Golden Notes - Political Law

POLITICAL LAW
2019 GOLDEN NOTES

FACULTY OF CIVIL LAW
UNIVERSITY OF SANTO TOMAS
MANILA
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No. ____________
Printed in the Philippines August 2019.

ACADEMIC YEAR 2019-2020
CIVIL LAW STUDENT COUNCIL
LYODYCHIE Q. CAMARAO PRESIDENT
MARIA FRANCES FAYE R. GUTIERREZ INTERNAL VICE PRESIDENT
KRYSTAL GAYLE R. DIGAY SECRETARY
TEAM: BAR-OPS
NICOLE MARIE A. CORTES CHAIRPERSON
MARYLOU RENZI M. OLOTEO VICE-CHAIRPERSON
CHRISTINE JOYCE P. ANDRES SECRETARY
KRIZA NIÑA B. MALALUAN ASST. SECRETARY
ELOUISA ANN DC. CARREON HEAD, PUBLIC RELATIONS OFFICER
CIARI T. MENDOZA ASST. HEAD, PUBLIC RELATIONS OFFICER
ELISHA ELAINE D. BAYOT HEAD, FINANCE COMMITTEE
JOSEPHINE GRACE W. ANG HEAD, HOTEL ACCOMODATIONS COMMITTEE
PATRICIA MAE D. GUILLERMO ASST. HEAD, HOTEL ACCOMODATIONS COMMITTEE
RAFAEL JEROME M. MENDOZA ASST. HEAD, HOTEL ACCOMODATIONS COMMITTEE
KHYNA MATHEA N. CANLAS ASST. HEAD, HOTEL ACCOMODATIONS, COMMITTEE
MARSHAN DEINN S. GUALBERTO ASST. HEAD, HOTEL ACCOMODATIONS, COMMITTEE
KIER JOHN V. UY LOGISTICS COMMITTEE
GLENN MATTHEW C. MANLAPID LOGISTICS COMMITTEE
VAN ANGELO K. RESPICIO LOGISTICS COMMITTEE
JAMES ROSS L. TAN LOGISTICS COMMITTEE
LOUELL JUDE B. QUE LOGISTICS COMMITTEE
MON FRANCIS A. TOLENTINO SENIOR MEMBER
CLARA LOUISSE J. YUMANG SENIOR MEMBER
JOCHRIS DANIEL Z. GUADES SENIOR MEMBER
JERREMIAH KRIZIAH B. BATALLER SENIOR MEMBER
ATTY. AL CONRAD B. ESPALDON

ADVISER
ACADEMICS COMMITTEE
EDREA JEAN V. RAMIREZ SECRETARY GENERAL
AYA DOMINIQUE S. CAPARAS ASST. SECRETARY GENERAL
ARIANNA LAINE T. SARMIENTO EXECUTIVE COMMITTEE
BELLE COLLEEN T. DE LEON EXECUTIVE COMMITTEE
PAMELA NICOLE S. MANALO EXECUTIVE COMMITTE
RUTH MAE G. SANVICTORES EXECUTIVE COMMITTEE
LAURISSE MARIE T. PERIANES LAYOUT ARTIST
CIARI T. MENDOZA COVER DESIGN ARTIST
POLITICAL LAW COMMITTEE

JAYSON GABRIEL R. SORIANO
POLITICAL LAW COMMITTEE HEAD
SARA D. LARCE POLITICAL LAW COMMITTEE ASST. HEAD

KIMBERLY S. GUILLERMO CONSTITUTIONAL LAW COMMITTEE ASST. HEAD
ROCHELLE NIEVA D. CURIBA PUBLIC CORPORATIONS COMMITTEE ASST. HEAD
JULIE ANN C. MANGUIAT LAW ON PUBLIC OFFICERS AND
ADMINISTRATIVE LAW COMMITTEE ASST. HEAD
LAUREN STAR A. BORROMEO PUBLIC INTERNATIONAL LAW COMMITTEE ASST.
HEAD
MEMBERS
MA. SHEMEDA P. CARO MAECY JEAN L. PALAD
CJ DELA CRUZ GABRIEL THADEUS S. PELAGIO
AIREI KIM P. GUANGA DHEN-DHEN G. RAMOS
MARIA FRANCES FAYE R. GUTIERREZ STEPHANIE BRIANNE C. SALIBA
ATTY. AL CONRAB B. ESPALDON

Adviser
FACULTY OF CIVIL LAW
ACADEMIC OFFICIALS
ATTY. NILO T. DIVINA REV. FR. ISIDRO C. ABAÑO, O.P.

DEAN REGENT
ATTY. ARTHUR B. CAPILI

FACULTY SECRETARY
ATTY. ELGIN MICHAEL C. PEREZ

LEGAL COUNSEL
UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC
JUDGE PHILIP A. AGUINALDO

SWDB COORDINATOR
LENY G. GADANIA, R.G.C.

GUIDANCE COUNSELOR
OUR DEEPEST APPRECIATION TO OUR
MENTORS AND INSPIRATION
Justice Amy Lazaro-Javier
Justice Oswaldo D. Agcaoili
Judge Charito M. Sawali
Atty. Carlo L. Cruz
Atty. Enrique V. Dela Cruz
Atty. Rene B. Gorospe
Atty. Victoria V. Loanzon
Atty. Rafaelito M. Garayblas
Atty. Anicia C. Marquez
Atty. Edwin R. Sandoval
Atty. Mauricio C. Ulep
For being our guideposts in understanding the intricate sphere of Political Law.
-Academics Committee 2019
TABLE OF CONTENTS
I. Preliminary Provisions and Basic Concepts ........................................................................................ 1
A. National Territory ...................................................................................................................... 1
1. Archipelagic doctrine ............................................................................................................... 1
B. Declaration of principles and state policies................................................................................ 2
C. Separation of powers .................................................................................................................10
D. Checks and balances ..................................................................................................................12
E. State immunity ..........................................................................................................................13
II. Legislative Department .....................................................................................................................19

A. Legislative Power ......................................................................................................................19
B. Principle of Non-Delegability ....................................................................................................19
C. Houses of Congress ....................................................................................................................20
D. District Representatives and Questions of Apportionment .......................................................22
E. Party-List System .......................................................................................................................24
F. Legislative Privileges, Inhibitions and Disqualifications ..........................................................28
G. Discipline of Members ...............................................................................................................30
H. Process of Law Making ..............................................................................................................31
I. Quorum and Voting Majorities ...................................................................................................34
J. Appropriation and Re-Alignment ...............................................................................................36
K. Legislative Inquiries and Oversight Functions ..........................................................................39
L. Power of Impeachment ..............................................................................................................44
M. Electoral Tribunals ...................................................................................................................46
N. Commission on Appointments ..................................................................................................49
O. Initiative and Referendum ........................................................................................................50
III. Executive Department .....................................................................................................................53

A. Qualifications, Election and Term of the President and Vice-President ....................................53
B. Privileges, Inhibitions and Disqualifications .............................................................................54
C. Powers of the President .............................................................................................................59
1. Executive and administrative powers in general........................................................................59
2. Power of appointment .............................................................................................................60
a. Confirmation and by-passed appointments .......................................................................61
b. Ad interim appointments .................................................................................................61
c. Midnight appointments ....................................................................................................63
d. Power of removal ....................................................................................................................64
3. Power of control and supervision .............................................................................................65
a. Doctrine of qualified political agency ................................................................................66
b. Executive departments and offices ...................................................................................67
c. Local government units ....................................................................................................67
4. Military powers.......................................................................................................................68
5. Executive clemency .................................................................................................................72
6. Powers pertinent to foreign relations .......................................................................................76
D. Rules on Succession...................................................................................................................77
IV. Judicial Department .........................................................................................................................80

A. Concepts ....................................................................................................................................80
1. Judicial power .........................................................................................................................80
2. Judicial review ........................................................................................................................80
a. Requisites of judicial review ..............................................................................................80
b. Political Question Doctrine ................................................................................................83
c. Moot questions .................................................................................................................84
d. Operative Fact Doctrine.....................................................................................................85
B. Safeguards of Judicial independence .........................................................................................85
C. Judicial and Bar Council .............................................................................................................87
a. Composition of JBC ..................................................................................................................87
b. Powers of JBC .........................................................................................................................87
D. Fiscal Autonomy ........................................................................................................................88
E. Qualifications of Members of the Judiciary ................................................................................88
F. Workings of the Supreme Court .................................................................................................90
1. En banc decisions ....................................................................................................................90
2. Procedural rule-making ...........................................................................................................91
3. Administrative supervision over lower courts ...........................................................................92
4. Original and appellate jurisdiction............................................................................................92
V. Constitutional Commissions..............................................................................................................93
A. Common Provisions...................................................................................................................93
B. Powers and functions of the CSC, COMELEC and COA .................................................................94
C. Composition and Qualifications of Members .............................................................................94
D. Prohibited Offices and Interests ................................................................................................97
E. Review of final orders, resolutions and decisions .....................................................................97
1. Rendered in the exercise of quasi-judicial functions...................................................................97
2. Rendered in the exercise of administrative functions .................................................................97
F. Jurisdiction of Each Constitutional Commission ........................................................................98
VI. Bill of Rights ...................................................................................................................................100

A. Fundamental powers of the state (police power, eminent domain, taxation) .........................100
B. Private acts and the Bill of Rights ............................................................................................108
C. Rights to life, liberty & property ..............................................................................................108
1. Procedural and substantive due process .................................................................................109
2. Constitutional and statutory due process ................................................................................111
3. Void-for-vagueness doctrine ..................................................................................................113
4. Hierarchy of rights ................................................................................................................114
D. Equal protection ......................................................................................................................115
1. Requisites for valid classification............................................................................................115
2. Rational basis, strict scrutiny and intermediate scrutiny test ....................................................116
E. Searches and seizures ..............................................................................................................117
1. Requisites for a valid warrant ................................................................................................118
2. Warrantless searches and seizures .........................................................................................121
3. Administrative arrests ...........................................................................................................125
4. Evidence obtained through purely mechanical act ...................................................................126
F. Privacy of communications and correspondence ....................................................................127
1. Private and public communications ........................................................................................127
2. Intrusion, when allowed; exclusionary rule .............................................................................127
G. Freedom of speech and expression .........................................................................................131
1. Prior restraint and subsequent punishment ............................................................................133
2. Content-based and content-neutral regulations .......................................................................136
3. Facial challenges and the overbreadth doctrine .......................................................................136
4. Dangerous tendency, balancing of interests, and clear and present danger test .........................138
5. State regulation of different types of mass media.....................................................................138
6. Commercial speech ...............................................................................................................140
7. Unprotected speech...............................................................................................................141
H. Freedom of religion .................................................................................................................141
1. Non-establishment clause and free exercise clauses ................................................................141
2. Benevolent neutrality and conscientious objectors. .................................................................143
3. Lemon and compelling state interest ......................................................................................145
I. Liberty of abode and right to travel ..........................................................................................146
1. Scope and limitations ............................................................................................................146
2. Watch-list and hold departure orders .....................................................................................147
J. Right to information .................................................................................................................148
1. Scope and limitations ............................................................................................................149
2. Publication of laws and regulations ........................................................................................150
3. Non-impairment of contracts .................................................................................................150
K. Free access to courts and adequate legal assistance................................................................151
L. Miranda/custodial investigation rights ...................................................................................152
M. Rights of the accused ..............................................................................................................155
N. Right to speedy disposition of cases ........................................................................................155
O. Right against self-incrimination ..............................................................................................156
P. Right against double jeopardy .................................................................................................157
Q. Involuntary servitude..............................................................................................................160
R. Right against excessive fines and cruel and inhuman punishments ........................................160
S. Non-imprisonment for debts ...................................................................................................161
T. Ex-post facto law and bill of attainder .....................................................................................161
U. Writs of Habeas Corpus, Kalikasan, Habeas Data, and Amparo ...............................................162
VII. Citizenship ....................................................................................................................................168

A. Who are Filipino citizens .........................................................................................................168
B. Modes of acquiring citizenship ................................................................................................168
C. Loss and re-acquisition of Philippine citizenship ....................................................................168
D. Dual citizenship and dual allegiance .......................................................................................170
E. Foundlings ...............................................................................................................................170
VIII. Law on Public Officers .................................................................................................................172

A. General principles ...................................................................................................................172
B. Modes of acquiring title to public office...................................................................................174
C. Kinds of appointment ..............................................................................................................174
D. Eligibility and qualification requirements ..............................................................................179
E. Disabilities and inhibitions of public officers ..........................................................................180
F. Rights and liabilities of public officers .....................................................................................184
G. De facto v. de jure officers ........................................................................................................186
H. Termination of official relation ...............................................................................................188
I. The Civil Service .......................................................................................................................191
J. Personnel actions .....................................................................................................................197
K. Accountability of public officers ..............................................................................................197
1. Discipline .............................................................................................................................197
2. Grounds ...............................................................................................................................197
3. Jurisdiction ...........................................................................................................................199
L. Dismissal, preventive suspension, reinstatement and back salaries .......................................200
1. Condonation doctrine ............................................................................................................202
2. Impeachment........................................................................................................................203
3. The Ombudsman ...................................................................................................................205
a. Functions ......................................................................................................................205
b. Judicial review in administrative proceedings .................................................................209
c. Judicial review in penal proceedings ...............................................................................209
4. Office of the Special Prosecutor ..............................................................................................209
5. The Sandiganbayan ...............................................................................................................210
IX. Administrative Law ........................................................................................................................213

A. General principles ...................................................................................................................213
B. Powers of administrative agencies ..........................................................................................214
1. Quasi-legislative (rule-making) power....................................................................................214
a. Kinds of administrative rules and regulations ..................................................................216
b. Requisites for validity ....................................................................................................216
2. Quasi-judicial (adjudicatory) power .......................................................................................217
a. Administrative due process ............................................................................................218
b. Administrative appeal and review ..................................................................................219
c. Administrative res judicata .............................................................................................220
3. Fact-finding, investigative, licensing and rate-fixing powers .....................................................220
C. Doctrine of Primary Jurisdiction and Exhaustion of Administrative Remedies .......................222
X. Election Law ....................................................................................................................................227

A. Suffrage ...................................................................................................................................227
B. Qualification and disqualification of voters .............................................................................228
C. Registration of voters ..............................................................................................................229
D. Inclusion and exclusion proceedings ......................................................................................230
E. Detainee voting ........................................................................................................................232
F. Candidacy ................................................................................................................................232
1. Qualifications and disqualifications of candidates....................................................................232
2. Filing of certificates of candidacy............................................................................................234
a. Effect of filing..................................................................................................................234
b. Substitution of candidates ...............................................................................................235
c. Nuisance candidates ........................................................................................................236
d. Ministerial duty of COMELEC to receive certificates...........................................................237
G. Remedies and jurisdiction in election law ...............................................................................237
1. Petition not to give due course to or cancel a certificate of candidacy........................................237
2. Petition for disqualification....................................................................................................237
3. Failure of election, call of special election ................................................................................239
4. Pre-proclamation controversy ...............................................................................................240
5. Election protest.....................................................................................................................242
6. Quo warranto ........................................................................................................................244
XI. Local Governments ........................................................................................................................246

A. Principles of local autonomy ...................................................................................................246
1. Autonomous regions and their relation to the national government .........................................247
B. Local government units powers ..............................................................................................248
1. Police power (general welfare clause) ....................................................................................248
2. Eminent domain....................................................................................................................254
3. Taxing power ........................................................................................................................258
4. Legislative power ..................................................................................................................263
a. Requisites for valid ordinance ................................................................................................265
b. Local initiative and referendum .............................................................................................267
5. Ultra vires acts ......................................................................................................................268
7. Liability ...............................................................................................................................269
8. Settlement of boundary disputes ............................................................................................272
9. Vacancies and succession.......................................................................................................273
10. Discipline of local officials ....................................................................................................298
11. Recall .................................................................................................................................276
12. Term limits .........................................................................................................................279
Xll. National Economy and Patrimony .................................................................................................281

A. Regalian doctrine ....................................................................................................................281
B. Nationalist and citizenship requirement provisions ...............................................................282
C. Exploration, development and utilization of natural resources ..............................................283
D. Franchises, authority and certificates for public utilities ........................................................285
E. Acquisition, ownership and transfer of public and private lands ............................................286
F. Practice of professions.............................................................................................................288
G. Organization and regulation of corporations, private and public ...........................................289
H. Monopolies, restraint of trade and unfair competition ...........................................................289
XIII. Social Justice and Human Rights ..................................................................................................291

A. Concept of social justice...........................................................................................................291
B. Economic, social and cultural rights ........................................................................................292
C. Commission on Human Rights .................................................................................................293
XV. Education, Science, Technology, Arts, Culture and Sports .............................................................294

A. Academic freedom ...................................................................................................................294
XVI. The Family ...................................................................................................................................298

A. Rights ......................................................................................................................................298
XVII. Amendments or Revisions of the Constitution............................................................................298

A. Procedure to amend or revise the Constitution .......................................................................298
XVIII. Public International Law ...........................................................................................................303

A. Fundamental Concepts ............................................................................................................303
1. Obligations erga omnes ..........................................................................................................303
2. Jus cogens .............................................................................................................................303
3. Concept of ex aequo et bono ...................................................................................................304
B. Relationship between international and national law.............................................................304
C. Sources of obligation in international law ...............................................................................306
F. Subjects....................................................................................................................................309
G. States .......................................................................................................................................311
H. International organizations ....................................................................................................317
I. Individuals................................................................................................................................318
J. Jurisdiction of states .................................................................................................................319
1. Basis of jurisdiction ...............................................................................................................319
a. Territoriality principle ...................................................................................................320
b. Nationality principle ......................................................................................................320
c. Statelessness .................................................................................................................320
d. Protective principle .......................................................................................................321
e. Universality principle ....................................................................................................321
f. Passive personality principle ..........................................................................................322
2. Exemptions from jurisdiction .................................................................................................322
a. Acts of state doctrine .....................................................................................................322
3. International organizations and its officers .............................................................................322
K. General Principles of Treaty Law ............................................................................................328
1. Doctrine of state responsibility ..............................................................................................335
1. Refugees ...............................................................................................................................337
2. Extradition ...........................................................................................................................337
L. Basic principles of international human rights law .................................................................340
M. Basic principles of international humanitarian law ...............................................................343
1. Categories of armed conflicts .................................................................................................345
a. International armed conflicts .........................................................................................346
b. Internal or non-international armed conflict ...................................................................346
c. War of national liberation ..............................................................................................347
2. R.A. 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and
Other Crimes Against Humanity) ............................................................................................350
M. Law of the sea .........................................................................................................................357
1. Baselines ..............................................................................................................................357
2. Archipelagic states ................................................................................................................358
3. Internal waters .....................................................................................................................361
4. Territorial sea .......................................................................................................................361
5. Contiguous zone....................................................................................................................364
6. Exclusive economic zone .......................................................................................................365
7. Continental shelf ...................................................................................................................366
8. Extended continental shelf .....................................................................................................367
9. International Tribunal for the Law of the Sea ..........................................................................374
N. Basic principles of international environmental law ..............................................................379
1. Precautionary principle .........................................................................................................380
DISCLAIMER
THE RISK OF USE OF THIS BAR

REVIEW MATERIAL SHALL BE
BORNE BY THE USER
Preliminary Provisions and Basic Concepts
PRELIMINARY PROVISIONS A: NO. William is not correct. The premises
AND BASIC CONCEPTS occupied by the United States Embassy do not
constitute territory of the United States but of the
Political Law Philippines. Crimes committed within them are
subject to the territorial jurisdiction of the
Branch of public law that deals with the Philippines. Since William has no diplomatic
organization and operations of the governmental immunity, the Philippines can prosecute him if it
organs of the State and defines its relations with acquires custody over him. (UPLC Suggested
the inhabitants of the territory. (People v. Perfecto, Answers)
G.R. No. L-18463, October 4, 1922)
NOTE: Foreign embassies retain their status as
Scope of Political Law native soil. They are still subject to Philippine
authority. Its jurisdiction may be diminished, but
1. Political Law it does not disappear. So, it is with the bases under
2. Constitutional Law lease to the American armed forces by the military
3. Administrative Law base’s agreement of 1947. They are not and cannot
4. Law on Municipal Corporations be considered as foreign territory.
5. Law on Public Officers
6. Election laws Also, if an attaché commits an offense within the
7. Public International Law precincts of an embassy, his immunity from
prosecution is not because he has not violated the
NATIONAL TERRITORY local law, but rather because the individual is
exempt from prosecution. If a person not so
Composition of the Philippine Territory exempt, or whose immunity is waived, similarly
commits a crime therein, the territorial sovereign,
The national territory comprises the Philippine if it secures custody of the offender, may subject
archipelago, with all the islands and waters him to prosecution. It is not believed, therefore,
embraced therein, and all other territories over that an ambassador himself possesses the right to
which the Philippines has sovereignty or exercise jurisdiction, contrary to the will of the
jurisdiction, consisting of its terrestrial, fluvial and State of his sojourn, even within his embassy with
aerial domains, including its territorial sea, the respect to acts there committed. Nor is there
seabed, the subsoil, the insular shelves, and other apparent at the present time any tendency on the
submarine areas. The waters around, between, part of States to acquiesce in his exercise of it.
and connecting the islands of the archipelago, (William C. Reagan v. CIR, G.R. No. L-26379,
regardless of their breadth and dimensions, form December 27, 1969)
part of the internal waters of the Philippines. (Art.
I, 1987 Constitution) Archipelagic Doctrine
Q: William, a private American citizen and The waters around, between, and connecting the
frequent visitor to the Philippines, was inside islands of the archipelago, regardless of their
the U.S. embassy when he got into a heated breadth and dimensions, form part of the internal
argument with a private Filipino citizen. Then, waters of the Philippines.
in front of many shocked witnesses, he killed
the person he was arguing with. The police Under the Archipelagic Doctrine, we connect the
came and brought him to the nearest police outermost points of our archipelago with straight
station. Upon reaching the station, the police baselines and consider all the waters enclosed
investigator, in halting English, informed thereby as internal waters. The entire archipelago
William of his Miranda rights, and assigned is regarded as one integrated unit instead of being
him an independent local counsel. William fragmented into so many thousand islands. (Cruz
protested his arrest. He argued that since the and Cruz, Philippine Political Law, p. 24)
incident took place inside the U.S. embassy,
Philippine courts have no jurisdiction because Purposes of the Archipelagic Doctrine
the U.S. embassy grounds are not part of
Philippine territory; thus, technically, no crime 1. Territorial Integrity
under Philippine law was committed. Is 2. National Security
William correct? (2009 Bar) 3. Economic reasons
1
POLITICAL LAW
NOTE: The main purpose of the archipelagic Philippine Baselines Law of 2009 (RA 9522), the
doctrine is to protect the territorial interests of an Spratly Islands and the Scarborough Shoal are
archipelago, its territorial integrity. Without it, classified as islands under the regime of the
there would be “pockets of high seas” between Republic of the Philippines. (Philippine Baselines
some of our islands and islets, thus foreign vessels Law of 2009)
would be able to pass through these “pockets of
seas” and would have no jurisdiction over it. DECLARATION OF PRINCIPLES AND STATE
POLICIES
Effect of RA 9522 “Archipelagic Baselines Law”
on our sovereignty over our national territory Doctrine of Constitutional Supremacy
RA 9522 amends RA 3046, which defines the Under this doctrine, if a law or contract violates
baselines of the territorial sea of the Philippines. any norm of the Constitution, that law or contract,
The Kalayaan Island Group as constituted under whether promulgated by the legislative or by the
PD 1596 and Bajo de Masinloc, also known as executive branch or entered into by private
Scarborough Shoal is determined as “Regime of persons for private purposes, is null and void and
Islands” under the Republic of the Philippines without any force and effect. Since the
consistent with Art. 121 of the United Nations Constitution is the fundamental, paramount and
Convention on the Law of the Sea which states: supreme law of the nation, it is deemed written in
every statute and contract. (Manila Prince Hotel v
An island is a naturally formed area of land, GSIS, G.R. No. 122156, February 3, 1997)
surrounded by water, which is above water at high
tide. Republican State (1996 Bar)
Except as provided for in par. 3, the territorial sea, The Philippines is a democratic and republican
the contiguous zone, the exclusive economic zone State. Sovereignty resides in the people and all
and the continental shelf of an island are government authority emanates from them. (Sec.
determined in accordance with the provisions of 1, Art. II, 1987 Constitution)
this Convention applicable to other land territory.
Rocks which cannot sustain human habitation or A state wherein all government authority
economic life of their own shall have no exclusive emanates from the people and is exercised by
economic zone or continental shelf. representatives chosen by the people. (Dissenting
Opinion of Justice Puno, Tolentino v. COMELEC, G.R.
Spratlys Group of Islands (SGI) is not part of the No. 148334, January 21, 2004)
Philippine Archipelago because it is too far to be
included within the archipelagic lines encircling Manifestations of Republicanism
the internal waters of Philippine Archipelago. The
SGI, however, is part of the Philippine territory 1. Ours is a government of laws and not of
because it was discovered by a Filipino seaman in men.
the name of Tomas Cloma who later renounced his 2. Rule of Majority (Plurality in elections)
claim over it in favor of the Republic of the 3. Accountability of public officials
Philippines. Subsequently, then Pres. Marcos 4. Bill of Rights
issued a Presidential Decree constituting SGI as 5. Legislature cannot pass irrepealable laws
part of the Philippine territory and sending some 6. Separation of powers
of our armed forces to protect said island and
maintain our sovereignty over it. NOTE: The Philippines is not only a representative
or republican state but also shares some aspects of
SGI and Scarborough Shoal as part of the direct democracy that accords to the citizens a
National Territory greater participation in the affairs of the
government such people’s as initiative and
The SGI and Scarborough Shoal fall under the 2nd referendum, the right to information on matters of
phrase of Art. II, i.e. “and all other territories over public concern etc.
which the Philippines has sovereignty or
jurisdiction.” It is part of our national territory Constitutional Authoritarianism
because the Philippines exercise sovereignty
(through election of public officials) over the As understood and practiced in the Marcos regime
Spratly Group of Islands. Moreover, under the under the 1973 constitution, it is the assumption
UNIVERSITY OF SANTO TOMAS 2

2019 GOLDEN NOTE S
of extraordinary powers by the President All existing treaties or international agreements
including legislative and judicial and even which have not been ratified shall not be renewed
constituent powers. or extended without the concurrence of at least
two-thirds of all the Members of the Senate. (Sec.
Compatibility of constitutional 4, Art. XVIII, 1987 Constitution)
authoritarianism with a republican state
After the expiration in 1991 of the Agreement
Constitutional authoritarianism is compatible between the Republic of the Philippines and the
with a republican state if the Constitution upon United States of America concerning military
which the Executive bases his assumption of bases, foreign military bases, troops, or facilities
power is a legitimate expression of the people’s shall not be allowed in the Philippines except
will and if the Executive who assumes power under a treaty duly concurred in by the Senate
received his office through a valid election by the and, when the Congress so requires, ratified by a
people. majority of the votes cast by the people in a
national referendum held for that purpose, and
State policy on war recognized as a treaty by the other contracting
State. (Sec. 25, Art. XVIII, 1987 Constitution)
The State renounces war as an instrument of
national policy. (Sec. 2, Art. II, 1987 Constitution) Policies of the State on the following:
NOTE: The Philippines does not renounce 1. Working women – 1987 Constitution, Sec. 14,
defensive war because it is duty bound to defend Art. XIII: "The State shall protect working
its citizens. Under the Constitution, the prime duty women by providing safe and healthful
of the government is to serve and protect the working conditions, taking into account their
people. maternal functions, and such facilities and
opportunities that will enhance their welfare
Voting requirements to declare the existence and enable them to realize their full potential
of a state of war in the service of the nation."
1. 2/3 vote of both Houses 2. Ecology – 1987 Constitution, Sec. 16, Art. II:
2. In joint session “The State shall protect and advance the right
3. Voting separately of the people and their posterity to a balanced
and healthful ecology in accord with the
NOTE: Even though the legislature can declare an rhythm and harmony of nature."
existence of war and enact measures to support it,
the actual power to engage in war is lodged, Q: The residents of Taguig City brought a
nonetheless, in the executive. complaint before Laguna Lake Development
Authority (LLDA) about an open garbage
Independent Foreign Policy and a nuclear-free dumpsite in their city and sought its closure
Philippines due to its harmful effects on health and the
pollution it brings to the lake. Upon
The State shall pursue an independent foreign investigation, LLDA discovered that the Taguig
policy. In its relations with other states, the City Government has been maintaining the
paramount consideration shall be national said dumpsite without an Environmental
sovereignty, territorial integrity, national interest, Compliance Certificate from the
and the right to self-determination. (Sec. 7, Art. 2, Environmental Management Bureau of the
1987 Constitution) DENR, and also found the water to have been
directly contaminated by the dumpsite
The Philippines, consistent with the national operations. Then, LLDA, under RA 4850, issued
interest, adopts and pursues a policy of freedom a “cease and desist” order against the City
from nuclear weapons in its territory. (Sec. 8, Art. Government to completely stop the dumping of
II, 1987 Constitution) any form or kind of waste matter to the
dumpsite. Does the LLDA have the power and
NOTE: This pertains to use of nuclear weapons authority to issue a “cease and desist” order
and not nuclear source of energy. under RA 4850 enjoining the dumping of
garbage in Taguig City?
3
POLITICAL LAW
A: YES. In the exercise, therefore, of its express Development of national talents consisting of
powers under its charter as a regulatory and Filipino scientists, entrepreneurs,
quasi-judicial body with respect to pollution cases professionals, managers, high-level technical
in the Laguna Lake region, the authority of the manpower and skilled workers and
LLDA to issue a “cease and desist” order is implied craftsmen. (1987 Constitution, Art. XII, Sec. 14)
and need not necessarily be express. Moreover,
the immediate response to the demands of "the Mandate on educational institutions. [1987
necessities of protecting vital public interests" Constitution, Art. XIV, Sec. 3(4)]
gives vitality to the statement on ecology
embodied in Art. II, Sec. 16 of the Constitution Priority to research and development,
which provides: The State shall protect and invention, innovation of science and
advance the right of the people to a balanced and technology. (1987 Constitution, Art. XIV, Sec.
healthful ecology in accord with the rhythm and 10)
harmony of nature. As a constitutionally
guaranteed right of every person, it carries the Incentives, tax deductions, and scholarships
correlative duty of non-impairment. Hence, the to encourage private participation in
issuance of the cease and desist order by the LLDA programs of basic and applied scientific
is a proper exercise of its power and authority research. (1987 Constitution, Art. XIV, Sec. 11)
under its charter and in consonance with the
declared policy of the state to protect and promote Encouragement of widest participation of
the right to health of the people and instill health private groups, local governments, and
consciousness among them. (Laguna Lake organizations in the generation and utilization
Development Authority v. CA, G.R. No. 110120, of science and technology. (1987 Constitution,
March 16, 1994) Art. XIV, Sec. 12)
3. The symbols of statehood – Flag of the Constitutional provision on transparency in

Philippines. (1987 Constitution, Art. XVI, Sec. matters of public concern (2000 Bar)
1)
The 1987 Constitution provides for a policy of
Name of the country, National Anthem, and transparency in matters of public interest:
National Seal. (1987 Constitution, Art. XVI, Sec.
2) 1. Policy of full public disclosure of government
transactions. (1987 Constitution, Art. II, Sec.
4. Cultural minorities – Recognition and 28)
Promotion of Rights of Indigenous Cultural 2. Right to information on matters of public
Communities. (1987 Constitution, Art. II, Sec. concern. (1987 Constitution, Art. III, Sec. 7)
22) (1994, 1996 Bar) 3. Access to the records and books of account of
the Congress. (1987 Constitution, Art. VI, Sec.
Protection of Ancestral Lands of Indigenous 20) (2000 Bar)
Communities. (1987 Constitution, Art. XII, Sec. 4. Submission of Statement of Assets,
5) Liabilities, and Net worth. (1987 Constitution,
Art. XI, Sec. 17)
Application of Principles of Agrarian Reform 5. Access to information on foreign loans
and Stewardship to Indigenous Communities obtained or guaranteed by the government.
and Landless Farmers. (1987 Constitution, Art. (1987 Constitution, Art. XII, Sec. 21)
XIII, Sec. 65)
NOTE: These provisions on public disclosures are
Preservation and Development of the Culture, intended to enhance the role of the citizenry in
Traditions, and Institutions of Indigenous governmental decision-making as well as in
Communities. (1987 Constitution, Art. XIV, Sec. checking abuse in government. (Valmonte v.
17) Belmonte, G.R. No. 74930, February 13, 1989)
5. Science and technology – Priority to Education, Right of Parents to Rear their Children
Science and Technology, Arts, Culture, and
Sports. (1987 Constitution, Art. II, Sec. 17) The natural and primary right and duty of parents
(1992, 1994 Bar) in the rearing of the youth for civic efficiency and
the development of moral character shall receive

2019 GOLDEN NOTE S
the support of the Government. (Sec. 12, Art. II, effectively given unfettered authority over their
1987 Constitution) children's conduct during curfew hours when they
are able to supervise them. Thus, in all actuality,
NOTE: The rearing of children (i.e., referred to as the only aspect of parenting that the Curfew
the "youth") for civic efficiency and the Ordinances affects is the parents' prerogative to
development of their moral character are allow minors to remain in public places without
characterized not only as parental rights, but also parental accompaniment during the curfew hours.
as parental duties. This means that parents are not (SPARK, Et. al. vs. Quezon City, GR No. 225442,
only given the privilege of exercising their August 8, 2017)
authority over their children; they are equally
obliged to exercise this authority conscientiously. Incorporation Clause
For indeed, it is during childhood that minors are
prepared for additional obligations to society. The Philippines adopts the generally accepted
"[T]he duty to prepare the child for these principles of international law as part of the law of
[obligations] must be read to include the the land. (1987 Constitution, Art. II, Sec. 2) (See
inculcation of moral standards, religious beliefs, discussion under Public International Law)
and elements of good citizenship." "This
affirmative process of teaching, guiding, and Doctrine of Incorporation vs. Doctrine of
inspiring by precept and example is essential to Transformation
the growth of young people into mature, socially
responsible citizens." (SPARK, Et. al. vs. Quezon DOCTRINE OF
City, GR No. 225442, August 08, 2017) DOCTRINE OF
BASIS TRANSFORM
INCORPORATION
ATION
Q: Three cities in Metro Manila passed Generally Rules of
ordinances that impose curfew on minors in accepted international
their respective jurisdictions. Petitioners principles of law are not
argue that the Curfew Ordinances are International Law per se binding
unconstitutional because they deprive parents form part of the upon the
of their natural and primary right in rearing law of the land; no State but
the youth without substantive due process. Is legislative action must first be
the petitioners’ contention proper? is required to embodied in
Definition make them legislation
A: NO. While parents have the primary role in applicable in a enacted by
child-rearing, it should be stressed that "when country. the
actions concerning the child have a relation to the lawmaking
public welfare or the well-being of the child, the body and so
State may act to promote these legitimate transformed
interests. Thus, in cases in which harm to the into
physical or mental health of the child or to public municipal
safety, peace, order, or welfare is demonstrated, law.
these legitimate state interests may override the
parents' qualified right to control the upbringing NOTE: The fact that the international law has been
of their children. made part of the law of the land does not by any
means imply the primacy of international law over
As our Constitution itself provides, the State is national law in the municipal sphere. (Philip
mandated to support parents in the exercise of Morris, Inc. v. CA, G.R. No. 91332, July 16, 1993)
these rights and duties. State authority is,
therefore, not exclusive of, but rather, Sovereignty
complementary to parental supervision.
Supreme and uncontrollable power inherent in a
It should be emphasized that the Curfew State by which the State is governed.
Ordinances apply only when the minors are not—
whether actually or constructively— accompanied Characteristics of Sovereignty
by their parents. This serves as an explicit
recognition of the State's deference to the primary 1. Permanent;
nature of parental authority and the importance of 2. Exclusive;
parents' role in child-rearing. Parents are 3. Comprehensive;
5
POLITICAL LAW
4. Absolute; not simply restricted to situations involving use of
5. Indivisible; force, acts of aggression, or armed conflict. It has
6. Inalienable; and been further clarified by the International Court of
7. Imprescriptible. (Laurel v. Misa, G.R. No. L- Justice to include the concept that a state cannot
409, Jan. 30, 1947) intervene in a dictatorial way in the internal affairs
of another state.
Sovereignty: Imperium vs. Dominium
Within the Nicaragua Decision, the ICJ declared
BASIS IMPERIUM DOMINIUM that the principle precisely forbids all States (or
The State’s Capacity of the groups of States) from directly or indirectly
authority to state to own or intervening “in the internal or external affairs of
govern as acquire other States.” The Court went on to clarify,
embraced in the property. however, that for an intervention to be prohibited,
concept of it must impinge on matters that are directly within
sovereignty; a state’s sovereign rights. These include the choice
includes of a political, economic, or social and cultural
Definition system and the creation and formulation of foreign
passing laws
and policy. An intervention is, therefore, “wrongful
governing a
Extent when it uses methods of coercion in regard to such
territory,
maintaining choices, which must remain free ones” unmarked
peace and order by any evidence of coercion which would be
over it, and evidence of a prohibited intervention. In
defeating it Democratic Republic of the Congo v. Uganda, the
against foreign Court affirmed that the Nicaragua Decision had
invasion. “made it clear that the principle of non-
(Lee Hong Hok v. David, G.R. No. L-30389, Dec. 27, intervention prohibits a State “to intervene,
1972) directly or indirectly, with or without armed force,
in support of the internal opposition within a
NOTE: Sovereignty is deemed absolute, subject to State.”
restrictions and limitations.
Constitutional provisions which ensure
Doctrine of Auto Limitation civilian supremacy
While sovereignty has traditionally been deemed 1. By the installation of the President, the
absolute and all-encompassing on the domestic highest civilian authority, as the commander-
level, it is however subject to restrictions and in-chief of all the armed forces of the
limitations voluntarily agreed to by the Philippines. (1987 Constitution, Art. VII, Sec.
Philippines, expressly or impliedly as a member of 18)
the family of nations.
2. Through the requirement that members of
The sovereignty of a state therefore cannot in fact the AFP swear to uphold and defend the
and in reality be considered absolute. Certain Constitution, which is the fundamental law of
restrictions enter into the picture: (1) limitations a civil government. (1987 Constitution, Art.
imposed by the very nature of membership in the XVI, Sec. 5, Par. 1)
family of nations and (2) limitations imposed by
treaty stipulations. (Tañada v. Angara, G.R. No. NOTE: By civilian supremacy, it is meant that
118295, May 2, 1997) civilian authority is, at all times, supreme over the
military. (2003, 2006, 2009 Bar)
Principle of Non-Intervention
Mandatory rendition of military services to
The United Nations has repeatedly clarified that defend the State
states are strictly prohibited from intervening in
the domestic affairs of other states, most famously One cannot avoid compulsory military service by
in Article 2.4 of the UN Charter, which prohibits invoking one’s religious convictions or by saying
the threat or use of force against the territorial that he has a sick father and several brothers and
integrity or political independence of another sisters to support. Accordingly, the duty of
state. The non- intervention principle, however, is government to defend the State cannot be

2019 GOLDEN NOTE S
performed except through an army. To leave the be an additional ground for the cancellation
organization of an army to the will of the citizens of their registration with the Commission, in
would be to make this duty to the Government addition to other penalties that may be
excusable should there be no sufficient men who prescribed by law.”
volunteer to enlist therein. The right of the
Government to require compulsory military XPNs to the principle are the following provisions
service is a consequence of its duty to defend the of the Constitution:
State and is reciprocal with its duty to defend the
life, liberty, and property of the citizen. (People v. 1. Art. VI, Sec. 28[3]: “Charitable institutions,
Zosa, G.R. No. L-45892-93, July 13, 1938) churches and parsonages or convents
appurtenant thereto, mosques, non-profit
Separation of Church and State cemeteries, and all lands, buildings, and
improvements, actually, directly, and
Provisions of the Constitution that support the exclusively used for religious, charitable, or
principle of separation of Church and State: educational purposes shall be exempt from
taxation.”
1. Art. III, Sec. 5: “No law shall be made
respecting an establishment of religion, or 2. Art. VI, Sec. 29[2]: “No public money or
prohibiting the free exercise thereof. The free property shall be appropriated, applied, paid,
exercise and enjoyment of religious or employed, directly or indirectly, for the
profession and worship, without use, benefit, or support of any sect, church,
discrimination or preference, shall forever be denomination, sectarian institution, or
allowed. No religious test shall be required system of religion, or of any priest, preacher,
for the exercise of civil or political rights.” minister, or other religious teacher, or
dignitary as such, except when such priest,
2. Art. VI, Sec. 5[2]: “The party-list preacher, minister, or dignitary is assigned to
representatives shall constitute twenty per the armed forces, or to any penal institution,
centum of the total number of or government orphanage or leprosarium.”
representatives including those under the (1992, 1997 Bar)
party list. For three consecutive terms after
the ratification of this Constitution, one-half 3. Art. XIV, Sec. 3[3]: “At the option expressed in
of the allocated to party-list representatives writing by the parents or guardians, religion
shall be filled, as provided by law, by shall be allowed to be taught to their children
selection or election from the labor, peasant, or wards in public elementary and high
urban poor, indigenous cultural schools within the regular class hours by
communities, women, youth, and such other instructors designated or approved by the
sections as may be provided by law, except religious authorities of the religion to which
the religious sector. the children or wards belong, without
additional cost to the Government.”
3. Art. IX-CI, Sec. 2[5]: “Register, after sufficient
publication, political parties, organizations, 4. Art. XIV, Sec. 4[2]: “Educational institutions,
or coalitions which, in addition to other other than those established by religious
requirements, must present their platform or groups and mission boards, shall be owned
program of government; and accredit solely by citizens of the Philippines or
citizens' arms of the Commission on corporations or associations at least sixty per
Elections. Religious denominations and sects centum of the capital of which is owned by
shall not be registered. Those which seek to such citizens. The Congress may, however,
achieve their goals through violence or require increased Filipino equity
unlawful means, or refuse to uphold and participation in all educational institutions.”
adhere to this Constitution, or which are
supported by any foreign government shall Theories on the separation of church and
likewise be refused registration. Financial state:
contributions from foreign governments and
their agencies to political parties, 1. Separation Standard - May take the form of
organizations, coalitions, or candidates either (a) strict separation or (b) the tamer
related to elections, constitute interference version of strict neutrality, or what Justice
in national affairs, and, when accepted, shall
7
POLITICAL LAW
Carpio refers to as the second theory based on religious belief, it shall adopt the Strict-
of governmental neutrality. Compelling State interest test because it is most
in line with the benevolent neutrality-
a. Strict Separationist – The establishment accommodation.
clause was meant to protect the State
from the church, and the State’s hostility Difference between Mandatory
towards religion allows no interaction accommodation, Permissive accommodation
between the two. and Prohibited accommodation
b. Strict Neutrality Approach – It is not MANDATORY PERMISSIVE PROHIBITED

hostility towards religion, but a strict ACCOMMODA ACCOMODA ACCOMMODA
holding that religion may not be used as a TION TION TION
basis for classification for purposes of Basis and Action Taken
governmental action, whether the action When Means that Results when
confers rights or privileges or imposes religious the state the court finds
duties or obligations. Only secular criteria
conscience may, but is no basis for a
may be the basis of government action. It conflicts with not mandatory
does not permit; much less require a required to, accommodati
accommodation of secular programs to government accommoda on, or it
religious belief. obligation or te religious determines
prohibition, interests. that the
2. Benevolent Neutrality Approach (2016 Bar) –
the legislative
The “wall of separation” is meant to protect
government accommodati
the church from the State. It believes that with
sometimes on runs afoul
respect to governmental actions,
may have to of the
accommodation of religion may be allowed, give way. establishment
not to promote the government’s favored This or the free
form of religion, but to allow individuals and accommodat exercise
groups to exercise their religion without
ion occurs clause. In this
hindrance. (Estrada v. Escritor, A.M. No. P-02-
when all case, the court
1651, June 22, 2006)
three finds that
conditions of establishment
NOTE: In the Philippine context, the Court the concerns
categorically ruled that, “the Filipino people, in
compelling prevail over
adopting the Constitution, manifested their state interest potential
adherence to the benevolent neutrality test are met. accommodati
approach that requires accommodations in
on interests.
interpreting the religion clauses.” (Estrada v.
Escritor, ibid.)
NOTE: The purpose of accommodations is to
remove a burden on, or facilitate the exercise of, a
Kinds of accommodation that result from free
person’s or institution’s religions.
exercise claim
Q: In his letters addressed to Chief Justice
1. Mandatory – Those which are found to be
Puno, Valenciano reported that the basement
constitutionally compelled, i.e. required by the
of the Hall of Justice of Quezon City had been
Free Exercise Clause;
converted into a Roman Catholic Chapel,
2. Permissive – Those which are discretionary or
complete with offertory table, images of
legislative, i.e. not required by the Free
Catholic religious icons, a canopy, an electric
Exercise Clause; and
organ, and a projector. Valenciano believed
3. Prohibited – Those which are prohibited by
that such practice violated the constitutional
the religion clauses.
provision on the separation of Church and
State and the constitutional prohibition
NOTE: Based on the foregoing, and after holding
against the appropriation of public money or
that the Philippine Constitution upholds the
property for the benefit of a sect, church,
Benevolent Neutrality Doctrine which allows for
denomination, or any other system of religion.
accommodation, the Court laid down the rule that
Valenciano also prayed that rules be
in dealing with cases involving purely conduct
promulgated by the Court to put a stop to the

2019 GOLDEN NOTE S
holding of Catholic masses, or any other committed when the subject basement is allowed
religious rituals, at the QC Hall of Justice and in to be temporarily used by the Catholics to
all other halls of justice in the country. celebrate mass, as the same area can be used by
other groups of people and for other purposes.
(a) Does the holding of masses at the QC Hall of Thus, the basement of the QC Hall of Justice has
Justice violate the principle of separation of remained to be a public property devoted for
Church and State? public use because the holding of Catholic masses
(b) Was there a violation against therein is a mere incidental consequence of its
appropriation of public money or property for primary purpose.
the benefit of any sect, church, denomination,
sectarian institution, or system of religion? What the law prohibits the use of public money or
property for the sole purpose of benefiting or
A: supporting any church. The prohibition
a) NO. Allowing the citizens to practice their contemplates a scenario where the appropriation
religion is not equivalent to a fusion of Church and is primarily intended for the furtherance of a
State. The State adopts a policy of accommodation particular church. It does not inhibit the use of
as a recognition that some governmental public property for religious purposes when the
measures may not be imposed on a certain portion religious character of such use is merely incidental
of the population for these measures are contrary to a temporary use which is available
to their religious beliefs. As long as it can be shown indiscriminately to the public in general. (Re:
that the exercise of the right does not impair the Letter of Tony Q. Valenciano, Holding of Religious
public welfare, the attempt of the State to regulate Rituals at the Hall of Justice Building in Quezon City,
or prohibit such right would be an A.M. No. 10-4-19-SC, March 7, 2017)
unconstitutional encroachment.
Self-executing provision
The holding of Catholic masses at the basement of
the QC Hall of Justice is merely a case of A provision which is complete by itself and
accommodation. First, there is no law, ordinance becomes operative without the aid of
or circular issued by any duly constitutive supplementary or enabling legislation, or that
authorities expressly mandating that judiciary which supplies sufficient rule by means of which
employees attend the Catholic masses at the the right it grants may be enjoyed or protected;
basement. Second, when judiciary employees nature and extent of the right conferred and the
attend the masses to profess their faith, it is at liability imposed are fixed by the Constitution
their own initiative as they are there on their own itself.
free will and volition, without any coercion from
the judges or administrative officers. Third, no GR: All provisions of the Constitution are self-
government funds are being spent because the executory.
lightings and air-conditioning continue to be
operational even if there are no religious rituals Rationale: A contrary rule would give the
there. Fourth, the basement has neither been legislature discretion to determine when, or
converted into a Roman Catholic chapel nor has it whether, they shall be effective. These provisions
been permanently appropriated for the exclusive would be subordinated to the will of the
use of its faithful. Fifth, the allowance of the lawmaking body, which could make them entirely
masses has not prejudiced other religions. meaningless by simply refusing to pass the needed
implementing statute. (Manila Prince Hotel v. GSIS,
b) NO. The basement of the QC Hall of Justice is not G.R. 122156, Feb. 3, 1997)
appropriated, applied or employed for the sole
purpose of supporting the Roman Catholics. XPN:
1. When it is expressly provided that a legislative
The basement is also being used as a public act is necessary to enforce a constitutional
waiting area for most of the day and a meeting mandate; and
place for different employee organizations. The 2. Provisions merely expressing general principles
use of the area for holding masses is limited to like:
lunch break period from twelve (12) o'clock to one a. Art. II: "Declaration of Principles and State
(1) o'clock in the afternoon. The masses run for Policies"
just a little over thirty (30) minutes. It is, therefore, b. Art. XIII: "Social Justice and Human Rights"
clear that no undue religious bias is being
9
POLITICAL LAW
c. Art. XIV: "Education Science and Technology, Plea bargaining in drug cases
Arts, Culture end Sports” (Manila Prince Hotel
v. GSIS, G.R. 122156, Feb. 3, 1997) Plea bargaining operates as a means to implement
an existing right by regulating the judicial process
NOTE: Such provisions are not ready for for enforcing rights and duties recognized by
enforcement through the courts but are used by substantive law and for justly administering
the judiciary as aids or guides in the exercise of its remedy and redress for a disregard or infraction of
power of judicial review, and by the legislature in them. (Estipina v. Lobrigo, G.R.No. 226679, August
its enactment of laws. (Tondo Medical Employees 15, 2017)
Association v. CA, G.R. No. 167324, July 17, 2007)
The power to promulgate rules of pleading,
XPN to the XPN: practice and procedure is exclusive domain of the
Judicial department and no longer shared with the
1. Sec. 16, Art. II: Right to a balanced and healthful Executive and Legislative departments. The
ecology (Oposa v. Factoran, G.R. No. 101083, July adoption of the plea bargaining framework in
30, 1993) Drug Cases under Section 23 of Republic Act No.
2. Sec. 17, Art. III: Right to information (Manila 9165, or the Comprehensive Dangerous Drugs Act
Prince Hotel v. GSIS, G.R. No. 122156, Feb. 3, of 2002 is unconstitutional for the inclusion of the
1997); and provision in the law encroaches on the exclusive
3. Sec. 10, Art. XII: Filipino First Policy. (Manila constitutional power of the Supreme Court.
Prince Hotel v. GSIS, G.R. No. 122156, Feb. 3, 1997) (Estipina v. Lobrigo, G.R.No. 226679, August 15,
2017)
NOTE: In case of doubt, the provisions of the
Constitution should be construed as self- Exceptions of plea bargaining in drug cases
executing; mandatory rather than directory and
prospective rather than retroactive. (Cruz and 1. Imposable penalty is life imprisonment or life
Cruz, Constitutional Law, p. 8) imprisonment to death.
2. Under Section 5 of Republic Act No. 9165, or the
SEPARATION OF POWERS Comprehensive Dangerous Drugs Act of 2002,
(Sale, Trading, etc, of Dangerous Drugs) involving
Doctrine of Separation of Powers other kinds of dangerous drugs, except shabu and
marijuana.
Legislation belongs to the Congress,
implementation to the executive, and settlement Q: A group of losing litigants in a case decided
of legal controversies and adjudication of rights to by the SC filed a complaint before the
the judiciary. Each department has exclusive Ombudsman charging the Justices with
cognizance of and is supreme in matters falling knowingly and deliberately rendering an
within its own constitutionally allocated sphere. unjust decision in utter violation of the penal
Each is therefore prevented from invading the laws of the land. Can the Ombudsman validly
domain of the others. take cognizance of the case?
Purposes of Separation of Powers A: NO. Pursuant to the principle of separation of

powers, the correctness of the decisions of the SC
1. Secure action; as final arbiter of all justifiable disputes is
2. Forestall over-action; conclusive upon all other departments of the
3. Prevent despotism; and government; the Ombudsman has no power to
4. Obtain efficiency. review the decisions of the SC by entertaining a
complaint against the Justices of the SC for
Powers vested in the three branches of knowingly rendering an unjust decision. (In re:
government Laureta, G.R. No. L-68635, May 14, 1987)
EXECUTIVE LEGISLATIVE JUDICIARY Q: May the RTC or any court prohibit a

Interpretation committee of the Senate like the Blue Ribbon
Implementation Committee from requiring a person to appear
Making of laws of laws
of laws before it when it is conducting investigation in
(Power of the (Power of
(Power of the aid of legislation?
purse) judicial
sword)
review)

2019 GOLDEN NOTE S
A: NO. The RTC or any court may not do so because massacre, as to which his admission operated as
that would be violative of the principle of an acquittal, unless he later on refuses or fails to
separation of powers. The principle essentially testify in accordance with the sworn statement
means that legislation belongs to Congress, that became the basis for his discharge against
execution to the Executive and settlement of legal those now charged for the crimes. (Ampatuan, Jr.,
controversies to the Judiciary. Each is prevented v. De Lima, G.R. No. 197291, April 3, 2013)
from invading the domain of the others. (Senate
Blue Ribbon Committee v. Majaducon, G.R. No. Q: Pres. Benigno Aquino III signed E.O. No. 1
136760, July 29, 2003) establishing the Philippine Truth Commission,
a special body to investigate reported cases of
Q: The Panel of Prosecutors issued a joint graft and corruption allegedly committed
resolution based on the affidavits of Kenny during the Arroyo administration. Is E.O. No. 1
Dalandag, charging several individuals with constitutional?
multiple murder in relation to the
Maguindanao massacre. Kenny Dalandag was A: NO. The President has no power to create a
then admitted to the Witness Protection public office. It is not shared by Congress with the
Program of the DOJ. Petitioner Andal President, until and unless Congress enacts
Ampatuan, Jr., one of the principal suspects, legislation that delegates a part of the power to the
wrote to respondent Secretary of Justice De President, or any other officer or agency. It is
Lima and Asst. Chief State Prosecutor Fadullon, already settled that the President’s power of
requesting that Dalandag be included in the control can only mean the power of an officer to
information for murder considering he alter, modify, or set aside what a subordinate
already confessed his participation in the officer had done in the performance of his duties,
massacre. Respondent refused. Petitioner and to substitute the judgment of the former for
Ampatuan then filed a petition for mandamus. that of the latter. As such, the creation by the
May the respondents be compelled by the writ President of a public office like the Truth
of mandamus to charge Dalandag as an accused Commission, without either a provision of the
for multiple murder in relation to the Constitution or a proper law enacted by Congress
Maguindanao massacre even if he is under the authorizing such creation, is not an act that the
Witness Protection Program? power of control includes. (Biraogo v. The
Philippine Truth Commission, G.R. No. 192935, 7
A: NO. Consistent with the principle of separation December 2010, Bersamin, J. separate opinion)
of powers enshrined in the Constitution, the Court Pork Barrel
deems it a sound judicial policy not to interfere in
the conduct of preliminary investigations, and to "PORK BARREL" is political parlance of American
allow the Executive Department, through the -English origin. Its usage may be traced to the
Department of Justice, exclusively to determine degrading ritual of rolling out a barrel stuffed with
what constitutes sufficient evidence to establish pork to a multitude of black slaves who would cast
probable cause for the prosecution of supposed their famished bodies into the porcine feast to
offenders. By way of exception, however, judicial assuage their hunger with morsels coming from
review may be allowed where it is clearly the generosity of their well-fed master. This
established that the public prosecutor committed practice was later compared to the actions of
grave abuse of discretion, that is, when he has American legislators in trying to direct federal
exercised his discretion “in an arbitrary, budgets in favor of their districts. While in the
capricious, whimsical or despotic manner by Philippines it was referred as lump-sum,
reason of passion or personal hostility, patent and discretionary funds of Members of the Legislature.
gross enough as to amount to an evasion of a
positive duty or virtual refusal to perform a duty Q: Amog was elected Congressman. Before the
enjoined by law.” end of her first year in office, she inflicted
physical injuries on a colleague, Camille
Kenny Dalandag who admitted his participation in Gonzales, in the course of a heated debate.
the commission of the Maguindanao massacre was Charges were filed in court against her as well
no hindrance to his admission into the Witness as in the House Ethics Committee. Later, the
Protection Program as a state witness, for all that HoR, dividing along party lines, voted to expel
was necessary was for him to appear not the most her. Claiming that her expulsion was
guilty. Accordingly, he could not anymore be railroaded and tainted by bribery, she filed a
charged for his participation in the Maguindanao petition seeking a declaration by the SC that
11
POLITICAL LAW
the House gravely abused its discretion and should shy away from encroaching upon the
violated the Constitution. She prayed that her primary function of a co-equal branch of the
expulsion be annulled and that she should be Government; otherwise, this would lead to an
restored by the Speaker to her position as inexcusable breach of the doctrine of separation of
Congressman. Is AviAmog’s petition before the powers by means of judicial legislation. (Corpuz v.
Supreme Court justiciable? People, G.R. No. 180016, April 29, 2014)
A: NO. The petition is not justiciable because as Principle of Blending of Powers

stated in Alejandrino v. Quezon, et al. (46 Phil. 83),
the Supreme Court held that it could not compel Refers to an instance when powers are not
the Senate to reinstate a Senator who assaulted confined exclusively within one department but
another Senator and was suspended for disorderly are assigned to or shared by several departments.
behavior, because it could not compel a separate
and co-equal department to take any particular Examples of the Blending of Powers
action. In Osmeña v. Pendatun (109 Phil. 863), it
was held that the Supreme Court could not a. Power of appointment which can be
interfere with the suspension of a Congressman exercised by each department and be
for disorderly behavior, because the House of rightfully exercised by each department
Representatives is the judge of what constitutes over its own administrative personnel;
disorderly behavior. The assault of a fellow b. General Appropriations Law – President
Senator constitutes disorderly behavior. However, prepares the budget which serves as the
under Sec. 1, Art. VIII of the 1987 Constitution, the basis of the bill adopted by Congress;
Supreme Court may inquire whether or not the c. Amnesty granted by the President requires
decision to expel AviAmog is tainted with grave the concurrence of the majority of all the
abuse of discretion amounting to lack or excess of members of the Congress; and
jurisdiction. d. Power of the COMELEC to deputize law-
enforcement agencies and instrumentalities
Q: Joey Tribbiani was convicted of estafa. When of the government for the purpose of
his case reached the Supreme Court, some ensuring free, orderly, honest, peaceful and
Justices proposed to alter the penalties credible elections in accordance with the
provided for under RPC on the basis of the power granted to it by the Constitution to
ratio of P1.00 to P100.00, believing that it is enforce and administer all laws and
not fair to apply the range of penalties, which regulations relative the conduct of elections.
was based on the value of money in 1932, to [Art. IX-C, Sec. 2(1)] (Concurring and
crimes committed at present. However, other Dissenting Opinion of Justice Puno,
justices opposed the said proposal for it Macalintal v. COMELEC, G.R. No. 157013, July
amounts to judicial legislation. Is the 10, 2003)
opposition correct?
CHECKS AND BALANCES
A: YES. The opposition is correct because the
Court cannot modify the said range of penalties Principle of Checks and Balances
because that would constitute judicial legislation.
What the legislature's perceived failure in Allows one department to resist encroachments
amending the penalties provided for in the said upon its prerogatives or to rectify mistakes or
crimes cannot be remedied through this Court's excesses committed by the other departments.
decisions, as that would be encroaching upon the
power of another branch of the government. Executive check on the other two branches
Verily, the primordial duty of the Court is merely EXECUTIVE CHECK

to apply the law in such a way that it shall not Legislative Judiciary
usurp legislative powers by judicial legislation and
- Through its power of
that in the course of such application or
pardon, it may set aside the
construction, it should not make or supervise
Through its judgment of the judiciary.
legislation, or under the guise of interpretation,
veto power - Also by power of
modify, revise, amend, distort, remodel, or rewrite
appointment – power to
the law, or give the law a construction which is
appoint members of the
repugnant to its terms. Succinctly put, the Court
Judiciary.

