Political Law and Public International Law

Political Law and Public International Law
By: Dean Arturo M. de Castro

University of Manila, College of Criminology
Associate Dean and Bar Review Director
University of Manila, College of Law
Professional Lecturer, Ateneo Graduate School
Bar Reviewer, PCU College of Law
a. What are inherent and fundamental powers of the State?
1. POLICE POWER
Power to legislate for the good and welfare of the

public. (Carlos Superdrug Corp. vs. DSWD, G.R. No.
166494, June 29, 2007)
2. EMINENT DOMAIN
Writ of Possession is ministerial upon deposit of the

amount equivalent to 100% of the fair market value
appearing in the zonal valuation of the BIR, or in its
absence, the Tax Declaration, even before determination of
the public purpose for the expropriation. (Amos Francia Jr.
vs. Municipality of Meycauayan, G.R. No. 170432, March
24, 2008)
Value of just compensation is fixed at the time of

taking. No rental is collectible, but only 6% interest per
annum if no payment is made at the time of taking.
Ownership is taken together with possession, and the right
of rental is inconsistent with ownership and payment of 6%
interest. (MIAA vs. Rodriguez, G.R. No. 161836, Feb. 28,
2006, per Justice Tinga)
3. TAXATION DISTINGUISHED FROM POLICE POWER
Generation of Revenue is the primary purpose of

taxation, and regulation is merely incidental. It is police
power if regulation is the primary purpose, and revenue is
merely incidental. (Gerochi vs. Department of Energy,
G.R. No. 159796, July 17, 2007)
1
POLITICAL LAW AND PUBLIC INTERNATIONAL LAW
By: Dean Art de Castro
b. What are the modes of amending the Constitution? (Sec. 1,
Art. XVII) p. 347, 1st (Green) Study Guide
1) Constituent Assembly, Congress by a vote of ¾ of its

members.
2) Constitutional Convention
3) People’s Initiative – petition of at least 12% of registered

voters, at least 3% of registered voters in each legislative
district.
b-1. Distinguish amendment from revision of the Constitution?
Amendment is minor change of specific provisions.
Revision is radical change, such as change of Government.
c. May the Constitution be revised by shifting from the

presidential to the parliamentary form of Government thru
Initiative and Referendum?
- No. Revision is possible only thru Constitutional Assembly

or Constitutional convention, not thru initiative and
referendum which is a mode allowed only for amendment
of the Constitution
d. What is the principle of Jus Cogens in International Law

which constitutes a limitation on the power of the
constituent assembly to propose changes in the
Constitution?
- Jus cogens, or peremptory norm of international law,

means “a norm accepted and recognized by the
international community of States as a whole as a norm
from which no derogation is permitted and which can be
modified only by a subsequent norm of general
international law having the same character. (Article 53,
Vienna Convention on Treaties)
e. What is a political question? p. 353, 1st (Green) Study

Guide for the Bar
2
- Question of policy, wisdom of particular measure. It refers
to those questions which under the Constitution are to be
decided by the people in their sovereign capacity.
(Tañada vs. Cuenco, Feb. 28, 1957; Snap Election
cases)
f. Is the political question doctrine still in effect in light of

the power of judicial review over acts of the legislative or
executive done with abuse of discretion?
- Yes. While it is conceded that Article VIII, Section 1 of

the Constitution has broadened the scope of judicial
inquiry into areas normally left to the political
departments to decide, such as those relating to national
security, it has not altogether done away with political
questions such as those which arise in the field of foreign
relations. (Bayan [Bagong Alyansang Makabayan] vs.
Zamora, 342 SCRA 449 [2000])
g. Who are the impeachable officers?
- President, Vice-President, Members of the Supreme Court,

members of the Constitutional Commissions, and the
Ombudsman
h. What are the grounds for impeachment? p. 59, Study Guide

for the Bar
- culpable violation of the Constitution, treason, bribery,

graft and corruption, other high crimes, betrayal of public
trust.
i. When is an impeachment complaint deemed initiated for the

purpose of counting the one year period banning initiation of
subsequent impeachment complaint against the President
within such one year period?
- when filed and referred to the Justice Committee. Under

the recent interpretation of the House of Representatives,
the complaint is referred to the Justice Committee upon
receipt of the complaint by the latter. (Francisco vs.
House of Representatives)

3
a. State the power of Congress to call executive official to
attend. (p.132, 2nd Blue Study Guide for the Bar)
1) Investigation in aid of legislation – absolute right to

compel appearance
2) Question hour – president may ban appearance
b. What is executive privilege?
- for reasons that must be stated, confidentiality to

safeguard national interest, the President may restrain
cabinet officials from attending Congressional
investigation.
c. Has the President the constitutional power to declare (1)

state of rebellion? (2) State of national emergency? (3)
Martial law?
- Yes, under her constitutional powers as Commander-in-

Chief, and as Chief Executive in charge of faithfully
executing the law.
d. Has the President the power to take over public utilities

during the state of national emergency under the present
state of the law and the Constitution?
- No, in the absence of implementing legislation granting

her such emergency power. The constitutional provision
on emergency powers of the President in case of national
emergency is not self-executing.
e. Do the police have the power to make warrantless arrest

during state of national emergency?
- No, without legal grounds under existing law, namely (1)

a crime is being committed, about to be committed or
attempted to be committed in the presence of the police;
or (2) a crime has been committed and the police has
reasonable ground to believe based on the facts within his
knowledge that the person to be arrested is probably the
author of the crime; and (3) in case of escaped prisoner.

4
a. Is dual citizenship constitutional?
- Yes. The provision of the Constitution that dual allegiance

is inimical to public interest and shall be dealt with by law
accordingly is not self-executory. R.A. 9225 which allows
dual citizenship to natural borne Filipino citizens who have
lost Philippine citizenship by naturalization in a foreign
country is constitutional as a mode of re-acquiring Filipino
citizenship. Whether they retain foreign citizenship is for
the foreign country to determine. (Calilung vs.
Datumanong, G.R. No. 60869,) May 11, 2007
NOTE: The U.S., Canada, Australia, Switzerland recognize

dual citizenship.
b. May dual Filipino citizens residing abroad and overseas

Filipino be allowed to vote?
- Yes. A perusal of the Constitution suggests that Section 1

of Article V prescribes residency requirement as a general
eligibility factor for the right to vote. On the other hand,
Section 2 of the same Artcile authorizes Congress to
devise a system wherein an absentee may vote, implying
that a non-resident may, as an exception to the residency
prescription in the preceding section, be allowed to vote.
In response to this mandate, Congress enacted R.A. 9189
or the Overseas Absentee Voting act of 2003.
The Court noted that there is no provision in the dual

citizenship law – RA 9225 – requiring “duals” to actually
establish residence and physically stay in the Philippines
first before they can exercise their right to vote. On the
contrary, R.A. 9225, in implicit acknowledgment that
“duals” are most likely non-residents, grants under its
Section 5(1) the same right of suffrage as that granted an
absentee voter under R.A. 9189. It cannot be
overemphasized that R.A. 9189 aims, in essence, to
enfranchise as much as possible all overseas Filipinos
who, save for the residency requirements exacted of an
ordinary voter under ordinary conditions, are qualified to
vote.
Furthermore, the Court noted that the expanded thrust of

R.A. 9189 extends also to what might be tagged as the
next generation of “duals”. This may be deduced from the
5
inclusion of the provision on derivative citizenship in R.A.
9225. It is very likely that a considerable number of those
unmarried children below eighteen (18) years of age had
never set foot in the Philippines. Now then, if the next
generation of “duals” may nonetheless avail themselves
the right to enjoy full civil and political rights under
Section 5 of the Act, then there is neither no rhyme nor
reason why the petitioners and other present day “duals”,
provided they meet the requirements under Section 1,
Article V of the Constitution in relation to R.A. 9189, be
denied the right of suffrage as an overseas absentee
voter. Congress could not have plausibly intended such
absurd situation. (Loida Nicolas-Lewis, et al. vs.
Commission on Elections, G.R. No. 162759, August 4,
2006)
c. Is a green card holder with permanent residence in the U.S.

