. COMELEC, G.R. No. L-53581, December 19, 3. Deter corruption;
1980) 4. Provide the citizens with information concerning
a public officers financial affairs and thus enable
Kinds of duties of public officers them to better judge his integrity and fitness for
office.
MINISTERIAL DISCRETIONARY
Discharge is Public officer may do RIGHTS OF PUBLIC OFFICCERS
imperative and it must whichever way he wants
be done by the public provided it is in Rights and privileges of public officers
officer accordance with law and
not whimsical Right to:
Can be compelled by Cannot be compelled by 1. Office
mandamus mandamus except when 2. Compensation/salary
there is grave abuse of 3. Appointment
discretion 4. Vacation and sick leave
Can be delegated Cannot be delegated 5. Maternity leave
unless otherwise 6. Retirement pay
provided by law 7. Longevity pay
8. Pension
Doctrine of Ratification 9. Self-organization
10. Protection of temporary employees
It provides that, although the acts of a public officer
may not be binding on the State because he has Prohibition against diminution of salary
exercised his powers defectively, his acts may be
ratified. Under the Constitution, Congress is given the power to
fix the salaries of certain constitutional officers, but
The doctrine does not apply where: after it has done so, it may not reduce the salary of any
1. There is a want of power in the public officer to of them during his term or tenure. This provision is
perform the original act. intended to secure their independence.
2. An act which was absolutely void at the time it was
done. Extent of the right to self- organization of employees
3. If the principal himself could not lawfully have in the public service
done the act, or
4. If it could not have lawfully been done by anyone. While the Constitution recognizes the right of public
employees to organize, they are prohibited from
Duties of public officers staging strikes, demonstrations, mass leaves, walk-
outs and other forms of mass action which may result
1. Be accountable to the people; to temporary cessation of work or disturbance of
2. Serve the people with utmost responsibility, public service. Their right to self-organization is limited
integrity, and efficiency; only to form unions or to associate without including
3. Act with patriotism and justice and to lead modest the right to strike. Labor unions in the government

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155 FACULTY OF CIVIL LAW
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may bargain for better terms and conditions of Command Responsibility


employment by either petitioning the Congress for
better terms and conditions, or negotiating with the This doctrine provides that a superior officer is liable
appropriate government agencies for the for the acts of his subordinate in the following
improvement of those not fixed by law. (SSS instances:
Employees Assn. v. CA, G.R No. 85279, July 28, 1989) 1. He negligently or willfully employs or retains unfit
or incompetent subordinates;
LIABILITIES OF PUBLIC OFFICERS 2. He negligently or willfully fails to require his
subordinates to conform to prescribed
Liabilities of a public officer regulations;
3. He negligently or carelessly oversees the business
GR: A Public officer is not liable for injuries sustained of the office as to give his subordinates the
by another due to official acts done within the scope opportunity for default;
of authority. 4. He directed, cooperated, or authorized the
wrongful act;
XPNs: 5. The law expressly makes him liable. (Sec.38-39,
1. Otherwise provided by law; Chap. 9, Book I, E.O. No. 292, Administrative Code
2. Statutory liability under the Civil Code; (Arts. 27, of 1987)
32, & 34)
3. Presence of bad faith, malice, or negligence; Grounds for the discipline of public officers
4. Liability on contracts entered into in excess or
without authority; 1. Dishonesty
5. Liability on tort if the public officer acted beyond 2. Oppression
the limits of authority and there is bad faith. 3. Neglect of duty
(United States of America v. Reyes, G.R. No. 4. Misconduct
79253, March 1, 1993) 5. Disgraceful and immoral conduct
6. Discourtesy in the course of official duties
NOTE: Absent of any showing of bad faith or malice, every 7. Inefficiency and incompetence in the
public official is entitled to the presumption of good faith as performance of official duties
well as regularity in the performance or discharge of official 8. Conviction of a crime involving moral turpitude
duties. (Blaquera v. Alcala, G.R. No. 109406, September 11, 9. Being notoriously undesirable
1998)
10. Falsification of official documents
11. Habitual drunkenness
Three-fold responsibility/liability of public officers
12. Gambling
13. Refusal to perform official duty or render
1. Criminal liability
overtime service
2. Civil liability
14. Physical or mental incapacity due to immoral or
3. Administrative liability
vicious habits
15. Willful refusal to pay just debts or willful failure to
Liabilities of ministerial officers
pay taxes
1. Non-feasance Neglect to perform an act which
Security of tenure
is the officer's legal obligation to perform.
2. Misfeasance The failure to observe the proper
It means that no officer or employee in the civil service
degree of care, skill, and diligence required in the
shall be suspended or dismissed except for a cause
performance of official duty; and
provided by law and after due process or after he shall
3. Malfeasance Performance of an act which the
have been given the opportunity to defend himself.
officer had no legal right to perform.
NOTE: Once an appointment is issued and completed and
NOTE: The plaintiff must show that he has suffered an the appointee assumes the position, he acquires a legal right,
injury, and that it results from a breach of duty which the not merely an equitable right to the position. (Lumigued v.
officer owed to him. Exevea, G.R. No. 117565, November 18, 1997)

Regardless of the characterization of the position held by a


government employee covered by civil service rules, be it
career or non-career position, such employee may not be

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LAW ON PUBLIC OFFICERS
removed without just cause (Jocom v. Regalado, G.R. No. Periods for preventive suspension
77373, August 22, 1991)
1. For administrative cases:
Bases of the constitutional guaranty of security of a. Civil Service Law 90 days
tenure in the civil service b. Local Government Code (RA 7160)
i. Sec.85: 60 days for appointive officials
The prohibition against suspension or dismissal of an (suspension to be imposed by the local
officer or employee of the Civil Service except for chief executive)
cause provided by law is a guaranty of both ii. Sec. 63: 60 or 90 days for elective officials
procedural and substantive due process. Not only c. Ombudsman Act 6 months
must removal or suspension be in accordance with the 2. For criminal cases: Anti-Graft and Corrupt
procedure prescribed by law, but also they can only be Practices Act (RA 3019) 90 days by analogy.
made on the basis of a valid cause provided by law. (Gonzaga v Sandiganbayan G.R. No. 96131
(Land Bank of the Philippines v Rowena O. Paden, G.R. September 6, 1991)
No. 157607, July 7, 2009)
NOTE: Service of preventive suspension will not be credited
Instance where a transfer may be considered to the penalty of suspension after having been found guilty
violative of employees security of tenure because they are of different character. If however the
preventive suspension is indefinite wherein his term is about
When the transfer is a preliminary step toward his to expire and suspension is not lifted such will be considered
unconstitutional for being violative of due process of law.
removal, or a scheme to lure him away from his
(Layno, Sr. v. Sandiganbayan, G.R. No. L-65848, May 24,
permanent position, or when it is designed to
1985)
indirectly terminate his service, or force his
resignation. Such a transfer would in effect circumvent Preventive suspension pending investigation v.
the provision that safeguards the tenure of office of Preventive suspension pending appeal
those who are in the Civil Service. (CSC v. PACHEO, G.R.
No. 178021, January 25, 2012)
PENDING
PENDING APPEAL
NOTE: Acceptance of a temporary appointment or INVESTIGATION
assignment without reservation or upon ones own volition
Not a penalty but only a Punitive in character
is deemed waiver of security of tenure. (Palmera v. Civil
Service Commission, G.R. No. 110168, August 4, 1994)
means of enabling the
disciplinary authority an
Nature of preventive suspension unhampered
investigation
Preventive suspension is not a penalty by itself; it is After the lapse of 90 days, If exonerated, he should
merely a measure of precaution so that the employee the law provides that he be reinstated with full
who is charged may be separated from the scene of his be automatically pay for the period of
alleged misfeasance while the same is being reinstated suspension
investigated, to prevent him from using his position or
office to influence prospective witnesses or tamper During such preventive If during the appeal he
with the records, which may be vital in the prosecution suspension, the employee remains suspended and
of the case against him. (Beja v. CA, G.R. No. 91749, is not entitled to payment the penalty imposed is
March 31, 1992) of salaries only reprimand, the
suspension pending
It can be ordered even without a hearing because this appeal becomes illegal
is only preliminary step in an administrative and he is entitled to back
investigation. (Alonzo v. Capulong, et al., G.R. No. salary corresponding to
110590, May 10, 1995) the period of suspension

NOTE: When a public officer is charged with violation of the Q: Is a public officer entitled to backwages during his
Anti-Graft and Corrupt Practices Act or R. A No. 3019, a pre- suspension pending appeal when the result of the
suspension hearing is required solely to determine the decision from such appeal does not amount to
applicability of such law and for the accused be given a fair complete exoneration but carries with it a certain
and adequate opportunity to challenge the validity of the number of days of suspension?
criminal proceedings against him. This may be done through
various pleadings. (Torres v. Garchitorena, G.R. No. 153666,
December 27, 2002)

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A: No. Although entitled to reinstatement, he is not Availability of the services of the Solicitor General
entitled to back wages during such suspension
pending appeal. Only one who is completely If the public official is sued for damages arising out of
exonerated or merely reprimanded is entitled to such a felony for his own account, the State is not liable
back wages. (Sec. of Education, etc. v. CA. G.R. No. and the Solicitor General is not authorized to
128559, October 4, 2000) represent him therefore. The Solicitor General may
only do so in suits for damages arising not from a
Conditions before an employee may be entitled to crime but from the performance of a public officers
back salaries duties. (Vital-Gozon v. Court of Appeals, G.R No.
101428, August 5, 1992)
1) The employee must be found innocent of the
charges and IMMUNITY OF PUBLIC OFFICERS
2) His suspension must be unjustified (Civil Service
Commission v. Cruz GR No. 187858, August Immunity
9,2011)
It is an exemption that a person or entity enjoys from
Disciplinary action the normal operation of the law such as a legal duty or
liability, either criminal or civil.
It is a proceeding, which seeks the imposition of
disciplinary sanction against, or the dismissal or Immunity of public officers from liabilities to third
suspension of, a public officer or employee on any of persons
the grounds prescribed by law after due hearing.
It is well settled as a general rule that public officers of
Availability of appeal in administrative disciplinary the government, in the performance of their public
cases functions, are not liable to third persons, either for the
misfeasances or positive wrongs, or for the
It depends on the penalty imposed: nonfeasances, negligences, or omissions of duty of
1. Appeal is available if the penalty is: their official subordinates. (McCarthy v. Aldanese, G.R.
a. Demotion No. L-19715, March 5, 1923)
b. Dismissal, or
c. Suspension for more than 30 days or fine Rationale behind official immunity
equivalent to more than 30 day salary (P.D.
807, Sec.37 par [a]) It promotes fearless, vigorous, and effective
administration of policies of government. The threat
NOTE: Decisions are initially appealable to the of suit could also deter competent people from
department heads and then to the CSC.Only the accepting public office.
respondent in the administrative disciplinary case, not
the complainant, can appeal to the CSC from an adverse
The immunity of public officers from liability for the
decision. The complainant in an administrative
disciplinary case is only a witness, and as such, the latter non-feasances, negligence or omissions of duty of
cannot be considered as an aggrieved party entitled to their official subordinates and even for the latters
appeal from an adverse decision. (Mendez v. Civil misfeasances or positive wrongs rests upon obvious
Service Commission, G. R. No. 95575, Dec. 23, 1991) considerations of public policy, the necessities of the
public service and the perplexities and
2. Appeal is NOT available if the penalty is: embarrassments of a contrary doctrine. (Alberto V.
a. Respondent is exonerated Reyes, Wilfredo B. Domo-Ong and Herminio C.
b. Suspension for not more than 30 days Principio vs Rural Bank of San Miguel (Bulacan), INC.,
c. Fine not more than 30 day salary G.R. No. 154499, February 27, 2004)
d. Censure
e. Reprimand Applicability of the doctrine of immunity of public
f. Admonition officers

NOTE: In the second case, the decision becomes final and This doctrine is applicable only whenever a public
executory by express provision of law. officer is in the performance of his public functions. On
the other hand, this doctrine does not apply whenever
a public officer acts outside the scope of his public
functions.

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LAW ON PUBLIC OFFICERS

are concerned are, if done within the scope and


NOTE: A public officer enjoys only qualified, NOT absolute by the apparent authority of the office, are
immunity. considered valid and binding.
2. The de facto officer cannot benefit from his own
Distinction between Official immunity from State status because public policy demands that
immunity unlawful assumption of public office be
discouraged.
Immunity of public officials is a more limited principle
than governmental immunity, since its purpose is not NOTE: The general rule is that a de facto officer cannot
directly to protect the sovereign, but rather to do so claim salary and other compensations for services
only collaterally, by protecting the public official in the rendered by him as such. However, the officer may
performance of his government function, while, the retain salaries collected by him for services rendered in
doctrine of State immunity principally rested upon the good faith when there is no de jure officer claiming the
office.
tenuous ground that the king could do no wrong. It
served to protect the impersonal body politic or
government itself from tort liability. 3. The de facto officer is subject to the same
liabilities imposed on the de jure officer in the
DE JURE AND DE FACTO OFFICERS discharge of official duties, in addition to
whatever special damages may be due from him
De jure officer because of his unlawful assumption of office.

A de jure officer is one who is in all respects legally Manner by which challenge to a de facto office is
appointed or elected and qualified to exercise the made
office.
1. The incumbency may not be challenged
De facto officer collaterally or in an action to which the de facto
officer is not a party.
A de facto officer is one who assumed office under the 2. The challenge must be made in a direct
color of a known appointment or election but which proceeding where title to the office will be the
appointment or election is void for reasons that the principal issue.
officer was not eligible, or that there was want of 3. The authorized proceeding is quo warranto either
power in the electing body, or that there was some by the Solicitor General in the name of the
other defect or irregularity in its exercise, wherein Republic or by any person claiming title to the
such ineligibility, want of power, or defect being office.
unknown to the public.
Q: ACE ran for congressman of Cagayan province. His
De jure officer v. De facto officer opponent, Mark, however, was the one proclaimed
as the winner by the COMELEC. ACE filed seasonably
a protest before the HRET. After two years, the HRET
DE JURE OFFICER DE FACTO OFFICER
reversed the COMELECs decision and ACE was
Has lawful title to the Has possession and
proclaimed finally as the duly elected Congressman.
office performs the duties
Thus, he had only one year to serve in Congress.
under a colorable title
without being technically
1. Can ACE collect salaries and allowances from the
qualified in all points of
government for the first two years of his term as
law to act
Congressman?
Holding of office rests Holding of office rests on
2. Should Mark refund to the government the
on right reputation
salaries and allowances he had received as
Officer cannot be Officer may be ousted in a
Congressman?
removed through a direct proceeding against
3. What will happen to the bills that Mark alone
direct proceeding him.
authored and were approved by the HoR while
(quo warranto).
he was seated as Congressman? Reason and
explain briefly.
Effects of the acts of de facto officers A:
1. ACE cannot collect salaries and allowances from
1. The lawful acts, so far as the rights of third persons the government for the first two years of his term,

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159 FACULTY OF CIVIL LAW
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because in the meanwhile Mark collected the 3. It would be tantamount to a suit against the State
salaries and allowances. Mark was a de facto in its own court, which is prohibited except with
officer while he was in possession of the office. To its consent.
allow ACE to collect the salaries and allowances
will result in making the government pay a second QUO WARRANTO
time.
2. Mark is not required to refund to the government Quo warranto
the salaries and allowances he received. As a de
facto officer, he is entitled to the salaries and It is a proceeding or writ issued by the court to
allowances because he rendered services during determine the right to use an office, position or
his incumbency. franchise and to oust the person holding or exercising
3. The bills which Mark alone authored and were such office, position or franchise if his right is
approved by the House of Representatives are unfounded or if a person performed acts considered
valid because he was a de facto officer during his as grounds for forfeiture of said exercise of position,
incumbency. The acts of a de facto officer are valid office or franchise.
insofar as the public is concerned. (Rodriguez v.
Tan, G.R. No. L-3913, August 7, 1952) NOTE: It is commenced by a verified petition brought in the
name of the Republic of the Philippines or in the name of the
Recovery of the salary received by a de facto officer person claiming to be entitled to a public office or position
usurped or unlawfully held or exercised by another. (Sec. 1,
during a wrongful tenure
Rule 66)

As a rule, the rightful incumbent of the public office


Nature and purpose of quo warranto
may recover from a de facto officer the salaries
received by the latter during the time of the latter's
It literally means by what authority and the object is
wrongful tenure even though he entered into the
to determine the right of a person to the use or
office in good faith and under a colorable title. The de
exercise of a franchise or office and to oust the holder
facto officer takes the salaries at his risks and must
from its enjoyment, if his claim is not well-founded, or
therefore account to the de jure officer for the
if he has forfeited his right to enjoy the office. (Tecson
amounts he received. However, where there is no de
v. Comelec, 424 SCRA 227)
jure officer, a de facto officer shall be entitled to the
salaries and emoluments accruing during the period
Quo warranto under Rule 66 v. Quo warranto in
when he actually discharged the duties. (Monroy v. CA,
electoral proceedings
G.R. No. L-23258, July 1, 1967)

NOTE: In Monroy v. CA, the Supreme Court said that the


QUO WARRANTO IN
QUO WARRANTO
Rodriguez ruling cannot be applied for the absence of factual ELECTORAL
UNDER RULE 66
and legal similarities. PROCEEDINGS
Issue is legality of the Issue is eligibility of the
Essence of de facto doctrine occupancy of the office person elected
by virtue of a legal
The de facto doctrine has been formulated, not for the appointment
protection of the de facto officer principally, but rather Grounds: usurpation, Grounds: ineligibility or
for the protection of the public and individuals who get forfeiture, or illegal disqualification to hold
involved in the official acts of persons discharging the association (Sec. 1, Rule the office (Sec. 253,
duties of an office without being lawful officers. 66, Rules of Court) Omnibus Election Code)
Presupposes that the Petition must be filed
Q: May the salary of a public officer or employee be respondent is already within 10 days from the
subject to garnishment? Why? actually holding office proclamation of the
and action must be candidate.
A: No. It may not, by garnishment, attachment, or commenced within 1
order of execution, be seized before being paid to him, year from cause of
and appropriated for the payment of his debts, ouster or from the time
because of the following reasons: the right of petitioner to
1. While it is still in the hands of the disbursing hold office arose.
officer, it belongs to the government; Petitioner is person Petitioner may be any
2. Public policy forbids such practice since it would entitled to office voter even if he is not
be fatal to the public service; and entitled to the office.

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Person adjudged entitled Actual or Q: Conrad, an elected Punong Barangay, ran for
to the office may bring a compensatory Municipal Councilor while serving his last term as the
separate action against damages are PB. He won and later assumed office and served the
the respondent to recoverable in quo full term of Municipal Councilor. After serving his
recover damages. (Sec. warranto proceedings term, he filed his COC for PB. His opponent filed a
11, Rule 66, Rules of under the Omnibus Petition for Disqualification on the ground the he had
Court) Election Code. already served the three-term limit. Should Conrad
be disqualified?
NOTE: If the dispute is as to the counting of votes or on
matters connected with the conduct of the election, quo A: Yes. Conrad was serving his third term as PB when
warranto is not the proper remedy but an election protest. he ran for SB member and, upon winning, assumed the
(Cesar v. Garrido, G.R. No. 30705, March 25, 1929) position of SB member, thus, voluntarily relinquishing
his office as PB which the Court deems a voluntary
De facto officer v. Usurper renunciation of said office. Under Sec.8 of Art. X of the
Constitution, voluntary renunciation of the office for
DE FACTO OFFICER USURPER any length of time shall not be considered as an
Complies with the 3 Takes possession of an interruption in the continuity of his service for the full
elements of a de jure office and does official term for which he was elected. (Bolos v COMELEC, G.R.
officer acts without any actual No. 184082, March 17, 2009)
or apparent authority
Q: Ryan Cristopher was elected City Councilor for
Has color of right or title Has neither color of right three consecutive terms. During his last term, the
to office or title to office Sandiganbayan preventively suspended him for 90
Acts are rendered valid as Acts are absolutely void days in relation with a criminal case he then faced.
to the public until his title The Court, however, subsequently lifted the
is adjudged insufficient suspension order; hence he resumed performing his
functions and finished his term. He filed his COC for
Entitled to compensation Not entitled to the same position. April sought to deny due course to
for services rendered compensation Ryan Cristopher's COC on the ground that he had
been elected and he served for three terms. Is
TERMINATION OF OFFICIAL RELATION preventive suspension considered an interruption of
the three-term limit rule?
Modes of terminating official relationships
A: No. The intent of the three-term limit rule demands
1. Expiration of term or tenure that preventive suspension should not be considered
2. Reaching the age limit for retirement an interruption that allows an elective official's stay in
3. Resignation office beyond three terms. A preventive suspension
4. Recall cannot simply be a term interruption because the
5. Removal suspended official continues to stay in the office
6. Abandonment although he is barred from exercising his functions and
7. Acceptance of an incompatible office prerogatives of the office within the suspension
8. Abolition of office period. The best indicator of the suspended official's
9. Prescription of the right to office continuity in office is the absence of a permanent
10. Impeachment replacement and the lack of authority to appoint one
11. Death since no vacancy exists. (Aldovino v. COMELEC, G.R.
12. Failure to assume office No. 184836, December 23, 2009)
13. Conviction of a crime
14. Filing for a COC Q: Henry was elected and served as mayor of the
Municipality of Digos for terms 1992-1995, 1995-
Rationale for the three-term limit rule 1998, and 1998-2001. During his third term, the
Municipality of Digos was converted into a
To prevent the establishment of political dynasties and component city, with the corresponding cityhood law
to enhance the freedom of choice of the people. providing the holdover of elective officials. When
(Borja, Jr. v. COMELEC, G.R. No. 133495, September 3, Henry filed his COC as mayor for the 2001 elections,
1998) the court declared Henry as disqualified to run as

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mayor of Digos City for violation of the three-term Courtesy resignation


limit rule. Should Henry be disqualified?
It cannot properly be interpreted as resignation in the
A: Yes. The conversion of a municipality into a city legal sense for it is not necessarily a reflection of a
does not constitute an interruption of the incumbent public official's intention to surrender his position.
officials continuity of service. Henry did involuntarily Rather, it manifests his submission to the will of the
relinquish his office as municipal mayor since the said political authority and the appointing power. (Ortiz V.
office has been deemed abolished due to the COMELEC, G.R. No. 78957 June 28, 1988)
conversion. However, the very instant he vacated his
office as municipal mayor, he also assumed office as Q: During the May 1998 election, petitioner Henry
city mayor. The elective officials of the Municipality of was elected President while respondent Erika was
Digos continued to exercise their powers and elected Vice-President. From the beginning of his
functions until elections were held for the new city term, petitioner was plagued by jueteng issues that
officials. True, the new city acquired a new corporate slowly eroded his popularity. Afterwards, the
existence separate and distinct from that of the impeachment trial started and the people conducted
municipality. This does not mean, however, that for a 10-kilometer line holding lighted candles in EDSA
the purpose of applying the subject Constitutional Shrine to symbolize their solidarity in demanding
provision, the office of the municipal mayor would Henrys resignation. On January 19, Henry agreed to
now be construed as a different local government post the holding of a snap election for President. On
as that of the office of the city mayor. (Abundo v. January 20, Chief Justice Dexter administered the
COMELEC, G.R.No. 201716, January 08, 2013) oath to respondent Erika as President of the
Philippines. On the same day, Henry issued a press
Age limit for retirement statement that he was leaving Malacanang Palace for
the sake of peace and in order to begin the healing
1. For members of SC and judges of lower courts 70 process of the nation. It also appeared that on the
y.o. same day, he signed a letter stating that he was
2. Gov't officers and employees 65 y.o. transmitting a declaration that he was unable to
3. Optional retirement 60 y.o. Must have rendered exercise the powers and duties of his office and that
at least 20 service years by operation of law and the Constitution, the Vice-
President shall be the Acting President. Are the acts
Resignation of Henry constitutive of resignation?

It is the act of giving up or declining a public office and A: Yes. Resignation is not a high level legal abstraction.
renouncing the further right to use such office. It must It is a factual question and its elements are beyond
be in writing and accepted by the accepting authority quibble: there must be an intent to resign and the
as provided for by law. intent must be coupled by acts of relinquishment. The
validity of a resignation is not governed by any formal
Accepting authorities for resignation requirement as to form. It can be oral, written, express
or implied. As long as the resignation is clear, it must
1. For appointed officers the tender of resignation be given legal effect. In the case at bar, whether Henry
must be given to the appointing authority; resigned has to be determined from his acts and
2. For elected officers, tender to officer authorized omissions before, during and after January 20 or by
by law to call an election to fill the vacancy. The the totality of prior, contemporaneous and posterior
following authorized officers are: facts and circumstantial evidence bearing a material
a. Respective chambers For members of relevance on the issue. Using this totality test, the
Congress; resignation of Henry could not be doubted. The
b. President For governors, vice-governors, proposal for a snap election for president in May
mayors and vice-mayors of highly urbanized where he would not be a candidate is an indicium that
cities and independent component cities; petitioner had intended to give up the presidency even
c. Provincial governor For municipal mayors at that time. It was also confirmed by his leaving
and vice-mayors, city mayors and vice- Malacaang. He emphasized he was leaving the
mayors of component cities; Palace, the seat of the presidency, for the sake of
d. Sanggunian concerned For sanggunian peace and in order to begin the healing process of our
members; nation. He did not say he was leaving the Palace due
e. Municipal/city mayors For barangay to any kind inability and that he was going to re-
officials. assume the presidency as soon as the disability

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disappears. Thus, Henry constructively resigned as absolutely vacates the first office. That the second office is
President. (Estrada v. Arroyo, G.R. No. 146738, March inferior to the first does not affect the rule.
2, 2001)
Prescriptive period for petitions for reinstatement or
Removal recovery of public office

Forcible and permanent separation of the incumbent It must be instituted within 1 year from the date of
from office before the expiration of the public officer's unlawful removal from the office. Such period may be
term. (Feria, Jr.. v. Mison, G.R. No. 8196, August 8, extended on grounds of equity.
1989)
Period to take the oath of office to avoid failure to
Recall assume office

It is an electoral mode of removal employed directly Failure to take the oath of office within 6 months from
by the people themselves through the exercise of their proclamation of election shall cause the vacancy of the
right of suffrage. It is a political question not subject to office UNLESS such failure is for a cause beyond his
judicial review. It is a political question that has to be control. (Sec. 11 B.P. 881)
decided by the people in their sovereign capacity.
(Evardone v. COMELEC, G.R. No. 94010, December 2, Termination of official relationship by conviction of
1991) final judgment

Limitations on recall When the penalty imposed carries with it the


accessory penalty of disqualification.
1. An elective official can be subjected to recall only
once THE CIVIL SERVICE
2. No recall shall take place within one (1) year from
the assumption of office or one year immediately Civil Service Commission
preceding a regular local election. (Sec. 74 (b) of
Republic Act No. 7160) The Civil Service Commission (CSC) is the central
personnel agency of the Philippine government and is
Abandonment one of the three independent constitutional
commissions with adjudicative responsibility in the
It is the voluntary relinquishment of an office by the national government structure. It is tasked to render
holder with the intention of terminating his possession final arbitration on disputes and personnel actions on
and control thereof. Civil Service matters. The Commission is composed of
a Chairman and 2 Commissioners appointed by the
Q: Does the acceptance of an incompatible office President for a term of 7 years without reappointment
pertain to its physical impossibility or its nature? and may be removed only by impeachment

A: It refers to the nature and relation of the two offices Scope of civil service
to each other, they should not be held by one person
from the contrariety and antagonism which would The civil service embraces all branches, subdivisions,
result in the attempt by one person to faithfully and instrumentalities, and agencies of the Government,
impartially discharge the duties of one, toward the including GOCCs with original charters. (Sec. 2(1), Art.
incumbent of the other. IX-B, 1987 Constitution)

Q: Does the acceptance of an incompatible office ipso APPOINTMENTS TO THE CIVIL SERVICE
facto vacate the other?
Manner of appointment to the civil service
A: GR: Yes.
Appointments in the civil service shall be made only
XPN: Where such acceptance is authorized by law. according to merit and fitness to be determined, as far
as practicable, and, except to positions which are
NOTE: It is contrary to the policy of the law that the same policy-determining, primarily confidential, or highly
individual should undertake to perform inconsistent and technical, by competitive examination. (Sec. 2(2), Art.
incompatible duties. He who, while occupying one office, IX-B, 1987 Constitution)
accepts another incompatible with the first, ipso facto,

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Principal groups of position in the Civil Service, on the Characteristics of career service
basis of appointment
Under Sec. 7, Chapter 2, Title 1, Book V of the
1. Competitive positions according to merit and Administrative Code of 1987, the career service is
fitness to be determined by competitive characterized by:
examinations, as far as practicable. 1. Entrance based on merit and fitness to be
2. Non-competitive positions do not have to take determined as far as practicable by competitive
into account merit and fitness. No need for examination or based on highly technical
competitive examinations. qualification;
a. Policy-determining tasked to formulate a 2. Opportunity for advancement to higher career
method of action for the government or any position; and
of its subdivisions. 3. Security of tenure.
b. Primarily confidential duties are not merely
clerical but devolve upon the head of an Positions included in career service
office, which, by reason of his numerous
duties, delegates his duties to others, the 1. Open career positions for appointment to which
performance of which requires skill, prior qualifications in an appropriate examination
judgment, trust and confidence. is required
2. Closed career positions which are scientific or
NOTE: The test used to determine confidentiality highly technical in nature
of a position is the Proximity rule. The occupant of 3. Positions in the Career executive service
a particular position could be considered a 4. Career officers other than those in the career
confidential employee if the predominant reason
executive service, who are appointed by the
why he was chosen by the appointing authority
President
was the latters belief that he can share a close
intimate relationship with the occupant which 5. Commissioned officers and enlisted men of the
ensures freedom of discussion without fear of Armed Forces
embarrassment or misgivings of possible betrayals 6. Personnel of GOCCs, whether performing
of personal trust and confidential matters of State. governmental or proprietary functions, who do
(De los Santos v. Mallare, G.R. No. L-3881, August not fall under the non-career service; and
31, 1950) 7. Permanent laborers, whether skilled, semi-skilled,
or unskilled (Sec. 5, P.D. No. 807)
c. Highly technical requires technical skill or
training in the highest degree Positions included in non-career service

NOTE: The test to determine whether the position is 1. Elective officials;


non-competitive is the nature of the responsibilities,
2. Department heads and other officials of Cabinet
not the description given to it. The Constitution does
rank who hold positions at the pleasure of the
not exempt the above-given positions from the
operation of the principle that noofficer or employee President;
of the civil service shall be removed or suspended 3. Chairmen and members of commissions and
except for cause provided by law. boards with fixed terms of office;

Nature of appointment NOTE: The personal and confidential staffs of the above
three enumerated positions are considered included in
non-career service.
Appointment is an essentially discretionary power and
must be performed by the officer in which it is vested
according to his best lights, the only condition being 4. Contractual personnel whose job requires special
that the appointee should possess the qualifications or technical skills not available in the employing
required by law. If he does, then the appointment agency, to be accomplished within a period not
cannot be faulted on the ground that there are others exceeding one year; and
better qualified who should have been preferred. This 5. Emergency and seasonal personnel.
is a political question involving considerations of
wisdom which only the appointing authority can Q: Who may be appointed in the civil service?
decide. (Luego v. CSC, G.R. No. L-69137, August 5,
1986) A: Whoever fulfills all the qualifications prescribed by
law for a particular position may be appointed therein.

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NOTE: The CSC cannot disapprove an appointment just 2. Non-career service officers and employees
because another person is better qualified, as long as the security of tenure is limited to a period specified
appointee is himself qualified. It cannot add qualifications by law, coterminous with the appointing authority
other than those provided by law. (Cortez v. CSC, G.R. No.
or subject to his pleasure, or which is limited to
92673, March 13, 1991)
the duration of a particular purpose.
3. Political appointees in Foreign Service possess
Q: What does the security of tenure of officers or
tenure coterminous with that of the appointing
employees of the civil service guarantee?
authority or subject to his pleasure.
A: Officers or employees of the Civil Service cannot be
NOTE: One must be validly appointed to enjoy security of
removed or suspended except for cause provided by tenure. Thus, one who is not appointed by the proper
law. It guarantees both procedural and substantive appointing authority does not acquire security of tenure.
due process. (Sec. 32, RA 2260)
Q: Sol was first employed as private secretary in the
Characteristic of security of tenure GSIS in 1960 on a confidential status. In 1962, Sol
was promoted to Tabulating Equipment Operator
It is the nature of the appointment that characterizes with permanent status. In 1986, she was appointed
security of tenure and not the nature of ones duties corporate secretary of the Board of Trustees (BOT) of
or functions. Where the appointment is permanent, it the corporation. In 2001, she opted for early
is protected by the security of tenure provision. But if retirement. In 2002, Sol, who was 64 years old at the
it is temporary or in an acting capacity, which can be time, was reappointed by GSIS President (with
terminated at any time, the officer cannot invoke the approval of BOT) as corporate secretary. The BOT
security of tenure. classified her appointment as confidential in nature
and the tenure of office is at the pleasure of the
NOTE: The holder of a temporary appointment cannot claim Board.
a vested right to the station to which assigned, nor to
security of tenure thereat. Thus, he may be reassigned to any
On October 10, 2002, CSC issued a resolution
place or station. (Teotico v. Agda, G.R. No. 87437, May 29,
1991) invalidating the reappointment of Sol as corporate
secretary, on the ground that the position is a
Attachment of security of tenure permanent, career position and not primarily
confidential.
It attaches once an appointment is issued and the
moment the appointee assumes a position in the civil May the courts determine the proper classification of
service under a completed appointment, he acquires a a position in government? Is the position of corporate
legal, not merely equitable, right (to the position) secretary in a GOCC primarily confidential in nature?
which is protected not only by statute, but also by the
constitution, and cannot be taken away from him A: The courts may determine the proper classification
either by revocation of the appointment, or by of a position in government. A strict reading of the law
removal, except for cause, and with previous notice (EO 292) reveals that primarily confidential positions
and hearing. (Aquino v. CSC, G.R. No. 92403, April 22, fall under the non-career service. The tenure of a
1992) confidential employee is co-terminous with that of the
appointing authority, or is at the latter's pleasure.
Legal cause However, the confidential employee may be
appointed or remain in the position even beyond the
It is a cause related to and affects the administration compulsory retirement age of 65 years.
of office and must be substantial - directly affects the
rights and interests of the public. Jurisprudence establishes that the Court is not bound
by the classification of positions in the civil service
Security of tenure for non-competitive positions made by the legislative or executive branches, or even
by a constitutional body like the CSC. The Court is
1. Primarily confidential officers and employees hold expected to make its own determination as to the
office only for so long as confidence in them nature of a particular position, such as whether it is a
remains. If there is genuine loss of confidence, primarily confidential position or not, without being
there is no removal, but merely the expiration of bound by prior classifications made by other bodies.
the term of office.
In fine, a primarily confidential position is
characterized by the close proximity of the positions of

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the appointer and appointee as well as the high degree 3. Entitled to such protection as may be provided by
of trust and confidence inherent in their relationship. law. (Sec. 2[6], Art. IX-B, 1987 Constitution)

In the light of the instant controversy, the Court's view NOTE: No officer or employee in the civil service shall engage
is that the greater public interest is served if the in any electioneering or in partisan political activity.
However, they are allowed to express views on political
position of a corporate secretary is classified as
issues, and to mention the names of the candidates whom
primarily confidential in nature. (CSC v. Javier, G.R. No.
he supports. (Sec. 2[4], Art. IX-B, 1987 Constitution)
173264, February 22, 2008)
The Congress has the right to abolish an office even during
Reorganization the term for which an existing incumbent may have been
elected EXCEPT when restrained by the Constitution.
Reorganization involves the reduction of personnel,
consolidation of offices, or abolition thereof by reason Q: The CSC passed a Resolution abolishing the Career
of economy or redundancy of functions. It alters the Executive Service Board (CESB). Is the resolution
existing structure of government offices or the units valid?
therein, including the lines of control, authority and
responsibility between them to make the bureaucracy A: No. The CESB was created by law (PD 1); it can only
more responsive to the needs of the public clientele as be abolished by the legislature. This follows an
authorized by law. (Pan v. Pena G.R. No. 174244, Feb unbroken stream of rulings that the creation and
13, 2009) abolition of public offices is primarily a legislative
function. (Eugenio v. Civil Service Commission, et al.,
Circumstances that may be considered as evidence of G.R. No. 115863, March 31, 1995)
bad faith in the removals made as a result of
reorganization, giving rise to reinstatement or Disqualifications attached to civil service employees
reappointment or officials

1. Where there is a significant increase in the 1. Losing candidate in any election


number of positions in the new staffing pattern of a. cannot be appointed to any office in the
the department or agency concerned government or GOCCs or their subsidiaries
2. Where an office is abolished and other performing b. period of disqualification: 1 year after such
substantially the same functions is created election
3. Where incumbents are replaced by those less XPN: Losing candidates in barangay elections
qualified in terms of status of appointment,
performance and merit 2. Elective officials:
4. Where there is reclassification of offices in the GR: not eligible for appointment or designation in
department or Agency concerned and the any capacity to any public office or position during
classified offices perform substantially the same their tenure.
function as the original offices
5. Where the removal violates the order of XPN: May hold ex officio positions. E.g. The Vice
separation provided in Sec. 3 hereof. (Cotiangco v. President may be appointed as a Cabinet member
Province of Biliran, G.R. No. 157139, October 19,
2011) 3. Appointive officials:
GR: cannot hold any other office or agency,
Elements of a valid abolition of office instrumentality, including GOCCs and their
subsidiaries
1. In good faith; (good faith is presumed)
2. Not for political or personal reasons; and XPN: unless otherwise allowed by law, or by the
3. Not in violation of law. primary functions of his position.

Rules applicable to temporary employees NOTE: The exception does not apply to Cabinet
members, and those officers mentioned in Art. VII, Sec.
1. Not protected by security of tenure- can be 13. They are governed by the stricter prohibitions
removed anytime even without cause. contained therein.
2. If they are separated, this is considered an
expiration of term. But, they can only be removed
by the one who appointed them.

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Prohibitions attached to elective and appointive reemployment shall be made. (Sec. 26(5), Chapter
officials in terms of compensation 5, Book V, Title I-A of the Revised Administrative
Code of 1987)
GR: They cannot receive: 6. Detail A movement of an employee from one
1. Additional compensation An extra reward given agency to another without issuance of an
for the same office e.g. bonus appointment and shall be allowed, only for a
2. Double compensation When an officer is given 2 limited period in the case of employees occupying
sets of compensation for 2 different offices held professional, technical and scientific positions.
concurrently by 1 officer. (Sec. 26(6), Chapter 5, Book V, Title I-A of the
3. Indirect compensation Revised Administrative Code of 1987)
7. Reassignment An employee may be reassigned
XPN: Unless specifically authorized by law. from one organizational unit to another in the
same agency, provided that such reassignment
NOTE: Specifically authorized means a specific authority shall not involve a reduction in rank, status or
particularly directed to the officer or employee concerned. salary. (Sec. 26(7), Chapter 5, Book V, Title I-A of
Pensions and gratuities, per diems and allowances are not the Revised Administrative Code of 1987)
considered as additional, double, or indirect compensation.
8. Demotion A movement from one position to
(Sec. 7-8, Art. IX-B, 1987 Constitution)
another involving the issuance of an appointment
with diminution in duties, responsibilities, status
PERSONNEL ACTIONS
or rank which may or may not involve reduction in
salary.
Personnel Actions
ACCOUNTABILITY OF PUBLIC OFFICERS
Any action denoting movement or progress of
personnel in the civil service. (City Mayor Debulgado v.
IMPEACHMENT
CSC, G.R. No. 111471, September 26, 1994)
Impeachment
Personnel actions include
Method by which persons holding government
1. Appointment through Certification Issued to a
positions of high authority, prestige, and dignity and
person who has been selected from a list of
with definite tenure may be removed from office for
qualified persons certified by the Commission
causes closely related to their conduct as public
from an appropriate register of eligible and who
officials.
meets all other requirements of the position (Sec.
26(2), Chapter 5, Book V, Title I-A of the Revised
NOTE: It is a national inquest into the conduct of public men.
Administrative Code of 1987) It is primarily intended for the protection of the State, not
2. Promotion Movement from one position to for the punishment of the offender. The penalties attached
another with increase in duties and to the impeachment are merely incidental to the primary
responsibilities as authorized by law and usually intention of protecting the people as a body politic.
accompanied by an increase in pay (Sec. 26(2),
Chapter 5, Book V, Title I-A of the Revised Impeachable officers
Administrative Code of 1987)
3. Transfer A movement from one position to 1. President
another which is of equivalent rank, level or salary 2. Vice-President
without break in service involving issuance of an 3. Members of the Supreme Court
appointment. 4. Members of the Constitutional Commissions
4. Reinstatement A person who has been 5. Ombudsman
permanently appointed to a position in the career
service and who has, through no delinquency or NOTE: The enumeration is exclusive. (Sec. 2, Art. XI, 1987
misconduct, been separated therefrom, may be Constitution)
reinstated to a position in the same level for which
he is qualified. Grounds for impeachment
5. Reemployment Persons who have been
appointed permanently to positions in the career 1. Culpable violation of the Constitution
service and who have been separated as result of 2. Treason
reduction in force and or reorganization shall be 3. Bribery
entered in a list from which selection for 4. Graft and Corruption

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5. Other high crimes necessary either to affirm a favorable


6. Betrayal of public trust (Sec. 2, Art. XI, 1987 resolution with the Articles of Impeachment
Constitution) of the committee or override its contrary
resolution. (Sec. 3 (2-3), Art. XI. 1987
NOTE: The enumeration is exclusive. Constitution)

Culpable violation of the Constitution 2. Trial and Decision in impeachment proceedings


a. The Senators take an oath or affirmation
It refers to wrongful, intentional or willful disregard or b. When the President of the Philippines is on
flouting of the fundamental law. Obviously, the act must trial, the Chief Justice of the SC shall preside
be deliberate and motivated by bad faith to constitute a but shall not vote.
ground for impeachment. Mere mistakes in the proper c. A decision of conviction must be concurred in
construction of the Constitution, on which students of by at least 2/3 of all the members of Senate.
law may sincerely differ, cannot be considered a valid
ground for impeachment. NOTE: The Senate has the sole power to try and decide all
cases of impeachment. (Sec. 3(6), Art. XI, 1987 Constitution)
Betrayal of public trust
Impeachment is deemed initiated when
The 1987 Constitution has added betrayal of public
trust, which means any form of violation of the oath of A verified complaint is filed and referred to the
office even if such violation may not be criminally Committee on Justice for action. This is the initiating
punishable offense. step which triggers the series of step that follow. The
term to initiate refers to the filing of the
This is a catch-all to cover all manner of offenses impeachment complaint coupled with Congress
unbecoming a public functionary but not punishable by taking initial action of said complaint. (Francisco v.
the criminal statutes, like inexcusable negligence of House of Rep., G.R. No. 160261, November 10, 2003)
duty, tyrannical abuse of authority, breach of official
duty by malfeasance or misfeasance, cronyism, Power of the HoR to determine the sufficiency of
favoritism, obstruction of justice. form and substance of an impeachment complaint

Steps in the impeachment process It is an exponent of the express constitutional grant of


rulemaking powers of the House of Representatives. In
1. Initiating impeachment case the discharge of that power and in the exercise of its
a. Verified complaint filed by any member of the discretion, the House has formulated determinable
House of Representatives or any citizen upon standards as to form and substance of an
resolution of endorsement by any member impeachment complaint. Furthermore the
thereof. impeachment rules are clear in echoing the
b. Included in the order of business within 10 constitutional requirements in providing that there
session days. must be a verified complaint or resolution and that
c. Referred to the proper committee within 3 the substance requirement is met if there is a recital
session days from its inclusion. of facts constituting the offense charged and
d. The committee, after hearing, and by determinative of the jurisdiction of the committee.
majority vote of all its members, shall submit (Ma.Merceditas Gutierrez v. The House of
its report to the House of Representatives Representatives Committee on Justice, G.R. No.
together with the corresponding resolution. 193459, February 15,2011)
e. Placing on calendar the Committee resolution
Purpose of the one-year bar rule
within 10 days from submission;
f. Discussion on the floor of the report;
The purpose of the one-year bar is two-fold:
NOTE: If the verified complaint is filed by at least 1. To prevent undue or too frequent harassment
1/3 of all its members of the House of 2. To allow the legislature to do its principal task of
Representatives, the same shall constitute the legislation. (Francisco v. House of Rep., G.R. No.
Articles of Impeachment, and trial by the Senate 160261, November 10, 2003)
shall forthwith proceed. (Sec. 3 (4), Art. XI, 1987
Constitution) The consideration behind the intended limitation
refers to the element of time, and not the number of
g. A vote of at least 1/3 of all the members of complaints. The impeachable officer should defend
the House of Representatives shall be

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himself in only one impeachment proceeding, so that his security of tenure. (In Re: First Indorsement from
he will not be precluded from performing his official Hon. Raul Gonzalez, A.M. No. 88-4-5433, April 15,
functions and duties. Similarly, Congress should run 1988)
only one impeachment proceeding so as not to leave
it with little time to attend to its main work of law- An impeachable officer who is a member of the
making. The doctrine laid down in Francisco that Philippine bar cannot be disbarred first without being
initiation means filing and referral remains congruent impeached. (Jarque v. Desierto, 250 SCRA 11, 1995)
to the rationale of the constitutional provision.
(Gutierrez v. The House of Representatives Committee OMBUDSMAN
on Justice, G.R. No. 193459, February 15, 2011)
Qualifications for the Ombudsman and his Deputies
Effects of conviction in impeachment
1. Natural born citizen of the Philippines;
1. Removal from office 2. At least 40 years of age at the time of
2. Disqualification to hold any other office under the appointment;
Republic of the Philippines 3. Of recognized probity and independence;
3. Party convicted shall be liable and subject to 4. Member of the Philippine Bar;
prosecution, trial and punishment according to 5. Must not have been candidate for any elective
law. (Sec. 3 (7), Art. XI, 1987 Constitution) office in the immediately preceding election;
6. For Ombudsman: He must have been for ten years
Limitations imposed by the Constitution upon the or more as a judge or engaged in the practice of
initiation of impeachment proceedings law in the Philippines.

1. The House of Representatives shall have the Function of the Ombudsman


exclusive power to initiate all cases of
impeachment. He is tasked to entertain complaints addressed to him
2. Not more than one impeachment proceeding against erring public officers and take all necessary
shall be initiated against the same official within a actions thereon.
period of one year.
NOTE: The powers of the Ombudsman are not merely
NOTE: An impeachment case is the legal controversy that recommendatory. His office was given teeth to render this
must be decided by the Senate while an impeachment constitutional body not merely functional but also effective.
proceeding is one that is initiated in the House of Under RA 6770 and the 1987 Constitution, the Ombudsman
Representatives. For purposes of applying the one year ban has the constitutional power to directly remove from
rule, the proceeding is initiated or begins when a verified government service an erring public official other than a
complaint is filed and referred to the Committee on Justice member of Congress and the Judiciary. (Estarija v. Ranada,
for action. (Francisco v. House of Representatives, et. al., G.R. G.R No. 159314, June 26, 2006)
No. 160261, November 10, 2003)
Ombudsmans fiscal autonomy
The power to impeach is essentially a non-legislative
prerogative and can be exercised by Congress only within the
The Ombudsman shall enjoy fiscal autonomy. Its
limits of the authority conferred upon it by the Constitution.
(ibid) approved annual appropriations shall be automatically
and regularly released. (Sec. 14 of Art. XI of the 1987
Initiation takes place by the act of filing of the impeachment Constitution)
complaint and referral to the House Committee on Justice.
Once an impeachment complaint has been initiated in the Term of office
foregoing manner, another may not be filed against the
same official within a one year period. (Gutierrez v. House of 7 years without reappointment. (Sec. 11 of Art. XI of
Representatives Committee on Justice, G.R. No. 193459, the 1987 Constitution)
February 15, 2011)
Disqualifications and inhibitions
Q: Can a Supreme Court Justice be charged in a
criminal case or disbarment proceeding instead of an
1. Shall not hold any other office or employment;
impeachment proceeding?
2. Shall not engage in the practice of any profession
or in the active management or control of any
A: No, because the ultimate effect of either is to
business which in any way may be affected by the
remove him from office, and thus circumvent the
functions of his office;
provision on removal by impeachment thus violating

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3. Shall not be financially interested, directly or Delegability of the powers of the Ombudsman
indirectly, in any contract with, or in any franchise
or privilege granted by the government, or any of The power to investigate or conduct a preliminary
its subdivisions, etc. investigation on any Ombudsman case may be
4. Shall not be qualified to run for any office in the exercised by an investigator or prosecutor of the Office
election immediately succeeding their cessation of the Ombudsman, or by any Provincial or City
from office. (Sec. 9 of RA 6770) Prosecutor or their assistance, either in their regular
capacities or as deputized Ombudsman prosecutors.
Scope of the powers (Honasan II v. Panel of Investigators of the DOJ, 2004)

Over the years the scope of the powers of the NOTE: While the Ombudsmans power to investigate is
Ombudsman under Sec. 13, Art. XI of the 1987 primary, it is not exclusive and, under the Ombudsman Act
Constitution has been clarified thus settling various of 1989, he may delegate it to others and take it back any
time he wants to. (Acop v. Ombudsman, G.R. No. 120422,
disputed issues:
September 27, 1995)
1. The ombudsman can investigate only officers of
government owned corporations with original
Power of the Ombudsman to directly dismiss a public
charter. (Khan, Jr v Ombudsman, G.R. No. 125296,
officer
July 20. 2006)
2. The jurisdiction of the Ombudsman over
disciplinary cases involving public school teachers Under Sec. 13(3) of Art. XI, the Ombudsman can only
has been modified by Sec. 9 of RA 4670, otherwise recommend to the officer concerned the removal of a
known as the Magna Carta for Public School public officer or employee found to be
Teachers, which says that such cases must first go administratively liable. (Tapiador v. Office of the
to a committee appointed by the Secretary of Ombudsman, G.R. No. 129124. March 15, 2002) Be
Education. (Ombudsman v. Estandarte, G.R. that as it may, the refusal, without just cause, of any
168670, April 13, 2007.) officer to comply with such an order of the
3. The Ombudsman Act authorizes the Ombudsman Ombudsman to penalize erring officer or employee is
to impose penalties in administrative cases. a ground for disciplinary action. Thus, there is a strong
(Ombudsman v. CA, November 22, 2006; indication that the Ombudsmans recommendation is
Ombudsman v. Lucero, November 24, 2006) not merely advisory in nature but actually mandatory
within the bounds of law. This should not be
NOTE: According to the LGC, elective officials may be interpreted as usurpation of the Ombudsman of the
dismissed only by the proper court. Where the authority of the head of office or any officer
disciplining authority is given only the power to suspend concerned. It has long been settled that the power of
and not the power to remove, it should not be the Ombudsman to investigate and prosecute any
permitted to manipulate the law by usurping the power illegal act or omission of any public official is not an
to remove.(Sangguniang Barangay v. Punong exclusive authority, but a shared or concurrent
Barangay, G.R. No. 170626, March 3, 2008)
authority in respect of the offense charged. (Ledesma
v. CA, GR 161629, 29 July 2005)
5. The Special Prosecutor may not file information
without authority from the Ombudsman. (Perez v. Power of the military deputy Ombudsman to
Sandigabayan, G.R. No. 166062, Sept. 26, 2006) investigate civilian police
6. The Ombudsman has been conferred rule making
power to govern procedures under it. (703 Since the power of the Ombudsman is broad and the
Buencamino v. CA, GR 175895, April 4, 2007) Deputy Ombudsman acts under the direction of the
7. The power to investigate or conduct a preliminary Ombudsman, the power of the Military Deputy to
investigation on any Ombudsman case may be investigate members of the civilian police has also
exercised by an investigator or prosecutor of the been affirmed. (Acop v. Ombudsman, G.R. No. 120422,
Office of the Ombudsman, or by any Provincial or September 27, 1995)
City Prosecutor or their assistance, either in their
regular capacities or as deputized Ombudsman Q: Can the claim of confidentiality prevent the
prosecutors. (Honasan II v. Panel of Investigators Ombudsman from demanding the production of
of the DOJ, G.R. No.159747, April 13, 2004) documents needed for their investigation?
8. A preventive suspension will only last ninety (90)
days, not the entire duration of the criminal case. A: No. In Almonte v. Vasquez, G.R. No. 95367 May 23,
(Villasenor v Sandiganbayan G.R. No. 180700, 1995, the Court said that where the claim of
March 4, 2008) confidentiality does not rest in the need to protect

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military, diplomatic or the national security secrets but 15(4) RA 6770; see also Sec. 13(4), Art. XI, 1987
on general public interest in preserving confidentiality, Constitution);
the courts have declined to find in the Constitution an 5. Request any government agency for assistance
absolute privilege even for the President. and information necessary in the discharge of its
responsibilities, and to examine, if necessary,
Moreover, even in cases where matters are really pertinent records and documents (Sec. 15(5), RA
confidential, inspection can be done in camera. 6770; see also Sec. 13(5), Art. XI, 1987
Constitution);
Powers, functions & duties of the Office of the 6. Publicize matters covered by its investigation of
Ombudsman as Protector of the People the matters mentioned in paragraphs (1), (2), (3)
and (4) hereof, when circumstances so warrant
1. Investigate and prosecute on its own or on and with due determine what cases may not be
complaint by any person, any act or omission of made public: Provided further, That any publicity
any public officer or employee, office or agency, issued by the Ombudsman shall be balanced, fair,
when such act or omission appears to be illegal, and true (Sec. 15(6) RA 6770; see also Sec. 13(6),
unjust, improper or inefficient. It has primary Art. XI,1987 Constitution);
jurisdiction over cases cognizable by the 7. Determine the causes of inefficiency, red tape,
Sandiganbayan and, in the exercise of his primary mismanagement, fraud, and corruption in the
jurisdiction, it may take over, at any stage, from Government and make recommendations for
any investigatory agency of Government, the their elimination and the observance of high
investigation of such cases (Sec. 15(1) RA 6770; standards of ethics and efficiency (Sec. 15(7) RA
see also Sec. 13(1), Art. XI, 1987 Constitution); 6770; see also Sec. 13(7), Art. XI, 1987
2. Direct, upon complaint or at its own instance, any Constitution);
officer or employee of the Government, or of any 8. Administer oaths, issue subpoena and
subdivision, agency or instrumentality thereof, as subpoena duces tecum, and take testimony in any
well as any government-owned or controlled investigation or inquiry, including the power to
corporations with original charter, to perform and examine and have access to bank accounts and
expedite any act or duty required by law, or to records (Sec. 15(8), RA 6770);
stop, prevent, and correct any abuse or 9. Punish for contempt in accordance with the Rules
impropriety in the performance of duties (Sec. of Court and under the same procedure and with
15(2) RA 6770; Sec. 13(2) Art. XI, the same penalties provided therein (Sec. 15(9),
1987Constitution); RA 6770);
3. Direct the officer concerned to take appropriate 10. Delegate to the Deputies, or its investigators or
action against a public officer or employee at fault representatives such authority or duty as shall
or who neglects to perform an act or discharge a ensure the effective exercise of performance of
duty required by law, and recommend his the powers, functions, and duties herein or
removal, suspension, demotion, fine, censure, or hereinafter provided (Sec. 15(10), RA6770);
prosecution, and ensure compliance therewith; or 11. Investigate and initiate the proper action for the
enforce its disciplinary authority as provided in recovery of ill-gotten and/or unexplained wealth
Sec. 21 or this Act: Provided, That the refusal by amassed after February 25, 1986 and the
any officer without just cause to comply with an prosecution of the parties involved therein (Sec.
order of the Ombudsman to remove, suspend, 15(11), RA 6770);
demote, fine, censure, or prosecute an officer or 12. Promulgate its rules of procedure and exercise
employee who is at fault or who neglects to such other powers or perform such functions or
perform an act or discharge a duty required by law duties as may be provided by law (Sec. 13(7), Art.
shall be ground for disciplinary action against said XI, 1987 Constitution; see also Sec. 18, RA 6770);
officer (Sec. 15(3) RA 6770; see also Sec. 13(3), Art.
XI, 1987 Constitution);
4. Direct the officer concerned, in any appropriate
case, and subject to such limitations as it may
provide in its rules of procedure, to furnish it with
copies of documents relating to contracts or
transactions entered into by his office involving
the disbursement or use of public funds or
properties, and report any irregularity to the
Commission on Audit for appropriate action (Sec.

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JUDICIAL REVIEW IN ADMINISTRATIVE SCRA 725, 1993)


PROCEEDINGS
NOTE: In Garcia-Rueda v. Pascasio, G.R. No. 118141,
Authority of the Ombudsman in reviewing September 5, 1997, the Court held that while the
Administrative proceedings Ombudsman has the full discretion to determine whether or
not a criminal case is to be filed, the Court is not precluded
from reviewing the Ombudsmans action when there is grave
Sec. 19 of the Ombudsman Act further enumerates the abuse of discretion.
types of acts covered by the authority granted to the
Ombudsman: SANDIGANBAYAN
The Ombudsman shall act on all complaints relating,
but not limited to acts or omissions which: Composition of the Sandiganbayan
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or Under PD 1606, it is composed of:
discriminatory; 1. Presiding Justice
3. Are inconsistent with the general course of an 2. Eight Associate Justices, with the rank of Justice of
agency's functions, though in accordance with the Court of Appeals
law;
4. Proceed from a mistake of law or an arbitrary NOTE: It sits in 3 divisions with three members each.
ascertainment of facts;
5. Are in the exercise of discretionary powers but for Nature of the Sandiganbayan
an improper purpose; or
6. Are otherwise irregular, immoral or devoid of Sandiganbayan is NOT a constitutional court. It is a
justification statutory court; that is, it is created not only by the
Constitution but by statute, although its creation is
In the exercise of its duties, the Ombudsman is given mandated by the Constitution.
full administrative disciplinary authority. His power is
not limited merely to receiving, processing complaints, Elements that must concur in order that a case may
or recommending penalties. He is to conduct fall under the exclusive jurisdiction of the
investigations, hold hearings, summon witnesses and Sandiganbayan
require production of evidence and place respondents
under preventive suspension. This includes the power 1. The offense committed is a violation of RA 1379,
to impose the penalty of removal, suspension, Chapter II, Sec. 1, Title VII, Book II of the Revised
demotion, fine, or censure of a public officer or Penal Code, Executive Orders Nos. 1, 2 14 and 14-
employee. (Ombudsman v. Galicia, G.R. No. 167711, A, issued in 1986, or other offenses or felonies
October 10, 2008) whether simple or complexed with other crimes
2. The offender committing the offenses (violating
NOTE: Appeals from resolutions of the Office of the
RA 3019, RA 1379, the RPC provisions, and other
Ombudsman in administrative disciplinary cases should be
offenses, is a public official or employee holding
taken to the Court of Appeals via Petition for Review under
Rule 43 of the Rules of Court. (Fabian v. Desierto, G.R. No. any of the positions enumerated in par. A, Sec. 4,
129742, September 16, 1998) RA 8249
3. The offense committed is in relation to the office.
JUDICIAL REVIEW IN PENAL PROCEEDINGS (Lacson v. Executive Secretary,G.R. No. 128096
January 20, 1999)
Authority of the Ombudsman in reviewing penal
proceedings NOTE: In case private individuals are charged as co-
principals, accomplices or accessories with the public
officers or employees, they shall be tried jointly with said
In the exercise of its investigative power, this Court has public officers and employees. (Sec. 4, PD 1606)
consistently held that courts will not interfere with the
discretion of the fiscal or the Ombudsman to Private persons may be charged together with public officers
determine the specificity and adequacy of the to avoid repeated and unnecessary presentation of
averments of the offense charged. He may dismiss the witnesses and exhibits against conspirators in different
complaint forthwith if he finds it to be insufficient in venues, especially of the issues involved are the same. It
form and substance or if he otherwise finds no ground follows therefore that if a private person may be tried jointly
to continue with the inquiry; or he may proceed with with public officers, he may also be convicted jointly with
them, as in the case of the present petitioners. (Balmadrid v.
the investigation of the complaint if, in his view, it is in
Sandiganbayan, 1991)
due and proper form. (Ocampo v. Ombudsman, 225

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LAW ON PUBLIC OFFICERS

Two (2) hereof, acquired by him directly or indirectly


Determination of the jurisdiction of the through dummies, nominees, agents, subordinates
Sandiganbayan and/or business associates by any combination or
series of the following means or similar schemes:
It shall be determined by the allegations in the 1. Through misappropriation, conversion, misuse, or
information specifically on whether or not the acts malversation of public funds or raids on the public
complained of were committed in relation to the treasury
official functions of the accused. It is required that the 2. By receiving, directly or indirectly, any
charge be set forth with particularity as will reasonably commission, gift, share, percentage, kickbacks or
indicate that the exact offense which the accused is any other form of pecuniary benefit from any
alleged to have committed is one in relation to his person and/or entity in connection with any
office. (Lacson v. Executive SecretaryG.R. No. 128096 government contract or project or by reason of
January 20, 1999) the office or position of the public officer
concerned
Voting requirement 3. By the illegal or fraudulent conveyance or
disposition of assets belonging to the National
The unanimous vote of all the three members shall be Government or any of its subdivisions, agencies or
required for the pronouncement of judgment by a instrumentalities or government-owned or -
division. Decisions of the Sandiganbayan shall be controlled corporations and their subsidiaries
reviewable by the Supreme Court on a petition for 4. By obtaining, receiving or accepting directly or
certiorari. indirectly any shares of stock, equity or any other
form of interest or participation including promise
Mandatory suspension of a public officer against of future employment in any business enterprise
whom a valid information is filed or undertaking
5. By establishing agricultural, industrial or
It is now settled that Sec. 13, RA 3019, makes it commercial monopolies or other combinations
mandatory for the Sandiganbayan to suspend any and/or implementation of decrees and orders
public officer against whom a valid information intended to benefit particular persons or special
charging violation of that law, or any offense involving interests
fraud upon the government or public funds or 6. By taking undue advantage of official position,
property is filed. (Bolastig v. Sandiganbayan, 235 SCRA authority, relationship, connection or influence to
103) unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the
NOTE: Under Sec. 13, RA 3019, any public officer against Filipino people and the Republic of the
whom any criminal prosecution under a valid information Philippines. (RA 7080, An Act Defining and
under this Act or under the provisions of the Revised Penal Penalizing the Crime of Plunder)
Code on bribery is pending in court, shall be suspended from
office. Should he be convicted by final judgment, he shall
Non-applicability of prescription, laches and estoppel
lose all retirement or gratuity benefits under any law, but if
he is acquitted, he shall be entitled to reinstatement and to in criminal prosecution for the recovery of ill-gotten
the salaries and benefits which he failed to receive during wealth
suspension, unless in the meantime administrative
proceedings have been filed against him. The provision found in Sec. 15, Art. XI of the 1987
Constitution that "the right of the State to recover
Appeal of a decision of the Sandiganbayan to the SC properties unlawfully acquired by public officials or
employees, from them or from their nominees or
The appellate jurisdiction of the Supreme Court over transferees, shall not be barred by prescription, laches
decisions and final orders of the Sandiganbayan is or estoppel," has already been settled in Presidential
limited to questions of law. (Cabaron v.People, G.R. Ad Hoc Fact-Finding Committee on Behest Loans v.
No. 156981, October 5, 2009) Desierto. G.R. No. 130140, where the Court held that
the above cited constitutional provision "applies only
ILL-GOTTEN WEALTH to civil actions for recovery of ill-gotten wealth, and
NOT to criminal cases. (Presidential Ad Hoc Fact-
Ill-gotten wealth Finding Committee On Behest Loans v. Desierto, G.R.
No. 135715, April 13, 2011)
Any asset, property, business enterprise or material
possession of any person within the purview of Sec.