2019 GOLDEN NOTE S
Legislative check on the other two branches grant of express power carried with it all other
powers that may be reasonably inferred from it.
LEGISLATIVE CHECK
Executive Judiciary Q: An appropriations law granting the
legislators lump-sum funds in which they have
Revoke or amend the
full discretion on what project it would fund
decisions by either:
and how much the project would cost, was
- Enacting a new law
passed. Is such law unconstitutional?
- Amending the old
Override the veto of
law, giving it certain
the President A: YES.
definition and
interpretation
1. It violated the principle of separation of
different from the
powers - Insofar as it has allowed legislators to
old.
wield, in varying gradations, non-oversight, post-
Reject certain Impeachment of SC enactment authority in vital areas of budget
appointments made members execution.
by the president
Define, prescribe, 2. It violated the principle of non-delegability of
apportion jurisdiction legislative power -insofar as it has conferred
Revoke the
of lower courts: unto legislators the power of appropriation by
proclamation of
- Prescribe the giving them personal, discretionary funds from
martial law or
qualifications of which they are able to fund specific projects which
suspension of the
lower court judges they themselves determine.
privilege of the writ
- Impeachment
of habeas corpus
- Determination of 3. Denied the President’s power to veto items -
salaries of judges. insofar as it has created a system of budgeting
Impeachment wherein items are not textualized into the
Determine the appropriations bill, it has flouted the prescribed
salaries of the procedure of presentment.
president or vice
president 4. Impaired public accountability - insofar as it
has diluted the effectiveness of congressional
Concur to or reject oversight by giving legislators a stake in the affairs
treaties the of budget execution, an aspect of governance
president may enter which they may be called to monitor and
into scrutinize.
Judicial check on the other two branches 5. Subverted genuine local autonomy - insofar as
it has authorized legislators, who are national
It may declare (through the SC as the final arbiter) officers, to intervene in affairs of purely local
the acts of both the legislature and executive as nature, despite the existence of capable local
unconstitutional or invalid so long as there is institutions.
grave abuse of discretion amounting to lack or
excess of jurisdiction. 6. Transgressed the principle of non-
delegability -insofar as it has conferred to the
Test to determine whether a given power has President the power to appropriate funds
been validly exercised by a particular intended by law for energy-related purposes only
department: to other purposes he may deem fit as well as other
public funds under the broad classification of
GR.: Whether the power has been constitutionally "priority infrastructure development projects."
conferred upon the department claiming its (Belgica v. Ochoa, G.R. No. 208566, Nov. 19, 2013
exercise. PER J. PERLAS-BERNABE)
XPN: Doctrine of Necessary Implication (2010 STATE IMMUNITY

Bar)
Exercise of the power may be justified in the Doctrine of State Immunity
absence of an express conferment because the
13
POLITICAL LAW
The State may not be sued without its consent. US have statutorily waived their immunity to
(1987 Constitution, Art. XVI, Sec. 3) any action. Is he correct?
Basis of the Doctrine of State Immunity A: NO. The VFA is an agreement which defines the
treatment of United States troops and personnel
1. Indiscriminate suits against the State will impair visiting the Philippines to promote “common
its dignity and supposed infallibility. security interests” between the US and the
2. Per Justice Holmes, there can be no legal right Philippines in the region. The invocation of US
against the authority which makes the law on federal tort laws and even common law is thus
which the right depends. improper considering that it is the VFA which
3. If it were otherwise, government service may be governs disputes involving US military ships and
severely obstructed and public safety crew navigating Philippine waters in pursuance of
endangered because of the number of suits that the objectives of the agreement. However, the
the State has to defend against. waiver of State immunity under the VFA pertains
only to criminal jurisdiction and applicable only to
GR: All states are sovereign equals and cannot US personnel under VFA and not to special civil
assert jurisdiction over one another, consonant actions such as the present petition for issuance of
with the public international law principle of par a Writ of Kalikasan. The principle of State
in parem non habet imperium. A contrary immunity therefore bars the exercise of
disposition would "unduly vex the peace of jurisdiction by this Court over the persons of the
nations." (Arigo v. Swift, G.R. No. 206510, US Officials. (Arigo v. Swift, G.R. No. 206510,
September 16, 2014) September 16, 2014)
The head of State, who is deemed the Remedy of a person who feels aggrieved by the
personification of the State, is inviolable, and thus, acts of a foreign government
enjoys immunity from suit. (JUSMAG Philippines v.
NLRC, G.R. No. 108813, Dec. 15, 1994) Under both Public International Law and
Transnational Law, a person who feels aggrieved
Likewise, public officials may not be sued for acts by the acts of a foreign sovereign can ask his own
done in the performance of their official functions government to espouse his cause through
or within the scope of their authority. (DOH v. Phil. diplomatic channels. (Holy See v. Rosario, G.R. No.
Pharmawealth, Inc., G.R. No. 182358, February 20, 101949, December 1, 1994)
2013)
Forms of consent
NOTE: The rule is that if the judgment against such
officials will require the state itself to perform an 1. Express consent
affirmative act to satisfy the same, the suit may be a. General law
regarded as against the state itself although it has i. Act No. 3083 and CA 327 as amended
not been formally impleaded. (Garcia v. Chief of by Secs. 49-50, PD 1445 – Money
Staff, G.R. No. L-20213, January 31, 1966) claims arising from contracts which
could serve as a basis of civil action
XPN: A State may be sued if it gives consent, between private parties to be first
whether express or implied. filed with COA before a suit may be
filed in court. The COA must act upon
Q: The USS Guardian of the US Navy ran the claim within 60 days. Rejection of
aground on an area near the Tubbataha Reefs, the claim authorizes the claimant to
a marine habitat of which entry and certain elevate the matter to the Supreme
human activities are prevented and afforded Court on certiorari.
protection by Philippine laws and UNCLOS. ii. Art. 2180, NCC – Tort committed by
Bishop Arigo of Palawan filed a petition for the special agent;
issuance of Writ of Kalikasan and impleaded iii. Art. 2189, NCC – LGUs liable for
US officials in their capacity as commanding injuries or death caused by defective
officers of the US Navy. He argues that there is condition of roads or public works
a waiver of immunity from suit found in the under their control (City of Manila v.
Visiting Forces Agreement (VFA) between the Teotico, et al., G.R. No. L-23052,
US and the Philippines, and invoke federal January 29, 1968);
statues in the US under which agencies of the

2019 GOLDEN NOTE S
iv. Sec. 22(2), RA 7160, LGC of 1991 – by its Director General is the only way
LGUs have power to sue and be sued; by which it may relinquish or
and abandon this immunity. (Callado, v.
v. Sec. 24 of LGC – LGUs and their IRRI, G.R. No. 106483, May 22, 1995)
officials are not exempt from liability
for death or injury or damage to 2. Implied consent
property. a. When the State commences litigation, it
becomes vulnerable to counterclaim.
NOTE: The express consent of the State to be sued (Froilan v. Pan Oriental Shipping, G.R. No.
must be embodied in a duly enacted statute and L-6060, September 30, 1954)
may not be given by a mere counsel of the
government. (Republic v. Purisima, G.R. No. L- Q: In a property dispute, the Attorney General
36084, Aug. 31, 1977) of the United States and the defendant-
intervenor Republic of the Philippines each
Q: Kilusang Magbubukid ng Pilipinas (KMP) filed an answer alleging by way of affirmative
members clashed with the anti-riot squad defense that the lower court had no
which resulted to 13 deaths and several jurisdiction over the claim since the action in
casualties. Thereafter, President Corazon C. that regard constituted a suit against the
Aquino issued AO 11 creating the Citizens’ United Sates to which it had not given its
Mendiola Commission to conduct the consent. Did the Republic of the Philippines by
investigation about the incident. The its intervention waive its right of immunity
commission recommended compensating the from suit?
victims. The petitioners (Caylao group)
together with the military personnel involved A: NO. The Republic of the Philippines did not
in the Mendiola incident instituted an action waive its immunity from suit. It intervened in the
against the Republic of the Philippines before case merely to unite with the defendant Attorney
the trial court. Respondent Judge Sandoval General of the United States in resisting plaintiff’s
dismissed the complaint on the ground of state claims, and for that reason asked no affirmative
immunity from suit. Petitioners argued that relief. This is not a case where the state takes the
the State has impliedly waived its immunity initiative against a private party by filing a
from suit with the recommendation of the complaint in intervention, thereby surrendering
Commission to indemnify the heirs and victims its privileged position and coming down to the
of the Mendiola incident by the government level of the defendant, but one where the state, as
and by the public addresses made by then one of the defendants, merely resisted a claim
President Aquino in the aftermath of the against it precisely on the ground among others, of
killings. Is the argument meritorious? its privileged position, which exempts it from suit.
(Lim v. Brownell, G.R. No. L-8587, March 24, 1960)
A: NO. The actions of President Aquino cannot be
deemed as a waiver of State immunity. Whatever b. When State enters into a business
acts or utterances that then President Aquino may contract.
have done or said, the same are not tantamount to
the State having waived its immunity from suit. Capacities of the State in entering into
The President's act of joining the marchers, days contracts
after the incident, does not mean that there was an
admission by the State of any liability. Moreover, 1. In jure gestionis – By right of economic or
petitioners rely on President Aquino's speech business relations; commercial, or
promising that the government would address the proprietary acts. MAY BE SUED. (US v. Guinto,
grievances of the rallyists. By this alone, it cannot G.R. No. 76607, February 26, 1990)
be inferred that the State has admitted any
liability, much less can it be inferred that it has NOTE: The State may be said to have
consented to the suit. (Republic v. Sandoval, G.R. descended to the level of an individual and
No. 84607, March 19, 1993) can thus be deemed to have tacitly given its
consent to be sued only when it enters into
b. Special law business contracts. Consequently, the
i. By virtue of PD 1620, the grant of restrictive application of State immunity is
immunity to IRRI is clear and proper only in such case. (Restrictive
unequivocal, and an express waiver Theory of State Immunity from suit)
15
POLITICAL LAW
2. In jure imperii – By right of sovereign power suit is determined by the character of the objects
and in the exercise of sovereign functions. No for which the entity is organized. When the
implied consent. (US v. Ruiz, G.R. No. L-35645, government enters into a commercial business, it
May 22, 1985) abandons its sovereign capacity and is to be
treated like any other corporation. In this case, the
NOTE: In exercising the power of eminent State divested itself of its sovereign capacity when
domain, the State exercises a power jure it organized the PNR which is no different from its
imperii. Yet, it has been held that where predecessors, the Manila Railroad Company.
property has been taken without the (Malang v. PNRC, G.R. No. L-49930, August 7, 1985)
payment of just compensation, the defense of
immunity from suit cannot be set up in an Unincorporated government agency
action for payment by the owner. (Republic v. performing governmental function vs. one
Sandiganbayan, G.R. No. 90478, November 21, performing proprietary functions
1991)
UNINCORPOR UNINCORPORAT
Q: Do all contracts entered into by the ATED ED
government operate as a waiver of its non- GOVERNMENT GOVERNMENT
suability? BASIS AGENCY AGENCY
PERFORMING PERFORMING
A: NO. Distinction must still be made between one GOVERNMENT PROPRIETARY
which is executed in the exercise of its sovereign AL FUNCTIONS FUNCTIONS
function and another which is done in its Immunity has
proprietary capacity. A State may be said to have Immunity has not been upheld
descended to the level of an individual and can be been upheld in its favor (Air
deemed to have actually given its consent to be in its favor. Transportation
sued only when it enters into business contracts. It Definition
Office v. Sps.
does not apply where the contract relates to the David, G.R. No.
exercise of its sovereign functions. (Department of 159402)
Agriculture v. NLRC G.R. No. 104269, Nov. 11, 1993)
Q: Spouses David and Elisea Ramos discovered
When suit is considered as suit against the that a portion of their land in Baguio City was
State being used as part of the runway and running
shoulder of the Loakan Airport being operated
1. The Republic is sued by name; by Air Transportation Office (ATO). The
2. The suit is against an unincorporated Spouses Ramos agreed to convey the affected
government agency performing propriety portion by deed of sale to the ATO for
functions; and consideration, which ATO failed to pay. In an
3. The suit is on its face against a government action for collection of money against ATO, the
officer but the case is such that ultimate latter invoked Proclamation No. 1358 whereby
liability will belong to the government. it reserved certain parcels of land, including
(Republic v. Sandoval, G.R. No. 84607, March the subject portion herein, for the use of the
19, 1993) Loakan Airport. They asserted that RTC did not
have any jurisdiction to entertain the action
Q: Spouses Sison sued the Philippine National without the State’s consent. The RTC and CA
Railways for damages for the death of their son dismissed the petition. Can the ATO be sued
who fell from an overloaded train belonging to without the State’s consent?
the PNR. The trial court dismissed the suit on
the ground that the charter of the PNR, as A: YES. An unincorporated government agency
amended by PD 741, has made the same a without any separate juridical personality of its
government instrumentality, and thus own enjoys immunity from suit because it is
immune from suit. Is the dismissal proper? invested with an inherent power of sovereignty.
However, the need to distinguish between an
A: NO. PNR is not immune from suit. It did not unincorporated government agency performing
remove itself from the operation of Arts. 1732 to governmental function and one performing
1766 of the Civil Code on common carriers. Not all proprietary functions has arisen. The juridical
government entities, whether corporate or non- character of ATO is an agency of the government
corporate, are immune from suits. Immunity from without performing a purely governmental or

2019 GOLDEN NOTE S
sovereign function but is instead involved in the 2. Government agencies– Establish whether or
management and maintenance of the Loakan not the State, as principal which may
Airport, an activity that was not exclusive ultimately be held liable, has given its
prerogative of the State in its sovereign capacity. consent.
Hence, the ATO had no claim to the State immunity 3. Government– Doctrine of State immunity is
from suit. The obligation of ATO to Spouses Ramos available.
might be enforced against CAAP. (Air
Transportation Office v. Sps. David, G.R. No. 159402, Instances when a public officer may be sued
February 23, 2011) without the State’s consent
Suability vs. Liability vs. Execution 1. To compel him to do an act required by law;
2. To restrain him from enforcing an act
BASIS
SUABILITY LIABILIT EXECUTION claimed to be unconstitutional;
Y 3. To compel payment of damages from an
Depends Depend Depends already appropriated assurance fund or to
on the s on the on the refund tax over-payments from a fund
consent applica appropria already available for the purpose;
As to of the ble law tion of 4. To secure a judgment that the officer
basis State to and the funds by impleaded may satisfy the judgment by
be sued establis the himself without the State having to do a
hed Congress positive act to assist him; or
facts 5. Where the government itself has violated its
own laws because the doctrine of State
The The A
immunity cannot be used to perpetrate an
circumsta State judgment
injustice.
nce that a can against
As a State is never the State
conseque suable be held cannot be GR: The true test in determining whether a suit
nce of does not liable if automatic against a public officer is a suit against the State is
that, if a public officer or agency is sued and made
another necessaril it is not ally
liable, the State will have to perform an
y mean suable. executed.
affirmative act of appropriating the needed
that it is
amount to satisfy the judgment. If the State will
liable.
have to do so, then, it is a suit against the State.
NOTE: It is one thing to consent to being sued,
XPNs:
another to admit liability, thus the phrase, “waiver
1. The public official is charged in his official
of immunity by the State does not mean a
capacity for acts that are unlawful and
concession of its liability.”
injurious to the rights of others. Public
officials are not exempt, in their personal
“By consenting to be sued, a state simply waives its
capacity, from liability arising from acts
immunity from suit. It does not thereby concede
committed in bad faith; or
its liability.” (Merritt v. Government of the
2. The public official is clearly being sued not in
Philippine Islands, G.R. No. L-11154, March 21,
his official capacity but in his personal
1916)
capacity, although the acts complained of
may have been committed while he occupied
And where “…liability is ascertained judicially, the
a public position. (Lansang v. CA, G.R. No.
state is at liberty to determine for itself whether to
102667, February 23, 2000)
satisfy judgment or not.” (Municipality of Hagonoy,
Bulacan v. Dumdum, Jr., G.R. No. 168289; March 22,
Garnishment of government funds
2010)
GR: Whether the money is deposited by way of
Rule on the liabilities of the following:
general or special deposit, they remain
government funds and are not subject to
1. Public officers– By their acts without or in
garnishment.
excess of jurisdiction: any injury caused by
him is his own personal liability and cannot
XPN: Where a law or ordinance has been enacted
be imputed to the State.
appropriating a specific amount to pay a valid
17
POLITICAL LAW
government obligation, then the money can be erroneous, let alone irregular. This principle
garnished. applies in land registration cases. Certainly, the
State will not be allowed to abdicate its authority
NOTE: Funds belonging to government over lands of the public domain just because its
corporations, which can sue and be sued and are agents and officers have been negligent in the
deposited with a bank, can be garnished. (PNB v. performance of their duties. (Republic v. Sps.
Pabalan, G.R. No. L-33112, June 15, 1978) Benign)
If the local legislative authority refuses to enact a

law appropriating the money judgment rendered
by the court, the winning party may file a petition
for mandamus to compel the legislative authority
to enact a law. (Municipality of Makati v. CA, G.R.
Nos. 89898-99, October 1, 1990)
The government cannot be made to pay

interest in money judgments against it, except
in the following instances
1. Exercise of the power of eminent domain

2. Erroneous collection of taxes
3. Where government agrees to pay interest
pursuant to law
Q: Keanu Lazzer filed an action directly in court

against the government seeking payment for a
parcel of land which the national government
utilized for a road widening project. Can the
government invoke the doctrine of non-
suitability of the state?
A: NO. When the government expropriates

property for public use without paying just
compensation, it cannot invoke its immunity from
suit. Otherwise, the right guaranteed in Sec. 9, Art.
III of the 1987 Constitution that private property
shall not be taken for public use without just
compensation will be rendered nugatory.
(Ministerio v. CFI, G.R. No. L-31635, August 31,
1971)
Q: Sps. Benigno sought to register their lot. The

RTC granted their petition. Arguing that the lot
is inalienable, the Republic, through the OSG,
appealed before the CA but moved four times
to extend the period for filing its appellant’s
brief. CA dismissed the OSG’s appeal. The OSG
filed its brief after moving to reconsider the
CA’s denial of its appeal. However, CA stood its
ground on its original decision. Does the OSG’s
failure to file the Republic’s appeal brief bind
the State?
A: NO. As a matter of doctrine, illegal acts of

government agents do not bind the State, and the
Government is never estopped from questioning
the acts of its officials, more so if they are

2019 GOLDEN NOTE S
Legislative Department
LEGISLATIVE DEPARTMENT b. On Appropriations [1987 Constitution,
Art. VI, Secs. 25 and 29(1&2)]
LEGISLATIVE POWER c. On Taxation (1987 Constitution, Art. VI,
Secs. 28 and 29, par. 3)
d. On Constitutional appellate jurisdiction of
SCOPE AND LIMITATIONS
SC (1987 Constitution, Art. VI, Sec. 30)
e. No law granting a title of royalty or
The following may exercise legislative power nobility shall be enacted (1987
1. Congress Constitution, Art. VI, Sec. 31).
2. Regional/Local Government Units f. No specific funds shall be appropriated or
3. The People through initiative and paid for use or benefit of any religion, sect,
referendum. (2002 Bar) etc., except for priests, etc., assigned to
AFP, penal institutions, etc. (1987
Limitations on the legislative power of
Constitution, Art. VI, Sec. 29[2])
Congress
b) Implied:
The Constitution itself provides limitations on the a. Prohibition against irrepealable laws
exercise of legislative powers. b. Non-delegation of powers
1. Substantive: limitations on the content of XPNs to Non-Delegation Doctrine:
laws.
i. Delegation to the President [1987
2. Procedural: limitations on the manner of Constitution, Art. VI, Sec. 23(2) and
passing laws. Sec. 28(2)]
3. Congress cannot pass irrepealable laws. ii. Delegation to the people (1987
4. Congress, as a general rule, cannot delegate Constitution, Art VI, Sec. 32)
its legislative power.
Procedural
XPN: See Delegation of Legislative Powers.
1. Only one subject, to be stated in the title of
the bill [1987 Constitution, Art. VI, Sec. 26(1)].
Powers of Congress 2. Three (3) readings on separate days; printed
copies of the bill in its final form to be
Legislative power distributed to its members 3 days before its
passage, except if the President certifies to its
The power or competence to propose, enact,
immediate enactment to meet a public
ordain, amend/alter, modify, abrogate or repeal calamity or emergency; upon its last reading,
laws. It is vested in the Congress which shall no amendment shall be allowed and the vote
consist of a Senate and a House of Representatives, thereon shall be taken immediately and the
except to the extent reserved to the people by the yeas and nays entered into the Journal [1987
provision on initiative and referendum. Constitution, Art. VI, Sec. 2(2)].
3. Appropriation bills, revenue bills, tariff bills,
Legislative powers of Congress bills authorizing the increase of public debt,
bills of local application and private bills shall
1. General plenary power (Art. VI, Sec. 1) originate exclusively in the House of
2. Specific power of appropriation Representatives. (1987 Constitution, Art. VI,
3. Taxation and expropriation Sec. 24)
4. Legislative investigation
5. Question hour Classes of legislative power
1. Original: Possessed by the people in their
Doctrine of Shifting Majority sovereign capacity i.e. initiative and
referendum.
For each House of Congress to pass a bill, only the 2. Delegated: Possessed by Congress and other
votes of the majority of those present in the legislative bodies by the Constitution.
session, there being a quorum, is required. 3. Constituent: The power to amend or revise
the Constitution.
Limitations on Legislative Powers 4. Ordinary: The power to pass ordinary laws.
Substantive PRINCIPLE OF NON-DELEGABILITY
a) Express:
a. Bill of Rights (1987 Constitution, Art. III)
19
POLITICAL LAW
GR: What has been delegated cannot be delegated. may be provided NOTE: Congress itself
by law). may by law increase
It is based upon the ethical principle that such the composition of the
delegated power constitutes not only as a right, HoR through the
but also as a duty to be performed by the delegate creation of new
through the instrumentality of his own judgment provinces,
and not through the intervening mind of another. redistricting, and
A further delegation of such power, unless attendant adjustments
permitted by the sovereign power, would in number of party-list
constitute a negation of this duty in violation of the representatives.
trust reposed in the delegate. (Cruz, supra at 160) Qualifications
(1993, 1999 Bar)
XPNS:
1. Natural-born
citizen of the
1.) Delegations to the People at large;
Philippines;
(a) R.A. 6735 – The Initiative and Referendum
2. At least 25 years
Act as authorized by the constitutional
of age on the day
mandate for the creation of a system of
of election
legislation by initiative and referendum
XPN: A youth sector
(b) A plebiscite is required in the creation,
nominee must be at
division, merger, abolition of province, city,
least twenty-five
municipality, or barangay or the substantial
(25) but not more
alteration of its boundary.
than thirty (30) years
1. Natural-born
of age on the day of
NOTE: These are more of reservations of power by citizen of the
the election. Once he
the people than delegations considering the fact Philippines;
attains the age of
that the people are repositories of all 2. At least 35 years
thirty (30) during his
governmental powers. of age on the day
term, he shall be
of election;
allowed to continue
2.) Emergency powers of the President; 3. Able to read and
in office until the
3.) Tariff powers of the President; write;
expiration of his
4.) Delegation to Administrative bodies of the 4. A registered voter;
term. [RA No. 7941,
power of subordinate legislation. 5. Resident of the
Sec. 9 (2)]
Philippines for not
3. Able to read and
HOUSES OF CONGRESS less than 2 years
write;
immediately
4. Except the party-
Composition of Congress preceding the day
list
of election. (Art. VI,
representatives, a
The Philippine Congress is bicameral in nature, Sec. 3)
registered voter in
composed of:
the district in
1. Senate NOTE:
which he shall be
2. House of Representatives Enumeration is
elected;
a. District representatives exclusive.
5. Resident thereof
b. Party-list representatives
for a period of not
less than 1 year
Composition, qualifications, and term of office
immediately
of members of Congress
preceding the day
of the election.
HOUSE OF (Art. VI, Sec. 6)
SENATE
REPRESENTATIVES
Composition NOTE:
24 Senators Not more than 250 Enumeration is
(elected at large members, unless exclusive.
by qualified otherwise fixed by Term of office
voters of the law. (2001 Bar)
Philippines as

2019 GOLDEN NOTE S
6 years, which shall 3 years, which shall Disqualifications of members of Congress
commence, unless begin, unless
otherwise provided by otherwise provided by HOUSE OF
SENATE
law, at noon on the law, at noon on the REPRESENTATIVES
30th day of June next 30th day of June next No Senator shall serve Shall not serve for more
following their following their for more than two (2) than three (3)
election. election. consecutive terms. consecutive terms.
Voluntary Voluntary renunciation
Term limit: Not more Term limit: Not more renunciation of the of the office for any
than 2 consecutive than 3 consecutive office for any length of length of time shall not
terms. terms. time shall not be be considered as an
considered as an interruption in the
Note: Senators have a interruption in the continuity of his service
term of office of six continuity of his for the full term for
years on a staggered service for the full which he was elected
basis - each set of term for which he was (Art. VI, Sec. 7). (2001
twelve senators end elected (Art. VI, Sec. 4). Bar)
their term three years
One who has been declared by competent
apart.
authority as insane or incompetent
In Imelda Romualdez-Marcos v. COMELEC, the Court One who has been sentenced by final
upheld the qualification of Mrs. Imelda Romuladez- judgment for: (SIR-18-M)
Marcos (IRM) despite her own declaration in her
certificate of candidacy that she had resided in the a. Subversion;
district for only seven (7) months, because of the b. Insurrection;
following: c. Rebellion;
d. Any offense for which he has been sentenced
1. A minor follows the domicile of his parents; to a penalty of not more than 18 months; or
Tacloban became IRM’s domicile of origin by e. A crime involving Moral turpitude, unless
operation of law when her father brought the given plenary pardon o granted amnesty (BP
family to Leyte; 881, Sec. 12).
2. Domicile of origin is lost only when:
a. there is actual removal or change of Expulsion of members of Congress
domicile
b. a bona fide intention of abandoning MEMBERS OF THE
the former residence and establishing SENATORS HOUSE OF
a new one REPRESENTATIVES
c. acts which correspond with the Expulsion by theE Expulsion by the House
purpose Senate with the with the concurrence
concurrence of 2/3 of of 2/3 of all its
3. The wife does not automatically gain the all its members. (1987 members. (1987
husband’s domicile because the term Constitution, Art. VI, Constitution, Art. VI,
“residence” in Civil Law does not mean the Sec. 16, par. 3) Sec. 16, par. 3)
same thing in Political Law; when IRM
married Marcos in 1954, she kept he domicile NOTE: The Congress cannot validly amend or
of origin and merely gained a new home, not otherwise modify these qualification standards, as
a domicilium necessarium (necessary it cannot disregard, evade, or weaken the force of
domicile); a constitutional mandate, or alter or enlarge the
4. Even assuming that she gained a new Constitution. (Social Justice Society v. DDB and
domicile after her marriage and acquired the PDEA, G.R Nos. 157870, 158633, 161658, Nov. 3,
right to choose a new one only after her 2008)
husband dies, her acts following her return to
the country clearly indicates that she chose Rule on voluntary renunciation of office
Tacloban, her domicile of origin, as her
domicile of choice. (Imelda Romualdez- Voluntary renunciation of office for any length of
Marcos v. COMELEC, G.R. No. 119976, Sept. 18, time shall not be considered as an interruption in
1995) the continuity of his service for the full term for
21
POLITICAL LAW
which he was elected. (1987 Constitution, Art. VI, months prior to to election prohibits
Secs. 4 and 7) election does not the party-list
prevent a district representative from
Composition of the HoR (2002, 2007 Bar) representative from listing as
running under his representative under
DISTRICT PARTY-LIST new party. his new party or
REPRESENTATIVE REPRESENTATIVE organization.
As to who will vote
Elected by the Elected nationally DISTRICT REPRESENTATIVES AND
constituents of his (those garnering at QUESTIONS OF APPORTIONMENT
respective district. least 2% of all votes cast
for the party-list system District representatives
are entitled to 1 seat,
which is increased Those who are elected from legislative districts
according to apportioned among the provinces, cities and the
proportional Metropolitan Manila area.
representation, but is in
no way to exceed 3 Apportionment of legislative districts
seats per organization.)
Residency requirement Legislative districts are apportioned among the
Must be a resident of No special residency provinces, cities, and the Metropolitan Manila
his legislative district requirement. area. They are apportioned in accordance with the
for at least 1 year number of their respective inhabitants and on the
immediately before basis of a uniform and progressive ratio. (1987
the election. Constitution, Art. VI, Sec. 5)
Name in the ballot
Elected personally, Voted upon by party or Apportionment is the determination of the
by name. organization. number of representatives which a State, country,
Effect of change in party affiliation or other subdivision may send to a legislative
Does not lose seat Loses his seat, in which body. It is the allocation of seats in a legislative
case he will be body in proportion to the population; the drawing
substituted by another of voting district lines so as to equalize population
qualified person in the and voting power. (Bagabuyo v. COMELEC)
party or organization
based on the list Each city with a population of at least 250,000
submitted to the shall have at least one representative. Each
COMELEC. province, irrespective of the number of
As to vacancy inhabitants, shall have at least one representative.
A special election A substitution will be
may be held made within the party, While Sec. 5(3) of Art. VI requires a city to have a
provided that the based on the list minimum population of 250,000 to be entitled to
vacancy takes place submitted to the one representative; it does not have to increase its
at least 1 year before COMELEC. population by another 250,000 to be entitled to an
the next election. additional district. (Senator Aquino III v. COMELEC,
G.R. No. 189793, April 7, 2010)
Effect of defeat in the election
A district A party-list
NOTE: When one of the municipalities of a
representative is not representative cannot
congressional district is converted to a city large
prevented from sit if he ran and lost in
enough to entitle it to one legislative district, the
running again as a the previous election.
incidental effect is the splitting of district into two.
district
The incidental arising of a new district in this
representative if he
manner need not be preceded by a census. (Tobias
lost in the previous
v. Abalos, G.R. No. L-114783, Dec. 8, 1994)
election.
Effect of change in party affiliation
Essence of apportionment
to the upcoming elections
A change in A change in affiliation
affiliation within within 6 months prior

2019 GOLDEN NOTE S
The underlying principle behind the rule for Reapportionment may be made through a special
apportionment is the concept of equality of law. The Constitution did not preclude Congress
representation, which is a basic principle of from increasing its membership by passing a law,
republicanism. One man’s vote should carry as other than a general reapportionment of the law.
much weight as the vote of every other man. To hold that reapportionment can only be made
through a general apportionment law, with a
NOTE: The question of the validity of an review of all the legislative districts allotted to
apportionment law is a justiciable question. each local government unit nationwide, would
(Macia v. Comelec, G.R. No. L-18684, Sept. 14, 1961) create an inequitable situation where a new city or
province created by Congress will be denied
Conditions for apportionment legislative representation for an indeterminate
period of time. Thus, a law converting a
1. Elected from legislative districts which are municipality into a highly-urbanized city
apportioned in accordance with the number automatically creates a new legislative district
of inhabitants of each area and based on a and, consequently, increases the membership of
uniform and progressive ratio. the HoR. (Mariano, Jr. v. COMELEC, G.R. No. 118577,
2. Uniform– Every representative of Congress March 7, 1995)
shall represent a territorial unit with more or
less a population of 250,000. All the other NOTE: The Constitution does not require a
representatives shall have the same or nearly plebiscite for the creation of a new legislative
the same political constituency so much so district by a legislative reapportionment. It is
that their votes will constitute the popular required only for the creation of new local
majority. government units. (Bagabuyo v. COMELEC, 2008)
3. Progressive – It must respond to the change (2015 Bar)
in times. The number of House
representatives must not be so big as to be Gerrymandering (2014 Bar)
unwieldy (Let us say, there is a growth in
population. The ratio may then be increased. Formation of one legislative district out of
From 250,000 constituents/1 representative it separate territories for the purpose of favoring a
may be reapportioned to 300, 000 candidate or a party. It is not allowed because the
constituents/1 representative). Constitution provides that each district shall
4. Each city with a population of at least comprise, as far as practicable, contiguous,
250,000 or each province, irrespective of compact and adjacent territory.
number of inhabitants, shall at least have one
representative. Q: Congress enacted a law creating the
legislative district of Malolos based on a
GR: There must be proportional certification of the demographic projection
representation according to the number from NSO stating that by 2010, Malolos is
of their constituents/inhabitants. expected to reach the population of 250,000,
XPN: In one city-one representative/one hence entitling it to one legislative district. Is
province-one representative rule. the law valid?
5. Legislative districts shall be reapportioned A: NO. Congress cannot establish a new legislative
by Congress within 3 years after the return of district based on a projected population of the
each census. (Senator Aquino III v. COMELEC, National Statistics Office (NSO) to meet the
G.R. No. 189793, April 7, 2010) population requirement of the Constitution in
the reapportionment of legislative districts.
Manner of reapportionment
A city that has attained a population of 250,000 is
Reapportionment is the realignment or change in entitled to a legislative district only in the
legislative districts brought about by change in “immediately following election.” In short, a city
legislative districts brought about by changes in must first attain the 250,000 population, and
population and mandated by the constitutional thereafter such city shall have a district
requirement of equality of representation. representative in the immediately following
(Bagabuyo v. COMELEC) election. There is no showing in the present case
that the City of Malolos has attained or will attain
a population of 250,000, whether actual or
23
POLITICAL LAW
projected, before May 10, 2010 elections. Thus, the legislative district is not a political subdivision
City of Malolos is not qualified to have a legislative through which functions of government are
district of its own under Sec. 5(3), Art. VI of the carried out. It can more appropriately be
1987 Constitution and Sec 3 of the Ordinance described as a representative unit that merely
appended to the 1987 Constitution. (Aldaba v. delineates the areas occupied by the people who
COMELEC, G.R. No. 188078, January 25, 2010) will choose a representative in their national
affairs. A plebiscite is required only for the
Q: Congress enacted a law reapportioning the creation, division, merger, or abolition of local
composition of the Province of Camarines Sur government units. (Bagabuyo v. COMELEC, G.R. No.
and created legislative districts thereon. 176970, December 8, 2008)
Frankie challenged the law because it runs
afoul to the constitutional requirement that PARTY-LIST SYSTEM (RA No. 7941)
there must be at least a population of 250,000
to create a legislative district. COMELEC argued Party-list system
that the mentioned requirement does not
apply to provinces. Is the 250,000 population Mechanism of proportional representation in the
standard an indispensable requirement for the election of representatives to the HoR from
creation of a legislative district in provinces? national, regional and sectoral parties or
organizations or coalitions thereof registered with
A: NO. Sec. 5(3), Art. VI of the 1987 Constitution the COMELEC.
which requires 250,000 minimum population
apply only for a city to be entitled to a NOTE: Party-list representatives shall constitute
representative but not for a province. 20% of the total number of representatives in the
HoR including those under the party list. (1987
The provision draws a plain and clear distinction Constitution, Art. VI, Sec. 5, par. 2) (2007 Bar)
between the entitlement of a city to a district, on
one hand, and the entitlement of a province to a Purpose of the party-list system
district on the other. For while a province is
entitled to at least a representative, with nothing To make the marginalized and the
mentioned about population, a city must first meet underrepresented not merely passive recipients of
a population minimum of 250,000 in order to be the State’s benevolence, but active participants in
similarly entitled. (Aquino and Robredo v. the mainstream of representative democracy.
COMELEC, G.R. No. 189793, April 7, 2010) (Ang Bagong Bayani v. COMELEC, G.R. No. 147589,
June 26, 2001)
Q: Congress passed a law providing for the
apportionment of a new legislative district in To democratize political power by giving political
CDO City. COMELEC subsequently issued a parties that cannot win in legislative district
resolution implementing said law. Jovi now elections a chance to win seats in the HoR. (Atong
assails the resolution, contending that rules Paglaum v. COMELEC, G.R. 203766, April 2, 2013)
for the conduct of a plebiscite must first be laid
down, as part of the requirements under the Different parties under the party-list system
Constitution. According to Jovi, the
apportionment is a conversion and division of No votes cast in favor of political party,
CDO City, falling under Sec. 10 Art. X of the organization or coalition shall be valid except for
Constitution, which provides for the rule on those registered under the party-list system.
creation, division, merger, and abolition of
LGUs. Decide. 1. Political party – Organized group of citizens
advocating ideology or platform, principles
A: There is no need for a plebiscite. CDO City and policies for the general conduct of
politically remains a single unit and its government and which, as the most
administration is not divided along territorial immediate means of securing their adoption,
lines. Its territory remains whole and intact. Thus, regularly nominates and supports certain of
Sec. 10, Art. X of the Constitution does not come its leaders and members as candidate in
into play. public office. (Ang Bagong Bayani v.
COMELEC and Bayan Muna v. COMELEC, G.R.
No plebiscite is required for the apportionment or Nos. 147589 and 147613, June 26, 2001, June
reapportionment of legislative districts. A 26, 2001)

2019 GOLDEN NOTE S
2. National party – Its constituency is spread To require all national and regional parties under
over the geographical territory of at least a the party-list system to represent the
majority of regions. “marginalized and underrepresented” is to
3. Regional party – Its constituency is spread deprive and exclude, by judicial fiat, ideology-
over the geographical territory of at least a based and cause-oriented parties from the party-
majority of the cities and provinces list system. To exclude them from the party-list
comprising the region. system is to prevent them from joining the
4. Sectoral party – Organized group of citizens parliamentary struggle, leaving as their only
belonging to any of the following sectors: option armed struggle. To exclude them from the
labor, peasant, fisherfolk, urban poor, party-list system is, apart from being obviously
indigenous, cultural communities, elderly, senseless, patently contrary to the clear intent and
handicapped, women, youth, veterans, express wording of the 1987 Constitution and RA
overseas workers and professionals, whose 7941. (Atong Paglaum v. COMELEC, ibid.)
principal advocacy pertains to the special
interest and concerns of their sectors. NOTE: Major political parties cannot participate in
5. Sectoral Organization – Refers to a group of the party-list elections since they neither lack
citizens who share similar physical attributes “well-defined political constituencies” nor
or characteristics, employment, interest or represent “marginalized and underrepresented”
concerns. sectors. (Atong Paglaum v. COMELEC, ibid.)
6. Coalition – Refers to an aggregation of duly
registered national, regional, sectoral parties However, the participation of major political
or organizations for political and/or election parties may be through their sectoral wings, a
purposes. majority of whose members are “marginalized and
underrepresented” or lacking in “well-defined
Composition of the party-list system political constituencies.” (Atong Paglaum v.
COMELEC, ibid.)
1. National parties or organizations
2. Regional parties or organizations; and Nomination of party-list representatives
3. Sectoral parties or organizations.
Each registered party, organization or coalition
National and regional parties or organizations are shall submit to the COMELEC not later than 45
different from sectoral parties or organizations. days before the election a list of names, not less
National and regional parties or organizations than five (5), from which party-list representative
need not be organized along sectoral lines and shall be chosen in case it obtains the required
need not represent any sector. number of votes.
The party-list system is not solely for the Limitations

benefit of sectoral parties
1. A person may be nominated in one (1) list
Sec. 5(1), Art. VI of the Constitution is crystal-clear only.
that there shall be “a party-list system of 2. Only persons who have given their consent in
registered national, regional, and sectoral parties writing may be names in the list
or organizations,” had the framers of the 1987 3. The list shall not include:
Constitution intended national and regional a. any candidate for any elective office; or
parties to be at the same time sectoral, they would b. a person who has lost his bid for elective
have stated “national and regional sectoral office in the immediately preceding
parties.” They did not, precisely because it was election;
never their intention to make the party-list system
exclusively sectoral. National and regional parties 4. No change shall be allowed after the list shall
are separate from sectoral parties and need not be have been submitted to the COMELEC.
organized along sectoral lines nor represent any XPN: Change may be allowed in cases
particular sector. (Atong Paglaum v. COMELEC, G.R. where:
No. 203766, April 2, 2013) a. nominees dies;
b. withdraws in writing his nomination;
National and Regional parties need not or
represent the “marginalized and c. becomes incapacitated
underrepresented” sectors
25
POLITICAL LAW
NOTE: Incumbent sectoral representatives in the c. Sectoral parties or organizations.
HoR who are nominated in the party-list system
shall not be considered resigned. 2. National parties or organizations and
regional parties or organizations do not
Effect of Failure to Submit a List of Nominees need to organize along sectoral lines and
do not need to represent any
Failure to submit the list of five (5) nominees "marginalized and underrepresented"
before the election warrants the cancellation of sector.
the party’s registration. (Cocofed-Philippines
Coconut Producers Federation, Inc. v. COMELEC, 3. All political parties must register under the
G.R. No. 207026, Aug. 6, 2013) party-list system and do not field
candidates in legislative district elections.
Qualifications of a party-list nominee
A political party, whether major or not,
1. Natural- born citizen of the Philippines; that fields candidates in legislative
2. Registered voter; district elections can participate in party-
3. Resident of the Philippines for at least 1 year list elections only through its sectoral
immediately preceding the day of the wing that must separately register under
election; the party-list system. The sectoral wing is
4. Able to read and write; by itself an independent sectoral party; it
5. Bona fide member of the party or is linked to a political party through a
organization which he seeks to represent at coalition. (2015 Bar)
least 90 days preceding election day; and
4. Sectoral parties or organizations may either
NOTE: In the case of sectoral parties, to be be “marginalized and underrepresented”
a bona fide party-list nominee, one must or lacking in “well-defined political
either belong to the sector represented, or constituencies.” It is enough that their
have a track record of advocacy for such principal advocacy pertains to the special
sector. (Atong Paglaum v. COMELEC, ibid.) interests and concerns of their sector.
6. At least 25 years of age. (For youth sector NOTE: Those “marginalized and
nominees, at least 25 years and not more underrepresented” include labor, peasant,
than 30 years of age) fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, and
NOTE: Any youth representative who attains overseas workers. (LUV-OF-HIP)
the age of 30 during his term shall be allowed
to continue in office until the expiration of his Those lacking in “well-defined political
term. constituencies” include professionals, the
elderly, women, and the youth. (PEWY)
Disclosure of Names of Party-List Nominees
5. A majority of the members of sectoral parties
The COMELEC has a constitutional duty to disclose or organizations that represent the
and release the names of the nominees of the “marginalized and underrepresented” or
party-list groups, in accordance with Sec. 7, Art. III those representing parties or organizations
of the 1987 Constitution on the right of the people that lack “well-defined political
to information on matters of public concern as constituencies” must belong to the sector
complemented by the policy of full disclosure and they respectively represent.
transparency in Government. (Bantay RA 7941 v.
COMELEC, G.R. No. 177271, G.R. No. 177314, May 4, 6. The nominees of SECTORAL parties or
2007) organizations that represent the
“marginalized and underrepresented” or that
Guidelines in determining who may represent those who lack “well-defined
participate in the party-list elections political constituencies,” either must belong
to their respective sectors, or must have a
1. Three different groups may participate: track record of advocacy for their
a. National; respective sectors.
b. Regional; and

2019 GOLDEN NOTE S
7. The nominees of NATIONAL and REGIONAL Number of
seats available
parties or organizations must be bona-fide to legislative Number of seats
members of their respective parties or districts
0.8
× 0.20 = available to party-
organizations. list representatives
( )
8. National, regional, and sectoral parties or
organizations shall not be disqualified if Simpler formula: No. of seats available to
some of their nominees are disqualified, legislative districts DIVIDED BY 4
provided that they have at least one
nominee who remains qualified. (Ibid.) The above formula allows the corresponding
increase in the number of seats available for party-
NOTE: It is the parties or organizations which are list representatives whenever a legislative district
voted for, not their candidates. However, it is the is created by law.
party-list representatives who are seated or
elected into office, not their parties or After prescribing the ratio of the number of party-
organizations. (Abayon v. HRET, G.R. No. 189466, list representatives to the total number of
Feb. 11, 2010) representatives, the Constitution left the manner
of allocating the seats available to party-list
Effect of the change in affiliation of any party- representatives to the wisdom of the legislature.
list representative (BANAT v. COMELEC, G.R. No. 179271, April 21,
2009)
Any elected party-list representative who changes
his party-list group or sectoral affiliation during Guidelines in the allocation of seats for party-
his term of office shall forfeit his seat. (Amores v. list representatives under Sec. 11 of RA 7941
HRET, G.R. No. 189600, June 29, 2010) (2014 Bar)
NOTE: If he changes his political party or sectoral 1. The parties, organizations, and coalitions
affiliation within 6 months before an election, he shall be ranked from the highest to the
shall not be eligible for nomination as party-list lowest based on the number of votes they
representative under his new party or garnered during the elections.
organization. (Amores v. HRET, Ibid.) 2. The parties, organizations, and coalitions
receiving at least 2% of the total votes cast
Vacancy in the seat reserved for party-list for the party-list system shall be entitled to
representatives one guaranteed seat each.
3. Those garnering sufficient number of votes,
It shall be automatically occupied by the next according to the ranking in paragraph 1, shall
representative from the list of nominees in the be entitled to additional seats in proportion
order submitted by the same party to the to their total number of votes until all the
COMELEC and such representative shall serve for additional seats are allocated.
the unexpired term. If the list is exhausted, the 4. Each party, organization, or coalition shall be
party, organization, or coalition concerned shall entitled to not more than 3 seats.
submit additional nominees.
NOTE: In computing the additional seats, the
Formula mandated by the Constitution in guaranteed seats shall no longer be included
determining the number of party-list because they have already been allocated at one
representatives seat each to every two-percenter. Thus, the
remaining available seats for allocation as
The number of seats available to party-list “additional seats” are the maximum seats
representatives is based on the ratio of party-list reserved under the party-list system less the
representatives to the total number of guaranteed seats. Fractional seats are
representatives. Accordingly, we compute the disregarded in the absence of a provision in RA
number of seats available to party-list 7941 allowing for a rounding off of fractional
representatives from the number of legislative seats. (BANAT v. COMELEC, Ibid.)
districts.
2% threshold as regards the allocation of
additional seats is not valid anymore
27
POLITICAL LAW
The Court strikes down the 2% threshold only in Its basic defect lies in its characterization of the
relation to the distribution of the additional seats non-participation of a party-list organization in an
as found in the 2nd clause of Sec. 11(b) of RA 7941. election as similar to a failure to garner the 2%
The 2% threshold presents an unwarranted threshold party-list vote.
obstacle to the full implementation of Sec. 5(2),
Art. VI of the Constitution and prevents the The Court cannot sustain PGBI’s delisting from the
attainment of the “broadest possible roster of registered parties, organizations or
representation of party, sectoral or group coalitions under the party-list system. Clearly, the
interests in the House of Representatives.” Court cannot allow PGBI to be prejudiced by the
(BANAT v. COMELEC, Ibid.) continuing validity of an erroneous ruling. Thus,
the Court now abandons Minero and strikes it out
NOTE: The 2% threshold is constitutional only from our ruling case law. (PGB v. COMELEC, G.R. No.
insofar as the determination of the guaranteed 190529, April 29, 2010)
seat is concerned.
LEGISLATIVE PRIVILEGES, INHIBITIONS AND
Refusal and/or Cancellation of Registration DISQUALIFICATIONS
The COMELEC may, motu proprio or upon a Immunity from Arrest

verified complaint of any interested party, refuse
or cancel, after due notice and hearing, the Grants the legislators the privilege from arrest
registration of any national, regional or sectoral while Congress is “in session” with respect to
party, organization or coalition or any of the offenses punishable by NOT more than 6 years of
following grounds: imprisonment, (1987 Constitution, Art. VI, Sec.
11), whether or not he is attending the session.
1. It is a religious sect or denomination, (People v. Jalosjos, G.R. Nos. 132875-76, February 3,
organization or association organized for 2000)
religious purposes;
2. It advocates violence or unlawful means to Purpose of Parliamentary Immunities
seek its goals;
3. It is a foreign party or organization; It is not for the benefit of the officials; rather, it is
4. It is receiving support from any foreign to protect and support the rights of the people by
government, foreign political party, ensuring that their representatives are doing their
foundation, organization, whether directly or jobs according to the dictates of their conscience
through any of its officers or members, or and to ensure the attendance of Congressman.
indirectly through third parties, for partisan
election purposes; Legislative Privilege
5. It violates or fails to comply with laws, rules
or regulations relating to elections No member shall be questioned or held liable in
6. It declares untruthful statements in its any forum other than his respective Congressional
petition; body for any debate or speech in Congress or in
7. It has ceased to exist for at least one (1) year; any committee thereof. (1987 Constitution, Art. VI,
8. It fails to participate in the last two (2) Sec. 11; Pobre v. Sen. Santiago, August 25, 2009)
preceding elections;
9. It fails to obtain at least 2% of the votes cast Limitations on Legislative Privilege
under the party-list system in the two (2)
preceding elections for the constituency in 1. Protection is only against the forum other
which it has registered than the Congress itself. Thus, for defamatory
remarks, which are otherwise privileged, a
The Minero Ruling is erroneous member may be sanctioned by either the
Senate or the HoR, as the case may be.
The Minero Ruling provides that a party list 2. The “speech or debate” must be made in
organization which does not participate in an performance of their duties as members of
election, necessarily gets, by default, less than 2% Congress.
of the party-list votes. Said ruling isan erroneous
application of Sec. 6(8) of RA 7941 [Party-List Requirements for the privilege of speech and
System Act]. debate to operate