eligible to hold public office?
- No. Green card holder is disqualified from holding elective

office unless he waives his permanent resident status in
the U.S. (Ugdoracion, Jr. vs. COMELEC, G.R. No.
179851, April 18, 2008).
d. Do the provisions of the treaty creating the World Trade

Organization and the Trade Related Aspect of Intellectual
Property (TRIPs) Agreement attached thereto providing for
reciprocity and equal treatment among nationals of member
nations contravene the nationalistic provisions of the
Constitutions giving preference to Filipino in the
development, exploitation and utilization of national
resources?
- No, the Constitution does not prohibit entry of foreign

investments. What is prohibited is unfair competition
(Tañada vs. Angara, 272 SCRA 18).
e. How do treaties become part of domestic law?
a) By transformation – through legislation

b) By incorporation – adoption by constitutional provision
V
6
a. Is the extraditee entitled to bail?
- Yes. US vs. Puruganan was reversed. An extraditee is

entitled to bail by proving that he is not a flight risk and
will abide by the processes of the extradition court.
(Rodriguez vs. RTC Manila, Feb. 27, 2006; Hongkong
vs. Olalia, April 19, 2007
b. What is the basis for the right of the extraditee to bail?
- International human rights.
c. What are the grounds for:
1) Warrantless arrest?
a) The person to be arrested has committed, is actually

committing, or is attempting to commit an offense in
the presence of the arresting officer.
b) When an offense has been committed and there is

probable cause to believe, based on his personal
knowledge of facts or other circumstances, that the
person to be arrested has committed the offense.
c) Escaped prisoner
d) When the right is voluntarily waived, by entering a plea

of not guilty and by participating in the trial.
2) Warrantless Search and Seizure?
a) Voluntary waiver or consent, as when the accused

check-in his luggage in the Airport.
b) When there is valid reason to “stop-and-frisk,” as when

the public chanced upon the accused who had reddish
eyes, walking in a swaying manner, appeared high on
drugs.
c) Search incident to a lawful arrest.
d) Search of vessel or aircraft
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e) Search of moving vehicle
f) Plain view doctrine: requisites
i) a prior valid intrusion based on the valid warrantless

arrest in which the police are legally present in the
pursuit of their official duties;
ii) the evidence was inadvertently discovered by the police

who have the right to be where they are;
iii) the evidence must be immediately apparent; and
iv) “plain view” justified the seizure of the evidence

without any further search.
g) Under exigent and emergency circumstances, such as

during coup d etat (People vs. De Garcia, 233 SCRA
716)
h) Right to privacy
d. What is the knock and announce principle in service of

search warrant? State its exceptions.
- Police officers are obliged to give notice, show their

authority and demand that they be allowed entry. They
may only break open any outer or inner door or windor of
a house to execute the search waarant if, after such
notice and demand, such officers are refused entry to the
place of directed search. This is known as the “knock and
announce” principle which is embodied in Anglo-American
Law.
Unannounced intrusion into the premises is permissible

when (a) a party whose premises or is entitled to the
possession thereof refuses, upon demand, to open it; (b)
when such person in the premises already knew of the
identity of the officers and of their authority and persons;
(c) when the officers are justified in the honest belief that
there is an imminent peril to life or limb; and (d) when
those in the premises, aware of the presence of someone
outside (because, for example, there has been a knock at
the door), are then engaged in activity which justifies the
8
officers to believe that an escape or the destruction of
evidence is being attempted. Suspects have no
constitutional right to destroy evidence or dispose of
evidence. However, the exceptions above are not
exclusive or conclusive. Indeed, there is no formula for
the determination of reasonableness. Each case is to be
decided on its own facts and circumstances (People vs.
Huang Zhen Hua and Jogy Lee, G.R. No. 139301,
September 29, 2004).
e. Is the imposition of the National ID System under E.O. 420

constitutional?
- E.O. 420 was declared constitutional because it is limited

to persons transacting with government agencies. A.O.
No. 308 prescribing a National I.D. System for all citizens
was declared unconstitutional for being overbroad and
vague which if implemented will put the people’s right to
privacy in clear and present danger.
f. Is the opening and reading of sealed letters of prisoners

violation of his right to privacy?
- No. The right to privacy of detention prisoner is delimited

by measures necessary to secure his safety and prevent
his escape. (Trianes case, August 25, 2005)
V
a. What are the requisites for judicial review?

- The following:
a) Actual case or controversy
b) The constitutional question must be raised by the

PROPER PARTY, one who has sustained or in imminent
danger of sustaining an injury as a result of the act
complained of
c) The constitutional question must be raised at the

earliest opportunity
d) The decision on the constitutional question must be

must be DETERMINATIVE of the case itself.
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b. What are the requisites of transcendental importance
allowing concerned citizens to raise constitutional issue
before the Supreme Court?
- Transcendental importance involves the assertion of a

public right. In view of the transcendental importance of
the issue, the mere fact of being a citizen satisfies the
requirement of personal interest and legal standing of the
Petitioners (Senate vs. Ermita, G.R. No. 169659, April
20, 2006; David vs. Arroyo, G.R. No. 171396, May 3,
2006).
c. May an inferior Court, like the Municipal Trial Court, declare

a law or a treaty unconstitutional?
- Yes. The Constitutional issue must be raised at the

earliest opportunity and may be elevated for review to the
Supreme Court.
V
a. May irregularities in the conduct of election be raised in a

pre-proclamation case?
- No, substitution of returns, terrorism of voters, and use

of flying voters refer to the conduct of the election and
cannot be raised in a pre-proclamation case. (Lucman v.
Commission on Elections, 462 SCRA 899).
b. What are pre-proclamation controversies?
- Section 241 of the Omnibus Election Code provides that a

pre-proclamation controversy refers to any question
pertaining to or affecting the proceedings of the Board of
Canvassers which may be raised by any candidate or by
any registered political party or coalition of political
parties before the Board or directly with the COMELEC.
c. What issues may be raised in the pre-proclamation

controversy?
- Section 243 of the Omnibus Election Code enumerates the

specific issues that may be raised in a pre-proclamation
controversy:
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1. Illegal composition or proceedings of the board of
canvassers.
2. The canvassed election returns are incomplete, contain

material defects, appear to be tampered with or
falsified or contain discrepancies in the same returns or
in other authentic copies thereof as mentioned in
Sections 233, 234, and 235.
3. The election returns were prepared under duress,

threats, coercion or intimidation or they are obviously
manufactured or not authentic.
4. When substitute or fraudulent returns in controverted

polling places were canvasses, the results of which
materially affected the standing of the aggrieved
candidate or candidates.
d. Why are pre-proclamation cases not allowed as to election

for national offices?
- The prohibition aims to avoid delay in the proclamation of

the winner in the election, which delay might result in a
vacuum in these sensitive posts. Proceedings which may
delay the proclamation of the winning candidate beyond
the date set for the beginning of his term of office must
be avoided, considering that the effect of said delay is, in
the case of national offices for which there is no hold
over, to leave the office without any incumbent
(Pimentel III vs. COMELEC, G.R. No. 178413, March
13, 2008).
e. Petitioner and respondent were opposing candidates for

mayor. During the canvass of the election returns, the
counsel of respondent orally objected to the inclusion of
several election returns on the ground that the envelopes
containing the election returns did not have the proper
seals, the election returns did not bear the signature of the
chairman of the board of inspectors, and the election returns
did not have the thumbprints of the members of the board
of election inspectors. The board of canvassers did not rule
on the objections, included the contested election returns in
the canvass, and immediately proclaimed petitioner as the
winner. The counsel of respondent then submitted his
written objection to the inclusion in the canvass of the
11
contested election returns, but the board of canvassers did
not rule on it. Respondent filed a petition to annul the
proclamation of petitioner.
May the proclamation be invalidated by the COMELEC?
- The board of canvassers violated its duty to enter the

