Sunteți pe pagina 1din 134

CONSTITUTIONAL LAW 1 VOTING MAJORITIES .......................................................

14

The Constitution .................... 2 DISCIPLINE OF MEMBERS ........................................ 14

DEFINITION, NATURE AND CONCEPTS ...................... 2 ELECTORAL TRIBUNALS AND THE COMMISSION ON
POLITICAL LAW ............................................................... 2 APPOINTMENTS....................................................... 14
CONSTITUTIONAL LAW ...................................................... 2 ELECTORAL TRIBUNALS ................................................... 14
CLASSIFICATION OF CONSTITUTIONS ..................................... 2 COMMISSION ON APPOINTMENTS ...................................... 15
BASIC PRINCIPLES OF CONSTITUTIONAL INTERPRETATION.......... 2
TYPES OF JUDICIAL REVIEW ................................................ 2 POWERS OF CONGRESS ........................................... 16
INHERENT POWERS ........................................................ 16
PARTS OF THE CONSTITUTION .................................. 2 LEGISLATIVE POWERS ..................................................... 16
NON-LEGISLATIVE POWERS (SCOPE) ................................... 16
AMENDMENTS AND REVISIONS ................................ 2 SPECIFIC POWERS .......................................................... 16
AMENDMENT .................................................................. 2 LEGISLATIVE ................................................................. 16
REVISION ....................................................................... 3 LIMITATIONS ON REVENUE, APPROPRIATIONS AND TARIFF
DIFFERENCE BETWEEN AMENDMENT AND REVISION ................. 3 MEASURES .................................................................... 17
LEGAL TESTS .................................................................. 3 NON-LEGISLATIVE .......................................................... 19
STEPS IN THE AMENDATORY POWERS ................................... 3
SUMMARY OF TWO STAGES OF AMENDATORY/REVISION PROCESS 3
TABLE OF CASES RE: CONSTITUTIONAL AMENDMENTS AND
Executive Department .............. 20
CHANGES IN GOVERNMENT ................................................ 4 THE PRESIDENT ....................................................... 20
QUALIFICATIONS ........................................................... 20
ELECTION .................................................................... 20
SELF-EXECUTING AND NON-SELF-EXECUTING
PROVISIONS ............................................................... 5 PRIVILEGES, INHIBITIONS AND
DISQUALIFICATIONS ................................................ 20
GENERAL PROVISIONS ............................................... 5 PRIVILEGES .................................................................. 20

VICE-PRESIDENT .......................................................21
PROHIBITION .................................................................21
General Considerations ...............6
NATIONAL TERRITORY .............................................. 6 POWERS ................................................................... 22
SCOPE ........................................................................... 6 EXECUTIVE AND ADMINISTRATIVE POWERS IN GENERAL .......... 22
TREATY LIMITS OF THE PHILIPPINE ARCHIPELAGO .................... 6 POWER OF APPOINTMENT ................................................ 22
POWER OF CONTROL AND SUPERVISION .............................. 25
DOCTRINE FOF SOVEREIGN IMMUNITY ..................... 6 MILITARY POWERS ......................................................... 25
STATE ........................................................................... 6 PARDONING POWER ...................................................... 27
BASES ........................................................................... 6 DIPLOMATIC POWER ...................................................... 28
CONCEPT ....................................................................... 6 POWERS RELATIVE TO APPROPRIATION MEASURES ................ 29
HOW STATES CONSENT IS GIVEN ......................................... 7 DELEGATED POWERS ...................................................... 30
SYNTHESIS OF RULES ON SUING GOVT AGENCIES ..................... 8 VETO POWER ................................................................ 30
EXECUTIVE PRIVILEGE ..................................................... 30
PRINCIPLES AND POLICIES ........................................ 8 RESIDUAL POWERS ........................................................ 30

SEPARATION OF POWERS .......................................... 8 RULES ON SUCCESSION ............................................ 31


PRESIDENT ................................................................... 31
CHECKS AND BALANCES ............................................ 9 CONSTITUTIONAL DUTY ON CONGRESS IN CASE OF VACANCY IN THE
OFFICES OF PRESIDENT AND VICE-PRESIDENT ....................... 31
DELEGATION FOF POWERS ........................................ 9 VICE-PRESIDENT ............................................................ 31
TESTS FOR VALID DELEGATION OF POWERS ............................ 9

FORMS OF GOVERNMENT ........................................ 10 Judicial Department .................. 32


DEFINITION .................................................................. 10 CONCEPTS................................................................ 32
DE JURE AND DE FACTO GOVERNMENT ................................ 10 JUDICIAL POWER ........................................................... 32
JUDICIAL REVIEW ........................................................... 32

Legislative Department ............. 10 FUNCTIONS OF JUDICIAL REVIEW........................................ 32


ESSENTIAL REQUISITES FOR JUDICIAL REVIEW ....................... 32
WHO MAY EXERCISE LEGISLATIVE POWER .............. 10 OPERATIVE FACT DOCTRINE .............................................. 33
MOOT QUESTIONS .......................................................... 33
HOUSES OF CONGRESS............................................. 11 POLITICAL QUESTION DOCTRINE ........................................ 33
COMPOSITION, QUALIFICATIONS, AND TERM OF OFFICE ............ 11
SAFEGAURDS OF JUDICIAL INDEPENDENCE ............ 33
LEGISLATIVE PRIVILEGES, INHIBITIONS AND
DISQUALIFICATIONS ................................................. 13 JUDICIAL RESTRAINT ............................................... 34
PRIVILEGES ................................................................... 13
DISQUALIFICATIONS ........................................................ 13
APPOINTMENTS TO THE JUDICIARY ......................... 34
DUTY TO DISCLOSE .......................................................... 13
SYNTHESIS OF CONSTITUTIONAL AND
STATUTORY CLASSIFICATIONS ........................................... 34
QUORUM AND VOTING MAJORITIES ........................ 14 CONSTITUTIONAL REQUIREMENTS ..................................... 34
QUORUM ..................................................................... 14
PROCEDURE OF APPOINTMENT ......................................... 35
DISQUALIFICATION FROM OTHER POSITIONS OF OFFICES ......... 35 FILIPINO FIRST .............................................................. 44

THE SUPREME COURT .............................................. 35 EXPLORATION, DEVELOPMENT AND UTILIZATION OF


COMPOSITION OF THE SUPREME COURT .............................. 35 NATURAL RESOURCES............................................. 45
EN BANC AND DIVISION CASES........................................... 35
PROCEDURAL RULEMAKING ............................................. 36 FRANCHISES, AUTHORITY AND CERTIFICATES FOR
ORIGINAL AND APPELLATE JURISDICTION............................. 36 PUBLIC UTILITIES ..................................................... 45
NATURE OF THE FRANCHISE ............................................. 45
JUDICIAL PRIVILEGE ................................................. 36
ACQUISITION, OWNERSHIP AND TRANSFER OF
PUBLIC AND PRIVATE LANDS .................................. 46
Constitutional PRIVATE LANDS ............................................................. 46

Commissions ............................. 37 PRACTICE OF PROFESSIONS .................................... 46


INSTITUIONAL INDEPENDENCE SAFEGUARDS ........ 37
INSTITUTIONAL SAFEGUARDS ........................................... 37 ORGANIZATION AND REGULATION OF
CORPORATIONS, PRIVATE AND PUBLIC .................. 46
POWERS AND FUNCTIONS ....................................... 37 STEWARDSHIP CONCEPT .................................................. 46
CIVIL SERVICE COMMISSION .............................................. 37
COMMISSION ON ELECTIONS ............................................. 38 MONOPOLIES, RESTRAINT OF TRADE AND UNFAIR
COMMISSION ON AUDIT ................................................... 39 COMPETITION .......................................................... 46
MONOPOLIES ................................................................ 46
PROHIBITED OFFICES AND INTERESTS....................40 CENTRAL MONETARY AUTHORITY ...................................... 46

JURISDICTION ..........................................................40
CIVIL SERVICE COMMISSION ..............................................40
Social Justice &
COMMISSION ON ELECTIONS .............................................40 Human Rights .......................... 47
COMMISSION ON AUDIT ...................................................40 CONCEPT OF SOCIAL JUSTICE .................................. 47
1987 CONSTITUTION ...................................................... 47
REVIEW OF FINAL ORDERS, RESOLUTIONS, AND
DECISIONS ...............................................................40 COMMISSION ON HUMAN RIGHTS ........................... 47
QUASI-JUDICIAL FUNCTIONS .............................................40
ADMINISTRATIVE ........................................................... 41

Education, Science, Technology,


Citizenship .................................. 41 Arts, Culture and Sports ........... 48
WHO ARE FILIPINO CITIZENS? ................................. 41 RIGHT TO EDUCATION PROVISIONS ........................ 48

MODES OF ACQUIRING CITIZENSHIP ....................... 41 ACADEMIC FREEDOM............................................... 48


FOUR ESSENTIAL FREEDOMS OF A UNIVERSITY ...................... 48
NATURALIZATION AND DENATURALIZATION ......... 41 HIGHEST BUDGETARY PRIORITY TO EDUCATION ..................... 48
NATURALIZATION .......................................................... 41
DENATURALIZATION ....................................................... 42 CONSTITUTIONAL LAW 2

DUAL CITIZENSHIP AND DUAL ALLEGIANCE ........... 42


DUAL CITIZENSHIP ......................................................... 42 Fundamental Powers
DUAL ALLEGIANCE ......................................................... 42
of the State ........................ 50
LOSS AND REACQUISITION CONCEPT, APPLICATION AND LIMITS ...................... 50
OF FILIPINO CITIZENSHIP ........................................ 42 POLICE POWER .............................................................. 51
GROUNDS FOR LOSS OF CITIZENSHIP .................................. 42 EMINENT DOMAIN .......................................................... 51
HOW MAY CITIZENSHIP BE REACQUIRED .............................. 43 TAXATION .................................................................... 51
RA 9225 ..................................................................... 43
REQUISITES FOR VALID EXERCISE ........................... 52
NATURAL-BORN CITIZENS AND PUBLIC OFFICE ..... 43 POLICE POWER .............................................................. 52
NATURAL-BORN ............................................................ 43 EMINENT DOMAIN .......................................................... 52
WHO MUST BE NATURAL BORN? ........................................ 43 TAXATION .................................................................... 52

SIMILARITIES AND DIFFERENCES ............................ 52


National Economy & Patrimony SIMILARITIES ................................................................ 52
DIFFERENCES ............................................................... 52
.................................................... 44 POLICE POWER V. EMINENT DOMAIN ................................... 53
GOALS ...................................................................... 44 POLICE POWER V. TAXATION ............................................. 53
LICENSE FEE [PP] V. TAX .................................................. 53
REGALIAN DOCTRINE .............................................. 44
DELEGATION ............................................................ 53
NATIONALIST AND CITIZENSHIP REQUIREMENT POLICE POWER .............................................................. 53
PROVISIONS ............................................................. 44 EMINENT DOMAIN .......................................................... 53
CITIZENSHIP REQUIREMENTS ............................................ 44 TAXATION .................................................................... 54
GENERAL RULE FOR WARRANTLESS SEARCHES: PROBABLE CAUSE
Private Acts and REQUIRED .................................................................... 61

the Bill of Rights ....................... 54 WARRANTLESS SEARCHES RECOGNIZED BY JURISPRUDENCE .... 61


SEARCH INCIDENT TO A LAWFUL ARREST ............................. 61
IN GENERAL ............................................................. 54
SEARCH OF MOVING VEHICLES ........................................... 61
PLAIN VIEW DOCTRINE .................................................... 61
BASES AND PURPOSE .............................................. 54 STOP AND FRISK SEARCHES .............................................. 61
VALID EXPRESS WAIVER MADE VOLUNTARILY
ACCOUNTABILITY..................................................... 54 AND INTELLIGENTLY ....................................................... 62
CUSTOMS SEARCH ......................................................... 62
Due Process .............................. 55 EXIGENT AND EMERGENCY CIRCUMSTANCES ......................... 62
IN GENERAL ............................................................. 55 VISUAL SEARCH AT CHECKPOINTS ...................................... 62
DEFINITION .................................................................. 55 PROPERTIES SUBJECT TO SEIZURE ...................................... 62
NOTED EXCEPTIONS TO DUE PROCESS ................................. 55 COMPARISON OF PROCEDURES IN OBTAINING SEARCH WARRANTS
AND ARREST WARRANTS ................................................. 62
RELATIVITY OF DUE PROCESS .................................. 55
WARRANTLESS ARRESTS ........................................ 62
PROCEDURAL AND SUBSTANTIVE DUE PROCESS .... 55 REQUISITES FOR ISSUANCE OF A VALID ARREST WARRANT ....... 62
SCOPE ......................................................................... 55 REQUISITES OF A VALID WARRANTLESS ARREST .................... 63
REQUISITES .................................................................. 56
ADMINISTRATIVE ARRESTS ..................................... 63
CONSTITUTIONAL AND STATUTORY DUE PROCESS. 57
CONSTITUTIONAL DUE PROCESS ........................................ 57 DRUG, ALCOHOL AND BLOOD TESTS ....................... 64
STATUTORY DUE PROCESS ............................................... 57
PRIVATE AND PUBLIC COMMUNICATIONS ............... 64
HIERARCHY OF RIGHTS ............................................ 57 REQUISITES OF EXISTENCE OF PRIVACY RIGHT ....................... 64
INTRUSION, WHEN ALLOWED ............................................ 64
JUDICIAL STANDARDS OF REVIEW ........................... 57 FORMS OF CORRESPONDENCE COVERED .............................. 64
RATIONAL BASIS TEST ..................................................... 57 TESTS OF REASONABLE EXPECTATION OF PRIVACY ................. 64
STRICT SCRUTINY TEST .................................................... 57 WRIT OF HABEAS DATA.................................................... 65
IMMEDIATE SCRUTINY TEST .............................................. 57 Freedom of Expression ................................... 65
CONCEPT AND SCOPE .............................................. 65
VOID-FOR-VAGUENESS DOCTRINE .......................... 57 BASIS ......................................................................... 65
VOID FOR VAGUENESS ..................................................... 57 PRIOR RESTRAINT (CENSORSHIP) ...................................... 66
VOID FOR VAGUENESS DOCTRINE ....................................... 57 SUBSEQUENT PUNISHMENT .............................................. 66
Equal Protection .............................................. 58
CONCEPT.................................................................. 58 CONTENT-BASED AND CONTENT-NEUTRAL
DEFINITION .................................................................. 58 REGULATIONS ......................................................... 66
CONTENT-BASED RESTRICTIONS ........................................ 66
REQUISITES FOR VALID CLASSIFICATION ................ 58 CONTENT-NEUTRAL RESTRICTIONS .................................... 67
EXAMPLES OF VALID CLASSIFICATION.................................. 58
ALIENS ........................................................................ 58 FACIAL CHALLENGES AND THE OVERBREADTH
FILIPINO FEMALE DOMESTICS WORKING ABROAD ................... 58 DOCTRINE ................................................................ 68
LAND-BASED V. SEA-BASED FILIPINO OVERSEAS WORKERS ...... 58 FACIAL CHALLENGES ...................................................... 68
QUALIFICATION FOR ELECTIVE OFFICE ................................. 58 OVERBREADTH DOCTRINE ................................................ 68
ELECTION OFFICIALS V. OTHER MUNICIPAL OFFICIALS.............. 58
OFFICE OF THE OMBUDSMAN ............................................ 58 TESTS ....................................................................... 69
PRINT V. BROADCAST MEDIA ............................................ 58 DANGEROUS TENDENCY TEST ........................................... 69
CLEAR AND PRESENT DANGER TEST ................................... 69
STANDARDS FOR JUDICIAL REVIEW ........................ 58 BALANCING OF INTEREST TEST .......................................... 69
DIRECT INCITEMENT TEST ................................................ 69
GRAVE-BUT-IMPROBABLE DANGER TEST ............................. 69
MILLER TEST................................................................. 69
Searches and Seizures ...... 59 OBRIEN TEST ............................................................... 69
CONCEPT.................................................................. 59
NATURE ...................................................................... 59 STATE REGULATION OF DIFFERENT TYPES OF MASS
SCOPE ......................................................................... 59
MEDIA ...................................................................... 69
MOVIE CENSORSHIP........................................................ 70
WARRANT REQUIREMENT ....................................... 59 TELEVISION CENSORSHIP ................................................. 70
PURPOSE ..................................................................... 59 RADIO CENSORSHIP........................................................ 70
REQUISITES .................................................................. 60
PLACE TO BE SEARCHED .................................................. 60 COMMERCIAL SPEECH ............................................. 70
DESCRIPTION OF PLACE/THINGS ....................................... 60
DESCRIPTION OF PERSONS SEARCHED ................................ 60 PRIVATE V. GOVERNMENT SPEECH .......................... 70
GENERAL WARRANT ....................................................... 60
FORCIBLE ENTRY JUSTIFIED .............................................. 61 HECKLERS VETO....................................................... 71
UNLAWFUL SEARCH ....................................................... 61

WARRANTLESS SEARCHES ...................................... 61


Freedom of Religion ............ 71
NON-ESTABLISHMENT CLAUSE ................................ 71 NECESSITY ................................................................... 76
CONCEPT ...................................................................... 71 PRIVATE PROPERTY ........................................................ 76
BASIS .......................................................................... 71 TAKING ....................................................................... 76
ACTS NOT PERMITTED BY NON-ESTABLISHMENT CLAUSE .......... 71 DUE PROCESS ............................................................... 76
ACTS PERMITTED BY THE ESTABLISHMENT CLAUSE .................. 71
EXPANSIVE CONCEPT OF PUBLIC USE .................. 76
FREE EXERCISE CLAUSE ............................................ 71 JUST COMPENSATION ..................................................... 76
DUAL ASPECT ................................................................ 71 DETERMINATION ........................................................... 76
LAWS AND ACTS JUSTIFIED UNDER FREE EXERCISE CLAUSE ...... 72 EFFECT OF DELAY ........................................................... 77
BENEVOLENT NEUTRALITY DOCTRINE ................................. 72
ABANDONMENT OF INTENDED USE AND RIGHT OF
TESTS ....................................................................... 72 REPURCHASE........................................................... 77
CLEAR AND PRESENT DANGER TEST ................................... 72
BENEVOLENT NEUTRALITY-COMPELLING STATE INTEREST........ 72 MISCELLANEOUS APPLICATION .............................. 77
CONSCIENTIOUS OBJECTOR .............................................. 72 TAKING UNDER SOCIAL JUSTICE CLAUSE ........................... 77

Liberty of Abode and Contracts Clause ................ 77


Freedom of Movement ...... 72 APPLICATION OF THE CONTRACT CLAUSE .............. 77
REQUISITES .................................................................. 77
LIMITATIONS ............................................................ 72
WHO MAY IMPAIR AND WHEN RIGHTS MAY BE CURTAILED ........ 72 CONTEMPORARY APPLICATION OF THE CONTRACT
CLAUSE ................................................................... 78
RIGHT TO TRAVEL .................................................... 72 WHEN NON IMPAIRMENT CLAUSE PREVAILS.......................... 78
WATCH LIST ORDER ........................................................ 72 WHEN NON IMPAIRMENT CLAUSE YIELDS ............................. 78
HOLD-DEPARTURE ORDER ............................................... 73
LIMITATIONS ............................................................ 78
RETURN TO ONES COUNTRY ................................... 73

Legal Assistance and Free


Right to Information ........... 73
POLICY OF FULL PUBLOIC DISCLOSURE V. RIGHT TO Access to Courts ................. 78
INFORMATION ......................................................... 73 RA NO. 9999............................................................. 78

SCOPE OF RIGHT TO ACCESS INFORMATION............ 73

LIMITATIONS ............................................................ 73 Rights of Suspects .............. 79


MIRANDA RIGHTS .................................................... 79
PUBLICATION OF LAWS AND REGULATIONS............ 74
RA 7438 .................................................................... 79
ACCESS TO COURT RECORDS ................................... 74
AVAILABILITY ........................................................... 79
RIGHT TO INFORMATION RELATIVE TO ................... 74 CUSTODIAL INVESTIGATION .............................................. 79
GOVERNMENT CONTRACT NEGOTIATIONS ............................ 74 CRITICAL PRE-TRIAL STAGE .............................................. 79
DIPLOMATIC NEGOTIATIONS ............................................. 74 SHOW-UP AND POLICE LINE-UP ......................................... 79
COURT HEARINGS .......................................................... 74 POLICE LINE-UPS ...........................................................80
REQUISITES ..................................................................80
RIGHT AGAINST SELF-INCRIMINATION .................................80

Right to Association ............ 74 RIGHT TO COUNSEL ........................................................80


RIGHTS TO VISITATION AND CONFERENCE ............................80
LABOR UNIONISM .................................................... 75
LEGAL PERSONALITY AS PRE-CONDITION FOR EFFECTIVE WAIVER ....................................................................80
ASSOCIATION ACTION ..................................................... 75 RULE ON WAIVER ...........................................................80
ELIGIBILITY TO JOIN, ASSIST OR FORM UNION EXPRESSLY DENIED RA 7438 .....................................................................80
BY LAW ....................................................................... 75 BURDEN OF PROVING VOLUNTARINESS OF WAIVER.................80

COMMUNIST AND SIMILAR ORGANIZATIONS .......... 75

INTEGRATED BAR OF THE PHILIPPINES ................... 75 Rights of the Accused ........ 81


CRIMINAL DUE PROCESS ......................................... 81

Eminent Domain ................ 75 BAIL.......................................................................... 81


WHO MAY AVAIL ............................................................ 81
NON-ESTABLISHMENT CLAUSE ............................... 75 BAIL AS A MATTER OF RIGHT VS. MATTER OF DISCRETION ........ 81
GENERALLY .................................................................. 75 WHEN AVAILABLE .......................................................... 82
SPECIFICALLY ............................................................... 75 STANDARDS FOR FIXING BAIL............................................ 82
WHO HAS JURISDICTION? ................................................. 75
SCOPE AND LIMITATIONS ................................................. 76 PRESUMPTION OF INNOCENCE ................................ 82
RIGHT TO BE HEARD................................................. 82 Excessive Fines and Cruel and
ASSISTANCE OF COUNSEL ....................................... 82 Inhuman Punishments ...... 87
RA 9346 ................................................................... 87
RIGHT TO BE INFORMED .......................................... 82

RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL . 83


IMPARTIAL TRIAL ........................................................... 83 Non-Imprisonment
AVAILABILITY ................................................................ 83
for Debts ............................. 88
RIGHT OF CONFRONTATION .................................... 83 SCOPE ...................................................................... 88

COMPULSORY PROCESS .......................................... 83

TRIALS IN ABSENTIA ................................................ 83 Double Jeopardy ................ 88


WHEN CAN TRIAL IN ABSENTIA BE DONE .............................. 83 TERMINATION OF JEOPARDY .................................. 88
WHEN PRESENCE OF THE ACCUSED IS A DUTY ........................ 83
REQUISITES ............................................................. 88
WHEN SUBSEQUENT PROSECUTION IS BARRED ...................... 88

Writ of Habeas Corpus ...... 84 EXCEPTION ................................................................... 88


WHEN DEFENSE OF DOUBLE JEOPARDY IS AVAILABLE .............. 88
AVAILABILITY ........................................................... 84
MOTIONS FOR RECONSIDERATION AND APPEALS ... 88
RESTRAINT OF LIBERTY ........................................... 84 DISMISSAL WITH CONSENT OF ACCUSED ................ 88

Writ of Amparo, Habeas Data Ex Post Facto and Bills of


and Kalikasan ..................... 84 Attainder ............................ 89
WRIT OF AMPARO .................................................... 84 EX POST FACTO LAWS.............................................. 89
PETITION FOR WRIT ........................................................ 85
BILLS OF ATTAINDER ............................................... 89
WRIT OF HABEAS DATA ............................................ 85
RIGHT TO INFORMATION PRIVACY V. LAW ON PUBLIC OFFICERS
LEGITIMATE STATE INTEREST ............................................ 85

WRIT OF KALIKASAN ................................................ 85


WHO MAY FILE .............................................................. 86 General Principles .............. 91
WHO HAS JURISDICTION .................................................. 86 CONCEPT AND APPLICATION................................... 91
DOCKET FEES ................................................................ 86 DEFINITION .................................................................. 91
WHEN IS WRIT ISSUED ..................................................... 86 PURPOSE ..................................................................... 91
RETURN OF RESPONDENT ................................................ 86 ELEMENTS ................................................................... 91
HEARING ..................................................................... 86 PUBLIC OFFICE V. PUBLIC EMPLOYMENT ............................... 91
PUBLIC OFFICE V. CONTRACT ............................................ 91
PUBLIC OFFICE IS NOT PROPERTY ....................................... 92

Self-Incrimination Clause . 86 CREATION OF PUBLIC OFFICE ............................................ 92


METHODS OF ORGANIZING PUBLIC OFFICES .......................... 92
SCOPE ADND COVERAGE ......................................... 86 MODIFICATION AND ABOLITION OF PUBLIC OFFICE .................. 92
EXAMPLES ................................................................... 86 ESTOPPEL IN DENYING EXISTENCE OF OFFICE ........................ 92
FOREIGN LAWS.............................................................. 86
PUBLIC OFFICER....................................................... 92
APPLICATION ........................................................... 86 DEFINITION .................................................................. 92
EXPANDED APPLICATION ................................................. 86
EFFECT OF DENIAL OF PRIVILEGE........................................ 86 CLASSIFICATION OF PUBLIC OFFICES AND PUBLIC
OFFICERS ................................................................. 93
IMMUNITY STATUTES .............................................. 86
TRANSACTIONAL IMMUNITY ............................................. 86
USE AND FRUIT OF IMMUNITY ........................................... 86
Modes of Acquiring Title to
Public Office ........................93
Involuntary Servitude and MODES OF COMMENCING OFFICIAL RELATION ....... 93
Political Prisoners ............... 87 ELECTION .................................................................... 93
APPOINTMENT .............................................................. 94
INVOLUNTARY SERVITUDE ...................................... 87

POLITICAL PRISONERS ............................................ 87


Modes and Kinds of SOURCE OF POWERS AND AUTHORITY ................... 101

Appointment....................... 94 DUTIES OF PUBLIC OFFICERS .................................. 101


CLASSIFICATION OF APPOINTMENTS ...................... 94 TO BE ACCOUNTABLE TO THE PEOPLE, TO SERVE THEM WITH
UTMOST RESPONSIBILITY, INTEGRITY, LOYALTY AND EFFICIENCY
STEPS IN APPOINTMENT PROCESS .......................... 94 ................................................................................ 101
FOR APPOINTMENTS REQUIRING CONFIRMATION ................... 94 DUTY TO MAKE PUBLIC DISCLOSURE OF STATEMENTS OF ASSETS
AND LIABILITIES .......................................................... 102
PRESIDENTIAL APPOINTEES .................................... 95 TO OWE THE STATE AND THE CONSTITUTION ALLEGIANCE AT ALL
WHO CAN BE NOMINATED AND APPOINTED ONLY WITH THE TIMES ....................................................................... 102
COMMISSION ON APPOINTMENTS CONSENT? ....................... 95
WHO CAN THE PRESIDENT APPOINT WITHOUT CAS APPROVAL? 95

DISCRETION OF APPOINTING OFFICIAL ................... 95 Rights of Public Officers .. 102


PRESUMED................................................................... 95 IN GENERAL ........................................................... 102
DISCRETIONARY ACT....................................................... 95 RIGHTS INCIDENT TO PUBLIC OFFICE ................................. 102
RIGHTS AS A CITIZEN .................................................... 102
EFFECTIVITY OF APPOINTMENT ............................... 96
RIGHT TO SALARY .................................................. 102
EFFECTS OF A COMPLETE, FINAL AND IRREVOCABLE BASIS OF RIGHT TO COMPENSATION ................................. 102
APPOINTMENT ......................................................... 96 RIGHT TO RETIREMENT PAY ............................................ 102

OTHER RIGHTS ....................................................... 103

Eligibility and Qualification RIGHTS UNDER THE CONSTITUTION .................................. 103


RIGHTS UNDER THE CIVIL SERVICE DECREE AND THE NEW

Requirements .................... 96 ADMINISTRATIVE CODE ................................................. 103


NEXT-IN-RANK RULE .................................................... 103
DEFINITION .............................................................. 96 PERSONNEL ACTIONS ................................................... 103
RIGHTS UNDER THE REVISED GOVERNMENT SERVICE INSURANCE
POWER TO PRESCRIBE QUALIFICATIONS ................ 96 ACT .......................................................................... 103
RIGHT TO REINSTATEMENT AND BACK SALARY .................... 103
TIME OF POSSESSION OF QUALIFICATIONS ............. 97 RIGHT TO PROPERTY, DEVICES AND INVENTIONS ................. 103

ELIGIBILITY PRESUMED ........................................... 97

QUALIFICATIONS PRESCRIBED BY CONSTITUTION .. 97 Liabilities of


RELIGIOUS TEST OR QUALIFICATION Public Officers ................... 104
IS NOT REQUIRED .................................................... 97 GENERAL RULE ON LIABILITY ................................ 104
STATUTORY LIABILITY ................................................... 104
QUALFICATION STANDARDS AND REQUIREMENTS
UNDER THE CIVIL SERVICE LAW ............................... 97 CRIMINAL LIABILITY ............................................... 104
QUALIFICATION STANDARDS ............................................ 98
POLITICAL QUALIFICATIONS FOR AN OFFICE ......................... 98 THREE-FOLD RESPONSIBILITY
NO PROPERTY QUALIFICATIONS ......................................... 98 OF PUBLIC OFFICERS ............................................. 105
CITIZENSHIP ................................................................. 98
EFFECT OF REMOVAL OF QUALIFICATIONS DURING THE TERM .... 98 LIABILITY OF MINISTERIAL OFFICERS .................... 105
EFFECT OF PARDON UPON THE DISQUALIFICATION TO HOLD PUBLIC
OFFICE ........................................................................ 98 COMMAND RESPONSIBILIY .................................... 105

PREVENTIVE SUSPENSION AND BACK SALARIES .. 105

Disabilities and Inhibitions of KINDS OF PREVENTIVE SUSPENSION ................................. 105

Public Officers .................... 98 ILLEGAL DISMISSAL, REINSTATEMENT AND BACK


SALARIES ............................................................... 105
DISQUALIFICATIONS TO HOLD PUBLIC OFFICE........ 98

Immunity of
Powers and Duties of Public Public Officers ................... 106
Officers .............................. 100 DOCTRINE OF OFFICIAL IMMUNITY FROM LIABILITIES
CLASSIFICATION OF POWERS AND DUTIES ........... 100 FOR PUBLIC OFFICERS ........................................... 106
AS TO NATURE ............................................................ 100
AS TO OBLIGATION TO THE OFFICER TO PERFORM HIS POWERS AND OTHER PUBLIC POLICY CONSIDERATIONS ............. 106
DUTIES ....................................................................... 101
AS TO RELATIONSHIP OF THE OFFICER TO HIS SUBORDINATE .... 101 OFFICIAL IMMUNITY DISTINGUISHED FROM STATE
IMMUNITY ...............................................................107
AUTHORITY OF PUBLIC OFFICERS ........................... 101
OFFICIAL IMMUNITY NOT ABSOLUTE .....................107
SCOPE ..................................................................... 112
IMMUNITY FROM SUIT OF THE PRESIDENT .............107 CIVIL SERVICE COMMISSIONS (CSCS) JURISDICTION .............. 112
RECALL OF APPOINTMENT ............................................... 112
REVIEW APPOINTEES QUALIFICATIONS .............................. 112

De facto Officers ............... 107 WHAT IT CANNOT DO ..................................................... 112

DE FACTO DOCTRINE ..............................................107 APPOINTMENTS TO THE CIVIL SERVICE .................. 112


SCOPE ........................................................................ 112
DE FACTO OFFICER DEFINED...................................107 CLASSES OF SERVICE ..................................................... 112
REQUISITES ................................................................. 112
OFFICER DE JURE V. OFFICER DE FACTO .................107
OFFICER DE FACTO V. INTRUDER .......................... 108

ELEMENTS OF A DE FACTO OFFICERSHIP ............... 108 The Civil Service ................. 112
WHO ARE NOT CONSIDERED DE FACTO OFFICERS?................ 108 SCOPE ..................................................................... 112
OFFICE CREATED UNDER AN UNCONSTITUTIONAL STATUTE .... 108 CIVIL SERVICE COMMISSIONS (CSCS) JURISDICTION .............. 112
RECALL OF APPOINTMENT ............................................... 112
LEGAL EFFECT OF ACTS OF DE FACTO OFFICERS .... 108 REVIEW APPOINTEES QUALIFICATIONS .............................. 112
WHAT IT CANNOT DO ..................................................... 112
LIABILITY OF DE FACTO OFFICERS.......................... 109
APPOINTMENTS TO THE CIVIL SERVICE .................. 112
RIGHT TO COMPENSATION OF DE FACTO OFFICER 109 SCOPE ........................................................................ 112
CLASSES OF SERVICE ..................................................... 112
REQUISITES ................................................................. 112

Termination of Official PERSONNEL ACTIONS ............................................. 113

Relation ............................. 109 OTHER PERSONNEL ACTIONS ........................................... 113

EXPIRATION OF THE TERM OR TENURE OF OFFICE109

REACHING THE AGE LIMIT (RETIREMENT).............. 109 Accountability of Public


DEATH OR PERMANENT DISABILITY ...................... 109 Officers ............................... 113
IMPEACHMENT ....................................................... 113
RESIGNATION ........................................................ 109 GROUNDS ................................................................... 114
REQUISITES ................................................................ 109
FORM OF RESIGNATION ................................................. 109 OMBUDSMAN ......................................................... 114
RESIGNATION REVOCABLE BEFORE FUNCTIONS ................................................................. 114
NOTIFICATION OF ACCEPTANCE ........................................ 110 DISCIPLINARY POWER OVER PUBLIC OFFICERS ...................... 114
EFFECTIVE DATE OF RESIGNATION ..................................... 110 JUDICIAL REVIEW IN ADMINISTRATIVE PROCEEDINGS ............. 115
COURTESY RESIGNATION ................................................ 110 JUDICIAL REVIEW IN PENAL PROCEEDINGS........................... 115

ACCEPTANCE OF AN INCOMPATIBLE OFFICER ....... 110 SANDIGANBAYAN ................................................... 115


WHEN INCOMPATIBLE .................................................... 110 COMPOSITION .............................................................. 115
EXCLUSIVE ORIGINAL JURISDICTION .................................. 115
ABANDONMENT OF OFFICE .................................... 110 OFFICIALS AND PRIVATE INDIVIDUALS
ABANDONMENT ........................................................... 110 SUBJECT TO ITS JURISDICTION .......................................... 115
REQUISITES ................................................................. 110 EXCLUSIVE APPELLATE JURISDICTION ................................ 116
SPECIES OF RESIGNATION ............................................... 110 APPELLATE JURISDICTION OF THE SUPREME COURT ............... 116

PRESCRIPTION OF RIGHT TO OFFICE ...................... 110 ILL-GOTTEN WEALTH .............................................. 116

REMOVAL ................................................................. 111 TERM LIMITS ........................................................... 116

IMPEACHMENT ........................................................ 111 ADMINISTRATIVE LAW

ABOLITION OF OFFICE .............................................. 111


REQUISITES .................................................................. 111
IS ABANDONMENT EQUIVALENT TO ABOLITION? .................... 111 General Principles ............. 118
DEFINITIONS ........................................................... 118
CONVICTION OF A CRIME ........................................ 112
HISTORICAL CONSIDERATIONS .............................. 118
FAILURE TO ASSUME ELECTIVE OFFICE
WITHIN SIX MONTHS FROM PROCLAMATION ......... 112

RECALL ................................................................... 112 Administrative Agencies ... 118


MODES OF CREATION OF
ADMINISTRATIVE AGENCIES .................................. 118

The Civil Service ................. 112 WHEN IS AN AGENCY ADMINISTRATIVE .................. 118
TYPES OF ADMINISTRATIVE AGENCIES ................... 118 Registration of Voters ...... 126
DEFINITION .............................................................126

Powers of Administrative SYSTEM OF CONTINUING


REGISTRATION OF VOTERS .....................................126

Agencies ............................. 118 PERIODS OF REGISTRATION OF ........................................126

QUASI-LEGISLATIVE (RULE-MAKING) POWER ........ 118 ILLITERATE OR DISABLED VOTERS .........................126


DOCTRINE OF SUBORDINATE LEGISLATION .......................... 118
NON-DELEGATION DOCTRINE .......................................... 118 ELECTION REGISTRATION BOARD ..........................126
COMPOSITION ..............................................................126
LEGISLATIVE DELEGATION ..................................... 118
REQUISITES FOR A VALID DELEGATION ............................... 118 CHANGE OF RESIDENCE OR ADDRESS .................... 127
WHAT IS A SUFFICIENT STANDARD .................................... 118 CHANGE OF RESIDENCE TO ANOTHER CITY OR MUNICIPALITY ... 127
FORMS OF THE SUFFICIENT STANDARDS ............................. 118 CHANGE OF ADDRESS IN THE SAME MUNICIPALITY OR CITY ...... 127
KINDS OF ADMINISTRATIVE RULES AND REGULATIONS ........... 119
REQUISITES FOR VALIDITY ............................................... 119 CHALLENGES TO RIGHT TO REGISTER .................... 127
WHO MAY CHALLENGE APPLICATION FOR REGISTRATION ........ 127
QUAS-JUDICIAL (ADJUDICATORY) POWER ............. 119 FORM ........................................................................ 127
SOURCE ..................................................................... 119 WHEN FILED ................................................................ 127
DISTINCTIONS FROM JUDICIAL PROCEEDINGS ....................... 119 HEARING .................................................................... 127
DECISION .................................................................... 127
FACT-FINDING, INVESTIGATIVE, LICENSING AND
RATE-FIXING POWERS ............................................ 121 DEACTIVATION OF REGISTRATION ......................... 127
ASCERTAINMENT OF FACT ............................................... 121 CAUSES OF DEACTIVATION .............................................. 127
INVESTIGATIVE POWERS ................................................. 121
LICENSING FUNCTION .................................................... 121 REACTIVATION OF REGISTRATION ......................... 127
FIXING OF RATES, WAGES, PRICES..................................... 122
CERTIFIED LIST OF VOTERS ..................................... 127
GROUNDS WHEN LIST OF VOTERS WILL BE ALTERED............... 127

Judicial Recourse ANNULMENT OF BOOK OF VOTERS ......................... 127

and Review ........................ 122 OVERSEAS ABSENTEE VOTER ................................ 128


DOCTRINE OF PRIMARY ADMINISTRATIVE DEFINITION ................................................................ 128
JURISDICTION ......................................................... 122 COVERAGE ................................................................. 128
RATIONALE ................................................................. 122 PERSONAL OVERSEAS ABSENTEE REGISTRATION ................. 128
REQUISITES ................................................................. 122 NATIONAL REGISTRY OF OVERSEAS ABSENTEE VOTERS ......... 128
WHEN THE DOCTRINE IS INAPPLICABLE............................... 123
EFFECT ....................................................................... 123

DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE Inclusion and Exclusion


REMEDIES ............................................................... 123
REQUISITES ................................................................. 123 Proceedings ...................... 128
RATIONALE ................................................................. 123 JURISDICTION IN INCLUSION
EXCEPTION TO THE DOCTRINE OF ADMINISTRATIVE REMEDIES.. 123 AND EXCLUSION CASES ......................................... 128
EFFECT OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES .. 123
APPEAL .................................................................. 128
DOCTRINE OF FINALITY OF ADMINISTRATIVE
JURISDICTION ......................................................... 123 OVERSEAS ABSENTEE VOTER ................................ 128

ELECTION LAW

Political Parties ................. 128


Suffrage ............................. 125 PARTY SYSTEM ...................................................... 128
SCOPE .....................................................................125
KINDS OF ELECTION .......................................................125 JURISDICTION OF THE COMELEC OVER POLITICAL
PARTIES ................................................................. 128
ELECTION PERIOD ...................................................125 PARTY....................................................................... 128
PARTY-LIST SYSTEM ..................................................... 128
POLITICAL PARTY ......................................................... 128

Qualification and 3 KINDS OF PARTIES ......................................................129

Disqualification of Voters . 125 PURPOSE ................................................................129

QUALIFICATIONS ....................................................125 REGISTRATION .......................................................129


PROCEDURE FOR REGISTRATION ......................................129
OVERSEAS ABSENTEE VOTERS ...............................126 GROUPS WHICH CANNOT BE REGISTERED
AS POLITICAL PARTIES ...................................................129
PURPOSE OF REGISTRATION ............................................129 COMPOSITION OF
GROUNDS FOR REFUSAL /CANCELLATION OF REGISTRATION ....129 BOARD OF ELECTION INSPECTORS ........................ 137
CERTIFIED LIST OF REGISTERED PARTIES.............................129 QUALIFICATIONS .......................................................... 137
NOMINATION OF PARTY -LIST REPRESENTATIVES ..................129 DISQUALIFICATIONS ...................................................... 137
QUALIFICATIONS OF PARTY LIST REPRESENTATIVES.............. 130
POWERS OF BOARD OF ELECTION INSPECTORS .... 137
PARAMETERS IN ALLOCATION OF SEATS FOR PARTY-
LIST REPRESENTATIVES ........................................ 130 COMPOSITION OF BOARD OF CANVASSERS............ 137
20% ALLOCATION ....................................................... 130
2% THRESHOLD .......................................................... 130 PROHIBITIONS ON BOC ...........................................138
PROPORTIONAL REPRESENTATION................................... 130
3-SEAT LIMIT .............................................................. 130 CANVASS BY THE BOC .............................................138

EFFECT OF CHANGE OF AFFILIATION ..................... 130 CERTIFICATE OF CANVASS AND STATEMENT OF


VOTES .....................................................................138
NATIONAL BOC FOR PRESIDENT AND VICE-PRESIDENT ...........138

Candidacy .......................... 130 PROCLAMATION .....................................................138


QUALIFICATIONS OF CANDIDATES ........................ 130 WHEN PROCLAMATION VOID ............................................138
CANDIDATE, DEFINITION ............................................... 130 PARTIAL PROCLAMATION ................................................138
QUALIFICATIONS ......................................................... 130 ELECTION RESULTING IN A TIE ..........................................138
DISQUALIFICATIONS ...................................................... 131 PROCLAMATION OF A LONE CANDIDATE .............................139

FILING OF CERTIFICATES OF CANDIDACY ............... 132


EFFECT OF FILING .......................................................... 132
SUBSTITUTION OF CANDIDATES ....................................... 132 Remedies and Jurisdiction in
MINISTERIAL DUTY OF COMELEC TO RECEIVE CERTIFICATE ....... 132
NUISANCE CANDIDATES.................................................. 133 Election Law ...................... 139
PETITION TO DENY OR CANCEL CERTIFICATES OF CANDIDACY ... 133 PETITION NOT TO GIVE DUE COURSE TO OR CANCEL
EFFECT OF DISQUALIFICATION ......................................... 133 A CERTIFICATE OF CANDIDACY ...............................139
WITHDRAWAL OF CANDIDATES .........................................134 CANCELLATION OF CERTIFICATE OF CANDIDACY ....................139

PETITION FOR DISQUALIFICATION .........................139

Campaign .......................... 134 PROCEDURE ................................................................139

PREMATURE CAMPAIGNING...................................134 PETITION TO DECLARE FAILURE OF ELECTIONS .....139


PROHIBITED CAMPAIGNING DAYS ......................................134 WHAT CONSTITUTES AN ELECTION ....................................139
ELECTION CAMPAIGN OR PARTISAN POLITICAL ACTIVITY .........134 FAILURE OF ELECTIONS ..................................................139
CAMPAIGN PERIOD ........................................................134 DECLARATION OF FAILURE OF ELECTION ........................... 140
EQUAL ACCESS TO TIME AND SPACE ...................................134
ELECTION SURVEYS ....................................................... 135 PRE-PROCLAMATION CONTROVERSY ................... 140
APPLICATION FOR RALLIES, MEETINGS AND OTHER POLITICAL JURISDICTION ............................................................. 140
ACTIVITY .................................................................... 135 WHEN NOT ALLOWED .................................................... 140
NATURE OF PROCEEDINGS ............................................. 140
PROHIBITED CONTRIBUTIONS ................................ 135 ISSUES THAT MAY BE RAISED .......................................... 140
DEFINITIONS ................................................................ 135 ISSUES THAT CANNOT BE RAISED ...................................... 141
PROHIBITED CONTRIBUTIONS .......................................... 135 PROCEDURE ................................................................ 141
PROHIBITED FUND-RAISING ACTIVITIES ............................. 135 EFFECT OF FILING PRE-PROCLAMATION CONTROVERSY ......... 142
REQUISITES OF A PROHIBITED DONATION............................ 135 EFFECT OF PROCLAMATION OF WINNING CANDIDATE ............ 142
PETITION TO ANNUL OR SUSPEND PROCLAMATION ............... 142
LAWFUL AND PROHIBITED
ELECTION PROPAGANDA ........................................ 136 ELECTION PROTEST ............................................... 142
LAWFUL ELECTION PROPAGANDA ..................................... 136 NATURE .................................................................... 142
PROHIBITED ACTS ......................................................... 136 PURPOSE ................................................................... 142
WHO MAY FILE ............................................................ 142
LIMITATIONS ON EXPENSES ................................... 136 WHEN ....................................................................... 142
FOR CANDIDATES.......................................................... 136 WHO HAS JURISDICTION ................................................ 142
CANDIDATES WITHOUT A POLITICAL PARTY ......................... 136 GROUNDS .................................................................. 142
FOR POLITICAL PARTIES ................................................. 136 PAYMENT OF DOCKET FEES ..............................................143
EFFECT OF FILING PETITION TO ANNUL OR TO SUSPEND THE
STATEMENT OF CONTRIBUTIONS AND EXPENSES.. 136 PROCLAMATION ...........................................................143
EFFECT OF FAILURE TO FILE STATEMENT ............................. 136
QUO WARRANTO ....................................................143
WHO MAY FILE .............................................................143

Board of Election Inspectors WHEN ........................................................................143


WHO HAS JURISDICTION .................................................143

(BEI) and Board of GROUNDS ...................................................................143


EXECUTION PENDING APPEAL ..........................................143

Canvassers (BOC) .............. 137


Prosecution of Election DEVOLUTION .......................................................... 151

Offenses ............................ 143


JURISDICTION OVER ELECTION OFFENSES.............143 Powers of
INVESTIGATION AND PROSECUTION ...................................143
TRIAL AND DECISION .....................................................143 Local Government Units .... 151
SOURCES OF POWER .............................................. 151
PREFERENTIAL, DISPOSITION OF
ELECTION OFFENSES ............................................. 144 POLICE POWER (GENERAL WELFARE CLAUSE) ....... 151
NATURE ..................................................................... 151
ELECTION OFFENSES ............................................. 144 LIMITATIONS ............................................................... 151
REGISTRATION ............................................................ 144 ILLUSTRATIONS POLICE POWER APPLIED .......................... 151
CERTIFICATE OF CANDIDACY ........................................... 144 ILLUSTRATIONS POLICE POWER DOES NOT APPLY ............... 151
ELECTION CAMPAIGN .................................................... 144
VOTING ..................................................................... 144 EMINENT DOMAIN .................................................. 151
COUNTING OF VOTES .................................................... 144 NATURE .....................................................................152
CANVASSING .............................................................. 144 REQUISITES .................................................................152
ACTS OF GOVERNMENT OR PUBLIC OFFICERS ...................... 144 JUST COMPENSATION ....................................................152
COERCION, INTIMIDATION, VIOLENCE ............................... 144 IMMEDIATE ENTRY BY THE LGU .........................................152
OTHER PROHIBITIONS ................................................... 145 SOCIALIZED HOUSING ....................................................152
PENALTIES ................................................................. 145
TAKING POWER.......................................................152
ARRESTS IN CONNECTION FUNDAMENTAL PRINCIPLES ON TAXATION BY AN LGU ............152
WITH ELECTION CAMPAIGN ................................... 145 SOURCES OF LGU FUNDS .................................................152
COMMON LIMITATIONS ON TAXING POWER ..........................152
PRESCRIPTION....................................................... 145 EXEMPTION OF THE NATIONAL GOVERNMENT FROM TAXATION 153
FUNDAMENTAL PRINCIPLES ON
PROHIBITED ACTS UNDER RA 9369 ....................... 145 THE FINANCIAL AFFAIRS OF AN LGU ................................... 153
PENALTY ................................................................... 145
NATIONAL ELECTIVE OFFICE ........................................... 145 CLOSURE AND OPENING OF ROADS........................ 153
PENALTY ................................................................... 146 SCOPE WITHIN JURISDICTION OF THE LGU ......................... 153
FOR TEMPORARY CLOSURE ............................................. 153
LOCAL GOVERNMENT CODE FOR PERMANENT CLOSURE ............................................. 153
FOR CLOSURE BY CITIES, MUNICIPALITIES, AND BARANGAYS ... 153

Public Corporations .......... 148 LEGISLATIVE POWER ............................................. 154


REQUISITES FOR VALID ORDINANCE .................................. 154
CONCEPT ............................................................... 148 LOCAL INITIATIVE AND REFERENDUM ................................ 155

CLASSIFICATIONS .................................................. 148 CORPORATE POWERS ............................................ 156


TO SUE AND BE SUED .................................................... 156

Municipal Corporations..... 148 TO ACQUIRE AND SEAL REAL PROPERTY ............................ 156
TO ENTER INTO CONTRACTS ............................................ 157
ELEMENTS ............................................................. 148

NATURE AND FUNCTION........................................ 148


DUAL NATURE............................................................. 148 Liability of LGUs .................157
ON CONTRACT ........................................................ 157
REQUISITES FOR CREATION, CONVERSION, DIVISION,
MERGER, OR DISSOLUTION ................................... 148 ON TORT ................................................................ 158
MINIMUM REQUIREMENTS ............................................. 148
GENERAL REQUIREMENTS .............................................. 148 BY EXPRESS PROVISIONS OF LAW ......................... 158
CREATION .................................................................. 149 ARTICLE 2189, CC ...................................................... 158
INTERNAL REVENUE ALLOTMENTS ................................... 149 ARTICLE 2180, CC ...................................................... 158
ATTACKS AGAINST VALIDITY OF INCORPORATION ................. 150
DOWNGRADING ........................................................... 150 ON VIOLATION OF LAW .......................................... 158
DIVISION AND MERGER .................................................. 150
ABOLITION ................................................................. 150 PERSONAL LIABILITY OF PUBLIC OFFICIAL ............ 158

Principles of Settlement of Boundary


Local Autonomy ................ 150 Disputes ............................. 159
LOCAL AUTONOMY ................................................ 150 APPEAL .................................................................. 159
DECLARATION OF POLICY ............................................... 150
MAINTENANCE OF THE STATUS QUO ..................... 159
DECENTRALIZATION ............................................... 151
Succession of PUBLIC INTERNATIONAL LAW

Elective Officials ................ 159 Concepts ........................... 168


SUCCESSION IN PERMANENT VACANCIES ............. 159 FORMAL SOURCES V. MATERIAL SOURCES ........... 168
PERMANENCY OF VACANCY ............................................ 159
POSITION OF LOCAL CHIEF EXECUTIVE BECOMES VACANT ....... 159 OBLIGATIONS ERGA OMNES .................................. 168
TEMPORARY VACANCIES ................................................ 160
JUS COGENS ........................................................... 168

Discipline of CONCEPT OF EX AEQUO ET BONO .......................... 169

Elective Officials ................. 161


GROUNDS OF DISCIPLINARY ACTION ..................... 161 International and National
JURISDICTION ......................................................... 161 Law .................................... 169
ADMINISTRATIVE COMPLAINTS ......................................... 161 RELATIONSHIP OF PUBLIC INTERNATIONAL LAW
WHERE FILED ............................................................... 161 WITH MUNICIPAL LAW .......................................... 169
OMBUDSMAN JURISDICTION ............................................ 161 THE ROLE OF INTERNATIONAL LAW WITHIN THE NATIONAL LEGAL
ORDER ...................................................................... 169
PREVENTIVE SUSPENSION......................................162 THE ROLE OF NATIONAL LAW IN THE INTERNATIONAL LEGAL
UNDER THE LGC............................................................162 REGULATION .............................................................. 169
UNDER THE OMBUDSMAN ...............................................162
UNDER THE SANDIGANBAYAN ..........................................162 THEORETICAL VIEWS ON THE RELATIONSHIP
BETWEEN PIL AND MUNICIPAL LAW ...................... 169
REMOVAL ................................................................ 163 MONIST VIEW .............................................................. 169
DUALIST VIEW .............................................................170

Administrative Appeal ...... 163 MONIST-NATURALIST VIEW .............................................170


COORDINATIONIST VIEW .................................................170
PERIOD FOR APPEAL .............................................. 163
Sources ............................... 170
TO WHOM APPEALABLE .......................................... 163 PRIMARY SOURCES ................................................170

EFFECT OF APPEAL ................................................. 163 SUBSIDIARY SOURCES ............................................170


DEFINITION OF TREATY ...................................................170
DOCTRINE OF CONDONATION ................................ 163
CUSTOMARY INTERNATIONAL LAW .......................170
DISCIPLINE OF APPOINTIVE OFFICIALS .................. 163 ELEMENTS ..................................................................170
DISCIPLINARY JURISDICTION ............................................ 163 NORMS OR PRINCIPLES OF CUSTOMARY INTERNATIONAL LAW AS
IDENTIFIED BY THE PHILIPPINE SUPREME COURT AS FORMING
RESIGNATION OF APPOINTIVE OFFICIALS .............. 163 PART OF PHILIPPINE LAW ................................................ 171
PRINCIPLE OF PERSISTENT OBJECTOR ................................ 171
RECALL .................................................................. 164 DUALITY OF NORMS ....................................................... 171
REQUISITES ................................................................ 164
PROCEDURE ............................................................... 164 GENERAL PRINCIPLES OF LAW ............................... 171
LIMITATIONS ON RECALL ............................................... 165
SUBSIDIARY SOURCE: JUDICIAL DECISIONS ........... 172

Term Limits ........................ 165 SUBSIDIARY SOURCE: PUBLICISTS ......................... 172

LENGTH OF TERM .................................................. 165 OTHER SOURCES .................................................... 172


FOR ELECTIVE LOCAL OFFICIALS,
EXCEPT BARANGAY OFFICIALS ......................................... 165
FOR ELECTIVE BARANGAY OFFICIALS AND MEMBERS OF THE
SANGGUNIANG KABATAAN ............................................. 165 Subjects ...............................172
STATES.................................................................... 172
RA 9164 .................................................................. 165 REQUISITE ELEMENTS .................................................... 173
RECOGNITION .............................................................. 176
RA 9006 ................................................................. 165
INTERNATIONAL ORGANIZATIONS ........................ 176
LIMITATION OF CONSECUTIVE TERMS ................... 166 PRECONDITIONS FOR INTERNATIONAL PERSONALITY ............. 176
WHAT CONSTITUTES A TERM OF OFFICE ............................. 166 CAPACITY TO BRING A CLAIM FOR REPARATION .................... 177
RULES FOR FULLY SERVED TERM .................................. 166
EFFECT OF JUDICIAL DECLARATION THAT THE OFFICIALS INDIVIDUALS .......................................................... 177
PROCLAMATION IS VOID ................................................ 166
EFFECT OF RECALL ELECTIONS ........................................ 166
EFFECT OF CONVERSION OF THE LGU................................. 166
EFFECT OF PREVENTIVE SUSPENSION ................................ 166
Diplomatic CONSEQUENCES OF STATE RESPONSIBILITY ......... 185
DUTY TO MAKE REPARATIONS ......................................... 185

and Consular Law .............. 177 FORMS OF REPARATION ................................................ 185

AGENTS OF DIPLOMATIC INTERCOURSE................. 177


HEAD OF STATE ............................................................ 177
THE FOREIGN OFFICE .................................................... 177 Jurisdiction of States ........ 186
THE DIPLOMATIC CORPS ................................................. 177 PRINCIPLES OF STATE JURISDICTION .................... 186

DIPLOMATIC IMMUNITIES AND PRIVILEGES ........... 177 RESERVED DOMAIN OF DOMESTIC JURISDICTION 186
THEORETICAL BASIS OF DIPLOMATIC PRIVILEGES
AND IMMUNITIES .......................................................... 177 DOCTRINE OF STATE IMMUNITY ............................ 186
PERSONAL INVIOLABILITY ............................................... 178
INVIOLABILITY OF PREMISES AND ARCHIVES ........................ 178
RIGHT OF OFFICIAL COMMUNICATION ................................. 178
IMMUNITY FROM LOCAL JURISDICTION ............................... 178 Treatment of Aliens .......... 188
EXEMPTION FROM TAXES AND CUSTOMS DUTIES .................. 179 INTERNATIONAL STANDARD OF JUSTICE .............. 188

CONSULAR RELATIONS .......................................... 179 DOCTRINE OF STATE RESPONSIBILITY (WITH


RANKS ....................................................................... 179 SPECIFIC REGARD TO TREATMENT OF ALIENS)..... 188
FUNCTIONS ................................................................. 179 CONDITIONS FOR THE ENFORCEMENT
NECESSARY DOCUMENTS ............................................... 180 OF STATE RESPONSIBILITY ............................................. 188
IMMUNITIES AND PRIVILEGES.......................................... 180
EXTRADITION......................................................... 189
Treaties .......................................................... 181 FUNDAMENTAL PRINCIPLES ........................................... 189
REQUISITES FOR VALIDITY .................................... 182 AS DISTINGUISHED FROM DEPORTATION ........................... 189

THE TREATY-MAKING PROCESS ............................ 182

DOCTRINE FOR TRANSFORMATION .......................183 International Human Rights


PHILIPPINE LAW ...........................................................183
AMENDMENT OR MODIFICATION OF TREATY ........................183
Law .................................... 190
CLASSIFICATION OF HUMAN RIGHTS .................... 189
RESERVATIONS.......................................................183
UNIVERSAL DECLARATION OF HUMAN RIGHTS .... 190
INVALID TREATIES ..................................................183
INTERNATIONAL COVENANT ON CIVIL AND
GROUNDS FOR TERMINATION ...............................183 POLITICAL RIGHTS ................................................. 190
OBLIGATIONS OF THE STATE PARTIES ................................ 190
COMMON PROVISIONS IN THE ICCPR AND THE ICESR ............. 190

Nationality
and Statelessness ............ 184 International Humanitarian
NATIONALITY ......................................................... 184
Law and Neutrality ........... 190
ACQUISITION ......................................................... 184 CATEGORIES OF ARMED CONFLICT ........................ 190
BY BIRTH .................................................................. 184 INTERNATIONAL ARMED CONFLICTS ................................. 190
BY NATURALIZATION .................................................... 184 INTERNATIONAL OR NON-INTERNATIONAL ARMED CONFLICT .. 191
HAGUE CONVENTION OF 1930 WAR OF NATIONAL LIBERATION ........................................ 191
ON CONFLICT OF NATIONALITY LAWS ............................... 184
PRINCIPLE OF EFFECTIVE NATIONALITY .............................. 184 CORE INTERNATIONAL OBLIGATIONS OF STATES IN
IHL .......................................................................... 191
LOSS OF NATIONALITY .......................................... 184
VOLUNTARY ............................................................... 184 PRINCIPLES OF INTERNATIONAL HUMANITARIAN
INVOLUNTARY ............................................................ 184 LAW......................................................................... 191
TREATMENT OF CIVILIANS ...............................................192
STATELESSNESS ................................................... 184 PRISONERS OF WAR ......................................................192
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS ............... 184
COVENANT RELATING TO LAW ON NEUTRALITY .............................................192
THE STATUS OF STATELESS PERSONS ................................ 185 PROTECTING POWER .....................................................193
RA 9851 ....................................................................193

State Responsibility ......... 185 Law of the Sea .................. 197


DOCTRINE OF STATE RESPONSIBILITY................... 185
ELEMENTS ................................................................. 185 BASELINES .............................................................. 197
ACTS THAT ARE ATTRIBUTABLE TO STATES UNDER THE DRAFT NORMAL BASELINE ....................................................... 197
ARTICLES ................................................................... 185 STRAIGHT BASELINE ...................................................... 197
ARCHIPELAGIC STATES .......................................... 198
TWO KINDS OF ARCHIPELAGOS ........................................ 198
STRAIGHT ARCHIPELAGIC BASELINES ................................ 198
ARCHIPELAGIC WATERS ................................................. 198
ARCHIPELAGIC SEA LANES PASSAGE ................................. 198

INTERNAL WATERS ................................................ 198

TERRITORIAL SEA .................................................. 198

EXCLUSIVE ECONOMIC ZONE ................................. 199


JURISDICTION OF COASTAL STATE OVER EEZ ....................... 199

CONTINENTAL SHELF............................................. 199


EXTENDED CONTINENTAL SHELF ...................................... 199
LIMITS OF THE CONTINENTAL SHELF ................................. 199
RIGHTS OF THE COASTAL STATE
OVER THE CONTINENTAL SHELF .......................................200
RIGHTS WITH RESPECT TO CONTINENTAL SHELF V. EEZ ..........200

INTERNATIONAL TRIBUNAL
FOR THE LAW OF THE SEA ......................................200
SETTLEMENT OF DISPUTES .............................................200
CHINESE NINE-DASH LINE CLAIM .....................................200
PHILIPPINES TAKES CHINA TO ARBITRATION ....................... 201

Madrid Protocol and the Paris


Convention for the Protection
of Industrial Property ...... 202
MADRID PROTOCOL ............................................... 202

THE PARIS CONVENTION FOR THE PROTECTION OF


INDUSTRIAL PROPERTY ......................................... 202
SUBSTANTIVE PROVISIONS ............................................. 202
THE RIGHT OF PRIORITY ................................................. 202

International and
Environmental Law ......... 202
PRINCIPLE 21 OF
THE STOCKHOLM DECLARATION ........................... 202
BASIC PRINCIPLES ........................................................ 202

International
Economic Law .................. 203
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

PAGE 1
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

The Constitution (2) Enacted (conventional) v. evolved (cumulative)


A conventional constitution is enacted, formally struck
DEFINITION, NATURE AND CONCEPTS off at a definite time and place following a conscious or
POLITICAL LAW deliberate effort taken by a constituent body or ruler. A
Branch of public law which deals with the organization and cumulative body is the result of political evolution, not
operations of the governmental organs of the State and inaugurated at any specific time but changing by
defines the relations of the State with the inhabitants of its accretion rather than by any systematic method. [CRUZ,
territory. [People v. Perfecto (1922)] id, at 5]

The entire field of political law may be subdivided into: (3) Rigid v. flexible
(1) The law of public administration -organization and A constitution is classified as rigid when it may not be
management of the different branches of the amended except through a special process distinct
government from and more involved than the method of changing
(2) Constitutional law - guaranties of the constitution to ordinary laws. It is supposed that by such a special
individual rights and the limitations on governmental procedure, the constitution is rendered difficult to
action change and thereby acquires a greater degree of
(3) Administrative law - exercise of executive power in the stability. A constitution is classified as flexible when it
making of rules and the decision of questions affecting may be changed in the same manner and through the
private rights same body that enacts ordinary legislation. The British
(4) The law of public corporations -governmental agencies Constitution is flexible.
for local government or for other special purposes
[SINCO1] N.B. The Philippine Constitution is written, enacted and
rigid.
CONSTITUTIONAL LAW
Designates the law embodied in the Constitution and the Date of Effectivity of the 1987 Const.: February 2, 1987, the
legal principles growing out of the interpretation and date of the plebiscite, and not on the date its ratification
application of its provisions by the courts in specific cases. was proclaimed. [De Leon v. Esguerra (1987)]
It is the study of the maintenance of the proper balance
between the authority as represented by the three inherent BASIC PRINCIPLES OF CONSTITUTIONAL INTERPRETATION
powers of the State and liberty as guaranteed by the Bill of (1) Verbal legis whenever possible, the words used in the
Rights. Constitution must be given their ordinary meaning
except where technical term are employed;
CONSTITUTION DEFINED (2) Ratio legis est anima words of the Cnstitution should
(1) The body of rules and maxims in accordance with which be interpreted in accordance with the intent of the
the powers of sovereignty are habitually framers;
exercised.[COOLEY, THE GENERAL PRINCIPLES OF LAW IN THE (3) Ut magis valeat quam pereat the Constitution should
UNITED STATES OF AMERICA] be interpreted as a whole [Francisco v. House of
(2) It is the document which serves as the fundamental law Representatives, 415 (2003)]
of the state; that written instrument enacted by the
direct action of the people by which the fundamental TYPES OF JUDICIAL REVIEW
powers of the government are established, limited and US Judicial Review
Europe Judicial Review
defined, and by which those powers are distributed (Followed by the PHL)
among the several departments for their safe and Constitutional Courts: US Supreme Court:
useful exercise, for the benefit of the body politic. centralized, only one court decentralized; all courts
[MALCOLM, PHIL. CONSTITUTIONAL LAW] can exercise can exercise judicial review
(3) "A law for the government, safeguarding individual Principaliter: questions are Incidenter: question that is
rights, set down in writing." [HAMILTON] independent of disputes recognized by the Court
(4) According to Schwartz, "a constitution is seen as an must be part of the
organic instrument, under which governmental powers controversy
are both conferred and circumscribed. Such stress
upon both grant and limitation of authority is PARTS OF THE CONSTITUTION
fundamental in American theory. 'The office and (1) Constitution of Government establishes the structure
purpose of the constitution is to shape and fix the of government, its branches and their operation; e.g.
limits of governmental activity.'" [FERNANDO, THE Art. VI, VII, VIII, IX
CONSTITUTION OF THE PHILIPPINES 20-21 (2nd ed., 1977)] (2) Constitution of Sovereignty - provides how the
Constitution may be changed; i.e. Art. XVII
CLASSIFICATION OF CONSTITUTIONS (3) Constitution of Liberty - states the fundamental rights
(1) Written v. unwritten. of the people; e.g. Art. III [Lambino v. COMELEC
A written constitution is one whose precepts are (2006)]
embodied in one document or set of documents. An
unwritten constitution consist of rules which have not AMENDMENTS AND REVISIONS
been integrated into a single, concrete form but are (ART. XVIII AMENDMENTS OR REVISIONS)
scattered in various sources, such as statutes of
fundamental character, judicial decisions, commentaries AMENDMENT
of publicists, customs and traditions. [CRUZ, An addition or change within the lines of the original
Constitutional Law 4-5; NACHURA, Outline Reviewer in constitution as will effect an improvement, or better carry
Political Law 2] out the purpose for which it was framed; a change that

PAGE 2
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

adds, reduces or deletes without altering the basic (b) Constitutional Convention Called into existence by
principles involved; affects only the specific provision being (i) 2/3 of all members of Congress OR (ii) the
amended. [Lambino v. COMELEC (2006)] electorate, in a referendum called for by a
majority of all members of Congress [CONST., art.
REVISION XVII, sec. 3]
A change that alters a basic principle in the constitution, (c) People (through a Peoples Initiative)- petition of at
like altering the principle of separation of powers or the least 12% of the total number of registered voters;
system of checks-and-balances; alters the substantial every legislative district must be represented by at
entirety of the constitution, as when the change affects least 3% of the registered voters therein.
substantial provisions of the constitution. [Id.] (i) Limitation on Initiative: No amendment in this
manner shall be authorized (1) within 5 years
DIFFERENCE BETWEEN AMENDMENT AND REVISION following the ratification of the 1987 Const. nor
Revision generally affects several provisions of the (2) more often than once every 5 years
constitution, while amendment generally affects only the thereafter.
specific provision being amended [Id.] This distinction is (ii) Enabling Law: Constitutional provision on
significant because the 1987 Constitution allows peoples amendments via Peoples Initiative not self-
initiative only for the purpose of amending, not revising, the executory [Santiago v. COMELEC (1997)]
Constitution.[See Lambino, supra]
(2) Ratification the proposed amendment shall be
LEGAL TESTS submitted to the people and shall be deemed ratified
Lambino considered the two-part test: the quantitative test by the majority of the votes cast in the plebiscite, held
and the qualitative test. not earlier than 60 days nor later than 90 days:
(1) Quantitative test - The court examines only the number (a) After approval of the proposal by Congress or
of provisions affected and does not consider the degree Concon;
of the change. (b) After certification by the COMELEC of sufficiency of
(2) Qualitative test - inquires into the qualitative effects of petition of the people.
the proposed change in the constitution. The main
inquiry is whether the change will accomplish such far Doctrine of Proper Submission A plebiscite may be held
reaching changes in the nature of our basic on the same day as a regular election [Gonzales v.
governmental plan as to amount to a revision. The COMELEC (1967)]. The entire Constitution must be
changes include those to the fundamental framework submitted for ratification at one plebiscite only. The people
or the fundamental powers of its Branches, and those must have a proper frame of reference. [Tolentino v.
that jeopardize the traditional form of government COMELEC (1971)]. No piecemeal submission, e.g.
and the system of check and balances. Whether there submission of age amendment ahead of other proposed
is an alteration in the structure of government is a amendments. [Tolentino, supra]
proper subject of inquiry.[See Lambino, supra.]
N.B.The process of revision is the same in all respects
STEPS IN THE AMENDATORY PROCESS except that it cannot be proposed via a Peoples Initiative.
There are two steps in the amendatory process: (1) [See Lambino, supra]
proposal, and (2) ratification
Judicial Review of Amendments The validity of the
(1) Proposal The adoption of the suggested change in process of amendment is not a political question because
the Constitution. the Court must review if constitutional processes were
(a) Congress (as a Constituent Assembly) a vote of followed. [See Lambino, supra]
of ALL its members.