2019 GOLDEN NOTE S
1. Remarks or comments are made while in not a legislative act, but “political in nature,”
session; and outside of the ambit of the immunity conferred
2. Must be made in connection with the under the Speech or Debate Clause in the 1987
discharge of official duties Constitution. The privilege arises not because of
the statement made by a lawmaker, but because it
Coverage of speech or debate is uttered in furtherance of legislation. (Sen.
Antonio Trillanes vs. Hon. Evangeline Castillo-
It includes utterances made by Congressmen in Marigomen, G.R. No. 223451, March 14, 2018)
the performance of their official functions, such as
speeches delivered, statements made, or votes Purpose of legislative privilege
cast in the halls of Congress, while the same is in
session, as well as bills introduced in Congress, To ensure the effective discharge of functions of
whether the same is in session or not, and other Congress.
acts performed by Congressmen, either in
Congress or outside the premises housing its NOTE: The purpose of the privilege is to ensure
offices, in the official discharge of their duties as the effective discharge of functions of Congress.
members of Congress and of Congressional The privilege may be abused but it is said that such
Committees duly authorized to perform its is not so damaging or detrimental as compared to
functions as such, at the time of the performance the denial or withdrawal of such privilege.
of the acts in question. (Jimenez v. Cabangbang,
G.R. No. L-15905, August 3, 1966) The senator-lawyer’s privilege speech is not
actionable criminally or be subject to a
Q: The Senate Committee on Accountability of disciplinary proceeding under the Rules of Court.
Public Officials and Investigation conducted an The Court, however, would be remiss in its duty if
investigation, in aid of legislation, regarding it let the Senator’s offensive and disrespectful
the alleged P1.601 billion overpricing of the language that tended to degrade the institution
new 11-storey Makati City Hall II Parking pass-by. It is imperative on the Court’s part to re-
Building. During media interviews in the instill in Senator/Atty. (Santiago) her duty to
Senate, particularly during gaps and breaks in respect courts of justice, especially this Tribunal,
the plenary hearings, Sen. Trillanes expressed and remind her anew that parliamentary non-
his opinion that Antonio Tiu appears to be a accountability thus granted to members of
“front” or “nominee” or is acting as a “dummy” Congress is not to protect them against
of the actual and beneficial owner of the prosecutions for their own benefit, but to enable
Hacienda Binay. As such, Tiu filed a complaint them, as the people’s representatives, to perform
for damages against Sen. Trillanes. the functions of their office without fear of being
Consequently, Sen. Trillanes asked for the made responsible before the courts or other
dismissal of the case claiming he enjoys forums outside the congressional hall. It is
parliamentary immunity. Is Sen. Trillanes intended to protect members of congress against
correct? government pressure and intimidation aimed at
influencing the decision-making prerogatives of
A: NO. The remarks of Sen. Trillanes fall outside Congress and its members. (Pobre v. Sen. Defensor-
the privilege of speech or debate under Sec. 11, Santiago, A.C. No. 7399, August 25, 2009)
Art. VI of the 1987 Constitution. The statements
were clearly not part of any speech delivered in Congress “in recess”
the Senate or any of its committees. They were not
also spoken during any debate. It cannot likewise If the recess was called for in between a regular or
be successfully contended that they were made in special session, the Congress is still considered in
the official discharge or performance of Sen. session. But if the recess was the 30-day
Trillanes’ duties as a Senator, as the remarks were compulsory recess, Congress is not in session.
not part of or integral to the legislative process. To (1987 Constitution, Art. VI, Sec. 15)
participate in or respond to media interviews is
not an official function of any lawmaker; it is not Prohibitions attached to a legislator during his
demanded by his sworn duty nor is it a component term
of the process of enacting laws. A lawmaker may
well be able to discharge his duties and legislate INCOMPATIBLE
FORBIDDEN OFFICE
without having to communicate with the press. A OFFICE
lawmaker’s participation in media interviews is
29
POLITICAL LAW
1st sentence of Sec. 2nd sentence of Ethics, Page 34)
13, Art.VI Sec. 13, Art. VI
Senator or any member of HoR 2. Upon assumption of office, all members of
May not hold any Cannot be appointed to the Senate and HoR must make a full
other office or any office which have disclosure of their financial and business
employment in the been created, or the interests. They shall notify the House
Government, during emoluments thereof concerned of a potential conflict in interest
his term without increased during the that may arise from the filing of a proposed
forfeiting his seat term for which he was legislation of which they are authors. (1987
elected Constitution, Art. VI, Sec. 12) (2004, 2010
NOTE: After such term, Bar)
and even if he is re-
elected, the Disqualifications attached to Senators and
disqualification no Representatives and their applications
longer applies and he
may therefore be DISQUALIFICATION WHEN APPLICABLE
appointed to the office Incompatible Office During his term
Automatically forfeits Even if he is willing to
seat upon the forfeit his seat, he may If he does so, he forfeits
member’s not be appointed to his seat (1987
assumption of such said office Constitution, Art. VI,
other office Purpose: to prevent Sec. 13)
XPN: holds other trafficking in public Forbidden Office If the office was created
office in ex-officio office. or the emoluments
capacity thereof increased
More of an More of a during the term for
inhibition prohibition which he was elected
(1987 Constitution, Art.
Rule on increase in salaries of members of VI, Sec. 13)
Congress Cannot personally During his term of
appear as counsel office (1987
Increase in the salaries shall take effect after the before any court of Constitution, Art. VI,
expiration of the full term of all the members of the justice, electoral Sec. 14)
Senate and the House of Representatives tribunal, quasi-
approving such increase. (1987 Constitution, Art. judicial and
VI, Sec. 10) administrative
bodies. (2004 Bar)
Particular inhibitions attached to the Cannot be During his term of
respective offices of Senators and financially office (1987
Representatives interested, directly Constitution, Art. VI,
or indirectly, in any Sec. 14)
1. From “personally” appearing as counsel contract with or in
before any court of justice or before the any franchise, or
Electoral Tribunals, or quasi-judicial or other special privilege
administrative bodies. (1987 Constitution, granted by the
Art. VI, Sec. 14) (2004 Bar) Government. (2004
Bar)
NOTE: Since the practice of law covers a wide Cannot intervene in When it is for his
range of legislative activities (Cayetano v. any matter before pecuniary benefit or
Monsod, G.R. No. 100113, Sept. 3, 1991) the any office of the where he may be called
Senator or member of House of the Gov’t. (2004 Bar) upon to act on account
Representatives is allowed to engage in other of his office. (1987
aspects of the law practice such as the giving Constitution, Art. VI,
of legal advice to clients, negotiating Sec. 14)
contracts in behalf of clients which
necessitates legal knowledge, preparation of DISCIPLINE OF MEMBERS
documents and similar others. (Pineda, Legal

2019 GOLDEN NOTE S
Disciplinary power of Congress
Rules regarding the passage of bills
Each house may punish its members for disorderly
behavior and, with concurrence of 2/3 of all its 1. No bill passed by either House shall become
members, suspend, for not more than 60 days, or a law unless it has passed 3 readings on
expel a member. (1987 Constitution, Art. VI, Sec. 16, separate days.
par. 3) (1993, 2002 Bar) 2. Printed copies of the bill in its final form
should be distributed to the Members 3 days
Determination of disorderly behavior before its passage
3. Upon the last reading of a bill, no amendment
The House of Representatives is the judge of what thereto shall be allowed.
constitutes disorderly behavior. The courts will 4. The vote on the bill shall be taken
not assume jurisdiction in any case which will immediately after the last reading of a bill.
amount to an interference by the judicial 5. The yeas and the nays shall be entered in the
department with the legislature. (Osmeña v. Journal.
Pendatun, G.R. No. L-17144, October 28, 1960)
XPN: The certification of the President, due to the
NOTE: Members of Congress may also be necessity of its immediate enactment to meet a
suspended by the Sandiganbayan or by the Office public calamity or emergency, dispenses with the
of the Ombudsman. The suspension in the reading on separate days and the printing of the
Constitution is different from the suspension bill in the final form before its final approval
prescribed in RA 3019 (Anti-Graft and Corrupt (Tolentino v. Secretary of Finance, G.R. No. 115455,
Practices Act). The latter is not a penalty but a October 30, 1995).
preliminary preventive measure and is not
imposed upon the petitioner for misbehavior as a Instances when a bill becomes a law (1991,
member of Congress. (Santiago v. Sandiganbayan, 1993, 1996 Bar)
G.R. No. 128055, April 18, 2001)
1. Approved and signed by the President
Preventive suspension is not a penalty (2015 2. Presidential veto overridden by 2/3 vote of
Bar) all members of both Houses
3. Failure of the President to veto the bill and to
A court-ordered preventive suspension is a return it with his objections to the House
preventive measure that is different and distinct where it originated, within 30 days after the
from the suspension ordered by the HoR for date of receipt
disorderly behavior which is a penalty. Such 4. A bill calling a special election for President
House-imposed sanction is intended to enforce and Vice-President under Sec. 10. Art. VII
discipline among its members. (Paredes, becomes a law upon its approval on the third
Jr. v. Sandiganbayan, G.R. No. 118354, August 8, reading and final reading.
1995)
One bill-one subject rule
NOTE: The suspension under the Anti-Graft Law is
mandatory, imposed not as a penalty but as a Every bill passed by the Congress shall embrace
precautionary measure to prevent the accused only one subject. The subject shall be expressed in
public officer from frustrating his prosecution. It is the title of the bill. This rule is mandatory.
incidental to the criminal proceedings before the
court. NOTE: The purposes of such rule are:
The House-imposed sanction on the other hand, is 1. To prevent hodgepodge or log-rolling

a penalty for disorderly behavior. legislation;
2. To prevent surprise or fraud upon the
Thus, the order of suspension in the Anti-Graft legislature; and
Law is distinct from the power of the Congress 3. To fairly apprise the people of the subjects of
under the Constitution to discipline its own ranks. legislation. (Central Capiz v. Ramirez, G.R. No.
(De Venecia Jr., v. Sandiganbayan, G.R. No. 130240, 16197, March 12, 1920)
February 5, 2002)
Determination of the sufficiency of the title
PROCESS OF LAW-MAKING
31
POLITICAL LAW
It suffices if the title should serve the purpose of ARMM regional officials to the second Monday
the constitutional demand that it informs the of September 2001 unconstitutional by giving
legislators, the persons interested in the subject of it a character of an irrepealable law?
the bill, and the public, of the nature, scope and
consequences of the proposed law and its A: YES. The supermajority (2/3) voting
operation; thus, prevent surprise or fraud upon requirement required under Sec. 1, Art. XVII of RA
the legislators. 9054 (second Organic Act of ARMM) must be
struck down for giving said law the character of an
Test: Whether or not it is misleading; either in irrepealable law by requiring more than what the
referring to or indicating one subject where Constitution demands.
another or different one is really embraced in the
act, or in omitting any expression or indication of Sec. 16(2), Art. VI of the Constitution provides that
the real subject or scope of the act. (Lidasan v. a “majority of each House shall constitute a
COMELEC, G.R. No. L-28089, Oct. 25, 1967) quorum to do business.” In other words, if
majority of the members of the House of
Number of readings before becoming a law Representatives or the Senate are present, these
(1996 Bar) bodies have the quorum needed to conduct
business and hold session. Within a quorum, a
During the First Reading, only the title of the bill vote of majority is generally sufficient to enact
is read, then it is passed to the proper committee laws or approve acts.
for study. On the Second Reading, the entire text
is read, and debates and amendments are held. On In contrast, Sec. 1, Art. XVII of RA 9054 requires a
the Third Reading, only the title is read, and votes vote of no less than 2/3 of the Members of the
are taken immediately thereafter. House of Representatives and of the Senate, voting
separately, in order to effectively amend RA 9054.
Each bill must pass 3 readings each in both Clearly, this requirement is higher than what the
Houses. In other words, there must be a total of 6 Constitution requires for the passage of bills and
readings. served to restrain the plenary powers of Congress
to amend, revise or repeal the laws it had passed.
GR: Each reading shall be held on separate days
and printed copies thereof in its final form shall be While a supermajority is not a total ban against
distributed to its Members, 3 days before its repeal, it is a limitation in excess of what the
passage. Constitution requires on the passage of bills and is
constitutionally obnoxious because it significantly
XPN: If a bill is certified as urgent by the President constricts the future legislators’ room for action
as to the necessity of its immediate enactment to and flexibility. (Abas Kida v. Senate, G.R. No.
meet a public calamity or emergency, the 3 196271, Oct. 18, 2011)
readings can be held on the same day [1987
Constitution, Art. VI, Sec. 26(2)] NOTE: Every legislative body may modify or
abolish the acts passed by itself or its
Reasons for the “three readings on separate predecessors. This legislature cannot bind a future
days” rule legislature to a particular mode of repeal. It cannot
declare in advance the intent of subsequent
To prevent hasty and improvident legislation and legislatures or the effect of subsequent legislation
afford the legislators time to study and deliberate upon existing statutes. (Abas Kida v. Senate, ibid.)
the measures. The two-fold purpose:
The Bicameral Conference Committee
1. To inform the legislators of the matters they
shall vote on; and In a bicameral system, bills are independently
2. To give them notice that a measure is in processed by both Houses of Congress. It is not
progress through enactment process. (Abas unusual that the final version approved by one
Kida, v. Senate, G.R. No. 196271, October 18, House differs from what has been approved by the
2011) other.
Q: Is the supermajority vote requirement The “conference committee,” consisting of

under R.A. 9054, the second Organic Act of members nominated from both Houses, is an
ARMM which reset the regular elections for the extra-constitutional creation of Congress whose

2019 GOLDEN NOTE S
function is to propose to Congress ways of settling,
reconciling or threshing out conflicting provisions Every bill passed by Congress must be presented
found in the Senate version and in the House to the President for approval or veto. In the
version of a bill. (Opinion of J. Callejo, Sr., ABAKADA absence of presentment to the President, no bill
v. Ermita, G.R. No. 168056, September1, 2005) passed by Congress can become a law.
Extent of the power of the Committee Rule on presidential veto
The conferees are not limited to reconciling the GR: If the President disapproves a bill enacted by
differences in the bill but may introduce new Congress, he should veto the entire bill. He is not
provisions germane to the subject matter or may allowed to veto separate items of a bill.
report out an entirely new bill on the subject.
(Tolentino v. Sec. of Finance, G.R. No, 115455, XPN: Item-veto is allowed in case of
August 25, 1994) Appropriation, Revenue, and Tariff bills [1987
Constitution, Art. VI, Sec. 27(2)]. (1991, 2010 Bar)
Scope of the powers of the Committee
XPNs to the XPN:
1. Adopt the bill entirely 1. Doctrine of inappropriate provisions – A
2. Amend or Revise provision that is constitutionally
3. Reconcile the House and Senate Bills inappropriate for an appropriation bill
4. Propose entirely new provisions not found in may be singled out for veto even if it is not
either the Senate or House bills an appropriation or revenue item
(Gonzales v. Macaraig, G.R. No. 87636, Nov.
Reconcile or harmonize disagreeing 19, 1990).
provisions 2. Executive impoundment – Refusal of the
President to spend funds already
The changes introduced by the Bicameral allocated by Congress for specific
Conference Committee are meant only to reconcile purpose. It is the failure to spend or
and harmonize the disagreeing provisions for it obligate budget authority of any type.
does not inject any idea or intent that is wholly (Philconsa v. Enriquez, G.R. No. 113105,
foreign to the subject embraced by the original August 19, 1994)
provisions.
Appropriation Item or Line-item
To reconcile or harmonize disagreeing provisions,
the Bicameral Conference Committee may then (a) An indivisible sum of money dedicated to a stated
adopt the specific provisions of either the House purpose. It is indivisible because the amount
bill or Senate bill, (b) decide that neither cannot be divided for any purpose other than the
provisions in the House bill or the provisions in the specific purpose stated in the item. It is an item,
Senate bill would be carried into the final form of which, in itself, is a specific appropriation of
the bill, and/or (c) try to arrive at a compromise money, not some general provision of law, which
between the disagreeing provisions. happens to be put into an appropriation bill.
Thus, the changes made by the Bicameral An item of appropriation must be an item
Conference Committee in the versions passed by characterized by singular correspondence –
the Senate and House of the RVAT Law such as the meaning an allocation of a specified singular
inclusion of the stand-by authority of the amount for a specified singular purpose,
President, omission of the no pass-on provision otherwise known as a "line-item." (Araullo v.
included in both Senate and House versions, Aquino III, G.R. No. 209287, July 1, 2014)
inclusion of provisions on other kinds of taxes and
VAT only found in the Senate bill are valid. NOTE: For the President to exercise his item-veto
(Escudero v. Purisima, G.R. No. 168463, September power, it is necessary that there exists a proper
1, 2005; ABAKADA v. Ermita, GR 168056, September "item" which may be the object of the veto.
1, 2005) Consequently, to ensure that the President may be
able to exercise said power, the appropriations bill
Presidential Veto and Congressional Override must contain "specific appropriations of money"
and not only "general provisions" which provide
Rule on presentment
33
POLITICAL LAW
for parameters of appropriation. (Araullo v. Aquino manner and under such penalties as each House
III, ibid.) may provide.
Instances of pocket veto (2010 Bar) NOTE: The members of the Congress cannot
compel absent members to attend sessions if the
1. When the President fails to act on a bill; and reason of absence is a legitimate one. The
2. When the reason he does not return the bill confinement of a Congressman charged with a
to the Congress is that Congress is not in non-bailable offense is certainly authorized by law
session. and has constitutional foundations. (People v.
Jalosjos, G.R. No. 132875-76, February 3, 2000)
Pocket veto is NOT applicable in the
Philippines because inaction by the President for Instances when the Constitution requires that
30 days never produces a veto even if Congress is the yeas and nays of the Members be taken
in recess. The President must still act to veto the every time a House has to vote
bill and communicate his veto to Congress without
need of returning the vetoed bill with his veto 1. Upon the last and third readings of a bill
message. (1987 Constitution, Art. VI, Sec. 26, par. 2);
2. At the request of 1/5 of the members present
Rider (1987 Constitution, Art. VI, Sec. 16, par. 4); and
3. In repassing a bill over the veto of the
A provision in a bill which does not relate to a President. (1987 Constitution, Art. VI, Sec. 27,
particular appropriation stated in the bill. Since it par. 1)
is an invalid provision under Art. VI, Sec. 25[2], the
President may veto it as an item. Instances when Congress is voting separately
and voting jointly
Congressional override
SEPARATE JOINT
If, after reconsideration, 2/3 of all members of  Choosing the  When revoking or
such House agree to pass the bill, it shall be sent to President in case of extending the
the other House by which it shall likewise be a tie (1987 proclamation
reconsidered and if approved by 2/3 of all Constitution, Art. VII, suspending the
members of that House, it shall become a law Sec. 4). privilege of writ of
without the need of presidential approval.  Determining habeas corpus
President’s inability (1987 Constitution,
QUORUM AND VOTING MAJORITIES to discharge the Art. VII, Sec. 18).
powers and duties  When revoking or
Quorum of his office (1987 extending the
Constitution, Art. VII, declaration of
Such number which enables a body to transact its Sec. 11). martial law(1987
business and gives such body the power to pass a  Confirming Constitution, Art.
law or ordinance or any valid act that is binding. In nomination of Vice- VII, Sec. 18).
our constitution, it is required that the quorum be President (1987
a majority of each house. Constitution, Art. VII,
Sec. 9).
NOTE: In computing quorum, members who are  Declaring the
outside the country and, thus, outside of each existence of a state
House’s jurisdiction are not included. The basis for of war in joint
determining the existence of a quorum in the session (1987
Senate shall be the total number of Senators who Constitution, Art. VI,
are within the coercive jurisdiction of the Senate. Sec. 23, Par. 1).
(Avelino v. Cuenco, G.R. No. L-2821, March 4, 1949)  Proposing
Constitutional
Effect if there is no quorum amendments (1987
Constitution, Art.
Each House may adjourn from day to day and may XVII, Sec. 1).
compel the attendance of absent members in such
Instances when Congress votes by majority

2019 GOLDEN NOTE S
Majority vote of all respective members. (1987
INSTANCES WHEN NUMBER OF VOTES Constitution, Art. VI, Sec. 16, par. 1)
CONGRESS VOTES REQUIRED
Elect the Senate Majority vote of all its Regular session of Congress
President or House respective members
of Representatives (1987 Constitution, Congress convenes once every year on the 4th
Speaker Art. VI , Sec. 16, Par. 1) Monday of July, unless otherwise provided for by
Commission on Majority vote of all the law. It continues in session for as long as it sees fit,
Appointments ruling members (1987 until 30 days before the opening of the next
Constitution, Art. VI, regular session, excluding Saturdays, Sundays, and
Sec. 18) legal holidays. (1987 Constitution, Art. VI, Sec. 15)
Passing a law Majority of all the (1996 Bar)
granting any tax members of Congress
exemption (1987 Constitution, Instances when there are special sessions
Art. VI , Sec. 28, Par. 4)
1. Due to vacancies in the offices of the
Instances when Congress votes other than President and Vice President at 10 o’clock
majority a.m. on the third day after the vacancies
(1987 Constitution, Art. VII, Sec. 10)
INSTANCES WHEN NUMBER OF VOTES 2. To decide on the disability of the President
CONGRESS VOTES REQUIRED because a majority of all the members of the
To suspend or expel 2/3 of all its cabinet have “disputed” his assertion that he
a member in members (1987 is able to discharge the powers and duties of
accordance with its Constitution, Art. VI, his office (1987 Constitution, Art. VII, Sec. 11)
rules and Sec. 16, Par. 3) 3. To revoke or extend the Presidential
proceedings Proclamation of Martial Law or suspension of
To enter the Yeas 1/5 of the members the privilege of the writ of habeas corpus
and Nays in the present (1987 Constitution, Art. VII, Sec. 18)
Journal (1987 Constitution, 4. Called by the President at any time when
Art. VI, Sec. 16, Par. 4) Congress is not in session (1987 Constitution,
To declare the 2/3 of both houses Art. VI, Sec. 15)
existence of a state in joint session 5. To declare the existence of a state of war in a
of war voting separately joint session, by vote of 2/3 of both Houses
(1987 Constitution, (1987 Constitution, Art. VI, Sec. 23, par. 1)
Art. VI, Sec. 23) 6. When the Congress acts as the Board of
Canvassers for the Presidential and Vice-
Presidential elections (1987 Constitution, Art.
Non-intervention of courts in the
implementation of the internal rules of VII, Sec. 4)
7. During impeachment proceedings (1987
Congress
Constitution, Art. XI, Sec. 3, par. 4 and 6).
As part of their inherent power, Congress can
determine their own rules. Hence, the courts In a special session, the Congress may consider
cannot intervene in the implementation of these “general legislation or only such subjects as the
rules insofar as they affect the members of President may designate”. In a regular session,
Congress. (Osmeña v. Pendatun G.R. No L-17144, “the power of the Congress is not circumscribed
October 28, 1960) except by limitations imposed by organic law.”
(Cruz and Cruz, Philippine Political Law, p. 241)
Elected officers of Congress
Mandatory recess
1. Senate President
The 30-day period prescribed before the opening
2. Speaker of the House
of the next regular session, excluding Saturdays,
3. Such officers as deemed by each house to be
necessary Sundays, and legal holidays. This is the minimum
period of recess and may be lengthened by the
Congress in its discretion. It may, however, be
Vote required in election of officers
called in special session at any time by the
President. (1987 Constitution, Art. VI, Sec. 15)
35
POLITICAL LAW
Constitutional limitations on the legislative’s
Rule on Adjournment power to enact laws on appropriation, revenue
and tariff (ART) measures
Neither House during the sessions of the Congress
shall, without the consent of the other, adjourn for 1. Bills which shall originate exclusively in the
more than 3 days, nor to any other place than that HoR, but the Senate may propose or concur
in which the two Houses shall be sitting. (1987 with amendments: (APRIL) (1996 Bar)
Constitution, Art. VI, Sec. 16, par. 5) a. Appropriation,
b. Revenue or tariff
NOTE: The phrase “any other place” as here used c. authorizing Increase of the public debt,
refers not to the building but to the political unit d. Local application, and
where the two Houses may be sitting. Hence, if e. Private bills (1987 Constitution, Art. VI,
both Houses are sitting in the same building in the Sec. 24)
City of Manila, either of them may sit in another
building in the same city without getting the NOTE: It does not prohibit the filing in the Senate
consent of the other. (Cruz, Philippine Political of a substitute bill, so long as the action by the
Law, p. 250) Senate is withheld pending the receipt of the
House bill. (Tolentino v. Sec. of Finance, G.R. No.
Adjournment sine die 115455, Aug. 25, 1994)
An interval between the session of one Congress 2. The President shall have the power to veto
and that of another. any item/s in an ART bill, but the veto shall
not affect the item/s to which he does not
APPROPRIATION AND RE-ALIGNMENT object. [1987 Constitution, Art. VI, Sec. 27(2)]
Appropriation bill Power of appropriation
Primarily made for the appropriation of a sum of The spending power, also called the “power of the
money from the public treasury. purse”, belongs to Congress, subject only to the
veto power of the President. It carries with it the
NOTE: A bill creating a new office, and power to specify the project or activity to be
appropriating funds for it is not an appropriation funded under the appropriation law.
bill.
Appropriation law
Revenue bill
A statute enacted for the specific purpose of
Specifically designed to raise money or revenue authorizing the release of public funds from the
through imposition or levy. treasury.
Bill of local application Classifications of appropriations
A bill limited to specific localities, such as the 1. General appropriation law – Passed annually,
creation of a town. Hence, it is one involving purely and intended for the financial operations of
local or municipal matters, e.g. the charter of a city. the entire government during one fiscal
period;
Private bills
Contains an estimate of revenues and
Those which affect private persons, such as a bill funding sources, which are usually (1) taxes,
granting citizenship to a specific foreigner, or a bill (2) capital revenues (like proceeds from the
granting honorary citizenship to a distinguished sales of assets), (3) grants, (4) extraordinary
foreigner. income (like dividends of government
corporations) and (5) borrowings. (Araullo v.
Tariff bills Aquino III, G.R. No. 209287, July 1, 2014)
Those that specify the rates or duties to be GAA is not self-executory

imposed on imported articles.

2019 GOLDEN NOTE S
The execution of the GAA was still subject to 1. Congress may not increase appropriations
a program of expenditure to be approved by recommended by the President for the
the President, and such approved program of operations of the government;
expenditure was the basis for the release of 2. Form, content and manner of preparation of
funds. The mere approval by Congress of the budget shall be provided by law;
GAA does not instantly make the funds 3. No provision or enactment shall be embraced
available for spending by the Executive in the bill unless it releases specifically to
Department. The funds authorized for some particular appropriations therein;
disbursement under the GAA are usually still 4. Procedure for approving appropriations for
to be collected during the fiscal year. Thus, it Congress shall be the same as that of other
is important that the release of funds be duly departments in order to prevent sub-rosa
authorized, identified, or sanctioned to avert appropriations by Congress; and
putting the legitimate Program, Activity, 5. Prohibition against transfer of
Projects (PAPs) of the Government in fiscal appropriations from one branch (judiciary,
jeopardy. (TESDA v. COA, G.R. No. 196418, Feb. legislative, and executive) to another.
10, 2015) Nonetheless, the following may, by law, be
authorized to augment any item in the
NOTE: The requirement of availability of general appropriations law for their
funds before the execution of a government respective offices from savings in other items
contract, however, has been modified by R.A. of their respective appropriations (Doctrine
No. 9184 [Government Procurement Reform of Augmentation):
Act] which requires not only the sufficiency
of funds at the time of the signing of the a. President
contract, but also upon the commencement b. Senate President
of the procurement process. Unless R.A. No. c. Speaker of the HoR
9184 is amended or repealed, all future d. Chief Justice
government projects must first have a e. Heads of Constitutional Commissions
sufficient appropriation before engaging the [1987 Constitution, Art. VI, Sec. (5)];
procurement activity. (Jacomille v. Abaya,
G.R. No. 212381, April 22, 2015) Doctrine of Augmentation (1996, 1998 Bar)
2. Special appropriation law – Designed for a GR: No law shall be passed authorizing any
specific purpose. transfer of appropriations.
Implied limitations on appropriation power XPN: The following may, by law, be authorized to
augment any item in the general appropriations
1. Must specify a public purpose; law for their respective offices from savings in
2. Sum authorized for release must be other items of their respective appropriations in
determinate, or at least determinable. accordance with Doctrine of Augmentation:
(Guingona v. Carague, G.R. No. 94571, April 22,
1991) 1. President;
2. President of the Senate;
Constitutional limitations on special 3. Speaker of the House of Representatives;
appropriations measures 4. Chief Justice of the Supreme Court; and
5. Heads of Constitutional Commissions.
1. Must specify public purpose for which the (1987 Constitution, Art. VI, Sec. 25[5];
sum was intended; Demetria v. Alba, G.R. No. 71977, February
2. Must be supported by funds actually 27, 1987 and Araullo v. Aquino III, G.R. No.
available as certified by the National 209287, July 1, 2014)
Treasurer or to be raised by corresponding 6. Prohibitions against appropriations for
revenue proposal therein [1987 Constitution, sectarian benefit; and
Art. VI, Sec. 25(4)]. 7. Automatic re-appropriation– If, by the end
of any fiscal year, the Congress shall have
Constitutional rules on General failed to pass the general appropriations bill
Appropriations Laws for the ensuing fiscal year, the general
appropriations law for the preceding fiscal
year shall be deemed reenacted and shall
37
POLITICAL LAW
remain in force and effect until the general province mates to Mecca, Saudi Arabia, Islam's
appropriations bill is passed by the Congress holiest city.
[1987 Constitution, Art. VI, Sec. 25(7)].
Philconsa, on constitutional grounds, has filed
Ratio: For the purpose of preventing the suit to nullify the resolution of the
disruption in government operations and Sangguniang Panlalawigan giving the special
unauthorized disbursement of funds discretionary fund to the Governor for the
stated purpose. How would you decide the
Budget case? Give your reasons.
Financial program of the national government for A: The resolution is unconstitutional because:
the designated calendar year, providing for the
estimates of receipts of revenues and 1. It violates Art. VI, Sec. 29(2) which prohibits
expenditures. the appropriation of public money or
property, directly or indirectly, for the use,
Budget proposal benefit or support of any system of religion;
2. It contravenes Art. VI, Sec. 25(6) which limits
The President shall propose the budget and the appropriation of discretionary funds only
submit it to Congress. It shall indicate the for public purposes; and
expenditures, sources of financing, receipts from 3. It constitutes a clear violation of the Non-
previous revenues and proposed revenue establishment Clause of the Constitution.
measures. It will serve as a guide for Congress:
NOTE: The use of discretionary funds for a purely
1. In fixing the appropriations; religious purpose is unconstitutional, and the fact
2. In determining the activities which should be that the disbursement is made by resolution of a
funded (1987 Constitution, Art. VII, Sec. 22). local legislative body and not by Congress does not
make it any less offensive to the Constitution.
NOTE: The proposed budget is not final. The Above all, the resolution constitutes a clear
President may propose the budget but still the violation of the Non-establishment Clause of the
final say on the matter of appropriation is lodged Constitution.
in the Congress. (Philippine Constitution
Association v. Enriquez, G.R. No. 113105, August 19, Deficit in the final budget cannot be
1994) automatically taken from the National
Treasury
Modification of Congress of the budget
proposal Congress will still have to enact a law before
money can be paid out of the National Treasury
Congress may only reduce but not increase the [Art. VI, Sec. 29(1)].
budget.
Q: Daraga Press filed with COA a money claim
Each legislator cannot exercise the for the payment of textbooks it allegedly
appropriation power of the Congress delivered to DepEd-ARMM. COA denied the
money claim because it found no
Legislative power shall be exclusively exercised by appropriation for the purchase of said
the body to which the Constitution has conferred textbooks. Is COA’s denial correct?
the same. The power to appropriate must be
exercised only through legislation, pursuant to A: YES. There was no appropriation for the
Sec. 29(1), Art. VI of the Constitution. (Belgica v. purchase of the subject textbooks as the Special
Ochoa, G.R. No. 208566, November 19, 2013) Allotment Release Order (SARO) in the amount of
P63,638,750.00, upon which Daraga Press
Q: The budget of a predominantly Muslim anchors its claim, pertains to the payment of
province provides the Governor with a certain personal services or salaries of the teachers, not
amount as his discretionary funds. Recently, for the purchase of textbooks. Since there was no
however, the Sangguniang Panlalawigan appropriation for the purchase of the subject
passed a resolution appropriating P100,000 as textbooks, the respondent COA had reason to deny
a special discretionary fund of the Governor, to the money claim as Section 29(1), Article VI of the
be spent by him in leading a pilgrimage of his 1987 Constitution provides that: "No money shall

2019 GOLDEN NOTE S
be paid out of the Treasury except in pursuance of were being transferred to the Legislative and
an appropriation made by law." (Daraga Press, Inc. other non-Executive agencies.
v. Commission on Audit, G.R. No. 201042, June 16,
2015) Further, transfers “within their respective offices”
also contemplate realignment of funds to an
Requisites for the valid transfer of existing project in the GAA. Under the DAP, even
appropriated funds though some projects were within the Executive,
these projects are non-existent insofar as the GAA
The transfer of appropriated funds, to be valid is concerned because no funds were appropriated
under Art. VI, Section 25(5), must be made upon a to them in the GAA. Although some of these
concurrence of the following requisites, namely: projects may be legitimate, they are still non-
existent under the GAA because they were not
1. There is a law authorizing the President, the provided for by the GAA. As such, transfer to such
President of the Senate, the Speaker of the projects is unconstitutional and is without legal
House of Representatives, the Chief Justice of basis.
the Supreme Court, and the heads of the
Constitutional Commissions to transfer funds These DAP transfers are not “savings” contrary to
within their respective offices; what was being declared by the Executive. Under
2. The funds to be transferred are savings the definition of “savings” in the GAA, savings only
generated from the appropriations for their occur, among other instances, when there is an
respective offices; and (3) The purpose of the excess in the funding of a certain project once it is
transfer is to augment an item in the general completed, finally discontinued, or finally
appropriations law for their respective offices. abandoned. The GAA does not refer to “savings” as
(Araullo, et.al v. Aquino III, et. al. G.R. No. funds withdrawn from a slow-moving project.
209287, July 1, 2014) Thus, since the statutory definition of savings was
not complied with under the DAP, there is no basis
Q: The Disbursement Acceleration Program at all for the transfers. Further, savings should
(DAP) was instituted by the Department of only be declared at the end of the fiscal year. But
Budget and Management in 2011 to ramp up under the DAP, funds are already being withdrawn
spending after sluggish disbursements had from certain projects in the middle of the year and
caused the growth of the gross domestic then being declared as “savings” by the Executive
product (GDP) to slow down. It allowed the particularly by the DBM.
Executive to allocate public money pooled
from programmed and unprogrammed funds Unprogrammed funds from the GAA cannot be
of its various agencies notwithstanding the used as money source for the DAP because under
original revenue targets being exceeded. In a the law, such funds may only be used if there is a
petition, the constitutionality of the DAP was certification from the National Treasurer to the
challenged, claiming that it contravened effect that the revenue collections have exceeded
Section 29(1), Art. VI of the 1987 Constitution the revenue targets. In this case, no such
under the guise of the President exercising his certification was secured before unprogrammed
constitutional authority under Section 25(5) of funds were used. (Araullo v. Aquino III, G.R. No.
the 1987 Constitution to transfer funds out of 209287, February 3, 2015)
savings to augment the appropriations of
offices within the Executive Branch of the LEGISLATIVE INQUIRIES AND OVERSIGHT
Government. Is the DAP constitutional? FUNCTIONS
A: NO. The transfers made through the DAP were Legislative Inquiries/Inquiries In Aid Of
unconstitutional. It is true that the President (and Legislation
even the heads of the other branches of the
government) are allowed by the Constitution to The Senate or the House of Representatives or any
make realignment of funds, however, such of its respective committees may conduct
transfer or realignment should only be made inquiries in aid of legislation in accordance with its
“within their respective offices”. Thus, no cross- duly published rules of procedure. The rights of
border transfers/augmentations may be allowed. persons appearing in, or affected by, such
But under the DAP, this was violated because inquiries shall be respected. (1987 Constitution,
funds appropriated by the GAA for the Executive Art. VI, Sec. 21)
39
POLITICAL LAW
Matters that can be the subject of inquiries in
aid of legislation 5. Congress may no longer punish the witness
in contempt after its final adjournment. The
Indefinite. The field of legislation is very wide, and basis of the power to impose such penalty is
because of such, the field of inquiry is also very the right to self-preservation. And such right
broad and may cover administrative, social, is enforceable only during the existence of
economic, political problem (inquiries), discipline the legislature. (Lopez v. Delos Reyes, G.R. No.
of members, etc. Suffice it to say that it is L-34361, Nov. 5, 1930)
“intrinsic” in andco-extensive with legislative 6. Congress may no longer inquire into the
power. (Arnault v. Nazareno, G.R. No. L-3820, July same justiciable controversy already before
18, 1950) the court. (Bengzon v. Senate Blue Ribbon
Committee, G.R. No. 89914, November 20,
“In aid of legislation” does not mean that there is 1991)
pending legislation regarding the subject of the
inquiry. In fact, investigation may be needed for Q: Senator Miriam Defensor Santiago
purposes of proposing future legislation. introduced Proposed Senate Resolution (PSR)
No. 455 directing the conduct of an inquiry, in
NOTE: If the stated purpose of the investigation is aid of legislation, on the anomalous losses
to determine the existence of violations of the law, incurred by POTC, PHILCOMSAT and PHC and
the investigation is no longer “in aid of legislation” the mismanagement committed by their
but “in aid of prosecution.” This violates the respective board of directors. Can the persons
principle of separation of powers and is beyond involved in the legislative inquiry question the
the scope of Congressional powers. haste with which the Senate approved their
Committee Report? Can said persons invoke
Limitations on legislative investigation their basic right to counsel?
1. The persons appearing in or affected by such A: NO. The Senate or the House of Representatives
legislative inquiries shall be respected. or any of its respective committees may conduct
2. The Rules of procedures to be followed in inquiries in aid of legislation in accordance with its
such inquiries shall be published for the duly published rules of procedure. The wide
guidance of those who will be summoned. latitude given to Congress with respect to these
This must be strictly followed so that the legislative inquiries has long been settled,
inquiries are confined only to the legislative otherwise, Article VI, Section 21 would be
purpose and to avoid abuses. rendered pointless. The right to be assisted by
counsel can only be invoked by a person under
NOTE: It is incumbent upon the Senate, HOR, custodial investigation suspected for the
or any of its respective committee to publish commission of a crime, and therefore attaches
the rules for its legislative inquiries in each only during such custodial investigation.
Congress or otherwise make the published (Philcomsat Holdings Corp. vs. Senate, G.R. No.
rules clearly state that the same shall be 180308, June 19, 2012, PER J. PERLAS-
effective in subsequent Congresses or until BERNABE)
they are amended or repealed to sufficiently
put the public on notice. Publication of said Q: Sen. Rodolfo Diaz accused the Vice Chairman
rules in the internet cannot be considered as of the Standard Chartered Bank (SCB) of
compliance with this constitutional violating the Securities Regulation Code for
requirement. selling unregistered foreign securities. This
has led the Senate to conduct investigation in
3. The investigation must be in aid of aid of legislation. SCB refused to attend the
legislation. investigation proceedings claiming criminal
4. Congress may not summon the President as and civil cases involving the same issues were
witness or investigate the latter in view of the pending in courts. Decide.
doctrine of separation of powers except in
impeachment cases. A: The mere filing of a criminal or administrative
complaint before a court or a quasi-judicial body
NOTE: It is the President’s prerogative, whether should not automatically bar the conduct of
to divulge or not the information, which he deems legislative investigation. Otherwise, it would be
confidential or prudent in the public interest. extremely easy to subvert any intended inquiry by

2019 GOLDEN NOTE S
Congress through the convenient ploy of legislation, so as to prevent the occurrence of a
instituting a criminal or an administrative similar fraudulent activity in the future.”
complaint. Thus, the Vice Chairman of SCB is not (Standard Chartered Bank v. Senate, G.R. No.
correct in refusing to attend the investigation 167173, December 27, 2007)
proceeding on the ground that criminal and civil
cases involving the same issues are pending in Contempt powers of Congress
courts. (Standard Chartered Bank v. Senate, G.R. No.
167173, December 27, 2007) Even if the Constitution only provides that
Congress may punish its members for disorderly
Distinction between Standard Chartered Bank behavior or expel the same, it is not an exclusion
v. Senate and Bengzon v. Senate Blue Ribbon of power to hold other persons in contempt.
Committee
Q: In the exercise of its power to investigate in aid
It is true that in Bengzon, the Court declared that of legislation, can Congress cite a person in
the issue to be investigated was one over which contempt and detain him indefinitely?
jurisdiction had already been acquired by the
Sandiganbayan, and to allow the Senate Blue A: NO. The Court finds that the period of
Ribbon Committee to investigate the matter would imprisonment under the inherent power of
create the possibility of conflicting judgments; and contempt by the Senate during inquiries in aid of
that the inquiry into the same justiciable legislation should only last until the termination of
controversy would be an encroachment on the the legislative inquiry under which the said power
exclusive domain of judicial jurisdiction that had is invoked or when Congress adjourns sine die. If
set in much earlier. Congress decides to extend the period of
imprisonment for the contempt committed by a
There are a number of cases already pending in witness beyond the duration of the legislative
various courts and administrative bodies inquiry or after it has already adjourned, then it
involving Standard Chartered Bank, relative to the may file a criminal case under the existing statute
alleged sale of unregistered foreign securities. or enact a new law to increase the definite period
There is a resemblance between this case and of imprisonment.
Bengzon. However, the similarity ends there.
Further, the Court rules that the legislative inquiry
Central to the Court’s ruling in Bengzon – that the of the Senate terminates on two instances:
Senate Blue Ribbon Committee was without any
constitutional mooring to conduct the legislative First, upon the approval or disapproval of the
investigation – was the Court’s determination that Committee Report. Evidently, the Committee
the intended inquiry was not in aid of legislation. Report is the culmination of the legislative inquiry.
The Court found that the speech of Senator Enrile, Its approval or disapproval signifies the end of
which sought such investigation, contained no such legislative inquiry and it is now up to the
suggestion of any contemplated legislation; it Senate whether or not to act upon the said
merely called upon the Senate to look into possible Committee Report in the succeeding order of
violations of Sec. 5, RA No. 3019. Thus, the Court business. At that point, the power of contempt
held that the requested probe failed to comply simultaneously ceases and the detained witness
with a fundamental requirement of Sec. 21, Art. VI. should be released. As the legislative inquiry ends,
the basis for the detention of the recalcitrant
Unfortunately for SCB, this distinguishing factual witness likewise ends.
milieu in Bengzon does not obtain in the instant
case. The unmistakable objective of the Second, the legislative inquiry of the Senate also
investigation, as set forth in the said resolution, terminates upon the expiration of one (1)
exposes the error in SCB’s allegation that the Congress. As stated in Neri, all pending matters
inquiry, as initiated in a privilege speech by the and proceedings, such as unpassed bills and even
very same Senator Enrile, was simply “to legislative investigations, of the Senate are
denounce the illegal practice committed by a considered terminated upon the expiration of that
foreign bank in selling unregistered foreign Congress and it is merely optional on the Senate of
securities.” This fallacy is made more glaring the succeeding Congress to take up such
when we consider that, at the conclusion of his unfinished matters, not in the same status, but as
privilege speech, Senator urged the Senate “to if presented for the first time. Again, while the
immediately conduct an inquiry, in aid of Senate is a continuing institution, its proceedings
41
POLITICAL LAW
are terminated upon the expiration of that
Congress at the final adjournment of its last Question hour vs. Legislative investigation
session. Hence, as the legislative inquiry ends
upon that expiration, the imprisonment of the LEGISLATIVE
QUESTION HOUR
detained witnesses likewise ends. (Balag vs. INVESTIGATION
(SEC. 22, ART. VI)
Senate, G.R. No. 234608, July 03, 2018) (SEC. 21, ART. VI)
As to persons who may appear
Q: Can Congress issue a subpoena to compel
attendance of Justices of the Court of Appeals Only a department
Any person
in its investigation in-aid of legislation, and head
cite them in contempt should they refuse to As to who conducts the investigation
appear?
Committees/Entire
Entire body
Body
A: NO. Congressional powers cannot be used to
deprive the Supreme Court of its Constitutional As to subject matter
duty to supervise judges of lower courts in the Matters related to the Any matter for the
performance of their official duties. The fact department only purpose of legislation
remains that the CA Justices are non-impeachable
officers. As such, authority over them primarily
Oversight power of Congress
belongs to the Supreme Court and to no other. The
principle of separation of powers also serves as
Embraces all activities undertaken by Congress to
one of the basic postulates for exempting the
enhance its understanding of and influence over
Justices, officials and employees of the Judiciary
the implementation of legislation it has enacted. It
and for excluding the Judiciary's privileged and
concerns post-enactment measures undertaken
confidential documents and information from any
by Congress. (Opinion of J. Puno, Macalintal v.
compulsory processes which very well includes
COMELEC, G.R. No. 157013, July 10, 2003)
the Congress' power of inquiry in aid of legislation.
Such exemption has been jurisprudentially
Scope of the power of oversight
referred to as judicial privilege as implied from the
exercise of judicial power expressly vested in one
1. Monitor bureaucratic compliance with
Supreme Court and lower courts created by law.
program objectives;
[Agcaoli v. Farinas, GR No. 232395, July 3, 2017]
2. Determine whether agencies are properly
administered;
Legislative contempt vis-à-vis pardoning
3. Eliminate executive waste and dishonesty;
power of the President
4. Prevent executive usurpation of legislative
authority; and
Legislative contempt is a limitation on the
5. Assess executive conformity with the
President’s power to pardon by virtue of the
congressional perception of public interest.
doctrine of separation of powers.
(Opinion of J. Puno, Macalintal v. COMELEC,
Ibid)
Question Hour
Bases of oversight power of Congress
Where the heads of departments may, upon their
own initiative, with the consent of the President,
1. Intrinsic in the grant of legislative power
or upon the request of either House, as the rules of
itself;
each House shall provide, appear before and be
2. Integral to the system of checks and
heard by such House on any matter pertaining to
balances; and
their departments. Written questions shall be
3. Inherent in a democratic system of
submitted to the President of the Senate or the
government.
Speaker of the HoR at least 3 days before their
scheduled appearance. Interpellations shall not be
Categories of Congressional Oversight
limited to written questions, but it may cover
Functions
matters related thereto. When the security of the
State or the public interest so requires and the
1. Scrutiny — to determine economy and
President so states in writing, the appearance shall
efficiency of the operation of government
be conducted in executive session. (1987
activities.
Constitution, Art. VI, Sec. 22)
2.