ruling on the objections. Petitioner contends that the
written objections were not submitted simultaneously with
the oral objections. Submission of the written objections
within 24 hours from the time the oral objections were
made is compliance with the law. The absence of the
signature of the chairman of the board of election
inspectors and the absence of thumbmarks of the
members of the board of election inspectors rendered the
election returns materially defective under section 234 of
the Omnibus Election Code and are proper subjects of a
pre-proclamation controversy. There being no ruling on
the inclusion or exclusion of the disputed election returns,
there was no complete and valid canvass, which is a
prerequisite to a valid proclamation. (Espidol vs.
Commission on Elections, 472 SCRA 380)
f. Does the Comelec have the power to issue execution

pending appeal?
- Yes. There is no reason to dispute the authority of the

Commission on Elections to order immediate execution of
its own decision, since the suppletory application of the
Rules of Court is expressly authorized by Section 1, Rule
41 of the COMELEC Rules of Procedure (Balgonda v.
Commission on Elections, 452 SCRA 643). There must
be good reasons, like the right of the protestant to the
office is clearly established. Mere delay in the appeal is
not good reason enough to grant execution pending
appeal (Estarul vs. Comelec, June 16, 2006).
g. What are the grounds to declare failure of elections?
- No election on account of force majeure, violence,

terrorism, fraud
- Election is suspended before closing for the same
grounds.
- After voting and during the preparation, transmission,
custody or canvass, the election results in a failure to
12
elect on account of any said causes. (Galo vs. Comelec,
April 19, 2006)
V
a. Is the Public Assembly Act overbroad?
- The law is not overbroad. It regulates the exercise of the

right to peaceable assembly only to the extent needed to
avoid a clear and present danger of the substantive evils
the state has the right to prevent. There is no prior
restraint since the content of the speech is not relevant to
the regulation. (Bayan v. Ermita, G.R. No. 169838, April
25, 2006)
b. What is the void for vagueness doctrine?
- The void-for-vagueness doctrine states that “a state

which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of
law.” (Estrada v. Sandiganbayan, G.R. No. 148560,
November 19, 2001)
c. Cite constitutional provisions dealing with transparency in

transactions involving public interest.
- Section 28, Article II of the 1987 Constitution provides:

“Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full disclosure of
all its transactions involving public interest.”
Section 7, Article III of the 1987 Constitution states: “The

right of the people to information on matters of public
concern shall be recognized. Access to official records,
and to documents, and papers pertaining to official acts,
transactions or decisions, as well as to government
research date used as basis for policy development, shall
be afforded the citizen, subject to such limitations as may
be provided by law.”
Section 20, Article VI of the 1987 Constitution reads: “The

records and books of accounts of the Congress shall be
preserved and be open to the public in accordance with
13
law, and such books shall be audited by the Commission
on Audit which shall publish annually an itemized list of
amounts paid to and expenses incurred for each
member.”
Section 21, Article XII of the Constitution declares:

“Information on foreign loans obtained or guaranteed by
the government shall be made available to the public.”
As held in Valmonte vs. Belmonte, G.R. No. 74930,

February 13, 1989, these provisions on public disclosures
are intended to enhance the role of the citizenry in
governmental decision-making as well as in checking
abuse in government.
X
a. What is the doctrine of Exhaustion of Administrative

remedy?
- Administrative remedies must be resorted and be

exhausted first before going to Court.
b. How is such doctrine related to the doctrine of primary

jurisdiction?
- The doctrine of primary jurisdiction applies where a claim

is originally cognizable in the courts and comes into play
whenever enforcement of the claim \requires the
resolution of issues which, under a regulatory scheme,
have been placed within the special competence of an
administrative body. (Sherwill Development
Corporation v. Sitio Sto. Niño Residents Association,
Inc., 461 SCRA 517)
c. What are the exceptions to the doctrine of exhaustion of

Administrative remedies?
- However, the Court recognizes some exceptions to the

rule of exhaustion of administrative remedies. As held in
Paat v. Court of Appeals (266 SCRA 167, 176-177
[1997]):
x x x However, we are not amiss to reiterate that

the principle of exhaustion of administrative
14
remedies as tested by a battery of cases is not an
ironclad rule. This doctrine is a relative one and its
flexibility is called upon by the peculiarity and
uniqueness of the factual and circumstantial settings
of a case. Hence, it is disregarded (1) when there is
a violation of due process, (2) when the issue
involved is purely a legal question, (3) when the
administrative action is patently illegal amounting to
lack or excess of jurisdiction, (4) when there is
estoppel on the part of the administrative agency
concerned, (5) when there is irreparable injury, (6)
when the respondent is a department secretary
whose acts as an alter ego of the President bears the
implied and assumed approval of the latter, (7) when
to require exhaustion of administrative remedies
would be unreasonable, (8) when it would amount to
a nullification of a claim, (9) when the subject matter
is a private land in land case proceedings, (10) when
the rule does not provide a plain, speedy and
adequate remedy, and (11) when there are
circumstances indicating the urgency of judicial
intervention.
The requirement of prior exhaustion of administrative

remedies may likewise be dispensed with in the following
instances: (1) when the claim involved is small; (2) when
strong public interest is involved; and (3) in quo warranto
proceedings. (Ibid)
d. A ran for Mayor against B who was proclaimed, assumed and

served in office a Mayor for the first 2 years. B’s protest was
granted and B served the remaining term of one year.
1) Can A collect the salaries for the first two years?
No. The right to salary is based on the right to office

from date of actual commencement (Rodriguez vs. Tan, 91
Phil. 724).
2) If A had previously served 2 terms, would he be barred

from running for re-election?
- No, because there is an interruption in his third term,

applying by analogy the rule that a Mayor who has served
three (3) consecutive terms may run in the recall election
15
because there has been an interruption after service for
three terms. If he cannot collect the salaries
corresponding to the first two years of his third term,
there is no reason to count said two years against him.
a. What are the 2 instances when a foreigner may own lands in

the Philippines?
- (1) In case of hereditary succession and (2) in case of a

former Filipino citizen coming home as a balikbayan to
engage in business in the Philippines, he may own rural
land not exceeding three (3) hectares or commercial or
industrial land not exceeding five thousand square
meters.
b. Is same sex marriage permitted under the Constitution?
- No, because procreation is an essential obligation of

marriage.
X
1. The Ombudsman issues a subpoena to the Commissioners of

the COMELEC to submit counter-affidavit in connection with
Anti-Graft Complaint involving the computerization of
elections. The COMELEC Commissioners file a motion to
dismiss on the ground that as constitutional officers
removable only by impeachment, the Ombudsman has no
jurisdiction to investigate and prosecute them for graft
before they are removed from office by impeachment.
a. As counsel for the COMELEC Commissioners, what

grounds would you raise in support of the motion to
dismiss?
b. As Ombudsman, oppose the motion to dismiss.
c. As Judge, resolve the motion to dismiss.
Ans:
16
a) The complaint should be dismissed because
constitutional officers removal by impeachment
cannot be investigated and charged criminally
because under the Constitution, they can be
removed only by impeachment. (Lecaroz vs.
Sandiganbayan, G.R. No. L-56384, March 22,
1984)
Public officials who are lawyers cannot be disbarred

because they can be removed only through
impeachment. (In RE: Raul Gonzalez, 160 SCRA
771 [1988]; Cuenco vs. Fernan, 158 SCRA 29
[1988]; and Jarque vs. Desierto, 250 SCRA X-XV
[1995])
b) The Motion to Dismiss should be denied for the

following reasons:
1. Sec. 22, R.A. 6770, the Ombudsman’s Act of 1989

provides that the Office of the Ombudsman has
the power to investigate any serious misconduct in
office allegedly committed by officials removable
by impeachment.
2. The right of the Ombudsman to investigate and

prosecute all officials, including those removable
by impeachment, for serious misconduct in office
is affirmed by the Supreme Court, in the following
cases:
2.1. Estrada vs. Desierto, 353 SCRA 452, March