SUMMARY OF TWO STAGES OF AMENDATORY/ REVISION PROCESS


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

PAGE 3
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

TABLE OF CASES RE: CONSTITUTIONAL AMENDMENTS AND CHANGES IN GOVERNMENT


TItle Facts Held and Ratio
Mabanag v. Lopez Vito Resolution of Congress proposing the Parity Petition dismissed. Proposal of amendments to the
(1947) Amendment was assailed on the grounds that constitution is a political question. The enrolled
Congressional Resolution it did not comply with the rule prescribed copy of the resolution in which it was certified that
proposing the Parity by the Constitution. the proposal had been approved by the required
Amendment vote was conclusive upon the courts.
Modified by Gonzales, infra, and Tolentino, infra.
Gonzales v. COMELEC RBH No. 1 called for increase in the Petition denied.
(1967) membership of the HOR; RBH No. 2 called for (1) Proposal of amendments is not a political but a
Resolutions of Both a Constitutional Convention; and RBH No. 3 justiciable question subject to judicial review.
Houses (RBH) calling for called for amendment of Sec.16, Art.VI to (2) Congress may propose amendments and at
the 1971 Constitutional allow members of Congress to become the same time call for a Constituent Assembly.
Convention and delegates to the CONCON without losing (3) Ratification may be done simultaneous with a
amendments to the 1935 their seats. Petitioners seek to restrain general election or in a special election called
Constitution respondents from enforcing the law passed by specifically for that purpose.
Congress submitting RBH Nos. 1 and 2 for (4) There was a proper submission.
ratificationduring the general elections
scheduled on Nov. 1967.
Tolentino v. COMELEC Validity of a CONCON Resolution(submitting, Petition granted. All amendments proposed by the
(1971) for ratification, the proposal to lower the same Constitutional Convention shall be
1971 Constitutional voting age to 18)was assailed. The question submitted to the people in a single election.
Convention convened here is whether piecemeal amendments to
the Constitution could be submitted to the
people for ratification or rejection.
Planas v. COMELEC Petitioners seek to enjoin respondents from Petition dismissed. The issue of validity of calling
(1973) implementing PD 73, which called for a for a plebiscite (submission) is justiciable; BUT,
Plebiscite cases plebiscite (to be held on January 15, 1973) for issue became moot.
the constitution approved by the CONCON on
1972, on the theory that: (a) the power to
submit is lodged exclusively in Congress, and
(b) there is no proper submission to the
people.
Javellana v. Executive Petitioners seek to enjoin the respondents Although the question of whether a Constitution
Secretary (1973) from implementing any of the provisions of was validly ratified is a justiciable question, the
Ratification cases the new constitution not found in the 1935 question of whether a Constitution has come into
Constitution, on the theory that it was not force and effect is a political question beyond the
validly ratified in accordance with the competence of the Courtto decide.
provisions of Art.1, Section XV.
Sanidad v. COMELEC Petitioners question the authority of the (1) The amending process, both as to proposal and
(1976) President in issuing several PDs proposing ratification, raises a justiciable question.(2) In a
1976 Amendments amendments to the New Constitution and crisis government, the President shall have the
calling for a national referendum-plebiscite power to assume the constituent power to
for the said amendments. propose amendments lodged in the Legislative
body.
Mitra v. COMELEC (1981) Petitioners argue that the 1973 Constitution Even without valid ratification, a new Constitution
Martial Law lifted.1981 never validly took effect, Javellana aside, on could come into force and effect by the
Amendments the theory that the 1973 Constitution was still acquiescence of the people. Popular acquiescence
and is still at the stage of proposal. to a new Constitution gives the document the
force and effect of the Fundamental Law of the
Land, regardless of the method of ratification. If it is
accepted by the people, in whom sovereignty
resides according to the Constitution,the courts
cannot refuse to yield assent to such a political
decision.
Legazpi v. Minister of Petitioners questioned Marcos legislative President retained his legislative powers even
Finance (1981) powers after the lifting of Martial Law. after the lifting of Martial Law and the 1981
Martial Law lifted.1981 Amendments to the 1973 Constitution (which
Amendments vested executive powers back to the President) by
virtue of Amendment No.6.
Lawyers League for a Petitioners questioned legitimacy of the The question of legitimacy of a new government
Better Philippines v. Aquino government. arising from a successful revolution is a political
Aquino (1986) question beyond the pale of review by the courts.
EDSA Revolution
De Leon v. Esguerra Petitioners question the appointment of Date of effectivity of 1987 Constitution retroacts to
(1987) respondents as barangay officials and the date of the plebiscite, i.e. 2 Feb. 1987.
1987 Constitution ratified maintain that with the ratification of the 1987 Provisional Constitution deemed to have been

PAGE 4
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

TItle Facts Held and Ratio


Constitution, the OIC did not have the superseded by 1987 Constitution on said date of
authority to simply appoint their effectivity.
replacements.
Santiago v. COMELEC Petitioners seek to enjoin respondent COMELEC permanently enjoined from entertaining
(1997) COMELEC from acting on the petition by the or taking cognizance of any petition for initiative
PIRMA case PIRMA group asking for an order fixing details until a sufficient law shall have been validly enacted
on how to collect signatures for a peoples to provide for the implementation of the system.
initiative to amend the Constitution The system of initiative found in Article XVII, Sec.2
is not self-executory. It needs an enabling law
before the right of the people to could be
exercised. However, an examination of its
provisions reveals that RA 6735 is incomplete,
inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to
the Constitution is concerned.
Estrada vs. Desierto Estrada questions legitimacy of Arroyo (Legal distinction between EDSA I and EDSA II)
(2001) government and claims, inter alia, that he did The government arising from EDSA I was extra-
EDSA II not resign from position and that Arroyo is constitutional, while EDSA II was a constitutional
merely an acting president. exercise of the right to free speech, freedom of
assembly, and to petition the government for
redress.
Lambino vs. COMELEC Petitioners seek review of COMELEC decision The constituent power reserved to people under
(2007) denying due course to a peoples initiative to Art.XVII Sec.2 is limited to the power to propose
Lambino Group Peoples amend the 1987 Constitution. amendments to, not revision of, the Constitution.
Initiative Moreover, direct proposal by the people means
that the petition signed by the people should
contain the full text of the proposed amendments
to the Constitution.

SELF-EXECUTING AND NON-SELF-EXECUTING Legislatives failure to pursue policies do not give rise to a
PROVISIONS cause of action. (Id.)
Self-Executing: Provisions which are complete in
themselves and do not need enabling legislation for their N.B.A provision may be self-executing in one part, and
operation; judicially enforceable per se. The nature and
extent of the right conferred and the liability imposed are non-self-executing in another. (Manila Prince, supra)
fixed by the constitution itself [Manila Prince Hotel v. GSIS
(1997)]. GENERAL PROVISIONS
ART. XVI GENERAL PROVISIONS
General Presumption: All provisions of the constitution are (1) Flag of the Philippines [sec. 1]
self-executing. [Id.] (a) Red, white and blue, with a sun and three stars
(b) Design of the flag may be changed only by
Exception: Statements of general principles, such as those in constitutional amendment [BERNAS]
Art. II, are usually not self-executing. (Id.)Other examples
in jurisprudence: constitutional provisions on personal (2) Name of the country, national anthem, and national
dignity, sanctity of family life, vital role of the youth in seal [sec. 2]
nation-building, values of education, social justice and (a) May be changed by Congress by law
human rights, promotion of general welfare, vital role of (b) Such law will only take effect upon ratification by
the youth in nation-building, promotion of total human the people in a national referendum
liberation and development are merely guidelines for
legislation(Id; citations omitted.) (3) Armed Forces of the Philippines [sec. 4]
(a) Composed of a citizen armed force
Exception to the Exception:The right to a balanced and (b) Shall take an oath of affirmation to uphold and
healthful ecology is self-executing [Oposa v. Factoran defend the Constitution [sec. 5(1)]
(1993)] (c) May not be appointed or designated to a civilian
position in the government including GOCCs or
N.B.Other exceptions to the exception, e.g. right to their subsidiaries [sec. 5(4)]
information in art. III [See Legaspi v. CSC (1987)] and the (d) Laws on retirement of military officers shall not
Filipino First Policy [See Manila Prince, supra] are self- allow extension of their service [sec. 5(5)]
executing because they actually fall under the general (e) Recruited proportionately from all provinces and
rule. cities as far as practicable [sec.5(6)]
(f) Tour of duty of the Chief of Staff shall not exceed
Non-Self Executing:Provisions which merely la[y] down a three years [sec. 5(7)]
general principle. [Manila Prince, supra]
BUT may be extended by the President in times of war
Declaration of principles and state policies are not self- or other national emergency declared by the Congress
executing. [Espina v. Zamora (2010)] [Id.]

PAGE 5
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

(4) Police Force [sec. 6] Straight baseline method consists of drawing straight
(a) One police force lines connecting appropriate points on the coast without
(b) National in scope departing to any appreciable extent from the general
(c) Civilian in character direction of the coast, in order to delineate the internal
waters from the territorial waters of an archipelago
(5) Consumer Protection [sec. 9]
See R.A. No. 9522amended R.A. No. 3046, entitled "An
(6) Mass Media [sec.11] Act to Define the Baselines of the Territorial Sea of the
Ownership and management limited to (i) citizens of Philippines;" specified that baselines of Kalayaan Group of
the Philippines or (ii)corporations, cooperatives or Islands and Bajo de Masinloc (Scarborough Shoal) shall be
associations wholly-owned and managed by Filipino determined as Regime of Islands under the Republic of
citizens the Philippines, consistent with the UNCLOS.

(7) Advertising Industry [sec. 11] R.A. No. 9522 is not unconstitutional: it is a statutory tool
(a) Can only be engaged in by (i) Filipino citizens or (ii) to demarcate the maritime zone and continental shelf of
corporations or associations at least 70% of which the Philippines under UNCLOS III, and does not alter the
is owned by Filipino citizens national territory. While UNCLOS III does not bind the
(b) Participation of foreign investors is limited to their Philippines to pass a baselines law, Congress may do so.
proportionate share in the capital The law also does not abandon the countrys claim to
(c) Managing officers must be Filipino citizen Sabah, as it does not expressly repeal the entirety of R.A.
No. 5446. [Magallona v. Ermita (2011)]

Note: Please refer to the section on Law of the Sea of the

General Considerations PIL Reviewer [p. 198], II for further discussion on Baselines

DOCTRINE OF SOVEREIGN IMMUNITY


NATIONAL TERRITORY (STATE IMMUNITY FROM SUIT)

SCOPE (ART. II NATIONAL TERRITORY) STATE


Comprises: A community of persons, more or less numerous,
(1) Philippine archipelago, with all the islands and waters permanently occupying a definite portion of territory,
embraced therein. independent of external control, and possessing a
Internal waters waters around, between, and government to which a great body of the inhabitants
connecting the islands of the archipelago, regardless of render habitual obedience; a politically organized
breadth and dimension sovereign community independent of outside control
(2) All other territories over which the Philippines has bound by ties of nationhood, legally supreme within its
sovereignty or jurisdiction territory, acting through a government functioning under a
regime of law. [Collector of Internal Revenue v. Campos
Consists of: Rueda (1971)]
(1) Territorial sea, seabed, subsoil, insular shelves, and
other submarine areas BASES
(2) Terrestrial, fluvial, and aerial domains Constitutional (Textual) Basis:The State may not be sued
without its consent. [CONST., art. XVI, Sec. 13].
Archipelagic Doctrine- A body of water studded with
islands, or the islands surrounded with water, is viewed as International Law Basis:Par in parem non habet imperium
a unity of islands and waters together forming one
integrated unit. [N.B. Embodied in Art. II, specifically by the Jurisprudential Basis:
mention of the Philippine archipelago and the (1) Positivist Theory - There can be no legal right as against
specification on internal waters.] the authority that makes the laws on which the right
depends. Also called the doctrine of Royal Prerogative
TREATY LIMITS OF THE PHILIPPINE ARCHIPELAGO of Dishonesty. [Kawananakoa v. Polyblank (1907)]
(1)Treaty of Paris of 10 December 1898: Spain cedes to the (2) Sociological Theory - If the State is amenable to suits,
United States the archipelago known as the Philippines all its time would be spent defending itself from suits
Islands, and comprehending the islands lying within and this would prevent it from performing its other
the following line xxx functions. [Republic vs. Villasor (1973)]

Article 3 defines the metes and bounds of the archipelago CONCEPT


by longitude and latitude, degrees and seconds. Technical When against the state
descriptions are made of the scope of the archipelago as A suit is against the State regardless of who is named the
this may be found on the surface of the earth. defendant if:
(1) It produces adverse consequences to the public treasury
(2) Treaty of Washington of 7 November 1900 between the in terms of disbursement of public funds and loss of
United States and Spain: Ceding Cagayan, Sibuto and government property.
Sulu. (2) Cannot prosper unless the State has given its consent.

(3) Treaty of 2 January 190 between the United States and


Great Britain: Ceding the Turtle and Mangsee Islands.

PAGE 6
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

When not against the state Philippines under the provisions of this Act; but a copy
It was held that the suit is not against the State: thereof duly certified by the clerk of the Court in which
(1) When the purpose of the suit is to compel an officer judgment is rendered shall be transmitted by such clerk to
charged with the duty of making payments pursuant to the President of the Philippines, within five days after the
an appropriation made by law in favor of the plaintiff to same becomes final.
make such payment, since the suit is intended to
compel performance of a ministerial duty. [Begoso v. Sec. 8. The President of the Philippines, at the
PVA (1970)] commencement of each regular session of the Legislature,
(2) When from the allegations in the complaint, it is clear shall transmit to that body for appropriate action all
that the respondent is a public officer sued in a private decisions so received by him, and if said body determine
capacity; that payment should be made, it shall appropriate the sum
(3) When the action is not in personam with the which the Government has been sentenced to pay,
government as the named defendant, but an action in including the same in the appropriations for the ensuing
rem that does not name the government in particular. year.

HOW STATES CONSENT IS GIVEN Torts


Express consent Provinces, cities and municipalities shall be liable for
Effected only by the will of the legislature through the
damages for the death or injuries suffered by any person
medium of a duly enacted statute;may be embodied either by reason of the defective conditions of roads, streets,
in a general law or a special law:
public buildings and other public works under their control
and supervision. [Art. 2189, CC]
General Law
Authorizes any person who meets the conditions stated in
the law to sue the government in accordance with the As to the vicarious liability under CC art. 2180(6): The
procedure in the law Government is only liable for the acts of its agents, officers
and employees, when they act as special agents within the
Money Claims arising from contract express or implied meaning of the provision.

Act No. 3083 Special Agent - One who receives a definite and fixed
An Act Defining the Conditions under which the order or commission, foreign to the exercise of the duties of
Government ofthe Philippines may be Sued. his office if he is a special official. [Merritt v. Govt of the
Philippine Islands, (1916)]
Sec. 1. Subject to the provisions of this Act, the Government
of the Philippines hereby consents and submits to be sued Special Law - may come in the form of a private bill
upon any moneyed claim involving liability arising from authorizing a named individual to bring suit on a special
contract, express or implied, which could serve as a basis
claim
of civil action between private parties.
Implied consent
Sec. 2. A person desiring to avail himself of the privilege
(1) When the State enters into a business contract or itself
herein conferred must show that he has presented his commences litigation;
claim to the Commission on Audit and that the latter did
(2)If the govt files a complaint, defendant may file a
not decide the same within two months from the date of its counterclaim against it. When the state files complaint,
presentation. suability will result only where the government is
claiming affirmative relief from the defendant.
Sec. 3. Original actions brought pursuant to the authority (3) When it would be inequitable for the State to invoke its
conferred in this Act shall be instituted in the Regional
immunity.
Trial Court of the City of Manila or of the province where
(4) In instances when the State takes private property for
the claimant resides, at the option of the latter, upon which public use or purpose.
court exclusive original jurisdiction is hereby conferred to
hear and determine such actions. Specific Rules
Suits against Government Agencies Depends on whether
Sec. 4. Actions instituted as aforesaid shall be governed by
the agency is incorporated (i.e. there is a separate charter)
the same rules of procedure, both original and appellate, or unincorporated (i.e. no separate personality).
as if the litigants were private parties.
(1) Incorporated If the charter provides that the agency
Sec. 5. When the Government of the Philippines is plaintiff can sue, then suit will lie. The provision in the charter
in an action instituted in any court of original jurisdiction,
constitutes express consent. [See SSS v. Court of
the defendant shall have the right to assert therein, by way Appeals (1983)]
of set-off or counterclaim in a similar action between (2) Unincorporated There must be an inquiry unto the
private parties.
principal functions of government.
(a) If governmental: NO suit without consent. [Bureau of
Sec. 6. Process in actions brought against the Government
Printing v. Bureau of Printing Employees Association
of the Philippines pursuant to the authority granted in this
(1961)].
Act shall be served upon the Solicitor-General whose duty (b) If proprietary: Suit will lie, because when the state
it shall be to appear and make defense, either himself or
engages in principally proprietary functions, it
through delegates. descends to the level of a private individual, and may,
therefore be vulnerable to suit. [Civil Aeronautics
Sec. 7. No execution shall issue upon any judgment
Administration v. Court of Appeals (1988)]. State may
rendered by any court against the Government of the

PAGE 7
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

only be liable for proprietary acts (jure gestionis) and (3) Renunciation of war [Sec. 2]
not for sovereign acts (jure imperii). (4) Only refers to wars of aggression, not defensive war
(5) Adoption of generally-accepted principles of
SYNTHESIS OF RULES ON SUING GOVT AGENCIES international law [Sec. 2]
Type Function Rule (6) Adherence to a policy of peace, freedom, and amity
with all nations [Sec. 2]
Incorporated Governmental CAN be sued IF (7) Civilian supremacy [Sec. 3]
or proprietary charter allows (8) Civilian authority (Section 3, Article II) is not defeated in
Unincorporated Governmental CANNOT be sued a joint task force between the PNP and Marines for the
unless consent is enforcement of law and order in Metro Manila as long
given as control is left to the PNP. [IBP v. Zamora (2000)]
Proprietary CAN be sued (9) (6) Role of the armed forces [Sec. 3]
(a) Protector of the people and the State
Suits against Public Officers The doctrine of state (b) Secure the sovereignty of the State and the
immunity also applies to complaints filed against officials integrity of the national territory
of the State for acts performed by them in the discharge of (7) Compulsory military and civil service [Sec. 4]
their duties within the scope of their authority. Under conditions provided by law
(8) Maintenance of peace and order, promotion of general
Exception:The doctrine of immunity from suit will not apply welfare [Sec. 5]
and may not be invoked where the public official is being (9) Recognition of a hierarchy of rights [BERNAS]
sued in his (1) private and personal capacity as an ordinary (a) Life
citizen, for (2)acts without authorityor in excess of the (b) Liberty
powers vested in him. (Lansang vs CA [2000]) (c) Property
(10) Separation of Church and State [Sec. 6]
Note:Acts done without authority are not acts of the State
Policies [sec. 7-28]:Guidelines for the orientation of the
Exceptions to Prior Consent Rule state [BERNAS]
Caselaw provides that the following are well-recognized
exceptions when the state/public officer MAY be sued (1) Independent foreign policy [Sec. 7]
without prior consent: (2) Freedom from nuclear weapons [Sec. 8]
(3) Promote a just and dynamic social order [Sec.9]
(1) To compel him to do an act required by law; (4) Promote social justice in all phases of national
(2) To restrain him from enforcing an act claimed to be development [Sec. 10]
unconstitutional; (5) Personal dignity and human rights [Sec. 11]
(3) To compel the payment of damages from an already (6) Family as basic social institution [Sec. 12]
appropriated assurance fund or to refund tax over- (7) Vital role of youth in nation-building [Sec. 13]
payments from a fund already available for the (8) Role of women in nation-building [Sec. 14]
purpose; (9) Fundamental equality before the law of women and
(4) To secure a judgment that the officer impleaded may men [Sec. 14]
satisfy by himself without the State having to do a (10) Right to health [Sec. 15]
positive act to assist him; (11) Right to a balanced and healthful ecology [Sec.16,
(5) Where the government itself has violated its own laws. Oposa v. Factoran]
[Sanders v. Veridiano II, (1988)] (12) Priority to education, science and technology, arts,
culture, and sports [Sec. 17]
Scope of Consent (Suability v. Liability) (13) Labor as a primary social economic force [Sec.18]
Consent to be sued is not concession of liability:Suability (14) Self-reliant and independent national economy
depends on the consent of the state to be sued, and [Sec.19]
liability on the applicable law and the established facts. (15) Role of private sector [Sec. 20]
The circumstance that a state is suable does not (16) Comprehensive rural development and agrarian
necessarily mean that it is liable, but it can never be held reform [Sec. 21]
liable if it does not first consent to be sued. When the state (17) Recognition and promotion of rights of indigenous
does waive its sovereign immunity, it is only giving the cultural communities [Sec. 22]
plaintiff the chance to prove that it is liable. [United States of (18) Community-based, sectoral organizations [Sec.23]
America v. Guinto (1990)] (19) Role of communication and information in nation-
building [Sec.24]
PRINCIPLES AND POLICIES (20) Autonomy of local governments [Sec. 25]
ART. II DECLARATION OF PRINCIPLES AND STATE (21) Equal access for public service and prohibition of
POLICIES political dynasties [Sec. 26]
Principles [sec.1-6]: Binding rules which must be observed (22) Honesty and integrity in public service [Sec. 27]
in the conduct of government [BERNAS] (23) Policy of full public disclosure [Sec. 28]

(1) The Philippines is a democratic and republican state SEPARATION OF POWERS


[Sec. 1] The separation of powers is a fundamental principle in our
(2) The Philippines, under the Const., is not just a system of government. It obtains not through express
representative government but also shares some provision but by actual division in our Constitution. Each
aspects of direct democracy such, for instance, as the department of the government has exclusive cognizance of
initiative and referendum under Art. VI, Sec. 32 matters within its jurisdiction, and is supreme within its
[BERNAS] own sphere. But it does not follow from the fact that the

PAGE 8
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

three powers are to be kept separate and distinct that the requires the President or an agency to submit the
Constitution intended them to be absolutely unrestrained proposed implementing rules and regulations of a law to
and independent of each other. The Constitution has Congress for approval, is unconstitutional. It encroaches
provided for an elaborate system of checks and balances on:
to secure coordination in the workings of the various
departments of the government [Angara v. Electoral (1) The executive - it allows Congress to take a direct role
Commission (1936)]. in the enforcement of its laws;
(2) The judiciary - administrative issuances enjoy a
The government established by the Constitution follows presumption of validity, and only the courts may decide
fundamentally the theory of separation of power into the whether or not they conform to statutes or the
legislative, the executive and the judicial [Angara v. Constitution. [Abakada Guro Partylist v. Purisima
Electoral Commission (1936)]. (2008)]

Separation of powers is not expressly provided for in the DELEGATION OF POWERS


Constitution. But it obtains from actual division found in General Rule: Delegata potestas non potest delegari what
Section 1 of Articles VI, VII, VIII, where the three great has been delegated can no longer be delegated.
powers of the government are canalized.
Rationale:Since the powers of the government have been
Separation of powers is founded on the belief that, by delegated to them by the people, who possess original
establishing equilibrium among the three power holders, sovereignty, these powers cannot be further delegated by
harmony will result, power will not be concentrated and the different government departments to some other
thus tyranny will be avoided [BERNAS]. branch or instrumentality of the government.

CHECKS AND BALANCES Usually applied to legislative powersince the legislative


It does not follow from the fact that the three powers are power of Congress is already a delegated power given to
to be kept separate and distinct that the Constitution them by the people (thru Article 1, Section VI of the
intended them to be absolutely unrestrained and Constitution), Congress cannot pass laws delegating such
independent of each other. The Constitution has provided power to some other department, branch, or
for an elaborate system of checks and balances to secure instrumentality of the government.
coordination in the workings of the various departments of
the government. For example, the Chief Executive under Expections
our Constitution is so far made a check on the legislative (1) Subordinate legislation made by administrative agencies
power that this assent is required in the enactment of laws. Under the theory of Administrative Law, what is
This, however, is subject to the further check that a bill may delegated is in fact not law-making power, but law-
become a law notwithstanding the refusal of the President executing power. Hence, administrative agencies have
to approve it, by a vote of two-thirds or three-fourths, as the power to fill up the details of a statute passed by
the case may be, of the National Assembly. The President Congress in the course of its implementation.
has also the right to convene the Assembly in special (2) Delegated legislative power to local governments
session whenever he chooses. On the other hand, the Local governments may be allowed to legislate on
National Assembly operates as a check on the Executive in purely local matters.(See CONST., art. IX, sec. 9, explicitly
the sense that its consent through its Commission on mentioning legislative bodies of local governments;
Appointments is necessary in the appointments of certain sec. 20 providing for the coverage of legislative powers
officers; and the concurrence of a majority of all its delegated to autonomous regions via the latters
members is essential to the conclusion of treaties. organic acts; see also Local Govt Code)
Furthermore, in its power to determine what courts other (3) Legislative power reserved to the people by the
than the Supreme Court shall be established, to define provision on initiative and referendum.[CONST., art.VI,
their jurisdiction and to appropriate funds for their support, sec.1]
the National Assembly controls the judicial department to (4) Emergency power delegated to the Executive during
a certain extent. The Assembly also exercises the judicial State of War or National Emergency [CONST., art. VI,
power of trying impeachments. And the judiciary in turn, sec.23(2)]
with the Supreme Court as the final arbiter, effectively (5) Certain taxing powers of the President [CONST., art. VI,
checks the other departments in the exercise of its power sec.28(2)]. The Congress may authorize the President
to determine the law, and hence to declare executive and to fix, within specified limits, and subject to such
legislative acts void if violative of the Constitution. [Angara limitations and restrictions as it may impose, tariff
v. Electoral Commission, id.] rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the
Congressional oversight is not per seviolative, but is framework of the national development program of the
integral, to separation of powers. However, for a post- Government.
enactment congressional measure to be valid, it must be
limited to: TESTS FOR VALID DELEGATION
(1) Scrutiny -Congress power of appropriation, i.e. budget (1) Completeness test law sets forth the policy to be
hearings, and power of confirmation executed, carried out, or implemented by the delegate
(2) Investigation and monitoring of implementation of laws (Abakada, supra), such that there is nothing left for the
using its power to conduct inquiries in aid of delegate to do but to enforce the law [Pelaez v.Auditor
legislation. General (1965)]
(2) Sufficient standard test standard is sufficient if it
A legislative veto, i.e. statutory provision (which may take defines legislative policy, marks its limits, maps out its
the form of a congressional oversight committee) that boundaries and specifies the public agency to apply it.

PAGE 9
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

It indicates the circumstances under which the sworn to uphold the fundamental law of the Republic
legislative command is to be effected.[Edu v. Ericta under her government. (In re Bermudez (1986) citing
(1970)] Lawyers League for a Better Philippines v. Aquino (1986)]

BOTH tests must be complied with. [Pelaez, supra] In the cited cases [Lawyers League for a Better Philippines
and/or Oliver A. Lozano v. President Corazon C. Aquino, et
N.B.The legislature may leave to another body the al], we held that the government of former President
ascertainment of facts necessary to bring the law into Aquino was the result of a successful revolution by the
actual operation. [See Abakada v. Ermita (2005)] sovereign people, albeit a peaceful one. No less than the
Freedom Constitution declared that the Aquino government
FORMS OF GOVERNMENT was installed through a direct exercise of the power of the
DEFINITION Filipino people "in defiance of the provisions of the 1973
Government of the Philippines is defined as: Constitution, as amended."
The corporate governmental entity through which the
functions of government are exercised throughout the It is familiar learning that the legitimacy of a government
Philippines, including sired by a successful revolution by people power is beyond
(1) the various arms through which political authority is judicial scrutiny for that government automatically orbits
made effective in the Philippines, whether pertaining out of the constitutional loop. In checkered contrast, the
to: government of respondent Arroyo is not revolutionary in
(a) the autonomous regions, character. The oath that she took at the EDSA Shrine is the
(b) the provincial, city, municipal, or barangey oath under the 1987 Constitution. In her oath, she
subdivisions, or categorically swore to preserve and defend the 1987
(c) other forms of local government. [Sec. 2(1), Constitution. Indeed, she has stressed that she is
Administrative Code] discharging the powers of the presidency under the
authority of the 1987 Constitution.
Government is that institution or aggregate of
institutions by which an independent society makes and In fine, the legal distinction between EDSA People Power I
EDSA People Power II is clear. EDSA I involves the exercise
carries out those rules of action which are necessary to
enable men to live in a social state or which are imposed of the people power of revolution which overthrew the
upon the people forming that society by those who possess whole government. EDSA II is an exercise of people power
of freedom of speech and freedom of assembly to petition
the power or authority of prescribing them. [US v. Dorr
(1903)] the government for redress of grievances which only
affected the office of the President. EDSA I is extra-
constitutional and the legitimacy of the new government
DE JURE AND DE FACTO GOVERNMENTS
De jure government that resulted from it cannot be the subject of judicial
review, but EDSA II is intra-constitutional and the
(1) Has rightful title but
(2) no power or control, either because this has been resignation of the sitting President that it caused and the
withdrawn from it, or because it has not yet actually succession of the Vice President as President are subject to
judicial review. EDSA I presented a political question;
entered into the exercise thereof. [In re Letter of
Associate Justice Puno, (1992)] EDSA II involves legal questions. xxx

Even if the petitioner can prove that he did not resign, still,
De facto government
Government of fact, that is, it actually exercises power or he cannot successfully claim that he is a President on leave
on the ground that he is merely unable to govern
control without legal title. [Co Kim Cham v. Valdes, (1945)]
temporarily. That claim has been laid to rest by Congress
(1) The govt that gets possession and control of, or usurps, and the decision that respondent Arroyo is the de jure,
president made by a co-equal branch of government
by force or by the voice of the majority, the rightful
legal govt and maintains itself against the will of the cannot be reviewed by this Court. [Estrada v. Desierto /
Estrada v. Arroyo (2001)]
latter.
(2) That established as an independent govt by the
inhabitants of a country who rise in insurrection against
the parent state.
(3) That which is established and maintained by military
forces who invade and occupy a territory of the enemy
Legislative Department
in the course of war, and w/c is denominated as a govt
of paramount force, like the Second Republic WHO MAY EXERCISE LEGISLATIVE POWER
Legislative power is the authority to make laws and to alter
established by the Japanese belligerent.
and repeal them. It is vested in:
The legitimacy of the Aquino government is not a (1) The Congress of the Philippines, which consists of a
Senate and a House of Representatives [CONST., art. VI,
justiciable matter. It belongs to the realm of politics where
only the people of the Philippines are the judge. And the sec. 1]
people have made the judgment; they have accepted the (2) The people to themselves, by the system of initiative
and referendum [Id.]
government of President Corazon C. Aquino which is in
effective control of the entire country so that it is not
Legislative power may also be exercised by:
merely a de facto government but in fact and law a de jure
(1) Regional/local legislative assemblies N.B. A regional
government. Moreover the community of nations has
recognized the legitimacy of the present government. All assembly exists for the ARMM
(2) President, under martial rule or in a revolutionary
the eleven members of this Court as reorganized have

PAGE 10
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

government. [See CONST., art. VI, sec. 23(2)]. Congress (4) A registered voter
may delegate legislative powers to the president in (5) Resident of the Philippines for at least 2 years
times of war or in other national emergency. [BERNAS] immediately preceding the day of the election
th
Congress - Grant of legislative power to Congress is Term of Office: 6 years, commencing at noon on the 30
plenary.Congress may legislate on any subject matter day of June next following their election
provided that constitutional limitations are observed.
Term Limits: only up to 2 consecutive terms. However, they
Initiative and Referendum may serve for more than 2 terms provided that the terms
The power of initiative and referendum is the power of the are not consecutive.
people directly to propose and enact laws or approve or
reject any act or law or part thereof passed by the House of Representatives
Congress or local legislative body. (art. VI, sec. 32) [Art. VI, Sec. 5-8]
Composition: Not more than 250 members, unless
The operationalization of initiative and referendum has otherwise provided by law, consisting of:
been left by the Constitution to Congress (art. VI, sec. 32;
BERNAS); District Representatives - Elected from legislative districts
apportioned among the provinces, cities, and Metro Manila
The provision is not self-executory [Santiago v. COMELEC area
(1997)];
Rules on Apportionment of Legislative Districts:
RA 6735 An Act Providing for a System of Initiative and (a) Apportionment of legislative districts must be by law
Referendum and Appropriating Funds Therefore valid which could be a:
for laws, ordinances, and resolutions, but NOT (i) General Apportionment Law; or
amendments to the Constitution [Santiago, supra] (ii) Special Law (i.e. creation of new provinces)
Note: The power to apportion legislative districts is
HOUSES OF CONGRESS textually committed to Congress by the Constitution.
COMPOSITION, QUALIFICATIONS AND TERM OF OFFICE Thus, it cannot be validly delegated to the ARMM
Senate House of Representatives Regional Assembly [Sema v. COMELEC (2008)].Under
(art. VI, sec. 2-4) (art. VI, sec. 5-8) the Constitution and the Local Gov. Code,
Composition apportionment and reapportionment do not require a
plebiscite. [Bagabuyo v. COMELEC (2008)]
24 senators elected at Not more than 250 (b) Proportional representation based on number of
large members, unless otherwise inhabitants
provided by law, consisting (i) Each citywith a population of at least 250,000shall have
of: at least 1 representative.
(1) District Repre-sentatives (ii) Each province, irrespective of the number of
(2) Party-List Representa- inhabitants, shall have at least 1 representative.
tives (c) Each legislative district shall comprise, as far as
Qualifications practicable, contiguous, compact, and adjacent
territory. (N.B. Anti-gerrymandering provision)
(1) Natural-born citizen (1) Natural-born citizens
(d) Re-apportionment by Congress within 3 years after the
(2) At least 35 years old on (2) At least 25 years old on
return of each census.
the day of the election the day of the election
(3) Able to read and write (3) Able to read and write
Party-List Representatives shall constitute 20% of the
(4) A registered voter (4) Registered voter in the
total number of representatives, elected through a party-
(5) Resident of the district he seeks to
list system of registered national, regional, and sectoral
Philippines for at least 2 represent
parties or organizations
years immediately (5) A resident of the said
Sectoral Representatives - For 3 consecutive terms from 2
preceding the day of the district for at least 1 year
February 1987, of the partylist seats shall be allotted to
election immediately preceding the
sectoral representativesto be chosen by appointment or
day of the election
election, as may be provided by law. Until a law is passed,
they are appointed by the President from a list of nominees
Term of Office by the respective sectors. [Art. XVIII, Sec. 7]
6 years 3 years
Qualifications of Representatives:
Term Limits (1) Natural-born citizens
(2) At least 25 years old on the day of the election
2 consecutive terms 3 consecutive terms (3) Able to read and write
(4) Registered voter in the district he seeks to represent
Senate (5) A resident of the said district for at least 1 year
[Art. VI, Sec. 2-4] immediately preceding the day of the election.
Composition: 24 senators elected at large th
Term of Office: 3 years, commencing at noon on the 30
Qualifications: day of June next following their election.
(1) Natural-born citizen
(2) At least 35 years old on the day of the election
(3) Able to read and write

PAGE 11
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

Tenure may be shorter than the term or it may not exist at Disqualified parties:
all. These situations will not change the duration of the (1) Religious Sects
term of office. [Dimaporo vs Mitra (1991)] (2) Foreign Organizations
(3) Those Advocating Violence or Unlawful Means
Term Limits: No member of the House of Representatives (4) It is receiving support from any foreign government,
shall serve for more than 3 consecutive terms. foreign political party, foundation, organization,
whether directly or through any of its officers or
Party-list System members or indirectly through third parties for partisan
BOCs Note: Atong Paglaum v. COMELEC, G.R. No. 203766, election purposes.
April 3, 2013 is beyond the 2013 Bar Coverage cut-off date, (5) It violates or fails to comply with laws, rules or
but the decision reversed and significantly modified regulations relating to elections;
previous Court rulings on the party-list system. (6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
Atong Paglaum Guidelines (8) It fails to participate in the last two (2) preceding
(1) Three different parties or organizations may participate elections or fails to obtain at least 2 per centum of the
in the party-list system: (a) national; (b) regional; or (c) votes cast under the party-list system in the two (2)
sectoral; preceding elections for the constituency in which it has
registered.
(2) National and regional parties or orgs do not need to (a)
organize along sectoral lines or (b) represent any Qualified Sectors:
marginalized or underrepresented sector; (1) Labor
(2) Peasant
(3) Political parties may participate in the party-list system (3) Fisherfolk
provided: (a) they register under the party-list system; (4) Urban Poor
(b) they do not field candidates in legislative district (5) Indigenous Cultural Com-munities
elections. (6) Elderly
(i) A party that participates in the legislative district (7) Handicapped
elections may still participate in the party-list (8) Women
through a sectoral wing. (9) Youth
(ii) The sectoral wing can be part of the political partys (10)Veterans
coalition, but the former must be registered (11) Overseas Workers
independently in the party-list system. (12) Professionals

(4) Sectoral parties or orgs may either be (a) marginalized Query: Are political parties allowed to participate in the
or underrepresented (e.g. labor, peasant, fisherfolk); party-list system?
or (b) lacking in well-defined political constituencies
(e.g. professionals, women, elderly, youth) Political parties are allowed by the constitution to
participate in the party-list system provided that they
(5) The nominees of sectoral parties or orgs, of either type, represent the interests of the marginalized and
must (a) belong to their respective sectors, or (b) have a underrepresented. The following conditions must be
track record of advocacy for their respective sectors. complied:
(1) Must represent marginalized and under-represented
Majority of the members of a sectoral party, of either sectors;
type, must belong to the sector they represent. (2) Major political parties must comply with this statutory
policy;
(6) National, regional, or sectoral parties or orgs shall not (3) Must be subject to the express constitutional
be disqualified if some of their nominees are prohibition against religious sects;
disqualified, provided they have at least one (1) (4) The party must not be disqualified under RA 7941;
nominee who remains qualified. (5) The party must not be an adjunct or entity or project
funded by the government;
For computation of allocation of party-list seats, see Election (6) The party and its nominees must comply with the
Law portion of the reviewer or BANAT v. COMELEC, G.R. requirements of the law;
No. 179271, April 21, 2009. (7) The nominee must also represent a marginalized or
under-represented sector;
N.B. The following have been either modified or repealed by (8) The nominee must be able to contribute to the
Atong Paglaum, but were good law as of the cut-off date for formulation and enactment of appropriate legislation
the 2013 Bar. that will benefit the nation. [Ang Bagong Bayani-OFW
Labor Party v. COMELEC (2000)].
See R.A. 7941, An Act Providing For The Election Of Party-
List Representatives Through The Party-List System, And Four inviolable constitutional and statutory parameters in the
Appropriating Funds Therefor party-list system:
(1) 20% Allocation the combined number of all party-list
Parties, organizations, and coalitions must obtain at least congressmen shall not exceed 20% of the total
2% of all votes cast to obtain a party-list seat. membership of the House of Representatives.
(2) 2% threshold only those parties garnering a
Those garnering more than 2% are entitled to additional minimum of 2% of the total votes cast for the party-list
seats in proportion to their total number of votes, but may system are qualified to have a seat in the House.
not have more than 3 seats.

PAGE 12
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

(3) Three seat limit each qualified party, regardless of The provision refers to an Incompatible Office. Forfeiture of
the number of votes it actually obtained is entitled to a the seat in Congress shall be automatic upon the
maximum of three seats (1 qualifying and 2 additional members assumption of such office deemed
seats). incompatible. [Adaza v. Pacana (1985)].
(4) Proportional representation the additional seats (2) May not be appointed to any office created or the
which a qualified party is entitled to shall be computed emoluments thereof were increased during the term
in proportion to their total number of votes. [Veterans for which he was elected. [Art. VI, Sec. 13]
Federation v. COMELEC (2000)]. The provision refers to a Forbidden Office. He cannot validly
take the office even if he is willing to give up his seat.
LEGISLATIVE PRIVILEGES, INHIBITIONS AND (3) Cannot personally appear as counsel before any court,
DISQUALIFICATIONS electoral tribunal, quasi-judicial and administrative
PRIVILEGES bodies during his term of office. [Art. VI, Sec. 14]
Salaries (4) Shall not be financially interested, directly or indirectly, in
The salaries of Senators and Representatives shall be any contract with, or franchise or special privilege
determined by law. granted by the government during his term of office.
[Art. VI, Sec. 14]
No increase in said compensation shall take effect until (5) Shall not intervene in any matter before any office of the
after the expiration of the full term of all the Members of government when it is for his pecuniary benefit or
the Senate and the House of Representatives approving where he may be called upon to act on account of his
such increase. [Art. VI, Sec. 10]. office. [Art. VI, Sec. 14]

Freedom from Arrest Appearance as counsel: Certain salient circumstances


A Senator or Member of the House of Representatives militate against the intervention of Assemblyman
shall, in all offenses punishable by not more than six years Fernandez in the SEC Case. He had acquired a mere
imprisonment, be privileged from arrest while the P200.00 worth of stock in IPI, representing ten shares out
Congress is in session. [Sec. 11, Art VI]. of 262,843 outstanding shares. He acquired them after the
contested election of Directors, after the quo warranto suit
Preventive suspension is not a penalty. Order of suspension had been filed before SEC, and one day before the
under R.A. 3019 (Anti-Graft and Corrupt Practices Act) is scheduled hearing of the case before the SEC.
distinct from the power of Congress to discipline its own
members, and did not exclude members of Congress from Before he moved to intervene, he had signified his
its operation. [Defensor-Santiago v. Sandiganbayan (2001)] intention to appear as counsel for respondent, which was
objected to by petitioners. Realizing, perhaps, the validity
In People v. Jalosjos (2000), the SC denied the request of of the objection, he decided, instead, to "intervene" on the
Cong. Jalosjos that he be allowed to attend legislative ground of legal interest in the matter under litigation.
sessions. He denial was premised on the following: (a)
membership in Congress does not exempt an accused Under those facts and circumstances that there has been
from statutes and rules which apply to validly incarcerated an indirect "appearance as counsel before ... an
persons; (b) one rationale behind confinement is public administrative body" and that is a circumvention of the
self-defense; (c) it would amount to creation of a privileged Constitutional prohibition.
class, without justification in reason; and (d) he was
provided with an office in the New Bilibid Prison. The "intervention" was an afterthought to enable him to
appear actively in the proceedings in some other capacity.
Speech and Debate Clause [Puyat v De Guzman, (1982)]
No Member shall be questioned nor be held liable in any
other place for any speech or debate in the Congress or in DUTY TO DISCLOSE
any committee thereof. (1) SALN: A public officer or employee shall, upon
assumption of office and as often as may be required
To come under the guarantee the speech or debate" must by law, submit a declaration under oath of his assets,
be one made "in Congress or in any committee thereof." liabilities, and net worth.
Publication of an allegedly libelous letter is not covered by
the privilege [Jimenez v. Cabangbang (1966)] Cases wherein declaration shall be disclosed to the public
in the manner provided by law:
Each House of the Congress can discipline its members for (a) President
disorderly conduct or behavior. (b) Vice-President
(c) the Members of the Cabinet
What constitutes disorderly behavior is entirely up to (d) the Congress
Congress to define. (e) the Supreme Court
(f) the Constitutional Commissions and other
The immunity, although absolute in its protection of the constitutional offices
member of Congress against suits for libel, does not shield (g) officers of the armed forces with general or flag
the member against the disciplinary authority of the rank [Art. XI, Sec. 17]
Congress. [Osmea v. Pendatun (1960)]
(2) All Members of the Senate and the House of
DISQUALIFICATIONS Representatives shall, upon assumption of office,
(1) May not hold any other office or employment in the make a full disclosure of their financial and business
government during his term without forfeiting his seat. interests.
[Art. VI, Sec. 13]

PAGE 13
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

They shall notify the House concerned of a potential suspension of


conflict of interest that may arise from the filing of a writ of
proposed legislation of which they are authors. [Art. Habeas
VI, Sec. 12] Corpus
Confirm Majority (Silent) Art. VII,
(3) The records and books of accounts of the Congress amnesty sec. 19,
shall be preserved and be open to the public in grant par. 2
accordance with law, such books shall be audited by Submit Majority (Silent) Art. XVII,
the Commission on Audit which shall publish question of sec. 3
annually an itemized list of amounts paid to and Const. Prevailing
expenses incurred for each Member. [Art. VI, Sec. 20] Convention view: by
Call for 2/3 default, Art. XVII,
QUORUM AND VOTING MAJORITIES Const. houses vote sec. 3
QUORUM Convention separately
Majority of each House shall constitute a quorum. Propose 3/4 (because Art. XVII,
amendments Congress is sec. 1(1)
A smaller number may adjourn from day to day and may as Const. bicameral)
compel the attendance of absent members. Assembly

In computing a quorum, members who are outside the (2) Other Special Cases
country, thus outside of each Houses coercive jurisdiction,
are not included. Vote Required (out of all
Action Basis
members)
Majority refers to the number of members within the Determine 2/3 of both Houses, voting Art. VII,
jurisdiction of the Congress (those it can order arrested for Presidents separately sec. 11, par.
the purpose of questioning). In this case, one Senator was disability 5
out of the Philippines which is not within the jurisdiction Declaring a 2/3 (of both Houses, in joint Art. VI,
of the Senate, so that the working majority was 23 State of War session), each House voting sec. 23(1)
Senators. separately
There is a difference between a majority of "all members of
the House" and a majority of "the House", the latter DISCIPLINE OF MEMBERS
requiring less number than the first. Therefore, an absolute Each house may punish its members for disorderly
majority (12) of all members of the Senate less one (23) behavior, and with the concurrence of 2/3 of ALL its
constitutes constitutional majority of the Senate for the members:
purpose of the quorum. [Avelino v. Cuenco (1949)] (1) Suspension (shall not exceed 60 days)
(2) Expulsion
VOTING MAJORITIES
Doctrine of Shifting Majority For each House of Congress Other disciplinary measures:
to pass a bill, only the votes of the majority of those (1) deletion of unparliamentary remarks from the record
present in the session, there being a quorum, is required. (2) fine
(3) imprisonment
Exceptions to Doctrine of Shifting Majority: (4) censure
(1) Votes where requirement is based on ALL THE
MEMBERS OF CONGRESS requirement is based on The suspension contemplated in the Constitution is
the entire composition of a House or Congress (in its different from the suspension prescribed in the Anti-Graft
entirety), regardless of the number of Members present and Corrupt Practices Act (RA 3019). The former is punitive
or absent in nature while the latter is preventive. [Defensor-Santiago
v. Sandiganbayan (1995)].
Vote
Required Houses ELECTORAL TRIBUNALS AND THE COMMISSION ON
Action Basis
(out of all voting APPOINTMENTS
members) ELECTORAL TRIBUNALS
Override 2/3 Separately Art. VI, sec. [Art. VI, Sec. 17]
presidential 27(1) (1) Senate Electoral Tribunal (SET)
veto (2) House Electoral Tribunal (HRET)
Grant of tax Majority (Silent) Art. VI, sec.
exemptions 27(4) N.B. There is a Presidential Electoral Tribunal (PET), but it
Elect Majority Separately Art. VII, is governed by different provisions.
President in sec. 4, par.
case of tie 5 Composition
Confirm Majority Separately Art. VII, (1) 3 Supreme Court justices, designated by CJ
appointment sec. 9 Senior Justice in the Electoral Tribunal shall be its
of VP Chairman
Revoke or Majority Jointly Art. VII, (2) 6 members of the Senate or House, as the case may be,
extend (a) sec. 18 chosen on the basis of proportional representation
Martial Law from parties;
or (b) (3) The ET shall be constituted within 30 days after the

PAGE 14
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

Senate and the House shall have been organized with the tripartite scheme of government, it is to all intents and
the election of the President and the Speaker. purposes, when acting within the limits of its authority, an
(4) Members chosen enjoy security of tenure and cannot be independent organ; while composed of a majority of
removed by mere change of party affiliation. [Bondoc v. members of the legislature it is a body separate from and
Pineda (1991)]. independent of the legislature. [Bondoc v. Pineda (1991)]

Valid grounds/just cause for termination of membership to Powers


the tribunal: As constitutional creations invested with necessary power,
(1) Expiration of Congressional term of office; the Electoral Tribunals are, in the exercise of their
(2) Death or permanent disability; functions independent organs independent of Congress
(3) Resignation form political party which one represents in and the Supreme Court. The power granted to HRET by
the tribunal; the Constitution is intended to be as complete and
(4) Removal from office for other valid reasons. unimpaired as if it had remained originally in the
legislature [Co v. HRET (1991) citing Angara vs. Electoral
Note: Disloyalty to party and breach of party discipline are Commission (1936)].
not valid grounds for the expulsion of a member of the
tribunal. [Bondoc, supra] Judicial Review of Decisions of Electoral Tribunals
With the Supreme Courtonly insofar as the decision or
Nature of Function resolution was rendered:
Jurisdiction: sole judge of all contests relating to the (1) without or in excess of jurisdiction, or
election, returns, and qualifications of their respective (2) with grave abuse of discretion tantamount to denial of
members. due process.

When does it acquire jurisdiction: ET has jurisdiction only COMMISSION ON APPOINTMENTS (CA)
when there is an election contest, and only after the (Art. VI, Sec. 18)
proclamation of a candidate. [See Lazatin v. HRET (1988)].
Composition
Election Contest- one where a defeated candidate (1) Senate President as ex-officio chairman (shall not vote
challenges the qualification and claims for himself the seat except in case of a tie)
of a proclaimed winner. (2) 12 Senators
(3) 12 Members of the HOR
In the absence of election contest, and before
proclamation, jurisdiction remains with COMELEC. [See The CA shall be constituted within 30 days after the
Lazatin, supra] Senate and the House of Representative shall have been
organized with the election of the President and the
Supreme Court has jurisdiction over the Electoral Speaker.
Commission for the purpose of determining the character,
scope and extent of the constitutional grant to the The CA shall act on all appointments within 30 session
Electoral Commission as "the sole judge of all contests days from their submission to Congress.
relating to the election, returns and qualifications of the
members of the National Assembly." [Angara v. Electoral The CA shall rule by a majority vote of all its members.
Commission (1936)]
It is NOT mandatory to elect 12 Senators to the
Note: Constitution mandates that the HRET shall be the Commission; what the Constitution requires that there
sole judge of all contests relating to the election, returns must be at least a majority of the entire membership.
and qualifications of its members. By employing the word [Guingona v. Gonzales (1993)].
sole, the Constitution is emphatic that the jurisdiction of
the HRET in the adjudication of election contests involving The power to approve or disapprove appointments is
its members is exclusive and exhaustive. Its exercise of conferred on the CA as a body and not on the individual
power is intended to be its own full, complete and members. [Pacete v. Secretary (1971)]
unimpaired. [Duenas Jr. v. HRET (2009)]
Rule on Proportional Representation The 12 Senators and
Independence of the Electoral Tribunals 12 Representatives are elected on the basis of proportional
Since the ETs are independent constitutional bodies, representation from the political parties and party-list
independent even of the respective House, neither organizations.
Congress nor the Courts may interfere with procedural
matters relating to the functions of the ETs. [Co vs HRET, HOR has authority to change its representation in the
(1991)] Commission on Appointments to reflect at any time the
changes that may transpire in the political alignments of
The HRET was created to function as a nonpartisan court its membership. It is understood that such changes in
although two-thirds of its members are politicians. membership must be permanent and do not include the
temporary alliances or factional divisions not involving
To be able to exercise exclusive jurisdiction, the House severance of political loyalties or formal disaffiliation and
Electoral Tribunal must be independent. Its jurisdiction to permanent shifts of allegiance from one political party to
hear and decide congressional election contests is not to another. [Daza v. Singson (1989)]
be shared by it with the Legislature nor with the courts.
"The Electoral Commission is a body separate from and The provision of Section 18 on proportional representation is
independent of the legislature and though not a power in mandatory in character and does not leave any discretion

PAGE 15
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

to the majority party in the Senate to disobey or disregard NON-LEGISLATIVE POWERS (SCOPE)
the rule on proportional representation. (1) power to canvass the presidential elections;
(2) declare the existence of war;
By requiring a proportional representation in the (3) give concurrence to treaties and amnesties;
Commission on Appointments, sec. 18 in effect works as a (4) propose constitutional amendments;
check on the majority party in the Senate and helps to (5) impeachment;
maintain the balance of power. No party can claim more
than what it is entitled to under such rule. [Guingona v. SPECIFIC POWERS
Gonzales (1993)] (1) Constituent power
(2) Legislative Inquiries
Meetings (3) Appropriation
(1) CA shall meet only while Congress is in session. (4) Taxation
(2) Meetings are held either (a) at the call of the Chairman (5) Concurrence in treaties and international agreements
or (b) by a majority of all its members. (6) War powers and delegations powers

Note: Since the Commission on Appointments is also an LEGISLATIVE


independent constitutional body, its rules of procedure are Legislative Inquiries and the Oversight Functions
also outside the scope of congressional powers as well as (Art VI, Sec. 21)
that of the judiciary.
Requisitesof Legislative Inquiries:
Jurisdiction (1) Must be in aid of legislation
(1) CA shall confirm the appointments by the President (2) In accordance with duly published rules of procedure
with respect to the following positions: (3) Right of persons appearing in or affected by such
(a) Heads of Executive departments (except if it is the inquiries shall be respected
Vice-President who is appointed to a cabinet
position); Comparison between Legislative Inquiries and Question
(b) Ambassadors, other public ministers or consuls; Hour [See also Senate v. Ermita (2006)]
(c) Officers of the AFP from the rank of Colonel or Legislative Inquiries Question Hour
Naval Captain;
(d) Other officers whose appointments are vested in Constitutional Provision
him by the Constitution (e.g. members of Art. VI, Sec. 21 Art. VI, Sec. 22
constitutional commissions); [Sarmiento v. Mison
(1987)] Topic
(2) Congress cannot by law require that the appointment
of a person to an office created by such law shall be In aid of legislation On any matter pertaining
subject to CA confirmation. to the subjects
Appointments extended by the President to the above- department
mentioned positions while Congress is not in session (ad- Persons Subjected
interim appointments) shall only be effective:
Any person upon subpoena Heads of departments
(1) Until disapproval by the Commission on Appointments;
only
OR
(2) Until the next adjournment of Congress. Appearance of Exec. Officials
Appearance of executive Appearance of executive
POWERS OF CONGRESS officials generally mandatory officials via request
INHERENT POWERS
These are inherent powers of the State which are reposed, The mere filing of a criminal or an administrative
under the Constitution, in Congress. complaint before a court or quasi-judicial body should not
(1) Police Power automatically bar the conduct of legislative inquiry.
(a) Make, ordain, and establish all manner of wholesome [Standard Chartered Bank v. Senate Committee on Banks
and reasonable laws, statutes and ordinances as they (2007)]
shall judge for the good and welfare of the
constituents. Additional limitation: Executive Privilege (refer to discussion
(b) Includes maintenanc of peace and order, protection of on executive privilege / presidential privilege on p. 20)
life, liberty and property and the promotion of general
welfare Categories of congressional oversight functions
(2) Power of Taxation (1) Scrutiny: Passive inquiry, the primary purpose of which
(3) Power of Eminent Domain is to determine economy and efficiency of the operation
(4) Contempt power of government activities. In the exercise of legislative
scrutiny, Congress may request information and report
LEGISLATIVE POWERS from the other branches of government. It can give
(1) powers of appropriation, recommendations or pass resolutions for consideration
(2) taxation of the agency involved.
(3) expropriation (2) Congressional investigation: More intense digging of
(4) authority to make, frame, enact, amend, and repeal facts, compared to scrutiny. Power of investigation
laws recognized by art. VI, sec. 21.
(5) ancillary powers (e.g. conduct inquiry and punish for (3) Legislative supervision (Legislative Veto): Most
contempt [See Arnault v. Nazareno (1950)] encompassing form. Connotes a continuing and
informed awareness on the part of a congressional

PAGE 16
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

committee regarding executive operations in a given its members 3 days before the passage of the bill. (art.
administrative area. Allows Congress to scrutinize the VI, sec. 26[2])
exercise of delegated law-making authority, and
permits Congress to retain part of that delegated Exception: President certifies to the necessity of its
authority. Through this, Congress exercises supervision immediate enactment to meet a public calamity or
over the executive agencies. emergency

N.B. Legislative supervision is NOT allowed under the Presidential certification dispenses with the requirement (1)
Constitution. [Abakada Guro Partylist v. Purisima (2008)] printing requirement and (2) readings on separate days
See also discussion in Separation of Powers, above. requirement[Tolentino v. Secretary of Finance (1995)]

Bicameral Conference Committee Substantive Limitations


Ways of passing bills: Circumscribe both the exercise of the power itself and the
(1) Jointly: in a joint session, supra allowable subject of legislation
(2) Separately: each house takes up bill on its own; the
houses, in turn, can pass the bill: Express limitations:
(a) Simultaneously: houses take up a bill at the same time (1) On general powers - Bill of Rights [Art. III]
(b) Sequentially: bill originates from one house and, upon (2) On taxation [Secs. 28 and 29(3), Art. VII]
proper passage, is transmitted to the other house for (3) On appropriation [Secs. 25 and 29(1) and (2), Art VI]
the latters own passage. In case of conflict between (4) On appellate jurisdiction of the SC [Sec. 30, Art. VI]
the two houses versions, a bicameral conference (5) No law granting title of royalty or nobility shall be
committee is organized. passed [Sec. 31, Art. VI]

Bicameral Conference Committee (BCC): Implied Limitations:


(1) Composed of equal number of members from the (1) No power to pass irrepealable law
Senate and the HOR (2) Non-encroachment on powers of other departments
(2) Makes recommendations to houses on how to (3) Non-delegation of powers
reconcileconflicting provisions/versions
(3) BCC members are usually granted blanket authority to LIMITATIONS ON REVENUE, APPROPRIATIONS AND TARIFF
negotiate/reconcile the bills. MEASURES
(4) At the end of the process, the BCC comes up with a
Conference Committee Report, which is then submitted Appropriations
to the respective chambers for approval. Upon General Limitations:
approval, the bill may be engrossed. (A) Appropriations must be for a public purpose.
(B) Cannot appropriate public funds or property, directly or
The Bicam reportneed not pass through three readings. indirectly, in favor of
The Bicam may also include entirely new provisions and (1) Any sect, church, denomination, or sectarian institution
substitutions. [See Tolentino v. Sec. of Finance (1994), Phil. or system of religion or
Judges Association v. Prado (1993)] (2) Any priest, preacher, minister, or other religious teacher
or dignitary as such.
Enrolled bill doctrine The signing of a bill by the Speaker Exception: if the priest etc. is assigned to:
of the House and the President of the Senate and the (a) the Armed Forces;
certification by the secretaries of both Houses of Congress (b) any penal institution;
that it was passed are conclusive of its due enactment. (c) government orphanage;
(d) leprosarium
Note: While Tolentino v. Sec. of Finance does NOT hold that (C) Government is not prohibited from appropriating
the enrolled bill embodies a conclusive presumption, i.e. money for a valid secular purpose, even if it incidentally
the rule is not absolute, where there is no evidence to the benefits a religion, e.g. appropriations for a national
contrary, the Court will respect the certification of the police force is valid even if the police also protects the
presiding officers of both Houses that a bill has been duly safety of clergymen. Also, the temporary use of public
passed. [Arroyo v. De Venecia (1997)] property for religious purposes is valid, as long as the
property is available for all religions.
Limitations on Legislative Power
Formal/Procedural Limitations Specific Limitations
Prescribes manner of passing bills andform they should For General Appropriations Bills
take. (1) Congress may not increase the appropriations
(a) Rider clause:every bill passed by the Congress shall recommended by the President for the operation of the
embrace only one subject which shall be expressed in Government as specified in the budget.
the title. [Art. VI, Sec. 26(1)] (2) Form, content and manner of preparation of the budget
The title is not required to be an index of the contents shall be prescribed by law.
of the bill. It is sufficient compliance if the title (3) No provision or enactment shall be embraced in the
expresses: (1) the general subject and (2) all the general appropriations bill unless it relates specifically
provisions of the statute are germane to that subject. to some particular appropriation therein.
[Tio v. Videogram Regulatory Commission (1987)] (4) Procedure in approving appropriations FOR THE
(b) No bill passed by either house shall become law unless CONGRESS shall strictly follow the procedure for
it has passed 3 readings on separate days. [Art. VI, Sec. approving appropriations for other departments and
26(2)] agencies.
(c) Printed copies in its final form have been distributed to (5) No law shall be passed authorizing any transfer of

PAGE 17
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

appropriations. However, the following may, BY LAW, (a) Classificationfor the purpose of taxation is not
be authorized to AUGMENT any item in the general prohibited per se, BUT it must comply with the Test of
appropriations law for their respective offices FROM Valid Classification [see Ormoc Sugar Central v. Ormoc
SAVINGS in other items of their respective City (1968), on equal protection and local taxes]
appropriations:
(a) President Test of Valid Classification
(b) Senate President (1) Based on substantial distinctions which make real
(c) Speaker of the HOR differences
(d) Chief Justice of the Supreme Court (2) Germane to the purpose of law
(e) Chairs of Constitutional Commissions (3) Applies to present and future conditions substantially
identical to those of the present
Guidelines for disbursement of discretionary funds (4) Applies equally to those who belong to the same class
appropriated for particular officials:
(1) For public purposes Progressive
(2) To be supported by appropriate vouchers The rate increases as the tax base increases
(3) Subject to such guidelines as may be prescribed by law
Tax burden is based on the taxpayers capacity to pay
If Congress fails to pass the general appropriations bill by the
end of any fiscal year: Suited to the social conditions of the people
(1) The general appropriations bill for the previous year is
deemed reenacted Reflects aim of the Convention that legislature following
(2) It shall remain in force and effect until the general social justice command should use taxation as an
appropriations bill is passed by Congress. instrument for more equitable distribution of wealth

For Special Appropriations Bills Progressive taxation is a directive to Congress and is not a
(1) Shall specify the purpose for which it is intended judicially enforceable right [Tolentino v. Secretary of Finance,
(2) Shall be supported by funds supra]
(i) actually available as certified by the National Treasurer;
or Constitutional Tax Exemptions:
(ii) to be raised by corresponding revenue proposal therein (1) Religious, charitable, educational institutions and their
properties
Limitation on Use of Public Funds [Art. VI, Sec. 29] (2) All revenues and assets of non-stock, non-profit
(1) No money shall be paid out of the National Treasury educational institutions are exempt from taxes and
except in pursuance of an appropriation made by law. duties PROVIDED that such revenues and assets are
(2) However, this rule does not prohibit continuing actually, directly and exclusively used for educational
appropriations, e.g. for debt servicing, for the reason purposes [Art. XIV, Sec. 4(3)]
that this rule does not require yearly or annual (3) Grants, endowments, donations or contributions used
appropriation. actually, directly and exclusively for educational
purposes shall be exempt from tax, subject to
Four phases of Governments budgeting process: conditions prescribed by law [Art. XIV, sec. 4(4)]
(1) Budget preparation
(2) Legislative authorization Special Funds
(3) Budget execution (1) Money collected on a tax levied for a special purpose
(4) Budget accountability shall be treated as a special fund and paid out for such
purpose only.
Taxation [Art. VI, Sec. 28] (2) Once the special purpose is fulfilled or abandoned, any
Nature of provision balance shall be transferred to the general funds of the
Sec. 28 is a listing of the limits on the inherent and Government
otherwise unlimited power
Presidential Veto and Congressional Override
Purposes of taxation Submission to the President; Presidents Veto power [Sec 27,
(1) Pay debts and provide for the common defense and Art VI]
general warfare; Every bill, in order to become a law, must be presented to
(2) Raise revenue; and signed by the President.
(3) Instrument of national and social policy;
(4) Instrument for extermination of undesirable acts and If the President does not approve of the bill, he shall veto
enterprises; the same and return it with his objections to the house
(5) Tool for regulation; from which it originated. The House shall enter the
(6) Imposition of tariffs designed to encourage and protect objections in the journal and proceed to reconsider it.
locally produced goods against competition for
imports. The President must communicate his decision to veto
within 30 days from the date of receipt thereof. Otherwise,
Limitations the bill shall become a law as if he signed it.(Lapsed into
(1)Public purpose- Power to tax should be exercised only law)
for a public purpose.
(2) Uniform and equitable. To override the veto, at least 2/3 of ALL the members of
(a) Operates with the same force and effect in every place eachhouse must agree to pass the bill. In such case, the
where the subject of it is found veto is overridden and becomes a law without need of

PAGE 18
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

presidential approval. COMMITTEE REPORT by proper committee (i.e. HOR


Committee on Justice), which either favorably or
General Rule:Partial veto is invalid; all-or-nothing unfavorably resolves the complaint

Exceptions:
(1) Veto of particular items in an appropriation, revenue, or
tariff bill; Above resolution AFFIRMED (if favorable) or
(2) Doctrine of Inappropriate Provisions (See below) OVERRIDDEN (if unfavorable) by vote of 1/3 of all the
members of the HOR
Item veto
The President may veto particular items in an
appropriation, revenue or tariff bill.The whole item (and not Verified complaint or resolution [Sec. 3(4)]
just a portion) must be vetoed. [Bengzon v. Drilon (1992)] FILED by 1/3 of all the members of the HOR; trial by
Senate forthwith proceeds
Item - in a bill, refers to the particulars, the details, the
distinct and severable parts; an indivisible sum of money Notes on Initiation: [See Gutierrez v. HOR Committee on
dedicated to a stated purpose; in itself, a specific Justice (February 15, 2011 and March 8, 2011)]
appropriation of money, not some general provision of law,
which happens to be in an appropriation bill. Basic limitation: No impachment proceeding shallbe
initiated against the same official more than once within a
The president cannot veto unavoidable obligations, i.e. period of one year (CONST., art. XI, sec. 2[5])
already vested by another law (e.g. payment of pensions,
see Bengzon, supra). Initiation means filing coupled with referral to the
Committee on Justice.
This veto will not affect items to which he does not object.
Court cannot make a determination of what constitutes an
Veto of a Rider impeachable offense; it is a purely political question [citing
A rider is a provision which does not relate to a particular Francisco v. House of Representatives (2003)]
appropriation stated in the bill.
On motion to inhibit: Impeachment is a political exercise.
Since it is an invalid provision under art. VI, sec. 25(2), the The Court cannot apply (to Congressmen) the stringent
President may veto it as an item. stands it asks of justices and judges when it comes to
inhibition from hearing cases.
The executive's veto power does not carry with it the power
to strike out conditions or restrictions. If the veto is Constitutional requirement that HOR shall promulgate its
unconstitutional, it follows that the same produced no rules on impeachment (see CONST., Art. XI, Sec. 3[8]) is
effectwhatsoever, and the restriction imposed by the different from the publication requirement in Taada v.
appropriation bill, therefore, remains. [Bolinao Electronics Tuvera. (In the Gutierrez case, promulgation was found to
Corp v. Valencia (1964)] be sufficient.)
Doctrine of Inappropriate Provisions The SENATE shall have the sole power to try and decide all
A provision that is constitutionally inappropriate for an cases of impeachment. (sec. 3[6])
appropriation bill may be singled out for veto even if it is
not an appropriation or revenue item. [Gonzales vs By virtue of the expanded judicial review (art. VIII, sec. 1[2]),
Macaraig, (1990)] the Courts power of judicial review extends over justiciable
issues arising in impeachment proceedngs. [Francisco v.
NON-LEGISLATIVE HOR (2003)]
Informing Function
Via legislative inquiries: Conduct of legislative inquiries is BUT the question of WON Senate Impeachment Rules were
intended to benefit not only Congress but the citizenry, followed is a political question. [Corona v. Senate (2012)]
who are equally concerned with the proceedings. [Sabio v.
Gordon (2006)] Other non-legislative powers
(1) power to canvass the presidential elections;
Impeachment [CONST., Art. XI] (2) declare the existence of war;
The HOR shall have the exclusive power to initiateall cases (3) give concurrence to treaties and amnesties;
of impeachment. [sec. 3(1)] (4) propose constitutional amendments;
(5) implied powers such as the power to punish contempt
Two modes of initiation in legislative investigations.
Regular Procedure: [Sec. 3(2)(3)]
FILING by (a) any member of the HOR or (b) any citizen
upon endorsement by a member of the HOR; followed by
REFERRAL to the proper HOR committee

PAGE 19
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

Executive Department Salary


Determined by law. Shall not be decreased during tenure.
No increase shall take effect until after the expiration of
THE PRESIDENT the term of the incumbent during which such increase was
QUALIFICATIONS: approved.
(1) Natural-born citizen of the Philippines;
(2) A registered voter; Presidential Immunity
(3) Able to read and write; The President as such cannot be sued, enjoying as he does
(4) At least forty years of age on the day of the election; immunity from suit
and
(5) A resident of the Philippines for at least 10 years But the validity of his acts can be tested by an action
immediately preceding such election. (art. VII, sec. 2) against other executive officials. [Carillo vs. Marcos (1981)]

ELECTION: The privilege may be invoked ONLY by the President.