2019 GOLDEN NOTE S
Congress may request information and not it conformed to the law, Congress arrogated
report from the other branches of judicial power unto itself, a power exclusively
government and give recommendations or vested in the Supreme Court by the Constitution.
pass resolutions for consideration of the Thus, violating the doctrine of separation of
agency involved through: powers.
a. Power of appropriation and budget From the moment the law becomes effective, any
hearing (1987 Constitution, Art. VII, provision of law that empowers Congress or any of
Sec. 22) its members to play any role in the
b. Question Hour (1987 Constitution, implementation or enforcement of the law violates
Art. VI, Sec. 22) the principle of separation of powers and is thus
c. Power of Confirmation (1987 unconstitutional. (ABAKADA Guro Party-list v.
Constitution, Art. VI, Sec. 18) Purisima, Ibid.)
But legislative scrutiny does not end in Senate is not allowed to continue the conduct
budget hearings. Congress can ask the heads of legislative inquiry without a duly published
of departments to appear before and be rules of procedure
heard by either the House on any matter
pertaining to their department. The phrase “duly published rules of procedure”
requires the Senate of every Congress to publish
Likewise, Congress exercises legislative its rules of procedure governing inquiries in aid of
scrutiny thru its power of confirmation to legislation because every Senate is distinct from
find out whether the nominee possesses the the one before it or after it. (Garcillano v. HoR
necessary qualifications, integrity and Committee on Public Information, G.R. No. 170338,
probity required of all public servants. December 23, 2008)
3. Congressional Investigation — Involves a Invalidity of Publication in the Internet

more intense digging of facts through
inquiries in aid of legislation under Sec. 21, The Electronic Commerce Act of 2009 merely
Art. VI. recognizes the admissibility in evidence of
electronic data messages and/or documents. It
4. Legislative Supervision — most does not make the internet a medium for
encompassing form; connotes a continuing publishing laws, rules and regulations. (Garcillano
and informed awareness on the part of v. HoR Committee on Public Information, ibid.)
congressional committee regarding
executive operations in a given Publication of the internal rules of Congress
administrative area It allows Congress to
scrutinize the exercise of delegated law- The Constitution does not require publication of
making authority, and permits Congress to the internal rules of the House or Senate. Since
retain part of that delegated authority rules of the House or Senate affect only their
through: members, such rules need not be published, unless
such rules expressly provide for their publication
Legislative veto – Congress retains a “right” before the rules can take effect. (Pimentel v. Senate
or “power” to approve or disapprove any Committee of the Whole, G.R. No. 187714, March 8,
regulation enacted by administrative body 2011)
before it takes effect. It is in the form of an
inward-turning delegation designed to attach Q: During a hearing of the Senate Committee of
a congressional leash to an agency to which the Whole, some proposed amendments to the
Congress has by law initially delegated broad Rules of the Ethics Committee that would
powers. (ABAKADA Guro Party-list v. Purisima, constitute the Rules of the Senate Committee of
G.R. No. 166715, Aug. 14, 2008) the Whole were adopted. Senator Chi raised as
an issue the need to publish the proposed
Legislative veto violates the doctrine of amended Rules of the Senate Committee of the
separation of powers, thus, unconstitutional Whole, as directed by the amended Rules itself.
However, the Senate Committee of the Whole
In exercising discretion to approve or disapprove proceeded without publication of the amended
the IRR based on a determination of whether or Rules. Is the publication of the Rules of the
43
POLITICAL LAW
Senate Committee of the Whole required for POWER OF IMPEACHMENT
their effectivity?
Steps in the impeachment process (2012 Bar)
A: YES. The Rules must be published before the
Rules can take effect. Thus, even if publication is Constitution provides that the House of
not required under the Constitution, publication of Representatives shall have the exclusive power to
the Rules of the Senate Committee of the Whole is initiate all cases of impeachment. (1987
required because the Rules expressly mandate Constitution, Art XI)
their publication. To comply with due process
requirements, the Senate must follow its own 1. Initiating impeachment case
internal rules if the rights of its own members are a. Verified complaint filed by any member of
affected. (Pimentel v. Senate Committee of the the House of Representatives or any
Whole, ibid.) citizen upon resolution of endorsement
by any member thereof;
Senate is no longer a continuing legislative
body NOTE: If the verified complaint is filed by
at least 1/3 of all its members of the
The present Senate under the 1987 Constitution is House of Representatives, the same shall
no longer a continuing legislative body. It has 24 constitute the Articles of Impeachment,
members, 12 of whom are elected every 3 years and trial by the Senate shall forthwith
for a term of 6 years each. Thus, the term of 12 proceed. [1987 Constitution, Art. XI, Sec. 3
Senators expires every 3 years, leaving less than a (4)]
majority of Senators to continue into the next
Congress since the Rules of Procedure must be b. Inclusion in the order of business within
republished by the Senate after every expiry of the 10 session days;
term of the 12 Senators. (Garcillano v. HoR c. Referred to the proper committee within
Committee on Public Information, G.R. No. 170338, 3 session days from its inclusion;
December 23, 2008) d. The committee, after hearing, and by
majority vote of all its members, shall
Senate as an INSTITUTION is continuing (2014 submit its report to the House of
Bar) Representatives together with the
corresponding resolution;
There is no debate that the Senate as an institution e. Placing on calendar the Committee
is "continuing", as it is not dissolved as an entity resolution within 10 days from
with each national election or change in the submission;
composition of its members. However, in the f. Discussion on the floor of the report; and
conduct of its day-to-day business the Senate of g. A vote of at least 1/3 of all the members of
each Congress acts separately and independently the House of Representatives shall be
of the Senate of the Congress before it. necessary either to affirm a favorable
resolution with the Articles of
Undeniably, all pending matters and proceedings, Impeachment of the committee or
i.e. unpassed bills and even legislative override its contrary resolution. [(1987
investigations, of the Senate of a particular Constitution, Art. XI, Sec. 3 (2-3)]
Congress are considered terminated upon the
expiration of that Congress and it is merely 2. Trial and Decision in impeachment proceedings
optional on the Senate of the succeeding Congress a. The Senators take an oath or affirmation;
to take up such unfinished matters, not in the and
same status, but as if presented for the first
time. The logic and practicality of such a rule is NOTE: When the President of the
readily apparent considering that the Senate of the Philippines shall be impeached, the Chief
succeeding Congress (which will typically have a Justice of the Supreme Court shall preside,
different composition as that of the previous otherwise the Senate President shall
Congress) should not be bound by the acts and preside in all other cases of impeachment.
deliberations of the Senate of which they had no (Senate Resolution No. 890)
part. (Neri v. Senate Committee, GR. No. 180643,
September 4, 2008)

2019 GOLDEN NOTE S
b. A decision of conviction must be charged and determinative of the jurisdiction of
concurred in by at least 2/3 of all the the committee.” (Gutierrez v. House of
members of Senate. Representatives Committee on Justice, ibid.)
NOTE: The power to impeach is essentially a non- Limitations imposed by the Constitution upon
legislative prerogative and can be exercised by the initiation of impeachment proceedings
Congress only within the limits of the authority
conferred upon it by the Constitution. (Gutierrez v. 1. The House of Representatives shall have the
House of Representatives Committee on Justice, G.R. exclusive power to initiate all cases of
No. 193459, February 15, 2011) impeachment; and
2. Not more than one impeachment proceeding
The Senate has the sole power to try and decide all shall be initiated against the same official
cases of impeachment [1987 Constitution, Art. XI, within a period of one year (One-year bar
Sec. 3(6)]. Hence, judgment in an impeachment rule).
proceeding is normally not subject to judicial
review. NOTE: An impeachment case is the legal
controversy that must be decided by the
XPN: Courts may annul the proceedings if there is Senate while an impeachment proceeding is
a showing of a grave abuse of discretion or non- one that is initiated in the House of
compliance with the procedural requirements of Representatives. For purposes of applying the
the Constitution. one-year bar rule, the proceeding is initiated
or begins when a verified complaint is filed
Determination of sufficiency of form and and referred to the Committee on Justice for
substance of an impeachment complaint action. (Francisco v. House of Representatives,
et. al., G.R. No. 160261, November 10, 2003)
An exponent of the express constitutional grant of
rulemaking powers of the HoR. The power to impeach is essentially a non-
legislative prerogative and can be exercised
In the discharge of that power and in the exercise by Congress only within the limits of the
of its discretion, the House has formulated authority conferred upon it by the
determinable standards as to form and substance Constitution (Francisco v. House of
of an impeachment complaint. Furthermore, the Representatives, ibid). It is, by its nature, a sui
impeachment rules are clear in echoing the generis politico-legal process. (Gonzales III v.
constitutional requirements in providing that Office of the President, G.R.196231, January 28,
there must be a “verified complaint or resolution” 2014)
and that the substance requirement is met if there
is “a recital of facts constituting the offense Impeachment is deemed initiated
charged and determinative of the jurisdiction of
the committee.” (Gutierrez v. House of A verified complaint is filed and referred to the
Representatives Committee on Justice, G.R. No. Committee on Justice for action. This is the
193459, February 15, 2011) initiating step which triggers the series of steps
that follow. The term “to initiate” refers to the
Power of the HoR to determine the sufficiency filing of the impeachment complaint coupled with
of form and substance of an impeachment Congress’ taking initial action of said complaint.
complaint (Francisco v. House of Rep., G.R. No. 160261, Nov. 10,
2003)
It is an exponent of the express constitutional
grant of rulemaking powers of the HoR. In the One-year bar rule (2014 Bar)
discharge of that power and in the exercise of its
discretion, the House has formulated Initiation takes place by the act of filing of the
determinable standards as to form and substance impeachment complaint and referral to the House
of an impeachment complaint. Furthermore the Committee on Justice. Once an impeachment
impeachment rules are clear in echoing the complaint has been initiated in the foregoing
constitutional requirements in providing that manner, another may not be filed against the same
there must be a “verified complaint or resolution” official within the one-year period. (Gutierrez v.
and that the substance requirement is met if there HoR Committee on Justice, ibid.)
is “a recital of facts constituting the offense
45
POLITICAL LAW
NOTE: The limitation refers to the element of time, Jurisdiction of the ETs
and not the number of complaints. The
impeachable officer should defend himself in only Each electoral tribunal shall be the sole judge of all
one impeachment proceeding, so that he will not contests relating to the election, returns, and
be precluded from performing his official qualifications of their respective members (1987
functions and duties. Similarly, Congress should Constitution, Art. VI, Sec. 17). This includes
run only one impeachment proceeding so as not to determining the validity or invalidity of a
leave it with little time to attend to its main work proclamation declaring a particular candidate as
of law-making. (Gutierrez v. The House of the winner. Each ET is also vested with rule-
Representatives Committee on Justice, ibid.) making power. (Lazatin v. HRET, G.R. No. L-84297,
Dec. 8, 1988)
Purpose of the one-year bar rule
NOTE: It is independent of the Houses of Congress
1. To prevent undue or too frequent harassment; and its decisions may be reviewed by the Supreme
and Court only upon showing of grave abuse of
2. To allow the legislature to do its principal task discretion.
of legislation. (Francisco v. House of
Representatives supra.) Electoral contest
The consideration behind the intended limitation Where a defeated candidate challenges the
refers to the element of time, and not the number qualification and claims for himself the seat of the
of complaints. The impeachable officer should proclaimed winner. In the absence of an election
defend himself in only one impeachment contest, ET is without jurisdiction.
proceeding, so that he will not be precluded from
performing his official functions and duties. When the winning candidate is considered as
Similarly, Congress should run only one member of the Senate or HoR
impeachment proceeding so as not to leave it with
little time to attend to its main work of law- Once he has: (POA)
making. The doctrine laid down in Francisco that
initiation means filing and referral remains 1. Been Proclaimed
congruent to the rationale of the constitutional 2. Taken his Oath; and
provision. (Gutierrez v. The House of
Representatives Committee on Justice, supra) NOTE: The oath must be made:
a. Before the Senate President or Speaker of
NOTE: Congress may look into separate the House, as the case may be; and
complaints against an impeachable officer and b. In open session. (Reyes v. COMELEC, G.R.
consider the inclusion of matters raised therein, in No. 207264, June 25, 2013)
the adoption of the Articles of Impeachment.
(Francisco v. House of Representatives, et. al., supra) 3. Assumed office
ELECTORAL TRIBUNALS NOTE: Once a winning candidate has been

proclaimed, taken his oath, and assumed office as
Composition of the Electoral Tribunal (ET) Member of the House of Representatives (or of the
Senate), the COMELEC’s jurisdiction over the
1. 3 Supreme Court Justices designated by the election contest relating to his election, returns
Chief Justice; and qualifications ends, and the HRET’s (or SET’s)
2. 6 members of the Senate or the House of own jurisdiction begins. (Vinzons-Chato v.
Representatives. as the case may be, chosen COMELEC, G.R. No. 172131, April 2, 2007)
on the basis of proportional representation
from the political parties and from those By analogy with the cases of district
registered under the party-list system representatives, once the party or organization of
represented therein. (1987 Constitution, Art. the party-list nominee becomes a member of the
VI, Sec. 17) HoR, HRET has authority to pass upon election
contests relating to his qualifications. (Abayon v.
NOTE: The senior Justice in the Electoral Tribunal HRET, G.R. No. 189466, February 11, 2010)
shall be its Chairman.

2019 GOLDEN NOTE S
Q: Liwayway Vinzons-Chato renewed her bid in petition was pending, Wigberto initiated the
the May 2010 elections as the representative of instant certiorari case against the COMELEC En
the 2nd Legislative District of Camarines Norte Banc Resolution declaring Alvin not a nuisance
but was eventually defeated by Elmer Panote. candidate. Is the petition tenable?
Aggrieved, Chato filed an electoral protest
before the HRET assailing the results in all the A: NO. The petition must fail. Section 17, Article VI
160 clustered precincts in 4 municipalities. of the 1987 Philippine Constitution provides that
Chato designated forty (40) pilot clustered the HRET is the sole judge of all contests relating
precincts, in which revision of ballots shall be to the election, returns, and qualifications of its
conducted. After the initial revisions of the respective members. Case law states that the
designated clustered precints, Chato moved proclamation of a congressional candidate
for the revision of ballots in all of the protested following the election divests the COMELEC of
clustered precincts. The motion was initially jurisdiction over disputes relating to the election,
denied, but a resolution was eventually issued returns, and qualifications of the proclaimed
by the HRET directing the continuation of the representative in favor of the HRET. Considering
revision of ballots in the remaining seventy- that Angelina had already been proclaimed as
five percent (75%) protested clustered Member of the House of Representatives for the
precincts, or a total of 120 precincts. Such was 4th District of Quezon Province on May 16, 2013,
opposed by Panote, ascribing grave abuse of as she has in fact taken her oath and assumed
disctretion on the part of HRET. Is the office past noon time of June 30, 2013, the Court is
opposition of Panote correct? now without jurisdiction to resolve the case at bar.
As they stand, the issues concerning the conduct of
A: NO. The Constitution mandates that the HRET the canvass and the resulting proclamation of
"shall be the sole judge of all contests relating to Angelina as herein discussed are matters which
the election, returns and qualifications" of its fall under the scope of the terms election and
members. By employing the word "sole", the return and hence, properly fall under the HRET’s
Constitution is emphatic that the jurisdiction of sole jurisdiction. (Wigberto Tañada, Jr. vs.
the HRET in the adjudication of election contests COMELEC, G.R. Nos. 207199-200, October 22,
involving its members is intended to be its own 2013, PER J. PERLAS-BERNABE)
full, complete and unimpaired. There can be no
challenge, therefore, to such exclusive control Q: Gemma ran for Congresswoman of
absent any clear showing, as in this case, of Muntinlupa in the May 2013 elections.
arbitrary and improvident use by the Tribunal of However, before the elections, the COMELEC
its power that constitutes a denial of due process cancelled her CoC after hearing a complaint
of law, or upon a demonstration of a very clear filed against her. Later, she was declared
unmitigated error, manifestly constituting such winner as Congresswoman of Muntinlupa. The
grave abuse of discretion that there has to be a decision said she took her oath already and
remedy therefor. (Liwayway Vinzons-Chato v. had not assumed her office as Congresswoman.
HRET, G. R. No. 201350, January 22, 2013, PER J. Subsequently, COMELEC issued a certificate of
PERLAS-BERNABE) finality on its earlier resolution cancelling
Gemma’s COC. Gemma comes before the Court
Q: Wigberto and Angelina and Alvin were arguing that COMELEC has lost jurisdiction
contenders for the position of Member of the over the case and it is the HRET that has
House of Representatives for the 4th District of jurisdiction as she is already declared a
Quezon Province on the May 13, 2013 National winner. Is Gemma’s contention tenable?
Elections. Wigberto filed before the COMELEC
two separate petitions: to cancel Alvin’s CoC A: NO. Gemma cannot be considered a Member of
and to declare him as a nuisance candidate. the House of Representatives because, primarily,
The COMELEC cancelled Alvin’s CoC but did not she has not yet assumed office. The jurisdiction of
declare him to be a nuisance candidate. the HRET begins only after the candidate is
Despite the cancellation of Alvin’s CoC due to considered a Member of the House of
his material misrepresentations therein, his Representatives, as stated in Art. VI, Sec. 17 of the
name was not deleted from the ballot. 1987 Constitution. To be considered a Member of
Subsequently, Angelina was proclaimed as the the House of Representatives, there must be a
winning candidate. It appears that Wigberto concurrence of the following requisites: (1) a valid
had filed with the COMELEC a Petition to Annul proclamation, (2) a proper oath, and (3)
the Proclamation of Angelina and while such assumption of office.
47
POLITICAL LAW
Ating Koop. Is COMELEC En Banc’s decision
The term of office of a Member of the House of correct?
Representatives begins only “at noon on the
thirtieth day of June next following their election.” A: NO. While the COMELEC correctly dismissed
Thus, until such time, the COMELEC retains the Petition to expel petitioner Lico from the
jurisdiction. Consequently, before there is a valid House of Representatives for being beyond its
or official taking of the oath it must be made (1) jurisdiction, it nevertheless proceeded to rule
before the Speaker of the House of upon the validity of his expulsion from Ating Koop
Representatives, and (2) in open session. Here, – a matter beyond its purview. Without legal basis,
although she made the oath before Speaker however, is the action of the COMELEC in
Belmonte, there is no indication that it was made upholding the validity of the expulsion of
during plenary or in open session and, thus, it petitioner Lico from Ating Koop, despite its own
remains unclear whether the required oath of ruling that the HRET has jurisdiction over the
office was indeed complied with. (Reyes v. disqualification issue. These findings already
COMELEC, G.R. No. 207264, June 25, 2013) touch upon the qualification requiring a party-list
nominee to be a bona fide member of the party-list
Power of each House over its members in the group sought to be represented. The petition for
absence of election contest Lico's expulsion from the House of
Representatives is anchored on his expulsion from
The power of each House to expel its members or Ating Koop, which necessarily affects his title as
even to defer their oath-taking until their member of Congress. A party-list nominee must
qualifications are determined may be exercised have been, among others, a bona fide member of
even without an election contest. the party or organization for at least ninety (90)
days preceding the day of the election. Needless to
Q: Imelda ran for HoR. A disqualification case say, bona fide membership in the party-list group
was filed against her on account of her is a continuing qualification x xx. Under Section
residence. The case was not resolved before 17, Article VI of the Constitution, the HRET is the
the election. Imelda won the election. sole judge of all contests when it comes to
However, she was not proclaimed. Imelda now qualifications of the members of the House of
questions the COMELEC’s jurisdiction over the Representatives. Consequently, the COMELEC
case. Does the COMELEC have jurisdiction over failed to recognize that the issue on the validity of
the case? petitioner Lico's expulsion from Ating Koop is
integral to the issue of his qualifications to sit in
A: YES. The COMELEC retains jurisdiction. Since Congress.
Imelda has not yet been proclaimed, she is not yet
a member of the HoR. HRET’s jurisdiction as the Our ruling here must be distinguished from Regina
sole judge of all contests relating to elections, etc. Ongsiako Reyes v. Commission on Elections. In
of members of Congress begins only after a Reyes, the petitioner was proclaimed winner of the
candidate has become a member of the HoR. 13 May 2013 Elections, and took her oath of office
(Romualdez-Marcos v. COMELEC, G.R. No. 119976, before the Speaker of the House of
September 18, 1995) Representatives. However, the Court ruled on her
qualifications since she was not yet a member of
Q: Ating Koop party-list expelled its first the House of Representatives: petitioner Reyes
nominee/representative Lico for refusing to had yet to assume office, the term of which would
honor the term-sharing agreement. A petition officially start at noon of 30 June 2013, when she
was filed with the COMELEC which sought his filed a Petition for Certiorari dated 7 June 2013
removal from being Ating Koop’s assailing the Resolutions ordering the cancellation
representative. COMELEC 2nd Division expelled of her Certificate of Candidacy. In the present case,
Lico. COMELEC En Banc, however, dismissed all three requirements of proclamation, oath of
the petition on the ground that it had no office, and assumption of office were satisfied.
jurisdiction to expel Lico from the HoR,
considering that his expulsion from Ating Koop Moreover, in Reyes, the COMELEC En Banc
affected his qualifications as member of the Resolution disqualifying petitioner on grounds of
House, and therefore it was the HRET that had lack of Filipino citizenship and residency had
jurisdiction over the Petition. become final and executory when petitioner
Notwithstanding, COMELEC En Banc still elevated it to this Court. Therefore, there was no
affirmed the validity of Lico’s expulsion from longer any pending case on the qualifications of

2019 GOLDEN NOTE S
petitioner Reyes to speak of. Here, the question of Remedy from an adverse decision of the ET
whether petitioner Lico remains a member of the
House of Representatives in view of his expulsion A special civil action for certiorari under Rule 65 of
from Ating Koop is a subsisting issue. Finally, in the Rules of Court may be filed. This is based on
Reyes, We found the question of jurisdiction of the grave abuse of discretion amounting to lack or
HRET to be a non-issue, since the recourse of the excess of jurisdiction. This shall be filed before the
petitioner to the Court appeared to be a mere Supreme Court.
attempt to prevent the COMELEC from
implementing a final and executory judgment. In NOTE: Under the doctrine of primary
this case, the question on the validity of petitioner administrative jurisdiction, prior recourse to the
Lico's expulsion from Ating Koop is a genuine House is necessary before the petitioners may
issue that falls within the jurisdiction of the HRET, bring the case to the Supreme Court. (Pimentel vs.
as it unmistakably affects his qualifications as House of Representative Electoral Tribunal, G.R. No.
party-list representative. (Lico v. COMELEC, G.R. 141489, November 29, 2002)
No. 205505, September 29, 2015)
COMMISSION ON APPOINTMENTS
Valid grounds or just causes for termination of
membership to the tribunal Composition of the Commission on
Appointments (CA)
Members of the Electoral Tribunal enjoy the
security of tenure. However, they may be 1. Senate President as ex-officio chairman
terminated for a just cause such as: 2. 12 Senators
3. 12 members of the HoR. (1987 Constitution,
1. Expiration of Congressional term of office Art. VI, Sec. 18)
2. Death or permanent disability
3. Resignation from the political party he NOTE: A political party must have at least two (2)
represents in the tribunal senators in the Senate to be able to have a
4. Formal affiliation with another political party representative in the CA.
5. Removal from office for other valid reasons.
(Bondoc v. Pineda, G.R. No. 97710, September Thus, where there are two or more political
26, 1991) parties represented in the Senate, a political
party/coalition with a single senator in the Senate
NOTE: Unlike the Commission on Appointments, cannot constitutionally claim a seat in the
the ET shall meet in accordance with their rules, Commission on Appointments. It is not mandatory
regardless of whether Congress is in session or to elect 12 senators to the Commission; what the
not. Constitution requires is that there must be at least
a majority of the entire membership. (Guingona, Jr.
Q: Can the Senators-members of the Senate v. Gonzales, G.R. No. 106971, October 20, 1992)
Electoral Tribunal be disqualified because an
election contest is filed against them? Membership in the CA
A: NO. The Supreme Court held that it cannot The members of the Commission shall be elected
order the disqualification of the Senators- by each House based on proportional
members of the Electoral Tribunal simply because representation from the political party and party
they were themselves respondents in the electoral list. Accordingly, the sense of the Constitution is
protest, considering the specific mandate of the that the membership in the CA must always reflect
Constitution and inasmuch as all the elected political alignments in Congress and must
Senators were actually named as respondents. therefore adjust to changes. It is understood that
(Abbas v. SET, G.R. No. 83767, October 22, 1988) such changes in party affiliation must be
permanent and not merely temporary alliances.
ET decisions are not appealable Endorsement is not sufficient to get a seat in CA.
(Daza v. Singson, G.R. No. 86344, Dec. 21, 1989)
Art. VI, Sec. 17 provides that the SET/HRET is the
sole judge of all contests. Hence, from its decision, NOTE: The provision of Sec. 18, Art. VI of the
there is no appeal. Appeal is not a constitutional Constitution, on proportional representation is
right but merely a statutory right. mandatory in character and does not leave any
discretion to the majority party in the Senate to
49
POLITICAL LAW
disobey or disregard the rule on proportional 2. Since the Commission is also an independent
representation; otherwise, the party with a constitutional body, its rules of procedure
majority representation in the Senate or the HoR are also outside the scope of congressional
can by sheer force of numbers impose its will on powers as well as that of the judiciary
the hapless minority. By requiring a proportional (Bondoc v. Pineda, G.R. No. 97710, September
representation in the CA, Sec. 18 in effect works as 26, 1991).
a check on the majority party in the Senate and
helps maintain the balance of power. No party can NOTE: The ET and the CA shall be constituted
claim more than what it is entitled to under such within 30 days after the Senate and the HoR shall
rule. (Guingona, Jr., et al., v. Gonzales, et al., G.R. No. have been organized with the election of the
106971, March 1, 1993) Senate President and the Speaker of the House.
Presidential appointments subject to Remedy from an adverse decision of the CA

confirmation by the Commission
A special civil action for certiorari under Rule 65 of
1. Heads of the Executive departments the Rules of Court may be filed. This is based on
XPN: Vice-President who is appointed to the grave abuse of discretion amounting to lack or
post excess of jurisdiction. This shall be filed before the
2. Ambassadors, other public ministers, or Supreme Court.
consuls
3. Officers of the AFP from the rank of colonel INITIATIVE AND REFERENDUM
or naval captain
4. Other officers whose appointments are Initiative
vested in him by the Constitution (i.e.
COMELEC members, etc.) It is the power of the people to propose
amendments to the Constitution or to propose and
NOTE: The enumeration is exclusive. enact legislation.
Rules on voting Kinds of Initiative under the Initiative and

Referendum Act (RA 6735)
1. The CA shall rule by a majority vote of all the
members. 1. Initiative on the Constitution – Refers to a
2. The chairman shall only vote in case of tie. petition proposing amendments to the
3. The CA shall act on all appointments within Constitution.
30 session days from their submission to 2. Initiative on statutes – Refers to a petition to
Congress. (1987 Constitution, Art. VI, Sec. 18) enact a national legislation.
3. Initiative on local legislation – Refers to a
Limitations in the confirmation of petition proposing to enact a regional,
appointment provincial, municipal, city, or barangay law,
resolution or ordinance[RA 6735, Sec. 3 (a)].
1. Congress cannot by law prescribe that the
appointment of a person to an office created NOTE: Sec. 3 (b) of RA 6735 provides for:
by such law be subject to confirmation by the
Commission. a. Indirect Initiative – Exercise of initiative by
2. Appointments extended by the President to the people through a proposition sent to
the above-mentioned positions while Congress or the local legislative body for
Congress is not in session shall only be action.
effective until disapproval by the b. Direct Initiative – The people themselves
Commission or until the next adjournment of filed the petition with the COMELEC and
Congress. (Sarmiento III, v. Mison, G.R. No. L- not with Congress.
79974, Dec. 17, 1987)
RA 6735 is INADEQUATE in covering the
Guidelines in the meetings of the CA system of initiative on amendments to the
Constitution (2014 Bar)
1. The Commission shall meet only while
Congress is in session, at the call of its Under the said law, initiative on the Constitution is
Chairman or a majority of all its members. confined only to proposals to amend. The people

2019 GOLDEN NOTE S
are not accorded the power to "directly propose, 2. Propose and
enact, approve, or reject, in whole or in part, the enact legislation.
Constitution" through the system of initiative.
They can only do so with respect to "laws, NOTE: The following are the limitations on
ordinances, or resolutions." Secondly, the Act does initiative or referendum:
not provide for the contents of a petition for
initiative on the Constitution. The use of the clause a. No petition embracing more than one (1)
"proposed laws sought to be enacted, approved or subject shall be submitted to the electorate.
rejected, amended or repealed" denotes that RA b. Statutes involving emergency measures, the
6735 excludes initiative on the amendments of the enactment of which are specifically vested
Constitution. in Congress by the Constitution, cannot be
subject to referendum until 90 days after
Also, while the law provides subtitles for National their effectivity. (RA 6735, Sec. 10).
Initiative and Referendum and for Local Initiative
and Referendum, no subtitle is provided for Non-Legislative Powers
initiative on the Constitution. This means that the
main thrust of the law is initiative and referendum Informing function of Congress
on national and local laws. If RA 6735 were
intended to fully provide for the implementation The informing function of the legislature includes
of the initiative on amendments to the its function to conduct legislative inquiries and
Constitution, it could have provided for a subtitle, investigation and its oversight power.
considering that in the order of things, the primacy
of interest, or hierarchy of values, the right of the The power of Congress does not end with the
people to directly propose amendments to the finished task of legislation. Associated with its
Constitution is far more important than the principal power to legislate is the auxiliary power
initiative on national and local laws. to ensure that the laws it enacts are faithfully
executed.
While RA 6735 specially detailed the process in
implementing initiative and referendum on The power of oversight has been held to be
national and local laws, it intentionally did not do intrinsic in the grant of legislative power itself and
so on the system of initiative on amendments to integral to the checks and balances inherent in a
the Constitution (Defensor-Santiago v. COMELEC democratic system of government. Woodrow
G.R. No. 127325, March 19, 1997). Wilson emphasized that “Even more important
than legislation is the instruction and guidance in
Referendum political affairs which the people might receive
from a body which kept all national concerns
It is the power of the electorate to approve or suffused in a broad daylight of discussion.”
reject legislation through an election called for (Opinion of J. Puno, Macalintal v. COMELEC, G.R. No.
that purpose. 157013, July 10, 2003)
Kinds of Referendum Other non-legislative powers
1. Referendum on Statutes - Refers to a petition 1. Power to declare the existence of state of war
to approve or reject a law, or part thereof, (1987 Constitution, Art. VI, Sec. 23, Par. 1)
passed by Congress.
2. Referendum on Local Law – Refers to a NOTE: Under Art. VI, Sec. 23(2), Congress may
petition to approve or reject a law, resolution grant the President emergency powers
or ordinance enacted by regional assemblies subject to the following conditions:
and local legislative bodies. (WaLiReN)
Initiative vs. Referendum (2000 Bar) a. There is a War or other national

emergency;
BASIS INITIATIVE REFERENDUM b. The grant of emergency powers must
1. Propose Approve or be for a Limited period;
Extent amendments to reject c. The grant of emergency powers is
the Constitution; legislation subject to such Restrictions as
Congress may prescribe; and
51
POLITICAL LAW
d. The emergency powers must be
exercised to carry out a National
policy declared by Congress.
2. Power to act as Board of Canvassers in

election of President (1987 Constitution, Art.
VII, Sec. 10)
3. Power to call a special election for President
and Vice-President (1987 Constitution, Art.
VII, Sec. 10)
4. Power to judge President’s physical fitness to
discharge the functions of the Presidency
(1987 Constitution, Art. VII, Sec. 11)
5. Power to revoke or extend suspension of the
privilege of the writ of habeas corpus or
declaration of martial law (1987 Constitution,
Art. VII, Sec. 18)
6. Power to concur in Presidential amnesties.
Concurrence of majority of all the members
of Congress (1987 Constitution, Art. VII, Sec.
19)
7. Power to concur in treaties or international
agreements; concurrence of at least 2/3 of all
the members of the Senate (1987
Constitution, Art. VII, Sec. 21)
8. Power to confirm certain appointments/
nominations made by the President (1987
Constitution, Art. VII, Secs. 9 and 16)
9. Power relative to natural resources
(1987 Constitution, Art. XII, Sec. 2)
10. Power of internal organization (1987
Constitution, Art. VI, Sec. 16)
a. Election of officers
b. Promulgate internal rules
Disciplinary powers

2019 GOLDEN NOTE S
Executive Department
EXECUTIVE DEPARTMENT his tenure. (1987 2. If appointed to a
Constitution, Art. Cabinet post, no
Head of the Executive Department VII, Sec. 6) need for
3. Immunity from Commission on
The President is both the head of State and head of suit for official Appointments’
government; hence, executive power is exclusively acts. confirmation. (1987
vested on him. Constitution, Art.
VII, Sec. 3)
QUALIFICATIONS, ELECTION, AND TERM OF
THE PRESIDENT AND VICE-PRESIDENT Presidential or executive immunity
Qualifications of the President The President is immune from suit during his
incumbency.
1. Natural-born citizen of the Philippines;
2. A registered voter; Rules on executive immunity
3. Able to read and write;
4. At least forty years of age on the day of the A. Rules on immunity DURING tenure (not term):
election; and
5. A resident of the Philippines for at least ten 1. The President is immune from suit during his
years immediately preceding such election. tenure. (In re: Bermudez, G.R. No. 76180,
(1987 Constitution, Art. VII, Sec. 2) October 24, 1986)
2. An impeachment complaint may be filed
Term of office of the President against him during his tenure. (1987
Constitution, Art. XI)
1. The President shall be elected by direct vote 3. The President may not be prevented from
of the people for a term of 6 years which shall instituting suit. (Soliven v. Makasiar, G.R. No.
begin at noon on the 30th day of June next 82585, November 14, 1988)
following the day of the election and shall 4. There is nothing in our laws that would
end at noon of the same date, 6 years prevent the President from waiving the
thereafter. privilege. He may shed the protection
2. The President shall not be eligible for any re- afforded by the privilege. (Soliven v.
election. Makasiar, ibid.)
NOTE: The Vice-President cannot serve for 5. Heads of departments cannot invoke the
more than 2 successive terms. President’s immunity. (Gloria v. CA, G.R. No.
3. No person who has succeeded as President 119903, August 15, 2000)
and has served as such for more than four
years shall be qualified for election to the B. Rule on immunity AFTER tenure:
same office at any time. (1987 Constitution,
Art. VII, Sec. 4) Once out of office, even before the end of the
6-year term, immunity for non-official acts is
NOTE: Vice-President shall have the same lost. Immunity cannot be claimed to shield a
qualifications and term of office and be elected non-sitting President from prosecution for
with, and in the same manner, as the President. He alleged criminal acts done while sitting in
may be removed from office in the same manner office. (Estrada v. Desierto, G.R. Nos. 146710-
as the President. (1987 Constitution, Art. VII, Sec. 3. 15, March 2, 2001)
PRIVILEGES, INHIBITIONS AND When a non-sitting President is not immune

DISQUALIFICATIONS from suit for acts committed during his tenure
Privileges of the President and Vice-President A non-sitting President does not enjoy immunity
from suit, even though the acts were done during
PRESIDENT VICE-PRESIDENT her tenure. The intent of the framers of the
Constitution is clear that the immunity of the
1. Official residence; 1. Salary shall
president from suit is concurrent only with his
2. Salary is not be tenure and not his term. Former President Arroyo
determined by law decreased cannot use the presidential immunity from suit to
and not to be during his shield herself from judicial scrutiny that would
decreased during tenure;
53
POLITICAL LAW
assess whether, within the context Elements of command responsibility
of amparo proceedings, she was responsible or
accountable for the abduction of Rodriguez. 1. The existence of a superior-subordinate
(Rodriguez v. GMA, G.R. Nos. 191805 & 193160, relationship between the accused as superior
November 15, 2011) and the perpetrator of the crime as his
subordinate;
When a former President cannot be impleaded 2. The superior knew or had reason to know
that the crime was about to be or had been
Impleading the former President as an unwilling committed;
co-petitioner, for an act she made in the 3. The superior failed to take the necessary and
performance of the functions of her office, is reasonable measures to prevent the criminal
contrary to the public policy against embroiling acts or punish the perpetrators thereof.
the President in suits, “to assure the exercise of (Rodriguez v. GMA, G.R. Nos. 191805 &
Presidential duties and functions free from any 193160, November 15, 2011)
hindrance or distraction, considering that being
the Chief Executive of the Government is a job that, Application of the doctrine of command
aside from requiring all of the office holder’s time, responsibility in amparo proceedings
also demands undivided attention. Therefore,
former President GMA cannot be impleaded as one It should, at most, be only to determine the author
of the petitioners in this suit. Thus, her name is who, at the first instance, is accountable for, and
stricken off the title of this case. (Resident Marine has the duty to address, the disappearance and
Mammals v. Reyes, G.R. No. 180771, April 21, 2015) harassments complained of, so as to enable the
Court to devise remedial measures that may be
Purpose of presidential immunity appropriate under the premises to protect rights
covered by the writ of amparo. (Rubrico v. GMA,
1. Separation of powers – viewed as demanding G.R. No. 183871, February 18, 2010)
the executive’s independence from the
judiciary, so that the President should not be President may be held liable for extrajudicial
subject to the judiciary’s whim. (Almonte, v. killings and enforced disappearances as
Vasquez, G.R. No. 95367, May 23, 1995) Commander-in-Chief
2. Public convenience – The grant is to assure
the exercise of presidential duties and The President may be held accountable under the
functions free from any hindrance or principle of command responsibility. Being the
distraction, considering that the presidency commander-in-chief of all armed forces, he
is a job that, aside from requiring all of the necessarily possesses control over the military
office-holders’ time, demands undivided that qualifies him as a superior within the purview
attention. (Soliven v. Makasiar, G.R. No. 82585, of the command responsibility doctrine.
Nov. 14, 1988)
On the issue of knowledge, it must be pointed out
NOTE: The immunity of the President from suit is that although international tribunals apply a strict
personal to the President. It may be invoked only standard of knowledge, i.e. actual knowledge, the
by the President and not by any other person. Such same may nonetheless be established through
privilege pertains to the President by the virtue of circumstantial evidence. In the Philippines, a
the office and may be invoked only by the holder more liberal view is adopted and superiors may be
of that office; and not by any other person in his charged with constructive knowledge.
behalf. (Soliven v. Makasiar, ibid.)
Knowledge of the commission of irregularities,
Principle of command responsibility crimes or offenses is presumed when:
It is “an omission mode of individual criminal 1. The acts are widespread within the
liability,” whereby the superior is made government official’s area of jurisdiction;
responsible for crimes committed by his 2. The acts have been repeatedly or regularly
subordinates for failing to prevent or punish the committed within his area of responsibility;
perpetrators (as opposed to crimes he ordered). or
(Rubrico v. GMA, G.R. No. 183871, February 18, 3. Members of his immediate staff or office
2010) personnel are involved.

2019 GOLDEN NOTE S
As to the issue of failure to prevent or punish, it is 2. Executive Secretary, upon proper
important to note that as the commander-in-chief authorization from the President
of the armed forces, the President has the power NOTE: Executive Secretary must state that
to effectively command, control and discipline the the authority is “By order of the President,”
military. (Rodriguez v. GMA, G.R. Nos. 191805 & which means he personally consulted with
193160, Nov. 15, 2011) the President.
Presidential or Executive Privilege (2009, Requirement if an official is summoned by

2010, 2015 Bar) Congress on a matter which in his own
judgment might be covered by executive
It is the power of the President and high-level privilege
executive branch officers to withhold certain types
of information from Congress, the courts, and He must be afforded reasonable time to inform the
ultimately the public. President or the Executive Secretary of the
possible need for invoking the privilege, in order
Invocation of the privilege to provide the same with fair opportunity to
consider whether the matter indeed calls for a
It must be invoked in relation to specific categories claim of executive privilege. If, after the lapse of
of information and not to categories of persons. that reasonable time, neither the President nor the
Executive Secretary invokes the privilege,
NOTE: A claim of the executive privilege may be Congress is no longer bound to respect the failure
valid or not depending on the ground invoked to of the official to appear before Congress and may
justify it and the context in which it is made. then opt to avail of the necessary legal means to
Noticeably absent is any recognition that compel his appearance (Senate v. Ermita, ibid.).
executive officials are exempt from the duty to
disclose information by the mere fact of being Requirements in invoking the privilege
executive officials. (Senate v. Ermita, G.R. No.
169777, April 20, 2006) 1. There must be a formal claim of the privilege;
and
Consequently, in case where the privilege is 2. The claim has specific designation and
invoked through executive orders (EOs) description of the documents within its
prohibiting executive officials from participating scope and with the precise and certain
in legislative inquiries, the Court held that “to the reasons for preserving their confidentiality.
extent that investigations in aid of legislation are
generally conducted in public, any executive Reason: Without this specificity, it is impossible
issuance tending to unduly limit disclosures of for a court to analyze the claim short of disclosure
information in such investigations necessarily of the very thing sought to be protected.
deprives the people of information which, being
presumed to be in aid of legislation, is presumed NOTE: Congress, however, must not require the
to be a matter of public concern. The citizens are Executive to state the reasons for the claim with
thereby denied access to information which they such particularity as to compel disclosure of the
can use in formulating their own opinions on the information, which the privilege is meant to
matter before Congress— opinions which they can protect (Senate v. Ermita, ibid.).
then communicate to their representatives and
other government officials through the various Limitation of executive privilege
legal means allowed by their freedom of
expression.” (Senate v. Ermita, ibid.) Claim of executive privilege is subject to balancing
against other interest. Simply put, confidentiality
Persons who can invoke executive privilege in executive privilege is not absolutely protected
by the Constitution. Neither the doctrine of
1. President separation of powers nor the need for
NOTE: Being an extraordinary power, the confidentiality of high-level communications can
privilege must be wielded only by the highest sustain an absolute, unqualified Presidential
official in the executive department. Thus, privilege of immunity from judicial process under
the President may not authorize her all circumstances (Neri v. Senate, G.R. No. 180643,
subordinates to exercise such power. March 25, 2008).
55
POLITICAL LAW
EO 464 requiring all Executive department BASIS PRESIDENTIA
heads to secure the consent of the President L DELIBERATIV
before appearing in Question Hour is valid COMMUNICA E PROCESS
TIONS PRIVILEGE
The requirement to secure presidential consent, PRIVILEGE
limited as it is only to appearances in the question Pertains
hour, is valid on its face. For unlike inquiries in aid to
of legislation under Sec. 21, Art. VI of the communi Includes
Constitution where such appearance is cations, advisory
mandatory, under Sec. 22, the appearance of documen opinions,
department heads in the question hour is ts or recomme
discretionary on their part. other ndations
materials and
Dictated by the basic rule of construction that that deliberati
issuances must be interpreted, as much as reflect ons
possible, in a way that will render it constitutional, president comprisin
the said provision must be construed as applicable Scope of
ial g part of a
only to appearances in question hour under Sec. the
decision- process
22, not in inquiries in aid of legislation under Sec. privilege
making by which
21. Congress is not bound in the latter instance to and governme
respect the refusal of the department head to deliberati ntal
appear in such inquiry, unless a valid claim of ons that decisions
privilege is subsequently made, either by the the and
President herself or by the Executive Secretary President policies
(Senate v. Ermita, G.R. No. 169777, April 20, 2006) . believes are
should formulate
Kinds of executive privilege remain d
confident
1. State secret privilege– Invoked by Presidents ial
on the ground that the information is of such Applies
nature that its disclosure would subvert Applies to
To to
crucial military or diplomatic objectives. decision-
whom decision-
2. Informer’s privilege– Privilege of the making of
applic making
government not to disclose the identity of executive
able of the
persons who furnish information in officials
President
violations of law to officers charged with the Rooted in
enforcement of the law. the
3. Generic privilege for internal deliberation– constituti
Said to attach to intra-governmental onal
documents reflecting advisory opinions, principle
recommendations and deliberations of Rooted in
comprising part of a process by which Foun
separatio common
governmental decisions and policies are datio
n of law
formulated. n
powers privileges
4. Presidential communications privilege; and the
5. Deliberative process privilege (In Re: Sealed President
Case No. 96-3124, June 17, 1997). ’s unique
constituti
Test to determine the validity of a claim of onal role
privilege: Whether the requested information
falls within one of the traditional privileges and Presidential Communications Privilege
whether that privilege should be honored in a
given procedural setting. Elements:
Presidential communications privilege vs. 1. The protected communication must relate to a

Deliberative process privilege “quintessential and non-delegable
presidential power.”

2019 GOLDEN NOTE S
2. The communication must be authored or even after the JPEPA is published. Disclosing these
“solicited and received” by a close advisor of offers could impair the ability of the Philippines to
the President or the President himself. The deal not only with Japan but also with other
judicial test is that an advisor must be in foreign governments in future negotiations. Thus,
“operational proximity” with the President. the DTI USec. correctly invoked executive
3. The presidential communications privilege privilege based claiming the information sought
remains a qualified privilege that may be pertains to diplomatic negotiations then in
overcome by a showing of adequate need, progress (AKBAYAN v. Aquino, G.R No. 170516, July
such that the information sought “likely 16, 2008).
contains important evidence” and by the
unavailability of the information elsewhere by NOTE: Such privilege is only presumptive.
an appropriate investigating authority.
Matters involving diplomatic negotiations are
Presumed privilege status of presidential covered by executive privilege. However, such
communications privilege is only presumptive. Recognizing a type
of information as privileged does not mean that it
The presumption is based on the President’s will be considered privileged in all instances. Only
generalized interest in confidentiality. The after a consideration of the context in which the
privilege is necessary to guarantee the candor of claim is made may it be determined if there is a
presidential advisors and to provide the President public interest that calls for the disclosure of the
and those who assist him with freedom to explore desired information, strong enough to overcome
alternatives in the process of shaping policies and its traditionally privileged status (AKBAYAN v.
making decisions and to do so in a way many could Aquino, ibid.).
be unwilling to express except privately. The
presumption can be overcome only by mere Prohibitions attached to the President, Vice-
showing of public need by the branch seeking President, Cabinet Members, and their
access to conversations. The courts are enjoined to deputies or assistants, unless otherwise
resolve the competing interests of the political provided in the Constitution (1996, 1998,
branches of the government “in a manner that 2002, 2004 Bar)
preserves the essential functions of each Branch.”
1. Shall not receive any other emolument from
Q: The HoRs’ House Committee conducted an the government or any other source (1987
inquiry on the Japan-Philippines Economic Constitution, Art. VII, Sec. 6).
Partnership Agreement (JPEPA), then being 2. Shall not hold any other office or employment
negotiated by the Philippine Government. The during their tenure unless:
House Committee requested DTI USec. Aquino a. Otherwise provided in the Constitution
to furnish it with a copy of the latest draft of the (e.g. VP can be appointed as a Cabinet
JPEPA. Jay replied that he shall provide a copy Member without the need of confirmation
thereof once the negotiations are completed. by Commission on Appointments; Sec. of
Justice sits in the Judicial and Bar Council)
A petition was filed with the SC which seeks to b. The positions are ex-officio and they do
obtain a copy of the Philippine and Japanese not receive any salary or other
offers submitted during the negotiation emoluments therefore (e.g. Sec. of
process and all pertinent attachments and Finance as head of the Monetary Board)
annexes thereto. Jay invoked executive
privilege based on the ground that the NOTE: This prohibition must not, however, be
information sought pertains to diplomatic construed as applying to posts occupied by
negotiations then in progress. On the other the Executive officials without additional
hand, Akbayan for their part invoked their compensation in an ex-officio capacity, as
right to information on matters of public provided by law and as required by the
concern. Are matters involving diplomatic primary functions of the said official’s office
negotiations covered by executive privilege? (National Amnesty Commission v. COA, G.R. No.
156982, September 2, 2004).
A: YES. The Court held that while the final text of
the JPEPA may not be kept perpetually 3. Shall not practice, directly or indirectly, any
confidential, the offers exchanged by the parties other profession during their tenure
during the negotiations continue to be privileged 4. Shall not participate in any business
57
POLITICAL LAW
5. Shall not be financially interested in any tenure unless otherwise provided in the
contract with, or in any franchise, or special Constitution. On the other hand, Kimberly
privilege granted by the Government, claims that according to Sec. 7, par. (2), Art. IX-
including GOCCs B of the Constitution, her appointment to such
6. Shall avoid conflict of interest in conduct of positions is outside the coverage of the
office prohibition under Sec. 13 of Art. VII as it falls
7. Shall avoid nepotism(1987 Constitution, Art. into one of the exceptions as being allowed by
VII, Sec. 13). law or by the primary functions of her position.
Does the designation of Kimberly as the Acting
NOTE: The spouse and relatives by consanguinity Secretary of Justice, concurrently with his
or affinity within the 4th civil degree of the position as Acting Solicitor General, violate the
President shall not, during his tenure, be constitutional prohibition against dual or
appointed as: multiple offices for the Members of the Cabinet
and their deputies and assistants?
a. Members of the Constitutional
Commissions; A: YES. There is violation of the Constitution in
b. Office of the Ombudsman; case an Acting Secretary of Justice is designated as
c. Secretaries; Acting Solicitor General because while all other
d. Undersecretaries; appointive officials in the civil service are allowed
e. Chairmen or heads of bureaus or to hold other office or employment in the
offices, including GOCCs and their government during their tenure when such is
subsidiaries. allowed by law or by the primary functions of their
positions, members of the Cabinet, their
If the spouse, etc., was already in any of the above deputies and assistants may do so only when
offices at the time before his/her spouse became expressly authorized by the Constitution itself. In
President, he/she may continue in office. What is other words, Sec. 7, Art. IX-B is meant to lay down
prohibited is appointment and reappointment, not the general rule applicable to all elective and
continuation in office. appointive public officials and employees, while
Sec. 13, Art. VII is meant to be the exception
Spouses, etc., can be appointed to the judiciary and applicable only to the President, the Vice-
as ambassadors and consuls. President, and Members of the Cabinet, their
deputies and assistants.
Q: Joey, the Chief Presidential Legal Counsel
(CPLC), was also appointed as Chairman of the On its face, the language of Sec. 13, Art. VII is
PCGG. May the two offices be held by the same prohibitory so that it must be understood as
person? intended to be a positive and unequivocal
negation of the privilege of holding multiple
A: NO. When the Chief Presidential Legal Counsel government offices or employment.
was also appointed as Chairman of the PGCC, the
Court held that the two offices are incompatible. The phrase "unless otherwise provided in this
Without question, the PCGG is an agency under the Constitution" must be given a literal interpretation
Executive Department. Thus, the actions of the to refer only to those instances cited in the
PCGG Chairman are subject to the review of the Constitution itself, to wit:
CPLC(Public Interest Group v. Elma, G.R. No.
138965, June 30, 2006). a. The Vice-President being appointed as a
member of the Cabinet under Sec. 3, par. (2),
Q: The President appointed Kimberly as the Art. VII; or acting as President in those
Acting Secretary of Justice. After a couple of instances provided under Sec. 7, pars. (2) and
days, the President designated her as the (3), Art. VII; and
Acting Solicitor General in a concurrent b. The Secretary of Justice being ex-
capacity. Julie contested the appointment of officio member of the Judicial and Bar Council
Kimberly on the ground that the appointment by virtue of Sect. 8 (1), Art. VIII (Funa v. Agra,
violated Sec. 13, Art. VII of the Constitution G.R. No. 191644, February 19, 2013).
which expressly prohibits the President, Vice-
President, the Members of the Cabinet, and Sec. 13, Art. VII undoubtedly covers the Acting
their deputies or assistants from holding any Secretary of Justice as being concurrently
other office or employment during their designated as Acting Solicitor General; therefore,

2019 GOLDEN NOTE S
he could not validly hold any other office or 5. Borrowing power (1987 Constitution, Art. VII,
employment during his tenure as the Acting Sec. 20)
Solicitor General, because the Constitution has not 6. Diplomatic/Treaty-making power (1987
otherwise so provided. Constitution, Art. VII, Sec. 21)
7. Budgetary power (1987 Constitution, Art. VII,
POWERS OF THE PRESIDENT Sec. 22)
8. Informing power (1987 Constitution, Art. VII,
EXECUTIVE AND ADMINISTRATIVE POWERS Sec. 23)
IN GENERAL 9. Veto power (1987 Constitution, Art. VI, Sec.
27)
Executive Power 10. Power of general supervision over local
governments (1987 Constitution, Art. X, Sec.
Power vested in the President of the Philippines. 4)
The President shall have control of all executive 11. Power to call special session (1987
departments, bureaus and offices. He shall ensure Constitution, Art. VI, Sec. 15)
that laws are faithfully executed (1987
Constitution, Art. VII, Sec. 17). Administrative power
Faithful Execution Clause Power concerned with the work of applying

policies and enforcing orders as determined by
The power to take care that the laws be faithfully proper governmental organs. It enables the
executed makes the President a dominant figure in President to fix a uniform standard of
the administration of the government. The law he administrative efficiency and check the official
is supposed to enforce includes the Constitution, conduct of his agents. To this end, he can issue
statutes, judicial decisions, administrative rules administrative orders, rules and regulations (Ople
and regulations and municipal ordinances, as well v. Torres, G.R. No. 127685, July 23, 1998).
as treaties entered into by the government.
Power of administrative reorganization
Scope of executive power
The President has the continuing authority to
1. Executive power is vested in the President of reorganize the national government, which
the Philippines. (1987 Constitution, Art. VII, includes the power to group, consolidate bureaus
Sec. 1). and agencies, to abolish offices, to transfer
2. It is not limited to those set forth in the functions, to create and classify functions, services
Constitution (Residual powers) (Marcos v. and activities and to standardize salaries and
Manglapus, G.R. No. 88211, October 27, 1989). materials; it is effected in good faith if it is for the
3. Privilege of immunity from suit is personal to purpose of economy or to make bureaucracy more
the President and may be invoked by him efficient(MEWAP v. Exec. Sec., G.R. No. 160093, July
alone. It may also be waived by the President, 31, 2007).
as when he himself files suit (Soliven v.
Makasiar, G.R. No. 82585, November 14, Q: President Benigno Simeon Aquino III issued
1988). Executive Order No. 13 (E.O. 13), abolishing the
PAGC and transferring its functions to the
Specific powers of the President Office of the Deputy Executive Secretary for
Legal Affairs (ODESLA), more particularly to its
1. Appointing power (1987 Constitution, Art. newly-established Investigative and
VII, Sec. 16) Adjudicatory Division (IAD). Does the EO usurp
2. Power of control over all executive the legislative power to create office?
departments, bureaus and offices (1987
Constitution, Art. VII, Sec. 17) A: NO. The President has Continuing Authority to
3. Commander-in-Chief powers (calling-out Reorganize the Executive Department under E.O.
power, power to place the Philippines under 292. In Domingo v. Zamora, the Court gave the
martial law, and power to suspend the rationale behind the President's continuing
privilege of the writ of habeas corpus) (1987 authority. The law grants the President this power
Constitution, Art. VII, Sec. 18) in recognition of the recurring need of every
4. Pardoning power (1987 Constitution, Art. VII, President to reorganize his office "to achieve
Sec. 19) simplicity, economy and efficiency." The President
59
POLITICAL LAW
merely organized his office. (Prospero Pichay v. NOTE: The incumbent must first be legally
Executive Secretary, G. R. No. 196425, July 24, removed, or his appointment validly
2012, PER J. PERLAS-BERNABE) terminated, before one could be validly
installed to succeed him.
POWER OF APPOINTMENT
4. Receipt of the appointment paper and
Appointment Acceptance of the appointment by the
appointee who possesses all the
The selection of an individual who is to exercise qualifications and none of the
the functions of a given office. It may be made disqualifications
verbally but it is usually done in writing through
what is called the commission. NOTE: The possession of the original
appointment paper is not indispensable to
NOTE: The appointing power of the President is authorize an appointee to assume office. If it
executive in nature. While Congress and the were indispensable, then a loss of the original
Constitution in certain cases may prescribe the appointment paper, which could be brought
qualifications for particular offices, the about by negligence, accident, fraud, fire or
determination of who among those who are theft, corresponds to a loss of the office.
qualified will be appointed is the President’s Howe ver, in case of loss of the original
prerogative (Pimentel v. Ermita, G.R. No. 164978, appointment paper, the appointment must
October 13, 2005). be evidenced by a certified true copy issued
by the proper office, in this case the
Note: Although intrinsically executive and Malacañang Records Office.
therefore pertaining mainly to the President, the
appointing power may be exercised by the NOTE: Acceptance is indispensable to
legislature and by the judiciary, as well as the complete an appointment. Assuming office
Constitutional Commissions, over their respective and taking the oath amount to acceptance of
personnel. the appointment. An oath of office is a
qualifying requirement for a public office, a
Kinds of Presidential appointments prerequisite to the full investiture of the
office.
1. Appointments made by an Acting President;
2. Midnight Appointment; (1987 Constitution, Concurrence of all these elements should
Art. VII, Sec. 15) always apply, regardless of when the appointment
3. Regular Presidential Appointments, with or is made, whether outside, just before, or during
without the confirmation by the CA; or the appointment ban. These steps in the
4. Ad-interim Appointments. appointment process should always concur and
operate as a single process. There is no valid
Elements in making a valid, complete, and appointment if the process lacks even one step.
effective Presidential appointment: (ATVA) And there is no need to further distinguish
between an effective and an ineffective
1. Authority to appoint and evidence of the appointment when an appointment is valid
exercise of the authority; (Velicaria-Garafil v. Office of the President, G.R. No.
2. Transmittal of the appointment paper signed 203372, June 16, 2015).
by the President and evidence of the
transmittal; Non-justiciability of appointments
NOTE: It is not enough that the President signs the Appointment is a political question. So long as the
appointment paper. There should be evidence that appointee satisfies the minimum requirements
the President intended the appointment paper to prescribed by law for the position, the
be issued. Release of the appointment paper appointment may not be subject to judicial review.
through the Malacañang Records Office (MRO) is
an unequivocal act that signifies the President’s Rule on the effectivity of appointments made
intent of its issuance. by an Acting President
3. A Vacant position at the time of appointment; Shall remain effective unless revoked by the
elected President within 90 days from his