2, 2001) which held that only the President
enjoys immunity from civil and criminal suit
while in office.
2.2. ITF vs. Comelec, 419 SCRA 141 (2004) in

which the Supreme Court directs the
Ombudsman to investigate the Comelec
officials removable by impeachment for
involvement in the computerization scam.
c) As Judge, I would deny the motion to dismiss for the

following reasons:
17
1) In Estrada vs. Desierto, supra, the Supreme
Court emphasized that the doctrine that a public
office is a public trust is one of the great themes
of the 1987 Constitution that led to the creation of
the Office of the Ombudsman endowed with
enormous powers to investigate on its own, or on
the complaint by any person, any illegal, unjust,
improper or inefficient act or omission of any
public official. It follows that the Ombudsman has
the power to investigate the Comelec officials
while still in office for possible criminal
prosecution.
2) In ITF vs. Comelec, supra, the Supreme Court

implicitly recognizes the power of the Ombudsman
to investigate all public officials, whether
removable by impeachment or not, by directing
the Ombudsman to investigate Comelec
Commissioners for possible involvement in graft
and corruption in the computerization of elections.
3) In Estrada vs. Desierto, supra, the Court

recognizes only the immunity from criminal and
civil suits of the President while in office, excluding
the other constitutional officers from immunity
before being removed by impeachment.
2. May the President be investigated by the Office of the

Ombudsman for graft and corruption during her tenure of
office?
- No, because the President enjoys immunity from civil and

criminal suit during the tenure of her office. (Randy
David vs. Gloria Arroyo)
3. (a) May the Office of the Ombudsman investigate

constitutional officers removable only by impeachment?
- Yes. Section 22 thereof vests in the Office of the

Ombudsman the power to investigate any serious
misconduct in the office allegedly committed by officials
removable by impeachment, for the purpose of filing a
verified complaint for impeachment, if warranted. (Office
of the Ombudsman vs. Court of Appeals, 491 SCRA
92, June 16, 2006)
18
(b) May the Office of the Ombudsman preventively suspend
public officials facing administrative charges, determine the
appropriate penalty and impose such penalty?
- Yes. Still in connection with their administrative

disciplinary authority, the Ombudsman and his deputies
are expressly given the power to preventively suspend
public officials and employees facing administrative
charges under the Ombudsman Act of 1989 (Republic Act
No. 6770)
All the provisions in Republic Act No. 6770 taken

together reveal the manifest intent of the lawmakers to
bestow on the Office of the Ombudsman full
administrative disciplinary authority. These provisions
cover the entire gamut of administrative adjudication
which entails the authority to inter alia, receive
complaints, conduct investigations, hold hearings in
accordance with its rules of procedure, summon witnesses
and require the production of documents, place under
preventive suspension public officers and employees
pending an investigation, deter mine the appropriate
penalty imposable on erring public officers or employees
as warranted by the evidence, and, necessarily, impose
the said penalty. (Ibid)
X
a. When is war justified under International Law?
(1) as a matter of national self-defense
(2) when supported by a resolution of the UN Security

Council.
b. What are the forcible measures short of war for settlement

of international disputes?
ANS: The following:
1) Severance of Diplomatic relations

2) Retorsion
3) Reprisals
4) Embargo
19
5) Boycott
6) Non-Intercourse
7) Pacific Blockade
8) Collective measures under the UN Charter
c. Explain the concepts of:
1) Pacta sunt servanda – Treaties must be performed in

good faith.
2) Most favored nation clause – a clause in the treaty that
grants to the other party equal treatment (not less
favorable) that has been granted or may be granted to
the most favored other country, which is common in
treaties of commercial nature, like in the TRIPS
Agreement on intellectual property rights appended to the
treaty creating the World Trade Organization (WTO) and
the GATT.
3) Doctrine of Rebus Sic Stantibus (things remaining as they
are) – a party to a treaty is discharged in the event a
change of circumstances occurs which renders the
fulfillment of the treaty grossly unjust, oppressive and
iniquitous.
d. What are the limitations to the doctrine of rebus sic

stantibus?
ANS: The following:
1) Applicable only to treaties of indefinite or perpetual

duration.
2) Not applicable to the provisions which had been
completely executed prior to the change of
circumstances.
3) A party who caused the change in the circumstance
cannot invoke the doctrine.
4) The change of circumstance should have been
unforeseen at the time of the conclusion of the
treaty.
e. State the Universal jurisdiction of the International Court of

Justice.
- The International Court of Justice has jurisdiction over the

following crimes:
20
a) The crime of genocide
b) Crimes against humanity
c) War crimes
d) The crime of aggression
f. What is Genocide?
- Genocide means any of the following acts committed

with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:
(a) Killing members of the group;

(b) Causing serious bodily or mental harm to
members of the group;
(c) Deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in
whole or in part;
(d) Imposing measures intended to prevent births
within the group;
(e) Forcibly transferring children of the group to
another group.
g. What are Crimes against humanity?
- Crime against humanity means any of the following

acts when committed as part of a widespread or
systematic attack directed against any civilian population,
with knowledge of the attach:
(1) Murder;
(2) Extermination;
(3) Enslavement;
(4) Deportation or forcible transfer of population;
(5) Imprisonment or other severe deprivation of physical
liberty in violation of fundamental rules of
international law;
(6) Torture;
(7) Rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity;
(8) Persecution against any identifiable group or
collectivity on political, racial, national, ethnic,
cultural, religious, gender as defined in paragraph 3,
or other grounds that are universally recognized as
impermissible under international law, in connection
21
with any act referred to in this paragraph or any crime
within the jurisdiction of the Court;
(9) Enforced disappearance of persons;
(10) The crime of apartheid;
(11) Other inhumane acts of a similar character
intentionally causing great suffering, or serious injury
to body or to mental or physical health.
h. What are War crimes?
- War crimes means:
(1) Grave breaches of the Geneva Conventions of 12

August 1949, namely, any of the following acts against
persons or property protected under the provisions of
the relevant Geneva Convention:
(i) Willful killing;

(ii) Torture or inhuman treatment, including biological
experiments;
(iii) Willfully causing great suffering, or serious injury to
body or health;
(iv) Extensive destruction and appropriation of
property, not justified by military necessity and
carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected
person to serve in the forces of a hostile Power;
(vi) Willfully depriving a prisoner of war or other
protected person of the rights of fair and regular
trial;
(vii) Unlawful deportation or transfer or unlawful
confinement;
(viii) Taking of hostages.
(2) Other serious violations of the laws and customs

applicable in international armed conflict, within the
established framework of international law, namely,
any of the following acts:
(i) Intentionally directing attacks against the civilian