(1) Regular Election Second Monday of Monday Immunity from suit pertains to the President by virtue of
(2) National Board of Canvassers (President and Vice- the office and may be invoked only by the holder of the
President) Congress office; not by any other person in the President's behalf.The
(a) Returns shall be transmitted to Congress, directed President may waive the protection afforded by the
to the Senate President privilege and submit to the court's jurisdiction. [Soliven v.
(b) Joint public session not later than 30 days after Makasiar (1988); Beltran v. Makasiar (1988)]. BUT
election date; returns to be opened in the presence presidential decisions may be questioned before the courts
of the Senate and HOR in joint session where there is grave abuse of discretion or that the
President acted without or in excess of jurisdiction.[Gloria v.
Jurisprudence on Canvassing: Court of Appeals (2000)]
Congress may validly delegate the initial determination of
the authenticity and due execution of the certificates of Immunity co-extensive with tenure and covers only official
canvass to a Joint Congressional Committee, composed of duties.After tenure, the Chief Executive cannot invoke
members of both houses. [Lopez v. Senate (2004)] immunity from suit for civil damages arising out of acts
done by him while he was President which were not
Even after Congress has adjourned its regular session, it performed in the exercise of official duties. [Estrada v.
may continue to perform this constitutional duty of Desierto (2001)]
canvassing the presidential and vice-presidential election
results without need of any call for a special session by the Cannot be invoked by a non-sitting president.This
President. xxx Only when a board of canvassers has presidential privilege of immunity cannot be invoked by a
completed its functions is it rendered functus officio. non-sitting president even for acts committed during his or
[Pimentel, Jr. v. Joint Committee of Congress (2004)]. her tenure. Courts look with disfavor upon the presidential
privilege of immunity, especially when it impedes the
If the COMELEC is proscribed from conducting an official search for truth or impairs the vindication of a right. ([Saez
canvass of the votes cast for the President and Vice- vs. Macapagal-Arroyo (2012)], on an Amparo petition.)
President, it is, with more reason, prohibited from making
an unofficial canvass of said votes. [Brillantes v. Exception: Suit not arising from official conduct. [See
COMELEC (2004)] Estrada v. Desierto, supra]

The Supreme Court as Presidential Electoral Tribunal: The Presidential Privilege


Supreme Court, sitting en banc, shall be the sole judge of The power of the government to withhold information from
all contests relating to the election, returns and the public, the courts, and the Congress. [Schwart] It is "the
qualifications of the President or Vice-President, and may right of the President and high-level executive branch
promulgate its rules for the purpose. officers to withhold information from Congress, the courts,
and ultimately the public." [Rozell]
Term of Office: 6 years, which shall begin at noon on the
th
30 day of June next following the day of the election and N.B. Case law uses the term presidential privilege to refer to
shall end at noon of the same day 6 years thereafter. [Art. either (1) immunity from suit (i.e. immunity from judicial
VII, Sec. 4] processes, see Neri v. Senate, infra; accord Saez v.
Macapagal-Arroyo, supra; discussed in the previous
PRESIDENT not eligible for re-election. section) or (2) executive privilege [see Akbayan v. Aquino
(2008), discussed here].
Note: Noperson who has succeeded as President and has
served for more than 4 years shall be qualified for election 2 Kinds of Executive Privilege in Neri v. Senate (2008) - (1)
to the same office for any length of time. [Art. VII, Sec. 4] Presidential Communications Privilege (President):
communications are presumptively privileged; prexy must
PRIVILEGES, INHIBITIONS AND DISQUALIFICATIONS be given freedom to explore alternatives in policy-making.
PRIVILEGES (2) Deliberative Process Privilege (Executive Officials): refer to
materials that comprise part of a process by which
President governmental decisions and policies are formulated. This
Official residence includes diplomatic processes. [See Akbayan v. Aquino
The President shall have an official residence. (2008)]

Varieties of Executive Privilege (US): (1) State secrets

PAGE 20
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

privilege - invoked by U.S. Presidents, beginning with unavailability of the information elsewhere by an
Washington, on the ground that the information is of such appropriate investigating authority. [Neri v. Senate, supra.
nature that its disclosure would subvert crucial military or See Akbayan v. Aquino (2008) for application of this
diplomatic objectives. (2) Informers privilege - the privilege principle.]
of the Government not to disclose the identity of persons
who furnish information of violations of law to officers VICE-PRESIDENT
charged with the enforcement of that law. (3) Generic Qualifications, election and term of office and removal are
privilege for internal deliberations - has been said to attach same as the President, except that no Vice-President shall
to intragovernmental documents reflecting advisory serve for more than 2 successive terms.
opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and The Vice-President may be appointed as member of the
policies are formulated. [Senate v. Ermita (2004)] Cabinet; such requires no confirmation by the Commission
of Appointments.
Scope: This jurisdiction recognizes the common law
holding that there is a "governmental privilege against PROHIBITIONS
public disclosure with respect to state secrets regarding Prohibited Acts
military, diplomatic and other national security matters." (1) Shall not receive any other emoluments from the
Closed-door Cabinet meetings are also a recognized government or any other source.
limitation on the right to information. (2) Unless otherwise provided in the constitution, shall not
hold any other office or employment.
Note: Executive privilege is properly invoked in relation to (a) The prohibition does not include posts occupied by
specific categories of information and not to categories of executive officials without additional compensation in
personsit attaches to the information and not the person. an ex-officio capacity, as provided by law oras required
Only the President (and the Executive Secretary, by order by the primary functions of the said officials office.
of the President) can invoke the privilege. (Senate v. Ermita, (b) The ex-officio position being actually (i.e. merely
supra). additional duty) and in legal contemplation part of the
principal office, it follows that the official concerned
Synthesis of Jurisprudential doctrines has no right to receive additional compensation for his
The following are the equisites for invoking presidential services in said position. [National Amnesty
privilege:(1) Formal claim of privilege: For the privilege to Commission v. COA (2004]
apply there must be a formal claim of the privilege. Only (3) Shall not directly or indirectly practice any other
the President or the Executive Secretary(by authority of the profession, participate in any business, or be financially
President) can invoke the privilege; and (2) Specificity interested in any contract with; or in any franchise or
requirement:A formal and proper claim of executive special privilege granted by the government or any
privilege requires a specific designation and description of subdivision, agency, or instrumentality thereof,
the documents within its scope as well as precise and including government-owned or controlled
certain reasons for preserving confidentiality. Without this corporations or their subsidiaries.
specificity, it is impossible for a court to analyze the claim (4) Strictly avoid conflict of interest in the conduct of their
short of disclosure of the very thing sought to be protected. office
[Senate v. Ermita, supra] (5) May not appoint spouse or relatives by consanguinity or
affinity within the fourth civil degree as members of
Once properly invoked, a presumption arises that it is Constitutional Commissions, or the Office of the
privileged. If what is involved is the presumptive privilege of Ombudsman, or as Secretaries, Under Secretaries,
presidential communications when invoked by the Chairmen, or heads of bureaus or offices, including
President on a matter clearly within the domain of the government-owned or controlled corporation and their
Executive, the said presumption dictates that the same be subsidiaries.
recognized and be given preference or priority, in the
absence of proof of a compelling or critical need for Who are prohibited?
disclosure by the one assailing such presumption. (Neri v. (1) President
Senate, G.R. No. 180843, March 25, 2008) (2) Vice-President,
(3) themembers of the Cabinet, and their deputies or
The following are the requisites for validity of claimneeded to assistants
be complied with in order for the claim to executive
privilege to be valid. These are: (1) Quintessential and The stricter prohibition applied to the President and his
non-delegable presidential power- power subject of the official family under art. VII, sec. 13, as compared to the
legislative inquiry must be expressly granted by the prohibition applicable to appointive officials in general
Constitution to the President, e.g commander-in-chief, under art. IX-B, sec. 7, par. 2, which is proof of the intent of
appointing, pardoning, and diplomatic powers; (2) the 1987 Constitution to treat them as a class by itself and
Operational Proximity Test: it must be authored, solicited, to impose upon said class stricter prohibitions.[Civil
and received by a close advisor of the President or the Liberties Union v. Executive Secretary (1991)]
President himself. The judicial test is that an advisor must
be in operational proximity with the President (i.e. Exceptions to rule prohibiting executive officials from
officials who stand proximate to the President, not only by holding additional positions:
reason of their function, but also by reason of their
positions in the Executives organizational structure); (3) President
Noadequate need:The privilege may be overcome by a (1) The President can assume a Cabinet post, (because the
showing of adequate need, such that the information departments are mere extensions of his personality,
sought likely contains important evidence, and by the according to the Doctrine of Qualified Political Agency,

PAGE 21
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

so no objection can be validly raised based on art. VII, (a) Call Out Power - armed forces to suppress lawless
sec. 13. violence;
(2) The President can assume ex officio positions. e.g. The (b) Suspension of Writ of Habeas Corpus- only (1) in
President is the Chairman of NEDA. (art. XII, sec. 9) times of rebellion or invasion AND (2) when
required by public safety
Vice-President (c) Martial Law N.B. does not suspend Constitution
xxx The Vice-President may be appointed as member of (7) Diplomatic Powers - including Power to Enter into
the Cabinet. Such appointment requires no confirmation Treaties
[Art. VII, Sec. 3] (8) Residual Power - to protect the general welfare of
people; founded on duty of President as steward of the
Cabinet people; includes powers unrelated to execution of any
provision of law (See Marcos v. Manglapus)
(1) The Secretary of Justice shall be an ex-officio member of
the Judicial and Bar Council. (art. VIII, sec. 8[1]) (9) Other Powers
(2) Unless otherwise allowed by law or by the primary (a) Power to Pardon - reprieve, commute, pardon, remit
fines and forfeitures after final judgment [Art. VII,
functions of his position, appointive officials shall not
hold any other office or employment in the Sec. 19(1)]
(b) Power to Grant Amnesty - with concurrence of
Government or any subdivision, agency or
majority of all members of Congress
instrumentality thereof, including government- owned
or controlled corporations or their subsidiaries. (art. IX- (c) Borrowing Power - contract or guarantee foreign
loans with concurrence of Monetary Board [Art. VII,
B, sec. 7)
(3) Art. VII, sec. 13 talks of "unless otherwise provided by Sec. 20]
the Constitution." In the case of Cabinet members, this (d) Budgetary Power -submit to congress budget of
bills and expenditures [Art. VII, Sec. 22]
refers to art. IX-B, sec. 7, par. 2.
(4) Thus, the Constitution allows a Cabinet member to (e) Informing Power address Congress during
opening of session, or at any other time [Art. VII,
hold another office provided either:
Sec. 23]
(5) such is necessitated by the primary functions of his
position (e.g. Secretary of Trade and Industry as
POWER OF APPOINTMENT
Chairman of NDC and Secretary of Agrarian Reform as
Chairman of the Land Bank) In General
(6) such is allowed by law The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the
POWERS executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from
EXECUTIVE AND ADMINISTRATIVE POWERS IN GENERAL
the rank of colonel or naval captain, and other officers
Executive power whose appointments are vested in him in this constitution.
He shall also appoint all other officers of the Government
The power to enforce, implement, and administer laws.The
president shall ensure that the laws be faithfully whose appointments are not otherwise provided for by law,
executed.[Art. VII, Sec. 17] and those whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment of other
One Executive: This power is exercised by the President.[Art. officers lower in rank in the President alone, in the courts,
or in the heads of departments, agencies, commissions or
VII, Sec. 1]
boards. [Art. VII, Sec. 16]
As administrative head of the government, the President is
Definition: the selection, by the authority vested with the
vested with the power to execute, administer and carry out
laws into practical operation. [National Electrification power, of an individual who is to exercise the functions of a
Commission vs. CA (1997)] given office.

Presidential Powers (Summary) Appointment is distinguished from:


(1) Designation imposition of additional duties, usually by
(1) Executive Power - power to enforce and administer laws;
law, on a person already in the public service.
(2) Power of Control - nullify, modify judgments of
subordinates (See Art. VII, Sec. 17); undo or redo actions (2) Commission written evidence of the appointment.
of subordinates; and lay down rules for the
performance of subordinates duties; Classification of Power of Appointment:
(3) Power of Supervision - oversight function; see to it that There are 4 groups of officers whom the President may
appoint:
rules, which they did not make, are followed;
(4) Power of Appointment - legislative can create office, but (1) Heads of the Executive Department, ambassadors,
other public ministers and consuls, officers of the
only executive can fill; Congress cannot circumvent this
armed forces from the rank of colonel or naval captain
by setting very narrow qualifications, such that only
one person is qualified to hold office [See Flores v. and other officers whose appointments are vested in
him;
Drilon (1993)]
(5) Power over Legislation (2) All other officers of the government whose
(a) Veto Power appointments are not otherwise provided by law;
(3) Those whom the President may be authorized to
(b) Power to Declare Emergency- declaration only;
exercise of power is vested in Congress appoint;
(4) Officers lower in rank whose appointments Congress
(c) Integrative Power - powers shared with legislative
may by law vest in the President alone.
(e.g. appointments requiring confirmation, rule-
making); legislation during times of emergency
(6) Commander-in-Chief Powers [Art. VII, Sec. 18]

PAGE 22
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

Note: Heads of bureaus were deliberately removed from [Art. VII, Sec. 3(2)]
the provision of appointments requiring confirmation and (2) Those whose appointments are not otherwise provided
th
were included in the 4 group and hence, their by law.
appointments no longer need confirmation. [Sarmiento v. (3) Those whom he may be authorized by law to appoint.
Mison (1987)] (4) Those other officers lower in rank whose appointment is
vested by law in the President (alone).The phraseology
Steps in the appointing process: is muddled.
Nomination by the President
Sarmiento v Mison (1987):
Const. Text: "The Congress may, by law, vest in the
appointment of other officers lower in rank in the President
Confirmation by the Commission on Appointments alone". This meant that until a law is passed giving such
appointing power to the President alone, then such
appointment has to be confirmed.
Held:The inclusion of the word "alone" was an oversight.
Issuance of the Commission Thus, the Constitution should read "The Congress may, by
law, vest the appointment of other officers lower in rank in
the President."
Acceptance by the appointee
Limitations on appointing power of the President
(1) Art. VII, sec. 13, par. 2 - The spouse and relatives by
Notes:
consanguinity or affinity within the 4th civil degree of
In the case of ad interim appointments, steps 1, 3 and 4
the President shall not, during his "tenure", be
precedes step 2.
appointed as:
(a) Members of the Constitutional Commissions;
An appointment is deemed complete only upon
(b) Member of the Office of Ombudsman;
acceptance. [Lacson v. Romero (1949)].
(c) Secretaries;
(d) Undersecretaries;
Appointment is essentially a discretionary power, the only
(e) Chairmen or heads of bureaus or offices, including
condition being that the appointee, if issued a permanent
government-owned or controlled corporations and
appointment, should possess the minimum qualification
their subsidiaries.
requirements, including the Civil Service eligibility
(2) Recess (Ad Interim) appointments:The President shall
prescribed by law for the position. This discretion also
have the power to make appointments during the
includes the determination of the nature or character of
recess of the Congress, whether voluntary or
the appointment.
compulsory, but such appointments shall be effective
only until disapproval by the Commission on
When confirmation is not required:
Appointments or until the next adjournment of the
(1) When the President appoints other government officers
Congress. (art. VII, sec. 16[2])
whose appointments are not otherwise provided for by
law;
Interim or Recess Appointments
(2) Those officers whom he may be authorized by law to
Regular and recess (ad interim) appointments
appoint(e.g. Chairman and Members of the
2 Kinds of Appointments Requiring Confirmation: (1)
Commission on Human Rights);
Regular: if the CA (Congress) is in session; and (2) Ad
(3) When Congresscreates inferior offices but omits to
Interim: during the recess of Congress (because the
provide for appointment thereto, or provides in an
CAshall meet only while Congress is in session [Art. VI, Sec.
unconstitutional manner for such appointments(See
19]
Sarmiento v. Mison)
(4) Appointment of the Vice-President as member of the
Regular appointment
Cabinet (art. VII, sec. 3)
(1) Made by the President while Congress is in session
(5) Appointments upon recommendation of the Judicial
(2) Takes effect only after confirmation by the Commission
and Bar Council see below
on Appointments (CA)
(6) Appointments solely by the President see below
(3) Once approved, continues until the end of the term of
the appointee.
Appointments Upon Recommendation of the Judicial and
Bar Council
Ad-interim appointment
Do not require confirmation by the Commission on
(1) Made by the President while Congress is not in session
Appointments.
(2) Takes effect immediately, BUTceases to be valid (1) if
(1) Members of the Supreme Court and all other courts[Art.
disapproved by the CA or (2) upon the next
VII, Sec. 9]
adjournment of Congress. [Art. VII, Sec. 16, par. 2]
For lower courts, appointment shall be issued within 90
(3) Ad interim appointments are permanent
days from submission of the list
appointments.Ad Interim appointment to the
(2) Ombudsman and his 5 deputies (for Luzon, Visayas,
Constitutional Commissions (e.g. COMELEC) are
Mindanao, general and military)[Art. XI, Sec. 9]
permanent as it takes effect immediately and can no
All vacancies shall be filled within 3 months after they
longer be withdrawn by the President once the
occur.
appointee has qualified into office. The fact that it is
subject to the confirmation of the CA does not alter its
Appointments solely by the President [Art. VII, sec. 16]
permanent character. [Matibag v. Benipayo (2002)]
(1) Those vested by the Constitution on the President alone
(e.g. appointment of Vice-President to the Cabinet)

PAGE 23
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

Acting/Temporary appointment whose appointments are expressly vested by the


Can be withdrawn or revoked at the pleasure of the Constitution itself in the President:
appointing power. The appointee does not enjoy security of (1) Heads of the executive departments
tenure. (2) Ambassadors, other public ministers and consuls
(3) Officers of the Armed Forces of the Philippines with the
Limitation: President constitutionally prohibited from rank of colonel or naval captain (because these are
making such appointments to the Constitutional officers of a sizeable command enough to stage a
Commissions (in order to preserve the latters coup)
independence). (4) Other officers whose appointments are vested in the
President by the Constitution:
No need for CA confirmation even if Congress is in (a) Chairman and Commissioners of the Constitutional
session.Also,Congress cannot impose on the president the Commissions (art. IX)
obligation to appoint an incumbent Undersecretary as [the (b) Regular members of the Judicial and Bar Council (art.
Presidents] temporary alter ego, i.e. Acting Secretary. VII, sec. 8[2])
[Pimentel v. Ermita (2005)] (c) Sectoral Congressional reps.(art. XVIII, sec 7) (N.B. no
longer in force)
Ad Interim and Acting Appointments, Distinguished
Ad Interim (Recess) Acting Midnight Appointments
General Rule: Two months immediately before the next
Effective upon acceptance presidential elections (2nd Monday of March), and up to
Extended only when May be extended even if the end of his "term" (June 30), a President (or Acting
Congress is in recess Congress is in session President) shall not make appointments. (art. VII, sec. 15)
Submitted to the CA for Not submitted to the CA
confirmation for confirmation Exception:Temporary appointments to executive positions,
when continued vacancies will: (1) prejudice public service;
Permanent appointments Way of temporary filling up
or (2) endanger public safety.
vacancies
Limited to Executive Department- The prohibition against
Note:The mere filing of a motion for reconsideration of the
midnight appointment applies only to positions in the
confirmation of an appointment cannot have the effect of
executive department. [De Castro v. JBC (2010)]
recalling or setting aside said appointment. The
In re: Valenzuela [A.M. No. 98-5-01-SC, November 9, 1998],
Constitution is clear there must either be a rejection by
which extended the prohibition for midnight appointments
the Commission on Appointments or non-action on its part
to the judiciary, effectively overruled.
for the confirmation to be recalled.
Limited to Caretaker Capacity - While "midnight
Temporary Designations
appointments" (i.e. made by outgoing President near the
The President may designate an officer already in the govt.
end of his term) are not illegal, they should be made in the
service or any other competent person to perform the
capacity of a "caretaker," doubly careful and prudent in
functions of any office in the executive branch,
making the selection, so as not to defeat the policies of the
appointment to which is vested in him by law, when:
incoming administration. Hence,the issuance of 350
(1) The officer regularly appointed to the office is unable to
appointments in one night and the planned induction of
perform his duties by reason of illness, absence or any
almost all of them a few hours before the inauguration of
other cause; or
the new President may be regarded as abuse of
(2) There exists a vacancy;
presidential prerogatives. [Aytona v. Castillo (1962)]
In no case shall a temporary designation exceed one (1)
BUT the Aytona ruling does not declare all midnight
year. [Admin Code of 1987, Book III Sec. 17]
appointments as invalid, and that the ad interim
appointment of the petitioner chief of police here, whose
Limitations on the appointing power of the ACTING
qualification and regularity were otherwise not disputed, is
PRESIDENT
thus valid. [Quimsing v. Tajanglangit (1964)]
(1) Appointments extended by an Acting President shall
remain effective unless revoked by the elected
Applies only to President- Ban does not extend to
President within ninety days from his assumption or re-
appointments made by local elective officials. There is no
assumption of office. [Art. VII, Sec. 14]
law that prohibits local elective officials from making
(2) Midnight appointments ban:President/Acting President
appointments during the last days of his or her tenure. (De
shall not make appointments two months immediately
Rama v. CA (2001)]
before the next presidential elections and up to the end
of his term
Power of Removal
Exception: Temporary appointments to executive positions
General Principle -The power of removal may be implied
when continued vacancies therein will prejudice public
from the power of appointment.
service or endanger public safety. [Art. VII, Sec. 15]
Exception:However, the President cannot remove officials
Commission on Appointments Confirmation
appointed by him where the Constitution prescribes certain
From the rulings in Sarmiento III v. Mison (1987), Bautista v.
methods for separation of such officers from public service,
Salonga (1989), and Deles v. Constitutional Commission
e.g. Chairmen and Commissioners of Constitutional
(1989), these doctrines are deducible:
Commissioners who can be removed only by
impeachment, or judges who are subject to the disciplinary
Confirmation by the Commission on Appointments is
authority of the Supreme Court.
required only for presidential appointees as mentioned in
the first sentence of art. VII, sec. 16, including those officers

PAGE 24
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

Career Civil Service - members of the career civil service of Supervision Control
the Civil Service who are appointed by the President may
be directly disciplined by him [Villaluz v. Zaldivar (1965)] then the former may take
such action or steps as
Serve at the pleasure of the president -Cabinet members prescribed by law to make
and such officers whose continuity in office depends upon them perform these duties.
the pleasure of the president may be replaced at any time,
but legally speaking, their separation is effected not by This does not include the
removal but by expiration of their term. power to overrule their
acts, if these acts are within
POWER OF CONTROL AND SUPERVISION their discretion.

Control of Executive Departments [Art. VII, Sec. 17] MILITARY POWERS


Control Commander-in-chief powers [Art. VII, Sec. 18]
Is the power of an officer to alter or modify or nullify or to set (1) He may call out such armed forces to prevent or
aside what a subordinate has done in the performance of suppress lawless violence, invasion or rebellion.
his duties and to substitute one's own judgment to that of (2) He may suspend the privilege of the writ of habeas cor-
a subordinate. (Mondano v. Silvosa [1955]) pus, or
(3) He may proclaim martial law over the entire Philippines
Doctrine of Qualified Political Agency(Alter Ego Principle) or any part thereof.
All the different executive and administrative organizations
are mere adjuncts of the Executive Department. This is an The President shall be the Commander-in-chief of all
adjunct of the Doctrine of Single Executive. armed forces of the Philippines
The ability of the President to require a military official to
The heads of the various executive departments are secure prior consent before appearing before Congress
assistants and agents of the Chief Executive. [Villena v. Sec. pertains to a wholly different and independent specie of
of Interior (1939)] presidential authoritythe commander-in-chief powers of
the President. By tradition and jurisprudence, the
The exceptions are. (1) in cases wherein the Chief commander-in-chief powers of the President are not
Executive is required by the Constitution or by the law to encumbered by the same degree of restriction as that
act in person or (2) the exigencies of the situation demand which may attach to executive privilege or executive
that he act personally, the multifarious executive and control.Outside explicit constitutional limitations, the
administrative functions of the Chief Executive are commander-in-chief clause vests on the President, as
performed by and through the executive depts commander-in-chief, absolute authority over the persons
and actions of the members of the armed forces. Such
In the regular course of business, acts of exec. authority includes the ability of the President to restrict the
depts.,unless disapproved or reprobated by the Chief travel, movement and speech of military officers, activities
Executive, presumptively acts of the Chief Executive. [Free which may otherwise be sanctioned under civilian law.
Telephone Workers Union v. Minister of Labor and [Gudani v. Senga (2006)].
Employment (1981)]
Graduated Powers Art. VII, sec. 18 grants the President,
Power to Abolish Offices as Commander-in-Chief, a sequence of graduated
Generally, power to abolish a public office is legislative. power[s]. From the most to the least benign, these are:
BUT, as far as bureaus, offices, or agencies of the executive the calling out power, the power to suspend the privilege
dept. are concerned, power of control may justify him of the writ of habeas corpus, and the power to declare
toinactivate functions of a particular office. (See Buklod ng martial law. In the exercise of the latter two powers, the
Kawaning EIIB v. Zamora (2001), where the President Constitution requires the concurrence of two conditions,
effectively abolished the Economic Intelligence Bureau by namely, an actual invasion or rebellion, and that public
deactivating it, transferring its functions to other agencies.) safety requires the exercise of such power. However, as we
observed in Integrated Bar of the Philippines v. Zamora,
General Supervision over local government units and the [t]hese conditions are not required in the exercise of the
autonomous regions calling out power. The only criterion is that whenever it
becomes necessary, the President may call the armed
The President shall exercise general supervision over local forces to prevent or suppress lawless violence, invasion or
governments.[Art. X, Sec. 4] rebellion. [Sanlakas v. Executive Secretary (2004)].

The President shall exercise general supervision over Call out the AFP to prevent lawless violence
autonomous regions to ensure that laws are faithfully This is merely a police measure meant to quell disorder. As
executed. [Art. X, Sec. 16] such, the Constitution does not regulate its exercise
radically.
Supervision and Control, Distinguished
State of Rebellion
Supervision Control
While the Court may examine whether the power was
Overseeing or the power or Power of an officer to alter, exercised within constitutional limits or in a manner
authority of the officer to modify, nullify or set aside constituting grave abuse of discretion, none of the
see that subordinate what a subordinate officer petitioners here have, by way of proof, supported their
officers perform their had done and to substitute assertion that the President acted without factual basis.
duties, and if the latter fail the judgment of the former The President, in declaring a state of rebellion and in calling
or neglect to fulfill them, for that of the latter. out the armed forces, was merely exercising a wedding of

PAGE 25
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

her Chief Executive and Commander-in-Chief (a) The effect therefore is only to extend the periods during
powers. These are purely executive powers, vested on the which he can be detained without a warrant. When the
President by Sections 1 and 18, Article VII, as opposed to privilege is suspended, the period is extended to 72
the delegated legislative powers contemplated by Section hours.
23 (2), Article VI. (Sanlakas v. Executive Secretary [2004]) (b) What happens if he is not judicially charged nor
released after 72 hours? The public officer becomes
Exercise of Emergency Powers liable under RPC Art. 125 for "delay in the delivery of
Background: Presidential Proclamation 1017 (Declaring a detained persons."
State of National Emergency) is different from the law in (3) The right to bail shall not be impaired even when the
Sanlakas as this proclamation was woven out of the privilege of the writ of habeas corpus is suspended.
calling out and take care powers of the President (art. III, sec. 13)
joined with the temporary takeover provision under Art.
XII, section 17. PP1017 purports to grant the President, Proclaim Martial Law
without authority or delegation from Congress, to take over The Requisites in proclaiming Martial Law are:
or direct the operation of any privately-owned public utility (1) There must be an invasion or rebellion, and
or business affected with public interest. (2) Public safety requires the proclamation of martial law
all over the Philippines or any part thereof.
While the President could validly declare the existence of a
state of national emergency even in the absence of a The following cannot be done [Art. VII, Sec. 18]:
Congressional enactment, the exercise of the emergency (1) Suspend the operation of the Constitution.
powers, such as the taking over of privately-owned public (2) Supplant the functioning of the civil courts and the
utility or business affected with public interest, requires a legislative assemblies.
delegation from Congress which is the repository of (3) Confer jurisdiction upon military courts and agencies
emergency powers. (David v. Arroyo [2006]) over civilians, where civil courts are able to function.
"Open Court" doctrine. Civilians cannot be tried by
Suspend the privilege of the writ of habeas corpus military courts if the civil courts are open and
"Writ of habeas corpus" functioning.If the civil courts are not functioning, then
Is an order from the court commanding a detaining officer civilians can be tried by the military courts. Martial law
to inform the court usually contemplates a case where the courts are
(1) if he has the person in custody; and already closed and the civil institutions have already
(2) his basis in detaining that person crumbled, i.e. a "theater of war." If the courts are still
open, the President can just suspend the privilege and
"Privilege of the writ" achieve the same effect.
Is that portion of the writ requiring the detaining officer to (4) Automatically suspend the privilege of the writ of
show cause why he should not be tested. Note that it is the habeas corpus.
privilege that is suspended, not the writ itself. The President must suspend the privilege expressly.

The requisites for the suspension are: The Role of Congress (See art. VII, sec. 18, par. 1,2)
(1) There must be an invasion or rebellion, and (1) Congress may revoke the proclamation of martial law or
(2) The public safety requires the suspension. suspension of the privilege of the writ of habeas corpus
before the lapse of 60 days from the date of
Duration: Not to exceed 60 days unless extended by suspension or proclamation.
Congress. (2) Upon such proclamation or suspension, Congress shall
convene at once. If it is not in session, it shall convene
Effects of the suspension of the privilege: in accordance with its rules without need of a call
(1) The suspension of the privilege of the writ applies only within 24 hours following the proclamation or
to persons "judicially charged" for rebellion or offenses suspension.
inherent in or directly connected with invasion (art. VII, (3) Within 48 hours from the proclamation or the
sec. 18[5]). suspension, the President shall submit a report, in
(a) Such persons suspected of the above crimes can be person or in writing, to the Congress (meeting in joint
arrested and detained without a warrant of arrest. session of the action he has taken).
(b) The suspension of the privilege does not make the arrest (4) The Congress shall then vote jointly, by an absolute
without warrant legal. But the military is, in effect, majority. It has two options:
enabled to make the arrest anyway since, with the (a) To revoke such proclamation or suspension.
suspension of the privilege, there is no remedy When it so revoked, the President cannot set
available against such unlawful arrest (arbitrary aside (or veto) the revocation as he normally would
detention). do in the case of bills.
(c) The arrest without warrant is justified by the emergency (b) To extend it beyond the 60-day period of its validity.
situation and the difficulty in applying for a warrant
considering the time and the number of persons to be Congress can only so extend the proclamation or
arrested. suspension upon the initiative of the President.
(d) The crime for which he is arrested must be one related
to rebellion or invasion. As to others, the suspension of The period need not be 60 days; it could be more, as Con-
the privilege does not apply. gress would determine, based on the persistence of the
(2) During the suspension of the privilege of the writ, any emergency.
person thus arrested or detained shall be judicially
charged within 3 days, or otherwise he shall be
released. (art. VII, sec. 18[6])

PAGE 26
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

Note: If Congress fails to act before the measure expires, it There are 4 ways, then, for the proclamation or suspension to
can no longer extend it until the President again re- be lifted: (P-C-S-O)
declares the measure. (1) Lifting by the President himself
(2) Revocation by Congress
Congress cannot "validate" the proclamation or (3) Nullification by the Supreme Court
suspension, because it is already valid. (see Carpio, (4) Operation of law after 60 days
dissenting, in Fortun v. Macapagal-Arroyo, infra)
Cf. RA 7055 (1991) "An Act Strengthening Civilian
If Congress extends the measure, but before the period of Supremacy over the Military by Returning to the Civil Courts
extension lapses the requirements for the proclamation or the Jurisdiction over Certain Offenses involving Members of
suspension no longer exist, Congress can lift the extension, the Armed Forces of the Philippines, other Persons Subject to
since the power to confer implies the power to take back. Military Law, and the Members of the Philippine National
Police, Repealing for the Purpose Certain Presidential
The Role of the Supreme Court(See Art. VII, Sec. 18, par. 3) Decrees"
(1) The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the RA 7055 effectively placed upon the civil courts the
factual basis of: jurisdiction over certain offenses involving members of the
(a) the proclamation of martial law or the suspension AFP and other members subject to military law.
of the privilege of the writ, or
(b) the extension thereof. It must promulgate its RA 7055 provides that when these individuals commit
decision thereon within 30 days from its filing. crimes or offenses penalized under the RPC, other special
(c) Note: Calling-out power is purely discretionary on penal laws, or local government ordinances, regardless of
the President; the Constitution does not explicitly whether civilians are co-accused, victims, or offended
provide for a judicial review of its factual basis.[IBP v. parties which may be natural or juridical persons, they
Zamora (2001)] shall be tried by the proper civil court, exceptwhen the
offense, as determined before arraignment by the civil
(2) The jurisdiction of the SC may be invoked in a proper court, is service-connected in which case it shall be tried by
case. court-martial.
Although the Constitution reserves to the Supreme The assertion of military authority over civilians cannot rest
Court the power to review the sufficiency of the factual on the President's power as Commander in Chief or on any
basis of the proclamation or suspension in a proper theory of martial law. As long as civil courts remain open
suit, it is implicit that the Court must allow Congress to and are regularly functioning, military tribunals cannot try
exercise its own review powers, which is automatic and exercise jurisdiction over civilians for offenses
rather than initiated. Only when Congressdefaults in its committed by them and which are properly cognizable by
express duty to defend the Constitution through such civil courts. To hold otherwise is a violation of the right to
review shouldthe Supreme Court step in as its final due process. [Olaguer v. Military Commission No. 34 (1987)]
rampart. The constitutional validity of thePresidents
proclamation of martial law or suspension of the writ of
PARDONING POWER
habeas corpus isfirst a political question in the hands of Nature of Pardoning Power
Congress before it becomes a justiciable one in the
Power to reprieve, commute, pardon, remit fines and
hands of the Court.
forfeitures after final judgment [Art. VII, Sec. 19(1)]
If the Congress procrastinates or altogether fails to
Forms of executive clemencies
fulfill its duty respecting the proclamation or (1) Reprieves - a temporary relief from or postponement of
suspension within the short time expected of it, then execution of criminal penalty or sentence or a stay of
the Court can step in, hear the petitions challenging
execution. (BLACKS LAW DICTIONARY). It is the
the Presidents action, and ascertain if it has a factual withholding of a sentence for an interval of time, a
basis. [Fortun v. Macapagal-Arroyo (2012)]
postponement of execution, a temporary suspension of
execution. [People vs. Vera (1937)]
(3) Petition for habeas corpus (2) Commutations - Reduction of sentence. [Blacks Law
(a) When a person is arrested without a warrant for
Dictionary]. It is a remission of a part of the
complicity in the rebellion or invasion, he or punishment; a substitution of a less penalty for the one
someone else in his behalf has the standing to originally imposed. (Vera, supra)
question the validity of the proclamation or
(3) Amnesty - a sovereign act of oblivion for past acts,
suspension. granted by government generally to a class of persons
(b) Before the SC can decide on the legality of his
who have been guilty usually of political offenses and
detention, it must first pass upon the validity of the
who are subject to trial but have not yet been con-
proclamation or suspension. victed, and often conditioned upon their return to
obedience and duty within a prescribed time. (BLACKS;
(4) Limit on Calling out Power. Test of Arbitrariness: The Brown v. Walker, 161 US 602).
question is not whether the President or Congress Requires concurrence of majority of all members of
acted correctly, but whether he acted arbitrarily in that
Congress (art. VII, sec. 19)
the action had no basis in fact. [IBP v. Zamora, (2000)].
Amounts to a determination of whether or not there
(4) Pardons - Permanent cancellation of sentence.
was grave abuse of discretion amounting to ack or
[BLACKS] It is an act of grace proceeding from the
excess of jurisdiction. power entrusted with the execution of the laws, which
exempts the individual on whom it is bestowed, from

PAGE 27
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

the punishment the law inflicts for the crime he has Application of Pardoning Powers to Admin. Cases
committed. It is a remission of guilt, a forgiveness of (1) If the President can grant reprieves, commutations and
the offense. [Vera, supra] pardons, and remit fines and forfeitures in criminal
cases, with much more reason can she grant executive
Plenary or partial. (1) Plenary - extinguishes all the clemency in administrative cases, which are clearly less
penalties imposed upon the offender, including accessory serious than criminal offenses.
disabilities. (2) Partial does not extinguish all penalties (2) However, the power of the President to grant executive
imposed clemency in administrative cases refers only to
administrative cases in the Executive branch and not in
Absolute or conditional. (1) Conditional - the offender has the Judicial or Legislative branches of the govt. [Llamas
the right to reject the same since he may feel that the v. Executive Secretary (1991)]
condition imposed is more onerous than the penalty
sought to be remitted. (2) Absolute pardon - pardonee has Removal of administrative penalties
no option at all and must accept it whether he likes it or Removal of Administrative Penalties or Disabilities - In
not. In this sense, an absolute pardon is similar to meritorious cases and upon recommendation of the (Civil
commutation, w/c is also not subject to acceptance by the Service) Commission, the President may commute or
offender. remove administrative penalties or disabilities imposed
upon officers or employees in disciplinary cases, subject to
Limitations on PARDON.(1) Cannot be granted on such terms and conditions as he may impose in the
impeachment cases.(art. VII, sec. 19).(2) Cannot be granted interest of the service. [Sec. 53, Chapter 7, Subtitle A, Title I,
in cases of violation of election laws without the favorable Book V, Administrative Code of 1987 ]
recommendation of the COMELEC. (art. IX-C, sec. 5).(3)
Can be granted only after conviction by final judgment Who may avail of amnesty?
(People v. Salle, 250 SCRA 581)(4) Cannot absolve the (Asked 5 times in the Bar; answers from case law)
convict of civil liability.(5) Cannot be granted to cases of
legislative contempt or civil contempt.(6) Cannot restore Amnesty Proclamation No. 76 applies even to
public offices forfeited, even if pardon restores the Hukbalahaps already undergoing sentence upon the date
eligibility for said offices. [Monsanto v. Factoran (1989)] of its promulgation. The majority of the Court believes that
by its context and pervading spirit the proclamation
Pardon Amnesty extends to all members of the Hukbalahap. [Tolentino v.
Infractions of peace of the Addressed to Political Catoy (1948)]
state Offenses
Granted to individuals To classes of persons The SC agreed with the Sandiganbayan that in fact the
petitioners were expressly disqualified from amnesty. The
Exercised solely by the Requires concurrence of acts for which they were convicted were ordinary crimes
executive Congress without any political complexion and consisting only of
Private act which must be Public act which the courts diversion of public funds to private profit. The amnesty
pleaded and proved could take judicial notice proclamation covered only acts in the furtherance of
Looks forward and relieves Looks backward and puts resistance to duly constituted authorities of the Republic
the pardonee of the into oblivion the offense and applies only to members of the MNLF, or other anti-
consequences of the itself. government groups. [Macagaan v. People (1987)]
offense
Extended after final May be extended at any DIPLOMATIC POWER
judgment stage Scope of Diplomatic Power-The President, being the head
of state, is regarded as the sole organ and authority in
(5) Remit fines and forfeitures, after conviction by final external relations and is the countrys sole representative
judgment with foreign nations. As the chief architect of foreign
policy, the President acts as the countrys mouthpiece with
Exceptions: respect to international affairs.
(a) In cases of impeachment, and
(b) As otherwise provided in this Constitution The President is vested with the authority:
For election offenses- No pardon, amnesty, parole or (1) to deal with foreign states and governments;
suspension of sentence for violation of election laws, rules, (2) extend or withhold recognition;
and regulations shall be granted by the President without (3) maintain diplomatic relations;
the favorable recommendation by the Commission on (4) enter into treaties; and
Elections. [Art. IX, sec. 5] (5) transact the business of foreign relations. [Pimentel v.
Executive Secretary (2005)]
Probation - disposition where a defendant after conviction
and sentence is released subject to (1) conditions imposed Treaty-making power
by the court and (2) supervision of a probation officer.(PD No treaty or international agreement shall be valid and
No. 968, sec. 3[a]) effective unless concurred in by at least two-thirds of all
the members of the Senate. [Art. VII, sec. 21]
Parole- suspension of the sentence of a convict granted by
a Parole Board after serving the minimum term of the Treaty - as defined by the Vienna Convention on the Law of
indeterminate sentence penalty, without granting a Treaties, an international instrument concluded between
pardon, prescribing the terms upon which the sentence States in written form and governed by international law,
shall be suspended. (REYES) whether embodied in a single instrument or in two or more
related instruments, and whatever its particular

PAGE 28
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

designation. [Bayan v. Executive Secretary (2000)] and undemocratic. [Qua Chee Gan v. Deportation Board
(1963)]
Other terms for a treaty: act, protocol, agreement,
compromis d arbitrage, concordat, convention, declaration, 2 ways of deporting an undesirable alien. (1) by order of the
exchange of notes, pact, statute, charter and modus President after due investigation, pursuant to sec. 69 of the
vivendi. Revised Administrative Code; (2) by the Commissioner of
Immigration under section 37 of the immigration Law [Qua
Note:It is the President who RATIFIES a treaty (not the Chee Gan v. Deportation Board, supra]
Senate), the Senate merely CONCURES. [Bayan v.
Executive Secretary, supra] Scope of the power
(1) The Deportation Board can entertain deportation based
The President cannot be compelled to submit a treaty to on grounds not specified in sec. 37 of the Immigration
the Senate for concurrence; she has the sole power to Law. The Board has jurisdiction to investigate the alien
submit it to the Senate and/or to ratify it. [Bayan Muna v. even if he had not been convicted yet.
Romulo (2011)] (2) The Presidents power to deport aliens and to
investigate them subject to deportation are provided in
Executive Agreements the Revised Administrative Code.
(1) Entered into by the President (3) The State has inherent power to deport undesirable
(2) Need no concurrence aliens. This power is exercised by the President.
(3) Distinguished from treaties- International agreements (4) There is no legal orconstitutional provision defining the
involving political issues or changes in national policy power to deport aliens because the intention of the law
and those involving international agreements of is to grant the Chief Executive the full discretion to
permanent character usually take the form of determine whether an aliens residence in the country
TREATIES. But the international agreements involving is so undesirable as to affect the security, welfare or
adjustments in detail carrying out well-established interest of the state.
national policies and traditions and those involving a (5) The Chief Executive is the sole and exclusive judge of
more or less temporary character usually take the form the existence of facts which would warrant the
of EXECUTIVE AGREEMENTS. [Commissioner of deportation of aliens. [Go Tek v. Deportation Board
Customs vs. Eastern Sea Trading (1961)] (1977)]
(4) Executive agreements may be entered into with other
states and are effective even without the concurrence POWERS RELATIVE TO APPROPRIATION MEASURES
of the Senate. From the point of view of international
law, there is no difference between treaties and Contracting and guaranteeing foreign loans
executive agreements in their binding effect upon Requisites for contracting and guaranteeing foreign loans:
states concerned as long as the negotiating (1) With the concurrence of the monetary board [Art. VII,
functionaries have remained within their powers. The Sec. 20]
distinction between an executive agreement and a treaty (2) subject to limitations as may be provided by law [Art.
is purely a constitutional one and has no international XII, Sec. 2]
legal significance. [USAFFE Veterans Assn. v. Treasurer (3) information on foreign loans obtained or guaranteed
(1959)] shall be made available to the public [Art. XII, Sec. 2]

Two Classes of Executive Agreements. (1) Agreements Cf. Republic Act 4860
made purely as executive acts affecting external relations An Act Authorizing The President Of The Philippines To
and independent of or without legislative authorization, Obtain Such Foreign Loans And Credits, Or To Incur Such
which may be termed as presidential agreements; and (2) Foreign Indebtedness, As May Be Necessary To Finance
Agreements entered into in pursuance of acts of Congress, Approved Economic Development Purposes Or Projects,
or Congressional-Executive Agreements. And To Guarantee, In Behalf Of The Republic Of The
Philippines, Foreign Loans Obtained Or Bonds Issued By
Although the President may, under the American Corporations Owned Or Controlled By The Government Of
constitutional system enter into executive agreements The Philippines For Economic Development Purposes
without previous legislative authority, he may not, by Including Those Incurred For Purposes Of Re-Lending To
executive agreement, enter into a transaction which is The Private Sector, Appropriating The Necessary Funds
prohibited by statutes enacted prior thereto. He may not Therefore, And For Other Purposes (Approved, September
defeat legislative enactments that have acquired the 8, 1966.)
status of lawby indirectly repealing the same through an
executive agreement providing for the performance of the Role of Congress:The President does not need prior
very act prohibited by said laws. [Gonzales v Hechanova approval by the Congress
(1963)] (1) Because the Constitution places the power to check the
Once the Senate performs the power to concur with Presidents power on the Monetary Board;
treaties or exercise its prerogative within the boundaries (2) BUT Congress may provide guidelines and have them
prescribed by the Constitution, the concurrence cannot be enforced through the Monetary Board
viewed as an abuse of power, much less a grave abuse of
discretion. [Bayan v. Executive Secretary, supra, on the
constitutionality of the Visiting Forces Agreement]

Deportation of undesirable aliens


The President may deport only according to grounds
enumerated by law, otherwise it would be unreasonable

PAGE 29
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

Prepare and Submit the Budget (2) According to Cases


The President shall submit to Congress within thirty days (a) The fact that Congress is able to meet in session
from the opening of every regular session, as the basis of uninterruptedly and adjourn of its own will proves
the general appropriations bill, a budget of expenditures that the emergency no longer exists to justify the
and sources of financing, including receipts from existing delegation. (See Araneta v Dinglasan (1949), on
and proposed revenue measures. [Art. VII, Sec. 22] Congress grant of emergency powers under C.A.
671; Court held that C.A. 671, being temporary,
The budget is the plan indicating: need not be expressly repealed by a law)
(b) This rule or the termination of the grant of
(1) expenditures of the government,
emergency powers is based on decided cases, which
(2) sources of financing, and
(3) receipts from revenue-raising measures. in turn became art. VII, sec. 15 of the 1973
Constitution.
Thebudget is the upper limit of the appropriations bill to be (c) The specific power to continue in force laws and
passed by Congress. Through the budget, therefore, the appropriations which would lapse or otherwise
become inoperative is a limitation on the general
President reveals the priorities of the government.
power to exercise such other powers as the
executive may deem necessary to enable the
Fixing of tariff rates [Sec 28, Art VI]
government to fulfill its responsibilities and to
The Congress may, by law, authorize the President to fix(1)
within specified limits, and (2) subject to such limitations maintain and enforce its authority. [Rodriguez v
Gella (1953)]
and restrictions as it may impose: (a) tariff rates, (b) import
and export quotas, (c) tonnage and wharfage dues; (d)
other duties or imposts within the framework of the Inconsistency between the Constitution and the cases:
(BARLONGAY)
national development program of the Government.
(1) The Constitution (See art. VI, sec. 23[2]) states that the
emergency powers shall cease upon the next
Rationale for delegation: highly technical nature of
adjournment of Congress unless sooner withdrawn by
international commerce, and the need to constantly and
with relative ease adapt the rates to prevailing commercial resolution of Congress
(2) Cases tell us that the emergency powers shall cease
standards.
upon resumption of session.
DELEGATED POWERS
(3) Reconciling the two: it would not be enough for
Congress to just resume session in order that the
Principle: ThePresident, under martial rule or in a
revolutionary government, may exercise delegated emergency powers shall cease. It has to pass a
resolution withdrawing such emergency powers,
legislative powers. (See CONST., art. VI, sec. 23[2]) Congress
otherwise such powers shall cease upon the next
may delegate legislative powers to the president in times
of war or in other national emergency. (BERNAS) adjournment of Congress.

VETO POWER
Emergency powers
In times of war or other national emergency, the Congress, General rule: all bills must be approved by the President
before they become law
may, by law, authorize the President, for a limited period,
and subject to such restrictions as it may prescribe, to
Exceptions:
exercise powers necessary and proper to carry out a
(1) The veto of the President is overridden by 2/3 vote of all
declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the Members of the House where it originated;
(2) The bill lapsed into law because the inaction of the
the next adjournment thereof. [Art. VI, Sec. 23]
President; and
Different from the Commander-in-Chief clause: (3) The bill passed is the special law to elect the President
and Vice-President.
(1) When the President acts under the Commander-in-
Chief clause, he acts under a constitutional grant of
This gives the President an actual hand in legislation.
military power, which may include the law-making
However, his course of action is only to approve it or veto it
power.
(2) When the President acts under the emergency power, as a whole.(see Legislative Power of Congress)
he acts under a Congressional delegation of law-
making power. It is true that the Constitution provides a mechanism for
overriding a veto [Art. VI, Sec. 27(1)]). Said remedy, however,
is available only when the presidential veto is based on
Meaning of power necessary and proper - Power to issue
rules and regulations policy or political considerations but not when the veto is
claimed to be ultra vires. In the latter case, it becomes the
duty of the Court to draw the dividing line where the
This power is:
(1) for a limited period, and exercise of executive power ends and the bounds of
legislative jurisdiction begin. [PHILCONSA v Enriquez
(2) subject to such restrictions as Congress may provide.
(1994)]
When Emergency Powers cease
EXECUTIVE PRIVILEGE
(1) According to the text of the Constitution - The power
ceases: See discussion under Presidential Privilege.
(a) upon being withdrawn by resolution of the
RESIDUAL POWERS
Congress; or
(b) if Congress fails to adopt such resolution, upon the General doctrine:The President has unstated residual
powers, which are implied from the grant of executive power
next (voluntary) adjournment of Congress.

PAGE 30
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

necessary for her to comply with her Constitutional duties, only by two standards: (1) there must be a factual basis for
such as to safeguard and protect the general welfare. It the impairment of the Marcoses right to return (as
includes powers unrelated to the execution of any distinguished from their right to travel, which is a
provision of law. [See Marcos v. Manglapus (1988)] constitutional right); and (2) the impairment must not be
In Marcos v. Manglapus, supra, the Court held that then- arbitrary.
President Corazon Aquino had the power to prevent the N.B. The decision was pro hac vice.
Marcoses from returning to the Philippines on account of
the volatile national security situation. This was limited

RULES ON SUCCESSION
PRESIDENT
Death or permanent disability of the Vice-President-elect shall become
President-elect President
President-elect fails to qualify Vice-President-elect shall act as
President until the President-elect
shall have qualified
President shall not have been chosen Vice-President-elect shall act as
President until a President shall
Vacancy have been chosen and qualified.
at the No President and Vice-President Senate President or, incase of his In the event of inability of the SP
Beginning chosen nor shall have qualified, or inability, Speaker of the House of and Speaker, Congress shall, by
of the both shall have died or become Representatives, shall act as law, provide for the manner in
term permanently disabled President until a President or a which one who is to act as
Vice-President shall have been President shall be selected until a
chosen and qualified. President or Vice-President shall
have qualified.
Death, permanent disability, removal Vice-President shall become
from office, or resignation of the President
President
Vacancy Death, permanent disability, Senate President or, in case of his Congress, by law, shall provide for
during removal from office, or resignation of inability, the Speaker of the House the manner in which one is to act
the term President ANDVice-President of Representatives, shall act as as President in the event of inability
President until a President or Vice- of the SP and Speaker.
President shall be elected and
qualified.
When President transmits to the Such powers and duties shall be
Senate President and the Speaker of discharged by the Vice-President as
the House his written declaration Acting President, until the
that he is unable to discharge the President transmits to them a
powers and duties of his office written declaration to the contrary
When a Majority of all the members The Vice-President shall
of the Cabinet transmit to the immediately assume the powers
Senate President and the Speaker and duties of the office as Acting
their written declaration that the President until the President
President is unable to discharge the transmits to the Senate President
powers and duties of his office and Speaker his written declaration
that no inability exists.
If after the President transmits his Congress determines by a 2/3 vote Congress shall convene, if not in
Temporary declaration of his ability to discharge of both houses, voting separately, session, within 48 hours. And if
disability his office, and a majority of that the President is unable to within 10 days from receipt of the
members of the Cabinet transmit discharge the powers and duties of last written declaration or, if not in
within 5 days to the Senate his office, the Vice-President shall session, within 12 days after it is
President and Speaker their written act as President; otherwise, the required to assemble.
declaration that the President is President shall continue exercising
unable to discharge the powers and the powers and duties of his office
duties of his office, Congress shall
decide the issue.
Convening of Congress cannot be suspended nor the
CONSTITUTIONAL DUTY OF CONGRESS IN CASE OF VACANCY IN THE special election postponed. xxx No special election shall be
OFFICES OF PRESIDENT AND VICE-PRESIDENT called if the vacancy occurs within 18 months before the
rd
At 10 oclock in the morning of the 3 day after the vacancy date of the next presidential election.
occurs, Congress shall convene without need of a call, and
within 7 days enact a law calling for a special election to VICE-PRESIDENT
The President shall nominate a Vice-President from
elect a President and a Vice-President to be held not earlier among the members of the Senate and the House of
than 45 nor more than 60 days from the time of such call. Representatives who shall assume office upon
The bill shall be deemed certified and shall become law confirmation by a majority vote of all the members of both
upon its approval on third reading by Congress. xxx the houses of Congress voting separately. [Art. VII, Sec. 9]

PAGE 31
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

Judicial Department (3) Symbolic

ESSENTIAL REQUISITES FOR JUDICIAL REVIEW


CONCEPTS Actual case or controversy
JUDICIAL POWER [SECTION 1, ARTICLE VIII] This means that there must be a genuine conflict of legal
Judicial power includes the duty of the courts of justice to: rights and interests which can be resolved through judicial
(1) settle actual controversies involving rights which are determination. [John Hay v. Lim, (2003)]
legally demandable and enforceable, and
(2) to determine whether or not there has been a grave This precludes the courts from entertaining the following:
abuse of discretion amounting to lack or excess of (1) Request for an advisory opinion [Guingona vs. CA,
jurisdiction on the part of any branch or instrumentality (1998)]
of the Government. (2) Cases that are or have become moot and academic,i.e.
cease to present a justiciable controversy due to
The second clause effectively limits the doctrine of supervening events [David v. Macapagal-Arroyo
political question. (2006)].

Vested in: Supreme Court and in such lower courts as may Locus standi
be established by law. Standing NOT the same as real party in interest

JUDICIAL REVIEW A proper party is one who has sustained or is in imminent


Judicial Power Judicial Review danger of sustaining a direct injury as a result of the act
complained of [IBP v. Zamora (2000)]. The alleged injury
Where vested must also be capable of being redressed by a favorable
Supreme Court Supreme Court judgment (Tolentino v. COMELEC [2004]).
Lower courts Lower courts
(1) Requires partial consideration of the merits of the case
Definition in view of its constitutional and public policy
Duty to settle actual Power of the courts to test underpinnings [Kilosbayan v. Morato, (1995)]
controversies involving rights the validity of executive (2) May be brushed aside by the court as a mere procedural
which are legally and legislative acts in light technicality in view of transcendental importance of the
demandable and of their conformity with issues involved [Kilosbayan v. Guingona (1994)]; [Tatad
enforceable, and to the Constitution [Angara v. DOE (1995)].
determine whether or not v. Electoral Commission (3) Who are proper parties?
there has been a grave (1936)] (a) Taxpayers, when public funds are involved
abuse of discretion [Tolentino v. Comelec (2004)]
amounting to lack or excess (b) Government of the Philippines, when questioning
of jurisdiction on the part of the validity of its own laws [People v. Vera (1937)]
any branch or (c) Legislators, when the powers of Congress are being
instrumentality of the impaired [PHILCONSA v. Enriquez, (1994)].
Government (art. VIII, sec. 1, (d) Citizens, when the enforcement of a public right is
par. 2) involved [Taada v. Tuvera, (1985)].

Special Rules on Standing (Requisites)


Requisites for exercise Taxpayer (1) Appropriation; (2) disbursement
Jurisdiction power to (1) Actual case or (1) Direct injury; (2) public right, OR art.
decide and hear a case and controversy VII, sec. 18 (on the sufficiency of the
execute a decision thereof (2) Locus Standi Citizen factual basis for martial law or
(3) Question raised at the suspension of the privilige of the write of
earliest opportunity Habeas Corpus)
(4)Lis mota of the case Voter Right of suffrage is involved
Judicial Supremacy- When the judiciary mediates to (1) Authorized; (2) affects legislative
Legislator
allocate constitutional boundaries, it does not assert any prerogatives (a.k.a. derivative suit)
superiority over the other departments; it does not in (1) Litigants must have injury-in-fact; (2)
reality nullify or invalidate an act of the legislature, but Litigants must have close relation to the
only asserts the solemn and sacred obligation assigned to third-party; and
Third-Party
it by the Constitution to determine conflicting claims of (3) There is an existing hindrance to the
Standing
authority under the Constitution and to establish for the third partys ability to protect its own
parties in an actual controversy the rights which that interest. [White Light v. City of Manila
instrument secures and guarantees to them. This is in (2009)]
truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review (1) Constitutional question must beraised at the earliest
under the Constitution. [Angara v. Electoral Commission possible opportunity;
(1936)] The exceptions are: (a) in criminal cases, at the discretion
of the court; (b) in civil cases, if necessary for the
FUNCTIONS OF JUDICIAL REVIEW determination of the case itself; and (c) when the
(1) Checking jurisdiction of the court is involved
(2) Legitimating

PAGE 32
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

N.B. The reckoning point is the first competent court.The assumed jurisdiction whenever it found constitutionally-
question must be raised at the first court with judicial review imposed limits on the exercise of powers conferred upon
powers. Hence, the failure to raise the constitutional the Legislative and Executive branches [BERNAS].
question before the NLRC is not fatal to the case. [See
Serrano v. Gallant Maritime Services (2009] Political Question Justiciable Controversy
(2) Lis Mota Alejandrino v. Quezon Avelino v. Cuenco, (1949):
Decision on the constitutional question must be (1924): The legislatures election of Senate
determinative of the case itself. exercise of disciplinary President was done
power over its member is without the required
The reason for this is the doctrine of separation of powers not to be interfered with by quorum
which requires that due respect be given to the co-equal the Court.
branches, and because of the grave consequences of a Vera v. Avelino, (1946): Taada v. Cuenco, (1957):
declaration of unconstitutionality. [De la Llana v. Alba inherent right of the The selection of the
(1982)] legislature to determine members of the Senate
who shall be admitted to Electoral Tribunal is
OPERATIVE FACT DOCTRINE its membership subject to constitutional
General Rule:The interpretation (or declaration) of limitations.
unconstitutionality is retroactive in that it applies from the Severino v. Governor- Cunanan v. Tan, Jr., (1962):
laws effectivity General (1910): Mandamus The Commission on
and injunction could not lie Appointments is a
Exception: to enforce or restrain a constitutional creation and
OPERATIVE FACT DOCTRINE Subsequent declaration of duty which is discretionary does not derive its power
unconstitutionality does not nullify all acts exercised in line (calling a special local from Congress.
with [the law].The past cannot always be erased by a new election).
judicial declaration. [Municipality of Malabang v. Benito Manalang v. Quitoriano, Lansang v. Garcia(1971):
(1969), citing Chicot County] (1954): Presidents Suspension of the privilege
appointing power is not to of the writ of habeas corpus
Effect of a Declaration of Unconstitutionality be interfered with by the is not a political question.
(1) Orthodox view - An unconstitutional act is not a law; it Court.
confers no rights; it imposes no duties; it affords no Javellana v. Executive
protection; it creates no office; it is inoperative, as if it Secretary(1973): WON the
had not been passed at all. 1973 Constitution had been
(2) Modern view - Certain legal effects of the statute prior ratified in accordance with
to its declaration of unconstitutionality may be the 1935 Constitution is
recognized. justiciable.

MOOT QUESTIONS HOWEVER, the people may


Ripeness of the controversy-The issue must be raised not be deemed to have cast
too early that it is conjectural or anticipatory, nor too late their favorable votes in the
that it becomes moot. belief that in doing so they
did the part required of
Exception - Courts will still rule if them by Article XV, hence,
(1) there is a grave violation of the Constitution; it may be said that in its
(2) the exceptional character of the situation and the political aspect, which is
paramount public interest is involved; what counts most, after all,
(3) when constitutional issue raised requires formulation of said Article has been
controlling principles to guide the bench, the bar, and the substantially complied
public; with, and, in effect, the
1973 Constitution has been
Also, when the court feels called upon to exercise its constitutionally ratified.
symbolic function and provide future guidance
[Salonga v. Pao (1985)] SAFEGUARDS OF JUDICIAL INDEPENDENCE
(1)The SC is a constitutional body. It cannot be abolished
(4) the case is capable of repetition yet evading review. nor may its membership or the manner of its meetings
[Alunan III v. Mirasol, (1997); Sanlakas v. Executive be changed by mere legislation. [Art. VIII, Sec. 4]
Secretary, (2004)] (2) The members of the judiciary are not subject to
confirmation by the CA.
POLITICAL QUESTION DOCTRINE (3) The members of the SC may not be removed except by
The term political question refers to: (1) matters to be impeachment. [Art. IX, Sec. 2]
exercised by the people in their primary political capacity; or (4) The SC may not be deprived of its minimum original
(2) those specifically delegated to some other department or and appellate jurisdiction as prescribed in Art. X, Sec. 5
particular office of the government, with discretionary of the Constitution. [Art. VIII, Sec. 2]
power to act. It is concerned with issues dependent upon (5) The appellate jurisdiction of the SC may not be
the wisdom, not legality, of a particular measure. [Taada increased by law without its advice and concurrence.
v. Cuenco (1957)] [Art. VI, Sec. 30; Fabian v. Desierto (1988)]
(6) The SC has administrative supervision over all lower
In recent years, the Court has set aside this doctrine and courts and their personnel. (art. VIII, sec. 6.)