2019 GOLDEN NOTE S
assumption/re-assumption (1987 Constitution,
Art. VII, Sec. 14). 2. Ambassadors, other public ministers and
consuls– Those connected with the
Designation diplomatic and consular services of the
country.
The imposition of additional duties on a person 3. Officers of AFP from the rank of colonel or
already in the public service. It is considered only naval captain
as an acting or temporary appointment, which NOTE: PNP of equivalent ranks and the
does not confer security of tenure on the person Philippine Coast Guard is not included.
named (Binamira v. Garrucho, G.R. No. 92008, July 4. Other officers of the government whose
30, 1990). appointments are vested in the President in
the Constitution (1987 Constitution, Art. VII,
NOTE: The President has the power to Sec. 16), such as:
temporarily designate an officer already in the
government service or any other competent a. Chairmen and members of the CSC,
person to perform the functions of an office in the COMELEC and COA [1987 Constitution,
executive branch. Temporary designation cannot Art. IX-B, C, D, Sec. 1(2)]
exceed one year. b. Regular members of the JBC [1987
Constitution, Art. VIII, Sec. 8(2)]
Appointments made solely by the President
NOTE: The enumeration is exclusive.
1. Those vested by the Constitution on the
President alone; Appointing procedure for those that need
2. Those whose appointments are not Commission’s confirmation
otherwise provided by law;
3. Those whom he may be authorized by law to 1. Nomination by the President
appoint; and 2. Confirmation by the CA
4. Those other officers lower in rank whose 3. Issuance of commission
appointment is vested by law in the 4. Acceptance by the appointee
President alone (1987 Constitution, Art. VII,
Sec. 16). NOTE: At any time, before all four steps have been
complied with, the President can withdraw the
Presidential appointments that need prior nomination and appointment (Lacson v. Romero,.R.
recommendation or nomination by the Judicial No. L-3081, October 14, 1949).
and Bar Council
Appointments where confirmation of the
1. Members of the Supreme Court and all Commission on Appointments is NOT
lower courts (1987 Constitution, Art. VIII, required:
Sec. 9).
2. Ombudsman and his 5 deputies 1. All other officers of the Government whose
appointments are not otherwise provided for
CONFIRMATION AND BY-PASSED by law
APPOINTMENTS 2. Those whom the President may be authorized
by law to appoint
Appointments where confirmation of the 3. Officers lower in rank whose appointments the
Commission on Appointments is required Congress may by law vest in the President
(HA2O) alone (Manalo v. Sistoza, 312 SCRA 239, August
11, 1999, En Banc).
1. Heads of executive departments
Procedure for those that do not need the
GR: Appointment of cabinet secretaries Commission’s confirmation
requires confirmation. 1. Appointment
2. Acceptance
XPN: Vice-president may be appointed as
a member of the Cabinet and such AD INTERIM APPOINTMENTS
appointment requires no confirmation
[1987 Constitution, Art. VII, Sec. 3(2)]. Ad interim Appointment
61
POLITICAL LAW
s is in
Power of the President to make appointments session
during the recess of Congress, but such or not
appointments shall be effective only until Require Does not
disapproval by the Commission on Appointments As to
s require
or until the next adjournment of the Congress confirm
confirm confirm
ation of
(Matibag v. Benipayo, G.R. No. 149036, April 2, ation of ation of
2002). the
the the
Commiss
Commis Commis
Purpose of ad interim appointment ion
sion sion
Ad interim appointments are intended to prevent Permanent in Temporary in

Nature
a hiatus in the discharge of official duties. nature nature
Obviously, the public office would be immobilized Appoint Appoint
to the prejudice of the people if the President had ee ee does
to wait for Congress and the Commission of As to
enjoys not
Appointments to reconvene before he could fill a security
security enjoy
vacancy occurring during the recess (Guevara v. of
of security
Inocentes, G.R. No. L-25577, March 15, 1966). tenure
tenure of
tenure
Nature of ad interim appointment
Permanent Appointment vs. Temporary
Ad interim appointments are permanent Appointment
appointments. It is permanent because it takes
effect immediately and can no longer be PERMANEN TEMPORARY
withdrawn by the President once the appointee T APPOINTMEN
qualified into office. The fact that it is subject to BASIS
APPOINTME T
confirmation by the CA does not alter its NT
permanent character. In cases where the term of Extende Given to
said ad interim appointee had expired by virtue of d to persons
inaction by the Commission on Appointments, he persons without
may be reappointed to the same position without As to possessi such
violating the Constitutional provision prohibiting persons ng the eligibility;
an officer whose term has expired from being reappointed requisit
appointed (Matibag v. Benipayo, G.R. No. 130657, e
April 1, 2002). eligibilit
y
NOTE: Being a permanent appointment, an ad Not Revocable
interim appointee pending action by the revocab at will
Commission on Appointments enjoys security of le at will without
tenure (Marombhosar v. CA, G.R. No. 126481, the
February 18, 2000). necessity
of just
Ad interim appointment vs. Appointment in an As to
cause or a
Acting Capacity acts of
valid
the
investigati
APPOINTME appoin
AD INTERIM on;
NT IN AN tee
BASIS APPOINTME appointin
ACTING g power
NT
CAPACITY has full
Made at discretion
any time to change
Made during there is
When made the recess of vacancy, (See further discussion under Law on Public
Congress i.e., Officers)
whether
Congres

2019 GOLDEN NOTE S
President may appoint Acting Secretaries
without the consent of the Commission while Prohibited appointments under Sec. 15, Art.
the Congress is in session VII of the Constitution
Congress, through a law, cannot impose on the 1. Those made for buying votes– Refers to those
President the obligation to appoint automatically appointments made within two months
the undersecretary as her temporary alter ego. An preceding the Presidential election and are
alter ego, whether temporary or permanent, holds similar to those which are declared election
a position of great trust and confidence. The office offenses in the Omnibus Election Code; and
of a department secretary may become vacant 2. Those made for partisan considerations–
while Congress is in session. Since a department Consists of the so-called “midnight”
secretary is the alter ego of the President, the appointments (In Re: Hon. Valenzuela and
acting appointee to the office must necessarily Hon. Vallarta, A.M. No. 98-5-01-SC, November
have the President’s confidence (Pimentel v. 9, 1998).
Ermita, G.R. No. 164978, October 13, 2005).
Q: Does the prohibition against appointments
NOTE: Acting appointments cannot exceed one provided under Sec. 15, Art VII of the
year [EO 292, Book III, Title I, Chapter 5, Sec. 17 (3)] Constitution apply to appointments to the
judiciary?
Limitations on the appointing power of the
President A: NO. Art. VII is devoted to the Executive
Department. Had the framers intended to extend
1. The spouse and relatives by consanguinity or the prohibition contained in Sec. 15, Art. VII to the
affinity within the 4th civil degree of the appointment of Members of the Supreme Court,
President shall not, during his "tenure" be they could have explicitly done so. They could not
appointed as: have ignored the meticulous ordering of the
provisions. They would have easily and surely
a. Members of the Constitutional written the prohibition made explicit in Sec. 15,
Commissions; Art. VII as being equally applicable to the
b. Member of the Office of Ombudsman; appointment of Members of the Supreme Court in
c. Secretaries; Art. VIII itself, most likely in Sec. 4 (1), Art. VIII.
d. Undersecretaries; That such specification was not done only reveals
e. Chairmen or heads of bureaus or offices, that the prohibition against the President or
including government-owned or Acting President making appointments within two
controlled corporations and their months before the next presidential elections and
subsidiaries (1987 Constitution, Art. VII, up to the end of the President’s or Acting
Sec. 13[2]). President’s term does not refer to the Members of
the Supreme Court (De Castro v. JBC, G.R. No.
2. Appointments made by the acting-President 191002, March 17, 2010).
shall remain effective unless revoked within
90 days from assumption of office by elected Q: President Arroyo appointed Atty. Velicaria-
President (1987 Constitution, Art. VII, Sec. Garafil as State Solicitor II on 5 March 2010.
14). The appointment paper was transmitted on 8
3. GR: Two months immediately before the March 2010 and was received by the
next Presidential elections (2nd Monday of Malacañang Records Office (MRO) on 13 May
May), and up to the end of his "term" (June 2010. Atty. Velicaria-Garafil, on the other hand,
30), a President (or Acting President) shall took her oath of office on 22 March 2010 and
not make appointments. assumed thereto 6 April 2010. The cut-off date
for valid presidential appointments was on 10
XPN: Temporary appointments, to executive March 2010 or two months preceding the 10
positions, when continued vacancies therein May 2010 elections. Upon assumption of
will prejudice public service (1987 President Aquino III, he issued E.O. No. 2
Constitution, Art. VII, Sec. 15), e.g. Postmaster; recalling, withdrawing, and revoking all
or endanger public safety, e.g. Chief of Staff. midnight appointments of President Arroyo
(1991, 1997 Bar) which includes all appointments bearing dates
prior to 11 March 2010 where the appointee
MIDNIGHT APPOINTMENTS has accepted, or taken his oath, or assumed
63
POLITICAL LAW
public office on or after 11 March 2010. Atty. fact, considering the purpose of the
Velicaria-Garafil asserts the validity of her appointment ban, the concurrence of all steps
appointment and now questions the in the appointment process must be strictly
constitutionality of E.O. No. 2. Decide. applied on appointments made just before or
during the appointment ban (Velicaria-Garafil v.
A: E.O. No. 2 is constitutional. Atty. Velicaria- Office of the President, ibid.).
Garafil’s appointment is a midnight appointment
and is void for violation of Art. VII, Sec. 15 of the Prohibition on midnight appointments only
1987 Constitution. Appointment to a government applies to presidential appointments
post is a process that takes several steps to
complete. Any valid appointment, including one The prohibition on midnight appointments only
made under the exception provided in Section 15, applies to presidential appointments. It does not
Article VII of the 1987 Constitution, must consist apply to appointments made by local chief
of the President signing an appointee’s executives. Nevertheless, the Civil Service
appointment paper to a vacant office, the official Commission has the power to promulgate rules
transmittal of the appointment paper (preferably and regulations to professionalize the civil service.
through the MRO), receipt of the appointment It may issue rules and regulations prohibiting local
paper by the appointee, and acceptance of the chief executives from making appointments
appointment by the appointee evidenced by his or during the last days of their tenure. Appointments
her oath of office or his or her assumption to office. of local chief executives must conform to these
The purpose of the prohibition on midnight civil service rules and regulations in order to be
appointments is to prevent a President, whose valid (Provincial Government of Aurora v. Marco,
term is about to end, from preempting his G.R. No. 202331, April 22, 2015).
successor by appointing his own people to
sensitive positions (Velicaria-Garafil v. Office of the POWER OF REMOVAL
President, G.R. No. 203372, June 16, 2015)
GR: From the express power of appointment, the
Q: Supposing that Atty. Velicaria-Garafil’s President derives the implied power of removal.
appointment and its transmittal are made
before the ban (11 March 2010) but she took XPN: Not all officials appointed by the President
her oath and assumed (acceptance of are also removable by him since the Constitution
appointment) as State Solicitor II only after the prescribes certain methods for the separation
ban, is the appointment still a midnight from the public service of such officers
appointment? e.g. impeachment
A: YES. The President exercises only one kind of NOTE: The President is without any power to
appointing power. There is no need to remove elected local officials since the power is
differentiate the exercise of the President’s exclusively provided in the last paragraph of
appointing power outside, just before, or during Section 60 of the Local Government Code.
the appointment ban. The Constitution allows the
President to exercise the power of appointment Source of the President’s Power of Removal
during the period not covered by the appointment
ban and disallows (subject to an exception) the The President derives his implied power of
President from exercising the power of removal from other powers expressly vested in
appointment during the period covered by the him.
appointment ban. The concurrence of all steps
in the appointment process is admittedly 1. It is implied from his power to appoint.
required for appointments outside the 2. Being executive in nature, it is implied from
appointment ban. There is no justification the constitutional provision vesting the
whatsoever to remove acceptance as a executive power in the President.
requirement in the appointment process for 3. It may be implied from his function to take
appointments just before the start of the care that laws be properly executed; for
appointment ban, or during the appointment ban without it, his orders for law enforcement
in appointments falling within the exception. The might not be effectively carried out.
existence of the appointment ban makes no 4. The power may be implied from the
difference in the power of the President to President’s control over the administrative
appoint; it is still the same power to appoint. In departments, bureaus, and offices of the

2019 GOLDEN NOTE S
government. Without the power to remove, it
would not be always possible for the Q: Clarence sued PGA Cars before the DTI
President to exercise his power of control. pursuant to the Consumer Act (R.A. 7394) due
to the defect in the BMW he bought from the
NOTE: Members of the career service of the Civil latter. DTI sided with Clarence. PGA Cars
Service who are appointed by the President may appealed before the Office of the President
be directly disciplined by him. (Villaluz v. Zaldivar, (OP) which reversed the DTI’s decision.
G.R. No. L-22754, Dec. 31, 1965) provided that the Clarence elevated the matter before the CA
same is for cause and in accordance with the through Rule 65 and argued that the OP had no
procedure prescribed by law. appellate jurisdiction over DTI’s decision. The
OP countered that it has an appellate
Members of the Cabinet and such officers whose jurisdiction over DTI on the ground that the
continuity in office depend upon the President President’s power of control over the
may be replaced at any time. Legally speaking, executive department grants him the power to
their separation is effected not by the process of amend, modify, alter or repeal decisions of the
removal but by the expiration of their term(Aparri department secretaries. Decide.
v. CA, G.R. No. L-30057, January 31, 1984).
A: Clarence is correct. The executive power of
The President has no disciplinary authority control over the acts of department secretaries is
over the Ombudsman laid down in Section 17, Article VII of the 1987
Constitution. The power of control has been
Sec. 8(2) of RA 6770 vesting disciplinary authority defined as the "power of an officer to alter or
on the President over the Deputy Ombudsman modify or nullify or set aside what a subordinate
violates the independence of the Office of the officer had done in the performance of his duties
Ombudsman and is, thus, unconstitutional. and to substitute the judgment of the former for
that of the latter."
Subjecting the Deputy Ombudsman to discipline
and removal by the President, whose own alter Such "executive control" is not absolute. The
egos and officials in the Executive Department are definition of the structure of the executive branch
subject to the Ombudsman's disciplinary of government, and the corresponding degrees of
authority, cannot but seriously place at risk the administrative control and supervision is not the
independence of the Office of the Ombudsman exclusive preserve of the executive. It may be
itself. The law directly collided not only with the effectively limited by the Constitution, by law, or
independence that the Constitution guarantees to by judicial decisions. All the more in the matter of
the Office of the Ombudsman, but inevitably with appellate procedure as in the instant case. Appeals
the principle of checks and balances that the are remedial in nature; hence, constitutionally
creation of an Ombudsman office seeks to subject to this Court’s rulemaking power. The
revitalize. What is true for the Ombudsman must Rules of Procedure was issued by the Court
be equally and necessarily true for her Deputies pursuant to Section 5, Article VIII of the
who act as agents of the Ombudsman in the Constitution, which expressly empowers the
performance of their duties (Gonzales III v. Supreme Court to promulgate rules concerning
Ochoa, G. R. No. 196231; Barreras-Sulit v. Ochoa, the procedure in all courts.
G.R. No. 196232; February 26, 2014, PER J.
PERLAS-BERNABE). Parenthetically, Administrative Order (A.O.) No.
18 expressly recognizes an exception to the
POWER OF CONTROL AND SUPERVISION remedy of appeal to the Office of the President
from the decisions of executive departments and
The President shall have control of all executive agencies. Under Section 1 thereof, a decision or
departments, bureaus and offices. (1987 order issued by a department or agency need not
Constitution, Art. VII, Sec. 17) be appealed to the Office of the President when
there is a special law that provides for a different
Power of Control mode of appeal.
The power of an officer to alter or modify or nullify In this case, a special law, RA 7394, expressly
or to set aside what a subordinate has done in the provided for immediate judicial relief from
performance of his duties and to substitute one’s decisions of the DTI Secretary by filing a petition
own judgment for that of a subordinate. for certiorari with the "proper court." Hence,
65
POLITICAL LAW
private respondent should have elevated the case NOTE: Applying this doctrine, the power of the
directly to the CA through a petition for certiorari President to reorganize the National Government
(Moran v. Office of the President, G.R. No. 192957, may be validly delegated to his Cabinet Members
Sept. 29, 2014). exercising control over a particular executive
department (DENR v. DENR Region XII Employees,
NOTE: The President’s power over GOCCs comes G.R. No. 149724, August 19, 2003).
from statute, not from the Constitution, hence, it
may be taken away by statute. Q: The Toll Regulatory Board (TRB) and PNCC
executed the Amendment to the Supplemental
The President has full control of all the members Toll Operation Agreement (ASTOA). The
of his Cabinet. He may appoint them as he sees fit, ASTOA incorporated the amendments to cover
shuffle them at pleasure, and replace them in his the design and construction of Stage 2 of the
discretion without any legal inhibition whatever. South Metro Manila Skyway. The DOTC
However, such control is exercisable by the Secretary then approved the ASTOA. Risa
President only over the acts of his subordinates Hontiveros assailed the DOTC Secretary’s
and not necessarily over the subordinate himself. approval on the ground that it could not take
(Ang-Angco v. Castillo, G.R. No.L-17169, November the place of the presidential approval required
30, 1963) under P.D. 1113 and P.D. 1894 concerning the
franchise granted to PNCC. Is Risa Correct?
DOCTRINE OF QUALIFIED POLITICAL AGENCY
A: NO. The doctrine of qualified political agency
“Doctrine of Qualified Political Agency” or declares that, save in matters on which the
“Alter Ego Principle” (2014, 2015 Bar) Constitution or the circumstances require the
President to act personally, executive and
The acts of the secretaries of the Executive administrative functions are exercised through
departments performed and promulgated in the executive departments headed by cabinet
regular course of business are presumptively the secretaries, whose acts are presumptively the acts
acts of the Chief Executive (Villena v. Sec. of the of the President unless disapproved by the latter.
Interior, G.R. No. L-46570, April 21, 1939). There can be no question that the act of the
secretary is the act of the President, unless
XPNs to the Alter Ego doctrine repudiated by the latter. In this case, approval of
the ASTOA by the DOTC Secretary had the same
1. If the acts are disapproved or reprobated by effect as approval by the President. The same
the President; would be true even without the issuance of E.O.
2. If the President is required to act in person 497, in which the President, on 24 January 2006,
by law or by the Constitution. specifically delegated to the DOTC Secretary the
e.g. executive clemency authority to approve contracts entered into by the
TRB. Risa’s reliance on P.D. 1113 and P.D. 1894 is
NOTE: It would appear though that doctrine of misplaced. When we say that the approval by the
qualified political agency would not be applicable DOTC Secretary in this case was approval by the
to acts of cabinet secretaries done in their capacity President, it was not in connection with the
as ex-officio board directors of a GOCC of which franchise of PNCC, as required under P.D. 1113
they become a member not by appointment of the and P.D. 1894. Rather, the approval was in
President but by authority of law (See: Trade and connection with the powers of the TRB to enter
Investment Development Corporation of the into contracts on behalf of the government as
Philippines v. Manalang-Demigillo, G.R. Nos. provided under Section 3(a) of P.D. 1112
168613 & 185571). (Hontiveros-Baraquel v. Toll Regulatory Board, G.R.
No. 181293, February 23, 2015).
Essence of the Alter Ego doctrine
Q: Atty. Alcantara questioned R.A. 9337 which
Since the President is a busy man, he is not authorizes the President, upon
expected to exercise the totality of his power of recommendation of the Secretary of Finance,
control all the time. He is not expected to exercise to raise the VAT rate to 12%. Atty. Alcantara
all his powers in person. He is expected to delegate argues that said law is unconstitutional since
some of them to men of his confidence, the law effectively nullified the President’s
particularly to members of his Cabinet. power of control over the Secretary of Finance
by mandating the raising of the VAT rate upon

2019 GOLDEN NOTE S
the latter’s recommendation. Is Atty. Alcantara The power of a superior officer to ensure that the
correct? laws are faithfully executed by subordinates.
A: NO. In making his recommendation to the The power of the President over LGUs is only of
President, the Secretary of Finance is not acting as general supervision. Thus, he can only interfere in
the alter ego of the President or even her the affairs and activities of a LGU if he finds that
subordinate. In such instance, he is not subject to the latter acted contrary to law.
the power of control and direction of the
President. He is acting as the agent of the The President or any of his alter egos cannot
legislative department, to determine and declare interfere in local affairs as long as the concerned
the event upon which its expressed will is to take LGU acts within the parameters of the law and the
effect. The Secretary of Finance becomes the Constitution. Any directive, therefore, by the
means or tool by which legislative policy is President or any of his alter egos seeking to alter
determined and implemented, considering that he the wisdom of a law-conforming judgment on local
possesses all the facilities to gather data and affairs of a LGU is a patent nullity, because it
information and has a much broader perspective violates the principle of local autonomy, as well as
to properly evaluate them. Thus, being the agent of the doctrine of separation of powers of the
Congress and not of the President, the President executive and the legislative departments in
cannot alter or modify or nullify, or set aside the governing municipal corporations (Dadole v. COA,
findings of the Secretary of Finance and to G.R. No. 125350, December 3, 2002).
substitute the judgment of the former for that of
the latter(ABAKADA v. Exec. Sec., G.R. No. 168056, Control vs. Supervision
September 1, 2005).
BASIS CONTROL SUPERVISION
NOTE: As a rule, an aggrieved party need not The
appeal to the Office of the President the decision of An supervisor or
a cabinet secretary and may file a petition for officer in superintende
certiorari directly with the court assailing the act control nt merely
of the said secretary. His acts are presumed to be lays sees to it that
of the President’s unless disapproved or Nature down the rules are
reprobated by him (Manubay v. Garilao, G.R. No. the rules followed, but
140717, April 16, 2009). in the he himself
doing of does not lay
EXECUTIVE DEPARTMENTS AND OFFICES an act. down such
rules.
Department Heads may exercise power of The
control in behalf of the President including the supervisor
power to reverse the judgment of an inferior If the rules does not
officer. are not have the
followed, discretion to
For instance, the Sec. of Justice may reverse the the officer modify or
judgment of a prosecutor and direct him to in control replace them.
withdraw information already filed. One, who may, in his If the rules
disagrees, however, may appeal to the Office of the discretion, are not
President in order to exhaust administrative As to order the observed, he
remedies prior filing to the court. discreti act may order
on of the undone or the work
Also, the Executive Secretary when acting “by officer re-done done or re-
authority of the President” may reverse the by his done but
decision of another department secretary (Lacson- subordina only to
Magallanes v. Paño, G.R. No. L-27811, November 17, te or he conform to
1967). may even the
decide to prescribed
LOCAL GOVERNMENT UNITS do it rules. (Drilon
himself. v. Lim, G.R.
Power of General Supervision No. 112497,
Aug. 4, 1994)
67
POLITICAL LAW
NOTE: What is permitted to be suspended by
NOTE: The power of supervision does not include the President is not the writ itself but its
the power of control; but the power of control privilege.
necessarily includes the power of supervision.
WRIT OF HABEAS PRIVILEGE OF THE
MILITARY POWERS CORPUS WRIT
An order from the That portion of
Scope of the President’s Commander-in-Chief court commanding a the writ
Powers detaining officer to requiring the
inform the court if he detaining
1. COMMAND OF THE ARMED FORCES – has the person in officer to show
absolute authority over the persons and custody, and what his cause why he
actions of the members of the armed forces basis is in detaining should not be
(Gudani v. Senga, G.R. No. 170165, Aug. 15, that person. tested.
2006).
Requisites for the suspension of the privilege
NOTE: By making the President the of the writ of habeas corpus
Commander-in-Chief of all the armed forces,
the principle announced in Sec. 3, Art. II is 1. There must be an invasion or rebellion; and
bolstered. Thus, the Constitution lessens the 2. Public safety requires the suspension
danger of a military take-over of the
government in violation of its republican NOTE: The invasion and rebellion must be actual
nature. and not merely imminent.
The President as Commander-in-Chief can Non-impairment of the right to bail

prevent the Army General from appearing in
a legislative investigation and, if disobeyed, The right to bail shall not be impaired even when
can subject him to court martial (Gudani v. the privilege of the writ of habeas corpus is
Senga, G.R. No. 170165, August 15, 2006). suspended. (1987 Constitution, Art. III, Sec. 13)
2. CALLING-OUT POWERS – Call the armed Limitations on the suspension of the privilege
forces to prevent or suppress lawless of writ of habeas corpus
violence, invasion, or rebellion. The only
criterion for the exercise of this power is that 1. Applies only to persons judicially charged
whenever it becomes necessary. for rebellion or offenses inherent in or
directly connected with invasion; and
NOTE: The declaration of a state of 2. Anyone arrested or detained during
emergency is merely a description of a suspension must be charged within 3 days.
situation which authorizes her to call out the Otherwise, he should be released.
Armed Forces to help the police maintain law
and order. It gives no new power to her, nor Role of the Supreme Court in reviewing the
to the police. Certainly, it does not authorize factual bases of the promulgation of the
warrantless arrests or control of media suspension of the privilege of the writ of
(David v. GMA, G.R. No. 171409, May 3, 2006). habeas corpus
(2015 Bar)
Although the Constitution reserves to the Supreme
The Constitution does not require the Court the power to review the sufficiency of the
President to declare a state of rebellion to factual basis of the proclamation or suspension in
exercise her calling out power. Sec. 18, Art. a proper suit, it is implicit that the Court must
VII grants the President, as Commander-in- allow Congress to exercise its own review powers,
Chief a “sequence” of “graduated powers” which is automatic rather than initiated. Only
(Sanlakas v. Exec. Sec., G.R. No. 159085, when Congress defaults in its express duty to
February 3, 2004). (2015 Bar) defend the Constitution through such review
should the Supreme Court step in as its final
3. SUSPENSION of the privilege of the writ of rampart. The constitutional validity of the
habeas corpus President’s proclamation of martial law or
suspension of the writ of habeas corpus is first a

2019 GOLDEN NOTE S
political question in the hands of Congress Limitations on the declaration of martial law
before it becomes a justiciable one in the hands
of the Court. (Fortun v. GMA, G.R. No. 190293, 1. It does not suspend the operation of the
March 20, 2012) Constitution;
2. It does not supplant the functioning of the
3. He may proclaim MARTIAL LAW over the civil courts or legislative assemblies;
entire Philippines or any part thereof. 3. It does not authorize conferment of
jurisdiction over civilians where civil courts
Nature of martial law are able to function;
Martial law is a joint power of the President and NOTE: Civilians cannot be tried by military
the Congress. Thus: (60-48-24-jointly) courts if the civil courts are open and
functioning. (Open Court Doctrine) (Olaguer
1. The President’s proclamation or suspension v. Military Commission No. 34, G.R. No. L-
is temporary, good for only 60 days; 54558, May 22, 1987).
2. He must, within 48 hours of the
proclamation or suspension, report his 4. It does not automatically suspend the
action in person or in writing to Congress; privilege of the writ of habeas corpus (1987
3. Both houses of Congress, if not in session Constitution, Art. VII, Sec. 18 (2)].
must jointly convene within 24 hours of the
proclamation or suspension for the purpose NOTE: When martial law is declared, no new
of reviewing its validity; and powers are given to the President; no extension of
4. The Congress, voting jointly, may revoke or arbitrary authority is recognized; no civil rights of
affirm the President’s proclamation or individuals are suspended. The relation of the
suspension, allow their limited effectivity to citizens to their State is unchanged. The Supreme
lapse, or extend the same if Congress deems Court cannot rule upon the correctness of the
warranted. President’s actions but only upon its arbitrariness.
It is evident that under the 1987 Constitution the Ways to lift the proclamation of martial law
President and the Congress exercise the power
sequentially and jointly since, after the President 1. Lifting by the President himself
has initiated the proclamation or the suspension, 2. Revocation by Congress
only the Congress can maintain the same based on 3. Nullification by the SC
its own evaluation of the situation on the ground, 4. By operation of law after 60 days
a power that the President does not have (Fortun
v. GMA, ibid.). Q: In light of recent attacks in Marawi City by
the Maute group and other terrorist
Guidelines in the declaration of martial law organizations, President Duterte declared a
(IR-PS-60-48-jointly) state of martial law and suspended the
privilege of the writ of habeas corpus in the
1. There must be an Invasion or Rebellion, and whole of Mindanao, invoking as factual basis a
2. Public Safety requires the proclamation of written report pointing out that for decades,
martial law all over the Philippines or any Mindanao has been plagued with rebellion and
part thereof. lawless violence which only escalated and
3. Duration: Not more than 60 days following worsened with the passing of time and the
which it shall be automatically lifted unless strategic location of Marawi City and its crucial
extended by Congress. role in Mindanao and the Philippines as a
4. Duty of the President to report to Congress: whole. Is the factual basis for the proclamation
within 48 hours personally or in writing. enough, and therefore constitutional?
5. Authority of Congress to affirm or revoke or
allow the lapse or extend the effectivity of A: YES. The President deduced from the facts
proclamation: by majority vote of all its available to him that there was an armed public
members voting jointly. uprising, the culpable purpose of which was to
remove from the allegiance to the Philippine
NOTE: Once revoked by Congress, the President Government a portion of its territory and to
cannot set aside the revocation. deprive the Chief Executive of any of his powers
and prerogative, leading the President to believe
69
POLITICAL LAW
that there was probable cause that the crime of Role of the Supreme Court in inquiring into the
rebellion was and is being committed and that factual bases of the President’s declaration
public safety requires the imposition of martial Martial Law (ML)
law and suspension of the privilege of the writ of
habeas corpus. Section 18, Article VII of the The power of the Court to review the sufficiency of
Constitution itself sets the parameters for the factual basis under Sec. 18, Art VII of the
determining the sufficiency of the factual basis for Constitution is independent of the actions taken by
the declaration of martial law and/or the Congress.
suspension of the privilege of the writ of habeas
corpus, namely (1) actual invasion or rebellion, The Court can simultaneously exercise its power
and (2) public safety requires the exercise of such of review with, and independently from the power
power. Without the concurrence of the two to revoke by Congress. Corollary, any perceived
conditions, the President's declaration of martial inaction or default on the part of Congress does
law and/or suspension of the privilege of the writ not deprive or deny the Court its power to review.
of habeas corpus must be struck down. A review of
the aforesaid facts similarly leads the Court to JUDICIAL CONGRESSIONAL
conclude that the President, in issuing POWER TO POWER TO REVOKE
Proclamation No. 216, had sufficient factual bases REVIEW
tending to show that actual rebellion exists. The Court may strike Congress may revoke the
President's conclusion, that there was an armed down the proclamation/suspension,
public uprising, the culpable purpose of which was presidential which revocation shall not
the removal from the allegiance of the Philippine proclamation in be set aside by the
Government a portion of its territory and the an appropriate President.
deprivation of the President from performing his proceeding filed
powers and prerogatives, was reached after a by any citizen on
tactical consideration of the facts. In fine, the the ground of lack
President satisfactorily discharged his burden of of sufficient
proof. After all, what the President needs to satisfy factual basis.
is only the standard of probable cause for a valid Court considers May take into
declaration of martial law and suspension of the only the consideration not only
privilege of the writ of habeas corpus. (Lagman v. information and data available prior to, but
Medialdea, G.R. No. 231658, July 4, 2017). data available to likewise events
the President supervening the
Q: Does Congress have the mandatory duty to prior to or at the declaration.
convene and meet in joint session upon the time of the
President's proclamation of martial law or the declaration; it is
suspension of the privilege of the writ of not allowed to
habeas corpus? Explain. undertake an
independent
A: NO. Congress is not constitutionally mandated investigation
to convene in joint session except to vote jointly to beyond the
revoke the President's declaration or suspension. pleadings.
By the language of Article VII, Section 18 of the Does not look into Could probe deeper and
1987 Constitution, the Congress is only required the absolute further; it can delve into
to vote jointly to revoke the President's correctness of the the accuracy of the facts
proclamation of martial law and/or suspension of factual basis. presented before it.
the privilege of the writ of habeas corpus. If Review power is Review mechanism is
Congress does not want to revoke or lift the passive – only automatic in the sense
declaration of martial law, then there is no need initiated by the that it may be activated by
for them to meet in joint session. It is worthy to filing of a petition Congress itself at any time
stress that the provision does not actually refer to “in an appropriate after the proclamation of
a "joint session.” The requirement of voting jointly proceeding” by a suspension was made.
explicitly applies only to the situation when the citizen.
Congress revokes the President's proclamation of
martial law. [Padilla v. Congress, 25 July 2017] NOTE: There is sufficient factual basis for the
declaration of Martial Law or the suspension of the
privilege of the writ if from the facts available to

2019 GOLDEN NOTE S
the President, it led him to believe that there was ng grave possible Review
PROBABLE CAUSE that the crime of rebellion was abuse of nullifica- and
and is being committed and that the public   discretio tion by the possible
n. SC nullifica-
safety requires it. After all, only the standard of
tion by
probable cause is what the President needs to
satisfy. But the SC
generally,
Power of Judicial Review vis-à-vis Military president
has full
Powers of the President
discretio
n
The power of judicial review does NOT extend to
calibrating the President’s decision pertaining to
which extraordinary power to avail given a set of Subject Actual YES. YES.
facts or conditions. to use to Limited to Limited
judicial which the to the
review? President determina determin
BASIS CALLING SUSPENSI ML
OUT ON OF puts the -tion of a-tion of
armed whether whether
THE
PRIVILLE forced the the
NOT President President
GE
subject to had had
Charact Most Involve Involve
judicial sufficient sufficient
er benign curtailmen curtailme
factual factual
and t and nt and
basis. basis.
involves suppressio suppre-
ordinary n of civil ssion of
NOTE: Graduation of powers refers to hierarchy
police rights and civil
based on scope and effect; it does not refer to
action individual rights
sequence, order, or arrangement by which the
freedom and
Commander-in- Chief must adhere to. The power
individua
to choose, initially, which among the
l freedom
extraordinary powers to wield in a given set of
conditions is a judgment call on the part of the
When Wheneve Only when Only
President. A plain reading of Sec. 18, Art. VII shows
may the r it there is when
that the President’s power to declare ML is not
Preside becomes actual there is
subject to any condition except for the
nt necessar invasion, actual
requirements of actual invasion or rebellion and
resort to y to rebellion, invasion,
that public safety requires it. No need for
this prevent and public rebellion,
recommendation of the Defense Secretary.
power? or safety and
suppress requires it. public
Territorial Coverage of ML or the Suspension
lawless safety
of the Privilege of the Writ of HC
violence, requires
invasion, it.
The 1987 Constitution grants to the President, as
or
Commander-in-Chief, the discretion to determine
rebellion.
the territorial coverage or application of ML or the
suspension of the privilege of the writ of HC. There
Limitati President 1. Time 1. Time
is no constitutional edict that ML should be
on must act limit of limit of
confined only in the particular place where the
within 60 days; 60
armed public uprising actually transpired. The
permissi 2. Review days;
President’s duty to maintain peace and public
ble and 2. Review
safety is not limited only to the place where there
constituti possible and
is actual rebellion; it extends to other areas where
o-nal revoca- possibl
the present hostilities are in danger of spilling
bounda- tion by e
over.
ries or in Congres revoca-
a manner s tion by
Calling out power does not need Congressional
not Review Congre
authority
constituti and ss;
71
POLITICAL LAW
discretion, the Court will accord respect to the
There is no need for congressional authority to President’s judgment (Ampatuan v. Hon. Puno, G.R.
exercise the calling out power of the President No. 190259. June 7, 2011).
since calling out of the armed forces to prevent or
suppress lawless violence is a power that the EXECUTIVE CLEMENCY
Constitution directly vests in the President. As in
the case where the President did not proclaim a Pardon
national emergency but only a state of emergency
in 3 places in Mindanao and she did not act An act of grace, which exempts individual on
pursuant to any law enacted by Congress that whom it is bestowed from punishment, which the
authorized her to exercise extraordinary powers law inflicts for a crime he has committed. As a
(Ampatuan v. Hon. Puno, G.R. No. 190259, June 7, consequence, pardon granted after conviction
2011). frees the individual from all the penalties and legal
disabilities and restores him to all his civil rights.
Q: May the President, in the exercise of peace But unless expressly grounded on the person’s
negotiations, agree to pursue reforms that innocence (which is rare), it cannot bring back lost
would require new legislation and reputation for honesty, integrity and fair dealing.
constitutional amendments, or should the (Monsanto v. Factoran, G.R. No. 78239, Feb. 9, 1989)
reforms be restricted only to those solutions
which the present laws allow? NOTE: Because pardon is an act of grace, no legal
power can compel the President to give it.
A: If the President is to be expected to find means Congress has no authority to limit the effects of the
for bringing this conflict to an end and to achieve President’s pardon, or to exclude from its scope
lasting peace in Mindanao, then he must be given any class of offenders. Courts may not inquire into
the leeway to explore, during peace negotiations, the wisdom or reasonableness of any pardon
solutions that may require changes to the granted by the President.
Constitution for their implementation. So long as
the President limits himself to recommending Purpose of pardon
these changes and submits to the proper
procedure for constitutional amendment and To relieve the harshness of the law or correcting
revision, his mere recommendation need not be mistakes in the administration of justice. The
construed as unconstitutional act. Given the power of executive clemency is a non-delegable
limited nature of the President’s authority to power and must be exercised by the President
propose constitutional amendments, he cannot personally.
guarantee to any third party that the required
amendments will eventually be put in place, nor NOTE: Clemency is not a function of the judiciary;
even be submitted to a plebiscite. The most she it is an executive function. The grant is
could do is submit these proposals as discretionary, and may not be controlled by the
recommendations either to Congress or the legislature (Congress) as to limit the effects of the
people, in whom constituent powers are vested President’s pardon, or to exclude from its scope
(Province of North Cotabato v. GRPs Peace panel on any class of offenders. Also, the Courts may not
Ancestral Domain, G.R. No. 183591, October 14, inquire into the wisdom or reasonableness of any
2008). pardon granted by the President or have it
reversed, save only when it contravenes its
Role of the Supreme Court in inquiring into the limitations. It includes cases involving both
factual bases of the President’s declaration of a criminal and administrative cases.
state of national emergency
Kinds of executive clemency (FPARC)
While it is true that the Court may inquire into the
factual bases for the President’s exercise of the 1. Pardons (conditional or plenary);
above power, it would generally defer to her 2. Reprieves;
judgment on the matter. It is clearly to the 3. Commutations;
President that the Constitution entrusts the 4. Remission of Fines and Forfeitures; and
determination of the need for calling out the 5. Amnesty
armed forces to prevent and suppress lawless
violence. Unless it is shown that such NOTE:
determination was attended by grave abuse of

2019 GOLDEN NOTE S
Executive Clemency Requirement penalties imposed upon the offender,
Pardons including accessory disabilities
Reprieves b. Partial pardon– Does not extinguish all the
Requires penalties; partially extinguishes criminal
Commutatio
conviction liability [See: RPC, Art. 94(1)].
ns
by final
Remission of judgment
Fines NOTE: A judicial pronouncement that a convict
and Forfeitures who was granted a pardon subject to the condition
Requires that he should not again violate any penal law is
concurren not necessary before he can be declared to have
Amnesty violated the condition of her pardon (Torres v.
ce of
Congress Gonzales, G.R. No. L-76872, July 23, 1987).
Limitations on the President’s Pardoning Effects of the grant of pardon

Powers (CAN-F, CANNOT-CLIEP) (2015 BAR)
The grant of pardon from the President:
1. Can be granted only after conviction by
Final judgment 1. Frees the individual from all the penalties and
XPN: AMNESTY legal disabilities imposed upon him by the
2. Cannot be granted in cases of civil or sentence, and
legislative Contempt.
3. Cannot absolve convict of civil Liability. NOTE: RPC, Article 36. Pardon; its effect: A
4. Cannot be granted in cases of Impeachment. pardon shall in no case exempt the culprit
(1987 Constitution, Art. VII, Sec. 19) from the payment of the civil indemnity
5. Cannot be granted for violations of Election
laws without favorable recommendations of 2. Restores to him all his civil and political
the COMELEC. rights.
Ratio: The COMELEC is an independent body.
6. Cannot restore Public offices forfeited. NOTE: RPC, Article 36. Pardon; its effect: A
pardon shall not work the restoration of the
Kinds of pardon right to hold public office, or the right of
suffrage, unless such rights be expressly
As to presence of condition: restored by the terms of the pardon.
a. Absolute pardon– One extended without any
conditions; totally extinguishes criminal Options of the convict when granted pardon
liability (See: RPC, Art. 89[4]).
b. Conditional pardon – One under which the 1. Conditional Pardon– The offender has the
convict is required to comply with certain right to reject it since he may feel that the
requirements. condition imposed is more onerous than the
penalty sought to be remitted.
Q: Mateo was convicted of Homicide but was 2. Absolute Pardon– The pardonee has no
later on granted conditional pardon by the option at all and must accept it whether he
president. When Mateo was filling up his likes it or not.
personal data sheet for employment in public
office, he did not disclose the existence of a NOTE: In this sense, an absolute pardon is
prior criminal conviction for homicide. Can similar to commutation, which is also not
Mateo be employed as a public employee? subject to acceptance by the offender.
A: NO. The pardon granted to Mateo is one of Pardon does not ipso facto restore former
Conditional Pardon, the pardon did not expressly office and his rights and privileges
remit the accessory penalty of Homicide which is
perpetual absolute disqualification from holding Pardon does not ipso facto restore a convicted
public office or employment (Mateo v. Executive felon neither to his former public office nor to his
Secretary, G.R. No. 177875, Aug 8, 2016). rights and privileges, which were necessarily
As to effect: relinquished or forfeited by reason of the
conviction although such pardon undoubtedly
a. Plenary pardon– Extinguishes all the
73
POLITICAL LAW
restores his eligibility to that office (Monsanto v.
Factoran, G.R. No. 78239, February 9, 1989). Thus, Atty. Risos-Vidal and former Manila Mayor
Lim’s contentions that the said pardon granted
Q: Former President Estrada was convicted of was a conditional pardon as it did not expressly
the crime of plunder by the Sandiganbayan. He provide for the remission of the penalty of
was granted an executive clemency by Former perpetual absolute disqualification especially the
President Macapagal-Arroyo. In 2013, he ran restoration of the right to vote and be voted for
for the position of Mayor of Manila, and won public office, as required by the RPC and that the
the election. third preambular clause in the pardon, which
states that Estrada had publicly committed to no
Atty Risos-Vidal, and, former Mayor of Manila, longer seek any elective position or office,
Alfredo Lim question the eligibility of Estrada disqualifies him from the post of Mayor are
to hold an elective post. They contend that the untenable (Risos-Vidal v. Estrada, G.R. No. 206666,
pardon granted by Pres. Arroyo to the latter January 21, 2015)
was a conditional pardon as it did not
expressly provide for the remission of the Forms of Executive Clemency
penalty of perpetual absolute disqualification
especially the restoration of the right to vote 1. Reprieve
and be voted for public office, as required by 2. Commutations
Articles 36 and 41 of the Revised Penal Code. 3. Remission of fines and forfeitures
4. Probation
They further contend that the third 5. Parole
preambular clause in the pardon, which states 6. Amnesty
that Estrada had publicly committed to no
longer seek any elective position or office, Reprieve
disqualifies him from the post of Mayor. Is the
contention of the petitioners tenable? The postponement of sentence to a date certain or
stay of execution.
A: NO. Former President Estrada, who was
convicted for the crime of plunder by the NOTE: It may be ordered to enable the
Sandiganbayan, was granted an absolute pardon government to secure additional evidence to
that fully restored all his civil and political rights, ascertain the guilt of the convict or, in the case of
which naturally includes the right to seek public the execution of the death sentence upon a
elective office. The wording of the pardon pregnant woman, to prevent the killing of her
extended to him is complete, unambiguous and unborn child.
unqualified. He is therefore eligible for the post of
Mayor of Manila. Commutation
The pardoning power of the President cannot be The reduction or mitigation of the penalty, from
limited by legislative action. It is a presidential death penalty to life imprisonment, remittances
prerogative, which may not be interfered with by and fines. Commutation is a pardon in form but not
Congress or the Court, except when it exceeds the in substance, because it does not affect his guilt; it
limits provided by the Constitution. Articles 36 merely reduces the penalty for reasons of public
and 41 of the RPC should thus be construed in a interest rather than for the sole benefit of the
way that will give full effect to the executive offender.
clemency instead of indulging in an overly
strict interpretation that may serve to impair or NOTE: Commutation does not have to be in any
diminish the import of the pardon which particular form. Thus, the fact that a convict was
emanated from the Office of the President, and released after 6 years and placed under house
duly signed by the Chief Executive herself. arrest, which is not a penalty, already leads to the
conclusion that the penalty has been shortened.
The third preambular clause is not an integral part
of the decree of the pardon and therefore, does not Judicial power to pass upon the validity of the
by itself operate to make the pardon conditional or actions of the President in granting executive
to make its effectivity contingent upon the clemency
fulfillment of the commitment nor to limit the
scope of the pardon.