population as such or against individual civilians
not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian
objects, that is, objects which are not military
objectives;
22
(iii) Intentionally directing attacks against personnel,
installations, material, units or vehicles involved in
a humanitarian assistance or peacekeeping
mission in accordance with the Charter of the
United Nations, as long as they are entitled to the
protection given to civilians or civilian objects
under the international law of armed conflict;
(iv) Intentionally launching an attack in the knowledge
that such attack will cause incidental loss of life or
injury to civilians or damage to civilian objects or
widespread, long-term and severe damage to the
natural environment which would be clearly
excessive in relation to the concrete and direct
overall military advantage anticipated;
(v) Attacking or bombarding, by whatever means,
towns, villages, dwellings or buildings which are
undefended and which are not military objectives;
(vi) Killing or wounding a combatant who, having laid
down his arms or having no longer means of
defence, has surrendered at discretion;
(vii) Making improper use of a flag of truce, of the flag
or of the military insignia and uniform of the
enemy or of the United Nations, as well as of the
distinctive emblems of the Geneva Conventions,
resulting in death or serious personal injury;
(viii) The transfer, directly or indirectly, by the
Occupying Power of parts of its own civilian
population into the territory it occupies, or the
deportation or transfer of all or parts of the
population of the occupied territory within or
outside this territory;
(ix) Intentionally directing attacks against buildings
dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals
and places where the sick and wounded are
collected, provided they are not military
objectives;
(x) Subjecting persons who are in the power of an
adverse party to physical mutilation or to medical
or scientific experiments of any kind which are
neither justified by the medical, dental or hospital
treatment of the person concerned nor carried out
in his or her interest, and which cause death to or
seriously endanger the health of such person or
persons;
23
(xi) Killing or wounding treacherously individuals
belonging to the hostile nation or army;
(xii) Declaring that no quarter will be given;
(xiii) Destroying or seizing the enemy's property unless
such destruction or seizure be imperatively
demanded by the necessities of war;
(xiv) Declaring abolished, suspended or inadmissible in
a court of law the rights and actions of the
nationals of the hostile party;
(xv) Compelling the nationals of the hostile party to
take part in the operations of war directed against
their own country, even if they were in the
belligerent's service before the commencement of
the war;
(xvi) Pillaging a town or place, even when taken by
assault;
(xvii) Employing poison or poisoned weapons;
(xviii) Employing asphyxiating, poisonous or other gases,
and all analogous liquids, materials or devices;
(xix) Employing bullets which expand or flatten easily in
the human body, such as bullets with a hard
envelope which does not entirely cover the core or
is pierced with incisions;
(xx) Employing weapons, projectiles and material and
methods of warfare which are of a nature to cause
superfluous injury or unnecessary suffering or
which are inherently indiscriminate in violation of
the international law of armed conflict, provided
that such weapons, projectiles and material and
methods of warfare are the subject of a
comprehensive prohibition and are included in an
annex to this Statute, by an amendment in
accordance with the relevant provisions set forth
in articles 121 and 123;
(xxi) Committing outrages upon personal dignity, in
particular humiliating and degrading treatment;
(xxii) Committing rape, sexual slavery, enforced
prostitution, forced pregnancy, as defined in
article 7, paragraph 2 (f), enforced sterilization, or
any other form of sexual violence also constituting
a grave breach of the Geneva Conventions;
(xxiii) Utilizing the presence of a civilian or other
protected person to render certain points, areas or
military forces immune from military operations;
24
(xxiv) Intentionally directing attacks against buildings,
material, medical units and transport, and
personnel using the distinctive emblems of the
Geneva Conventions in conformity with
international law;
(xxv) Intentionally using starvation of civilians as a
method of warfare by depriving them of objects
indispensable to their survival, including wilfully
impeding relief supplies as provided for under the
Geneva Conventions;
(xxvi) Conscripting or enlisting children under the age of
fifteen years into the national armed forces or
using them to participate actively in hostilities.
(3) In the case of an armed conflict not of an

international character, serious violations of article 3
common to the four Geneva Conventions of 12 August
1949, namely, any of the following acts committed
against persons taking no active part in the hostilities,
including members of armed forces who have laid down
their arms and those placed hors de combat by
sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of

all kinds, mutilation, cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in
particular humiliating and degrading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of
executions without previous judgement pronounced
by a regularly constituted court, affording all
judicial guarantees which are generally recognized
as indispensable.
(4) Paragraph 2 (c) applies to armed conflicts not of

an international character and thus does not apply to
situations of internal disturbances and tensions, such
as riots, isolated and sporadic acts of violence or other
acts of a similar nature.
(5) Other serious violations of the laws and customs

applicable in armed conflicts not of an international
character, within the established framework of
international law, namely, any of the following acts:
25
(i) Intentionally directing attacks against the civilian
population as such or against individual civilians not
taking direct part in hostilities;
(ii) Intentionally directing attacks against buildings,
material, medical units and transport, and
personnel using the distinctive emblems of the
Geneva Conventions in conformity with
international law;
(iii) Intentionally directing attacks against personnel,
installations, material, units or vehicles involved in
a humanitarian assistance or peacekeeping mission
in accordance with the Charter of the United
Nations, as long as they are entitled to the
protection given to civilians or civilian objects under
the international law of armed conflict;
(iv) Intentionally directing attacks against buildings
dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals
and places where the sick and wounded are
collected, provided they are not military objectives;
(v) Pillaging a town or place, even when taken by
assault;
(vi) Committing rape, sexual slavery, enforced
prostitution, forced pregnancy, as defined in article
7, paragraph 2 (f), enforced sterilization, and any
other form of sexual violence also constituting a
serious violation of article 3 common to the four
Geneva Conventions;
(vii) Conscripting or enlisting children under the age of
fifteen years into armed forces or groups or using
them to participate actively in hostilities;
(viii) Ordering the displacement of the civilian population
for reasons related to the conflict, unless the
security of the civilians involved or imperative
military reasons so demand;
(ix) Killing or wounding treacherously a combatant
adversary;
(x) Declaring that no quarter will be given;
(xi) Subjecting persons who are in the power of another
party to the conflict to physical mutilation or to
medical or scientific experiments of any kind which
are neither justified by the medical, dental or
hospital treatment of the person concerned nor
carried out in his or her interest, and which cause
26
death to or seriously endanger the health of such
person or persons;
(xii) Destroying or seizing the property of an adversary
unless such destruction or seizure be imperatively
demanded by the necessities of the conflict;
(6) Paragraph 2 (e) applies to armed conflicts not of

an international character and thus does not apply to
situations of internal disturbances and tensions, such
as riots, isolated and sporadic acts of violence or other
acts of a similar nature. It applies to armed conflicts
that take place in the territory of a State when there is
protracted armed conflict between governmental
authorities and organized armed groups or between
such groups.
i. What is the meaning of “enforced disappearance of

persons”?
- “Enforced disappearance of persons” means the

arrest, detention or abduction of persons by, or with the
authorization, support or acquiescence of, a State or a
political organization, followed by a refusal to
acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of those persons,
with the intention of removing them from the protection
of the law for a prolonged period of time.
j. Define a) Writ of Amparo; b) Writ of Habeas Data.
a) The Writ of Amparo is a remedy available to any person

whose right to life, liberty and security is violated or
threatened with violation by an unlawful act or
omission of a public official or employee, or of a private
individual or entity, including extra-legal killings and
enforced disappearances or threats thereof (Sec. 1,
Rule on the Writ of Amparo).
b) The writ of habeas data is a remedy available to any

person whose right to privacy in life, liberty or security
is violated or threatened by an unlawful act or omission
of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting
or storing of data or information regarding the person,
27
family, home and correspondence of the aggrieved
party. (Sec. 1, Rule on the Writ of Habeas Data)
X
a. What are the modes of acquiring rights to ancestral domain

and ancestral land?
Ans: The rights of the ICCs / IPs to their ancestral domains

and ancestral lands may be acquired in two modes:
(1) by native title both ancestral lands and domains;

or
(2) by torrens title under the Public Land Act and the
Land Registration Act with respect to ancestral lands
only. (Cruz vs. DENR Secretary, supra, p. 198)
b. Explain the concept of “native title”.
Ans: Native title refers to ICCs / IPs preconquest rights to

lands and domains held under a claim of private
ownership as far back as memory reaches. These
lands are deemed never to have been public lands and
are indisputably presumed to have been held that way
since before the Spanish Conquest. The rights of ICCs
/ IPs to their ancestral domains (which also include
ancestral lands) by virtue of native title shall be
recognized and respected. Formal recognition, when
solicited by ICCs / IPs concerned, shall be embodied
in a Certificate of Ancestral Domain Title (CADT),
which shall recognize the title of the concerned ICCs /
IPs over the territories identified and delineated.
Like a torrens title, a CADT is evidence of private

ownership of land by native title. Native title,
however, is a right of private ownership peculiarly
granted to ICCs / IPs over their ancestral lands and
domains. The IPRA categorically declares ancestral
lands and domains held by native title as never to
have been public land. Domains and lands held under
native title are, therefore, indisputably presumed to
have never been public lands and are private. (Ibid,
pp. 198-199)
XV
28
Section 2, Article X of the Constitution provides:
“All lands of the public domain, waters, minerals,

coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife,
flora and fauna, and other natural resources are owned
by the State. With the exception of agricultural lands,
all other natural resources shall not be alienated. The
exploration, development, and utilization of natural
resources shall be under the full control and supervision
of the State. The State may directly undertake such
activities, or it may enter into-co-production, joint
venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty
per centum of whose capital is owned by such
citizens. Such agreements may be for a period not
exceeding twenty-five years, renewable for not more
than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of
water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water
power, beneficial use may be the measure and limit of
the grant.
The State shall protect the nation’s marine wealth