PAGE 33
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

(7) The SC has exclusive power to discipline judges of lower But see Francisco v. House of Representatives (2001). At
courts. [Art. VIII, Sec. 11] the same time, the Court has the duty to determine
The Ombudsman is duty bound to refer to the SC all whether or not there has been grave abuse of
cases against judges and court personnel, so SC can discretionby any instrumentality of government under
determine first whether an administrative aspect is its expanded judicial review powers. (This allowed the
involved. The Ombudsman cannot bind the Court that SC to interfere in a traditionally purely political process,
a case before it does or does not have administrative i.e. impeachment, when questions on compliance with
implications. [Caoibes v. Ombudsman (2001)] Constitutional processes were involved.)
(8) The members of the SC and all lower courts have
security of tenure, w/c cannot be undermined by a law Guidelines for determining whether a question is political or
reorganizing the judiciary. [Id.] not: [Baker v. Carr (369 US 186), as cited in Estrada v.
(9) They shall not be designated to any agency performing Desierto (2001)]:
quasi-judicial or administrative functions. [Art. VIII, Sec. (1) There is a textually demonstrable constitutional
12] commitment of the issue to a political department;
Administrative functions are those thatinvolve (2) Lack of judicially discoverable and manageable
regulation of conduct of individuals or promulgation of standards for resolving it;
rules to carry out legislative policy. Judges should (3) The impossibility of deciding without an initial policy
render assistance to a provincial committee of justice determination of a kind clearly for non-judicial
(which is under DOJ supervision) only when it is discretion;
reasonably incidental to their duties. [In Re Manzano (4) Impossibility of a courts undertaking independent
(1988)] resolution without expressing lack of the respect due
(10) The salaries of judges may not be reduced during their coordinate branches of government;
continuance in office. [Art. VIII, Sec. 10] (5) An unusual need for unquestioning adherence to a
(11) The judiciary shall enjoy fiscal autonomy. [Art. VIII, Sec. political decision already made;
3] (6) Potentiality of embarrassment from multifarious
Fiscal autonomy means freedom from outside control. pronouncements by various departments on one
As the Court explained in Bengzon v. Drilon: As question
envisioned in the Constitution, the fiscal autonomy
enjoyed by the Judiciary, the Civil Service Commission APPOINTMENTS TO THE JUDICIARY
and the Commission on Audit, the Commission on SYNTHESIS OF CONSTITUTIONAL AND STATUTORY QUALIFICATIONS
Elections, and the Office of the Ombudsman SC and Collegiate MTC/ MCTC
RTC Judge
contemplates a guarantee of full flexibility to allocate Courts Justice Judge
and utilize their resources with the wisdom and dispatch Citizenship
that their needs require. It recognizes the power and
authority to levy, assess and collect fees, fix rates of Natural-born
Filipino citizen
compensation not exceeding the highest rates Filipino
authorized by law for compensation and pay plans of Age
the government and allocate and disburse such sums
At least 40 years old At least 35 At least 30
as may be provided by law or prescribed by them in the
years old years old
course of the discharge of their functions. [In re:
Clarifying and Strengthening the Organizational Experience
Structure and Set-up of the Philippine Judicial Academy, 15 years or more as a Has been engaged for at least 5
A.M. No. 01-1-04-SC] judge or a lower years in the practice of law* in the
(12) The SC alone may initiate rules of court. [Art. VIII, Sec. court or has been PHLor has held public office in
5(5)] engaged in the the PHL requiring admission to
(13) Only the SC may order the temporary detail of practice of law in the the practice of law as an
judges.[Art. VIII, Sec. 5(3)] PHL for the same indispensable requisite
(14) The SC can appoint all officials and employees of the period
judiciary.[Art. VIII, Sec. 5(6)]

JUDICIAL RESTRAINT
The judiciary will not interfere with its co-equal branches Tenure
when: Hold office during good behavior until they reach the age
(1) There is no showing of grave abuse of discretion of 70 or
(a) PPA v. Court of Appeals: If there is no showing of become incapacitated to discharge their duties
grave abuse of discretion on the part of a branch or Character
instrumentality of the government, the court will
decline exercising its power of judicial review. Person of proven competence, integrity, probity and
(b) Chavez v. COMELEC: Judicial review shall involve independence
only those resulting to grave abuse of discretion by
virtue of an agencys quasi-judicial powers, and not *Practice of law is not confined to litigation. It means any
those arising from its administrative functions. activity in and out of court, which requires the application
of law, legal procedure, knowledge, training and
(2) The issue is a political question. experience. [Cayetano v. Monsod (1991)]
Even when all requisites for justiciability have been
met, judicial review will not be exercised when the issue CONSTITUTIONAL REQUIREMENTS (CANNOT BE REDUCED BY LAW)
involves a political question. Supreme Court Justice
(1) Natural born citizens
(2) At least 40 years of age

PAGE 34
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

(3) Enagaged in the practice of law or a judge of 15 years or


more But the term of those initially appointed shall be staggered
(4) Must be of proven competence, integrity, probity and in the following way so as to create continuity in the
independence. council:
(1) IBP representative - 4 years
Lower Collegiate Courts (2) Law professor - 3 years
(1) Natural born citizens (3) Retired justice - 2 years
(2) Member of the Philippine Bar (4) Private sector - 1 year
(3) Must be of proven competence, integrity, probity and
independence Primary function:Recommend appointees to the judiciary,
(4) Such additional requirements provided by law. May exercise such other functions and duties as the SC
may assign to it. [Art. VIII, Sec. 8(5)]
Lower Courts
(1) Filipino citizens (RULES OF THE JUDICIAL AND BAR COUNCIL, PROCEDURE OF APPOINTMENT
Nov. 2000, Rule II) The JBC shall submit a list of three nominees for every
(2) Member of the Philippine Bar vacancy to the President. (art. VIII, sec. 9)
(3) Must be of proven competence, integrity, probity and
independence.
(4) Such additional requirements provided by law.
Any vacancy in the Supreme Court shall be filed within
Note: In the case of judges of the lower courts, the
ninety (90) days from the occurrence thereof. (art. VIII,
Congress may prescribe other qualifications. (art.VIII, sec.
sec. 4[1])
7[3].
For lower courts, the President shall issue the
appointment within ninety (90) days from the
JUDICIAL AND BAR COUNCIL
submission by the JBC of such list. (art. VIII, sec. 9)
Composition
Ex-officio members (art. VIII, sec. 8[1])
(1) Chief Justice as ex-officio Chairman
The prohibition against midnight appointments does not
(2) Secretary of Justice
apply to the judiciary. See De Castro v. JBC, (2010),
(3) One representative of Congress
discussed above.
Regular members (art. VIII, sec. 8[1])
DISQUALIFICATION FROM OTHER POSITIONS OR OFFICES
(4) Representative of the Integrated Bar
(5) Professor of Law The Members of the Supreme Court and of other courts
(6) Retired member of the SC established by law shall not be designated to any agency
(7) Representative of private sector performing quasi-judicial or administrative functions. [Art.
VIII, Sec. 12]
Secretary ex-officio (art. VIII, sec. 8[3]) Clerk of Court of
the SC, who shall keep a record of its proceedings; not a The SC and its members should not and cannot be
member of the JBC. required to exercise any power or to perform any trust or to
assume any duty not pertaining to or connected w/ the
Appointment, Tenure, Salary of JBC Members administering of judicial functions. (Meralco v. Pasay
Ex-officio members - None apply since the position in the Transportation Co., [1932])
Council is good only while the person is the occupant of
the office. A judge in the CFI shall not be detailed with the
Department of Justice to perform administrative functions
Only ONE representative from Congress-Former practices of as this contravenes the doctrine of separation of powers.
giving vote or (more recently) 1 full vote each for the [Garcia vs Macaraig, (1972)]
Chairmen of the House and Senate Committees on Justice
is invalid. THE SUPREME COURT
COMPOSITION OF THE SUPREME COURT
The framers intended the JBC to be composed of 7 (1) Chief Justice and 14 Associate Justices
members only. Intent is for each co-equal branch of govt to (2) May sit en banc or in divisions of three, five, or seven
have one rep. There is no dichotomybetween Senate and Members
HOR when Congress interacts with other branches. But the (3) Vacancy shall be filled within 90 days from the
SC not in a positionto say who should sit. [Chavez v. JBC, occurrence thereof
(2012)]
EN BANC AND DIVISION CASES
UPDATE (But outside the cut-off date): Court denied the En banccasesdecided with the concurrence of a majority
motion for reconsideration, and lifted the suspension of the of the Members who actually took part in the deliberations
dispositive portion in the July 17, 2012 decision ordering the and voted.
JBC to reconstitute itself. [Chavez v. JBC, supra, April 16,
2013] Instances when the SC sits en banc: (c-dd-mm-po)
(A) Those involving the Constitutionality, application, or
Regular members [Art. VIII, Sec. 8(2)] - The regular operation of: (TOIL-PIPOO)
members shall be appointed by the President with the (1) Treaty
consent of the Commission on Appointments. The term of (2) Orders
the regular members is 4 years. (3) International or executive agreement
(4) Law

PAGE 35
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

(5) Presidential decrees speedy disposition of cases


(6) Instructions (2) Uniform for all courts in the same grade
(7) Proclamations (3) Shall not diminish, increase or modify substantive rights
(8) Ordinances
(9) Other regulations ADMINISTRATIVE SUPERVISION OVER LOWER COURTS
(B) Exercise of the power to Discipline judges of lower Administrative Powers of the Supreme Court
courts, or order their dismissal [Art. VIII, Sec. 11] (1) Assign temporarily judges of lower courts to other
Discipline of judges can be done by a division, BUT En stations as public interest may require;
Bancdecides cases for dismissal, disbarment, Shall not exceed 6 months without the consent of the
suspension for more than 1 year, or fine of more than judge concerned
P10,000. [People v. Gacott (1995)] (2) Order a change of venue or place of trial to avoid a
(C) Cases or matters heard by a Division where the required miscarriage of justice;
number of votes to decide or resolve (the majority of (3) Appoint all officials and employees of the Judiciary in
those who took part in the deliberations on the issues accordance with the Civil Service Law;
in the case and voted thereon, and in no case less than (4) Supervision over all courts and the personnel thereof;
3 members) is not met [Art. VIII, Sec. 4(3)] (5) Discipline judges of lower courts, or order their
(D) Modifying or reversing a doctrine or principle of law laid dismissal.
down by the court in a decision rendered en banc or in
division [Art. VIII, Sec. 4(3)] Grounds Removal from Office on Impeachment of Members
(E) Actions instituted by citizen to test the validity of a of the SC [Art. XI, sec. 2]
proclamation of Martial law or suspension of the (1) Culpable violation of the Constitution
privilege of the writ [Art. VIII, Sec. 18] (2) Treason
(F) When sitting as Presidential Electoral Tribunal [Art. VIII, (3) Bribery
Sec. 4, par. 7] (4) Graft and corruption
(G) All Other cases which under the Rules of Court are re- (5) Other high crimes
quired to be heard by the SC en banc. [Art. VIII, Sec. (6) Betrayal of public trust
4(2)]
ORIGINAL AND APPELLATE JURISDICTION
Requirement and Procedures in Divisions Original Jurisdiction [Art. VIII, sec. 5[1]]
(A) Cases decided withthe concurrence of a majority of the (1) Cases affecting ambassadors, other public ministers
Members who actually took part in the deliberations and consuls
and voted (2) Petition for certiorari
(B) In no case without the concurrence of at least threeof (3) Petition for prohibition
such Members (4) Petition for mandamus
(C) When required number is not obtained, the case shall (5) Petition for quo warranto
be decided en banc. (6) Petition for habeas corpus
(1) Cases v. Matters. Only cases are referred to En Banc
for decision when required votes are not obtained. Original Jurisdiction [Art. VIII, Sec. 5(2)] on appeal or
(2) Cases are of first instance; mattersare those after certiorari (as the Rules of Court provide), SC may review,
the first instance, e.g. MRs and post-decision revise, reverse, modify, or affirm final judgments and orders
motions. of lower courts in:
(3) Failure to resolve a motion because of a tie does not (1) Cases involving the constitutionalityor validityofany
leave case undecided. MR is merely lost. [See treaty, international or executive agreement, law,
Fortrich v. Corona (1999)] presidential decree, proclamation, order, instruction,
ordinance, or regulation
The SC En Banc is not an appellate court vis--vis its (2) Cases involving the legality of any tax, impost,
Divisions. The only constraint is that any doctrine or assessment, or toll, or any penalty imposed in relation
principle of law laid down by the Court, either rendered en thereto
banc or in division, may be overturned or reversed only by (3) Cases in which the jurisdiction of any lower court is in
the Court sitting en banc. [Firestone Ceramics v. CA, (2001)] issue
(4) Criminal cases where the penalty imposed is reclusion
PROCEDURAL RULE MAKING perpetuaor higher.
The Supreme Court shall have the following powers:xxx (5) Cases where only a question of law is involved.
(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, JUDICIAL PRIVILEGE
and procedure in all courts, the admission to the practice See SC Resolution dated February 14, 2012, In Re:
of law, the integrated bar, and legal assistance to the Production of Court Records and Documents and the
under-privileged. [Art. VIII, Sec. 5] Attendance of Court officials and employees as witnesses
under the subpoenas of February 10, 2012 and the various
letters for the Impeachment Prosecution Panel dated
The 1987 Constitution took away the power of Congress to
repeal, alter, or supplement rules concerning pleading, January 19 and 25, 2012.
practice and procedure. The power to promulgate rules of
Background: The Senate Impeachment Court (during the
pleading, practice and procedure is no longer shared by
this Court with Congress, more so with the Impeachment Trial of Chief Justice Corona), issued a
supoena ad testificandum et duces tecum for certain
Executive. [Echegaray v. Secretary of Justice, (1991)]
documents relating to the FASAP cases, the League of
Limitations: Cities cases, and Gutierrez v. House Committee on Justice,
as well as the attendance of certain court officials. The
(1) Shall provide a simplified and inexpensive procedure for

PAGE 36
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

Supreme Court refused, invoking judicial privilege. (3) Civil Service Commission

Judicial Privilege INSTITUTIONAL INDEPENDENCE SAFEGUARDS


A form of deliberative process privilege; Court records which Because the three constitutional commissions perform
are pre-decisional and deliberative in nature are thus vital functions in the government, it is essential that their
protected and cannot be the subject of a subpoena integrity and independence be protected against outside
influences and political pressures.
A document is predecisional if it precedes, in temporal
sequence, the decision to which it relates. INSTITUTIONAL SAFEGUARDS:
(1) They are constitutionally created, hence may not be
A material is deliberative on the other hand, if it reflects the abolished by statute.
giveand-take of the consultative process. The key question (2) Each commission is vested with powers and functions
is whether disclosure of the information would discourage which cannot be reduced by statute.
candid discussion within the agency. (3) Independent constitutional bodies.
(4) The Chairmen and members cannot be removed except
Judicial Privilegeisan exception to the general rule of by impeachment.
transparency as regards access to court records. (5) Fixed term of office of 7 years.
(6) The Chairmen and members may not be appointed in
Court deliberationsare traditionally considered privileged an acting capacity.
communication. (7) The salaries of the Chairmen and members may not be
decreased during their tenure.
Summary of Rules (8) The Commissions enjoy fiscal autonomy.
The following are privileged documents or (9) Each Commission may promulgate its own procedural
communications, and are not subject to disclosure: rules, provided they do not diminish, increase or modify
(1) Court actions such as the result of the raffle of cases and substantive rights [though subject to disapproval by
the actions taken by the Court on each case included in the Supreme Court].
the agenda of the Courts session on acts done (10) The Commission may appoint their own officials and
material to pending cases, except where a party litigant employees in accordance with Civil Service Law.
requests information on the result of the raffle of the
case, pursuant to Rule 7, Section 3 of the Internal Rules POWERS AND FUNCTIONS
of the Supreme Court (IRSC); CIVIL SERVICE COMMISSION
(2) Court deliberations or the deliberations of the Members The Civil Service Commission, as the central personnel
in court sessions on cases and matters pending before agencyof the Government, shall establish a career
the Court; serviceand adopt measures to promote morale, efficiency,
(3) Court records which are pre-decisional and integrity, responsiveness, progressiveness, and courtesy in
deliberative in nature, in particular, documents and the civil service. It shall strengthen the merit and rewards
other communications which are part of or related to system, integrate all human resources development
the deliberative process, i.e., notes, drafts, research programsfor all levels and ranks, and institutionalize a
papers, internal discussions, internal memoranda, management climate conducive to public accountability. It
records of internal deliberations, and similar papers. shall submit to the President and the Congress an annual
report on its personnel programs. [Art. IXB, Sec. 3]
Additional Rules:
(1) Confidential Information secured by justices, judges, Functions:
court officials and employees in the course of their (1) In the exercise of its powers to implement R.A. 6850
official functions, mentioned in (2) and (3) above, are (granting civil service eligibility to employees under
privileged even after their term of office. provisional or temporary status who have rendered
(2) Records of cases that are still pending for decision are seven years of efficient service), the CSC enjoys a wide
privileged materials that cannot be disclosed, except latitude of discretion, and may not be compelled by
only for pleadings, orders and resolutions that have mandamus. [Torregoza v. Civil Service Commission
been made available by the court to the general public. (1992)].
(3) The principle of comity or inter-departmental courtesy (2) Under the Administrative Code of 1987, the Civil Service
demands that the highest officials of each department Commission has the power to hear and decide
be exempt from the compulsory processes of the other administrative cases instituted before it directly or on
departments. appeal, including contested appointments.
(4) These privileges belong to the Supreme Court as an (3) The Commission has original jurisdiction to hear and
institution, not to any justice or judge in his or her decide a complaint for cheating in the Civil Service
individual capacity. Since the Court is higher than the examinations committed by government employees.
individual justices or judges, no sitting or retired justice [Cruz v. CSC (2001)]
or judge, not even the Chief Justice, may claim (4) It is the intent of the Civil Service Law, in requiring the
exception without the consent of the Court. establishment of a grievance procedure, that decisions
of lower level officials (in cases involving personnel
actions) be appealed to the agency head, then to the
Civil Service Commission. [Olanda v. Bugayong (2003)]
Constitutional Commissions Scope of the Civil Service
Embraces all branches, subdivisions, instrumentalities and
(1) Commission on Election agencies of the Government, including GOCCs with original
(2) Commission on Audit charters. (Sec. 2(1), Art. IX-B).

PAGE 37
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

[De los Santos v. Mallare (1950)]; OR one declared to be


The University of the Philippines, having an original so by the President of the Philippines upon the
charter, is clearly part of the CSC. [UP v. Regino (1993)] recommendation of the CSC [Salazar v. Mathay (1976)].
(3) Highly technical requires possession of technical skill
Composition: A Chairman and 2 Commissioners or training in supreme degree. [De los Santos v. Mallare,
supra]
Qualifications:
(1) Natural-born citizens of the Philippines; Disqualifications:
(2) At the time of their appointment, at least 35 years of (1) No candidate who has lost in any election shall within 1
age; year after such election, be appointed to any office in
(3) With proven capacity for public administration; and the Government of any GOCC or in any of its
(4) Must not have been candidates for any elective position subsidiaries. (art. IX-B, sec. 6)
in the election immediately preceding their (2) No elective official shall be eligible for appointment or
appointment. designation in any capacity to any public office or
position during his tenure. (art. IX-B, sec. 7[1])
Classes of Service: (3) Unless otherwise allowed by law OR by the primary
(A) Career Service Characterized by entrance (a) based on functions of his position, no appointive official shall hold
merit and fitness to be determined, as far as any other office or employment in the Government or any
practicable, by competitive examinations, OR(b) based subdivision agency or instrumentality thereof including
on highly technical qualifications; with opportunity for GOCCs or their subsidiaries. (art. IX-B, sec. 7[2])
advancement to higher career positionsand security of (4) No office or employee in the civil service shall engage
tenure. directly or indirectly, in any electioneering or partisan
(1) Open career positions where prior qualification in political activity. (art. IX-B, sec. 2[4])
an appropriate examination is required.
(2) Closed career positions e.g. scientific or highly COMMISSION ON ELECTION
technical in nature; Functions and Powers
(3) Career Executive Service e.g. undersecretaries, (1) Enforce all laws relating to the conduct of election,
bureau directors plebiscite, initiative, referendum and recall.
(4) Career Officers other than those belonging to the
Career Executive Service who are appointed by the Initiative the power of the people to propose
President, e.g. those in the foreign service amendments to the Constitution or to propose and enact
(5) Positions in the AFP although governed by a legislation through an election called for that purpose.
different merit system There are 3 systems of initiative: Initiative on the
(6) Personnel of GOCCs with original charters Constitution, initiative on statutes, and initiative on local
(7) Permanent laborers, whether skilled, semi-skilled or legislation [R.A. 6735, Sec. 2(a)].
unskilled.
(B) Non-career Service characterized by entrance on Referendum is the power of the electorate to approve or
bases other than those of the usual tests utilized for reject legislation through an election called for that
the career service; tenure limited to a period specified by purpose. There are 2 classes: referendum on statutes or
law, or which is co-terminus with that of the appointing referendum on local laws. [R.A. 6735, Sec. 2(c)].
authority or subject to his pleasure, or which is limited
to the duration of a particular project for which purpose Recall is the termination of official relationship of a local
the employment was made. elective official for loss of confidence prior to the expiration
(1) Elective officials, and their personal and confidential of his term through the will of the electorate.
staff;
(2) Department heads and officials of Cabinet rank who Plebiscite is the submission of constitutional
hold office at the pleasure of the President, and amendments or important legislative measures to the
their personal and confidential staff; people for ratification.
(3) Chairmen and members of commissions and
bureaus with fixed terms; (2) Recommend to the Congress effective measures to
(4) Contractual personnel; minimize election spending, and to prevent and
(5) Emergency and seasonal personnel. penalize all forms of election frauds, offenses,
malpractices, and nuisance candidacies.
Appointments in the Civil Service
General Rule: Made only according to merit and fitness to (3) Submit to the President and the Congress, a
be determined, as far as practicable, by competitive comprehensive report on the conduct of each
examination. election, plebiscite, initiative, referendum, or recall.

Exceptions: Power to declare failure of election The COMELEC may


(1) Policy determining where the officer lays down exercise such power motu proprio or upon a verified
principal or fundamental guidelines or rules; or petition, and the hearing of the case shall be summary in
formulates a method of action for government or any nature. There are only 3 instances where a failure of
of its subdivisions;e.g. department head. elections may be declared: (a) the election in any polling
(2) Primarily confidential denoting not only confidence in place has not been held on the date fixed on account of
the aptitude of the appointee for the duties of the office force majeure, violence, terrorism, fraud, or other
but primarily close intimacy which ensures freedom of analogous causes; (b) the election in any poling place had
intercourse without embarrassment or freedom from been suspended before the hour fixed by law for the
misgivings or betrayals on confidential matters of state closing of the voting on account of force majeure, violence,

PAGE 38
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

fraud, or other analogous causes; and (c) after the voting The Commission on Elections may sit en banc or in two
and during the preparation and transmission of the divisions, and shall promulgate its rules of procedure in
election returns or in the custody or canvass thereof such order to expedite disposition of election cases, including
election results in a failure to elect on account of force pre-proclamation controversies. All such election cases
majeure, violence, terrorism, fraud or other analogous shall be heard and decided in division, provided that
causes. [Sison v. COMELEC (1999)] motions for reconsideration of decisions shall be decided by
the Commission en banc. [Art. IXC, Sec. 3]
(4) Decide administrative questions pertaining to election
except the right to vote(jurisdiction with the judiciary). Cases which must be heard by division
(1) All election cases, including pre-proclamation contests
(5) File petitions in court for inclusion or exclusion of originally cognizable by the Commission in the exercise
voters. of its powers under Sec. 2(2), Art IX-C.
(2) Jurisdiction over a petition to cancel a certificate of
(6) Investigate and prosecute cases of violations of election candidacy.
laws. (3) Even cases appealed from the RTC or MTC have to be
heard and decided in division before they may be heard
The COMELEC has exclusive jurisdiction to investigate and en banc.
prosecute cases for violations of election laws. [De Jesus v.
People (1983)] If the COMELEC exercises its quasi-judicial functions then
the case must be heard through a division.
Thus, the trial court was in error when it dismissed an
information filed by the Election Supervisor because the If the COMELEC exercises its administrative functions then
latter failed to comply with the order of the Court to secure it must act en banc. [Bautista v. COMELEC, 414 (2003)].
the concurrence of the Prosecutor. [People v. Inting (1990)]
However, the COMELEC may validly delegatethis power to Composition: A Chairman and 6 Commissioners.
the Provincial Fiscal. [People v. Judge Basilia (1989)]
Qualifications:
(7) Recommend pardon, amnesty, parole or suspension of (1) Must be natural-born citizens;
sentence of election law violators. (2) At least 35 years of age;
(3) Holders of a college degree;
(8) Deputize law enforcement agencies and (4) Have not been candidates in the immediately preceding
instrumentalities of the Government for the exclusive election;
purpose of ensuring free, orderly, honest, peaceful, and (5) Majority, including the Chairman, must be members of
credible elections. the Philippine Bar who have been engaged in the
practice of law for at least 10 years. [Art. IX-C, Sec. 1]
(9) Recommend to the President the removal of any officer
or employee it has deputized for violation or disregard COMMISSION ON AUDIT
of, or disobedience to its directive. Powers and Functions
(A) Examine, audit, and settle accounts pertaining to
(10) Registration of political parties, organizations and government funds or property: its revenue, receipts,
coalitions and accreditation of citizens arms. expenditures, and uses
(11) Regulation of public utilities and media of information. Post-audit basis:
The law limits the right of free speech and of access to (1) Constitutional bodies, commissions and offices;
mass media of the candidates themselves. The (2) Autonomous state colleges and universities;
limitation however, bears a clear and reasonable (3) GOCCs with no original charters and their
connection with the objective set out in the subsidiaries;
Constitution. For it is precisely in the unlimited (4) Non-governmental entities receiving subsidy or
purchase of print space and radio and television time equity, directly or indirectly, from or through the
that the resources of the financially affluent candidates Government, which are required by law or the
are likely to make a crucial difference. The purpose is to granting institution to submit such audit as a
ensure "equal opportunity, time, and space, and the right condition of subsidy or equity.
to reply," as well as uniform and reasonable rates of
charges for the use of such media facilities, in (B) Exclusive Authority to
connection with "public information campaigns and (1) Define the scope of its audit and examination;
forums among candidates." [National Press Club v. (2) Establish techniques and methods required ;
COMELEC (1992)] (3) Promulgate accounting and auditing rules and
regulations.
Note: This power may be exercised only over the media, not
over practitioners of media. Thus, a COMELEC resolution Note: Art. IX-D, sec. 3.No law shall be passed exempting
prohibiting radio and TV commentators and newspaper any entity of the Government or its subsidiaries in any
columnists from commenting on the issues involved in the guise whatever, or any investment of public funds, from the
forthcoming plebiscite for the ratification of the organic jurisdiction of the Commission on Audit.
law establishing the CAR was held invalid. [Sanidad v.
COMELEC (1990)] Composition: A Chairman and 2 Commissioners
(12) Decide election cases Qualifications:
(1) Natural born Filipino citizens

PAGE 39
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

(2) At least 35 years of age agencies, or instrumentalities, including government-owned


(3) CPAs with not less than 10 years of auditing experience and controlled corporations with original charters, and on a
ORmembers of the Philippine bar with at least 10 years post-audit basis:
practice of law (a) constitutional bodies, commissions and officers that
have been granted fiscal autonomy under the
Note: At no time shall all members belong to the same Constitution;
profession. (b) autonomous state colleges and universities;
(c) other government-owned or controlled corporations and
PROHIBITED OFFICES AND INTERESTS their subsidiaries; and
No member of the Constitutional Commissions shall, (d) such non-governmental entities receiving subsidy or
during their tenure: equity, directly or indirectly, from or through the
(1) Hold any other office or employment. This is similar to the government, which are required by law or the granting
prohibition against executive officers. It applies to both institution to submit to such audit as a condition of
public and private offices and employment. subsidy or equity. [Phil. Society for the Prevention of
(2) Engage in the practice of any profession. Cruelty of Animals v. COA (2007)]
(3) Engage in the active management or control of any
businesswhich in any way may be affected by the The Boy Scouts of the Philippines (BSP) is a public
functions of his office. corporation and its funds are subject to the COAs audit
(4) Be financially interested, directly or indirectly, in any jurisdiction. [Boy Scouts of the Philippines v. COA (2011)]
contract with, or in any franchise or privilege granted
by, the Government, its subdivisions, agencies or REVIEW OF FINAL ORDERS, RESOLUTIONS, AND
instrumentalities, including GOCCs or their DECISIONS
subsidiaries. QUASI-JUDICIAL FUNCTIONS
Each Commission shall decide by a majority vote of all its
JURISDICTION Members, any case or matter brought before it within sixty
The well-settled rule is that jurisdiction is conferred only by days from the date of its submission for decision or
the Constitution or by law [Orosa, Jr. v. Court of Appeals resolution. A case or matter is deemed submitted for
(1991)] decision or resolution upon the filing of the last pleading,
brief, or memorandum required by the rules of the
CIVIL SERVICE COMMISSION Commission or by the Commission itself. Unless otherwise
The CSC has been granted by the Constitution and the provided by this Constitution or by law, any decision, order,
Administrative Code jurisdiction over all civil service or ruling of each Commission may be brought to the
positions in the government service, whether career or Supreme Court on certiorari by the aggrieved party within
non-career. The specific jurisdiction, as spelled out in the thirty days from receipt of a copy thereof. [Art. IX-A, Sec. 7]
CSC Revised Uniform Rules on Administrative Cases in the
Civil Service, did not depart from the general jurisdiction
Decisions
granted to it by law. [Civil Service Commission vs. Sojor Each Commission shall decide by a majority vote of all its
(2008); see CSC Resolution No. 991936 detailing the members(NOT only those who participated in the
disciplinary and non-disciplinaryjurisdiction]
deliberations) any case or matter brought before it within
60 days from the date of its submission for decision or
Appellate Jurisdiction
resolution. [Art. IX-A, Sec. 7]
The appellate power of the CSC will only apply when the
subject of the administrative cases filed against erring Any decision, order or ruling of each Commission may be
employees is in connection with the duties and functions of
brought to the SC on certiorari by the aggrieved party
their office, and not in cases where the acts of complainant within 30 days from receipt of the copy thereof.
arose from cheating in the civil service examinations.[Cruz
v. CSC (2001)]
Certiorari jurisdiction of the Supreme Court:
Limited to decisions rendered in actions or proceedings
COMMISSION ON ELECTIONS
taken cognizance of by the Commissions in the exercise of
The Constitution vested upon the COMELEC judicial
their quasi-judicial powers.
powers to decide all contests relating to elective local
officials as therein provided. [Garcia v. De Jesus (1992)]
The Court exercises extraordinary jurisdiction, thus, the
proceeding is limited only to issues involving grave abuse
Exclusive: all contests relating to the elections, returns and of discretion resulting in lack or excess of jurisdiction, and
quslifications of all elective regional, provincial, and city
does not ordinarily empower the Court to review the
officials. factual findings of the Commission. [Aratuc v. COMELEC,
(1999)]
Appellate: all contests involving elected municipal
officialsdecided by trial courts of general jurisdiction, or Synthesis on the Rules of Modes of Review
involving elective barangay officials decided by a court of
(1) Decisions, order or ruling of the Commissions in the
limited jurisdiction. [Garcia, id.] exercise of their quasi-judicial functions may be
reviewed by the Supreme Court.
COMMISSION ON AUDIT
(2) The mode of review is a petition for certiorari under Rule
The Commission on Audit shall have the power, authority, 64 (not Rule 65).
and duty to examine, audit, and settle all accounts
(3) Exception: The Rules of Civil Procedure, however,
pertaining to the revenue and receipts of, and expenditures
provides for a different legal route in the case of the
or uses of funds and property, owned or held in trust by, or Civil Service Commission. In the case of CSC, Rule 43
pertaining to the Government, or any of its subdivisions,

PAGE 40
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

will be applied, and the case will be brought to the (3) Those whose mothers are citizens of the Philippines
Court of Appeals. and, upon reaching the age of majority, elect Philippine
citizenship;
ADMINISTRATIVE (4) Those who are naturalized in accordance with law. [Art.
Each Commission shall appoint its own officials in IV, Sec. 1]
accordance with law [Art. IX-A, Sec. 4]
The following persons were citizens of the Philippines on
Each Commission En Banc may promulgate its own rules May 14, 1935 the date of the adoption of the 1935
concerning pleadings and practices before it [Art. IX-A, Constitution:
Sec.6] (1) Persons born in the Philippine Islands who resided
therein on April 11, 1899 and were Spanish subjects on
But these rules shall not diminish, increase or modify that date, unless they had lost their Philippine
substantive rights citizenship on or before May 14, 1935.
(2) Natives of the Spanish Peninsula who resided in the
Each Commission shall perform such other functions as Philippines on April 11, 1899, and who did not declare
may be provided by law[Art. IX-A, Sec. 8] their intention of preserving their Spanish nationality
between that date and October 11, 1900, unless they
had lost their Philippine citizenship on or before May
14, 1935.

Citizenship (3) Naturalized citizens of Spain who resided in the


Philippines on April 11, 1899, and did not declare their
intention to preserve their Spanish nationality within
WHO ARE FILIPINO CITIZENS? the prescribed period (up to October 11, 1900).
Who are citizens? (Asked 25 times in the Bar; CONST., art. IV, (4) Children born of (1), (2) and (3) subsequent to April 11,
Sec. 1) 1899, unless they lost their Philippine citizenship on or
(A) Citizens of the Philippines at the time of the adoption before May 14, 1935.
of this Constitution; (5) Persons who became naturalized citizens of the
(B) Those whose fathers or mothers are citizens of the Philippines in accordance of naturalization law since its
Philippines; enactment on March 26, 1920.
(C) Those who elected to be citizens. This is available only
to: MODES OF ACQUIRING CITIZENSHIP
(1) those born before January 17, 1973; Generally, two modes of acquiring citizenship:
(2) to Filipino mothers; AND (A) By Birth
(3) elect Philippine citizenship upon reaching the age (1) Jus Soli - right of soil; persons nationality is based on
of majority place of birth; formerly effective in the Philippines, see
(D) Those naturalized in accordance with law. [Roa v. Collector of Customs (1912)]
(2) Jus Sanguinis right of blood; persons nationality
ARTICLE IV, Section 1 (3), 1987 Constitution is also follows that of his natural parents. The Philippines
applicable to those who are born to Filipino mothers and currently adheres to this principle.
elected Philippine citizenship before February 2, 1987. This (B) By Naturalization
is to correct the anomalous situation where one born of a
Filipino father and an alien mother was automatically NATURALIZATION AND DENATURALIZATION
granted the status of a natural-born citizen, while one born NATURALIZATION
of a Filipino mother and an alien father would still have to Process by which a foreigner is adopted by the country and
elect Philippine citizenship. [Co v. House Electoral Tribunal clothed with the privileges of a native-born citizen. The
(1991)] applicant must prove that he has all of the qualifications
and none of the disqualifications for citizenship.
Who were the citizens of the Philippines at the time of the
adoption of the 1987 Constitution? Qualifications [C.A. 473, Sec. 2]
To answer this question, we have to go back to 1973 (1) Not less than twenty-one years of age on the day of the
Constitution. hearing of the petition;
(2) Resided in the Philippines for a continuous period of 10
Citizens under the 1973 Constitution years or more;
(1) Those who are citizens of the Philippines at the time of (3) Of good moral character; believes in the principles
the adoption of this Constitution; underlying the Philippine Constitution; conducted
(2) Those whose fathers or mothers are citizens of the himself in a proper and irreproachable manner during
Philippines; the entire period of his residence towards the
(3) Those who elect Philippine citizenship pursuant to the government and community
provisions of the Constitution of 1935; and (4) Must own real estate in the Philippines worth P5,000
(4) Those who are naturalized in accordance with law. or more OR must have lucrative trade, profession, or
[CONST. (1973), Art. III, Sec. 1(1)] lawful occupation;
(5) Able to speak or write English or Spanish or anyone of
Citizens under the 1935 Constitution the principal languages;
(1) Those who are citizens at the time of the adoption of (6) Enrolled his minor children of school age in any of the
this Constitution; recognized schools where Philippine history,
(2) Those born in the Philippine Islands of foreign parents government and civics are taught or prescribed as part
who, before the adoption of this Constitution, had been of the school curriculum, during the entire period of the
elected to public office in the Philippine Islands; residence in the Philippines required of him;

PAGE 41
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

Special Qualifications [C.A. 473, Sec. 3] ANY will result to Judgment directing the issuance of a certificate of
reduction of 10-year period to 5 years naturalization is a mere grant of a political privilege and
(1) Having honorably held office under the Government of that neither estoppel nor res judicata may be invoked to bar
the Philippines or under that of any of the provinces, the State from initiating an action for the cancellation or
cities, municipalities, or political subdivisions thereof; nullification of the certificate of naturalization thus issued.
(2) Established a new industry or introduced a useful [Yao Mun Tek v. Republic (1971)]
invention in the Philippines;
(3) Married to a Filipino woman; DUAL CITIZENSHIP AND DUAL ALLEGIANCE
(4) Engaged as a teacher in the Philippines in a public or DUAL CITIZENSHIP
recognized private school not established for the Allows a person who acquires foreign citizenship to
exclusive instruction of children of persons of a simultaneously enjoy the rights he previously held as a
particular nationality or race, in any of the branches of Filipino citizen.
education or industry for a period of 2 years or more;
(5) Born in the Philippines. DUAL ALLEGIANCE
(1) Aliens who are naturalized as Filipinos but remain loyal
Disqualifications [C.A. 473, Sec. 4] to their country of origin
(1) Persons opposed to organized government or affiliated (2) Public officers who, while serving the government, seek
with groups who uphold and teach doctrines opposing citizenship in another country
all organized governments;
(2) Persons defending or teaching the necessity or Dual citizens are disqualified from running for any
propriety of violence, personal assault, or assassination elective local position. (LOCAL GOVERNMENT CODE, sec. 40[d]);
for the success of their ideas; this should be read as referring to dual allegiance (see
(3) Polygamists or believers in polygamy; below)
(4) Persons convicted of crimes involving moral turpitude;
(5) Persons suffering from mental alienation or incurable Once a candidate files his candidacy, he is deemed to have
contagious diseases; renounced his foreign citizenship in case of dual
(6) Persons who during the period of their stay, have not citizenship. [Mercado v. Manzano (1999)]
mingled socially with the Filipinos, or who have not
evinced a sincere desire to learn and embrace the Clearly, in including sec. 5 in Article IV on citizenship, the
customs, traditions, and ideals of the Filipinos; concern of the Constitutional Commission was not with
(7) Citizens or subjects of nations with whom the dual citizens per se but with naturalized citizens who
Philippines is at war maintain their allegiance to their countries of origin even
(8) Citizens or subjects of a foreign country other than the after their naturalization. Hence, the phrase dual
United States, whose laws do not grant Filipinos the citizenship in R.A. No. 7160, sec. 40(d) and in R.A. No.
right to become naturalized citizens or subject thereof; 7854, sec. 20 must be understood as referring to dual
allegiance.
DENATURALIZATION
Process by which grant of citizenship is revoked. Consequently, persons with mere dual citizenship do not
fall under this disqualification. For candidates with dual
Grounds [C.A. 473, Sec. 18] upon the proper motion of the citizenship, it should suffice if, upon the filing of their
Sol. Gen. or the provincial fiscal, naturalization may be certificates of candidacy, they elect Philippine citizenship
cancelled when to terminate their status as persons with dual citizenship
(1) Naturalization certificate was fraudulently or illegally considering that their condition is the unavoidable
obtained [See Po Soon Tek v. Republic (1974)] consequence of conflicting laws of different states.
(2) If, within the five years next following the issuance, he
shall return to his native country or to some foreign LOSS AND REACQUISITION OF FILIPINO CITIZENSHIP
country and establish his permanent residence there GROUNDS FOR LOSS OF CITIZENSHIP
Remaining for more than one year in his native country (1) Naturalization in a foreign country [C.A. 63, sec.1(1)];
or the country of his former nationality, or two years in (2) Express renunciation or expatriation [Sec.1(2), CA 63];
any other foreign country, shall be considered as prima (3) Taking an oath of allegiance to another country upon
facie evidence of his intention of taking up his reaching the age of majority;
permanent residence in the same; (4) Accepting a commission and serving in the armed
(3) Petition was made on an invalid declaration of forces of another country, unless there is an offensive/
intention; defensive pact with the country, or it maintains armed
(4) Minor children of the person naturalized failed to forces in RP with RPs consent;
graduate from the schools mentioned in sec. 2, through (5) Denaturalization;
the fault of their parents, either by neglecting to support (6) Being found by final judgment to be a deserter of the
them or by transferring them to another school or AFP;
schools. (7) Marriage by a Filipino woman to an alien, if by the laws
(5) If he has allowed himself to be used as a dummy in of her husbands country, she becomes a citizen
violation of the Constitutional or legal provision thereof.
requiring Philippine citizenship as a requisite for the
exercise, use or enjoyment of a right, franchise or Expatriation is a constitutional right. No one can be
privilege. compelled to remain a Filipino if he does not want to. [Go
Gullian v. Government]
Naturalization is never final and may be revoked if one
commits acts of moral turpitude. [Republic v. Guy (1982)] Exception: A Filipino may not divest himself of Philippine

PAGE 42
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

citizenship in any manner while the Republic of the to all attendant liabilities and responsibilities under
Philippines is at war with any country. [C.A. 63, sec. 1(3)] existing laws of the Philippines and the following
conditions:
Loss of Philippine citizenship cannot be (1) Those intending to exercise their right of suffrage must
presumed.Considering the fact that admittedly, Osmea meet the requirements under Sec. 1, Art. V of the
was both a Filipino and an American, the mere fact that he Constitution, RA 9189, otherwise known as "The
has a certificate stating that he is an American does not Overseas Absentee Voting Act of 2003" and other
mean that he is not still a Filipino, since there has been NO existing laws;
EXPRESS renunciation of his Philippine citizenship. [Aznar (2) Those seeking elective public office in the Philippines
v. COMELEC (1995)] shall meet the qualifications for holding such public
office as required by the Constitution and existing laws
HOW MAY CITIZENSHIP BE REACQUIRED? and, at the time of the filing of the certificate of
(1) Naturalization[C.A. 63 and C.A. 473] candidacy, make a personal and sworn renunciation of
Now an abbreviated process, no need to wait for 3 years (1 any and all foreign citizenship before any public officer
year for declaration of intent, and 2 years for the judgment authorized to administer an oath;
to become executory) (3) Those appointed to any public office shall subscribe
and swear to an oath of allegiance to the Republic of
Requirements: the Philippines and its duly constituted authorities
(1) be 21 years of age prior to their assumption of office: provided, that they
(2) be a resident for 6 months renounce their oath of allegiance to the country where
(3) have good moral character they took that oath;
(4) have no disqualification (4) Those intending to practice their profession in the
Philippines shall apply with the proper authority for a
(2) Repatriation license or permit to engage in such practice; and
Repatriation results in the recovery of the original (5) That right to vote or be elected or appointed to any
nationality. Therefore, if he is a natural-born citizen before public office in the Philippines cannot be exercised by,
he lost his citizenship, he will be restored to his former or extended to, those who:
status as a natural-born Filipino. [Bengson III v. HRET (a) are candidates for or are occupying any public office in
(2001)] the country of which they are naturalized citizens;
and/or
Mere filing of certificate of candidacy is not a sufficient act (b) are in active service as commissioned or non-
of repatriation.Repatriation requires an express and commissioned officers in the armed forces of the
equivocal act. [Frivaldo v. COMELEC (1989)] country which they are naturalized citizens.

In the absence of any official action or approval by proper NATURAL-BORN CITIZENS AND PUBLIC OFFICE
authorities, a mere application for repatriation does not, NATURAL-BORN
and cannot, amount to an automatic reacquisition of the (1) Citizens of the Philippines from birth without having to
applicants Philippine citizenship. [Labo v. COMELEC perform any act to acquire or perfect their Philippine
(1989)] citizenship; and
(2) Thosewho elect Philippine citizenship in accordance with
(3) Legislative Act [Art. IV, Sec. 1(3)]
Both a mode of acquiring and reacquiring citizenship
The term "natural-born citizens," is defined to include
RA 9225 (CITIZENSHIP RETENTION AND RE-ACQUISITION ACT OF "those who are citizens of the Philippines from birth
2003) without having to perform any act to acquire or perfect
Sec. 3. Retention of Philippine Citizenship. Any provision their Philippine citizenship." [Tecson v. COMELEC (2004)]
of law to the contrary notwithstanding, natural-
born citizens of the Philippines who have lost their WHO MUST BE NATURAL-BORN?
Philippine citizenship by reason of their (1) President [Art. VII, Sec. 2]
naturalization as citizens of a foreign country are (2) Vice-President [Art. VII, Sec. 3]
hereby deemed to have re-acquired Philippine (3) Members of Congress [Sec. 3 and 6, Art. VI]
citizenship upon taking the following oath of (4) Justices of SC and lower collegiate courts [Sec. 7(1), Art.
allegiance to the Republic: xxx VIII]
(5) Ombudsman and his deputies [Sec. 8, Art. XI]
Natural-born citizens of the Philippines who, after the (6) Members of Constitutional Commissions
effectivity of this Act, become citizens of a foreign country (7) CSC [Art. IX-B, Sec. 1(1)]
shall retain their Philippine citizenship upon taking the (8) COMELEC [Art. IX-C, Sec.1]
aforesaid oath. (9) COA [Art. IX-D, Sec. 1(1)]
(10) Members of the central monetary authority [Art. XII,
Sec. 4 Derivative Citizenship. The unmarried child, Sec. 20]
whether legitimate, illegitimate or adopted, below (11) Members of the Commission on Human Rights [Art.
eighteen (18) years of age, of those who re-acquire XIII, Sec. 17(2)]
Philippine citizenship upon effectivity of this Act shall be The Constitutional provision(i.e. whose fathers are
deemed citizens of the Philippines. citizens)does not distinguish between legitimate or
illegitimate paternity. Civil Code provisions on illegitimacy
Sec. 5. Civil and Political Rights and Liabilities. Those govern private and personal relations, not ones political
who retain or re-acquire Philippine citizenship under this status. [Tecson v. COMELEC, supra, on the petition for
Act shall enjoy full civil and political rights and be subject disqualification against presidential candidate FPJ]

PAGE 43
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

National Economy & 100% Filipino 60-40 70-30


renewable for
Patrimony another 25
years.
GOALS Practice of Areas of Investment
(1) More equitable distribution of opportunities, income professions, save in as Congress may
and wealth cases provided by prescribe
(2) Sustained increase in amount of goods and services law [Art. XII, Sec. (percentage can be
produced by the nation for the benefit of the people 14[2]] higher)
(3) Expanding production as the key to raising the quality [Art. XII, Sec. 10]
of life for all, especially the underprivileged. Small-scale Operation of public
utilization of utility (Art. XII, Sec.
REGALIAN DOCTRINE natural resources, 11)
as may be provided (a) Cannot be for
All lands of the public domain, waters, minerals, coal,
by law [Art. XII, Sec. longer period
petroleum, and other mineral oils, all forces of potential
2[3]] than 50 years
energy, fisheries, forests or timber, wildlife, flora and fauna,
(b) Executive and
and other natural resources are owned by the State. With
managing
the exception of agricultural lands, all other natural
officers must be
resources shall not be alienated. [Art. XII, Sec. 2]
Filipino
REGALIAN DOCTRINE [JURA REGALIA]
A public utility is a business or service engaged in regularly
The King had title to all the land in the Philippines except supplying the public with some commodity or service of
so far as it saw fit to permit private titles to be acquired. public consequence. A joint venture falls within the
[Cario v. Insular Government (1909)]. In present context, purview of an association pursuant to Sec. 11, Art. XII and
ownership of all lands of the public domain is vested in the must comply with the 60%-40% Filipino-foreign
State. capitalization requirement. [JG Summit Holdings v. CA
(2001)]
The classification of public lands is an exclusive prerogative
of the Executive Department through the Office of the What capital is covered- The 60% requirement applies to
President. [Republic v. Register of Deeds of Quezon (1994)] both the voting control and the beneficial ownership of the
public utility. Therefore, it shall apply uniformly, separately,
Doctrine of Native Title and across the board to all classes of shares, regardless of
Ownership over native land is already vested on natives nomenclature or category, comprising the capital of the
even if they do not have formal titles [Cario v. Insular corporation. (e.g. 60% of common stock, 60% of preferred
Government (1909)] voting stock, and 60% of preferred non-voting stock.)
[Gamboa v. Teves (2012)]
NATIONALIST AND CITIZENSHIP REQUIREMENT
PROVISIONS Interpretation in line with Constitutions intent to ensure a
CITIZENSHIP REQUIREMENTS self-reliant and independent national economy effectively-
100% Filipino 60-40 70-30 controlled by Filipinos. [See Gamboa v. Teves (2011)]
Marine Wealth [Art. Natural Resources Advertising
XII, sec. 2[2]] [Art. XII, Sec. 2[1]] Industry In the original decision, only the voting stockwere subject to
[Art. XVI, the 60% requirement. [Id.]
(Co-production, Sec. 11]
Joint venture, There is some controversy in the interpretation of the
Production sharing resolution on the motion for reconsideration. (a) There is
agreements) the question of whether the grandfather ruleshould be
applied. (b)The dispositive merely denied the MRs, but did
Agreements shall not reiterate the newer interpretation.
not exceed a period
of 25 years In any case, the released SEC guidelines comply with the
renewable for strictest interpretation of Gamboa v. Teves.
another 25 years.
FILIPINO FIRST
Agricultural lands Educational
[Art. XII, Sec. 3] Institutions [Art. In the grant of rights, privileges, and concessions covering
(a) Lease: < 500 XIV, Sec. 4[2]] the national economy and patrimony, the State shall give
ha. preference to qualified Filipinos.
(b) Purchase,
homestead or The State shall regulate and exercise authority over foreign
grant: < 12 ha. investments within its national jurisdiction and in
(c) Private accordance with its national goals and priorities. [Art. XII,
corporations Sec. 10]
may lease not
more than The term patrimony pertains to heritage, and given the
1,000 ha. for history of the Manila Hotel, it has become a part of our
25 years, national economy and patrimony. Thus, the Filipino First

PAGE 44
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

policy provision of the Constitution is applicable. Such FTAA SERVICE CONTRACT


provision is per se enforceable, and requires no further (1987 Const.) (1973 Const.)
guidelines or implementing rules or laws for its operation. productive enterprise,
[Manila Prince Hotel v. GSIS, (1990)] operations of the exploration
and exploitation of the
The State shall promote the preferential use of Filipino resources or the disposition of
labor, domestic materials and locally produced goods, and marketing or resources
adopt measures that help make them competitive. [Art. XII,
Sec. 12] Service Contracts not prohibited. Even supposing FTAAs are
service contracts, the latter are not prohibited under the
EXPLORATION, DEVELOPMENT AND UTILIZATION OF Constitution. [Justification: A verba legis interpretation
NATURAL RESOURCES does not support an intended prohibition. The members of
the CONCOM used the terms service contracts and
The President may enter into agreements with foreign- financial and technical assistance interchangeably.] [La
owned corporations involving eithertechnical or financial Bugal-Blaan Tribal Assn. v. Ramos, (Dec. 2004)]
assistance for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils The following are valid:
according to the general terms and conditions provided by (1) Financial and Technical Assistance Agreements
law, based on real contributions to the economic growth (FTAA) not a prohibited agreement in the
and general welfare of the country. In such agreements, contemplation of the Constitution
the State shall promote the development and use of local (2) Philippine Mining Law (RA 7942)
scientific and technical resources. [Art. XII, Sec. 2, par. 4] (3) Its Implementing Rules and Regulations, insofar as
they relate to financial and technical agreements [La
The State, being the owner of the natural resources, is Bugal-Blaan Tribal Assn. v. Ramos (Dec. 2004)]
accorded the primary power and responsibility in the
exploration, development and utilization thereof. As such it The Constitutionshould be construed to grant the
may undertake these activities through four modes: President and Congress sufficient discretion and
(1) The State may directly undertake such activities; reasonable leeway to enable them to attract foreign
(2) The State may enter into co-production, joint venture or investments and expertise, as well as to secure for our
production-sharing agreements with Filipino citizens or people and our posterity the blessings of prosperity and
qualified corporations; peace.
(3) Congress may, by law, allow small-scale utilization of It is not unconstitutional to allow a wide degree of
natural resources by Filipino citizens; or discretion to the Chief Executive, given the nature and
(4) For the large-scale exploration, development and complexity of such agreements, the humongous amounts
utilization of minerals, petroleum and other mineral of capital and financing required for large-scale mining
oils, the President may enter into agreements with operations, the complicated technology needed, and the
foreign-owned corporations involving technical or intricacies of international trade, coupled with the States
financial assistance. [La Bugal-BLaan Tribal Assn. v. need to maintain flexibility in its dealings, in order to
Ramos, [Jan. 2004)] preserve and enhance our countrys competitiveness in
world markets. [La Bugal-Blaan Tribal Assn. v. Ramos, id.]
FTAA SERVICE CONTRACT
(1987 Const.) (1973 Const.) FRANCHISES, AUTHORITY AND CERTIFICATES FOR
Parties PUBLIC UTILITIES
Franchise, certificate or any other form of authorization for
Only the President (in A Filipino citizen, corporation the operation of public utilities ONLY to citizens of the
behalf of the State), and or association with a foreign Philippines, or corporations at least 60% of whose capital
only with corporations person or entity is Filipino-owned. [Art. VII, Sec. 11]

NATURE OF THE FRANCHISE:


Size of Activities (1) It is a privilege not a right
Only large-scale Contractor provides all (2) Shall NOT be exclusive;
exploration, necessary services and (3) Shall NOT be for a period of more than 50 years;
development and technology and the requisite (3) Shall be subject to amendment, alteration or repeal by
utilization financing, performs the Congress. [Id.]
exploration work obligations,
and assumes all exploration Jurisprudence:
risks (1) Congress does not have the exclusive power to issue
franchises. Administrative bodies (i.e. LTFRB, Energy
Natural Resources Covered Regulatory Board) may be empowered by law to do so.
Minerals, petroleum and Virtually the entire range of [Albano v. Reyes (1989)]
other mineral oils the countrys natural (2) What constitutes a public utility is not the ownership
resources but the use to the public. The Constitution requires a
Scope of Agreements franchise for the operation of public utilities. However,
it does not require a franchise before one can own the
Involving either financial Contractor provides financial facilities needed to operate a public utility so long as it
or technical assistance or technical resources, does not operate them to serve the public. [Tatad v.
undertakes the exploitation or Garcia (1995)] E.g. X Company may own an airline
production of a given resource,
or directly manages the

PAGE 45
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

without the need of a franchise. But in operating an air HOWEVER, land sold to an alien which was later
transport business, franchise is required. transferred to a Filipino citizen OR when the alien later
becomes a Filipino citizen can no longer be recovered by
ACQUISITION, OWNERSHIP AND TRANSFER OF PUBLIC the vendor, because there is no longer any public policy
AND PRIVATE LANDS involved. [Republic v. IAC (1989)]
Lands of the Public Domain are classified into:
(1) Agricultural Lands PRACTICE OF PROFESSIONS
(2) Forest or Timber Lands The practice of all profession in the Philippines shall be
(3) Mineral Lands limited to Filipino citizens, save in the case prescribed by
(4) National Park [Art. XII, Sec. 3] law. [Art. XII, Sec. 14]
Note: The classification of public lands is a function of the
ORGANIZATION AND REGULATION OF
executive branch, specifically the Director of the Land CORPORATIONS, PRIVATE AND PUBLIC
Management Bureau (formerly Director of Lands). The STEWARDSHIP CONCEPT
decision of the Director, when approved by the Secretary of
the DENR, as to questions of fact, is conclusive upon the The use of property bears a social function, and all
courts. [Republic v. Imperial (1999)]. economic agents shall contribute to the common good.

Alienable lands of the public domain shall be limited to Individuals and private groups, including corporations,
agricultural lands. [Art. XII, Sec. 3] cooperatives, and similar collective organizations, shall
have the right to own, establish, and operate economic
To prove that the land subject of an application for enterprises, subject to the duty of the State to promote
registration is alienable, an applicant must conclusively distributive justice and to intervene when the common
establish the existence of a positive act of the government good so demands. [Art. XII, Sec. 6]
such as a presidential proclamation or an executive order
or a legislative act or statute. [Republic v. Candymaker, Inc. The State shall apply the principles of agrarian reform or
(2006)] stewardship, whenever applicable in accordance with law,

Foreshore land is that part of the land which is between the in the disposition or utilization of other natural resources,
high and low water, and left dry by the flux and reflux of including lands of the public domain under lease or
the tides. It is part of the alienable land of the public concession suitable to agriculture, subject to prior rights,
domain and may be disposed of only by lease and not homestead rights of small settlers, and the rights of
otherwise. [Republic v. Imperial, supra] indigenous communities to their ancestral lands. [Art. XIII,
Sec. 6]
Private corporations or associations may not hold such
alienable lands of public domain except by lease, for a MONOPOLIES, RESTRAINT OF TRADE AND UNFAIR
period not exceeding 25 years, and not to exceed 1000 COMPETITION
hectares in area. MONOPOLIES

Citizens of the Philippines may lease not more than 500 The State shall regulate or prohibit monopolies when the
ha., or acquire not more than 12 hectares thereof by public interest so requires. No combinations in restraint of
purchase, homestead, or grant. [Art. XII, Sec. 3] trade or unfair competition shall be allowed. [Art. XII, Sec.
19]
PRIVATE LANDS
General Rule: No private lands shall be transferred or Although the Constitution enshrines free enterprise as a
conveyed except to individuals, corporations, or policy, it nevertheless reserves to the Government the
associations qualified to acquire or hold lands of the public power to intervene whenever necessary for the promotion
domain. [Art. XII, Sec. 7] of the general welfare. [Philippine Coconut Dessicators v.
PCA (1998)]
Exceptions:
(1) Hereditary succession (art. XII, sec. 7) Monopolies are not per se prohibited by the Constitution
(2) A natural-born citizen of the Philippines who has lost but may be permitted to exist to aid the government in
his Philippine citizenship may be a transferee of private carrying on an enterprise or to aid in the performance of
lands, subject to limitations provided by law. (art. XII, various services and functions in the interest of the public.
sec. 8) Nonetheless, a determination must first be made as to
whether public interest requires a monopoly. As
Consequence of sale to non-citizens: monopolies are subject to abuses that can inflict severe
Any sale or transfer in violation of the prohibition is null prejudice to the public, they are subject to a higher level of
and void. [Ong Ching Po. v. CA (1994)]. When a disqualified State regulation than an ordinary business undertaking.
foreigner later sells it to a qualified owner (e.g. Filipino [Agan, Jr. v. PIATCO (2003)]
citizen), the defect is cured. The qualified buyer owns the
land. [See Halili v. CA (1998)] CENTRAL MONETARY AUTHORITY [ART. XII, SEC. 20]
Functions:
Can a former owner file an action to recover the property? (1) Provide policy directions in the areas of money,banking,
Yes. The Court in Philippine Banking Corp. v. Lui She, (1967) and credit;
abandoned the application of the principle of in pari delicto. (2) Supervise the operations of banks;
Thus, the action will lie. (3) Exercise such regulatory powers as may be provided by
law over the operations of finance companies and other
institutions performing similar functions

PAGE 46
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

COMMISSION ON HUMAN RIGHTS


Qualifications of the Governors: (1) There is hereby created an independent office called the
(1) Natural-born Filipino; Commission on Human Rights.
(2) Known probity, integrity and patriotism; (2) The Commission shall be composed of a Chairman and
(3) Majority shall come from the private sector four Members who must be natural-born citizens of the
Subject to such other qualifications and disabilities as may Philippines and a majority of whom shall be members
be provided by law of the Bar. The term of office and other qualifications
and disabilities of the Members of the Commission
Until the Congress otherwise provides, the Central Bank of shall be provided by law.
the Philippines operating under existing laws, shall (3) Until this Commission is constituted, the existing
function as the central monetary authority. Currently, the Presidential Committee on Human Rights shall
central monetary authority is the Bangko Sentral ng continue to exercise its present functions and powers.
Pilipinas. (4) The approved annual appropriations of the Commission
shall be automatically and regularly released. [Art. XIII,
Sec. 17]

Social Justice & Human The Commission on Human Rights shall have the
following powers and functions:
Rights (1) Investigate, on its own or on complaint by any party, all
forms of human rights violations involving civil and
CONCEPT OF SOCIAL JUSTICE political rights;
1987 CONSTITUTION (2) Adopt its operational guidelines and rules of procedure,
and cite for contempt for violations thereof in
The State shall promote social justice in all phases of
accordance with the Rules of Court;
national development. [Art. II, Sec. 10]
(3) Provide appropriate legal measures for the protection of
human rights of all persons within the Philippines, as
The Congress shall give highest priority to the enactment well as Filipinos residing abroad, and provide for
of measures that protect and enhance the right of all the preventive measures and legal aid services to the
people to human dignity, reduce social, economic, and under-privileged whose human rights have been
political inequalities, and remove cultural inequities by violated or need protection;
equitably diffusing wealth and political power for the (4) Exercise visitorial powers over jails, prisons, or detention
common good. facilities;
(5) Establish a continuing program of research, education,
To this end, the State shall regulate the acquisition, and information to enhance respect for the primacy of
ownership, use, and disposition of property and its human rights;
increments. [Art. XIII, Sec. 1] (6) Recommend to Congress effective measures to promote
human rights and to provide for compensation to
victims of violations of human rights, or their families;
The promotion of social justice shall include the (7) Monitor the Philippine Government's compliance with
international treaty obligations on human rights;
commitment to create economic opportunities based on
freedom of initiative and self-reliance. [Art. XIII, Sec. 2] (8) Grant immunity from prosecution to any person whose
testimony or whose possession of documents or other
evidence is necessary or convenient to determine the
Social justice is "neither communism, nor despotism, nor truth in any investigation conducted by it or under its
atomism, nor anarchy," but the humanization of laws and authority;
the equalization of social and economic forces by the State (9) Request the assistance of any department, bureau,
so that justice in its rational and objectively secular office, or agency in the performance of its functions;
conception may at least be approximated. Social justice (10) Appoint its officers and employees in accordance with
means the promotion of the welfare of all the people, the law; and
adoption by the Government of measures calculated to (11) Perform such other duties and functions as may be
insure economic stability of all the competent elements of provided by law. [Art. XIII, Sec. 18]
society, through the maintenance of a proper economic
and social equilibrium in the interrelations of the members
of the community, constitutionally, through the adoption As should at once be observed, only the first of the
of measures legally justifiable, or extra-constitutionally, enumerated powers and functions bears any resemblance
to adjudication or adjudgment. The Constitution clearly
through the exercise of powers underlying the existence of
all governments on the time-honored principle of salus and categorically grants to the Commission the power to
investigate all forms of human rights violations involving civil
populi est suprema lex. Social justice, therefore, must be
and political rights. But it cannot try and decide cases (or
founded on the recognition of the necessity of
interdependence among divers and diverse units of a hear and determine causes) as courts of justice, or even
quasi-judicial bodies do. To investigate is not to adjudicate
society and of the protection that should be equally and
evenly extended to all groups as a combined force in our or adjudge. Whether in the popular or the technical sense,
social and economic life, consistent with the fundamental these terms have well understood and quite distinct
meanings. [Cario v. CHR (1991)]
and paramount objective of the state of promoting the
health, comfort, and quiet of all persons, and of bringing
about "the greatest good to the greatest number."
[Calalang v. Williams (1940)]

PAGE 47
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION

Education, Science, HIGHEST BUDGETARY PRIORITY TO EDUCATION


The State shall assign the highest budgetary priority to
Technology, Arts, Culture and education and ensure that teaching will attract and retain
its rightful share of the best available talents through
Sports adequate remuneration and other means of job
satisfaction and fulfillment. [Art. XIV, Sec. 5 (5)]
RIGHT TO EDUCATION PROVISIONS [ART. XIV] Allocation of larger share to debt service vis--vis
Sec. 1. The State shall protect and promote the right of all education is not unconstitutional. The DECS already has
citizens to quality education at all levels, and shall take the highest budgetary allocation among all department
appropriate steps to make such education accessible to all. budgets. Congress can exercise its judgment and power to
appropriate enough funds to reasonably service debt. Art.
Sec. 2. The State shall: XIV, Sec. 5(5) is directive. [Guingona v. Carague (1991)]
(1) Establish, maintain, and support a complete, adequate,
and integrated system of education relevant to the
needs of the people and society;
(2) Establish and maintain, a system of free public
education in the elementary and high school levels.
Without limiting the natural rights of parents to rear
their children, elementary education is compulsory for
all children of school age;
(3) Establish and maintain a system of scholarship grants,
student loan programs, subsidies, and other incentives
which shall be available to deserving students in both
public and private schools, especially to the under-
privileged;
(4) Encourage non-formal, informal, and indigenous
learning systems, as well as self-learning, independent,
and out-of-school study programs particularly those
that respond to community needs; and
(5) Provide adult citizens, the disabled, and out-of-school
youth with training in civics, vocational efficiency, and
other skills.

ACADEMIC FREEDOM
Academic freedom shall be enjoyed in all institutions of
higher learning. [Art. XIV, Sec. 5 (2)]

FOUR ESSENTIAL FREEDOMS OF A UNIVERSITY


(1) Who may teach
(2) What may be taught
(3) How it shall teach
(4) Who may be admitted to study [Garcia v. Faculty
Admission Committee (1975) citing J. Frankfurter,
concurring in Sweezy v. New Hampshire, 354 US 232
(1937)]

Institutional academic freedom includes the right of the


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

Academic freedom encompasses the independence of an


academic institution to determine for itself (1) who may
teach, (2) what may be taught, (3) how it shall teach, and
(4) who may be admitted to study.

The right to discipline the student likewise finds basis in


the freedom "what to teach." Indeed, while it is
categorically stated under the Education Act of 1982 that
students have a right "to freely choose their field of study,
subject to existing curricula and to continue their course
therein up to graduation," such right is subject to the
established academic and disciplinary standards laid down
by the academic institution. [DLSU Inc., v. CA (2007)]

PAGE 48
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

PAGE 49
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

Fundamental Powers of the The legislative determination as to what is a proper

State exercise of its police powers is not final or conclusive, but is


subject to the supervision of the court.[US v. Toribio (1910)
citing Mr. Justice Brown in his opinion in the case of Lawton
CONCEPT, APPLICATION AND LIMITS v. Steele (152 U.S., 133, 136)]

POLICE POWER The SC upheld the validity of Administrative Orders which


Definition converted existing mine leases and other mining
It is the inherent and plenary power of the state which agreements into production-sharing agreements within
enables it to prohibit all that is hurtful to the comfort, one year from effectivity. The subject sought to be
safety and welfare of society. [Ermita-Malate Hotel and governed by the AOs are germane to the object and
Motel Operators Association, Inc. v. Mayor of Manila (1967)] purpose of E.O. 279 and that mining leases or agreements
granted by the State are subject to alterations through a
Scope and Limitations reasonable exercise of police power of the State. [Miners
General Coverage Association of the Philippines v. Factoran (1995)]
"The police power of the State," one court has said, "is a
power coextensive with self-protection, and is not inaptly Illustrations on the Exercise of Police Power
termed the 'law of overruling necessity.' [Rubi v. Provincial General Welfare v. Property rights. RA 9257, the Expanded
Board (1919)] Senior Citizens Act of 2003, is a legitimate exercise of
police power. Administrative Order No. 177 issued by the
the state, in order to promote the general welfare, may Department of Health, providing that the 20% discount
interfere with personal liberty, with property, and with privilege of senior citizens shall not be limited to the
business and occupations. Persons may be subjected to all purchase of unbranded generic medicine but shall extend
kinds of restraints and burdens, in order to secure the to both prescription and non-prescription medicine,
general comfort health and prosperity of the state and to whether branded or generic, is valid. [Carlos Superdrug
this fundamental aim of our Government, the rights of the Corporation v. DSWC et al. (2007)]
individual are subordinated. [Ortigas and Co., Limited
Partnership v. Feati Bank and Trust Co. (1979)] National Security v. Property Rights. Police power and
national security: SC upheld the constitutionality of RA 1180
...has been properly characterized as the most essential, (An Act to Regulate the Retail Business) which sought to
insistent and the least limitable of powers, [Ermita-Malate nationalize the retail trade business by prohibiting aliens in
Hotel and Motel Operators Assoc. v. Mayor of Manila (1967) general from engaging directly or indirectly in the retail
Cf. Ichong v. Hernandez, (1957)] extending as it does "to all trade.
the great public needs."[Noble State Bank v. Haskell, 219
U.S. 412] The disputed law was enacted to remedy a real actual
threat and danger to national economy posed by alien
Police Power cannot be bargained away through treaty or dominance and control of the retail business; the
contract. [Ichong v. Hernandez (1957)] enactment clearly falls within the scope of the police
power of the State, thru which and by which it protects its
Taxation may be used as an implement of police power own personality and insures its security and future.
[Lutz v. Araneta (1955); Tiu v. Videogram Regulatory Board [Ichong v. Hernandez (1957)]
(1987); Gaston v. Republic Planters Bank (1988); Osmena v.
Orbos (1993)] Scope of the police power: Since the Courts cannot foresee
the needs and demands of public interest and welfare,
Eminent domain may be used as an implement to attain they cannot delimit beforehand the extent or scope of the
the police objective [Association of Small Landowners v. police power by which and through which the state seeks
Secretary of Agrarian Reform (1989)] to attain or achieve public interest and welfare.

Police power prevails over contracts. [PNB v. Office of the Public Safety. Agustin questions President Marcos Letter
President (1996)] of Instruction No. 229 compelling owners of motor vehicles
to install specific early warning devices to reduce road
Specific Coverage accidents.
(1) Public Health
(2) Public Morals Police power, public safety: The Court identified police
(3) Public Safety power as a dynamic agency, suitably vague and far from
(4) Public Welfare precisely defined, rooted in the conception that men in
organizing the state and imposing upon its government
Test of Reasonability limitations to safeguard constitutional rights did not
(1) Lawful subject intend to enable an individual citizen or a group of citizens
(2) Lawful means to obstruct unreasonably the enactment of such salutary
(3) Least restrictions of individual right measures calculated to communal peace, safety, good
order, and welfare. According to the Court, a heavy burden
The limit to police power is reasonability. The Court looks lies in the hands of the petitioner who questions the states
at the test of reasonability to decide whether it encroaches police power if it was clearly intended to promote public
on the right of an individual. So long as legitimate means safety. [Agustin v. Edu, (1979)]
can reasonably lead to create that end, it is reasonable.
[Morfe v. Mutuc (1968)]

PAGE 50
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

Public Morals v. Property rights and Right to privacy.