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TERM LIMITS

Term v. Tenure

TERM TENURE
The time during which the Represent the
officer may claim to hold period during which
the office as a right, and the incumbent
fixes the interval after actually holds the
which the several office;
incumbents shall succeed
one another;
It is not affected by holding It may be shorter
over of the incumbent after than term.
expiration of the term for
which he was appointed or
elected.

NOTE: Term of office is different from the right to hold office.


The latter is the just and legal claim to hold and enjoy the
powers and responsibilities of the office. (Casibang v.
Aquino, G.R. No. L-38025, August 20, 1979)

Kinds of terms

1. Term fixed by law


2. Term dependent on good behavior until reaching
retirement age
3. Indefinite term, which terminates at the pleasure
of the appointing authority. (Borres v. Court of
Appeals, G.R. No. L-36845, August 21, 1998)

Hold-over

In the absence of an express or implied constitutional


or statutory provision to the contrary, an officer is
entitled to hold office until his successor is elected or
appointed and has qualified. (Lecaroz v.
Sandiganbayan, G.R. No. 130872, March 25, 1999)

Term limits of elective officers

1. President 6 years, without re-election


2. Vice President 6 years, with 1 re-election
3. Senators 6 years, with 1 re-election
4. Representative 3 years, with 2 re-elections
5. Local Executive Officials 3 years, with 2 re-
elections

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ADMINISTRATIVE LAW

ADMINISTRATIVE LAW Part that is of general Part that pertains to


nature and common to particular services;
GENERAL PRINCIPLES all, or most, admin proceeds from the
agencies; chiefly but particular statute
Administrative Law not exclusively creating the individual
procedural aw. agency
It is a branch of public law fixing the organization and
determines the competence of administrative Kinds of administrative law
authorities, and indicates the individual remedies for
the violation of the rights. (Sec. 2(3) of the Admin Code) 1. Statutes setting up administrative authorities.
2. Body of doctrines and decisions dealing with the
Scope of administrative law creation, operation, and effect of determinations
and regulations of such administrative
1. Fixes the administrative operation and structure authorities.
of the government 3. Rules, regulations, or orders of such
2. Executes or enforces that which is entrusted to administrative authorities in pursuance of the
administrative authorities (all those public officers purposes, for which administrative authorities
and organs of the government charged with the were created or endowed.
amplification, application and execution of the Ex: Omnibus Rules Implementing the Labor Code,
law) circulars of Central Monetary Authority
3. Governs public officers 4. Determinations, decisions, and orders of such
4. Creates administrative officers administrative authorities in the settlement of
5. Provides the remedies to those aggrieved by these controversies arising in their particular field.
agencies Ex: Awards of NLRC with respect to money claims
6. Governs Judicial Review of employees
7. Includes rules, regulation, orders and decisions
made by administrative authorities ADMINISTRATIVE BODIES AND AGENCIES
8. Includes the body of judicial/doctrines on any of
the above Administrative Agency

Classifications of Administrative Law It is an organ of government, other than a court and


the legislature, which affects the rights of private
As to Source parties either through adjudication or rule making.
Law that controls Law made by the
administrative administrative Interpretation of the powers of the administrative
authorities authorities agencies
Constitution, statutes, General regulations and
judicial decisions, particular Administrative agencies have powers and functions
Executive Orders, determinations; which may be administrative, investigatory,
Administrative constitute under regulatory, quasi legislative, or quasi-judicial or mix of
Orders,etc. delegations of power the five, as may be conferred by the constitution or by
embodied in statutory the statute. They have in fine only such powers or
administrative law, and authority as are granted or delegated, expressly or
imposing and constantly impliedly, by law. And in determining whether an
expanding body of law. agency has certain powers, the inquiry should be from
As to Purpose the law itself. But once ascertained as existing, the
Adjective or Procedural Substantive authority given should be liberally construed. (Soriano
Administrative Law Administrative Law v. MTRCB, G.R. No. 165785, April 29, 2009)
Establishes the Derived from same
procedure which an sources but contents Instrumentality
agency must or may are different in that the
follow in the pursuit of law establishes primary It refers to any agency of the National Government,
its legal purpose. rights and duties. not integrated within the department framework,
As to Applicability vested with special functions or jurisdiction by law,
General Administrative Special/ particular endowed with some if not all corporate powers,
Law administrative law administering special funds and enjoying operational

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autonomy, usually through a charter. This term KINDS


includes regulatory agencies, chartered institutions
and government-owned or controlled corporations. Kinds of administrative bodies or agencies
(United Residents of Dominican Hills v. Commission on
The Settlement Of Land Problems, G.R. No. 135945, The common kinds of administrative agencies have
March 7, 2001) been classified according to their purpose
1. Those created to function in situations wherein
Agency the government is offering some gratuity, grant,
or special privilege
Any of the various units of the government, including Ex: GSIS, SSS, PAO
a department, bureau, office, instrumentality, or 2. Those set up to function in situations wherein the
government-owned or controlled corporations, or a government is seeking to carry on certain
local government or a distinct unit therein. (Sec.2, functions of government
Introductory Provisions, E.O. No. 292 Administrative Ex: BIR, BOC, BOI
Code of 1987) 3. Those set up in situations wherein the
government is performing some business service
Department for the public
Ex: PNR, MWSS, NFA, NHA
It refers to an executive department created by law. 4. Those set up to function in situations wherein the
(Sec.2 (7), Introductory Provisions, E.O. No. 292 government is seeking to regulate businesses
Administrative Code of 1987) affected with public interest
Ex: Insurance Commission, LTFRB, NTC
Bureau 5. Those set up to function in situations wherein the
government is seeking under the police power to
Any principal subdivision or unit of any department. regulate private businesses and individuals
(Sec.2 (8), Introductory Provisions, E.O. No. 292 Ex: SEC, MTRCB
Administrative Code of 1987) 6. Those agencies set up to function in situations
wherein the government is seeking to adjust
Office individual controversies because of some strong
social policy involved
It refers, within the framework of governmental Ex: NLRC, ECC, SEC
organization, to any major functional unit of a
department or bureau including regional offices. It POWERS OF ADMINISTRATIVE AGENCIES
may also refer to any position held or occupied by
individual persons, whose functions are defined by law Administrative power or function
or regulation. (Sec.2 (9), Introductory Provisions, E.O.
No. 292 Administrative Code of 1987) Those which involve the regulation and control over
the conduct and affairs of individuals for; their own
MANNER OF CREATION welfare and the promulgation of rules and regulations
to better carry out the policy of the legislature or such
Manner of creation as are devolved upon the administrative agency by the
organic law of its existence. (In re: Rodolfo U.
By: Manzano,A.M. No. 88-7-1861-RTC, Oct. 5, 1988)
1. Constitutional provision
2. Authority of law Powers of administrative agencies
3. Legislative enactment
1. Discretionary the law imposes a duty upon a
Reasons for the creation of administrative agencies public officer, and gives him the right to decide
how or when the duty shall be performed.
To: 2. Ministerial is one which is as clear and specific
1. Help unclog court dockets as to leave no room for the exercise of discretion
2. Meet the growing complexities of modern society in its performance.
3. Help in the regulation of ramified activities of a
developing country Basic powers of administrative agencies

1. Quasi-legislative power or rule-making power

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ADMINISTRATIVE LAW

2. Quasi-judicial or adjudicatory power Legislative v. Quasi-legislative power


3. Determinative power
LEGISLATIVE QUASI-LEGISLATIVE
Quasi-legislative v. Quasi-judicial power involves the discretion to Involves the discretion
determine what the law to determine how the
QUASI-LEGISLATIVE QUASI-JUDICIAL shall be law shall be enforced
Operates on the future Operates based on past Cannot be delegated Can be delegated
facts
Has general application Has particular Limitations to the exercise of quasi-legislative power
application (applies
only to the parties 1. It must be within the limits of the powers granted
involved in a dispute) to administrative agencies.
Issuance pursuant to the Issuance pursuant to 2. Cannot make rules or regulations which are
exercise of quasi- the exercise of quasi- inconsistent with the provision of the Constitution
legislative power may be judicial power may, as a or statute.
assailed in court without rule, only be challenged 3. Cannot defeat the purpose of the statute.
subscribing to the in court with prior 4. May not amend, alter, modify, supplant, enlarge,
doctrine of exhaustion of exhaustion of or limit the terms of the statute.
administrative remedies administrative 5. A rule or regulation must be uniform in operation,
(DEAR). remedies. reasonable and not unfair or discriminatory.
A valid exercise of quasi- A valid exercise of
legislative power does quasi-judicial power Administrative rule
not require prior notice requires prior notice
and hearing (except and hearing (except Any agency statement of general applicability, which
when the law requires when the law requires implements or interprets a law fixes and describes
it). it). procedures in, or practice requirements of, an agency,
An issuance pursuant to An issuance pursuant to including its regulations. The term includes
the exercise of quasi- the exercise of quasi- memoranda or statements concerning the internal
legislative power may be judicial function is administration or management of an agency not
assailed in court through appealed to the Court affecting the rights of, or procedure available to the
an ordinary action. of Appeals via petition public. (Administrative Code of 1987)
for review (Rule 43).
Source of the power to promulgate administrative
Non-similarity of functions and powers of rules and regulations
administrative agencies
The power to promulgate regulations is derived from
Not all administrative agencies perform the same the legislature, by virtue of a valid delegation, either
functions or exercise the types of powers. While some expressed or implied.
act merely as investigative or advisory bodies, most
administrative agencies have investigative, rule- Non-applicability of notice and hearing in the
making, and determinative functions, or at least two issuance of an administrative rule or regulation
of such functions.
As a general rule, in the performance of its executive
QUASI-LEGISLATIVE (RULE-MAKING) POWER or legislative functions, such as issuing rules and
regulations, an administrative body need not comply
Quasi-legislative power/Rule-Making with the requirements of notice and hearing. (Corona
v. United Harbor Pilots Association of the Philippines,
The exercise of delegated legislative power, involving G.R. No. 111963, December 12, 1997)
no discretion as to what the law shall be, but merely
the authority to fix the details in the execution or The exception being where the legislature itself
enforcement of a policy set out in the law itself. requires it and mandates that the regulation shall be
based on certain facts as determined at an appropriate
investigation (Administrative Code of 1987)

Also, when, upon the other hand, the administrative


rule goes beyond merely providing for the means that

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can facilitate or render least cumbersome the LPG Refillers Association of the Philippines, G.R.
implementation of the law but substantially adds to or No. 159149, June 26, 2006)
increases the burden of those governed, it behooves
the agency to accord at least to those directly affected Authority of administrative officers to interpret the
a chance to be heard, and thereafter to be duly law
informed, before that new issuance is given the force
and effect of law. (Commissioner of Internal Revenue Administrative officers tasked to implement the law
v. CA, G.R. No. 11976, August 26, 1996) are also authorized to interpret it because they have
the expertise to do so.
Filing of copies of administrative rules and
regulations before the UPLC Effect of administrative interpretations to courts

The Administrative Code of 1987, particularly Sec. 3 Constructions of administrative officers are not
thereof, expressly requires each agency to file with the binding upon the Courts. Such interpretations of
Office of the National Administrative Register (ONAR) administrative officers, however, are given great
of the University of the Philippines Law Center three weight unless such construction is clearly shown to be
certified copies of every rule adopted by it. in sharp contrast with the governing law of the state.
Administrative issuances which are not published or (Nestle Philippines Inc. v. CA, G.R. No. 86738,
filed with the ONAR are ineffective and may not be November 13, 1991)
enforced. (GMA v. MTRCB, G.R. No. 148579, February
5, 2007) Doctrine of Subordinate Legislation

Publication requirement Power of administrative agency to promulgate rules


and regulations on matters within their own
Publication is required as a condition precedent to the specialization.
effectivity of a law to inform the public of the contents
of the law or rules and regulations before their rights Reason behind the delegation
and interests are affected by the same. (Philippine
International Trading Corporation v. Commission on It is well established in this jurisdiction that, while the
Audit, G.R. No. 132593, June 25, 1999) making of laws is a non-delegable activity that
corresponds exclusively to Congress, nevertheless the
Exceptions to the requirement of publication latter may constitutionally delegate authority to
promulgate rules and regulations to implement a given
1. Interpretative regulations legislation and effectuate its policies, for the reason
2. Internal regulations that the legislature often finds it impracticable (if not
3. Letters of instructions (Taada v. Tuvera G.R. No. impossible) to anticipate and provide for the
L-63915, December 29, 1986) multifarious and complex situations that may be met
in carrying the law into effect. All that is required is
Effectivity of administrative rules that the regulation should be germane to the objects
and purposes of the law; that the regulation be not in
GR: Administrative rules take effect depending on the contradiction with it, but conform to the standards
date provided by it. that the law prescribes.

XPN: 15 days after publication if the administrative Contemporaneous construction


rule is silent.
The construction placed upon the statute by an
Penal sanctions in administrative rules and executive or administrative officer called upon to
regulations execute or administer such statute.

Administrative agencies may promulgate rules with These interpretative regulations are usually in the
pernal sanctions provided the following requisites are form of circulars, directives, opinions, and rulings.
complied with:
1. The law must declare the act punishable; NOTE: Contemporaneous construction, while in no case
2. The law must define the penalty; binding upon the courts, is nevertheless entitled to great
3. The rules must be published in the Official weight and respect in the interpretation of ambiguous
provisions of the law, unless it is shown to be clearly
Gazette. (The Hon. Secretary Vincent S. Perez v.
erroneous.

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ADMINISTRATIVE LAW

KINDS OF ADMINISTRATIVE RULES AND Classifications of adjudicatory powers


REGULATIONS
1. Enabling powers characterized by the grant or
Kinds of administrative rules and regulations denial of permit or authorization
Ex: Issuance of licenses to engage in a particular
1. Supplementary or detailed legislation business.
2. Interpretative legislation 2. Directing powers those that involve the
3. Contingent legislation corrective powers of public utility commissions,
4. Procedural powers of assessment under the revenue laws,
5. Interpretative reparations under public utility laws, and awards
6. Internal under workmens compensation laws, and
7. Penal powers of abstract determination such as
definition-valuation, classification and fact finding
REQUISITES FOR VALIDITY 3. Dispensing powers Exemplified by the authority
to exempt from or relax a general prohibition, or
Requisites for a valid delegation of quasi-legislative authority to relieve from an affirmative duty. Its
or rule-making power difference from licensing power is that dispensing
power sanctions a deviation from a standard
1. The statute is complete in itself, setting forth the 4. Summary powers Those that apply compulsion
policy to be executed by the agency or force against person or property to effectuate
(Completeness test); and a legal purpose without a judicial warrant to
2. Said statute fixes a standard, mapping out the authorize such action.
boundaries of the agencys authority to which it Ex: Abatement of nuisance, summary restraint,
must conform (Sufficient standard test) levy of property of delinquent tax payers
5. Equitable powers Pertain to the power to
QUASI-JUDICIAL (ADJUDICATORY) POWER determine the law upon a particular state of facts
has the right to, and must, consider and make
Quasi-judicial power proper application of the rules of equity.
Ex: Power to appoint a receiver, power to issue
Power of administrative authorities to make injunctions
determinations of facts in the performance of their
official duties and to apply the law as they construe it ADMINISTRATIVE DUE PROCESS
to the facts so found. It partakes the nature of judicial
power, but is exercised by a person other than a judge. Nature of administrative proceedings

It is summary in nature.
Limited jurisdiction of quasi-judicial agencies
Inapplicability of technical rules of procedure and
An administrative body to which quasi-judicial power evidence in administrative proceedings
has been delegated is a tribunal of limited jurisdiction
and as such it could wield only such powers as are The technical rules of procedure and of evidence
specifically granted to it by its enabling statute. Its prevailing in courts of law and equity are not
jurisdiction is interpreted strictissimi juris. controlling in administrative proceedings to free
administrative boards or agencies from the
Conditions for the proper exercise of quasi-judicial compulsion of technical rules so that the mere
power admission of matter which would be deemed
incompetent in judicial proceedings would not
1. Jurisdiction must be properly acquired by the invalidate an administrative order.
administrative body;
2. Due process must be observed in the conduct of NOTE: The rules of procedure of quasi-judicial bodies shall
the proceedings. remain effective unless disapproved by the Supreme Court.

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Cardinal requirements of due process in Exceptions to the Requirement of notice and hearing
administrative proceedings
1. Urgency of immediate action
1. Right to a hearing which includes the right to 2. Tentativeness of administrative action
present ones case and submit evidence in 3. Grant or revocation of licenses or permits to
support operate certain businesses affecting public order
2. The tribunal must consider the evidence or morals
presented 4. Summary abatement of nuisance per se which
3. The decision must be supported by evidence affects safety of persons or property
4. Such evidence must be substantial 5. Preventive suspension of public officer or
5. The decision must be based on the evidence employee facing administrative charges
presented at the hearing or at least contained in 6. Cancellation of a passport of a person sought for
the record, and disclosed to the parties affected criminal prosecution
6. The tribunal or body of any of its judges must act 7. Summary proceedings of distraint and levy upon
on its own independent consideration of the law property of a delinquent taxpayer
and facts of the controversy in arriving at a 8. Replacement of a temporary or acting appointee
decision; 9. Right was previously offered but not claimed
7. The board or body should render decision that
parties know the various issues involved and Inapplicability of the right to counsel in
reason for such decision administrative inquiries
8. Officer or tribunal must be vested with competent
jurisdiction and must be impartial and honest. The right to counsel which may not be waived, unless
(Ang Tibay v. CIR, G.R. No. L-46496, February 27, in writing and in the presence of counsel, as
1940) recognized by the Constitution, is a right of a suspect
in a custodial investigation. It is not an absolute right
NOTE: The essence of due process in administrative and may, thus, be invoked or rejected in criminal
proceedings is the opportunity to explain ones side or seek proceeding and, with more reason, in an
a reconsideration of the action or ruling complained of. As administrative inquiry. (Lumiqued v. Exevea, G.R No..
long as the parties are given the opportunity to be heard 117565, Nov. 18, 1997)
before judgment is rendered, the demands of due process
are sufficiently met. What is offensive to due process is the
Quantum of proof required in administrative
denial of the opportunity to be heard. (Flores v.
proceedings
Montemayor, G.R. No. 170146, June 6, 2011)

Effect of non-observance of notice and hearing Only substantial evidence that amount of relevant
evidence that a reasonable mind might accept as
As a rule, it will invalidate the administrative adequate to support a conclusion.
proceedings. A failure to comply with the
NOTE: The right against self-incrimination may be invoked in
requirements may result in a failure to acquire
administrative proceedings. (Cabal v. Kapunan, G.R. No. L-
jurisdiction. 19052, December 29, 1962)
NOTE: Right to notice may be waived.
ADMINISTRATIVE APPEAL AND REVIEW
Q: Does administrative due process always entail
notice and hearing prior to the deprivation of a right? Administrative appeal

A: No. A hearing may occur after the deprivation. Review by a higher agency of decisions rendered by an
What the law prohibits is not the absence of previous administrative agency, commenced by petition of an
notice but the absolute absence thereof and the lack interested party.
of opportunity to be heard.
NOTE: Under the 1987 Administrative Code, administrative
NOTE: There has been no denial of due process if any appeals from a decision of an agency are taken to the
irregularity in the premature issuance of the assailed Department Head, unless such appeal is governed by a
decision has been remedied by an order giving the petitions special law.
the right to participate in the hearing of the MR. The
opportunity granted by, technically, allowing petitioners to
finally be able to file their comment in the case, resolves the
procedural irregularity previously inflicted upon petitioners.
(Nasecore v. ERC, G.R. No. 190795, July 6, 2011)

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Administrative review Exceptions to the non-applicability of res judicata in


administrative proceedings
Administrative appeals are not the only way by which
a decision of an administrative agency may be 1. Naturalization proceedings or those involving
reviewed. A superior officer or department head may citizenship and immigration;
upon his or her own volition review a subordinates 2. Labor relations
decision pursuant to the power of control. 3. Family relations, personal status or condition, and
capacity of persons
Administrative reviews by a superior officer are,
however, subject to the caveat that a final and NOTE: It is well settled that findings of fact of quasi-judicial
executory decision is not included within the power of agencies, such as the COA, are generally accorded respect
control, and hence can no longer be altered by and even finality by this Court, if supported by substantial
evidence, in recognition of their expertise on the specific
administrative review.
matters under their jurisdiction. (Reyna v. Commission on
Audit, G.R. No. 167219, February 8, 2011)
Different kinds of administrative appeal and review
DETERMINATIVE POWER
That:
1. Which inheres in the relation of administrative Power of administrative agencies to better enable
superior to administrative subordinate them to exercise their quasi-judicial authority. It
2. Embraced in statutes which provide for consists of the following:
determination to be made by a particular officer
or body subject to appeal, review or 1. Enabling Permits the doing of an act which the
redetermination by another officer or body in the law undertakes to regulate and which would be
same agency or in the same administrative unlawful without governmental orders.
system. 2. Directing Orders the doing or performing of
3. In which the statute makes or attempts to make a particular acts to ensure the compliance with the
court a part of the administrative scheme by law and are often exercised for corrective
providing in terms or effect that the court, on purposes.
review of the action of an administrative agency. 3. Dispensing To relax the general operation of a
4. In which the statute provides that an order made law or to exempt from general prohibition, or to
by a division of a commission or board has the relieve an individual or a corporation from an
same force and effect as if made by the subject to affirmative duty.
a rehearing by the commission. 4. Examining This is also called as investigatory
5. In which the statute provides for an appeal to an power. It requires production of books, papers,
officer on an appeal to the head of the etc., the attendance of witnesses and compelling
department or agency. the testimony.
6. Embraced in statutes which provide for appeal at 5. Summary Power to apply compulsion of force
the highest level namely, the president. (De Leon, against persons or property to effectuate a legal
page 311) purpose without judicial warrants to authorize
such actions.
Enforcement of administrative decisions
FACT-FINDING, INVESTIGATIVE, LICENSING AND
1. As provided for by law RATE-FIXING POWERS
2. Through the courts intervention
Exceptions to the rule that findings of facts of
ADMINISTRATIVE RES JUDICATA administrative agencies are binding on the courts
Non-applicability of the doctrine of res judicata 1. Findings are vitiated by fraud, imposition, or
collusion
The doctrine of res judicata applies only to judicial or 2. Procedure which led to factual findings is irregular
quasi-judicial proceedings and not to the exercise of 3. Palpable errors are committed
purely administrative functions. Administrative 4. Factual findings not supported by evidence
proceedings are non-litigious and summary in nature; 5. Grave abuse of discretion, arbitrariness, or
hence, res judicata does not apply. (Nasipit Lumber vs capriciousness is manifest
NLRC, 1989) 6. When expressly allowed by statute; and

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7. Error in appreciation of the pleadings and in the charter, membership, statutory exemption or other
interpretation of the documentary evidence form of permission, or regulation of the exercise of a
presented by the parties right or privilege. (Sec. 2(10), 1987 Administrative
Code)
Investigatory power
Licensing
Power to inspect, secure, or require the disclosure of
information by means of accounts, records, reports, Includes agency process involving the grant, renewal,
statements and testimony of witnesses. This power is denial, revocation, suspension, annulment,
implied and not inherent in administrative agencies. withdrawal, limitation, amendment, modification or
conditioning of a license. (Sec. 2(11), 1987
Q: Is the power to issue subpoena inherent in Administrative Code)
administrative bodies?
NOTE: Except in cases of willful violation of pertinent laws,
A: No. It is settled that these bodies may summon rules and regulations or when public security, health, or
witnesses and require the production of evidence only safety requires otherwise, no license may be withdrawn,
suspended, revoked or annulled without notice and hearing.
when duly allowed by law, and always only in
(Sec. 17, 1987 Administrative Code)
connection with the matter they are authorized to
investigate. Nature of an administrative agencys act if it is
empowered by a statute to revoke a license for non-
Q: Do administrative agencies have the inherent compliance or violation of agency regulations
power to declare persons in contempt?
For procedural purposes, an administrative action is
A: No. The power to punish for contempt is not an not a purely administrative act if it is dependent upon
inherent right by the administrative body. It must be the ascertainment of facts by the administrative
expressly conferred upon by the body, and agency. Where a statute empowers an agency to
additionally, must be used only in connection with its revoke a license for non-compliance with or violation
quasi-judicial as distinguished from its purely of agency regulations, the administrative act is of a
administrative or routinary functions. judicial nature, since it depends upon the
ascertainment of the existence of certain past or
NOTE: If there is no express grant, the agency must invoke
the aid of the RTC. present facts upon which a decision is to be made and
rights and liabilities determined.
Q: May administrative agencies issue warrants of
arrest or administrative searches? Rate-fixing power

A: GR: Administrative agencies cannot issue warrants Power usually delegated by the legislature to
of arrest. Under the 1987 Constitution, only a judge administrative agencies for the latter to fix the rates
may issue warrants. which public utility companies may charge the public.

XPN: In cases of deportation of illegal and undesirable Rate


aliens, whom the President or the Commissioner of
Bureau of Immigration and Deportation may order It means any charge to the public for a service open to
arrested following a final order of deportation. all and upon the same terms, including individual or
(Salazar v. Achacoso, G.R. No. 81510, March 14, 1990) joint rates, tolls, classification or schedules thereof, as
well as communication, mileage, kilometrage and
Licensing power other special rates which shall be imposed by law or
regulation to be observed and followed by a person.
The action of an administrative agency in granting or Sec. 2(3), 1987 Administrative Code
denying, or in suspending or revoking, a license,
permit, franchise, or certificate of public convenience NOTE: Fixing rates is essentially legislative but may be
delegated. (Philippine Inter-Island v. CA, G.R. No. 100481,
and necessity.
January 22, 1997)

License

Includes the whole or any part of any agencys permit,


certificate, passport, clearance, approval, registration,

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Rate-fixing procedure fixing order, temporary or provisional though it may


be, is not exempt from the procedural requirements of
The administrative agencies perform this function notice and hearing when prescribed by statute, as well
either by issuing rules and regulations in the exercise as the requirement of reasonableness.
of their quasi-legislative power or by issuing orders
affecting a specified person in the exercise of its quasi- Q: May the delegated power to fix rates be re-
judicial power. delegated?

NOTE: In the fixing of rates, no rule or final order shall be A: The power delegated to an administrative agency to
valid unless the proposed rates shall have been published in fix rates cannot, in the absence of a law authorizing it,
a newspaper of general circulation at least 2 weeks before be delegated to another. This is expressed in the
the first hearing thereon. (Sec. 9, 1987 Administrative Code)
maxim, potestas delagata non delegari potest.
(Kilusang Mayo Uno Labor Center v. Garcia, Jr., 39
Fixing of rates may either be a legislative or adjudicative
function SCRA386, 1994)

Q: If the power to fix rates is exercised as a legislative Requirements for the delegation of the power to
function, are notice and hearing required? ascertain facts to be valid

A: Where the rules and/or rates laid down are meant The law delegating the power to determine some facts
to apply to all enterprises of a given kind throughout or state of things upon which the law may take effect
the country, they may partake of a legislative or its operation suspended must provide the standard,
character. If the fixing of rates were a legislative fix the limits within which the discretion may be
function, the giving of prior notice and hearing to the exercised, and define the conditions therefor. Absent
affected parties is not a requirement of due process, these requirements, the law and the rules issued
except where the legislature itself requires it. thereunder are void, the former being an undue
delegation of legislative power and the latter being the
Q: What if it is exercised as a quasi-judicial function? exercise of rule-making without legal basis. (U.S. v. Ang
Tang Ho, 43 Phil. 1, 1992)
A: Where the rules and the rate imposed apply
exclusively to a particular party, based upon a finding Q: Does a fact-finding quasi-judicial body have the
of fact, then its function is quasi-judicial in character. power to take into consideration the result of its own
observation and investigation of the matter
As regards rates prescribed by an administrative submitted to it for decision?
agency in the exercise of its quasi-judicial function,
prior notice and hearing are essential to the validity of A: Yes. A fact-finding quasi-judicial body (e.g., Land
such rates. But an administrative agency may be Transportation Franchising and Regulatory Board)
empowered by law to approve provisionally, when whose decisions (on questions regarding certificate of
demanded by urgent public need, rates of public public convenience) are influenced not only by the
utilities without a hearing. facts as disclosed by the evidence in the case before it
but also by the reports of its field agents and
Q: In case of a delegation of rate-fixing power, what inspectors that are periodically submitted to it, has the
is the only standard which the legislature is required power to take into consideration the result of its own
to prescribe for the guidance of administrative observation and investigation of the matter submitted
authority? to it for decision, in connection with other evidence
presented at the hearing of the case (Pantranco South
A: That the rate be reasonable and just. (American Express, Inc. v Board of Transportation, G.R. No. L-
Tobacco Co. v Director of Patents, 67 SCRA 287, 1975) 49664, November 22, 1990)

Q: In the absence of an express requirement as to JUDICIAL RECOURSE AND REVIEW


reasonableness, may the standard be implied?
Judicial review
A: Yes. In any case, the rates must both be non-
confiscatory and must have been established in the Re-examination or determination by the courts in the
manner prescribed by the legislature. Even in the exercise of their judicial power in an appropriate case
absence of an express requirement as to instituted by a party aggrieved thereby as to whether
reasonableness, this standard may be implied. A rate- the questioned act, rule, or decision has been validly

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or invalidly issued or whether the same should be knowledge, expertise, and experience. The courts
nullified, affirmed or modified. ordinarily accord respect if not finality to factual
findings of administrative tribunals.
NOTE: The mere silence of the law does not necessarily imply
that judicial review is unavailable. XPN: If findings are not supported by substantial
evidence.
Requisites of judicial review of administrative action
2. Questions of Law administrative decisions may
1. Administrative action must have been completed be appealed to the courts independently of
(principle of finality of administrative action); and legislative permission. It may be appealed even
2. Administrative remedies must have been against legislative prohibition because the
exhausted (principle of exhaustion of judiciary cannot be deprived of its inherent power
administrative remedies.) to review all decisions on questions of law.
3. Mixed (law and fact) when there is a mixed
Limitations on judicial review question of law and fact and the court cannot
separate the elements to see clearly what and
1. Final and executory decisions cannot be made the where the mistake of law is, such question is
subject of judicial review. treated as question of fact for purposes of review
2. Administrative acts involving a political question and the courts will not ordinarily review the
are beyond judicial review, except when there is decision of the administrative tribunal.
an allegation that there has been grave abuse of
discretion. DOCTRINE OF PRIMARY ADMINISTRATIVE
3. Courts are generally bound by the findings of fact JURISDICTION
of an administrative agency.
Doctrine of Primary Jurisdiction or Doctrine of Prior
NOTE: Courts will not render a decree in advance of
Resort
administrative action. Such action would be rendered
nugatory.
Under the principle of primary jurisdiction, courts
It is not for the court to stop an administrative officer from cannot or will not determine a controversy involving
performing his statutory duty for fear that he will perform it question within the jurisdiction of an administrative
wrongly. body prior to the decision of that question by the
administrative tribunal where the:
Doctrine of Ripeness for Review
1. Question demands administrative determination
It is similar to that of exhaustion of administrative requiring special knowledge, experience and
remedies except that it applies to the rule making and services of the administrative tribunal;
to administrative action which is embodied neither in 2. Question requires determination of technical and
rules and regulations nor in adjudication or final order. intricate issues of a fact;
3. Uniformity of ruling is essential to comply with
Application of the doctrine of ripeness of review purposes of the regulatory statute administered

1. When the interest of the plaintiff is subjected to NOTE: In such instances, relief must first be obtained in
or imminently threatened with substantial injury. administrative proceeding before a remedy will be supplied
2. If the statute is self-executing. by the courts even though the matter is within the proper
jurisdiction of a court. The judicial process is accordingly
3. When a party is immediately confronted with the
suspended pending referral of the claim to the
problem of complying or violating a statute and
administrative agency for its view.
there is a risk of criminal penalties.
4. When plaintiff is harmed by the vagueness of the Rationale for the doctrine:
statute.
To:
Questions reviewable by the courts 1. Take full advantage of administrative expertness;
and
1. Questions of fact 2. Attain uniformity of application of regulatory laws
GR: Courts will not disturb the findings of which can be secured only if determination of the
administrative agencies acting within the issue is left to the administrative body
parameters of their own competence, special

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ADMINISTRATIVE LAW

Instances where the doctrine finds no application available only if there is no other plain, speedy,
and adequate remedy.
1. By the court's determination, the legislature did 5. To avail of administrative remedy entails lesser
not intend that the issues be left solely to the expenses and provides for a speedier disposition
initial determination of the administrative body. of controversies.
2. The issues involve purely questions of law.
3. Courts and administrative bodies have concurrent Exceptions to the application of the doctrine
jurisdiction.
1. Violation of due process
Q: Can the court motu proprio raise the issue of 2. When there is estoppel on the part of the
primary jurisdiction? administrative agency concerned
3. When the issue involved is a purely legal question
A: Yes. The court may motu proprio raise the issue of 4. When there is irreparable injury
primary jurisdiction and its invocation cannot be 5. When the administrative action is patently illegal
waived by the failure of the parties to argue it, as the amounting to lack or excess of jurisdiction
doctrine exists for the proper distribution of power 6. When the respondent is a Department Secretary
between judicial and administrative bodies and not whose acts as an alter ego of the President bears
for the convenience of the parties. In such case the the implied and assumed approval of the latter
court may: 7. When the subject matter is a private land case
1. Suspend the judicial process pending referral of proceedings
such issues to the administrative body for its 8. When it would be unreasonable
review, or 9. When no administrative review is provided by law
2. If the parties would not be unfairly disadvantaged, 10. When the rule does not provide a plain, speedy,
dismiss the case without prejudice. (Euro-Med and adequate remedy
laboratories Phil. v. Province of Batangas, G.R No. 11. When the issue of non-exhaustion of
148706, July 17, 2006) administrative remedies has been rendered moot
12. When there are circumstances indicating the
DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE urgency of judicial intervention
REMEDIES 13. When it would amount to a nullification of a claim;
and
Doctrine of Exhaustion of Administrative Remedies 14. Where the rule of qualified political agency
applies. (Laguna CATV Network v. Maraan, G.R.
It calls for resort first to the appropriate administrative No. 139492, November 19, 2002)
authorities in the resolution of a controversy falling
under their jurisdiction and must first be appealed to Effect of non-exhaustion of administrative remedies
the administrative superiors up to the highest level
before the same may be elevated to the courts of It will deprive the complainant of a cause of action,
justice for review. which is a ground for a motion of dismiss.

The premature invocation of court intervention is fatal Q: Is non-compliance with the doctrines of primary
to ones cause of action. Exhaustion of administrative jurisdiction or exhaustion of administrative remedies
remedies is a prerequisite for judicial review; it is a a jurisdictional defect?
condition precedent which must be complied with.
A: No. Non-compliance with the doctrine of primary
Reasons for the doctrine jurisdiction or doctrine of exhaustion of administrative
remedies is not jurisdictional for the defect may be
1. To enable the administrative superiors to correct waived by a failure to assert the same at the earliest
the errors committed by their subordinates. opportune time.
2. Courts should refrain from disturbing the findings
of administrative bodies in deference to the
doctrine of separation of powers.
3. Courts should not be saddled with the review of
administrative cases.
4. Judicial review of administrative cases is usually
effected through special civil actions which are

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Doctrine of primary jurisdiction v. Doctrine of NOTE: Appeal to the CA is allowed because a quasi-judicial
exhaustion of administrative remedies agency is equivalent in rank with the RTC. (Rule 43, RoC)

DOCTRINE OF
DOCTRINE OF
EXHAUSTION OF
PRIMARY
ADMINISTRATIVE
JURISDICTION
REMEDIES
Both deal with the proper relationships between
the courts and administrative agencies.
Applies where a case is Applies where a claim is
within the concurrent cognizable in the first
jurisdiction of the court instance by an
and an administrative administrative agency
agency but the alone
determination of the
case requires the
technical expertise of
the administrative
agency
Although the matter is Judicial interference is
within the jurisdiction withheld until the
of the court, it must administrative process
yield to the jurisdiction has been completed
of the administrative
case

DOCTRINE OF FINALITY OF
ADMINISTRATIVE ACTION

Doctrine of Finality of Administrative Action

It provides that no resort to courts will be allowed


unless administrative action has been completed and
there is nothing left to be done in the administrative
structure.

Instances where the doctrine finds no application

1. To grant relief to preserve the status quo pending


further action by the administrative agency
2. When it is essential to the protection of the rights
asserted from the injuries threatened
3. Where an administrative officer assumes to act in
violation of the Constitution and other laws
4. Where such order is not reviewable in any other
way and the complainant will suffer great and
obvious damage if the order is carried out
5. Interlocutory order affecting the merits of a
controversy
6. Order made in excess of power, contrary to
specific prohibition in the statute governing the
agency and thus operating as a deprivation of a
right assured by the statute
7. When review is allowed by statutory provisions.

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ELECTION LAW

ELECTION LAW iii. for Party List Representatives


b. Local Elections
SUFFRAGE i. For Members of HOR
ii. Provincial Officials
Right of Suffrage iii. City Officials
iv. Municipal Officials
It is the right to vote in the election of officers chosen c. Barangay Elections
by the people and in the determination of questions d. ARRM Elections
submitted to the people. It includes: i. For Regional Governor
1. Election ii. Regional Vice Governor
2. Plebiscite iii. Regional Assemblymen
3. Initiative and e. Sangguniang Kabataan (SK) Elections
4. Referendum
B. Special election one held to fill a vacancy in office
NOTE: The right to suffrage is not an absolute right. Needless before the expiration of the term for which the
to say, the exercise of the right of suffrage, as in the incumbent was elected.
enjoyment of all other rights, is subject to existing
substantive and procedural requirements embodied in our
It is when there is failure of election on the
Constitution, statute books and other repositories of law.
scheduled date of regular election in a particular
(AKBAYAN-YOUTH v. COMELEC, G.R. No. 147066, March 26,
2001) place or which is conducted to fill up certain
vacancies, as provided by law
Election a. Plebisciteelectoral process by which an
initiative on the Constitution is approved or
It is the selection of candidates to public office by rejected by the people.
popular vote of the people. b. Initiativepower of the people to propose
amendments to the Constitution or to
Purpose of an election propose and enact legislations through
election called for the purpose
To enable the electorate to choose the men and i. Initiative on the Constitution
women who would run their government, whether ii. Initiative on Statutes
national, provincial, city, municipal or barangay. (Teves iii. Initiative on Local Legislation
v. Comelec, G.R. No. L-5150, November 8, 1951) c. Referendumpower of the electorate to
approve or reject a piece of legislation
Components of an election through an election called for the purpose.
i. Referendum on Statutes
1. Choice or selection of candidates to public office ii. Referendum on Local Laws
by popular vote d. Recallmode of removal of an elective public
2. Holding of electoral campaign officer by the people before the end of his
3. Conduct of the polls term of office.
4. Listing of votes
5. Act of casting and receiving the ballots from the Rules on construction of election laws
voters
6. Counting the ballots CONSTRUCTION OF ELECTION LAW
7. Making the election returns Laws for conduct of Before the election:
8. Proclaiming the winning candidates elections Mandatory
After the election:
Types of elections Directory
Laws for Mandatory and strictly
A. Regular election refers to an election Candidates construed
participated in by those who possess the right of Procedural rules Liberally construed in
suffrage, are not otherwise disqualified by law, favor of ascertaining the
and who are registered voters. will of the elections

a. National Election
i. for President and VP
ii. for Senators

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Commencement of election period


REGISTRATION OF VOTERS
90 days before the day of the election and shall end 30
days thereafter. (Sec. 3, BP 881 OEC) Registration requirement

QUALIFICATION AND Registration does not confer the right to vote. It is but
DISQUALIFICATION OF VOTERS a condition precedent to the exercise of the right to
vote. Registration is a regulation, not a qualification.
Qualifications for the exercise of suffrage (Yra v. Abano, G.R. No. L-30187, November 15, 1928)

1. Filipino citizenship Domicile


2. At least 18 years of age
3. Resident of the Philippines for at least one year A place to which, whenever absent for business or for
4. Resident of the place where he proposes to vote pleasure, one intends to return, and depends on facts
for at least 6 months; and and circumstances in the sense that they disclose
5. Not otherwise disqualified by law (Sec. 1, Art. V, intent. (Romualdez-Marcos v. COMELEC, G.R. No.
1987 Constitution) 119976, September 18, 1995)

NOTE: These qualifications are continuing requirements. Residence for election purposes
Congress may not add qualifications but can provide for
procedural requirements and disqualifications. However, It implies the factual relationship of an individual to a
the disqualifications must not amount to qualifications.
certain place. It is the physical presence of a person in
a given area, community or country. For election
Procedural qualifications purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As
As to the procedural limitation, the right of a citizen to these concepts have evolved in our election law, what
vote is necessarily conditioned upon certain has clearly and unequivocally emerged is the fact that
procedural requirements he must undergo: among residence for election purposes is used synonymously
others, the process of registration. Specifically, a with domicile. (Ibid.)
citizen in order to be qualified to exercise his right to
vote, in addition to the minimum requirements set by Effect of transfer of residence
the fundamental charter, is obliged by law to register,
at present, under the provisions of RA 8189, otherwise Any person, who transfers residence solely by reason
known as the Voters Registration Act of 1996. of his occupation, profession or employment in private
(Akbayan-Youth v. COMELEC, G.R. No. 147066, March or public service, education, etc., shall not be deemed
26, 2001) to have lost his original residence. (Asistio v. Aguirre,
G.R. No. 191124, April 27, 2010)
Persons disqualified to vote
Double-registrant
1. Persons sentenced by final judgment to suffer
imprisonment for not less than one year, unless Any person who, being a registered voter, registers
pardoned or granted amnesty; but right is anew without filing an application for cancellation of
reacquired upon expiration of 5 years after service his previous registration. (Sec. 26 (y)(6), OEC)
of sentence
Q: Eisel registered as a voter in Marawi on 26 July
2. Conviction by final judgment of any of the 2003. Three days after, Eisel again registered as a
following: voter in Marantao, without first cancelling her
a. Crime involving disloyalty to the government registration in Marawi; and on 28 March 2007, Eisel
b. Violation against national security filed her COC declaring that she was a registered
c. Firearms laws voter in Marantao and eligible to run as a candidate
for the position of mayor of said municipality. Is she
But right is reacquired upon expiration of 5 years qualified to run for such position in Marantao?
after service of sentence.
A: No. Her prior registration makes her subsequent
3. Insanity or incompetence declared by competent registration null and void. She cannot be considered a
authority (Sec. 118, BP 881 OEC) registered voter in Marantao and thus she made a

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ELECTION LAW

false representation in her CoC when she claimed to RA 8189. This leads to only one conclusion: that Allen,
be one. If a candidate states a material representation not having demonstrated that he duly accomplished
in the COC that is false, the COMELEC is empowered to an application for registration, is not a registered
deny due course to or cancel the CoC. The person voter. Hence, he must be disqualified to run for Mayor.
whose COC is denied due course or cancelled under (Gunsi Sr. v. COMELEC, G.R. No. 168792, February 23,
Sec. 78 of the OEC is not treated as a candidate at all, 2009)
as if such person never filed a COC. However, although
Eisels registration in Marantao is void, her registration Q: Sheldon, while of legal age and of sound mind, is
in Marawi still subsists. She may be barred from voting illiterate. He has asked your advice on how he can
or running for mayor in the former, but she may still vote in the coming election for his brother is running
exercise her right to vote, or even run for an elective for mayor. This will be the first time Sheldon will vote
post, in the latter. (Maruhom v. COMELEC, G.R. No. and he has never registered as a voter before. What
179430, July 27, 2009) advice will you give him on the procedure he needs
to follow in order to be able to vote?
Q: Are double registrants still qualified to vote?
A: The Constitution provides that until Congress shall
A: Yes. Double registrants are still qualified to vote have provided otherwise, illiterate and disabled voters
provided that COMELEC has to make a determination shall be allowed to vote under existing laws and
on which registration is valid, and which is void. regulations. (Art, V, Sec. 2) It is necessary for any
COMELEC could not consider both registrations valid qualified voter to register in order to vote. (OEC, Sec.
because it would then give rise to the anomalous 115) In the case of illiterate and disabled voters, their
situation where a voter could vote in two precincts at voter's affidavit may be prepared by any relative
the same time. COMELEC laid down the rule in Minute within the fourth civil degree of consanguinity or
Resolution No. 00-1513 that while the first registration affinity or by any member of the board of election
of any voter subsists, any subsequent registration inspectors who shall prepare the affidavit in
thereto is void ab initio. (Maruhom v. COMELEC, G.R. accordance with the data supplied by the applicant.
No. 179430, July 27, 2009) (Sec. 14, RA 8189)

Q: Wil filed a petition for the cancellation of the COC System of continuing registration
of Allen. Essentially, Wil sought the disqualification of
Allen for Mayor of South Upi alleging that Allen was GR: It is a system where the application of registration
not a registered voter in the Municipality of South of voters shall be conducted daily in the office hours of
Upi since he failed to sign his application for the election officer during regular office hours.
registration, and that the unsigned application for
registration has no legal effect. In refutation, Allen XPN: No registration shall be conducted during the
asseverated that his failure to sign his application for period starting 120 days before a regular election and
registration did not affect the validity of his 90 days before a special election. (Sec. 8, RA 8189)
registration since he possesses the qualifications of a
voter set forth in the OEC as amended by Sec. 9 of RA Q: On Nov. 12, 2008, COMELEC issued Resolution
8189. Wil insists that the signature in the application 8514 setting Dec. 2, 2008 to Dec.15, 2009 as the
for registration is indispensable for its validity as it is period of continuing voter registration using the
an authentication and affirmation of the data biometrics process in all areas except ARMM.
appearing therein. Should Allen be disqualified? Subsequently, COMELEC issued Resolution 8585 on
February 12, 2009 adjusting the deadline of voter
A: Yes. RA 8189 (The Voters Registration Act of 1996) registration for the May 10, 2010 national and local
specifically provides that an application for elections to Oct. 31, 2009 instead of Dec. 15, 2009 as
registration shall contain specimen signatures of the previously fixed by Resolution 8514. Petitioners
applicant as well as his/her thumbprints, among challenged the validity of COMELEC Resolution 8585
others. The evidence shows that Allen failed to sign and seek the declaration of its nullity. Petitioners
very important parts of the application, which refer to further contend that COMELEC Resolution 8585 is an
the oath which Allen should have taken to validate and encroachment on the legislative power of Congress
swear to the veracity of the contents appearing in the as it amends the system of continuing voter
application for registration. Plainly, from the registration under Sec. 8 of RA 8189. Is COMELEC
foregoing, the irregularities surrounding Allens Resolution 8585 valid? Differentiate from the case of
application for registration eloquently proclaims that Akbayan-Youth v. COMELEC.
he did not comply with the minimum requirements of

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A: In the present case, the Court finds no ground to Persons qualified to vote under the absentee voting
hold that the mandate of continuing voter registration law
cannot be reasonably held within the period provided
by RA 8189 (Absentee Voting), Sec.8, which is daily All citizens of the Philippines abroad, who are not
during the office hours, except during the period otherwise disqualified by law, at least eighteen (18)
starting 120 days before the May 10,2010 regular years of age on the day of the elections, may vote for
elections. There is thus no occasion for the COMELEC president, vice-president, senators and party-list
to exercise its power to fix other dates or deadlines representatives. (Sec. 4, RA 9189)
thereof.
Q: May duals or dual citizens be allowed to vote
The present case differs significantly from the under the Overseas Absentee Voting Act of 2003?
Akbayan-Youth v. COMELEC. In the said case, the Court
held that the COMELEC did not abuse its discretion in A: Yes. There is no provision in the dual citizenship law
denying the request of the therein petitioners for an - RA 9225 - requiring "duals" to actually establish
extension of the Dec. 27, 2000 deadline of voter residence and physically stay in the Philippines first
registration for the May 14, 2001 elections. For the before they can exercise their right to vote. On the
therein petitioners filed their petition with the court contrary, RA 9225, in implicit acknowledgment that
within the 120-day period for the conduct of voter duals are most likely non-residents, grants under its
registration under Sec. 8, RA 8189, and sought the Sec. 5(1) the same right of suffrage as that granted an
conduct of a two-day registration of February 17, and absentee voter under RA 9189. It cannot be
18, 2001, clearly within the 120-day prohibited period. overemphasized that RA 9189 aims, in essence, to
enfranchise as much as possible all overseas Filipinos
The clear import of the Courts pronouncement in who, save for the residency requirements exacted of
Akbayan-Youth is that had therein petitioners filed an ordinary voter under ordinary conditions, are
their petition and sought an extension date that was qualified to vote. (Lewis v. COMELEC, G.R. No. 162759,
before the 120-day prohibitive period, their prayer August 4, 2006)
would have been granted pursuant to the mandate of
RA 8189 (Absentee Voting). In the present case, as Persons disqualified from voting under the absentee
reflected earlier, both the dates of filing of the petition voting law
(October 30, 2009) and the extension sought (until
January 9, 2010) are prior to the 120 day prohibitive 1. Those who have lost their Filipino citizenship in
period. The Court therefore, finds no legal impediment accordance with Philippine laws;
to the extension prayed for. (Kabataan Partylist v. 2. Those who have expressly renounced their
COMELEC, G.R. No. 189868, December 15, 2009) Philippine citizenship and who have pledged
allegiance to a foreign country;
Absentee voting 3. Those who have committed and are convicted in
a final judgment by a court or tribunal of an
It is a process by which qualified citizens of the offense punishable by imprisonment of not less
Philippines abroad exercise their right to vote than one (1) year, including those who have
pursuant to the constitutional mandate that Congress committed and been found guilty of Disloyalty as
shall provide a system for absentee voting by qualified defined under Art. 137 of the Revised Penal Code,
Filipinos abroad. (Sec. 2, Art. V, 1987 Constitution) such disability not having been removed by
Absentee voting is an exception to the six month/one plenary pardon or amnesty;
year residency requirement. (Macalintal v. Romulo,
G.R. No. 157013, July 10, 2003) NOTE: However, any person disqualified to vote under
this subsection shall automatically acquire the right to
NOTE: The constitutionality of Sec. 18.5 of RA 9189 vote upon expiration of five (5) years after service of
(Absentee Voting) is upheld with respect only to the sentence; Provided further, that the Commission may
authority given to the COMELEC to proclaim the winning take cognizance of final judgments issued by foreign
candidates for the Senators and party-list representatives courts or tribunals only on the basis of reciprocity and
but not as to the power to canvass votes and proclaim the subject to the formalities and processes prescribed by
winning candidates for President and Vice-president. (Ibid.) the Rules of Court on execution of judgments.

4. An immigrant or a permanent resident who is


recognized as such in the host country

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NOTE: An immigrant or permanent resident may vote 2. Where there exists a technically established
if he/she executes, upon registration, an affidavit identification system that would preclude
prepared for the purpose by the Commission declaring multiply or proxy voting; and
that he/she shall resume actual physical permanent
3. Where the system of reception and custody of
residence in the Philippines not later than three (3)
mailed ballots in the embassies, consulates and
years from approval of his/her registration under this
Act. Such affidavit shall also state that he/she has not other foreign service establishments concerned
applied for citizenship in another country. Failure to are adequate and well-secured.
return shall be the cause for the removal of the name
of the immigrant or permanent resident from the Thereafter, voting by mail in any country shall be
National Registry of Absentee Voters and his/her allowed only upon review and approval of the Joint
permanent disqualification to vote in absentia. Congressional Oversight Committee. (Sec. 17.1, RA
9189 Absentee Voting Law)
5. Any citizen of the Philippines abroad previously
declared insane or incompetent by competent Q: Can the canvass of the overseas absentee votes
authority in the Philippines or abroad, as verified delay the proclamation of winners?
by the Philippine embassies, consulates or foreign
service establishments concerned A: No, if the outcome of the election will not be
affected by the results thereof. Notwithstanding the
NOTE: Unless such competent authority subsequently foregoing, the COMELEC is empowered to order the
certifies that such person is no longer insane or
proclamation of winning candidates despite the fact
incompetent. (Sec. 5, Absentee Voting Law)
that the scheduled election has not yet taken place in
a particular country or countries, if the holding of
Q: May an immigrant or permanent resident (green
elections therein has been rendered impossible by
card holder) abroad be qualified to run for an elective
events, factors, and circumstances peculiar to such
position in the Philippines?
country or countries, and which events, factors and
circumstances are beyond the control or influence of
A: No. Acquisition of a lawful permanent resident
the COMELEC. (Sec. 18, RA 9189 Absentee Voting Law)
status abroad amounts to an abandonment and
renunciation of ones status as a resident of the
Local absentee voting
Philippines; it constituted a change from ones
domicile of origin to a new domicile of choice.
It refers to a system of voting whereby government
(Ugdoracion v. COMELEC, G.R. No. 179851, April 18,
officials and employees, including members of the
2008)
Armed Forces of the Philippines (AFP), and the
Philippine National Police (PNP) as well as members
Manner of registration for absentee voters
of the media, media practitioners including their
technical and support staff (media voters) pursuant
It shall be done in person. (Sec. 6, RA 9189, Absentee
to the aforementioned Comelec En Banc Resolution
Voting Law)
who are duly registered voters, are allowed to vote
for the , national positions, i.e. President, Vice-
Process of absentee voting
President, Senators and Party-List Representatives in
places where they are not registered voters but
1. The overseas absentee voter shall personally
where they are temporarily assigned to perform
accomplish his/her ballot at the embassy,
election duties on election day as provided for
consulate or other foreign service establishment
under Executive Order No. 157 and Republic Act No.
that has jurisdiction over the country where
7166 (Sec. 1(a), COMELEC Resolution 9637, 13
he/she temporarily resides or at any polling place
February 2013)
designated and accredited by the Commission.
(Sec. 16, RA 9189 Absentee Voting Law)
Persons qualified to register/vote in local absentee
2. The overseas absentee voter may also vote by
voting
mail. (RA 9189 Absentee Voting Law)
1. Government officials and employees
Voting by mail
2. Members of the PNP
3. Members of the AFP
Voting by mail may be allowed in countries that satisfy
4. Members of the media, media practitioners, and
the following conditions:
including their technical and support staff who
1. Where the mailing system is fairly well-developed
are actively angaged in the pursuit of
and secure to prevent the occasion of fraud

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information gathering and reporting or a. Convicted by final judgment to suffer


distribution, in any manner or form, including, but imprisonment not less than 1 year
not limited to the following: b. Disloyalty
i. Print Journalists; c. Insanity
ii. Television Journalists; 2. Others:
iii. Photo Journalists; a. Loss of citizenship
iv. Online Journalists; b. Failed to vote for 2 successive preceding
v. Radio Journalists; regular elections
vi. Documentary makers; c. Registration was ordered excluded by the
vii. Television/Radio Production court.

Requisites Grounds for the annulment of Book of voters

1. Duly registered voters 1. Fraud


2. On election day, in case of government officials, 2. Forgery
members of the PNP and AFP, they are assigned 3. Force
temporarily to perform election duties in places 4. Intimidation
where they are not registered voters; 5. Impersonation
3. In case of media voters, they will not be able to 6. Bribery
vote due to the performance of their functions in 7. Similar Irregularity
covering and reporting the conduct of elections. 8. Contains data that are statistically improbable
(Sec. 2, COMELEC Resolution 9637, 13 February
2013) INCLUSION AND EXCLUSION PROCEEDINGS

Kinds of registration system Courts which have jurisdiction over inclusion and
exclusion proceedings
1. Continuing
2. Computerized 1. MTC - original and exclusive
3. Permanent 2. RTC - appellate jurisdiction
3. SC - appellate jurisdiction over RTC on question of
Book of voters law

Classified as permanent whereby each precinct shall Persons who may file a petition for inclusion or
have a permanent list of all registered voters residing exclusion
within the territorial jurisdiction of the precinct.
INCLUSION
Grounds for the alteration of Book of voters 1. Any private person whose application was
disapproved by the Election Registration Board
1. Deactivation/Reactivation 2. Those whose names were stricken out from the
2. Exclusion/ Inclusion list of voters
3. Cancellation of Registration in case of death 3. COMELEC
4. Annulment of Book of Voters
5. New Voters EXCLUSION
6. Transfer of residence 1. Any registered voter in the city or municipality
2. Representative of political party
Deactivation 3. Election officer
4. COMELEC (BP 881 OEC)
Removal from the registration records from the
precinct books of voters and places the same, properly Period for filing a petition in an inclusion or exclusion
marked and dated in indelible ink, in the inactive file proceeding
after entering the cause of deactivation.
INCLUSION: Any day except 105 days before regular
Grounds for deactivation election or 75 days before a special election.
(COMELEC Reso. No. 8820)
1. Those which would disqualify you as a voter:

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EXCLUSION: Anytime except 100 days before a regular conduct of government and which, as the most
election or 65 days before a special election. immediate means of securing their adoption, regularly
(COMELEC Reso. No. 9021) nominates and supports certain of its leaders and
members as candidate in public office.
Grounds for Inclusion and Exclusion Proceedings
NOTE: To acquire juridical personality and to entitle it to
INCLUSION rights and privileges granted to political parties, it must be
1. Application for registration has been disapproved registered with COMELEC. (Sec. 3 (c), RA 7941)
by the board
2. Name has been stricken out Sectoral party

EXCLUSION Organized group of citizens belonging to any of the


1. Not Qualified for possessing disqualification sectors enumerated in Sec. 5, RA 7941 whose principal
2. Flying voters advocacy pertains to the special interest and concerns
3. Ghost voters of their sector. (Sec. 3 (d), RA 7941)

Inapplicability of the doctrine of res judicata in Sectoral organization


inclusion or exclusion proceedings
A group of citizens or a coalition of groups of citizens
The proceedings for the exclusion or inclusion of who share similar physical attributes or
voters in the list of voters are summary in character. characteristics, employment, interests or concerns.
Except for the right to remain in the list of voters or for (Sec. 3 (e), RA 7941)
being excluded therefrom for the particular election in
relation to which the proceedings had been held, a Jurisdiction of COMELEC over political parties
decision in an exclusion or inclusion proceeding, even
if final and unappealable, does not acquire the nature Sec. 2(5), Art. IX-C of the Constitution grants the
of res judicata. In this sense, it does not operate as a Commission the power to register political parties. It
bar to any further action that a party may take also has the power to require candidates to specify in
concerning the subject passed upon in the proceeding. their certificates of candidacy their political affiliation,
Thus, a decision in an exclusion proceeding would allow political parties to appoint watchers, limit their
neither be conclusive on the voters political status, expenditures, and determine whether their
nor bar subsequent proceedings on his right to be registrations should be cancelled in appropriate
registered as a voter in any other election. (Domino v. proceedings. These powers necessarily include the
COMELEC, G.R. No. 134015, July 19, 1999) jurisdiction to resolve issues of political leadership in a
political party, and to ascertain the identity of political
Q: Can a voter be excluded for stating a fake address? party and its legitimate officers. (Palmares v.
COMELEC, G.R. No. 86177, August 11, 1989)
A: No. The right to vote is a most precious political
right, as well as a bounden duty of every citizen, Grounds for the refusal and/or cancellation of
enabling and requiring him to participate in the registration of national, regional or sectoral party,
process of government to ensure that it can truly be organization or coalition
said to derive its power solely from the consent of its
constituents. 1. It is a religious sect or denomination, organization
or association, organized for religious purposes
A citizen cannot be disenfranchised for the flimsiest of 2. It advocates violence or unlawful means to seek
reasons. Only on the most serious grounds, and upon its goal
clear and convincing proof, may a citizen be deemed 3. It is a foreign party or organization
to have forfeited this precious heritage of freedom. 4. It is receiving support from any foreign
(Asistio v. Aguirre, G.R. No. 191124, April 27, 2010) government, foreign political party, foundation,
organization, whether directly or through any of
POLITICAL PARTIES its officers or members or indirectly through third
parties for partisan election purposes
Political party 5. It violates or fails to comply with laws, rules or
regulations relating to elections
Any organized group of citizens advocating an ideology 6. It declares untruthful statements in its petition
or platform, principles and policies for the general 7. It has ceased to exist for at least one (1) year; or

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8. It fails to participate in the last two (2) preceding 8. Not possessing qualifications and possessing
elections or fails to obtain at least two per centum disqualifications under the Local Government
(2%) of the votes cast under the party-list system Code
in the two (2) preceding elections for the 9. Sentenced by final judgment for an offense
constituency in which it has registered. (Sec. 6, RA involving moral turpitude or for an offense
7941) punishable by one year or more of imprisonment
within two years after serving sentence
CANDIDACY 10. Removed from office as a result of an
administrative case
QUALIFICATIONS OF CANDIDATES 11. Convicted by final judgment for violating the oath
of allegiance to the Republic
Qualifications for President and Vice President of the 12. Dual citizenship (more specifically, dual
Philippines allegiance)
13. Fugitives from justice in criminal or non-political
1. Natural-born citizen of the Philippines cases here or abroad
2. Registered voter 14. Permanent residents in a foreign country or those
3. Able to read and write who have acquired the right to reside abroad and
4. At least 40 years of age at the day of election continue to avail of the same right
5. And a resident of the Philippines for at least ten 15. Insane or feeble- minded
years immediately preceding such election. (Sec. 2 16. Nuisance candidate
and 3, Art. VII, 1987 Constitution) 17. Violation of Sec. 73 OEC with regard to COC
18. Violation of Sec. 78: material misrepresentation in
Qualifications of elective local officials the COC

1. Must be a citizen of the Philippines NOTE: When a candidate has not yet been disqualified by
final judgment during the election day and was voted for, the
2. A registered voter in the barangay, municipality,
votes cast in his favor cannot be declared stray. (Codilla v. De
city, or province or, in the case of a member of the Venecia, G.R. No. 150605, December 10, 2002)
sangguniang panlalawigan, sangguniang
panlungsod, or sanggunian bayan, the district Effect of an unsworn renunciation of foreign
where he intends to be elected citizenship
3. A resident therein for at least one (1) year
immediately preceding the day of the election Failure to renounce foreign citizenship in accordance
4. And able to read and write Filipino or any other with the exact tenor of Sec. 5(2) of RA 9225 renders a
local language or dialect. (Sec. 39, RA 7160 Local dual citizen ineligible to run for and thus hold any
Government Code of the Philippines) elective public office. (Condon v. COMELEC, G.R. No.
198742, August 10, 2012)
NOTE: Congress may not add to qualifications for elective
officials provided in the constitution. However they may do
so for elective officials not provided in the Constitution. FILING OF CERTIFICATES OF CANDIDACY

Grounds for disqualification of a candidate EFFECT OF FILING

1. Declared as incompetent or insane by competent Certificate of Candidacy (Coc)


authority
2. Convicted by final judgment for subversion, It is in the nature of a formal manifestation to the
insurrection, rebellion, or any offense for which whole world of the candidates political creed or lack
he has been sentenced to a penalty of 18 months of political creed. (Sinaca v. Mula, 373 Phil. 896)
imprisonment
3. Convicted by final judgment for a crime involving NOTE: A CoC may be amended before the elections, even
moral turpitude after the date of its filing.
4. Election offenses under Sec. 68 of the OEC
Provisions of the election law on certificates of candidacy are
5. Committing acts of terrorism to enhance
mandatory in terms. However, after the elections, they are
candidacy regarded as directory so as to give effect to the will of the
6. Spending in his election campaign an amount in electorate. (Saya-Ang Sr. v. COMELEC, G.R. No. 155087,
excess of that allowed November 28, 2003)
7. Soliciting, receiving, making prohibited
contributions

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Purposes of the law in requiring the filing of officials. This is because elected public officials, by the
certificate of candidacy and in fixing the time limit very nature of their office, engage in partisan political
therefor activities almost all year round, even outside of the
campaign period. Political partisanship is the
To: inevitable essence of a political office, elective
1. Enable the voters to know, at least 60 days before positions included. The equal protection of the law
the regular election, the candidates among whom clause in the Constitution is not absolute, but is subject
they have to choose, and to reasonable classification. Substantial distinctions
2. Avoid confusion and inconvenience in the clearly exist between elective officials and appointive
tabulation of the votes cast. (Miranda v. Abaya, officials. The former occupy their office by virtue of the
G.R. No. 136351, July 28, 1999) mandate of the electorate. They are elected to an
office for a definite term and may be removed
Effect of filing a CoC on the tenure of incumbent therefrom only upon stringent conditions. On the
government officials other hand, appointive officials hold their office by
virtue of their designation thereto by an appointing
1. Appointive official Sec. 66 of the OEC provides authority. Some appointive officials hold their office in
that any person holding an appointive office or a permanent capacity and are entitled to security of
position, including active members of the Armed tenure while others serve at the pleasure of the
Forces of the Philippines, and officers and appointing authority. (Quinto v. COMELEC, G.R.
employees in GOCCs, shall be considered ipso 189698, February 22, 2010)
facto RESIGNED from his office upon the filing of
his CoC. Such resignation is irrevocable. SUBSTITUTION OF CANDIDATES

2. Elective official No effect. The candidate shall Substitution


continue to hold office, whether he is running for
the same or a different position. (Sec. 14, Fair If after the last day for the filing of Certificates of
Elections Act expressly repealed Sec. 67 of BP 881) Candidacy, an official candidate of a duly registered
political party or coalition of political parties dies,
Candidate withdraws or is disqualified for any cause, he may be
substituted by a candidate belonging to, and
It refers to any person aspiring for or seeking an nominated by, the same political party. No substitute
elective public office, who has filed a CoC by himself or shall be allowed for any independent candidate. (Sec.
through an accredited political party, aggroupment or 15, COMELEC Resolution 9518, 11 September 2013)
coalition of parties (Sec. 79.(a), OEC)
Requisites for valid substitution
Q: When can a person be considered a candidate?
GR:
A: Any person who files his CoC within the filing period 1. The substitute must belong to the same party
shall only be considered a candidate at the start of the 2. The deceased, disqualified or withdrawn
campaign period for which he filed his CoC. candidate must have duly file a valid CoC. (Ibid.)