in its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.
The Congress may, by law, allow small-scale

utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to
subsistence fishermen and fishworkers in rivers, lakes,
bays and lagoons.
The President may enter into agreements with

foreign-owned corporations involving either technical or
financial assistance for large-scale exploration,
development, and utilization of minerals, petroleum,
and other mineral oils according to the general terms
and conditions provided by law, based on real
contribution to the economic growth and general
welfare of the country. In such agreements, the State
29
shall promote the development and use of local
scientific and technical resources.
The President shall notify the Congress of every

contract entered into in accordance with this provision,
within thirty days from its execution.”
1. May a foreign contractor be allowed to hold mining

exploration permit?
- Yes, Section 3(a9) of the Philippine Mining Act, which

allows a foreign contractor to hold an exploration permit,
is constitutional. Nowhere does the Constitution require
the government to hold all exploration permits. Such a
permit does not amount to an authorization to extract
mineral resources that may be discovered. Without this
permit, the exploration works may end up benefiting
claim jumpers. The concerned government officials have
the power to approve or disapprove exploration activities
or to require changes in them. The work program is
subjected to the approval of the Secretary of Environment
and Natural Resources.
The provision in the Financial and Technical Agreement

granting the contractor the right to renew it for a period of
25 years is not unconstitutional. Section 2, Article X of the
Constitution does not apply to these agreements. (La
Bugal-B’Laan Tribal Association, Inc. v. Ramos, 445
SCRA 1)
2. May a foreign contractor participate in the management and

operations of a mining enterprise?
- Yes, the concept of control adopted in Section 2, Article

X of the Constitution must be taken to mean less than all-
encompassing control but sufficient to give the State the
power to govern the affairs of the enterprise. Such a concept
of control is compatible with permitting the foreign
contractor sufficient management authority over the
enterprise it invested in to ensure that it is operating
efficiently and profitably, to protect its investment, and to
enable it to succeed. (ibid)
30
3. Does the Constitution restrict participation in the
development and utilization of natural resources of the
country to Philippine nationals?
- Yes, but 100% entry of foreign investments in large scale

mining thru a Financial and Technical Assistance
Agreement with the Government is permitted by the
Constitution and the Mining Law.
XV
1. What is the archipelagic doctrine?
- An archipelago is a formation of two or more islands

which geographically is considered as a whole under the
archipelagic doctrine which regards all waters around,
between and connecting the different islands of the
archipelago, irrespective of their width or dimension, as
internal or national waters, subject to its exclusive
sovereignty.
2. What are the 2 kinds of archipelagic states? To which kind is

the Philippines classified?
- (1) Coastal Archipelagos are those situated so close to

the mainland that they may reasonably be considered
part and parcel thereof, forming more or less an outer
coastline from which the marginal sea is measured.
(2) Outlying or mid-ocean archipelagos are groups of

islands situated out in the ocean at such a distance from
the coasts of firm land as to be considered and
independent whole rather than forming part of the
mainland.
The Philippines is a mid-ocean archipelago.
XV
1. Does the City of Parañaque have the power to impose

realty tax on the Manila International Airport
Authority’s (MIAA’s) Airport Lands and Buildings?
31
- No, MIAA is exempt from real estate taxes imposed by
local government for the following reasons: First, MIAA is
not a government-owned or controlled corporation but an
instrumentality of the National Government and thus
exempt from local taxation. Second, the real properties of
MIAA are owned by the Republic of the Philippines
and thus exempt from real estate tax. (MIAA vs. Court
of Appeals, G.R. No. 155650, July 20, 2006)
2. Distinguish between a Government-owned and

controlled corporation from an instrumentality of the
National Government?
Ans:
1) The former is not exempt from real estate tax while

the latter is exempt from real estate tax.
2) A Government-owned and controlled corporation

must be organized as a stock or non-stock
corporation, with capital stock divided into shares
and authorized to distribute to the holders of such
shares dividends if a stock corporation, or as a non-
profit corporation composed of members if a non-
stock corporation. An instrumentality of the
government is neither a stock nor a non-stock
corporation vested with corporate powers to perform
efficiently its governmental functions (ibid).
3. When may “government-owned or controlled

corporations” be created by Congress thru special
charters?
- When 2 tests are met: (1) common good and (2)

economic viability.
The government-owned or controlled corporations created

through special charters are those that meet the two
conditions prescribed in Section 16, Article X of the
Constitution. The first condition is that the government-
owned or controlled corporation must be established for
the common good. The second condition is that the
government-owned or controlled corporation must
32
meet the test of economic viability. Section 16, Article
X of the 1987 Constitution provides:
SEC. 16. The Congress shall not, except by

general law, provide for the information,
organization, or regulation of private corporations.
Government-owned or controlled
corporations may be created or established
by special charters in the interest of the
common good and subject to the test of
economic viability. (Emphasis and underscoring
supplied)
The Constitution expressly authorizes the legislature to

create “government-owned or controlled corporations”
through special charters only if these entities are
required to meet the twin conditions of common good and
economic viability. In other words, Congress has no
power to create government-owned or controlled
corporations with special charters unless they are
made to comply with the two conditions of common
good and economic viability. The test of economic
viability applies only to government-owned or controlled
corporations that perform economic or commercial
activities and need to compete in the market place. Being
essentially economic vehicles of the State for the common
good – meaning for economic development purposes –
these government-owned or controlled corporations with
special charters are usually organized as stock
corporations just like ordinary private corporations.
In the contrast, government instrumentalities vested with

corporate powers and performing governmental or public
functions need not meet the test of economic viability.
These instrumentalities perform essential public services
for the common good, services that every modern State
must provide its citizens. These instrumentalities need not
be economically viable since the government may even
subsidize their entire operations. These instrumentalities
are not the “government-owned or controlled
corporations” referred to in Section 16, Article X of the
1987 Constitution.
Thus, the Constitution imposes no limitation when the

legislature creates government instrumentalities vested
33
with corporate powers but performing essential
governmental or public functions. Congress has plenary
authority to create government instrumentalities
vested with corporate powers provided these
instrumentalities perform essential government
functions or public services. However, when the
legislature creates through special charters corporations
that perform economic or commercial activities, such
entities – known as “government-owned or controlled
corporations” – must meet the test of economic viability
because they compete in the market place.
This is the situation of the Land Bank of the Philippines

and the Development Bank of the Philippines and similar
government-owned or controlled corporations, which
derive their income to meet operating expenses solely
from commercial transactions in competition with the
private sector. The intent of the Constitution is to prevent
the creation of government-owned or controlled
corporations that cannot survive on their own in the
market place and thus merely drain the public coffers.
(MIAA vs. CA, supra)
4. Are the Airport Lands and Buildings subject to

execution against MIAA?
- No. MIAA is holding title thereto as mere trustee of the

Republic of the Philippines because even its Executive
cannot sign a deed of conveyance on behalf of the
Republic. Only the President can sign such deed of
conveyance. More important, MIAA is an instrumentality
of the government engaged in public utilities or public
service as governmental functions. (ibid)
5. When is real property owned by the Republic or its

political subdivision, agency or instrumentality
taxable?
- Only when the beneficial use thereof has been granted,

for consideration or otherwise, to a taxable person (Sec.
234(a), Local Government Code). Portions of the land
leased to private entities are taxable. (ibid)
34
6. May the Senate propose amendments not related to
the subject matter of the House Bills, dealing with
VAT?
- No. Section 24, Art. V of the Constitution provides:
Sec. 24. All appropriation, revenue or tariff bills, bills

authorizing increase of the public debt, bills of local
application, and private bills shall originate exclusively in
the House of Representatives but the Senate may propose
or concur with amendments.
7. A conference Committee may include in its report an

entirely new provision not found in either the House
Bill of the Senate Bill, as long as the inserted
provisions are “germane to the subject of the House
and Senate Bills” (Tolentino vs. Secretary of Finance,
235 SCRA 630 [1994] cited in the EVAT Case, September 1,
2005)
8. What is the “enrolled bill doctrine”?
- The signing of the bill by the Speaker of the House and

the Senate President and the Certification of the
Secretaries of both Houses of Congress that it was passed
are conclusive on its enactment and compliance with the
internal parliamentary rules. (Farinas vs. Executive
Secretary, 417 SCRA 503 [2003], cited in the EVAT Case,
September 1, 2005).
9. What is the “No-Amendment Rule” under the