Ermita Malate Hotel and Motel Operations Assoc. assails In Didipio Earth Savers Multipurpose Association (DESAMA)
the constitutionality of Ordinance No. 4760. The mantle of v. Gozun (2006), examples were (a) trespass without actual
protection associated with the due process guaranty does eviction; (b) material impairment of the value; (c)
not cover petitioners. This particular manifestation of a prevention of the ordinary uses (e.g. easement).
police power measure being specifically aimed to
safeguard public morals is immune from such imputation But anything taken by virtue of police power is not
of nullity resting purely on conjecture and unsupported by compensable (e.g. abatement of a nuisance), as usually
anything of substance There is no question that the property condemned under police power is noxious
challenged ordinance was precisely enacted to minimize [DESAMA v. Gozun (2006)]
certain practices hurtful to public morals. [Ermita-Malate
Motel and Motel Operators Assn. v. City Mayor of Manila Examples from Jurisprudence:
(1967)] (1) The imposition of an aerial easement of right-of-way
was held to be taking. The exercise of the power of
The case of White Light v. City of Manila dealt with the eminent domain does not always result in the taking or
ordinance that prohibits two practices: the wash-up rate appropriation of title to the expropriated property; it
admission and renting out a room more than twice per may also result in the imposition of a burden upon the
day. owner of the condemned property, without loss of title
or possession. [NPC v. Gutierrez (1991)]
This case churned out three standards for judicial review: (2) May include trespass without actual eviction of the
the strict scrutiny test for laws dealing with freedom of the owner, material impairment of the value of the
mind and curtailment of political process and the rational property or prevention of the ordinary uses for which
basis standard of review for economic legislation. A third the property was intended. [Ayala de Roxas v. City of
standard was created known as the immediate scrutiny for Manila (1907)]
evaluating standards based on gender and legitimacy. (3) A municipal ordinance prohibiting a building which
would impair the view of the plaza from the highway
The SC applied strict scrutiny because the ordinance was likewise considered taking. [People v. Fajardo
restricts patrons right to liberty. Legitimate sexual (1958)]
behavior, which is constitutionally protected, will be unduly
curtailed by the ordinance. Apart from the right to privacy, When the State exercises the power of eminent domain in
the ordinance also proscribes other legitimate activities the implementation of its agrarian reform program, the
most of which are grounded on the convenience of having constitutional provision which governs is Section 4, Article
a place to stay during the short intervals between travels. XIII of the Constitution. Notably, this provision also
[White Light Corporation, et al v. City of Manila (2009)] imposes upon the State the obligation of paying the
landowner compensation for the land taken, even if it is for
Limitations when police power is delegated: when police the governments agrarian reform purposes. [Land Bank of
power is delegated the Philippines v. Honeycomb Farms Corporation (2012)]
(1) Express grant by law [e.g. Secs. 16, 391, 447, 458 and
468, R.A. 7160, for LGUs] TAXATION
(2) Limited within its territorial jurisdiction [for local Definition and Scope
government units] It is the enforced proportional contributions from persons
(3) Must not be contrary to law. and property, levied by the State by virtue of its
sovereignty, for the support of the government and for all
EMINENT DOMAIN public needs.
Definition and Scope It is as broad as the purpose for which it is given.
The power of eminent domain is the inherent right of the
State to condemn private property to public use upon Purpose:
payment of just compensation. It is also known as the (1) To raise revenue
power of expropriation. (2) Tool for regulation
(3) Protection/power to keep alive
It is well settled that eminent domain is an inherent power
of the state that need not be granted even by the Tax for special purpose [Sec. 29 (3), Art. VI]: Treated as a
fundamental law. Sec. 9, Art. III merely imposes a limit on special fund and paid out for such purpose only; when
the governments exercise of this power. [Republic v Tagle purpose is fulfilled, the balance, if any shall be transferred
(1998)]. to the general funds of the Government. [See: Osmena v.
Orbos (1993)]
Who may exercise the power?
Congress and, by delegation, the President, administrative Scope and Limitation
bodies, local government units, and even private General Limitations
enterprises performing public services may exercise the (1) Power to tax exists for the general welfare; should be
power of eminent domain. exercised only for a public purpose
(2) Might be justified as for public purpose even if the
Application immediate beneficiaries are private individuals
When is there taking in the constitutional case? (3) Tax should not be confiscatory: If a tax measure is so
When the owner is deprived of his proprietary rights there unconscionable as to amount to confiscation of
is taking of private property. It may include (1) diminution property, the Court will invalidate it. But invalidating a
in value; (2) prevention of ordinary use; (3) deprivation of tax measure must be exercised with utmost caution,
beneficial use.

PAGE 51
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

otherwise, the States power to legislate for the public REQUISITES FOR VALID EXERCISE
welfare might be seriously curtailed
(4) Taxes should be uniform and equitable [Sec. 28(1), Art. POLICE POWER
VI] Tests for Validity of Exercise of Police Power
(1) Lawful Subject: Interest of the general public (as
Judicial review for unconscionable and unjust tax amounting distinguished from a particular class required exercise).
to confiscation of property This means that the activity or property sought to be
The legislature has discretion to determine the nature, regulated affects the general welfare. [Taxicab
object, extent, coverage, and situs of taxation. But where a Operators v. Board of Transportation (1982)]
tax measure becomes so unconscionable and unjust as to (2) Lawful Means: Means employed are reasonably
amount to confiscation of property, courts will not hesitate necessary for the accomplishment of the purpose, and
to strike it down, for despite all its plenitude, the power to are not unduly oppressive. [Tablarin v. Gutierrez (1987)]
tax cannot override constitutional prescriptions. [Tan v. del (3) Least Restrictions of Individual Rights: It must also be
Rosario (1994)] evident that no other alternative for the
accomplishment of the purpose less intrusive of private
Specific Limitations rights can work. [White Light Corporation, et al v. City of
(1) Uniformity of taxation Manila (2009)]
General Rule: simply geographical uniformity, meaning it
operates with the same force and effect in every place EMINENT DOMAIN
where the subject of it is found Requisites
(1) Private property
Exception: Rule does not prohibit classification for (2) Genuine necessity - inherent/presumed in legislation,
purposes of taxation, provided the ff requisites are met: but when the power is delegated (e.g. local
(SNAGAE) government units), necessity must be proven.
(a) standards used are Substantial and Not Arbitrary (3) For public use - Court has adopted a broad definition of
(b) if the classification is Germane to achieve the legislative public use, following the U.S. trend
purpose (4) Payment of just compensation
(c) if that classification Applies to both present and future (5) Due process [Manapat v. CA (2007)]
conditions, other circumstances being equal
(d) applies Equally to members of the same class. [Pepsi TAXATION
Cola v. City of Butuan (1968)]. Equal protection clause: taxes should be uniform (persons
or things belonging to the same class shall be taxed at the
(2) Tax Exemptions same rate) and equitable (taxes should be apportioned
No law granting any tax exemption shall be passed among the people according to their ability to pay)
without the concurrence of a majority of all the
Members of Congress [Sec. 28 (4), Art. VI] Progressive system of taxation: The rate increases as the
tax base increases, with basis as social justice.
A corollary power but must be for a public purpose, Taxation as an instrument for a more equitable distribution
uniform and equitable and in conformity with the equal of wealth
protection clause
Delegated tax legislation: Congress may delegate law-
Tax exemptions are granted gratuitously and may be making authority when the Constitution itself specifically
revoked at will, except when it was granted for valuable authorizes it.
consideration
SIMILARITIES AND DIFFERENCES
May either be constitutional or statutory. SIMILARITIES (NACHURA)
(1) Inherent in the State (Exercised even without need of
If statutory, it has to have been passed by majority of all the express constitutional grant)
members of Congress [Sec. 28 (4), Art. VI] (2) Necessary and indispensable (State cannot be effective
without them)
Constitutional exemptions [sec. 28(3), Art. VI] (3) Method by which state interferes with private property
Requisite: Exclusive Use (4) Presuppose equivalent compensation
(a) Educational institutions (both profit and non-profit used (5) Exercised primarily by the legislature
actually, directly and exclusively for educational
purposes): Benefits redound to students, but only DIFFERENCES
applied to property taxes and not excise taxes Police Power Eminent Domain Taxation
(b) Charitable institutions: Religious and charitable
institutions give considerable assistance to the State in Compensation
the improvement of the morality of the people and the None Just None
care of the indigent and the handicapped (The altruistic compensation (The protection
(c) Religious property:Charitable Institutions, churches, and feeling that one (Full and fair given and public
parsonages or convents appurtenant thereto, mosques, has contributed equivalent of the improvements
non-profit cemeteries, and all lands, buildings and to the public property taken) instituted by the
improvements, actually, directly and exclusively used good required. State because of
for religious, charitable or educational purposes [NACHURA]) these taxes
[NACHURA])

PAGE 52
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

Police Power Eminent Domain Taxation License Fee Tax


Use of Property
Not Appropriated for Use taxing power Object
appropriated for public use as an implement
public use for the Paid for the privilege of Persons or property
attainment of a doing something and may
legitimate police be revoked when public
objectiveto interest so requires
regulate a Effect of Non-Payment
business or trade Business becomes illegal Business or activity does
Objective not become illegal
Property taken Earn revenue for
for public use; it the government DELEGATION
is not necessarily
noxious POLICE POWER
Legislature
Coverage Police power is lodged primarily in the national legislature.
Liberty and Property rights Property rights
Property only only Executive
By virtue of a valid delegation of legislative power, it may
POLICE POWER V. EMINENT DOMAIN also be exercised by the president, administrative bodies,
Primary Purpse: Police Power- for general comfort, health and lawmaking bodies of LGUs. [Sec. 16, R.A. 7160]
and prosperity; Eminent Domain- for public use
...this power is limited only by the Acts of Congress and
Note:In the exercise of police power, the deprivation of the those fundamentals principleswhich lie at the foundation of
use of the property may be total, but it will not constitute all republican forms of government. An Act of the
compensable taking if nobody else acquires use of the Legislature which is obviously and undoubtedly foreign to
property or any interest therein. [Dipidio Earth-Savers any of the purposes of the police power and interferes with
Multipurpose Association v. Gozun (2006)] the ordinary enjoyment of property would, without doubt,
be held to be invalid.[Churchill and Tait v. Rafferty (1915)]
Parties Exercising the Power: Police Power- only by the
government; Eminent Domain- may be exercised by Rep. Act No. 7924 does not grant the MMDA with police
private entities power, let alone legislative power, and all its functions are
administrative in nature. [MMDA v. Bel-Air Village
POLICE POWER V.TAXATION Association (2000)]
Primary Purpose: Police Power- to regulate; Taxation
Power- to raise revenue BUT it is not precludedand in fact is duty-boundto
confiscate and suspend or revoke drivers' licenses in the
Note: if regulation is the primary purpose, the fact that exercise of its mandate of transport and traffic
revenue is incidentally raised does not make the imposition management, as well as the administration and
a tax. [Gerochi v. Department of Energy (2007)] implementation of all traffic enforcement operations,
traffic engineering services and traffic education programs.
Basis: Police Power- self-preservation and self-protection; [MMDA v. Garin (2005); Sec. 3(b), Rep. Act No. 7924]
Taxation Power: Life Blood Theory
EMINENT DOMAIN
LICENSE FEE [PP] V. TAX The general power to exercise the right of eminent domain
License Fee Tax must not be confused with the right to exercise it in
a particular case.
Basis
Police Power: to regulate Taxation Power: to raise The power of the legislature to confer, upon municipal
revenue corporations and other entities within the State, general
authority to exercise the right of eminent domain cannot be
Limitation questioned by the courts, but that general authority of
Amount is limited to: (a) Rate or amount to be municipalities or entities must not be confused with the
cost of permit and (b) collected is unlimited right to exercise it in particular instances.
reasonable police provided not confiscatory
regulation The moment the municipal corporation or entity attempts
to exercise the authority conferred, it must comply with the
Exception: when the license conditions accompanying the authority. The necessity for
fee is imposed on a non- conferring the authority upon a municipal corporation to
useful occupation, such as exercise the right of eminent domain is admittedly within
the practice of hygienic and the power of the legislature.
aesthetic massage in
Physical Therapy But whether or not the municipal corporation or entity is
Organization v. Municipal exercising the right in a particular case under the
Board of Manila (1957) conditions imposed by the general authority is a question

PAGE 53
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

which the courts have the right to inquire into. [City of (1) Civil rights rights that belong to an individual by virtue
Manila v. Chinese Community of Manila (1919)] of his citizenship in a state or community (e.g. rights to
property, marriage, freedom to contract, equal
When a statute or charter or by general law has conferred protection, etc.)
the right of eminent domain upon a private entity. [Tenorio (2) Political rights rights that pertain to an individuals
v. Manila Railroad Co (1912)] citizenship vis--vis the management of the
government (e.g. right of suffrage, right to petition
As Exercised By Congress As Exercised By Delegates government for redress, right to hold public office, etc.)
(3) Social and economic rights rights which are intended
Extent of Power to insure the well-being and economic security of the
Pervasive and all- Can only be as broad as individual
encompassing the enabling law and the (4) Rights of the accused civil rights intended for the
conferring authorities want protection of a person accused of any crime
it to be
BASES AND PURPOSE
Question of Necessity Bases:
Political question Justiciable question. RTC (1) Importance accorded to the dignity andworth of the
has to determine whether individual.
there is a genuine necessity (2) Protection against arbitrary actions of government and
for its exercise, as well as other members of society
what the propertys value
is. Purpose:
(1) To preserve democratic ideals
If not justiciable, theres (2) To safeguard fundamental rights
grant of special authority (3) To promote the happiness of an individual
for special purpose
The Bill of Rights is designed to preserve the ideals of liberty,
equality and security "against the assaults of opportunism,
Re: Private Property
the expediency of the passing hour, the erosion of small
Delegate cannot encroachments, and the scorn and derision of those who
expropriate private have no patience with general principles." (Justice
property already devoted Cardozo, Nature of Judicial Process, 90-93; Tanada and
to public use Fernando, Constitution of the Philippines, 1952 ed., 71.)
[Philippine Blooming Mills Employees Organization v.
TAXATION Philippine Blooming Mills Co., Inc. (1973)]
(1) legislature (primarily)
(2) local legislative bodies [Sec. 5, Art. X] In the pithy language of Mr. Justice Robert Jackson, the
(3) President (to a limited extent, when granted delegated purpose of the Bill of Rights is to withdraw "certain
tariff powers under Sec. 28 (2) Art. VI subjects from the vicissitudes of political controversy, to
place them beyond the reach of majorities and officials,
and to establish them as legal principles to be applied by
the courts. One's rights to life, liberty and property, to free
speech, or free press, freedom of worship and assembly,
Private Acts and the Bill of and other fundamental rights may not be submitted to a
vote; they depend on the outcome of no elections." [West
Rights Virginia State Board of Education v. Barnette, 319 U.S. 624,
638]
IN GENERAL
It is a declaration and enumeration of a person's ACCOUNTABILITY
fundamental civil and political rights. It also Sec. 2, Art. III shall apply only against law officials or
imposessafeguards against violations by the government, people working as agents of government concerned about
by individuals, or by groups of individuals. being able to procure evidence. [People v. Marti (1991)]

The Bill of Rights governs the relationship between the Sec. 3 of Art. XIII of the Constitution requires the State to
individual and the state. Its concern is not the relation give full protection to labor. We cannot be faithful to this
between individuals, between a private individual and duty if we give no protection to labor when the violator of
other individuals. What the Bill of Rights does is to declare its rights happens to be private parties like private
some forbidden zones in the private sphere inaccessible to employers. A private person does not have a better right
any power holder. (Sponsorship Speech of Commissioner than the government to violate an employee's right to due
Bernas, Record of the Constitutional Commission, Vol. 1, p. process. To be sure, violation of the particular right of
674; July 17, 1986; Emphasis supplied) [People v. Marti employees to security of tenure comes almost always from
(1991)] their private employers. [Serrano v. NLRC (2000)]

It is generally self-executing.

Article III contains the chief protection for human rights but
the body of the Constitution guarantees other rights as
well.

PAGE 54
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

Due Process NOTED EXCEPTIONS TO DUE PROCESS


(1) The conclusive presumption, bars the admission of
contrary evidence as long as such presumption is
No person shall be deprived of life, liberty or property based on human experience or there is a rational
without due process of law, nor shall any person be denied connection between the fact proved and the fact
the equal protection of the laws. [Art. III, Sec. 1] ultimately presumed therefrom.
(2) There are instances when the need for expeditious
action will justify omission of these requisites, as in the
The Congress shall give highest priority to the enactment summary abatement of a nuisance per se, like a mad
of measures that protect and enhance the right of all the dog on the loose, which may be killed on sight because
people to human dignity, reduce social, economic, and of the immediate danger it poses to the safety and lives
political inequalities and remove cultural inequities by of the people.
equitably diffusing wealth and political power for the (3) Pornographic materials, contaminated meat and
common good. narcotic drugs areinherently pernicious and may be
summarily destroyed.
To this end, the State shall regulate the acquisition, (4) The passport of a person sought for a criminal offense
ownership, use, and disposition of property and its may be cancelled without hearing, to compel his return
increments. [Art. XIII, Sec. 1] to the country he has fled.
(5) Filthy restaurants may be summarily padlocked in the
IN GENERAL interest of the public health and bawdy houses to
Due process of lawsimply states that [i]t is part of the protect the public morals. [Ynot v. IAC (1987)]
sporting idea of fair play to hear "the other side" before an
opinion is formed or a decision is made by those who sit in In such instances, previous judicial hearing may be omitted
judgment. [Ynot v. IAC (1987)] without violation of due process in view of: 1) the nature of
the property involved; or 2) the urgency of the need to
It covers any governmental action which constitutes a protect the general welfare from a clear and present
deprivation of some person's life, liberty, or property. danger.

DEFINITION RELATIVITY OF DUE PROCESS


A law which hears before it condemns, which proceeds The concept of due process is flexible for not all situations
upon inquiry and renders judgment only after trial calling for procedural safeguards call for the same kind of
[Darthmouth College v. Woodward, 4 Wheaton 518] procedure. [Secretary of Justice v. Lantion (2000)]
Life includes the right of an individual to his body in its
completeness, free from dismemberment, and extends to Consideration of what procedures due process may require
the use of God-given faculties which make life enjoyable under any given set of circumstances must begin with a
[Justice Malcolm, Philippine Constitutional Law, pp. 320- determination of the precise nature of the government
321; See Buck v. Bell, 274 US 200] function involved as well as of the private interest that has
been affected by governmental action. [Cafeteria &
Liberty includes the right to exist and the right to be free Restaurant Workers Union v. McElroy (1961].
from arbitrary personal restraint or servitude.xxx (It)
includes the right of the citizen to be free to use his To say that the concept of due process is flexible does not
faculties in all lawful ways xxx [Rubi v. Provincial Board of mean that judges are at large to apply it to any and all
Mindoro (1919)] relationships. Its flexibility is in its scope once it has been
determined that some process is due; it is a recognition
Property is anything that can come under the right of that not all situations calling for procedural safeguards
ownership and be the subject of contract. It represents call for the same kind of procedure. [Morrissey v. Brewer
more than the things a person owns; it includes the right to (1972)]
secure, use and dispose of them. [Torraco v. Thompson,
263 US 197] PROCEDURAL AND SUBSTANTIVE DUE PROCESS

SCOPE AND LIMITATIONS SCOPE


Universal in application to all persons without regard to Procedural Due Process
any difference in race, color or nationality. Procedural due process is that aspect of due process which
serves as a restriction on actions of judicial and quasi-
Artificial persons are covered by the protection but only judicial agencies of the government. It refers to the method
insofar as their property is concerned [Smith Bell and Co. v. or manner by which a law is enforced.
Natividad (1919)]
Concerns with government action on established process
The guarantee extends to aliens and includes the means of when it makes intrusion into the private sphere
livelihood. [Villegas v. Hiu Chiong (1978)]
Substantive Due Process
MINIMUM REQUIREMENTS Substantive due process, asks whether the government has
Due process of law guarantees: an adequate reason for taking away a persons life, liberty, or
(1) Noticeand property. [City of Manila v. Laguio (2005)]
(2) Opportunity to be heard
(3) To persons who would be affected by the order or act In other words, substantive due process looks to whether
contemplated. there is a sufficient justification for the governments action.

PAGE 55
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

(2) Tribunal must consider the evidence presented.


Substantive due process is an aspect of due process which (3) Decision rendered must have support.
serves as a restriction on the law-makingand rule- (4) Evidence which supports the finding or conclusion is
makingpower of the government. substantial (such relevant evidence as a reasonable
mind accept as adequate to support a conclusion).
The law itself, not merely the procedures by which the law (5) The decision must be rendered on the evidence
would be enforced, should be fair, reasonable, and just. presented at the hearing, or at least contained in the
record and disclosed to the parties affected.
It guarantees against the arbitrary power even when (6) The tribunal or any of its judges, must act on its or his
exercised according to proper forms and procedure. own independent consideration of the law and facts of
the controversy, and not simply accept the views of a
REQUISITES subordinate in arriving at a decision.
(7) The tribunal should, in all controversial questions,
Procedural Due Process render its decision in such a manner that the parties to
In Civil Proceedings the proceeding can know the various issues involved,
Requisites: and the reasons for the decision rendered. [AngTibay v.
(1) An impartial court of tribunal clothed with judicial CIR (1940)]
power to hear and determine the matter before it.
In Criminal Proceedings
(2) Jurisdiction must be lawfully acquired over the person See Rights of the Accused, Topic 1 Criminal Due Process
of the defendant and over the property subject matter In the conduct of the criminal proceedings, it cannot be
of the proceeding [Banco Espaol v. Palanca (1918)] said that the State has been denied due process unless
there is an indication that the special prosecutor
Note: Notice is an essential element of due process, deliberately and willfully failed to present available
otherwise the Court will not acquire jurisdiction and its evidence or that other evidence could be secured. [People
judgment will not bind the defendant. of the Philippines, v. Hon. Sandiganbayan (Fourth Division),
et al., (2012)].
To be meaningful, it must be both as to time and place.
Service of summons is not only required to give the In Academic Disciplinary Proceedings
court jurisdiction over the person of the defendant but Requisites :
also to afford the latter the opportunity to be heard on (1) The students must be informed in writing of the nature
the claim made against him. Thus, compliance with the and cause of any accusation against them;
rules regarding the service of summons is as much an (2) They shall have the right to answer the charges against
issue of due process as of jurisdiction. [Sarmiento v. them, with the assistance of counsel, if desired;
Raon (2002)] (3) They shall be informed of the evidence against them;
(4) They shall have the right to adduce evidence in their
(3) The defendant must be given an opportunity to be own behalf;
heard (5) The evidence must be duly considered by the
investigating committee or official designated by the
Due process is satisfied as long as the party is accorded school authorities to hear and decide the case [Non v.
the opportunity to be heard. If it is not availed of, it is Judge Dames (1990)]
deemed waived or forfeited without violating the
constitutional guarantee. [Bautista v. Court of Appeals Substantive Due Process
(2004)] Laws which interfere with life, liberty or property satisfy
substantive due process when there is:
The SC reiterated that the right to appeal is not a (1) Lawful object i.e. the interests of the public in general
natural right nor part of due process; it is merely a (as distinguished from those of a particular class)
statutory privilege, and may be exercised only in the require the intervention of the State, and
manner and in accordance with the provisions of law. (2) Lawful means i.e. means employed are reasonably
[Alba v. Nitorreda (1996)] necessary for the accomplishment of the purpose and
not unduly oppressive on individuals. [US v. Toribio
(4) Judgment must be rendered upon lawful hearing and (1910)]
must clearly explain its factual and legal bases... [Sec.
14, Art. VIII; Banco Espaol-Filipino v. Palanca (1918)] Publication of laws is part of substantive due process.
[Taada v. Tuvera (1986)]
Note: The allowance or denial of motions for extension
rests principally on the sound discretion of the court to Governmental functions are classified into:
which it is addressed, but such discretion must be (1) Constituent constitute the very bonds of society and are
exercised wisely and prudently, with a view to compulsory in nature (i.e. public order, administration
substantial justice. Poverty is recognized as a sufficient of justice and foreign relations)
ground for extending existing period for filing. The right (2) Ministrant undertaken only by way of advancing the
to appeal is part of due process of law. [Reyes v. CA general interests of society, and are merely optional on
(1977)] the part of the State (i.e. public education, public
charity and regulations of trade and industry)
In Administrative Proceedings [Concurring Opinion of Justice Fernando in ACCFA v.
The Ang Tibay Rules: CUGCO (1969)]
(1) Right to a hearing to present own case and submit
evidence in support thereof.

PAGE 56
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

CONSTITUTIONAL AND STATUTORY DUE PROCESS JUDICIAL STANDARDS OF REVIEW


CONSTITUTIONAL DUE PROCESS [AGABON V. NLRC (2004)] RATIONAL BASIS TEST
Basis: Constitution There is an evil at hand for correction and the particular
Requirements: Procedural and Substantive legislative measure was a rational way tocorrect it.
Purpose. (1) protects individual against government; and [Williamson v. Lee Optical (1955)]
(2) assures him of his rights in criminal, civil and
administrative proceedings This test is applicable for economic legislations. [White
Effect of breach: govt action void Light Corporation v. City of Manila (2009)]

STATUTORY DUE PROCESS STRICT SCRUTINY TEST


Basis: Labor Code This test is triggered when a fundamental constitutional
Requirements. procedural(the manner of dismissal) right is limited by a law, (i.e. freedom of the mind and
and substantive (valid and authorized causes of curtailment of political process).
employment termination); and (2) notice and hearing
Purpose: protects employees from being unjustly This requires the government to show an overriding or
terminated without just cause after notice and hearing. compelling government interest so great that it justifies the
Effect of breach: does not void action but court limitation of fundamental constitutional rights (the courts
provides for other remedies make the decision of whether or notthe purpose of the law
makes the classification necessary).
There are three reasons why violation by the employer of
the notice requirement cannot be considered a denial of INTERMEDIATE SCRUTINY TEST
due process resulting in the nullity of the employee's A third standard, denominated as heightened or
dismissal or layoff: immediate scrutiny, was later adopted by the U.S.
(1) The Due Process Clause of the Constitution is a Supreme Court for evaluating classifications based on
limitation on governmental powers. It does not apply gender and legitimacy. Immediate scrutiny was adopted by
to the exercise of private power, such as the the U.S. Supreme Court in Craig. While the test may have
termination of employment under the Labor Code. first been articulated in equal protection analysis, it has in
(2) Notice and hearing are required under the Due Process the United States since been applied in all substantive due
Clause before the power of organized society are process cases as well. [White Light Corporation v. City of
brought to bear upon the individual. This is obviously Manila (2009]
not the case of termination of employment under Art.
283. VOID-FOR-VAGUENESS DOCTRINE
(3) The employer cannot really be expected to be entirely VOID FOR VAGUENESS
an impartial judge of his own cause. [Serrano v. NLRC An act is vague when it lacks comprehensible standards
(2000)] that men of common intelligence must necessarily guess
at its common meaning and differ as to its application.
HIERARCHY OF RIGHTS
When the Bill of Rights also protects property rights, the The statute is repugnant to the Constitution in 2 respects:
primacy of human rights over property rights is recognized. (1) It violates due process for failure to accord persons,
Because these freedoms are delicate and vulnerable, as especially the parties targeted by it, fair notice of what
well as supremely precious in our society and the threat conduct to avoid,
of sanctions may deter their exercise almost as potently as (2) It leaves law enforcers an unbridled discretion in
the actual application of sanctions, they need breathing carrying out its provisions.
space to survive, permitting government regulation only
with narrow specificity. [Philippine Blooming Mills It is subject to the same principles governing overbreadth
Employees Organization v. Philippine Blooming Mills Co., Inc doctrine. For one, it is also an analytical tool for testing "on
(1973)] their faces" statutes in free speech cases. Like overbreadth,
it is said that a litigant may challenge a statute on its face
If the liberty involved were freedom of the mind or the only if it is vague in all its possible applications.
person, the standard for the validity of governmental acts
is much more rigorous and exacting, but where the liberty A facial review of PP 1017 on the ground of vagueness is
curtailed affects at the most rights of property, the unwarranted. Petitioners did not even attempt to show
permissible scope of regulatory measure is wider. [Ermita- that PP 1017 is vague in all its application. They also failed
Malate Hotel and Motel Operators Association, Inc. v. City to establish that men of common intelligence cannot
Mayor of Manila (1967)] understand the meaning and application of PP 1017. [David
v. Arroyo (2006)]
Under the present provision, understood in the light of
established jurisprudence on the position of property in the VOID FOR VAGUENESS DOCTRINE
hierarchy of constitutional values, property stands a good An accused is denied the right to be informed of the
chance of serving and enhancing the life and liberty of all. charge against him and to DUE PROCESS where the
Running through various provisions of the Constitution are statute itself is couched in such INDEFINITE LANGUAGE
various provisions to protect propertybut always with the that it is not possible for men of ordinary intelligence to
explicit or implicit reminder that property has a social determine therefrom what acts/omissions are punished.
dimension and that the right to property is weighted with a [People v. Nazario (1988)]
social obligation. [Bernas]

PAGE 57
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

Equal Protection of the State. The rights and interests of the state in
these things are not simply political but also
proprietary in nature; and so the citizens may lawfully
CONCEPT be given preference over aliens in their use or
DEFINITION enjoyment.
Equal protection requires that all persons or things
similarly situated should be treated alike, both as to rights The Court upheld the Retail Trade Nationalization Law
conferred and responsibilities imposed. despite the objection that it violated the EP clause,
because there exists real and actual, positive and
Similar subjects, in other words, should not be treated fundamental differences between an alien and a national.
differently, so as to give undue favor to some and unjustly [Ichong v. Hernandez (1957)]
discriminate against others.
FILIPINO FEMALE DOMESTICS WORKING ABROAD
The guarantee means that no person or class of persons They are a class by themselves because of the special risks
shall be denied the same protection of laws which is to which their class was exposed. [Phil Association of
enjoyed by other persons or other classes in like Service Exporters v. Drilon (1988)]
circumstances. [City of Manila v. Laguio (2005) citing
Ichong v. Hernandez (1957)] LAND-BASED V. SEA-BASED FILIPINO OVERSEAS WORKERS
There is dissimilarity as to work environment, safety,
Scope danger to life and limb, and accessibility to social, civil and
Natural and juridical persons (the equal protection clause spiritual activities. [Conference of Maritime Manning
extends to artificial persons but only insofar as their Agencies v. POEA (1995)]
property is concerned.)
(1) A corporation as an artificial person is protected under QUALIFICATION FOR ELECTIVE OFFICE
the Bill of Rights against denial of due process, and it Disqualification from running in the same elective office
enjoys the equal protection of the law. [Smith, Bell and from which he retired of a retired elective
Co., v. Natividad (1919)] provincial/municipal official who has received payment of
(2) A corporation is also protected against unreasonable retirement benefits and who shall have been 65 y.o. at the
searches and seizures. [Stonehill v. Diokno (1967)] commencement of the term of office to which he seeks to
(3) It can only be proceeded against by due process of law, be elected is valid. [Dumlao v. Comelec (1980)]
and is protected against unlawful discrimination.
[Bache and Co. v. Ruiz (1971)] ELECTION OFFICIALS V. OTHER MUNICIPAL OFFICIALS
RA 8189 (Voters Registration Act) prohibits election
REQUISITES FOR VALID CLASSIFICATION officers from holding office in a particular city or
(1) It must rest on substantial distinctions which make real municipality for more than four (4) years. The classification
differences; is germane to the law since the risk sought to be
(2) It must be germane to the purpose of the law; addressedis cheating during elections. [De Guzman v.
(3) It must not be limited to existing conditions only. COMELEC (2000)]
An ordinance was declared void because it taxes only
centrifugal sugar produced and exported by the Ormoc OFFICE OF THE OMBUDSMAN
Sugar Company and none other, such that if a new Allowing the Ombudsman to start an investigation based
sugar central is established in Ormoc, it would not be on an anonymous letter does not violate EP clause. The
subject to the ordinance. [Ormoc Sugar Co. v. Treasurer Office of the Ombudsman is different from other
of Ormoc City (1968)] investigatory and prosecutory agencies of government
(4) Apply equally to all members of the same class [People because those subject to its jurisdiction are public officials
v. Cayat (1939)] who, through official pressure and influence, can quash,
delay or dismiss investigations against them. [Almonte v.
EXAMPLES OF VALID CLASSIFICATION Vasquez (1995)]
All classifications made by law are generally presumed to
be valid unless shown otherwise by petitioner. [Lacson v. PRINT V. BROADCAST MEDIA
Executive Secretary (1999)] There are substantial distinctions between the two to
warrant their different treatment under BP 881
ALIENS [Telecommunications and Broadcast Attorneys of the Phil v.
General Rule: The general rule is that a legislative act may COMELEC (1998)]
not validly classify the citizens of the State on the basis of
their origin, race or parentage. STANDARDS FOR JUDICIAL REVIEW
Serrano v. Gallant Maritime introduced a modification in
Exceptions: equal protection jurisprudence by using the three-level
(1) In times of great and imminent danger, such as a review used in due process cases. In effect, the level of
threatened invasion or war, such a classification is review when it comes to equal protection challenges may
permitted by the Constitution when the facts so warrant follow the following format:
(e.g. discriminatory legislation against Japanese (1) Whether the State was justified in making a
citizens during WWII). classification at all. (three-level scrutiny)
(2) The political rights of aliens do not enjoy the same (a) Rational basis test the classification should bear a
protection as that of citizens. reasonable relation to the governments purpose
(3) Statutes may validly limit to citizens exclusively the
enjoyment of rights or privileges connected with the
public domain, the public works, or the natural resources

PAGE 58
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

Notes:
Important when there is no plausible difference Searches and Seizures
between the disadvantaged class and those not
disadvantaged. CONCEPT
The right of the people to be secure in their persons,
Also important when the government attaches a houses, papers, and effects against unreasonable searches
morally irrelevant and negative significance to a and seizures of whatever nature and for any purpose shall
difference between the advantaged and the be inviolable, and no search warrant or warrant of arrest
disadvantaged. shall issue except upon probable cause to be determined
personally by the judge after examination under oath or
(b) Strict scrutiny test in which a legislative affirmation of the complainant and the witnesses he may
classification which impermissibly interferes with produce, and particularly describing the place to be searched
the exercise of a fundamental right or operates to and the persons or things to be seized. [Art. III, Sec. 2]
the peculiar disadvantage of a suspect class is
presumed unconstitutional. The burden is upon
NATURE
the government to prove that the classification is Personal
necessary to achieve a compelling state interest
It may be invoked only by the person entitled to it.
and that it is the least restrictive means to protect
[Stonehill v. Diokno (1967)]
such interest. It is applied when the classification
has a suspect basis.
It may be waived expressly or impliedly only by the person
whose right is invaded, not by one who is not duly
Suspect classes A classification that violates a authorized to effect such waiver. [People v. Damaso (1992)]
fundamental right, or prejudices a person accorded
special protection by the Constitution (Serrano v. Directed Against the Government and Its Agencies (State
Gallant). May therefore include a classification
Action Requirement)
based on income.
The right cannot be set up against acts committed by
private individuals.The right applies as a restraint directed
(Compare to the US definition: classes subject to
only against the government and its agencies tasked with
such a history of purposeful unequal treatment or the enforcement of the law. The protection cannot extend
relegated to such a position of political to acts committed by private individuals so as to bring
powerlessness as to command extraordinary
them within the ambit of alleged unlawful intrusion by the
protection from the majoritarian political process. government. [People v. Marti (1991); See also Yrasuegui v.
Income classification will not trigger strict scrutiny.)
Philippine Airlines (2008)]
(c) Intermediate scrutiny test Court accepts the What constitutes a reasonable or unreasonable search and
articulated purpose of the legislation but it closely
seizure in any particular case is purely a judicial question,
scrutinizes the relationship between the determinable from a consideration of the circumstances
classification and the purpose based on a spectrum involved. [Valmonte v. De Villa (1989)]
of standards, by gauging the extent to which
constitutionally guaranteed rights depend upon the Objections to the warrant of arrest must be made before
affected individual interest. In which the
the accused enters his plea. [People v. Codilla (1993); People
government must show that the challenged
v. Robles (2000)]
classification serves an important state interest and
that the classification is at least substantially related
SCOPE
to serving that interest. Applicable to certain sensitive Natural Persons
but not suspect classes; certain important but not It protects all persons including aliens [Qua Chee Gan v.
fundamental interest.
Deportation Board (1963)]
(2) Whether the classification was valid. (4-pronged test of
Artificial Persons
valid classification in People v. Cayat)
Artificial persons are protected to a limited extent. [Bache
and Co. Inc v. Ruiz (1971)] The opening of their account
Alternative thought: BERNAS (and Prof. De Vera) opines that
books is not protected, by virtue of police and taxing
in Serrano v. Gallant Maritime, the Court seems to imply powers of the State.
that the Test of Valid Classification is to be applied
underthe Rational Basis standard. Note that in Serrano,
WARRANT REQUIREMENT
where the Court applied Strict Scrutiny, the Test of Valid PURPOSE
Classification was mentioned but not applied. Note
(1)Search Warrant- to gain evidence to convict
however that the Serrano levels of scrutiny have not been
(2) Warrant of Arrest- to acquire jurisdiction
reapplied as of this writing. This issue has not yet been
clarified.
Must refer to one specific offense. [Asian Surety v. Herrera,
(1973); Castro v. Pabalan (1976)]

The Dangerous Drugs Act of 1972 is a special law that deals


specifically with dangerous drugs which are subsumed into
prohibited and regulated drugs, and defines and
penalizes categories of offenses which are closely related
or which belong to the same class or species; thus, one
search warrant may be validly issued for several violations

PAGE 59
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

thereof [People v. Dichoso (1993)]. The doctrine was PLACE TO BE SEARCHED


reiterated in People v. Salanguit(2001). The search warrant issued to search petitioners compound
for unlicensed firearms was held invalid for failing to
REQUISITES describe the place with particularity, considering that the
(1) Existence of probable cause compound was made up of 200 buildings, 15 plants, 84
staff houses, 1 airstrip etc spread out over 155 hectares.
Warrant of Arrest [PICOP v. Asuncion (1999)]
Such facts and circumstances antecedent to the
issuance of the warrant that in themselves are DESCRIPTION OF PLACE/ THINGS
sufficient to induce a cautious man to rely on them and The description of the property to be seized need not be
act in pursuance thereof. [People v. Syjuco (1937); technically accurate or precise. Its nature will vary
Alvarez v. CFI (1937)] according to whether the identity of the property is a
matter of concern. The description is required to be specific
Search Warrant only in so far as the circumstances will allow. [Kho v. Judge
Such facts and circumstances which would lead a Makalintal (1999)]
reasonably discreet and prudent man to believe that
an offense has been committed and that the objects A search warrant may be said to particularly describe the
sought in connection with the offense are in the place things to be seized when the description therein is as
sought to be searched. [Burgos v. Chief of Staff (1984)] specific as the circumstances will ordinarily allow. [People
v. Rubio (1932)] or when the description expresses a
(2) Determination of probable cause personally by the conclusion of fact, not of law, by which the warrant officer
judge. may be guided in making the search and seizure; or when
the tings described are limited to those which bear direct
(3) After personal examination under oath or affirmation of relation to the offense for which the warrant is being
the complainant and the witnesses he may produce. issued. [Bache and Co. v. Ruiz (1971)]
How it is done: In the form of searching questions and
answers, in writing and under oath [Rule 126, Sec. 6, DESCRIPTION OF PERSONS SEARCHED
ROC] Search warrant is valid despite the mistake in the name of
the persons to be searched. The authorities conducted
(a) Mere affidavits of the complainant and his surveillance and test-buy ops before obtaining the search
witnesses are thus not sufficient. warrantand subsequently implementing it. They had
personal knowledge of the identity of the persons and the
(b) The examining Judge has to take depositions in place to be searched, although they did not specifically
writing of the complainant and the witnesses he know the names of the accused. [People v. Tiu Won Chua
may produce and attach them to the record. (2003)]

(c) Such written deposition is necessary in order that A John Doe search warrant is valid. There is nothing to
the Judge may be able to properly determine the prevent issue and service of warrant against a party whose
existence or non-existence of the probable cause, name is unknown. [People v. Veloso (1925)]
to hold liable for perjury the person giving it if it will
be found later that his declarations are false GENERAL WARRANT
One that:
(d) It is axiomatic that the examination must be (1) Does not describe with particularity the things subject
probing and exhaustive, not merely routine or pro- of the search and seizure; and
forma, if the claimed probable cause is to be (2) Where probable cause has not been properly
established. established. It is a void warrant. [Nolasco v. Pao
(1985)]
(e) The examining magistrate must not simply rehash
the contents of the affidavit but must make his own Exception to General Warrants: General descriptions will
inquiry on the intent and justification of the not invalidate the entire warrant if other items have been
application. [Roan v. Gonzales (1984)] particularly described. [Uy v. BIR (2000)]

(4) On the basis of their personal knowledge of the facts Conduct of the Search [Sec. 7, Rule 126, ROC]
they are testifying to. (1) In the presence of a lawful occupant thereof or any
member of his family, OR
(5) The warrant must describe particularly the place to be (2) If occupant or members of the family are absent, in the
searched and the persons or things to be seized. presence of 2 witnesses of
(a) sufficient age
Requirement is primarily meant to enable the law (b) discretion
enforcers serving the warrant to (1) readily identify the (c) residing in the same locality
properties to be seized and thus prevent them from seizing (3) Force may be used in entering a dwelling if justified by
the wrong items; and (2) leave said peace officers with no Rule 126 ROC.
discretion regarding the articles to be seized and thus
prevent unreasonable searches and seizures. [People v. Tee Failure to comply with Sec. 7 Rule 126 invalidates the
(2003)] search. [People v. Gesmundo (1993)]

PAGE 60
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

FORCIBLE ENTRY JUSTIFIED prevention of crime and the apprehension of criminals.


Occupants of the house refused to open the door despite [Nolasco v. Pano (1985)]
the fact that the searching party knocked several times,
and the agents saw suspicious movements of the people Test for validity
inside the house. [People v. Salanguit (2001)] (1) Item to be searched was within the arresters custody;
(2) Search was contemporaneous with the arrest
UNLAWFUL SEARCH
Police officers arrived at appellants residence and side- Under the Rules of Court, a person charged with an
swiped (sinagi) appellants car (which was parked outside) offense may be searched for dangerous weapons or
to gain entry into the house. Appellants son, who is the anything which may be used as proof of the commission of
only one present in the house, opened the door and was the offense. As an incident of an arrest, the premises where
immediately handcuffed to a chair after being informed the arrest was made can also be searched without search
that they are policemen with a warrant to search the warrant. [Nolasco v. Cruz Pao (1985)]
premises. [People v. Benny Go (2003)]
In this Motion for Partial Reconsideration of the 1985
WARRANTLESS SEARCHES decision, the petitioners submit that a warrantless search
GENERAL RULE FOR WARRANTLESS SEARCHES: PROBABLE CAUSE can be justified only if it is an incident to a lawful arrest and
REQUIRED that since Aguilar was not lawfully arrested, a search
The essential requisite of probable cause must still be without warrant could not be made. [Nolasco v. Pao on
satisfied before a warrantless search and seizure can be M.R. (1987)]
lawfully conducted. In these cases, probable cause
(warrantless searches) must be based on reasonable An arrest being incipiently illegal, it logically follows that
ground of suspicion or belief that a crime has been the subsequent search was similarly illegal. [People v.
committed or is about to be committed. [People v. Aruta Aruta, supra]
(1998)]
SEARCH OF MOVING VEHICLES
N.B. In Aruta, the standards for probable cause are different Securing a search warrant is not practicable since the
from those required for the issuance of warrants. Aruta vehicle can be quickly moved out of the locality or
implies that the reasonableness of a warrantless search is jurisdiction in which the warrant must be sought [Papa v.
determined by the (1) information received and used as a Mago (1968)]
basis for the search, and (2) additional factors and
circumstances. The two, taken together, constitute the PLAIN VIEW DOCTRINE: THINGS SEIZED ARE WITHIN PLAIN VIEW OF
probable cause which justifies warrantless searches and A SEARCHING PARTY
seizures. [Aruta, supra] Requisites:
(1) Prior valid intrusion into a place;
WARRANTLESS SEARCHES RECOGNIZED BY JURISPRUDENCE (2) Evidence:
Quick Look [People v. Aruta, supra] (a) inadvertently discovered
(1) Search incident to a lawful arrest (b) by police who had the right to be where they were;
(2) Plain view doctrine (3) Evidence must be immediately apparent and
(3) Search of a moving vehicle (4) Noticed without further search [People v. Musa; People
(4) Consented search v. Sarap (2003)]
(5) Customs search
(6) Stop and frisk An object is in plain view if the object itself is plainly
(7) Exigent and emergency circumstances exposed to sight. Where the seized object is inside a closed
(8) Visual search at checkpoints not among those package, the object is not in plain view and, therefore,
enumerated in People v. Aruta, but also recognized as cannot be seized without a warrant. However, if the
an exception to the warrant requirement by Aniag v. package proclaims its contents, whether by its distinctive
COMELEC (1994) and Valmonte v. De Villa (1989, 1990) configuration, its transparency, or if its contents are
obvious to an observer, then the content are in plain view,
SEARCH INCIDENT TO A LAWFUL ARREST and may be seized. [Caballes v. Court of Appeals (2002)]
Search incident to lawful arrest - A person lawfully arrested
may be searched for dangerous weapons or anything If the package is such that it contains prohibited articles,
which may be used as proof of the commission of an then the article is deemed in plain view. [People v.
offense, without a search warrant. [Sec. 12, Rule 126, Rules Nuevasm (2007)]
of Court]
STOP AND FRISK SEARCHES
There should be a genuine reason to stop-and-frisk in the
The provision is declaratory in the sense that it is confined
light of the police officers experience and surrounding
to the search, without a search warrant, of a person who
had been arrested. conditions to warrant a belief that the person detained has
weapons concealed. [Malacat v. CA (1997), citing Terry v.
It is also a general rule that, as an incident of an arrest, the Ohio]
place or premises where the arrest was made can also be
Police officer has a right to stop a citizen on street and pat
searched without a search warrant. In this case, the extent
and reasonableness of the search must be decided on its him for a weapon in the interest of protecting himself from
the person with whom he was dealing was not armed.
own facts and circumstances.

What must be considered is the balancing of the Scope: Outer clothing for concealed weapon, etc.
individuals right to privacy and the publics interest in the

PAGE 61
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

Test: WON a reasonably prudent man in the circumstances search. On the other hand, when the vehicle is stopped
would be warranted in the belief that his safety of that of and subjected to an extensive search, it would be
others was in danger [Terry v. Ohio, 392 U.S.(1968)]. constitutionally permissible only If the officers conducting
the search had reasonable or probable cause to believe,
The police officer should properly introduce himself and before the search, that either the motorist is a law offender
make initial inquiries, approach and restrain a person who or they will find the instrumentality or evidence pertaining
manifests unusual and suspicious conduct, in order to to a crime in the vehicle to be searched[Caballes v. Court of
check the latters outer clothing for possibly concealed Appeals (2002); People v. Libnao (2003)].
weapons. The apprehending police officer must have a
genuine reason, in accordance with the police officers PROPERTIES SUBJECT TO SEIZURE
experience and the surrounding conditions, to warrant the General Rule: Only the articles particularly described in the
belief that the person to be held has weapons or contraband warrant may be seized.
concealed about him [People v. Sy Chua (2003)]. (1) Property subject of an offense
(2) Stolen or embezzled property and other proceeds or
VALID EXPRESS WAIVER MADE VOLUNTARILY AND INTELLIGENTLY fruits of an offense
Requisites: (3) Used or intended to be used as a means of committing
(1) Must appear that right exists; an offense [Sec. 2 Rule 126, ROC]
(2) Person involved had actual/ constructive knowledge of
the existence of such right; Where the warrant authorized only the seizure of shabu,
(3) Said person had an actual interest to relinquish the and not marijuana, the seizure of the latter was held
right; unlawful. [People v. Salanguit (2001)]
(4) Waiver is limited only to the arrest;
(5) Waiver does not extend to search made as an incident It is not necessary that the property to be searched or
thereto, or to any subsequent seizure of evidence found seized should be owned by the person against whom the
in the search. [People v. Peralta (2004)] warrant is issued; it is sufficient that the property is within
his control or possession [Burgos v. Chief of Staff (1984)].
It was ruled that the right to be secure from unreasonable
search may be waived. Waiver may be express or implied. COMPARISON OF PROCEDURES IN OBTAINING SEARCH WARRANTS
When one voluntarily submits to a search or consents to AND ARREST WARRANTS
have it made of his person / premises, he is precluded from When warrant of arrest may issue (a) By the Regional Trial
later complaining [People v. Kagui Malasugui (1936)]. Court Within ten (10) days from the filing of the
complaint or information, the judge shall personally
It is the State that has the burden of proving, by clear and evaluate the resolution of the prosecutor and its
convincing evidence, that the necessary consent was supporting evidence. He may immediately dismiss the case
obtained and that it was voluntarily and freely given if the evidence on record clearly fails to establish probable
[Caballes v. Court of Appeals (2002)]. cause. If he finds probable cause, he shall issue a warrant
of arrest, or a commitment order if the accused has already
When accused checked in his luggage as passenger of a been arrested pursuant to a warrant issued by the judge
plane, he agreed to the inspection of his luggage in who conducted the preliminary investigation or when the
accordance with customs laws and regulations, and thus complaint or information was filed pursuant to section 7 of
waived any objection to a warrantless search [People v. this Rule. In case of doubt on the existence of probable
Gatward (1997)]. cause, the judge may order the prosecutor to present
additional evidence [Note: This is not found in the procedure
CUSTOMS SEARCH for a search warrant.] within five (5) days from notice and
Searches of vessel and aircraft for violation of immigration the issue must be resolved by the court within thirty (30)
and smuggling laws [Papa v. Mago (1968)]. days from the filing of the complaint of information. [Rule
112, Sec. 6]
EXIGENT AND EMERGENCY CIRCUMSTANCES
The raid and seizure of firearms and ammunition at the
height of the 1989 coup-de-etat, was held valid, Requisites for issuing search warrant A search warrant
considering the exigent and emergency situation. The shall not issue except upon probable cause in connection
military operatives had reasonable ground to believe that a with one specific offense to be determined personally by
crime was being committed, and they had no opportunity the judge after examination under oath or affirmation of
to apply for a search warrant from the courts because the the complainant and the witness he may produce, and
latter were closed. Under such urgency and exigency, a particularly describing the place to be searched and the
search warrant could be validly dispersed with [People v. de things to be seized which may be anywhere in the
Gracia (1994)]. Philippines. [Rule 126, Sec. 4]

VISUAL SEARCH AT CHECKPOINTS WARRANTLESS ARRESTS


Stop and search without a warrant at military or police REQUISITES FOR ISSUANCE OF A VALID ARREST WARRANT
checkpoints, which has been declared not to be illegal per What the Constitution underscores is the exclusive and
se so long as it is required by exigencies of public order and personal responsibility of the issuing judge to satisfy himself
conducted in a way least intrusive to motorists [Valmonte v. of the existence of probable cause.
de Villa (1989)].
In satisfying himself of the existence of probable cause for
For a mere routine inspection, the search is normally the issuance of a warrant of arrest, the judge is notrequired
permissible when it is limited to a mere visual search, to personally examine the complainant and his witnesses.
where the occupants are not subjected to physical or body
Following established doctrine and procedure, he shall:

PAGE 62
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

(1)Personally evaluate the report and the supporting of facts or circumstances that the person to be arrested
documents submitted by the fiscal regarding the has committed it;
existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or Requisites:
(2)If he finds no probable cause, he may disregard the (1) Offense had JUST been committed;
fiscal's report and require the submission of supporting (2) Person making the arrest has probable cause to believe
affidavits of witnesses to aid him in arriving at a based on personal knowledge.
conclusion as to the existence of probable cause.
[Beltran v. Makasiar (1988)] Note: There must be a large measure of immediacy
between the time the offense is committed and the time of
Existence of Probable Cause: Such facts and circumstances the arrest. If there was an appreciable lapse of time
which would lead a reasonably discreet and prudent man between arrest and commission of crime, warrant of arrest
to believe that an offense has been committed by the must be secured. [Nachura]
person sought to be arrested. [Webb v. De Leon (1995)]
Warrantless arrest of accused for selling marijuana 2 days
Determination of probable cause personally by the judge after he escaped is invalid. [People v. Kimura (2004)]
as to warrant of arrest:
(1) On the basis of the witnesses personal knowledge of the The warrantless arrest only 3 hours after the killing was
facts they are testifying to. held valid since personal knowledge was established as to
(2) The arrest warrant must describe particularly the person the fact of death and facts indicating that the accused
to be seized. killed the victim. [People v. Gerente (1993)]
(a) By stating the name of the person to be arrested.
(b) If not known, then a John Doe warrant may be issued, Personal Knowledge: Experience of an officer which gives
with some descriptio persona that will enable the officer the idea that there is probable cause that the person
to identify the accused. caught is responsible. It has been ruled that personal
knowledge of facts in arrests without a warrant must be
John Doe Warrant: Warrants issued against 50 John Does, based on probable cause, which means an actual belief or
none of whom the witnesses could identify, were reasonable grounds of suspicion. [Cadua v. Court of
considered as general warrants and thus void. Appeals (1999)]
[Pangandaman v. Casar (1988)]
There is no personal knowledge when the commission of a
REQUISITES OF A VALID WARRANTLESS ARREST [RULE 113, SEC. 5, crime and identity of the accused were merely furnished by
RULES ON CRIMINAL PROCEDURE] an informant, or when the location of the firearm was given
by the wife of the accused. It is not enough that there is
(1) When in his presence, the person to be arrested has reasonable ground to believe that the person to be
committed, is actually committing, or is attempting to arrested has committed a crime. That a crime has actually
commit an offense; (in flagrante delicto) been committed is an essential precondition. [People v.
Burgos (1986)]
Rebellion is a continuing offense. Therefore a rebel may be
arrested without a warrant at any time of the day or the (3) When the person to be arrested is a prisoner who has
night as he is deemed to be in the act of committing escaped from a penal establishment or place where he
rebellion. [Umil v. Ramos (1991)] is serving final judgment or is temporarily confined
while his case is pending, or has escaped while being
Though kidnapping with serious illegal detention is transferred from one confinement to another
deemed a continuing crime, it can be considered as such
only when the deprivation of liberty is persistent and Additional Exceptions (Not in the Rules):
continuing from one place to another. [Parulan v. Dir of (1) When the right is voluntarily waived (estoppel).
Prisons (1968)] (2) Violent insanity.

Hot Pursuit: The arrest of the accused inside his house Appellant is estopped from questioning the illegality of the
following hot pursuit of the person who committed the arrest when he voluntarily submitted himself to the
offense in flagrante was held valid. [People v. De Lara jurisdiction of the court by entering a plea of not guilty and
(1994)] by participating in the trial. [People v. Salvatierra (1997)]

Buy-Bust: A buy-bust operation is a valid in flagrante Failure to raise the question of admissibility during the trial
arrest. The subsequent search of the person arrested and is waiver of the right to assert inadmissibility on appeal.
the premises within his immediate control is valid as an [Manalili v. CA (1997)]
incident to a lawful arrest. [People v. Hindoy (2001)]
Scope of Waiver: Waiver is limited to the illegal arrest. It does
Exception to buy-bust: Instead of arresting the suspect not extend to the search made as an incident thereto, or
after the sale in a buy-bust op, the officer returned to the the subsequent seizure of evidence allegedly found during
police headquarters and filed his report. It was only in the the search [People v. Peralta (2004]]
evening that he, without warrant, arrested the suspect at
his house where dried marijuana leaves were found and ADMINISTRATIVE ARRESTS
seized. This is unlawful arrest. [People v. Rodrigueza (1992)] General Rule: Only the judge has the power to issue a
warrant after the proper procedure has been duly taken.
(2) When an offense has just been committed and he has
probable cause to believe based on personal knowledge

PAGE 63
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

Exceptions: otherwise would be to opt for a government of men, and


(1) In cases of deportation of illegal and undesirable aliens, not of laws.
whom the Presidentor the Commissioner of
Immigration may order arrested, following a final order Public order and safety is defined as the security of human
of deportation,for the purpose of deportation. [Salazar lives, liberty and property against the activities of invaders,
v. Achacoso (1990)] insurrectionist and rebels. [1971 Constitutional Convention,
(2) Warrant of arrest may be issued by administrative Session of November 25, 1972]
authorities only for the purpose of carrying out a final
finding of a violation of law and not for the sole FORMS OF CORRESPONDENCE COVERED
purpose of investigation or prosecution. It may be (1) letters
issued only after the proceeding has taken place as (2) messages
when there is already a final decision of the (3) telephone calls
administrative authorities. (4) telegrams, and the like [Bernas]

DRUG, ALCOHOL AND BLOOD TESTS TESTS OF REASONABLE EXPECTATION OF PRIVACY:


The Court held that Randomized Drug Testing (RDT) for (1) Whether by his conduct, an individual has exhibited an
students and employees does not violate the right to expectation of privacy;
privacy in the Constitution. Students do not have rational (2) Whether such expectation is one that society recognizes
expectation of privacy since they are minors and the school as reasonable. [Ople v. Torres (1998)]
is in loco parentis. Employees and students in universities,
on the other hand, voluntarily subject themselves to the N.B. The Court in KMU v. Director-General held that Ople v.
intrusion because of their contractual relation to the Torres is not an authority on the right to privacy, essentially
company or university. on the ground that the privacy discussion in Ople is obiter
dictum. [See KMU v. Director-General (2006)] Nevertheless,
It is unconstitutional to subject candidates for public office the Ople testhas been reapplied by cases such as Sabio v.
and criminals to RDT. The Constitution clearly provides the Gordon (2006) and is essentially the same as the test in
requirements for candidates, and adding RDT would Pollo v. Constantino-David, infra.
amount to imposing an additional qualification. Criminals
subjected to RDT would violate their right against self- A legitimate expectation of privacy requires. (1) a
incrimination. [SJS v. Dangerous Drugs Board (2008)] subjective expectation (i.e. demonstrated actual, personal
expectation of privacy); and (2) an objective expectation
Privacy of Communications and Correspondence (i.e. an expectation that society would recognize). [Pollo v.
(1) The privacy of communication and correspondence shall Constantino-David (2011)]
be inviolable except upon lawful order of the court, or
when public safety or order requires otherwise, as Other imports from Jurisprudence:
prescribed by law. Anti-Wire Tapping Act (RA 4200), clearly and
(2) Any evidence obtained in violation of this or the unequivocably makes it illegal for any person, not
preceding section shall be inadmissible for any authorized by all the parties to any private communication,
purpose in any proceeding. [Art. III, Sec. 3] to secretly record such communications by means of a
tape recorder. The law does not make any distinction.
PRIVATE AND PUBLIC COMMUNICATIONS [Ramirez v. CA (1995)]
REQUISITES OF EXISTENCE OF PRIVACY RIGHT
(1) Subjective: A person has exhibited an actual expectation An extension telephone is not among the devices
of privacy; and enumerated in Sec. 1 of RA 4200. There must be either a
(2) Objective: The expectation be one that society is physical interruption through a wiretap or the deliberate
prepared to recognize as reasonable. [Pollo v. installation of a device or arrangement in order to
Constantino- David (2011) citing the Concurring Opinion overhear, intercept, or record the spoken words. The
of Justice Harlan in Katz v. US (1967)] telephone extension in this case was not installed for that
purpose. It just happened to be there for ordinary office
INTRUSION, WHEN ALLOWED use. [Ganaan v. IAC (1986)]
(1) By lawful order of the court
E.O. 424 (s. 2005), adopting a unified multi-purpose ID
Probable cause in Sec. 2, Art. III should be followed for system for government, does not violate the right to
the court to allow intrusion. Particularity of description privacy because it (1) narrowly limits the data that can be
is needed for written correspondence, but if the intrusion collected, recorded, and released compared to existing ID
is done through wire-taps and the like, there is no need systems, and (2) provides safeguards to protect the
to describe the content. However, identity of the person confidentiality of the data collected. [KMU v. Director-
or persons whose communication is to be intercepted, General (2006)]
and the offense or offenses sought to be prevented, and
the period of the authorization given can be specified. An intrusion into the privacy of workplaces is valid if it
conforms to the standard of reasonableness. Under this
(2) When public safety or public order requires otherwise, standard, both inception and scope of intrusion must be
as may be provided by law. reasonable.
(1) Justified at inception: if there are reasonable grounds
Intrusion has to be based upon a non-judicial government for suspecting that it will turn up evidence that the
officials assessment that public safety and order demands employee is guilty of work-related misconduct.
such intrusion, limited to the provisions of law. To hold

PAGE 64
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

(2) Scope of intrusion is reasonable: if measures used in Query Habeas Data


the search are reasonable related to the searchs
objectives, and it is not highly intrusive. [Pollo, supra] over the place where the data or
information is gathered,
Right may be invoked against the wife who went to the collected or stored, at the option
clinic of her husband and there took documents consisting of the petitioner.
of private communications between her husband and his (2) Supreme Court, Court of Appeals,
alleged paramour. [Zulueta v. Court of Appeals, 253 SCRA Sandiganbayan when the action
699(1996)] concerns public data files of
government offices.
N.B. While Zulueta seems to be an exception to the State How much is No docket and other lawful fees shall
Action Requirement, Zuluetas application of the the docket or be required from an indigent petitioner.
exclusionary rulehas only been cited once but to a state filing fees for The petition of the indigent shall be
action.] the petition? docketed and acted upon immediately,
without prejudice to subsequent
See also: R.A. No. 10173, Data Privacy Act (2012) submission of proof of indigency not
later than 15 days from the filing of the
WRIT OF HABEAS DATA petition.
Instead of Yes. It can be done when the
Query Habeas Data
having the respondent invokes the defense that the
What is the writ (1) Remedy hearing in open release of the data or information in
of habeas data? (2) Available to any person court, can it be question shall compromise national
(3) Whose right to life, liberty, and done in security or state secrets, or when the
security chambers? data or information cannot be divulged
(4) has been violated or is threatened to the public due to its nature or
with violation privileged character.
(5) By an unlawful act or omission
(6) of a public official or employee, or of The right to informational privacy, as a specific component
a private individual or entity of the right to privacy, may yield to an overriding legitimate
(7) Engaged in the gathering, collecting state interest. [Gamboa v. P/Ssupt. Marlou C. Chan (2012)]
or storing of data or information
regarding the person, family, home
and correspondence of the
aggrieved party.
What rule The Rule on the Writ of Habeas Data Freedom of Expression
governs (A.M. No. 08-1-16-SC), which was
petitions for approved by the SC on 22 January CONCEPT AND SCOPE
and the 2008. That Rule shall not diminish, BASIS
issuance of a increase or modify substantive rights. No law shall be passed abridging the freedom of speech,
writ of habeas of expression, or of the press, or the right of the people
data? peaceably to assemble and petition the government for
What is the redress of grievances. [Art. III, Sec. 4]
SCs basis in [Constitution, Art. VIII, Sec. 5[5]].
issuing the
Rule? No person shall be detained solely by reason of his political
When does the The Rule takes effect on 2 February beliefs and aspirations. [Art. III, Sec. 18(1)]
Rule take 2008, following its publication in three
effect? (3) newspapers of general circulation. All are indispensable to the uninhibited, robust and wide-
Who may file a (1) The aggrieved party. open debate in the free marketplace of ideas. [Abrams v.
petition for the (2) However, in cases of extralegal US (1919)]
issuance of a killings and enforced
writ of habeas disappearances, the petition may While indeed, the news item subject of the present case
data? be filed by might have ruffled the sensitivities of plaintiff, this Court
(a) Any member of the immediate however believes that the alleged defamatory articles fall
family of the aggrieved party, within the purview of a qualifiedly privileged matter, and
namely: the spouse, children that therefore, it cannot be presumed to be malicious. The
and parents; or onus of proving malice is accordingly shifted to the
(b) Any ascendant, descendant or plaintiff, that is, that he must prove that the defendants
collateral relative of the were actuated by ill-will in what they caused to be printed
aggrieved party within the and published, with a design to carelessly or wantonly
fourth civil degree of injure the plaintiff. [U.S. v. Bustos (1909)]
consanguinity or affinity, in
default of those mentioned in Components
the preceding paragraph. Speech, expression, and press include:
(1) Written or spoken words (recorded or not)
Where can the (1) Regional Trial Court (2) Symbolic speech (e.g. wearing armbands as symbol of
petition be (a) where the petitioner or protest)
filed? respondent resides, Violation of the Hotels Grooming Standards by labor
(b) or that which has jurisdiction union members constitutes illegal strike and therefore

PAGE 65
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

an unprotected speech. [NUWHRAIN-APL-IUF Dusit (4) Near v. Minnesota, (1931):


Hotel Nikko Chapter v. CA (2008)] (a) When a nation is at war, many things that might be
(3) Movies said in time of peace are such a hindrance to its
effort that their utterance will not be endured so
Scope of Protected Freedoms long as men fight and that no court could regard
Any and all modes of protection are embraced in the them as protected by any constitutional right
guaranty. It is reinforced by Sec. 18(1), Art. 3. (b) Actual obstruction to the governments recruiting
service or the publication of the sailing dates of
PRIOR RESTRAINT (CENSORSHIP) transports or the number and location of troops
Concept (c) Obscene publications
Censorship conditions the exercise of freedom of expression (d) Incitements to acts of violence and the overthrow
upon the prior approval of the government. by force of orderly government

The censor serves therefore as the political, moral, social SUBSEQUENT PUNISHMENT
and artistic arbiter for the people, usually applying only his Concept:
own subjective standards in determining what is good and Freedom of speech includes freedom after speech. Without
what isnot. this assurance, the citizen would hesitate to speak for fear
he might be provoking the vengeance of the officials he
General rules: has criticized (chilling effect).
(1) Any system of prior restraints of expression comes to
the Court bearing a heavy presumption against its If criticism is not to be conditioned on the governments
constitutionality, giving the government a heavy burden consent, then neither should it be subject to the
to show justification for the imposition of such governments subsequent chastisement.
restraint. [New York v. United States (1971)]
(2)There need not be total suppression. Even restriction of Examples of Valid Subsequent Restraints:
circulation constitutes censorship. [Grosjean v. (1) Libel. Every defamatory imputation is presumed to be
American Press Co., 297 US 233] malicious. [Alonzo v. CA (1995)]

Examples of Unconstitutional Prior Restraint Exceptions:


(1) COMELEC prohibition against radio commentators or (a) private communication in the performance of any
newspaper columnists from commenting on the issues legal, moral or social duty
involved in a scheduled plebiscite [Sanidad v. (b) fair and true report of any judicial, legislative or
COMELEC (1990)] other official proceedings
(2) Arbitrary closure of a radio station [Eastern
Broadcasting v. Dans (1985)]; or even when there is a (2) Obscenity. The determination of what is obscene is a
legal justification, such as lack of mayors permit judicial function. [Pita v. CA (1989)]
[Newsounds Broadcasting Network Inc. v. Dy (2009)]
(3) COMELEC resolution prohibiting the posting of decals (3) Contempt for criticism/publications tending to impede,
and stickers in mobile units like cars and other moving obstruct, embarrass or influence the courts in
vehicles [Adiong v. COMELEC (1992)] administering justice in a pending suit or proceeding
(4) Search, padlocking and sealing of the offices of (sub judice) [People v. Alarcon (1939)]
newspaper publishers (We Forum) by military
authorities [Burgos v. Chief of Staff, supra] (4) Imputation of irregularities in the judiciary must strike a
(5) An announcement of a public figure to prohibit the balance between the right to free press and the
media to issue a specific kind of statement [Chavez v. reputation of judges. A reporter is prohibited from
Gonzales (2006)] recklessly disregarding a private reputation without any
bona fide effort to ascertain the truth thereof [In Re:
Examples of Constitutional Prior Restraint: Emil Jurado (1995)]
(1) Law which prohibits, except during the prescribed
election period, the making of speeches, (5) Right of students to free speech in school premises
announcements or commentaries for or against the must not infringe on the schools right to discipline its
election of any candidate for office [Gonzales v. students [Miriam College Foundation v. CA (2000)]
COMELEC (1969)]
Exceptions:
(2) Prohibition on any person making use of the media to (1) Fair comment on matters of public interest. Fair
sell or to give free of charge print space or air time for comment is that which is true or, if false, expresses
campaign or other political purposes except to the the real opinion of the author based upon
COMELEC. reasonable degree of care and on reasonable
Ratio: police power of State to regulate media for grounds.
purpose of ensuring equal opportunity, time and space (2) Criticism of official conduct is given the widest
for political campaigns. [National Press Club v. latitude. [US v. Bustos (1918)]
COMELEC (1992); Osmena v. COMELEC (1998)]
CONTENT-BASED AND CONTENT-NEUTRAL
(3) Movie censorship: the power of the MTCRB can be REGULATIONS
exercised only for purposes of reasonable classification, CONTENT-BASED RESTRICTIONS
not censorship. [NACHURA citing Gonzalez v. Katigbak The regulation is based on the subject matter of the
(1985) and Ayer v. Judge Capulong (1988)] utterance or speech.

PAGE 66
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

privacy to disseminate public info does not extend to a


Freedom of Expression and National Security fictional representation of a person, no matter how public
Where a fictitious suicide photo and letter were published a figure he/she may be. [Lagunzad v. Soto (1979)]
in newspapers of general circulation expressing
disappointments of the Roxas administration and Freedom of speech and expression includes freedom
instructinga fictitious wife to teach their children to burn tofilm and producemotion pictures and to exhibit them.
pictures of the President,SCheld that such act constitutes The fact that such film production is a commercial activity
inciting to sedition. is not a disqualification for availing of freedom of speech
and expression.
It suggests or incites rebellious conspiracies or riots and
tends to stir up the people against the constituted The right to privacy cannot be invoked to resist publication
authorities, or to provoke violence from opposition groups and dissemination of matter of public interest.The
who may seek to silence the writer, which is the sum and intrusion is no more than necessary to keep the film a
substance of the offense under consideration. [Espuelas v. truthful historical account. Enrile is a public figure because
People (1951)] of his participation as a principal actor in the culminating
events of the EDSA revolution. [Ayer Productions v.
Freedom of Expression and Libel Capulong (1988)]
National community standard as basis of what is defamatory
Not belonging to a royal house does not constitute libel. In Freedom of Expression and the Administration of Justice
a community like ours which is both republican and Due to the delay in the disposition of his original case,
egalitarian, such an ascription, whether correct or not, Cabansag asked for help from the President through a
cannot be defamatory. It is to the standards of the national letter addressed to the Presidential Complaints and
community, not to those of the region that a court must Actions Commission (PCAC). He was charged for contempt
refer especially where a newspaper is national in reach and because such complaint should have been raised to the
coverage. [Bulletin Publishing v. Noel (1988)] Secretary of Justice or SC instead.