2019 GOLDEN NOTE S
The SC is not deciding a political question in e
reviewing the correctness of the action of the
President in granting executive clemency by Parole
commuting the penalty of dismissal to a dismissed
clerk of court. What it is deciding is whether or not The suspension of the sentence of a convict
the President has the power to commute the granted by a Parole Board after serving the
penalty of the said clerk of court. As stated in Daza minimum term of the indeterminate sentence
v. Singson (G.R. No. 87721-30, December 21, 1989), penalty, without granting a pardon, prescribing
it is within the scope of judicial power to pass the terms upon which the sentence shall be
upon the validity of the actions of the other suspended.
departments of the Government.
Parole vs. Pardon
Remission of fines and forfeitures
BASIS PAROLE PARDON
Merely prevents the collection of fines or the
confiscation of forfeited property. It cannot have Release of a Release of
the effect of returning property which has been convict from convict from
vested in third parties or money already in the imprisonment conviction
public treasury. Effect and is not a
restoration of
NOTE: The power of the President to remit fines his liberty
and forfeitures may not be limited by any act of
Congress. But a statute may validly authorize In custody of Sentence is
other officers, such as department heads or the law but no condoned,
bureau chiefs, to remit administrative fines and longer under subject to
forfeitures. confinement reinstatement
in case of
Nature
Probation violation of
the condition
A disposition under which a defendant after that may have
conviction and sentence is released subject to been attached
conditions imposed by the court and to the to the pardon
supervision of a probation officer.
Amnesty
NOTE: It is not a right granted to a convicted
offender; it is a special privilege granted by the The grant of general pardon to a class of political
State to a penitent qualified offender, who does offenders either after conviction or even before
not possess the disqualifications under P.D. No. the charges is filed. It is the form of executive
968, as amended. Likewise, the Probation Law is clemency which under the Constitution may be
not a penal law for it to be liberally construed to granted by the President only with the
favor the accused (Maruhom v. People, G.R. No. concurrence of the legislature.
206513, October 20, 2015).
Requisites of amnesty
Probation vs. Pardon
1. Concurrence of a majority of all the members
BASIS PROBATIO PARDON of Congress (1987 Constitution, Art. VII, Sec.
N 19); and
Judicial Executiv 2. A previous admission of guilt (Vera v. People,
Nature in e in G.R. No. L-18184, January 31, 1963).
nature nature
May be Requires Effects of the grant of amnesty
granted convictio
When after n by final The total extinguishment of the criminal liability
applicabl actual judgmen and of the penalty and all its effects. Amnesty
e service t reaches back to the past and erases whatever
of shade of guilt there was. In the eyes of the law, a
sentenc
75
POLITICAL LAW
person granted amnesty is considered a new-born Sources of the President’s diplomatic powers
child.
1. The Constitution
Amnesty vs. Pardon 2. The status of sovereignty and independence
BASIS AMNESTY PARDON NOTE: By reason of the President's unique

Addressed Addressed position as Head of State, he is the logical choice as
Nature of the the nation's chief architect of or spokesman in
to Political to Ordinary
offense foreign relations. The Senate, on the other hand, is
offenses offenses
As to Granted to Granted to granted the right to share in the treaty-making
whom a class of individuals power of the President by concurring with him
granted persons with the right to amend.
Requires Does not
concurrenc require Scope of the foreign relations powers of the
As to President (N-ARC-DP-Reco)
e of concurrenc
concurrenc
majority of e of
e of 1. Negotiate treaties and other international
all Congress
Congress agreements. However, such treaty or
members of
Congress international agreement requires the
Public act Private act concurrence of the Senate, (Art. VII, Sec. 21)
which the which must which may opt to do the following:
Nature of
court may be pleaded
the act a. Approve with 2/3 majority;
take judicial and proved
notice of b. Disapprove outright; or
Looks Looks c. Approve conditionally, with suggested
backward forward amendments which if re-negotiated and
and puts to and relieves the Senate’s suggestions are
As to oblivion the the incorporated, the treaty will go into effect
perspectiv offense pardonee of without need of further Senate approval.
e itself the
consequenc NOTE: Executive agreements, however,
e of the do not require legislative concurrence
offense (Bayan Muna v. Romulo, G.R. No. 159618,
May be Only February 1, 2011). (2015 Bar)
granted granted
When before or after An executive agreement is a “treaty”
granted after conviction within the meaning of that word in
conviction by final international law and constitutes
judgment enforceable domestic law (Nicolas v.
Need Must be Romulo, G.R. No. 175888, February 11, 2009).
As to not be accepted
acceptance accepte Requisites of Executive Agreement
d (under Vienna Convention):
NOTE: The right to the benefits of amnesty, once a) The agreement must be between states;
established by the evidence presented either by b) It must be written; and
the complainant or prosecution, or by the defense, c) It must be governed by international
law (China National Machinery and
cannot be waived, because it is of public interest
that a person who is regarded by the Amnesty Equipment Corporation v. Sta. Maria,
Proclamation which has the force of a law, not only G.R. No. 185572, February 7, 2012).
as innocent, for he stands in the eyes of the law as
if he had never committed any punishable offense Role of the Senate
(Barrioquinto v. Fernandez, G.R. No. L-1278,
The role of the Senate, however, is limited only
January 21, 1949).
to giving or withholding its consent, or
POWERS PERTINENT TO FOREIGN RELATIONS concurrence, to the ratification. It should be
emphasized that under our Constitution, the

2019 GOLDEN NOTE S
power to ratify is vested in the President,
subject to the concurrence of the Senate. Q: The members of the MALAYA LOLAS, a non-
stock, non-profit organization, established for
Hence, it is within the authority of the the purpose of providing aid to the victims of
President to refuse to submit a treaty to the rape by Japanese military forces in
Senate or, having secured its consent for its the Philippines during the Second World War,
ratification, refuse to ratify it. Although the claim that since 1998, they have approached
refusal of a state to ratify a treaty which has the Executive Department through the DOJ,
been signed in its behalf is a serious step that DFA, and OSG, requesting assistance in filing a
should not be taken lightly, such decision is claim against the Japanese officials and
within the competence of the President alone. military officers who ordered the
(Pimentel v. Exec. Sec., G.R. No. 158088, July 6, establishment of the comfort women stations
2005) in the Philippines. However, officials of the
Executive Department declined to assist the
2. Appoint ambassadors, other public ministers, petitioners and took the position that the
and consuls. individual claims of the comfort women for
3. Receive ambassadors and other public compensation had already been fully satisfied
ministers accredited to the Philippines. by Japans compliance with the Peace Treaty
4. Contract and guarantee foreign loans on between the Philippines and Japan. Hence,
behalf of RP (1987 Constitution, Art. VII, Sec. they file a Petition for Certiorari under Rule 65
20). (1994, 1999 Bar) of the Rules of Court with an application for the
5. Deport aliens – issuance of a writ of preliminary mandatory
injunction. Will the action prosper?
a. This power is vested in the President by
virtue of his office, subject only to A: NO. The Constitution has entrusted to the
restrictions as may be provided by Executive Department the conduct of foreign
legislation as regards to the grounds for relations for the Philippines. Whether or not to
deportation (Revised Administrative Code, espouse petitioners' claim against the
Sec. 69). Government of Japan is left to the exclusive
b. In the absence of any legislative determination and judgment of the Executive
restriction to authority, the President Department. The Court cannot interfere with or
may still exercise this power. question the wisdom of the conduct of foreign
c. The power to deport aliens is limited by relations by the Executive Department.
the requirements of due process, which Accordingly, the court cannot direct the Executive
entitles the alien to a full and fair hearing. Department, either by writ of certiorari or
NOTE: Summary deportation shall be injunction, to conduct our foreign relations with
observed in cases where the charge Japan in a certain manner (Vinuya v. Executive
against the alien is overstaying or Secretary, G.R. No. 162230, April 28, 2010).
expiration of his passport. (Board of
Commissioners v. Jong Keun Park, G.R. No. RULES ON SUCCESSION
159835, January 21, 2010)
d. An alien has the right to apply for bail Rules to be applied if there is vacancy before
provided certain standard for the grant is the beginning of the term of the President.
necessarily met (Government of Hong (1987 Constitution, Art. VII, Sec 7)
Kong v. Olalia, G.R. No. 153675, April 19,
2007). CAUSE OF VACANCY CONSEQUENCE
NOTE: The adjudication of facts upon which In case of death or The Vice-President
the deportation is predicated devolved on the permanent elect shall become
President whose decision is final and disability of the President.
executory (Tan Tong v. Deportation Board, G.R. President-elect.
No. L-7680, April 30, 1955). In case of failure to The Vice-President
elect the President shall act as the
6. Decide that a diplomatic officer who has (i.e. Presidential President until the
become Persona non grata be recalled. elections have not President shall have
7. Recognize governments and withdraw been held or non- been chosen and
recognition. completion of the qualified.
canvass of the
77
POLITICAL LAW
Presidential Rules and procedure to be followed if a
elections) vacancy occurs in the offices of the President
In case no President The Senate President, and Vice-President. (1987 Constitution, Art. VII,
and Vice-President or in case of his Sec. 10)
shall have been inability, the Speaker
chosen and of the HoR shall act as 1. At 10:00 A.M. of the third day after said
qualified, or where President until a vacancy occurs – Congress shall convene in
both shall have died President or a Vice- accordance with its rules without need of
or become President shall have call.
permanently been chosen and 2. Within 7 days — Congress shall enact a law
disabled. qualified. calling for a special election to elect a
President and a Vice President.
Congress shall by law 3. Said special election shall be held — Not
provide for the manner earlier than forty-five (45) days nor later
in which one who is to than sixty (60) days from the time of such
act as President shall call.
be selected until a 4. The bill calling such special election — Shall
President or a Vice- be deemed certified under Sec. 26, par. 2, Art.
President shall have VI of the Constitution and shall become law
qualified, in case of upon its approval on third reading by
death, permanent Congress.
disability or inability of 5. Appropriations for said special election —
the officials. Shall be charged against any current
appropriations and shall be exempt from the
Limitation on the power of the Acting requirements of, Sec. 25, par. 4, Art. VI of the
President Constitution.
6. The convening of Congress and the special
Appointments extended by an Acting President election — cannot be suspended or
shall remain effective, unless revoked by the postponed
elected President, within 90 days from his 7. No special election shall be called — If the
assumption or reassumption of office (1987 vacancy occurs within eighteen (18) months
Constitution, Art. VII, Sec. 14). before the date of the next presidential
elections.
Rules to be applied if the vacancy occurs
during the incumbency of the President Instances when there is presidential inability
to discharge powers and duties of his office
CAUSE OF CONSEQUENCE (1987 Constitution, Art. VII, Sec. 11)
VACANCY
In case of : (DPR2) The Vice President INSTANCE CONSEQUENCE
a. Death; shall become the When the President The powers and
b. Permanent President to serve the transmits to the Senate duties of his office
Disability; unexpired term. President and to the shall be discharged
c. Removal from Speaker of the HoR his by the Vice-
office; or written declaration President as Acting
d. Resignation of the that he is unable to President.
President discharge the powers
In case of : The Senate and duties of his office.
a. Death; President, or in case
b. Permanent of his inability, the When a majority of all The Vice-President
Disability; Speaker of the HoR, the members of the shall immediately
c. Removal from shall act as President Cabinet transmit to the assume the powers
office; or until the President or Senate President and to and duties of the
d. Resignation of both Vice President shall the Speaker of the HoR office as Acting
the President and have ben elected and their written President.
the Vice-President qualified. declaration that the
President is unable
to discharge the

2019 GOLDEN NOTE S
powers and duties of
his office .
NOTE: The President can reassume power and

duties of his office once he transmits to the Senate
President and to the Speaker of the HoR his written
declaration that no inability exists.
79
POLITICAL LAW
JUDICIAL DEPARTMENT assigned to it by the Constitution to determine
conflicting claims of authority under the
JUDICIAL POWER Constitution and to establish for the parties in an
actual controversy the rights which that
The duty of the courts of justice to settle actual instrument secures and guarantees to them. This
controversies involving rights, which are legally is in truth all that is involved in what is termed as
demandable and enforceable and to determine ‘Judicial Supremacy’, which properly is the
whether or not there has been a grave abuse of power of judicial review under the Constitution.
discretion amounting to lack or excess of (Angara v. The Electoral Commission, G.R. No. L-
jurisdiction on the part of any branch or 45081, July 15, 1936)
instrumentality of the Government. [1987
Constitution, Art. VIII, Sec. 1(2)] REQUISITES OF JUDICIAL REVIEW
Body vested with judicial power 1. Actual case or Controversy– It involves a

conflict of legal rights, assertion of opposite
It is vested in one Supreme Court and such lower legal claims susceptible of legal resolution. It
courts as may be established by law. (1987 must be both ripe for resolution and
Constitution, Art. VIII, Sec. 1) susceptible of judicial determination, and
that which is not conjectural or anticipatory,
Judicial inquiry or that which seeks to resolve hypothetical or
feigned constitutional problems.
The power of the court to inquire into the exercise
of discretionary powers to determine whether or NOTE: But even with the presence of an actual
not there has been a grave abuse of discretion case or controversy, the Court may refuse judicial
amounting to lack or excess of jurisdiction. review unless a party who possesses locus
standior "a right of appearance in a court of justice
Q: Paragraph 2 of Sec. 14 of the Ombudsman on a given question” to brings the constitutional
Act (R.A. 6770) provides: “No court shall hear question or the assailed illegal movement or act
any appeal or application for remedy against before it.
the decision or findings of the Ombudsman,
except the Supreme Court, on pure question of Q: Angelo Raphael petitions the SC to nullify
law.” Decide on the constitutionality of this House Bill No. 4738 which abolishes the
provision. Judicial Development Fund (JDF) and replaces
it with the Judiciary Support Fund (JSF). The
A: Since the Par. 2 of Sec. 14 of R.A. 6770 limits the funds from JSF shall be remitted to the national
remedy against “decision or findings” of the treasury and Congress shall determine how
Ombudsman to a Rule 45 appeal and thus – similar the funds will be used; unlike the JDF, the
to the Par. 4 of Sec. 27 of RA 6770 – attempts to spending of which is exclusively determined by
effectively increase the Supreme Court’s appellate the SC. Rolly argues that House Bill No. 4738
jurisdiction without its advice and concurrence, infringes SC’s fiscal autonomy. Is the petition
therefore, the former provision is also meritorious?
unconstitutional and invalid. (Carpio-Morales v.
Court of Appeals, G.R. No. 217126-27, November 10, A: NO. There is no actual case or controversy.
2015) The Court cannot speculate on the
constitutionality or unconstitutionality of a bill
JUDICIAL REVIEW that Congress may or may not pass. It cannot rule
on mere speculations or issues that are not ripe for
The power of the SC to determine the judicial determination. Filing of bills is within the
constitutionality of a law, treaty, ordinance, legislative power of Congress and is "not subject to
presidential issuance, and other governmental judicial restraint" (In the Matter of Save the
acts. Supreme Court v. Abolition of JDF, UDK-15143, Jan.
21, 2015)
NOTE: When the judiciary mediates to allocate
constitutional boundaries, it does not assert any 2. Proper party– One who has sustained or is
superiority over other departments; it does not in in immediate danger of sustaining an injury
reality nullify or invalidate an act of the legislature, as a result of the act complained of. (People v.
but only asserts the solemn and sacred obligation Vera, G.R. No. 45685November 16, 1937)

2019 GOLDEN NOTE S
Judicial Department
To have standing, one must show that: XPN: If the question is of transcendental
importance.
1. He has suffered some actual or
threatened injury as a result of the NOTE: Principle of Transcendental Importance
allegedly illegal conduct of the is determined by: (CDO)
government;
2. The injury is fairly traceable to the 1. The Character of the funds or other assets
challenged action; and involved in the case;
3. The injury is likely to be redressed by 2. The presence of a clear case of Disregard of a
a favorable action. (Francisco, Jr. & constitutional or statutory prohibition by the
Hizon v. Toll Regulatory Board, G.R. public respondent agency or instrumentality
Nos. 166910, October 19, 2010) of the government;
3. The lack of any Other party with a more
Locus Standi vs. Real party-in-interest direct and specific interest in raising the
questions being raised. (Francisco, et al., v.
REAL PARTY-IN- House of Representatives. Ibid.)
LOCUS STANDI
INTEREST
Character of the plaintiff Rule on standing is a matter of procedure,
One who has The party who stands to hence, can be relaxed
sustained or is in be benefited or injured
imminent danger of by the judgment in the When the proceeding involves the assertion of a
sustaining an injury suit, or the party public right, the mere fact that the petitioner is a
as a result of the act entitled to the avails of citizen satisfies the requirement of personal
complained of the suit. interest. Thus, the privatization of power plants in
(Direct injury a manner that ensures the reliability and
test). (Ex parte affordability of electricity in our country is an
Levitt, 302 U.S. 633, issue of paramount public interest in which the
1937) Court held that petitioner possesses the requisite
Legal nature legal standing to file the case. (Osmeña v. Power
Has constitutional A concept of civil Sector Assets and Liabilities Management
underpinnings. procedure. Corporation, G.R. No. 212686, September 28, 2015)
As to the issue involved
Whether such Whether he is "the When the issue concerns a public right, it is
parties have party who would be sufficient that the petitioner is a citizen and has an
"alleged such a benefited or injured by interest in the execution of the laws. (The Prov. of
personal stake in the judgment, or the North Cotabato v. Gov’t of the Rep. of the Phil. Peace
the outcome of the 'party entitled to the Panel on Ancestral Domain, G.R. No. 183591,
controversy as to avails of the suit”. October 14, 2008)
assure that (Francisco, et al., v.
concrete House of Locus Standi in cases involving Taxes
adverseness which Representatives, G.R. No.
sharpens the 160261, Nov. 10, 2003) A taxpayer need not be a party to the contract to
presentation of challenge its validity. If taxes are involved, people
issues upon which have a right to question contracts entered into by
the court so largely the government. Further, the issues raised in the
depends for petition do not refer to the wisdom but to the
illumination of legality of the acts complained of. Thus, we find the
difficult instant controversy within the ambit of judicial
constitutional review. Besides, even if the issues were political in
questions." nature, it would still come within our powers of
review under the expanded jurisdiction conferred
Legal personality upon us by Section 1, Article VIII of the
Constitution, which includes the authority to
GR: If there is no actual or potential injury, determine whether grave abuse of discretion
complainant has no legal personality to raise amounting to excess or lack of jurisdiction has
constitutional questions. been committed by any branch or instrumentality
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POLITICAL LAW
of the government. (Mamba v. Lara, G.R. No. and, if not considered in trial, it cannot be
165109, December 14, 2009) considered on appeal.
Locus Standi in Environmental Cases The Ombudsman has no jurisdiction to

entertain questions regarding
In our jurisdiction, locus standi in environmental constitutionality of laws. Thus, when the
cases has been given a more liberalized approach. issue of constitutionality of a law was raised
Recently, the Court passed the landmark Rules of before the Court of Appeals, which is the
Procedure for Environmental Cases, which competent court, the constitutional question
allow for a “citizen suit,” and permit any Filipino was raised at the earliest opportune time.
citizen, as steward of nature, to file an action (Estarija v. Ranada, G.R. No. 159314, June 26,
before our courts for violations of our 2006)
environmental laws. Thus, the need to give the
Resident Marine Mammals legal standing has been 4. Necessity of deciding constitutional
eliminated by our Rules and it is worth noting here questions – As long as there are other bases
that the Stewards are joined as real parties in the which courts can use for decision,
Petition and not just in representation of the constitutionality of the law will not be
named cetacean species. (Resident Marine touched, thus, courts should refrain from
Mammals v. Reyes, G.R. No. 180771, April 21, 2015) resolving any constitutional issue "unless the
constitutional question is the lis mota of the
The filing of a petition for the issuance of a writ of case."
kalikasan does not require that a petitioner be
directly affected by an environmental disaster. Lis mota means "the cause of the suit or
The rule clearly allows juridical persons to file the action." Given the presumed validity of an
petition on behalf of persons whose constitutional executive act, the petitioner who claims
right to a balanced and healthful ecology is otherwise has the burden of showing first
violated or threatened with violation. (West Tower that the case cannot be resolved unless the
v. First Philippine, G.R. No. 194239, June 16, 2015) constitutional question he raised is
determined by the Court. (General v. Urro,
3. Earliest opportunity– Constitutional G.R. No. 191560, March 29, 2011)
question must be raised at the earliest
possible opportunity. Scope of Judicial Review
GR: It must be raised in the pleadings. The courts have the power to pass upon the
validity and the constitutionality of laws enacted
XPN: by the legislature, and other bodies of the
1. Criminal case – It may be brought at any government, under the doctrine of checks and
stage of the proceedings according to the balances.
discretion of the judge (trial or appeal)
because no one shall be brought within The lower courts are likewise vested with the
the terms of the law who are not clearly power of judicial review, subject however to the
within them and the act shall not be appellate jurisdiction of the higher courts.
punished when the law does not clearly
punish them. Constitutional Challenges
2. Civil case – It may be brought anytime if
the resolution of the constitutional issue When a law is passed, the court awaits an actual
is inevitable in resolving the main issue. case that clearly raises adversarial positions in
their proper context before considering a prayer
3. When the jurisdiction of the lower court is in to declare it as unconstitutional. (Sameer Overseas
question except when there is estoppel. v. Cabiles, G.R. No. 170139, August 5, 2014)
(Tijam v. Sibonghanoy, G.R. No. L-21450, April
15, 1968) However, in a case where the law passed
NOTE: The earliest opportunity to raise a incorporates the exact clause already declared as
constitutional issue is to raise it in the unconstitutional, without any perceived
pleadings before a competent court that can substantial change in the circumstances, the Court
resolve the same, such that, if not raised in ruled that there is a necessity to decide the
the pleadings, it cannot be considered in trial

2019 GOLDEN NOTE S
Judicial Department
constitutional issue involved. (Sameer Overseas v. Power of judicial review in impeachment
Cabiles, ibid.) proceedings includes the power of review over
justiciable issues in impeachment proceedings.
Thus, when a law or a provision of law is null (Francisco v. HoR, G.R. No. 160261, November 10,
because it is inconsistent with the Constitution, 2003)
the nullity cannot be cured by reincorporation or
reenactment of the same or a similar law or Judicial review of the SC on findings of facts of
provision. A law or provision of law that was administrative tribunals and trial courts
already declared unconstitutional remains as such
unless circumstances have so changed as to GR: The SC will not disturb the findings of facts of
warrant a reverse conclusion. (Sameer Overseas v. administrative tribunals and the trial courts.
Cabiles, ibid.) (2014 Bar)
XPN: The SC may review findings of facts of the
The constitutionality of an official act may be the lower courts under the following exceptions: (SM-
subject of judicial review, provided the matter is GF-CBA-TW-NE)
not raised collaterally. (Laude v. Hon. Ginez, G.R.
No. 217456, November 24, 2015) 1. When the conclusion is a finding grounded
entirely on Speculation, surmises and
Requisites before a law can be declared conjectures;
partially unconstitutional 2. When the inference made is manifestly
Mistaken, absurd or impossible;
1. The legislature must be willing to retain valid 3. Where there is a Grave abuse of discretion;
portion (separability clause); and 4. When the judgment is based on a
2. The valid portion can stand independently as misapprehension of Facts;
law. 5. When the findings of fact are Conflicting;
6. When the Court of Appeals, in making its
Principle of Stare Decisis findings, went Beyond the issues of the case
and the same is contrary to the Admissions of
Deemed of imperative authority, controlling the both appellant and appellee;
decisions of like cases in the same court and in 7. When the findings are contrary to those of
lower courts within the same jurisdiction, unless the Trial court;
and until the decision in question is reversed or 8. When the findings of fact are Without
overruled by a court of competent authority. (De citation of specific evidence on which the
Castro v. JBC, G.R. No. 191002, April 20, 2010) conclusions are based;
9. When the facts set forth in the petition as
NOTE: The Court, as the highest court of the land, well as in the petitioner’s main and reply
may be guided but is not controlled by precedent. briefs are Not disputed by the respondents;
Thus, the Court, especially with a new and
membership, is not obliged to follow blindly a 10. When the findings of fact of the Court of
decision that it determines, after re-examination, Appeals are premised on the supposed
to call for a rectification. (De Castro v. JBC, ibid.) absence of Evidence and contradicted by the
evidence on record. (David v. Misamis
Functions of judicial review Occidental II, G.R. No. 194785, July 11, 2012)
1. Checking – Invalidating a law or executive act POLITICAL QUESTION DOCTRINE

that is found to be contrary to the Constitution.
2. Legitimizing – Upholding the validity of the law Those questions which, under the Constitution,
that results from a mere dismissal of a case are to be decided by the people in their sovereign
challenging the validity of the law. capacity, or in regard to which full discretionary
3. Symbolic – To educate the bench and bar as to authority has been delegated to the legislative or
the controlling principles and concepts on executive branch of the government. (Tañada v.
matters of grave public importance for the Cuenco, G.R. No. L-10520, February 28, 1957)
guidance of, and restraint upon the future.
(Dumlao v. COMELEC, G.R. No. L-52245, January Political Question Doctrine
22, 1980)
The doctrine that the power of judicial review
cannot be exercised when the issue is a political
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POLITICAL LAW
question. It constitutes another limitation on such delimitation as to whether or not there has been a
power of the judiciary. (Tañada v. Cuenco, ibid.) grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the official
Justiciable questions vs. Political questions whose action is being questioned.
BASIS JUSTICIABLE POLITICAL MOOT QUESTIONS

QUESTIONS QUESTIONS
Imply a Questions Questions on which a judgment cannot have any
given right which involve practical legal effect or, in the nature of things,
legally the policy or the cannot be enforced. (Baldo, Jr. v. COMELEC, G.R. No.
demandable wisdom of the 176135, June 16, 2009)
and law or act, or
enforceable, the morality or Moot and academic
an act or efficacy of the
omission same. Generally It is moot and academic when it ceases to present
violative of it cannot be a justiciable controversy by virtue of supervening
such right, inquired by the events so that a declaration thereon would be of
and a courts. Further, no practical use or value.
remedy these are
granted and questions which Court actions over moot and academic cases
sanctioned under the
by law for Constitution: GR: The courts should decline jurisdiction over
said breach a. are decided such cases or dismiss it on ground of mootness.
Definition
of right. by the
people in
their XPNs: (GPFR)
sovereign 1. There is a Grave violation of the Constitution.
capacity; and 2. There is an exceptional character of the
b. where full situation and the Paramount public interest
discretionary is involved.
authority has 3. When the constitutional issue raised
been requires Formulation of controlling
delegated by principles to guide the bench, the bar, and the
the public.
Constitution 4. The case is capable of Repetition yet
either to the evading review. (David v. Macapagal-Arroyo,
executive or G.R. No. 171396, May 3, 2006; Republic v.
legislative Principalia Management, G.R. No. 198426,
department. September 2, 2015)
Effect of the expanded definition of judicial NOTE: Judicial power presupposes actual
power on the political question doctrine controversies, the very antithesis of mootness. In
(1995, 1997, 2004 Bar) the absence of actual justiciable controversies or
disputes, the Court generally opts to refrain from
The 1987 Constitution expands the concept of deciding moot issues. Where there is no more live
judicial review. Under the expanded definition, the subject of controversy, the Court ceases to have a
Court cannot agree that the issue involved is a reason to render any ruling or make any
political question beyond the jurisdiction of the pronouncement. (Suplico v. NEDA, G.R. No. 178830,
court to review. When the grant of power is July 14, 2008)
qualified, conditional or subject to limitations, the
issue of whether the prescribed qualifications or Q: PSBank filed a Petition for Certiorari and
conditions have been met or the limitations Prohibition seeking to nullify the order of the
respected is justiciable—the problem being one of Senate, sitting as an Impeachment Court, to
legality or validity, not its wisdom. Moreover, the issue a subpoena duces tecum and ad
jurisdiction to delimit constitutional boundaries testificandum to PSBank and/or its
has been given to the SC. When political questions representative requiring them to testify and
are involved, the Constitution limits the produce documents relative to the foreign

2019 GOLDEN NOTE S
Judicial Department
currency accounts that were alleged to belong subsequently revoked by the agency in question of
to then SC Chief Justice Renato Corona. Pending nullified by the Court. (Hacienda Luisita v.
the resolution for such petition, supervening Presidential Agrarian Reform Council, G.R. No.
events have taken place such as the conviction 171101, November 22, 2011)
of CJ Corona as well as his execution of a waiver
against confidentiality of all his bank accounts. Doctrine of Relative Constitutionality
Did the Impeachment Court act arbitrarily
when it issued the assailed subpoena to obtain A statute valid at one time may become void at
information concerning the subject foreign another time because of altered circumstances.
current deposits notwithstanding the The constitutionality of a statute cannot, in every
confidentiality of such deposits? instance, be determined by a mere comparison of
its provisions with applicable provisions of the
A: The Court finds it appropriate to abstain from Constitution, since the statute may be
passing upon the merits of this case where legal constitutionally valid as applied to one set of facts
relief is no longer needed no called for. The and invalid in its application to another.
supervening conviction of CJ Corona has rendered
the present petition moot and academic. Thus, if a statute in its practical operation becomes
(Philippine Savings Bank v. Senate arbitrary or confiscatory, its validity, even though
Impeahcment Court, G. R. No. 200238, November affirmed by a former adjudication, is open to
12, 2012, PER J. PERLAS-BERNABE) inquiry and investigation in the light of changed
conditions. (Central Bank Employees
OPERATIVE FACT DOCTRINE Association, Inc. v. Bangko Sentral ng Pilipinas,
G.R. No. 148208, December 15, 2004)
Under this doctrine, the law is recognized as
unconstitutional but the effects of the SAFEGUARDS OF JUDICIAL INDEPENDENCE
unconstitutional law, prior to its declaration of
nullity, may be left undisturbed as a matter of Constitutional safeguards that guarantee the
equity and fair play. It is a rule of equity. (League independence of the judiciary
of Cities v. COMELEC, G.R. No. 176951, November 18,
2008) 1. The SC is a constitutional body and may not
be abolished by the legislature.
In another case, the Court held that to return the 2. Members are only removable by
amounts received to the respective taxing impeachment. (1987 Constitution, Art. XI, Sec.
authorities would certainly impose a heavy, and 2)
possibly crippling, financial burden upon them 3. The SC may not be deprived of its minimum
who merely, and presumably in good faith, original and appellate jurisdiction (1987
complied with the legislative fiat subject of this Constitution, Art VIII, Sec. 2); appellate
case; hence the doctrine of operative fact shall be jurisdiction may not be increased without its
applied. (Film Development Council v. Colon advice or concurrence. (1987 Constitution,
Heritage Realty, G.R. No. 203754, June 16, 2015) Art. VI, Sec. 30)
NOTE: The invocation of this doctrine is an NOTE: The Congress shall have the power to
admission that the law is unconstitutional. define, prescribe, and apportion the
Further, as an exception to the general rule, the jurisdiction of the various courts (all courts
doctrine only applies as a matter of equity and fair below the SC) but may not deprive the
play. Supreme Court of its jurisdiction over cases
enumerated in Section 5 (express powers of
Applicability on executive acts the SC) hereof. (1987 Constitution, Art. VII,
Sec. 2)
The Operative Fact Doctrine also applies to
executive acts subsequently declared as invalid. A 4. The SC has administrative supervision over
decision made by the president or the all inferior courts and personnel. (1987
administrative agencies has to be complied with Constitution, Art. VIII, Sec. 6)
because it has the force and effect of law. The term 5. The SC has exclusive power to discipline
“executive act” is broad enough to encompass judges/justices of inferior courts. (1987
decisions of administrative bodies and agencies Constitution, Art. VIII, Sec. 11)
under the executive department which are
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POLITICAL LAW
6. The members of the judiciary enjoy security impeachment of an impeachable officer make
of tenure. [1987 Constitution, Art. VIII, Sec. 2 them disqualified to hear a petition for quo
(2)] warranto against said officer?
7. The members of the judiciary may not be
designated to any agency performing quasi- A: NO. Their appearance thereat is in deference to
judicial or administrative functions. (1987 the House of Representatives whose
Constitution, Art. VIII, Sec 12) constitutional duty to investigate the
8. The salaries of judges may not be reduced; impeachment complaint filed against an
the judiciary enjoys fiscal autonomy. (1987 impeachable officer could not be doubted. The
Constitution, Art. VIII, Sec. 3) same is not a ground for inhibition provided that
9. The SC alone may initiate the promulgation their appearance is with the prior consent of the
of the Rules of Court. [1987 Constitution, Art. Supreme Court En Banc and they faithfully
VIII, Sec. 5 (5)] observe the parameters that the Court set for the
10. The SC alone may order temporary detail of purpose.
judges. [1987 Constitution, Art. VIII, Sec. 5 (3)]
11. The SC can appoint all officials and Requisites for a document to be protected by
employees of the Judiciary. (1987 DPP
Constitution, Art. VIII, Sec. 5 (6)]
It must be shown that the document is both:
Judicial Privilege (Deliberative Process 1. Pre-decisional – If they were made in the
Privilege or DPP) attempt to reach a final decision; and
2. Deliberative – If it reflects the give-and-take
The privilege against disclosure of information or of the consultative process such as the
communications that formed the process of disclosure of the information would
judicial decisions. discourage open discussion within the
agency.
This applies to confidential matters, which refer
to information not yet publicized by the Court like NOTE: Court records which are pre-decisional and
(1) raffle of cases, (2) actions taken in each case in deliberative in nature are thus protected and
the Court’s agenda, and (3) deliberations of the cannot be the subject of subpoena if judicial
Members in court sessions on case matters privilege is to be preserved. (Ibid.)
pending before it.
NOTE: In a case where the House Impeachment
This privilege, however, is not exclusive to the Panel, through letters, asked for the examination
Judiciary and it extends to the other branches of of records and the issuance of certified true copies
government due to our adherence to the principle of the rollos and the Agenda and Minutes of
of separation of powers. (In Re: Production of Court Deliberations of specific SC-decided cases and at
Records and Documents and the Attendance of the same time, requested for the attendance of
Court Officials and Employees as Witnesses under court officials including judges, justices, and
the Subpoenas of Feb. 10, 2012 and the Various employees as witnesses under subpoenas, it was
Letters of Impeachment Prosecution Panel dated held that Members of the Court may not be
January 19 and 25, 2012, February 14, 2012) compelled to testify in the impeachment
proceedings against the Chief Justice or other
Purpose of Judicial Privilege Members of the Court about information acquired
in the performance of their official adjudicatory
To prevent the ‘chilling’ of deliberative functions and duties; otherwise, their disclosure of
communications. It insulates the Judiciary from an confidential matters learned in their official
improper intrusion into the functions of the capacity violates judicial privilege as it pertains to
judicial branch and shields judges, justices, and the exercise of the constitutional mandate of
court officials and employees from public scrutiny adjudication. (Ibid.)
or the pressure of public opinion that would
impair their ability to render impartial decisions. XPN: If the intent only is for them to identify or
(Ibid.) certify the genuineness of documents within their
control that are not confidential and privileged,
Q: Does the participation of Associate Justices their presence in the Impeachment Court may be
in the hearings of the House Committee on permitted.
Justice determining probable cause for the

2019 GOLDEN NOTE S
Judicial Department
Waiver of privilege B. Other Members
4. Representative of the Integrated Bar – 4
This privilege, incidentally, belongs to the years
Judiciary and is for the SC (as the representative 5. A professor of law – 3 years
and entity speaking for the Judiciary), and not for 6. A retired member of the SC – 2 years
the individual justice, judge, or court official or 7. Private sector representative – 1 year.
employees to waive. Thus, every proposed waiver [1987 Constitution, Art. VIII, Sec. 8(2)]
must be referred to the SC for its consideration
and approval. Rationale: continuity and preservation of the
institutional memory
Principle of Judicial Restraint
Representative of Congress in the JBC
Theory of judicial interpretation that encourages
judges to limit the exercise of their own power. Only one. The word “Congress” used in Sec. 8(1),
Art. VIII is used in its generic sense. Only a singular
In terms of legislative acts, it means that every representative may be allowed to sit in the JBC
intendment of the law must be adjudged by the from either the Senate or HoR. The seven-member
courts in favor of its constitutionality, invalidity composition of the JBC serves a practical purpose,
being a measure of last resort. Therefore, in that is, to provide a solution should there be a
construing the provisions of a statute, courts must stalemate in voting.
first ascertain whether an interpretation is
possible to sidestep the question of It is evident that the definition of “Congress” as a
constitutionality. (Estrada v. Sandiganbayan, G.R. bicameral body refers to its primary function in
No. 148560, November 19, 2001) government – to legislate. In the passage of laws,
the Constitution is explicit in the distinction of the
JUDICIAL AND BAR COUNCIL role of each house in the process. The same holds
true in Congress’ non-legislative powers. An inter-
Composition of the JBC (C2RISP2) play between the two houses is necessary in the
realization of these powers causing a vivid
1. Chief Justice, as ex-officio chairman dichotomy that the Court cannot simply discount.
2. Secretary of Justice, as an ex-officio member This, however, cannot be said in the case of JBC
3. Representative of Congress, as an ex-officio representation because no liaison between the
member two houses exists in the workings of the JBC.
4. Representative of the Integrated Bar Hence, the term “Congress” must be taken to mean
5. A Professor of law the entire legislative department. The Constitution
6. A Retired member of the SC mandates that the JBC be composed of seven (7)
7. Private sector representative members only. (Chavez v. JBC, G.R. No. 202242, July
17, 2012)
NOTE: JBC does not fall within the scope of a
tribunal, board, or officer exercising judicial or POWERS OF JBC
quasi-judicial functions. However, since the
formulation of guidelines and criteria is necessary Functions of the JBC (2000 Bar)
and incidental to the exercise of the JBC’s
constitutional mandate, a determination must be The principal function of the JBC is to recommend
made on whether the JBC has acted with grave appointees to the judiciary. It may, however,
abuse of discretion amounting to lack or excess of exercise such functions as the SC may assign to it.
jurisdiction in issuing and enforcing the said (1987 Constitution, Art. VIII, Sec. 8)
policy. (Villanueva v. JBC, G.R. No. 211833, April 7,
2015) NOTE: The duty of the JBC to submit a list of
nominees before the start of the President’s
Staggered Terms of members of the JBC mandatory 90-day period to appoint is
ministerial, but its selection of the candidates
A. Regular Members whose names will be in the list to be submitted to
1. Chief Justice – 4 years the President lies within the discretion of the JBC.
2. Secretary of Justice – 4 years (De Castro v. JBC, G.R. No. 191002, March 17, 2010)
3. Representative of Congress – 4 years
Unanimity rule on integrity
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POLITICAL LAW
Under Sec. 2, Rule 10 of JBC-009, an applicant must QUALIFICATIONS OF MEMBERS OF THE

obtain the unanimous vote of the JBC members in JUDICIARY
order to be included in the shortlist of nominees to
be submitted to the President whenever a Of proven competence, integrity, probity and
question of integrity is raised against him. independence. [1987 Constitution, Art. VIII, Sec.
7(3)]
FISCAL AUTONOMY
Composition of the SC
Constitutional guarantee of fiscal autonomy
A. Chief Justice
In Bengzon v. Drilon (G.R. No. 103524, April 15, B. 14 Associate Justices
1992), the SC explained that fiscal autonomy
contemplates a guarantee of full flexibility to Divisions of the SC
allocate and utilize resources with the wisdom and
dispatch that the needs require. It may sit en banc or in its discretion, in divisions
of three, five, or seven members. [1987
It recognizes the power and authority to deny, Constitution, Art. VIII, Sec. 4(1)]
assess and collect fees, fix rates of compensation
not exceeding the highest rates authorized by law Qualifications for appointments to the SC
for compensation and pay plans of the government
and allocate and disburse such sums as may be 1. Natural born citizen of the Philippines;
provided by law or prescribed by it in the course 2. At least 40 years of age; and
of the discharge of its functions. 3. A judge of a lower court or engaged in the
practice of law in the Philippines for 15 years
Q: The Court received two letters requesting or more. [1987 Constitution, Art. VIII, Sec. 7(1)]
for copies of Statement of Assets, Liabilities,
and Net worth (SALN) and the Personal Data The members of the judiciary are appointed by the
Sheet (PDS) or the Curriculum Vitae (CV) of its President of the Philippines from among a list of at
justices for the year 2008 for the purposes of least three (3) nominees prepared by the Judicial
updating their database of information on and Bar Council (JBC) for every vacancy.
government officials. Other requests for copies
of SALN and other personal documents of the NOTE: The appointment shall need no
Justices of the Court, Court of Appeals (CA), and confirmation from the Commission on
Sandiganbayan (SB) were filed. Can the Court Appointments. (1987 Constitution, Art. VIII, Sec. 9)
allow the release of copies of SALN and other
personal documents of the incumbent Rules on vacancies in the SC
Justices?
1. Vacancies in the SC should be filled within 90
A: The Court may deny request for certified copies days from the occurrence of the vacancy.
of Statements of Assets, Liabilities and Net Worth (1987 Constitution, Art. VIII, Sec. 4(1))
(SALNs) of all incumbent justices of the SC and 2. Vacancies in lower courts should be filled
Court of Tax Appeals if it is lacking sufficient basis. within 90 days from submission to the
It should not be forgotten that invoking one’s President of the JBC list.
constitutional right to information must not set 3. The filling of the vacancy in the Supreme
aside the need to preserve the integrity and Court within the 90-day period is an
independence of the judiciary. It must be invoked exception to the prohibition on midnight
if under the circumstances it would not result in appointments of the president. This means
endangering, diminishing or destroying the that even if the period falls on the period
independence and security of the members of the where the president is prohibited from
judiciary in the performance of their judicial making appointments (midnight
functions or expose them to revenge for adverse appointments); the president is allowed to
decisions. (RE: Request for Copies of the SALN and make appointments to fill vacancies in the
Personal Data Sheet or Curriculum Vitae of the Supreme Court.
Justices of the Supreme Court and Officers and
Employees of the Judiciary, A.M. No. 09-8-6-SC, June Otherwise stated, the prohibition of the
13, 2012) President to make appointments two (2)

2019 GOLDEN NOTE S
Judicial Department
months prior the immediate presidential each other as these remedies are distinct as to
election is limited to appointments to the jurisdiction, grounds, applicable rules pertaining
lower courts. (De Castro v. JBC, G.R. No. to initiation, filing and dismissal, and limitations.
191002, March 17, 2010) (Republic v. Sereno, G.R. No. 237428, May 11, 2018)
Tenure of the members of the SC and judges General qualifications for appointments to
(1993, 1996, 2000 Bar) LOWER COLLEGIATE courts
Members of the SC and judges of lower courts can 1. Natural born citizen of the Philippines; and
hold office during good behavior until: 2. Member of the Philippine Bar.
1. The age of 70 years old; or General qualifications for appointments to

2. They become incapacitated to discharge LOWER courts
their duties.
1. Citizen of the Philippines; and
Q: May the Supreme Court assume jurisdiction 2. Member of the Philippine Bar.
and give due course to a petition for quo
warranto against an impeachable officer and NOTE: For both lower collegiate courts and lower
against whom an impeachment complaint has courts, Congress may prescribe other
already been filed with the House of qualifications. [1987 Constitution, Art. VIII, Sec. 7
Representatives? (1) and (2)]
A: YES. The language of Section 2, Article XI of the Q: By virtue of Republic Act No. 10660, two new
Constitution does not foreclose a quo warranto divisions of the Sandiganbayan were created
action against impeachable officers. The provision with three members each, and there were six
reads: simultaneous vacancies for Associate Justice of
said collegiate court. The JBC then submitted
The xxx Members of the Supreme Court, xxx may six separate shortlists for the vacancies for the
be removed from office on impeachment for, and 16th to the 21st Sandiganbayan Associate
conviction of, culpable violation of the Justices. Petitioners assert that President
Constitution, treason, bribery, graft and Aquino's power to appoint is limited to each
corruption, other high crimes, or betrayal of public shortlist submitted by the JBC, President
trust. Xxx Aquino should have appointed the 16th
Sandiganbayan Associate Justice from the
The provision uses the permissive term "may" nominees in the shortlist for the 16th
which, in statutory construction, denotes Sandiganbayan Associate Justice, the 17th
discretion and cannot be construed as having a Sandiganbayan Associate Justice from the
mandatory effect. The term "may" is indicative of nominees in the shortlist for the 17th
a mere possibility, an opportunity or an option. Sandiganbayan Associate Justice, and so on
The grantee of that opportunity is vested with a and so forth. By totally overlooking the
right or faculty which he has the option to exercise. nominees for the 16th Sandiganbayan
An option to remove by impeachment admits of an Associate Justice and appointing respondents
alternative mode of effecting the removal. Musngi and Econg, who were both nominees
Therefore, by its tenor, Section 2, Article XI of the for the 21st Sandiganbayan Associate Justice,
Constitution allows the institution of a quo as the 16th and 18th Sandiganbayan Associate
warranto action against an impeachable officer. Justices, respectively, President Aquino
violated the Art. VIII, Sect. 9 of the 1987
While both impeachment and quo warranto may Constitution, which requires the President to
result in the ouster of the public official, the two appoint from a list of at least three nominees
proceedings materially differ. Thus, they are not submitted by the JBC for every vacancy. Are the
mutually exclusive remedies and may proceed petitioners correct?
simultaneously. At its most basic, impeachment
proceedings are political in nature, while an action A: NO. Nomination by the JBC shall be a
for quo warranto is judicial or a proceeding qualification for appointment to the Judiciary, but
traditionally lodged in the courts. Aside from the this only means that the President cannot appoint
difference in their origin and nature, quo warranto an individual who is not nominated by the JBC. It
and impeachment may proceed independently of should be stressed that the power to recommend
89
POLITICAL LAW
of the JBC cannot be used to restrict or limit the observance of due process neither negates
President's power to appoint as the latter's nor renders illusory the fulfillment of the
prerogative to choose someone whom he/she duty of JBC to recommend. This holding is not
considers worth appointing to the vacancy in the an encroachment on its discretion in the
Judiciary is still paramount. As long as in the end, nomination process. Actually, its adherence
the President appoints someone nominated by the to the precepts of due process supports and
JBC, the appointment is valid. This does not violate enriches the exercise of its discretion.
Article VIII, Section 9 of the 1987 Constitution. To
meet the minimum requirement under said b. YES. Even as Jardeleza was verbally informed
constitutional provision of three nominees per of the invocation of Section 2, Rule 10 of JBC-
vacancy, there should at least be 18 nominees 009 against him and was later asked to
from the JBC for the six vacancies for explain himself during the meeting, these
Sandiganbayan Associate Justice; but the circumstances still cannot expunge an
minimum requirement was even exceeded herein immense perplexity that lingers in the mind
because the JBC submitted for the President's of the Court. What is to become of the
consideration a total of 37 qualified nominees. procedure laid down in JBC-010 if the same
(Aguinaldo v. Aquino, G.R. No. 224302, November would be treated with indifference and
29, 2016) disregard? To repeat, as its wording provides,
any complaint or opposition against a
Q: Upon the retirement of Associate Justice candidate may be filed with the Secretary
Roberto Abad, the Judicial and Bar Council within ten (10) days from the publication of
(JBC) announced the opening for application or the notice and a list of candidates. Surely, this
recommendation for the position. Francis H. notice is all the more conspicuous to JBC
Jardeleza (Jardeleza) was nominated for the members. (Jardeleza V. Sereno, et al., G.R. No.
said position and upon acceptance of the 213181, 19 August 2014)
nomination, he was included in the names of
candidates. However, Chief Justice Sereno WORKINGS OF THE SUPREME COURT
invoked Sect. 2, Rule 10 of JBC-009 against him,
and thereafter, the JBC released the short list EN BANC DECISIONS
of four nominees, which did not include
Jardeleza. Jardeleza resorted to judicial Cases that should be heard by the SC en banc
intervention, alleging the illegality of his (TRuP-DE-PreJ)
exclusion from the short list due to the
deprivation of his constitutional right to due 1. All cases involving the constitutionality of a
process. Treaty, international or executive
agreement, or law;
a. Is the right to due process available in JBC 2. All cases which under the Rules of Court may
proceedings? be required to be heard en banc;
b. Was Jardeleza denied his right to due 3. All cases involving the constitutionality,
process? application or operation of Presidential
A: decrees, proclamations, orders, instructions,
a. YES. An applicant’s access to the rights ordinances, and other regulations;
afforded under the due process clause is not 4. Cases heard by a Division when the required
discretionary on the part of the JBC. While the majority in the division is not obtained;
facets of criminal and administrative due 5. Cases where the SC modifies or reverses a
process are not strictly applicable to JBC doctrine or principle of law Previously laid
proceedings, their peculiarity is insufficient either en banc or in division;
to justify the conclusion that due process is 6. Administrative cases involving the discipline
not demandable. The fact that a proceeding is or dismissal of Judges of lower courts;
sui generis and is impressed with discretion 7. Election contests for president or vice-
does not automatically denigrate an president.
applicant’s entitlement to due process.
Notwithstanding being “a class of its own,” Cases that may be heard by division
the right to be heard and to explain one’s self
is availing. The Court subscribed to the view Other cases or matters may be heard in division,
that in cases where an objection to an and decided or resolved with the concurrence of a
applicant’s qualifications is raised, the majority of the members who actually took part in

2019 GOLDEN NOTE S
Judicial Department
the deliberations on the issues and voted thereon, When change of venue is permitted
but in no case without the concurrence of at least
three such members. Where there are serious and weighty reasons
present, which would prevent the court of original
Advice and concurrence of SC needed for jurisdiction from conducting a fair and impartial
increase of its appellate jurisidiction trial, the Court has been mandated by Sec. 5(4),
Art. VIII to order a change of venue to prevent a
No law shall be passed increasing the appellate miscarriage of justice.
jurisdiction of the SC as provided in the
Constitution without its advice and concurrence. In this case, that fact that the respondent filed
(1987 Constitution, Art. VI, Sec. 30) several criminal cases for falsification in different
jurisdictions, which unduly forced Navaja to spend
PROCEDURAL RULE-MAKING POWER scarce resources to defend herself cannot be
considered as compelling reason which would
Scope of the rule-making power of the SC. prevent the MCTC from conducting a fair and
(1991, 2000, 2008, 2009, 2013, 2014, 2015 impartial trial. (Navaja v. de Castro, G.R. No.
Bar) 182926, June 22, 2015)
1. The protection and enforcement of The authority vested in the Congress and
constitutional rights Supreme Court is separate and distinct
2. Pleadings, practice and procedure in all
courts CONGRESS SUPREME COURT
3. Admission to the practice of law Authority to define, Power to promulgate
4. The Integrated Bar prescribe, and rules of pleading,
5. Legal assistance to the underprivileged apportion the practice, and
jurisdiction of the procedure. [1987
Limitations on its rule making power various courts. (1987 Constitution, Art. VIII,
Constitution, Art. VIII, Sec. 5(5)]
1. It should provide a simplified and Sec. 2)
inexpensive procedure for the speedy
disposition of cases. Authority to create
2. It should be uniform for all courts of the same statutory courts. (1987
grade. Constitution, Art. VIII,
3. It should not diminish, increase, or modify Sec. 1)
substantive rights.
NOTE: Albeit operatively interrelated, these
Requirements for the decisions of the SC powers are institutionally separate and distinct,
each to be preserved under its own sphere of
1. The conclusions of the Supreme Court in any authority.
case submitted to it for decision en banc or in
division shall be reached in consultation When Congress creates a court and delimits its
before the case is assigned to a Member for jurisdiction, it is the Court which fixes the
the writing of the opinion of the Court. procedure through the rules it promulgates.
2. A certification to this effect signed by the
Chief Justice shall be issued. It was held that the 1st par. of Sec. 14, RA 6770 is
3. A copy thereof shall be attached to the record not a jurisdiction-vesting provision because it
of the case and served upon the parties. does not define, prescribe, and apportion the
4. Any Member who took no part, or dissented, subject matter jurisdiction of courts to act on
or abstained from a decision or resolution, certiorari cases, instead, Congress interfered with
must state the reason thereof. (1987 a provisional remedy created by this Court under
Constitution, Art. VIII, Sec. 13) its duly promulgated rules of procedure, which
utility is both integral and inherent to every
NOTE: No decision shall be rendered by any court court’s exercise of judicial power. Without the
without expressing therein clearly and distinctly Court’s consent to the proscription, as may be
the facts and the law on which it is based. (1987 manifested by an adoption of the same as part of
Constitution, Art. VIII, Sec. 13) the rules of procedure through an administrative
circular issued therefor, there thus, stands to be a
91
POLITICAL LAW
violation of the separation of powers principle.
(Carpio-Morales v. CA, G.R. No. 217126-27,
November 10, 2015)
ADMINISTRATIVE SUPERVISION OVER LOWER

COURTS
The Supreme Court exercises administrative

supervision over all lower courts. (1987
Constitution, Art. VIII, Sec. 6)
The SC is assisted by the Court Administrator and

the Deputy Court Administrators in exercising the
administrative function.
Matters to be attended by the Court En Banc:
1. Disciplinary Matters involving justices and

judges of all lower courts and lower court
personnel.
2. Designation of Judges.
3. Request for transfer of cases from one court,
administrative area or judicial region to another
and/or transfer of venue of cases to avoid
miscarriage of justice as provided for in Section
5(4), Article VIII of the Constitution.
4. Amendment, modification and/or revocation
of Administrative Orders and Circulars issued by
the Supreme Court.
5. Matters for policy determination.
ORIGINAL AND APPELLATE JURISDICTION
Original and appellate jurisdiction of the SC

(1994, 1995, 1996, 2000, 2004, 2006 Bar)
The Supreme Court has the power to review,

revise, reverse, or affirm on appeal or certiorari, as
the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
1. All cases in which the constitutionality or

validity of any treaty, international or
executive agreement, law, presidential
decree, proclamation, order, instruction,
ordinance, or regulation is in question.
2. All cases involving the legality of any tax,
impost, assessment, or toll, or any penalty
imposed in relation thereto.
3. All cases in which the jurisdiction of any
lower court is in issue.
4. All criminal cases in which the penalty
imposed is reclusion perpetua or higher.
5. All cases in which only an error or question
of law is involved. [1987 Constitution, Art VIII,
Sec. 5(2)]

2019 GOLDEN NOTE S
Constitutional Commissions
CONSTITUTIONAL COMMISSIONS
Salaries of chairmen and members are
COMMON PROVISIONS relatively high and may not be decreased
during continuance in office. (1987
Independent Constitutional Commissions: Constitution, Art. IX-A, Sec. 3; Art. XVIII, Sec.
17)
1. Civil Service Commission (CSC) 7. Commissions enjoy fiscal autonomy. (1987
2. Commission on Elections (COMELEC) Constitution, Art. IX-A, Sec. 5)
3. Commission on Audit (CoA) 8. Each commission may promulgate its own
procedural rules, provided they do not
NOTE: The CSC, COMELEC, and COA are equally diminish, increase or modify substantive
pre-eminent in their respective spheres. Neither rights [though subject to disapproval by the
one may claim dominance over the others. In case Supreme Court]. (1987 Constitution, Art. IX-A,
of conflicting rulings, it is the judiciary, which Sec. 7)
interprets the meaning of the law and ascertains 9. Chairmen and members are subject to
which view shall prevail. (CSC v. Pobre, G.R. No. certain disqualifications and inhibitions
160508, September 15, 2004) calculated to strengthen their integrity.
(1987 Constitution, Art. IX-A, Sec. 2)
Purpose 10. Commissions may appoint their own officials
and employees in accordance with Civil
The Constitution established the Constitutional Service Law. (1987 Constitution, Art. IX-A, Sec.
Commissions for the importance of their functions 4)
and the need of insulation from undesired political
interference or pressure; if merely created by NOTE: The Supreme Court held that the “no
statute, their independence is not assured. report, no release” policy may not be validly
enforced against offices vested with fiscal
Guarantees of independence provided for by autonomy, without violating Art. IX-A, Sec. 5. The
the Constitution to the 3 Commissions “automatic release” of approved annual
appropriations to a Constitutional Commission
1. They are constitutionally-created; may not vested with fiscal autonomy should thus be
be abolished by statute of its judicial construed to mean that no condition to fund
functions. (1987 Constitution, Art. IX-A, Sec. 1) releases may be imposed. (CSC v. DBM, G.R. No.
2. Each is conferred certain powers and 158791, July 22, 2005)
functions which cannot be reduced by
statute. (1987 Constitution, Art. IX-B, C and D) Salary
3. Each is expressly described as independent.
(1987 Constitution, Art. IX-A, Sec. 1) Salaries may be increased by a statute but may not
4. Chairmen and members are given long be decreased during incumbent’s term of office.
terms of office for seven (7) years. [1987
Constitution, Art. IX-B, C and D, Sec. 1(2)] NOTE: The decrease is prohibited to prevent the
5. Chairmen and members cannot be removed legislature from exerting pressure upon the
except by impeachment. (1987 Constitution, Commissions by “operating on their necessities.”
Art. XI, Sec. 2) Salaries may be increased, as a realistic
6. Chairmen and members may not be recognition of the need that may arise to adjust the
reappointed or appointed in an acting compensation to any increase in the cost of living.
capacity. [1987 Constitution, Art. IX-B, C and
D, Sec. 1(2)] TERM
NOTE: When an ad interim appointment is Seven years without reappointment.

not confirmed (as it was by-passed or that
there was no ample time for Commission on NOTE: Appointment to any vacancy shall be only
Appointments to pass upon the same), for the unexpired term of the predecessor. In no
another ad interim appointment may be case shall any Member be appointed or designated
extended to the appointee without violating in a temporary or acting capacity. (1987
the Constitution. (Matibag v. Benipayo, G.R. Constitution, Art. IX-C, Sec. 1[2]) (1997, 2005 Bar)
No. 149036, April 2, 2002)
93
POLITICAL LAW
Requisites for the effective operation of the 2. As collegial bodies, each Commission must act
rotational scheme of terms of constitutional as one, and no one member can decide a case
bodies for the entire commission.
1. The original members of the Commission 3. Any decision, order or ruling of each
shall begin their terms on a common date; Commission may be brought to the SC on
2. Any vacancy occurring before the expiration certiorari by the aggrieved party within thirty
of the term shall be filled only for the balance (30) days from receipt of a copy thereof.
of such term. (Republic v. Imperial, G.R. No. L-
8684, March 31, 1995) NOTE: When the Court reviews a decision of the
COMELEC, it exercises extraordinary jurisdiction
NOTE: The members of the Constitutional thus, the proceeding is limited to issues involving
Commissions have staggered terms: grave abuse of discretion resulting in lack or
excess of jurisdiction and not factual findings of
a) To minimize the opportunity of the the Commission. (Aratuc v. COMELEC, G.R. No. L-
President to appoint during his own 49705-09, February 8, 1979)
term more than one member or group of
members in the Constitutional The appropriate remedy to invalidate disputed
Commissions; and COMELEC resolutions (i.e. final orders, rulings and
decisions of the COMELEC rendered in the
b) To ensure continuity of the body and its exercise of its adjudicatory or quasi-judicial
policies. powers) is certiorari under Rule 65 of the Rules of
Court. (Loong v. COMELEC, G.R. No. 93986,
POWERS AND FUNCTIONS OF THE CSC, December 22, 1992)
COMELEC AND COA
COMPOSITION AND QUALIFICATIONS OF
Decision-making process in these MEMBERS
Commissions
CIVIL SERVICE COMMISSION
1. The CSC, COMELEC, and CoA shall decide
matter or cases by a majority vote of all the (See discussion under Law on Public Officers)
members within sixty (60) days from
submission. (Sec. 7 Art. IX-A) COMMISSION ON ELECTIONS
a. COMELEC may sit en banc or in 2 Composition of the COMELEC

divisions.
b. Election cases, including pre- A. Chairman
proclamation controversies are decided B. Six (6) Commissioners
in division, with motions for
reconsideration filed with the COMELEC TERM:
en banc.
c. The SC has held that a majority decision Seven years without reappointment.
decided by a division of the COMELEC is
a valid decision. NOTE: If the appointment was ad interim, a
subsequent renewal of the appointment does not
NOTE: Pursuant to COMELEC Rules of Procedure, violate the prohibition on reappointments
when the COMELEC en banc is equally divided in because no previous appointment was confirmed
an opinion and cannot have the required majority, by the Commission on Appointments. The total
rehearing shall be done. If rehearing is originally term of both appointments must not exceed the 7-
commenced in the Commission and no majority year limit. (Matibag v. Benipayo, G.R. No. 149036,
decision is reached, rehearing shall be dismissed. April 2, 2002)
In appealed cases, the judgment or order appealed
from shall stand affirmed and the petition or Qualifications
motion on all incidental matters shall be denied.
(Mamerto Sevilla v. COMELEC, G.R. No. 202833, 1. Natural-born citizen;
March 19, 2013) 2. At least 35 years old at the time of
appointment;