Constitution?
- Under Art. V, Sec. 26(2), no bill passed by either House

shall become law unless it has passed 3 readings. Upon
the last reading of a bill, no amendment thereto shall be
allowed and the vote thereon shall immediately be taken
thereafter.
10. This rule does not apply to the report of the Bicameral
Conference Committee, otherwise there would be no end to
negotiations since each house may seek modification of the
compromise bill (Tolentino vs. Secretary of Finance, 235
SCRA 630 1994], cited in the recent EVAT Case, September
35
1, 2005). What is the principle of non-delegation of
legislative power?
- The powers which Congress is prohibited from delegating

are those which are strictly, or inherently and exclusively,
legislative. Purely legislative power which cannot be
delegated has been described as the authority to make
a complete law – complete as to the time when it
shall take effect and as to whom it shall be
applicable – and to determine the expediency of its
enactment. (Defensor-Santigao vs. Comelec, 270
SCRA 106 [1997], cited in the recent EVAT Case,
September 1, 2005)
11. What are the recognized exceptions to the rule on

non-delegation of legislative powers?
- (a) Delegation of tariff powers to the President under

Section 28(2) of Article V of the Constitution;
(b) Delegation of emergency powers to the President

under Section 23(2) of Article V of the Constitution;
(c) Delegation to the people at large;
(d) Delegation to local governments; and
(e) Delegation to administrative bodies.
In every case of permissible delegation, there must be a

showing that the delegation itself is valid. It is valid only if
the law (a) is complete in itself, setting forth therein the
policy to be executed, carried out, or implemented by the
delegate; and (b) fixes a standard – the limits of which
are sufficiently determined and determinable – to which
the delegate must conform in the performance of his
functions. A sufficient standard is one which defines
legislative policy, marks its limits, maps out its boundaries
and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to
be effected. Both tests are intended to prevent a total
transference of legislative authority to the delegate, who
is not allowed to step into the shoes of the legislature and
exercise a power essentially legislative.
36
12. Contemporary Legal Question on DAP and PDAF and
the constitutionality of budget re-alignment and
augmentation of the President.
The President has the constitutional authority to re-align

and augment the budget from the savings from the budget in the
projects allocated for the Office of the President for the
implementation of other projects under the Office of the
President, under Sections 25 (5) and (6) of Article VI of the 1987
Philippine Constitution quoted as follows:
Section 25 (5) No law shall be passed

authorizing any transfer of appropriations;
however, the President, the President of the
Senate, the Speaker of the House of
Representatives, the Chief Justice of the
Supreme Court, and the heads of
Constitutional Commissions may, by law, be
authorized to augment any item in the
general appropriations law for their
respective offices from savings in other items
of their respective appropriations.
(6) Discretionary funds appropriated for

particular officials shall be disbursed only for
public purposes to be supported by
appropriate vouchers and subject to such
guidelines as may be prescribed by law.
Budget re-alignment or augmentation whereby savings

from a particular project maybe re-aligned to another
project in the same office does not allow cross border
realignment to another branch of Government under the
doctrine of separation of powers.
Public Funds not appropriated for specific purpose may

not be disbursed.
XVII
37
1. Piatco Sept. 8, 2015
Expropriation
RA 8914 which requires payment of just compensation
directly to the owner based on zonal valuation in case of land and
the value of the improvement under replacement method applies
to expropriation for national infrastructure projects.
Rule 67 of the Rules of Court applies in determining the

assessed value and the mode of deposit of just compensation for
expropriation for purposes OTHER THAN national infrastructure
project.
Congress cannot legislate on the procedural aspects of

expropriation since this power lies with the court under the
constitutional rule making power of the Supreme Court.
Due Process. The essence of procedural due process is the

right to be heard.
Just Compensationis the full and fair equivalent of the

property taken from the owner.
2. E.R. Ejercito November 25, 2014

Preliminary Investigation is not required in the resolution of
the electoral aspects of the disqualification case.
Allowable expenses.P10.00 for Presidentand Vice

President and P3.00 for other candidates for every voter. P5.00 for
independent candidate.
3. Juan Ponce EnrileAugust 18, 2015

Primary objective of bail in the ensure appearance at trial.
4. PDAF Nov. 19, 2013

a) Separation of powers: How violated
1. Interference with/ or
2. Assumption of another department’s function
38
b) The authority of the legislators to participate in the post-
enactment phases of project implementation violates the
doctrine of separation of powers.
c) Budgetary re-alignment
5. Cybercrime LawDesini vs. Ochoa February 20, 2014
6. United Convention on the Law of the Sea

A. Territorial Sea- 12 nautical miles from the baseline.
B. Contiguous zone- 21 nautical miles from the baseline.
C. Exclusive economic zone- 200 miles from the baseline
Sovereign rights to explore, exploit, conserve and manage
natural resources, living or non-living, of the waters
superjacent to the sea beds and its subsoil, and conduct
other activities for the economic exploitation and exploration
of the zone, such as production of energy from waters,
currents and winds.
D. Continent shelf- 200 nautical miles from the baseline.Seabed
and subsoil of the submarine areas beyond the territorial
sea.
7. Regime of islands- above sea level at the high tide entitled to:
1. Territorial sea;
2. Contiguous zone;
3. Exclusive economic zone; and
4. The continental shelf.
8. Executive Privilege
9. Investigation in aid of legislation- Binay investigation by
Trillanes
10. National born Filipino Citizenship- The Grace Poe Case
11. Citizenship.
A. Filipino citizens
1. Whose fathers or mothers are Filipino citizen.
2. Born before January 17, 1973 of Filipino mothers who
selected Philippine citizenship upon the age of majority.
B. Dual Citizenship
1. Dual Citizens are disqualified from running for any
elective local position (local Government Code, Sec 40
[d]).
39
2. A dual citizen who runs for public office automatically
renounces his foreign citizenship (Mercado vs. Manzano
[1995].
3. An America who runs for public office in the Philippines
became stateless (Frivaldo care [1989])
C. Natural born Filipino
1. Filipino from birth
2. Born of Filipino mother prior to January 17, 1973 who
elected Philippine citizenship upon reaching the age of
majority.
3. “Whose fathers are citizens” does not distinguish
between “legitimate” and “illegitimate” paternity, which
under the civil code governs private and personal
relation, no one’s political states (Tecson vs. Comelec
in re: Disqualification Petition vs FPJ)
D. Gamboa vs.Teves October 9, 2012
60/40 requirement limiting stock ownership to 40% of
foreign capital applies to both the voting control and the
beneficial ownership (e.g. 40% of common stock, preferred
voting stock or preferred non- voting stock.)
12. People’s Initiative and referendum

Direct power “to prove and enact laws or approve or reject any
act or law or part thereof passed by the congress or local
legislative body (Art. VI, Sec. 32 constitution) The
implementing law (RA6735) is valid for laws, ordinances and
resolutions, but not for Amendments to the constitution
(Santiago vs. Comelec, 270 SCRA 706[1973])
13. Freedom of Religion: The INCDOJ Fiasco
a. The state cannot meddle in the internal affairs of the church