Report of official conduct is privileged and covered by press SC ruled that for his act to be contemptuous, the danger
freedom must cause a serious imminent threat to the
Where the defamation is alleged to have been directed at a administration of justice. Itcannot be inferred that such act
group/class, it is essential that the statement must be so has "a dangerous tendency" to belittle the court or
sweeping or all-embracing as to apply to every individual undermine the administration of justice for the writer
in that group or class, or sufficiently specific so that each merely exercised his constitutional right to petition the
individual in the class or group can prove that the government for redress of a legitimate grievance.
defamatory statement specifically pointed to him, so that [Cabansag v. Fernandez (1957)]
he can bring the action separately, if need be. [Newsweek v.
IAC (1986)] Freedom of Expression and Obscenity

As the size of these groups increases, the chances for Determination


members of such groups to recover damages on tortious Community standard
libel become elusive. This principle is said to embrace two Pictures depicting native inhabitants in their native dresses
important public policies: as they appear and live in their native homelands are not
(1) Where the group referred to is large, the courts presume obscene or indecent. The pictures in question merely
that no reasonable reader would take the statements depict persons as they actually live, without attempted
as so literally applying to each individual member; and presentation of persons in unusual postures or dress. The
(2) The limitation on liability would satisfactorily safeguard aggregate judgment of the Philippine community, the
freedom of speech and expression, as well as of the moral sense of all the people in the Philippines, would not
press, effecting a sound compromise between the be shocked by photographs of this type. [People v.
conflicting fundamental interests involved in libel Kottinger (1923)]
cases. [MVRS v. Islamic DaWah Council of the Phil
(2003)] A hula-hula dance portraying a life of a widow who lost her
guerrilla husband cannot be considered protected speech
Actual Malice Standard for Public Officials and Matters of if the audience, about a hundred customers, were howling
Public Interest and shouting, sigue muna, sigue nakakalibog (go ahead
Even if the defamatory statement is false, no liability can first, go ahead, it is erotic), during the performance. [People
attach if it relates to official conduct, unless the public v. Aparici (1955)]
official concerned proves that the statement was made
with actual malice that is, with knowledge that it was CONTENT-NEUTRAL RESTRICTIONS
false or with reckless disregard of whether it was false or Regulations on the incidents of speech time, place and
not. [Vasquez v. CA (1999) citing New York Times v. Sullivan manner.
(1964)]
Freedom of Assembly
SC ADMINISTRATIVE CIRCULAR NO. 08-2008 The right to freedom of speech and to peaceably assemble,
Implements a rule of preference for the imposition of fine and petition the government for redress of grievances are
only rather than imprisonment in libel suits. fundamental personal rights of the people guaranteed by
the constitutions of democratic countries. City or town
Freedom of Expression and the Right to Privacy mayors are not conferred the power to refuse to grant the
Being a public figure does not automatically destroy in toto permit, but only the discretion in issuing the permit to
a persons right to privacy. The right to invade a persons determine or specify the streets or public placeswhere the

PAGE 67
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

parade may pass or the meeting may be held. [Primicias v. association, or group of persons concerned, be declared as
Fugoso (1948)] a terrorist and outlawed organization, association, or
group of persons by the said Regional Trial Court. [Sec. 17,
Absent any clear and present danger of a substantive evil, Human Security Act]
peaceable assembly in public places like streets or parks
cannot be denied. [J.B.L. Reyes v. Bagatsing (1983)] The right to associate is not absolute. [People v. Ferrer
(1972)]
The Calibrated Pre-emptive Response (CPR), insofar as it
would purport to differ from or be in lieu of maximum The right to self-organization shall not be denied to
tolerance, is NULL and VOID.
government employees. [Art. IX-B, Sec. 2(5)]
CPR serves no valid purpose if it means the same thing as
maximum tolerance (Sec. 3 [c] of B.P. 880), and is illegal if The right of the people, including those employed in the
it means something else. Accordingly, what is to be public and private sectors, to form unions, associations, or
followed is and should be that mandated by the law itself, societies for purposes not contrary to law shall not be
namely, maximum tolerance. abridged. [Art. III, Sec. 8]

B.P. 880 not unconstitutional It shall guarantee the rights of all workers to self-
B.P. No. 880 is not an absolute ban of public assemblies organization, collective bargaining and negotiations, and
but a restriction that simply regulates the time, place and peaceful concerted activities, including the right to strike in
manner of the assemblies. The law is not vague or accordance with law. They shall be entitled to security of
overbroad. There is, likewise, no prior restraint, since the tenure, humane conditions of work, and a living wage.
content of the speech is not relevant to the regulation. A They shall also participate in policy and decision-making
fair and impartial reading of B.P. No. 880 thus readily processes affecting their rights and benefits as may be
shows that it refers to all kinds of public assemblies that provided by law. [Art. XIII, Sec. 3(2), par. 2]
would use public places.
FACIAL CHALLENGES AND THE OVERBREADTH
Freedom Parks
DOCTRINE
B.P. 880 provides that every city and municipality must set
aside a freedom park within six months from the laws
General Rule: A party can question the validity of a statute
effectivity in 1985. Section 15 of the law provides for an
only if, as applied to him, it is unconstitutional.
alternative forum through the creation of freedom parks
where no prior permit is needed for peaceful assembly and
Exception: Facial Challenges
petition at any time. Without such alternative forum, to
deny the permit would in effect be to deny the right to
FACIAL CHALLENGES
peaceably assemble.
A facial challenge is allowed to be made to a vague
statute and to one which is overbroad because of possible
Permit Application
chilling effect upon protected speech. The theory is that
There is a need to address the situation adverted to by
[w]hen statutes regulate or proscribe speech and no
petitioners where mayors do not act on applications for a
readily apparent construction suggests itself as a vehicle
permit and when the police demand a permit and the
for rehabilitating the statutes in a single prosecution, the
rallyists could not produce one, the rally is immediately
transcendent value to all society of constitutionally
dispersed.
protected expression is deemed to justify allowing attacks
on overly broad statutes with no requirement that the
In such a situation, as a necessary consequence and part of
person making the attack demonstrate that his own
maximum tolerance, rallyists who can show the police an
conduct could not be regulated by a statute drawn with
application duly filed on a given date can, after two (2)
narrow specificity.
days from said date, rally in accordance with their
application without the need to show a permit, the grant of
The possible harm to society in permitting some
the permit being then presumed under the law, and it will
unprotected speech to go unpunished is outweighed by
be the burden of the authorities to show that there has
the possibility that the protected speech of others may be
been a denial of the application, in which case the rally
deterred and perceived grievances left to fester because of
may be peacefully dispersed following the procedure of
possible inhibitory effects of overly broad statutes.
maximum tolerance prescribed by the law. [Bayan v.
Ermita (2006)]
This rationale does not apply to penal statutes. Criminal
statutes have general in terrorem effect resulting from
Freedom of Association and Self-Organization
their very existence, and, if facial challenge is allowed for
Proscription of Terrorist Organizations, Association, or Group this reason alone, the State may well be prevented from
of Persons. Any organization, association, or group of enacting laws against socially harmful conduct. In the area
persons organized for the purpose of engaging in of criminal law, the law cannot take chances as in the area
terrorism, or which, although not organized for that of free speech.[Concurring Opinion of Justice Mendoza in
purpose, actually uses the acts to terrorize mentioned in Estrada v. Sandiganbayan (2001)]
this Act or to sow and create a condition of widespread and
extraordinary fear and panic among the populace in order OVERBREADTH DOCTRINE
to coerce the government to give in to an unlawful demand A governmental purpose may not be achieved by means
shall, upon application of the Department of Justice before which sweep unnecessarily broadly and thereby invade the
a competent Regional Trial Court, with due notice and area of protected freedoms.
opportunity to be heard given to the organization,

PAGE 68
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

A plain reading of PP 1017 shows that it is not primarily necessary to avoid the danger." In this case, an attempt to
directed to speech, rather it covers a spectrum of conduct. overthrow the Government by force is a sufficient evil for
It is a call upon the AFP to prevent or suppress all forms of Congress to prevent. It is the existence of the conspiracy
lawless violence. Facial challenge on the ground of which creates the danger. [Dennis v. US (1951)]
overbreadth is a very strong medicine. Petitioners did not
show that there is no instance when PP1017 may be valid. MILLER TEST (CCA-SL)
[David vs. Arroyo (2006)] To determine obscenity:
(1) Whether the average person, applying Contemporary
TESTS Community standards would find that the work, taken
DANGEROUS TENDENCY TEST as a whole, Appeals to prurient interest
If the words uttered create a dangerous tendency of an evil (2) Whether the work depicts or describes in a patently
which the State has the right to prevent, then such words offensive way, sexual conduct Specifically defined by
are punishable. [Cabansag v. Fernandez (1957)] the applicable state law
(3) Whether the work, taken as a whole, Lacks serious,
It is sufficient if the natural tendency and the probable literary, artistic, political, or scientific value [Miller v. CA
effect of the utterance were to bring about the substantive (1973) also applied in Fernando v. CA (2006)]
evil that the legislative body seeks to prevent. [People v.
Perez(1956)] O BRIEN TEST (C-GUN)
To determine whether Content- Based or Content-
CLEAR AND PRESENT DANGER TEST Neutral:
The question in every case is whether the words used are (1) If it is within the Constitutional power of the
used in such circumstances and are of such a nature as to Government
create a clear and present danger that they will bring (2) If it furthers an important or substantial Government
about the substantive evils that Congress has a right to interest
prevent. It is a question of proximity and degree. [Schenck (3) If the Government interest is Unrelated to the
v. United States (1919)] suppression of free expression
(4) If the incidental restriction is No greater than is
This rule requires that the danger created must not only essential to the furtherance of that interest
be clear and present but also traceable to the ideas
expressed. [Gonzales v. COMELEC (1969)] COMELEC banned the publication of surveys 15 and 7 days
prior to election concerning national and local candidates,
Note: This test has been adopted by the Philippine SC lock, respectively. The SC held that this regulation is content-
stock and barrel and is the test most applied to cases re: based because applying the 3rd prong of the O-Brien Test,
freedom of expression. it actually suppresses a whole class of expression, while
allowing the expression of opinion concerning the same
BALANCING OF INTEREST TEST subject matter by other opinion takers. The prohibition
When a particular conduct is regulated in the interest of may be for a limited time, but the curtailment of the right
public order, and the regulation results in an indirect, of expression is direct, absolute, and substantial. [SWS v.
conditional and partial abridgement of speech, the duty of COMELEC (2001)]
the courts is to determine which of the two conflicting
interests demands greater protection. [American STATE REGULATION OF DIFFERENT TYPES OF MASS
Communications Assoc. v. Douds, 339 US 282] MEDIA
(1) The ownership and management of mass media shall
The test is applied when two legitimate values not
be limited to citizens of the Philippines, or to corporations,
involving national security crimes compete.[Gonzales v.
cooperatives or associations, wholly-owned and managed
COMELEC (1969)]
by such citizens.
DIRECT INCITEMENT TEST
The Congress shall regulate or prohibit monopolies in
The constitutional guarantees of free speech and free
press do not permit a State to forbid or proscribe advocacy commercial mass media when the public interest so
requires. No combinations in restraint of trade or unfair
of the use of force or of law violation except where such
competition therein shall be allowed.
advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action.
(2) The advertising industry is impressed with public
[Brandenburg v. Ohio (395 U.S. 444)]
interest, and shall be regulated by law for the protection of
consumers and the promotion of the general welfare.
Political discussion even among those opposed to the
present administration is within the protective clause of
freedom of speech and expression. The same cannot be Only Filipino citizens or corporations or associations at
least seventy per centum of the capital of which is owned
construed as subversive activities per se or as evidence of
by such citizens shall be allowed to engage in the
membership in a subversive organization. [Salonga v. Cruz
advertising industry.
Pao(1986)]

GRAVE-BUT-IMPROBABLE DANGER TEST


The participation of foreign investors in the governing body
of entities in such industry shall be limited to their
To determine the clear and present danger of the
proportionate share in the capital thereof, and all the
utterances bringing about the evil which that legislature
has the power to punish, "In each case [courts] must ask executive and managing officers of such entities must be
citizens of the Philippines. [Art. XVI, Sec. 11(1)]
whether the gravity of the 'evil,' discounted by its
improbability, justifies such invasion of free speech as is

PAGE 69
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

The Court pronounced that the freedom of broadcast contract with these TV stations and radio stations at its
media is lesser in scope than the press because of their own expense. [UNIDO v. COMELEC (1981)]
pervasive presence in the lives of people and because of
their accessibility to children. The television camera is a powerful weapon which
intentionally or inadvertently can destroy an accused and
MOVIE CENSORSHIP his case in the eyes of the public.
When MTRCB rated the movie, Kapit sa Patalim as fit
For Adults Only, SC ruled that there was no grave abuse Considering the prejudice it poses to the defendants right
of discretion. to due process as well as to the fair and orderly
administration of justice, and considering further that the
Censorship is allowable only under the clearest proof of a freedom of the press and the right of the people to
clear and present danger of a substantive evil to public information may be served and satisfied by less distracting,
safety, morals, health or any other legitimate public degrading and prejudicial means, live radio and television
interest: coverage of the court proceedings shall not be allowed. No
(1) There should be no doubt what is feared may be traced video shots or photographs shall be permitted during the
to the expression complained of. trial proper.Video footages of court hearings for news
(2) Also, there must be reasonable apprehension about its purposes shall be limited and restricted. [Secretary of
imminence. It does not suffice that the danger is only Justice v. Sandiganbayan (2001)]
probable. [Gonzales v. Kalaw-Katigbak (1985)]
RADIO CENSORSHIP
Limited intrusion into a persons privacy is permissible The SC does not uphold claim that Far Eastern had no
when that person is a public figure and the information right to require the submission of the manuscript. It is the
sought to be published is of a public character. duty of Far Eastern to require the submission of a
manuscript as a requirement in broadcasting speeches.
What is protected is the right to be free from unwarranted Besides, laws provide for such actions:
publicity, from the wrongful publicizing of the private
affairs of an individual which are outside the realm of Act 8130. Franchise for Far Eastern; radio to be open to the
public concern. [Ayer Productions v. Capulong, supra] general public but subject to regulations

TELEVISION CENSORSHIP Comm. Act 98. Sec. of Interior and/or the Radio Board is
P.D. 1986 gave MTRCB the power to screen, review and empowered to censor what is considered neither moral,
examine all television programs. educational or entertaining, and prejudicial to public
interest. The Board can forfeit the license of a
By the clear terms of the law, the Board has the power to broadcasting station.
approve, delete, or prohibit the exhibition and/or
television broadcasts of television programs. The law also Sec. of the Interior, Dept. Order 13. Requires submission of
directs the Board to apply contemporary Filipino culture daily reports to Sec. of Interior/Radio Board re: programs
values as standard to determine those which are before airing. For speeches, a manuscript or short gist
objectionable for being immoral, indecent, contrary to law must be submitted. [Santiago v. Far Eastern Broadcasting
and/or good customs injurious to the prestige of the (1941)]
Republic of the Philippines and its people, or with a
dangerous tendency to encourage the commission of a Strict rules have also been allowed for radio because of its
violence or of a wrong or a crime. pervasive quality and because of the interest in the
protection of children. [FCC v. Pacifica Foundation (1978)]
The law gives the Board the power to screen, review and
examine ALL television programs whether religious, COMMERCIAL SPEECH
public affairs, news documentary, etc. (Ubilex non Commercial speech is unprotected speech. Commercial
distinguit nec distinguere de bemos-when the law does not advertising in the U.S. has been accorded First
make any exception, courts may not except something Amendment protection but not in the same level of
therefrom). [Iglesia ni Cristo v. CA (1996)] protection given to political speech. One case set down the
requirements for protection of commercial speech:
Also, notwithstanding the fact that freedom of religion has (1) speech must not be false, misleading or proposing an
been accorded a preferred status, Iglesiani Cristos illegal activity;
program is still not exempt from MTRCBs power to review. (2) government interest sought to be served by regulation
Freedom of expression and of the press has not been must be substantial;
declared of preferred status. [MTRCB v. ABS-CBN (2005)] (3) the regulation must advance government interest; and
(4) the regulation must not be overbroad. [Bernas]
On the program of Dating Daan, Soriano made crude
remarks like lihitimong anak ng demonyo, sinungaling, PRIVATE V. GOVERNMENT SPEECH
etc. MTRCB preventively suspended him and his show. Parliamentary immunity guarantees the members the
SC held that the State has a compelling interest to protect freedom of expression without fear of being made
the minds of the children who are exposed to such responsible in criminal or civil actions before courts or
materials. [Soriano v. Laguardia (2009)] forum outside of Congress. But this does not protect them
from responsibility from the legislative body. The members
The SC could not compel TV stations and radio stations, may nevertheless be questioned in Congress itself.
being indispensable parties, to give UNIDO free air time as
they were not impleaded in this case. UNIDO must seek a For unparliamentary conduct, members of the Congress
have been, or could be censured, committed to prison,

PAGE 70
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

even expelled by the votes of their colleagues. [Osmea v. charitable, or educational purposes shall be exempt from
Pendatun (1960)] taxation. [Art. VI, Sec. 28 (3)]

HECKLERS VETO (2) Operation of sectarian schools


An attempt to limit unpopular speech. For example, an Educational institutions, other than those established by
unpopular group wants to hold a rally and asks for a religious groups and mission boards, shall be owned solely
permit. The government isnot allowed to refuse the permit
by citizens of the Philippines or corporations or
based upon the beliefs of the applicants. But the associations at least sixty per centum of the capital of
government can deny the permit, reasoning that it isnot
which is owned by such citizens [Art. XIV, Sec. 4(2)]
because the government disapproves of the group's
message, it is just afraid that so many people will be
outraged that there might be violent protests. Under the (3) Religious instruction in public schools
Free Speech Clause of Sec. 4 Art. III, the government may At the option expressed in writing by the parents or
not silence speech based on the reaction (or anticipated guardians, religion shall be allowed to be taught to their
reaction) of a hostile audience, unless there is a "clear and children or wards in public elementary and high schools
present danger" of grave and imminent harm, which isnot within the regular class hours by instructors designated or
easy to prove. approved by the religious authorities of the religion to
which the children or wards belong, without additional
cost to the Government. [Art. XIV, Sec. 3(3)]

Freedom of Religion The government promotes the full growth of the faculties
of every child. For this purpose, the government will
establish, whenever possible:
No law shall be made respecting an establishment of (1) Schools in every barrio, municipality and city where
religion; or prohibiting the free exercise thereof. The free optional religious instruction shall be taught as part of
exercise and enjoyment of religious profession and the curriculum at the option of the parent or guardian.
worship, without discrimination or preference, shall forever xxx [Art. 359, Civil Code]
be allowed. No religious test shall be required for the
exercise of civil or political rights. [Art. III, Sec. 5] (4) Public aid to religion
No public money or property shall be appropriated,
NON-ESTABLISHMENT CLAUSE applied, paid, or employed, directly or indirectly, for the
CONCEPT use, benefit, or support of any sect, church, denomination,
The clause prohibits excessive government entanglement sectarian institution, or system of religion, or of any priest,
with, endorsement or disapproval of religion [Victoriano v. preacher, minister, other religious teacher, or dignitary as
Elizalde Rope Workers Union (1974); Lynch v. Donnelly, 465 such, except when such priest, preacher, minister, or
US 668 (1984) O'Connor, J., concurring); Allegheny County v. dignitary is assigned to the armed forces, or to any penal
Greater Pittsburg ACLU (1989)] institution, or government orphanage or leprosarium.[Art. VI,
Sec. 29(2)]
BASIS
Rooted in the separation of Church and State [Sec. 2(5),
Jurisprudence
Art. IX-C; Sec. 5(2), Sec. 29(2) Art. VI, 1987 Consti]
Religious activities with secular purpose/character.
Postage stamps depicting Philippines as the site of a
ACTS NOT PERMITTED BY NON-ESTABLISHMENT CLAUSE
significant religious event promotes Philippine tourism
(1) Prayer and Bible-reading in public schools [Engel v.
[Aglipay vs. Ruiz, (1937)]
Vitale (1967); Abington School District v. Schemp (1963)]
(2) Financial subsidy for parochial schools[Lemon vs.
Government sponsorship of town fiestas. has secular
Kurtzman (1971)]
character [Garces vs. Estenzo (1981)]
(3) Religious displays in public spaces: Display of granite
monument of 10 commandments in front of a
Book lending program for students in parochial schools.
courthouse is unconstitutional for being unmistakably
benefit to parents and students [Board of Education vs.
non-secular. [Glassroth vs. Moore, 335 F.3d 1282 (11th
Allen, 392 U.S. 236]
Cir. 2003)]
(4) Mandatory religious subjects or prohibition of secular
Display of crche in a secular setting depicts origins of
subjects (evolution) in schools [Epperson vs. Arkansas
the holiday [Lynch vs. Donnely (1984)]
(1968)]
(5) Mandatory bible reading in school (a form of preference
Financial support for secular academic facilities(i.e library
for belief over non-belief) [School District vs. Schempp
and science center) in parochial schools has secular use
(1963)]
[Tilton vs. Richardson (403 U.S. 672)]
(6) Word God in the Pledge of Allegiance: religious vs
atheist students [Newdow vs. US (2003)]
Exemption from zoning requirements to accommodate
unique architectural features of religious buildings i.e
ACTS PERMITTED BY THE ESTABLISHMENT CLAUSE
Mormons tall pointed steeple [Martin vs. Corporation of the
Constitutionally created
Presiding Bishop (434 Mass. 141)]
(1) Tax exemption
Charitable institutions, churches and personages or FREE EXERCISE CLAUSE
convents appurtenant thereto, mosques, non-profit DUAL ASPECT
cemeteries, and all lands, buildings, and improvements, (1) Freedom to believe - absolute
actually, directly, and exclusively used for religious, (2) Freedom to act on ones belief subject to regulation

PAGE 71
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

CONSCIENTIOUS OBJECTOR
Ground for exemption from compulsory military service;
LAWS AND ACTS JUSTIFIED UNDER FREE EXERCISE CLAUSE expanded version provides exemption even to those who
(1) Exemption from flag salute in school [Ebralinag vs. object war based on non-religious beliefs i.e. non-theist
Division Superintendent of Schools of Cebu (1993)]
(2) Freedom to propagate religious doctrines Criteria:
The power to tax the exercise of the privilege is the (1) There must be belief in God or a parallel belief
power to control or suppress its enjoyment [American occupying a central place in the believers life
Bible Society vs. City of Manila (1957)] (2) Religion must involve a moral code transcending
(3) Exemption from union shop individual belief; cannot be purely subjective
Congress acted merely to relieve persons of the burden (3) Demonstrable sincerity in belief must be shown, but
imposed by union security agreements. court cannot inquire into its truth or reasonableness
(4) Non-disqualification of religious leaders from local [United States v. Seeger, 380 U.S. 163 (1965)]
government office [Pamil v. Teleron (1978)] (4) There must be some associational ties. [Estrada v.
Escritor (2003)]
Dean Pangalangan: There should be no distinction
between ordinary believer and the Pope; if the former can
hold office, why not the latter.

(5) Working hours from 7:30am to 3:30pm without break Liberty of Abode and
during Ramadan [Re: Request of Muslim Employees in
the Different Courts of Iligan City (2005)] Freedom of Movement
(6) Exemption from administrative charge on immorality The liberty of abode and of changing the same within the
Cohabiting with a married man with church sanction limits prescribed by law shall not be impaired except upon
evidenced by a document of Declaration of Pledging lawful order of the court. Neither shall the right to travel be
Faithfulness [Estrada v. Escritor (2003)] impaired except in the interest of national security, public
safety or public health, as may be provided by law. [Art. III,
BENEVOLENT NEUTRALITY DOCTRINE Sec. 6]
Gives room for accommodating religion, holding that the
wall is instead meant to protect the church from the state.
"Liberty" as understood in democracies, is not license; it is
It allows interaction between the church and state, but is "Liberty regulated by law."
strict re: state action, which would threaten the integrity of
religious commitment.
LIMITATIONS
WHO MAY IMPAIR AND WHEN RIGHTS MAY BE CURTAILED
The breach in the wall between church and state is
Liberty of abode
allowed in order to uphold religious liberty, which is the Who: courts (lawful order)
integral purpose of the religion clauses. The purpose of When:within limits prescribed by law
accommodation is to remove the burden on a persons
exercise of his religion. The executive of a municipality does not have the right to
force citizens of the Philippine Islands to change their
Although morality contemplated in laws is secular,
domicile from one locality to another. [Villavicencio vs.
benevolent neutrality could allow for accommodation of Lukban (1919)]
morality based on religion, provided it does not offend
compelling state interests. [Estrada v. Escritor (2003)] Right to travel
Who: courts (lawful order) or by the appropriate executive
TESTS
officer.
CLEAR AND PRESENT DANGER
Used for religious speech
When: in the interest of national security (Human Security
Act), public safety or public health (quarantine)
In orderto justify restraint the court must determine
whether the expression presets a clear and present danger
Relocation of Manguinaes, a nomadic people, is a proper
ofany substantive evil, which the state has a right restraint to their liberty. It is for their advancement in
toprevent. [American Bible Society v City of Manila (1957) civilization and so that material prosperity may be assured.
citing Taada and Fernando on the Constitution of the
[Rubi vs. Provincial Board (1919)]
Philippines, Vol. 1, 4th ed., p. 297]
Restraint on right to travel of accused on bail is allowed to
BENEVOLENT NEUTRALITY-COMPELLING STATE INTEREST
avoid the possibility of losing jurisdiction if accused travels
Under the Benevolent Neutrality doctrine, this is the proper abroad. [Manotok vs. CA (1986)]
test where conduct arising from religious belief is involved.
(1) Has the govt action created a burden on the free RIGHT TO TRAVEL
exercise? Court must look into sincerity (but not truth) WATCH LIST ORDER
of belief.
Issued against accused in criminal cases (irrespective of
(2) Is there a compelling state interest to justify the nationality in RTC or below), any person with pending case
infringement?
in DOJ
(3) Are the means to achieve the legitimate state objective
the least intrusive? [Escritor, supra]

PAGE 72
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

HOLD-DEPARTURE ORDER Policy Of Full Public Right To Info On Matters


Issued against accused in criminal cases (irrespective of Disclosure Of Public Concern
nationality in courts below RTC), aliens (defendant, Art. Ii, Sec. 28 Art. Iii, Sec. 7
respondent, witness in pending civil or labor case), any What is asserted
person motu proprio by Sec of Justice or request of heads
of depts, ConComm, Congress, or SC DUTY TO DISCLOSE of the RIGHT TO ACCESS INFO.
govt, pursuant to the policy See below for documents
Both orders are issued by Secretary of Justice [Department of full public disclosure specifically under scope
Circular no. 41, June 7, 2010].

RETURN TO ONES COUNTRY


Right to return to one's country, a distinct right under Notes
international law, is independent from although related to
Public Concern: no exact
the right to travel.
definition and
adjudicated by the courts
The President has the power (residual/implied) to impair
on a case-by-case basis;
the right to return when such return poses threats to the
but examples abound in
government. [Marcos v. Manglapus (1989)]
jurisprudence (e.g. peace
negotiations, board
exams, PCGG
compromise agreements,
Right to Information civil service matters)

SCOPE OF RIGHT TO ACCESS INFORMATION


Subject to reasonable conditions prescribed by law, the Essence: matters of public concern
State adopts and implements a policy of full public (1) Official records
disclosure of all its transactions involving public interest. Includes the names of nominees of party-lists because
[Art. II, Sec. 28] ultimately, the individual members and not the party
list itself will sit in Congress [Bantay Republic v.
The right of the people to information on matters of public COMELEC (2007)]
concern shall be recognized. Access to official records, and (2) Documents pertaining to official acts
to documents and papers pertaining to official acts, Includes negotiations leading to the consummation of
transactions, or decisions, as well as to government the transaction. Otherwise, the people can never
research data used as basis for policy development, shall exercise the right if no contract is consummated, or if
be afforded the citizen, subject to such limitations as may one is consummated, it may be too late for the public
be provided by law. [Art. III, Sec. 7] to expose its defects. Limited to definite propositions,
see below. [Chavez v. PEA and Amari (2002)]
(3) Govt research data used as basis for policy
The State shall provide the policy environment for the full development
development of Filipino capability and the emergence of
communication structures suitable to the needs and LIMITATIONS
aspirations of the nation and the balanced flow of Restrictions to the right to information may be:
information into, out of, and across the country, in (1) Based on kinds of information
accordance with a policy that respects the freedom of
speech and of the press. [Art. XVI, Sec. 10] Exempted information:
(a) Privileged information rooted in separation of powers
POLICY OF FULL PUBLIC DISCLOSURE V. RIGHT TO (b) Information of military and diplomatic secrets
INFORMATION (c) Information affecting national security
[See IDEALS v. PSALM (2012)] (d) Information on investigations of crimes by law
Policy Of Full Public Right To Info On Matters enforcers before prosecution [Chavez v. PEA and
Disclosure Of Public Concern Amari, supra]
Art. Ii, Sec. 28 Art. Iii, Sec. 7 (e) Offers exchanged during diplomatic negotiations
Matter [Akbayan v. Aquino (2008)]
All transactions involving Matters of public concern (2) Based on access:
public interest; (a) opportunity to inspect and copy records at his
Broad scope, embraces any expense. [Chavez v. PEA and Amari, supra]
matter contained in official (b) not the right to compel custodians of official records
communications and public to prepare lists, summaries and the like. [Valmonte
documents of the govt v. Belmonte (1989)]
agency (3) Based on reasonable regulation for the convenience of
Demand to Access and for order in the office that has custody of the
Demand or request documents.[Baldoza v. Dimaano (1976)]
required to gain access Discretion does not carry with it the authority to
(IDEALS) prohibit access, inspection, examination, or
copying.[Lantaco v. Llamas (1981)]
(4) Based on Availability
Right available only to citizens

PAGE 73
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

this moment, the publics right to information attaches,


PUBLICATION OF LAWS AND REGULATIONS and any citizen can assail the non-proprietary information
General: Full publication is a condition for laws effectivity. leading to such definite prop. [Chavez v. PEA, supra]

Scope: All statutes [includes those of local application and The limitations recognized to the right of information are:
private laws], presidential decreesand executive orders by (1) National security matter including state secrets
President acting under power either directly conferred by regarding military and diplomatic matters, inter-
the Constitution or validly delegated by the legislature, government exchanges prior to the conclusion of
and administrative rules and regulations for implanting treaties and executive agreements.
existing laws, charter of a city, circulars by Monetary Board (2) Trade secrets and banking transactions
Internal regulations and letter of instructions concerning (3) Criminal Matters
guidelines for subordinates and not the public are not (4) Other confidential matters. [Neri v. Senate (2008) citing
included Chavez v. President Commission on Good Government]
Effectivity: Fifteen days after publication unless a different DIPLOMATIC NEGOTIATIONS
effectivity date is fixed by the legislature [Taada v. Tuvera Diplomatic secrets (Diplomatic Negotiations Privilege):
(1986)] Secrecy of negotiations with foreign countries is not
violative of the right to information. Diplomacy has a
ACCESS TO COURT RECORDS confidential nature. While the full text [of the JPEPA] may
SECTION 1. Court personnel shall not disclose to any not be kept perpetually confidential, it is in line with the
unauthorized person any confidential information acquired public interest that the offers exchanged during
by them while employed in the judiciary, whether such negotiations continue to be privileged information.
information came from authorized or unauthorized Furthermore, the information sought includes docs
sources. produced and communicated by a party external to the
PHL govt. However, such privilege is merely presumptive,
Confidential information means information not yet made and will not apply to all cases. [Akbayan v. Aquino (2008)]
a matter of public record relating to pending cases, as well
as information not yet made public concerning the work of COURT HEARINGS
any justice or judge relating to pending cases, including Right of accused over right to public information:
notes, drafts, research papers, internal discussions, With the possibility of losing not only the precious liberty
internal memoranda, records of internal deliberations and but also the very life of an accused, it behooves all to make
similar papers. absolutely certain that an accused receives a verdict solely
on the basis of a just and dispassionate judgment, a verdict
The notes, drafts, research papers, internal discussions, that would come only after the presentation of credible
internal memoranda, records of internal deliberations and evidence testified to by unbiased witnesses unswayed by
similar papers that a justice or judge uses in preparing a any kind of pressure, whether open or subtle, in
decision, resolution or order shall remain confidential even proceedings that are devoid of histrionics that might
after the decision, resolution or order is made public. detract from its basic aim to ferret veritable facts free from
[Canon II Confidentiality Code of Conduct for Court improper influence, and decreed by a judge with an
Personnel (AM No. 03-06-13-SC)] unprejudiced mind unbridled by running emotions or
passions. [Re: Request for Live Radio-TV Coverage of the
Decisions are matters of public concern and interest. Trial in the Sandiganbayan of the Plunder Cases against
former President Joseph Ejercito Estrada, Secretary of Justice
Pleadings and other documents filed by parties to a case Hernando Perez v. Joseph Ejercito Estrada, A.M. No. 00-1-4-
need not be matters of public concern or interest. They are 03-SC, June 29, 2001]
filed for the purpose of establishing the basis upon which
the court may issue an order or a judgment affecting their
rights and interest.

Access to court records may be permitted at the discretion Right to Association


and subject to the supervisory and protective powers of the
court, after considering the actual use or purpose for which The right of the people, including those employed in the
the request for access is based and the obvious prejudice public and private sectors, to form unions, association, or
to any of the parties.[Hilado, et al v. Judge (2006)] societies for purposes not contrary to law shall not be
abridged. [Art. III., Sec. 8]
RIGHT TO INFORMATION RELATIVE TO
GOVERNMENT CONTRACT NEGOTIATIONS
The constitutional right to information includes official The right to self-organization shall not be denied to
information on on-going negotiations before a final government employees. [Art. IXB, Sec. 2(5)]
contract. The information, however, must constitute
definite propositions by the government, and should not xxx. It shall guarantee the rights of all workers to self-
cover recognized exceptions. [Chavez v. Philippine Estate organization, collective bargaining and negotiations, and
Authority (2002)] peaceful concerted activities, including the right to strike in
accordance with law. They shall be entitled to security of
Definite propositions: While evaluation of bids or proposals tenure, humane conditions of work, and a living wage.
is on-going, there are no official acts, transactions, or They shall also participate in policy and decision-making
decisions. However, once the committee makes an official processes affecting their rights and benefits as may be
recommendation, there arises a definite proposition. From provided by law. [Art. XIII, Sec. 3]

PAGE 74
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

Origin: Malolos Constitution COMMUNIST AND SIMILAR ORGANIZATIONS


The basic guidelines for prosecution under the Anti-
Interpretation of for purposes not contrary to law: same Subversion Act, are the following elements for the crime to
as clear and present danger rule, only such may justify be established:
abridgement to the right to form association or society. (1) In case of subversive organizations other than the CPP:
[Gonzales v. COMELEC (1969)] (a) that the purpose of the organization is to overthrow the
present Government of the Philippines and to establish
Scope: The right is recognized as belonging to people in this country a totalitarian regime under the
whether employed or unemployed, and whether employed domination of a foreign power;
in the government or in the private sector. Includes the right (b) that the accused joined such organization; and
to unionize (c) that he did so knowingly, willfully and by overt acts; and
(2) In the case of the CPP:
The State does not infringe on the fundamental right to (a) that the CPP continues to pursue the objectives which
form lawful associations when it leaves to citizens the led Congress in 1957 to declare it to be an organized
power and liberty to affiliate or not affiliate with labor conspiracy for the overthrow of the Government by
unions. [Victoriano v. Elizalde (1974)] illegal means for the purpose of placing the country
under the control of a foreign power;
Every group has a right to join the democratic process, (b) that the accused joined the CPP; and
association itself being an act of expression of the (c) that he did so willfully, knowingly and by overt acts.
members belief, even if the group offends the sensibilities [People v. Ferrer (1972)]
of the majority. Any restriction to such requires a
compelling state interest to be proven by the State. [Ang INTEGRATED BAR OF THE PHILIPPINES
Ladlad LGBT Party v. COMELEC (2010)] Compulsory membership of a lawyer in the integrated bar
of the Philippines does not violate the constitutional
The freedom of association presupposes a freedom not to guarantee. [In Re: Edillon (1978)]
associate. An organization may remove a member if:
(1) It is engaged in some form of expression, whether public
or private
(2) The forced inclusion of a member would significantly
affect the organizations ability to advocate public or Eminent Domain
private viewpoints [Boy Scouts of America v. Dale
(2000)] CONCEPT
It is the right of the government to take private property
Does not include the right to compel others to form an with just compensation.
association. But there may be situations in which, by
entering into a contract, one may also be agreeing to join GENERALLY
an association. [Bernas] (1) Taking of Private Property
(2) for Public Use,
If a land buyer who buys a lot with an annotated lien that (3) with Just Compensation, and
the lot owner becomes an automatic member of a (4) Due Process.
homeowners association thereby voluntarily joins the
association. [Bel-Air Village Association v. Diokno (1989)] SPECIFICALLY (LGUs, Sec. 19, Local Government Code)
(1) Ordinance by a local legislature council is enacted
Note: Right to association and right to unionize of authorizing local chief executive to exercise eminent
government employees do not include the right to strike. domain,
[SSS Employees Association v. CA (1989)] (2) For public use, purpose or welfare or for the benefit of
the poor and of the landless,
LABOR UNIONISM (3) Payment of just compensation,
LEGAL PERSONALITY AS PRE-CONDITION FOR EFFECTIVE (4) Valid and definite offer has been previously made to
ASSOCIATION ACTION owner of the property sought to be expropriated but
The right to form associations does not necessarily include such offer was not accepted [Municipality of Paraaque
the right to be given legal personality. However, if the law vs. VM Realty (1998)]
itself should make possession of legal personality a pre-
condition for effective associational action, involved would WHO HAS JURISDICTION? Regional Trial Court
be not just the right to have legal personality but also the While the value of the property to be expropriated is
right to be an association. [Philippine Association of Free estimated in monetary terms for the court is duty bound
Labor Unions v. Secretary of Labor (1969)] to determine the amount of just compensation to be paid
for the property it is merely incidental to the
ELIGIBILITY TO JOIN, ASSIST OR FORM UNION EXPRESSLY DENIED BY expropriation suit [Barangay San Roque, Talisay, Cebu v.
LAW Heirs of Francisco Pastor (2000); Bardillion v. Barangay
The right of association of managerial employees is denied Masili of Calamba, Laguna (2003)]
because of Article 245 of the Labor Code which provides
that managerial employees are not eligible to join, assist or The issuance of a writ of possession becomes ministerial
form any labor organization. This is because Art III Sec 8 is upon the (1) filing of a complaint for expropriation
subject to the condition that its exercise is for the purposes sufficient in form and substance, and (2) upon deposit
not contrary to law. [United Pepsi-Cola Supervisory Union made by the government of the amount equivalent to 15%
(UPSU) v. Laguesma (1998)] of the fair market value of the property sought to be

PAGE 75
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

expropriated per current tax declaration. [Biglang-Awa v. (4) Property must be devoted to public use or otherwise
Judge Bacalla (2000); Bardillon v. Barangay Masili of informally appropriated or injuriously affected
Calamba, Laguna (2003)] (5) Utilization of the property must be in such a way as to
oust the owner and deprive him of beneficial enjoyment
SCOPE AND LIMITATIONS of the property. [Republic v. Castellvi (1974)]
All Private Property capable of ownership may be
expropriated, except money and choses in action. Even DUE PROCESS
services may be subject to eminent domain. [Republic v. Hearing or procedure for determination of propriety of the
PLDT (1969)] expropriation or the reasonableness of the compensation
must be provided. [Belen v. CA (1991)]
Exercise of right to eminent domain is strictly construed
against the State or its agent because such right is EXPANSIVE CONCEPT OF PUBLIC USE
necessarily in derogation of private rights. [Jesus is Lord The idea that "public use" means "use by the public" has
Christian School Foundation v. Municipality of Pasig (2005)] been discarded. At present, whatever may be beneficially
employed for the general welfare satisfies the requirement
NECESSITY of public use. [Heirs of Juancho Ardona vs. Reyes (1983)]
The foundation of the right to exercise eminent domain is
genuine necessity and that necessity must be of public That only a few benefits from the expropriation does not
character. Government may not capriciously or arbitrarily diminish its public-use character, inasmuch as pubic use
choose which private property should be expropriated. now includes the broader notion of indirect public benefit or
[Lagcao v. Judge Labra (2004)] advantage [Filstream International vs. CA (1998)]

Congress - political question Private bus firms, taxicab fleets, roadside restaurants, and
other private businesses using public streets and highways
Delegate do not diminish in the least bit the public character of
(a) Grant of special authority for special purpose- political expropriations for roads and streets. The lease of store
question spaces in underpasses of streets built on expropriated land
(b) Grant of general authority- justiciable question [City of does not make the taking for a private purpose. Airports
Manila v. Chinese Community of Manila (1919)] and piers catering exclusively to private airlines and
shipping companies are still for public use. The
When the power is exercised by the legislature, the expropriation of private land for slum clearance and urban
question of necessity is generally a political question. development is for a public purpose even if the developed
[Municipality of Meycauyan, Bulacan v. Intermediate area is later sold to private homeowners, commercial firms,
Appellate Court (1988)] entertainment and service companies, and other private
concerns. [Heirs of Ardona vs. Reyes (1983)]
The RTC has the power to inquire into the legality of the
exercise of the right of eminent domain and to determine JUST COMPENSATION
whether there is a genuine necessity for it. [Bardillon v. It is the just and complete equivalent of the loss which the
Barangay Masili of Calamba, Laguna (2003)] owner of the thing expropriated has to suffer by reason of
the expropriation.
PRIVATE PROPERTY
Private property already devoted to public use cannot be Full and fair equivalent of the property taken; it is the fair
expropriated by a delegate of legislature acting under a market value of the property. [Province of Tayabas vs. Perez
general grant of authority. [City of Manila v. Chinese (1938)]
Community (1919)]
DETERMINATION
Generally, all private property capable of ownership may Basis:
be expropriated, except money and chooses in action. Fair Market Value
[Republic v. PLDT (1969)] Price fixed by a buyer desirous but not compelled to buy
and a seller willing but not compelled to sell.
A chose in action is a proprietary right in personam, such as
debts owned by another person, a share in a joint-stock Must includeconsequential damages (damages to other
company, or a claim for damages in tort; it is the right to interest of the owner attributable to the expropriation) and
bring an action to recover a debt, money or thing [Blacks deduct consequential benefits (increase of value of other
Law Dictionary] interests attributable to new use of the former property).

TAKING However, where only a portion of the property is taken, the


The exercise of the power of eminent does not always owner is entitled only to the market value of the portion
result in the taking or appropriation of title to the actually taken and the consequential damage to the
expropriated property; it may only result in the imposition remaining part.
of a burden upon the owner of the condemned property,
without loss of title or possession. [National Power Who Determines
Corporation v. Gutierrez (1991)] Determination of just compensation is a judicial function.
[National Power Corporation vs. Sps. Florimon V. Lleto, et al.,
Requisites for a valid taking: (2012)]
(1) The expropriator must enter a private property
(2) Entry must be for more than a momentary period
(3) Entry must be under warrant or color of legal authority

PAGE 76
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

Presidential Decrees merely serve as guide/factors for the beneficiary. [Sta. Rosa Realty & Development Corp. v. Court
courts in determining just compensation [EPZA vs. Dulay, of Appeals (2001)]
148 SCRA 305]
Private property shall not be taken for public use without
Findings of court appointed commissioners regarding the just compensation. [Art. III, Sec. 9]
determination of just compensation are not binding to
courts [Republic v. Santos (1986); Republic (MECS) v. IAC
(1990)] The State may, in the interest of national welfare or
defense, establish and operate vital industries and, upon
The court may substitute its own estimate of the value of payment of just compensation, transfer to public
the property only for valid reasons: (a) the commissioners ownership utilities and other private enterprises to be
have applied illegal principles to the evidence submitted to operated by the government. [Art. XII, Sec. 18]
them; (b) they have disregarded a clear preponderance of
evidence; or (c) where the amount allowed is either grossly The State shall, by law, undertake an agrarian reform
inadequate or excessive. [National Power Corporation v. De program founded on the right of farmers and regular
la Cruz (2007)] farmworkers who are landless, to own directly or collectively
the lands they till or, in the case of other farmworkers, to
When determined receive a just share of the fruits thereof.
General: At the time of the filing of the case
To this end, the State shall encourage and undertake the
Exception: If the value of the property increased because of just distribution of all agricultural lands, subject to such
the use to which the expropriator has put it, the value is priorities and reasonable retention limits as the Congress
that of the time of the taking. [NAPOCOR v. CA (1996)] may prescribe, taking into account ecological,
developmental, or equity considerations, and subject to the
Legal interest: 6%, time when payment is due to actual payment of just compensation.
payment
In determining retention limits, the State shall respect the
EFFECT OF DELAY right of small landowners. The State shall further provide
Just compensation means not only the correct amount to incentives for voluntary land-sharing. [Art. XIII, Sec. 4]
be paid to the owner of the land but also payment within a
reasonable time from its taking [Eslaban v. De Onorio
(2001)] The State shall, by law, and for the common good,
undertake, in cooperation with the private sector, a
General rule on delay of payment: continuing program of urban land reform and housing
For non-payement, the remedy is the demand of payment which will make available at affordable cost, decent housing
of the fair market value of the property and not the and basic services to under-privileged and homeless citizens
recovery of possession of the expropriated lots. [Republic of in urban centers and resettlement areas.
the Philippines v. Court of Appeals (2002); Reyes v. National
Housing Authority (2003)] It shall also promote adequate employment opportunities
to such citizens. In the implementation of such program
Exception: the State shall respect the rights of small property owners.
When the government fails to pay just compensation [Art. XIII, Sec. 9]
within five years from the finality of the judgment in the
expropriation proceedings, the owners concerned shall The National assembly may authorize, upon payment of
have the right to recover possession of their property. just compensation, the expropriation of private lands to be
[Republic of the Philippines v. Vicente Lim (2005)] subdivided into small lots and conveyed at cost to
deserving citizens. [Art. XIV, Sec. 13]
ABANDONMENT OF INTENDED USE AND RIGHT OF
REPURCHASE
If the expropriator (government) does not use the property
for a public purpose, the property reverts to the owner in fee
simple. [Heirs of Moreno vs. Mactan-Cebu International Contracts Clause
Airport (2005)]
No law impairing the obligation of contracts shall be
MISCELLANEOUS APPLICATION
passed. [Art. III, Sec. 10]
TAKING UNDER SOCIAL JUSTICE CLAUSE
Agrarian Reform (Art. XIII, Sec. 4):This provision is an
exercise of the police power of the State through eminent APPLICATION OF THE CONTRACT CLAUSE
domain (Association of Small Landowners vs. Secretary of Impairment is anything that diminishes the efficacy of the
Agrarian Reform) as it is a means to regulate private contract. [Clements v. Nolting (1922)]
property.
REQUISITES:
Retention limits prescribed by the Comprehensive (1) Substantial impairment
Agrarian Reform Law is also form of taking under the (a) change the terms of legal contract either in time or
power of eminent domain. The taking contemplated is not mode of performance
a mere limitation on the use of the land, but the surrender (b) impose new conditions
of the title to and physical possession of the excess and all (c) dispenses with expressed conditions
beneficial rights accruing to the owner in favor of the (d) authorizes for its satisfaction something different from
that provided in the terms

PAGE 77
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

(2) Affects rights of parties with reference to each other, and three thousand (P3,000.00) pesos a month if residing
and not with respect to non-parties. [Philippine Rural outside Metro Manila, and (b) who do not own real
Electric Cooperatives Association v. Secretary, DILG property with an assessed value of more than fifty
(2003)] thousand (P50,000.00) pesos shall be exempt from the
payment of legal fees.
CONTEMPORARY APPLICATION OF THE CONTRACT
CLAUSE The legal fees shall be a lien on any judgment rendered in
WHEN NON-IMPAIRMENT CLAUSE PREVAILS: the case favorably to the indigent litigant, unless the court
(1) against power of taxation otherwise provides.
(2) regulation on loans
To be entitled to the exemption herein provided, the
New regulations on loans making redemption of property litigant shall execute an affidavit that he and his
sold on foreclosure stricter are not allowed to apply immediate family do not earn a gross income
retroactively. [Co v. Philippine National Bank (1982)] abovementioned, nor they own any real property with the
assessed value aforementioned, supported by an affidavit
WHEN NON-IMPAIRMENT CLAUSE YIELDS: of a disinterested person attesting to the truth of the
(1) Invalid exercise of police power i.e zoning regulation litigant's affidavit.
[Presley v. Bel-Air Village Association (1991)], premature
campaign ban [Chavez v. COMELEC (2004)], liquidation Any falsity in the affidavit of a litigant or disinterested
of a chartered bank [Philippine Veterans Bank person shall be sufficient cause to strike out the pleading
Employees Union v. Philippine Veterans Bank (1990)] of that party, without prejudice to whatever criminal
(2) Statute that exempts a party from any one class of liability may have been incurred. [Rule 141, Sec. 18, Rules of
taxes Court]
(3) Against freedom of religion [Victoriano v. Elizalde Rope
Workers (1974)] Indigent party. A party may be authorized to litigate his
(4) Judicial or quasi-judicial order action, claim or defense as an indigent if the court, upon an
ex parte application and hearing, is satisfied that the party
The non-impairment clause is a limit on legislative power, is one who has no money or property sufficient and
and not of judicial or quasi-judicial power. The approval of available for food, shelter and basic necessities for himself
the Rehabilitation Plan by the Securities and Exchange and his family.
Commission is an exercise of adjudicatory power by an
administrative agency and thus the non-impairment Such authority shall include an exemption from payment
clause does not apply. Neither does it impair the power to of docket and other lawful fees, and of transcripts of
contract. [BPI v. SEC (2007)] stenographic notes which the court may order to be
furnished him. The amount of the docket and other lawful
Note:Timber licenses, permits, and license agreements are fees which the indigent was exempted from paying shall
the principal instruments by which the State regulates the be a lien on any judgment rendered in the case favorable
utilization and disposition of forest resources to the end to the indigent, unless the court otherwise provides.
that public welfare is promoted. They are not deemed
contracts within the purview of the due process of law Any adverse party may contest the grant of such authority
clause. [Oposa v. Factoran (1993)]
at any time before judgment is rendered by the trial court.
If the court should determine after hearing that the party
LIMITATIONS declared as an indigent is in fact a person with sufficient
It is ingrained in jurisprudence that the constitutional
income or property, the proper docket and other lawful
prohibition does not prohibit every change in existing laws. fees shall be assessed and collected by the clerk of court.
To fall within the prohibition, the change must not only If the payment is not made within the time fixed by the
impair the obligation of the existing contract, but the
court, execution shall issue or the payment thereof,
impairment must be substantial. Moreover, the law must without prejudice to such other sanctions as the court may
effect a change in the rights of the parties with reference to
impose. [Rule 3, Sec. 21, Rules of Court]
each other, and not with respect to non-parties. [Philippine
Rural Electric Cooperatives Association v. Secretary, DILG
(2003)] RA NO. 9999
FREE LEGAL ASSISTANCE ACT OF 2010
Legal services- any activity which requires the application of
law, legal procedure, knowledge, training and experiences
which shall include, among others, legal advice and
Legal Assistance and Free counsel, and the preparation of instruments and contracts,
including appearance before the administrative and quasi-
Access to Courts judicial offices, bodies and tribunals handling cases in
court, and other similar services as may be defined by the
Supreme Court.
Free access to the courts and quasi-judicial bodies and
adequate legal assistance shall not be denied to any
person by reason of poverty. [Art. III, Sec. 11] Section 4. Requirements for Availment. - For purposes of
availing of the benefits and services as envisioned in this
Act, a lawyer or professional partnership shall secure a
SEC. 18. Indigent litigants exempt from payment of legal certification from the Public Attorney's Office (PAO), the
fees.Indigent litigants (a) whose gross income and that of Department of Justice (DOJ) or accredited association of
their immediate family do not exceed four thousand the Supreme Court indicating that the said legal services
(P4,000.00) pesos a month if residing in Metro Manila, to be provided are within the services defined by the

PAGE 78
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

Supreme Court, and that the agencies cannot provide the (1) He has a right to remain silent;
legal services to be provided by the private counsel. (2) That any statement he makes may be used as evidence
against him; and
For purpose of determining the number of hours actually (3) That he has a right to the presence of an attorney,
provided by the lawyer and/or professional firm in the either retained or appointed.
provision of legal services, the association and/or
organization duly accredited by the Supreme Court shall RA 7438, RIGHTS OF PERSONS UNDER CUSTODIAL
issue the necessary certification that said legal services INVESTIGATION
were actually undertaken. Section 1. Statement of Policy. - It is the policy of the Senate
to value the dignity of every human being and guarantee
Section 5. Incentives to Lawyers. - For purposes of this Act, full respect for human rights
a lawyer or professional partnerships rendering actual free
legal services, as defined by the Supreme Court, shall be Section 2. Rights of Persons Arrested, Detained or Under
entitled to an allowable deduction from the gross income, Custodial Investigation; Duties of Public Officers.
the amount that could have been collected for the actual free Any public officer or employee, or anyone acting under his
legal services rendered or up to ten percent (10%) of the gross order or his place, who arrests, detains or investigates any
income derived from the actual performance of the legal person for the commission of an offense:
profession, whichever is lower: Provided, That the actual (1) shall inform the latter, in a language known to and
free legal services herein contemplated shall be exclusive understood by him,
of the minimumsixty (60)-hour mandatory legal aid services (2) of his rights to remain silentand
rendered to indigent litigants as required under the Rule (3) to have competent and independent counsel,
on Mandatory Legal Aid Services for Practicing Lawyers, preferably of his own choice,
under BAR Matter No. 2012, issued by the Supreme Court. (4) who shall at all times be allowed to confer privately
with the person arrested, detained or under custodial
Note: The significance of having an explicit free access investigation.
provisions in the Constitution may be gathered from the (5) If such person cannot afford the services of his own
rocky road which free access seems to have traveled in counsel, he must be provided with a competent and
American jurisprudence. The American constitution does independent counsel by the investigating officer.
not have an explicit free access provision and, hence, its
free access doctrine has been developed as implicit from AVAILABILITY
both the equal protection clause and the due process (1) When the person is already under custodial
clause. [Bernas] investigation
(2) Custodial investigation involves any questioning
initiated by law enforcement
(3) During critical pre-trial stages in the criminal process
Rights of Suspects CUSTODIAL INVESTIGATION
Involves any questioning initiated by law enforcement
(1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right When the investigation is no longer a general inquiry unto
to remain silent and to have competent and an unsolved crime but has begun to focus on a particular
independent counsel preferably of his own choice. If suspect, as when the suspect has been taken into police
the person cannot afford the services of counsel, he custody and the police carries out a process of
must be provided with one. These rights cannot be interrogation that lends itself to eliciting incriminating
waived except in writing and in the presence of statements. [People vs. Mara (1994)]
counsel.
(2) No torture, force, violence, threat, intimidation, or any Includes issuing an invitation to a person under
other means which vitiate the free will shall be used investigationin connection with an offense he is suspected
against him. Secret detention places, solitary, to have committed. [Sec. 2, RA 7438]
incommunicado, or other similar forms of detention are
prohibited. CRITICAL PRE-TRIAL STAGE
(3) Any confession or admission obtained in violation of Any critical confrontation by the prosecution at pretrial
this or Section 17 hereof shall be inadmissible in proceedingswhere the results might well determine his
evidence against him. fate andwhere the absence of counsel might derogate
(4) The law shall provide for penal and civil sanctions for from his right to a fair trial. [U.S. vs. Wade (1967)]
violations of this section as well as compensation to the
rehabilitation of victims of torture or similar practices, SHOW - UP AND POLICE LINE-UP
and their families. [Art. III, Sec. 12] General: No right to counsel

In Miranda v. Arizona: The Federal Supreme Court made it Out-of-court identification like a show up (accused is
clear that what is prohibited is the "incommunicado brought face to face with the witness for identification), or
interrogation of individuals in a police dominated police line-up (suspect is identified by witness from a
atmosphere, resulting in self- incriminating statements group of persons gathered for that purpose)
without full warnings of constitutional rights.
Exception: Right to counsel if accusatory
MIRANDA RIGHTS
The person under custodial investigation must be warned The moment there is a move or even an urge of said
that: investigators to elicit admissions or confessions or even

PAGE 79
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

plain information which may appear innocent or innocuous


at the time, from said suspect [Gamboa v. Cruz (1988)] Not competent counsel: lawyer signing only as witness
[People v. Ordono (June 2000)], mayor of town where
POLICE LINE-UPS accused is detained [People v. Velarde (2002)]
When petitioner was identified by the complainant at the
police line-up, he had not been held yet to answer for a Failure to ask for a lawyer does not constitute a waiver.
criminal offense. The police line-up is not a part of the
custodial inquest, hence, he was not yet entitled to counsel. No effective waiver of the right to counsel during
interrogation can be recognized unless specifically made
Thus, it was held that when the process had not yet shifted after the warnings have been given.
from the investigatory to the accusatory as when police
investigation does not elicit a confession the accused may Request for assistance of counsel before any interrogation
not yet avail of the services of his lawyer. [Escobedo v. Illinois cannot be ignored/denied by authorities. Not only right to
of the United States Federal Supreme Court (1964)] consult with an attorney but right to be given a lawyer to
represent him if hes indigent
However, given the clear constitutional intent in the 1987
Constitution, the moment there is a move or even an urge RIGHTS TO VISITATION AND CONFERENCE
of said investigators to elicit admissions or confessions or Sec. 2. Rights of Persons Arrested, Detained or Under
even plain information which may appear innocent or Custodial Investigation; Duties of Public Officers. (f) Any
innocuous at the time, from said suspect, he should then person arrested or detained or under custodial
and there be assisted by counsel, unless he waives the investigation shall be allowed visits by or conferences with:
right, but the waiver shall be made in writing and in the (1) any member of his immediate family, or
presence of counsel. [Gamboa vs. Cruz (1988)] (2) any medical doctor;
(3) priest or religious ministerchosen by him; or
REQUISITES (4) by his counsel; or
Essence: Effective communication by the investigator of (5) by any national non-governmental organization duly
rights of accused [People v. Agustin (1995)] accredited by the Commission on Human Rights or
(6) by any international non-governmental organization
RIGHT TO REMAIN SILENT duly accredited by the Office of the President.
The warning is needed simply to make the person under (7) The person's "immediate family" shall include his or her
custodial investigation aware of the existence of the right; spouse, fiance or fiancee, parent or child, brother or
sister, grandparent or grandchild, uncle or aunt,
This warning is the threshold requirement for an intelligent nephew or niece, and guardian or ward.
decision as to its exercise.
WAIVER
More importantly, such a warning is an absolute pre-
What can be waived
requisite in overcoming the inherent pressures of the The right to remain silent and the right to counsel
interrogation atmosphere.
What cannot be waived
Further, the warning will show the individual that his The right to be given the MIRANDA warnings.
interrogators are prepared to recognize his privilege
should he choose to exercise it.
RULE ON WAIVER

RIGHT AGAINST SELF-INCRIMINATION UNDER ART. III, SEC. 12 (1) Must be in writing
The warning of the right to remain silent must be (2) Made in the presence of counsel [Art. III, Sec. 12]
accompanied by the explanation that anything said can
and will be used against the individual in court. RA 7438, RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION
Section 2. Rights of Persons Arrested, Detained or Under
This warning is needed in order to make him aware not Custodial Investigation; Duties of Public Officers.
only of the privilege to remain silent, but also of the (e) Any waiver by a person arrested or detained under the
consequences of forgoing it. provisions of Article 125 of the Revised Penal Code, or
under custodial investigation, shall be in writing and
RIGHT TO COUNSEL signed by such person in the presence of his counsel;
Rights of Persons Arrested, Detained or Under Custodial otherwise the waiver shall be null and void and of no
Investigation; Duties of Public Officers. effect.
(a) Any person arrested detained or under custodial
investigation shall at all times be assisted by counsel; BURDEN OF PROVING VOLUNTARINESS OF WAIVER [PEOPLE V.
otherwise the waiver shall be null and void and of no JARA, 1986]
effect. [RA 7438, Rights of Persons under Custodial Presumption against the waiver
Investigation; Section 2.] Burden of proof: prosecution
prosecution must prove with strongly convincing evidence to
Essence: when a counsel is engaged by anyone acting on the satisfaction of this Court that indeed the accused:
behalf of the person under investigation, or appointed by (1) Willingly and voluntarily submitted his confession and
the court upon petition by said person or by someone on (2) Knowingly and deliberately manifested that he was not
his behalf. [People v. Espiritu (1999)] interested in having a lawyer assist him during the
taking of that confession.
Competent and independent counsel preferably of the
suspects own choice

PAGE 80
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

Rights of the Accused (h) To have speedy, impartial and public trial.

(i) To appeal in all cases allowed and in the manner


prescribed by law. [Rule 115, Rights of the Accused,
(1) No person shall be held to answer for a criminal offense
Rules of Court]
without due process of law.
(2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and CRIMINAL DUE PROCESS
shall enjoy the right to be heard by himself and Requisites [People vs. Vera (1937)]
counsel, to be informed of the nature and cause of the (1) Accused is heard by a court of competent jurisdiction;
accusation against him, to have a speedy, impartial, (2) Accused is proceeded against under the orderly process
and public trial, to meet the witnesses face to face, and of law;
to have compulsory process to secure the attendance (3) Accused is given notice and opportunity to be heard;
of witnesses and the production of evidence in his (4) Judgment rendered is within the authority of a
behalf. However, after arraignment, trial may proceed constitutional law. [Mejia vs. Pamaran (1988)]
notwithstanding the absence of the accused: Provided,
that he has been duly notified and his failure to appear BAIL
is unjustifiable. [Art. III, Sec. 14] All persons, except those charged with offenses
punishable by reclusion perpetua when the evidence of
guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may
Section 1. Rights of accused at trial. In all criminal
be provided by law. The right to bail shall not be impaired
prosecutions, the accused shall be entitled to the following
even when the privilege of the writ of habeas corpus is
rights:
suspended. Excessive bail shall not be required. [Art. III,
(a) To be presumed innocent until the contrary is proved
Sec. 13]
beyond reasonable doubt.
(b) To be informed of the nature and cause of the
accusation against him. Bail is the security given for the release of a person in
(c) To be present and defend in person and by counsel at custody of the law, furnished by him or a bondsman,
every stage of the proceedings, from arraignment to conditioned upon his appearance before any court as may
promulgation of the judgment. The accused may, be required. [Rule 114, Sec. 1, ROC]
however, waive his presence at the trial pursuant to the
stipulations set forth in his bail, unless his presence is Basis of right: Presumption of innocence
specifically ordered by the court for purposes of
identification. WHO MAY AVAIL
General: All persons under custody of the law
The absence of the accused without justifiable cause at
the trial of which he had notice shall be considered a Exceptions:
waiver of his right to be present thereat. (1) Those charged with capital offense when evidence of
guilt is strong
When an accused under custody escapes, he shall be Since the evidence (rebellion) in this case is hearsay,
deemed to have waived his right to be present on all the evidence of guilt is not strong, bail is allowed.
subsequent trial dates until custody over him is [Enrile v. Perez (En Banc Resolution, 2001)]
regained. Upon motion, the accused may be allowed to (2) Military men [People v. Reyes (1992)]
defend himself in person when it sufficiently appears to Military men who participated in failed coup detat
the court that he can properly protect his rights without because of their threat to national security
the assistance of counsel. [Comendador v. De Villa (1991)]

(d) To testify as a witness in his own behalf but subject to BAIL AS A MATTER OF RIGHT VS. MATTER OF DISCRETION
cross-examination on matters covered by direct Matter of right Matter of Discretion
examination. His silence shall not in any manner
prejudice him. Bail is a matter of (1) In case the evidence of guilt is
right in all cases not strong. In such a case,
(e) To be exempt from being compelled to be a witness punishable by according to People v. San
against himself. reclusion perpetua. Diego (1966), the court's
discretion to grant bail must be
(f) To confront and cross-examine the witnesses against exercised in the light of a
him at the trial. Either party may utilize as part of its summary of the evidence
evidence the testimony of a witness who is deceased, presented by the prosecution.
out of or cannot with due diligence be found in the Thus, the order granting or
Philippines, unavailable, or otherwise unable to testify, refusing bail must contain a
given in another case or proceeding, judicial or summary of the evidence for
administrative, involving the same parties and subject the prosecution followed by the
matter, the adverse party having the opportunity to conclusion on whether or not
cross-examine him. the evidence of guilt is strong
(Note: it is not the existence of
(g) To have compulsory process issued to secure the guilt itself which is concluded
attendance of witnesses and production of other but the strength of the
evidence in his behalf. probability that guilt exists).