Any person may thus file a CoC on any day within the XPN: This does not include those cases where the CoC
prescribed period for filing a CoC yet that person shall of the person to be substituted had been denied due
be considered a candidate, for purposes of course and canceled under Sec. 78 of the OEC.
determining ones possible violations of election laws,
only during the campaign period. (Penera v. COMELEC, Sec. 78 provides that a verified petition seeking to
G.R. No. 181613, November 25, 2009) deny due course or to cancel a CoC may be filed by the
person exclusively on the ground that any material
Q: Do the deemed-resigned provisions which are representation contained therein as required under
applicable to appointive officials and not to elective Sec. 74 hereof is false.
officials violate the equal protection clause of the
constitution? While the law enumerated the occasion where a
candidate may be validly substituted, there is no
A: No. The legal dichotomy created by the Legislature mention of the case where a candidate is excluded not
is a reasonable classification, as there are material and only by disqualification but also by denial and
significant distinctions between the two classes of

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cancellation of his CoC. (Ong v. Alegre, G.R. No. Q: Al Espaldon filed his CoC, signifying his intent to
163295, January 23, 2006) run for congressional office in the fourth district of
Leyte. Dexter Suyat filed a petition for denial of due
Q: Henry Tamayo and Dexter Suyat filed their CoCs course and/or cancellation of Als CoC. The COMELEC
for the position of Mayor of Lucena City. Dexter filed First Division disqualified Al without any qualification
a petition to disqualify Henry, alleging that Henry still for failure to comply with the one year residency
filed his CoC despite knowing that he had exceeded requirement. He was substituted by his wife,
the 3-term limit as Mayor of Lucena City. COMELEC appellee Camille Gonzales as the COMELEC En Banc
1st Division disqualified Henry. Camille Tamayo, the ruled that resolution of the First Division refers only
wife of Henry, filed her own CoC in substitution of her to disqualification and not to cancellation of CoC.
husband, Henry. Can Camille validly substitute her Camille won the congressional elections in 2010.
husband? Again, Dexter filed a motion to reconsider which
remained unacted. CA Mindaro, appellant, filed a
A: No. A disqualified candidate may only be petition for quo warranto before the House of
substituted if he had a valid CoC in the first place Representatives Electoral Tribunal. The HRET ruled in
because, if the disqualified candidate did not have a favor of Camille. Does Als disqualification without
valid and seasonably filed CoC, he is and was not a any qualification permit substitution of candidates?
candidate at all. If a person was not a candidate, he
cannot be substituted under Sec. 77 of the OEC. If we A: No. Since there would be no candidate to speak of
were to allow the so-called "substitute" to file a "new" under a denial of due course to and/or cancellation of
and "original" CoC beyond the period for the filing a CoC case, then there would be no candidate to be
thereof, it would be a crystalline case of unequal substituted.
protection of the law. Thus, there was no valid
candidate for Camille to substitute due to Henrys As explained in the case of Miranda v. Abaya, a
ineligibility. The existence of a valid CoC is therefore a candidate who is disqualified under Sec. 68 can be
condition sine qua non for a disqualified candidate to validly substituted pursuant to Sec. 77 because he
be validly substituted. (Talaga v. COMELEC, G.R. No. remains a candidate until disqualified; but a person
196804, October 9, 2012) whose CoC has been denied due course to and/or
cancelled under Sec. 78 cannot be substituted because
Q: Pedro Mahilig died while campaigning. His son he is not considered a candidate. Stated differently,
substituted him. Voters on the day of the election since there would be no candidate to speak of under a
wrote Pedro Mahilig instead of casting the same in denial of due course to and/or cancellation of a CoC
the name of his son, Garry Mahilig. Should the votes case, then there would be no candidate to be
be counted in favor of Garry? substituted; the same does not obtain, however, in a
disqualification case since there remains to be a
A: Yes. As a general rule, the same will be considered candidate to be substituted, although his or her
as stray votes but will not invalidate the whole ballot. candidacy is discontinued.
Exception is when the substitute carries the same
family name. (Sec. 12, RA 9006) Case law dictates that if a petition prays for the denial
of due course to and/or cancellation of CoC and the
Q: In the 1998 election, Mayor Aida already served 8 same is granted by the COMELEC without any
consecutive terms, yet she still filed a CoC. As a result, qualification, the cancellation of the candidate's CoC is
Guifaya filed a disqualification case. COMELEC then in order. This is precisely the crux of the Miranda ruling
disqualified Aida and cancelled her CoC. The daughter wherein the Court, in upholding the COMELEC En
of Aida, Sachi, upon nomination of their political Banc's nullification of the substitution in that case,
party, filed a certificate of substitution. Sachi won. decreed that the COMELEC Division's unqualified grant
Was the substitution valid? of the petition necessarily included the denial of due
course to and/or cancellation of the candidate's CoC,
A: No. COMELEC did not only disqualify Aida but also notwithstanding the use of the term "disqualified" in
cancelled her CoC. Therefore, she cannot be validly the COMELEC Division's resolution, as the foregoing
substituted. A disqualified candidate may only be was prayed for in the said petition. (Silverio R. Tagolino
substituted if he had a valid CoC because if the v. House of Representatives Electoral Tribunal and Lucy
disqualified candidate did not have a valid and Marie Torres-Gomez, G.R. No. 202202, March 19,
seasonably filed CoC, he is and was not a candidate at 2013)
all. (Miranda v. Abaya, G.R. No. 136351, July 28, 1999)

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Q: Rueben Soriano, a winning but ineligible candidate receipt pursuant to Sec. 76, of the Election Code. The
in a local election (for mayor or vice mayor), was COMELEC may not, by itself, without the proper
disqualified with finality after his proclamation due proceedings, deny due course to or cancel a CoC filed
to his citizenship. Rueben was alleged to have been in due form. (Luna v. COMELEC, G.R. No. 165983, April
using his US passport even after he had executed an 24, 2007)
Affidavit of Renunciation of his US citizenship. Can
Dexter Suyat, a candidate for the same position who XPNs:
garnered the next highest vote be proclaimed as the 1. Nuisance candidates; (Sec. 69 of the OEC)
eligible winner? 2. Petition to deny due course or to cancel a CoC;
(Sec. 78 of the OEC)
A: Yes. The old doctrine was that the vice mayor shall 3. Filing of a disqualification case on any of the
succeed the disqualified winning candidate, not the grounds enumerated in Sec. 68, OEC.
candidate for the same position who had received the
next highest vote. In recent cases, SC ruled that a void Q: Ka Dikko went to Laguna to file his CoC. The
CoC cannot produce any legal effect. Thus, the votes election officer refused to receive Ka Dikkos CoC
cast in favor of the ineligible candidate are not because he seeks to achieve his goals through
considered at all in determining the winner of an violence. Is the refusal valid?
election. Knowledge by the electorate of a candidates
disqualification is not necessary before a qualified A: No. It is the ministerial duty on the part of the
candidate who placed second to a disqualified one can election officer to receive and acknowledge receipt of
be proclaimed as the winner. The second-placer in the the CoC. The question of whether or not a person is
vote count is actually the first-placer among the disqualified belongs to another tribunal in an
qualified candidates. Furthermore, that the appropriate disqualification case.
disqualified candidate has already been proclaimed
and has assumed office is of no moment. The NUISANCE CANDIDATES
subsequent disqualification based on a substantive
ground that existed prior to the filing of the CoC voids Nuisance candidates
not only the CoC but also the proclamation. (Maquiling
v. COMELEC, G.R. No. 195649, April 16, 2013) Candidates who have no bona fide intention to run for
the office for which the CoC has been filed and would
Effect of reacquisition of Philippine citizenship as to thus prevent a faithful election. And upon showing
the domicile/residence requirement for running as a that:
mayoralty candidate 1. Said certificate has been filed to put the election
process in mockery or disrepute
Under RA 9225, it has no automatic impact or effect 2. To cause confusion among the voters by the
on a candidates residence/domicile. He merely has an similarity of the names of the registered
option to again establish his domicile in the candidates; or
municipality, which place shall become his new 3. By other circumstances or acts which
domicile of choice. The length of his residence therein demonstrate that a candidate has no bona fide
shall be determined from the time he made it his intention to run for the office for which his CoC
domicile of choice and it shall not retroact to the time has been filed and thus prevent a faithful
of his birth. (Japson v. COMELEC, G.R .No. 180088, determination of the true will of the electorate.
January 19, 2009) (Tajanan v. COMELEC, G.R. No. 104443, April 13,
1992)
Effect of filing two certificates of candidacy
The COMELEC may, motu proprio or upon verified
It disqualifies the person to run for both elective petition of an interested party, refuse to give due
positions. (Sec. 73, BP 881, OEC) course to or cancel a CoC upon showing of the above-
stated circumstances. (Sec. 69, BP 881 OEC)
MINISTERIAL DUTY OF COMELEC TO RECEIVE
CERTIFICATES Q: Jean and Joyette were the only candidates for
mayor of Bigaa, Bulacan in the May 1995 local
Duty of the COMELEC in receiving CoCs elections. Jean obtained 10,000 votes as against
3,000 votes for Joyette. In the same elections, Gem
GR: When a candidate files his CoC, the COMELEC has got the highest number of votes among the
a ministerial duty to receive and acknowledge its

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candidates for the Sangguniang Bayan of the same logical to conclude that the votes cast for Enrique
town. Jean died the day before her proclamation. could have been intended only for the legitimate
1. Who should the Board of Canvassers proclaim as candidate, Renato. The possibility of confusion in
elected mayor, Jean, Joyette or Gem? Explain. names of candidates if the names of nuisance
2. Who is entitled to discharge the functions of the candidates remained on the ballots on election day,
office of the mayor, Joyette or Gem? Explain. cannot be discounted or eliminated, even under the
automated voting system especially considering that
A: voters who mistakenly shaded the oval beside the
1. It is Jean who should be proclaimed as winner, name of the nuisance candidate instead of the bona
because she was the one who obtained the fide candidate they intended to vote for could no
highest number of votes for the position of mayor, longer ask for replacement ballots to correct the same.
but a notation should be made that she died for (Dela Cruz v. COMELEC, G.R. No. 192221, November
the purpose of applying the rule on succession to 13,2012)
office. Joyette cannot be proclaimed, because the
death of the candidate who obtained the highest PETITION TO DENY DUE COURSE OR CANCEL A
number of votes does not entitle the candidate CERTIFICATE OF CANDIDACY
who obtained the next highest number of votes to
be proclaimed the winner, since he was not the Period to file a petition to deny due course to or
choice of the electorate. Gem is not entitled to be cancel a CoC
proclaimed elected as mayor, because she ran for
the Sangguniang Bayan. A verified petition seeking to deny due course or to
cancel a CoC may be filed by the person exclusively on
2. Neither Joyette nor Gem is entitled to discharge the ground that any material representation contained
the functions of the office of mayor. Joyette is not therein as required under Sec. 74 of the OEC is false.
entitled to discharge the office of mayor, since she The petition may be filed at any time not later than
was defeated in the election. Gem is not entitled twenty-five (25) days from the time of the filing of the
to discharge the office of mayor. Under Sec. 44 of CoC and shall be decided, after due notice and hearing,
the Local Government Code, it is the vice mayor not later than fifteen days before the election.
who should succeed in case of permanent vacancy
in the office of the mayor. It is only when the Requisites for the grant of a petition to deny due
position of the vice mayor is also vacant that the course to or cancel a CoC
member of the Sangguniang Bayan who obtained
the highest number of votes will succeed to the 1. Material misrepresentation in the qualifications
office of mayor. (Benito v. COMELEC, G.R. No. for elective office, which includes age, residency,
106053, August 17, 1994) citizenship, and any other legal qualifications
necessary to run for an elective office;
Q: Renato and Enrique, both sharing the same 2. Deliberate attempt to mislead, misinform or hide
surname Dela Cruz, run for Vice Mayor. Renato had a fact which would otherwise render a candidate
Enrique declared to be a nuisance candidate and ineligible.
asked the COMELEC to strike out his name from the
ballot. But the ballot still retained Enriques name NOTE: These two requirements must concur to warrant the
despite his declaration as a nuisance candidate. cancellation of the CoC.
During Renatos campaign, he stressed that his
designated number was 2 and that Enrique was Material misrepresentation
declared by the COMELEC to be a nuisance candidate.
Bruno, the other candidate, won as Vice Mayor by a Material misrepresentation in a CoC refers to the
difference of 39 votes against Renato. COMELEC qualification for elective office, which includes false
regarded the votes cast for Enrique as stray votes. statement as to age, residency, citizenship, being a
Renato contends that he should have won had the registered voter and any other legal qualifications
votes cast for Enrique been counted in his favor. necessary to run for an elective office.
Should the stray votes for Enrique be counted in favor
NOTE: A misrepresentation which does not affect ones
of Renato?
qualification to run or hold public office will not suffice for
the cancellation of a CoC.
A: Yes. As we pronounced in Bautista, the voters
constructive knowledge of such cancelled candidacy
made their will more determinable, as it is then more

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EFFECT OF DISQUALIFICATION rule on substitution of candidates. No Statement of


Withdrawal shall be accepted if filed by a person other than
Effects of disqualification the candidate himself or if filed by mail, electronic mail,
telegram or facsimile. (Sec. 15, COMELEC Res. 9518, 11
September 2012)
Any candidate who has been declared by final
judgment to be disqualified shall not be voted for. The
Period to withdraw Certificate of Candidacy
votes cast in his favor shall not be counted.
At any time before Election Day. (Sec. 15, COMELEC
If the candidate is not disqualified by final judgment
Res. 9518, 11 September 2012)
before the election and receives the highest number
of votes in the election, the court or COMELEC will
Effect of withdrawal on the liabilities of the candidate
continue with the trial and hearing of the action,
inquiry or protest. Upon motion of the complainant or
The filing of a withdrawal of a CoC shall not affect
intervenor, the court or COMELEC may order the
whatever civil, criminal or administrative liabilities a
suspension of the proclamation of the candidate
candidate may have incurred. (Sec. 15, COMELEC Res.
whenever the evidence of guilt is strong.
9518, 11 September 2012)
Remedy of a petitioner if the petition for
Q: May a person who has withdrawn his CoC be
disqualification is unresolved on the day of the
eligible to run for another position or become a
election
substitute candidate?
The petitioner may file a motion with the Division or
A: A person who has withdrawn his CoC for a position
Commission En Banc where the case is pending, to
shall not be eligible, whether as a substitute candidate
suspend the proclamation of the candidate concerned,
or not, for any other position. (Sec. 15, COMELEC
provided that the evidence for the grounds to
Resolution 9518, 11 September 2012)
disqualify is strong. For this purpose, at least three (3)
days prior to any election, the Clerk of the Commission
Q: On the last day of filing a CoC, March 31, Kristine
shall prepare a list of pending cases and furnish all
Rossellini withdrew her CoC. On April 1, campaign
Commissioners copies of the said list.
period started. On April 2, she wanted to run again so
she filed a written declaration withdrawing her
In the event that a candidate with an existing and
withdrawal. Is her act of withdrawing the withdrawal
pending Petition to disqualify is proclaimed winner,
valid?
the Commission shall continue to resolve the said
petition. (Sec. 5, Rule 25, COMELEC Res. 9523, 25
A: No. The withdrawal of the withdrawal of the CoC
September 2012)
made after the last day of filing is considered as filing
of a new CoC. Hence, it was not allowed since it was
WITHDRAWAL OF CANDIDATES
filed out of time. (Monsale v. Nico, G.R. No. L-2539,
May 28, 1949)
Rule on withdrawal of candidates
CAMPAIGN
To be effective, the withdrawal should be under oath
or in the form of a sworn declaration that he is
withdrawing his CoC, such being the requirement of PREMATURE CAMPAIGNING
the law. A withdrawal of candidacy which is not a valid
withdrawal generally produces no legal effect, and for Election campaign
all legal intents and purposes there is no withdrawal
and he remains a candidate. The exception to this rule An act designed to promote the election or defeat of a
is when the withdrawal which is not under oath, is particular candidate or candidates to a public office
actually made and accepted by the election registrar, which shall include:
as a result of which a substitute candidate files his CoC 1. Forming organizations, associations, clubs,
in his place and receives the winning number of votes. committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any
NOTE: Any person who has filed a CoC may withdraw the campaign for or against a candidate
same (Sec. 15, COMELEC Res. 9518, 11 September 2012) 2. Holding political caucuses, conferences, meetings,
rallies, parades, or other similar assemblies, for
It must be noted that withdrawal of a CoC cannot be made the purpose of soliciting votes and/or undertaking
by someone else. It must be filed personally subject to the

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any campaign or propaganda for or against a gaining undue advantage in exposure and publicity on
candidate account of their resources and popularity. (Chavez v.
3. Making speeches, announcements or COMELEC, G.R. No. 162777, August 31, 2004)
commentaries, or holding interviews for or
against the election of any candidate for public Q: Petitioner Diana De Castro and respondent Marj
office Perez ran for mayor of Sta. Monica, Surigao Del Norte
4. Publishing or distributing campaign literature or during the May 14, 2007 elections. Dianas political
materials designed to support or oppose the party held a motorcade preceding the filing of her
election of any candidate; or CoC announcing her candidacy for mayor. Because of
5. Directly or indirectly soliciting votes, pledges or this, Marj filed a petition to disqualify Diana for
support for or against a candidate. (Sec. 79, BP engaging in premature campaigning in violation of
881 OEC) Sec.80 and 68 of the OEC. Did Diana violate the
prohibition against premature campaigning?
NOTE: The foregoing enumerated acts if performed for the
purpose of enhancing the chances of aspirants for A: The campaign period for local officials began on 30
nomination for candidacy to a public office by a political March 2007 and ended on 12 May 2007. Diana filed
party, aggroupment, or coalition of parties shall not be her CoC on 29 March 2007. Diana was thus a candidate
considered as election campaign or partisan election activity.
on 29 March 2009 only for purposes of printing the
ballots under Sec. 11 of RA 8436. On 29 March 2007,
Public expressions or opinions or discussions of probable
issues in a forthcoming election or on attributes of or the law still did not consider Diana a candidate for
criticisms against probable candidates proposed to be purposes other than the printing of ballots. Acts
nominated in a forthcoming political party convention shall committed by Diana prior to 30 March 2007, the date
not be construed as part of any election campaign or when she became a "candidate," even if constituting
partisan political activity contemplated under the OEC. (Sec. election campaigning or partisan political activities,
79, BP 881 OEC) are not punishable under Sec. 80 of the OEC. Such acts
are within the realm of a citizens protected freedom
Period to campaign of expression. Acts committed by Diana within the
campaign period are not covered by Sec. 80 as Sec. 80
1. Presidential and Vice presidential election 90 punishes only acts outside the campaign period.
days;
2. Election of members of the Congress and local In laymans language, this means that a candidate is
election 45 days; liable for an election offense only for acts done during
3. Barangay Election 15 days the campaign period, not before. The law is clear as
4. Special election under Art. VIII, Sec. 5(2) of the daylight any election offense that may be
Constitution 45 days committed by a candidate under any election law
cannot be committed before the start of the campaign
NOTE: The campaign periods shall not include the day before period. (Penera v. COMELEC, G.R. No. 181613,
and the day of the election. (Sec. 3, BP 881 OEC)
November 25, 2009)
Premature campaign Candidate

It shall be unlawful for any person, whether or not a Any person aspiring for or seeking an elective public
voter or candidate, or for any party, or association of office, who has filed a CoC by himself or through an
persons, to engage in an election campaign or partisan accredited political party, aggroupment or coalition of
political activity except during the campaign period. parties. However, it is no longer enough to merely file
a CoC for a person to be considered a candidate
Provided, that political parties may hold political because "any person who files his CoC within the filing
conventions or meetings to nominate their official period shall only be considered a candidate at the start
candidates within thirty days before the of the campaign period for which he filed his CoC." Any
commencement of the campaign period and forty-five person may thus file a CoC on any day within the
days for Presidential and Vice-Presidential election. prescribed period for filing a CoC yet that person shall
(Sec. 80, BP 881 OEC) be considered a candidate, for purposes of
determining ones possible violations of election laws,
NOTE: The use of lawful election propaganda under the Fair
only during the campaign period. (Ibid.)
Elections Act is subject to the supervision and regulation by
the COMELEC in order to prevent premature campaigning
and to equalize, as much as practicable, the situation of all
candidates by preventing popular and rich candidates from

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PROHIBITED CONTRIBUTIONS c. Cockfights


d. Games
Electoral contributions and expenditures e. Boxing bouts
f. Bingo
1. Gift g. Beauty contests
2. Donation h. Entertainments
3. Subscription i. Cinematographic, theatrical, or other
4. Loan performances for the purpose of raising funds
5. Advance or deposit of money or anything of for an election campaign or for the support of
value any candidate from the commencement of
6. A contract, promise or agreement of the election period up to and including
contribution, whether or not legally enforceable election day.
7. Use of facilities voluntarily donated by other
persons, the money value of which can be 2. It shall also be unlawful for any person or
assessed based on the rates prevailing in the area organization, whether civic or religious, directly or
8. Those made for the purpose of influencing the indirectly, to solicit and/or accept from any
results of the elections candidate for public office or his representative
any gift, food, transportation, contribution or
NOTE: Does not include services rendered without
donation in cash or in kind from the
compensation by individuals volunteering a portion or all of
their time in behalf of a candidate or political party. (Sec. 94,
commencement of the election period up to and
BP 881 OEC) including election day, except normal and
customary religious stipends, tithes, or
Prohibited contributions collections. (Sec. 97, BP 881 OEC)

Those made for purposes of partisan political activity, LAWFUL AND PROHIBITED PROPAGANDA
directly or indirectly by any of the following:
1. Public or private financial institutions (except Lawful election propaganda
loans made by such institutions in the business of
lending money to a candidate or political party, 1. Written printed materials (does not exceed 8 in.
made in accordance with laws and in the ordinary width by 14 in. length)
course of business) 2. Handwritten/printed letters
2. Persons operating public utilities or those 3. Posters (not exceeding 2 x 3 ft. or 3 x 8 ft. on the
exploiting natural resources of the nation occasion of a public meeting or rally, or in
3. Persons with contracts to supply the government announcing the holding of such). Provided, that
with goods or services or to perform construction said streamers may be displayed five (5) days
or other works before the date of rally but shall be removed
4. Grantees of franchises, incentives, exemptions, within 24 hours after said rally;
allocations, or similar privileges or concessions by 4. Print ads page in broadsheets and page in
the government tabloids thrice a week per newspaper, magazine
5. Persons who, within one year prior to the date of or other publication during the campaign period;
the election, have been granted by the 5. Broadcast media (i.e. TV and radio)
government loans or other accommodations in 6. All other forms of election propaganda not
excess of P100,000 prohibited by the OEC or this Act. (Sec. 3,RA 9006,
6. Educational institutions which have received The Fair Elections Act)
grants of public funds not less than P100,000 7. Streamers not exceeding three feet (3) by eight
7. Officials or employees in the Civil Service or feet (8) in size displayed at the site and on the
members of the Armed Forces of the Philippines; occasion of a public meeting or rally. Said
and streamers may be displayed five (5) days before
8. Foreigners and foreign corporations. (Sec. 95, BP the date of the meeting or rally and shall be
881 OEC) removed within twenty-four (24) hours after said
meeting or rally
Prohibited means of raising funds 8. Mobile units, vehicles motorcades of all types,
whether engine or manpower driven or animal
1. Holding any of the following activities: drawn, with or without sound systems or loud
a. Dances speakers and with or without lights;
b. Lotteries

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9. Paid advertisements in print or broadcast media manifestly favor or oppose any candidate or party
subject to the requirements set forth in Sec. by unduly or repeatedly referring to, or
9 hereof and RA 9006; (Sec. 6, COMELEC Res. unnecessarily mentioning his name, or including
9615, 15 January 2013) therein said candidate or party; and
f) To post, display or exhibit any election campaign
Prohibited forms of election propaganda or propaganda material outside of authorized
common poster areas, in public places, or in
a) To print, publish, post or distribute any private properties without the consent of the
newspaper, newsletter, newsweekly, gazette or owner thereof.
magazine advertising, pamphlet, leaflet, card, g) Public places referred to in the previous
decal, bumper sticker, poster, comic book, subsection (f) include any of the following:
circular, handbill, streamer, sample list of a. Electronic announcement boards, such as
candidates or any published or printed political LED display boards located along highways
matter and to air or broadcast any election and streets, LCD TV displays posted on walls
propaganda or political advertisement by of public buildings, and other similar devices
television or radio or on the internet for or against which are owned by local government units,
a candidate or group of candidates to any public government-owned and controlled
office, unless they bear and be identified by the corporations, or any agency or
reasonably legible, or audible words political instrumentality of the Government;
advertisement paid for, followed by the true and b. Motor vehicles used as patrol cars,
correct name and address of the candidate or ambulances, and other similar purposes that
party for whose benefit the election propaganda are owned by local government units,
was printed or aired. It shall likewise be unlawful government-owned and controlled
to publish, print or distribute said campaign corporations, and other agencies and
materials unless they bear, and are identified by, instrumentalities of the Government,
the reasonably legible, or audible words political particularly those bearing red license plates;
advertisements paid by, followed by the true and c. Waiting sheds, sidewalks, street and lamp
correct name and address of the payor. posts, electric posts and wires, traffic
b) To print, publish, broadcast or exhibit any such signages and other signboards erected on
election propaganda donated or given free of public property, pedestrian overpasses and
charge by any person or publishing firm or underpasses, flyovers and underpasses,
broadcast entity to a candidate or party without bridges, main thoroughfares, center islands
the written acceptance by the said candidate or of roads and highways
party and unless they bear and be identified by d. Schools, shrines, barangay halls, health
the words "printed free of charge, or airtime for centers, public structures and buildings or
this broadcast was provided free of charge by, any edifice thereof;
respectively, followed by the true and correct e. Public utility vehicles such as buses, jeepneys,
name and address of the said publishing firm or trains, taxi cabs, ferries, pedicabs and
broadcast entity; tricycles, whether motorized or not;
c) To show, display or exhibit publicly in a theater, f. Within the premises of public transport
television station, or any public forum any movie, terminals, such as bus terminals, airports,
cinematography or documentary portraying the seaports, docks, piers, train stations, and the
life or biography of a candidate, or in which a like.
character is portrayed by an actor or media
personality who is himself a candidate; The violation of letters d and e under subsection (g)
d) For any newspaper or publication, radio, shall be a cause for the revocation of the public utility
television or cable television station, or other franchise and will make the owner and/or operator of
mass media, or any person making use of the mass the transportation service and/or terminal liable for an
media to sell or to give free of charge print space election offense under Sec. 9 of RA 9006 as
or air time for campaign or election propaganda implemented by Sec. 18 (n) of these Rules.
purposes to any candidate or party in excess of
the size, duration or frequency authorized by law The printing press, printer, or publisher who prints,
or these rules; reproduces or publishes said campaign materials, and
e) For any radio, television, cable television station, the broadcaster, station manager, owner of the radio
announcer or broadcaster to allow the scheduling or television station, or owner or administrator of any
of any program, or permit any sponsor to website who airs or shows the political
advertisements, without the required data or in

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ELECTION LAW

violation of these rules shall be criminally liable with ALTERNATIVE ANSWER:


the candidate and, if applicable, further suffer the No. Although the expenditure limitation applies only
penalties of suspension or revocation of franchise or to the purchase of air time, thus leaving political
permit in accordance with law. (Sec. 6, COMELEC Res. parties free to spend for other forms of campaign, the
9615, 15 January 2013) limitation nonetheless results in a direct and
substantial reduction of the quantity of political
ALLOWABLE COMELEC AIR TIME FOR speech by restricting the number of issues that can be
CANDIDATES (Fair Elections Act) discussed, the depth of their discussion and the size of
NATIONAL POSITIONS LOCAL POSITIONS the audience that can be reached, through the
120 minutes for TV 60 minutes for TV broadcast media.
180 minutes for radio 90 minutes for radio
Since the purpose of the Free Speech Clause is to
NOTE: The COMELEC cannot compel newspapers of general promote the widest possible dissemination of
circulation to donate free print space as COMELEC space information, and the reality is that to do this requires
without payment of just compensation. Such compulsion the expenditure of money, a limitation on expenditure
amounts to taking; hence, it is an exercise of eminent for this purpose cannot be justified, not even for the
domain and not of police power. (Philippine Press Institute v. purpose of equalizing the opportunity of political
COMELEC, G.R. No. 119694, May 22, 1995) The payment of
candidates. (Gonzalez v. COMELEC, G.R. No. L-28783,
just compensation is now expressly provided under Sec. 7 of
April 18, 1969)
the Fair Elections Act.

However, all broadcasting stations, whether by radio or Rules on election propaganda


television stations, which are licensed by the government,
do not own the airways and frequencies; they are merely 1. All registered parties and bona fide candidates
given the temporary privilege of using them. A franchise is a shall have a right to reply to charges published
privilege subject to amendment, and the provision of BP 881 against them.
granting free airtime to the COMELEC is an amendment of 2. No movie, cinematographic, documentary
the franchise of radio and television stations.
portraying the life or biography of a candidate
(Telecommunications and Broadcast Attorneys of the
shall be publicly exhibited in theatre, TV station,
Philippines v. COMELEC, G.R. No. 132922, April 21, 1998)
Payment of just compensation is not necessary since it is a or any public forum during the campaign period.
valid exercise of police power. 3. No movie ,cinematograph, documentary
portrayed by an actor or media personality who is
Q: A COMELEC resolution provides that political himself a candidate shall be publicly exhibited in a
parties supporting a common set of candidates shall theatre, TV station or any public form during the
be allowed to purchase jointly air time and the campaign period.
aggregate amount of advertising space purchased for 4. All mass media entities shall furnish the COMELEC
campaign purposes shall not exceed that allotted to with the copies of all contracts for advertising,
other political parties or groups that nominated only promoting, or opposing any political party or the
one set of candidates. The resolution is challenged as candidacy of any person for public office within 5
a violation of the freedom of speech and of the press. days after its signing.
Is the resolution constitutionally defensible? Explain. 5. Any media personality who is a candidate or is
campaign volunteer for or employed or retained
A: Yes. The resolution is constitutionally defensible. in a capacity by any candidate or political party
Under Sec. 4, Art. IX-C of the 1987 Constitution, during shall be deemed resigned, if so requires by their
the election period the COMELEC may supervise or employer, shall take a LOA from his work as such
regulate the media of communication or information during campaign period.
to ensure equal opportunity, time, and space among
candidates with the objective of holding free, orderly, Q: COMELEC promulgated a resolution providing that
honest, peaceful, and credible elections. To allow decals and stickers may be posted only in any of the
candidates who are supported by more than one authorized posting areas provided for. Atty.
political party to purchase more air time and Espaldon, a senatorial candidate, assails the
advertising space than candidates supported by one COMELEC's Resolution insofar as it prohibits the
political party only will deprive the latter of equal time posting of decals and stickers in "mobile" places like
and space in the media. cars and other moving vehicles. According to him,
such prohibition is violative of Sec. 82 of the OEC and
Sec. 11(a) of RA 6646. Is the resolution valid?

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203 FACULTY OF CIVIL LAW
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A: No. The COMELEC's prohibition on posting of decals 2. It is a direct and total suppression of a category of
and stickers on "mobile" places whether public or expression and even though such suppression is
private except in designated areas provided for by the only for a limited period; and
COMELEC itself is null and void on constitutional 3. The governmental interest sought to be promoted
grounds. The prohibition unduly infringes on the can be achieved by means other than the
citizen's fundamental right of free speech enshrined in suppression of freedom of expression. (SWS v.
the Constitution. (Sec. 4, Art. III) Significantly, the COMELEC, G.R. No. 147571, May 5, 2001)
freedom of expression curtailed by the questioned
prohibition is not so much that of the candidate or the Q: May the media be compelled to publish the results
political party. The regulation strikes at the freedom of of the election survey?
an individual to express his preference and, by
displaying it on his car, to convince others to agree A: No, but should they decide to publish the said
with him. survey for public consumption, they must likewise
publish the following information:
Also, the questioned prohibition premised on the a. The name of the person, candidate, party, or
statute (RA 6646) and as couched in the resolution is organization that commissioned or paid for the
void for overbreadth. The restriction as to where the survey;
decals and stickers should be posted is so broad that it b. The name of the person, polling firm or survey
encompasses even the citizen's private property, organization who conducted the survey;
which in this case is a privately-owned vehicle. In c. The period during which the survey was
consequence of this prohibition, another cardinal rule conducted, the methodology used, including the
prescribed by the Constitution would be violated. Sec. number of individual respondents and the areas
1, Art. III of the Bill of Rights provides that no person from which they were selected, and the specific
shall be deprived of his property without due process questions asked;
of law. The right to property may be subject to a d. The margin of error of the survey;
greater degree of regulation but when this right is e. For each question for which the margin of error is
joined by a "liberty" interest, the burden of greater than that reported under par. (4), the
justification on the part of the Government must be margin of error for that question; and
exceptionally convincing and irrefutable. The burden is f. A mailing address and telephone number,
not met in this case. indicating it as an address or telephone number at
which the sponsor can be contacted to obtain a
Additionally, the constitutional objective to give a rich written report regarding the survey in accordance
candidate and a poor candidate equal opportunity to with the next succeeding paragraph.
inform the electorate as regards their candidacies, g. The survey together with raw data gathered to
mandated by Art. II, Sec. 26 and Art. XIII, Sec. 1 in support its conclusions shall be available for
relation to Art. IX (c) Sec. 4 of the Constitution, is not inspection, copying and verification by the
impaired by posting decals and stickers on cars and Commission. Any violation of this SEC. shall
other private vehicles. It is to be reiterated that the constitute an election offense. (Sec. 26, COMELEC
posting of decals and stickers on cars, calesas, Res. 9615 as amended by COMELEC Res. 9631, 1
tricycles, pedicabs and other moving vehicles needs February 2013)
the consent of the owner of the vehicle. Hence, the
preference of the citizen becomes crucial in this kind Q: Does the conduct of exit polls transgress the
of election propaganda not the financial resources of sanctity and secrecy of the ballot?
the candidate. (Adiong v. Comelec, G.R. No. 103956,
March 31, 1992) A: No. In exit polls, the contents of the official ballot
are not actually exposed. Furthermore, the revelation
Q: Is the conduct of election survey prohibited? of whom an elector has voted for is not compulsory,
but voluntary.
A: No. The SC held that Sec. 5.4 of the Fair Elections
Act prohibiting publication of survey results 15 days Voters may also choose not to reveal their identities.
immediately preceding a national election and 7 days Indeed, narrowly tailored countermeasures may be
before a local election violates the constitutional rights prescribed by the COMELEC, so as to minimize or
of speech, expression and the press because: suppress incidental problems in the conduct of exit
1. It imposes a prior restraint on the freedom of polls, without transgressing the fundamental rights of
expression our people. (ABS-CBN Broadcasting Corporation v.
COMELEC, G.R. No. 133486, January 28, 2000)

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Requirements in the conduct of exit polls c) If the supporting evidence is not yet available due to
circumstances beyond the power of the claimant, the
a. Pollster shall not conduct their surveys within fifty latter shall supplement his claim as soon as the
supporting evidence becomes available, without delay
(50) meters from the polling place, whether said
on the part of the claimant.
survey is taken in a home, dwelling place and
d) Claimant must furnish a copy of the verified claim and
other places; its attachments to the media outlet concerned prior to
b. Pollsters shall wear distinctive clothing and the filing of the claim with the COMELEC. (Sec. 14,
prominently wear their identification cards issued COMELEC Res. 9615 as amended by COMELEC Res.
by the organization they represent; 9631, 1 February 2013)
c. Pollsters shall inform the voters that they may
refuse to answer; and Period of resolution

The results of the exit polls may be announced after The COMELEC, through the RED, shall review the
the closing of the polls on Election Day, and must verified claim within forty-eight (48) hours from
identify the total number of respondents, and the receipt thereof, including supporting evidence, and if
places where they were taken. Said announcement circumstances warrant, give notice to the media outlet
shall state that the same is unofficial and does not involved for appropriate action, which shall, within
represent a trend. (Sec. 27, COMELEC Res. 9615, 15 forty-eight (48) hours, submit its comment, answer or
January 2013) response to the RED, explaining the action it has taken
to address the claim. The media outlet must likewise
Allowance of right to reply furnish a copy of the said comment, answer or
response to the claimant invoking the right to reply.
All registered political parties, party-list groups or (Sec. 14, COMELEC Res. 9615 as amended by COMELEC
coalitions and bona fide candidates shall have the right Res. 9631, 1 February 2013)
to reply to charges published or aired against them.
The reply shall be given publicity by the newspaper, Remedy of a candidate who feels that his right to
television, and/or radio station which first printed or reply was not addressed
aired the charges with the same prominence or in the
same age or section or in the same time slot as the first File the appropriate petition and/or complaint before
statement. (Sec. 14, COMELEC Resolution 9615 as the Commission on Elections or its field offices, which
amended by COMELEC Res. 9631, 1 February 2013) shall be endorsed to the Clerk of the Commission. (Sec.
14, COMELEC Res. 9615 as amended by COMELEC Res.
Persons who may invoke the right 9631, 1 February 2013)

Registered political parties, party-list groups or LIMITATION AND EXPENSES


coalitions and bona fide candidates may invoke the
right to reply. (Sec. 14, COMELEC Resolution 9615 as Limitations on expenses for the candidates and
amended by COMELEC Res. 9631, 1 February 2013) political parties

Time within which the candidate may invoke the right a. For candidates - Three pesos (P3.00) for every
to reply voter currently registered in the constituency
where the candidate filed his CoC;
By submitting a formal verified claim within a non- b. For other candidates without any political party
extendible period of forty eight (48) hours from first and without support from any political party Five
broadcast or publication against the media outlet to pesos (P5.00) for every voter currently registered
the COMELEC, through the appropriate Regional in the constituency where the candidate filed his
Election Director (RED) (Sec. 14, COMELEC Resolution CoC.
9615 as amended by COMELEC Resolution 9631, 1 c. For Political Parties and party-list groups Five
February 2013) pesos (P5.00) for every voter currently registered
in the constituency or constituencies where it has
NOTE: The formal verified claim shall include: official candidates. (Sec. 5, COMELEC Res. 9615, 15
a) A detailed enumeration of the circumstances and January 2013)
occurrences which warrant the invocation of the right
of reply
b) Must be accompanied by supporting evidence, such as
a copy of the publication or recording of the television
or radio broadcast, as the case may be.

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Lawful expenditures does not apply to candidates for elective barangay


office. (Sec. 14, RA 7166)
1. Traveling expenses
2. Compensation of campaigners, clerks, BOARD OF ELECTION INSPECTORS AND BOARD OF
stenographers, messengers and other persons CANVASSERS
actually employed in the campaign
3. Telegraph and telephone tolls, postage, freight Composition of the Board of Canvassers (BoC)
and express delivery charges
4. Stationery, printing and distribution of printed 1. Provincial board of canvassers The provincial
matters relative to candidacy board of canvassers shall be composed of the
5. Employment of watchers at the polls provincial election supervisor or a senior lawyer in
6. Rent, maintenance and furnishing of campaign the regional office of the Commission, as
headquarters, office or place of meetings chairman, the provincial fiscal, as vice-chairman,
7. Political meetings or rallies and the provincial superintendent of schools, and
8. Advertisements one representative from each of the ruling party
9. Employment of counsel, the cost of which shall and the dominant opposition political party in the
not be taken into account in determining the constituency concerned entitled to be
amount of expenses which a candidate or political represented, as members.
party may have incurred 2. City board of canvassers The city board of
10. Copying and classifying list of voters, investigating canvassers shall be composed of the city election
and challenging the right to vote of persons registrar or a lawyer of the Commission, as
registered in the lists, the cost of which shall not chairman, the city fiscal and the city
be taken into account in determining the amount superintendent of schools, and one
of expenses which a candidate or political party representative from each of the ruling party and
may have incurred the dominant opposition political party entitled to
11. Printing sample ballots, the cost of which shall not be represented, as members.
be taken into account in determining the amount 3. District board of canvassers of Metropolitan
of expenses which a candidate or political party Manila The district board of canvassers shall be
may have incurred. (Sec. 102, BP 88, OEC) composed of a lawyer of the Commission, as
chairman, and a ranking fiscal in the district and
NOTE: The cost of numbers 9, 10, 11 shall not be taken into the most senior district school supervisor in the
account in determining the amount of expenses which a district to be appointed upon consultation with
candidate or political party may have incurred. the Ministry of Justice and the Ministry of
Education, Culture and Sports, respectively, and
STATEMENT OF CONTRIBUTIONS AND EXPENSES one representative from each of the ruling party
and the dominant opposition political party in the
Statement of contribution and expenses constituency concerned, as members.
4. Municipal board of canvassers The municipal
Every candidate and treasurer of the political party board of canvassers shall be composed of the
shall, within 30 days after the day of the election, file election registrar or a representative of the
in duplicate with the offices of the COMELEC, the full, Commission, as chairman, the municipal
true and itemized statement of all contributions and treasurer, and the district supervisor or in his
expenditures in connection with the election. (Sec. 14, absence any public school principal in the
RA 7166) municipality and one representative from each of
the ruling party and the dominant opposition
Effects of failure to file the said statement political party entitled to be represented, as
members.
1. No person elected to any public office shall enter 5. Board of canvassers for newly created political
upon the duties of his office until he has filed the subdivisions The Commission shall constitute a
statement of contributions and expenditures board of canvassers and appoint the members
herein required. The same prohibition shall apply thereof for the first election in a newly created
if the political party which nominated the winning province, city or municipality in case the officials
candidates, or winning party-list group, fails to file who shall act as members thereof have not yet
the statement required herein. assumed their duties and functions. (Sec. 221, BP
2. Such failure will constitute an administrative 881 OEC)
offense for which the offenders shall be liable to
pay an administrative fine. Provided, that this

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Supervision and control over the BOC The election registrar concerned shall place all the
returns intended for the board of canvassers inside a
The Commission shall have direct control and ballot box provided with three padlocks whose keys
supervision over the board of canvassers. Any member shall be kept as follows: one by the election registrar,
of the board of canvassers may, at any time, be another by the representative of the ruling party and
relieved for cause and substituted motu proprio by the the third by the representative of the dominant
Commission. (Sec. 227., BP 881, OEC) political opposition party. (Sec. 229, BP881, OEC)

BOC for President and Vice-President Process of safekeeping of transmitted election


returns
Congress
The board of canvassers shall keep the ballot boxes
Duties of Congress as BOC for President and Vice containing the election returns in a safe and secure
President room before and after the canvass. The door to the
room must be padlocked by three locks with the keys
Congress shall determine the authenticity and due thereof kept as follows:
execution of certificate of canvass. 1. One with the chairman,
2. The other with the representative of the ruling
1. Each certificate of canvass was executed, signed, party,
thumb marked by the Chair and transmitted to 3. And the other with the representative of the
Congress dominant opposition political party.
2. Each certificate contains the names of all
candidates and votes and words and figures. The watchers of candidates, political parties, coalition
3. No discrepancy in authentic copies of political parties and organization collectively
authorized by the Commission to appoint watchers
BOC for Senators shall have the right to guard the room. Violation of this
right shall constitute an election offense. (Sec. 230, BP
COMELEC en banc. 881 OEC)

Manner of delivery and transmittal of election Process of canvassing by the board


returns
1. The BOC shall meet not later than six o'clock in the
CITY AND MUNICIPAL PROVINCIAL AND afternoon of Election Day at the place designated
BOARD OF CANVASSERS DISTRICT BOARDS OF by the Commission to receive the election returns
CANVASSERS IN and to immediately canvass those that may have
METROPOLITAN already been received.
MANILA 2. It shall meet continuously from day to day until
The copy of the election The copy of the the canvass is completed, and may adjourn but
returns, duly placed election returns shall only for the purpose of awaiting the other election
inside a sealed envelope be personally delivered returns from other polling places within its
signed and affixed with by the members of the jurisdiction.
the imprint of the thumb board of election 3. Each time the board adjourns, it shall make a total
of the right hand of all inspectors to the of all the votes canvassed so far for each
the members of the election registrar for candidate for each office, furnishing the
board of election transmittal to the Commission in Manila by the fastest means of
inspectors, shall be proper board of communication a certified copy thereof, and
personally delivered by canvassers under making available the data contained therein to
the members of the proper receipt to be the mass media and other interested parties.
board of election signed by all the 4. As soon as the other election returns are
inspectors to the city or members thereof. delivered, the board shall immediately resume
municipal board of canvassing until all the returns have been
canvassers under proper canvassed.
receipt to be signed by all 5. The respective board of canvassers shall prepare
the members thereof. a certificate of canvass duly signed and affixed
with the imprint of the thumb of the right hand of
each member, supported by a statement of the

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votes received by each candidate in each polling


place and, on the basis thereof, shall proclaim as NOTE: The BoC, notwithstanding the fact that not all the
elected the candidates who obtained the highest election returns have been received by it, may terminate the
number of votes cast in the province, city, canvass and proclaim the candidates elected on the basis of
the available election returns if the missing election returns
municipality or barangay. (Sec. 231, BP 881 OEC)
will not affect the results of the election (Sec. 233, BP 881,
OEC)
NOTE: Failure to comply with this requirement shall
constitute an election offense.
Duty of the BoC when the integrity of ballots is
Persons not allowed inside the canvassing room violated

1. Any officer or member of the Armed Forces of the 1. In case of material defects in the election returns -
Philippines, including the Philippine Constabulary, If it should clearly appear that some requisites in
or the Integrated National Police form or data had been omitted in the election
2. Any peace officer or any armed or unarmed returns, the board of canvassers shall call for all
persons belonging to an extra-police agency, the members of the board of election inspectors
special forces, reaction forces, strike forces, home concerned by the most expeditious means, for the
defense forces, barangay self-defense units, same board to effect the correction. In case of the
barangay tanods omission in the election returns of the name of
3. Any member of the security or police any candidate and/or his corresponding votes, the
organizations of government ministries, board of canvassers shall require the board of
commissions, councils, bureaus, offices, election inspectors concerned to complete the
instrumentalities, or government-owned or necessary data in the election returns and affix
controlled corporations or their subsidiaries therein their initials. (Sec. 234, BP 881, OEC)
4. Any member of a privately owned or operated
NOTE: The right of a candidate to avail of this provision
security, investigative, protective or intelligence
shall not be lost or affected by the fact that an election
agency performing identical or similar functions to protest is subsequently filed by any of the candidates.
enter the room where the canvassing of the
election returns are held by the board of 2. In case the election returns appear to be tampered
canvassers and within a radius of fifty meters from with or falsified - If the election returns submitted
such room. (Sec. 232, BP 881, OEC) to the board of canvassers appear to be tampered
with, altered or falsified after they have left the
NOTE: The board of canvassers by a majority vote, if it deems hands of the board of election inspectors, or
necessary, may make a call in writing for the detail of
otherwise not authentic, or were prepared by the
policemen or any peace officers for their protection or for
board of election inspectors under duress, force,
the protection of the election documents and paraphernalia
in the possession of the board, or for the maintenance of intimidation, or prepared by persons other than
peace and order, in which case said policemen or peace the member of the board of election inspectors,
officers, who shall be in proper uniform, shall stay outside the board of canvassers shall use the other copies
the room within a radius of thirty meters near enough to be of said election returns and, if necessary, the copy
easily called by the board of canvassers at any time. (Ibid.) inside the ballot box which upon previous
authority given by the Commission may be
Duty of the BoC in case the election returns are retrieved in accordance with Sec. 220 hereof. (Sec.
delayed, lost or destroyed 235, BP 881 OEC)

In case its copy of the election returns is missing, the 3. In case of discrepancies in the election return - if it
board of canvassers shall: appears to the board of canvassers that there
1. Obtain such missing election returns from the exists discrepancies in the other authentic copies
board of election inspectors concerned of the election returns from a polling place or
2. If said returns have been lost or destroyed, the discrepancies in the votes of any candidate in
board of canvassers, upon prior authority of the words and figures in the same return, and in either
Commission, may use any of the authentic copies case the difference affects the results of the
of said election returns or a certified copy of said election, the Commission, upon motion of the
election returns issued by the Commission, and board of canvassers or any candidate affected and
forthwith after due notice to all candidates concerned, shall
3. Direct its representative to investigate the case proceed summarily to determine whether the
and immediately report the matter to the integrity of the ballot box had been preserved,
Commission

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and once satisfied thereof shall order the opening 2. The BoC exercises ministerial duty.
of the ballot box to recount the votes cast in the 3. The BoC exercises quasi judicial functions
polling place solely for the purpose of determining 4. Proceedings before BOC are summary
the true result of the count of votes of the 5. Canvassing shall be in public
candidates concerned. (Sec. 236, BP 881, OEC) 6. Proceedings are continuous from day to day,
without interruption except to adjourn.
NOTE: When integrity of ballots is violated. - The 7. After Proclamation, BOC becomes functus officio
Commission shall not recount the ballots but shall forthwith
seal the ballot box and order its safekeeping. (Sec. 237, BP Idem Sonans
881, OEC)
Under Rule 7 of the rules for the appreciation of ballots
Canvass of remaining or unquestioned returns to continue.
If, after the canvass of all the said returns, it should be in Sec. 211 of the OEC, the idem sonans rule means
determined that the returns which have been set aside will that a name or surname incorrectly written which,
affect the result of the election, no proclamation shall be when read, has a sound similar to the name or
made except upon orders of the Commission after due surname of a candidate when correctly written shall
notice and hearing. Any proclamation made in violation be counted in his favor.
hereof shall be null and void. (Sec. 238, BP 881, OEC)
REMEDIES AND JURISDICTION IN ELECTION LAW
Tie in election result
PETITION NOT TO GIVE DUE COURSE TO
Whenever it shall appear from the canvass that two or
CERTIFICATE OF CANDIDACY
more candidates have received an equal and highest
number of votes, or in cases where two or more
Requisites for the grant of a petition to deny due
candidates are to be elected for the same position and
course to or cancel a CoC
two or more candidates received the same number of
votes for the last place in the number to be elected,
1. Material misrepresentation in the qualifications
the board of canvassers, after recording this fact in its
for elective office, which includes age, residency,
minutes, shall by resolution upon five days notice to all
citizenship, and any other legal qualifications
the tied candidates, hold a special public meeting at
necessary to run for an elective office; and
which the board of canvassers shall proceed to the
2. Deliberate attempt to mislead, misinform or hide
drawing of lots of the candidates who have tied and
a fact which would otherwise render a candidate
shall proclaim as elected the candidates who may be
ineligible.
favored by luck, and the candidates so proclaimed
shall have the right to assume office in the same
NOTE: These two requirements must concur to warrant
manner as if he had been elected by plurality of vote. the cancellation of the CoC.
The board of canvassers shall forthwith make a
certificate stating the name of the candidate who had A verified petition may be filed exclusively on the
been favored by luck and his proclamation on the basis ground that any material representation contained in
thereof. (Sec. 240, BP 881 OEC) the certificate as required under Sec. 74 is false. The
petition may be filed not later than 25 days from the
Instances when proceedings of the BoC are time of filing of the CoC, and shall be decided, after due
considered illegal proceedings notice and hearing, not later than 15 days before the
election. (Sec. 78, BP 881, OEC)
There is an illegal proceeding of the BoC when the Jurisdiction over a petition to cancel a COC lies with the
canvassing is a sham or mere ceremony, the results of COMELEC in division, not with the COMELEC en banc.
which are pre-determined and manipulated as when (Garvida v. Sales, G.R. o. 122872, September 10, 1997)
any of the following circumstances are present:
1. Precipitate canvassing Q: Joy and Bel both ran as mayoralty candidates in
2. Terrorism the Municipality of Marantao, Lanao del Sur. Bel filed
3. Lack of sufficient notice to the members of the a Petition for Disqualification and to Deny Due Course
BoC's under Sec. 78 of the OEC against Joy. Bel alleged that
4. Improper venue. (Sec. 2, Rule 4, COMELEC Res. Joy was a double registrant, being a registered voter
8804, March 22, 2010) in Marawi City and Marantao. There being double
registration, Joys subsequent registration in
Characteristics of canvassing Marantao was null and void. Therefore, Joy was
disqualified to run for the position of municipal
1. The BoC is a collegial body.

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mayor of said municipality. Is Joys voter registration proclamation. (2013 COMELEC Rules of Procedure,
a material fact, the falsity of which would be a ground Rule 25, Sec. 3)
for a petition to deny due course to her CoC?
Manner of the proceedings
A: In Maruhom v. COMELEC, G.R. No. 179430, July 27,
2009, the Court declared that a material fact refers to The petition is heard summarily. However, the
a candidates eligibility for qualification for elective COMELEC cannot disqualify a candidate without
office like citizenship, residence or status as a hearing and affording him opportunity to adduce
registered voter. A persons voter registration evidence to support his side and taking into account
constitutes a material fact because it affects her such evidence.
eligibility to be elected as municipal mayor of
Marantao. Sec. 39(a) of the LGC requires that an Final and executory judgment
elective official must be, among other things, a
registered voter in the barangay, municipality, city or A Decision or Resolution is deemed final and executory
province where she intends to be elected. if, in case of a Division ruling, no motion for
reconsideration is filed within the reglementary
Petition for disqualification v. Petition to deny due period, or in cases of rulings of the Commission En
course Banc, no restraining order is issued by the Supreme
Court within five (5) days from receipt of the decision
PETITION TO DENY or resolution. (2013 COMELEC Rules of Procedure, Rule
PETITION FOR
DUE COURSE/ CANCEL 23, Sec. 8)
DISQUALIFICATION
COC
Premised on Sec. 12 or Based on a statement Grounds for disqualification
OEC, or Sec. 40 of the of a material
LGC. representation in the Those declared by final decision of a competent court,
said certificate that is guilty of, or found by the Commission to be suffering
false. from any disqualification provided by law or
A person who is The person whose the Constitution (2013 COMELEC Rules of Procedure,
disqualified under Sec. certificate is cancelled Rule 25, Sec. 1)
68 is merely prohibited or denied due course 1. Lacking qualification
to continue as a under Sec. 78 is not 2. Filing of COC for more than 1 office
candidate. treated as a candidate 3. False and Material representation in the CoC
at all, as if he never filed 4. Disqualification under the LGC
a CoC. 5. Nuisance Candidate
Thus, a candidate who is A person whose Coc 6. Election offenses enumerated under Sec. 68 of
disqualified under Sec. has been denied due the OEC
68 can be validly course or cancelled 7. Declaration of insanity or incompetency by
substituted under Sec. under Sec. 78 cannot be competent authority
77 of the OEC because he substituted because he 8. Sentenced by final judgment for subversion,
remains a candidate until is never considered as insurrection, rebellion or an offense which he has
disqualified. candidate. been sentenced to a penalty of more than 18
months or a crime involving moral turpitude,
PETITION FOR DISQUALIFICATION unless given plenary pardon/ amnesty.