(Imbong v. Ochoa (2014) on the RH law) “The separation of
church are state shall be inviolable.”
b. Church sanction of cohabitation with a married man excepts
the woman from church of immorality (Estrada vs. Escretor
[2003]).
c. The policy of the government on contraceptives does not
violate the establishment clause (Imbong vs. Ochoa).
40
d. Free exercise clause absolutely protects individual religious
convictions. Conscientious objectives based on religious
belief must be respected (Ibid).
NOTE: Civil Registrar in the US who refuses issuance of

marriage license for same sex marriage was jailed for
contempt of court.
14. Writ of Kalikasan: against violation or threat of violation of

constitutional right to balanced and healthful ecology by an
unlawful act involving environmental damage of such
magnitude as to prejudice the life, health or property of
inhabitants in two or more cities of provinces.
Public International Law
15. Obligation erga omnes. Obligation of a state to the

international community
juscogens-norms accepted and recognized by the
international community.
16. Does the BBL as originally drafted create a Bangsamoro

state? Does the Bangsamoro, as envisioned in the original draft
of the BBL create a state, write the following essential
requisites:
1. A permanent population
2. A defined territory
3. Government
4. Capacity to enter into relation with other states.
17. Opiniojuliussive recesitates. The belief of states that a

particular practice is required by law, and not because of
courtesy or political expediency (Norta vs. Sea Continental
Shelf cases)
18. Executive Agreement-

Entered by the President in the form of exchange of notes,
or “agreements” or “protocols” e.g. a loan agreement
coupled with an exchange of votes between 2 governments
(Abaya vs. Ebdane, 2002).The north rail contract entered
41
into by an agency of the Philippine government with an
agency of the Chinese government with personalities
separate and distinct from the Philippines are Chinese
Government is not an executive order.
– an executive order is governed by International Law.
19. Statelessness. Status of a person borne without nationality

or who loses nationality without retaining or acquiring another
(Frivaldo case).
20. Calvo Clause. A foreigner must rely exclusively on local

remedies and not only diplomatic protection.
21. Extradition
a) Rule of Double Criminality: the act must be punishable in
both countries
b) Political and religious offenders are not subject to extradition
except those guilty of genocide or murders of head of state.
22. International Human Rights LawHuman Rights.
International Human Rights Law Human Rights are those

fundamental and inalienable rights which are essential for life
as a human being; which are recognized and protected by the
international community.
Universal Declaration of Human Rights includes the right to
nationality, liberty, security, privacy, fair trial, freedom of
expression, presumption of innocence, to peaceful assembly
and association
INTERNATIONAL HUMANITARIAN LAW
23. Defined. Branch of Public International Law which governs

armed conflicts to limit the less of armed violence and to
mitigate and reduce human sufferings, limit the means of
military operation and protect those who do not participate in
armed hostilities.
ADMINISTRATIVE LAW
42
24. Doctrine of Primary Jurisdiction.
The Courts will not intervene to resolvequestions which
require the expertise of administrative agencies.
25. Exhaustion of administrative remedies, excepts
1. Purely legal questions

2. Urgency
3. No other plain or speedy adequate remedy
4. Oppressive and patently unreasonable
5. Would cause great and irreparable damage or injury
6. Qualified political agency
7. Lack or excess of jurisdiction
8. Quo warranto
ANSWER TO SAMPLE SC BAR QUESTIONS ON POLITICAL

LAW
Q: Sometime in 2011, Philippine President Santos signed a

bilateral agreement with the Republic of Kafiristan, which
contains, among other things, a provision allowing the investment
by Kafiristan citizens in preferred stocks, up to a maximum of
40%, of Philippine advertising companies. The Senate believes
that the agreement is a treaty that should be transmitted to it for
concurrence, but President Guzman, the newly elected president
in 2013 who ran under a nationalist platform, refused to transmit
the instrument to the Senate for its action.
(A) May members of the Senate file a petition for mandamus

against President Guzman and the Department of Foreign
Affairs Secretary to compel them to transmit the agreement
as a treaty for the senate’s concurrence? (4%)
(B) Assume that President Guzman transmitted the agreement,

and the Senate ratified it as a treaty. Would a petition for
certiorari to annul the treaty’s ratification prosper on the
ground that it violated Section II, Article XVI of the 1987
Constitution, which limits foreign participation in advertising
companies to 30% of its capital stock? (4%)
Suggested Answer:
43
A. No, because ratification of the treaty is a political question
outside the power of the Supreme Court of Judicial Review.
It relates to the conduct of foreign relations for which the
president is answerable only to the people. (Pimentel vs.
Executive Secretary)
B. Yes. The Petition for Certiorari to annul the treaty will

prosper because the foreign investment in preferred shares
up to 40% of Philippine Advertising Company is prohibited
by the constitution. As held in the leading case of Wilson
Gamboa vs. Teves, the limitation on foreign investments in
partially nationalized business activities is computed both on
the common shares of stock which are authorized to vote
and in preferred shares which are not authorized to vote.
While the 1987 Constitution does not distinguish between
common shares of stock authorized to vote and preferred
non-voting shares, the Supreme Court held in Gamboa vs.
Teves in the resolution of the motion for reconsideration
that the percentage limitation of the foreign investment
must be computed separately on both the common shares
and the preferred shares.
Note: the first Decision of the Supreme Court in Gamboa vs.

Teves held that the 40% limit on foreign investment must be
computed on the preferred voting shares. On
reconsideration, the Supreme Court held that the 40%
limitation of foreign investments must be computed on both
the common shares and the preferred shares.
44
45

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Political Law and Public International Law - de Castro

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By: Dean Arturo M. de Castro

a. What are inherent and fundamental powers of the State?

Power to legislate for the good and welfare of the

Writ of Possession is ministerial upon deposit of the

Value of just compensation is fixed at the time of

3. TAXATION DISTINGUISHED FROM POLICE POWER

Generation of Revenue is the primary purpose of

1) Constituent Assembly, Congress by a vote of ¾ of its

3) People’s Initiative – petition of at least 12% of registered

b-1. Distinguish amendment from revision of the Constitution?

Amendment is minor change of specific provisions.

Revision is radical change, such as change of Government.

c. May the Constitution be revised by shifting from the

- No. Revision is possible only thru Constitutional Assembly

d. What is the principle of Jus Cogens in International Law

- Jus cogens, or peremptory norm of international law,

e. What is a political question? p. 353, 1st (Green) Study

f. Is the political question doctrine still in effect in light of

- Yes. While it is conceded that Article VIII, Section 1 of

g. Who are the impeachable officers?

- President, Vice-President, Members of the Supreme Court,

h. What are the grounds for impeachment? p. 59, Study Guide

- culpable violation of the Constitution, treason, bribery,

i. When is an impeachment complaint deemed initiated for the

- when filed and referred to the Justice Committee. Under

1) Investigation in aid of legislation – absolute right to

2) Question hour – president may ban appearance

b. What is executive privilege?

- for reasons that must be stated, confidentiality to

c. Has the President the constitutional power to declare (1)

- Yes, under her constitutional powers as Commander-in-

d. Has the President the power to take over public utilities

- No, in the absence of implementing legislation granting

e. Do the police have the power to make warrantless arrest

- No, without legal grounds under existing law, namely (1)

- Yes. The provision of the Constitution that dual allegiance

NOTE: The U.S., Canada, Australia, Switzerland recognize

b. May dual Filipino citizens residing abroad and overseas

- Yes. A perusal of the Constitution suggests that Section 1

The Court noted that there is no provision in the dual

Furthermore, the Court noted that the expanded thrust of

c. Is a green card holder with permanent residence in the U.S.

- No. Green card holder is disqualified from holding elective

d. Do the provisions of the treaty creating the World Trade

- No, the Constitution does not prohibit entry of foreign

e. How do treaties become part of domestic law?

a) By transformation – through legislation

- Yes. US vs. Puruganan was reversed. An extraditee is

b. What is the basis for the right of the extraditee to bail?

- International human rights.

c. What are the grounds for:

a) The person to be arrested has committed, is actually

b) When an offense has been committed and there is

d) When the right is voluntarily waived, by entering a plea

2) Warrantless Search and Seizure?

a) Voluntary waiver or consent, as when the accused

b) When there is valid reason to “stop-and-frisk,” as when

c) Search incident to a lawful arrest.

d) Search of vessel or aircraft

f) Plain view doctrine: requisites

i) a prior valid intrusion based on the valid warrantless

ii) the evidence was inadvertently discovered by the police