2019 GOLDEN NOTE S
3. College degree holder; and NOTE: The COMELEC may issue writs of
4. Not a candidate in any election immediately certiorari, prohibition, and mandamus in
preceding the appointment. exercise of its appellate functions.
NOTE: Majority of the members, including the 3. Decide, except those involving the right to
Chairman, shall be members of the Philippine Bar vote, all questions affecting elections,
who have been engaged in the practice of law for including determination of the number and
at least ten years. [1987 Constitution, Art. IX-C, Sec location of polling places, appointment of
1(1)] election officials and inspectors, and
registration of voters.
Constitutional powers and functions of the
COMELEC (1991, 1996, 2001 Bar) NOTE: Questions involving the right to vote
fall within the jurisdiction of ordinary courts.
1. Enforce and administer all laws and
regulations relative to the conduct of an 4. Deputize, with the concurrence of the
election, plebiscite, initiative, referendum, and President, law enforcement agencies and
recall. instrumentalities of the government,
including the AFP, for the exclusive purpose of
Note: COMELEC may order the correction of ensuring free, orderly, honest, peaceful and
manifest errors in the tabulation or tallying credible elections.
results during the canvassing and petitions for 5. Registration of political parties, organizations,
this purpose may be filed directly with the or coalitions and accreditation of citizens’
Commission even after the proclamation of arms of the COMELEC.
the winning candidates. 6. File, upon a verified complaint, or on its own
initiative, petitions in court for inclusion or
2. Exercise: exclusion of voters; investigate and, where
a. Exclusive original jurisdiction over all appropriate, prosecute cases of violations of
contests relating to the election, returns election laws, including acts or omissions
and qualifications of all elective: constituting election frauds, offenses and
i. Regional malpractices.
ii. Provincial
iii. City officials NOTE: The grant of exclusive power to
investigate and prosecute cases of election
b. Exclusive appellate jurisdiction over all offenses to the COMELEC was not by virtue of
contests involving: the Constitution but by the OEC which was
i. Elective municipal officials decided eventually amended by Sec. 43 of RA 9369.
by trial courts of general jurisdiction. Thus, the DOJ now conducts preliminary
ii. Elective barangay officials decided by investigation of election offenses concurrently
courts of limited jurisdiction. with the COMELEC and no longer as mere
deputies. (Jose Miguel T. Arroyo v. DOJ, et al.,
c. Contempt powers G.R. No. 199082, September 18, 2012)
i. COMELEC can exercise this power
only in relation to its adjudicatory or 7. Recommend to the Congress effective
quasi-judicial functions. It cannot measures to minimize election spending,
exercise this in connection with its including limitation of places where
purely executive or ministerial propaganda materials shall be posted, and to
functions. prevent and penalize all forms of election
ii. If it is a pre-proclamation frauds, offenses, malpractices, and nuisance
controversy, the COMELEC exercises candidacies.
quasi-judicial/ administrative 8. Recommend to the President the removal of
powers. any officer or employee it has deputized, or
iii. Its jurisdiction over contests (after the imposition of any other disciplinary
proclamation), is in exercise of its action, for violation or disregard of, or
judicial functions. disobedience to its directive, order, or
decision.
9. Submit to the President and the Congress a
comprehensive report on the conduct of each
95
POLITICAL LAW
election, plebiscite, initiative, referendum, or during the respondent’s tenure; if the ground is
recall. loss of the required qualifications, the petition
may be filed at any time during the respondent’s
Remedy of a dissatisfied party in election cases tenure, as soon as the required qualification is lost.
decided by the COMELEC in division The petitioner may not be a candidate, unlike in an
election protest, which is filed only by a candidate
The dissatisfied party may file a motion for who duly filed a certificate of candidacy and had
reconsideration before the COMELEC en banc. If been voted for the office of Senator. In an election
the en banc’s decision is still not favorable, the protest, the filing period is thirty (30) days from
same, in accordance with Sec. 7, Art. IX-A, “may be prostestee’s proclamation.
brought to the SC on certiorari within 30 days from
receipt of copy thereof.” (Reyes v. RTCof Oriental Under the 2013 Rules of the Tribunal, joint
Mindoro, G.R. No. 108886, May 5, 1995) election protests are not allowed, but for good and
sufficient reasons, the Tribunal may order the
NOTE: The fact that decisions, final orders or consolidation of individual protests, hear, and
rulings of the COMELEC in contests involving decide them jointly.
elective municipal and barangay offices are final,
executory and not appealable, (1987 Constitution, COMMISSION ON AUDIT
Art. IX-C, Sec. 2[2]) does not preclude recourse to
the SC by way of a special civil action of certiorari. Composition of the COA
(Galido v. COMELEC, G.R. No. 95346, January 18,
1991) A. Chairman
B. Two (2) Commissioners
COMELEC can exercise its power of contempt in
connection with its functions as the National TERM
Board of Canvassers during the elections
Seven years without reappointment
The effectiveness of a government institution
vested with quasi-judicial power hinges on its Qualifications
authority to compel attendance of the parties
and/or their witnesses in hearings and 1. Natural-born citizen;
proceedings. Suchlike, the COMLEC’s investigative 2. At least 35 years old at the time of
power to punish individuals who refuse to appear appointment;
during a fact-finding investigation, despite a 3. Certified Public Accountant with not less
previous notice and order to attend, cannot be than ten years of auditing experience, or
withheld, for it is an essential to its constitutional member of the Philippine Bar who has been
mandate to secure the conduct of honest and engaged in the practice of law; and
credible elections. (Bedol v. COMELEC, G.R. No. 4. Not a candidate in any election immediately
179830, December 3, 2009) preceding the appointment.
Function of Senate Electoral Tribunal (SET) NOTE: At no time shall all Members of the
Commission belong to the same profession. [1987
The SET has jurisdiction to entertain and resolve Constitution, Art. IX-D, Sec 1(1)]
two types of electoral contests against a Member
of the Senate: a) petition for quo warranto, and b) Powers and duties of COA
election protest. Mutually exclusive, a petition for
quo warranto cannot include an election protest, 1. Examine, audit and settle all accounts
nor can an election protest include a petition for pertaining to revenue and receipts of, and
quo warranto. expenditures or uses of funds and property
owned or held in trust or pertaining to
Any registered voter who seeks to disqualify a government.
Member of the Senate on the ground of ineligibility 2. Keep general accounts of government and
or disloyalty to the Republic of the Philippines preserve vouchers and supporting papers.
must file a petition for quo warranto within ten 3. Authority to define the scope of its audit and
(10) days from therespondent’s proclamation. examination, establish techniques and
However, if the basis of ineligibility is on methods required therein.
citizenship, the petition may be filed any time

2019 GOLDEN NOTE S
NOTE: The power of the Commission to define or excess of jurisdiction, may the SC entertain
the scope of its audit and to promulgate auditing a petition for certiorari under Rule 65.
rules and regulations and the power to disallow 2. CSC: In the case of decisions of the CSC,
unnecessary expenditures is exclusive but its Administrative Circular 1-95538 which took
power to examine and audit is not exclusive. effect on June 1, 1995, provides that final
(Development Bank of the Philippines v. resolutions of the CSC shall be appealable by
Commission on Audit, G.R. No. 88435, January 16, certiorari to the CA within 15 days from
2002) receipt of a copy thereof. From the decision
of the CA, the party adversely affected
4. Promulgate accounting and auditing rules thereby shall file a petition for review on
and regulations, including those for certiorari under Rule 45 of the Rules of Court.
prevention and disallowance. (1987 3. COMELEC: Only decisions of COMELEC en
Constitution, Art. IX-D, Sec. 2) banc may be brought to the Court by
certiorari since Art. IX-C provides that
PROHIBITED OFFICES & INTERESTS motions for reconsideration of decisions
shall be decided by the Commission en banc.
No member of a Constitutional Commission shall, (Reyes v. Mindoro, G.R. No. 108886, May 5,
during his tenure: 1995)
1. Hold any other office or employment Procedural requisite before certiorari to the
2. Engage in the practice of any profession Supreme Court may be availed of
3. Engage in the active management and
control of any business which in any way Sec. 1 of Rule 65 provides that certiorari may be
may be affected by the function of his office resorted to when there is no other plain or speedy
4. Be financially interested, directly or and adequate remedy. But reconsideration is a
indirectly, in any contract with, or in any speedy and adequate remedy. Hence, a case may
franchise or privilege granted by the be brought to the Supreme Court only after
Government, any of its subdivisions, agencies reconsideration.
or instrumentalities, including GOCCs or
their subsidiaries. (1998, 2015 Bar) Rule on appeals
Purpose 1. Decisions, orders or rulings of the

COMELEC/COA may be brought on certiorari
1. To compel the chairmen and members of the to the SC under Rule 65.
Constitutional Commissions to devote their 2. Decisions, orders or rulings of the CSC should
full attention to the discharge of their duties; be appealed to the CA under Rule 43.
and
2. To remove from them any temptation to take RENDERED IN THE EXERCISE OF
advantage of their official positions for ADMINISTRATIVE FUNCTION
selfish purposes.
Power of the CSC to hear and decide
REVIEW OF FINAL ORDERS, RESOLUTIONS & administrative cases
DECISIONS
Under the Administrative Code of 1987, the CSC has
RENDERED IN THE EXERCISE OF the power to hear and decide administrative cases
QUASIJUDICIAL FUNCTION instituted before it directly or on appeal, including
contested appointments.
SC’s jurisdiction over decisions of the
Commissions Body which has the jurisdiction on personnel
actions, covered by the civil service
1. COA: Judgments or final orders of the
Commission on Audit may be brought by an CSC. It is the intent of the Civil Service Law, in
aggrieved party to the Supreme Court on requiring the establishment of a grievance
certiorari under Rule 65. Only when COA acts procedure, that decisions of lower officials (in
without or in excess of jurisdiction, or with cases involving personnel actions) be appealed to
grave abuse of discretion amounting to lack the agency head, then to the CSC. The RTC does not
97
POLITICAL LAW
have jurisdiction over personnel actions. (Olanda rewards system, and to adopt measures to
v. Bugayong, G.R. No. 140917, October 10, 2003) promote morale, efficiency and integrity in the
civil service. Section 12 of Administrative Code of
Certiorari jurisdiction of the SC over these 1987 enumerates the powers and functions of the
Commissions CSC. Sec. 11 thereof states that CSC has the power
to hear and decide administrative cases instituted
Proceedings are limited to issues involving grave by or brought before it directly or on appeal,
abuse of discretion resulting in lack or excess of including contested appointments, and review
jurisdiction and do not ordinarily empower the decisions and actions of its offices and of the
Court to review the factual findings of the agencies attached to it. Further, Section 28, Rule
Commissions. (Aratuc v. COMELEC, G.R. No. L- XIV of the Omnibus Civil Service Rules and
49705-09, February 8, 1979) Regulations specifically confers upon the CSC the
authority to take cognizance over any
Decisions rendered in proceedings or actions irregularities or anomalies connected with the
recognized by the Commissions in the exercise of examinations. Hence, CSC acted within its
adjudicatory and quasi-judicial power are limited jurisdiction. (Capablanca v. Civil Service
but not to purely executive powers. Hence, Commission, G.R. No. 179370, November 19, 2009)
questions based from award of a contract for
construction of voting booths can be brought COMMISSION ON ELECTION
before the trial court. (Ambil v. Comelec, G.R. No.
143398, October 5, 2000) Cases that fall under the jurisdiction of
COMELEC by DIVISION
JURISDICTION OF EACH CONSTITUTIONAL
COMMISSION Election cases should be heard and decided by a
division. If a division dismisses a case for failure of
CIVIL SERVICE COMMISSION counsel to appear, the MR may be heard by the
division.
Scope of the Civil Service (1999, 2003 Bar)
NOTE: According to Balajonda v. COMELEC (G.R.
The civil service embraces all branches, No. 166032, Feb. 28, 2005), the COMELEC can order
subdivisions, instrumentalities, and agencies of immediate execution of its own judgments.
the Government, including government-owned or
controlled corporations with original charters. Cases that fall under the jurisdiction of
[1987 Constitution, Art. IX-B, Sec. 2(1)] COMELEC EN BANC
Q: Capablanca, acquired a permanent status as Motion for Reconsideration of decisions may be

Police Officer 1 after taking the required decided by COMELEC En Banc. It may also directly
examinations including the Career Service assume jurisdiction over a petition to correct
Professional Examination-Computer Assisted manifest errors in the tallying of results by Board
Test (CSP-CAT) given by the Civil Service, of Canvassers.
However, it was found out that the person in
the picture pasted in the Picture Seat Plan as NOTE: Any decision, order or ruling of the
well as the signature therein when he took the COMELEC in the exercise of its quasi-judicial
exam is different from the person whose functions may be brought to the SC on certiorari
picture and signature is attached in the under Rules 64 and 65 of the Revised Rules of
Personal Data Sheet. CSC conducted Court within 30 days from receipt of a copy
preliminary investigation. Capablanca’s thereof.
counsel moved to dismiss arguing that the
administrative discipline over police officers These decisions or rulings refer to the decision or
falls under the jurisdiction of the PNP and/or final order of the COMELEC en banc and not of any
NAPOLCOM. Does CSC have jurisdiction and division thereof.
disciplinary authority over a member of the
PNP? Acts that fall under the COMELEC’s power to
supervise or regulate
A: YES. The CSC, as the central personnel agency
of the Government, is mandated to establish a 1. The enjoyment or utilization of all franchises
career service, to strengthen the merit and or permits for the operation of

2019 GOLDEN NOTE S
transportation and other public utilities, agencies. (Development Bank of the Philippines v.
media of communication or information. COA, G.R. No. 88435, January 16, 2002)
2. Grants, special privileges or concessions
granted by the government or any Audit jurisdiction of the COA on privatized,
subdivision, agency or instrumentality formerly government-owned banks
thereof, including any GOCC or its subsidiary.
(1987 Constitution, Art. IX-C, Sec. 4) Since the PNB is no longer owned by the
Government, the COA no longer has jurisdiction to
Instances when COMELEC can exercise its audit it as an institution. Under Sec. 2(2), Art. IX-D
constitutional powers and functions of the Constitution, it is a GOCC and their
subsidiaries which are subject to audit by the COA.
1. During election period – 90 days before the However, in accordance with Sec. 2(1), Art. IX-D,
day of the election and 30 days thereafter. In the COA can audit the PNB with respect to its
special cases, COMELEC can fix a period. accounts because the Government still has equity
2. Applies not only to elections but also to in it. (Philippine Airlines v. COA, G.R. No. 91890, June
plebiscites and referenda. 9, 1995)
Jurisdiction of the COMELEC before the Extent of COA’s audit jurisdiction over Manila
proclamation vs. its jurisdiction after Economic and Cultural Office (MECO)
proclamation
MECO is a sui generis private entity and not a
OVER PRE- OVER CONTESTS GOCC or government instrumentality. the
PROCLAMATION (AFTER Government entrusted with the facilitation of
CONTROVERSY PROCLAMATION) unofficial relations with the people in Taiwan
Due process implications without jeopardizing the country’s faithful
COMELEC’s commitment to the One China policy of the PROC.
jurisdiction is However, despite its non-governmental character,
administrative or the MECO handles government funds in the form
quasi-judicial and is of the "verification fees" it collects on behalf of the
COMELEC’s DOLE and the "consular fees" it collects under
governed by the less
jurisdiction is Section 2(6) of EO No. 15, s. 2001. Hence, accounts
stringent requirements
judicial and is of the MECO pertaining to its collection of such
of administrative due
governed by the "verification fees" and "consular fees" should be
process (although the
requirements of audited by the COA. (Funa v. MECO and COA, G.R.
SC has insisted that
judicial process. No. 193462, February 4, 2014)
questions on
“qualifications” should
be decided only after a
full-blown hearing).
NOTE: Hence, even in the case of regional or

provincial or city offices, it does make a difference
whether the COMELEC will treat it as a pre-
proclamation controversy or as a contest.
COMMISSION ON AUDIT
The COA cannot be divested of its power to

examine and audit government agencies.
No law shall be passed exempting any entity of the
Government or its subsidiary in any guise, or any
investment of public funds, from the jurisdiction of
the Commission on Audit. (Sec.3, ART. IX-D)
The mere fact that private auditors may audit

government agencies does not divest the COA of its
power to examine and audit the same government
99
POLITICAL LAW
BILL OF RIGHTS 2. Lawful means – The means employed are
reasonably necessary for the
FUNDAMENTAL POWERS OF THE STATE accomplishment of the purpose and not
unduly oppressive upon individuals.
The following are the fundamental/inherent (NTC v. Philippine Veterans Bank, 192
powers of the state: SCRA 257, December 10, 1990)
1. Police Power Q: President Rodrigo Duterte issued

2. Power of Eminent Domain Proclamation No. 475 formally declaring a
3. Power of Taxation state of calamity in Boracay and ordering its
closure for six (6) months. On account of this,
POLICE POWER Boracay residents Mark Anthony Zabal and
Thiting Jacosalem filed the present petition
Police power is the power of the state to promote alleging that they would suffer grave and
public welfare by restraining and regulating the irreparable damage as their livelihood
use of liberty and property. It is the most depends on the tourist activities therein. They
pervasive, the least limitable, and the most attacked the order on the ground that it is an
demanding of the three fundamental powers of the invalid exercise of legislative powers. Is the
State. order invalid?
As an inherent attribute of sovereignty which A: NO. That the assailed governmental measure in
virtually extends to all public needs, police power this case is within the scope of police power
grants a wide panoply of instruments through cannot be disputed. Verily, the statutes from which
which the State, as parens patriae, gives effect to a the said measure draws authority and the
host of its regulatory powers. We have held that constitutional provisions which serve as its
the power to “regulate” means the power to framework are primarily concerned with the
protect, foster, promote, preserve, and control, environment and health, safety, and well-being of
with due regard for the interests, first and the people, the promotion and securing of which
foremost, of the public, then of the utility of its are clearly legitimate objectives of governmental
patrons. (Gerochi v. Department of Energy, G. R. efforts and regulations. The only question now is
159796, July 17, 2007) whether the temporary closure of Boracay as a
tourist destination for six months reasonably
The state, in order to promote general welfare, necessary under the circumstances? The answer is
may interfere with personal liberty, with property, in the affirmative.
and with business and occupations. Persons may
be subjected to all kinds of restraint and burdens Tourist arrivals in the island were clearly far more
in order to secure the general comfort, health and than Boracay could handle. Certainly, the closure
prosperity of the state and to this fundamental aim of Boracay, albeit temporarily, gave the island its
of our Government, the rights of the individual are much needed breather, and likewise afforded the
subordinated. (Ortigas and Co., Limited government the necessary leeway in its
Partnership v. Feati Bank and Trust Co, December rehabilitation program. Note that apart from
14, 1979) review, evaluation and amendment of relevant
policies, the bulk of the rehabilitation activities
Generally, police power extends to all the great involved inspection, testing, demolition,
public needs. Its particular aspects, however, are relocation, and construction. These works could
the following: not have easily been done with tourists present.
The rehabilitation works in the first place were not
1. Public health; simple, superficial or mere cosmetic but rather
2. Public morals; quite complicated, major, and permanent in
3. Public safety; and character as they were intended to serve as long-
4. Public welfare. term solutions to the problem. (Zabal v. Duterte,
G.R. No. 238467, February 12, 2019)
Requisites for a valid exercise of police power
1. Lawful subject – The interests of the
public generally, as distinguished from Q: Hotel and motel operators in Manila sought
those of a particular class, require the to declare Ordinance 4670 as unconstitutional
exercise of the police power; and for being unreasonable, thus violative of the

2019 GOLDEN NOTE S
Bill of Rights
due process clause. The Ordinance requires A: NO. A reasonable relation must exist between
the clients of hotels, motels and lodging house the purposes of the measure and the means
to fill out a prescribed form in a lobby, open to employed for its accomplishment, for even under
public view and in the presence of the owner, the guise of protecting the public interest,
manager or duly authorized representative of personal rights and those pertaining to private
such hotel, motel or lodging house. The same property will not be permitted to be arbitrarily
law provides that the premises and facilities of invaded. It must also be evident that no other
such hotels, motels and lodging houses would alternative for the accomplishment of the purpose
be open for inspection either by the City Mayor, less intrusive of private rights can work. In the
or the Chief of Police, or their duly authorized present case, there is less intrusive measures
representatives. It increased their annual which can be employed such as curbing out the
license fees as well. Is the ordinance prostitution and drug use through active police
constitutional? force. The ordinance has a lawful purpose but does
not have the lawful means hence, unconstitutional.
A: YES. The mantle of protection associated with (White Light Corporation vs. City of Manila, G.R. No.
the due process guaranty does not cover the hotel 122846, January 20, 2009)
and motel operators. This particular manifestation
of a police power measure being specifically aimed Q: Are the rates to be charged by utilities like
to safeguard public morals is immune from such MERALCO subject to State regulation?
imputation of nullity resting purely on conjecture
and unsupported by anything of substance. To A: YES. The regulation of rates to be charged by
hold otherwise would be to unduly restrict and public utilities is founded upon the police powers
narrow the scope of police power which has been of the State and statutes prescribing rules for the
properly characterized as the most essential, control and regulation of public utilities are a valid
insistent and the least limitable of exercise thereof. When private property is used
powers, extending as it does "to all the great public for a public purpose and is affected with public
needs." There is no question that the challenged interest, it ceases to be juris privati only and
ordinance was precisely enacted to minimize becomes subject to regulation. The regulation is to
certain practices hurtful to public morals. The promote the common good. As long as use of the
challenged ordinance then proposes to check the property is continued, the same is subject to public
clandestine harboring of transients and guests of regulation. (Republic v. Manila Electric Company,
these establishments by requiring these transients G.R. No. 141314, November 15, 2002)
and guests to fill up a registration form, prepared
for the purpose, in a lobby open to public view at NOTE: Mall owners and operators cannot be
all times, and by introducing several other validly compelled to provide free parking to their
amendatory provisions calculated to shatter the customers because requiring them to provide free
privacy that characterizes the registration of parking space to their customers is beyond the
transients and guests. Moreover, the increase in scope of police powers. It unreasonably restricts
the licensed fees was intended to discourage the right to use property for business purposes
"establishments of the kind from operating for and amounts to confiscation of property. (OSG v.
purpose other than legal" and at the same time, to Ayala Land, Inc., 600 SCRA 617, September 18,
increase "the income of the city government." 2009) (2014 Bar)
(Ermita-Malate Hotel v. City Mayor of Manila, G.R.
No. L-24693, July 31, 1967) Requisites for the valid exercise of police
power by the delegate
Q: The City of Manila enacted Ordinance No.
7774 entitled, “An Ordinance Prohibiting 1. Express grant by law;
Short-Time Admission, Short-Time Admission 2. Must not be contrary to law; and
Rates, and Wash-Up Rate Schemes in Hotels, 3. GR: Within territorial limits of LGUs.
Motels, Inns, Lodging Houses, Pension Houses, XPN: When exercised to protect water supply.
and Similar Establishments in the City of (Wilson v. City of Mountain Lake Terraces, 417
Manila.” The purpose of the ordinance is to P.2d 632,August 18, 1966)
prohibit motel and inn operators from offering
short-time admission, as well as pro-rated or The courts cannot interfere with the exercise
“wash-up” rates for abbreviated stays. Is the of police power
ordinance a valid exercise of police power?
101
POLITICAL LAW
If the legislature decides to act, the choice of
measures or remedies lies within its exclusive The power is It can only be
discretion, as long as the requisites for a valid pervasive and broad as the
exercise of police power have been complied with. all- enabling law
encompassing; and the
Q: Can MMDA exercise police power? It can reach conferring
every form of authorities
A: NO. The MMDA cannot exercise police powers property which want it to be.
since its powers are limited to the formulation, may be needed
coordination, regulation, implementation, by the State for
preparation, management, monitoring, setting of public use. In
policies, installing a system, and administration. fact, it can reach
Nothing in RA No. 7924 granted the MMDA police even private
Scope
power, let alone legislative power (MMDA v. property
Trackworks, G.R. No. 179554, December 16, 2009) already
dedicated to
EMINENT DOMAIN public use, or
even property
Power of eminent domain already devoted
to religious
The power of eminent domain is the inherent right worship.
of the State to condemn private property to public (Barlin v.
use upon payment of just compensation. Ramirez, 7 Phil.
41, November
It is well settled that eminent domain is an 24, 1906).
inherent power of the State that need not be Question Political Judicial
granted even by the fundamental law. (Republic v. of question question (The
Tagle, December 2, 1998) necessity courts can
determine
The power of the nation or the sovereign state to whether there
take, or to authorize the taking of private property is genuine
for public use without the owner’s consent, necessity for its
conditioned upon payment of just compensation. exercise, as
(Brgy. Sindalan, San Fernando, Pampanga v. CA, well as the
G.R. No. 150640, March 22, 2007) value of the
property).
Conditions for the exercise of the Power of
Eminent Domain (TUCO) Requisites for a valid taking
1. Taking of private property; 1. The expropriator must enter a private

2. For public Use; property;
3. Just Compensation; and 2. Entry must be for more than a momentary
4. Observance of due process. period;
3. Entry must be under warrant or color of
NOTE: There must be a valid offer to buy the legal authority;
property and refusal of said offer. 4. Property must be devoted to public use or
otherwise informally appropriated or
Power of expropriation as exercised by injuriously affected; and
Congress vs. Power of expropriation as 5. Utilization of property must be in such a
exercised by delegates way as to oust the owner and deprive him
of beneficial enjoyment of the property.
Power of Power of (Republic v. De Castellvi, G.R. No. L-20620,
expropriation expropriation August 15, 1974)
as exercised as exercised
by Congress by delegates Nature of property taken

2019 GOLDEN NOTE S
Bill of Rights
GR: All private property capable of ownership, area into a model housing community, urban land
including services, can be taken. reform and housing. There is a vicarious
advantage to the society. (Filstream International
XPNs: Incorporated v. CA, 284 SCRA 716, January 23,
a. Money; and 1998)
b. Choses in action - personal right not
reduced in possession but recoverable by Q: The Republic, through the Office of the
a suit at law such as right to receive, Solicitor-General, instituted a complaint for
demand or recover debt, demand or expropriation of a piece of land in Taguig,
damages on a cause of action ex contractu alleging that the National Historical Institute
or for a tort or omission of duty. declared said land as a national
historical landmark, because it was the site
NOTE: A chose in action is a property right of the birth of Felix Manalo, the founder of
in something intangible, or which is not in Iglesiani Cristo. The Republic filed an action to
one’s possession but enforceable through expropriate the land. Petitioners argued that
legal or court action e.g. cash, a right of the expropriation was not for a public purpose.
action in tort or breach of contract, an Is this correct?
entitlement to cash refund, checks, money,
salaries, insurance claims. A: YES. Public use should not be restricted to the
traditional uses. It has been held that places
Requisites before an LGU can exercise Eminent invested with unusual historical interest is a
Domain public use for which the power of eminent domain
may be authorized. The purpose in setting up the
1. An ordinance is enacted by the local legislative marker is essentially to recognize the distinctive
council authorizing the local chief executive, contribution of the late Felix Manalo to the culture
in behalf of the LGU, to exercise the power of of the Philippines, rather than to commemorate
eminent domain or pursue expropriation his founding and leadership of the Iglesia ni Cristo.
proceedings over a particular private The practical reality that greater benefit may be
property; derived by members of the Iglesia ni Cristo than by
2. The power of eminent domain is exercised for most others could well be true but such a peculiar
public use, purpose or welfare, or for the advantage still remains to be merely incidental
benefit of the poor and the landless; and secondary in nature. Indeed, that only a few
3. There is payment of just compensation; and would actually benefit from the expropriation of
4. A valid and definite offer has been previously property does not necessarily diminish the
made to the owner of the property sought to essence and character of public use. (Manosca v.
be expropriated, but said offer was not CA, supra.)
accepted. (Municipality of Paranaque v. V.M.
Realty Corp., 292 SCRA 678, July 20, 1998) Just Compensation
Expansive concept of “Public Use” It is the full and fair equivalent of the property
taken from the private owner (owner’s loss) by the
Public use does not necessarily mean “use by the expropriator. It is usually the fair market value
public at large.” Whatever may be beneficially (FMV) of the property and must include
employed for the general welfare satisfies the consequential damages (damages to the other
requirement. Moreover, that only few people interest of the owner attributed to the
benefit from the expropriation does not diminish expropriation) minus consequential benefits
its public-use character because the notion of (increase in the value of other interests attributed
public use now includes the broader notion of to new use of the former property).
indirect public benefit or advantage. (Manosca v.
CA, G.R. 166440, January 29, 1996) NOTE: To be just, the compensation must be paid
on time. (2009 Bar)
Concept of Vicarious Benefit
Fair Market Value
Abandons the traditional concept (number of
actual beneficiaries determines public purpose). The price that may be agreed upon by parties who
Public use now includes the broader notion of are willing but are not compelled to enter into a
indirect public advantage, i.e. conversion of a slum
103
POLITICAL LAW
contract of sale. (City of Manila v. Estrada, G.R. No.
7749, September 9, 1913) Consequential Benefits
Period to determine just compensation If the remainder is as a result of the expropriation

placed in a better location, such as fronting a street
GR: Reckoning point is determined at the date of where it used to be an interior lot, the owner will
the filing of the complaint for eminent domain. enjoy consequential benefits which should be
deducted from the consequential damages. (Cruz,
XPN: Where the filing of the complaint occurs after Constitutional Law, 2007 ed., p. 79)
the actual taking of the property and the owner
would be given undue incremental advantages NOTE: If the consequential benefits exceed the
arising from the use to which the government consequential damages, these items should be
devotes the property expropriated, just disregarded altogether as the basic value of the
compensation is determined as of the date of the property should be paid in every case. (Rule 67,
taking. (NPC v. CA, G.R. No. 113194, March 11, 1996) Section 6, Rules of Court)
Consequential Damages Form of payment
Consist of injuries directly caused on the residue GR: Compensation has to be paid in money.
of the private property taken by reason of
expropriation. (Cruz and Cruz, Constitutional Law, XPN: In cases involving CARP, compensation may
2015 Ed.) be in bonds or stocks, for it has been held as a non-
traditional exercise of the power of eminent
Q: Spouses Salvador owns a land where a one- domain. It is not an ordinary expropriation where
storey building is erected. The said land is only a specific property of relatively limited area is
subject to expropriation wherein the DPWH sought to be taken by the State from its owner for
shall construct the NLEX extension exiting a specific and perhaps local purpose. It is rather a
McArthur Highway. DPWH paid the spouses revolutionary kind of expropriation. (Association
amounting to P685,000 which was the fair of Small Landowners in the Philippines, Inc. v.
market value of the land and building. RTC Secretary of Agrarian Reform, G.R. No. 78742, July
issued a Writ of Possession in favor of the 14,1989)
Republic but decided to pay an additional
amount corresponding to the capital gains tax NOTE: The owner is entitled to the payment of
paid by the spouses. The Republic, represented interest from the time of taking until just
by DPWH contested the decision of the RTC compensation is actually paid to him. Taxes paid
adding the capital gains tax as consequential by him from the time of the taking until the
damages on the part of the Spouse Salvador. Is transfer of title (which can only be done after
the decision of the RTC correct? actual payment of just compensation), during
which he did not enjoy any beneficial use of the
A:NO. Just compensation is defined as the full and property, are reimbursable by the expropriator.
fair equivalent of the property sought to be Pursuant to Bangko Sentral ng Pilipinas Circular
expropriated. The measure is not the taker’s gain No. 799, series of 2013, from July 1, 2013 onwards
but the owner’s loss. The compensation, to be just, and until full payment, an interest rate of 6% per
must be fair not only to the owner but also to the annum should be used in computing the just
taker. Consequential damages are only awarded compensation. (Land Bank of the Philippines v.
if as a result of the expropriation, the remaining Hababag, G.R. No. 172352, September 16, 2015)
property of the owner suffers from an impairment
or decrease in value. In this case, no evidence was NOTE: The right to recover just compensation is
submitted to prove any impairment or decrease in enshrined in no less than our Bill of Rights, which
value of the subject property as a result of the states in clear and categorical language that
expropriation. More significantly, given that the private property shall not be taken for public use
payment of capital gains tax on the transfer· of the without just compensation. This constitutional
subject property has no effect on the increase or mandate cannot be defeated by statutory
decrease in value of the remaining property, it can prescription. (NPC v. Sps. Bernardo, G. R. No.
hardly be considered as consequential damages 189127, April 25, 2012) (2014 Bar)
that may be awarded to respondents. (Republic v.
Sps. Salvador, G.R. No. 205428, June 7, 2017) Determination

2019 GOLDEN NOTE S
Bill of Rights
Role of the Judiciary ATO would abandon the Lahug Airport,
pursuant to an established policy involving
The value of the property must be determined similar cases. Because of this promise, the
either at the time of taking or filing of the landowners did not pursue their
complaint, whichever comes first. (EPZA v. Dulay, appeal. Thereafter, the lot was transferred
G.R. No. 59603, April 29, 1987) and registered in the name of the Government.
The projected improvement and expansion
In cases where a property is not wholly plan of the old Lahug Airport, however, was
expropriated, the consequential damages of the not pursued. From the date of the institution of
remaining property shall be added in the fair the expropriation proceedings up to the
market value, minus the consequential benefits, present, the public purpose of the said
but in no case will the consequential benefits expropriation (expansion of the airport) was
exceed the consequential damages. (Sec. 6, Rule 67, never actually initiated, realized, or
Rules of Court) implemented.
Effect of Delay Thus, the landowners initiated a complaint for

the recovery of possession and reconveyance
GR: Non-payment by the government does not of ownership of the lands based on the
entitle private owners to recover possession of the compromised agreement they entered into
property because expropriation is an in rem with the ATO. Do the former owners have the
proceeding, not an ordinary sale, but only entitle right to redeem the property?
them to demand payment of the fair market value
of the property. A: YES. It is well settled that the taking of private
property by the Government’s power of eminent
XPNs: domain is subject to two mandatory
1. When there is deliberate refusal to pay just requirements: (1) that it is for a particular public
compensation; and purpose; and (2) that just compensation be paid to
2. Government’s failure to pay compensation the property owner. These requirements partake
within 5 years from the finality of the of the nature of implied conditions that should be
judgment in the expropriation proceedings. complied with to enable the condemn or to keep
This is in connection with the principle that the property expropriated.
the government cannot keep the property and
dishonor the judgment. (Republic v. Lim, G.R. More particularly, with respect to the element of
No. 161656, June 29, 2005) public use, the expropriator should commit to use
the property pursuant to the purpose stated in the
Abandonment of intended use and right of petition for expropriation filed, failing which, it
repurchase should file another petition for the new
purpose. If not, it is then incumbent upon the
Q: Several parcels of lands located in Lahug, expropriator to return the said property to its
Cebu City were the subject of expropriation private owner, if the latter desires to reacquire the
proceedings filed by the Government for the same. Otherwise, the judgment of expropriation
expansion and improvement of the Lahug suffers an intrinsic flaw, as it would lack one
Airport. The RTC rendered judgment in favor indispensable element for the proper exercise of
of the Government and ordered the latter to the power of eminent domain, namely, the
pay the landowners the fair market value of particular public purpose for which the property
the land. The landowners received the will be devoted. Accordingly, the private property
payment. owner would be denied due process of law, and
the judgment would violate the property owner’s
The other dissatisfied landowners appealed. right to justice, fairness, and equity. (MIAA and Air
Pending appeal, the Air Transportation Office Transportation Office v. Lozada, G.R. No. 176625,
(ATO), proposed a compromise settlement February 25, 2010)
whereby the owners of the lots affected by the
expropriation proceedings would either not NOTE: To continue with the expropriation
appeal or withdraw their respective appeals in proceedings despite the definite cessation of the
consideration of a commitment that the public purpose of the project would result in the
expropriated lots would be resold at the price rendition of an invalid judgment in favor of the
they were expropriated in the event that the expropriator due to the absence of the essential
105
POLITICAL LAW
element of public use. (Republic v. Heirs of Borbon, 1. Public purpose;
G.R. No. 165354, January 12, 2015) 2. Non-delegability of power;
3. Territoriality or situs of taxation;
TAXATION 4. Exemption of government from taxation;
and
It is the process by which the government, through 5. International comity.
its legislative branch, imposes and collects
revenues to defray the necessary expenses of the B. Constitutional limitations
government, and to be able to carry out, in 1. Due process of law (Art. III, Sec.1);
particular, any and all projects that are supposed 2. Equal protection clause (Art. III, Sec.1);
to be for the common good. Simply put, taxation is 3. Uniformity, equitability and progressive
the method by which these contributions are system of taxation (Art. VI, Sec 28);
exacted. 4. Non-impairment of contracts (Art. III, Sec.
10);
The power to tax includes the power to destroy 5. Non-imprisonment for non-payment of
only if it is used as a valid implement of the police poll tax (Art. III, Sec. 20);
power in discouraging and in effect, ultimately 6. Revenue and tariff bills must originate in
prohibiting certain things or enterprises inimical the House of Representatives (Art IV, Sec.
to public welfare. But where the power to tax is 24);
used solely for the purpose of raising revenues, the 7. Non-infringement of religious freedom
modern view is that it cannot be allowed to (Art. III, Sec.4);
confiscate or destroy. If this is sought to be done, 8. Delegation of legislative authority to the
the tax may be successfully attacked as an President to fix tariff rates, import and
inordinate and unconstitutional exercise of the export quotas, tonnage and wharfage
discretion that is usually vested exclusively in the dues;
legislature in ascertaining the amount of tax. 9. Tax exemption of properties actually,
(Roxas v. CTA, G.R. No. L-25043, April 26, 1968) directly and exclusively used for religious,
charitable and educational purposes
Taxes (NIRC, Sec 30);
10. Majority vote of all the members of
Enforced proportional contributions from persons Congress required in case of legislative
and property levied by the State by virtue of its grant of tax exemptions;
sovereignty for the support of the government and 11. Non-impairment of SC’s jurisdiction in tax
for public needs. cases;
12. Tax exemption of revenues and assets of,
NOTE: Payment of taxes is an obligation based on including grants, endowments, donations
law, and not on contract. It is a duty imposed upon or contributions to educational
the individual by the mere fact of his membership institutions. (Art. VI of the 1987
in the body politic and his enjoyment of the Constitution, Sec. 28 [3])
benefits available from such membership. Except
only in the case of poll (community) taxes, non- Notice and hearing in the enactment of tax laws
payment of a tax may be the subject of criminal
prosecution and punishment. The accused cannot From the procedural viewpoint, due process does
invoke the prohibition against imprisonment for not require previous notice and hearing before a
debt, as taxes are not considered debts. law prescribing fixed or specific taxes on certain
articles may be enacted. But where the tax to be
Scope of legislative discretion in the exercise of collected is to be based on the value of taxable
taxation property, the taxpayer is entitled to be notified of
the assessment proceedings and to be heard
1. Whether to impose tax in the first place therein on the correct valuation to be given the
2. Whom or what to tax; property.
3. For what public purpose; and
4. Amount or rate of the tax. Uniformity in taxation
General Limitations on the power of taxation It refers to geographical uniformity, meaning it

operates with the same force and effect in every
A. Inherent limitations place where the subject of it is found.

2019 GOLDEN NOTE S
Bill of Rights
3. For the same taxing Periods;
GR: The power to tax operates with the same force 4. On the same Subject matter;
and effect in every place where the subject of it is 5. Within the same taxing Jurisdiction; and
found. This is known as geographical uniformity. 6. Of the same Kind or character. (Swedish
Match Philippines v. Treasurer of the City
XPN: The rule on uniformity does not prohibit of Manila, G.R. No. 181277, July 3, 2013)
classification for purposes of taxation, provided
the requisites for valid classification are met. Tax exemptions may either be
(Ormoc Sugar v. Treasurer of Ormoc, February 15,
2013) 1. Constitutional; or
Progressive system of taxation NOTE: Requisites for Constitutional

exemption: Actual, Direct and Exclusive Use
It posits that the tax rate increases as the tax base by the following:
increases. a. Educational;
b. charitable institutions; and
Double taxation c. Religious organizations. [Sec.
28(3), Art. VI, 1987 Constitution]
It means taxing the same property twice when it 2. Statutory.
should be taxed only once; that is, “taxing the same
person twice by the same jurisdiction for the same NOTE: It has to be passed by majority of all
thing.” It is obnoxious when the taxpayer is taxed the members of the Congress. [Art. VI, 1987
twice, when it should be but once. Otherwise Constitution, Sec. 28(4)]
described as “direct duplicate taxation,” the two
taxes must be imposed on the same subject matter, Revocability of tax exemptions
for the same purpose, by the same taxing
authority, within the same jurisdiction, during the 1. Exemption is granted gratuitously –
same taxing period; and the taxes must be of the revocable; and
same kind or character. (City of Manila v. Coca-Cola 2. Exemption is granted for valuable
Bottlers Philippines, G.R. No. 181845, August 4, consideration (non-impairment of
2009) contracts) – irrevocable.
Tax treaties Construction of tax laws
In negotiating tax treaties, the underlying In case of doubt, tax statutes are to be construed
rationale for reducing the tax rate is that the strictly against the Government and liberally in
Philippines will give up a part of the tax in the favor of the taxpayer, for taxes, being burdens, are
expectation that the tax given up for this particular not to be presumed beyond what the applicable
investment is not taxed by the other country. statute expressly and clearly declares. (CIR v. La
Tondena, Inc. and CTA, 5 SCRA 665,July 31, 1962)
In order to eliminate double taxation, a tax treaty
resorts to several methods. First, it sets out the Construction of laws granting tax exemptions
respective rights to tax of the state of source or
situs and of the state off residence with regard to It must be strictly construed against the taxpayer,
certain classes of income or capital. Second, because the law frowns on exemption from
whenever the state of source is given a full or taxation; hence, an exempting provision should be
limited right to tax together with the state of construed strictissimi juris. (Acting Commissioner
residence, the treaties make it incumbent upon the of Customs v. Manila Electric Company, G.R. No. L-
state of residence to allow relief in order to avoid 23623, June 30, 1977)
double taxation. (Commissioner of Internal
Revenue v. S.C Johnson & Son, Inc, June 25, 1999) Tax vs. License fee
Two tax laws or ordinances constitute Double TAX LICENSE FEE

Taxation when they tax: (PAPS-JK) Levied in exercise Imposed in the exercise of
of the taxing the police power of the
1. For the same Purpose; power. state.
2. By the same taxing Authority;
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POLITICAL LAW
The purpose of License fees are imposed
the tax is to for regulatory purposes The Bill of Rights cannot be invoked against
generate which means that it must private individuals. In the absence of
revenues. only be of sufficient governmental interference, the liberties
amount to include guaranteed by the Constitution cannot be invoked.
expenses in issuing a The equal protection erects no shield against
license, cost of necessary private conduct, however discriminatory or
inspection or police wrongful. (Yrasegui v. PAL, G.R. No. 168081,
surveillance, etc. October 17, 2008)
Its primary Regulation is the primary
purpose is to purpose. The fact that NOTE: However, where the husband invoked his
generate revenue, incidental revenue is also right to privacy of communication and
and regulation is obtained does not make correspondence against a private individual, his
merely incidental. the imposition a tax. wife, who had forcibly taken from his cabinet
documents and private correspondence, and
NOTE: Ordinarily, license fees are in the nature of presented as evidence against him, the Supreme
the exercise of police power because they are in Court held these papers are inadmissible in
the form of regulation by the State and considered evidence, upholding the husband’s right to
as a manner of paying off administration costs. privacy. (Zulueta v. CA, G.R. No. 107383, February
However, if the license fee is higher than the cost 20, 1996)
of regulating, then it becomes a form of taxation.
(Ermita-Malate Hotel v. City Mayor of Manila, G.R. RIGHTS TO LIFE, LIBERTY, AND PROPERTY
No. L-24693, October 23, 1967)
Meaning of Life
Q: Can taxes be subject to off-setting or
compensation? The right to life is not merely a right to the
preservation of life but also to the security of the
A: NO. Taxes cannot be subject to compensation limbs and organs of the human body against any
for the simple reason that the government and the unlawful harm. This constitutional guarantee
taxpayer are not creditors and debtors of each includes the right of an individual to pursue a
other. There is a material distinction between a tax lawful calling or occupation; to express, write or
and debt. Debts are due to the Government in its even paint his ideas for as long as he does not
corporate capacity, while taxes are due to the unlawfully transgress the rights of others; to
Government in its sovereign capacity. It must be exercise his freedom of choice, whether this is in
noted that a distinguishing feature of tax is that it the area of politics, religion, marriage, philosophy
is compulsory rather than a matter of bargain. and employment, or even in the planning of his
Hence, a tax does not depend upon the consent of family; and in general, to do and perform any
the taxpayer. (Philex Mining Corp. v. CIR, 294 SCRA lawful act or activity which, in his judgment, will
687, August 28, 1998) make his life worth living. (Suarez, 2016)
PRIVATE ACTS AND THE BILL OF RIGHTS Meaning of Liberty
Bill of Rights It is not only the right of a citizen to be free from

the mere physical restraint of his person, as by
Set of prescriptions setting forth the fundamental incarceration, but the term is deemed to embrace
civil and political rights of the individual, and the right of the citizen to be free in the engagement
imposing limitations on the powers of government of all his faculties; to be free to use them in all
as a means of securing the enjoyment of those lawful ways. (Allegeyer vs. Louisianna, 165 U.S. 578,
rights. January 6, 1897)
The Bill of Rights governs the relationship Meaning of Property

between the individual and the State. Its concern
is not the relation between private individuals. It refers to things which are susceptible of
What it does is to declare some forbidden zones in appropriation and which are already possessed
the private sphere inaccessible to any power and found in the possession of man. (Suarez, 2016)
holder. (People v. Marti, G.R. No. 81561, January 18,
1991)

2019 GOLDEN NOTE S
Bill of Rights
Due process clause (1992, 1999, 2007, 2009 the
Bar) government.
1. The interests 1. Impartial
No person shall be deprived of life, liberty, or of the public in court or
property without due process of law, nor shall any general, as tribunal
person be denied the equal protection of the laws. distinguished clothed
(1987 Constitution, Art. III, Sec. 1) from those of a with
particular judicial
Due process means: class, require power to
the hear and
1. There shall be a law prescribed in intervention of determine
harmony with the general powers of the the state. the matters
legislature; 2. The means before it.
2. It shall be reasonable in its operation; employed are 2. Jurisdiction
3. It shall be enforced according to the reasonably properly
regular methods of procedure prescribed; necessary for acquired
and the over the
4. It shall be applicable alike to all citizens of accomplishme person of
the State or to all of a class. (People v. nt of the the
Requisite
Cayat, G.R. No. L-45987, May 5, 1939) purpose and defendant
s
not unduly and over
Purpose oppressive property
upon which is
The due process clause is a guaranty against any individuals. the subject
kind of abuse and arbitrariness, by anyone in any matter of
of the branches of government. More specifically, the
the purpose of the due process clause is to: proceeding.
1. Prevent undue encroachment against the life, 3. Opportunit
liberty and property of individuals. y to be
2. Secure the individual from the arbitrary heard.
exercise of powers of government, unrestrained 4. Judgment
by the established principles of private rights and rendered
distributive justice. upon lawful
3. Protect property from confiscation by legislative hearing and
enactments from seizure, forfeiture, and based on
destruction without a trial and conviction by the evidence
ordinary modes of judicial procedures. (Suarez, adduced.
2016)
Kinds of due process Substantive due process
1. Procedural Due Process; and It requires the intrinsic validity of the law in
2. Substantive Due Process. interfering with the rights of the person to his life,
liberty, or property. If a law is invoked to take
PROCEDURAL AND SUBSTANTIVE DUE away one’s life, liberty or property, the more
PROCESS specific concern of substantive due process is not
to find out whether said law is being enforced in
SUBSTANTIVE PROCEDURA accordance with procedural formalities but
DUE PROCESS L DUE whether the said law is a proper exercise of
PROCESS legislative power.
This serves as a Serves as a
restriction on the restriction on NOTE: Publication of laws is part of substantive
government’s actions of due process. It is a rule of law that before a person
Purpose may be bound by law, he must be officially and
law and rule- judicial and
making powers. quasi-judicial specifically informed of its contents. For the
agencies of publication requirement, “laws” refer to all
statutes, including those of local application and
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POLITICAL LAW
private laws. This does not cover internal 2. Opportunity to be heard; and
regulations issued by administrative agencies, 3. Court/tribunal must have jurisdiction.
which are governed by the Local Government
Code. Publication must be full, or there is none at Due process in extradition proceedings
all. (Tañada vs. Tuvera, G.R. No. L-63915, December
29, 1986) (See Extradition section under Public International
Law for discussion)
Q: The City of Manila enacted Ordinance 7783,
which prohibited the establishment or Q: A complaint was filed against respondent
operation of business “providing certain forms Camille Gonzales, then Chief Librarian, Catalog
of amusement, entertainment, services and Division, of the National Library for
facilities where women are used as tools in dishonesty, grave misconduct and conduct
entertainment and which tend to disturb the prejudicial to the best interest of the service.
community, among the inhabitants and The DECS investigating committee was created
adversely affect the social and moral welfare of to inquire into the charges against Gonzales. Is
community.” Owners and operators concerned she entitled to be informed of the findings and
were given three months to wind up their recommendations of the investigating
operations or to transfer to any place outside committee?
the Ermita-Malate area, or convert said
business to other kinds of business which are A: NO. It must be stressed that the disputed
allowed. Does the ordinance violate the due investigation report is an internal communication
process clause? between the DECS Secretary and the Investigation
Committee, and it is not generally intended for the
A: YES. These lawful establishments may only be perusal of respondent or any other person for that
regulated. They cannot be prohibited from matter, except the DECS Secretary. She is entitled
carrying on their business. This is a sweeping only to the administrative decision based on
exercise of police power, which amounts to substantial evidence made of record, and a
interference into personal and private rights reasonable opportunity to meet the charges and
which the court will not countenance. There is a the evidence presented against her during the
clear invasion of personal or property rights, hearings of the investigation committee. (Pefianco
personal in the case of those individuals desiring v. Moral, GR. No. 132248, January 19, 2000)
of owning, operating and patronizing those motels
and property in terms of investments made and Q: Cadet 1CL Cudia was a member of Siklab
the salaries to be paid to those who are employed Diwa Class of 2014 of the PMA. Prof. Berong
therein. If the City of Manila desired to put an end issued a Delinquency Report (DR) against
to prostitution, fornication, and other social ills, it Cadet 1CL Cudia because he was late for two
can instead impose reasonable regulations such as minutes in his class. Cudia reasoned out that: “I
daily inspections of the establishments for any came directly from OR432 Class. We were
violation of the conditions of their licenses or dismissed a bit late by our instructor Sir.”
permits, it may exercise its authority to suspend or
revoke their licenses for these violations; and it The Company Tactical Officer (CTO) of Cadet
may even impose increased license fees. (City of 1CL Cudia penalized him with demerits. Cudia
Manila v. Laguio, Jr., GR. No. 118127, April 12, addressed his Request for Reconsideration to
2005) his Senior Tactical Officer (STO), but the STO
sustained the penalty. The CTO reported him
Procedural due process to the PMA Honors Committee (HC) for
violation of the Honor Code. When the
Is the aspect of due process which serves as a members of the HC casted their votes through
restriction on actions of judicial and quasi-judicial secret balloting, the result was 8-1 in favor of a
agencies of the government. It refers to the guilty verdict. After further deliberation, the
method and manner by which a law is enforced. Presiding Officer announced the 9-0 guilty
verdict. Cudia contested the dismissal as being
The fundamental elements of procedural due violative of his right to due process.
process
Was the dismissal of Cudia a denial of his right
1. Notice (to be meaningful, must be as to to due process?
time and place);