Petition for disqualification PETITION TO DECLARE FAILURE OF ELECTIONS

It is the remedy against any candidate who does not Instances where a failure of election may be declared
possess all the qualifications required by the
Constitution or law, or who commits any act declared 1. The election in any polling place has not been held
by law to be grounds for disqualification. on the date fixed on account of force majeure,
violence, terrorism, fraud, or other analogous
Time of filing the petition for disqualification causes;
2. The election in any polling place had been
It may be filed any day after the last day for filing of suspended before the hour fixed by law for the
certificates of candidacy, but not later than the date of closing of the voting on account of force majeure,

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violence, terrorism, fraud, or other analogous A:


causes; and 1. The COMELEC shall decide by a majority vote of all
3. After the voting and during the preparation and its members on any case or matter brought before
transmission of the election returns or canvass it. (Sec. 7, Art. IX-A of the 1987 Constitution) In
thereof such election results in failure to elect on Cua v. COMELEC, G.R. No. 80519-2, December 17,
account of force majeure, violence, fraud or 1987, the Supreme Court stated that a two-to-one
analogous causes. (Banaga Jr. vs Comelec, G.R. decision rendered by a Division of the COMELEC
No. 134696, July 31, 2000) and a three-to-two decision rendered by the
COMELEC en banc was valid where only five
NOTE: There is a failure to elect when nobody can be members took part in deciding the case.
declared as winner because the will of the majority has been
defiled and cannot be ascertained. 2. No, his CoC cannot be accepted. As a rule, in cases
of postponement or failure of election no
Power to declare a failure of election additional CoC shall be accepted. (Sec. 75, OEC)

The COMELEC has the power to declare a failure of NOTE: This rule does not apply in cases of substitution
election and this can be exercised motu proprio or of candidates in case of death, disqualification or
upon verified petition. (Loong v. COMELEC, G.R. Nos. withdrawal of another under Sec. 77.
107814-15, May 16, 1996)
3. No, the answer will be different. An additional CoC
NOTE: The hearing is summary in nature and the COMELEC may be accepted in cases of postponement or
may delegate to its lawyers the power to hear the case and failure of election if there was a substitution of
to receive evidence. (Ibid.) candidates; but the substitute must belong to and
must be endorsed by the same party. (Sec.75 OEC)
Q: Is low turn-out of voters enough basis to grant a
petition to declare a failure of election? Q: Is a petition to declare failure of election different
from a petition to annul the election results?
A: No. All the law requires is that a winning candidate
must be elected by a plurality of valid votes, regardless A: No. A prayer to declare failure of elections and a
of the actual number of ballots cast. Thus, even if less prayer to annul the election results are actually of the
than 25% of the electorate in the questioned precincts same nature. Whether an action is for declaration of
cast their votes, the same must still be respected. failure of elections or for annulment of election
(Mitmug v. COMELEC, G.R. No. 106270-73, February results, based on allegations of fraud, terrorism,
10, 1994) violence or analogous, the OEC denominates them
similarly. (Banaga, Jr. v. COMELEC, G.R. No. 134696,
Q: Due to violence and terrorism attending the July 31, 2000)
casting of votes in a municipality in Lanao del Sur, it
became impossible to hold therein free, orderly and NOTE: There is failure of elections only when the will of the
honest elections. Several candidates for municipal electorate has been muted and cannot be ascertained.
positions withdrew from the race. One candidate for (Benito v. COMELEC, G.R. No. 134913, January 19, 2001)
Mayor petitioned the COMELEC for the
postponement of the elections and the holding of Postponement of elections v. Failure of elections
special elections after the causes of such
postponement or failure of elections shall have POSTPONEMENT OF FAILURE OF ELECTIONS
ceased. ELECTIONS
1. How many votes of the COMELEC Commissioners Any serious cause of:
may be cast to grant the petition? Explain. a. Force Majeure
2. A person who was not a candidate at the time of b. Violence
the postponement of the elections decided to c. Terrorism
run for an elective position and filed a CoC prior d. Loss or destruction of election paraphernalia
to the special elections. May his CoC be e. Other analogous cases
accepted? Explain.
Serious impossibility to Failure to elect and
3. Suppose he ran as a substitute for a candidate
have free and orderly affect results of
who previously withdrew his candidacy, will your
elections elections
answer be the same? Explain.
Grounds must exist Grounds may occur any
before voting time before
proclamation

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1. Verified petition by 1. Verified petition by XPNs:


any interested any interested 1. Correction of manifest errors
person or motu person 2. Questions affecting the composition or
proprio by 2. Due Notice proceedings of the board of canvassers and
COMELEC en banc 3. Hearing 3. Determination of the authenticity and due
2. Due notice execution of certificates of canvass as provided in
3. Hearing Sec. 30 of RA 7166, as amended by RA 9369.
1. Election is 1. Declaration of
postponed Failure of elections NOTE:
2. Conduct elections 2. Holding of GR: The COMELEC is restricted to a mere examination of
returns on their face and not to go beyond and investigate
reasonably close to continuation of
irregularities. (Belac v. COMELEC, G.R. No. 145802, April 4,
elections not held, elections 2001)
but not later than reasonably close to
30 days from election not held, XPN: If there is a prima facie showing that return is not
cessation of cause but not later than genuine. (Ibid.)
30 days from
cessation of cause. No pre-proclamation cases are allowed in case of
barangay election. (Sec. 9, RA 6679)
NOTE: The COMELEC en banc by majority vote may grant the
postponement of elections and failure of elections. Termination of pre-proclamation cases

PRE-PROCLAMATION CONTROVERSIES GR: At the beginning of term of the officers. (Sec. 16,
RA 7166)
Pre-proclamation controversies
XPNs:
They refer to any question pertaining to or affecting 1. When based on evidence, COMELEC determines
the proceedings of the board of canvassers, and the that petition is meritorious
preparation, transmission, receipt, custody and 2. The SC in a petition for certiorari issues a contrary
appreciation of election returns which may be raised order; or
by any candidate or by any registered political party or 3. The case is not a pre-proclamation case.
coalition of political parties before the board or (Peaflorida v. COMELEC, G.R. No. 125950,
directly with the COMELEC in relation to the November 18, 1997)
preparation, transmission, receipt, custody and
appreciation of election returns. (Sec. 241, BP 881 Issues which may be raised in a pre-proclamation
OEC) controversy

NOTE: The purpose of this kind of controversy is to ascertain 1. Illegal composition or proceedings of the BoC
winners in the elections on basis of election returns duly 2. Canvassed election returns are incomplete,
authenticated by board of inspectors and admitted by the
contain material defects, appear to be tampered
board of canvassers. (Abella v. Larrazabal, G.R. No. 87721-
with or falsified; or contain discrepancies in the
30, December 21, 1989)
same returns or in other authentic copies thereof
Nature of pre-proclamation controversy as mentioned in Sec. 233, 234, 235, and 236 of BP
881.
It shall be heard summarily by the COMELEC. Its
NOTE: An incomplete canvass is illegal and cannot be
decision shall be executory after 5 days from receipt
the basis of a valid proclamation. A proclamation made
by the losing party, unless contrary orders from the SC. where the contested returns set aside will affect the
result of the election and the board of canvassers
Q: Are there pre-proclamation cases in elections for proceeded to proclaim without the authority from the
President, Vice-president and Members of the House COMELEC is null and void. (Sema v. COMELEC, G.R. No.
of Representatives on matters relating to the 141249-50, December 13, 2000)
preparation, transmission, receipt, custody, and
appreciation of the election returns or the certificates 3. Election returns were prepared under duress
of canvass? threat, coercion, or intimidation, or they are
obviously manufactured or not authentic.
A: 4. When substitute or fraudulent returns in
GR: No. (Sec. 15, Synchronized Election Law) controverted polling places were canvassed, the

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ELECTION LAW

results of which materially affected the standing 3. Quo warranto is not the proper remedy
of the aggrieved candidate/s. (Sec. 243, BP 881, 4. What was filed was a petition to annul a
OEC) proclamation, and not a Quo warranto or Election
5. Irregularities in relation to preparation, Protest
transmission, receipt, custody, and appreciation 5. Election Contest expressly made without
of election returns and certificate of canvass. prejudice to Pre Proclamation Controversy or it
was made ad cautelam
Petition to annul or suspend the proclamation
ELECTION PROTESTS
It is a remedy where there is a manifest error on the
face of the transmitted returns or variance of results Post-election disputes
from the election returns and CoC, and a winning
candidate is about to be, or has already been They are disputes which arise or are instituted after
proclaimed on the basis thereof. proclamation of winning candidates and which issues
pertain to the casting and counting of votes (Election
The COMELEC is required to hear the petition Protests), or to the eligibility or disloyalty of the
immediately and the ballots may be ordered manually winning candidates (Quo warranto).
recounted to verify the manifest errors or alleged
variance. Nature of an election contest

NOTE: The filing of a petition to annul or suspend the It is a special summary proceeding the object of which
proclamation shall suspend the running of the period within is to expedite the settlement of controversies between
which to file an election protest or quo warranto candidates as to who received the majority of legal
proceedings.
votes.
Pre-proclamation controversies allowed under the NOTE: Statutes providing for election contests are to be
new Automated Elections Law liberally construed to the end that the will of the people in
the choice of public officers may not be defeated by mere
GR: For purpose of the elections for president, vice technical objections. An election contest, unlike an ordinary
president, senator, and member of the House of action, is imbued with public interest since it involves not
Representatives, no pre-proclamation cases shall be only the adjudication of the private interests of rival
allowed on matters relating to the preparation, candidates but also the paramount need of dispelling the
transmission, receipt, custody and appreciation of uncertainty which beclouds the real choice of the electorate
with respect to who shall discharge the prerogatives of the
election returns or the certificates of canvass, as the
office within their gift. Moreover, it is neither fair nor just to
case may be. (Sec. 38, RA 9369) keep in office for an uncertain period one whos right to it is
under suspicion. It is imperative that his claim be
XPNs: immediately cleared not only for the benefit of the winner
1. Illegal composition of the BoC; but for the sake of public interest, which can only be
2. Illegal proceedings of the BoC. (Sec. 1, Rule 3, achieved by brushing aside technicalities of procedure which
COMELEC Res. No. 8804, March 22, 2010) protract and delay the trial of an ordinary action. (Vialogo v.
COMELEC, G.R. No. 194143, October 4, 2011)
NOTE: However, this does not preclude the authority of the
appropriate canvassing body motu proprio or upon written Where election protests can be filed
complaint of an interested person to correct manifest errors
in the certificate of canvass or election before it. (Sec. 38, RA 1. COMELEC sole judge of all contests relating to
9369) elections, returns, and qualifications of all elective
regional, provincial and city officials. (reviewable
Q: Is the COMELEC precluded from exercising powers by SC under Rule 64 using Rule 65.)
over pre proclamation controversies, when the 2. Presidential Electoral Tribunal President and
Electoral Tribunal acquires jurisdiction? Vice President
3. SET Senator
A: 4. HRET representative
GR: Yes. 5. RTC over contests for municipal officials which
may be appealed to COMELEC
XPNs: 6. MeTC or MTC for barangay officials which may
1. BOC was improperly constituted be appealed to COMELEC
2. Proclamation was null and void

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Grounds for the filing of election protests 3. The order granting the said execution must state
the good reasons (Navarosa v. COMELEC, G.R. No.
1. Fraud 157957, September 18, 2003)
2. Vote-buying
3. Terrorism Good reasons
4. Presence of flying voters
5. Misreading or misappreciation of ballots A combination of two or more of the following:
6. Disenfranchisement of voters 1. That public interest is involved or the will of the
7. Unqualified members of board of election electorate
inspector 2. The shortness of the remaining portion of the
8. Other election irregularities. term of the contested office
3. The length of time that the election contest has
NOTE: Pendency of election protest is not sufficient basis to been pending (Ramas v. COMELEC, G.R. No.
enjoin the protestee from assuming office. 130831. February 10, 1998)
A protestant has the right to withdraw his protest or drop NOTE: If instead of issuing a preliminary injunction in place
polling places from his protest. The protestee, in such cases, of a TRO, a court opts to decide the case on its merits with
has no cause to complain because the withdrawal is the the result that it also enjoins the same acts covered by its
exclusive prerogative of the protestant. TRO, it stands to reason that the decision amounts to a grant
of preliminary injunction. Such injunction should be deemed
Content of an election protest in force pending any appeal from the decision. The view that
execution pending appeal should still continue
It must be initiated by filing a protest that must contain notwithstanding a decision of the higher court enjoining
the following allegations: such executiondoes not make sense. It will render quite
a. The protestant is a candidate who duly filed a inutile the proceedings before such court. (Panlilio v.
COMELEC, G.R. No. 184286, February 26, 2010)
COC and was voted for in the election.
b. The protestee has been proclaimed
c. The date of the proclamation. (Miro v. Best pieces of evidence in an election contest
COMELEC, G.R.No. L-57574, April 20, 1983)
1. Ballots are the best and most conclusive evidence
Q: On June 23, 2004, the National Board of in an election contest where the correctness of
Canvassers (NBC) proclaimed Sitro as the duly elected the number of votes of each candidate is involved.
Vice-President of the Philippines. Karen was the (Delos Reyes, G.R. No. 170070, February 28, 2007)
person who obtained the second highest number of 2. Election returns are the best evidence when the
votes. Karen filed a protest with the PET praying for ballots are lost, destroyed, tampered or fake.
the annulment of Sitro's proclamation on the ground
of fraud and manipulation of the results. While the QUO WARRANTO
protest was pending, Karen ran in the Senate, which
term coincides with the term of the 2004-2010 Vice- Quo warranto proceeding for an elective office
Presidency. She was elected and assumed the office
of senator. Will the protest prosper? It is a proceeding to determine the right to the use or
exercise of an office and to oust the holder from its
A: No. In assuming the office of Senator, Karen has enjoyment, if his claim is not well-founded or if he has
effectively abandoned or withdrawn this protest. Such forfeited his right to enjoy the privilege.
abandonment or withdrawal operates to render moot
the instant protest. Moreover, the dismissal of this Unlike an election protest, which can only be filed by a
protest would serve public interest as it would candidate, any voter can file a petition for quo
dissipate the aura of uncertainty as to the results of warranto.
the election. (Legarda v. De Castro, PET case no. 003,
NOTE: Election Protests and Quo warranto proceedings
January 18, 2008)
against a Congressman-elect, Senator-elect, President-elect
and VP-elect are brought before the appropriate electoral
Requisites for an execution pending appeal in tribunals created by the Constitution.
election protest cases

1. It must be upon motion by the prevailing party


with notice to the adverse party
2. There must be good reasons for the said execution

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ELECTION LAW

Election protest v. a Quo warranto case under the A: No. The Court has invariably held that once a
OEC winning candidate has been proclaimed, taken his
oath, and assumed office as a Member of the HOR, the
BASIS ELECTION PROTEST QUO WARRANTO COMELEC's jurisdiction over election contests relating
By a losing By any voter who to his election, returns, and qualifications ends, and
candidate for the is a registered the HRET's own jurisdiction begins. Here, Kat cannot
same office for voter in the be considered a Member of the HoR because,
Who which the winner constituency primarily, she has not yet assumed office. To repeat
may filed his COC where the what has earlier been said, the term of office of a
file winning candidate Member of the HOR begins only at noon on the
sought to be thirtieth day of June next following their election.
disqualified ran Thus, until such time, the COMELEC retains
for office jurisdiction. (Reyes v. COMELEC, G.R. No. 207264, June
Who received the Whether the 25, 2013)
majority or plurality candidate who
of the votes which was proclaimed Effect if the protestant accepts a permanent
were legally cast. and elected appointment
should be
Issue/s Acceptance of a permanent appointment to a regular
Whether there were disqualified
irregularities in the because of office during the pendency of his protest is an
conduct of the ineligibility or abandonment of the electoral protest. The same is
election which disloyalty to the true if a protestant voluntarily sought election to an
affected its results. Philippines. office whose term would extend beyond the expiry
date of the term of the contested office, and after
Function of Senate and House of Representatives winning the said election, took her oath and assumed
Electoral Tribunals office and there after continuously serves it. The
reason for this is that the dismissal of the protest
The Senate and the House of Representatives each would serve public interest as it would dissipate the
have an Electoral Tribunal which shall be the sole judge aura of uncertainty as to the results of the presidential
of all contests relating to elections, returns, and election, thereby enhancing the all-to crucial political
qualifications of their respective members. Such stability of the nation during this period of national
jurisdiction begins only after a candidate has become recovery. (Santiago v. Ramos, P.E.T. Case No. 001,
a member of the legislative body. The judicial review February 13, 1996)
of the decisions of these electoral tribunals is possible
only in the exercise of the SCs extraordinary PROSECUTION OF ELECTION OFFENSES
jurisdiction.
Authority to prosecute election offenses
Q: In March 2013, COMELEC First Division issued a
resolution cancelling Kats CoC on the ground that she COMELEC is vested with the power of a public
is not a citizen of the Philippines because of her prosecutor with the exclusive authority to conduct the
failure to comply with the requirements of the preliminary investigation and prosecution of election
Citizenship Retention and Re-acquisition Act of 2003. offenses punishable under the OEC. (Sec. 265, BP 881
On April 8, 2013, Kat filed an MR claiming that she is OEC)
a natural-born Filipino citizen, but it was denied by
COMELEC on May 14 for lack of merit and declared it Q: May the COMELEC delegate such authority?
final and executory. Kat, however, was proclaimed
the winner of the May 2013 elections, and took her A: Yes. The COMELEC en banc may delegate such
oath of office but is yet to assume office on June 30, authority to any public prosecutor but always subject
2013. Kat contends that COMELEC no longer has to the control and supervision of the COMELEC.
jurisdiction pursuant to Sec. 17, Art. 6 of the 1897 (People v. Delgado, G.R. Nos. 93419-32, September 18,
Constitution which states that HRET has the exclusive 1990)
jurisdiction to be the sole judge of all contests
relating to the election, returns and qualifications of Q: In cases where the prosecutor exercises delegated
the Members of the HOR. Is the contention of Kat authority to conduct preliminary investigation of
correct? election offenses and such officer, after investigation,

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already resolves the issue of probable cause, where election offenses. The grant of exclusive power to
should one appeal the resolution? investigate and prosecute cases of election offenses to
the COMELEC was not by virtue of the Constitution but
A: From such resolution, appeal to the COMELEC lies, by the OEC which was eventually amended by Sec. 43
and the latters ruling on the appeal would be of RA 9369. Thus, the DOJ now conducts preliminary
immediately final and executory. However, if the investigation of election offenses concurrently with
preliminary investigation is conducted by the the COMELEC and no longer as mere deputies.
COMELEC itself, appeal to the COMELEC is unavailing,
but the respondent may file a motion for Clearly, COMELEC recognizes the need to delegate to
reconsideration of the resolution of the COMELEC en the prosecutors the power to conduct preliminary
banc finding probable cause. (Faelnar v.People, G.R. investigation. Otherwise, the prompt resolution of
Nos. 140850-51. May 4, 2000) alleged election offenses will not be attained. This
delegation of power, otherwise known as deputation,
Election offenses has long been recognized and, in fact, been utilized as
an effective means of disposing of various election
1. Vote buying and vote selling offense cases. Apparently, as mere deputies, the
2. Conspiracy to bribe voters prosecutors played a vital role in the conduct of
3. Wagering upon result of election preliminary investigation, in the resolution of
4. Coercion of subordinates complaints filed before them, and in the filing of the
5. Threats, intimidation, terrorism, use of fraudulent informations with the proper court. COMELEC, though
device or other forms of coercion it acts jointly with the DOJ, remains in control of the
6. Coercion of election officials and employees proceedings. In no way can we say that the COMELEC
7. Appointment of new employees, creation of new has thereby abdicated its independence to the
position, promotion, giving of salary increases executive department. (Jose Miguel T. Arroyo. DOJ, et
8. Intervention of public officers and employees al., G.R. No. 199082, September 18, 2012)
9. Undue influence
10. Unlawful electioneering
11. Others. (Sec. 261, BP 881 OEC)

Prescriptive period of election offenses

5 years from the date of their commission. (Sec. 267,


BP 881, OEC)

Jurisdiction of courts to hear and decide election


offenses

GR: The RTC has the exclusive and original jurisdiction


to hear and decide any criminal action or proceedings
for violation of the OEC.

XPN: The MTC has jurisdiction over offenses relating


to failure to register or failure to vote.

Q: President Gemma Tiama was accused of electoral


fraud and sabotage. COMELEC issued a Resolution
approving the creation of a COMELEC-DOJ Joint
Panel, which shall conduct preliminary investigation
on the alleged offenses and anomalies committed
during the elections. Gemma filed a petition before
the SC arguing that the Joint Panel has no jurisdiction
to conduct preliminary investigation of the electoral
sabotage cases. Is Gemmas contention acceptable?

A: No. DOJ and COMELEC exercise concurrent


jurisdiction in conducting preliminary investigation of

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LOCAL GOVERNMENTS

LOCAL GOVERNMENTS Elements of a GOCC

Local Government 1. Any agency organized as a stock or non-stock


corporation
A political subdivision of a nation or state, which is 2. Vested with functions relating to public needs
constituted by law and has substantial control of local whether governmental or proprietary in nature
affairs. 3. Owned by the government directly or through its
instrumentalities either wholly, or, where
PUBLIC CORPORATIONS applicable as in the case of stock corporations, to
the extent of at least fifty-one (51) of its capital
Public corporation stock. (Leyson, Jr. v. Office of the Ombudsman,
G.R. No. 134990, April 27, 2000)
It is one created by the State either by general or
special act for purposes of administration of local Public corporation v. GOCC
government or rendering service in the public
interest. BASIS PUBLIC GOCC
CORPORATION
Criterion to determine whether a corporation is a As to Administration Performance of
public corporation Purpose of local functions relating
government to public needs
It is the relationship of the corporation to the state. If whether
it was created by the State as its own agency to help it Governmental or
in carrying out its governmental functions, it is public. Proprietary in
Otherwise, it is private. nature
As to By the state By Congress or by
Dual characteristic of public corporation who either by general incorporators
creates act or special act
1. Public or governmental - It acts as an agent of As to By legislation (1) Original
the State for the government of the territory and how charters or special
its inhabitants within the municipal limits. The created laws or
municipal corporation exercises by delegation a (2) general
part of the sovereignty of the state. corporation law as
2. Private or proprietary - It acts as an agent of the a stock or non-
community in the administration of local affairs stock
which is wholly beyond the sphere of public
purposes for which its governmental powers are CLASSIFICATIONS
conferred. It acts as separate entity for its own
purposes, and not a subdivision of the State. Kinds of corporations

DISTINGUISHED FROM GOCC 1. Quasi-public corporations - Private corporations


that render public service, supply public wants,
Government owned and controlled corporations or pursue other eleemosynary objectives. While
(GOCC) purposely organized for the gain or benefit of its
members, they are required by law to discharge
Any agency organized as a stock or non-stock functions for the public benefit. It must be
corporation vested with functions relating to public stressed that a quasi-public corporation is a
needs whether governmental or proprietary in species of private corporations, but the
nature, and owned by the government directly or qualifying factor is the type of service the former
indirectly through its instrumentalities either wholly, renders to the public: if it performs a public
or where applicable as in the case of stock service, then it becomes a quasi-public
corporations to the extent of at least 51% of its corporation. (Philippine Society for the
capital stock. (Sec. 2 (13) of EO No. 292 Administrative Prevention of Cruelty to Animals v. Commission on
Code of 1987) Audit, G.R.169752, September 25, 2007)
2. Municipal corporations - Body politic and
corporate constituted by the incorporation of
inhabitants for purposes of local government. It is

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established by law partly as an agency of the improvements, and exercising their usual
State to assist in the civil government of the franchises, with their rights dependent quite as
country, but chiefly to regulate and administer much on acquiescence as on the regularity of
the local or internal affairs of the city, town or their origin.
district which is incorporated.
NOTE: An inquiry into the legal existence of a de facto
MUNICIPAL CORPORATIONS corporation is reserved to the State in a proceeding for
quo warranto or other direct proceeding. (Mun. of
Malabang, Lanao del Sur v. Benito, G.R. No. L-28113,
Essential elements of a municipal corporation
March 28, 1969)

1. Legal creation or incorporation; Essential requisites of de facto corporation (VACA)


2. Corporate name;
1. Valid law authorizing incorporation
NOTE: The sangguniang panlalawigan may, in
2. Attempt in good faith to organize under it
consultation with the Philippine Historical Institute,
change the name of component cities and
3. Colorable compliance with law
municipalities, upon the recommendation of the 4. Assumption of corporate powers
sanggunian concerned; provided that the same shall be
conducted for the purpose in the political unit directly Creation of municipalities by the president
affected. (Sec. 13, LGC)
The SC declared as unconstitutional Sec. 68 of the
3. Inhabitants; and Revised Administrative Code which authorized the
4. Territory. President to create municipalities through
Executive Order (Pelaez v. Auditor General, 15 SCRA
Nature of a municipal corporation 569). With this declaration, municipalities created by
EO could not claim to be de facto
Every LGU created or organized under the LGC is a body municipal corporations, because there was no valid
politic and corporate endowed with powers to law authorizing incorporation.
be exercised by it in conformity with law. As such, it
shall exercise powers as a political subdivision of the REQUISITES FOR CREATION, CONVERSION,
National Government and as a corporate entity DIVISION, MERGER, AND DISSOLUTION
representing the inhabitants of its territory. (Sec. 15,
LGC) Territorial and political subdivisions

Dual function of municipal corporation 1. Barangays


2. Municipalities
1. Public or governmental - It acts as an agent of the 3. Cities
State or the government of the territory and the 4. Provinces (Sec.1, Art.X, 1987 Constitution)
inhabitants.
2. Private or proprietary - It acts as an agent of the Authority to create municipal corporations
community in the administration of local affairs. As
such, it acts as a separate entity, for its own A LGU may be created, divided, merged, abolished or its
purposes, and not as a subdivision of the State. boundaries substantially altered either:
(Bara Lidasan v. Comelec, 21 SCRA 496) 1. By law enacted by Congress in case of province,
city, municipality or any other political
Types of municipal corporations subdivision;
2. By an ordinance passed by the Sangguniang
1. De jure municipal corporations - Created or Panlalawigan or Sangguniang Panlungsod
recognized by operation of law. concerned in the case of a barangay located within
2. Municipal corporations by prescription - its territorial jurisdiction, subject to such
Exercised their powers from time immemorial limitations and requirements prescribed in the
with a charter, which is presumed to have been LGC. (Sec. 6, LGC)
lost or destroyed.
3. De facto municipal corporations - Where the
people have organized themselves, under color
of law, into ordinary municipal bodies, and have
gone on, year after year, raising taxes, making

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2014 GOLDEN NOTES 218
LOCAL GOVERNMENTS

Requisites or limitations imposed on the creation or the Lands Management Bureau of DENR. (Sec.7, par. c.,
conversion of municipal corporations LGC)

1. Plebiscite requirement - Must be approved by Corporate existence


majority of the votes cast in a plebiscite called for
such purpose in the political unit or units directly Corporate existence of LGUs begins upon the election
affected. and qualification of its chief executive and a
NOTE: The residents of the mother province must majority of the members of its sanggunian, unless
participate in the plebiscite to conform to the some other time is fixed therefor by law or ordinance
constitutional requirement. creating it. (Sec. 14, LGC)

2. Income requirement - Must be sufficient and based Rules on merger and division of LGUs
on acceptable standards to provide for all essential
government facilities and services and special 1. It should not reduce the income, population or
functions commensurate with the size of its land area of the LGC concerned to less than the
population as expected of the LGU minimum requirement
concerned. 2. The income classification of the original LGU/s
Average annual income for the last consecutive shall not fall below its current income
year should be at least: classification prior to the division
a. Province - P 20M 3. A plebiscite must be held in LGU/s affected
b. Highly Urbanized City - P 50M Assets and liabilities of creation shall be
c. City - P 100M (R.A. 9009 amending Sec. 450 equitably distributed between the LGUs affected
of LGC) and new LGU
d. Municipality - P 2.5M
NOTE: When a municipal district of other territorial divisions
NOTE: The income requirement for the conversion of is converted or fused into a municipality all property rights
municipality to a component city only includes locally vested in original territorial organization shall become
generated average annual income. (RA 9009 amending vested in the government of the municipality. (Sec. 1 (4), RA
Sec. 450 of LGC) 688)

3. Population requirement - To be determined as Q: At the end of the 11th Congress existence, several
the total number of inhabitants within the bills aiming to convert certain municipalities
territorial jurisdiction of the LGU concerned. into cities were pending. The same were not,
The required minimum population shall be: however, passed into law. During the 12th Congress,
a. Barangay - 2K RA 9009 was enacted, amending the LGC by
But 5k in: increasing the income requirement for conversion of
i. Metro Manila municipalities into cities from P20M to P100M.
ii. Highly urbanized cities Congress deliberated on exempting the
b. Municipality - 25K municipalities mentioned earlier from the new
c. City - 150K income requirement yet, no concrete action came
d. Highly Urbanized Cities - 200K out of such deliberations.
e. Province - 250K
Through their respective sponsors, the
4. Land requirement - Must be contiguous, unless it municipalities filed individual cityhood bills
comprises two or more islands or is separated by a containing a common proviso exempting them
LGU independent of the others; properly from the new income requirement. The Congress
identified by metes and bounds with technical approved the same. Concerned parties protested
descriptions; and sufficient to provide for such such laws allowing a wholesale conversion of
basic services and facilities. Area requirements are: municipalities as being unconstitutional.
a. Barangay - 2 or more contiguous
territory (Sec. 386, LGC) 1. Are the cityhood laws valid?
b. Municipality - 50 sq. km (Sec. 442, LGC) 2. The challenged cities claim that it was the
c. City - 100 sq. km (Sec.450, LGC) intent of the Congress to grant them
d. Province - 2,000 sq.km (Sec. 461, LGC) exemption from the income requirement, per the
deliberations of the 11th Congress. What will
NOTE: Compliance with the foregoing indicators shall become of the cityhood bills and their
be attested to by the Department of Finance, NSO and

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deliberations that were pending at the conflicts with the delegation to regional legislative
adjournment of the 11th Congress? bodies of the power to create municipalities and
barangays. However, the creation of provinces and
A: cities is another matter. Only Congress can create
1. Yes. The 16 cities covered by the Cityhood Laws provinces and cities because the creation of the same
not only had conversion bills pending during the necessarily includes the creation of legislative
11th Congress, but have also complied with the districts, a power only Congress can exercise under
requirements of the LGC prescribed prior to its Sec. 5 Art. VI of the Constitution and Sec. 3 of the
amendment by RA 9009. Congress undeniably Ordinance appended to it.
gave these cities all the considerations that
justice and fair play demanded. Hence, this The ARMM Regional Assembly cannot enact a law
Court should do no less by stamping its creating a national office like the office of a district
imprimatur to the clear and unmistakable representative of Congress because the legislative
legislative intent and by duly recognizing the powers of the ARMM Regional Assembly operate only
certain collective wisdom of Congress. Congress, within its territorial jurisdiction as provided in Sec. 20
who holds the power of the purse, only sought the Art. X of the Constitution. (Sema v. COMELEC, G.R. No.
well-being of respondent municipalities in enacting 178628, July 16, 2008)
the Cityhood Laws having seen their respective
capacities to become component cities of their Q: Congress enacted a law creating the legislative
provinces, which was temporarily stunted by the district of Malolos based on a certification of the
enactment of RA 9009. By allowing respondent demographic projection from NSO stating that by
municipalities to convert into component cities, 2010, Malolos is expected to reach the population of
Congress desired only to uphold the very purpose 250,000, hence entitling it to one legislative district.
of the LGC, i.e., to make the LGUs enjoy genuine Is the law valid?
and meaningful local autonomy to enable them
to attain their fullest development as self-reliant A: No. Congress cannot establish a new legislative
communities and make them more effective district based on a projected population of the
partners in the attainment of national goals, National Statistics Office (NSO) to meet the
which is the very mandate of the Constitution. population requirement of the Constitution in the
(League of Cities of the Philippines. (LCP) v. reapportionment of legislative districts.
COMELEC, G.R. No. 176951, April 12, 2011)
A city that has attained a population of 250,000 is
2. Notwithstanding that both the 11th and 12th entitled to a legislative district only in the
Congress failed to act upon the pending cityhood immediately following election. In short, a city must
bills, both the letter and intent of Sec. 450 of the first attain the 250,000 population, and thereafter, in
LGC, as amended by RA 9009, were carried on the immediately following election, such city shall have
until the 13th Congress, when the Cityhood a district representative. There is no showing in the
Laws were enacted. The exemption clauses found present case that the City of Malolos has attained or
in the individual Cityhood Laws are the express will attain a population of 250,000, whether actual or
articulation of the intent to exempt respondent projected, before May 10, 2010 elections. Thus, the
municipalities from the coverage of RA 9009. City of Malolos is not qualified to have a legislative
(League of Cities of the Philippines. (LCP) v. district of its own under Sec. 5(3), Art. VI of the 1987
COMELEC, G.R. No. 176951, February 15, 2011) Constitution and Sec 3 of the Ordinance appended to
the 1987 Constitution. (Aladaba v. Comelec, G.R. No.
NOTE: On November 18, 2008, the SC ruled the cityhood 188078, January 25, 2010)
laws unconstitutional. On December 21, 2009, it reversed
the ruling. Then again, on August 24, 2010, it decided to Q: Congress enacted a law reapportioning the
uphold the original ruling. And finally, last April 12, 2011 it
composition of the Province of Camarines Sur and
upheld the constitutionality of the creation of the 16 new
created legislative districts thereon. Frankie
cities.
challenged the law because it runs afoul to the
Q: May Congress validly delegate to the ARMM constitutional requirement that there must be at
Regional Assembly the power to create provinces, least a population of 250,000 to create a legislative
cities, and municipalities within the ARMM pursuant district. Comelec argued that the mentioned
to Congresss plenary legislative powers? requirement does not apply to provinces. Is the
250,000 population standard an indispensable
A: No. There is no provision in the Constitution that requirement for the creation of a legislative district

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LOCAL GOVERNMENTS

in provinces? Zander, the apportionment is a conversion and


division of CDO City, falling under Sec. 10 Art. X of
A: No. Sec. 5(3), Art. VI of the 1987 Constitution the Constitution, which provides for the rule on
which requires 250,000 minimum population creation, division, merger, and abolition of LGUs.
requirement apply only for a city to be entitled to a Decide.
representative but not for a province.
A: There is no need for a plebiscite. CDO City
The provision draws a plain and clear distinction politically remains a single unit and its administration is
between the entitlement of a city to a district on one not divided along territorial lines. Its territory
hand, and the entitlement of a province to a district remains whole and intact. Thus, Sec. 10, Art. X of the
on the other. For while a province is entitled to at Constitution does not come into play. (Bagabuyo v.
least a representative, with nothing mentioned about COMELEC, G.R. No. 176970, December 8, 2008)
population, a city must first meet a population
minimum of 250,000 in order to be similarly entitled. Q: Is the conversion of a component city to a highly
(Aquino and Robredo v. Comelec, G.R. No. 189793, urbanized city considered within the ambit of
April 7, 2010) creation, division, merger, abolition or
substantial alteration of boundaries under Sec.
Q: Sec. 461 of the LGC provides that before a 10, Art. X of the Constitution?
province could be created, it must comply with the
2000-km land area requirement. Art. 9(2) of the LGC- A: Yes. While conversion to an HUC is not explicitly
IRR, however, exempts the creation of provinces with provided in Sec. 10, Art. X of the Constitution, the
more than one island from the said land area Court nevertheless observes that the conversion of a
requirement. Thus, Dinagat Province consisting of component city into an HUC is a substantial alteration
more than one island, with a total land area of 802.12 of boundaries.
sq. km, and has an average annual income of P 82 M
as certified by the Bureau of Local Government Substantial alteration of boundaries involves and
Finance was created through a law pursuant to the necessarily entails a change in the geographical
exception expressly provided in the said LGC-IRR configuration of LGU or units. However, the phrase
provision. Is the creation of Dinagat Province valid? boundaries should not be limited to the mere
physical one, referring to the metes and bounds of the
A: Yes. When the exemption was expressly provided LGU, but also to its political boundaries. It also
in Art. 9(2) of the LGC-IRR, the inclusion was intended connotes a modification of the demarcation lines
to correct the congressional oversight in Sec. 461 of between political subdivisions, where the LGUs
the LGC and to reflect the true legislative intent which exercise of corporate power ends and that of the other
is to allow an exception to the land area requirement begins. And as a qualifier, the alteration must be
in cases of non-contiguity also as regards to provinces substantial for it to be within the ambit of the
especially considering the physical configuration of the constitutional provision. (Umali v. COMELEC, GR No.
Philippine archipelago. The land area requirement 203974, April 22, 2014)
should be read together with the territorial contiguity
whereas the land area, while considered as an NOTE: It is the duty of the President to declare a city as highly
indicator of viability of LGU, is not conclusive in urbanized after it shall have met the minimum
showing that Dinagat Province cannot become a requirements, upon proper application and ratification in a
plebiscite by qualified voters therein (Sec. 453, LGC). The
province taking into account its average annual
provision makes it ministerial for the President, upon proper
income. Hence, the basic services to its constituents
application, to declare a component city as highly urbanized
has been proven possible and sustainable making once the minimum requirements, which are based on
Dinagat Province ready and capable of becoming a certifiable and measurable indices under Sec. 452 of LGC are
province. (Navarro v. Executive Secretary, G.R. No. satisfied. The mandatory language shall used in the
180050; April 12, 2011) provision leaves the President with no room for discretion.
(Ibid.)
Q: Congress passed a law providing for the
apportionment of a new legislative district in CDO Requirements for division and merger of LGUs
City. The COMELEC subsequently issued a resolution
implementing said law. Zander now assails the 1. It shall not reduce the income, population or
resolution, contending that rules for the conduct of land area of the LGU/s concerned to less than
a plebiscite must first be laid down, as part of the minimum requirements prescribed;
requirements under the Constitution. According to 2. Income classification of the original LGU/s shall
not fall below its current income classification

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prior to division; (Sec.8, LGC) XYZ without the approval of the people of XYZ in a
3. Plebiscite be held in LGUs affected; (Sec.10, LGC) plebiscite. For failure to submit the law to a proper
4. Assets and liabilities of creation shall be plebiscite as provided under Sec. 10, Art. X of the
equitably distributed between the LGUs Constitution, is RA 8528 constitutional considering
affected and new LGU; (RA 688) that it merely reclassified the XYZ City as it did not
involve any creation, division, merger, abolition, or
Abolition of LGU substantial alteration of boundaries of boundaries of
LGUs?
LGUs may be abolished by:
A. No. Sec. 10, Art. X of the Constitution calls for the
1. Congress - In case of provinces, city, people of the LGU directly affected top vote in a
municipality, or any other political subdivision. plebiscite whenever there is a material change in their
2. Sangguniang Panlalawigan or Sangguniang rights and responsibilities. They may call the
Panglungsod - In case of a barangay, except in downgrading of XYZ to a component city as a mere
Metropolitan Manila area and in cultural transition but they cannot blink away from the fact
communities. that the transition will radically change its physical and
political configuration as the rights and responsibilities
LGU may be abolished when its income, population or of its people. As such, the city mayor will be placed
land area has been irreversibly reduced to less than under the administrative supervision of the provincial
the minimum standards prescribed for its creation, governor; the resolutions and ordinances of the city
as certified by the national agencies mentioned. The council will have to be reviewed by the Provincial
law or ordinance abolishing LGU shall specify the Board; taxes collected by the city will have to be
province; city, municipality or barangay with which shared with the province; and there would be a
the LGU sought to be abolished will be incorporated reduction in their IRA. Thus, the changes are
or merged. (Sec. 9, LGC) substantial. When RA 7720 upgraded the status of XYZ
City from a municipality to an independent component
Required vote on creation, division, merger, abolition, city, it required the approval of its people through a
or substantial alteration of boundaries of LGUs plebiscite called for that purpose because the consent
of the people serves as a checking mechanism to any
No creation, division, merger, abolition, or substantial exercise of legislative power. Hence there is no reason
alteration of boundaries of LGUs shall take effect why the same should not be done when RA 8528
unless approved by a majority of the votes cast in a downgrades the status of their city. The rules cover all
plebiscite called for the purpose in the political unit or conversions, whether upward or downward so long as
units directly affected. Said plebiscite shall be the result in a material change in the LGU directly
conducted by the COMELEC within one hundred affected. (Miranda v. Aguirre, G.R. No. 133064,
twenty (120) days from the date of effectivity of the September 16, 1999)
law or ordinance effecting such action, unless said
law or ordinance fixes another date. (Sec. 10, LGC) PRINCIPLES OF LOCAL AUTONOMY

NOTE: A barangay may officially exist on record and the fact Principle of Local Autonomy
that nobody resides in the place does not result in its
automatic cessation as a unit of local government. Under Under the 1987 Constitution, it simply means
the LGC of 1991, the abolition of decentralization; it does not make the local
an LGU may be done by Congress in the case of a province,
governments sovereign within the state or an
city, municipality, or any other political subdivision. In the
case of a barangay, except in Metropolitan Manila area and imperium in imperio. (Basco v. PAGCOR, G.R. 91649,
in cultural communities, it may be done by the May 14, 1991)
Sangguniang Panlalawigan or Sangguniang Panglungsod
concerned subject to the mandatory requirement of a Decentralization
plebiscite conducted for the purpose in the political units
affected. (Sarangani v. COMELEC, G.R. No. 135927, June System whereby LGUs shall be given more powers,
26, 2000) authority, responsibilities and resources to provide a
more responsive and accountable government
Q: Through a plebiscite, RA 7720 took effect and structure. (Sec. 2 (a), LGC)
converted Municipality XYZ to an independent
component city. RA 8528 was later enacted and
amended RA 7720 that downgraded from
independent component city to a component city the

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Decentralization of Administration v. Decentralization 2. Government or public, corporate or private


of Power 3. Intramural, extramural
4. Mandatory, directory; ministerial, discretionary
Decentralization of Decentralization of
Administration Power Execution of powers of LGU
Consists merely in the Involves abdication by
delegation of the national government 1. Where statute prescribes the manner of exercise,
administrative powers to of political power in favor procedure must be followed.
broaden base of of LGUs declared to be 2. Where the law is silent, LGU has the discretion to
governmental power autonomous. The select reasonable means and methods to
autonomous exercise
government becomes
accountable not to the Governmental powers of LGU
central authorities but
to its constituency 1. Police power
(Limbona v. Mangelin, 2. Basic services and facilities
G.R.80391, February 28, 3. Power to generate and apply resources
1989) 4. Power of eminent domain
5. Taxing Power
NOTE: Under the Philippine concept of local autonomy, only 6. Reclassification of Land
administrative powers over local affairs are delegated to 7. Local legislative power
political subdivisions. In turn, economic, political and social 8. Closure and opening of roads
developments at the smaller political units are expected to 9. Corporate Powers
propel social and economic growth and development. But 10. Liability of LGUs
to enable the country to develop as a whole, the programs
11. Settlement of Boundary Disputes
and policies effected locally must be integrated and
coordinated towards a common national goal. (Pimentel Jr. 12. Succession of Local Officials
v. Aguirre, G.R. 132988, July 19, 2000) 13. Discipline of Local Officials
14. Authority over police units
Devolution
POLICE POWER
The act by which the national government confers
power and authority upon the various LGUs to Nature of the police power of the LGU
perform specific functions and responsibilities. (Sec.
17(e) LGC) The police power of the LGU is not inherent. LGUs
exercise the police power under the general welfare
NOTE: The LGC did not fully devolve the enforcement of the clause. (Sec. 16, LGC)
small-scale mining law to the provincial government, as its
enforcement is subject to the supervision, control and Requisites/limitations for the proper exercise of the
review of the DENR, which is in charge, subject to law and police power
higher authority, of carrying out the State's constitutional
mandate to control and supervise the exploration,
development, utilization of the country's natural resource. 1. The interests of the public generally, as
(League of Provinces of the Philippines v. DENR, G.R. 175368, distinguished from those of a particular class,
April, 11, 2013) require the interference of the state. (Equal
Protection Clause)
POWERS OF LOCAL GOVERNMENTS 2. The means employed are reasonably necessary
for the attainment of the object sought to be
Sources of powers of a municipal corporation accomplished and not duly oppressive. (Due
Process Clause)
1. Constitution 3. Exercisable only within the territorial limits of the
2. Statutes (e.g. LGC) LGU, except for protection of water supply (Sec
3. Charter 16, LGC)
4. Doctrine of right to self-government 4. Must not be contrary to the Constitution and the
laws.
Classifications of municipal powers

1. Express, implied, inherent

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Ministerial duty of the Chief Executive not be more than 1 meter and fences in excess of 1
meter shall be 80% see-thru. It further provided that
The LGC imposes upon the city mayor, to enforce all in no case shall walls and fences be built within the
laws and ordinances relative to the governance of the five meter parking area allowance located between
city. As the chief executive of the city, he has the duty the front monument line and the building line of
to enforce an ordinance as long as it has not been commercial and industrial establishments and
repealed by the Sanggunian or annulled by the courts. educational and religious institutions. Is the ordinance
He has no other choice. It is his ministerial duty to do valid?
so. (Social Justice Society v. Atienza, Jr., G.R. No.
156052, March 7, 2007) A: No. It has long been settled that the State may not,
under the guise of police power, permanently divest
Abatement of nuisance without judicial proceeding owners of the beneficial use of their property solely to
preserve or enhance the aesthetic appearance of the
The abatement of nuisances without judicial community. Compelling the respondents to construct
proceedings applies to nuisance per se or those which their fence in accordance with the assailed ordinance
affect the immediate safety of persons and property is, thus, a clear encroachment on their right to
and may be summarily abated under the undefined property, which necessarily includes their right to
law of necessity. (Tayaban v. People, G.R. No. 150194, decide how best to protect their property. (Fernando v.
March 6, 2007) St. Scholastica's College, G.R. No. 161107, March 13,
2013)
However, the local sanggunian does not have the
power to find, as a fact, that a particular thing is a Q: Can the City Mayor of Manila validly take custody
nuisance per se, a thing which must be determined of several women of ill repute and deport them as
and resolved in the ordinary courts of law. (AC laborers without knowledge and consent to the said
Enterprise, Inc. v. Frabelle Properties Corporation,G.R. deportation?
No. 166744, November 2, 2006)
A: No. One can search in vain for any law, order, or
NOTE: Power to issue licenses and permits include power to regulation, which even hints at the right of the Mayor
revoke, withdraw or restrict through the imposition of of the city of Manila or the chief of police of that city
certain conditions. However, the conditions must be to force citizens of the Philippine Islands and these
reasonable and cannot amount to an arbitrary interference
women despite their being in a sense lepers of society
with the business. (Acebedo Optical Company, Inc. v. CA, G.R.
are nevertheless not chattels but Philippine citizens
No. 100152, March 31, 2000)
protected by the same constitutional guaranties as
License/permit to do business v. License to engage in are other citizens to change their domicile from
a profession Manila to another locality. (Villavicencio v. Lukban
G.R. No. L-14639, March 25, 1919)
LICENSE/PERMIT TO DO LICENSE TO ENGAGE
Q: May an LGU require customers to fill out a
BUSINESS IN A PROFESSION
prescribed form stating personal information such as
Granted by the local Board or Commission name, gender, nationality, age, address and
authorities tasked to regulate the occupation before they could be admitted to a motel,
particular profession hotel, or lodging house?
Authorizes the person to Authorizes a natural
engage in the business or person to engage in the A: Yes. The Ordinance was enacted precisely to
some form of commercial practice or exercise of minimize certain practices hurtful to public morals such
activity his as the increase in the rate of prostitution, adultery and
or her profession fornication in Manila traceable in great part to the
existence of motels, which "provide a necessary
NOTE: A business permit is issued primarily to regulate the atmosphere for clandestine entry, presence and exit"
conduct of business. It cannot, by the imposition of
and thus become the "ideal haven for prostitutes and
condition, be used to regulate the practice of a profession.
(Acebedo Optical v. CA, G.R. No. 100152, March 31, 2000)
thrill-seekers". Precisely it was intended to curb the
opportunity for the immoral or legitimate use to which
Q: The Sangguniang Panglungsod of Marikina City such premises could be and are being devoted.
enacted an ordinance Regulating the Construction of (Ermita-Malate Hotel and Motel Operations
Fences and Walls in the City of Marikina. The Association v. City Mayor of Manila, G.R. No. L24693,
ordinance provided, among others, that fences should July, 31, 1967)

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Q: Mayor Lim signed into law, City Ordinance 7774, NOTE: A resolution will not suffice for LGU
which prohibits short time admission in hotels, to be able to expropriate private property; a municipal
motels, lodging houses, pension houses and similar ordinance is different from a resolution in that an
ordinance is a law while a resolution is merely a
establishments in the City of Manila. Pursuant to the
declaration of the sentiment or opinion of a
above policy, short-time admission and rate, wash-up
lawmaking authority on a specific matter.
rate or other similarly concocted terms, are hereby
prohibited in hotels, motels, inns, lodging houses, 2. It must be for Public use, purpose or welfare of
pension houses and similar establishments in the City for the benefit of the poor or landless
of Manila. Petitioners argued that the Ordinance is 3. There must be payment of just Compensation
unconstitutional and void since it violates the right to A valid and definite Offer has been previously
privacy and the freedom of movement; it is an invalid made to the owner of the property sought to be
exercise of police power; and it is an unreasonable expropriated, but said offer was not accepted.
and oppressive interference in their business. May an (Municipality of Paranaque v. V.M. Realty
LGU regulate the short time periods and wash rates Corporation G.R. No. 127820. July 20, 1998)
of motels to protect public morals?
Due process requirements in eminent domain
A: No. Individual rights may be adversely affected
only to the extent that may fairly be required by the Offer must be in writing specifying:
legitimate demands of public interest or public 1. Property sought to be acquired
welfare. However, well-intentioned the Ordinance 2. The reason for the acquisition
may be, it is in effect an arbitrary and whimsical 3. The price offered
intrusion into the rights of the establishments as well
as their patrons. The Ordinance needlessly restrains NOTE:
the operation of the businesses of the petitioners as 1. If owner accepts offer: a contract of sale will be
well as restricting the rights of their patrons without executed.
sufficient justification. The Ordinance rashly equates 2. If owner accepts but at a higher price: Local chief
wash rates and renting out a room more than twice a executive shall call a conference for the purpose of
day with immorality without accommodating reaching an agreement on the selling price; If agreed,
innocuous intentions. (White Light Corp., v. City of contract of sale will be drawn. (Art. 35, LGC IRR)
Manila, 576 SCRA 416, 2009)
Elements for an authorized immediate entry
EMINENT DOMAIN
1. Filling of a complaint for expropriation sufficient
in form and substance
Eminent Domain
2. Deposit of the amount equivalent to fifteen
percent (15%) of the fair market value of the
In general, eminent domain is defined as the power
property to be expropriated based on its current
of the nation or a sovereign state to take, or to
tax declaration.
authorize the taking of, private property for a public
use without the owners consent, conditioned upon
NOTE: Upon compliance, the issuance of writ of possession
payment of just compensation. It is acknowledged as becomes ministerial. (City of Iloilo vs Legaspi, G.R. No.
an inherent political right, founded on a common 154614, November 25, 2004)
necessity and interest of appropriating the property
of individual members of the community to the great Phases of expropriation proceedings
necessities of the whole community. (Barangay
Sindalan v. CA, G.R. 150640, March 22, 1. The determination of the authority of the
2007) plaintiff to exercise the power of eminent
domain and the propriety of its exercise in the
Requisites for a valid exercise of power of eminent context of the facts involved in the suit. It ends
domain (OPO) with an order, if not of dismissal of action, of
condemnation declaring that the plaintiff has a
1. An Ordinance is enacted by the local legislative lawful right to take the property sought to be
council authorizing the local chief executive, in condemned, for the public use or purpose
behalf of the LGU, to exercise the power of described in the complaint, upon the payment of
eminent domain or pursue expropriation just compensation to be determined as of the
proceeding over a particular property. date of the filing of the complaint. An order of
dismissal, if this be ordained, would be a final

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one, since it finally disposes of the action and eminent domain is a genuine necessity and that
leaves nothing more to be done by the Court on necessity must be of a public character. Moreover,
the merits. The order of condemnation shall be a the ascertainment of the necessity must precede or
final one, as the Rules expressly state, in the accompany and not follow the taking of the land. In
proceedings before the Trial Court, no objection City of Manila v. Arellano Law College, the necessity
to the exercise of the right of condemnation (or within the rule that the particular property to be
the propriety thereof) shall be filed or heard. expropriated must be necessary, does not mean an
2. The determination by the RTC of the just absolute but only a reasonable or practical necessity,
compensation for the property sought to be taken. such as would combine the greatest benefit to the
This is done by the Court with the assistance of public with the least inconvenience and expense to
not more than three (3) commissioners. The the condemning party and the property owner
order fixing the just compensation on the consistent with such benefit. (Masikip v. City of Pasig,
basis of the evidence before, and findings of, the G.R. 136349, January. 23, 2006)
commissioners would be final. It would finally
dispose of the second stage of the suit, and Q: May LGU expropriate a property to provide a
leave nothing more to be done by the Court right-of-way to residents of a subdivision?
regarding the issue. (Brgy. Son Roque, Talisay,
Cebu v. Hrs. of Francisco Pastor, G.R. No. 138896, A: No. Considering that the residents who need a
June 20, 2000) feeder road are all subdivision lot owners, it is the
obligation of the subdivision owner to acquire a right-
NOTE: LGUs prolonged occupation of private property of-way for them. However, the failure of the
without the benefit of expropriation proceedings entitles the subdivision owner to provide an access road does not
landowner to damages. (City of Iloilo v. Judge Contrera- shift the burden to petitioner. To deprive
Besana, G.R. No. 168967, February. 12, 2010)
respondents of their property instead of compelling
the subdivision owner to comply with his obligation
Satisfaction of public use requirement under the law is an abuse of the power of eminent
domain and is patently illegal. Worse, the
That only a few could actually benefit from the expropriation will actually benefit the subdivisions
expropriation of the property does not diminish its owner who will be able to circumvent his
public use character. It is simply not possible to commitment to provide road access to the
provide all at once land and shelter for all who need subdivision in conjunction with his development
them. Corollary to the expanded notion of public use, permit and license to sell from the Housing and Land
expropriation is not anymore confined to vast tracts Use Regulatory Board, and also be relieved of
of land and landed estates. It is therefore of no spending his own funds for a right-of-way. (Barangay
moment that the land sought to be expropriated in Sindalan v. CA G.R. No. 150640, March 22, 2007)
this case is less than half a hectare only. Through the
years, the public use requirement in eminent domain
TAXING POWER
has evolved into a flexible concept, influenced by
changing conditions. Public use now includes the
Nature of the power of taxation of LGUs
broader notion of indirect public benefit or
advantage including in particular, urban land reform
A municipal corporation, unlike a sovereign state, is
and housing. (Philippine Columbian Association v.
clothed with no inherent power of taxation. The
Panis, G.R. L-106528, December 21, 1993)
charter or statute must plainly show an intent to confer
that power or the municipality cannot assume it. And
NOTE: The passage of RA 7279, the Urban Development
and Housing Act of 1992 introduced a limitation on the size the power when granted is to be construed in
of the land sought to be expropriated for socialized housing. strictissimi juris. (Medina v. City of Baguio, G.R. No. L-
The law expressly exempted small property owners from 4060, August 29, 1952)
expropriation of their land for urban land reform. (City of
Mandaluyong v. Aguilar, G.R. 137152, January 29, 2001) NOTE: The power of the LGUs to impose and collect taxes is
derived from the Constitution itself which grants them the
Satisfaction of genuine necessity requirement power to create its own sources of revenues and to levy taxes,
fees and charges subject to such guidelines and limitation as
The right to take private property for public the Congress may provide as provided by Sec. 5, Art. X of
1987 Constitution. (City of Iriga v. Camarines Sur III Electric
purposes necessarily originates from the necessity
Cooperative, Inc. G.R. No. 192945, September 5, 2012)
and the taking must be limited to such necessity. In
City of Manila v. Chinese Community of Manila, we
held that the very foundation of the right to exercise

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2014 GOLDEN NOTES 226
LOCAL GOVERNMENTS

Main sources of revenues of LGUs NOTE: Unlike Sec. 5, Art. X, Sec. 20, Art. X of the 1987
Constitution is not self-executing. It merely authorizes
1. Taxes, fees, and charges. (Sec. 5, Art. X, 1987 Congress to pass the Organic Act of the autonomous
regions which shall provide for legislative powers to levy
Constitution)
taxes upon their inhabitants.
2. Internal Revenue Allotment (IRA) - Just share in
the national taxes which shall be automatically
Q: The President, through AO 372, orders the
released to them. (Sec. 6, Art. X, 1987
withholding of 10 percent of the LGUs' IRA "pending
Constitution)
the assessment and evaluation by the Development
Budget Coordinating Committee of the emerging
NOTE: The current sharing is 40% local and 60%
national. The share cannot be reduced except if there is fiscal situation" in the country. Is the AO valid?
unmanageable public sector deficit. A: No. A basic feature of local fiscal autonomy is the
automatic release of the shares of LGUs in the
3. Equitable share in the proceeds of the utilization national internal revenue. This is mandated by no
and development of the national wealth within less than the Constitution. The LGC specifies further
their areas. (Sec. 7, Art. X, 1987 Constitution) that the release shall be made
directly to the LGU concerned within five days
Principles governing exercise of taxing and after every quarter of the year and shall not be
revenue-sharing powers of LGUs subject to any lien or holdback that may be imposed
by the national government for whatever purpose.
1. Taxation shall be uniform in each LGU As a rule, the term "shall" is a word of command that
2. Taxes, fees, charges and other impositions shall must be given a compulsory meaning. The provision
be equitable and based as far as practicable on is, therefore, imperative. (Pimentel, Jr. v. Aguirre, G.R.
the taxpayers ability to pay; it shall be levied and No. 132988, July 19, 2000)
collected only for public purpose; it must not be
unjust, excessive, oppressive, or confiscatory; it Principles governing financial affairs, transactions
must not be contrary to law, public policy, and operations of LGUs
national economic policy, or restraint of trade;
The collection of local taxes, fees, charges and 1. Shall be paid out of the local treasury except in
other impositions shall in no case be let to any pursuance of an appropriation ordinance or
private person. law;
3. The revenue collected shall inure solely to the 2. Local government funds and monies shall be
benefit of and be subject to disposition by, the spent solely for public purposes;
local government unit, unless specifically 3. Local revenue is generated only from sources
provided therein. expressly authorized by law or ordinance, and
4. Each local government, as far as practicable, collection thereof shall at all times be
evolves a progressive system of taxation. (Sec. acknowledged properly;
130, LGC) 4. All monies officially received by a local
government officer in any capacity or on any
ARMMs taxing power occasion shall be accounted for as local funds,
unless otherwise provided;
The ARMM has the legislative power to create sources 5. Trust funds in the local treasury shall not be paid
of revenues within its territorial jurisdiction and out except in the fulfilment of the purpose for
subject to the provisions of the 1987 Constitution and which the trust was created or the funds
national laws. (Sec. 20[b], Art. X) received;
6. Every officer of the LGU whose duties permit or
Power to tax by ordinary LGUs v. Power to tax by require the possession or custody of local
Autonomous Regions funds shall be properly bonded, and such
LGUS OUTSIDE LGUS INSIDE officer shall be accountable and responsible
AUTONOMOUS AUTONOMOUS for said funds and for the safekeeping
REGIONS REGIONS (I.E. ARMM) thereof in conformity with the provisions of
Basis of Taxing Power law;
Sec. 5, Art. X, 1987 Sec. 20(b), Art. X, 1987 7. Local governments shall formulate sound
Constitution Constitution financial plans and local budgets shall be based
on functions, activities, and projects in terms of
Governing guidelines and limitations
expected results;
LGC of 1991 Respective Organic Act
8. Local budget plans and goals shall, as far as

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227 FACULTY OF CIVIL LAW
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practicable, be harmonized with national therein in any enterprise located in Palawan. NARCO
development plans, goals and strategies in order Fishing Corp., a Filipino corporation with head office
to optimize the utilization of resources and to in Navotas, Metro Manila, challenges the ordinance
avoid duplication in the use of fiscal and physical as unconstitutional. Decide.
resources.
9. Local budgets shall operationalize approved local A: The ordinance is invalid. The ordinance was
development plans; apparently enacted pursuant to Art. X, Sec. 7 of the
10. LGUs shall ensure that their respective budgets Constitution, which entitles local governments to an
incorporate the requirements of their equitable share in the proceeds of the utilization and
component units and provide for equitable development of the national wealth within their
allocation of resources among these component respective areas. However, this should be made
units; pursuant to law. A law is needed to implement this
11. National planning shall be based on local provision and a local government cannot constitute
planning to ensure that the needs and itself unto a law. In the absence of a law, the
aspirations of the people as articulated by the ordinance in question is invalid.
LGUs in their respective local development plans
are considered in the formulation of budgets of Person authorized to determine the legality or
national line agencies or offices; propriety of a local tax ordinance or revenue
12. Fiscal responsibility shall be shared by all those measure
exercising authority over the financial affairs,
transactions and operations of LGUs; and It is the Secretary of Justice who shall determine
13. The LGU shall endeavor to have a balanced budget questions on the legality and constitutionality of
in each fiscal year of operation (Sec. 305, LGC) ordinances or revenue measures. Such questions
shall be raised on appeal within thirty days from
Procedures LGU must comply with for a revenue the effectivity thereof to the Secretary of Justice who
ordinance to be valid shall render a decision within sixty days from the
date of receipt of the appeal: Provided, however,
1. A prior public hearing on the measure conducted that such appeal shall not have the effect of
according to prescribed rules. suspending the effectivity of the ordinance and the
2. Publication of the tax ordinance, within 10 days accrual and payment of the tax, fee, or charge levied
after their approval, for 3 consecutive days in a therein: Provided, finally, that within thirty days
newspaper of local circulation provided that in after receipt of the decision or the lapse of the sixty-
provinces, cities, and municipalities where there day period without the Secretary of Justice acting
are no newspapers of local circulation, the same upon the appeal, the aggrieved party may file
may be posted in at least two (2) conspicuous appropriate proceedings with a court of competent
and publicly accessible places. jurisdiction (RTC). (Sec. 187, LGC)

NOTE: If the tax ordinance or revenue measure contains Requisites of a valid tax protest in a LGU
penal provisions as authorized in Art. 280 of this Rule, the
gist of such tax ordinance or revenue measure shall be 1. Taxpayer first pays the taxes
published in a newspaper of general circulation within the
2. There shall be annotation on the tax receipts the
province where the sanggunian concerned belongs. (Art. 276,
words "paid under protest".
IRR of LGC)
3. The protest in writing must be filed within thirty
Effectivity of tax ordinance (30) days from payment of the tax to the
provincial, city treasurer or municipal treasurer, in
In case the effectivity of any tax ordinance or the case of a municipality within Metropolitan
revenue measure falls on any date other than the Manila Area, who shall decide the protest within
beginning of the quarter, the same shall be sixty (60) days from receipt. (Sec. 252, LGC)
considered as falling at the beginning of the next
NOTE: A claim for tax exemption, whether full or partial, does
ensuing quarter and the taxes, fees, or charges due
not deal with the authority of local assessor to assess real
shall begin to accrue therefrom. (Art. 276, IRR of LGC) property tax, but merely raises a question of reasonableness
of correctness of such assessment, which requires compliance
Q: The Province of Palawan passes an ordinance with Sec. 252 of the LGC. (Camp John Hay Development
requiring all owners/operators of fishing vessels that Corporation v. Central Board of Assessment Appeals, G.R. No.
fish in waters surrounding the province to invest ten 169234, October 2, 2013)
percent (10%) of their net profits from operations

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2014 GOLDEN NOTES 228
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Remedies available to the LGUs to enforce the The subsequent piece of legislation which reiterated
payment of taxes the phrase exclusive of this franchise found in the
previous tax exemption grant to the company is an
1. Imposing penalties (surcharges and penalty express and real intention on the part of the Congress
interest) in case of delinquency (Sec. 168, LGC) to once against remove from the LGCs delegated
2. Availing local governments liens (Sec. 173, LGC) taxing power, all of the companys properties that are
3. Administrative action through distraint of goods, actually, directly and exclusively used in the pursuit of
chattels, and other personal property (Sec. its franchise. (The City Government of Quezon City, et
174(a), LGC) al., v. Bayan Telecommunications, Inc., G.R. No.
4. Judicial action (Sec. 174(b), LGC) 162015, March 6, 2006)

Nature of a community tax NOTE: An ordinance levying taxes, fees or charges shall not
be enacted without any prior public hearing conducted for
Community tax is a poll or capitation tax which is the purpose. (Figuerres v. CA, G.R. No. 119172, March 25,
1999)
imposed upon person who resides within a specified
territory.
Elements so that the President may interfere in local
fiscal matters
Exempted from the payment of community tax
1. An unmanaged public sector deficit of the
1. Diplomatic and consular representatives;
national government;
2. Transient visitors when their stay in the
2. Consultations with the presiding officers of the
Philippines does not exceed 3 months. (Sec. 159,
Senate and the House of Representatives and the
LGC)
presidents of the various local leagues;
3. And the corresponding recommendation of the
Real property taxes
secretaries of the Department of Finance,
Interior and Local Government, and Budget and
These are directly imposed on privilege to use real
Management. (Pimentel, Jr. v. Aguirre, G.R. No.
property such as land, building, machinery, and other
132988, July 19, 2000)
improvements, unless specifically exempted.
CLOSING AND OPENING OF ROADS
Q: Bayantel was granted by Congress after the
effectivity of LGC, a legislative franchise with tax
LGUs power to open or close a road
exemption privileges which partly reads the
grantee, its successors or assigns shall be liable to pay
LGU may, pursuant to an ordinance, permanently or
the same taxes on their real estate, buildings and
temporarily close or open any local road, alley, park,
personal property, exclusive of this franchise, as
or square falling within its jurisdiction: Provided,
other persons or corporations are now or hereafter
however, That in case of permanent closure, such
may be required by law to pay. This provision
ordinance must be approved by at least two-thirds
existed in the companys franchise prior to the
(2/3) of all the members of the sanggunian, and when
effectivity of the LGC. Quezon City then enacted
necessary, an adequate substitute for the public
an ordinance imposing a real property tax on all
facility that is subject to closure is provided. (Sec 21(a)
real properties located within the city limits and
LGC)
withdrawing all exemptions previously granted.
Among properties covered are those owned by the
NOTE: No permanent closure of any local road, street, alley,
company. Bayantel asserts that its properties are park, or square shall be effected unless there exists a
exempt from tax under its franchise. Is Bayantel compelling reason or sufficient justification therefor such
correct? as, but not limited to, change in land use, establishment of
infrastructure facilities, projects, or such other justifiable
A: Yes. The properties are exempt from taxation. The reasons as public welfare may require. (Art. 44(a), IRR, RA
grant of taxing powers to local governments under 7160)
the Constitution and the LGC does not affect the power
of Congress to grant tax exemptions. Limitations of permanent and temporary closure

The term "exclusive of the franchise" is interpreted to A. In case of permanent closure:


mean properties actually, directly and exclusively used 1. It must be approved by atleast 2/3 of all the
in the radio and telecommunications business. members of the Sanggunian and when
necessary provide for an adequate

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229 FACULTY OF CIVIL LAW
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substitute for the public facility Barangay Sangguniang Punong


2. Adequate provision for the public safety barangay Barangay
must be made
3. The property may be used or conveyed for NOTE: The presiding officer shall vote only to break a tie. (Sec.
any purpose for which other real property 49(a) LGC)
may be lawfully used or conveyed. However,
In the absence of the regular presiding officer or his inability
no freedom park shall be closed
to preside at the sanggunian session, the members present
permanently without provision for its and constituting a quorum shall elect from among
transfer or relocation to a new site. (Sec themselves a temporary presiding officer. (Gamboa v. Aguirre,
21(a)(b), LGC) G.R. No. 134213, July 20, 1999)

B. In case of temporary closure: Q. May an incumbent Vice-Governor, while


1. It must be for actual emergency, fiesta concurrently the acting governor, continue to preside
celebration, public rallies, agricultural or over the sessions over the sessions of the Sangguniang
industrial works and highway Panlalawigan? If not, who may preside in the
telecommunications and water work meantime?
projects
2. Duration of which shall be specified A: A Vice-Governor who is concurrently an acting
3. Except for those activities not officially governor is actually a quasi-governor. For purposes of
sponsored or approved by the LGU exercising his legislative prerogatives and powers, he
concerned (Sec 21(c) LGC) is deemed a non-member of the SP for the time
being. Being the Acting Governor, the Vice-Governor
NOTE: Any city, municipality or barangay may, by ordinance, cannot continue to simultaneously exercise the duties
temporarily close and regulate the use of a local street, of the latter office, since the nature of the duties of
road, thoroughfare or any other public place where
the provincial Governor call for a full-time occupant to
shopping malls, Sunday, flea or night markets, or shopping
areas may be established and where articles of commerce discharge them. Such is not only consistent with but
may be sold or dispensed with to the general public. (Sec also appears to be the clear rationale of the new Code
21(d), LGC) wherein the policy of performing dual functions in
both offices has already been abandoned. To repeat,
Material factors to consider in closing a street the creation of a temporary vacancy in the office of the
Governor creates a corresponding temporary vacancy
The material factors which a municipality must in the office of the Vice-Governor whenever the latter
consider in deliberating upon the advisability of acts as Governor by virtue of such temporary
closing a street are: "the topography of the property vacancy. This event constitutes an inability on the
surrounding the street in the light of ingress and part of the regular presiding officer (Vice Governor) to
egress to other streets; the relationship of the street preside during the SP sessions, which thus calls for the
in the road system throughout the subdivision; the operation of the remedy set in Art. 49(b) of the LGC
problem posed by the 'dead end' of the street; the concerning the election of a temporary presiding
width of the street; the cost of rebuilding and officer. The continuity of the Acting Governors (Vice-
maintaining the street as contrasted to its ultimate Governor) powers as presiding officer of the SP is
value to all of the property in the vicinity; the suspended so long as he is in such capacity. Under Sec.
inconvenience of those visiting the subdivision; and 49(b), (i)n the event of the inability of the regular
whether the closing of the street would cut off any presiding officer to preside at the sanggunian session,
property owners from access to a street." (Favis v. the members present and constituting a quorum shall
City of Baguio, G.R. L-29910, April 25, 1969) elect from among themselves a temporary presiding
officer. (Gamboa v. Aguirre, G.R. No. 13421)
LEGISLATIVE POWER
Quorum in the sanggunian
Local legislative bodies and their presiding officers
A majority of all the members of the sanggunian who
Province Sangguniang Vice-governor have been elected and qualified. (Sec. 53 (a), LGC)
Panlalawigan
City Sangguniang City Vice-
Panlungsod mayor
Municipality Sangguniang Municipal
bayan Vice-mayor