PAGE 81
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

(2) In extradition proceedings. The accused cannot present evidence before the
Extradition courts do not prosecution does so, even if the accused pleads guilty. It
render judgments of conviction violates the presumption of innocence. [Alejandro vs.
or acquittal so it does not Pepito (1980)]
matter WON the crimes the
accused is being extradited for The presumption of regularity (in official duties) cannot by
is punishable by reclusion itself prevail over the presumption of innocence of the
perpetua[US Govt. v. Judge accused. But where it is not the sole basis for conviction,
Puruganan and Mark Jimenez the presumption of regularity of performance of official
(2002)] functions may prevail over the constitutional presumption
of innocence. [People vs. Acuram (2000)]
WHEN AVAILABLE
General rule:From the very moment of arrest (which may be Equipoise Rule
before or after the filing of formal charges in court) up to Where the evidence adduced by the parties is evenly
the time of conviction by final judgment (which means balanced, the constitutional presumption of innocence
after appeal). should tilt the balance in favor of the accused. [Corpuz vs.
People (1991)]
No charge need be filed formally before one can file for
bail, so long as one is under arrest. [Heras Teehankee v. In order that circumstantial evidence may warrant
Rovica (1945)] conviction, the following requisites must concur:
(1) There is more than one circumstance
Arraignment of the accused is not essential to the approval (2) The facts from which the inferences are derived are
of the bail bond. When bail is authorized, it should be proven
granted before arraignment. Otherwise the accused may (3) The combination of all the circumstances is such as to
be precluded from filing a motion to quash. Also, the court produce conviction beyond reasonable doubt. [People
will be assured of the presence of the accused at the v. Bato (1998)]
arraignment precisely by grating bail and ordering his
presence at any stage of the proceeding. [Lavides v. CA RIGHT TO BE HEARD
(2000)] Any person under investigation for the commission of an
offense shall have the right to be informed of his right to
Exceptions: remain silent and to have competent and independent
(1) When charged with an offense punishable by reclusion counsel preferably of his own choice. If the person cannot
perpetua. afford the services of counsel, he must be provided with
(2) Traditionally, the right to bail is not available to the one. These rights cannot be waived except in writing and in
military, as an exception to the bill of rights. [People v. the presence of counsel. [Art. III, Sec. 12]
Reyes (1992)]
It means the accused is amply accorded legal assistance
STANDARDS FOR FIXING BAIL extended by a counsel who commits himself to the cause
RULE 114. Sec. 9. Amount of bail; guidelines. The judge of the defense and acts accordingly. It is an efficient and
who issued the warrant or granted the application shall fix truly decisive legal assistance, and not simply a
a reasonable amount of bail considering primarily, but not perfunctory representation. [People v. Bermas (1999)]
limited to, the following factors:
(a) Financial liability of the accused to give bail; ASSISTANCE OF COUNSEL
(b) Nature and circumstance of the offense; RA 7438. Rights of Persons under Custodial Investigation.
(c) Penalty for the offense charged; SEC. 2. Rights of Persons Arrested, Detained or Under
(d) Character and reputation of the accused; Custodial Investigation; Duties of Public Officers. (a) Any
(e) Age and health of the accused; person arrested detained or under custodial investigation
(f) Weight of the evidence against the accused; shall at all times be assisted by counsel;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
Elements of the Right to Counsel
(i) The fact that the accused was a fugitive from justice (1) Courts duty to inform the accused of right to counsel
when arrested; and
before being arraigned;
(j) Pendency of other cases where the accused is on bail. (2) It must ask him if he desires the services of counsel;
Excessive bail shall not be required. (3) If he does, and is unable to get one, the Court must
give him one; if the accused wishes to procure private
"Discretion is with the court called upon to rule on the counsel, the Court must give him time to obtain one.
question of bail. We must stress, however, that where (4) Where no lawyer is available, the Court may appoint
conditions imposed upon a defendant seeking bail would any person resident of the province and of good repute
amount to a refusal thereof and render nugatory the for probity and ability.
constitutional right to bail, we will not hesitate to exercise
our supervisory powers to provide the required remedy. RIGHT TO BE INFORMED
[Dela Camara v. Enage (1971)] Procedural due process requires that the accused must be
informed why he is being prosecuted and what charge he
PRESUMPTION OF INNOCENCE must meet. [Vera vs. People, supra]
The requirement of proof beyond reasonable doubt is a
necessary corollary of the constitutional right to be Note: Description, not designation of offense, is controlling
presumed innocent. [People vs. Dramavo (1971)]

PAGE 82
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL


All persons shall have the right to a speedy disposition of Two-fold purpose:
their cases before all judicial, quasi-judicial, or (1) to afford the accused an opportunity to test the
administrative bodies. [Art. III, Sec. 16] testimony of witnesses by cross-examination
(2) to allow the judge to observe the deportment of
witnesses. [Go, et al. v. The People of the Philippines
Civilian authority is, at all times, supreme over the military. and Highdone Company, Ltd., et al., (2012)]
xxx [Art. III, Sec. 3]
Inadmissibility for lack of right to confrontation:
Sec. 17. Act not a bar to provision on speedy trial in the (1) Testimony of a witness who has not submitted himself
Constitution No provision of law on speedy trial and no to cross examination
rule implementing the same shall be interpreted as a bar (2) Affidavits of witnesses who are not presented during
to any charge of denial of the right to speedy trial the trial, hence not subjected to cross examination
guaranteed by Section 14(2), Article III, of the 1987 hearsay, [Cariago v. Court of Appeals (2001)]
Constitution. [RA 8493]
Rule on Examination of a Child Witness [AM No. 004-07-
IMPARTIAL TRIAL: A civilian cannot be tried by a military SC]
court so long as the civil courts are open and operating, The judge may exclude any person, including the accused,
even during Martial Law. [Olaguer vs. Military Commission whose presence or conduct causes fear to the child.
(1987)]
COMPULSORY PROCESS
Dismissal based on the denial of the right to speedy trial (1) Right to Secure Attendance of Witness
amounts to an acquittal. [Acevedo vs. Sarmiento (2) Right to Production of Other Evidence
(1970)]
Subpoena is a process directed to a person requiring him to
Note: RA 8493 provides: a 30-day arraignment within the attend and to testify at the hearing or trial of an action or
filing of the information or from the date the accused at any investigation conducted under the laws of the
appeared before the court; trial shall commence 30 days Philippines, or for the taking of his deposition. [Caamic v.
from the arraignment, as fixed by the court. The entire trial Galapon (1994)]
period shall not exceed 180 days, except as otherwise
authorized by the SC Chief Justice. Before a subpoena ducestecum may issue, the court must
first be satisfied that the following requisites are present:
AVAILABILITY (1) The books, documents or other things requested must
(1) When proceeding is attended by vexatious, capricious appear prima facie relevant to the issue subject of the
and oppressive delays controversy (test of relevancy), and
(2) When unjustified postponements of the trial are asked (2) Such books must be reasonably described by the
for and secured parties to be readily identified (test of definiteness).
(3) When without cause or justifiable motive, a long period [Roco v. Contreras (2005)]
of time is allowed to elapse without the party having
his case tried. [dela Rosa v. Court of Appeals (1996); Tai TRIALS IN ABSENTIA
Lim v. Court of Appeals (1999)] WHEN CAN TRIAL IN ABSENTIA BE DONE
3 requisites:
Unreasonable delay weighed by following factors: (1) Accused failed to appear for trial despite postponement
(1) Length of delay and notice
(2) Reason for delay (2) Failure to appear is unjustified
(3) Assertion/failure to assert right by the accused (3) After arraignment
Failure to assert means waiver of privilege.
(4) Prejudice caused by the delay [Roquero v. The If not then the right of the accused to be informed of the
Chancellor of UP Manila (2010)] nature and cause of accusation against him will be
impaired for lack of arraignment [Borja vs. Mendoza (1977)]
RA 8493 is a means of enforcing the right of the accused
to a speedy trial. The spirit of the law is that the accused Consequences: Waiver of right to cross examine and
must go on record in the attitude of demanding a trial or present evidence [Gimenez vs. Nazareno (1988)]
resisting delay [Uy v. Hon. Adriano (2006)]
WHEN PRESENCE OF THE ACCUSED IS A DUTY
When right not available:right to speedy trial cannot be (1) Arraignment and Plea
invoked where to sustain the same would result in a clear (2) During Trial, for identification
denial of due process to the prosecution. [Uy v. Hon. (3) Promulgation of Sentence
Adriano (2006)] Exception: Light offense > can be via counsel

Rationale of right to speedy trial: Petitioner challenges the jurisdiction of military


(1) To prevent oppressive pre-trail incarceration, commissions to try him (for murder, illegal possession of
(2) To minimize anxiety and concern of the accused, firearms and for violation of the Anti-Subversion Act)
(3) To limit the possibility that the defense will be arguing that he being a civilian, such trial during martial
impaired. law deprives him of his right to due process.

RIGHT OF CONFRONTATION An issue has been raised as to WON petitioner could waive
This is the basis of the right to cross-examination. his right to be present during trial.

PAGE 83
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

courts or legislative assemblies, nor authorize the


On a 7-5 Voting:Seven justices voted that petitioner may conferment of jurisdiction on military courts and agencies
waive his right to be present at all stages of the over civilians where civil courts are able to function, nor
proceedings while five voted that this waiver is qualified, he automatically suspend the privilege of the writ.
cannot waive when he is to be identified. The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent
Trial in Absentia in or directly connected with invasion. [Art. VII, Sec. 18]
As a general rule, subject to certain exceptions, any
constitutional or statutory right may be waived if such AVAILABILITY
waiver is not against public policy. (1) A prime specification of an application for a writ of
habeas corpus is involuntary restraint of liberty.
Considering Art IV, Sec 19, 1973 Constitution (trial of a (2) Voluntary restraint of liberty i.e right of parents to
capital offense may proceed even in the absence of the regain custody of minor child even if the child is in the
accused) and the absence of any law specifically requiring custody of a third person of her own free will [Sombong
his presence at all stages of his trial, there appears, no v. CA (1990)]
logical reason why petitioner, although he is charged with (3) Illegal arrest with supervening event when restraint of
a capital offense, should be precluded from waiving his liberty is already by virtue of the complaint or
right to be present in the proceedings for the perpetuation information [Velasco vs. CA (1995)]
of testimony, since this right was conferred upon him for (a) The issuance of a judicial process preventing the
his protection and benefit. [Aquino vs. Military Commission discharge of the detained person.
(1975)] (b) Another is the filing of a complaint or information for
the offense for which the accused is detained. [Section
4 of Rule 102]
(4) Where a sentence imposes punishment in excess of the
Writ of Habeas Corpus power of the court to impose, such sentence is void as
to the excess [Gumabon v. Director of Prisons (1971)]

The privilege of the writ of habeas corpus shall not be RESTRAINT OF LIBERTY
suspended except in cases of invasion or rebellion when Not only physical restraint, any restraint on freedom of
the public safety requires it. [Art. III, Sec. 15] action is sufficient i.e (1) curtailed freedom of movement by
the condition that he must get approval of respondents for
any travel outside Metro Manila, (2) abridged liberty of
The President shall be the Commander-in-Chief of all abode because prior approval of respondent is required in
armed forces of the Philippines and whenever it becomes case petitioner wants to change place of residence, (3)
necessary, he may call out such armed forces to prevent or abridged freedom of speech due to prohibition from taking
suppress lawless violence, invasion or rebellion. any interviews inimical to national security, and (4)
petitioner is required to report regularly to respondents or
In case of invasion or rebellion, when the public safety their reps. [Moncupa v. Enrile (1986)]
requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or place Note: Even if the party to whom the writ is addressed has
the Philippines or any part thereof under martial law. illegally parted with the custody of a person before the
Within forty-eight hours from the proclamation of martial application for the writ is no reason why the writ should not
law or the suspension of the privilege of the writ of habeas issue. [Villavicencio v. Lukban (1919)]
corpus, the President shall submit a report in person or in
writing to the Congress. Test for valid suspension of the privilege of the writ:
arbitrariness, not correctness
The Congress, voting jointly, by a vote of at least a majority
of all its Members in regular or special session, may revoke Conditions for valid suspension:
such proclamation or suspension, which revocation shall (1) Presence of invasion, insurrection or rebellion
not be set aside by the President. (2) Public safety requires it [Lansang v. Garcia (1971)]
Upon the initiative of the President, the Congress may, in
the same manner, extend such proclamation or
suspension for a period to be determined by the Congress,
if the invasion or rebellion shall persist and public safety
requires it.
Writ of Amparo, Habeas Data
The Congress, if not in session, shall, within twenty-four
and Kalikasan
hours following such proclamation or suspension, convene WRIT OF AMPARO
in accordance with its rules without need of a call. The petition for a writ of amparo is a remedy available to
The Supreme Court may: 1) review, 2) in an appropriate any person whose right to life, liberty and security is
proceeding; 3) filed by any citizen, 4) the sufficiency of the violated or threatened with violation by an unlawful act or
factual basis of the proclamation of martial law or the omission of a public official or employee, or of a private
suspension of the privilege of the writ or the extension individual or entity. [Sec. 1, The Rule on the Writ of Amparo]
thereof, and 5) must promulgate its decision thereon
within thirty days from its filing. Basis
The Supreme Court shall have the following powers: xxx
A state of martial law does not suspend the operation of (5) Promulgate rules concerning the protection and
the Constitution, nor supplant the functioning of the civil

PAGE 84
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

enforcement of constitutional rights, xxx. Such rules shall Filing Enforceability Returnable
provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all courts (3) Any RTC of
of the same grade, and shall not diminish, increase, or the place where
modify substantive rights. Xxx [Art. VIII, Sec. 5] the threat, act or
omission was
PETITION FOR WRIT committed or
Form any of its
The petition shall be signed and verified. [Sec. 5] elements
occurred
Contents
The petition shall allege the following: Docket fees: None [Sec. 4]
(1) The personal circumstances of the petitioner
(2) The name and personal circumstances of the Return
respondent responsible for the threat, act or omission, Within 72 hours after service of the writ, the respondent
or, if the name is unknown or uncertain, the respondent shall file a verified written return together with supporting
may be described by an assumed appellation affidavits which shall, among other things, contain his
(3) The right to life, liberty and security of the aggrieved defenses. A general denial is not allowed. [Sec. 9]
party violated or threatened with violation by an
unlawful act or omission of the respondent, and how Hearing
such threat or violation is committed with the Summary or court may call for a preliminary conference;
attendant circumstances detailed in supporting given same priority as petition for habeas corpus [Sec. 13]
affidavits
(4) The investigation conducted, if any, specifying the Burden of proof
names, personal circumstances, and addresses of the Substantial evidence
investigating authority or individuals, as well as the
manner and conduct of the investigation, together with Defense:
any report Private individual ordinary diligence; public official
(5) The actions and recourses taken by the petitioner to extraordinary diligence, no presumption of regularity of
determine the fate or whereabouts of the aggrieved duties [Sec. 17]
party and the identity of the person responsible for the
threat, act or omission The Manalo brothers were abducted, detained, and
(6) The relief prayed for. tortured repeatedly by the military. After their escape, they
filed a petition for the privilege of the Writ of Amparo. The
The petition may include a general prayer for other just Supreme Court granted the petition and held that there
and equitable reliefs. [Sec. 5] was a continuing violation of the Manalos right to security.
Where to file
The petition may be filed on any day and at any time [Sec. As regards the relief granted, the Court held that the
3] production order under the Amparo rule is different from a
search warrant and may be likened to the production of
documents or things under Rule 27.1, ROC. [Secretary of
Filing Enforceability Returnable National Defense v. Manalo (2008)]
RTC of the place Before the
where the threat, issuing court or WRIT OF HABEAS DATA (SEE PREVIOUS DISCUSSION)
act or omission judge The writ of habeas data is an independent and summary
was committed remedy designed to protect the image, privacy, honor,
or any of its information, and freedom of information of an individual,
elements and to provide a forum to enforce ones right to the truth
occurred and to informational privacy.
Sandiganbayan (1) Before the
or any of its issuing court or There must be a nexus between right to privacy and right
Anywhere in the
justices any justice to life, liberty and security.
Philippines
Court of Appeals thereof, OR
or any of its (2) Any RTC of RIGHT TO INFORMATIONAL PRIVACY V. LEGITIMATE STATE INTEREST
justices the place where The determination of whether the privilege of the writ
the threat, act or of habeas data, being an extraordinary remedy, may be
omission was granted in this case entails a delicate balancing of the
committed or alleged intrusion upon the private life of Gamboa and the
any of its relevant state interest involved. [Gamboa v. P/Ssupt.
elements Marlou C. Chan, et al., (2012)]
occurred
SC or any of its (1) Before the WRIT OF KALIKASAN
justices issuing court or Remedy against violation or threat of violation of
any justice constitutional right to a balanced and healthful ecology by
thereof an unlawful act or omission of a public official or
(2) Before the employee, or private individual or entity, involving
Sandiganbayan environmental damage of such magnitude as to prejudice
Anywhere in the
or CA or any of the life, health or property of inhabitants in two or more
Philippines
their justices, OR cities or provinces

PAGE 85
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

FOREIGN LAWS
WHO MAY FILE: The privilege which exists as to private papers, cannot be
Natural or juridical persons, NGO or public interest groups maintained in relation to records required by law to be
in behalf of persons whose right is violated kept in order that there may be suitable information of
transactions which are the appropriate subjects of
WHO HAS JURISDICTION governmental regulation and the enforcement of
Supreme Court or Court of Appeals restrictions validly established. [Shapiro v. US (1948)]

DOCKET FEES: None In recent cases, the US Supreme Court has struck down
certain registration requirements that presented real and
WHEN IS WRIT ISSUED: appreciable risk of self-incrimination. These involved
Within three (3) days from the date of filing of the petition, statues directed at inherently suspect groups in areas
if the petition is sufficient in form and substance permeated by criminal statutes, a circumstance which laid
the subjects open to real risk of self-incrimination. [Bernas]
RETURN OF RESPONDENT
Within a non-extendible period of ten (10) days after The great majority of persons who file income tax returns
service of the writ, the respondent shall file a verified do not incriminate themselves by disclosing their
return which shall contain all defenses; all defenses not occupation. [US v. Sullivan (1927)]
raised are deemed waived
APPLICATION
HEARING General Rule: The privilege is available in any proceedings,
Preliminary conference; same prioprity as other writs [no even outside the court, for they may eventually lead to a
more than 60 days]; criminal prosecution.

Reliefs EXPANDED APPLICATION:


Permanent cease and desist order, other reliefs (1) Administrative proceedings with penal aspect i.e
medical board investigation [Pascual v. Board of
Medical Examiners(1969)], forfeiture proceeding [Cabal
v. Kapunan Jr. (1962)]

Self-Incrimination Clause (2) Fact-Finding investigation by an ad hoc body [Galman


vs. Pamaran (1985)]

SCOPE AND COVERAGE EFFECT OF DENIAL OF PRIVILEGE


No person shall be compelled to be a witness against Exclusionary Rule under SEC. 17, ART. III in relation to SEC.
himself. [Art. III, Sec. 17] 12: When the privilege against self-incrimination is violated
outside of court (e.g. police), then the testimony, as already
Only applies to compulsory testimonial, and doesnt apply noted, is not admissible.
to material objects [Villaflor vs. Summers (1920)]
Ousted of Jurisdiction: When the privilege is violated by the
It refers therefore to the use of the mental process and the Court itself, that is, by the judge, the court is ousted of its
jurisdiction, all its proceedings, and even judgment are null
communicative faculties, and not to a merely physical
and void. [Chavez vs. CA (1968)]
activity.
IMMUNITY STATUTES
If the act is physical or mechanical, the accused can be
TRANSACTIONAL IMMUNITY
compelled to allow or perform the act, and the result can
be used in evidence against him. The Commission on Human Rights shall have the
following powers and functions: xxx
EXAMPLES (8) Grant immunity from prosecution to any person whose
(1) Handwriting in connection with a prosecution for testimony or whose possession of documents or other
falsification is not allowed, [Beltran v. Samson (1929); evidence is necessary or convenient to determine the
Bermudez vs. Castillo (1937)] truth in any investigation conducted by it or under its
(2) Re-enactment of the crime by the accused is not authority; [Art. XIII, Sec. 18]
allowed
(3) The accused can be required to allow a sample of a USE AND FRUIT OF IMMUNITY
substance taken from his body [U.S. vs. Tan The (1912)], Use immunity prohibits use of a witness compelled
or be ordered to expel the morphine from his mouth testimony and its fruits in any manner in connection with
[U.S. v. OngSio Hong (1917)] the criminal prosecution of the witness.
(4) Accused may be made to take off her garments and
shoes and be photographed [People v. Otadura (1950)]; Transactional immunity grants immunity to witness from
compelled to show her body for physical investigation prosecution for an offense to which his compelled
to see if she is pregnant by an adulterous relation testimony relates. [Galman vs. Pamaran (1985)]
[Villaflor v. Summers (1920)]
(5) Order to give a footprint sample to see if it matches the
ones found in the scene of the crime is allowed [People
v. Salas and People v. Sara]

PAGE 86
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

Involuntary Servitude and Excessive Fines and Cruel and


Political Prisoners Inhuman Punishments
(1) No person shall be detained solely by reason of his (1)Excessive fines shall not be imposed, nor cruel,
political beliefs and aspirations. degrading or inhuman punishment inflicted. Neither
(2) No involuntary servitude in any form shall exist except shall death penalty be imposed, unless, for compelling
as a punishment for a crime whereof the party shall reasons involving heinous crimes, the Congress
have been duly convicted. [Art. III, Sec. 18] hereafter provides for it. Any death penalty already
imposed shall be reduced to reclusion perpetua.
INVOLUNTARY SERVITUDE (2) The employment of physical, psychological, or
Slavery and involuntary servitude, together with their degrading punishment against any prisoner or detainee
corollary peonage, all denote a condition of enforced, or the use of substandard or inadequate penal facilities
compulsory service of one to another. [Hodges v. US under subhuman conditions shall be dealt with by law.
(1906) in Rubi v. Provincial Board of Mindoro (1919)] [Art. III, Sec. 19]

A private person who contracts obligations of this sort In this case the Court took into account, in lowering the
toward the Army cannot, by law that we know of, either penalty to reclusion perpetua of the accused most of whom
civil or military be compelled to fulfill them by were already death row convicts, the deplorable sub-
imprisonment and deportation from his place of residence, human conditions of the National Penitentiary where the
we deem it wholly improper to sustain such means of crime was committed. [People vs. dela Cruz (1953)]
compulsion which are not justified either by law or by the
contract. [In Re Brooks (1901)] What is Prohibited: Cruel and unusual punishment.
Unusual punishment is not prohibited especially if it makes
Domestic services are always to be remunerated, and no the penalty less severe.
agreement may subsist in law in which it is stipulated that
any domestic service shall be absolutely gratuitous, unless What is a cruel punishment?
it be admitted that slavery may be established in this (1) Involves torture or lingering death [Legarda v. Valdez
country through a covenant entered into between (1902)]
interested parties. [de los Reyes v. Alojado (1910)] (2) Not only severe, harsh or excessive but flagrantly and
plainly oppressive
A former court stenographer may be compelled under pain (3) Wholly disproportionate to the nature of the offense as
of contempt to transcribe stenographic notes he had failed to shock the moral sense of the community [People v.
to attend to while in service. x xx such compulsion is not Estoista (1953)]
the condition of enforced compulsory service referred to by
the Constitution. Note: The constitutional limit must be reckoned on the
basis of the nature and mode of punishment measured in
Fernando, J. concurring opinion: terms of physical pain
The matter could become tricky should a stenographer
stubbornly refuse to obey and the court insist on keeping RA 9346 (JUNE 24, 2006): AN ACT PROHIBITING THE
him in jail. The detention could then become punitive and IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES
give rise to the issue of involuntary servitude. [Aclaracion v. Sec. 1. The imposition of the penalty of death is hereby
Gatmaitan (1975)] prohibited. Accordingly, R.A. No. 8177, otherwise known as
the Act Designating Death by Lethal Injection is hereby
POLITICAL PRISONERS repealed. R.A. No. 7659, otherwise known as the Death
If the petitioners are political prisoners subject to the civil Penalty Law, and all other laws, executive orders and
jurisdiction of ordinary courts of justice if they are to be decrees, insofar as they impose the death penalty are
prosecuted at all, the army has no jurisdiction, nor power, hereby repealed or amended accordingly.
nor authority, from all legal standpoints, to continue
holding them in restraint. They are entitled, as a matter of The import of the grant of power to Congress to restore the
fundamental right, to be immediately released, any death penalty requires:
allegation as to whether the war was ended or not. (1) that Congress define or describe what is meant by
[Raquiza v. Bradford (1945)] heinous crimes
(2) that Congress specify and penalize by death, only crimes
Sec. 19 of CA No. 682 authorizes that the political that qualify as heinous in accordance with the definition
prisoners in question "may be released on bail, even prior or description set in the death penalty bill and/or
to the presentation of the corresponding information," and designate crimes punishable by reclusion perpetua to
this may be done "existing provisions of law to the contrary death in which latter case, death can only be imposed
notwithstanding." We must assume that the discretion upon the attendance of circumstances duly proven in
granted must be construed in the sense that the same may court that characterize the crime to be heinous in
be exercised in cases wherein it was not heretofore granted accordance with the definition or description set in the
by law. And it is reasonable to assume that the discretion death penalty bill
granted is to the effect that the People's Court may (3) that Congress, in enacting this death penalty bill be
exercise jurisdiction to order the release on bail of political singularly motivated by compelling reasons involving
prisoners "even prior to the presentation of the heinous crimes.
corresponding information." [Duran v. Abad Santos (1945)]

PAGE 87
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

For a death penalty bill to be valid, a positive manifestation ordinance, conviction or acquittal under either shall
in the form of higher incidence of crime should first be constitute a bar to another prosecution for the same act.
perceived and statistically proven following the suspension [Art. III, Sec. 21]
of the death penalty [is not required in Sec. 19 (1)]. Neither
does the said provision require that the death penalty be TERMINATION OF JEOPARDY
resorted to as a last recourse when all other criminal (1) By acquittal
reforms have failed to abate criminality in society. [People (2) By final conviction
v. Echegaray (1997)] (3) By dismissal without express consent of accused
(4) By dismissal on the merits
Sec 19 (2) as worded, already embodies constitutional
authorization for the Commission on Human Rights to take REQUISITES
action in accordance with Art XIII Sec 18. There is a (1) Court of competent jurisdiction;
command addressed to Congressed to pass whatever civil (2) A Complaint/Information sufficient in form and
or penal legislation might be required for the subject. substance to sustain a conviction;
[Bernas] (3) Arraignment and plea by the accused;
(4) Conviction, acquittal, or dismissal of the case without
the express consent, of the accused. [Rule 117, Sec. 7;
People vs. Obsania (1968)]
Non-Imprisonment for Debts WHEN SUBSEQUENT PROSECUTION IS BARRED
(1) Same offense
No person shall be imprisoned for debt or non-payment (2) Attempt of the same offense
of a poll tax. [Art. III, Sec. 20] (3) Frustration of the same offense
(4) Offense necessarily included in the 1st offense (All the
SCOPE elements of the 2nd constitute some of the elements of
(1) Debt any civil obligation arising from a contract. It the 1st offense)
includes even debts obtained through fraud since no (5) Offense that necessarily includes the 1st offense (All
distinction is made in the Constitution. [Ganaway v. the elements of the 1st constitute some of the elements
Quillen (1922)] of the 2nd offense)
(2) Poll Tax a specific sum levied upon any person
belonging to a certain class without regard to property EXCEPTIONS
or occupation (e.g. community tax). (1) The graver offense developed due to "supervening
facts" arising from the same act or omission
A tax is not a debt since it is an obligation arising from law. constituting the former charged.
Hence, its non-payment maybe validly punished with (2) The facts constituting the graver charge became
imprisonment. known or were discovered only after the filing of the
former complaint or information.
Santos refused to pay 16 pesos for Ramirezs cedula as (3) The plea of guilty to the lesser offense was made
payment for what Santos owed Ramirez. Thus, Ramirez without the consent of the fiscal and the offended
was convicted and imprisoned for estafa. Upon demand for party.
release, the Court held that the imprisonment was correct
since it was for estafa and not involuntary servitude or WHEN DEFENSE OF DOUBLE JEOPARDY IS AVAILABLE
imprisonment for debt. [Ramirez v. de Orozco (1916)] (1) Dismissal based on insufficiency of evidence;
(2) Dismissal because of denial of right to speedy trial;
The obligation incurred by the debtor, as shown by the (3) Accused is discharged to be a state witness.
receipt, was to pay an ordinary contractual obligation.
Since the guardianship proceeding was civil in nature, the MOTIONS FOR RECONSIDERATION AND APPEALS
Court did not allow enforcement of the civil obligation by The accused cannot be prosecuted a second time for the
an order of imprisonment. [In re Tamboco (1917)] same offense and the prosecution cannot appeal a
judgment of acquittal. [Kepner v. US (1904)]
No person may be imprisoned for debt in virtue of a civil
proceeding. [Makapagal v. Santamaria (1930)] Provided, that the judge considered the evidence, even if
the appreciation of the evidence leading to the acquittal is
A person may be imprisoned as a penalty for a crime erroneous, an appeal or motion for reconsideration by the
arising from a contractual debt and imposed in a proper prosecution will not be allowed. [People v. Judge Velasco
criminal proceeding. Thus, the conversion of a criminal fine (2000)]
into a prison term does not violate the provision because in
such a case, imprisonment is imposed for a monetary No error, however, flagrant, committed by the court
obligation arising from a crime. [Ajeno v. Judge Insero against the state, can be reserved by it for decision by the
(1976)] Supreme Court when the defendant has once been placed
in jeopardy and discharged even though the discharge was
the result of the error committed. [People v. Ang Cho (1945)
citing State v. Rook]

Double Jeopardy A mere verbal dismissal is not final until written and
signed by the judge. [Rivera, Jr. v. People (1990)]
No person shall be twice put in jeopardy of punishment for
the same offense. If an act is punished by a law and an

PAGE 88
UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION

When an accused appeals his conviction, he waives his The prohibition applies only to criminal legislation which
right to the plea of double jeopardy. If the accused had affects the substantial rights of the accused. [Phil. National
been prosecuted for a higher offense but was convicted for Bank v. Ruperto (1960)]
a lower offense, he has technically been acquitted of the
higher offense. His appeal would give the Court the right to It applies to criminal procedural law prejudicial to the
impose a penalty higher than that of the original conviction accused. [US v. Gomez (1908)]
imposed on him. [Trono v. US (1905)]
It is improper to apply the prohibition to an executive
Double jeopardy provides three related protections: proclamation suspending the privilege of the writ of
(1) Against a second prosecution for the same offense after habeas corpus. [Montenegro v. Castaeda (1952)]
acquittal;
(2) Against a second prosecution for the same offense after BILLS OF ATTAINDER
conviction; and A bill of attainder is a legislative act which inflicts
(3) Against multiple punishments for the same offense. punishment without judicial trial. If the punishment be less
[People v. Dela Torre (2002)] than death, the act is termed a bill of pains and penalties.
Within the meaning of the Constitution, bills of attainder
DISMISSAL WITH CONSENT OF ACCUSED include bills of pains and penalties. [Cummings v. Missouri
Provisional dismissal.A case shall not be provisionally (1867)]
dismissed except with the express consent of the accused
and with notice to the offended party. [Rule 117, Sec. 8 (1)] It is a general safeguard against legislative exercise of the
judicial function, or trial by legislature. [US v. Brown (1965)]
When the case is dismissed other than on the merits, upon
motion of the accused personally, or through counsel, such
dismissal is regarded as with express consent of the
accused, who is therefore deemed to have waived the
right to plea double jeopardy.

Ex Post Facto and Bills Of


Attainder
No ex post facto law or bill of attainder shall be enacted.
[Art. III, Sec. 22]

RA 1700 which declared the Communist Party of the


Philippines a clear and present danger to Philippine
security, and thus prohibited membership in such
organization, was contended to be a bill of attainder.
Although the law mentions the CPP in particular, its
purpose is not to define a crime but only to lay a basis or to
justify the legislative determination that membership in
such organization is a crime because of the clear and
present danger to national security. [People v. Ferrer (1972)]

EX POST FACTO LAWS


(1) Makes an action done before the passing of the law and
which was innocent when done criminal, and punishes
such action.
(2) Aggravates a crime or makes it greater than when it
was committed.
(3) Changes the punishment and inflicts a greater
punishment than the law annexed to the crime when it
was committed.
(4) Alters the legal rules of evidence and receives less or
different testimony than the law required at the time of
the commission of the offense in order to convict the
defendant. [Mekin v. Wolfe (1903)]
(5) Assumes to regulate civil rights and remedies only but
in effect imposes a penalty or deprivation of a right
which when done was lawful.
(6) Deprives a person accused of a crime of some lawful
protection of a former conviction or acquittal, or a
proclamation of amnesty. [In re Kay Villegas Kami
(1970)]

PAGE 89
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

PAGE 90
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

General Principles UNLESS for duties of an inferior or subordinate office


that created or authorized by the Legislature and
which inferior or subordinate office is placed under the
CONCEPT AND APPLICATION general control of a superior office or body
DEFINITION
The right, authority and duty, created and conferred by Defined as unhindered performance must have
law, by which, for a given period either fixed by law or permanence and continuity
enduring at the pleasure of the creating power, an
individual is invested with some portion of the sovereign Note: The elements of permanence and continuity are
functions of government, to be exercised by that individual dispensable.
for the benefit of the public. [Floyd R. Mechem quoted in
Fernandez v. Sto. Tomas (1995)] On the dispensability of the element of permanence: an
example is the public office of the Board of Canvassers,
Breakdown of the definition yet its duties are only for a limited period of time.
Nature: right, authority and duty
Origin: created and conferred by law On the dispensability of the element of continuance:
Duration: by which for a given period either: Mechem in one case states that the the most
(1) fixed by law or important characteristic in characterizing a position as
(2) enduring at the pleasure of the appointing power a public office is the DELEGATION to the individual of
some of the sovereign functions of government.
An individual is invested with some portion of the
sovereign functions of the government (1) Here, the court held that Laurel, as chair of the
National Centennial Commission (NCC), is a public
Purpose: to be exercised by him for the benefit of the officer. The public office of NCC was delegated and
public. is performing executive functions: it enforces the
conservation and promotion of the nations
PURPOSE historical and cultural heritage.
(1) to effect the end for the governments institution:
common good; (2) Such delegated function is a policy embodied in the
(2) NOT profit, honor, or private interest of any person, Constitution. It is inconsequential that Laurel was
family or class of persons [63 Am Jur 2d 667] not compensated during his tenure. A salary is a
usual (but not necessary) criterion for determining
Sec. 1. Public office is a public trust. Public officers and the nature of a position. Also, the element of
employees must, at all times, be accountable to the continuance is not indispensable. [Laurel v. Desierto
people, serve them with utmost responsibility, integrity, (2002)]
loyalty, and efficiency; act with patriotism and justice, and - as in the case of Ad Hoc Bodies or commissions
lead modest lives. [Philippine Constitution, Art. XI, Sec. 1]
PUBLIC OFFICE V. PUBLIC EMPLOYMENT
Public employment is broader than public office. All public
Public office is a responsibility, not a right. [Morfe v. Mutuc office is public employment, but not all public employment
(1968)] is a public office.
ELEMENTS
Public employment as a position lacks either one or more
(1) Created by law or by authority of law of the foregoing elements of a public office. (Bernard v.
Public office must be created by: Humble [182 S.W. 2d. 24. Cited by De Leon, page 8-9])
(a) Constitution - created by contract rather than by force of law
(b) National Legislation
(c) Municipal or other bodys legislation, via authority The most important characteristic which distinguishes an
conferred by the Legislature office from an employment is that:
The first element defines the mode of creation of a (1) the creation and conferring of an office involves a
public office while the other elements illustrate its delegation to the individual of some of the sovereign
characteristics. functions of government, to be exercised by him for the
benefit of the public, and
(2) Possess a delegation of a portion of the sovereign
powers of government, to be exercised for the benefit (2) That the same portion of the sovereignty of the country,
of the public either legislative, executive or judicial, attached, for the
time being, to be exercised for the public benefit. Unless
There are certain GOCCs which, though created by law, the powers so conferred are of this nature, the individual is
are not delegated with a portion of the sovereign not a public officer. [Laurel v. Desierto (2002)]
powers of the government (those that are purely
proprietary in nature), and thus may not be considered
PUBLIC OFFICE V. CONTRACT
as a Public Office.
Public Office Contract
(3) Powers conferred and duties imposed must be defined,
directly or impliedly How Created
Incident of sovereignty. Originates from will of
(4) Duties must be performed independently and without
Sovereignty is omnipresent. contracting parties.
the control of a superior power other than the law,

PAGE 91
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

Legislature should Validly Delegate the Power to Create a


Public Office Contract
Public Office
Or else, the office is invalid. The Presidents authority to
Object
"reorganize within one year the different executive
To carry out the sovereign as Obligations imposed only departments, bureaus and other instrumentalities of the
well as governmental upon the persons who Government" in order to promote efficiency in the public
functions affecting even entered into the contract. service is limited in scope and cannot be extended to other
persons not bound by the matters not embraced therein. [UST v. Board of Tax
contract. Appeals (1953)]
Subject Matter METHODS OF ORGANIZING PUBLIC OFFICES
A public office embraces the Limited duration and specific in Method Composition Efficiency
idea of tenure, duration, its object. Its terms define and
continuity, and the duties limit the rights and obligations Single-head one head assisted Swifter decision
connected therewith are of the parties, and neither may by subordinates and action but
generally continuing and depart therefrom without the may sometimes be
permanent. consent of the other. hastily made
Scope Board System collegial body for Mature studies
formulating and deliberations
Duties that are generally Duties are very specific to the polices and but may be slow in
continuing and permanent. contract. implementing responding to
Where duties are defined programs issues and
problems
The law Contract
MODIFICATION AND ABOLITION OF PUBLIC OFFICE
PUBLIC OFFICE IS NOT PROPERTY. General Rule
A public office is not the property of the public officer The power to create an office includes the power to modify
within the meaning of the due process clause of the non- or abolish it (i.e. Legislature generally has this power)
impairment of the obligation of contract clause of the
Constitution. Exceptions
(1) Where the Constitution prohibits such
(1) It is a public trust/agency. Due process is violated only if modification/abolition;
an office is considered property. However, a public (2) Where the Constitution gives the people the power to
office is not property within the constitutional modify or abolish the office [i.e. Recall]
guaranties of due process. It is a public trust or agency.
As public officers are mere agents and not rulers of the Abolishing an office also abolishes unexpired term. The
people, no man has a proprietary or contractual right legislatures abolition of an office (i.e. court) also abolishes
to an office. [Cornejo v. Gabriel (1920)] the unexpired term. The legislative power to create a court
carries with it the power to abolish it. [Ocampo v. Sec. of
(2) It is personal. Public office being personal, the death of Justice (1955)]
a public officer terminates his right to occupy the
contested office and extinguishes his counterclaim for Is Abandonment equivalent to Abolition?
damages. His widow and/or heirs cannot be When a public official voluntarily accepts an appointment
substituted in the counterclaim suit. [Abeja v. Taada to an office newly created by law -- which new office is
(1994)] incompatible with the former -- he will be considered to
have abandoned his former office.
Exceptions (When public office is property):
(1) In quo warranto proceedings relating to the question as Except when the public official is constrained to accept
to which of 2 persons is entitled to a public office because the non-acceptance of the new appointment
(2) When the dispute concerns one s constitutional right to would affect public interest. (no abandonment) [Zandueta
security of tenure, public office is deemed analogous to v. De La Costa (1938)]
property in a limited sense. [Lumiqued v. Exevea (1997)]
ESTOPPEL IN DENYING EXISTENCE OF OFFICE
CREATION OF PUBLIC OFFICE
A person is estopped from denying that he has occupied a
Modes of Creation of Public Office public office when he has acted as a public officer; more so
(1) by the Constitution when he has received public monies by virtue of such office.
(2) by statute / law [Mendenilla v. Onandia (1962)]
(3) by a tribunal or body to which the power to create the
office has been delegated PUBLIC OFFICER
DEFINITION
How Public Office is Created
General Rule: The creation of a public office is PRIMARILY a Sec. 2. Public Officer includes elective and appointive
Legislative Function. officials and employees, permanent or temporary, whether
in the classified, unclassified or exempt service, receiving
Exceptions: compensation, even nominal, from the government [RA
(1) where the offices are created by the Constitution; 3019]
(2) where the Legislature validly delegates such power.

PAGE 92
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

A Person Cannot be Compelled to Accept a Public Office.


Sec. 2(14). Officer as distinguished from clerk or EXCEPTIONS
employee refers to a person whose duties, not being of a (1) When citizens are required, under conditions provided
clerical or manual nature, involves the exercise of by law, to render personal military or civil service (see
discretion in the performance of the functions of the Sec. 4, Art. II, 1987 Const.);
government. [Administrative Code]
(2) When a person who, having been elected by popular
election to a public office, refuses without legal motive
Art 203. Who are public officersfor the purpose of to be sworn in or to discharge the duties of said office.
applying the provisions of this and the preceding titles of This is a felony.
this book, any person who, by direct provision of the law,
popular election or appointment by competent authority, (3) Art. 234
shall take part in the performance of public functions in
Art. 234. Refusal to discharge elective office- the penalty of
the Government of the Philippine Islands, orshall perform
arresto mayor or a fine not exceeding 1,000 pesos, or both,
in said Government or in any of its branches public duties
shall be imposed upon any person who, having been
as an employee, agent or subordinate official of any rank or
elected by popular election to a public office, shall refuse
class, shall be deemed to be a public officer. [Revised Penal
without legal motive to be sworn in or to discharge the
Code]
duties of said office.
Persons in authority and their agents [Art. 152, RPC]
Public Officers Power is Delegated (not Presumed)
A PERSON IN AUTHORITY is any person, either an
A public official exercises power, not rights. The government
individual or a member of a governmental body, who is
itself is merely an agency through which the will of the
directly vested with jurisdiction.
state is expressed and enforced. Its officers therefore are
(1) The barrio captains and barangay chairpersons are
likewise agents entrusted with the responsibility of
included.
discharging its functions. As such, there is no presumption
(2) For RPC Articles 148 [Direct Assaults] and 151
that they are empowered to act. There must be a
[Resistance and Disobedience], teachers, professors,
DELEGATION of such authority, either express or implied. In
and persons charged with the supervision of public or
the absence of a valid grant, they are devoid of power.
duly recognized private schools, colleges and
[Villegas v. Subido (1971)]
universities are included.
Note: The term public official is ordinarily used
An AGENT of a person in authority is charged with the
synonymously with public officer
maintenance of public order and the protection and
security of life and property.
They become such either by direct provision of law, by CLASSIFICATION OF PUBLIC OFFICES AND PUBLIC
election or by a competent authoritys appointment. OFFICERS
Creation Constitutional
Temporary performer of public functions Statutory
A person performing public functions even temporarily is Public Body Served National
a public official. Here, a laborer temporarily in charge of Local
issuing summons and subpoenas for traffic violations in a Department of government to Legislative
judge's sala was convicted for bribery under RPC 203. which their functions pertain Executive
Judicial
According to the Court, the law is comprehensive: who, by Nature of functions Civil
direct provision of law, popular election or appointment by Military
competent authority, shall take part in the performance of Exercise of Judgment or Discretionary
public functions in the Philippine Government, or shall Discretion Ministerial
perform in said government or any of its branches, public Legality of Title to office De Jure
duties as an employee, agent or subordinate official or any De Facto
rank or class [Maniego v. People (1951)] Compensation Lucrative
Honorary
Money order-sorter and filer.
A person sorting and filing money orders in the Auditor's
Office of the Bureau of Posts is obviously doing a public
function or duty. Such person here was convicted for
infidelity in the custody of documents. [People v. Paloma
(1997)]
Modes of Acquiring Title to
Who are NOT Public Officers
Public Office
(1) Special policemen salaried by a private entity and
MODES OF COMMENCING OFFICIAL RELATION
patrolling only the premises of such private entity
(1) Election
[Manila Terminal Co. v. CIR (1952)]
(2) Appointment
(2) Concession forest guards [Martha Lumber Mill v.
(3) Others:
Lagradante (1956)]
(a) Succession by operation of law;
(3) Company cashier of a private corporation owned by the
(b) Direct provision of law, e.g. ex-officio officers
government [Tanchoco v. GSIS (1962)]
ELECTION
Selection or designation by popular vote

PAGE 93
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

APPOINTMENT
Nature of an Appointment essentially discretionary
powerand cannot be delegated; it must be performed by Modes and Kinds of
the officer upon whom it is vested according to his best
lights, the only condition being that the appointee should Appointment
possess the qualifications required by law. If he does, then
the appointment cannot be faulted on the ground that CLASSIFICATION OF APPOINTMENTS
there are others better qualified who should have been (1) Permanent:
preferred [Luego v. CSC (1986)] The permanent appointee:
(a) must be qualified
Definition (b) must be eligible
(c) is constitutionally guaranteed security of tenure
Designation Appointment
Duration: until lawful termination.
Definition Note: Conditional appointments are not permanent.
Imposition of additional Appointing authority selects (2) Temporary:
duties upon existing office an individual who will (a) an acting appointment;
occupy a certain public (b) cannot be validly confirmed by the Commission
office on Appointments because confirmation
Extent of Powers presupposes a valid nomination or ad interim
appointment
Limited Comprehensive (c) has no personality to bring a quo warranto action
Security of Tenure? against the permanent appointee to the position
(d) An unqualifiedperson cannot be appointed even
No Yes in an acting capacity [Ignacio v. Banate, Jr. (1987)]
Is prior/1st office abandoned when (e) Has no fixed tenure of office - revocable at will:
nd just cause or valid investigation UNNECESSARY
a 2nd designated position a 2 appointive position is if based only on loss of confidence;
is assumed? assumed? Usually YES (i) an acting appointment is a temporary
NO appointment and revocable in character.
[Marohombsar v. Alonto (1991)]
Political. Appointment is generally a political question so (ii) A temporary appointee is like a designated
long as the appointee fulfills the minimum qualification officer they:
requirements prescribed by law. (1) occupy a position in an acting capacity and
(2) do not enjoy security of tenure. [Sevilla v.
Vacancy for Validity. For the appointment to be valid, the CA (1992)]
position must be vacant [Castin v. Quimbo (1983)] (iii) Even a Career Service Officer unqualified for
the position is deemed temporarily-
Nature of Power to Appoint. appointed. Thus he does not enjoy security of
The power to appoint is intrinsically an executive act tenure he is terminable at will.
involving the exercise of discretion. [Concepcion v. Paredes (iv) A public officer who later accepts a
(1921)] temporary appointment terminates his
relationship with his former office.
Must be unhindered and unlimited by Congress. Congress [Romualdez III v. CSC (1991)]
cannot either appoint a public officer or impose upon the (v) Except: Fixed-Period Temporary Appointments
President the duty to appoint any particular person to an may be revoked ONLY at the periods
office. The appointing power is the exclusive prerogative of expiration. Revocation before expiration must
the President, upon which no limitations may be imposed by be for a valid cause.
Congress, EXCEPT those: (vi) Duration: until a permanent appointment is
(1) requiring the concurrence of the Commission on issued.
Appointments; and
(2) resulting from the exercise of the limited legislative STEPS IN APPOINTMENT PROCESS
power to prescribe the qualifications to a given FOR APPOINTMENTS REQUIRING CONFIRMATION
appointive office. [Manalang v. Quitoriano (1954)] Regular Appointments (NCIA)
(1) President nominates.
The Presidents power to appoint under the Constitution (2) Commission on Appointments confirms.
should necessarily have a reasonable measure of freedom, (3) Commission issues appointment.
latitude, or discretion in choosing appointees. [Cuyegkeng (4) Appointee accepts.
v. Cruz (1960)]
Ad-Interim Appointments (NIAC)
Where only one can qualify for the posts in question, the (1) President nominates.
President is precluded from exercising his discretion to (2) Commission issues appointment.
choose whom to appoint. Such supposed power of (3) Appointee accepts.
appointment, sans the essential element of choice, is no (4) Commission on Appointments confirms.
power at all and goes against the very nature of
appointment itself. [Flores v. Drilon (1993)] For Appointments Not Requiring Confirmation (AIA)
(1) Appointing authority appoints.

PAGE 94
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

(2) Commission issues appointment. (e) Applicable to COMELEC Commissioners, being


(3) Appointee accepts. permanent appointments, do not violate the
Constitutional prohibition on temporary or acting
PRESIDENTIAL APPOINTEES appointments of COMELEC Commissioners.
WHO CAN BE NOMINATED AND APPOINTED ONLY WITH THE
COMMISSION ON APPOINTMENTS CONSENT? [Art. VII, Sec. 16, (f) By-passed Appointee may be Reappointed. Commission
1987 Const.] on Appointments failure to confirm an ad interim
(1) Heads of the executive departments; appointment is NOT disapproval. An ad interim
(2) Ambassadors; appointee disapproved by the COA cannot be
(3) Other public ministers and consuls; reappointed. But a by-passed appointee, or one whose
(4) Officers of the armed forces from the rank of colonel or appointment was not acted upon the merits by the
naval captain; COA, may be appointed again by the President.
(5) Other officers whose appointments are vested in him by
the Constitution, including Constitutional (g) The grant to the President of the power to appoint OICs
Commissioners [Art. IX-B, Sec. 1 (2) for CSC; Art. IX-C, in ARMM does not violate the Constitution The
Sec. 1 (2) for COMELEC; Art. IX-D, Sec. 1 (2) for COA]. appointing power is embodied in Sec. 16, Art VII of the
Constitution, which pertinently states that the
WHO CAN THE PRESIDENT APPOINT WITHOUT CAS APPROVAL? President shall appoint all other officers of the
(1) All other officers of the government whose government whom the President may be authorized
appointments are not otherwise provided for by law; by law to appoint. Since the Presidents authority to
(2) Those whom he may be authorized by law to appoint; appoint OICs emanates from RA 10153, it falls under
(3) Members of the Supreme Court; this group of officials that the President can appoint.
(4) Judges of lower courts; Thus, the assailed law rests on clear constitutional
(5) Ombudsman and his deputies basis [Datu Michael Abas Kida v. Senate of the
Philippines (2011)]
Kinds of Presidential Appointments
(1) Regular: made by the President while Congress is in DISCRETION OF APPOINTING OFFICIAL
session after the nomination is confirmed by the PRESUMED
Commission of Appointments, and continues until the end Administrators of public officers, primarily the department
of the term. heads should be entrusted with plenary, or at least
sufficient, discretion. Their position most favorably
(2) Ad interim: made while Congress is not in session, determines who can best fulfill the functions of a vacated
before confirmation by the Commission on Appointments; office. There should always be full recognition of the wide
immediately effective and ceases to be valid if disapproved or scope of a discretionary authority, UNLESS the law speaks
bypassed by the Commission on Appointments. This is a in the most mandatory and peremptory tone, considering
permanent appointment and it being subject to all the circumstances. [Reyes v. Abeleda (1968)]
confirmation does not alter its permanent character.
DISCRETIONARY ACT
(a) Efficient. Recess appointment power keeps in Appointment is an essentially discretionary power. It must
continuous operation the business of government be performed by the officer in whom it is vested, the only
when Congress is not in session. The individual chosen condition being that the appointee should possess the
may thus qualify and perform his function without loss qualifications required by law. [Lapinid v. CSC (1991)]
of time. (1) Scope. The discretion of the appointing authority is not
only in the choice of the person who is to be appointed
(b) Duration. The appointment shall cease to be effective but also in the nature and characterof the appointment
upon rejection by the Commission on Appointments, or intended (i.e., whether the appointment is permanent
if not acted upon, at the adjournment of the next or temporary).
session, regular or special, of Congress.
(2) Inclusive Power. The appointing authority holds the
(c) Permanent. It takes effect immediately and can no power and prerogative to fill a vacant position in the
longer be withdrawn by the President once the civil service.
appointee has qualified into office.
(3) The exercise of the power to transfer, reinstate, reemploy
The fact that it is subject to confirmation by the or certify is widely used (need not state reason)
Commission on Appointments does not alter its
permanent character. To hold that the Civil Service Law requires filling up any
vacancy by promotion, transfer, reinstatement,
The Constitution itself makes an ad interim appointment reemployment, or certification IN THAT ORDER would be
permanent in character by making it effective until tantamount to legislative appointment which is repugnant
disapproved by the Commission on Appointments or until to the Constitution. What it does purport to say is that as far
the next adjournment of Congress. [Matibay v. Benipayo as practicable the person next in rank should be promoted,
(2002)] otherwise the vacancy may be filled by transfer,
reinstatement, reemployment or certification, as the
(d) Not Acting. An ad interim appointment is appointing power sees fit, provided the appointee is
distinguishable from an acting appointment which certified to be qualified and eligible. [Pineda v. Claudio
is merely temporary, good until another permanent (1969)]
appointment is issued.

PAGE 95
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

(4) Promotion of next-in-rank career officer is not must be possessed at the time of appointment or
Mandatory. The appointing authority should be allowed election and continuously for as long as the official
the choice of men of his confidence, provided they are relationship continues
qualified and eligible.
(2) ACT refers to the act of entering into the performance
(5) When abused, use Mandamus. of the functions of the office.
Where the palpable excess of authority or abuse of
discretion in refusing to issue promotional Note: Failure to perform an act required by law could affect
appointment would lead to manifest injustice, the officers title to the given office. Under BP 881, the
mandamus will lie to compel the appointing authority office of any elected official who fails or refuses to take his
to issue said appointments. [Gesolgon v. Lacson (1961)] oath of office within six months from his proclamation
shall be considered vacant unless said failure is for cause
(6) Upon recommendation is not Merely Advisory. or causes beyond his control.
Sec. 9. Provincial/City Prosecution Offices. [par. 3] All
provincial and city prosecutors and their assistants shall be (1) An oath of office is a qualifying requirement for a public
appointed by the President upon the recommendation of office. Only when the public officer has satisfied this
the Secretary. prerequisite can his right to enter into the position be
considered plenary and complete. Until then, he has
The phrase upon recommendation of the Sec. of Justice none at all, and for as long as he has not qualified, the
should be interpreted to be a mere advice. It is persuasive holdover officer is the rightful occupant. [Lecaroz v.
in character, BUT is not binding or obligatory upon the Sandiganbayan (1999)]
person to whom it is made.
(2) Once proclaimed and duly sworn in office, a public
officer is entitled to assume office and to exercise the
EFFECTIVITY OF APPOINTMENT
Immediately upon appointing authoritys issuance [Rule V, functions thereof. The pendency of an election protest
is not sufficient basis to enjoin him from assuming
Sec. 10, Omnibus Rules]
office or from discharging his functions. [Mendoza v.
Laxina (2003)]
EFFECTS OF A COMPLETE, FINAL AND IRREVOCABLE
APPOINTMENT
POWER TO PRESCRIBE QUALIFICATIONS
General Rule
An appointment, once made, is irrevocable and not subject (1) Constitution when the qualifications are prescribed by
the constitution, they are generally exclusive, except
to reconsideration.
where the Constitution itself provides otherwise
(1) It vests a legal right. It cannot be taken away EXCEPT
for cause, and with previous notice and hearing (due (2) Congress - In the absence of constitutional inhibition,
Congress has the same right to provide
process).
(2) It may be issued and deemed complete before disqualifications that it has to provide qualifications for
acquiring the needed assent, confirmation, or approval office. [De Leon, p. 23]
of some other officer or body.
RESTRICTIONS on the Power of Congress to Prescribe
Exceptions Qualifications:
(1) Appointment is an absolute nullity [Mitra v. Subido (1) Congress cannot exceed its constitutional powers;
(1967)]; (2) Congress cannot impose conditions of eligibility
(2) Appointee commits fraud [Mitra v. Subido, supra]; inconsistent with constitutional provisions;
(3) Midnight appointments (3) The qualification must be germane to the position
General Rule: A President or Acting President shall not ("reasonable relation" rule);
appoint 2 months immediately before the next (4) Where the Constitution establishes specific eligibility
presidential elections until his term ends. (Art. VII, Sec. requirements for a particular constitutional office, the
15, 1987 Const.) constitutional criteria are exclusive, and Congress
Exception: Temporary appointments to executive positions cannot add to them except if the Constitution expressly
when continued vacancies will prejudice public or impliedly gives the power to set qualifications.
service or will endanger public safety. (5) Congress cannot prescribe qualifications so detailed as
to practically amount to making a legislative
appointment: it is unconstitutional and therefore void
for being a usurpation of executive power examples:
(a) Extensions of the terms of office of the incumbents;
Eligibility and Qualification (b) A proviso which limits the choices of the appointing
authority to only one eligible, e.g. the incumbent
Requirements Mayor of Olongapo City; [Flores v. Drilon (1993)]
(c) Designating an unqualified person. The People's
Court Act, which provided that the President could
DEFINITION
designate Judges of First Instance, Judges-at-large
Eligibility: The state or quality of being legally fitted or
of First Instance or Cadastral Judges to sit as
qualified to be chosen
substitute Justices of the Supreme Court in treason
cases without them necessarily having to possess
Qualification: endowment/act which a person must do
the required constitutional qualifications of a
before he can occupy a public office. May be understood in
regular Supreme Court Justice.; [Vargas v. Rilloraza
two senses:
(1948)]
(1) ENDOWMENT refers to the qualities or attributes
which make an individual eligible for public office. It

PAGE 96
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

(d) Automatic transfer to a new office. A legislative ELIGIBILITY PRESUMED


enactment abolishing a particular office and IN FAVOR of one who has been elected or appointed to
providing for the automatic transfer of the public office.
incumbent officer to a new office created;
[Manalang v. Quitorano (1954)] The right to public office should be strictly construed
(e) Requiring inclusion in a list. A provision that against ineligibility. (De Leon, p. 26)
impliedly prescribes inclusion in a list submitted by
the Executive Council of the Phil. Medical QUALIFICATIONS PRESCRIBED BY CONSTITUTION
Association as one of the qualifications for (1) For President [Sec. 2, Art. VI, Constitution] and Vice
appointment; and which confines the selection of President [Sec. 3, Art. VII, Constitution]
the members of the Board of Medical Examiners to (a) Natural-born citizen
the 12 persons included in the list; [Cuyegkeng v. (b) 40 years old on election day
Cruz (1960)] (c) Philippine resident for at least 10 years immediately
preceding election day
TIME OF POSSESSION OF QUALIFICATIONS
(1) At the time specified by the Constitution or law. (2) For Senator [Sec. 3, Art. VI, Constitution]
(a) Natural-born citizen
(2) If time is unspecified, 2 views: (b) 35 years old on election day
(a) qualification during commencement of term or (c) able to read and write
induction into office The word eligible as used in (d) registered voter
constitutions and statutes, has reference to the (e) resident of the Philippines for not less than two
capacity not of being elected or appointed to office, years immediately preceding election day
but of holding office, and that, therefore, if qualified
at the time of commencement of the term or (3) For Congressmen [Sec. 6, Art. VI, Constitution]
induction into office, disqualification of the (a) Natural-born citizen
candidate or appointee at the time of election or (b) 25 years old on election day
appointment is immaterial; (c) able to read and write
(d) registered voter in district in which he shall be
(b) qualification / eligibility during election or elected
appointment conditions of eligibility must exist at (e) resident thereof for not less than one year
the time of the election or appointment, and that immediately preceding election day
their existence only at the time of the
commencement of the term of office or induction of (4) Supreme Court Justice
the candidate or appointee into office is not (a) Natural born citizen
sufficient to qualify him to office. (b) at least 40 years old
(c) 15 years or more as a judge or engaged in law
Reconciliation If the provision refers to holding of practice
office, rather than to eligibility to office, in defining the (d) of proven competence, integrity, probity and
qualifications, the courts are inclined to hold that the independence (C.I.P.I.)
qualifications are to be determined at the time of the
commencement of the term. (De Leon, 26-27) (5) Civil Service Commissioners [Sec. 1 [1], Art. IXB.
Constitution]
(3) Qualificationis a continuing nature, and must exist (a) Natural-born citizen
throughout the holding of the public office. Once the (b) 35 years old at time of appointment
qualifications are lost, the public officer forfeits the (c) proven capacity for public administration
office. (d) not a candidate for any elective position in election
(a) No estoppel in ineligibility. Knowledge of ineligibility immediately preceding appointment
of a candidate and failure to question such
ineligibility before or during the election is not a bar (6) COMELEC Commissioners [Sec. 1[1], Art. IXC]
to questioning such eligibility after such ineligible (a) Natural-born citizen
candidate has won and been proclaimed. Estoppel (b) 35 years old at time of appointment
will not apply in such a case. [Castaneda v. Yap (c) college degree holder
(1952)] (d) not a candidate for elective position in election
immediately preceding appointment
(b) Citizenship requirement should be possessed on start (e) chairman and majority should be members of the bar
of term . The Local Government Code does not who have been engaged in the practice of law for at
specify any particular date or time when the least 10 years
candidate must possess the required citizenship,
unlike for residence and age. The requirement is to (7) COA Commissioners
ensure that no alien shall govern our people and (a) Natural-born citizen
country or a unit of territory thereof. An official (b) 35 years old at time of appointment
begins to govern or discharge his functions only upon (c) CPA with >10 year of auditing experience or
proclamation and on start of his term. This liberal (d) Bar member engaged in practice of law for at least
interpretation gives spirit, life and meaning to our 10 years
law on qualifications consistent with its purpose. (e) Not candidates for any elective position in election
[Frivaldo v. COMELEC (1996)] immediately preceding appointment.

PAGE 97
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

Notes: Exceptions
(1) Practice of Law defined. Practice of law means any (a) Membership in the electoral tribunals of either the
activity, in or out of court, which requires the application House of Representatives or Senate (Art. VI, Sec. 17,
of law, legal procedure, knowledge, training and 1987 Const.);
experience. Generally, to practice law is to give notice (b) Party-list representation;
or render any kind of service which requires the use in (c) Commission on Appointments;
any degree of legal knowledge or skill. [Cayetano v. (d) Vacancies in the Sanggunian (Sec. 45, Local
Monsod (1991)] Government Code)

(2) In the dissenting opinion of Justice Padilla in the case of (3) NO PROPERTY QUALIFICATIONS
Cayetano v. Monsod, citing Agpalo, he stated that Since sovereignty resides in the people, it is necessarily
engaging in the practice of law presupposes the implied that the right to vote and to be voted should not
existence of lawyer-client relationship. Hence, where a be dependent upon a candidates wealth. Poor people
lawyer undertakes an activity which requires should also be allowed to be elected to public office
knowledge of law but involves no attorney-client because social justice presupposes equal opportunity for
relationship, such as teaching law or writing law books both rich and poor. [Maguera v. Borra and Aurea v.
or articles, he cannot be said to be engaged in the COMELEC (1965)]
practice of his profession asa lawyer
(4) CITIZENSHIP
(3) Residency defined. In election law, residence refers to (a) Aliens not eligible for public office.
domicile, i.e. the place where a party actually or (b) The purpose of the citizenship requirement is to
constructively has his permanent home, where he ensure that no alien, i.e., no person owing
intends to return. To successfully effect a change of allegiance to another nation, shall govern our
domicile, the candidate must prove an actual removal people and country or a unit of territory thereof.
or an actual change of domicile. [Aquino v. COMELEC [Frivaldo v. COMELEC (1996)]
(1995)]
(5) EFFECT OF REMOVAL OF QUALIFICATIONS DURING THE TERM
(4) Presumption in favor of domicile of origin. Domicile Termination from office
requires the twin elements of actual habitual residence
and animus manendi (intent to permanently remain). (6)EFFECT OF PARDON UPON THE DISQUALIFICATION TO HOLD
Domicile of origin is not easily lost; it is deemed to PUBLIC OFFICE (Asked in 1999)
continue absent a clear and positive proof of a General Rule
successful change of domicile. [Marcos v. COMELEC Pardon will not restore the right to hold public office. (Art.
(1995)] 36, Revised Penal Code)

RELIGIOUS TEST OR QUALIFICATION IS NOT Exceptions


REQUIRED (1) When the pardons terms expressly restores such (Art.
Sec. 5. No religious test shall be required for the exercise 36, RPC);
of civil or political rights. [Philippine Constitution, Art. III] (2) When the reason for granting pardon is non-
commission of the imputed crime. [Garcia v. Chairman,
QUALIFICATION STANDARDS AND REQUIREMENTS COA (1993)]
UNDER THE CIVIL SERVICE LAW
(1) QUALIFICATION STANDARDS
(a) It enumerates the minimum requirements for a
class of positions in terms of education, training
and experience, civil service eligibility, physical Disabilities and Inhibitions of
fitness, and other qualities required for successful
performance. [Sec. 22, Book V, Administrative Code] Public Officers
(b) The Departments and Agencies are responsible for
continuously establishing, administering and DISQUALIFICATIONS TO HOLD PUBLIC OFFICE
maintaining the qualification standards as an IN GENERAL: Individuals who lack ANY of the
incentive to career advancement. (Sec. 7, Rule IV, qualifications prescribed by the Constitution or by law for a
Omnibus Rules) public office are ineligible (i.e. disqualified from holding
(c) Such establishment, administration, and such office).
maintenance shall be assisted and approved by the
CSC and shall be in consultation with the Wage Authority: The legislature has the right to prescribe
and Position Classification Office (ibid) disqualifications in the same manner that it can prescribe
(d) It shall be established for all positions in the 1st and qualifications, provided that the prescribed
2nd levels (Sec. 1, Rule IV, Omnibus Rules) disqualifications do not violate the Constitution.

(2) POLITICAL QUALIFICATIONS FOR AN OFFICE General Constitutional Disqualifications


(i.e. membership in a political party) (1) Losing candidates cannot be appointed to any
governmental office within one year after such election.
General Rule [Art. IX-B Sec. 6]
Political qualifications are NOT Required for public office.
(2) Elective officials during their tenure are ineligible for
appointment or designation in ANY capacity to ANY

PAGE 98
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

public office or position [Art. IX-B Sec. 7(1)] unless they relatives by consanguinity or during Presidents tenure as
forfeit their seat affinity within the fourth civil Members of the
degree Constitutional Commissions,
(3) Appointive officials shall not hold any other or the Office of the
governmental position. Ombudsman, or as
Secretaries,
Unless otherwise allowed by law or his positions primary Undersecretaries, chairmen
functions [Art. IX-B Sec 7 (2)] or heads of bureaus or
offices, including
Note: There is no violation when another office is held by a government-owned-or -
public officer in an ex officio capacity (where one cant controlled corporations. (Art.
receive compensation or other honoraria anyway), as VIII, Sec. 13)
provided by law and as required by the primary functions
of his office. [National Amnesty Commission v. COA (2004)]
Other Disqualifications
(1) Mental or physical incapacity
Specific Constitutional Disqualifications
Public Officer Disqualifications (2) Misconduct or crime: persons convicted of crimes
involving moral turpitude are USUALLY disqualified
The President, Vice shall not hold any other from holding public office.
President, the Members of office or employment during
the Cabinet and their their tenure, UNLESS (3) Impeachment
deputies or assistants otherwise provided in the
Constitution, (Art. VII, Sec. 13) (4) Removal or suspension from office: not presumed
Senator or Member of the may not hold during his term non-imposable when such ineligibility is not
House of Representatives any other office or constitutional or statutory declared.
employment in the
Government, or any (5) Previous tenure of office: for example, an appointed
subdivision, agency or Ombudsman is absolutely disqualified for
instrumentality thereof, reappointment (Article XI, Constitution).
including government -
owned or -controlled (6) Consecutive terms limit:
corporations or their (a) Vice-President = 2 consecutive terms
subsidiaries (b) Senator = 2 consecutive terms
(c) Representative = 3 consecutive terms
Effect: or else he forfeits his (d) Elective local officials = 3 consecutive terms [Sec. 8,
seat Art. X, Constitution]

Shall also not be appointed Public officers voluntary renunciation of office for any
to any office when such was length of time = an interruption in the continuity of his
created or its emoluments service for the full term for which he was elected.
were increased during his
term. (Art. VI, Sec 13) (7) Holding more than one office: to prevent offices of public
trust from accumulating in a single person, and to
Members of the Supreme shall not be designated to prevent individuals from deriving, directly or indirectly,
Court and other courts any agency performing any pecuniary benefit by virtue of their holding of dual
established by law quasi-judicial or positions.
administrative functions.
(Art. VIII, Sec. 12) Civil Liberties Union v. Executive Secretary (1991):
Members of the shall not hold any other Section 7, Article IX-B of the Constitution generally prohibits
Constitutional Commission office or employment [during elective and appointive public officials from holding
their tenure]. (Art. IX-A, Sec. multiple offices or employment in the government unless
2) they are otherwise allowed by law or by the primary
Ombudsman and his (Art. XI, Sec. 8) functions of their position.
Deputies
This provision does NOT cover the President, Vice-
Members of Constitutional must not have been President and cabinet members they are subject to a
Commissions, the candidates for any elective stricter prohibition under Section 13 of Article VII.
Ombudsman and his position in the elections
Deputies immediately preceding their To apply the exceptions found in Section 7, Article IX-B to
appointment (Art IX-B, Sec. 1; Section 13, Article VII would obliterate the distinction set by
Art. IX-C, Sec. 1; Art. IX-D, the framers of the Constitution as to the high-ranking
Sec. 1; Art XI, Sec. 8) officials of the Executive branch.
Members of Constitutional are appointed to 7-year term,
Commissions, the without reappointment (Sec. However, public officials holding positions without
Ombudsman and his 1(2) of Arts. IX-B, C, D; Art. XI, additional compensation in ex-officio capacities as
Deputies Sec. 11) provided by law and as required by their offices primary
functions are not covered by the Section 13, Article VII
The Presidents spouse and shall not be appointed prohibition.