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Procedures to be taken by the presiding officer if ORDINANCE AND RESOLUTIONS


there is a question of quorum and if there is no quorum
Ordinance v. Resolution
Should there be a question of quorum raised during a
session, the PO shall immediately proceed to call the roll ORDINANCE RESOLUTION
of the members and thereafter announce the results. Law Merely a declaration of
(Sec. 53, (a) LGC) the sentiment or opinion
of a lawmaking body on
If there is no quorum, the PO may: a specific matter
1. Declare a recess until such time that quorum is General and permanent Temporary in nature
constituted character
2. Compel attendance of the members who are Third reading is GR: Third reading is not
absent without justifiable cause necessary for an necessary in resolution
3. Declare the session adjourned for lack of quorum ordinance
and no business shall be transacted (Sec. 53(b)(c), XPN: Unless decided
LGC) otherwise by a majority
Fixing of Sessions of all the Sanggunian
members (Arrastre, Inc.
IF REGULAR SESSIONS IF SPECIAL SESSIONS V. Villaflor, GR. 128509,
By resolution on the 1st When public interest so August 22, 2006)
day of the session demands, special
immediately following session may be called for Elements of a valid ordinance or resolution
the election of its by the chief executive or
members by a majority vote 1. Must not Contravene the constitution and any
members of Sanggunian statute
2. Must not be Unfair or oppressive
Requirements of a sanggunian session 3. Must not be Partial or discriminatory
4. Must not Prohibit, but may regulate trade
1. It shall be open to public unless it is a closed- 5. Must not be Unreasonable
door session 6. Must be General in application and Consistent
2. No two sessions, regular or special, may be held in with public policy. (Magtajas v. Pryce Properties
a single day Corporation, Inc, G.R. No. 111097, July 20, 1994)
3. Minutes of the session be recorded and each
sanggunian shall keep a journal and record of its Review of ordinances or resolutions
proceedings which may be published upon
resolution of the sanggunian concerned. COMPONENY CITIES
4. In case of special sessions: AND MUNICIPAL BARANGAY
a. Written notice to the members must be ORDINANCES OR ORDINANCES
served personally at least 24 hours before RESOLUTIONS
the special session Who reviews
b. Unless otherwise concurred in by 2/3 votes Sanggunang Panlalawigan Sangguniang Panglungsod
of the sanggunian members present,
or Sangguniang Bayan
there being no quorum, no other matters
When copies of ordinance or resolutions be
may be considered at a special session
forwarded
except those stated in the notice. (Sec. 52,
Within 3 days after Within 10 days after its
LGC)
approval enactment
Q: On its first regular session, may the sanggunian Period to examine
transact business other than the matter of adopting Within 30 days after the Within 30 days after the
or updating its existing rules or procedure? receipt; may examine or receipt
may transmit to the
A: Yes. There is nothing in the language of the LGC provincial attorney or
that restricts the matters to be taken up during the provincial prosecutor.
first regular session merely to the adoption or If the latter, must submit
updating of the house rules. (Malonzo v. Zamora, G.R. his comments or
No. 137718, July 27, 1999) recommendations

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231 FACULTY OF CIVIL LAW
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within 10 days from Items that the local chief executive can veto
receipt of the document
When declared valid 1. Item/s of an appropriation ordinance.
If no action has been If no action has been 2. Ordinance / resolution adopting local
taken within 30 days taken within 30 days development plan and public investment
after submission after submission program
3. Ordinance directing the payment of money or
When invalid (grounds)
creating liability (Sec.55, LGC)
If beyond the power If inconsistent with the
conferred on the law or city or municipal
NOTE: Ordinances enacted by the sangguniang barangay
sangguniang panlungsod ordinance shall, upon approval by a majority of all its members be
or sangguniang signed by the punong barangay. The latter has no veto
pangbayan Effect: Barangay power.
ordinance is
suspended until such LOCAL INITIATIVE AND REFERENDUM
time as the revision
called is effected(Sec. Local initiative v. Referendum
56 and 57, LGC)
INITIATIVE REFERENDUM
Effect of the enforcement of a disapproved ordinance The legal process The legal process
or resolution whereby the registered whereby the registered
voters of LGU may voters of the LGU may
It shall be sufficient ground for the suspension or directly propose, enact approve, amend or
dismissal of the official or employee. (Sec. 58, LGC) or amend any ordinance. reject any ordinance
(Sec. 120 LGC) enacted by the
Effectivity of ordinance or resolution sanggunian. (Sec. 126 RA
7160)
GR: After 10 days from the date a copy is posted in a
bulletin board and in at least 2 conspicuous spaces. NOTE: Local initiative includes not only ordinances but also
(Sec. 59 (a) LGC) resolutions as its appropriate subjects. (Garcia v. COMELEC,
G.R. 111230, Sept. 30, 1994)
XPN: Unless otherwise stated in the ordinance
or resolution. (Sec. 59 (a), LGC) Limitations on local initiative

Ordinances requiring publication for its effectivity 1. It shall not be exercised for more than once a
year.
1. Ordinances that carry with them penal sanctions. 2. It shall extend only to subjects or matters which
(Sec. 59(c) LGC) are within the legal powers of the sanggunian to
2. Ordinances and resolutions passed by highly enact.
urbanized and independent component cities. 3. If at any time before the initiative is held, the
(Sec. 59(d), LGC) sanggunian concerned adopts in toto the
proposition presented and the local chief
Approval of ordinances executive approves the same, the initiative shall
be canceled. However, those against such action
1. By affixing the signature of the chief executive on may, if they so desire, apply for initiative in the
each and every page thereof if he approves the manner herein provided. (Sec. 124, LGC)
same
NOTE: Any proposition or ordinance approved through an
2. By overriding the veto by 2/3 vote of all
initiative and referendum shall not be repealed, modified or
members of the sanggunian if the local chief amended by the sanggunian within 6 months from the date of
executive vetoed the same approval thereof, and may be amended, modified or repealed
within 3 years thereafter by a vote of of all its members. In
NOTE: Local Chief Executive may veto the case of barangays, the period shall be 18 months after the
ordinance only once on the ground that the approval thereof. (Sec. 125 LGC)
ordinance is ultra vires and prejudicial to public
welfare. The veto must be communicated to the Procedure in conducting local initiative
sanggunian within:
a. 15 days = province
1. Number of voters who should file petition with
b. 10 days= city or municipality (Sec. 54, LGC)

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2014 GOLDEN NOTES 232
LOCAL GOVERNMENTS

the Sanggunian concerned: place in the provincial capitol or the city, municipal or
a. Province and cities - at least 1000 barangay hall.
registered voters
b. Municipality - at least 100 registered 6. To Exercise such other powers as granted to
voters corporations (Sec. 22, LGC)
c. Barangay - at least 50 registered voters
2. The Sanggunian concerned has 30 days to act on TO SUE AND BE SUED
the petition. If the Sanggunian does not take any
favorable action, the proponents may invoke the Proper officer to represent the city in court actions
powers of initiative, giving notice to Sanggunian.
3. Proponents will have the following number of The city legal officer is supposed to represent the city
days to collect required number of signatures in all civil actions and special proceedings
a. Provinces and cities - 90 days wherein the city or any of its officials is a party, but
b. Municipalities - 60 days where the position is as yet vacant, the City
c. Barangay - 30 days Prosecutor remains the citys legal adviser and officer
4. Signing of petition for civil cases. (Asean Pacific Planners v. City of
5. Date of initiative set by COMELEC if required Urdaneta, G.R. No. 162525, September 23, 2008)
number of signatures has been obtained.
NOTE:
a. Only the Provincial Fiscal or the Municipal Attorney can
Effectivity of proposition
represent a province or municipality in lawsuits. This is
mandatory. Hence, a private attorney cannot represent
If the proposition is approved by a majority of the a province of municipality.
votes cast, it will take effect 15 days after certification b. Suit is commence by the local executive, upon authority
by the COMELEC. of the Sanggunian, except when the City Councilors, by
themselves and as representatives of or on behalf of the
Control over the local referendum City. Bring the action to prevent unlawful disbursement
of City funds. (City Council of Cebu v. Cuizon, 47 SCRA
The local referendum shall be held under the control 325)
and direction of the COMELEC within
a. 60 days = provinces Q: May LGU funds and properties be seized under
b. 45 days = municipalities; and writs of execution or garnishment to satisfy
c. 30 days = barangays judgments against them?

The COMELEC shall certify and proclaim the results of A: No. The universal rule that where the State gives
the said referendum. its consent to be sued by private parties either by
general or special law, it may limit claimants action
CORPORATE POWERS only up to the completion of proceedings anterior to
the stage of execution and that the power of the
Corporate powers of LGUs Courts ends when the judgment is rendered. Since
government funds and properties may not be seized
1. To have Continuous succession in its corporate under writs of execution or garnishment to satisfy
name such judgments is based on obvious considerations of
2. To Sue and be sued public policy. Disbursements of public funds must be
3. To have and use a Corporate seal covered by the corresponding appropriations as
required by law.; The functions and public services
NOTE: Any new corporate seal or changes on such rendered by the State cannot be allowed to be
shall be registered with the DILG. paralyzed or disrupted by the diversion of public
funds from their legitimate and specific objects.
4. To a Acquire and convey real or personal property (Traders Royal Bank v. IAC, G.R. No. 68514,
5. To Enter into contracts December. 17, 1990)

NOTE: Unless otherwise provided in this Code, no NOTE: The rule on the immunity of public funds from
contract may be entered into by the local chief seizure or garnishment does not apply where the funds
executive in behalf of the LGU without prior sought to be levied under execution are already allocated by
authorization by the sanggunian concerned. A legible law specifically for the satisfaction of the money judgment
copy of such contract shall be posted at a conspicuous against the government. In such a case, the monetary
judgment may be legally enforced by judicial processes. (City

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233 FACULTY OF CIVIL LAW
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of Caloocan v. Allarde, G.R. No. 107271, Sept. 10, 2003) settled that the police power cannot be
surrendered or bargained away through the
TO ACQUIRE AND SELL PROPERTY medium of a contract. (Villanueva v.
Castaneda, G.R. No. L-61311, September 21, 1987)
Documents to support the contract of sale entered 4. Public streets or thoroughfares are property for
into by the LGU public use, outside the commerce of man, and
may not be the subject of lease or other
1. Resolution of the sanggunian authorizing the contracts. (Dacanay v. Asistio, 208 SCRA 404)
local chief executive to enter into a contract of
sale. The resolution shall specify the terms and TO ENTER INTO CONTRACTS
conditions to be embodied in the contract.
Ordinance appropriating the amount specified in Elements of a valid municipal contract
the contract.
2. Certification of the local treasurer as to 1. The LGU has the express, implied or inherent
availability of funds together with a statement power to enter into particular contract
that such fund shall not be disbursed or spent for 2. The contract is entered into by the proper
any purpose other than to pay for the purchase department board, committee, officer or agent.
of the property involved. (Jesus is Lord Christian
School Foundation, Inc. v. Mun. of Pasig, G.R. NOTE: No contract may be entered into by the local
No. 152230, August 9, 2005) chief executive on behalf of the local government
without prior authorization by the sanggunian
Properties that can be alienated by LGUs concerned, unless otherwise provided. (Sec 22(c) LGC)

Only properties owned in its private or proprietary 3. The contract must comply with certain
capacity. (Province of Zamboanga del Norte v. City of substantive requirements:
Zamboanga, G.R. No. L-24440, March 28, 1968)
a. Actual appropriation; and
Art. 424 of the Civil Code lays down the basic b. certificate of availability of funds
principle that properties of public dominion devoted
to public use and made available to the public in 4. The contract must comply with the formal
general are outside the commerce of man and cannot requirements of written contracts. (e.g., Statue
be disposed of or leased by the LGU to private persons. of Frauds)
(Macasiano v. Diokno, G.R. No. 97764, August 10,
NOTE: This includes the power to acquire and convey
1992)
properties by the LGU through written contracts.

Rules on LGUs power to acquire and convey real or Conditions under which a local executive may enter
personal property into a contract in behalf of his government unit

1. In the absence of proof that the property was 1. The contract must be within the power of the
acquired through corporate or private funds, the municipality
presumption is that it came from the State upon 2. The contract must be entered into by an
the creation of the municipality and, thus, is authorized officer (e.g. mayor with proper
governmental or public property. (Salas v. resolution by the Sangguniang Bayan, Sec.142
Jarencio, G.R. No. L-29788, August 30, 1972; LGC)
Rabuco v. Villegas, G.R. No. L-24661, February 3. There must be appropriation and certificate of
28, 1974) availability of funds
2. Town plazas are properties of public dominion; 4. The contract must conform with the formal
they may be occupied temporarily, but only for requisites of a written contract as prescribed by
the duration of an emergency. (Espiritu v. law; and
Municipal Council of Pozorrubio, Pangasinan, 5. In some cases the contract must be approved by
G.R. No. L-11014, January 21, 1958) the President and/or provincial governor (Sec.
3. Public plazas are beyond the commerce of man, 2068 and Sec. 2196, Revised Adm. Code)
and cannot be the subject of lease or other
contractual undertaking. And, even assuming the
existence of a valid lease of the public plaza or
part thereof, the municipal resolution
effectively terminated the agreement, for it is

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Authority to negotiate and secure grants Panlungsod and not ratification. It cannot be denied
that the City Council issued Res. 280 authorizing Mayor
The local chief executive may, upon authority of Tiama to purchase the subject lots.
the sanggunian, negotiate and secure financial grants
or donations in kind, in support of the basic services NOTE: As aptly pointed out by the Ombudsman, ratification
and facilities enumerated under Sec. 17, LGC by the City Council is not a condition sine qua non for Mayor
from local and foreign assistance agencies without Lajara to enter into contracts. With the resolution issued by
the Sangguniang Panlungsod, it cannot be said that there
necessity of securing clearance or approval of any
was evident bad faith in purchasing the subject lots. The lack
department, agency, or office of the national
of ratification alone does not characterize the purchase of
government or from any higher LGU; Provided that the properties as one that gave unwarranted benefits to
projects financed by such grants Pamana or Prudential Bank or one that caused undue injury
or assistance with national security implications shall to Calamba City. (Vergara v. Ombudsman, G.R. No.
be approved by the national agency concerned. 174567, March 12, 2009)
(Sec.23, LGC)
Ultra vires contracts
Requirement of public bidding
These are contracts entered into without the first and
In the award of government contracts, the law requires third requisites. Such are null and void and cannot
competitive public bidding. It is aimed to protect the be ratified or validated. Ratification of defective
public interest by giving the public the best possible municipal contracts is possible only when there is
advantages thru open competition. It is a mechanism non-compliance with the second and/or fourth
that enables the government agency to avoid or requirements above. Ratification may either be
preclude anomalies in the execution of public expressed or implied.
contracts. (Garcia v. Burgos, G.R. No. 124130, June
29, 1998) NOTE: An act which is outside of the municipalitys
jurisdiction is considered as a void ultra vires act, while an
Failure of bidding act attended only by an irregularity but remains within the
municipalitys power is considered as an ultra vires act
subject to ratification and/or validation. To the former
When any of the following occurs:
belongs municipal contracts which (a) are entered into
1. There is only one offeror
beyond the express, implied or inherent powers of the LGU;
2. When all the offers are non-complying or and (b) do not comply with the substantive requirements of
unacceptable. (Bagatsing v. Committee on law e.g., when expenditure of public funds is to be made,
Privatization, G.R. No. 112399, July 14, 1995) there must be an actual appropriation and certificate of
availability of funds; while to the latter belongs those which
Q: The City Council of Calamba issued several (a) are entered into by the improper department, board,
resolutions authorizing Mayor Tiama to negotiate officer of agent; and (b) do not comply with the formal
with landowners within the vicinity of Barangays requirements of a written contract e.g., the Statute of
Frauds. (Land Bank of the Philippines v. Eduardo Cacayuran,
Real, Halang, and Uno, for a new city hall site and to
G.R. No. 191667, April 17, 2013)
purchase several lots and to execute, sign and deliver
the required documents. Mayor Tiama then entered
LIABILITY OF LGUs
into MOA, Deed of Sale, Deed of Mortgage, and Deed
of Assignment.
Scope of municipal liability
Thereafter, Ong, a member of the City Council,
Municipal liabilities arise from various sources in the
questioned the lack of ratification by the City Council
conduct of municipal affairs, both governmental and
of the contracts, among others. Should all the
proprietary.
documents pertaining to the purchase of the lots
bear the ratification by the City Council of Calamba?
Rule on the liabilities of LGUs and their officials
A: No. Sec. 22(c), LGC, provides: (c) Unless otherwise
LGUs and their officials are not exempt from
provided in this Code, no contract may be entered into
liability arising from death or injury to persons or
by the local chief executive in behalf of the LGU
damage to property. (Sec. 24, LGC)
without prior authorization by the sanggunian
concerned. Clearly, when the local chief executive
Liabilities of LGUs
enters into contracts, the law speaks of prior
authorization or authority from the Sangguniang
1. LGUs shall be liable for damages for the death of,

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or injuries suffered by, any person by reason of municipal liability has been said to apply to all cases
the defective condition of roads, streets, bridges, where money or other property of a party is
public buildings, and other public works under received under such circumstances that the general
their control or supervision. (Art. 2189, NCC) law, independent of express contract implies an
obligation upon the municipality to do justice with
NOTE: LGU is liable even if the road does not belong to respect to the same. (Province of Cebu v. IAC, G.R.
it as long as it exercises control or supervision over the 72841, January 29, 1987)
said roads.
NOTE: Estoppel cannot be applied against a municipal
2. The State is responsible in like manner when it corporation in order to validate a contract which the
acts through a special agent; but not when the municipal corporation has no power to make or which it is
damage has been caused by the official to whom authorized to make only under prescribed conditions,
the task done properly pertains. In which case, within prescribed limitations, or in a prescribed mode or
Art. 2176 shall be applicable. (Art. 2180 (6), NCC) manner, although the corporation has accepted the
3. When a member of a city or municipal police benefits thereof and the other party has fully performed his
part of the agreement, or has expended large sums in
force refuses or fails to render aid or protection
preparation for performance. (Favis v. Municipality of
to any person in case of danger to life or
Sabangan, G.R. L-26522, February 27, 1969)
property, such peace officer shall be primarily
liable for damages and the city or municipality Tort liability of LGUs
shall be subsidiarily responsible therefor. (Art.
34, NCC) 1. LGU-engaged (governmental function) - not
liable
Bases for municipal liabilities 2. LGU-engaged (proprietary function) - liable

1. Liability arising from violation of law Q: A collision between a passenger jeepney,


sand and gravel truck, and a dump truck driven
NOTE: Liability arising from violation of law such as
by Monte and owned by the Municipality of San
closing municipal streets without indemnifying
persons prejudiced thereby, non-payment of wages to Fernando occurred which resulted to the death
its employees due to lack of funds or other causes or its of Jessica, a passenger of the jeepney. The heirs
refusal to abide a temporary restraining order may of Jessica instituted an action for damages
result in contempt charge and fine. against the Municipality. Is the municipality liable
for the tort committed by its employee?
2. Liability for contracts
A: No. The driver of the dump truck was performing
NOTE: duties or tasks pertaining to his office he was on his
a. LGU is liable provided that the contract is intra way to get a load of sand and gravel for the repair of
vires. If it is ultra vires, they are not liable
San Fernando's municipal streets. The municipality
b. A private individual who deals with a municipal
cannot be held liable for the tort committed by its
corporation is imputed CONSTRUCTIVE
knowledge of the extent of the power or regular employee, who was then engaged in the
authority of the municipal corporation to enter discharge of governmental functions. The death of the
into contracts. passenger tragic and deplorable though it may be
imposed on the municipality no duty to pay
3. Liability for tort monetary compensation. (Municipality of San
Fernando v. Hon. Firme, G.R. No. L-52179, April 8,
NOTE: They may be held liable for torts arising from the 1991)
performance of their private and proprietary functions
under the principle of respondeat superior. They are Q: The Municipality of Malasiqui authorized the
also liable for back salaries for employees illegally
celebration of town fiesta by way of a resolution and
dismissed/separated or for its refusal to reinstate
appropriated an amount for the construction of 2
employees.
stages. One of the members of the group to perform
Doctrine of Implied Municipal Liability a play during the fiesta was Fontanilla. Before the
dramatic part of the play was reached, the stage
A municipality may become obligated upon an implied collapsed and Fontanilla was pinned underneath
contract to pay the reasonable value of the benefits resulting to his death. The heirs of Fontanilla filed a
accepted or appropriated by it as to which it has the complaint against the Municipality. Is the
general power to contract. The doctrine of implied municipality liable?

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A: Yes. The town fiesta was an exercise of a private or urbanized cities shall be jointly referred for
proprietary function of the municipality. Holding a settlement to the respective sanggunians of the
fiesta even if the purpose is to commemorate a parties. (Sec. 118(d), LGC)
religious or historical event of the town is in essence
an act for the special benefit of the community and not Importance of drawing with precise strokes the
for the general welfare of the public performed in territorial boundaries of LGUs
pursuance of a policy of the state. No governmental or
public policy of the state is involved in the celebration The boundaries must be clear for they define the
of a town fiesta. (Municipality of Malasiqui v. Heirs of limits of the territorial jurisdiction of LGU. It can
Fontanilla, G.R. No. L-29993, October 23, 1978) legitimately exercise powers of government only
within the limits of its territorial jurisdiction. Beyond
NOTE: There can be no hard and fast rule for purposes of these limits, its acts are ultra vires. Needless to
determining the true nature of an undertaking or function of state, any uncertainty in the boundaries of LGUs
a municipality; the surrounding circumstances of a particular will sow costly conflicts in the exercise of
case are to be considered and will be decisive. The basic
governmental powers which ultimately will prejudice
element, however beneficial to the public the undertaking
the peoples welfare. This is the evil sought to be
may be, is that it is governmental in essence; otherwise the
function becomes private or proprietary in character. (Ibid.) avoided by the LGC in requiring that the land area of
a LGU must be spelled out in metes and bounds, with
SETTLEMENT OF BOUNDARY DISPUTES technical descriptions. (Mariano v. COMELEC, G.R. No.
118577, March 7, 1995)
Settlement of boundary disputes
SUCCESSION OF ELECTIVE OFFICIALS
Boundary disputes between local governments units
should, as much as possible, be settled amicably. Classes of vacancies in the elective post
After efforts to settle fail, the dispute may be brought
to the appropriate RTC in the said province. Since PERMANENT VACANCY TEMPORARY VACANCY
the LGC is silent as to what body has exclusive Arises when an elected Arises when an elected
jurisdiction over the settlement of boundary disputes local official: official is temporarily
between a municipality and an independent 1. Fills a higher vacant incapacitated to
component city of the same province, the RTC has office perform his duties due
general jurisdiction to adjudicate the said 2. Refuses to assume to legal or physical
controversy. office reason such as:
3. Fails to qualify 1. Physical sickness
Body or bodies vested by law with the authority to 4. Dies 2. Leave of absence
settle boundary disputes 5. Removed from 3. Travel abroad or
office 4. Suspension from
1. Boundary disputes involving two or more 6. Voluntarily resigns office (Sec. 46, LGC)
barangays in the same city or municipality shall 7. Permanently
be referred for settlement to the sangguniang incapacitated to
panlungsod or sangguniang bayan concerned. discharge the
(Sec. 118(a), LGC) functions of his
2. Boundary disputes involving two or more office (Sec. 44, LGC)
municipalities within the same province shall be
settled by the sangguniang panlalawigan Filling of vacancy
concerned. (Sec. 118(b), LGC)
3. Boundary disputes involving municipalities or 1. Automatic succession
component cities of different provinces shall be 2. By appointment (Sec. 45, LGC)
jointly referred for settlement to the
sanggunians of the provinces concerned. (Sec. Rules of succession in case of permanent vacancies
118(c), LGC)
4. Boundary disputes involving a component city or A. In case of permanent vacancy in:
municipality on the one hand and a highly 1. Office of the Governor: Vice- Governor
urbanized city on the other shall be jointly 2. Office of the Mayor: Vice-Mayor
referred for settlement to the respective 3. Office of the Vice Governor or Vice-Mayor:
sanggunians of the parties. (Sec. 118(d), LGC) highest ranking Sanggunian member or in
5. Boundary disputes involving two or more highly case of his permanent inability, the second

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highest ranking Sanggunian member - Rules on temporary vacancies


successor should have come from the same
political party. 1. In case of temporary vacancy of the post of the
4. Office of the Punong Barangay: the highest local executive (leave of absence, travel abroad,
ranking sangguniang barangay member - and suspension): Vice- Governor, Vice Mayor,
successor may or may not have come from highest ranking sangguniang barangay shall
the same political party. automatically exercise the powers and perform
the functions of the local chief executive
NOTE: For purposes of succession, ranking concerned.
in the Sanggunian shall be determined on the
basis of the proportion of the votes obtained NOTE:
by each winning candidate to the total number GR: The acting Governor or Mayor cannot exercise the
of registered voters in each district in the power to appoint, suspend or dismiss employees
immediately preceding local election. (Sec. 44 (d)(3)
LGC) XPN: If the period of temporary capacity exceeds 30
working days.
The general rule is that the successor (by 2. If travelling within the country, outside his
appointment) should come from the same
jurisdiction for a period not exceeding 3 days: he
political party as the sanggunan member whose
may designate in writing the officer-in-charge.
position has become vacant. The exception
would be in the case of vancancy in the The OIC cannot exercise the power to appoint,
Sangguniang barangay. The reason for the rule suspend or dismiss employee.
is to maintain the party representation as willed 3. If without said authorization, the Vice-Governor,
by the people in the election. Vice-Mayor or the highest ranking sangguniang
barangay member shall assume the powers on
B. In case automatic succession is not applicable and the 4th day of absence. (Sec. 46, LGC)
there is vacancy in the membership of the
sanggunian it shall be filled up by appointment in the Termination of temporary incapacity
following manner:
1. The President through the Executive 1. If the temporary incapacity was due to (a) Leave
Secretary shall appoint the political nominee of absence (b) Travel abroad, and (c) Suspension,
of the local executive for the sangguniang it shall terminate upon submission to the
panlalawigan and panlungsod of highly appropriate sanggunian of a written declaration
urbanized cities and independent component by the local chief executive concerned that he
cities has reported back to office
2. The Governor, shall appoint the political 2. If the temporary incapacity was due to legal
nominees for the sangguniang panlungsod of reasons, the local chief executive should also
component cities and the sangguniang submit necessary documents showing that the
bayan concerned legal cause no longer exist. (Sec. 46[b], LGC)
3. The city or municipal mayor shall appoint the
recommendee of the sangguniang barangay DISCIPLINE OF LOCAL OFFICIALS
concerned.
Grounds for disciplinary actions
NOTE: The last vacancy in the Sanggunian refers to that
created by the elevation of the member formerly occupying An elective local official may be disciplined,
the next higher in rank which in turn also had become vacant
suspended or removed from office on any of the
by any of the causes already enumerated. The term last
vacancy is thus used in Sec. 45(b) to differentiate it from the following grounds:
other vacancy previously created. The term byno means
refers to the vacancy in the No.8 position which occurred 1. Disloyalty to the Republic of the Philippines
with the elevation of 8th placer to the seventh position in
the Sanggunian. Such construction will result in absurdity. NOTE: An administrative, not criminal, case for
(Navarro v. CA, G.R. No. 141307, March 28, 2001) disloyalty to the Republic only requires substantial
evidence. (Aguinaldo v. Santos, G.R. No. 94115, August
In case of vacancy in the representation of the youth and the 21, 1992)
barangay in the Sanggunian, it shall be filled automatically by
the official next in rank of the organization concerned. 2. Culpable violation of the Constitution
3. Dishonesty, oppression, misconduct in office,
gross negligence, dereliction of duty

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NOTE: Acts of lasciviousness cannot be considered Persons who can impose preventive suspension
misconduct in office, and may not be the basis of an
order of suspension. To constitute a ground for AUTHORITY TO RESPONDENT LOCAL
disciplinary action, the mayor charged with the offense
IMPOSE SUSPENSION OFFICIAL
must be convicted in the criminal action.
BELONGS TO THE
Indeed, there is merit in petitioner's contention that the President Elective official of a
same ruling applies to acts of lasciviousness which falls province, highly
under the same classification as crimes against chastity. urbanized or
In the instant case, not only is a final judgment lacking, independent
but the criminal cases filed against the petitioner were component city
all dismissed by the trial court, for insufficiency of
evidence, on the basis of its findings that the attendant
circumstances logically point to the existence of
Governor Elective official of a
consent on the part of the offended parties. (Palma v. component city or
Fortich, G.R. No. L-59679, January 29, 1987) municipality
Mayor Elective official of a
barangay. (Sec 63[a],
4. Commission of any offense involving moral
LGC)
turpitude or an offense punishable by at least
prision mayor
5. Abuse of authority Rules on preventive suspension
6. GR: Unauthorized absence for 15 consecutive
working days 1. A single preventive suspension shall not extend
beyond 60 days.
XPNs: In the case of members of the 2. In the event that there are several administrative
Sangguniang: cases filed, the elective official cannot be
a. Panlalawigan preventively suspended for more than 90 days
b. Panlunsod within a single year on the same ground or
c. Bayan grounds existing and known at the time of his
d. Barangay first suspension. (Sec. 63[b], LGC)

7. Application for or acquisition of foreign Preventive suspension under RA 6770 v. Preventive


citizenship or residence or the status of an suspension under RA 7160 (LGC)
immigrant of another country;
8. Such other grounds as may be provided by the PREVENTIVE PREVENTIVE
Code and other laws. (Sec. 60, LGC) SUSPENSION UNDER SUSPENSION UNDER
RA 6770 LGC
NOTE: An elective local official may be removed from office Requirements
on any of the grounds enumerated above only by an order 1. The evidence of guilt 1. There is
from the proper court. The Office of the President is without is strong; and reasonable ground
any power to remove elected officials since such power is 2. That any of the to believe that the
exclusively vested in the proper courts as expressly provided following respondent has
for in the last paragraph of Sec. 60, of LGC. (Salalima v.
circumstances are committed the act
Guingona, G.R. No. 117589-92, May 22, 1996)
present: or acts complained
JURISDICTION a. The charge of;
against the 2. The evidence of
PREVENTIVE SUSPENSION officer or culpability is strong;
employee 3. The gravity of the
Preventive suspension should be imposed when: should involve offense so warrants
dishonesty, 4. The continuance in
1. After the issues are joined; oppression or office of the
2. When the evidence of guilt is strong; grave misconduct respondent could
3. Given the gravity of the offense, there is great or neglect in the influence the
probability that the continuance in office of the performance of witnesses or pose a
respondent could influence the witnesses or duty; threat to the safety
pose a threat to the safety and integrity of the b. The charges and integrity of the
records and other evidence. (Sec. 63[b], LGC) should warrant records and other
removal from evidence

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office; or be done only for cause as provided by law. (Dario v.


c. The respondents Mison, G.R. No. 81954, August 8, 1989)
continued stay in
office would NOTE: The unjust removal or non-compliance with the
prejudice the prescribed procedure constitutes reversible error and this
case filed against entitles the officer or employee to reinstatement with back
salaries and without loss of seniority rights.
him.
Maximum period Q: Does the Sangguniang Panlungsod and
6 months 60 days Sangguniang Bayan have the power to remove
(Hagad v.Gozo-Dadole, G.R. No. 108072 December 12, elective officials?
1995)
A: No. The pertinent legal provisions and cases
Power of the Ombudsman under RA 6770 to decided by this Court firmly establish that the
conduct administrative investigation Sanggunaing Bayan is not empowered to do so.
Sec. 60 of the LGC conferred upon the courts the
The Ombudsman and the Office of the President power to remove elective local officials from office.
have concurrent jurisdiction to conduct (The Sangguniang Barangay of Don Mariano Marcos
administrative investigations over elective officials. v. Martinez, G.R. No. 170626, March 3, 2008)
(Hagad v. Gozo-Dadole, G.R. No. 108072, December
12, 1995) Resignation of public elective officials

Signing of preventive suspension order Resignation of elective officials shall be deemed


effective only upon acceptance by the following
The Ombudsman, as well as his Deputy, may sign authorities:
an order preventively suspending officials. Also, the 1. The President, in case of Governors, Vice-
length of the period of suspension within the limits Governors, and Mayors and Vice-Mayors of highly
provided by law and the evaluation of the strength of urbanized cities and independent and
the evidence both lie in the discretion of the component cities
Ombudsman. It is immaterial that no evidence has 2. The Governor, in the case of municipal Mayors
been adduced to prove that the official may influence and Vice-Mayors, city Mayors and Vice-Mayors of
possible witnesses or may tamper with the public component cities
records. It is sufficient that there exists such a 3. The Sanggunian concerned, in case of
possibility. (Castillo-Co v. Barbers, G.R. No. 129952 sangguninan members
June 16, 1998) 4. The City or Municipal Mayor, in case of barangay
officials. (Sec. 82, LGC)
Effect of an appeal on the preventive suspension
ordered by the Ombudsman NOTE: The resignation shall be deemed accepted if not
acted upon by the authority concerned within 15 working
An appeal shall not stop the decision from being days from receipt thereof. Irrevocable resignations by
executory. In case the penalty is suspension or sanggunian members shall be deemed accepted upon
removal and the respondent wins such appeal, he representation before an open session of the sanggunian
concerned and duly entered in its records, except where
shall be considered as having been under preventive
the sanggunian members are subject to recall elections or
suspension and shall be paid the salary and such to cases where existing laws prescribe the manner of acting
other emoluments that he did not receive by reason upon such resignations.
of the suspension or removal. A decision of the Office
of the Ombudsman in administrative cases shall be ADMINISTRATIVE APPEAL
executed as a matter of course. (Office of the
Ombudsman v. Samaniego, G.R. No. 175573, Oct. 5, Rules on administrative appeals
2010)
Decisions in administrative cases may, within 30
REMOVAL days from receipt thereof, be appealed to the
following:
Removal 1. The Sangguniang panlalawigan, in case of
decisions of the sangguniang panlungsod of
Removal imports the forcible separation of the component cities and the sangguniang bayan;
incumbent before the expiration of his term and can and

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2. The Office of the President, in the case of DOCTRINE OF CONDONATION


decisions of the sangguniang panlalawigan and
the sangguniang panlungsod of highly urbanized Subsequent re-election as condonation
cities and independent component cities. (Sec.
67, LGC) The rule that public official cannot be removed for
administrative misconduct committed during a prior
NOTE: Decisions of the President shall be final and term, since his re-election to office operates as a
executory. condonation of the officers previous misconduct to
the extent of cutting off the right to remove him
Persons authorized to file administrative complaint therefore, has no application to pending criminal
cases against petitioner for the acts he may have
1. Any private individual or any government officer committed during a failed coup. (Aguinaldo v. Santos,
or employee by filing a verified complaint; G.R. No. 94115, August 21, 1992)
2. Office of the President or any government
agency duly authorized by law to ensure that Q: Salumbides and Glenda were appointed as
LGUs act within their prescribed powers and Municipal Legal Officer/Administrator and Municipal
functions. (AO 23, Rule 3 Sec. 1, December 17, Budget Officer, respectively, of Tagkawayan, Quezon.
1992) On May 13, 2002, a complaint was filed with the
Office of the Ombudsman against Salumbides and
A verified complaint shall be filed with the Glenda (hereafter petitioners), among others, for
following: Dishonesty, Grave Misconduct, Gross Neglect of
Duty, Conduct Prejudicial to the Best Interest of the
1. Office of the President - Against elective official Service, and violation of the Commission on Audit
of provinces, highly urbanized cities, independent (COA) Rules and the Local Government Code.
component cities, and component cities. Petitioners urge this Court to expand the settled
doctrine of condonation to cover coterminous
NOTE: It may be noted that the Constitution places
local governments under the supervision of the appointive officials who were administratively
Executive. Likewise, the Constitution allows Congress charged along with the reelected official/appointing
to include in the LGC provisions for removal of local authority with infractions allegedly committed
officials, which suggests that Congress may exercise during their preceding term. It is their contention that
removal powers. So, the LGC has done and delegated the non-application of the condonation doctrine
its exercise to the President. Note also that legally, to appointive officials violates the right to equal
supervision is not incompatible with disciplinary protection of the law. Is the contention tenable?
action. (Ganzon v. CA, 200 SCRA 271)
A. No. In the recent case of Quinto v. Commission on
Under AO 23, the President has delegated the power
to investigate complaints to the Secretary of Interior Elections, the Court applied the four-fold test in an
and Local Government. This is valid delegation equal protection challenge against the resign-to-run
because what is delegated is only the power to provision, wherein it discussed the material and
investigate, not the power to discipline. Besides the substantive distinctions between elective and
power of the Secretary of Interior and Local appointive officials that could well apply to the
Government is based on the alter-ego principle. doctrine of condonation. It is the will of the populace,
(Joson v. Torres, 290 SCRA 279) not the whim of one person who happens to be the
appointing authority, which could extinguish an
2. Sangguniang Panlalawigan - Elective officials of administrative liability. Since petitioners hold
municipalities; appointive positions, they cannot claim the mandate
of the electorate. The people cannot be charged with
NOTE: Decision may be appealed to the Office of the
President the presumption of full knowledge of the life and
character of each and every probable appointee of the
3. Sangguniang Panglunsod or Bayan - Elective elective official ahead of the latters actual
barangay officials. (Sec. 61, LGC) reelection. (Salumbides v. Office of the Ombudsman,
G.R. No. 180917, April 23, 2010)
NOTE: Decision shall be final and executory.
Q: Romeo Jalosjos, a member of Congress, is confined
at the National Penitentiary while his conviction for
statutory rape on two counts and acts of
lasciviousness on six counts is pending appeal.

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Jalosjos filed this motion asking that he be allowed to salary


fully discharge the duties of a Congressman, including 5. Reprimand and otherwise discipline subordinate
attendance at legislative sessions and committee officials and employees under his jurisdiction
meetings despite his having been convicted in the
first instance of a non-bailable offense. NOTE: If the penalty imposed is suspension without pay for
not more than thirty (30) days, his decision shall be final. If
Accused-appellants relied on the ruling in Aguinaldo the penalty imposed is heavier than suspension of thirty
(30) days, the decision shall be appealable to the Civil
v. Santos, which states, that The Court should
Service Commission, which shall decide the appeal within
never remove a public officer for acts done prior to
thirty (30) days from receipt thereof. (Sec. 87, LGC)
his present term of office. To do otherwise would be
to deprive the people of their right to elect their RECALL
officers. When a people have elected a man to office,
it must be assumed that they did this with the Recall
knowledge of his life and character, and that they
disregarded or forgave his fault or misconduct, if he It is a mode of removal of a public officer by the people
had been guilty of any. It is not for the Court, by before the end of his term. The peoples prerogative
reason of such fault or misconduct, to practically to remove a public officer is an incident of their
overrule the will of the people. Decide. sovereign power, even in the absence of constitutional
restraint; the power is implied in all governmental
A: It can be readily seen in the above-quoted ruling operations. (Garcia v. COMELEC, G.R. No. 111511,
that the Aguinaldo case involves the administrative October 5, 1993)
removal of a public officer for acts done prior to his
present term of office. It does not apply to NOTE: All expenses incident to recall elections shall be
imprisonment arising from the enforcement of borne by the COMELEC. For this purpose, there shall be
criminal law. Moreover, in the same way that included in the annual General Appropriations Act a
preventive suspension is not removal, confinement contingency fund at the disposal of the COMELEC for the
pending appeal is not removal. He remains a conduct of recall elections. (Sec. 75, LGC)
congressman unless expelled by Congress or,
otherwise, disqualified. (People v. Jalosjos, G.R. Nos. Ground for recall
132875-76. November 16, 2001)
The only ground for recall of local government
APPOINTIVE OFFICIALS officials is loss of confidence. It is not subject to
judicial inquiry. The Court ruled that loss of
Preventive suspension of appointive local officials and confidence as a ground for recall is a political
employees question. (Evardone v. COMELEC, G.R. No. 94010,
December 2, 1991)
The local chief executives may preventively
suspend, for a period not exceeding sixty (60) days, Recall initiation
any subordinate official or employee under his
authority pending investigation if the charge against A recall may be initiated against any elective
such official or employee involves dishonesty, provincial, city, municipal, or barangay official by a
oppression or grave misconduct or neglect in the petition of a registered voter in the LGU concerned
performance of duty, or if there is reason to believe and supported by the registered voters in the LGU
that the respondent is guilty of the charges which concerned during the election in which the local
would warrant his removal from the service. (Sec. 85, official sought to be recalled was elected subject to
LGC) the following percentage requirements:
a. At least twenty-five percent (25%) in the case
Imposable penalties LGUs with a voting population of not more
than twenty thousand (20,000);
Except as otherwise provided by law, the local chief b. At least twenty percent (20%) in the case of LGUs
executive may impose the penalty of: with a voting population of at least twenty
1. Removal from service thousand (20,000) but not more than seventy-
2. Demotion in rank five thousand (75,000): Provided, That in no case
3. Suspension for not more than one (1) year shall the required petitioners be less than five
without pay thousand (5,000);
4. Fine in an amount not exceeding six (6) months' c. At least fifteen percent (15%) in the case of LGUs
with a voting population of at least seventy-

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LOCAL GOVERNMENTS

five thousand (75,000) but not more than three signatures. Failure to obtain required number
hundred thousand (300,000): Provided, automatically nullifies petition.
however, That in no case shall the required 3. Within 3 days of certification of sufficiency,
number of petitioners be less than fifteen COMELEC provides official with copy of petition
thousand (15,000); and and causes its publication for three weeks (once
d. At least ten percent (10%) in the case of LGUs with a week) in a national newspaper and a local
a voting population of over three hundred newspaper of general circulation. Petition must
thousand (300,000): Provided, however, that in also be posted for 10 to 20 days at conspicuous
no case shall the required petitioners be less places. Protest should be filed at this point and
than forty-five thousand (45,000). (Sec. 70 of ruled with finality within 15 days after filing.
LGC, as amended by RA 9244) COMELEC verifies and authenticates the
signature
NOTE: By virtue of RA 9244, Secs. 70 and 71 of the LGC 4. COMELEC announces acceptance of candidates.
were amended, and the Preparatory Recall Assembly has 5. COMELEC sets election within 30 days upon
been eliminated as a mode of instituting recall of elective completion of previous section in
local government officials.
barangay/city/municipality proceedings and 45
days in the case of provincial officials. Officials
All pending petitions for recall initiated through the
Preparatory Recall Assembly shall be considered dismissed sought to be recalled are automatic candidates.
upon the effectivity of RA 9244 (Approved February. 19, (Sec 70, LGC)
2004).
Ban on resignation of elective local official subject of
Limitations on recall recall

1. Any elective local official may be subject of a The elective local official sought to be recalled shall not
recall election only once during his term of office be allowed to resign while the recall process is in
for loss of confidence; and progress. (Sec. 73, LGC)
2. No recall shall take place within one year from
the date of the officials assumption to office or Effectivity of recall
one year immediately preceding a regular
election. (Sec. 74, LGC) Only upon the election and proclamation of a
successor in the person of the candidate receiving the
NOTE: The one-year time bar will not apply where the local highest number of votes cast during the election on
official sought to be recalled is a Mayor and the recall. Should the official sought to be recalled
approaching election is a barangay election. (Angobung receive the highest number of votes, confidence in
v. COMELEC, G.R. No. 126576, March 5, 1997)
him is thereby affirmed, and he shall continue in
office. (Sec. 72, LGC)
Q: Sec. 74 of the LGC provides that no recall shall
take place within one year immediately preceding a Q. Will it be proper for the COMELEC to act on a
regular local election. What does the term regular petition for recall signed by just one person?
local election, as used in this section, mean?
A: No. A petition for recall signed by just one person is
A: It refers to one where the position of the official in violation of the statutory 25% minimum
sought to be recalled is to be actually contested and requirement as to the number of signatures
filled by the electorate. (Paras v. Comelec, G.R. No. supporting any petition for recall. (Angobung v.
123169, November 4, 1996) COMELEC, G.R. No. 126576, March 5, 1997)
Recall process
TERM LIMITS
1. Petition of a registered voter in the LGU
Term of office of an elected local official
concerned, supported by percentage of
registered voters during the election in which the
Three (3) years starting from noon of June 30
local official sought to be recalled was elected.
following the election or such date as may be
(% decreases as population of people in area
provided by law, except that of elective barangay
increases. Also, the supporting voters must all
officials, for maximum of 3 consecutive terms in the
sign the petition)
same position. (Sec. 43, LGC)
2. Within 15 days after filing, COMELEC must certify
the sufficiency of the required number of

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The term of office of Barangay and Sangguniang


Kabataan elective officials, by virtue of RA 9164, is
three (3) years.

NOTE: The objective of imposing the three-term limit rule was


to avoid the evil of a single person accumulating excess
power over a particular territorial jurisdiction as a result of a
prolonged stay in the same office.

For a three term rule to apply the local official must have
fully served the term and been elected through regular
election.

Term limit of Barangay officials

The term of office of barangay officials was fixed at


three years under RA 9164. (19 March 2002)
Further, Sec.43 (b) provides that "no local elective
official shall serve for more than three (3) consecutive
terms in the same position. The Court interpreted this
section referring to all local elective officials without
exclusions or exceptions. (COMELEC v. Cruz, G.R. No.
186616, November 20, 2009)

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NATIONAL ECONOMY AND PATRIMONY

NATIONAL ECONOMY AND PATRIMONY NOTE: Two levels of controls that must be considered.
First level is the control over the corporation which may
engage with the State in co-production, joint venture,
Threefold goals of the national economy or production sharing agreements. If individuals, they
must be Filipino citizens; if corporations, the ownership
1. More equitable distribution of wealth must be 60% Filipino. The second level is control of the
2. Increased wealth for the benefit of the people co-production, joint venture, or production-sharing
3. Increased productivity operation. This must be under the full control and
supervision of the State.
Patrimony
What the new rule says is that whenever natural
resources are involved, particularly in the case of
It refers not only to natural resources but also to
inalienable natural resources, the State must always
cultural heritage. (Manila Prince Hotel v. GSIS, G.R. No. have some control of the exploration, development,
122156, February 3, 1997) and utilization even if the individual or corporation
engaged in the operation is a Filipino.
REGALIAN DOCTRINE
The new rule however is not retroactive.
Regalian Doctrine (jura regalia)
3. All agreements with the qualified private sector
It is the doctrine which reserves to the State the full may be for only a period not exceeding 25 years,
ownership of all natural resources or natural wealth renewable for another 25 years. (The 25 year limit
that may be found in the bowels of the earth. is not applicable to water rights for irrigation,
water supply, fisheries, or industrial uses other
NOTE: All lands of the public domain, waters, minerals, coal, than the development of water power, for which
petroleum, and other mineral oils, all forces of potential beneficial use may be the measure and the limit
energy, fisheries, forests, or timber, wildlife, flora and fauna, of the grant.)
and natural resources belong to the State. With the 4. The use and enjoyment of marine wealth of the
exception of agricultural lands, all other natural resources archipelagic waters, territorial sea, and exclusive
shall not be alienated. (Sec. 2, Art. XII, 1987 Constitution) economic zone shall be reserved for Filipino
citizens. (It would seem therefore that
Exception to the Regalian Doctrine corporations are excluded or at least must be fully
owned by Filipinos.)
Any land in the possession of an occupant and of his 5. Utilization of natural resources in rivers, lakes,
predecessors-in-interest since time immemorial. (Oh bays, and lagoons may be allowed on a small
Cho v. Director of Land, G.R. No. 48321, August 31, scale Filipino citizens as well as cooperative fish
1946) farming, with priority for subsistence fishermen
and fish workers. (The bias here is for the
Effect of the Regalian Doctrine protection of the little people)

Any person claiming ownership of a portion of a land Native Title


of the public domain must be able to show title from
the State according to any of the recognized modes of Native title refers to Indigenous Cultural
acquisition of title. (Lee Hong Kok v. David, G.R. No. L- Communities/Indigenous Peoples (ICCs/IPs)
30389, December 27, 1972) preconquest rights to lands and domains held under a
claim of private ownership as far back as memory
Limitations imposed by Sec 2 that embody the Jura reaches. These lands are deemed never to have been
Regalia of the State public lands and are indisputably presumed to have
been held that way since before the Spanish
1. Only agricultural lands of the public domain may Conquest. The rights of ICCs/IPs to their
be alienated. ancestral domains (which also include ancestral lands)
2. The exploration, development, and utilization of by virtue of native title shall be recognized and
all natural resources shall be under the full control respected. (Sec. 11, IPRA)
and supervision of the State either by directly
undertaking such exploration, development, and Ancestral domains
utilization or through co-production, joint
venture, or production-sharing agreements with All areas belonging to ICCs/IPs held under a claim of
qualified persons or corporations. ownership, occupied or possessed by ICCs/IPs by

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245 FACULTY OF CIVIL LAW
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themselves or through their ancestors, communally or grounds, and all improvements made by them at any
individually since time immemorial, continuously until time within the domains. Neither does Sec. 7(b),
the present, except when interrupted by war, force which enumerates certain rights of the indigenous
majeure or displacement by force, deceit, stealth or as peoples over the natural resources found within their
a consequence of government projects or any other ancestral domains, contain any recognition of
voluntary dealings with government and/or private ownership vis--vis the natural resources. (Separate
individuals or corporations. (Sec.3(a), RA 8371) Opinion, Kapunan, J., in Cruz v. Secretary of
Environment and Natural Resources, G.R. No. 135385,
Ancestral lands December 6, 2000)

Lands held by the ICCs/IPs under the same conditions Coverage of the IPRA
as ancestral domains except that these are limited to
lands and that these lands are not merely occupied What is evident is that the IPRA protects the
and possessed but are also utilized by the ICCs/IPs indigenous peoples rights and welfare in relation to
under claims of individual or traditional group the natural resources found within their ancestral
ownership. (Sec.3 (b), RA 8371) domains, including the preservation of the ecological
balance therein and the need to ensure that the
Q: Does RA 8371, otherwise known as the Indigenous indigenous peoples will not be unduly displaced when
Peoples Rights Act, infringe upon the States the State-approved activities involving the natural
ownership over the natural resources within the resources located therein are undertaken. (Ibid.)
ancestral domains?
Q: May property granted to a state university (CMU),
A: No. Sec. 3(a) of RA 8371 merely defines the although within the ancestral domains, be
coverage of ancestral domains, and describes the distributed to indigenous peoples and cultural
extent, limit and composition of ancestral domains by communities?
setting forth the standards and guidelines in
determining whether a particular area is to be A: No. The lands by their character have become
considered as part of and within the ancestral inalienable from the moment President Garcia
domains. In other words, Sec. 3(a) serves only as a dedicated them for CMUs use in scientific and
yardstick which points out what properties are within technological research in the field of agriculture. They
the ancestral domains. It does not confer or recognize have ceased to be alienable public lands. When
any right of ownership over the natural resources to Congress enacted the Indigenous Peoples Rights Act
the indigenous peoples. Its purpose is definitional and (IPRA) or RA 8371in 1997, it provided in Sec. 56 that
not declarative of a right or title. "property rights within the ancestral domains already
existing and/or vested" upon its effectivity "shall be
The specification of what areas belong to the ancestral recognized and respected." In this case, ownership
domains is, to our mind, important to ensure that no over the subject lands had been vested in CMU as early
unnecessary encroachment on private as 1958. Consequently, transferring the lands in 2003
properties outside the ancestral domains will result to the indigenous peoples around the area is not in
during the delineation process. The mere fact that accord with the IPRA. (CMU v. Exec. Sec.,
Sec. 3(a) defines ancestral domains to include the G.R.No.184869, September 21, 2010)
natural resources found therein does not ipso
facto convert the character of such natural resources Presumption in case of absence of proof of private
as private property of the indigenous ownership
peoples. Similarly, Sec. 5 in relation to Sec. 3(a) cannot
be construed as a source of ownership rights of The presumption is that the land belongs to the State.
indigenous peoples over the natural resources simply Thus, where there is no showing that the land had
because it recognizes ancestral domains as their been classified as alienable before the title was issued,
private but community property. any possession thereof, no matter how lengthy,
cannot ripen into ownership. (Republic v. Sayo, G.R.
Further, Sec. 7 makes no mention of any right of No. L-60413, October 31, 1990).
ownership of the indigenous peoples over the natural
resources. In fact, Sec. 7(a) merely recognizes the And all lands not otherwise appearing to be clearly
right to claim ownership over lands, bodies of water within private ownership are presumed to belong to
traditionally and actually occupied by indigenous the State. (Seville v. Natl Devt. Co., G.R. no. 129401,
peoples, sacred places, traditional hunting and fishing February. 2, 2001)

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2014 GOLDEN NOTES 246
NATIONAL ECONOMY AND PATRIMONY

Stewardship Doctrine amendment, alteration or repeal by Congress; All


executive and managing officers must be Filipino
Private property is supposed to be held by the citizens.
individual only as a trustee for the people in general,
who are its real owners. President Estrada signed into law RA 8762, also known
as the Retail Trade Liberalization Act of 2000. It
expressly repealed R.A. 1180, which absolutely
NATIONALIST AND CITIZENSHIP REQUIREMENT
prohibited foreign nationals from engaging in the
PROVISION
retail trade business. R.A. 8762 now allows them to do
under special categories.
Filipinized activities as provided in Art. XII of the
Several members of the House of Representatives,
Constitution
filed a petition assailing the constitutionality of RA
8762. They mainly argue that it violates the mandate
1. Co-production, joint venture or production
of the 1987 Constitution for the State to develop a self-
sharing agreement for exploration, development
reliant and independent national economy effectively
and utilization (EDU) of natural resources:
controlled by Filipinos.
GR: Filipino citizens or entities with 60%
Q: Is the Retail Trade Liberalization Act of 2000
capitalization
constitutional?
XPN: For large-scale EDU of minerals, petroleum
A: Yes. While Sec. 19, Art. II of the 1987 Constitution
and other mineral oils, the President may enter
requires the development of a self-reliant and
into agreements with foreign-owned corporations
independent national economy effectively controlled
involving technical or financial agreements.
by Filipino entrepreneurs; it does not impose a policy
of Filipino monopoly of the economic environment.
NOTE: These agreements refer to service contracts
which involve foreign management and operation The objective is simply to prohibit foreign powers or
provided that the Government shall retain that degree interests from maneuvering our economic policies and
of control sufficient to direct and regulate the affairs of ensure that Filipinos are given preference in all areas
individual enterprises and restrain undesired activities. of development.
(La Bugal-Blaan Tribal Assoc. v. DENR Sec.,G.R. No. In other words, the 1987 Constitution does not rule
127882, December 1, 2004) out the entry of foreign investments, goods, and
services. While it does not encourage their unlimited
2. Use and enjoyment of nations marine wealth entry into the country, it does not prohibit them
within the territory: Exclusively for Filipino either. In fact, it allows an exchange on the basis of
citizens. equality and reciprocity, frowning only on foreign
3. Alienable lands of the public domain: competition that is unfair. The key, as in all economies
a. Only Filipino citizens may acquire not more in the world, is to strike a balance between protecting
than 12 hectares by purchase, homestead or local businesses and allowing the entry of foreign
grant, or lease not more than 500 hectares. investments and services. (Espina v. Zamora, G.R. No.
b. Private corporations may lease not more than 143855, September 21, 2010)
1000 hectares for 25 years renewable for
another 25 years; Q: May an alien acquire property by virtue of a
4. Certain areas of investment: reserved for Filipino purchase made by him and his Filipino wife?
citizens or entities with 60% owned by Filipinos,
although Congress may provide for higher A: No. The fundamental law prohibits the sale to aliens
percentage; of residential land. Sec. 14, Art. XIV of the 1973
5. In the Grant of rights, privileges and concessions Constitution ordains that, "Save in cases of hereditary
covering the national economy and patrimony, succession, no private land shall be transferred or
State shall give preference to qualified Filipinos; conveyed except to individuals, corporations, or
and associations qualified to acquire or hold lands of the
6. Franchise, certificate or any other form of public domain." Thus, assuming that it was his
authorization for the operation of a public utility; intention that the lot in question be purchased by him
only to Filipino citizens or entities with 60% and his wife, he acquired no right whatever over the
owned by Filipinos; property by virtue of that purchase; and in attempting
to acquire a right or interest in land, vicariously and
NOTE: Such franchise, etc., shall neither be exclusive, clandestinely, he knowingly violated the Constitution;
nor for a period longer than 50 years and subject to the sale as to him was null and void.

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247 FACULTY OF CIVIL LAW
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Also, in any event, he had and has no capacity or NOTE: However, as to marine wealth only Filipino citizens
personality to question the subsequent sale of the are qualified. This is also true of natural resources in rivers,
bays, lakes and lagoons, but with allowance for cooperatives.
same property by his wife on the theory that in so
doing he is merely exercising the prerogative of a
husband in respect of conjugal property. To sustain Q: Is the act of the State to enter into a service
such a theory would permit indirect contravention of contract with a foreign owned corporation valid?
the constitutional prohibition. If the property were to
be declared conjugal, this would accord to the alien A: Yes, but subject to the strict limitations in the last
husband a not insubstantial interest and right over two paragraphs of Sec 2. Financial and technical
land, as he would then have a decisive vote as to its agreements are a form of service contract. Such
transfer or disposition. This is a right that the service contacts may be entered into only with respect
Constitution does not permit him to have. (Cheesman to minerals, petroleum, and other mineral oils. The
v. IAC, G.R. No. 74833, January 21, 1991) grant of such service contracts is subject to several
safeguards, among them:
1. That the service contract be crafted in accordance
EXPLORATION, DEVELOPMENT AND UTILIZATION OF
with a general law setting standard of uniform
NATURAL RESOURCES
terms, conditions and requirements;
2. The President be the signatory for the
State policy regarding exploration, development and government; and
utilization of natural resources 3. The President reports the executed agreement to
Congress within thirty days. (La BugalBlaan v.
The exploration, development, and utilization of DENR, G.R. No. 127882, December 1, 2004)
natural resources shall be under the full control and
supervision of the State. The State may directly
FRANCHISES, AUTHORITY AND CERTIFICATES FOR
undertake such activities, or it may enter into co-
PUBLIC UTILITIES
production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or
associations at least 60 per centum of whose capital is Public utility
owned by such citizens. (Sec. 2, Art. XII, 1987
Constitution) A business or service engaged in regularly supplying
the public with some commodity or service of public
NOTE: Sec. 2 speaks of co-production, joint venture, or consequence, such as electricity, gas, water,
production-sharing agreements as modes of exploration, transportation, telephone or telegraph service. To
development, and utilization of inalienable lands; it constitute a public utility, the facility must be
effectively excluded the lease system with respect to mineral necessary for the maintenance of life and occupation
and forest lands. of the residents. As the name indicates, public utility
implies public use and service to the public. (J.G.
Agricultural lands may be the subject of lease.
Summit Holdings v. CA G.R. No. 124293, September 24,
2003)
Exploration, development and utilization of natural
resources Operation of a public utility
Only Filipino citizens and corporations or associations Only Filipino citizens or corporations at least 60% of
at least sixty percent (60%) of whose capital is owned whose capital is Filipino owned are qualified to acquire
by Filipino citizens are qualified to take part in a franchise, certificate or any other form of
exploration, development and utilization of natural authorization. (Sec. 11, Art. XII, 1987 Constitution)
resources. (Sec. 2, Art. XII, 1987 Constitution)
Exclusivity of a public utility franchise
Since natural resources, except agricultural resources
cannot be alienated, they can be explored, developed, A franchise to operate a public utility is not an
or utilized by: exclusive private property of the franchisee. No
1. Direct undertaking of activities by the State or franchisee can demand or acquire exclusivity in the
2. Co-production, joint venture, or production operation of a public utility. Thus, a franchisee cannot
sharing agreements with the State and all under complain of seizure or taking of property because of
the full control and supervision of the State the issuance of another franchise to a competitor.
(Miners Association of the Philippines v. Factoran, (Pilipino Telephone Corporation v. NRC, G.R. No.
G.R. No. 98332, January 16, 1995) 138295, 2003)

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2014 GOLDEN NOTES 248
NATIONAL ECONOMY AND PATRIMONY
NOTE: SC said that Congress does not have the exclusive amendment of the franchise of radio and television
power to issue such authorization. Administrative bodies, stations. (TELEBAP v. COMELEC, G.R. No. 132922, April
e.g. LTFRB, ERB, etc., may be empowered to do so., Franchise 21, 1998)
issued by Congress are not required before each and every
public utility may operate. (Albino v. Reyes, 175 SCRA 264)
Q: May a foreigner who owns substantial
The law has granted certain administrative agencies such
power. (See EO nos. 172 and 202) stockholdings in a corporation engaged in the
advertising industry sit as a treasurer of said
Delegation of authority to grant franchises or similar corporation?
authorizations by the Congress
A: No, because a treasurer is an executive or a
Under the 1987 Constitution, Congress has an explicit managing officer. Sec. 11(2), Art. XVI provides that the
authority to grant a public utility franchise. However, participation of the foreign investors in the governing
it may validly delegate its legislative authority, under bodies of entities shall be limited to their
the power of subordinate legislation, to issue proportionate share in the capital thereof, and all the
franchises of certain public utilities to some managing and executive officers of such entities must
administrative agencies. be citizens of the Philippines.

Administrative agencies may be empowered by the Ownership requirement in business entities engaged
legislature by means of a law to grant franchises or in advertising
similar authorizations.
70% of their equity must be owned by Filipino citizens.
Franchise requirement before one can operate a (Sec. 11(2), Art. XVI, 1987 Constitution)
public utility
Ownership requirement in Mass Media
The Constitution, in no uncertain terms, requires a
franchise for the operation of a public utility. However, It must be wholly owned by Filipino citizens. (Sec.
it does not require a franchise before one can own the 11(1), Art. XVI, 1987 Constitution)
facilities needed to operate a public utility so long as it
does not operate them to serve the public. Ownership requirement in educational institutions

Sec. 11, Art. XII of the Constitution provides that, No 60% of their equity must be owned by Filipino citizens.
franchise, certificate or any other form of (Sec. 4[2], Art. XIV, 1987 Constitution)
authorization for the operation of a public utility shall
be granted except to citizens of the Philippines or to Q: How should the term capital as used in Sec. 11,
corporations or associations organized under the laws Art. XII of the Constitution be construed in
of the Philippines at least sixty per centum of whose determining compliance with the ownership
capital is owned by such citizens, nor shall such requirement?
franchise, certificate or authorization be exclusive
character or for a longer period than fifty years A: The term capital in Sec. 11, Art. XII of the
(Tatad v. Garcia, G.R. No. 114222, April 6, 1995) Constitution refers only to shares of stock entitled to
vote in the election of directors, and, in the present
NOTE: A shipyard is not a public utility. Its nature dictates case, only to common shares and not to the total
that it serves but a limited clientele whom it may choose to outstanding capital stock comprising both common
serve at its discretion. It has no legal obligation to render the and non-voting preferred shares.
services sought by each and every client. (J.G. Summit
Holdings v. CA, G.R. No. 124293, September 24, 2003) Considering that common shares have voting rights
which translate to control, as opposed to preferred
Q: Can the government amend a radio or television shares which usually have no voting rights, the term
franchise to grant free airtime to COMELEC? "capital" in Sec. 11, Art. XII of the Constitution refers
only to common shares. However, if the preferred
A: Yes. All broadcasting, whether by radio or television shares also have the right to vote in the election of
stations, is licensed by the Government. Radio and directors, then the term "capital" shall include such
television companies do not own the airwaves and preferred shares because the right to participate in the
frequencies; they are merely given temporary control or management of the corporation is exercised
privilege of using them. A franchise is a privilege through the right to vote in the election of directors.
subject to amendment, and the provision of BP 881 In short, the term "capital" in Sec. 11, Art. XII of the
granting free airtime to the COMELEC is an

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Constitution refers only to shares of stock that can Conversion of public land to private land thru
vote in the election of directors. (Gamboa v. Sec. of prescription
Finance, G.R.No. 176579, June 28, 2011)
An alienable public land can be converted to private
Requisites for the State to temporarily take over a land through prescription. Such open, continuous,
business affected with public interest exclusive and notorious occupation of the disputed
properties for more than 30 years must, however, be
1. There is national emergency; conclusively established. This quantum of proof is
2. The public interest so requires; necessary to avoid erroneous validation of actually
3. During the emergency and under reasonable fictitious claims or possession over the property in
terms prescribed by it; dispute. (San Miguel Corporation v. CA, GR No. 57667,
4. The State may take over or direct the operation of May 28, 1990)
any privately owned public utility or business
affected with public interest. (Sec. 17, Art. XII, Conversion of alienable public land to private land
1987 Constitution)
Alienable public land held by a possessor, personally
ACQUISITION, OWNERSHIP AND TRANSFER OF or through his predecessors-in-interest, openly,
PUBLIC PRIVATE LANDS continuously and exclusively for the prescribed
statutory period (30 years under The Public Land Act,
Imperium v. Dominium as amended) is converted to private property by the
mere lapse or completion of said period, ipso jure. The
IMPERIUM DOMINIUM land ipso jure ceases to be of the public domain and
Government authority The capacity of the State becomes private property. (Dir. of Lands v. IAC,G.R.
possessed by the State to own and acquire No. 73002, December 29, 1986)
which is appropriately property. It refers to lands
NOTE: What is categorically required by law is open,
embraced in sovereignty held by the government in
continuous, exclusive, and notorious possession and
proprietary character. occupation under a bona fide claim of ownership since June
12, 1945 or earlier, (Republic v. Enciso, G.R. No.
How lands of public domain classified 160145, November 11, 2005 )for 10 years, if the possession
is in good faith, and for 30 years if it is in bad faith.
1. Agricultural
2. Forest or timber Disposition of private lands
3. Mineral lands
4. National parks GR: No private land shall be transferred or conveyed
except to individuals, corporations or associations
Private lands qualified to acquire or hold lands of the public land.

Any land of private ownership. This includes both lands XPNs:


owned by private individuals and lands which are 1. Foreigners who inherit through intestate
patrimonial property of the State or municipal succession;
corporations. 2. Former natural-born citizen may be a transferee
of private lands subject to limitations provided by
Conversion of land of the public domain to private law;
land 3. Ownership in condominium units;
4. Parity right agreement, under the 1935
When it is acquired from the government either by Constitution.
purchase or by grant. (Oh Cho v. Director of Lands, G.R.
No. 48321, August 31, 1946) Q: Can a natural born citizen of the Philippines who
has lost his Philippine citizenship be a transferee of
Requirement for the reclassification or conversion of private lands?
lands of public domain
A: Yes, subject to the limitations imposed by law. Thus,
There must be a positive act of government; mere even if private respondents were already Canadians
issuance of title is not enough. (Sunbeam Convenience when they applied for registration of the properties in
Food v. CA, G.R. No. 50464, January 29, 1990) question, there could be no legal impediment for the
registration thereof, considering that it is undisputed

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that they were formerly natural-born citizens. PRACTICE OF PROFESSION


(Republic v. CA, G.R. No. 108998, August 24, 1984)
State policy on professionals and skilled workers
Non-recognition of native title to natural resources
The sustained development of a reservoir of national
While native title to land or private ownership by talents consisting of Filipino scientists, entrepreneurs,
Filipinos of land by virtue of time immemorial professionals, managers, high-level technical
possession in the concept of an owner was manpower and skilled workers and craftsmen in all
acknowledged and recognized as far back during fields shall be promoted by the State. (Par. 1, Sec. 14,
the Spanish colonization of the Philippines, there was Art. XII, 1987 Constitution)
no similar favorable treatment as regards natural
resources. The unique value of natural resources has Practice of profession in the Philippines
been acknowledged by the State and is the underlying
reason for its consistent assertion of ownership and GR: The practice of all professions in the Philippines
control over said natural resources from the Spanish shall be limited to Filipino citizens.
regime up to the present. (Noblejas, Philippine Law on
Natural Resources, 1961 Revised Ed., p. 6) XPN: In cases provided by law. (Par. 2, Sec. 14, Art. XII,
1987 Constitution)
Q: Is a religious corporation qualified to have lands in
the Philippines on which it may build its church and Regulation of profession or occupation
make other improvements?
The Supreme Court while upholding the principle that
A: No. The mere fact that a corporation is religious the license to practice medicine is a privilege or
does not entitle it to own public land. As held in franchise granted by the government, declared that
Register of Deeds v. Ung Siu Si Temple (G.R. No. L- the power to regulate the exercise of a profession or
6776), land tenure is not indispensable to the free pursuit of an occupation cannot be exercised by the
exercise and enjoyment of religious profession of State or its agents in an arbitrary, despotic or
worship. The religious corporation can own private oppressive manner. (Board of Medicine v. Yasuyuki
land only if it is at least 60% owned by Filipino citizens. Ota, GR No. 166097, July 14,2008)

Qualification of corporation sole to purchase or own The Constitution provides that the practice of all
lands in the Philippines professions in the Philippines shall be limited to
Filipino citizens save in cases prescribed by law. Since
Sec. 113, BP Blg. 68 states that any corporation sole Filipino citizenship is a requirement for admission to
may purchase and hold real estate and personal the bar, loss thereof terminates membership in the
property for its church, charitable, benevolent or Philippine bar and, consequently, the privilege to
educational purposes, and may receive bequests or engage in the practice of law. In other words, the loss
gifts for such purposes. There is no doubt that a of Filipino citizenship ipso jure terminates the privilege
corporation sole by the nature of its Incorporation is to practice law in the Philippines. The practice of law is
vested with the right to purchase and hold real estate a privilege denied to foreigners.
and personal property. It need not therefore be
treated as an ordinary private corporation because The exception is when Filipino citizenship is lost by
whether or not it is so treated as such, the reason of naturalization as a citizen of another country
Constitutional provision involved will, nevertheless, be but subsequently reacquired pursuant to RA 9225. This
not applicable. (Rep. v. IAC., G.R. No. 75042, November is because "all Philippine citizens who become citizens
29, 1988) of another country shall be deemed not to have lost
their Philippine citizenship under the conditions of RA
Lease of private lands by religious corporations 9225. "Therefore, a Filipino lawyer who becomes a
citizen of another country is deemed never to have lost
Under Sec. 1 of PD 471, corporations and associations his Philippine citizenship if he reacquires it in
owned by aliens are allowed to lease private lands up accordance with RA 9225. Although he is also deemed
to 25 years, renewable for a period of 25 years upon never to have terminated his membership in the
the agreement of the lessor and the lessee. Hence, Philippine bar, no automatic right to resume law
even if the religious corporation is owned by aliens, it practice accrues. (Petition for leave to resume practice
may still lease private lands. of law,Benjamin M. Dacanay, B.M. No. 1678,
December 17, 2007)

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A judicial function of a particular commodity. (Agan, Jr. v. PIATCO, G.R.


No. 155001, May 5, 2003)
In the judicial system from which ours has been
evolved, the admission, suspension, disbarment and State policy regarding monopolies
reinstatement of attorneys-at-law in the practice of
the profession and their supervision have been The State shall regulate or prohibit monopolies when
indisputably a judicial function and responsibility. (In the public interest so requires. No combination in
re: Cunanan, et al., 94 Phil. 534(1954) restraint of trade or unfair competition shall be
allowed. (Sec. 19, Art. XII, 1987 Constitution)
Congress may repeal, alter and supplement the rules
promulgated by this court, but the authority and From the wordings of the Constitution, truly then,
responsibility over the admission, suspension, what is brought about to lay the test on whether a
disbarment and reinstatement of attorneys-at-law and given an unlawful machination or combination in
their supervision remain vested in the Supreme Court. restraint of trade is whether under the particular
(Ibid.) circumstances of the case and the nature of the
particular contract involved, such contract is, or is not,
ORGANIZATION AND REGULATION OF against public policy. (Avon v. Luna, G.R. No. 153674,
CORPORATIONS, PRIVATE AND PUBLIC December 20, 2006)

Its purpose is to insulate Congress against pressures NOTE: The phrase unfair foreign competition and trade
practices is not to be understood in a limited legal and
from special interests. To permit the law making body
technical sense but in the sense of anything that is harmful
by special law to provide for the organization or to Philippine enterprises. At the same time, however, the
formation or regulation of private corporations x x x intention is not to protect local inefficiency. Nor is the
would be in effect to offer to it the temptation in many intention to protect local industries from foreign
cases to favor certain groups to the prejudice of others competition at the expense of the consuming public.
or to the prejudice of the interests of the country.
Essence of the provision
Creation of GOCC by Congress
The provision is a statement of public policy on
GOCC may be created or established by special monopolies and on combinations in restraint of trade.
charters in the interest of the common good and Sec. 19 is anti-trust in history and spirit. It espouses
subject to the test of economic viability. (Sec. 14, Art. competition. Only competition which is fair can
XII, 1987 Constitution) release the creative forces of the market. Competition
underlies the provision. The objective of anti-trust law
NOTE: Congress, however, may not create a corporation is to assure a competitive economy based upon the
whose purpose is to compete with a private corporation. belief that through competition producers will strive
to satisfy consumer wants at the lowest price with the
Meaning of in the interest of the public good and sacrifice of the fewest resources. Competition among
subject to the test of economic viability producers allows consumers to bid for goods and
services, and, thus matches their desires with societys
GOCC must show capacity to function efficiently in opportunity costs. Additionally, there is reliance upon
business and that they should not go into activities the operation of the market system (free enterprise)
which the private sector can do better. Moreover, to decide what shall be produced, how resources shall
economic viability is more than financial viability but be allocated in the production process, and to whom
also included capability to make profit and generate various products will be distributed. The market
benefits not quantifiable in financial terms. system relies on the consumer to decide what and how
much shall be produced, and on competition, among
MONOPOLIES, RESTRAINT OF TRADE AND UNFAIR producers who will manufacture it. (Energy Regulatory
COMPETITION Board v. CA G.R. No. 113079, April 20, 2001)

Monopoly Regulation of monopolies

A privilege or peculiar advantage vested in one or Monopolies are not per se prohibited by the
more persons or companies, consisting in the exclusive Constitution but may be permitted to exist to aid the
right (or power) to carry on a particular business or government in carrying on an enterprise or to aid in
trade, manufacture a particular Art., or control the sale the interest of the public. However, because

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monopolies are subject to abuses that can inflict


severe prejudice to the public, they are subjected to a
higher level of State regulation than an ordinary
business undertaking. (Agan, Jr. v. PIATCO, G.R. No.
155001, May 5, 2003)

Allowance of contracts requiring exclusivity

Contracts requiring exclusivity are not per se void.


Each contract must be viewed vis--vis all the
circumstances surrounding such agreement in
deciding whether a restrictive practice should be
prohibited as imposing an unreasonable restraint on
competition. (Avon v. Luna, G.R. No. 153674,
December 20, 2006)

Free enterprise clause v. police power of the State

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, as reflected in Secs.
6 and 19 of Art. XII. (Assoc. of Phil. Coconut Desiccators
v. Phil. Coconut Authority, G.R. No. 110526, February.
10, 1998)

Q: The World Trade Organization (WTO) requires the


Philippines to place nationals and products of
member-countries on the same footing as Filipinos
and local products. Does the WTO agreement violate
Art. II Sec. 19 of the Constitution?

A: No. The WTO agreement does not violate Art. II Sec.


19, nor Secs. 19 and 12 of Art. XII, because these Secs.
should be read and understood in relation to Secs. 1
and 13 of Art. XII, which require the pursuit of trade
policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of
equality and reciprocity. (Taada v. Angara, G.R. No.
118295, May 2, 1997)

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SOCIAL JUSTICE AND HUMAN RIGHTS 4. Urban land reform and housing
5. Health
Goals of social justice under the Constitution 6. Women
7. Role and rights of peoples organization
1. Equitable diffusion of wealth and political power 8. Human rights
for common good;
2. Regulation of acquisition, ownership, use and Factors which must be weighed in regulating the
disposition of property and its increments; and relations between workers and employers
3. Creation of economic opportunities based on
freedom of initiative and self-reliance. (Sec. 1 and Among the factors that must be considered are:
2, Art. XIII, 1987 Constitution) 1. The right of labor to its just share in the fruits of
production
CONCEPT OF SOCIAL JUSTICE 2. The right of enterprises to reasonable returns of
investments, and to expansion and growth.
Social justice
NOTE: It must be remembered, however, that the command
to promote social justice itself might make it necessary to tilt
It is neither communism, nor despotism, nor the balance in favor of underprivileged workers.
atomism, nor anarchy, but the humanization of laws
and the equalization of social and economic force by Provisions of the Constitution on women
the State so that justice in its rational and objectively
secular conception may at least be approximated. 1. The State shall equally protect the life of the
Social justice means the promotion of the welfare of mother and the life of the unborn from
all the people, the adoption by the Government of conception. (Sec. 12, Art II, 1987 Constitution)
measures calculated to insure economic stability of all 2. The State recognizes the role of women in nation-
competent elements of society, through the building, and shall ensure the fundamental
maintenance of a proper economic and social equality before the law of women and men. (Sec.
equilibrium in the interrelations of the members of the 14, Art. II, 1987 Constitution)
community, constitutionally, through the adoption of 3. The State shall protect working women by
measures legally justifiable, or extra-constitutionally, providing safe and healthful working conditions,
through the exercise of powers underlying the taking into account their maternal functions, and
existence of all governments on the time-honored such faculties and opportunities that will enhance
principle of salus populi est supreme lex. (Calalang v. their welfare and enable them to realize their full
Williams, 70 Phil 726, [1940]) potential in the service of the nation. (Sec. 14, Art.
XIII, 1987 Constitution)
Social justice simply means the equalization of
economic, political, and social opportunities with Consultation requirement before urban and rural
special emphasis on the duty of the state to tilt the dwellers can be relocated
balance of social forces by favoring the disadvantaged
in life. The urban and rural dwellers and the communities
where they are to be relocated must be consulted.
Two principal activities, which the State is Otherwise, there shall be no resettlement. (Sec. 15 [2],
commanded to attend to in order to achieve the goals Art. XIII)
of social justice
Peoples organizations
1. The creation of more economic opportunities and
more wealth; and Are bona fide associations of citizens with
2. Closer regulation of the acquisition, ownership, demonstrated capacity to promote the public interest
use, and disposition of property in order to and with identifiable leadership, membership and
achieve a more equitable distribution of wealth structure. (Sec. 15 [2], Art. XIII)
and power.

Aspects of human life covered by Art.XIII

1. Social justice
2. Labor
3. Agrarian and natural resources reform

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SOCIAL JUSTICE AND HUMAN RIGHTS

COMMISSION ON HUMAN RIGHTS guidelines and rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of Court."
That power to cite for contempt, however, should be
Constitutional mandate understood to apply only to violations of its adopted
operational guidelines and rules of procedure essential to
Art. XIII of the 1987 Constitution mandates the carry out its investigatorial powers. (Simon, Jr. v. CHR,G.R.
Congress to give highest priority to the enactment of No.100150, January 5, 1994)
measures that protect and enhance the right of all
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.

Purpose of CHR

As an independent national human rights institution,


the Commission on Human Rights is committed to
ensure the primacy of all human rights to their
protection, promotion and fulfillment, on the basis of
equality and non-discrimination, in particular for those
who are marginalized and vulnerable.

Nature of the CHR

From the 1987 Constitution and the Administrative


Code, it is abundantly clear that the CHR is not among
the class of Constitutional Commissions. (CHR
Employees Assoc. v. CHR, G.R. No. 155336, November
25, 2004)

Absence of fiscal autonomy

The CHR, although admittedly a constitutional


creation is, nonetheless, not included in the genus of
offices accorded fiscal autonomy by either
constitutional or legislative fiat.(Ibid.)

Power to investigate the CHR

The CHR has the power to investigate all forms of


human rights violations involving civil and political
rights and monitor the compliance by the government
with international treaty obligations on human rights.
(Sec. 18, Art. XIII, 1987 Constitution)

NOTE: In essence, the Commissions power is only


investigative. It has no prosecutorial power. For prosecution,
it must rely on the executive department.

Absence of compulsory powers

It may not issue writs of injunction or restraining


orders against supposed violators of human rights to
compel them to cease and desist from continuing their
acts complained of.

NOTE: Regarding its contempt powers, the CHR is


constitutionally authorized to "adopt its operational

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EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, safety and general welfare. Thus, persons who desire
CULTURE, AND SPORTS to engage in the learned professions requiring
scientific or technical knowledge may be required to
Educational institution take an examination as a prerequisite to engaging in
their chosen careers. This regulation assumes
Under the Education Act of 1982, such term refers to particular pertinence in the field of medicine, in order
schools. The school system is synonymous with formal to protect the public from the potentially deadly
education, which "refers to the hierarchically effects of incompetence and ignorance. (PRC v. De
structured and chronologically graded learnings Guzman, GR No. 144681, June 21, 2004)
organized and provided by the formal school system
and for which certification is required in order for the Aspects of education that are Filipinized
learner to progress through the grades or move to the
higher levels." (CIR v. CA, G.R. No. 124043, October 14, 1. Ownership:
1998) a. Filipino Citizens or
b. Corporations or associations where at least
NOTE: It is settled that the term "educational institution," 60% of the capital is owned by Filipino citizens
when used in laws granting tax exemptions, refers to a except those established by religious groups
"...school seminary, college or educational and mission boards;
establishment..." (Ibid.) 2. Control and administration; and
3. Student population (Sec. 4 [2], Art. XIV)
Principal characteristics of education which the State
must promote and protect Note: The Congress may increase Filipino equity
participation in all educational institutions.
1. Quality education
2. Affordable education (Sec. 1, Art. XIV) Official medium of communication and instruction
3. Education that is relevant to the needs of the
people. (Sec. 2 [1], Art. XIV) The official languages are Filipino and, until otherwise
provided by law, English. The regional languages are
Parens Patriae the auxiliary official languages in the regions and shall
serve as auxiliary media of instruction therein. Spanish
The State has the authority and duty to step in where and Arabic shall be promoted on a voluntary and
parents fail to or are unable to cope with their duties optional basis. (Sec. 7, Art. XIV, 1987 Constitution)
to their children.
ACADEMIC FREEDOM
Basis for the requirement that a school or
educational institution must first obtain government Aspect of Academic Freedom
authorization before operating
1. From the standpoint of the educational institution
Such requirement is based on the State policy that - To provide that atmosphere which is most
educational programs and/or operations shall be of conducive to speculation, experimentation and
good quality and, therefore, shall at least satisfy creation;
minimum standards with respect to curricula, teaching 2. From the standpoint of the faculty
staff, physical plant and facilities and administrative a. Freedom in research and in the publication of
and management viability. (Philippine Merchant the results, subject to the adequate
Marine School Inc. v. CA, G.R. No. 112844, June 2, performance of his other academic duties
1995) b. Freedom in the classroom in discussing his
subject less controversial matters which bear
Q: Can the State regulate the right of a citizen to no relation to the subject
select a profession or course of study? c. Freedom from institutional censorship or
discipline, limited by his special position in
A: Yes. While it is true that the Court has upheld the the community
constitutional right of every citizen to select a 3. From the standpoint of the student Right to
profession or course of study subject to fair, enjoy in school the guarantee of the Bill of Rights.
reasonable and equitable admission and academic (Non v. Dames, G.R. No. 89317, May 20, 1990)
requirements, the exercise of this right may be
regulated pursuant to the police power of the State to
safeguard health, morals, peace, education, order,

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EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS

Limitations on academic freedom over Justice Del Castillos explanation on how he


cited the primary sources of the quoted portions and
1. Dominant police power of the State yet arrived at a contrary conclusion to those of the
2. Social Interest of the community authors of the articles supposedly plagiarized.
Beyond this, however, the statement bore certain
Freedoms afforded to educational institutions remarks which raise concern for the Court. It reads:
relating to its right to determine for itself on An extraordinary act of injustice has again been
academic grounds committed against the brave Filipinas who had
suffered abuse during a time of war.
1. Who may teach
2. What may be taught Thus, the Court, in a Show Cause Resolution, directed
3. How shall it be taught Dean Leonon, and several other lawyers from UP Law
4. Who may be admitted to study (Miriam College to show cause, why they should not be disciplined as
Foundation v. CA, G.R. No. 127930, December 15, members of the Bar for violation of Canons 1, 11 and
2000) 13 and Rules 1.02 and 11.05 of the Code of
Professional Responsibility.
Q: Juan delos Santos, et al., students of De La Salle 1. Does the Show Cause Resolution deny
University (DLSU) and College of Saint Benilde are respondents their freedom of expression?
members of the Domingo Lux Fraternity. They 2. Does the Show Cause Resolution violate
lodged a complaint with the Discipline Board of DLSU respondents academic freedom as law
charging Alvin Aguilar,et al. of Tau Gamma Phi professors?
Fraternity with direct assault because of their
involvement in an offensive action causing injuries to A:
the complainants which were the result of a 1. No. A reading of the Show Cause Resolution will
fraternity war. The DLSU-CSB Joint Discipline Board plainly show that it was neither the fact that
found Aguilar et al. guilty and were meted the respondents had criticized a decision of the Court
penalty of automatic expulsion. Was DLSU within its nor that they had charged one of its members of
rights in expelling the students? plagiarism that motivated the said Resolution. It
was the manner of the criticism and the
A: No. The penalty of expulsion imposed by DLSU on contumacious language by which respondents,
private respondents is disproportionate to their deeds. who are neither parties nor counsels in
It is true that schools have the power to instill the Vinuya case, have expressed their opinion in
discipline in their students as subsumed in their favor of the petitioners in the said pending case
academic freedom and that the establishment of for the "proper disposition" and consideration of
rules governing university-student relations the Court that gave rise to said Resolution. The
particularly those pertaining to student discipline, may Show Cause Resolution painstakingly enumerated
be regarded as vital, not merely to the smooth and the statements that the Court considered
efficient operation of the institution but to its very excessive and uncalled for under the
survival. This power does not give them the circumstances surrounding the issuance,
untrammeled discretion to impose a penalty which is publication, and later submission to this Court of
not commensurate with the gravity of the misdeed. If the UP Law facultys Restoring Integrity
the concept of proportionality between the offense Statement.
committed and the sanction imposed is not followed,
an element of arbitrariness intrudes. (DLSU, Inc.v. 2. No. It is not contested that respondents herein
CA,G.R. No. 127980, December 19, 2007) are, by law and jurisprudence, guaranteed
academic freedom and undisputably, they are
Q: The counsel of the losing party in the case of free to determine what they will teach their
Vinuya, et al. v. Exec. Sec filed a Supplemental students and how they will teach. We must point
Motion for Reconsideration in the said Decision, out that there is nothing in the Show Cause
where they posited their charge of plagiarism as one Resolution that dictates upon respondents the
of the grounds for reconsideration of the decision. subject matter they can teach and the manner of
their instruction. Moreover, it is not inconsistent
A statement by the faculty of UP Law on the with the principle of academic freedom for this
allegations of plagiarism and misrepresentation in Court to subject lawyers who teach law to
the SC entitled Restoring Integrity was submitted disciplinary action for contumacious conduct and
by the UP professors. They expressed dissatisfaction speech, coupled with undue intervention in favor

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of a party in a pending case, without observing


proper procedure, even if purportedly done in
their capacity as teachers. (RE: Letter of the UP
Law Faculty, A.M. No. 10-10-4-SC, March 8, 2011)

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PUBLIC INTERNATIONAL LAW Elements of Jus Cogens

CONCEPTS 1. A norm accepted and recognized by international


community of states as a whole
Public International Law (PIL) 2. No derogation is permitted
3. Which can only be modified by a subsequent norm
It is a body of legal principles, norms and processes having the same character
which regulates the relations of States and other
international persons and governs their conduct NOTE: If a treaty at the time of its conclusion, conflicts with
jus cogens, it is void.
affecting the interest of the international community
as a whole.
Norms considered as jus cogens in character
Private International Law (PRIL)
1. Laws on genocide
2. Principle of self-determination
It is that part of the law of each State which
3. Principle of racial non-discrimination
determines whether, in dealing with a factual
4. Crimes against humanity
situation, an event or transaction between private
5. Prohibition against slavery and slave trade, and
individuals or entities involving a foreign element, the
piracy
law of some other State will be recognized.
A treaty or conventional rule may not qualify as a
Erga Omnes
norm of jus cogens character.
An obligation of every State towards the international
Treaty rule binds only States that are parties to it and
community as a whole. All states have a legal interest
even in the event that all States are parties to a treaty,
in its compliance, and thus all States are entitled to
they are entitled to terminate or withdraw from the
invoke responsibility for breach of such an obligation.
treaty.
(Case Concerning The Barcelona Traction, ICJ 1970)
NOTE: A jus cogens norm is characterized as a norm of
NOTE: Such obligations derive, for example, in contemporary
general international law which by its nature is binding on
international law, from the outlawing of acts of aggression,
every state.
and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including
protection from slavery and racial discrimination. Some of Q: Malaya Lolas is a non-stock, non-profit
the corresponding rights of protection have entered into the organization established for the purpose of providing
body of general international law others are conferred by aid to the victims of rape by Japanese military forces
international instruments of universal or quasi universal in the Philippines during the Second World War. They
character. (Romulo v. Vinuya GR. 162230, April 29, 2010) have approached the Executive Department through
the DOJ, DFA, and OSG, requesting assistance in filing
Examples of obligations erga omnes a claim against the Japanese officials and military
officers who ordered the establishment of the
1. Outlawing of acts of aggression comfort women stations in the Philippines. But
2. Outlawing of genocide officials of the Executive Department declined to
3. Basic human rights, including protection from assist the petitioners, and took the position that the
slavery and racial discrimination individual claims of the comfort women for
compensation had already been fully satisfied by
Jus Cogens norm Japans compliance with the Peace Treaty between
the Philippines and Japan. May we force the
Literally means compelling law. A norm accepted and government to pursue the claims of comfort women
recognized by the international community of States as under the doctrine of jus cogens?
a whole as a norm from which no derogation is
permitted and which can be modified only by a A: No. The Philippines is not under any international
subsequent norm of general international law having obligation to espouse petitioners claims. A State may
the same character. (Art. 53, Vienna Convention on the exercise diplomatic protection by whatever means
Law of Treaties) and to whatever extent it thinks fit, for it is its own
right that the State is asserting. Should the natural or
legal person on whose behalf it is acting consider that
their rights are not adequately protected, they have no

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remedy in international law. All they can do is resort to Monism
national law, if means are available, with a view to
furthering their cause or obtaining redress. The Both international law and domestic law are part of a
municipal legislator may lay upon the State an single legal order; international law is automatically
obligation to protect its citizens abroad, and may also incorporated into each nations legal system and that
confer upon the national a right to demand the international law is supreme over domestic law.
performance of that obligation, and clothe the right
with corresponding sanctions. However, all these Dualism
questions remain within the province of municipal law
and do not affect the position internationally. Affirms that the international law and municipal law
are distinct and separate; each is supreme in its own
The State, therefore, is the sole judge to decide sphere and level of operation.
whether its protection will be granted, to what extent
it is granted, and when will it cease. It retains, in this International law v. Municipal law under the Theory
respect, a discretionary power the exercise of which of Dualism
may be determined by considerations of a political or INTERNATIONAL LAW MUNICIPAL LAW
other nature, unrelated to the particular case. Adopted by states as a Issued by a political
common rule of action superior for observance
Even if this court sidesteps the question of whether jus Regulates relation of Regulates relations of
cogens norms existed in 1951, Vinuya et al have not state and other individuals among
deigned to show that the crimes committed by the international persons themselves or with
Japanese army violated jus cogens prohibitions at the their own states
time the Treaty of Peace was signed, or that the duty Derived principally from Consists mainly of
to prosecute perpetrators of international crimes is an treaties, international enactments from the
erga omnes obligation or has attained the status of jus customs and general lawmaking authority of
cogens. (Vinuya v. Romulo G.R. No. 162230, April 28, principles of law each state
2010) Resolved thru state-to- Redressed thru local
state transactions administrative and
Ex aequo et bono judicial processes
Collective responsibility Breach of which entails
A judgment based on considerations of fairness, not because it attaches individual responsibility
on considerations of existing law, that is, to simply directly to the state and
decide the case based upon a balancing of the not to its nationals
equities.
Doctrine of Incorporation
NOTE: Art. 38 of the Statute of the International Court of
Justice, which provides the sources of International Law,
Rules of international law form part of the law of the
does not prejudice the power of the Court to decide a case
ex aequo et bono if the parties agree thereon. The power to land and no further legislative action is needed to
decide ex aequo et bono involves elements of compromise make such rules applicable in the domestic sphere.
and conciliation whereas equity is applied as a part of The doctrine decrees that rules of international law
normal judicial function. are given equal standing with, but are not superior to,
national legislative enactments.
INTERNATIONAL AND NATIONAL LAW
Doctrine of Transformation
Grand divisions of PIL
The generally accepted rules of international law are
1. Laws of Peace Govern normal relations between not per se binding upon the state but must first be
States in the absence of war. embodied in legislation enacted by the lawmaking
2. Laws of War Govern relations between hostile body and so transformed into municipal law.
or belligerent states during wartime.
3. Laws of Neutrality Govern relations between a Types of Transformation Theories
non-participant State and a participant State
during wartime or among non-participating 1. Hard Transformation Theory Only legislation can
States. transform International Law into domestic law.
Courts may apply International Law only when
authorized by legislation.

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2. Soft Transformation Theory Either a judicial or International Court of Justice)
legislative act of a state can transform
International Law into domestic law. NOTE: Sources of law refer to norms derived from
international conventions on treaties, customs, and general
NOTE: Municipal laws are not subject to judicial notice principles of law. The distinctive character of these norms is
before international tribunals. Municipal laws are only that they are created or they acquire binding effect through
evidence of conduct attributable to the State concerned, the methods pointed above.
which create international responsibility, like legislative
measures or court decisions. They are not subject to judicial Secondary Sources
notice and are only treated as mere facts which are required
to be proven. 1. Decisions of international tribunals; and
2. Teachings of the most highly qualified publicists of
Pacta sunt servanda various nations.

International agreements must be performed in good Formal sources v. Material sources


faith. A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on Formal sources refer to the various processes by which
the parties. rules come into existence while material sources refer
to the substance and the content of the obligation.
Principle of Auto-Limitation
NOTE: The material sources supplies the substance of the
Any State may by its consent, express or implied, rule to which the formal sources gives the force and nature
submit to a restriction of its sovereign rights. There of law. Thus, custom as a norm creating process is a formal
may thus be a curtailment of what otherwise is a source of law.
plenary power. (Reagan v. CIR, G.R. No.L-26379,
December 27, 1969) Hard law

Correlation of Reciprocity and the Principle of Auto- Means binding laws. To constitute law, a rule,
Limitation instrument or decision must be authoritative and
prescriptive. In international law, hard law includes
When the Philippines enters into treaties, necessarily, treaties or international agreements, as well as
these international agreements may contain customary laws. These instruments result in legally
limitations on Philippine sovereignty. The enforceable commitments for countries (states) and
consideration in this partial surrender of sovereignty other international subjects.
is the reciprocal commitment of other contracting
States in granting the same privilege and immunities Soft law
to the Philippines.
Means commitments made by negotiating parties that
NOTE: For example, this kind of reciprocity in relation to the are not legally binding. By implication, those set of
principle of auto-limitation characterizes the Philippine international customary rules, laws and customs which
commitments under WTO-GATT. This is based on the do not carry any binding effect whatsoever or impose
Constitutional provision that the Philippines "adopts the no obligation at all to states for its compliance.
generally accepted principles of international law as part of
the law of the land and adheres to the policy of cooperation
Types of treaties or international conventions
and amity with all nations." (Tanada v. Angara,
G.R.No.118295, May 2, 1997)
1. Contract treaties (Traite contract)
2. Law making treaty (Traite loi)
SOURCES OF PUBLIC INTERNATIONAL LAW
Contract treaties
Primary Sources
Bilateral arrangements concerning matters of
1. International conventions, whether general or
particular or special interest to the contracting parties.
particular, establishing rules expressly recognized
They are sources of particular international law but
by the contesting state
may become primary sources of public international
2. International custom, as evidence of a general
law when different contract treaties are of the same
practice accepted as law; and
nature, containing practically uniform provisions, and
3. The general principles of law recognized by
are concluded by a substantial number of States.
civilized nations; (Art. 38(1), Statute of the

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Law-making treaties SUBJECTS OF INTERNATIONAL LAW

Treaties which are concluded by a large number of International Community


States for purposes of:
1. Declaring, confirming, or defining their It is the body of juridical entities which are governed
understanding of what the law is on a particular by the law of nations. Under the modern concept, it is
subject; composed not only of States but also of such other
2. Stipulating or laying down new general rules for international persons such as the UN, the Vatican City,
future international conduct; and colonies and dependencies, mandates and trust
3. Creating new international institutions. territories, international administrative bodies,
belligerent communities and even individuals.
NOTE:
GR: Only the parties are bound by treaties and Subject of international law
international conventions.
An entity with the capacity of possessing international
XPN: Treaties may be considered a direct source of
international law when concluded by a sizable number rights and duties and of bringing international claims.
of States, and is reflective of the will of the family of
nations. The subjects of international law

Elements of international custom 1. Direct subjects


a. States;
1. General practice, characterized by uniformity and b. Colonies and dependencies;
consistency; c. mandates and trust territories; belligerent
2. Opinio juris, or recognition of that practice as a communities;
legal norm and therefore obligatory; and d. The Vatican;
3. Duration e. The United Nations; international
administrative bodies; and
Period of time in the formation of customary norms f. To a certain extent, individuals.

No particular length of time is required for the 2. Indirect subjects


formation of customary norms. What is required is that a. International organizations;
within the period in question, short though it may be, b. Individuals; and
State practice, including that of States whose interest c. Corporations.
are specially affected, should have extensive and
virtually uniform and in such a way as to show a 3. Incomplete subjects
general recognition that a rule of law or legal a. Protectorates;
obligation is involved. b. Federal states;
c. Mandated and trust territories.
Requisites to be a highly qualified publicist
Objects of international law
1. His writings must be fair and impartial
representation of law; A person or thing in respect of which rights are held
2. An acknowledged authority in the field. and obligations assumed by the subject.

Binding effect of international customs Subject v. Object of International Law

GR: Dissenting States are bound by international SUBJECT OBJECT


customs. Entity that has rights and Person or thing in
responsibilities under respect of which rights
XPN: If they had consistently objected to it while the that law are held and obligations
project was merely in the process of formation. assumed by the subject
Dissent, however protects only the dissenter and does Has international Not directly governed
not apply to other States. A State joining the personality that it can by the rules of
international law system for the first time after a directly assert rights and international law
practice has become customary law is bound by such can be held responsible
practice. under the law of nations

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It can be a proper party Its rights are received It states that the disappearance of any of the elements
in transactions involving and its responsibilities of statehood would cause the extinction of the State,
the application of the imposed indirectly but mere changes as to one or more of the elements
law of nations among through the would not necessarily, as a rule, bring about such
members of instrumentality of an extinction. Despite such changes, the State continues
international intermediate agency to be an international person.
communities
Q: If State sovereignty is said to be absolute, how is it
NOTE: Under the traditional concept, only states are related to the independence of other States and to
considered subjects of international law. However, under the their equality on the international plane?
contemporary concept, individuals and international
organizations are also subjects because they have rights and A: From the standpoint of the national legal order,
duties under international law.
State sovereignty is the supreme legal authority in
relation to subjects within its territorial domain. This is
State
the traditional context in referring to sovereignty as
absolute. However, in international sphere,
It is a community of persons, more or less numerous,
sovereignty realizes itself in the existence of a large
permanently occupying a definite portion of territory,
number of sovereignties, such that there prevails in
independent of external control, and possessing an
fact co-existence of sovereignties under conditions of
organized government to which the great body of
independence and equality.
inhabitants render habitual obedience.
State sovereignty as defined in international law
Elements of a State under the Montevideo
Convention on the Rights and Duties of States
It is the right to exercise in a definite portion of the
globe the functions of a State to the exclusion of
1. A permanent population (people) An aggregate
another State. Sovereignty in the relations between
of individuals of both sexes, who live together as a
States signifies independence. Independence in regard
community despite racial or cultural differences;
to a portion of the globe is the right to exercise therein
2. A defined territory Fixed portion of the earths
to the exclusion of any other State, the functions of a
surface which the inhabitants occupy;
State. (Island of Palmas case: USA v. the Netherlands)
3. Government The agency through which the will
of the state is formulated, expressed and realized;
Fundamental rights of a State
and
4. Capacity to enter into relations with other states
It consists of the Right of:
(independence/sovereignty) The power of a
1. Existence and self-preservation
state to manage its external affairs without
2. Sovereignty and independence
direction or interference from another state. (Art.
3. Equality
1, Montevideo Convention on the Rights and
4. Property and jurisdiction
Duties of States)
5. Diplomatic in tercourse
Q: Is recognition an element of state?
International Organization
A: No. The political existence of the state is
It is a body created by sovereign states and whose
independent of recognition by the other states. Even
functioning is regulated by international law, not the
before recognition, the state has the right to defend its
law of any given country. They have functional
integrity and independence to provide for its
personality which is limited to what is necessary to
conservation and prosperity, and consequently to
carry out their functions as found in the instruments of
organize itself as it sees fit, to legislate upon its
the organization.
interests, administer its services, and to define the
jurisdiction and competence of its courts. The exercise NOTE: The auxiliary status of Red Cross Society means that it
of these rights has no other limitation than the is at one and the same time a private institution and a public
exercise of the rights of other states according to service organization because the very nature of its work
international law. (Art. 3, Montevideo Convention on implies cooperation with the state. The PNRC, as a National
the Rights and Duties of States) Society of the International Red Cross and Red Crescent
Movement, can neither be classified as an instrumentality
Principle of State Continuity of the state, so as not to lose its character of neutrality as
well as its independence, nor strictly as a private corporation

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since it is regulated by international humanitarian law and is powers that go beyond anything ever granted by the
treated as an auxiliary of the state. (Liban v. Gordon, G.R. Constitution to any local or regional government. It
175352, January 18, 2011) also implies the recognition of the associated entity as
a state. The Constitution, however, does not
Association contemplate any state in this jurisdiction other than
the Philippine State, much less does it provide for a
It is formed when two states of unequal power transitory status that aims to prepare any part of
voluntarily establish durable links. In the basic model, Philippine territory for independence.
one state, the associate, delegates certain
responsibilities to the other, the principal, while Even assuming arguendo that the MOA-AD would not
maintaining its international status as a state. Free necessarily sever any portion of Philippine territory,
association represents a middle ground between the spirit animating it which has betrayed itself by its
integration and independence. use of the concept of association runs counter to the
national sovereignty and territorial integrity of the
NOTE: Republic. (Prov. of North Cotabato v. The Govt. of the
Example: Republic of the Marshall Islands and the Federated
Rep. of the Philippines, G.R. No. 183591, Ocotber 14,
States of Micronesia formerly part of the U.S. Administered
2008)
Trust Territory of the Pacific Islands.

The associated state arrangement has usually been used as a BJE as a state
transitional device of former colonies on their way to full
independence. The BJE is a state in all but name as it meets the criteria
of a state laid down in the Montevideo Convention
Example: Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. namely, a permanent population, a defined territory, a
Lucia, St. Vincent and Grenada. government and a capacity to enter into relations with
other states.
Q: Formal peace talks between the Philippine
Government and MILF resulted to the crafting of the Even assuming that the MOA-AD would not necessarily
GRP-MILF Tripoli Agreement on Peace (Tripoli sever any portion of Philippine Territory, the spirit
Agreement 2001) which consists of three (3) aspects: animating it which has betrayed itself by its use of
a.) security aspect; b.) rehabilitation aspect; and c.) the concept of association runs counter to the
ancestral domain aspect. national sovereignty and territorial integrity of the
Republic. (Prov. of North Cotabato v. The Govt. of the
Various negotiations were held which led to the Rep. of the Philippines, G.R. No. 183591, October 14,
finalization of the Memorandum of Agreement on 2008)
the Ancestral Domain (MOA-AD). In its body, it grants
the authority and jurisdiction over the Ancestral Internal self-determination v. External self-
Domain and Ancestral Lands of the Bangsamoro to determination
the Bangsamoro Juridical Entity (BJE). The latter, in
addition, has the freedom to enter into any economic A distinction should be made between the right of
cooperation and trade relation with foreign internal and external self-determination. The
countries. recognized sources of international law establish that
the right to self-determination of a people is normally
The MOA-AD further provides for the extent of the fulfilled through internal self-determination a
territory of the Bangsamoro. With regard to peoples pursuit of its political, economic, social and
governance, on the other hand, a shared cultural development within the framework of an
responsibility and authority between the Central existing State. A right to external self-determination
Government and BJE was provided. The relationship arises in only the most extreme cases and, even then,
was described as associative. Does the MOA-AD under carefully defined circumstances.
violate the Constitution and the laws?
External self-determination can be defined as the
A: Yes. The provisions of the MOA indicate that the establishment of a sovereign and independent State,
parties aimed to vest in the BJE the status of an the free association or integration with an
associated state or, at any rate, a status closely independent State or the emergence into any other
approximating it. political status freely determined by a people which
constitute modes of implementing the right of self-
The concept of association is not recognized under the determination by that people. (Prov. of North Cotabato
present Constitution. Indeed, the concept implies v. The Govt. of the Rep. of the Philippines, G.R. No.

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183591, October 14, 2008) alterations to the demographic composition of the
Occupied Palestinian Territory resulting from the
NOTE: The peoples right to self-determination does not construction of the wall as it is contributing to the
extend to a unilateral right of secession. departure of Palestinian population from certain
areas. That construction, along with measures taken
Right to internal self-determination of indigenous previously, thus severely impedes the exercise by the
peoples Palestinian people of its right to self-determination,
and is therefore a breach of Israels obligation to
Indigenous peoples situated within States do not have respect that right. (ICJ Advisory Opinion on Legal
a general right to independence or secession from Consequences of the Construction of a Wall in the
those states under international law, but they do have Occupied Palestinian Territory, July 9, 2004)
the right amounting to the right to internal self-
determination. Such right is recognized by the UN Rules on succession of States
General Assembly by adopting the United Nations
Declaration on the rights of Indigenous Peoples 1. As to territory The capacities, rights and duties
(UNDRIP). (Prov. of North Cotabato v. The Govt. of the of the predecessor State with respect to that
Rep. of the Philippines, G.R. No. 183591, October 14, territory terminate and are assumed by the
2008) successor State.
2. As to State property The agreement between
NOTE: The UN DRIP, while upholding the right of indigenous the predecessor and the successor State govern;
peoples to autonomy, does not obligate States to grant
otherwise:
indigenous peoples the near independent status of an
a. Where a part of the territory of a State
associated state. There is no requirement that States now
guarantee indigenous peoples their own police and internal becomes part of the territory of another
security force, nor is there an acknowledgement of the right State, property of the predecessor State
of indigenous peoples to the aerial domain and atmospheric located in that territory passes to the
space. But what it upholds is the right of indigenous peoples successor State.
to the lands, territories and resources, which they have b. Where a State is absorbed by another State,
traditionally owned, occupied or otherwise used or acquired. property of the absorbed State, wherever
(Prov. of North Cotabato v. The Govt. of the Rep. of the located, passes to the absorbing State.
Philippines, G.R. No. 183591, October 14, 2008)
c. Where a part of a State becomes a separate
State, property of the predecessor State
Q: In 1947, the UN made the border between Israel located in the territory of the new State
and Palestine known as the Green Line. Following the passes to the new State.
Palestinian Arab violence in 2002, Israel began the 3. As to public debts - Agreement between
construction of the barrier that would separate West predecessor and successor State govern;
Bank from Israel. Palestinians insisted that the fence otherwise:
is an Apartheid fence designed to de facto annex a. Where a part of the territory of a State
the West Bank of Israel. The case was submitted to becomes part of the territory of another
the ICJ for an advisory opinion by the General State, local public debt and the rights and
Assembly of the United Nations under resolution ES- obligations of the predecessor State under
10/14. Did Israel undermine the right of self- contracts relating to that territory are
determination of the people of Palestine when it transferred to the successor State.
created the wall? b. Where a State is absorbed by another State,
public debt and the rights and obligations
A: Yes. Construction of the wall severely impedes the under contracts of the absorbed State pass to
exercise by the Palestinian people of its right to self- the absorbing State.
determination. c. Where a part of a State becomes a separate
State, local public debt and the rights and
The existence of a Palestinian people is no longer in obligations of the predecessor State under
issue. Such existence has moreover been recognized contracts relating to that territory are
by Israel in the exchange of letters. The Court considers transferred to the successor State.
that those rights include the right to self- 4. As to treaties
determination, as the General Assembly has moreover a. When part of the territory of a State becomes
recognized on a number of occasions. The route the territory of another State, the
chosen for the wall gives expression in loco to the international agreements of the predecessor
illegal measures taken by Israel with regard to State cease to have effect in respect of the
Jerusalem and the settlements. There is also of further territory and international agreements of the

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successor State come into force there.
(Moving Treaty or Moving Boundaries Rule There being no change of sovereignty during the
- 3rd State may seek relief from the treaty on belligerent occupation of Japan, the political laws of
ground of rebus sic stantibus) the occupied territory are merely suspended, subject
b. When a State is absorbed by another State, to revival under jus postliminium upon the end of the
the international agreements of the absorbed occupation. In both cases, however, non-political laws,
State are terminated and the international remains effective.
agreements of the absorbing State become
applicable to the territory of the absorbed Status of allegiance during Japanese occupation
State. (Moving Treaty or Moving
Boundaries Rule - 3rd State may seek relief There was no case of suspended allegiance during the
from the treaty on ground of rebus sic Japanese occupation. Adoption of the theory of
stantibus) suspended allegiance would lead to disastrous
c. When a part of a State becomes a new State, consequences for small and weak nations or states,
the new State does not succeed to the and would be repugnant to the laws of humanity and
international agreements to which the requirements of public conscience, for it would allow
predecessor State was a party, unless, invaders to legally recruit or enlist the quisling
expressly or by implication, it accepts such inhabitants of the occupied territory to fight against
agreements and the other party or parties their own government without the latter incurring the
thereto agree or acquiesce. risk of being prosecuted for treason. To allow
d. Pre-existing boundary and other territorial suspension is to commit political suicide.
agreements continue to be binding
notwithstanding. (Utipossidetis rule) NOTE: An inhabitant of a conquered State may be convicted
of treason against the legitimate sovereign committed
Effects of a change of sovereignty on municipal laws during the existence of belligerency. Although the penal
code is a non-political law, it is applicable to treason
committed against the national security of the legitimate
1. Laws partaking of a political complexion are
government, because the inhabitants of the occupied
abrogated automatically territory were still bound by their allegiance to the latter
2. Laws regulating private and domestic rights during the enemy occupation. Since the preservation of the
continue in force until changed or abrogated allegiance or the obligation of fidelity and obedience of a
citizen or subject to his government or sovereign does not
Effect of change of sovereignty when Spain ceded the demand from him a positive action, but only passive attitude
Philippines to the US or forbearance from adhering to the enemy by giving the
latter aid and comfort, the occupant has no power, as a
corollary of the preceding consideration, to repeal or
The effect is that the political laws of the former
suspend the operation of the law of treason.
sovereign are not merely suspended but abrogated.
As they regulate the relations between the ruler and
Succession of government
the ruled, these laws fall to the ground ipso facto
unless they are retained or re-enacted by positive act
The integrity of the original State is not affected as
of the new sovereign. Non-political laws, by contrast,
what takes place is only a change in one of its
continue in operation, for the reason also that they
elements, the government.
regulate private relations only, unless they are changed
by the new sovereign or are contrary to its institutions.
Effects of a change of government
Effect of Japanese occupation to the sovereignty of
1. If the change is peaceful the new government
the US over the Philippines
assumes the rights and responsibilities of the old
government.
Sovereignty is not deemed suspended although acts of
2. If the change was effected thru violence, a
sovereignty cannot be exercised by the legitimate
distinction must be made
authority. Thus, sovereignty over the Philippines
a. Acts of political complexion may be
remained with the US although the Americans could
denounced
not exercise any control over the occupied territory at
b. Routinary acts of mere governmental
the time. What the belligerent occupant took over was
administration continue to be effective.
merely the exercise of acts of sovereignty.

Political laws of the Philippines: Spanish secession to


the US v. Japanese occupation during WWII

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Recognition Estrada Doctrine

It is an act by which a State acknowledges the It involves a policy of never issuing any declaration
existence of another State, government, or a giving recognition to governments and of accepting
belligerent community and indicates its willingness to whatever government is in effective control without
deal with the entity as such under international law. raising the issue of recognition. An inquiry into
legitimacy would be an intervention in the internal
Theories of recognition of a State affairs of another State.

1. Constitutive theory Recognition is the last De jure recognition v. De facto recognition


indispensable element that converts the state
being recognized into an international person. RECOGNITION DE
RECOGNITION DE JURE
2. Declaratory theory Recognition is merely an FACTO
acknowledgment of the pre-existing fact that the Relatively permanent Provisional (e.g.:
state being recognized is an international person. duration of armed
struggle)
Authority to recognize Vests title to properties Does not vest title to
of government abroad properties of
It is a matter to be determined according to the government abroad
municipal law of each State. In the Philippines, it is the Brings about full Limited to certain
President who determines the question of recognition diplomatic relations juridical relations
and his decisions on this matter are considered acts of
state which are, therefore, not subject to judicial Effects of recognition (CIPV)
review. His authority in this respect is derived from his
treaty-making power, his power to send and receive 1. The recognized State acquires Capacity to enter
diplomatic representatives, his military power, and his into diplomatic relations. Recognized State
right in general to act as the foreign policy spokesman acquires capacity to sue in courts of recognizing
of the nation. Being essentially discretionary, the State.
exercise of these powers may not be compelled. 2. Immunity from jurisdiction of courts of law of
recognizing State.
Recognition of State v. Recognition of Government 3. Entitled to receive and demand possession of
Properties situated within the jurisdiction of the
1. Recognition of State Carries with it the recognizing State which are owned by recognized
recognition of government since the former State.--
implies that a State recognized has all the 4. Validity of the acts and decrees of recognized
essential requisites of a State at the time state/ government precluding courts of the
recognition is extended. Once recognition of state recognizing state from passing judgment on the
is accorded, it is generally irrevocable. legality of the acts or decrees of the recognized
2. Recognition of Government May be withheld state.
from a succeeding government brought about by
violent or unconstitutional means. Belligerency

Requirements for recognition of government Exists when the inhabitants of a State rise up in arms
for the purpose of overthrowing the legitimate
1. The government is stable and effective, with no government or when there is a state of war between
substantial resistance to its authority two states.
2. The government must show willingness and ability
to discharge its international obligations Requisites in recognizing belligerency (OTSW)
3. The government must enjoy popular consent or
approval of the people 1. There must be an Organized civil government
directing the rebel forces.
Tobar or Wilson Doctrine 2. The rebels must occupy a substantial portion of
the Territory of the state.
It precludes recognition to any government coming 3. The conflict between the legitimate government
into existence by revolutionary means so long as the and the rebels must be Serious, making the
freely elected representatives of the people thereof outcome uncertain.
have not constitutionally reorganized the country.

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4. The rebels must be willing and able to observe the NOTE: The State is not obliged to maintain diplomatic
laws of War. relations with other States, as the right of legation is purely
consensual.
Legal consequences of belligerency
If it wants to, a State may shut itself from the rest of the
world, as Japan did until the close of the 19th century.
1. Before recognition, it is the legitimate However, a policy of isolation would hinder the progress of a
government that is responsible for the acts of the State since it would be denying itself of the many benefits
rebels affecting foreign nationals and their available from the international community.
properties. Once recognition is given,
responsibility is shifted to the rebel government. Agents of diplomatic intercourse
2. The legitimate government is bound to observe
the laws and customs of war in conducting the 1. Head of State
hostilities. 2. Foreign secretary or minister
3. From the viewpoint of third States, is to put them 3. Members of diplomatic service
under obligation to observe strict neutrality and 4. Special diplomatic agents appointed by head of
abide by the consequences arising from that the State
position. 5. Envoys ceremonial
4. Recognition puts the rebels under responsibility
to third States and to the legitimate government Diplomatic corps
for all their acts which do not conform to the laws
and customs of war. It is a body consisting of the different diplomatic
representatives who have been accredited to the same
Insurgency v. Belligerency local or receiving State. It is headed by a doyun de
corps, who, by tradition, is the oldest member within
INSURGENCY BELLIGERENCY the highest rank or, in Catholic countries, the papal
A mere initial stage of More serious and nuncio.
war. It involves a rebel widespread and
movement, and is presupposes the existence Functions of a diplomatic mission
usually not of war between 2 or more
recognized. states (1st sense) or actual 1. Represent sending State in receiving State
civil war within a single 2. Protect in receiving State interest of sending State
state (2nd sense). and its nationals
Sanctions to Belligerency is governed by 3. Negotiate with government of receiving State
insurgency are the rules on international 4. Promote friendly relations between sending and
governed by law as the belligerents may receiving States and developing their economic,
municipal law be given international cultural, and scientific relations
Revised Penal Code, personality. 5. Ascertain by all lawful means conditions and
i.e. rebellion. developments in receiving State and reporting
thereon to government of sending State
DIPLOMATIC AND CONSULAR LAW 6. In some cases, represent friendly governments at
their request
Right of legation
Classes of heads of a diplomatic mission
It is the right of the state to send and receive 1. Ambassadors or nuncios accredited to Heads of
diplomatic missions, which enables states to carry on State and other heads of missions of equivalent
friendly intercourse. It is governed by the Vienna rank.
Convention on Diplomatic Relations (1961). 2. Envoys ministers and internuncios accredited to
heads of State.
The exercise of this right is one of the most effective 3. Charge d affaires accredited to ministers of
ways of facilitating and promoting intercourse among foreign affairs.
nations. Through the active right of sending diplomatic
representatives and the passive right of receiving NOTE: The appointment of diplomats is not merely a matter
them, States are able to deal more directly and closely of municipal law for the receiving State is not obliged to
accept a representative who is a persona non grata to it.
with each other in the improvement of their mutual
Indeed, there have been cases when duly accredited
intercourse. diplomatic representatives have been rejected, resulting in
strained relations between the sending and receiving State.

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Persona non grata 7. A diplomatic agent is exempted to give evidence
as a witness.
In international law and diplomatic usage means a 8. Exemption from general duties and taxes
person not acceptable (for reasons peculiar to himself) including custom duties with certain exceptions.
to the court or government to, which it is proposed to 9. Use of flag and emblem of sending State on
accredit him in the character of an ambassador or premises of receiving State.
minister.
Exceptions to the privileges and immunities of
Agreation diplomatic representatives

It is a practice of the States before appointing a 1. Any real action relating to private immovables
particular individual to be the chief of their diplomatic situated in the territory receiving State unless the
mission in order to avoid possible embarrassment. It envoy holds the property in behalf of the sending
consists of two acts: State
1. The inquiry, usually informal, addressed by the 2. Actions relating to succession where diplomatic
sending State to the receiving State regarding the agent is involved as executor, administrator, heirs
acceptability of an individual to be its chief of or legatee as a private person and not on behalf
mission; and of the sending State
2. The agreement, also informal, by which the 3. An action relating to any professional or
receiving State indicates to the sending State that commercial activity exercised by the diplomatic
such person, would be acceptable. agent in the receiving State outside his official
functions
Letter of credence
Modes of waiving immunity
It is the document by which the envoy is accredited by
the sending State to the foreign State to which he is The waiver of diplomatic immunity and privileges may
being sent. It designates his rank and the general be made expressly by the sending State. It may also be
object of his mission, and asks that he be received done impliedly, as when the person entitled to the
favorably and that full credence be given to what he immunity from jurisdiction commences litigation in the
says on behalf of his State. local courts and thereby opens himself to any
counterclaim directly connected with the principal
Letter Patent claim.

The appointment of a consul is usually evidenced by a NOTE: Waiver of immunity from jurisdiction with regard to
commission, known sometimes as letter patent or civil and administrative proceedings shall not be held to
letredprovision, issued by the appointing authority of mean implied waiver of the immunity with respect to the
execution of judgment, for which a separate waiver shall be
the sending State and transmitted to the receiving
necessary.
State through diplomatic channels.
Nature of diplomatic immunity
Privileges and immunities of diplomatic
representatives
Diplomatic immunity is essentially a political question
and the courts should refuse to look beyond the
1. Personal inviolability Members of diplomatic
determination by the executive branch.
mission shall not be liable for any form of arrest or
imprisonment
Besides the head of the mission, diplomatic
2. Inviolability of premises Premises, furnishings
immunities and privileges are also enjoyed by the
and means of transport shall be immune from
diplomatic suite or retinue, which consists of the
search, seizure, attachment or execution.
official and non-official staff of the mission. The official
3. Archives or documents shall be inviolable
staff is made up of the administrative and technical
4. Diplomatic agents are immune from criminal, civil
personnel of the mission, including those performing
or administrative liability.
clerical work, and the member of their respective
5. Receiving State shall protect official
families. The non-official staff is composed of the
communication and official correspondence of
household help, such as the domestic servants,
diplomatic mission.
butlers, and cooks and chauffeurs employed by the
6. Receiving State shall ensure all members of
mission.
diplomatic mission freedom of movement and
travel.

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NOTE: As a rule, however, domestic servants enjoy consul general for New York, he cannot start
immunities and privileges only to the extent admitted by the performing his functions unless the President of the
receiving State and insofar as they are connected with the United States issues an exequatur to him.
performance of their duties.
Grounds for termination of diplomatic relations
Q: The U.S. Ambassador from the Philippines and the under municipal law (RADAR)
American Consul General also in the Philippines
quarreled in the lobby of Manila Hotel and shot each 1. Resignation
other. May Philippine courts take jurisdiction over 2. Accomplishment of the purpose
them for trial and punishment for the crime they may 3. Death
have committed? 4. Abolition of the office
5. Removal
A: The Ambassador is immune from prosecution for all
crimes committed by him whether officially or in his Grounds for termination of diplomatic relation under
private capacity. The consul is immune from criminal international law
prosecution only for acts committed by him in
connection with his official functions. 1. War Outbreak between the sending and the
receiving States.
Q: The Ambassador of State X to the Philippines 2. Extinction of either the sending State or the
bought, in the name of his government, two houses receiving State.
and lots at Forbes Park, Makati. One house is used as 3. Recall Demanded by the receiving State when
the chancery and residence of the ambassador, and the foreign diplomat becomes persona non grata
the other as quarters for nationals of State X who are
studying in De La Salle University. The Registrar of NOTE: The termination of diplomatic relations does not
Deeds refused to register the sale and to issue terminate consular relations between the sending and
Transfer Certificates of Title in the name of State X on receiving States.
the ground of the prohibition of the Constitution
against the alienation of lands in favor of aliens. Is his Consuls belong to a class of State agents distinct from that of
refusal justified? diplomatic officers. They do not represent their State in its
relations with foreign States and are not intermediaries
through whom matters of State are discussed between
A: No. The prohibition in the Constitution against
governments.
alienation of lands in favor of aliens does not apply to
alienation of the same in favor of foreign governments Consuls look mainly after the commercial interest of their
to be used as chancery and residence of its diplomatic own State in the territory of a foreign State. They are not
representatives. The receiving State is under clothed with diplomatic character and are not accredited to
obligation to facilitate the acquisition on its territory, the government of the country where they exercised their
in accordance with its laws, by the sending State of consular functions; they deal directly with local authorities.
premises necessary for its mission, or to assist the
latter in obtaining accommodation in some other way. Diplomats v. Consuls
Therefore, the refusal of the Register of Deeds to
register the sale and the issuance of TCT in the name Diplomats are concerned with political relations of
of State X is unjustified. States while consuls are not concerned with political
matters. The latter attend rather to administrative and
However, in so far as the house and lot to be used as economic issues.
quarters of the nationals of State X who are studying
in De La Salle University are concerned, the Register of Kinds of consul
Deeds correctly refused registration. Here, the
prohibition in the constitution against the transfer of 1. Consulesmissi Professional or career consuls
properties to parties other than the Filipino citizens or who are nationals of the sending State and are
corporation 60% of the capital of which is owned by required to devote their full time to the discharge
such citizens should be followed. of their duties
2. Consuleselecti May or may not be nationals of
Exequatur the sending State and perform their consular
functions only in addition to their regular callings
An authorization from the receiving State admitting
the head of a consular post to the exercise of his NOTE: Examples of regular callings include acting as notary,
functions. For example, if the Philippines appoints a civil registrar and similar administrative capacities and
protecting and assisting the nationals of the sending State.