PAGE 99
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

Dual allegiance, on the other hand, refers to the situation


(8) Holding of office in the private sector: in which a person simultaneously owes, by some positive
(a) Section 7 (b)(1)of RA 6713 considers unlawful for act, loyalty to two or more states. While dual citizenship is
public officials and employees during their involuntary, dual allegiance is the result of an individuals
incumbency to own, control, manage, or accept volition.
employment as officer employee, consultant,
counsel, broker, agent, trustee or nominee in any [I]n including 5 in Article IV on citizenship, the concern of
private enterprise regulated, supervised or licensed the Constitutional Commission was not with dual
by their office unless expressly allowed by law. citizens per se but with naturalized citizens who maintain
their allegiance to their countries of origin even after their
(b) Section 7 of RA 6713 also generally provides for the naturalization.
prohibited acts and transactions of public officials
and employees. Subsection (b)(2) prohibits them Hence, the phrase dual citizenship in R.A. No. 7160,
from engaging in the private practice of their 40(d) and in R.A. No. 7854, 20 must be understood as
profession during their incumbency. As an referring to dual allegiance.
exception, a public official or employee can engage
in the practice of his or her profession under the (e) Fugitive from justice in criminal or non-political
following conditions: first, the private practice is cases here or abroad;
authorized by the Constitution or by the law; (f) Permanent residents in a foreign country or those
and second, the practice will not conflict, or tend to who have acquired the right to reside abroad and
conflict, with his or her official functions. continue to avail of the same right after the
effectivity of the Local Government Code;
(9) Relationship with the appointing power (g) Insane or feeble-minded.
General Rule on Nepotism: The Civil Service Decree (PD
807) prohibits all appointments in the national and
local governments or any branch or instrumentality
thereof made in favor of the relative of: Powers and Duties of Public
(a) appointing authority;
(b) recommending authority; Officers
(c) chief of the bureau office; or
(d) person exercising immediate supervision over the CLASSIFICATION OF POWERS AND DUTIES
appointee [De Leon, 2008]
In the last two cases, it is immaterial who the appointing or AS TO NATURE
recommending authority is. To constitute a violation of the Ministerial
law, it suffices that an appointment is extended or issued Official duty is ministerial when it is absolute, certain and
in favor of a relative of the chief of the bureau or office, or imperative involving merely execution of a specific duty
the person exercising immediate supervision over the arising from fixed and designated facts. Where the officer
appointee [CSC v. Dacoycoy (1999)] or official body has no judicial power or discretion as to the
interpretation of the law, and the course to be pursued is
Relative: related within the third degree of either fixed by law, their acts are ministerial only.
consanguinity or of affinity.
Performance of duties of this nature may, unless expressly
Exceptions to rule on nepotism: prohibited, be properly delegated to another. Thus, a
(a) persons employed in a confidential capacity ministerial act which may be lawfully done by another
(b) teachers officer may be performed by him through any deputy or
(c) physicians agent willfully created or appointed.
(d) members of the Armed Forces of the Philippines
Where the law expressly requires the act to be performed
(10) Under the Local Government Code (sec. 40) by the officer in person, it cannot, though ministerial, be
(a) Sentenced by final judgment for an offense delegated to another.
involving moral turpitude or for an offense
punishable by 1 year or more of imprisonment, Discretionary
within 2 years after serving sentence; They are such as necessarily require the exercise of reason
(b) Removed from office as a result of an administrative in the adaptation of means to an end, and discretion in
case; determining how or whether the act shall be done or the
(c) Convicted by final judgment for violating the oath of course pursued.
allegiance to the Republic;
(d) Dual citizenship; When the law commits to any officer the duty of looking
into facts and acting upon them, not in a way which it
Mercado v. Manzano (1999): specifically directs, but after a discretion in its nature, the
Dual citizenship is different from dual allegiance. The function is quasi-judicial.
former arises when, as a result of the concurrent
application of the different laws of two or more states, a The presumption is that the public officer was chosen
person is simultaneously considered a national by the said because he was deemed fit and competent to exercise that
states. judgment and discretion. Unless the power to substitute
another in his place has been given to him, a public officer
cannot delegate his duties to another.

PAGE 100
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

Nothing is better settled in the law than that a public


official exercises power, not rights. The government itself is
AS TO THE OBLIGATION OF THE OFFICER TO PERFORM HIS POWERS merely an agency through which the will of the state is
AND DUTIES expressed and enforced. Its officers therefore are likewise
Mandatory agents entrusted with the responsibility of discharging its
Powers conferred on public officers are generally functions. As such there is no presumption that they are
construed as mandatory although the language may be empowered to act. There must be a delegation of such
permissive, where they are for the benefit of the public or authority, either express or implied. In the absence of a
individuals valid grant, they are devoid of power. What they do suffers
from a fatal infirmity. [Villegas v. Subido (1969)]
Permissive
Statutory provisions define the time and mode in which DUTIES OF PUBLIC OFFICERS
public officers will discharge their duties, and those which (De Leon, 2008)
are obviously designed merely to secure order, uniformity,
system and dispatch in public business are generally TO BE ACCOUNTABLE TO THE PEOPLE, TO SERVE THEM WITH
deemed directory. UTMOST RESPONSIBILITY, INTEGRITY, LOYALTY AND EFFICIENCY
[SEC. 1, ART XI]
If the act does not affect third persons and is not clearly
beneficial to the public, permissive words will not be To obey the law
construed as mandatory. It is the duty of an officer to obey the general laws and the
laws which prescribe the duties of his office, and a public
AS TO THE RELATIONSHIP OF THE OFFICER TO HIS SUBORDINATES officer has no power to vary or waive any statutory law.
Power of Control
It implies the power of an officer to manage, direct or As a general rule, a public officer must obey a law found on
govern, including the power to alter or modify or set aside the statute books until its constitutionality is judicially
what a subordinate had done in the performance of his passed upon in a proper proceeding.
duties and to substitute his judgment for that of the latter.
To accept and continue in office
Power of Supervision It is the duty of every person having the requisite
Supervisory power is the power of mere oversight over an qualifications, when elected or appointed to a public office,
inferior body which does not include any restraining to accept it. The theory is that the public has the right to
authority over such body. command the services of any citizen in any official position
which it may designate.
A supervising officer merely sees to it that the rules are
followed, but he himself does not lay down such rules, nor To accept the burden of office
does he have the discretion to modify or replace them. One who accepts a public office does so with the burden,
and is considered as accepting its burdens and obligations
AUTHORITY OF PUBLIC OFFICERS with its benefits. He thereby subjects himself to all
[Nachura, 2009] constitutional and legislative provisions relating thereto
and undertakes to perform all the duties of the office.
Authority of public officers consists of those which are
(1) Expressly conferred upon him by the act appointing him As to diligence and care
(2) Expressly annexed to the office by law and Every public officer is bound to use reasonable skill and
(3) Attached to the office by common law as incidents to it diligence in the performance of his official duties,
particularly where rights of individuals may be jeopardized
Doctrine of necessary implication all powers necessary for by his neglect.
the effective exercise of the express powers are deemed
impliedly granted As to choice and supervision of subordinates
It is the duty of a public officer having an appointing power
Authority can be exercised only during the term when the to make the best available appointment.
public officer is, by law, invested with the rights and duties
of the office The degree of care required in selecting subordinates must
depend upon the nature of the work to be performed and
SOURCE OF POWERS AND AUTHORITY the circumstances of each case.
[De Leon, 2008]
Under our political system, the source of governmental Ethical duties
authority is found in the people. Directly or indirectly Every public officer is bound to perform the duties of his
through their chosen representatives, they create such office honestly, faithfully and to the best of his ability, in
offices and agencies as they deem to be desirable for the such a manner as to be above suspicion of irregularities,
administration of the public functions and declare in what and to act primarily for the benefit of the public.
manner and by what persons they shall be exercised.
As to outside activities: It is the duty of public officers to
Their will, in these respects, finds its expression in the refrain from outside activities which interfere with the
Constitution and the laws. The right to be a public officer, proper discharge of their duties
then, or to exercise the powers and authority of a public
office, must find its source in some provision of the public
law.

PAGE 101
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

DUTY TO MAKE PUBLIC DISCLOSURE OF STATEMENTS OF ASSETS


AND LIABILITIES [SEC. 17, ART. XI] Unless the Constitution expressly or impliedly prohibits
Public officials and employees have an obligation under Congress from doing so, it may delegate the power to
the Code of Conduct and Ethical Standards for Public other government bodies or officers.
Officials and Employees to accomplish and submit
declarations under oath of, and the public has the right to The salary of a public officer may not, by garnishment,
know, their assets, liabilities, net worth and financial and attachment or order of execution, be seized before being
business interests including those of their spouses and of paid to him and, appropriated for the payment of his
unmarried children under 18 years of age living in their debts.
household.
The rationale behind this doctrine is obvious consideration
TO OWE THE STATE AND THE CONSTITUTION ALLEGIANCE AT ALL of public policy. The functions and public services
TIMES [SEC. 18, ART XI] rendered by the State cannot be allowed to be paralyzed
or disrupted by the diversion of public funds from their
legitimate and specific objects, as appropriated by law. [De
la Victoria v. Burgos, (1995)]

Rights of Public Officers BASIS OF RIGHT TO COMPENSATION


The relation between an officer and the public is not the
IN GENERAL [De Leon, 2008] creation of contract, nor is the office itself a contract.
RIGHTS INCIDENT TO PUBLIC OFFICE Hence, his right to compensation is not the creation of
The rights of one elected or appointed to office are, in contract. It exists as the creation of law and belongs to him
general, measured by the Constitution or the law under not by force of any contract but because the law attaches it
which he was elected or appointed. to the office.

Right to office The just and legal claim to exercise the The right to compensation grows out of the services
powers and the responsibilities of the public office rendered. After services have been rendered, the
compensation thus earned cannot be taken away by a
subsequent law.
Term Tenure

Period during which the Period during which the As a general proposition, a public official is not entitled to
officer may claim to hold the officer actually holds office any compensation if he has not rendered any service.
office as of right [Acosta v. CA, (2000)]

Right of a de facto officer to salary where there is no de


RIGHTS AS A CITIZEN
jure officer, a de facto officer who, in good faith, has
Protection from publication commenting on his fitness and possession of the office and has discharged the duties
the like thereof, is entitled to salary
The mere fact that one occupies a public office does not
deprive him of the protection accorded to citizens by the RIGHT TO BACK SALARIES
Constitution and the laws. Back salaries are payable to an officer illegally dismissed
or otherwise unjustly deprived of his office, the right to
However, by reason of the public character of his recover accruing from the date of deprivatio. The claim for
employment or office, a public officer is, in general, held back salaries must be coupled with a claim for
not entitled to the same protection from publications reinstatement and subject to the prescriptive period of 1 yr
commenting on his fitness and the like, as is accorded to
the ordinary citizen. To fall under this exception, 2 conditions must be complied
with:
Engaging in certain political and business activities (1) the employee must be found innocent of the charges
The governmental interest in maintaining a high level (2) his suspension must be unjustified.
service by assuring the efficiency of its employees in the
performance of their tasks may require public employees Right to Vacation Leave and Sick Leave with Pay under
to suspend or refrain from certain political or business Sec. 81 of the LGC, elective officials shall be entitled to the
activities that are embraced within the constitutional rights same leave privilieges as those enjoyed by appointive local
of others, when such activities are reasonably deemed officials, including the accumulation and commutation
inconsistent with their public status and duties. thereof. Government officers and employees are entitled to
commutation of all leave credits without limitation and
RIGHT TO SALARY [De Leon, 2008] regardless of the period when the credits were earned
Salary personal compensation to be paid to the public provided the claimant was in the service as of Jan. 9, 1985
officer for his services, and it is generally a fixed annual or [Presidential Memo Circular No. 54]
periodical payment depending on the time and not on the
amount of the services he may render RIGHT TO RETIREMENT PAY
given to government employees to reward them for giving
Distinguished from wages in that salary is given to officers giving the best years of their lives in the service of their
of higher degree of employment than those to whom country. Retirement laws are liberally construed in favor of
wages are given the retieree [Profeta v. Drilon (1992)]. It may not be
withheld and applied to his indebtedness to the
The power to fix the compensation of public officers is not government [Tantuico v. Domingo (1994)]
inherently and exclusively legislative in character.

PAGE 102
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

to the public service provided that the acts of the


OTHER RIGHTS [De Leon, 2008] appointing power are bona fide for the best interest of the
public service and the person chosen has the needed
RIGHTS UNDER THE CONSTITUTION qualifications.
Right to self-organization
The right to self-organization shall not be denied to PERSONNEL ACTIONS
government employees. [Sec. 2(5), Art. IX-B, Constitution]. Any action denoting the movement or progress of
Government employees in the civil service are granted the personnel in the civil service is known as personnel action.
right to form unions enjoyed by workers in the private
sector. It includes:
(a) appointment through certification
However, the constitutional grant to government workers (b) promotion
of the right to form labor organizations or unions does not (c) transfer
guarantee them the right to bargain collectively with the (d) reinstatement
government or to engage in concerted activities including (e) reemployment
the right to strike, which are enjoyed by private employees. (f) detail
They are prohibited from staging strikes, demonstrations, (g) reassignment
mass leaves, walk-outs and other forms of mass actions (h) demotion and
which will result in temporary stoppage or disruption of (i) separation
public services
RIGHTS UNDER THE REVISED GOVERNMENT SERVICE INSURANCE
Right to protection of temporary employees ACT
Employees in the government given temporary Covered employees are entitled to retirement benefits,
appointments do not enjoy security of tenure. They shall be separation benefits, unemployment or involuntary
given such protection as may be established by law to separation benefits, disability benefits, survivorship
prevent indiscriminate dismissals and to see to it that their benefits, funeral benefits and life insurance benefits.
separation or replacement is made only for justifiable
reasons RIGHT TO REIMBURSEMENT AND INDEMNITY
When a public officer, in the due performance of his duties,
Freedom of members of Congress from arrest and from has been expressly or impliedly required by law to incur
being questioned expenses on the public account, not covered by his salary
A Senator or Member of the House of Representatives or commission and not attributable to his own neglect or
shall, in all offenses punishable by not more than six years default, the reasonable and proper amount thereof forms a
imprisonment, be privileged from arrest while Congress is legitimate charge against the public for which he should
in session. No member shall be questioned nor be held be reimbursed.
liable in any other place for any speech or debate in the
Congress or in any committee thereof. [Sec. 11, Art. VI, Within the same limits, the officer is entitled to be
Constitution] indemnified by the public against the consequences of acts
which he has been expressly or impliedly required to
Right not to be removed or suspended except for cause perform upon the public account, and which are not
provided by law manifestly illegal and which he does not know to be
Implicit in the constitutional prohibition against removal or wrong.
suspension except for cause, is the existence of a charge,
due hearing, and the finding of guilt by the proper RIGHT TO REINSTATEMENT AND BACK SALARY
authority. Reinstatement means the restoration to a state or
condition from which one had been removed or separated.
RIGHTS UNDER THE CIVIL SERVICE DECREE AND THE NEW One who is reinstated assumes the position he had
ADMINISTRATIVE CODE occupied prior to the dismissal
(a) Right to preference in promotion
(b) Right to present complaints and grievances Back salary or wages is a form of relief that restores the
(c) Right not to be suspended or dismissed except for income that was lost by reason of unlawful dismissal
cause as provided by law and after due process
(d) Right to organize For a plaintiff to succeed in seeking reinstatement to an
office, he must prove his right to the office. Unless this
NEXT-IN-RANK RULE right is shown, the action must fail even if the appointment
This rule specifically applies only in cases of promotion. It of the successor is first in issue.
neither grants a vested right to the holder nor imposes a
ministerial duty on the appointing authority to promote RIGHTS TO PROPERTY, DEVICES AND INVENTIONS
such person to the next higher position. Title to a public office carries with it the right, during the
incumbency of the officer, to the insignia and property
One who is next-in-rank to a vacancy is given preferential thereof.
consideration for promotion to a vacant position, but it
does not necessarily follow that he alone and no one else The question whether records, discoveries, inventions,
can be appointed. devices, data and the like, made or prepared by an officer
while he is occupying the office, belong to the public, must
Reason for the rule: The preference given assumes that be determined wit reference to the facts of each case.
employees working in an office for longer period have
gained not only superior skills but also greater dedication

PAGE 103
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

(a) where such are indispensable in the proper conduct of (9) The right to be secure in one's person, house, papers,
the office, the officer may not take them as his own and effects against unreasonable searches and
property. seizures;
(b) if, not being required by law, they are prepared by the (10) The liberty of abode and of changing the same;
officer apart from his official duties and are not (11) The privacy of communication and correspondence;
indispensable in the proper conduct of the office, the (12) The right to become a member of associations or
officer may acquire a property right therein. societies for purposes not contrary to law;
(13) The right to take part in a peaceable assembly to
petition the government for redress of grievances;
(14) The right to be free from involuntary servitude in any
form;
Liabilities of Public Officers (15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and
The liability of a public officer to an individual or the public counsel, to be informed of the nature and cause of the
is based upon and is co-extensive with his duty to the accusation against him, to have a speedy and public
individual or the public. (De Leon, 2008) trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of
GENERAL RULE ON LIABILITY witness in his behalf;
Apublic officer is not liable for the injuries sustained by (17) Freedom from being compelled to be a witness
another as a consequence of official acts done within the against one's self, or from being forced to confess
scope of his authority, except as otherwise provided by law guilt, or from being induced by a promise of immunity
(Nachura, 2009) or reward to make such confession, except when the
person confessing becomes a State witness;
A public officer shall not be civilly liable for acts done in (18) Freedom from excessive fines, or cruel and unusual
the performance of his official duties, unless there is a clear punishment, unless the same is imposed or inflicted
showing of bad faith, malice or negligence [Sec. 38(1), in accordance with a statute which has not been
Administrative Code] judicially declared unconstitutional; and
(19) Freedom of access to the courts.
No subordinate officer or employee shall be civilly liable for
acts done by him in good faith in the performance of his In any of the cases referred to in this article, whether or not
duties. However, he shall be liable for wilful or negligent the defendant's act or omission constitutes a criminal
acts done by him which are contrary to law, morals, public offense, the aggrieved party has a right to commence an
policy and good customs even if he acted under orders or entirely separate and distinct civil action for damages, and
instructions of his superiors for other relief. Such civil action shall proceed
independently of any criminal prosecution (if the latter be
Under Sec. 24, LGC, local governments and their officials instituted), and mat be proved by a preponderance of
are not exempt from liability for death or injury to persons evidence.
or damage to property
The indemnity shall include moral damages. Exemplary
STATUTORY LIABILITY damages may also be adjudicated.
Art. 27. Any person suffering material or moral loss
because a public servant or employee refuses or neglects, The responsibility herein set forth is not demandable from
without just cause, to perform his official duty may file an a judge unless his act or omission constitutes a violation of
action for damages and other relief against he latter, the Penal Code or other penal statute. [Civil Code]
without prejudice to any disciplinary administrative action
that may be taken. [Civil Code] This provision renders a public officer civilly liable for
damages for directly or indirectly obstructing, defeating,
The provision contemplates a refusal or neglect without violating or in any manner impeding or impairing civil
just cause by a public servant or employee to perform his liberties guaranteed by the Constitution.
official duty. Where there is just cause, he may not be held
liable. Under this provision, it is not necessary that the public
officer acted with malice or bad faith. To be liable, it is
enough that there was a violation of the constitutional
Art. 32. Any public officer or employee, or any private rights of the aggrieved party, even on the pretext of
individual, who directly or indirectly obstructs, defeats, justifiable motives or good faith in the performance of
violates or in any manner impedes or impairs any of the ones duties.
following rights and liberties of another person shall be
liable to the latter for damages: Good faith is not a defense.
(1) Freedom of religion;
(2) Freedom of speech;
CRIMINAL LIABILITY [DE LEON, 2008]
(3) Freedom to write for the press or to maintain a
The mere fact that an officer is acting in an official capacity
periodical publication;
will not relieve him from criminal liability.
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
Crimes peculiar to certain public officers:
(6) The right against deprivation of property without due
(1) Revised Penal Code
process of law;
(2) Anti-Graft and Corrupt Practices Act
(7) The right to a just compensation when private
(3) Code of Conduct and Ethical Standards
property is taken for public use;
(4) Forfeiture of Unexplained Wealth Act
(8) The right to the equal protection of the laws;

PAGE 104
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

(5) Civil Service Decree negligence or misfeasance of his subordinates, unless he


(6) Government Auditing Code has actually authorized by written order the specific act or
(7) Local Government Code misconduct complained of [Sec. 38(3), Administrative Code]
(8) National Internal Revenue Code
(9) Omnibus Election Code Non-applicability of the Doctrine of Command Responsibility
and the Principle of Respondeat Superior to Public Officers.
Art. 34 When a member of a city or municipal police force Neither the principle of command responsibility (in
refuses or fails to render aid or protection to any person in military or political structural dynamics) nor the doctrine of
case of danger to life or property, such peace officer shall respondeat superior (in quasi delicts) applies in the law of
be primarily liable for damages, and the city or public officers. The negligence of the subordinate cannot
municipality shall be subsidiarily responsible therefor. The be ascribed to his superior in the absence of evidence of
civil action herein recognized shall be independent of any the latters own negligence [Reyes v. Rural Bank of San
criminal proceedings, and a preponderance of evidence Miguel (2004)]
shall suffice to support such action [Civil Code]
Exception: The President, being the commander-in-chief of
all armed forces, necessarily possesses control over the
Sec. 38. Liability of Superior Officers. military that qualifies him as a superior within the purview
(2) Any public officer who, without just cause, neglects to of the command responsibility doctrine [In the Matter of the
perform a duty within a period fixed by law or regulation, or Petition for Writ of Amparo and Habeas Data in favor of
within a reasonable period if none is fixed, shall be liable Noriel H. Rodriguez; Rodriguez v. Macapagal-Arroyo (2011)]
for damages to the private party concerned without
prejudice to such other liability as may be prescribed by PREVENTIVE SUSPENSION AND BACK SALARIES
law. [Administrative Code] Preventive Suspension is a disciplinary measure which is
intended to enable the disciplinary authority to investigate
Liability on Contracts the public officer shall be charges against the respondent by preventing the latter
personally liable on contracts he enters into if he acted from using his position or office to influence witnesses, to
without, or exceeded his authority intimidate them, or to tamper with the records which may
be vital in the prosecution of the case against him
Liability on Tort The public officer shall be personally
liable if he goes beyond the scope of his authority, or KINDS OF PREVENTIVE SUSPENSION
exceeds the powers conferred upon him by law (a) Preventive suspension pending investigation
The proper disciplining authority may preventively
Presidential Immunity from Suit The privilege is enjoyed suspend any subordinate officer under his authority
only during the tenure of the President. pending an investigation, if the charge against such
officer involves dishonesty, oppression or grave
THREE-FOLD RESPONSIBILITY OF PUBLIC OFFICERS misconduct or neglect in the performance of duty or if
[De Leon, 2008] there are reasons to believe that the respondent is
A public officer is under a three-fold responsibility for guilty of the charges which would warrant his removal
violation of duty or for wrongful act or omission: from service (De Leon, 2008)
(1) Civil Liability: if the individual is damaged by such
violation, the official shall, in some cases, be held liable No compensation is due for the period of preventive
civilly to reimburse the injured party suspension pending investigation because such is not a
penalty but only a means of enabling the disciplining
(2) Criminal Liability: if he law has attached a penal authority to conduct an unhampered investigation. (De
sanction, the officer may be punished criminally Leon, 2008)

(3) Administrative Liability: such violation may also lead to (b) Preventive suspension pending appeal if the penalty
imposition of fine, reprimand, suspension or removal imposed by the disciplining authority is suspension or
from office. This administrative liability is separate and dismissal and, after review, the respondent is
distinct from the penal and civil liabilities. (Agpalo, exonerated [Caniete v. Secretary of Education (2000)]
2005)
Employees are entitled to compensation for the period of
LIABILITY OF MINISTERIAL OFFICERS their suspension pending appeal if they are found
(1) Nonfeasance - Neglect or refusal to perform an act innocent. Such suspension is actually punitive so that a
which is the officers legal obligation to perform public officer should be reinstated with full pay for the
period of the suspension.
(2) Misfeasance Failure to use that degree of care, skill,
and diligence required in the performance of official
duty Pending Investigation Pending Appeal

Not a penalty but only a Punitive in character


(3) Malfeasance the doing, through ignorance, means of enabling the
inattention or malice, of an act which he had no legal disciplining authority to
right to perform conduct unhampered
investigation
No backwages due for the If exonerated reinstated
COMMAND RESPONSIBILITY period of suspension even if with full pay for the period of
A head of a department or a superior officer shall not be found innocent unless suspension
civilly liable for the wrongful acts, omissions of duty,

PAGE 105
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

suspension is unjustified
If reprimanded cannot Where an officer was unlawfully removed and was
claim backwages. Penalty is prevented for a time by no fault of his own from
commuted performing the duties of his office, it was held that he
might recover, and that the amount that he had earned in
other employment during his unlawful removal should not
Rules on Preventive Suspension:
be deducted from his unpaid salary. He may recover the
Appointive Officials.
full amount notwithstanding that during the period of his
(1) Not a Presidential Appointee
removal, the salary has been paid to another appointed to
(a) By the proper disciplining authority
fill the vacancy unlawfully created.
(b) Against any subordinate officer or employee
under such authority
The no work, no pay principle does not apply where it has
(c) When pending an investigation
been sufficiently shown that a public official was
(d) Grounds Dishonesty, oppression or grave
wrongfully prevented from entering the office and carrying
misconduct, neglect in the performance of duty or if
out his duties
there are reasons to believe that respondent is
guilty of the charges which would warrant his
If the illegal dismissal is found to have been made in bad
removal from the service
faith by the superior officers then they will be held
(e) Period administrative investigation must be
personally accountable for back salaries of the illegally
terminated within 90 days, otherwise the
dismissed employee.
respondent shall be automatically reinstated
unless the delay in the disposition of the case is due
The award of backwages is limited to a maximum period of
to the fault, negligence or petition of the
5 years and not to full back salaries from illegal
respondent, in which case the period of delay shall
termination up to reinstatement [David v. Gania, (2003)]
not be counted

(2) Presidential Appointee


Can only be investigated and removed from office after
due notice and hearing by the President under the
principle that the power to remove is inherent in the power
Immunity of Public Officers
to appoint as can be implied from Sec. 5 of RA 2260
General Rule: The doctrine of state immunity from suit
[Villaluz v. Zaldivar (1965)]
applies to complaints filed against public officials for acts
done in the performance of their duties.
Elective Officials [Sec. 63, RA 7170].
(1) By against Exceptions:
(a) President elective official of a province, HUC or (1) Where the public official is charged in his official
ICC capacity for acts that are unlawful and injurious to the
(b) Governor elective official of CC or municipality rights of others. Not exempt, in their personal capacity,
(c) Mayor elective official of a brgy from liability arising from acts committed in bad faith

(2) When at any time after the issues are joined (2) Where the public official is clearly being sued not in his
official capacity but in his personal capacity, although
(3) Grounds the acts complained of may have been committed
while he occupied a public position [Lansang v. CA
(a) Reasonable ground to believe that the respondent
(2000)]
has committed the act or acts complained of
(b) Evidence of culpability is strong
(3) Suit to compel performance of official duy or restrain
(c) Gravity of the offense so warrants performance of an act
(d) Continuance in office of the respondent could
influence the witnesses or pose a threat to the safety DOCTRINE OF OFFICIAL IMMUNITY FROM LIABILITIES
and integrity of the records and other evidence FOR PUBLIC OFFICERS
Rationale: promotion of fearless, vigorous and effective
(4) Duration administration of policies of government.
(a) Single administrative case not to exceed 60 days
(b) Several administrative cases not more than 90 It is generally recognized that public officers and
days within a single year on the same ground or employees would be unduly hampered, deterred and
grounds existing and known at the time of the first intimidated in the discharge of their duties, if those who
suspension act improperly, or even exceed the authority given them,
were not protected to some reasonable degree by being
(5) Preventive suspension of an elective local official is not relieved from private liability. The threat of suit could also
an interruption of the 3-term limit rule [Aldovino v. deter competent people from accepting public office.
COMELEC (2009)]
OTHER PUBLIC POLICY CONSIDERATIONS:
(1) loss of valuable time caused by such actions
ILLEGAL DISMISSAL, REINSTATEMENT AND BACK
(2) unfairness of subjecting officials to personal liability for
SALARIES
the acts of their subordinates
Reinstatement and back salary or wages are separate and
distinct reliefs given to an illegally dismissed official or
employee.

PAGE 106
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

(3) a feeling that the ballot and removal procedures are DE FACTO OFFICER DEFINED
more appropriate methods of dealing with the One who has the reputation of being the officer that he
misconduct in public office. assumes to be, and yet is not a good officer in point of law.
[Torres v. Ribo (1948)]
OFFICIAL IMMUNITY DISTINGUISHED FROM STATE
IMMUNITY He must have:
The immunity of public officials is a more limited principle (1) acted as an officer for such length of time,
than governmental immunity since its purpose is not (2) under color of title and under such circumstances of
directly to protect the sovereign, but rather to do so only reputation or acquiescence by the public and public
collaterally, by protecting the public official in the authorities,
performance of his government function. (3) as to afford a presumption of election or appointment,
and
The doctrine of sovereign immunity principally rested upon (4) induce people, without inquiry, and relying on the
the tenuous ground that the king could do no wrong. It supposition that he is the officer he assumes to be, to
served to protect the impersonal body politic or submit to or invoke his action.
government itself from tort liability.
A person is a de facto officer when the duties of his office
Official Immunity serves as a protective aegis for public are exercised under ANY of the following circumstances:
officials from tort liability for damages arising from (1) There is no known appointment or election, but people
discretionary acts or functions in the performance of their are induced by circumstances of reputation or
official duties. acquiescence to suppose that he is the officer he
assumes to be. Consequently, people do not to inquire
OFFICIAL IMMUNITY NOT ABSOLUTE into his authority, and they submit to him or invoke his
A public officer enjoys only qualified, not absolute action;
immunity. The protection afforded by the doctrine
generally applies only to activities within the scope of office (2) He possessed public office under color of a known and
that are in good faith and are not reckless, malicious or valid appointment or election, but he failed to conform
corrupt. to some precedent requirement or condition (e.g., taking
an oath or giving a bond);
But acts of a public officer are protected by the
presumption of good faith. Even mistakes concededly (3) He possessed public office under color of a known
committed by such a public officer in the discharge of his election or appointment, but such is VOID because:
official duties are not actionable as long as it is not shown (a) Hes ineligible;
that they were motivated by malice or gross negligence (b) The electing or appointing body is not empowered
amounting to bad faith. to do such;
(c) His exercise of his function was defective or
IMMUNITY FROM SUIT OF THE PRESIDENT irregular;
General Rule: The President shall be immune from suit (d) Important: The public does NOT KNOW of such
during his tenure. ineligibility, want of power, or defect being.

Exception: (4) He possessed public office under color of an election or


(1) Impeachment complaint [Sec. 2 Art. XI, Constitution] an appointment by or pursuant to a public, unconstitutional
(2) While the President is immune from suit, she may not law, before the same is adjudged to be such.
be prevented from instituting a suit
What is unconstitutional is the officers appointment to an
A non-sitting President does not enjoy immunity from suit, office not legally existing, (not creation of an
even for acts committed during the latters tenure [In the unconstitutional office). [Norton v. County of Shelby (1886)]
Matter of the Petition for the Writ of Amparo and Habeas
Data in favor of Noriel H. Rodriguez; Rodriguez v. OFFICER DE JURE V. OFFICER DE FACTO (Asked in
Macapagal-Arroyo (2011)] 2000, 2004)
De Jure De Facto

Requisites
De facto Officers A de jure office exists; De jure office;

DE FACTO DOCTRINE He is legally qualified for the He assumed office under


It is the doctrine that a person who is admitted and sworn office; color of right or general
into office by the proper authority is deemed to be rightfully acquiescence by the public;
in such office until: He is lawfully chosen to such
(1) he is ousted by judicial declaration in a proper office; He actually and physically
proceeding; or possessed the office in good
(2) his admission thereto is declared void. He undertakes to perform faith.
the duties of such office
Doctrines Purpose: to ensure the orderly functioning of according to laws
government. The public cannot afford to check the validity prescribed mode.
of the officer's title each time they transact with him.

PAGE 107
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

(a) Reputation or acquiescence;


De Jure De Facto
(b) Known and valid appointment or election but the
Basis of Authority officer failed to conform to a legal requirement
(c) Known appointment or election but void because of
Right: Reputation: He possesses ineligibility of the officer, or want of authority of the
He has the lawful right / office and performs its appointing or electing authority, or because of an
title to the office duties under color of right, irregularity in his appointment or election, such
but he is not technically ineligibility, want of authority or irregularity being
qualified to act in all points unknown to the public
of law (d) Known appointment or election pursuant to an
How Ousted unconstitutional law before declaration of
unconstitutionality
Cannot be ousted. In a direct proceeding (quo
warranto); WHO ARE NOT CONSIDERED DE FACTO OFFICERS?
(collaterally) (1) A judge who has accepted an appointment as finance
Validity of Official Acts secretary and yet renders a decision after his
acceptance: if he has ceased to be judge by actually
Valid, subject to exceptions Valid as to the public until accepting and entering into some other office and has
(e.g., acting beyond his his title to the office is actually entered upon the performance of the duties of
scope of authority, etc.) adjudged insufficient. the other office, it is difficult to understand how he can
Rules on Compensation still be considered as actually occupying and
performing the duties of the office which he had
Rightfully entitled to Conditionally entitled to abandoned and vacated. An abandonment and a
compensation; receive compensation: only vacation of an office is inconsistent and repugnant to the
when no de jure officer is idea of actually continuing to perform the duties of such
The principle "No work, no declared; office; [Luna v. Rodriguez (1917)]
pay" is inapplicable to him.
He is paid only for actual (2) A judge whose position has already been lawfully
services rendered. abolished, and yet promulgates a decision in a criminal
case after the abolition and over the fiscals objection
OFFICER DE FACTO V. INTRUDER [People v. So (1995)]
De Jure De Facto
OFFICE CREATED UNDER AN UNCONSTITUTIONAL STATUTE
Nature The prevalent view is that a person appointed or elected in
accordance with a law later declared to be
He becomes officer under He possesses office and unconstitutional may be considered de facto at least
any of the 4 circumstances performs official acts without before the declaration of unconstitutionality.
discussed under Part II actual or apparent authority.
(above). LEGAL EFFECT OF ACTS OF DE FACTO OFFICERS
Basis of Authority [Monroy v. CA (1967)]
(1) As regards the officers themselves: A party suing or
Color of right or title to None. Neither lawful title nor defending in his own right as a public officer must
office color of right to office. show that he is an officer de jure. It is not sufficient that
Validity of official acts he be merely a de facto officer.
Valid as to the public until Absolutely void; His acts can (2) As regards the public and third persons: The acts of a de
his title to the office is be impeached at any time in facto officer are valid as to third persons and the public
adjudged insufficient any proceeding (unless and until his title to office is adjudged insufficient.
until he continues to act for a
long time, creating a Rationale: The doctrine is intended not for the
presumption of his right to protection of the public officer, but for the protection of
act) (De Leon, p. 119) the public and individuals who get involved in the
Rules of Compnesation official acts of persons discharging the duties of a
public office.
Entitled to receive Not entitled to compensation
compensation only when at all. (3) De Facto Officers Official Acts are not subject to
no de jure officer is collateral attack
declared and only for
actual services rendered. Rule: A de facto officers and his acts validity cannot be
collaterally questioned (in proceedings where he is not a
An intruder / usurper may be presumed a de facto officer party, or were not instituted to determine the very
with the passage of time, when the public presumes in question).
their minds IN GOOD FAITH that the intruder is rightfully
acting as a public officer. Remedy: Quo warranto proceedings filed by:
(a) The person claiming entitlement to the office;
ELEMENTS OF A DE FACTO OFFICERSHIP (b) The Republic of the Philippines (represented by the
(1) A validly existing public office; Solicitor-General or a public prosecutor).
(2) Actual physical possession of the office in good faith;
(3) Color of title to the office:

PAGE 108
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

LIABILITY OF DE FACTO OFFICERS


(De Leon, pp. 130-131) Termination of Official
A de facto officer generally has the same degree of liability
in accountability for official acts like a de jure officer. Relation
The de facto officer may be liable for all imposable penalties EXPIRATION OF THE TERM OR TENURE OF OFFICE
for ANY of the following acts: Upon the expiration of the officers term, unless he is
(1) usurping or unlawfully holding office; authorized by law to hold over, his rights, duties and
(2) exercising the functions of public office without lawful authority as a public officer must ipso facto cease.
right;
(3) ineligibility for the public office as required by law Term of office the time during which the officer may claim
to hold the office as of right and fixes the interval after
The de facto officer cannot excuse responsibility for crimes which the several incumbents shall succeed one another. It
committed in his official capacity by asserting his de facto is a fixed and definite period of time to hold office, perform
status. its functions and enjoy its privileges and emoluments until
the expiration of said period
RIGHT TO COMPENSATION OF DE FACTO OFFICER
General Rule: Tenure of office the period during which the incumbent
None. A de facto officer cannot sue for the recovery of actually holds office.
salary, fees or other emoluments attached to the office, for
the duties he has performed. His acts, as far as he himself is Accomplishment of the Purpose Where an office is
concerned, are void. (63A Am. Jur. 2d 1094-1095) created, or an officer is appointed, for the purpose of
performing a single act or the accomplishment of a given
The rightful incumbent may recover from the de facto officer result, the office terminates and the officers authority
the salary received by the latter during his wrongful tenure, ceases with the accomplishment of the purposes which
even though he entered into the office in good faith and called it into being
under color of title. [Monroy v CA (1967)]
REACHING THE AGE LIMIT (RETIREMENT)
Exceptions: This mode results in the compulsory and automatic
(1) Where there is no de jure public officer, the officer de retirement of a public officer
facto who in good faith has had possession of the office
and has discharged the duties pertaining thereto is legally COMPULSORY RETIREMENT AGE
entitled to the emoluments of the office. [Monroy v. CA (1) Members of the Judiciary 70 yrs old
(1967)] (2) Other government officers and employees 65 yrs old
[new GSIS Charter]
(2) In Civil Liberties Union v. Executive Secretary (1991), even (3) Optional retirement age after rendition of the
as EO No. 284 was declared unconstitutional because it minimum number of years of service [RA 1616]
allowed Cabinet members to hold multiple offices in direct
contravention of the Constitution, it was held that during DEATH OR PERMANENT DISABILITY
their tenure in the questioned positions, the respondents The death of the incumbent of an office, which is by law to
may be considered de facto officers and as such entitled to be filled by one person only, necessarily renders the office
the emoluments of the office/s for actual service rendered. vacant. The public official cease to hold office upon his
death and all his rights, duties and obligations pertinent to
A de facto officer, not having good title, takes the salaries the office are extinguished.
at his risk and must account to the de jure officer (when
there is one) for whatever salary he received during the Permanent disability covers both physical or mental
period of his wrongful tenure, even if he occupied the office disability.
in good faith.
RESIGNATION
BUT when the de jure officer assumed another position Resignation is the act of giving up or the act of a public
under protest, for which she received compensation: while officer by which he declines his office and renounces the
her assumption to the said position and her acceptance of further right to use it. It is an expression of the incumbent
the corresponding emoluments do not constitute in some form, express or implied, of the intention to
abandonment of her rightful office, she cannot recover full surrender, renounce and relinquish the office and the
back wages for such. She is only entitled to back pay acceptance thereof by competent lawful authority [Ortiz v.
differentials between the salary rates for the lower position COMELEC (1988)]
she assumed and the position she is rightfully entitled to.
[Gen. Manager, Philippine Ports Authority v. Monserate REQUISITES:
(2002)] (1) Intention to relinquish a part of the term
(2) Act of relinquishment
(3) Acceptance by the proper authority, either expressly or
implied

FORM OF RESIGNATION:
Where by law a resignation is required to be made in any
particular form, that form must be substantially complied
with.

PAGE 109
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

Where no such form is prescribed no particular mode is to the other and in the nature of the functions and duties
required, but the resignation may be made by any method which attach to them
indicative of the purpose. It need not be in writing, unless
so required by law. It exists where:
(1) There is conflict in such duties and functions, so that the
A written resignation, delivered to the board or officer performance of the duties of one interferes with the
authorized to receive it and fill the vacancy thereby performance of the duties of the other as to render it
created, is prima facie, but not conclusive evidence of the improper from consideration of public policy for one
intention to relinquish the office. person to retain both.
(2) One is subordinate to the other and is subject in some
RESIGNATION REVOCABLE BEFORE NOTIFICATION OF ACCEPTANCE degree to its supervisory power for obviously in such a
In the case of Republic v. Singun (2008), the Court ruled situation, the design that one acts as a check on the
that since respondent was not finally notified of its other would be frustrated.
acceptance, respondent could validly be withdrawn. (3) The Constitution of the law itself declares the
(1) Art. 238 of the RPC makes it an offense for any public incompatibility even though there is no inconsistency in
officer who, before acceptanceof his resignation, abandons the nature and functions of the offices.
his office to the detriment of the public service
(2) Accepting Authority Exceptions:
(a) As provided by law (1) Where the public officer is authorized by law to accept
(b) If the law is silent on who shall accept and the the other office (ex officio capacity)
public officer is an appointive officer, tender to the (2) In case of the forbidden office, it is the second office
appointing authority. If elective, tender by those that is absolutely void
authorized by law
ABANDONMENT OF OFFICE
ABANDONMENT
Resigning Public Officer Accepting Authority
Abandonment is the voluntary relinquishment of an office
President and VP Congress by the holder of all right, title, or claim thereto with the
intention of not reclaiming it or terminating his possession
Members of Congress Respective Houses and control thereof.
Governor, Vice Gov, Mayor, President
Vice Mayor, of HUC and ICC REQUISITES
(1) Intention to abandon
City Mayors and Vice Mayors Governor (2) Overt act by which the intention is carried into effect
of CCs, Municipal Mayors
and Vice Mayors SPECIES OF RESIGNATION
Sanggunian Members Sanggunian concerned While resignation in general is a formal relinquishment,
abandonment is a voluntary relinquishment through non-
Elective Barangay Officials Municipal or City Mayors user. Non-user refers to a neglect to use a privilege or a
Appointive Public Officers Appointing Authority right or to exercise an easement or an ofice [Municipality of
San Andres, Catanduanes v. CA (1998)]
EFFECTIVE DATE OF RESIGNATION
The date specified in the tender; and if no such date is Abandonment may also result from acquiescence by the
specified, then resignation shall be effective when the officer in his wrongful removal [Canonizado v. Aguirre
public officer receives notice of the acceptance of his (2001)].
resignation, not the date of the letter or notice of
acceptance [Gamboa v. CA (1981)] Civil Service Rules an officer or employee shall be
automatically separated from the service if he fails to
COURTESY RESIGNATION
return to the service after the expiration of one-year leave
Courtesy Resignation cannot properly be interpreted as a of absence without pay. Also, officers and employeees who
resignation in the legal sense for it is not necessarily a are absent for at least 30 days without approved leave
reflection of a public officials intention to surrender his (AWOL) shall be dropped from the service after due notice
position. Rather, it manifests his submission to the will of
the political authority and the appointing power [Ortiz v. PRESCRIPTION OF RIGHT TO OFFICE
COMELEC (1988)] Under the Rules of Court, quo warranto is the proper
remedy against a public officer for is ouster from office
ACCEPTANCE OF AN INCOMPATIBLE OFFICE which should be commenced within one year after the
It is contrary to the policy of the law that the same cause of such ouster or the right of the plaintiff to hold
individual should undertake to perform inconsistent and such office or position arose; otherwise, the action will be
incompatible duties. barred.

General Rule: One who, while occupying one office, accepts Rationale for the one year period: Title to public office
another incompatible with the first, ipso facto, absolutely should not be subjected to uncertainties but should be
vacates the first office. determined as speedily as possible.

WHEN INCOMPATIBLE
Filing of an action for administrative remedy does not
Incompatibility is to be found in the character of the offices suspend the period for filing the appropriate judicial
and their relation to each other, in the subordination of one proceeding.

PAGE 110
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

REMOVAL corruption, other high crimes, or betrayal of public trust.


Removal entails the ouster of an incumbent before the All other public officers and employees may be removed
expiration of his term. It implies that the office exists after from office as provided by law, but not by impeachment.
the ouster. Another term used is dismissal. (Sec. 2, Art. XI, Constitution)

Removal from office may be express or implied. The House of Representatives has the sole power to
(1) Appointment of another officer in the place of the initiate all cases of impeachment while the Senate sits as a
incumbent operates as a removal if the latter was court for the trial of impeachment cases. Judgment in
notified. [De Leon] cases of impeachment shall not extend further than
(2) The transfer of an officer or employee without his removal from office and disqualification to hold any office
consent from one office to another, whether it results in under the Republic of the Philippines, but the party
promotion or demotion, advancement or reduction in convicted shall nevertheless be liable and subject to
salary, is equivalent to his illegal removal or separation prosecution, trial, and punishment, according to law. (Sec.
from the first office. [Gloria v. Court of Appeals [2000]] 3, Art. XI, Constitution)
(3) Demotion to a lower position with a lower rate of
compensation is also equivalent to removal if no cause ABOLITION OF OFFICE
is shown for it. [De Guzman v. CSC (1994)] To consider an office abolished, there must have been an
intention to do away with it wholly and permanently.
It is the forcible and permanent separation of the
incumbent from office before the expiration of his term Except when restrained by the Constitution, the Congress
[Ingles v. Mutuc (1968)]. has the right to abolish an office, even during the term for
which an existing incumbent may have been elected.
Note: Constitutional guarantee of security of tenure No
officer or employee of the civil service shall be removed or Valid abolition of office does not constitute removal of the
suspended except for cause provided by law [Sec. 2(3), Art incumbent.
IX-B, Constitution].
No law shall be passed reorganizing the Judiciary when it
Demotions and transfers without just cause are undermines the security of tenure of its members [Sec. 2,
tantamount to removal. Art. VIII, Constitution].

Removal or resignation from office is not a bar to a finding The fundamental principle afforded to civil service
of administrative liability [Office of the President v. Cataquiz employees against removal except for cause as provided
(2011)]. by law does not protect them against abolition of the
positions held by them in the absence of any other
Removal not for a just cause, or non-compliance with the provision expressly or impliedly prohibiting abolition
prescribed procedure constitutes a reversible error and thereof. [Castillo v. Pajo, (1958)]
entitles the officer or employee to reinstatementwith back
salaries and without loss of seniority rights REQUISITES [Mendoza v. Quisumbing (1990)]:
(1) Abolition must be done in good faith
Extent of the Presidents removal power: (2) Clear intent to do away with the office
(1) With respect to non-career officers exercising purely (3) Not for personal or political reasons
executive functions whose tenure is not fixed by law (4) Cannot be implemented in a manner contrary to law
(i.e. members of the Cabinet), the President may
remove them with or without cause and Congress may Reorganization reduction of personnel, consolidation of
not restrict such power. offices, or abolition thereof by reason of economy or
(2) With respect to officers exercising quasi-legislative or redundancy of functions. It could result in the loss of ones
quasi-judicial functions (e.g. members of the SEC), they position through removal or abolition of an office.
may be removed only on grounds provided by law to However, for a reorganization for the purpose of economy
protet their independence. or to make the bureaucracy more efficient to be valid, it
(3) With respect to constitutional officers removable only must pass the test of good faith; otherwise, it is void ab
by means of impeachment, and judges of lower courts, initio [United Claimant Association of NEA v. NEA (2012)]
they are not subject to the removal of the President.
(4) With respect to civil service officers, the President may Reorganization is valid provided they are pursued in good
remove them at his pleasure with or without cause. faith

IMPEACHMENT Attrition reduction of personnel as a result of resignation,


Impeachment method of national inquest into the retirement, dismissal in accordance with existing laws,
conduct of public men. death or transfer to another office [Sec. 2(a), RA 7430
Attrition Law]
Purpose: To protect the people from official delinquencies
or malfeasances. It is primarily intended for the protection IS ABANDONMENT EQUIVALENT TO ABOLITION?
of the State, not for the punishment of the offender. When a public official voluntarily accepts an appointment
to an office newly created by law -- which new office is
The President, the Vice-President, the Members of the incompatible with the former -- he will be considered to
Supreme Court, the Members of the Constitutional have abandoned his former office.
Commissions, and the Ombudsman may be removed from
office on impeachment for, and conviction of, culpable Except: when the public official is constrained to accept
violation of the Constitution, treason, bribery, graft and because the non-acceptance of the new appointment

PAGE 111
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

would affect public interest. (no abandonment) [Zandueta (d) Reinstatement


v. De La Costa (1938)] (e) Reemployment
(f) Detail, reassignment
CONVICTION OF A CRIME (g) Demotion
When the penalties of perpetual or temporary absolute (h) Separation
disqualification or penalties of perpetual or temporary (3) Employment status
special disqualification are imposed upon conviction of a (4) Qualification standards
crime, termination of official relation results, for one of the
effects of the imposition of said penalties is the deprivation RECALL OF APPOINTMENT
of the public office which the offender may have held. Includes the authority to recall an appointment which has
been initially approved when it is shown that the same was
Conviction means conviction in a trial court. It issued in disregard of pertinent CSC laws, rules and
contemplates a court finding guilt beyond reasonable regulations.
doubt followed by a judgment upholding and
implementing such finding. As opposed to Recall under Sec 69-75 of the Local
Government Code: Recall is a mode of removal of a public
FAILURE TO ASSUME ELECTIVE OFFICE WITHIN SIX official by the people before the end of his term of office.
MONTHS FROM PROCLAMATION [Garcia v. COMELEC, (1993)]
The office of any official elected who fails or refuses to take
his oath of office within six months from his proclamation REVIEW APPOINTEES QUALIFICATIONS.
shall be considered vacant, unless said failure is for a The only function of the CSC is to review the appointment
cause or causes beyond his control [Sec. 11, BP 881] in the light of the requirements of the Civil Service Law,
and when it finds the appointee to be qualified and all
RECALL other legal requirements have been otherwise satisfied, it
It is a method of removal prior to the expiration of the term has no choice but to attest to the appointment. [Lapinid v.
of a public officer on account of loss of confidence CSC (1991)]
exercised directly by the registered voters of a local
government unit WHAT IT CANNOT DO.
(1) It cannot order the replacement of the appointee simply
Note: Appointive and Elective Officials Not Deemed because it considers another employee to be better
Resigned upon Filing of CoC Sec. 13(3) of RA 9369 and qualified. [Lapinid v. CSC (1991)]
Sec. 66 of BP 881, which makes an appointive official ipso (2) The CSC cannot co-manage or be a surrogate
facto resigned from his office upon the filing of his Coc, administrator of government offices and agencies.
were declared as unconstitutional [Eleazar v. Quinto (2010)] (3) It cannot change the nature of the appointment
extended by the appointing officer. [Luego v. CSC (1986)]
Equal Protection Clause Violated since it creates a
situation of obvious discrimination against appointive APPOINTMENTS TO THE CIVIL SERVICE
officials who were deemed ipso facto resigned upon filing SCOPE
of CoCs while elective officials were not. The differential Embraces all branches, subdivisions, instrumentalities and
treatment was not germane to the purposes of the law agencies of the Government, including GOCCs with
original charters [Art. IX-B Sec. 2(1), Constitution]
Overbroad because it pertains to all civil servants holding
appointive posts without distinction as to whether they CLASSES OF SERVICE (Also discussed in Constitutional Law 1)
occupy high positions in government or not. And also, the (1) Career Service Entrance based on merit and fitness
provision is directed to the activity of seeking any and all determined by competitive examinations, or based on
public offices, whether they be partisan or nonpartisan in highly technical qualifications, opportunity for
character, whether they be in the national, municipal or advancement to higher career positions and security of
barangay level. tenure.

(2) Non-career Service Entrance on bases other than


those of the usual tests. Tenure limited to a period
specified by law or which is coterminous with the
The Civil Service appointing authority or the duration of a particular project.
(i.e. elective officials, Department Heads and Members of
SCOPE Cabinet)
Embraces all branches, subdivisions, instrumentalities and
agencies of the Government, including government-owned REQUISITES:
and controlled corporations with original charters [Sec. (1) Appoint only according to merit and fitness, to be
2(1), Art. IX-B, Constitution] determined as far as practicable.
(2) Require a competitive examination.
CIVIL SERVICE COMMISSIONS (CSCS) JURISDICTION
Exclusive Jurisdiction Exceptions:(Positions where Appointees are exempt from
(1) Disciplinary cases Competitive Examination Requirements)
(2) Cases involving personnel action affecting the Civil (1) Policy determining - in which the officer lays down
Service employees: principal or fundamental guidelines or rules; or
(a) Appointment through certification formulates a method of action for government or any
(b) Promotion of its subsidiaries
(c) Transfer

PAGE 112
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

(2) Primarily Confidential denoting not only confidence in


the aptitude of the appointee for the duties of the office Exceptions:
but primarily close intimacy which ensures freedom of (1) Temporary Appointee
intercourse without embarrassment or freedom from (2) Career Executive Service Personnel whose status and
misgivings or betrayals on confidential matters of the salaries are based on ranks ( positions)
state [Proximity Rule as enunciated in De los Santos v
Mallare (1950)] Reinstatement
(3) Highly Technical requires possession of technical skill Reinstatement is technically the issuance of a new
or training in a superior degree. (i.e. City Legal Officer) appointment and is discretionary on the part of the
appointing power.
Note: It is the nature of the position which determines
whether a position is policy determining, primarily It cannot be the subject of an application for a writ of
confidential or highly technical mandamus.

PERSONNEL ACTIONS Who may be reinstated to a position in the same level for
which he is qualified:
OTHER PERSONNEL ACTIONS (1) Any permanent appointee of a career service position
Promotion is a movement from one position to another (2) No commission of delinquency or misconduct, and is
with increase in duties and responsibilities as authorized by not separated.
law and is usually accompanied by an increase in pay.
Same effect as Executive Clemency, which completely
Next-in-rank Rule obliterates the adverse effects of the administrative
The person next in rank shall be given PREFERENCE in decision which found him guilty of dishonesty. He is
promotion when the position immediately above his is restored ipso facto upon grant of such. Application for
vacated. reinstatement = unnecessary.

BUT the appointing authority still exercises discretion and Detail


is not bound by this rule, although he is required to specify Detail is the movement of an employee from one agency to
the special reason or reasons for not appointing the another without the issuance of an appointment.
officer next-in-rank. (1) Only for a limited period.
(2) Only for employees occupying professional, technical
Automatic Reversion Rule and scientific positions.
All appointments involved in a chain of promotions must (3) Temporary in nature.
be submitted simultaneously for approval by the
Commission. Reassignment
An employee may be reassigned from one organizational
The disapproval of the appointment of a person proposed unit to another in the SAME agency.
to a higher position invalidates the promotion of those in
the lower positions and automatically restores them to It is a management prerogative of the CSC and any dept or
their former positions. agency embraced in the Civil Service.

However, the affected persons are entitled to payment of It does not constitute removal without cause.
salaries for services actually rendered at a rate fixed in
their promotional appointments. (Sec. 13 of the Omnibus Requirements:
Rules Implementing Administrative Code) (1) NO reduction in rank, status or salary.
(2) Should have a definite date or duration (c.f. Detail).
Requisites. Otherwise, a floating assignment = a diminution in status
(a) series of promotions or rank.
(b) all promotional appointments are simultaneously
submitted to the Commission for approval
(c) the Commission disapproves the appointment of a Reemployment
person to a higher position. Names of persons who have been appointed permanently
to positions in the career service and who have been
Appointment through Certification is issued to a person who separated as a result of reduction in force and/or
is: reorganization, shall be entered in a list from which
(1) selected from a list of qualified persons certified by the selection for reemployment shall be made.
Civil Service Commission from an appropriate register of
eligibles
(2) qualified

Transfer Accountability of Public


Transfer is a movement from one position to another which
is of equivalent rank, level or salary without break in Officers
service.
IMPEACHMENT
This may be imposed as an administrative remedy. Impeachment has been defined as a criminal proceeding
against a public officer, before a quasi-judicial political
If UNconsented = violates security of tenure.

PAGE 113
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

court, instituted by written accusation called articles of (6) Publicize matters covered by its investigation when
impeachment. [Agpalo, 2005] circumstances so warrant and with due prudence.
(7) Determine the causes of inefficiency, red tape,
Its purpose is to protect the people from official mismanagement, fraud, and corruption in the
delinquencies or malfeasances. It is primarily intended for Government and make recommendations for their
the protection of the State, not for the punishment of the elimination and the observance of high standards of
offender. The penalties attached to impeachment are ethics and efficiency.
merely incidental to the primary intention of protecting the (8) Promulgate its rules of procedure and exercise such
people as a body politic. [De Leon, 2008] other powers or perform such functions or duties as
may be provided by law. [SEC. 13, ART. XI,
GROUNDS [Sec. 2, Art. XI, Constitution] CONSTITUTION]
(1) culpable violation of the Constitution
(2) treason
(3) bribery Sec. 15. Powers, Functions and Duties. The Office of the
(4) graft and corruption Ombudsman shall have the following powers, functions
(5) other high crimes and duties
(6) betrayal of public trust
Paragraphs 1-7 is almost the same as in the Constitution
The acts which are impeachable grounds must be
committed in the performance of the officials public office. (8) Administer oaths, issue subpoena and subpoena
[Agpalo, 2005] ducestecum, and take testimony in any investigation or
inquiry, including the power to examine and have
No impeachment proceedings shall be initiated against access to bank accounts and records;
the same official more than once within a period of one (9) Punish for contempt in accordance with the Rules of
year. [Sec. 3, Art. XI, Constitution] Court and under the same procedure and with the
same penalties provided therein;
Having concluded that the initiation takes place by the act (10) Delegate to the Deputies, or its investigators or
of filing of the impeachment complaint and referral to the representatives such authority or duty as shall ensure
House Committee on Justice, the initial action taken the effective exercise or performance of the powers,
thereon, the meaning of Section 3 (5) of Article XI becomes functions, and duties herein or hereinafter provided;
clear. Once an impeachment complaint has been initiated (11) Investigate and initiate the proper action for the
in the foregoing manner, another may not be filed against recovery of ill-gotten and/or unexplained wealth
the same official within a one year period following Article amassed after February 25, 1986 and the prosecution
XI, Section 3(5) of the Constitution. [Francisco, Jr. v. House of the parties involved therein [SEC. 15, RA 6770]
of Representatives, (2003)]
DISCIPLINARY POWER OVER PUBLIC OFFICERS
OMBUDSMAN [Agpalo, 2005] The Office of the Ombudsman has disciplinary authority
FUNCTIONS over all elective and appointive officials of the government
and its subdivisions, instrumentalities and agencies,
The Office of the Ombudsman shall have the following including Members of the Cabinet, local government,
powers, functions and duties: government-owned or controlled corporations and their
(1) Investigate on its own, or on complaint by any person, subsidiaries. (Sec. 21, RA 6770)
any act or omission of any public official, employee, The disciplinary power of the Ombudsman is not exclusive
office or agency, when such act or omission appears to but is shared with other disciplinary authorities of the
be illegal, unjust, improper, or inefficient. government.
(2) Direct, upon complaint or at its own instance, any
public official or employee of the Government, or any The disciplinary power of the Ombudsman over elective
subdivision, agency or instrumentality thereof, as well officials is concurrent with the power vested in the officials
as of any government-owned or controlled corporation specified in the Local Government Code of 1991. [Hagad v.
with original charter, to perform and expedite any act Dozo-Dadole, (1995)]
or duty required by law, or to stop, prevent, and correct
any abuse or impropriety in the performance of duties. Exceptions to Ombudsmans Disciplinary Power
(3) Direct the officer concerned to take appropriate action The Ombudsman has no disciplinary power over the
against a public official or employee at fault, and following (Sec. 21, RA 6770).
recommend his removal, suspension, demotion, fine, (1) Officials who may be removed only by impeachment
censure, or prosecution, and ensure compliance (2) Members of Congress
therewith. (3) Members of the Judiciary
(4) Direct the officer concerned, in any appropriate case,
and subject to such limitations as may be provided by However, the Office of the Ombudsman has the power to
law, to furnish it with copies of documents relating to investigate any serious misconduct in office committed by
contracts or transactions entered into by his office officials removable by impeachment, for the purpose of
involving the disbursement or use of public funds or filing a verified complaint for impeachment, if warranted.
properties, and report any irregularity to the (Sec. 22, RA 6770)
Commission on Audit for appropriate action.
(5) Request any government agency for assistance and Power to Preventively Suspend
information necessary in the discharge of its The Ombudsman or his Deputy may preventively suspend
responsibilities, and to examine, if necessary, pertinent any officer or employee under his authority pending an
records and documents. investigation, if in his judgment the evidence of guilt is
strong, and

PAGE 114
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

(1) the charge against such officer or employee involves In the absence of any allegation that the offense charged
dishonesty, oppression or grave misconduct or neglect was necessarily connected with the discharge of the duties
in the performance of duty; or functions of a public officer, the ordinary court, not the
(2) the charges would warrant removal from the service; or Sandiganbayan, has jurisdiction to hear and decide the
(3) the respondent's continued stay in office may prejudice case.
the case filed against him. (Sec. 24, RA 6770)
What is controlling is not whether the phrase "committed
The preventive suspension shall continue until the case is in relation to public office" appears in the Information.
terminated by the Office of the Ombudsman but not more What determines the jurisdiction of the Sandiganbayan is
than six (6) months, without pay, except when the delay in the specific factual allegation in the Information that
the disposition of the case by the Office of the would indicate close intimacy between the discharge of the
Ombudsman is due to the fault, negligence or petition of accused's official duties and the commission of the offense
the respondent, in which case the period of such delay charged in order to qualify the crime is having been
shall not be counted in computing the period of committed in relation to public office. The relation
suspension herein provided. (Sec. 24, RA 6770) between the crime and the office must be direct and not
accidental, that is, the relation has to be such that, in the
Prior notice and hearing is not required before suspension legal sense, the offense cannot exist without the office.
may be meted out. Suspension is not a punishment or
penalty but only a preventive measure to prevent the OFFICIALS AND PRIVATE INDIVIDUALS SUBJECT TO ITS JURISDICTION
respondent from using his position or office to influence or Under Section 4(a, b) of PD No. 1606, as amended, the
intimidate prospective witnesses or tamper with the Sandiganbayan shall exercise exclusive original jurisdiction
records which may be vital in the prosecution of the case over the cases mentioned in (a), (b), and (c) above where
against them. one or more of the accused are officials occupying
the following positions in the government, whether in a
JUDICIAL REVIEW IN ADMINISTRATIVE PROCEEDINGS permanent, acting or interim capacity at the time of the
Decisions or resolutions of the Ombudsman in commission of the offense:
administrative cases absolving the respondent of the (1) Officials of the executive branch occupying the positions
charge or imposing upon him the penalty of public censure of regional director and higher, otherwise classified as
or reprimand, suspension of not more than one month, or a Grade '27' and higher, of the Compensation and
fine equivalent to one month salary, is final and Position Classification Act of 1989 (R.A. No. 6758),
unappealable. (Agpalo, 2005) specifically including:
(a) Provincial governors, vice-governors, members of
Appeals from decisions of the Office of the Ombudsman in the sangguniang panlalawigan, and provincial
administrative disciplinary cases should be taken to the treasurers, assessors, engineers, and other
Court of Appeals under the provisions of Rule 43. [Fabian provincial department heads;
v. Ombudsman, (1998)] (b) City mayors, vice-mayors, members of the
sangguniang panlungsod, city treasurers,
JUDICIAL REVIEW IN PENAL PROCEEDINGS assessors, engineers, and other city department
In all other cases, the decision shall become final after the heads;
expiration of 10 days from receipt thereof by the (c) Officials of the diplomatic service occupying the
respondent, unless a motion for reconsideration or a position of consul and higher;
petition for review is file with the CA pursuant to Rule 43 of (d) Philippine army and air force colonels, naval
the Rules of Court. (Agpalo, 2005) captains, and all officers of higher rank;
(e) Officers of the Philippine National Police while
SANDIGANBAYAN occupying the position of provincial director and
COMPOSITION those holding the rank of senior superintendent or
Under PD 1606 as amended by RA 8249 - A special court, higher;
of the same level as the Court of Appeals and possessing (f) City and provincial prosecutors and their assistants,
all the inherent powers of a court ofjustice, to be known as and officials and prosecutors in the Office of the
the Sandiganbayan is hereby created composed of a Ombudsman and special prosecutor;
presiding justice and fourteen associate justices who shall
be appointed by the President (2) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
EXCLUSIVE ORIGINAL JURISDICTION OVER universities or educational institutions or foundations;
(1) violations of R.A. No. 3019 and No. 1379 (3) Members of Congress and officials thereof classified as
(2) crimes committed by public officers and employees Grade "27" and up under the Compensation and
embraced in Title VIII of the Revised Penal Code Position Classification Act of 1989;
(3) other offenses or felonies (whether simple or (4) Members of the judiciary without prejudice to the
complexed with other crimes) committed by public provisions of the Constitution;
officers and employees in relation to their office, where (5) Chairmen and members of Constitutional
the penalty prescribed by law is higher than prision Commissions, without prejudice to the provisions of the
correccional or imprisonment for six (6) years, or a fine Constitution; and
of P6,000; and (6) All other national and local officials classified as Grade
(4) Civil and criminal cases filed pursuant to and in "27" and higher under the Compensation and Position
connection with Executive Orders No. 1,2, 14, and 14-a Classificafion Act of 1989.
issued in 1986
In case private individuals are charged as co-principals,
accomplices or accessories with the public officers or

PAGE 115
UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION

employees, including those employed in government-


owned or -controlled corporations, they shall be tried Section 2 of Republic Act No. 7080 punishes the crime of
jointly with said public officers and employees in the plunder. It provides that any public officer who, by himself
proper courts which shall exercise exclusive jurisdiction or in connivance with members of his family, relatives by
over them. affinity or consanguinity, business associates, subordinates
or other person, amasses, accumulates or acquires ill-
EXCLUSIVE APPELLATE JURISDICTION gotten wealth through a combination or series of overt or
The Sandiganbayan shall exercise exclusive appellate criminal acts in the aggregate amount or total value of at
jurisdiction over final judgments, resolutions or orders of least seventy-five million pesos (P75,000,000.00), shall
regional trial courts whether in the exercise of their own be guilty of plunder and shall be punished by life
original jurisdiction or of their appellate jurisdiction. imprisonment with perpetual absolute disqualification
from holding any public office. Any person who
APPELLATE JURISDICTION OF THE SUPREME COURT limited to participated with the said officer in the commission of
questions of lawover decisions and final orders of the plunder shall likewise be punished. The court shall declare
Sandiganbayan [Republic v. Sandiganbayan (2002)] any and all ill-gotten wealth and their interests and other
incomes and assets including the properties and shares of
ILL-GOTTEN WEALTH stocks derived from the deposit or investment thereof
The right of the State to recover properties unlawfully forfeited in favor of the State. (Agpalo, 2005)
acquired by public officials or employees, from them or
from their nominees or transferees, shall not be barred by TERM LIMITS
prescription, laches or estoppel [Sec. 15, Art. XI, All elective local officials, except barangay officials
Constitution] (Sec. 8, Art. X, Constitution; Sec. 43 LGC)
Term of office: 3 years from noon of June 30, 1992 or the
This provision applies only to civil actions for recovery of ill- date provided by law
gotten wealth and not to criminal cases. Thus, prosecution
of offenses arising from, relating or incident to, or involving All local officials first elected during the local elections
ill-gotten wealth in the said provision may be barred by immediately following the ratification of the 1987
prescription [Presidential Ad-hoc Fact Finding Committee Constitution shall serve until noon of June 30, 1992;
on Behest Loans v. Desierto (1999)] (1) No official shall serve for more than 3 consecutive terms
for the same position;
Ill-gotten wealth means any asset, property, business (2) Voluntary renunciation of the office for any length of
enterprise or material possession of any person acquired time is not an interruption in the continuity of his
by himself directly or indirectly through dummies, service for the full term for which he was elected
nominees, agents, subordinates and/or business
associates by any combination or series of the following RA 9164: Synchronized Barangay and Sangguniang
means or similar schemes: Kabataan Elections (2002)
(1) through misappropriation, conversion, misuse, or Sec. 2.Term of Office
malversation of public funds or raids on the public Term of office of barangay and sangguniang kabataan
treasury; officials: 3 years
No barangay elective official shall serve for more than 3
(2) by receiving, directly or indirectly, any commission, gift, consecutive terms in the same position
share,percentage, kickbacks or any other form of (1) Reckoned from the 1994 barangay elections
pecuniary benefit from any person and/or entity in (2) Voluntary renunciation of office for any length of time
connection with any government contract or project or shall not be considered as an interruption
by reason of the office or position of the public officer
concerned;

(3) by the illegal or fraudulent conveyance or disposition of


assets belonging to the National Government or any of
its subdivisions, agencies or instrumentalities or
government-owned or controlled corporations and
their subsidiaries,

(4) by obtaining, receiving or accepting directly or indirectly


any shares of stock, equity or any other form of interest
or participation including the promise of future
employment in any business enterprise or undertaking;

(5) by establishing agricultural, industrial or commercial


monopolies or other combinations and/or
implementation of decrees and orders intended to
benefit particular persons or special interests, or

(6) by taking undue advantage of official position,


authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense
and to the damage and prejudice of the Filipino people
and the Republic of the Philippines. (Sec. 1, RA 7080)

PAGE 116

S-ar putea să vă placă și