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Duties of consuls NOTE: With respect to expropriation by the receiving State,
steps shall be taken to avoid impeding the performance of
1. Protection of the interests of the sending State consular functions, and prompt, adequate and effective
compensation shall be paid by the sending State.
and its nationals in the receiving State.
2. Promotion of the commercial, economic, cultural,
Diplomatic immunity v. Consular immunity
and scientific relations of the sending and
receiving States.
DIPLOMATIC CONSULAR
3. Observes the conditions and developments in the
Premises of the mission Consular premises
receiving State and report the same to the sending
includes the building or includes the buildings or
State.
parts of building and parts of buildings and
4. Issuance of passports and other travel documents
the land irrespective of the land irrespective of
to nationals of the sending State and visas or
the ownership used for ownership used
appropriate documents to persons wishing to
the purpose of the exclusively for the
travel to the sending State.
mission including the purposes of consular
5. Supervision and inspection of vessels and aircraft
residence of the head of posts
of the sending State.
mission
Sources of authority of consuls GR: The agents of the GR: The agents of the
receiving state may not receiving state may not
1. Letter patent or letter de provision Which is the enter the premises of enter the consular
commission issued by the sending State, and the mission premises
2. Exequatur Which is the permission given them
by the receiving State to perform their functions XPN: Consent of the XPN: Consent of the
therein. head of the mission head of the consular
post
Immunity of consuls Consent is assumed in
case of fire or other
Consuls enjoy their own immunities and privileges but disasters requiring
not to the same extent as those enjoyed by the prompt protective action
diplomats. Like diplomats, consuls are entitled to: Personal baggage of a Consular bag shall not be
1. Inviolability of their correspondence, archives and diplomatic agent shall opened
other documents not be opened It may be requested that
2. Freedom of movement and travel the bag be opened in
3. Immunity from jurisdiction for acts performed in their presence by an
their official capacity; and authorized
4. Exemption from certain taxes and customs duties representative of the
receiving state if they
Liabilities of consuls have serious reason to
believe that the bag
1. Arrest and punishment for grave offenses; and contains objects of other
2. May be required to give testimony, subject to articles, documents,
certain exceptions. correspondence or
articles
NOTE: Members of a consular post are under no obligation Not obliged to give May be called upon to
to give evidence on the following situations: evidence as a witness attend as a witness; if
a. Concerning matters connected with the exercise of declined, no coercive
their functions measure or penalty may
b. To produce official correspondence and documents be applied
c. To give evidence as expert witness with regard to the
law of the sending State
Differences in the privileges or immunities of
diplomatic envoys and consular officers from the civil
Immunity of consular offices
and criminal jurisdiction of the receiving State
1. With respect to that part where the consular work
A diplomatic agent shall enjoy immunity from the
is being performed; and
criminal jurisdiction of the receiving State. He shall
2. May be expropriated by the receiving state for
also enjoy immunity from its civil and administrative
purposes of national defense or public utility.
jurisdiction except in the case of:

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1. A real action relating to private immovable 3. Without the attendance of duress, fraud, mistake,
property situated in the territory of the receiving or other Vice of consent
State, unless he holds it on behalf of the sending 4. On any Lawful subject-matter
State for the purpose of the mission; 5. In accordance with their respective Constitutional
2. An action relating to succession in which the process
diplomatic agent is involved as executor,
administrator, heir or legatee as private person Usual steps in the treaty-making process
and not on behalf of the sending State;
3. An action relating to any professional or 1. Negotiation Conducted by the parties to reach
commercial activity exercised by the diplomatic an agreement on its terms.
agent in the receiving State outside of his official 2. Signature The signing of the text of the
functions. (Art. 32, Vienna Convention of instrument agreed upon by the parties.
Diplomatic Relations) 3. Ratification The act by which the provisions of a
treaty are formally confirmed and approved by
NOTE: A consular officer does not enjoy immunity from the the State.
criminal jurisdiction of the receiving State and are not 4. Accession A State can accede to a treaty only if
amenable to the jurisdiction of the judicial or administrative invited or permitted to do so by the contracting
authorities of the receiving State in respect of acts
parties. Such invitation or permission is usually
performed in the exercise of consular functions.
given in the accession clause of the treaty itself.
However, this does not apply in respect of a civil action 5. Exchange of instruments of ratification;
either: 6. Registration with the United Nations.
1. Arising out of a contract concluded by a consular officer
in which he did not enter expressly or impliedly Q: A petition for mandamus was filed in the SC to
2. By a third party for damages arising from an accident in compel the Office of the Executive Secretary and the
the receiving State caused by a vehicle, vessel or Department of Foreign Affairs to transmit (even
aircraft. (Arts. 41 and 43, Vienna Convention on the without the signature of the President) the signed
Consular Relations)
copy of the Rome Statute of the International
Criminal Court (ICC) to the Senate of the Philippines
Grounds for termination of consular office for its concurrence or ratification - in accordance with
Sec. 21, Art. VII of the 1987 Constitution.
1. Death
2. Recall Petitioners contend that ratification of a treaty,
3. Dismissal under both domestic law and international law, is a
4. Notification by the receiving State to the sending function of the Senate. That under treaty law and
State that it has ceased to consider as member of customary international law, Philippines has a
the consular staff ministerial duty to ratify the Rome Statute.
5. Withdrawal of his exequatur by the receiving Respondents on the other hand, argued that
State. executive department has no duty to transmit the
6. War - outbreak of war between his home State Rome Statute to the Senate for concurrence. Decide.
and the receiving State.
A: Petitioners interpretation of the Constitution is
TREATIES incorrect. The power to ratify treaties does not belong
to the Senate.
Treaty
It should be emphasized that under the Constitution
It is an international agreement concluded between the power to ratify is vested in the President subject to
States in written form and governed by international the concurrence of the Senate. The President has the
law, whether embodied in a single instrument or in two discretion even after the signing of the treaty by the
or more related instruments and whatever its Philippine representative whether or not to ratify a
particular designation. treaty. The signature of the representative does not
signify final consent, it is ratification that binds the
Essential requisites of a valid treaty (CAV-LC) state to the provisions of the treaty and renders it
effective.
1. Be entered into by parties with the treaty-making
Capacity The role of the Senate is limited only to giving or
2. Through their Authorized representatives withholding its consent, concurrence to the
ratification. It is within the President to refuse to

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submit a treaty to the Senate or having secured its with any other international agreement including
consent for its ratification, refuse to ratify it. Such those concluded with non-members.
decision is within the competence of the President 3. The treaty itself may expressly extend its benefits
alone, which cannot be encroached by this Court via to non-signatory States.
writ of mandamus. (Pimentel v. Executive Secretary, 4. Parties to apparently unrelated treaties may also
G.R. No. 158088, July 6, 2005) be linked by the most-favored nation clause.

NOTE: The President signed the instrument of ratification on Effectivity date of a treaty
May 6, 2011 and the Senate concurred on Aug. 24, 2011.
A treaty enters into force in such manner and upon
The House of Representatives cannot take active part in the such date as it may provide or as the negotiating States
conduct of foreign relations, particularly in entering into
may agree. Failing any such provision or agreement, a
treaties and international agreements. As held in US v.
treaty enters into force as soon as consent to be bound
Curtiss Wright Export Corporation 299 US 304, it is the
President alone who can act as representative of the nation by the treaty has been established for all the
in the conduct of foreign affairs. Although the Senate has the negotiating States.
power to concur in treaties, the President alone can
negotiate treaties and Congress is powerless to intrude into NOTE:
this. However, if the matter involves a treaty or an executive GR: A State may not invoke the fact that its consent to the
agreement, the HoR may pass a resolution expressing its treaty was obtained in violation of its internal law.
views on the matter.
XPN: If the violation was manifest and concerned a rule of its
Doctrine of Unqueal Treaties internal law of fundamental importance.

A violation is manifest if it would be objectively evident to


The doctrine posits that treaties which have been
any State conducting itself in the matter in accordance with
imposed through coercion or duress by a State of normal practice and in good faith.
unequal character are void.
Reservation
Protocol de Clture
It is a unilateral statement, however phrased or
It is a final act and an instrument which records the named, made by a State, when signing, ratifying,
winding up of the proceedings of a diplomatic accepting, approving, or acceding to a treaty, whereby
conference and usually includes a reproduction of the it purports to exclude or modify the legal effect of
texts of treaties, conventions, recommendations and certain provisions of the treaty in their application to
other acts agreed upon and signed by the that State.
plenipotentiaries attending the conference.
Reservation is not applicable when:
Ratification
1. Reservations cannot be made if the treaty itself
It is the act by which the provisions of a treaty are provides that no reservation shall be admissible,
formally confirmed and approved by a State. By 2. If the treaty allows only specified reservations
ratifying a treaty signed in its behalf, a State expresses which do not include the reservation in question,
its willingness to be bound by the provisions of such 3. If the reservation is incompatible with the object
treaty. and purpose of the treaty.

Instances when a third State who is a non-signatory Effects of reservation and of objections to
may be bound by a treaty reservations

1. When a treaty is a mere formal expression of 1. Modifies for the reserving State in its relations
customary international law, which, as such is with that other party the provisions of the treaty
enforceable on all civilized states because of their to which the reservation relates to the extent of
membership in the family of nations. the reservation; and
2. Under Art. 2 of its charter, the UN shall ensure 2. Modifies those provisions to the same extent for
that non-member States act in accordance with that other party in its relations with the reserving
the principles of the Charter so far as may be State.
necessary for the maintenance of international 3. The reservation does not modify the provisions of
peace and security. Under Art. 103, obligations of the treaty for the other parties to the treaty inter
member-states shall prevail in case of conflict se.

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4. When a State objecting to a reservation has not 6. Violation of jus cogens norm
opposed the entry into force of the treaty 7. Unconstitutionality Rule
between itself and the reserving State, the 8. Lack of Representatives Authority
provisions to which the reservation relates do not
apply as between the two States to the extent of Grounds for termination of a treaty
the reservation.
1. Termination of the treaty or withdrawal of a party
Judicial review of treaties in accordance with the terms of the treaty
2. Extinction of one of the parties to the treaty
Even after ratification, the Supreme Court has the 3. Mutual agreement of all the parties to terminate
power of judicial review over the constitutionality of the treaty
any treaty, international or executive agreement and 4. Denunciation of the treaty by one of the parties
must hear such case en banc. 5. Supervening impossibility of performance
6. Conclusion of a subsequent treaty inconsistent
Conflict between a treaty and a custom between the same parties
7. Violation of the treaty by one of the parties
1. Treaty prevails if the treaty comes after a 8. Doctrine of rebus sic stantibus
particular custom, as between the parties to the 9. Outbreak of war between the parties to the treaty
treaty, 10. Severance of diplomatic or consular relations
2. Customs prevails if the custom develops after the 11. The emergence of new peremptory norm of
treaty, it being an expression of a later will. general international law renders void and
terminates any existing treaty in conflict with such
Treaty v. Executive Agreement norm

1. Treaties - need concurrence of the senate and Doctrine of rebus sic stantibus
involve basic political issues, changes in national
policy and are permanent international It states that a fundamental change of circumstances
agreements. which determined the parties to accept a treaty, if it
2. Executive agreements - need no concurrence from has resulted in a radical transformation of the extent
the senate and are just adjustments of details in of the obligations imposed by it, may under certain
carrying out well established national policies and conditions, afford the party affected a ground to invoke
are merely temporary arrangements. the termination of the treaty.

VFA as a treaty or a mere executive agreement The change must have increased the burden of the
obligations to be executed to the extent of rendering
In the case of Bayan v. Zamora G.R No. 138570, Oct. performance essentially different from the original
10, 2000, VFA was considered a treaty because the intention.
Senate concurred in via 2/3 votes of all its members.
But in the point of view of the US Government, it is Requisites of rebus sic stantibus (PRUTIS)
merely an executive agreement.
1. The change must not have been caused by the
Modification of a treaty Party invoking the doctrine
2. The doctrine cannot operate Retroactively, i.e., it
GR: A treaty may not be modified without the consent must not adversely affect provisions which have
of all the parties. already been complied with prior to the vital
change in the situation
XPN: If allowed by the treaty itself, two states may 3. The change must have been Unforeseen or
modify a provision only insofar as their countries are unforeseeable at the time of the perfection of the
concerned. treaty
4. The doctrine must be invoked within a reasonable
Grounds for invalidating a treaty Time
5. The duration of the treaty must be Indefinite
1. Error 6. The change must be so Substantial that the
2. Fraud foundation of the treaty must have altogether
3. Corruption of a representative of a State disappeared
4. Coercion of a representative of a State
5. Coercion of a State by threat or use of force

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Limitation on the application of the principle of rebus Philippine setting
sic stantibus
In case of conflict between a treaty and a statute, the
The principle of rebus sic stantibus cannot be invoked courts should harmonize both laws first and if there
as a ground for terminating or withdrawing from a exists an unavoidable contradiction between them,
treaty the principle of lex posterior derogat priori - a treaty
1. If the treaty establishes a boundary; or may repeal a statute and a statute may repeal a treaty
2. If the fundamental change is the result of a breach - will apply. The later one prevails. In our jurisdiction,
by the party invoking it of an obligation under the treaties entered into by the executive are concurred by
treaty or of any other obligation owed to any the Senate and takes the form of a statute.
other party to the treaty.
NATIONALITY AND STATELESSNESS
Clean Slate Rule
VIENNA CONVENTION ON THE LAW OF TREATIES
When one State ceases to exist and is succeeded by
another on the same territory, the newly independent Vienna Convention on the Law of Treaties (VCLT) It is
State is not bound to maintain in force, or to become a a treaty concerning the international law on treaties
party to, any treaty by reason only of the fact that at between states. It was adopted on 22 May 1969 and
the date of the succession of States the treaty was in opened for signature on 23 May 1969. The Convention
force in respect of the territory to which the succession entered into force on 27 January 1980.
of States relates.
Applicability of the VCLT
Exceptions to the Clean Slate rule
This applies to treaties between States. (Art. 1, Vienna
1. When the new State agrees to be bound by the Convention)
treaties made by its predecessor;
2. Treaties affecting boundary regime (utipossidetis) The present Convention applies to any treaty which is
3. Customary International Law the constituent instrument of an international
organization and to any treaty adopted within an
Most-Favored-Nation clause international organization without prejudice to any
relevant rules of the organization. (Art. 5, Vienna
It may be defined in general, as a pledge by a Convention)
contracting party to a treaty to grant to the other party
treatment not less favorable than that which has been Nationality
or may be granted to the most favored among other
countries. It is membership in a political community with all its
concomitant rights and obligations. It is the tie that
Form of a treaty binds the individual to his State, from which he can
claim protection and whose laws he is obliged to obey.
A treaty may still be considered as such even if not in
writing. Oral agreements between States are Citizenship has a more exclusive meaning in that it
recognized as treaties under customary international applies only to certain members of the State accorded
law. more privileges than the rest of the people who owe it
allegiance. Its significance is municipal, not
Rules on conflict between a treaty and a statute international.

The rule will depend on which court is deciding. Multiple Nationality

If it is an international court, generally, it will uphold It is the possession by an individual of more than one
the treaty obligation. A treaty, even if contrary to a nationality. It is acquired as the result of the
later statute, is binding in international law. concurrent application to him of the conflicting
municipal laws of two or more States claiming him as
On the other hand, a domestic court will uphold local their national.
laws. When a treaty and domestic statute relate to the
same subject, the court will try to give effect to both.
If they are inconsistent, the later in date will control,
provided that the treaty stipulation is self-executing.

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Statelessness Doctrine of Effective Nationality

It is the condition or status of an individual who is A person having more than one nationality shall be
either: treated as if he had only one either the nationality of
1. De jure stateless person stripped of his the country in which he is habitually and principally
nationality by their former government and resident or the nationality of the country with which in
without having an opportunity to acquire another the circumstances he appears to be in fact most closely
2. De facto stateless person one who possesses a connected.
nationality whose country does not give him
protection outside his own country and who is Measures states have taken to prevent Statelessness
commonly referred to as refugee. (Frivaldo v.
COMELEC, G.R. No. 123755, June 28, 1996) In the Convention on the Conflict of Nationality Laws
of 1930, the Contracting States agree to accord
Consequences of statelessness nationality to persons born in their territory who
would otherwise be stateless. The Convention on the
1. No State can intervene or complain in behalf of Reduction of Statelessness of 1961 provides that if the
the Stateless person for an international law of the contracting States results in the loss of
delinquency committed by another State in nationality, as a consequence of marriage or
inflicting injury upon him. termination of marriage, such loss must be conditional
2. He cannot be expelled by the State if he is lawfully upon possession or acquisition of another nationality.
in its territory except on grounds of national
security or public order. Doctrine of Genuine Link
3. He cannot avail himself of the protection and
benefits of citizenship like securing for himself a It states that the bond of nationality must be real and
passport or visa and personal documents. effective in order that a State may claim a person as its
national for the purpose of affording him diplomatic
Rights of stateless persons protection.

A Stateless person is not entirely without right, STATE RESPONSIBILITY


protection or recourse under the Law of Nations.
Under the Convention in Relation to the Status of Doctrine of State Responsibility
Stateless Persons, the contracting States agree to
accord the stateless persons within their territories A State may be held responsible for an international
treatment at least as favorable as that accorded their delinquency directly or indirectly imputable to it which
nationals with respect to causes injury to the national of another State. Liability
1. Freedom of religion will attach to the State where its treatment of the alien
2. Access to the courts falls below the international standard of justice or
3. Rationing of products in short supply where it is remiss in according him the protection or
4. Elementary education redress that is warranted by the circumstances.
5. Public relief and assistance
6. Labor legislation Requisites for the enforcement of the doctrine of
7. Social Security State Responsibility

NOTE: They also agree to accord them treatment not less 1. The injured alien must first exhaust all local
favorable than that accorded to aliens generally in the same remedies; and
circumstances. The Convention also provides for the 2. He must be represented in the international claim
issuance of identity papers and travel documents to the
for damages by his own State
Stateless persons.

Elements of State Responsibility


Doctrine of Indelible Allegiance
1. Breach of an international obligation
It states that an individual may be compelled to retain
2. Attributability
his original nationality notwithstanding that he has
already renounced it under the law of another State
whose nationality he has acquired.

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Kinds of State Responsibility these lawful activities;
3. Determining the amount of damages;
1. Direct State responsibility Where the 4. Due diligence or liability for culpa is stipulated in a
international delinquency was committed by treaty.
superior government officials or organs like the
chief of State or the national legislature, liability Motive (intent) is relevant when:
will attach immediately as their acts may not be
effectively prevented or reversed under the 1. The existence of a deliberate intent to injure may
constitution or laws of the State. have an effect on the remoteness of the damage
2. Indirect State responsibility Where the offense is and may help to establish the breach of duty.
committed by inferior government officials or by 2. Motive and intent may be a specific element in
private individuals. The State will be held liable defining permitted conduct.
only if, by reason of its indifference in preventing
or punishing it, it can be considered to have Relief available where a State is liable for an
connived in effecting its commission. internationally wrongful act

Elements of an internationally wrongful act 1. Declaratory relief Declaration by a court that as


to the illegality of an act constitutes a measure of
1. Act or omission is attributable to the State under satisfaction or reparation in the broad sense.
international law; and
2. Constitutes a breach of an international obligation NOTE: Available when this is, or the parties deem this,
of the State the proper way to deal with a dispute or when the
object is not to give satisfaction for the wrong received
NOTE: Every internationally wrongful act of a State entails but only to recognize the liability.
the international responsibility of that State.
2. Satisfaction A measure other than restitution or
Acts/situations attributable to the State compensation which an offending State is bound
to take.
1. Acts of the State organs Acts of State organs in
their capacity provided by law or under NOTE: Its object is often either:
a. An apology and other acknowledgment of
instructions of superiors
wrongdoing
2. Acts of other persons If the group of persons was
b. Punishment of individuals concerned
in fact exercising elements of the governmental c. Taking of measures to prevent a recurrence
authority in the absence or default of the official
authorities and circumstances such as to call for 3. Restitution Involves wiping out all the
the exercise of those elements of authority. consequences of the breach and re-establishing
3. Acts of revolutionaries Conduct of an the situation which would probably have existed
insurrectional movement which becomes the new had the act not been committed.
government of a State or part of a State.
NOTE: It can either be in the form of legal restitution or
Theory of Objective or Strict Liability specific restitution.
a. Legal Restitution is declaration that an offending
With respect to state responsibility, the theory of treaty, law, executive act, or agreement, is invalid.
Objective or Strict Liability provides that fault is b. Specific Restitution is a restitution in kind or
unnecessary for State responsibility to be incurred. Its payment of a sum corresponding to the value of
requisites are: the restitution, and the award for losses sustained
which would not be covered by the first two.
1. Agency
2. Casual connection between the breach and the
4. Compensation Payment of money as a valuation
act or omission imputable to the State.
of the wrong done.
Culpa (fault) is relevant when:
NOTE: The compensation must correspond to the value
which restitution in kind would bear; the award of
1. The breach results from acts of individuals not damages for loss sustained which would not be covered
employed by the state or from the activities of by restitution in kind or payment in place of it.
licenses or trespassers on its territory;
2. A state engages in lawful activities, in which case
responsibility may result from culpa in executing

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Pecuniary satisfaction v. Compensation Nationality Doctrine

PECUNIARY A State may exercise jurisdiction over its nationals,


COMPENSATION
SATISFACTION with respect to their conduct, whether within or
A token of regret and To make up for or repair outside its territory.
acknowledgment of the damage done
wrongdoing (monetary Protective Principle
sorry)
Any State has the right to punish acts even if
States exercise of diplomatic protection committed outside its territory, when such acts
constitute attacks against its security, as long as that
When a State admits into its territory foreign conduct is generally recognized as criminal by states in
investments or foreign nationals, whether natural or the international community.
juristic persons, it is bound to extend to them the
protection of the law and assumes obligations NOTE: Examples are plots to overthrow the government,
concerning the treatment to be afforded to them. forging its currency, and plot to break its immigration
regulations.
These obligations however, are neither absolute nor
unqualified. An essential distinction should be drawn
Universality of jurisdiction
between the obligations of the State towards the
international community as a whole, and those vis--
Certain offenses are so heinous and so widely
vis another State in the field of their diplomatic
condemned that any state that captures an offender
protection.
may prosecute and punish that person on behalf of the
international community regardless of the nationality
By their very nature the former are the concern of all
of the offender or victim or where the crime was
States. All States can be held to have a legal interest in
committed.
their protection; they are obligations erga omnes.
Obligations the performance of which is the subject of
Q: Prior to the outbreak of WWII, Adolf Eichmann was
diplomatic protection are not of the same category. It
an Austrian by birth who volunteered to work for the
cannot be held, when one such obligation in particular
Security Service in Berlin. He rose through the ranks
is in question, in a specific case, that all States have a
and eventually occupied the position of Referant for
legal interest in its observance. (Case Concerning
Jewish Affairs. He oversaw the transport and
Barcelona Traction, Light and Power Company, Limited,
deportation of Jewish persons and explored the
Feb. 5, 1970)
possibility of setting up a slave Jewish state in
Madagascar.
JURISDICTION OF STATES
He was captured by Israeli Security Forces in
Jurisdiction
Argentina and handed over to the District Court of
Jerusalem to stand for war crimes against humanity
In Public International Law, it is the right of a State to
and crimes against the Jewish people. He was
exercise authority over persons and things within its
convicted of all 15 counts and sentenced to the death.
boundaries subject to certain exceptions.
Does the District Court of Jerusalem have jurisdiction
Principle of Territoriality
to try the case in light of the fact that Eichmann is a
foreign national and crimes were committed on
A state has absolute, but not necessarily exclusive,
foreign territory?
power to prescribe, adjudicate and enforce rules of
conduct that occurs within its territory.
A: Yes. The principle of territorial sovereignty merely
requires that the State exercises its power to punish
NOTE: An aspect of this principle is the effects doctrine
which provides that a state has jurisdiction over acts within its own borders, not outside them; that subject
occurring outside its territory but having effects within it. to this restriction every State may exercise a wide
discretion as to the application of its laws and the
Extra-territoriality jurisdiction of its courts in respect of acts committed
outside the State; and that only in so far as it is possible
The exemption of foreign persons from the jurisdiction to point to a specific rule prohibiting the exercise of
of the State of residence and it arises from treaty this discretion. That view was based on the following
provisions. two grounds: (1) It is precisely the conception of State

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sovereignty which demands the preclusion of any Refugee
presumption that there is a restriction on its
independence; and (2) Even if it is true that the Any person who is outside the country of his
principle of the territorial character of criminal law is nationality or the country of his former habitual
firmly established in various States, it is no less true residence because he has or had well-founded fear of
that in almost of such States criminal jurisdiction has persecution by reason of his race, religion, nationality,
been extended so as to embrace offenses committed membership of a political group or political opinion
outside its territory. and is unable or, because of such fear, is unwilling to
avail himself of the protection of the government of
However, it is the universal character of the crimes in the country of his nationality, or, if he has no
question which vests in every State the power to try nationality, to return to the country of his former
those who participated in the preparation of such habitual residence.
crimes, and to punish them therefor. It follows that the
State which prosecutes and punishes a person for that Elements before one may be considered as a refugee
offense acts solely as the organ and agent of the
international community, and metes out punishment 1. The person is outside the country of his
to the offender for his breach of the prohibition nationality, or in the case of Stateless persons,
imposed by the law of nations. outside the country of habitual residence;
2. The person lacks national protection;
Passive Personality Principle 3. The person fears persecution in his own country.

Authorizes states to assert jurisdiction over offenses NOTE: The second element makes, a refugee a Stateless
committed against their citizens abroad. It recognizes person. Because a refugee approximates a Stateless person,
that each state has a legitimate interest in protecting he can be compared to a vessel on the open sea not sailing
under the flag of any State, or be called flotsam and res
the safety of its citizens when they journey outside
nullius. Only a person who is granted asylum by another
national boundaries.
State can apply for refugee status; thus the refugee treaties
imply the principle of asylum.
Modes of addressing conflicts of jurisdiction
Refugees v. Internally displaced persons
1. Balancing Test
2. International Comity Refugees are people who have fled their countries
3. Forum non conveniens while internally displaced persons are those who have
not left their countrys territory
TREATMENT OF ALIENS
Principle of Non-Refoulment
Standards to be used by States in treating aliens
within their territory Posits that a State may not deport or expel refugees to
the frontiers of territories where their life or freedom
1. National treatment/ equality of treatment would be put in danger or at risk.
Aliens are treated in the same manner as
nationals of the State where they reside. EXTRADITION
2. Minimum international standard However harsh
the municipal laws might be, against a States own Extradition
citizens, aliens should be protected by certain
minimum standards of humane protection. The right of a foreign power, created by treaty, to
demand the surrender of one accused or convicted of
NOTE: States protect aliens within their jurisdiction in the
a crime within its territorial jurisdiction, and the
expectation that their own nationals will be properly treated
when residing or sojourning abroad.
correlative duty of the other State to surrender

Right of asylum Basis of extradition

In international law, it is the competence of every State The extradition of a person is required only if there is a
inferred from its territorial supremacy to allow a treaty between the State of refuge and the State of
prosecuted alien to enter and to remain on its territory origin. As a gesture of comity, however, a State may
under its protection and thereby grant asylum to him. extradite anyone. Furthermore, even with a treaty,
crimes which are political in character are exempted.

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Fundamental principles governing extradition sought is extraditable. At his discretion, the judge
may require the submission of further
1. Based on the consent of the State expressed in a documentation or may personally examine the
treaty affiants and witnesses of the petitioner. If, in spite
2. Principle of specialty A fugitive who is extradited of this study and examination, no prima facie
may be tried only for the crime specified in the finding is possible, the petition may be dismissed
request for extradition and included in the list of at the discretion of the judge.
offenses in the extradition treaty, unless the 5. On the other hand, if the presence of a prima facie
requested State does not object to the trial of case is determined, then the magistrate must
such person for the unlisted offense immediately issue a warrant for the arrest of the
3. Any person may be extradited, whether he is a extraditee, who is at the same time summoned to
national of the requesting State, of the State of answer the petition and to appear at scheduled
refuge or of another State. He need not be a summary hearings.
citizen of the requesting State. 6. Hearing (provide counsel de officio if necessary);
4. Political or religious offenders are generally not 7. Appeal to CA within ten days whose decision shall
subject to extradition. be final and executory;
8. Decision forwarded to DFA through the DOJ;
NOTE: Attentant clause is a provision in an extradition 9. Individual placed at the disposal of the authorities
treaty which states that the murder or assassination of of requesting State costs and expenses to be
the head of a state or any member of his family will not shouldered by requesting State.
be considered as a political offense and therefore
extraditable.
Extradition v. Deportation
5. The offense must have been committed within
the territory of the requesting State or against its EXTRADITION DEPORTATION
interest Effected at the request Unilateral act of the
6. Double criminality rule The act for which the of the State of origin local State
extradition is sought must be punishable in both Based on offenses Based on causes arising
States committed in the State in the local State
of origin
Common bars to extradition Calls of the return of the Undesirable alien may
fugitive to the State of be deported to a State
1. Failure to fulfill dual criminality origin other than his own or
2. Political nature of the alleged crime the State of origin.
3. Possibility of certain forms of punishment
4. Jurisdiction No notice requirement
5. Citizenship of the person in question
Prior to the issuance of the warrant, the judge must
Procedure for extradition when a foreign State not inform or notify the potential extraditee of the
requests from the Philippines pendency of the petition, lest the latter be given the
opportunity to escape and frustrate the
1. File/issue request through diplomatic proceedings. The foregoing procedure will best serve
representative with: the ends of justice in extradition cases.
a. Decision of conviction
b. Criminal charge and warrant of arrest NOTE: An extraditee does not have the right to notice and
c. Recital of facts hearing during the evaluation stage of an extradition
proceeding. The nature of the right being claimed is
d. Text of applicable law designating the offense
nebulous and the degree of prejudice an extraditee allegedly
e. Pertinent papers
suffers is weak. (US v. Purganan, G.R. No. 148571, September
24, 2002)
2. DFA forwards request to DOJ
3. DOJ files petition for extradition with RTC Nature of extradition proceeding
4. Upon receipt of a petition for extradition and its
supporting documents, the judge must study Extradition is not a criminal proceeding which will call
them and make, as soon as possible, a prima facie into operation all the rights of an accused provided in
finding whether (a) they are sufficient in form and the bill of rights.
substance, (b) they show compliance with the
Extradition Treaty and Law, and (c) the person

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Validity of a petition for bail in extradition cases INTERNATIONAL HUMAN RIGHTS LAW

The Philippines, along with other members of the Human Rights


family of nations, committed to uphold the
fundamental human rights as well as value the worth Those liberties, immunities and benefits, which all
and dignity of every person. The commitment is human beings should be able to claim as of right of
enshrined in Sec. 11, Art. II of our Constitution which the society in which they live Louis Henkin, Human
provides: The State values the dignity of every human Rights
person and guaranteed full respect for human rights.
The Philippines, therefore, has the responsibility of International Human Rights Law
protecting and promoting the right of every person to
liberty and due process, ensuring that those detained The law which deals with the protection of individuals
or arrested can participate in the proceedings before a and groups against violations by governments of their
court, to enable it to decide without delay on the internationally guaranteed rights, and with the
legality of the detention and order their release if promotion of these rights. Thomas Buergenthal
justified. In other words, the Philippine authorities are
under obligation to make available to every person NOTE: International human rights are divided into 3
under detention such remedies which safeguards their generations, namely:
fundamental right to liberty. These remedies include 1. First generation: civil and political rights
2. Second generation: economic, social and cultural rights
the right to be admitted to bail. (Government of Hong
3. Third generation: right to development, right to peace
Kong Special Administrative Region v. Olalia, Jr., G.R. and right to environment
No. 153675, April 19, 2007)
Classification of Human Rights
Requisites for granting bail in extradition cases
1. Individual rights
The possible extraditee must show upon a clear and 2. Collective rights (right to self-determination of
convincing evidence that: people; the permanent sovereignty over natural
1. He will not be a flight risk or a danger to the resources)
community,
2. There exist special, humanitarian and compelling Main instruments of human rights
circumstances.
1. Universal Declaration of Human Rights
Rights of a person arrested and detained in another 2. The International Covenant on Economic, Social
State and Cultural Rights
3. International Covenant on Civil and Political Rights
1. Right to have his request complied with by the
receiving State to so inform the consular post of Universal Declaration of Human Rights (UDHR)
his condition
2. Right to have his communication addressed to the The basic international statement of the inalienable
consular post forwarded by the receiving State rights of human beings. It is the first comprehensive
accordingly international human rights instrument. It covers Civil
3. Right to be informed by the competent authorities and Political rights and economic, social and cultural
of the receiving State without delay his rights as rights.
mentioned above
NOTE: Rights covered by UDHR are customary international
Retroactive application of extradition law, hence, even during the times when the bill of rights
under the Constitution are inoperative, rights under UDHR
In Wright v. Court of Appeals, G.R. No.113213, August remained in effect. (Republic v. Sandiganbayan, G.R. No.
15,1994, it was held that the retroactive application of 104768, July 21, 2003)
the Treaty of Extradition does not violate the
prohibition against ex post facto laws, because the Rights guaranteed in the International Covenant on
Treaty is neither a piece of criminal legislation nor a Civil and Political rights
criminal procedural statute. It merely provided for the
extradition of persons wanted for offenses already 1. Right to self-determination
committed at the time the treaty was ratified. 2. Right to an effective remedy
3. Equal right of men and women to the enjoyment
of all the civil and political rights

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281 FACULTY OF CIVIL LAW
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4. Right to life 7. Freedom of thought, conscience and religion
5. Not to be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. Torture
In particular, freedom from medical or scientific
experimentation except with his consent Any act by which severe pain or suffering, whether
6. Freedom from slavery and servitude physical or mental, is intentionally inflicted on a person
7. Right to liberty and security of person for such purposes as obtaining from him or a third
8. Right to be treated with humanity and with person, information or a confession, punishing him for
respect for the inherent dignity of the human an act he or a third person has committed or is
person suspected of having committed, or intimidating or
9. No imprisonment on the ground of inability to coercing him or a third person, or for any reason based
fulfill a contractual obligation on discrimination of any kind, when such pain or
10. Right to liberty of movement and freedom to suffering is inflicted by or at the instigation of or with
choose his residence the consent or acquiescence of a public official or
11. Right to a fair and public hearing by a competent, other person acting in an official capacity. (United
independent and impartial tribunal established by Nations Convention against Torture and Other Cruel,
law Inhuman or Degrading Treatment or Punishment
12. No one shall be held guilty of an criminal offense [UNCTO] Effective June 26, 1987)
on account of any act or omission which did not
constitute a criminal office, under national or NOTE: It does not include pain or suffering arising only from,
international law, at the time when it was inherent in or incidental to lawful sanctions.
committed
13. Right to recognition everywhere as a person Obligations of the State Parties in the UNCTO
before the law
14. Right to privacy 1. No exceptional circumstances whatsoever,
15. Right to freedom of thought, conscience and whether a state of war or a threat or war, internal
religion political instability or any other public emergency
16. Right to freedom of expressions or any order from a superior officer or a public
17. Right of peaceful assembly authority may be invoked as a justification of
18. Right of freedom of association torture.
19. Right to marry and to found a family 2. No State party shall expel, return (refouler) or
20. Right to such measures of protection as are extradite a person to another State where there
required by his status as a minor, name and are substantial grounds for believing that he
nationality would be in danger of being subjected to torture.
21. Right to participation, suffrage and access to 3. All acts of torture are offenses under a State
public service Partys criminal law.
22. Right to equal protection of the law 4. State Parties shall afford the greatest measure of
23. Right of minorities to enjoy their own culture, to assistance in connection with civil proceedings
profess and practice their religion and to use their brought in respect of any of the offences
own language. 5. To ensure that education and information
regarding the prohibition against torture are fully
NOTE: included on persons involved in the custody,
GR: In times of public emergency which threatens the life of interrogation or treatment of any individual
the nation and the existence of which is officially proclaimed, subject to any form of arrest, detention, or
parties may take measures to derogate from their imprisonment.
obligations to the extent strictly required by the exigencies 6. To keep under systematic review interrogation
of the situation. rules, instructions, methods and practices as well
as arrangements for the custody and treatment of
XPNs: There can be no derogation from the following:
persons subjected to any form of arrest, detention
1. Right to life
2. Freedom from torture or cruel, inhuman or degrading or imprisonment in any territory under its
punishment jurisdiction, with a view to preventing any case of
3. Freedom from slavery torture.
4. Freedom from imprisonment for failure to fulfill a 7. To ensure a prompt and impartial investigation
contractual obligation wherever there is reasonable ground to believe
5. Freedom from ex post fact laws that an act of torture has been committed
6. Right to recognition everywhere as a person before the 8. To ensure that an individual subjected to torture
law
has the right complain and have his case promptly

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and impartially examined by competent INTERNATIONAL HUMANITARIAN LAW (IHL)
authorities AND NEUTRALITY
9. To ensure that the victim obtains redress and has
an enforceable right to fair and adequate International Humanitarian Law (IHL)
compensation
10. To ensure that any statement established to have A set of rules that place restrictions on the use of
been made as a result of torture shall not be weapons and methods of warfare. It protects people
invoked as evidence in any proceedings, except who are not, or no longer, participating in hostilities. It
against a person accused of torture as evidence aims to protect human dignity and to limit suffering
that the statement was made. during times of war. It is also known as the law of war
11. To prevent in any territory under its jurisdiction or the law of armed conflict.
other acts of cruel, inhuman or degrading
treatment or punishment which do not amount to Importance of IHL
torture when such acts are committed by or at the
instigation of or with the consent of acquiescence It is one of the most powerful tools the international
of a public official or other person acting in an community has at its disposal to ensure the safety and
official capacity. dignity of people in times of war. It seeks to preserve
a measure of humanity, with the guiding principle that
Instances when a state party may establish its even in war there are limits.
jurisdiction over offenses regarding torture
Application of IHL
1. When the offenses are committed in any territory
under its jurisdiction or on board a ship or aircraft IHL concerns two situations:
registered in the State; 1. International armed conflicts, which involve at
2. When the alleged offender is a national of that least two countries;
State; 2. Armed conflicts that take place in one country
3. When the victim was a national of that State if (such as those between a government and rebel
that State considers it appropriate; forces).
4. Where the alleged offender is present in any
territory under its jurisdiction and it does not NOTE: IHL applies to all parties to a conflict regardless of who
extradite him. started it.

NOTE: Nos. 1 to 3 are considered as extraditable offences. In Branches of IHL


the absence of an extradition treaty, the UNCTO may be
considered as the legal basis for extradition. Such offenses 1. Law of Geneva Designed to safeguard military
shall be treated, for the purpose of extradition, as if they personnel who are no longer taking part in the
have been committed not only in the place in which they fighting and people not actively participating in
occurred but also in the territories of the State required to
the war.
establish their jurisdiction.

NOTE: It includes the Wounded and Sick in the Field,


Rights guaranteed under International Covenant on Wounded, Sick and Shipwrecked at Sea, Prisoners of
Economic, Social and Cultural Rights (ICESR) War and Civilians.

1. Right of Self Determination 2. Law of the Hague Establishes the rights and
2. Right to work and accompanying rights thereto obligations of belligerents in the conduct of
3. Right to Social Security and other social rights military operations, and limits the means of
4. Adequate standard of living which includes; harming the enemy.
5. Right to adequate housing
6. Right to adequate food Persons protected under IHL
7. Right to adequate clothing
8. Right to health IHL protects those who are not, or no longer,
9. Right to education participating in hostilities, such as:
10. Cultural Rights 1. Civilians;
2. Medical and religious military personnel;
3. Wounded, shipwrecked and sick combatants;
4. Prisoners of war.

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NOTE: Recognizing their specific needs, IHL grants women 2. Diplomatic and consular relations between the
and children addition protection. belligerents are terminated.
3. Treaties of political nature are automatically
Protection under IHL cancelled, but those which are precisely intended
to operate during war such as one regulating the
IHL prohibits the use of weapons which are particularly conduct of hostilities, are activated.
cruel or which do not distinguish between combatants 4. Enemy public property found in the territory of
and civilians. It also requires the parties to a conflict to: other belligerent at the outbreak of the hostilities
1. Distinguish between combtatants and civilians, is with certain exceptions, subject to confiscation.
and to refrain from attacking civilians;
2. Care for the wounded and sick and protect NOTE: An army of occupation can only take possession of the
medical personnel; cash, funds, and property liable to requisition belonging
3. Ensure that the dignity of prisoners of war and strictly to the State, depots of arms, means of transport,
civilian internees is preserved by allowing visits by stores and supplies, and, generally, all movable property of
International Committee of the Red Cross the State which may be used for military operations. (Art. 53,
Laws and Customs of War on Land (Hague II), July 29, 1899)
delegates.

War Tests in determining the enemy character of


individuals
Contention between two States, through their armed
forces, for the purpose of overpowering the other and 1. Nationality test If they are nationals of the other
imposing such conditions of peace as the victor belligerent, wherever they may be.
pleases. 2. Domiciliary test If they are domiciled aliens in
the territory of the other belligerent, on the
Instances when force is allowed assumption that they contribute to its economic
resources.
Under the UN Charter, the use of force is allowed only 3. Activities test If, being foreigners, they
in two instances, to wit, in the exercise of the inherent nevertheless participate in the hostilities in favor
right of self-defense and in pursuance of the so-called of the other belligerent.
enforcement action that may be decreed by the 4. Territorial or Commercial Domicile Test In
Security Council. matters referring to economic warfare
5. Controlling Interest Test This test is applied to
War is commenced with the: corporation in addition to the place of
incorporation test. A corporation is considered as
1. Declaration of war enemy if it:
2. Rejection of an ultimatum a. is incorporated in an enemy territory;
3. Commission of an act of force regarded by at least b. is controlled by individuals bearing enemy
one of the parties as an act of war. character.

Declaration of War Principle of Distinction

A communication by one State to another informing Parties to an armed conflict must at all times
the latter that the condition of peace between them distinguish between civilian and military targets and
has come to an end and a condition of war has taken that all military operations should only be directed at
place. military targets.

Ultimatum Participants in war

A written communication by one State to another 1. Combatants - those who engage directly in the
which formulates, finally and categorically, the hostilities, and
demands to be fulfilled if forcible measures are to be 2. Non-combatants - those who do not, such as
averted. women and children.

Effects of the outbreak of war Combatants

1. Laws of peace are superseded by the laws of war. Those individuals who are legally entitled to take part
in hostilities. These include:

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1. Members of the armed forces except those not
actively engaged in combat 1. Simple cessation of hostilities, without the
2. The members of organized resistance groups, conclusion of a formal treaty
such as the guerrillas, provided that they are: 2. Treaty of peace
a. Being commanded by a person responsible 3. Unilateral declaration
for his subordinates 4. The complete submission and subjugation of one
b. Wearing a fixed distinctive sign or some type of the belligerents, followed by a dictated treaty
of uniform of peace or annexation of conquered territory
c. Carrying arms openly; and
d. Obeying the laws and customs of war. Postliminium
3. Citizens who rise in a levee en masse The
inhabitants of unoccupied territory who, on The revival or reversion to the old laws and
approach of the enemy, spontaneously take arms sovereignty of territory which has been under
to resist the invading troops without having time belligerent occupation once control of the belligerent
to organize themselves, provided only that they: occupant is lost over the territory affected.
a. Carry arms openly; and
b. Observe the laws and customs of war. Application of the Principle of Postliminium (1979 Bar
4. The officers and crew members of merchant Question)
vessels who forcibly resist attack.
Where the territory of one belligerent State is
Civilian occupied by the enemy during war, the legitimate
government is ousted from authority. When the
Any person who does not belong to the armed forces belligerent occupation ceases to be effective, the
and who is not a combatant. authority of the legitimate government is
automatically restored, together with all its laws, by
NOTE: In case of doubt whether a person is a civilian or not, virtue of the jus postliminium.
that person shall be considered as a civilian.
Principle of Uti Possidetis
Armed forces under RA 9851
Allows retention of property or territory in the
All organized armed forces, groups and units that belligerents actual possession at the time of the
belong to a party to an armed conflict which are under cessation of hostilities.
a command responsible to that party for the conduct
of its subordinates. Jus ad bellum (Law on the use of force)

Basic principles that underlie the rules of warfare It seeks to limit resort to force between States. States
must refrain from the threat or use of force against the
1. The Principle of Military Necessity The territorial integrity or political independence of
belligerent may employ any amount of force to another state. (Art. 2, par. 4, UN Charter)
compel the complete submission of the enemy
with the least possible loss of lives, time and Exceptions to this principle are provided in case of self-
money. defense or following a decision adopted by the UN
Security Council under Chapter VII of the UN Charter.
NOTE: Under RA 9851, it is the necessity of employing
measures which are indispensible to achieve a
Status Quo Ante Bellum
legitimate aim of the conflict and not prohibited by IHL.

Each of the belligerents is entitled to the territory and


2. The Principle of Humanity Prohibits the use of
property which it had possession of at the
any measure that is not absolutely necessary for
commencement of the war.
the purpose of the war, such as the poisoning of
wells.
New conflicts covered by the IHL
3. The Principle of Chivalry Prohibits the
belligerents from the employment of treacherous
1. Anarchic conflicts It is a situation where armed
methods in the conduct of hostilities, such as the
groups take advantage of the weakening or
illegal use of Red Cross emblems.
breakdown of the State structures in an attempt
to grab power.
War may be terminated by

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2. Those in which group identity becomes a focal Cross (ICRC) is given a report on human rights
point These groups exclude the adversary key role in ensuring situations either by
through ethnic cleansing which consists in respect for the country or by topic. Its
forcibly displacing or even exterminating humanitarian rules. role is to enhance the
populations. This strengthens group feeling to the effectiveness of the UN
detriment of the existing national identity, ruling human rights machinery
out any possibility of coexistence with other and to build up national,
groups. regional and international
capacity to promote and
International Humanitarian Law (IHL) v. Human protect human rights and
Rights Law to disseminate human
rights texts and
INTERNATIONAL information. Human
HUMAN RIGHTS LAW
HUMANITARIAN LAW rights treaties also provide
Applies in situations of Protects the individual at for the establishment of
armed conflict. all times in war and peace committees of
alike. independent experts
No derogations are Some human rights charged with monitoring
permitted under IHL treaties permit their implementation.
because it was governments to derogate Certain regional treaties
conceived for from certain rights in (European and American)
emergency situations, situations of public also establish human
namely armed conflict. emergency. rights courts.
Aims to protect people Tailored primarily for
who do not or are no peacetime, and applies to NOTE: IHL and International human rights law (hereafter
longer taking part in everyone. Their principal referred to as human rights) are complementary. Both strive
to protect the lives, health and dignity of individuals, albeit
hostilities. The rules goal is to protect
from a different angle.
embodied in IHL impose individuals from arbitrary
duties on all parties to a behavior by their own
RA 9851
conflict. governments. Human
rights law does not deal
The Philippine Act on Crimes Against International
with the conduct of
Humanitarian Law, Genocide and other Crimes Against
hostilities.
Humanity. Its state policies include:
Humanitarian law States are bound by 1. The renunciation of war and adherence to a policy
obliges states to take human rights law to of peace, equality, justice, freedom, cooperation
practical and legal accord national law with and amity with all nations;
measures, such as international obligations. 2. Values the dignity of every human person and
enacting penal guarantees full respect of human rights;
legislation and 3. Promotion of Children as zones of peace
disseminating IHL. 4. Adoption of the generally accepted principles of
Provides for several Implementing international law;
specific mechanisms mechanisms are complex 5. Punishment of the most serious crimes of concern
that help its and, contrary to IHL to the international community; and
implementation. include regional systems. 6. To ensure persons accused of committing grave
Notably, states are Supervisory bodies, e.g. crimes under international law all rights for a fair
required to ensure the UN Commission on and strict trial in accordance with national and
respect also by other Human Rights (UNCHR), international law as well as accessible and gender-
states. Provision is also are either based on the sensitive avenues of redress for victims of armed
made for inquiry UN Charter or provided conflicts.
procedure, a Protecting for in specific treaties.
Power mechanism, and NOTE: The application of the provisions of this Act shall not
the International Fact- The UNCHR have affect the legal status of the parties to a conflict, nor give an
Finding Commission. In developed a mechanism implied recognition of the status of belligerency.
addition, the of special rapporteurs and
International working groups, whose
Committee of the Red task is to monitor and

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Effect/relevance of the passage of RA 9851 2. In case of non-international armed conflict,
serious violation of common Art. 3 to the four
RA 9851 mandates both the State and non-state Geneva Conventions of 12 August 1949, namely
armed groups to observe international humanitarian any of the following acts committed against
law standards and gives the victims of war-crimes, persons taking no active part in the hostilities,
genocide and crimes against humanity legal recourse including members of the armed forces who have
laid down their arms and those placed hors de
Genocide combat by sickness, wounds, detention or any
other cause:
1. Any of the following acts with intent to destroy, in a. Violence to life and person, in particular,
whole or in part, a national, ethnic, racial, willful killings, mutilation, cruel treatment
religious, social or any other similar stable and and torture;
permanent group such as: b. Committing outrages upon personal dignity,
a. Killing of members of the group in particular humiliating and degrading
b. Causing serious bodily or mental harm to treatment;
members of the group c. Taking of hostages; and
c. Deliberately inflicting on the group conditions d. The passing of sentences and the carrying out
of life calculated to bring about its physical of executions without previous judgment
destruction in whole or in part pronounced by a regularly constituted court,
d. Imposing measure intended to prevent births affording all judicial guarantees which are
within the group generally recognized as indispensible.
e. Forcibly transferring children of the group to
another group 3. Other serious violations of the laws and customs
applicable in the armed conflict within the
2. Directly and publicly inciting others to commit established framework of international law,
genocide (RA 9851) namely:
a. Intentionally directing attacks against the
NOTE: Genocide may not only be committed during war or civilian population as such or against
armed conflict but may also be committed in time of peace. individual civilians not taking direct part in
hostilities;
War crimes b. Intentionally directing attacks against civilian
objects, that is, objects which are not military
1. In case of an international armed conflict, grave objectives;
breaches of the Geneva Conventions of August 12, c. Intentionally directing attacks against
1949, namely any of the following acts against buildings, material, medical units and
persons or property protected: transport, and personnel using the distinctive
a. Willful killing; emblems of Additional Protocol II in
b. Torture or inhuman treatment, including conformity with international law;
biological experiments; d. Intentionally directing attacks against
c. Willfully causing great suffering, or serious personnel, installations, material, units or
injury to body or health; vehicles involved in a humanitarian
d. Extensive destruction and appropriation of assistance or peacekeeping mission in
property not justified by military necessity accordance with the Charter of the United
and carried out unlawfully and wantonly; Nations as long as they are entitled to the
e. Willfully depriving a prisoner of war or other protection given to civilians or civilian objects
protected person of the rights of fair and under the international law of armed conflict;
regular trial; e. Launching an attack in the knowledge that
f. Arbitrary deportation or forcible transfer of such attack will cause incidental loss of life or
population or unlawful confinement; injury to civilians or damage to civilian objects
g. Taking hostages; or widespread long-term and severe damage
h. Compelling a prisoner of war or other to the natural environment which would be
protected person to serve in the forces of a excessive in relation to the concrete and
hostile power; and direct military advantage anticipated;
i. Unjustifiable delay in the repatriation of f. Launching an attack against works or
prisoners of war or other protected persons. installations containing dangerous forces in
the knowledge that such attack will cause
excessive loss of life, injury to civilians or

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damage to civilian objects, and causing death the population of the occupied territory
or serious injury to body or health; within or outside this territory;
g. Attacking or bombarding, by whatever r. Committing outrages upon personal dignity,
means, towns, villages, dwellings or buildings in particular, humiliating and degrading
which are undefended and which are not treatment;
military objectives, or making non-defended s. Committing rape, sexual slavery, enforced
localities or demilitarized zones the object of prostitution, forced pregnancy, enforced
attack; sterilization, or any other form of sexual
h. Killing or wounding a person in the violence;
knowledge that he/she is hors de combat, t. Utilizing the presence of a civilian or other
including a combatant who, having laid down protected person to render certain points,
his/her arms no longer having means of areas or military forces immune from military
defense, has surrendered at discretion; operations;
i. Making improper use of a flag of truce, of the u. Intentionally using starvation of civilians as a
flag or the military insignia and uniform of the method of warfare by depriving them of
enemy or of the United Nations, as well as of objects indispensable to their survival,
the distinctive emblems of the Geneva including willfully impending relief supplies;
Conventions or other protective signs under v. In an international armed conflict, compelling
the International Humanitarian Law, resulting the nationals of the hostile party to take part
in death, serious personal injury or capture; in the operations of war directed against their
j. Intentionally directing attacks against own country, even if they were in the
buildings dedicated to religion, education, belligerents service before the
art, science, or charitable purposes, historic commencement of the war;
monuments, hospitals and places where the w. In an international armed conflict, declaring
sick and wounded are collected, provided abolished, suspended or inadmissible in a
that they are not military objectives. court of law the rights and actions of the
nationals of the hostile party;
NOTE: In case of doubt, they shall be presumed not x. Committing any of the following acts:
to be so used. i. Conscripting, enlisting or recruiting
children under the age of 15 years into
k. Subjecting persons who are in the power of the national armed forces;
an adverse party to physical mutilation or to ii. Conscripting, enlisting, or recruiting
medical or scientific experiments of any kind, children under the age of 18 years into an
or to removal of tissue or organs for armed force or group other than the
transplantation, which are neither justified by national armed forces; and
the medical, dental or hospital treatment of iii. Using children under the age of 18 years
the person concerned not carried out in to participate actively in hostilities;
his/her interest, and which cause death to or y. Employing means of warfare which are
seriously endanger the health of such person prohibited under international law, such as:
or persons; i. Poison or poisoned weapons
l. Killing wounding or capturing an adversary by ii. Asphyxiating, poisonous or other gases,
resort to perfidy and all analogous liquids, materials or
m. Declaring that no quarter will be given; devices;
n. Destroying or seizing the enemys property iii. Bullets which expand or flatten easily in
unless such destruction or seizure is the human body, such as bullets with
imperatively demanded by the necessities of hard envelopes which do not entirely
war; cover the core or are pierced with
o. Pillaging a town or place, even when taken by incisions
assault; iv. Weapons, projectiles and material and
p. Ordering the displacement of the civilian methods of warfare which are of the
population for reasons related to the conflict, nature to cause superfluous injury or
unless the security of the civilians involved or unnecessary suffering or which are
imperative military reasons so demand; inherently indiscriminate in violation of
q. Transferring, directly or indirectly, by the international law of armed conflict.
occupying power of parts of its own civilian (RA 9851)
population into the territory it occupies, or
the deportation or transfer of all or parts of

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Other crimes against humanity aside from war deprivation of freedom or to give information on
crimes and genocide under RA 9851 the fate or whereabouts of those persons, with
the intention of removing them from the
Any of the following acts when committed as part of a protection of the law for a prolonged period of
widespread or systematic attack directed against any time.
civilian population, with knowledge of the attack: 10. Apartheid Inhumane acts committed in the
1. Willful killing context of an institutionalized regime of
2. Extermination the intentional infliction of systematic oppression and domination by one
conditions of life, inter alia, the deprivation of racial group/s and committed with the intention
access to food and medicine, calculated to bring of maintaining that regime.
about the destruction of a part of a population. 11. Other inhumane acts of similar character
3. Enslavement the exercise of any or all of the intentionally causing great suffering, or serious
powers attaching to the right of ownership over a injury to body or to mental or physical health. (RA
person and includes the exercise of such power in 9851)
the course of trafficking in persons, in particular
women and children. CATEGORIES OF ARMED CONFLICTS
4. Arbitrary deportation or forcible transfer of
population forced displacement of the persons Kinds/types of conflict as contemplated in RA 9851
concerned by expulsion or other coercive acts
from the area in which they are lawfully present, 1. International Armed Conflict between two or
without grounds permitted under domestic or more States including belligerent occupation.
international law. 2. Non-International Armed Conflict between
5. Imprisonment or other severe deprivation of governmental authorities and organized armed
physical liberty in violation of fundamental rules groups or between such groups within a State.
of international law.
6. Torture the intentional infliction of severe pain NOTE: It does not cover internal disturbances or
or suffering, whether physical, mental, or tensions such as riots, isolated and sporadic acts of
psychological, upon a person in the custody or violence or other acts of a similar nature. (RA 9851)
under the control of the accused; except that
3. War of National Liberation - an armed struggle
torture shall not include pain or suffering arising
waged by a people through its liberation
only from, inherent in or incidental to, lawful
movement against the established government to
sanctions.
reach self-determination. It is also used to denote
7. Rape, sexual slavery, enforced prostitution, forced
conflicts in which peoples are fighting against
pregnancy, enforced sterilization or any other
colonial domination and alien occupation and
form of sexual violence of comparable gravity.
against racist regimes in the exercise of their right
NOTE: Forced pregnancy means the unlawful of self-determination, as enshrined in the U.N.
confinement of a woman to be forcibly made pregnant, Charter and the Declaration of Principles of
with the intent of affecting the ethnic composition of International Law. (Art. 1(4), Protocol I)
any population or carrying out other grave violations of
international law. INTERNATIONAL ARMED CONFLICTS
8. Persecution against any identifiable group or
Armed conflict under IHL and RA 9851
collectivity on political, racial, national, ethnic,
cultural, religious, gender, sexual orientation
1. All cases of declared war or any other armed
other grounds that are universally recognized as
conflict which may arise between two or more of
impermissible under international law
the Highest contracting parties, even if the State
NOTE: Persecution means the intentional and severe of war is not recognized by one of them. (Art. 2,
deprivation of fundamental rights contrary to Geneva Convention of 1949) It also applies to
international law by reason of identity of the group or armed conflict between the government and a
collectively. rebel or insurgent movement. (Art. 3, Geneva
Convention of 1949)
9. Enforced or involuntary disappearance of persons 2. Under RA 9851, it is any use of force or armed
the arrest detention or abduction of persons by, violence between States or a protracted armed
or with the authorization, support, or violence between governmental authorities and
acquiescence of, a State or a political organization organized groups or between such groups within
followed by a refusal to acknowledge that a State provided that it gives rise or may give rise

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to a situation to which the Geneva Conventions of Suspension of arms
12 August 1949 including their common Art. 3,
apply. A temporary cessation of hostilities by agreement of
the local commanders for such purposes as the
Instances not covered by an armed conflict gathering of the wounded and the burial of the dead.

It does not include internal disturbances or tensions Armistice


such as:
1. Riots The suspension of hostilities within a certain area or in
2. Isolated and sporadic acts of violence the entire region of the war, agreed upon by the
3. Other acts of a similar nature belligerents, usually for the purpose of arranging the
terms of the peace.
Hors de combat
Armistice v. Suspension of arms
Any person who:
1. Is in the power of an adverse party SUSPENSION OF
BASIS ARMISTICE
2. Has clearly expressed an intention to surrender ARMS
3. Has been rendered unconscious or otherwise As to Political Military
incapacitated by wounds or sickness and purpose
therefore is incapable of defending himself (RA As to Usually in May be oral
9851) form writing
As to who Only by the May be
NOTE: In these cases the person abstains from any hostile
may commanders- concluded by the
act and does not attempt to escape. Under these
circumstances, the said person shall not be made object of conclude in-chief local
attack. Only combatants can be persons hors de combat. of the commanders
belligerent
Protected persons in an armed conflict governments

1. A person wounded, sick or shipwrecked, whether Ceasefire


civilian or military;
2. A prisoner of war or any person deprived of liberty An unconditional stoppage of all hostilities usually
for reasons related to an armed conflict ordered by an international body like the United
3. A civilian or any person not taking a direct part or Nations Security Council.
having ceased to take part in the hostilities in the
power of the adverse party; Truce
4. A person who, before the beginning of hostilities,
was considered a stateless person or refugee A conditional ceasefire for political purposes.
under the relevant international instrument
accepted by the parties to the conflict concerned Capitulation
or under the national legislation of the state of
refuge or state of residence; The surrender of military forces, places or districts, in
5. A member of the medical personnel assigned accordance with the rules of military honor.
exclusively to medical purposes or to the
administration of medical units or to the INTERNAL OR
operation of an administration of medical NON-INTERNATIONAL ARMED CONFLICT
transports; or
6. A member of the religious personnel who is Non-application of IHL in internal disturbance
exclusively engaged in the work of their ministry
and attached to the armed forces of a party to the Internal disturbances and other situations of internal
conflict, its medical units or medical transports or violence are governed by the provisions of human
non-denominational, non-combatant military rights law and such measures of domestic legislation
personnel carrying out functions similar to as may be invoked. IHL does not apply to situations of
religious personnel. violence not amounting in intensity to an armed
conflict.
NOTE: In such situations, the Geneva Conventions and
Additional Protocol I apply.

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Application of IHL in terms of non-international of International Armed Conflicts (Protocol I), 8 June
armed conflicts 1977.

Humanitarian law is intended for the armed forces, Categories of wars of national liberation
whether regular or not, taking part in the conflict, and
protects every individual or category of individuals not 1. Colonial domination;
or no longer actively involved in the hostilities. E.g.: 2. Alien occupation; and
wounded or sick fighters; people deprived of their 3. Racist regimes when the peoples oppressed by
freedom as a result of the conflict; civilian population; these regimes are fighting for self-determination.
medical and religious personnel.
NOTE: The wars of national liberation are restrictive in the
Applicable rules in non-international armed conflict sense that they only fall under the above-cited situations.

1. Persons taking no active part in the hostilities, Effect of the Protocol


including armed forces who have laid down their
arms and those placed hors de combat be treated Armed conflicts that fall under the categories will now
humanely, without any adverse distinction be regarded as international armed conflicts and thus
founded on race, color, religion or faith, sex, birth fall under the International Humanitarian Law.
or wealth, or any other similar criteria. To these
end, the following acts are and shall remain CORE INTERNATIONAL OBLIGATIONS
prohibited at any time and any place whatsoever OF STATES IN IHL
with respect to the abovementioned persons:
a. Violence to life and person, in particular Essential rules of IHL
murder of all kinds, mutilation, cruel
treatment and torture; 1. The parties to a conflict must at all times
b. Taking of hostages; distinguish between the civilian population and
c. Outrages against personal dignity, in combatants.
particular humiliating and degrading 2. Neither the civilian population as a whole nor
treatment; individual civilians may be attacked
d. The passing of sentences and the carrying out 3. Attacks may be made sole against military
of executions without previous judgment objectives.
pronounced by a regularly constituted court, 4. People who do not or can no longer take part in
affording all the judicial guarantees which are the hostilities are entitled to respect for their lives
recognized as indispensable by civilized and for their physical and mental integrity and
peoples. must be treated with humanity, without any
2. The wounded and sick shall be collected and cared unfavorable distinction whatever.
for. 5. It is forbidden to kill or wound an adversary who
surrenders or who can no longer take part in the
NOTE: An impartial humanitarian body, such as the fighting.
International Committee of the Red Cross, may offer its 6. Neither the parties to the conflict nor members of
services to the parties to the conflict. their armed forces have an unlimited right to
choose methods and means of warfare.
WAR OF NATIONAL LIBERATION 7. It is forbidden to use weapons or methods of
warfare that are likely to cause unnecessary losses
Wars of national liberation and excessive suffering.
8. The wounded and sick must be collected and
Armed conflicts in which people are fighting against cared for by the party to the conflict which has
colonial domination and alien occupation and against them in its power.
racist regimes in the exercise of their right to self- 9. Medical personnel and medical establishments,
determination. (Art. 1(4), Protocol I) These are transports and equipment must be spared. The
sometimes called insurgencies, rebellions or wars of red cross or red crescent is the distinctive sign
independence. indicating that such persons and objects must be
respected.
Basis 10. Captured combatants and civilians who find
themselves under the authority of the adverse
Protocol Additional to the Geneva Conventions of 12 party are entitled to respect for their lives, their
August 1949 and relating to the Protection of Victims dignity, their personal rights and their political,

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religious and other convictions and must be humanitarian principles. These rules indicate the
protected against all acts of violence or reprisals; normal conduct and behavior expected of States.
entitled to exchange of news with their families
and receive aid and enjoy basic judicial PRISONERS OF WAR
guarantees.
Prisoners of war
PRINCIPLES OF IHL
Those lawful combatants who have fallen into the
Fundamental principles of IHL power of the enemy.

1. Parties to armed conflict are prohibited from Rights and privileges of prisoners of war
employing weapons or means of warfare that
cause unnecessary damage or excessive suffering. 1. To be treated humanely
(Principle of prohibition of use of weapons of a 2. Not to be subject to torture
nature to cause superfluous injury or unnecessary 3. To be allowed to communicate with their families
suffering) 4. To receive food, clothing, religious articles, and
2. Parties to armed conflict shall distinguish between medicine
civilian populace from combatants and spare the 5. To bare minimum of information
former from military attacks. (Principle of 6. To keep personal belongings
distinction between civilians and combatants) 7. To proper burial
3. Persons hors de combat and those who do not 8. To be grouped according to nationality
take part in hostilities are entitled to respect for 9. To the establishment of an informed bureau
their lives and their moral and physical integrity. 10. To repatriation for sick and wounded (1949
They shall be protected and treated humanely Geneva Convention)
without any adverse distinction.
4. It is prohibited to kill or injure an enemy who Members of militias or volunteer groups as prisoners-
surrenders or who is a hors de combat. of-war
5. The wounded and the sick shall be protected and
cared for by the party who is in custody of them. Members of militias or volunteer groups are entitled
Protection shall cover medical personnel, to prisoner-of-war status when captured by the
establishments, transports and equipment. The enemy, provided that:
emblem of Red Cross or the Red Crescent is a sign 1. They form part of such armed forces of the state;
of such protection and must be respected. or
6. Parties who captured civilians and combatants 2. They fulfill the following conditions:
shall respect the latters rights to life, dignity, and a. They are being commanded by a person
other personal rights. responsible as superior;
b. They have a fixed distinctive sign recognizable
TREATMENT OF CIVILIANS at a distance;
c. They carry arms openly; and
Martens clause/Principle of Humanity d. They conduct their operations in accordance
with the laws and customs of war.
In cases not covered by other international
agreements, civilians and combatants remain under Captured guerilla as prisoner-of-war
the protection and authority of the principles of
International Law derived from established custom, A captured guerilla or other members of organized
from the Principles of Humanity and from the dictates resistance movements may demand treatment
of public conscience. afforded to a prisoner of war under the 1949 Geneva
Convention, provided that:
The extensive codification of humanitarian law and the 1. They are being commanded by a person
extent of the accession to the resultant treaties, as responsible as superior;
well as the fact that the denunciation clauses that 2. They have a fixed distinctive sign recognizable at
existed in the codification instruments have never a distance;
been used, have provided the international 3. They carry arms openly; and
community with a corpus of treaty rules the great 4. They conduct their operations in accordance with
majority of which had already become customary and the laws and customs of war.
which reflected the most universally recognized

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NOTE: Persons such as civilian members of military aircraft Neutrality v. Non-alignment
crews, and war correspondents, shall be so entitled to
prisoner-of-war status when they fall under the hands of the NEUTRALITY NON-ALIGNMENT
enemy.
Presupposes the Exists during peace time
existence of war or
Status of journalists who are engaged in dangerous
conflict
professional missions in areas of armed conflicts
Avoids involvement in a Rejects imperialism and
war colonialism by the world
They shall be treated as civilians, provided that they
powers
take no action adversely affecting their status as
Pre-determined Evaluates the world
civilians, and their prisoners-of-war status to the
position political events based
armed forces when they fall to the enemy hands.
on case-to-case merits
Treatment of spies when captured
A State considered as a neutralized State
Spies are not entitled to prisoner-of-war status when
captured by the enemy. Any member of the armed When its independence and integrity are guaranteed
forces of a arty to the conflict who falls into the power by an international convention on the condition that
of an adverse party while engaging in espionage shall such State obligates itself to never take up arms
not have the right to the status of prisoner of war and against any other State, except for self-defense, or
may be treated as a spy. enter into such international obligations as would
indirectly involve a war.
However, the following acts of gathering or
NOTE: A State seeks neutralization where it is weak and does
attempting to gather information shall not be
not wish to take active part in international politics. The
considered as acts of espionage: power that guarantees its neutralization may be motivated
1. When made by a member of the armed forces either by balance of power considerations or by desire to
who is in uniform; make the State a buffer between the territories of the great
2. When made by a member of the armed forces powers.
who is a resident of the territory occupied by an
adverse party who does so but not through an act Rights and duties of a neutral State
of false pretenses or in a deliberately clandestine
manner. 1. Duty of abstention Abstain from taking part in
the hostilities and from giving assistance to either
LAW OF NEUTRALITY belligerent
2. Right of territorial integrity Prevent its territory
Neutrality and other resources from being used in the
conduct of hostilities
It is non-participation, directly or indirectly, in a war 3. Duty of acquiescence Acquiesce in certain
between contending belligerents. This exists only restrictions and limitations the belligerents may
during war time and is governed by the law of nations. find necessary to impose
4. Right of diplomatic communication To continue
NOTE: Examples of these states are Switzerland, Sweden, diplomatic relations with other neutral states and
The Vatican City, and Costa Rica. with the belligerents

Non-alignment (Neutralism) Obligations of belligerents

This refers to peacetime foreign policies of nations 1. Respect the status of the neutral State;
desiring to remain detached from conflicting interests 2. Avoid any act that will directly or indirectly involve
of other nations or power groups. it in their conflict and to submit to any lawful
measure it may take to maintain or protect its
Neutralist policy neutrality.

It is the policy of the state to remain neutral in future Some restraints on neutral States
wars. Non-alignment is the implementation of
neutralism. 1. Blockade
2. Contraband of war
3. Free ships make free goods

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Blockade Doctrine of Free Ships Make Free Goods

It is a hostile operation by means of which vessels and A ships nationality determines the status of its cargo.
aircraft of one belligerent prevent all other vessels, Thus, enemy goods on a neutral ship, excepting
including those of neutral States, from entering or contraband, would not be subject to capture on the
leaving the ports or coasts of the other belligerent, the high seas.
purpose being to shut off the place from international
commerce and communications with other States. Visit and search

Elements of a valid blockade Belligerent warships and aircraft have the right to visit
and search neutral merchant vessels on the high seas
1. Binding and duly communicated to neutral states; to determine whether they are in any way connected
2. Effective and maintained by adequate sources; with the hostilities.
3. Established by a competent authority of
belligerent government; Unneutral service
4. Limited only to the territory of the enemy; and
5. Impartially applied to all states. It consists of acts, of a more hostile character than
carriage of contraband or breach of blockade, which
Contraband are undertaken by merchant vessels of a neutral State
in aid of any of the belligerents.
It refers to goods which, although neutral property,
may be seized by a belligerent because they are useful Right of angary
for war and are bound for a hostile destination.
The right of a belligerent state to seize, use or destroy,
They may be absolute, such as guns or ammunition, in case of urgent necessity for purposes of offenses or
which are useful for war under all circumstances; defense, neutral property found in enemy territory, or
conditional, such as food and clothing, which have on the high seas, upon payment of just compensation.
both civilian and military utility; or under the free list,
such as medicines, which are exempt from the law on Requisites for the exercise of right of angary
contraband for humanitarian reasons.
1. That the property is in the territory under the
Doctrine of Continuous Voyage or Continuous control or jurisdiction of the belligerent;
Transport 2. That there is urgent necessity for the taking; and
3. That just compensation is paid to the owner.
Goods immediately reloaded at an intermediate port
on the same vessel, or reloaded on another vessel or Termination of neutrality
other forms of transportation may also be seized on
the basis of doctrine of ultimate consumption. Neutrality is terminated when the neutral State itself
joins the war or upon the conclusion of peace.
Doctrine of Ultimate Consumption
LAW OF THE SEA
Goods intended for civilian use which may ultimately
find their way to and be consumed by belligerent International Law of the Sea (ILS)
forces may be seized on the way.
It is a body of treaty rules and customary norms
Doctrine of Infection governing the uses of the sea, the exploitation of its
resources, and the exercise of jurisdiction over
Innocent goods shipped with contraband may also be maritime regimes.
seized.
United Nations Convention on the Law of the Sea
Doctrine of Ultimate Destination (UNCLOS)

The liability of the contraband from being captured is It defines the rights and obligations of nations in their
determined not by their ostensible but by their real use of the worlds oceans, establishing rules for
destination. business, the environment and the management of
marine natural resources.

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Mare Liberum Principle/Free Sea or Freedom of the bay in such a manner as to enclose the
Sea maximum area of water that is possible with
a line of that length. (Art. 10 [5], UNCLOS)
It means international waters are free to all nations
and belongs to none of them. NOTE: This relates only to bays the coasts of which belong to
a single State and does not apply to historic bays. (Art. 10
BASELINES (1), UNCLOS)

Baseline Bay

It is a line from which the breadth of the territorial sea, It is a well-marked indentation whose penetration is in
the contiguous zone and the exclusive economic zone such proportion to the width of its mouth as to contain
is measured in order to determine the maritime land-locked waters and constitute more than a mere
boundary of the coastal State. curvature of the coast. (Art. 10 (2), UNCLOS)

NOTE: The indentation shall not be regarded as a bay unless


its area is as large as, or larger than, that of the semi-circle
whose diameter is a line drawn across the mouth of that
indentation. (Ibid)

ARCHIPELAGIC STATES

Archipelago

It means a group of islands, including parts of islands,


interconnecting waters and other natural features
which are so closely interrelated that such islands,
waters and other natural features form an intrinsic
geographical, economic and political entity, or which
historically have been regarded as such. (Art. 46,
UNCLOS)

Archipelagic State

A state constituted wholly by one or more


archipelagos and may include other islands. (Art. 46,
Normal Baseline UNCLOS)

It is the low-water line along the coast as marked on STRAIGHT ARCHIPELAGIC BASELINES
large-scale charts officially recognized by the coastal
state. (Art. 5, UNCLOS) Straight archipelagic baselines vis--vis archipelagic
state
Formation of Baseline
An archipelagic State may draw straight archipelagic
1. Mouths of Rivers If a river flows directly into the baselines by joining the outermost points of the
sea, the baseline shall be a straight line across the outermost islands and drying reefs of the archipelago
mouth of the river between points on the low- provided that within such baselines are included the
water line of its banks. (Art. 9, UNLOS) main islands and an area in which the ration of the
2. Bays Where the distance between the low- water to the area of the land, including atolls, is
water marks of the natural entrance points: between 1 to 1 and 9 to 1. (Art. 47, UNCLOS)
a. Does not exceed 24 nautical miles closing
line may be drawn between these two low- Guidelines in drawing archipelagic baselines
water marks, and the waters enclosed
thereby shall be considered as internal 1. The length of such baselines shall not exceed 100
waters. (Art. 10 [4], UNCLOS) nautical miles, except that up to 3 per cent of the
b. Exceeds 24 nautical milesstraight baseline of total number of baselines enclosing any
24 nautical miles shall be drawn within the archipelago may exceed that length, up to a

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maximum length of 125 nautical miles. (Art. 47 INTERNAL WATERS
[2], UNCLOS)
2. The drawing of such baselines shall not depart to Internal waters
any appreciable extent from the general
configuration of the archipelago. (Art. 47[3], These are waters of lakes, rivers and bays landward of
UNCLOS) the baseline of the territorial sea. Waters on the
3. Such baselines shall not be drawn to and from low landward side of the baseline of the territorial sea also
tide elevations. (Art. 47[4], UNCLOS) form part of the internal waters of the coastal state.
However, in the case of archipelagic states, waters
NOTE: Unless lighthouses or similar installations which landward of the baseline other than those of rivers,
are permanently above sea level have been built on bays, and lakes, are archipelagic waters. (Art. 8 [1],
them or where a low-tide elevation is situated wholly or UNCLOS)
partly at distances not exceeding the breadth of the
territorial sea from the nearest island. (Ibid)
Delimitation of internal waters
4. It shall not be applied in such a manner as to cut
Within the archipelagic waters, the archipelagic state
off from the high seas or the exclusive economic
may draw closing lines for the delimitation of internal
zone the territorial sea of another State. (Art.
waters. (Art. 50, in relation with 9, 10, 11, UNCLOS)
47[5], UNCLOS)
5. If a part of the archipelagic water of an
NOTE: A coastal state has sovereignty over its internal
archipelagic State lies between two parts of an waters as if internal waters were part of its land territory.
immediately adjacent neighboring State, existing (Art. 50, UNCLOS)
rights and all other legitimate interests which the
latter State has traditionally exercised in such Applicability of the right of innocent passage in
waters and all rights stipulated by agreement internal waters
between those States shall continue and be
respected. (Art. 47[6], UNCLOS) GR: There is no Right of Innocent Passage through the
internal water because it only applies to territorial sea
NOTE: The breadth of the territorial sea, the contiguous and the archipelagic waters. (Art. 8[2], UNCLOS)
zone, the exclusive economic zone and the continental shelf
are measured from the archipelagic baselines drawn. (Art.
48, UNCLOS) XPN: A coastal state may extend its internal waters by
applying the straight baseline method in such a way as
Sovereignty of the archipelagic states to enclose as its internal waters areas which are
previously part of the territorial sea. It also applies to
It extends to the waters enclosed by the archipelagic straits used for international navigation converted into
baselines (archipelagic waters, regardless of their internal waters by applying the straight baselines
depth or distance from the coast, to the air space over method. Thus, the right of innocent passage continues
the archipelagic waters, as well as to their bed and to exist in the extended internal waters. (Art. 8[2],
subsoil and the resources contained therein. (Art. UNCLOS)
49[1], UNCLOS)
ARCHIPELAGIC WATERS
The sovereignty extends to the archipelagic waters but
is subject to the right of innocent passage which is the Archipelagic waters
same nature as the right of innocent passage in the
territorial sea. (Art. 49[1] in relation to Art. 52[1], These are waters enclosed by the archipelagic
UNCLOS) baselines, regardless of their depth or distance from
the coast. (Art. 49[1], UNCLOS)
NOTE: The regime of archipelagic sea lanes passage shall not
in other respects affect the status of the archipelagic waters, Rights by which archipelagic waters are subject to
including the sea lanes, or the exercise by the archipelagic
State of its sovereignty over such waters and their air space, 1. Rights under existing agreement on the part of the
bed and subsoil and the resources contained therein. (Art. third states should be respected (Art. 51[1],
49[4], UNCLOS) UNCLOS);
2. The traditional fishing rights and other legitimate
activities of the immediately adjacent neighboring
States (Ibid);

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3. Existing submarine cables laid by other States and The fact of sovereignty, however, does not preclude
passing through its waters without making a the operation of municipal and international law
windfall as well as the maintenance and norms subjecting the territorial sea or archipelagic
replacement of such cables upon being notified of waters to necessary, if not marginal, burdens in the
their location and the intention to repair or interest of maintaining unimpeded, expeditious
replace them. (Art. 51[2], UNCLOS) international navigation, consistent with the
international law principle of freedom of navigation.
Applicability of the right of innocent passage in Thus, domestically, the political branches of the
archipelagic waters Philippine government, in the competent discharge of
their constitutional powers, may pass legislation
GR: As a rule, ships of all States enjoy the right of designating routes within the archipelagic waters to
innocent passage through archipelagic waters. (Art. regulate innocent and sea lanes passage. (Prof.
52[1}, UNCLOS) Magallona, et al. v. Ermita, et al., G. R. No. 187167,
Aug. 16, 2011)
XPN: Right of Innocent Passage may be suspended in
some areas of its archipelagic waters. But such Q: Suppose there is no municipal legislation, what
suspension must be: will govern innocent passage rights?
1. Without discrimination in form or in fact among
foreign ships; A: In the absence of municipal legislation,
2. Essential for the protection of its security; and international law norms, now codified in UNCLOS III,
3. Shall take effect only after having been duly operate to grant innocent passage rights over the
published. (Art. 52[2], UNCLOS) territorial sea or archipelagic waters, subject to the
treatys limitations and conditions for their exercise.
Q: Does RA 9522 (Philippine Archipelagic Baseline Significantly, the right of innocent passage is a
Law) converting internal waters into archipelagic customary international law, thus automatically
waters, violate the Constitution in subjecting these incorporated in the corpus of Philippine law. No
waters to the right of innocent and sea lanes passage modern State can validly invoke its sovereignty to
including overflight? absolutely forbid innocent passage that is exercised in
accordance with customary international law without
A: Whether referred to as Philippine internal waters risking retaliatory measures from the international
under Art. I of the Constitution or as archipelagic community.
waters under UNCLOS III (Art. 49 [1]), the Philippines
exercises sovereignty over the body of water lying The fact that for archipelagic States, their archipelagic
landward of the baselines, including the air space over waters are subject to both the right of innocent
it and the submarine areas underneath. UNCLOS III passage and sea lanes passage does not place them in
affirms this: lesser footing vis--vis continental coastal States which
are subject, in their territorial sea, to the right of
Art. 49. Legal status of archipelagic waters, of the innocent passage and the right of transit passage
air space over archipelagic waters and of their bed through international straits. The imposition of these
and subsoil. passage rights through archipelagic waters under
1. The sovereignty of an archipelagic State extends UNCLOS III was a concession by archipelagic States, in
to the waters enclosed by the archipelagic exchange for their right to claim all the waters
baselines drawn in accordance with Art. 47, landward of their baselines, regardless of their depth
described as archipelagic waters, regardless of or distance from the coast, as archipelagic waters
their depth or distance from the coast. subject to their territorial sovereignty. More
2. This sovereignty extends to the air space over importantly, the recognition of archipelagic States
the archipelagic waters, as well as to their bed archipelago and the waters enclosed by their baselines
and subsoil, and the resources contained as one cohesive entity prevents the treatment of their
therein. islands as separate islands under UNCLOS III. Separate
xxx islands generate their own maritime zones, placing the
4. The regime of archipelagic sea lanes passage waters between islands separated by more than 24
established in this Part shall not in other nautical miles beyond the States territorial
respects affect the status of the archipelagic sovereignty, subjecting these waters to the rights of
waters, including the sea lanes, or the exercise other States under UNCLOS III. (Ibid.)
by the archipelagic State of its sovereignty
over such waters and their air space, bed and
subsoil, and the resources contained therein.

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ARCHIPELAGIC SEA LANES PASSAGE


Art. I, Sec. 1 of the 1987 Constitution adopts the
Right of archipelagic sea lanes passage archipelagic doctrine. It provides that the national
territory of the Philippines includes the Philippine
It is the right of foreign ships and aircraft to have archipelago, with all the islands and waters embraced
continuous, expeditious and unobstructed passage in therein; and the waters around, between and
sea lanes and air routes through or over the connecting the islands of the archipelago, regardless
archipelagic waters and the adjacent territorial sea of of their breadth and dimensions form part of the
the archipelagic state, in transit between one part of internal waters of the Philippines.
the high seas or an exclusive economic zone. All ships
and aircraft are entitled to the right of archipelagic sea TERRITORIAL SEA
lanes passage. (Art. 53[1] in relation with Art. 53[3],
UNCLOS) Breadth of the territorial sea

All ships are entitled to the right of archipelagic Every State has the right to establish the breadth of the
sealanes passage. Submarines are not required to territorial sea up to a limit not exceeding 12 nautical
surface in the course of its passage unlike the exercise miles, measured from baselines. (Art. 3, UNCLOS)
of right of innocent passage in the territorial sea. (Art.
20 in relation to Art. 53[3], UNCLOS) Outer limit of the territorial sea

The right is the same as Transit Passage. Both define It is the line every point of which is at a distance from
the rights of navigation and overflight in the normal the nearest point of the baseline equal to the breadth
mode solely for the purpose of continuous, of the territorial sea. (Art. 4, UNCLOS)
expeditious and unobstructed transit. In both cases,
the archipelagic state cannot suspend passage (Arts. Territorial sea v. Internal waters of the Philippines
44 and 54, UNCLOS)
Territorial water is defined by historic right or treaty
NOTE: The right of archipelagic sea lanes passage may be limits while internal water is defined by the
exercised through the routes normally used for international archipelago doctrine. The territorial waters, as defined
navigation. (Art. 53[12], UNCLOS) in the Convention on the Law of the Sea, has a uniform
breadth of 12 miles measured from the lower water
Sea lanes and air routes mark of the coast; while the outermost points of our
archipelago which are connected with baselines and
It shall traverse the archipelagic waters and the all waters comprised therein are regarded as internal
adjacent territorial sea and shall include all normal waters.
passage routes used as routes for international
navigation or overflight through or over archipelagic Methods used in defining territorial sea
waters and, within such routes, so far as ships are
concerned, all navigational channels, provided that 1. Normal baseline method The territorial sea is
duplication of routes of similar convenience between simply drawn from the low-water mark of the
the same entry and exit points shall not be necessary. coast, to the breadth claimed, following its
(Art. 53[4], UNCLOS) sinuousness and curvatures but excluding the
internal waters in the bays and gulfs. (Art. 5,
Designation or substitution of sea lanes UNCLOS)
2. Straight baseline method Where the coastline is
The archipelagic State shall refer proposals to the deeply indented and cut into, or if there is a fringe
competent international organization (International of islands along the coast in its immediate vicinity,
Maritime Organization). The IMO may adopt only such the method of straight baselines joining
sea lanes as may be agreed with the archipelagic State, appropriate points may be employed in drawing
after which the archipelagic State may designate, the baseline from which the breadth of the
prescribe or substitute them. (Art. 53[9], UNCLOS) territorial sea is measure. (Art. 7, UNCLOS)

Archipelagic Doctrine NOTE: The Philippines uses this method in drawing


baselines.
It emphasizes the unity of land and waters by defining
an archipelago either as a group of islands surrounded
by waters or a body of water studded with islands.

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Right of innocent passage (1991 Bar Question) Laws and regulations of the coastal State relating to
innocent passage
It means navigation through the territorial sea of a
State for the purpose of traversing the sea without The coastal state may adopt laws and regulations in
entering internal waters, or of proceeding to internal respect of all or any of the following:
waters, or making for the high seas from internal 1. Safety of navigation and the regulation of
waters, as long as it is not prejudicial to the peace, maritime traffic;
good order or security of the coastal State. (Arts. 18 2. Protection of navigational aids and facilities and
[1][2], 19[1], UNCLOS) other facilities or installations;
3. Protection of cables and pipelines;
Applicability of the right of innocent passage in the 4. Conservation of the living resources of the sea;
internal waters and territorial sea 5. Prevention of infringement of the fisheries laws
and regulations of the coastal State;
In the territorial sea, a foreign State can claim for its 6. Preservation of the environment of the coastal
ships the right of innocent passage, whereas in the State and the prevention, reduction and control of
internal waters of a State no such right exists. pollution thereof;
7. Marine Scientific research and hydrographic
Instances when the right of innocent passage is surveys;
considered prejudicial 8. Prevention of infringement of the customs, fiscal,
immigration or sanitary laws and regulations of
Right of innocent passage is considered prejudicial if the coastal State. (Art. 21[1], UNCLOS)
the foreign ship engages in the following activities:
1. Any threat or use of force against the sovereignty, NOTE: It shall not however, apply to the design,
territorial integrity or political independence of construction, manning or equipment of foreign ships unless
the coastal State, or in any other manner in they are giving effect to generally accepted international
rules or standards. (Art. 21[2], UNCLOS)
violation of the principles of international law
embodied in the Charter of the United Nations;
2. Any exercise or practice with weapons of any kind; Rules when traversing the territorial sea through the
3. Any act aimed at collecting information to the right of innocent passage
prejudice of the defense or security of the coastal
State; 1. Submarines and other underwater vehicles - They
4. Any act aimed at collecting information to the are required to navigate on the surface and to
prejudice of the defense or security of the coastal show their flag. (Art. 20, UNCLOS)
State; 2. Foreign nuclear-powered ships and ships carrying
5. Any act of propaganda aimed at affecting the nuclear or other inherently dangerous or noxious
defense or security of the coastal State; substances They must carry documents and
6. The launching, landing or taking on board of any observe special precautionary measures
aircraft; established for such ships by international
7. The launching, landing or taking on board of any agreements. They may be required to confine
military device; their passage on sea lanes prescribed by the
8. The loading or unloading of any commodity, coastal State. (Art. 23, UNCLOS)
currency or person contrary to the customs, fiscal, 3. Warships
immigration or sanitary laws and regulations of a. Coastal State may require that it leave the
the coastal State; territorial sea immediately when it does not
9. Any act of willful and serious pollution contrary comply with the laws and regulations of the
the Convention; coastal State and disregards compliance (Art.
10. Any fishering activities; 30, UNCLOS)
11. The carrying out of research or survey activities; b. Flag State shall bear international
12. Any act aimed at interfering with any systems of responsibility for any loss or damage to the
communication or any other facilities or coastal State resulting from non-compliance
installations of the coastal State; with the laws and regulations of the coastal
13. Any other activity not having a direct bearing on State concerning passage. (Art. 31, UNCLOS)
passage. (Art. 19 [2], UNCLOS)
NOTE: This will not affect the immunities of warships and
other government ships operated for non-commercial
purpose. (Art. 32, UNCLOS)

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Warship Exercise of criminal jurisdiction of the coastal State

It is a ship belonging to the armed forces of a State GR: Criminal jurisdiction of the coastal State should
bearing the external marks distinguishing such ships of not be exercised on board a foreign ship passing
its nationality, under the command of an officer duly through the territorial sea to arrest any person or to
commissioned by the government of the State and conduct any investigation in connection with any
whose name appears in the appropriate service list or crime committed on board the ship during its passage.
its equivalent, and manned by a crew which is under
regular armed forces discipline. (Art. 29, UNCLOS) XPNs:
1. Consequence of the crime extend to the coastal
NOTE: The right of innocent passage pertains to all ships, State;
including warships. 2. Crime is of a kind to disturb the peace of the
country or the good order of the territorial sea
Duties of the coastal State with regard to innocent 3. Assistance of local authorities has been requested
passage of foreign ships by the master of the ship or by a diplomatic agent
or consular officer of the flag State; or
The coastal State shall: 4. Measures are necessary for the suppression of
1. Not hamper the innocent passage of the foreign illicit traffic in narcotic drugs or psychotropic
ships through its territorial sea; substances (Art. 27[1], UNCLOS)
2. Not impose requirements on foreign ships which
have the practical effect of denying or impairing NOTE: Such does not affect the right of the coastal State to
the right of innocent passage; take any steps authorized by its laws for the purpose of an
3. Not discriminate in form or in fact against the arrest or investigation on board a foreign ship passing
ships of any State or against ships carrying cargoes through the territorial sea after leaving internal waters. (Art.
to, from or on behalf of any State; and 27[2], UNCLOS)
4. Give appropriate publicity to any danger to
navigation, of which it has knowledge, within its Exercise of civil jurisdiction of the coastal State
territorial sea. (Art. 24, UNCLOS)
The coastal state may exercise civil jurisdiction, subject
Rights of protection of the coastal State to the following exceptions:
1. It should not stop or divert a foreign ship passing
The coastal State may: through the territorial sea for the purpose of
1. Take the necessary steps in its territorial sea to exercising civil jurisdiction in relation to a person
prevent passage which is not innocent; (Art. 24[1], on board the ship (Art. 28[1], UNCLOS)
UNCLOS) 2. It may not levy execution against or arrest the ship
2. Take the necessary steps to prevent any breach of for the purpose of any civil proceedings, save only
the conditions to which admission of ships to in respect of obligations or liabilities assumed or
internal waters or such a call is subject; (Art. 24[2], incurred by the ship itself in the course or for the
UNCLOS) purpose of its voyage through the waters of the
3. Without discrimination in form or in fact among coastal State. (Art. 28[2], UNCLOS)
foreign ships, suspend temporarily in specified
NOTE: It is without prejudice to the right of the coastal State,
areas of its territorial sea the innocent passage of
in accordance with its laws, to levy execution against or to
foreign ships if such suspension is essential for the
arrest, for the purpose of any civil proceedings, a foreign ship
protection of its security, including weapon lying in the territorial sea, or passing through the territorial
exercises. (Art. 24[3], UNCLOS) sea after leaving internal waters. (Art. 28[3], UNCLOS)

NOTE: No charge may be levied upon foreign ships by reason Contiguous zone
only of their passage through the territorial sea. (Art. 26[1],
UNCLOS)
It is the zone adjacent to the territorial sea, which the
Charges may be levied only as payment for specific services coastal State may exercise such control as is necessary
rendered to the ship which shall be levied without to (1) prevent infringement of its customs, fiscal,
discrimination. (Art. 26[2], UNCLOS) immigration, or sanitary laws within its territory or its
territorial sea or (2) to punish such infringement. The
contiguous zone may not extend more than 24
nautical miles beyond the baseline from which the
breadth of the territorial sea is measured (twelve

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nautical miles from the territorial sea. (Art. 33, adoption by a
UNCLOS) competent
international
NOTE: The coastal state does not have sovereignty over the organization.
contiguous zone because the contiguous zone is a zone of
jurisdiction for a particular purpose, not of sovereignty. NOTE: The coastal State may, without discrimination in form
or in fact among foreign ships, suspend temporarily in
The coastal state must make a claim to its contiguous zone specified areas of its territorial sea the innocent passage of
for pertinent rights to exist. (Art. 33, UNCLOS) foreign ships if such suspension is essential for the
protection of its security, including weapons exercises. Such
Extent of the contiguous zone suspension shall take effect only after having been duly
published (Part II Territorial Sea and Contiguous Zone, Art.
The coastal State may not extend its contiguous zone 25(3) UNCLOS)
beyond the 24 nautical miles from the baseline (from
which the breadth of the territorial sea is measured) Thalweg Doctrine
(Art. 33 [1], UNCLOS)
It provides that for boundary rivers, in the absence of
Transit passage an agreement between the riparian States, the
boundary line is laid in the middle of the main
It is the right to exercise freedom of navigation and navigable channel.
overflight solely for the purpose of continuous and
expeditious transit through the straits used for EXCLUSIVE ECONOMIC ZONE
international navigation, i.e., between two areas of
the high seas or between two exclusive economic Exclusive economic zone (EEZ)
zones. All ships and aircraft enjoy the right of transit
passage. The requirement of continuous and It gives the coastal State sovereign rights overall
expeditious transit does not preclude passage through economic resources of the sea, sea-bed and subsoil in
the strait for the purpose of entering, leaving or an area extending not more than 200 nautical miles
returning from a State bordering the strait, subject to beyond the baseline from which the territorial sea is
the conditions of entry to that State. (Art. 38[2], measured. (Arts. 55 & 57, UNCLOS)
UNCLOS)
Rights of the coastal State in the EEZ (2004 and 2005
NOTE: The right of transit passage is not applicable if there Bar Question)
exists seaward of the island a route through the high seas or
through an exclusive economic zone of similar convenience 1. Sovereign rights
with respect to navigational and hydrographical a. For the purpose of exploring and exploiting,
characteristics. (Art. 38[1], UNCLOS) conserving and managing the living and non-
living resources in the super adjacent waters
Right of innocent passage v. Transit passage of the sea-bed and the resources of the sea-
bed and subsoil;
INNOCENT PASSAGE TRANSIT PASSAGE b. With respect to the other activities for the
Pertains only to Includes right of economic exploitation and exploration of the
navigation of ships overflight EEZ, such as production of energy from water,
Requires submarine and No requirement currents and winds;
other underwater specially applicable to 2. Jurisdictional rights
vehicles to navigate on submarines a. With respect to establishment and use of
the surface and to show artificial islands;
their flag b. As to protection and preservation of the
Can be suspended Cannot be suspended marine environment; and
In the designation of sea Designation of sea c. Over marine scientific research
lanes and traffic lanes and traffic 3. Other rights and duties provided for in the Law of
separation schemes, the separation schemes is the Sea Convention. (Art. 56, Law of the Sea
coastal State shall only subject to a proposal Convention)
take into account the and agreement
recommendations of a between States
competent international bordering the straits
organization. and its subsequent

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NOTE: The coastal State may inspect and arrest ships crew 1. Land-locked States shall have the right to
in its EEZ. participate, on an equitable basis, the exploitation
of an appropriate part of the surplus of the living
The coastal State may board, and inspect a ship, arrest a ship
resources of the exclusive economic zones of
and its crew and institute judicial proceedings against them.
coastal States of the same sub region or region,
Arrested vessels and their crews may be required to post
reasonable bond or any other form of security. However, taking into account the relevant economic and
they must be promptly released upon posting of bond. geographical circumstances of all States
concerned. (Art. 69[1], UNCLOS)
In the absence of agreement to the contrary by the States 2. Developed land-locked States shall be entitled to
concerned, the United Nations Convention on the Laws of participate in the exploitation of living resources
Sea (UNCLOS) does not allow imprisonment or any other only in the exclusive economic zones of developed
form of corporal punishment. However, in cases of arrest coastal States of the same sub region or region
and detention of foreign vessels, it shall promptly notify the
having regard to the extent to which the coastal
flag state of the action taken.
State, in giving access to other States to the living
resources of its exclusive economic zone, has
Contiguous zone v. EEZ (2004 Bar Question)
taken into account the need to minimize
detrimental effects on fishing communities and
The contiguous zone is known as the protective
economic dislocation in States whose nationals
jurisdiction and starts from the 12th nautical mile from
have habitually fished in the zone. (Art. 70[1],
low water from the baseline, while the exclusive
UNCLOS)
economic zone ends at the 200th nautical mile from the
baseline. In the former, the coastal state may exercise
NOTE: This is without prejudice to arrangements agreed
the control necessary to (1) prevent infringement of its upon in sub region or regions where the coastal State may
customs, fiscal, immigration, or sanitary laws within its grant to land-locked States of the same sub region or region
territory or its territorial sea or (2) punish such equal or preferential rights for the exploitation of the living
infringement; while in the latter, no state really has the resources in the EEZ. (Art. 70[4], UNCLOS)
exclusive ownership of it, but the state which has a
valid claim on it according to the UNCLOS has the right This however shall not apply in case of a coastal State whose
to explore and exploit its natural resources. economy is overwhelmingly dependent on the exploitation
of the living resources of its EEZ. (Art. 71, UNCLOS)
Primary obligations of coastal states over the EEZ
CONTINENTAL SHELF
1. Proper conservation and management measures
that the living resources of the EEZ are not Categories of Continental shelf
subjected to over-exploitation;
2. Promote the objective of optimum utilization of 1. Continental shelf
the living resources. (Art. 61[2], 62[1] UNCLOS) a. Geological continental shelf
b. Juridical/Legal Continental Shelf
Land-locked states 2. Extended Continental Shelf

These are states which do not border the seas and do


not have EEZ.

Geographically disadvantaged states

1. Coastal states which can claim no EEZ of their


own; and
2. Coastal states, including states bordering closed
or semi-closed states, whose geographical
situations make them dependent on the
exploitation of the living resources of the EEZ of
other coastal states in the region. (Art. 70[2],
UNCLOS)

Rights of land-locked states and geographically


disadvantaged states

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Geological continental shelf Permissible breadth of the continental shelf

It comprises the entire prolongation of the coastal Under the said UN Convention, it extends to a distance
states land mass and extends up to the outer edge of not extending 200 nautical miles from the baselines.
the continental margin. It starts from the baseline However, if the coastal State succeeds in its
from which the territorial sea is measured and has its application for an extended continental shelf, it may
outer limit at the outer edge of the continental margin extend to not more than 350 nautical miles. (Art.
which may extend beyond the 200 nautical miles from 76[1][5], UNCLOS)
the baseline, or may fall short of that distance.
NOTE: Under Presidential Proclamatio 370, the continental
Continental shelf (Juridical/Legal Continental Shelf) shelf has no such legal limit. It extends outside the area of
the territorial sea to where the depth of the superjacent
waters admits of the exploitation of such natural resources.
It comprises the sea-bed and subsoil of the submarine
In this case, exploitation of resources may go beyond the 200
areas that extend beyond its territorial sea throughout
nautical miles.
the natural prolongation of its land territory to the
outer edge of the continental margin or to a distance EXTENDED CONTINENTAL SHELF
of 200 nautical miles beyond the baselines from which
the breadth of the territorial sea is measured if the Extended continental shelf
edge of the continental margin does not extend up to
that distance. (Art. 76[1], UNCLOS) It is that portion of the continental shelf that lies
beyond the 200 nautical miles limit in the
NOTE: The rights of the coastal State over the continental
juridical/legal continental Shelf. (Ibid)
shelf do not depend on occupation, effective or notional, or
on any express proclamation. (Art. 77[3], UNCLOS)
Benham plateau
The UNCLOS unifies the two shelves into one by
providing that the continental shelf extends to the It is also known as the Benham Rise. The Philippines
breadth of either shelf, whichever is the farthest. (Art. lodged its claim on the area with the United Nations
76[1][4], UNCLOS) Commission on the Limits of the Continental Shelf on
April 8, 2009. The UNCLOS approved the claim of the
Q: How are the two shelves unified? Philippines that the Benham Plateau is part of
Philippine Territory on April 12, 2012.
A: The UNCLOS unifies the two shelves into one by
providing that the continental shelf extends to the Sovereign rights of a coastal State over the
breadth of either shelf, whichever is the farthest. (Art. continental shelf
76[1][4], UNCLOS)
1. Right to explore and exploit its natural resources;
Continental margin (Art. 77[1], UNCLOS)

NOTE: This right is exclusive. Should the coastal State


It is the submerged prolongations of the land mass of
not explore or exploit the natural resources, no one
the coastal state, consisting of the continental shelf may undertake these activities without the express
proper, the continental slope and the continental rise. consent of the coastal State. (Art. 77[2], UNCLOS)
It does not include the deep ocean floor with its ocean Natural resources include mineral and other non-living
ridges or the subsoil. (Art. 76[3], UNCLOS) resources of the seabed and subsoil together with living
organisms belonging to sedentary species. (Art. 77[4],
NOTE: The Continental Margin may extend beyond 200 UNCLOS)
nautical miles. The coastal State shall establish the outer
edge of the continental margin wherever the margin extends Rule on payment for exploitation of non-living
beyond the 200 nautical miles from the baselines. In resources
establishing the Continental Margin it shall either use: GR: Exploitation of the non-living resources of the
1. A line drawn by reference to points no more than 60
continental shelf beyond 200 nautical miles would
nautical miles from the foot of the continental slope; or
2. A line drawn by reference to points at which the entail the coastal State to make payments or
thickness of sediments is less than one percent of the contributions in kind which shall be made
distance to the base of the continental slope. (Art. annually with respect to all production at site after
76[4], UNCLOS) the first five years of production and 1% of the
value or volume of production at the site at the
sixth year. It shall increase by 1% for each

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subsequent year until the 12th year where it shall
remain at 7%. (Art. 82[1][2], UNCLOS) NOTE: The continental shelf of an island is recognized.
However, rocks which cannot sustain human habitation or
XPN: A developing State which is a net importer of economic life shall have no continental shelf or EEZ.
a mineral resource produced from its continental
shelf is exempt from making such payments or High or Open seas
contributions in respect of that mineral resource.
(Art. 82[3], UNCLOS) The waters, which do not constitute the internal
waters, archipelagic waters, territorial sea and
2. To lay submarine cables and pipelines on the exclusive economic zone of a state. They are beyond
continental shelf; (Art. 79[1], UNCLOS) the jurisdiction and sovereign rights of states. (Art. 86,
UNCLOS)
NOTE: State may make reasonable measures for the
prevention, reduction and control of pollution from It is treated as res communes or res nullius, and thus,
pipelines. The laying of cables is limited by the right of are not part of the territory of a particular State. (Art.
the coastal state to take measures in exploring its 89, UNCLOS)
continental shelf, exploiting the natural resources, and
the protection of the marine environment from Freedoms on the high seas
pollution. (Art. 79, UNCLOS)
These are the freedom of:
3. Artificial islands, installations and structures on 1. Navigation
the continental shelf; (Art. 80, UNCLOS) 2. Overflight
3. To lay submarine cables and pipelines
NOTE: Exclusive right to construct, to authorize the
4. To construct artificial islands and other
construction, operation and use of artificial islands and
installations. Jurisdiction is also exclusive. (Art. 80, installations permitted under international law
UNCLOS) 5. Fishing
6. Scientific research (Art. 87[1] in relation to Art. 90,
4. Marine scientific research (Art. 246[1] , UNCLOS) UNCLOS)

NOTE: May be conducted only with consent. Beyond NOTE: This is open to all States and shall be exercised with
the 200 nautical mile, the coastal State cannot withhold due regard for the interests of other States in their exercise
consent to allow research on the ground that the of the freedom of the high seas. (Art. 87[2], UNCLOS)
proposed research project has direct significance to
exploration or exploitation of natural resources. (Art. Flag State
246[2][6], UNCLOS)
It refers to the State whose nationality the ship
5. Right to authorize and regulate drilling on the possesses; for it is nationality which gives the right to
continental shelf for all purposes (Art. 81, fly a countrys flag. In the high seas, a state has
UNCLOS) exclusive jurisdiction over ships sailing under its flag. It
is required however, that there exists a genuine link
NOTE: This right is exclusive. between the State and the ship. (Art. 91[1], 92[2],
UNCLOS)
Limitation on the rights of coastal state over the
continental shelf Duty of the flag state

Rights of the coastal State over the continental shelf A flag state has the duty to render assistance in
do not affect the legal status of the superjacent waters distress in the sense that it shall require the master of
or of the air space above those waters and such the ship, without serious danger to the ship, crew or
exercise of right must not infringe or result in passengers, to render assistance to any person at sea
unjustifiable interference with navigation and other in danger of being lost, or to rescue persons in distress.
rights and freedoms of other States. (Art. 78[1][2], It shall require the master to assist the other ship after
UNCLOS) a collision or its crew and passengers. (Art. 98,
UNCLOS)
Island

It is a naturally formed area of land, surrounded by


water, which is above water at high tide.

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Applicable laws to vessels sailing on the high seas ship, whatever its flag, shall ipso facto be free. (Art. 99,
UNCLOS)
GR: Vessels sailing on the high seas are subject only to
international law and to the laws of the flag State. Doctrine of Hot Pursuit

XPN: However, the arrest or boarding of a vessel It provides that the pursuit of a vessel maybe
sailing in the high seas may be made by a State, other undertaken by the coastal State which has good
than the flag-State of such vessel, in the following reason to believe that the ship has violated the laws
instances: and regulations of that State.
1. A foreign merchant ship by the coastal State in its
internal waters, the territorial sea and the Elements of the doctrine of hot pursuit
contiguous zones for any violation of its laws.
2. A foreign merchant ship for piracy. 1. The pursuit must be commenced when the ship is
3. Any ship engaged in the slave trade. within the internal waters, territorial sea or the
4. Any ship engaged in unauthorized broadcasting. contiguous zone of the pursuing State, and may
5. A ship without nationality, or flying a false flag or only be continued outside if the pursuit has not
refusing to show its flag. been interrupted
2. It is continuous and unabated
Flag of Convenience 3. Pursuit conducted by a warship, military aircraft,
or government ships authorized to that effect.
It refers to foreign flag under which a merchant vessel
is registered for purposes of reducing operating costs Arrival Under Stress
or avoiding government regulations.
It refers to involuntary entrance of a foreign vessel on
Q: A crime was committed on a private vessel another states territory which may be due to lack of
registered in Japan by a Filipino against an provisions, unseaworthiness of the vessel, inclement
Englishman while the vessel is anchored in a port of weather, or other case of force majeure, such as
State A. Where can he be tried? pursuit of pirates.

A: It depends. Under both the English and French Piracy under the UNCLOS
rules, the crime will be tried by the local State A, if
serious enough as to compromise the peace of its port; Piracy consists of any of the following acts:
otherwise by the flag State, Japan if it involves only the 1. Illegal acts of violence or detention, or any act of
members of the crew and is of such a petty nature as depredation, committed for private ends by the
not to disturb the peace of the local State. crew or the passengers of a private ship or a
private aircraft and directed:
NOTE: In the French rule, it recognizes the jurisdiction of the a. On the high seas, against another ship or
flag country over crimes committed on board the vessel aircraft, or against persons or property on
except if the crime disturbs the peace, order and security of board such ship or aircraft
the host country. In English rule, the host country has
b. Against a ship, aircraft, persons or property in
jurisdiction over the crimes committed on board the vessel
a place outside the jurisdiction of any State
unless they involve the internal management of the vessel.
2. Act of voluntary participation in the operation of
Instances when a State may exercise jurisdiction on a ship or of an aircraft with knowledge of facts
open seas making it a pirate ship or aircraft;
3. Act of inciting or of intentionally facilitating an act
1. Slave trade described above. (Art. 101, UNCLOS)
2. Hot pursuit
NOTE: If committed by a warship, government ship or
3. Right of approach
governmental aircraft whose crew mutinied and taken
4. Piracy control of the ship or aircraft, it is assimilated to acts
committed by a private ship or aircraft. (Art. 102, UNCLOS)
Duty of every state in the transportation of slaves
A ship or aircraft retains its nationality although it has
Every state shall take effective measures to prevent become a pirate. (Art. 104, UNCLOS)
and punish the transport of slaves in ships authorized
to fly its flag and to prevent the unlawful use of the flag Warships on the high seas enjoy immunity from jurisdiction
for that purpose. Any slave taking refuge on board any of other states. They enjoy complete immunity. The
jurisdiction of their flag state is exclusive. (Art. 95, UNCLOS)

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Q: A Filipino owned construction company with 2. There should be no fewer than three members
principal office in Manila leased an aircraft registered from each geographical group to be established
in England to ferry construction workers to the by the GA. (Art. 3[2] , UNCLOS)
Middle East. While on a flight to Saudi Arabia with 3. No member of the Tribunal may exercise any
Filipino crew provided by the lessee, the aircraft was political or administrative function, or associate
highjacked by drug traffickers. The hijackers were actively with or be financially interested in any of
captured in Damascus and sent to the Philippines for the operations of any enterprise concerned with
trial. Do the courts of Manila have jurisdiction over the exploration for or exploitation of the
the case? resources of the sea or the seabed or other
commercial use of the sea or the seabed. (Art.
A: Yes. Hijacking is actually piracy, as defined in People 7[1], UNCLOS)
v. Lol-lo (G.R. No. 17958 February 27, 1922) as robbery 4. No member of the Tribunal may act as agent,
or forcible depredation in the high seas without lawful counsel or advocate in any case. (Art. 7[2],
authority and done animo furandi and in the spirit and UNCLOS)
intention of universal hostility. Piracy is a crime against 5. No member of the Tribunal may participate in the
all mankind. Accordingly, it may be punished in the decision of any case in which he has previously
competent tribunal in any country where the offender taken part as agent, counsel or advocate for one
may be found or into which he may be carried. The of the parties, or as a member of a national or
jurisdiction on piracy unlike all other crimes has no international court or tribunal, or in any other
territorial limits. As it is against all, all so may punish it. capacity. (Art. 8[1], UNCLOS)
Nor does it matter that the crime was committed 6. If for some special reason a member of the
within the jurisdictional 3-mile limit of a foreign State Tribunal should not sit in a particular case:
for those limits, though neutral to war, are not neutral a. Member should inform the President of the
to crimes. Tribunal; (Art. 8[2], UNCLOS) or
b. President should give the member notice
INTERNATIONAL TRIBUNAL accordingly. (Art. 8[3], UNCLOS)
FOR THE LAW OF THE SEA
NOTE: Any doubt shall be resolved by decision of the
International Tribunal for the Law of the Sea (ITLoS) majority of other members of the Tribunal present. (Art. 7,
8, UNCLOS)
It is an independent judicial body established by the
Members enjoy diplomatic privileges and immunities. (Art.
Third United Nations Convention on the Law of the Sea 10, UNCLOS)
that adjudicates disputes arising out of the
interpretation and application of the Convention. It Jurisdiction of the Seabed Dispute Chamber
was established after Ambassador Arvido Pardo Malta
addressed the General Assembly of the United Nations The categories of its jurisdiction are the following:
and called for an effective international regime over 1. Disputes between State Parties concerning the
the seabed and ocean floor beyond a clearly defined interpretation or application.
national jurisdiction. Its seat is in Hamburg, Germany. 2. Disputes between a State Party and the Authority
concerning:
Jurisdiction of the Tribunal a. Acts or omissions of the Authority or of a
State Party alleged to be violations of the
Its jurisdiction comprises all disputes and all convention;
applications submitted to it and all matters specifically b. Acts of the Authority alleged to be in excess
provided for in any other agreement which confers of jurisdiction of a misuse of power
jurisdiction to the Tribunal. 3. Disputes between parties to a contract, being
State Parties, the Authority or the Enterprise,
Rules with regard to membership of the Tribunal state enterprises and natural or juridical persons
concerning:
1. No two members of the Tribunal may be nationals a. Interpretation or application of a relevant
of the same State. (Art. 3[1], UNCLOS) contract or a plan of work;
b. Acts or omissions of a party to the contract
NOTE: Otherwise, the person shall be deemed to be a
relating to activities in the Area and directed
national of the one in which he ordinarily exercises civil
and political rights. (Ibid)
to the other party or directly affecting its
legitimate interest.

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4. Disputes between the Authority and a prospective 2. The application for international registration
contractor who has been sponsored by a State (international application) shall be filed with the
5. Disputes between the Authority and a State Party, International Bureau through the intermediary of
a state enterprise or a natural or juridical person the Office with which the basic application was
sponsored by a State Party filed or by which the basic registration was made,
6. Any other disputes for which the jurisdiction of as the case may be.
the Chamber is specifically provided for in the
Convention. (Annex VI, Subsection 2, UNCLOS) NOTE: Any reference to an office shall be construed as a
reference to the office that is in charge, on behalf of a
Contracting Party, of the registration of marks, and any
Alternative means for the settlement of disputes
reference to marks shall be construed to pertain to
established by the Convention
trademarks and service marks.

Aside from the ITLOS, it also established the Territory of a Contracting Party
International Court of Justice, an arbitral tribunal
constituted in accordance with Annex VII to the Where the Contracting Party is a State, the territory of
Convention and a special arbitral tribunal constituted that State, and where the Contracting Party is an
in accordance with Annex VIII of the Convention. intergovernmental organization, the territory in which
the constituting treaty of that intergovernmental
MADRID PROTOCOL AND THE PARIS organization applies. (Art. 2, Madrid Protocol)
CONVENTION FOR THE PROTECTION OF
INDUSTRIAL PROPERTY The following may use the system:

Madrid protocol 1. A natural person; or


2. Legal entity having a connection, through
It is the Protocol relating to the Madrid Agreement establishment, domicile or nationality, with a
which governs the system of international registration Contracting Party to the Madrid Protocol or
of marks. The system makes it possible to protect a Agreement. (Art. 2, Madrid Protocol)
mark in a large number of countries by obtaining an
international registration which has effect in each of Effects on an international registration
the Contracting Parties that has been designated.
The effects of an international registration in each
Process for securing protection of marks through designated Contracting Party are, as from the date of
international registration the international registration, the same as if the mark
had been deposited directly with the Office of that
1. Where an application for the registration of a Contracting Party. (Art. 4, Madrid Protocol)
mark has been filed with the Office of a
Contracting Party or registered in the register of Advantages of the Madrid system
the of the Office of a Contracting party, the person
in whose name that application (basic application) Instead of filing many national applications in all
or that registration (basic registration) stands countries of interest, in several different languages, in
may, subject to the provisions of the Madrid accordance with different national procedural rules
Protocol, secure protection for his mark in the and regulations and paying several different fees, an
territory of the Contracting Parties, by obtaining international application may be obtained by simply
the registration of that mark in the register of the filing one application with the International Bureau
International Bureau of the World Intellectual (through the Office of the home country), in one
Property Organization, provided that: where the language (either English or French) and paying only
basic application has been filed with the Office of one set of fees.
a Contracting State or Organization or where the
basic registration has been made by such an Also, renewal entails simple payment of the necessary
Office, the person in whose name that application fees, every 10 years, to the International Bureau.
or registration stands is a national of that
Contracting State or Organization, or is domiciled, Likewise, if the international organization is assigned
or has a real and effective industrial or to a third party or any other change, such as a change
commercial establishment, in the said Contracting in name and/or address, has occurred, this may be
State. recorded with effect for all designated Contracting
Parties by means of a single procedural step.

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Period of validity of international registration under PRINCIPLE 21 OF THE STOCKHOLM DECLARATION
the Madrid Protocol
Stockholm Declaration
10 years, with possibility of renewal under the
conditions set forth in Art. 7 thereof. (Art. 6, Madrid The Stockholm Declaration, or the Declaration of the
Protocol) United Nations Conference on the Human
Environment, was adopted on June 16, 1972 in
Requirements for renewal of international Stockholm, Sweden. It contains 26 principles and 109
registration recommendations regarding the preservation and
enhancement of the right to a healthy environment.
1. Renewal for a period of only 10 years from the
expiry of the preceding period Principle 21 of the Stockholm Declaration
2. Payment of the basic fee
3. It must not bring about any change in the This declares that States have:
international registration in its latest form. (Art. 7, 1. The sovereign right to exploit their own resources
Madrid Protocol) pursuant to their own environmental policies, and
2. The responsibility to ensure that activities within
NOTE: The International Bureau shall, by sending an their jurisdiction or control do not cause damage
unofficial notice, remind the holder of the international to the environment of other States or of areas
registration and its exact date of expiry six months before
beyond the limits of national jurisdiction.
the expiry of the term of protection.

Moreover, a period of grace of 6 months shall be allowed for Principle 21 of the Stockholm Declaration is a part of
such renewal. (par. 3 & 4, Art. 7, Madrid Protocol) customary law

Paris Convention on protection of industrial property The Court recognizes that the environment is daily
under threat and that the use of nuclear weapons
It applies to industrial properties in the widest sense. could constitute a catastrophe for the environment.
It includes patents, marks, industrial designs, utility The court also recognizes that the environment is not
models, trade names, geographical indications and the an abstraction but represents the living space, the
repression of unfair competition. quality of life and the very human beings, including
generations unborn. The existence of the general
Industrial property obligation of States to ensure that activities within
their jurisdiction and control respect the environment
Shall be understood in the broadest sense, and shall of other States or of areas beyond national control is
apply not only to industry or commerce proper, but now part of the corpus of international law relating to
likewise to agricultural and extractive industries and to the environment. (ICJ Advisory Opinion on the Legality
all manufactured or natural products, for example, of the Threat or Use of Nuclear Weapons, July 8, 1996)
wines, grain, tobacco leaf, fruit, cattle, minerals,
mineral waters, beer, flowers and flour. (Art. 1, Paris Principle of Common but Differentiated
Convention) Responsibility

INTERNATIONAL ENVIRONMENTAL LAW This principle requires the protection of specified


environmental resource or area as common
It is the branch of public international law comprising responsibility but takes into account the differing
"those substantive, procedural and institutional rules circumstances of certain States in the discharge of
which have as their primary objective the protection such responsibilities. (Art. 3[1], Framework Convention
of the environment," the term environment being on Climate Chage)
understood as encompassing "both the features and
the products of the natural world and those of human Precautionary Principle
civilization.
Principle 15 of the Rio Declaration, commonly known
as the Precautionary Principle states:

In order to protect the environment, the


precautionary approach shall be widely applied by
States according to their capabilities. Where there are

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threats of serious damage, lack of full scientific In hindsight, if, after trial, it turns out that the health-
certainly shall not be used as a reason for postponing related fears that petitioners cleave on to have
cost-effective measures to prevent environmental adequate confirmation in fact and in law, the
degradation. questioned project of NAPOCOR then suffers from a
paucity of purpose, no matter how noble the purpose
NOTE: This principle advocates that the potential harm may be. For what use will modernization serve if it
should be addressed even with minimal predictability at proves to be a scourge on an individuals fundamental
hand. The Precautionary Principle requires a high degree of right, not just to health and safety, but, ostensibly, to
prudence on the part of the stakeholders. Decision makers
life preservation itself, in all of its desired quality?
are not only mandated to account for scientific uncertainty
(Hernandez v. NAPOCOR G.R. No. 145328, March 23,
but can also take positive action, e.g., restrict a product or
activity even when there is scientific uncertainty. 2006)

Under Rule 20 of the Rules of Procedure for Environmental Polluter Pays Principle
Cases, the Precautionary Principle is adopted as a rule of
evidence. The Supreme Courts adoption of the It means that the party responsible for producing the
Precautionary Principle in the newly promulgated Rules of pollutants must bear responsibility for shouldering the
Procedure for Environmental Cases affords plaintiffs a better costs of the damage done to the environment. It is
chance of proving their cases where the risks of
expressly stated in Principle 16 of the Rio Declaration
environmental harm are not easy to prove.
on Environment and Development: National
authorities should endeavor to promote the
Q: NAPOCOR began constructing steel towers to
internalization of environment costs and the use of
support overhead high tension cables in connection
economic instruments, taking into account the
with its Sucat-Araneta-Balintawak Power
approach that the polluter should, in principle, bear
Transmission Project. Residents of Dasmarias
the cost of pollution, with due regard to the public
Village were alarmed by the sight of the towering
interest and without distorting international trade and
steel towers and scoured the internet on the possible
investment. (Principle 16, Rio Declaration)
adverse health effects of such structures. They got
hold of published articles and studies linking the
Other principles of IEL set forth in the Rio Declaration
incidence of a fecund of illnesses to exposure to
electromagnetic fields. The illnesses range from
1. States have the sovereign right to exploit their
cancer to leukemia.
own resources pursuant to their own
environmental policies, and the responsibility to
Petitioners filed a complaint for the Issuance of a TRO
ensure that activities within their jurisdiction or
and/or a Writ of Preliminary Injunction against
control do not cause damage to the environment
NAPOCOR. This was granted by the trial court. The
of other states or of areas beyond the limits of
Court of Appeals reversed the order, holding that the
national jurisdiction (Principle 2);
proscription on injunctions against infrastructure
2. Right to development must be fulfilled so as to
projects of the government is clearly mandated by
equitably meet development needs of present
Sec. 1 of PD 1818. Is the issuance of a Writ of
and future generations (Principle 3); and
Preliminary Injunction justified, despite the mandate
3. In order to achieve sustainable development,
of PD 1818?
environmental protection shall constitute an
integral part of the development process and
A: Yes. Whether there is a violation of petitioners
cannot be considered in isolation from it.
constitutionally protected right to health is a question
(Principle 4)
of law that invested the trial court with jurisdiction to
issue a TRO and subsequently, a preliminary
Sustainable Development
injunction. This question of law divests the case from
the protective mantle of Presidential Decree No. 1818.
It is a development that meets the needs of the
present without compromising the ability of future
There is adequate evidence on record to justify the
generations to meet their own needs.
conclusion that the project of NAPOCOR probably
imperils the health and safety of the petitioners so as
Principles that embody sustainable development
to justify the issuance by the trial court of a writ of
preliminary injunction. The health concerns are at the
1. Principle of intergenerational equity The need to
very least, far from imaginary.
preserve natural resources for the benefit of
future generations.

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309 FACULTY OF CIVIL LAW
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2. Principle of sustainable use The aim of exploiting INTERNATIONAL ECONOMIC LAW
natural resources in a manner which is
"sustainable," or "prudent," or "rational," or Characteristics of International Economic Law
"wise," or "appropriate."
3. Principle of equitable use or intra generational 1. It is part of public international law
equity The equitable use of natural resources, 2. It is intertwined with municipal law
which implies that use by one state must take into 3. It requires multi-disciplinary thinking involving as
account the needs of other states. it does not only economics but also political
4. Principle of integration The need to ensure that science, history, anthropology, geography, etc.
environmental considerations are integrated into 4. Empirical research is very important for
economic and other developmental plans, understanding its operation.
programs and projects, and that development
needs are taken into account in applying Key principles of international trade law
environmental objectives.
1. Agreed tariff levels The GATT contains specified
Rules for the protection of the environment in armed tariff levels for each state. Each state agrees not
conflict to raise tariff levels above those contained in the
schedule.
1. Each State Party undertakes not to engage in 2. The most favored nation principle (MFN) The
military or other hostile use of environmental principle means that any special treatment given
modification techniques having widespread, long- to a product from one trading partner must be
lasting or severe effects as the means of made available for like products originating from
destruction, damage or injury to any other Party or destined for other contracting parties.
State (Art. 1 of the Convention on the Prohibition 3. Principle of National Treatment This prohibits
of Military or other Hostile Use of Environmental discrimination between domestic producers and
Modification Techniques or the Environmental foreign producers.
Modification Convention [ENMOD]) 4. Principle of Tariffication This principle prohibits
the use of quotas on imports or exports and the
NOTE: Environmental Modification Techniques refers use of licenses on importation or exportation.
to any technique for the changing through the
deliberate manipulation of natural processes the Exceptions to the abovementioned key principles
dynamics, composition or structure of the earth
including its biota lithosphere, hydrosphere and
atmosphere or outer space. (Art. II, ENMOD) Some of the exceptions are general in nature such as
those referring to public morals, public health,
2. Prohibition of the employment of methods or currency protection, products of prison labor, national
means of warfare which are intended, or may be treasures of historic, artistic or archeological value,
expected, to cause widespread, long-term and and protection of exhaustible natural resources.
severe damage to the natural environment. (Art.
35 (3) of Protocol I Additional to the Geneva
Convention of 1949)

Pollution

It means any introduction by man, directly or


indirectly, of substance or energy into the
environment resulting in deleterious effects of such
nature as to endanger human health, harm living
resources, ecosystem, and material property and
impair amenities or interfere with other legitimate
uses of the environment. (Magallona, citing ILA
Reports, Vol. 60, 1982)

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BIBLIOGRAPHY

Political Law Social Justice


Bernas, Joaquin G. (2006), The 1987 Constitution: Bernas, Joaquin G. (2009), The 1987 Constitution:
Comprehensive Reviewer, Rex Bookstore Comprehensive Reviewer, Rex Bookstore
Cruz, Isagani A. (1998), Constitutional Law, http://www.chr.gov.ph/MAIN%20PAGES/about%
Quezon City: Central Law Book Pub. Co. 20us/02vision_mission.htm
Cruz, Isagani A. (2002), Philippine Political Law,
Quezon City: Central Law Book Pub. Co.
De Leon, Hector S. (2008), The Law on Public
Officers and Election Law, Manila: Rex Book Store
Garner, Political Science and Government
Nachura, Antonio B. (2006), Reviewer in Political
Law, Manila
Sinco, Vicente G., (1939) Philippine Government
and Political Law, Manila: Community
Suarez, Rolando A. (2011), Political Law Reviewer,
Manila: Rex Book Store

Constitutional Law
Bernas, Joaquin G. (2009), The 1987 Constitution:
Comprehensive Reviewer, Manila: Rex Book Store
De Leon, Hector S., Textbook on the Philippine
Constitution
Gorospe, Rene B. (2006), Constitutional Law:
Notes and Readings on the Bill of Rights,
Citizenship and Suffrage, Manila: Rex Book Store

Election, Public Officers and Administrative Law


Agpalo, Ruben E. (1997), Legal Ethics
Agpalo, Ruben E. (2005), Administrative Law, Law
on Public Officers and Election Law
Cruz, Isagani A. (2002), Philippine Political Law,
Quezon City: Central Law Book Pub. Co.
De Leon, Hector S. (2008), The Law on Public
Officers and Election Law, Manila: Rex Book Store
De Leon, Hector S. (2010), Administrative Law
Mechem, M. (1890), A Treatise on the Lw of Public
Officers and Public Officers
Words and Phrases, Vol. 1, p. 127, citing Board of
Com'rs of Dearbon County v Droege, Ind. App., 66
N.E. 2d 134, 138

Local Government
Bernas, Joaquin G. (2011), The 1987 Constitution:
Comprehensive Reviewer, Rex Bookstore
Drilon, Municipal Corporations, Vol. 1
McQuillion, Municipal Corporations, 3d. ed.
Nachura, Antonio B. (2009), Reviewer in Political
Law, Manila
Rodriguez, Local Government Code (5th Edition)

Natl Patrimony
Albano, Political Law Reviewer
Bernas, Joaquin G. (2011), The 1987 Constitution:
Comprehensive Reviewer, Rex Bookstore

UNIVERSITY OF SANTO TOMAS


311 FACULTY OF CIVIL LAW

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