2019 GOLDEN NOTE S
Bill of Rights
A: NO. Due process in disciplinary cases involving the constitutional guarantee that no man shall be
students does not entail proceedings and hearings deprived of life, liberty, or property without due
similar to those prescribed for actions and process is unqualified by the type of proceedings
proceedings in courts of justice; that the (whether judicial or administrative) where he
proceedings may be summary; that cross- stands to lose the same. (Garcia v. Molina and
examination is not an essential part of the Velasco, G.R. Nos. 157383 and 174137, August 10,
investigation or hearing; and that the required 2010)
proof in a student disciplinary action, which is an
administrative case, is neither proof beyond Q: In a dispute involving mining claims, Apo
reasonable doubt nor preponderance of evidence Cement Corporation wished to take over
but only substantial evidence or “such relevant mining claims of certain areas that overlapped
evidence as a reasonable mind might accept as with the portions of the claims of Mingson
adequate to support a conclusion.” Mining Industries Corporation. The case was
What is crucial is that official action must meet eventually brought to the Panel of Arbitrators
minimum standards of fairness to the individual, (POA) and they uphold a resolution in favor of
which generally encompass the right of adequate Apo Cement without requiring the parties to
notice and a meaningful opportunity to be heard. file pleadings. Mingson brought the case to the
DENR Mining Arbitration Board (MAB) stating
It is not required that procedural due process be that due process was not accorded to the party.
afforded at every stage of developing disciplinary When the case was brought to the CA, it
action. What is required is that an adequate affirmed the MAB’s decision. Is the CA correct
hearing be held before the final act of dismissal. in upholding MAB’s decision finding that
(Cudia v. Superintendent of the PMA, G.R. No. Mingson was not afforded its right to due
211362, February 24, 2015) process?
Constitutional vs. Statutory Due Process A: YES. The Implementing Rules of the Philippine
Mining Act of 1995 clearly require that the parties
CONSTITUTIONAL STATUTORY DUE involved in a mining dispute be given the
DUE PROCESS PROCESS opportunity to be heard. In this case, it has been
Protects the While found in the established that the POA proceeded to resolve the
individual from the Labor Code and present mining dispute without affording either
government and Implementing Rules, it party any fair and reasonable opportunity to be
assures him of his protects employees heard, in violation of some of the provisions of
rights in criminal, from being unjustly DENR. Hence, Mingson’s due process rights were
civil or terminated without violated, thereby rendering the POA’s Decision
administrative just cause after notice null and void. (Apo Cement vs. Mingson Mining,
proceedings. and hearing. GR No. 206728, November 12, 2014; J. PERLAS-
(Agabon v. NLRC, G.R. No. 158693, November 17, BERNABE)
2004)
Effect of Waiver or Estoppel
NOTE: The Bill of rights is not meant to be invoked
against acts of private individuals like employers. Due process is satisfied when the parties are
Private actions, no matter how egregious, cannot afforded a fair and reasonable opportunity to
violate constitutional due process. explain their respective sides of the
controversy. Thus, when the party seeking due
Effect when due process is not observed process was in fact given several opportunities to
be heard and air his side, but it is by his own fault
The cardinal precept is that where there is a or choice he squanders these chances, then his cry
violation of basic constitutional rights, courts are for due process must fail.
ousted from their jurisdiction. The violation of a
party's right to due process raises a serious Q: A Formal Charge was issued against DPWH
jurisdictional issue which cannot be glossed over Officials and BAC Members for awarding the
or disregarded at will. Where the denial of the subject project to a unregistered contractor
fundamental right to due process is apparent, a which was not in the list of DPWH Notarial
decision rendered in disregard of that right is void Registry of Civil Works Contractors who could
for lack of jurisdiction. This rule is equally true in bid. DPWH Officials and BAC Members were
quasi-judicial and administrative proceedings, for asked to answer the issuance but denied
111
POLITICAL LAW
answering and argued it was not their duty to
know if a contractor is registered. Since they Whether in civil or criminal judicial proceedings,
were not made to comment prior to, or during due process requires that there be:
the preliminary of fact-finding investigation,
they argued that it violated their right to 1. An impartial and disinterested court clothed
administrative due process. Is there a violation by law with authority to hear and determine
against their right to administrative due the matter before it;
process?
NOTE: The test of impartiality is whether the
A: NO. They expressly waived their rights to a judge’s intervention tends to prevent the
formal hearing when they denied answering the proper presentation of the case or the
issuance given to them. In administrative ascertainment of the truth.
proceedings, where opportunity to be heard,
either through oral arguments or pleadings, is 2. Jurisdiction lawfully acquired over the
accorded, there is no denial of procedural due defendant or the property which is the subject
process. (Ebdane vs. Apurillo , G.R. No. 204172, matter of the proceeding;
December 09, 2015, PER, J. PERLAS-BERNABE) 3. Notice and opportunity to be heard be given to
the defendant; and
Relativity of due process 4. Judgment to be rendered after lawful hearing,
clearly explained as to the factual and legal
Relativity of due process arises when the bases. (Art. VII, 1987 Constitution, Sec. 14)
definition of due process has been left to the best
judgment of our judiciary considering the Requisites of due process in administrative
peculiarity and the circumstances of each case. In proceedings
a litany of cases that have been decided in this
jurisdiction, the common requirement to be able (See discussion under Administrative Law,
to conform to due process is fair play, respect for Administrative Due Process)
justice and respect for the better rights of others.
In accordance with the standards of due process, Administrative vs. Judicial due process
any court at any particular time, will be well
guided, instead of being merely confined strictly to BASIS ADMINISTRATIVE JUDICIAL
a precise definition which may or may not apply in Opportunity to A day in
every case. Essence
explain one’s side court
Usually through Submission
Not all situations calling for procedural safeguards seeking a of pleadings
call for the same kind of procedure. This requires reconsideration of and oral
a reasonable degree of flexibility in applying Means the ruling or the arguments
procedural due process. action taken, or
appeal to a
A determination of the precise nature of the superior authority
government function involved as well as of the Required when the Both are
private interest that has been affected by administrative essential:
governmental action must be considered in body is exercising 1. Notice
determining the application of the rules of Notice quasi-judicial 2. Hearing
procedure. (Cafeteria & Restaurant Workers Union and function. (PhilCom-
v. McElroy, 367 U.S. 886, June 19, 1961) Hearing Sat v. Alcuaz, G.R.
No. 84818,
To say that the concept of due process is flexible December 18,
does not mean that judges are at large to apply it 1989)
to any and all relationships. Its flexibility is in its
scope once it has been determined that some NOTE: See further discussion of Administrative Due
process is due; it is a recognition that not all Process under Administrative Law.
situations calling for procedural safeguards for the
same kind of procedure. (Morrisey v. Brewer, 408 Due process in academic and disciplinary
U.S. 471, June 29, 1972) proceedings
Due process in judicial proceedings

2019 GOLDEN NOTE S
Bill of Rights
Parties are bound by the rules governing academic without due process of law as required by the Bill
requirements and standards of behavior of Rights of the Constitution. (Domingo v. Scheer,
prescribed by the educational institutions. Resort G.R. No. 154745, January 29, 2004)
to courts is available to parties. (Vivares and
Suzara v. St. Theresa’s College, G.R. No. 202666, Instances when hearings are not necessary
September 29, 2014)
1. When administrative agencies are
Due process in deportation proceedings exercising their quasi-legislative
functions;
Although a deportation proceeding does not 2. Abatement of nuisance per se;
partake of the nature of a criminal action, 3. Granting by courts of provisional
however, considering that it is a harsh and remedies;
extraordinary administrative proceeding affecting 4. Cases of preventive suspension;
the freedom and liberty of a person, the 5. Removal of temporary employees in the
constitutional right of such person to due process government service;
should not be denied. Thus, the provisions of the 6. Issuance of warrants of distraint and/or
Rules of Court of the Philippines particularly on levy by the BIR Commissioner;
criminal procedure are applicable to deportation 7. Cancellation of the passport of a person
proceedings. (Lao Gi v. CA, GR. No. 81789, December charged with a crime; and
29, 1989) 8. Suspension of a bank’s operations by the
Monetary Board upon a prima facie
Q: Scheer, a German, was granted permanent finding of liquidity problems in such bank.
resident status in the country. In a letter, Vice
Consul Hippelein informed the Philippine Q: Ordinance 6537 of the City of Manila makes
Ambassador to Germany that the respondent it unlawful for non- Filipino citizens to be
had police records and financial liabilities in employed or to be engaged in any kind of trade,
Germany. The Board of Commissioners (BOC) business or occupation within the City of
thereafter issued a Summary Deportation Manila, without securing an employment
Order. It relied on the correspondence from permit from the Mayor of Manila. Is the
the German Vice Consul on its speculation that ordinance unconstitutional?
it was unlikely that the German Embassy will
issue a new passport to the respondent; on the A: YES. The ordinance is unconstitutional. While
warrant of arrest issued by the District Court it is true that the Philippines as a State is not
of Germany against the respondent for obliged to admit aliens within its territory, once an
insurance fraud; and on the alleged illegal alien is admitted, he cannot be deprived of life
activities of the respondent in Palawan. The without due process of law. This guarantee
BOC concluded that the respondent was not includes the means of livelihood. The ordinance
only an undocumented but an undesirable amounts to a denial of the basic right of the people
alien as well. Is the Summary Deportation of the Philippines to engage in the means of
Order is valid? livelihood. (Mayor Villegas v. Hiu Ching Tsai Pao
Hao, G.R. No. L-29646, November 10, 1978)
A: NO. Section 37(c) of Commonwealth Act No.
613, as amended, provides that no alien shall be VOID-FOR-VAGUENESS DOCTRINE
deported without being informed of the specific
grounds for deportation or without being given a A law is vague when it lacks comprehensive
hearing under rules of procedure to be prescribed standards that men of common intelligence must
by the Commissioner of Immigration. Under necessarily guess at its common meaning and
paragraphs 4 and 5 of Office Memorandum Order differ as to its application.
No. 34, an alien cannot be deported unless he is
given a chance to be heard in a full deportation In such instance, the statute is repugnant to the
hearing, with the right to adduce evidence in his Constitution because:
behalf .The respondent was not afforded any
hearing at all. The BOC simply concluded that the 1. It violates due process for failure to
respondent committed insurance fraud and illegal accord persons, especially the parties
activities in Palawan without any evidence. The targeted by it, fair notice of what conduct
respondent was not afforded a chance to refute the to avoid; and
charges. He cannot, thus, be arrested and deported
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POLITICAL LAW
2. It leaves law enforcers an unbridled Specifically, RA 9344, as amended which provides
discretion in carrying out its provisions. the mechanisms for the determination of age.
(People v. de la Piedra, G.R. No. 128777, (SPARK, Et. al. vs. Quezon City, GR No. 225442,
January 24, 2001) August 08, 2017, PER, J. PERLAS-BERNABE)
The Supreme Court held that the doctrine can only HEIRARCHY OF RIGHTS
be invoked against that species of legislation that
is utterly vague on its face, i.e., that which cannot There is a hierarchy of constitutional rights. While
be clarified either by a saving clause or by the Bill of Rights also protects property rights, the
construction. (Estrada v. Sandiganbayan, G.R. No. primacy of human rights over property rights is
148560, November 19, 2001) recognized. Property and property rights can be
lost through prescription; but human rights are
The void-for-vagueness doctrine cannot be used to imprescriptible. In the hierarchy of civil liberties,
impugn the validity of a criminal statute using the rights of free expression and of assembly
“facial challenge” but it may be used to invalidate occupy a preferred position as they are essential
a criminal statute “as applied” to a particular to the preservation and vitality of our civil and
defendant. political institutions. (Philippine Blooming Mills
Employees Organization v. Philippine Blooming
Q: Navotas City, City of Manila, and Quezon City Mills Co., Inc., G.R. No. L-31195, June 5, 1973) (2012
started to strictly implement their respective Bar)
curfew ordinances on minors through police
operations. Petitioners argue that the Curfew The right to property may be subject to a greater
Ordinances are unconstitutional because they degree of regulation but when this right is joined
result in arbitrary and discriminatory by a "liberty" interest, the burden of justification
enforcement as there are no clear provisions on the part of the Government must be
or detailed standards on how law enforcers exceptionally convincing and irrefutable. (Adiong
should apprehend and properly determine the v. COMELEC, G.R. No. 103956, March 31, 1992)
age of the alleged curfew violators, and thus, The constitutional right to the free exercise of
fall under the void for vagueness doctrine. Is one's religion has primacy and preference over
the petitioners’ contention proper? union security measures which are merely
contractual. (Victoriano v. Elizalde Rope Workers’
A: NO. The void for vagueness doctrine is Union, G.R. No. L-25246, September 12, 1974)
premised on due process considerations, which
are absent from this particular claim. Petitioners Judicial standards of review
fail to point out any ambiguous standard in any of
the provisions of the Curfew Ordinances, but 1. Deferential review ( or Rational Basis Test) –
rather, lament the lack of detail on how the age of Laws are upheld if they rationally further a
a suspected minor would be determined. The legitimate governmental interest, without
mechanisms related to the implementation of the courts seriously inquiring into the
Curfew Ordinances are, however, matters of policy substantiality of such interest and examining
that are best left for the political branches of the alternative means by which the objectives
government to resolve. Verily, the objective of could be achieved.
curbing unbridled enforcement is not the sole
consideration in a void for vagueness analysis; This test is applicable for economic, property
rather, petitioners must show that this perceived and commercial legislation. (White Light
danger of unbridled enforcement stems from an Corporation v. City of Manila)
ambiguous provision in the law that allows
enforcement authorities to second-guess if a 2. Intermediate review – The substantiality of the
particular conduct is prohibited or not prohibited. governmental interest is seriously looked into
and the availability of less restrictive
Besides, petitioners are mistaken in claiming that alternatives is considered.
there are no sufficient standards to identify 3. Strict scrutiny – The focus is on the presence
suspected curfew violators. While it is true that the of compelling, rather than substantial
Curfew Ordinances do not explicitly state these governmental interest and on the absence of
parameters, law enforcement agents are still less restrictive means for achieving that
bound to follow the prescribed measures found in interest. (Separate opinion of Justice Mendoza
statutory law when implementing ordinances.

2019 GOLDEN NOTE S
Bill of Rights
in Estrada v. Sandiganbayan, G.R. No. 148965,
February 26, 2002) Rationale for allowing, in exceptional cases,
valid classification based on citizenship
This requires the government to show an
overriding or compelling government interest Aliens do not naturally possess the sympathetic
so great that it justifies the limitation of consideration and regard for customers with
fundamental constitutional rights. As such, the whom they come in daily contact, nor the patriotic
courts make the decision of whether or not the desire to help bolster the nation’s economy, except
purpose of the law makes the classification insofar as it enhances their profit, nor the loyalty
necessary. and allegiance which the national owes to the land.
These limitations on the qualifications of aliens
EQUAL PROTECTION have been shown on many occasions and
instances, especially in times of crisis and
All persons or things similarly situated should be emergency. (Ichong v. Hernandez, G.R. No. L-7995,
treated alike, both as to rights conferred and May 31, 1957)
responsibilities imposed. It guarantees equality,
not identity of rights. It does not forbid REQUISITES FOR VALID CLASSIFICATION
discrimination as to persons and things that are
different. What it forbids are distinctions based on The classification must (S-G-Ex-A)
impermissible criteria unrelated to a proper
legislative purpose, or class or discriminatory 1. Rest on substantial distinctions;
legislation, which discriminates against some and 2. Be germane to the purpose of the law;
favors others when both are similarly situated. 3. Not be limited to existing conditions only; and
Q: EO 1 was issued by President Aquino to 4. Apply equally to all members of the same
investigate reported cases of graft and class. (People v. Cayat, GR. No. L-45987, May 5,
corruption of the Arroyo administration. Is 1939)
such action valid?
Basis for classification
A: NO. It must be borne in mind that the Arroyo
administration is but just a member of a class, that 1. Age;
is, a class of past administrations. It is not a class 2. Gender;
of its own. Not to include past administrations 3. Religion;
similarly situated constitutes arbitrariness which 4. Economic Class;
the equal protection clause cannot sanction. Such 5. Ethnicity;
discriminating differentiation clearly reverberates 6. Race;
to label the commission as a vehicle for 7. Sexual Orientation;
vindictiveness and selective retribution. (Biraogo 8. Residence;
v. Philippine Truth Commission of 2010, G.R. No. 9. Disability; and
192935, December 7, 2010) 10. Date of filing / Effectivity of the law.
Q: Are aliens entitled to the protection of equal Q: Rosalie Garcia filed a case against her
protection clause? husband, Jesus Garcia, for violation of R.A.
9262. The RTC then issued a Temporary
A: GR: It applies to all persons, both citizens and Protection Order. Jesus argues that R.A. 9262
aliens. The Constitution places the civil rights of violates the guarantee of equal protection
aliens on equal footing with those of the citizens. because the remedies against personal
violence that it provides may be invoked only
XPN: Statutes may validly limit exclusively to by the wives or women partners but not by the
citizens the enjoyment of rights or privileges husbands or male partners even if the latter
connected with public domain, the public works, could possibly be victims of violence by their
or the natural resources of the State. women partners. Does R.A. 9262 (VAWC)
violate the equal the protection clause of the
NOTE: The rights and interests of the State in Constitution?
these things are not simply political but also
proprietary in nature and so citizens may lawfully A: NO. R.A. 9262 rests on substantial distinction.
be given preference over aliens in their use or There is an unequal power relationship between
enjoyment. women and men and the fact that women are more
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POLITICAL LAW
likely than men to be victims of violence and the all, the freedom to believe is intrinsic in every
widespread gender bias and prejudice against individual and the protective robe that guarantees
women all make for real differences justifying the its free exercise is not taken off even if one
classification under the law. The classification is acquires employment in the government. (Imbong
germane to the purpose of the law. The distinction v. Ochoa, G.R. No. 204819, April 8, 2014)
between men and women is germane to the
purpose of R.A. 9262, which is to address violence Q: The New Central Bank Act created two
committed against women and children. categories of employees: (1) BangkoSentral ng
Pilipinas officers who are exempt from the
As spelled out in its Declaration of Policy, the State Salary Standardization Law (SSL) and (2) rank-
recognizes the need to protect the family and its and-file employees with salary grade 19 and
members particularly women and children, from below who are not exempt from the SSL.
violence and threats to their personal safety and Subsequent to the enactment of the Act, the
security. Moreover, the application of R.A. 9262 is charters of the Land Bank of the Philippines
not limited to the existing conditions when it was and all other Government Financial
promulgated, but to future conditions as well, for Institutions (GFIs) were amended exempting
as long as the safety and security of women and all their personnel, including the rank-and-file
their children are threatened by violence and employees, from the coverage of the SSL. BSP
abuse. Furthermore, R.A. 9262 applies equally to Employees Association filed a petition to
all women and children who suffer violence and prohibit the BSP from implementing the
abuse. provision of the Act for they were illegally
discriminated against when they were placed
There is likewise no merit to the contention that within the coverage of the SSL. Was there a
R.A. 9262 singles out the husband or father as the violation of the equal protection clause of the
culprit. As defined above, VAWC may likewise be Constitution?
committed "against a woman with whom the
person has or had a sexual or dating relationship." A: YES. In the field of equal protection, the
Clearly, the use of the gender-neutral word guarantee that “no person shall be denied the
"person" who has or had a sexual or dating equal protection of the laws” includes the
relationship with the woman encompasses even prohibition against enacting laws that allow
lesbian relationships. Moreover, while the law invidious discrimination, directly or indirectly. If a
provides that the offender be related or connected law has the effect of denying the equal protection
to the victim by marriage, former marriage, or a of the law, or permits such denial, it is
sexual or dating relationship, it does not preclude unconstitutional. It is against this standard that
the application of the principle of conspiracy the disparate treatment of the BSP rank-and-file
under the Revised Penal Code. (Garcia v. Drilon, from the other Government Financial Institutions
G.R. No. 179267, June 25, 2013, PER, J. PERLAS- (GFI) cannot stand judicial scrutiny. For, as
BERNABE) regards the exemption from the coverage of the
SSL, there exists no substantial distinction so as to
Q: Sec. 5.23 of the Reproductive Health Law- differentiate the BSP rank-and-file from the other
IRR provides that skilled health professional rank-and-file of other GFIs. The challenged
such as provincial, city or municipal health provision of the New Central Bank Act was facially
officers, chiefs of hospital, head nurses, neutral insofar as it did not differentiate between
supervising midwives cannot be considered as the rank-and-file employees of the BSP and the
conscientious objectors. Is this provision rank-and-file employees of other GFIs, and yet its
unconstitutional? effects, when taken in light of the exemption of the
latter employees from the SSL, were
A: YES. This is discriminatory and violative of the discriminatory. (Central Bank Employees
equal protection clause. The conscientious Association, Inc., v. BangkoSentral ng Pilipinas, G.R.
objection clause should be equally protective of No. 148208, December 15, 2004)
the religious belief of public health officers. There
is no perceptible distinction why they should not RATIONAL BASIS, STRICTSCRUTINY, AND
be considered exempt from the mandates of the INTERMEDIATE SCRUTINY TEST
law. The protection accorded to other
conscientious objectors should equally apply to all Tests in determining compliance with the
medical practitioners without distinction whether equal protection clause (2015 Bar)
they belong to the public or private sector. After

2019 GOLDEN NOTE S
Bill of Rights
1. Rational Basis Test – The traditional test, not based on gender
which requires "only that government must or illegitimacy.
not impose differences in treatment except Legislative purpose Legislative purpose
upon some reasonable differentiation fairly must be legitimate. must be compelling.
related to the object of regulation." Simply put, Classification must be Classification must be
it merely demands that the classification in rationally related to necessary and
the statute reasonably relates to the the legislativenarrowly tailored to
legislative purpose. (Concurring Opinion of purpose. achieve the legislative
Justice Leonardo-De Castro in Garcia v. Drilon, purpose.
G.R. No. 179267, June 25, 2013) (Central Bank Employees Association Inc. v. BSP, GR.
No. 148208, December 15, 2004)
2. Strict Scrutiny Test – This refers to the
standard for determining the quality and the 3. Intermediate Scrutiny Test –It requires that
amount of governmental interest brought to the classification (means) must serve an
justify the regulation of fundamental important governmental objective (ends) and
freedoms. Strict scrutiny is used today to test is substantially related to the achievement of
the validity of laws dealing with the regulation such objective. A classification based on sex is
of speech, gender, or race as well as other the best-established example of an
fundamental rights as expansion from its intermediate level of review. (Concurring
earlier applications to equal protection. Opinion of Justice Leonardo-De Castro in Garcia
(White Light Corporation v. City of Manila, G.R. v. Drilon, G.R. No. 179267, June 25, 2013)
No. 122846, January 20, 2009)
SEARCHES AND SEIZURES
It is applied when the challenged statute
either: Right against unreasonable searches and
seizures
a. Classifies on the basis of an inherently
suspect characteristic; or Right of the people to be secure in their persons,
b. Infringes fundamental constitutional houses, papers, and effects against unreasonable
rights; that all legal restrictions which searches and seizures of whatever nature and for
curtail the civil rights of a single racial any purpose shall be inviolable, and no search
group are immediately suspect. That is warrant or warrant of arrest shall issue except
not to say that all such restrictions are upon probable cause to be determined personally
unconstitutional. It is to say that courts by the judge after examination under oath or
must subject them to the most rigid affirmation of the complainant and the witnesses
scrutiny. The presumption of he may produce, and particularly describing the
constitutionality is reversed; that is, such place to be searched and persons or things to be
legislation is assumed to be seized. (1987 Constitution, Art. 3, Sec. 2)
unconstitutional until the government
demonstrates otherwise. (Central Bank Essence of privacy
Employees Association Inc. v. BSP, GR. No.
148208, December 15, 2004) The right to be left alone. In context, the right to
privacy means the right to be free from
Rational Basis Test vs. Strict Scrutiny unwarranted exploitation of one’s person or from
intrusion into ones’ private activities in such a way
RATIONAL BASIS STRICT SCRUTINY as to cause humiliation to a person’s ordinary
TEST sensibilities.
Applies to legislative Applies to legislative
classifications in classifications Search warrant vs. Warrant of arrest
general, such as those affecting fundamental
pertaining to rights or suspect BASIS SEARCH WARRANT
economic or social classes. WARRANT OF ARREST
legislation, which do The judge It is not
not affect As to
must necessary
fundamental rights of authority,
personally that the judge
suspect classes; or is which
examine in should
examines
the form of personally
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POLITICAL LAW
searching examine the
questions complainant General warrants
and and his
answers, in witnesses; Warrants of broad and general characterization or
writing and the judge sweeping descriptions which will authorize police
under oath, would simply officers to undertake a fishing expedition to seize
the personally and confiscate any and all kinds of evidence or
complainant review the articles relating to an offense.
and the initial
witnesses he determinatio Purpose of particularity of description in
may produce n of the search warrants
on facts prosecutor to
personally see if it is 1. Readily identify the properties to be
known to supported by seized and thus prevent the peace officers
them. substantial from seizing the wrong items; and
evidence. 2. Leave peace officers with no discretion
The He merely regarding the articles to be seized and
determinati determines thus prevent unreasonable searches and
on of the seizures. (Bache and Co. v. Ruiz, 37 SCRA
probable probability, 823, February 27, 1971)
cause not the
depends to a certainty of Particularity of description for a search
large extent guilt of the warrant is complied with when:
upon the accused and,
finding or in so doing, 1. The description therein is as specific as
Basis of opinion of he need not the circumstances will ordinarily allow;
determination the judge conduct a or
who new hearing. 2. The description expresses a conclusion of
conducted fact, not of law, by which the warrant
the required officer may be guided in making the
examination search and seizure; or
of the 3. The things described are limited to those
applicant which bear direct relation to the offense
and the for which the warrant is being issued.
witnesses.
Properties subject to seizure
REQUISITES FOR A VALID WARRANT
1. Property subject of the offense;
1. It must be issued upon determination of 2. Stolen or embezzled property and other
probable cause; proceeds or fruits of the offense; or
2. The probable cause must be determined by 3. Property used or intended to be used as
the judge himself and not by the applicant or means for the commission of an offense.
any other person;
3. In the determination of probable cause, the NOTE: Seized items in violation of Art. 201 of the
judge must examine, under oath or RPC, such as immoral doctrines, obscene
affirmation, the complainant and such publications and indecent shows, can be destroyed
witnesses as the latter may produce; and even if the accused was acquitted. P.D. No. 969 (An
4. The warrant issued must particularly describe Act amending Art. 201) mandates the forfeiture
the place to be searched and persons and and destruction of pornographic materials
things to be seized. (HPS Software and involved in the violation of Article 201 of the
Communication Corporation and Yap v. PLDT, Revised Penal Code, even if the accused was
G.R. Nos. 170217 and 170694, December 10, acquitted. (Nogales v. People, G.R. No. 191080,
2012) November 21, 2011)
NOTE: General warrant is not allowed. It must be Nature of search warrant proceedings
issued pursuant to a specific offense. (Stonehill v.
Diokno, G.R. No. L-19550, June 19, 1967)

2019 GOLDEN NOTE S
Bill of Rights
Neither a criminal action nor a commencement of The judge, in determining probable cause, is to
a prosecution. It is solely for the possession of consider the totality of the circumstances made
personal property. (United Laboratories, Inc. v. Isip, known to him and not by a fixed and rigid formula,
G.R. No. 163858, June 28, 2005) and must employ a flexible, totality of the
circumstances standard. Facts discovered during
Probable cause surveillance - on the basis of information and
evidence provided by petitioners - constitute
Probable cause, as a condition for the issuance of a personal knowledge which could form the basis
search warrant, is such reasons supported by facts for the issuance of a search warrant. (Petron LPG
and circumstances as will warrant a cautious man Dealers Association v. Ang, G.R. No. 199371,
to believe that his action and the means taken in February 3, 2016)
prosecuting it are legally just and proper. It
requires facts and circumstances that would lead Personal knowledge
a reasonably prudent man to believe that an
offense has been committed and that the objects 1. The person to be arrested must execute an
sought in connection with that offense are in the overt act indicating that he had just
place to be searched. (HPS Software and committed, is actually committing, or is
Communications Corp. and Yap v. PLDT, G.R. Nos. attempting to commit a crime; and
170217 and 170694, December 10, 2012) 2. Such overt act is done in the presence or
within the view of the arresting officer.
Such facts and circumstances antecedent to the
issuance of a warrant that in themselves are NOTE: Initial hearsay information or tips from
sufficient to induce a cautious man to rely on them confidential informants could very well serve as
and act in pursuance thereof. basis for the issuance of a search warrant, if
followed up personally by the recipient and
The evidence necessary to establish probable validated. Looking at the records, it is clear that
cause is based only on the likelihood, or Padilla and his companions were able to
probability, of guilt. (Estrada v. Office of the personally verify the tip of their informant. The
Ombudsman, et al., G.R. Nos. 212140–41, January evidence on record clearly shows that the
21, 2015, cited in ABS-CBN Corporation v. Gozon, applicant and witnesses were able to verify the
G.R. No. 195956, March 11, 2015) information obtained from their confidential
source. The evidence likewise shows that there
Q: LPG Dealers Association and Total Gaz LPG was probable cause for the issuance of a search
Dealers Association filed a letter- warrant. Thus, the requirement of personal
complaint before the NBI-IRO, requesting knowledge of the applicant and witnesses was
assistance in the surveillance, investigation, clearly satisfied in this case. (Microsoft
apprehension and prosecution of respondents Corporation v. Samir Farajallah, G.R. No. 205800,
for alleged illegal trading of LPG products September 10, 2014)
and/or underfilling, possession and/or sale of
underfilled LPG products. The NBI-IRO - Mere “reliable information” will not satisfy the
through its agent De Jamil and undercover NBI “personal knowledge” requirement
asset Antonio conducted surveillance and test-
buy operations and thereafter they filed two The long-standing rule in this jurisdiction, applied
Applications for Search Warrant to conduct a with a great degree of consistency, is that “reliable
search of the Magsingal LPG refilling plant. Can information” alone is not sufficient to justify a
the personal knowledge of the witnesses of the warrantless arrest under Section 5(a), Rule
commission of the illegal trading and 113. The rule requires, in addition, that the
underfilling of LPG products be a basis for accused perform some overt act that would
determining probable cause in search warrant indicate that he “has committed, is actually
applications? committing, or is attempting to commit an
offense.”
A: YES. A finding of probable cause needs only to
rest on evidence showing that, more likely than In the leading case of People v. Burgos, this Court
not, a crime has been committed and that it was held that “the officer arresting a person who has
committed by the accused. Probable cause just committed, is committing, or is about to
demands more than bare suspicion; it requires commit an offense must have personal
less than evidence which would justify conviction. knowledge of that fact. The offense must also be
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POLITICAL LAW
committed in his presence or within his Julia and Julienne, along with several others,
view.” In Burgos, the authorities obtained took digital pictures of themselves clad only in
information that the accused had forcibly their undergarments. These pictures were
recruited one Cesar Masamlok as member of the then uploaded by Angela on her
New People’s Army, threatening the latter with a Facebook profile.
firearm. Upon finding the accused, the arresting
team searched his house and discovered a gun as Back at the school, Escudero, a computer
well as purportedly subversive documents. teacher at STC’s high school department,
(People v. Tudtud, G.R. No. 144037, September 26, learned from her students that some seniors at
2003) STC posted pictures online, depicting
themselves from the waist up, dressed only in
Searching questions brassieres.Escudero reported the matter and,
through one of her student’s Facebook page,
Examination by the investigating judge of the showed the photos to Tigol, STC’s Discipline-
complainant and the latter’s witnesses in writing in-Charge, for appropriate action. Were
and under oath or affirmation, to determine unlawful means used by STC in gathering
whether there is a reasonable ground to believe information about the photo?
that an offense has been committed and whether
the accused is probably guilty thereof so that a A: NO. Even assuming that the photos in issue are
warrant of arrest may be issued and he may be visible only to the sanctioned students’ Facebook
held liable for trial. friends, respondent STC can hardly be taken to
task for the perceived privacy invasion since it was
A police officer cannot amplify or modify what the minors’ Facebook friends who showed the
has been set out in the warrant pictures to Tigol. Respondents were mere
recipients of what were posted. They did not
Such a change is proscribed by the Constitution resort to any unlawful means of gathering the
which requires a search warrant to particularly information as it was voluntarily given to them by
describe the place to be searched; otherwise it persons who had legitimate access to the said
would open the door to abuse of the search posts. Clearly, the fault, if any, lies with the friends
process, and grant to officers executing the search of the minors. Curiously enough, however, neither
that discretion which the Constitution has the minors nor their parents imputed any
precisely removed from them. violation of privacy against the students who
showed the images to Escudero. (Vivares v. St.
The particularization of the description of the Theresa’s College, G.R. No. 202666, September 29,
place to be searched may properly be done only by 2014)
the judge, and only in the warrant itself; it cannot
be left to the discretion of the police officers Q: PNP constituted a team to implement a
conducting the search. search warrant issued by the Judge to search
Edmund Bulauitan's residence. Before going to
It is neither fair nor licit to allow police officers to the target residence, the search team first went
search a place different from that stated in the to the house of the Barangay Chairman, who in
warrant on the claim that the place actually turn, assigned Kagawad Jerry (Kgd. Jerry) and
searched —although not that specified in the Kagawad Herald (Kgd. Herald) as search
warrant — is exactly what they had in view when witnesses. Upon arriving at Bulauitan's
they applied for the warrant and had demarcated residence, the search team was met by
in their supporting evidence. What is material in Bulauitan's two (2) children and housekeeper,
determining the validity of a search is the place who informed them that Bulauitan was not
stated in the warrant itself, not what applicants home. This notwithstanding, the search team
had in their thoughts, or had represented in the explained to the children and housekeeper the
proofs they submitted to the court issuing the reason for their presence, prompting the latter
warrant. (People v. CA, 291 SCRA 400, June 26, to allow them inside the house and conduct the
1998) search. SPO2 Baccay then proceeded to
Bulauitan's room and there, discovered three
Q: Nenita and Julienne were graduating high (3) heat-sealed plastic sachets containing
school students at St. Theresa’s College (STC), white crystalline substance which was later on
Cebu City. While changing into their swimsuits confirmed as shabu.
for a beach party they were about to attend,

2019 GOLDEN NOTE S
Bill of Rights
Based on the testimonies, it was discovered and photography were done before any
that: (a) Bulauitan was not in his residence representative from the DOJ and the media. Hence,
when the search was conducted; (b) his the Court is impelled to conclude that the integrity
daughter, Maria, was not able to witness SPO2 and evidentiary value of the items purportedly
Baccay's search of Bulauitan's room as PO3 seized from Feriol – which constitute the corpus
Tagal kept her in the living room and even delicti of the crimes charged – have been
instructed her to leave the house to contact her compromised. (People of The Philippines vs.
parents; and (c) Kgd. Jerry and Kgd. Herald Benjamin Feriol Y Perez, G. R. No. 232154,
neither witnessed the search as they remained August 20, 2018; People of The Philippines vs.
outside Bulauitan's residence. The RTC finds Christopher Baptista Y Villa, G. R. No. 225783,
Balauitan guilty and was affirmed by the CA. August 20, 2018; People of The Philippines vs.
Should the SC uphold the decision? Maricel Patacsil Y Moreno, G. R. No. 234052,
August 6, 2018, PER, J. PERLAS-BERNABE)
A: NO. Section 8, Rule 126 Search of house, room,
or premises to be made in presence of two WARRANTLESS SEARCHES AND SEIZURES
witnesses, provides that a search under the
strength of a warrant is required to be witnessed Instances of a valid warrantless search (2000,
by the lawful occupant of the premises sought to 2009, 2015 Bar)
be searched. It must be stressed that it is only
upon their absence that their presence may be 1. Visual search is made of moving vehicles at
replaced by two (2) persons of sufficient age and checkpoints;
discretion residing in the same locality. 2. Search is an incident to a valid arrest;
In this case, a judicious perusal of the records NOTE: An officer making an arrest may take
reveals that the policemen involved in the search from the person:
of Bulauitan's residence — as shown in their own
testimonies - did not conduct the search in a. Any money or property found upon his
accordance with Section 8, Rule 126 of the Revised person which was used in the commission
Rules of Criminal Procedure. Worse, the search of the offense
team even instructed Maria to contact her b. Was the fruit thereof
father via telephone, which she could only do by c. Which might furnish the prisoner with the
leaving their residence and going to the house of a means of committing violence or escaping
certain Dr. Romeo Bago (Dr. Bago) to use the d. Which might be used as evidence in the
telephone therein. It was only after her return to trial of the case
their residence that SPO2 Baccay announced that
they have allegedly found shabu in Bulauitan's 3. Search of passengers made in airports;
room. The search conducted therein by the search 4. When things seized are within plain view of a
team fell way below the standard mandated by searching party (Plain View Doctrine);
Section 8, Rule 126 of the Revised Rules of 5. Stop and frisk (precedes an arrest);
Criminal Procedure, and thus deemed 6. When there is a valid express waiver made
unreasonable within the purview of the voluntarily and intelligently;
exclusionary rule of the 1987 Constitution.
(Edmund Bulauitan Y Mauayan vs. People of The NOTE: Consent to a search is not to be lightly
Philippines, G.R. No. 218891, September 19, inferred, but shown by clear and convincing
2016, PER, J. PERLAS-BERNABE) evidence. Consent must also be voluntary in
order to validate an otherwise illegal search;
Absence of the required witnesses that is, the consent must be unequivocal,
specific, intelligently given, and
The absence of the required witnesses does not uncontaminated by any duress or coercion.
per se render the confiscated items inadmissible. [Caballes v CA, 373 SCRA 221 (2002)] (2015
However, a justifiable reason for such failure or a Bar)
showing of any genuine and sufficient effort to
secure the required witnesses must therefore be In this case, petitioner was merely "ordered"
adduced. In this case, while the, inventory and the to take out the contents of his pocket. (Alcaraz
photography of the seized items were made in the v. People, G.R. No. 199042, November 17, 2014)
presence of Feriol and an elected public official,
the records do not show that the said inventory 7. Customs search; and
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8. Exigent and emergency circumstances. position from which he can particularly view the
(People v. De Gracia, 233 SCRA 716, July 6, area. In the course of such lawful intrusion, he
1994) came inadvertently across a piece of evidence
incriminating the accused. The object must be
Plain View Doctrine (2012 Bar) open to eye and hand and its discovery
inadvertent.
Under the plain view doctrine, objects falling in the
"plain view" of an officer, who has a right to be in It is clear that an object is in plain view if the object
the position to have that view, are subject to itself is plainly exposed to sight. The difficulty
seizure and may be presented as evidence. It arises when the object is inside a closed
applies when the following requisites concur: (J-I- container. Where the object seized was inside a
A) closed package, the object itself is not in plain view
and therefore cannot be seized without a
1. The law enforcement officer in search of the warrant. However, if the package proclaims its
evidence has a prior justification for an contents, whether by its distinctive configuration,
intrusion or is in a position from which he can its transparency, or if its contents are obvious to
view a particular area; an observer, then the contents are in plain view
2. The discovery of the evidence in plain view is and may be seized. (People v. Doria, G.R. No.
inadvertent; and 125299, January 22, 1999)
3. It is immediately apparent to the officer that
the item he observes may be evidence of a Stop-and-frisk search (2009, 2012 Bar)
crime, contraband, or otherwise subject to
seizure. Limited protective search of outer clothing for
weapons. Probable cause is not required but a
The law enforcement officer must lawfully make genuine reason must exist in light of a police
an initial intrusion or properly be in a position officer’s experience and surrounding conditions to
from which he can particularly view the area. In warrant the belief that the person detained has
the course of such lawful intrusion, he came weapons concealed. (Malacat v. CA, G.R. No.
inadvertently across a piece of evidence 123595, December 12, 1997)
incriminating the accused. The object must be
open to eye and hand, and its discovery Checkpoints
inadvertent. (Fajardo v. People, G.R. No. 190889,
January 10, 2011) Searches conducted in checkpoints are lawful,
provided the checkpoint complies with the
NOTE: Plain View Doctrine cannot be applied following requisites:
where there was no evidence in plain view of law
enforcers serving the search warrant. (United 1. The establishment of checkpoint must be
Laboratories, Inc. v. Isip, G.R. No. 163858, June 28, pronounced;
2005) 2. It must be stationary, not roaming; and
3. The search must be limited to visual
Q: Kwino, a drug pusher was entrapped in a search and must not be an intrusive
buy bust operation. He led the police officers to search.
the house of Carlo Ray, his supposed associate
and his house was searched. A cardboard box NOTE: Not all searches and seizures are
with bricks of marijuana inside was found in prohibited. Between the inherent right of the State
her residence. However, Carlo Ray’s to protect its existence and promote public
warrantless arrest was declared illegal by the welfare and an individual’s right against
court. It follows that the search of his person warrantless search which is however reasonably
and home and the subsequent seizure of the conducted, the former should prevail.
marked bills and marijuana cannot be deemed
legal as an incident to her arrest. Was the A checkpoint is akin to a stop-and-frisk situation
marijuana in the cardboard box in plain view whose object is either to determine the identity of
during the search, making the warrantless suspicious individuals or to maintain the status
seizure valid and acceptable in evidence? quo momentarily while the police officers seek to
obtain more information. (Valmonte v. De Villa, G.R.
A: NO.The law enforcement officer must lawfully No. 83988, September 29, 1989)
make an initial intrusion or properly be in a

2019 GOLDEN NOTE S
Bill of Rights
Motorists and their vehicles passing through A: NO. Persons may lose the protection of the
checkpoints may also be stopped and search and seizure clause by exposure of their
extensively searched persons or property to the public in a manner
reflecting a lack of subjective expectation of
While, as a rule, motorists and their vehicles privacy, which expectation society is prepared to
passing through checkpoints may only be recognize as reasonable. Such recognition is
subjected to a routine inspection, vehicles may be implicit in airport security procedures. With
stopped and extensively searched when there is increased concern over airplane hijacking and
probable cause which justifies a reasonable belief terrorism has come increased security at the
among those at the checkpoints that either the nation’s airport. (People v. Leila Johnson, G.R.
motorist is a law offender or the contents of the No.138881, December 18, 2000)
vehicle are or have been instruments of some
offense. (People v. Vinecario, G.R. No. 141137, Q: Luz was flagged down by PO3 Alteza for
January 20, 2004) driving a motorcycle without a helmet. Alteza
invited Luz to their sub-station and while
Checkpoint rules under LTO Code (R.A. 4136) issuing a citation ticket for violation of
municipal ordinance, Alteza was alerted by the
There is, to stress, nothing in R.A. 4136 that latter’s uneasy movement and asked him to
authorized the checkpoint-manning policemen to put out the contents of the pocket of his jacket.
order petitioner and his companions to get out of It was revealed that Luz was in possession of
the vehicle for a vehicle and body search. And it prohibited drugs. Can the roadside
bears to emphasize that there was no reasonable questioning of a motorist detained pursuant to
suspicion of the occurrence of a crime that would a routine traffic stop be considered a formal
allow what jurisprudence refers to as a "stop and arrest?
frisk" action. As SPO4 Bodino no less testified, the
only reason why they asked petitioner to get out of A: NO. The time he was waiting for Alteza to write
the vehicle was not because he has committed a his citation ticket may be characterized as waiting
crime, but because of their intention to invite him time. Luz could not be said to have been under
to Station 9 so he could rest before he resumes arrest. There was no intention on the part of Alteza
driving. But instead of a tactful invitation, the to arrest him, deprive him of his liberty, or take
apprehending officers, in an act indicative of him into custody. In fact, Alteza himself testified
overstepping of their duties, dragged the that it was only for the sake of convenience that
petitioner out of the vehicle and, in the process of they were waiting at the sub-station. (Luz v. People
subduing him, pointed a gun and punched him on of the Philippines, G.R. No. 197788, February
the face. None of the police officers, to note, 29,2012)
categorically denied the petitioner’s allegation
about being physically hurt before being brought Q: A search was conducted on March 3, 1986.
to the Ospital ng Maynila to be tested for During which the Philippines has no
intoxication. What the policemen claimed was that Constitution. The Constabulary raiding team
it took the three (3) of them to subdue the fifty-five searched the house of Elizabeth Dimaano by
year old petitioner. Both actions were done in virtue of a search warrant and thereafter
excess of their authority granted under R.A. 4136. seized some items not included in the warrant.
(Sydeco v. People, G.R. No. 202692, November 12, Dimaano questioned the search for being
2014) violative of the Constitution. Can she invoke
her right against unreasonable searches and
Q: Star was a lady frisker whose duty is to frisk seizures during the interregnum?
departing passengers, employees, and crew
and check for weapons, bombs, prohibited A: YES. The Bill of Rights under the 1973
drugs, contraband goods, and explosives. Constitution was not operative during the
When she frisked Rochelle, a boarding interregnum. Be that as it may, under Art. 17(1) of
passenger, she felt something hard on the International Covenant on Civil and Political
Rochelle’s abdominal area which was later Rights, the revolutionary government had the duty
found to be three packs of shabu. Can Rochelle to insure that no one shall be subjected to
invoke a violation of the search and seizure arbitrary or unlawful interference with his
clause? privacy, family, home or correspondence. Art.
17(2) provides that no one shall be arbitrarily
deprived of his property. Although the signatories
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POLITICAL LAW
to the Declaration did not intend it as a legally warrantless search, even as regards the plastic
binding document, being only a declaration, the container with dried marijuana leaves found on
Court has interpreted the Declaration as part of the table in his store. (People v. Salazar, G.R. No.
the generally accepted principles of international 98060, January 27, 1997)
law and binding on the state. The revolutionary
government did not repudiate the Covenant or the Q: Sgt. Victorino Noceja and Sgt. Alex de Castro,
Declaration during the interregnum. It was also while on a routine patrol in Pagsanjan, Laguna,
obligated under international law to observe the spotted a passenger jeep unusually covered
rights of individuals under the Declaration. with "kakawati" leaves. Suspecting that the
(Republic v. Sandiganbayan, G.R. No. 104768, July jeep was loaded with smuggled goods, the two
21, 2003) police officers flagged down the vehicle driven
by Rudy. The police officers then checked the
Q: While sleeping in his room, Kel was arrested cargo and they discovered bundles of 3.08 mm
by virtue of a warrant of arrest and he was aluminum/galvanized conductor wires
dragged out of the room. Thereafter, some exclusively owned by National Power
police officers ransacked the locked cabinet Corporation (NPC). Police officers took Rudy
inside the room where they found a firearm into custody and seized the conductor wires.
and ammunition. Are the warrantless search Was Rudy’s right against unreasonable
and seizure of the firearm and ammunition searches and seizures violated when the police
justified as an incident to a lawful arrest? officers searched his vehicle and seized the
wires found therein without a search warrant?
A: NO. The scope of the warrantless search is not
without limitations. A valid arrest allows the A: YES. When a vehicle is stopped and subjected to
seizure of evidence or dangerous weapons either an extensive search, such a warrantless search
on the person of the one arrested or within the would be constitutionally permissible only if the
area of his immediate control. The purpose of the officers conducting the search have reasonable or
exception is to protect the arresting officer from probable cause to believe, before the search, that
being harmed by the person arrested, who might either the motorist is a law-offender or they will
be armed with a concealed weapon, and to prevent find the instrumentality or evidence pertaining to
the latter from destroying evidence within reach. a crime in the vehicle to be searched. However, the
In this case, search was made in the locked cabinet fact that the vehicle looked suspicious simply
which cannot be said to have been within Kel's because it is not common for such to be covered
immediate control. Thus, the search exceeded the with kakawati leaves does not constitute
bounds of what may be considered as an incident "probable cause" as would justify the conduct of a
to a lawful arrest. (Valeroso v. CA, G.R. No. 164815, search without a warrant. Furthermore, the police
September 3, 2009) authorities did not claim to have received any
confidential report or tipped information that
Q: A buy-bust operation was conducted in DM’s Rudy was carrying stolen cable wires in his vehicle
store. Police Officer CA Tandoc posed as a which could otherwise have sustained their
buyer and bought marijuana from DM. After suspicion. It cannot likewise be said that the cable
the exchange of marked money and marijuana, wires found in Rudy's vehicle were in plain view,
Tandoc arrested DM without a warrant. The making its warrantless seizure valid. The cable
other police officer searched the store and wires were not exposed to sight because they were
seized a plastic container containing six placed in sacks and covered with leaves. The
marijuana stocks. Thereafter, DM was charged articles were neither transparent nor immediately
with selling marijuana. Is the warrantless apparent to the police authorities. (Caballes v. CA,
seizure of marijuana legal? G. R. No. 136292, January 15, 2002)
A: YES. The search being an incident to a lawful Q: A police officer flagged down a rider for
arrest, it needed no warrant for its validity. The driving without a helmet. The police officer
accused having been caught in flagrante delicto, invited the rider to come inside their sub-
the arresting officers were duty bound to station located near the area. While issuing a
apprehend her immediately. The warrantless citation ticket for violation of a municipal
search and seizure, as an incident to a lawful ordinance, the police officer noticed that the
arrest, may extend to include the premises under accused was uneasy and kept on reaching
the immediate control of the accused. The accused something from his jacket. He then asked the
may not successfully invoke the right against a rider to take out the contents of his jacket’s

2019 GOLDEN NOTE S
Bill of Rights
pocket. It turned out, the rider has in his failure to wear a helmet while riding a motorcycle
possession two plastic sachets of suspected is penalized by a fine only. Under the Rules of
shabu. The RTC convicted him of illegal Court, a warrant of arrest need not be issued if the
possession of dangerous drugs since he had information or charge was filed for an offense
been lawfully arrested for a traffic violation penalized by a fine only. It may be stated as a
and then subjected to a valid search, which led corollary that neither can a warrantless arrest be
to the discovery on his person of two plastic made for such an offense.
sachets of shabu. On appeal, the CA affirmed There being no valid arrest, the warrantless search
the RTC’s Decision. that resulted from it was likewise illegal. (Rodel
Luz vs. People, G. R. No. 197788, February 29, 2012)
In his appeal to the SC, the rider claims that
there was no lawful search and seizure, Waiver of Unlawful Arrests and Illegal
because there was no lawful arrest since he Searches
was not even issued a citation ticket or charged
with violation of the city ordinance. Even A waiver of an illegal arrest, however, is not a
assuming that there was a valid arrest, he waiver of an illegal search. Records have
claims that he had never consented to the established that both the arrest and the search
search conducted upon him. Should the rider- were made without a warrant. While the accused
appellant’s contention be upheld? has already waived his right to contest the legality
of his arrest, he is not deemed to have equally
A: YES. There was no valid arrest of appellant. waived his right to contest the legality of the
When he was flagged down for committing a traffic search. (Alcaraz v. People, G.R. No. 199042,
violation, he was not, ipso facto and solely for this November 17, 2014)
reason, arrested.
ADMINISTRATIVE ARREST
Arrest is the taking of a person into custody in
order that he or she may be bound to answer for There is an administrative arrest when there is an
the commission of an offense. It is effected by an arrest as an incident to a deportation proceeding.
actual restraint of the person to be arrested or by
that person’s voluntary submission to the custody The following aliens shall be arrested upon the
of the one making the arrest. Neither the warrant of the Commissioner of Immigration or of
application of actual force, manual touching of the any other officer designated by him for the
body, or physical restraint, nor a formal purpose and deported upon the warrant of the
declaration of arrest, is required. It is enough that Commissioner of Immigration after a
there be an intention on the part of one of the determination by the Board of Commissioners of
parties to arrest the other, and that there be an the existence of the ground for deportation as
intent on the part of the other to submit, under the charges against the alien:
belief and impression that submission is
necessary. 1. Any alien who enters the Philippines after
the effective date of this Act by means of
At the time that he was waiting for the police false and misleading statements or
officer to write his citation ticket, appellant could without inspection and admission by the
not be said to have been under arrest. There was immigration authorities at a designated
no intention on the part of the former to arrest port of entry or at any place other than at
him, deprive him of his liberty, or take him into a designated port of entry (As amended by
custody. Prior to the issuance of the ticket, the Republic Act No. 503, Sec. 13);
period during which appellant was at the police 2. Any alien who enters the Philippines after
station may be characterized merely as waiting the effective date of CA 613 (Philippine
time. In fact, as found by the trial court, the only Immigration Act of 1940), who was not
reason they went to the police sub-station was lawfully admissible at the time of entry;
that appellant had been flagged down almost in 3. Any alien who, after the effective date of
front of that place. Hence, it was only for the sake this Act, is convicted in the Philippines
of convenience that they were waiting there. and sentenced for a term of one year or
There was no intention to take him into custody. more for a crime involving moral
turpitude committed within five years
It also appears that, according to City Ordinance after his entry to the Philippines, or who,
No. 98-012, which was violated by appellant, the
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POLITICAL LAW
at any time after such entry, is so Alien Registration Act of 1941) [now
convicted and sentenced more than once; Alien Registration Act of 1950, Republic
4. Any alien who is convicted and sentenced Act No. 562, as amended] or who, at any
for a violation of the law governing time after entry, shall have been
prohibited drugs (As amended by Republic convicted more than once of violating the
Act No. 503, Sec. 13); provisions of the same Act. (Added
5. Any alien who practices prostitution or is pursuant to Republic Act No. 503, Sec. 13);
an inmate of a house of prostitution or is 11. Any alien who engages in profiteering,
connected with the management of a hoarding, or black-marketing,
house of prostitution, or is a procurer; independent of any criminal action which
6. Any alien who becomes a public charge may be brought against him. (Added
within five years after entry from causes pursuant to Republic Act No. 503, Sec. 13);
not affirmatively shown to have arisen 12. Any alien who is convicted of any offense
subsequent to entry; penalized under Commonwealth Act No.
7. Any alien who remains in the Philippines 473 (Revised Naturalization Laws of the
in violation of any limitation or condition Philippines) or any law relating to
under which he was admitted as a non- acquisition of Philippine citizenship.
immigrant; (Added pursuant to Republic Act No. 503,
8. Any alien who believes in, advises, Sec. 13); and
advocates or teaches the overthrow by 13. Any alien who defrauds his creditor by
force and violence of the Government of absconding or alienating properties to
the Philippines, or of constituted law and prevent them from being attached or
authority or who disbelieves in or is executed. (Added pursuant to Republic Act
opposed to organized government, or No. 503, Sec. 13; Philippine Immigration
who advises, advocates or teaches the Act of 1940)
assault or assassination of public officials
because of their office, or who advises, Power of the Commissioner of Immigration
advocates, or teaches the unlawful The Commissioner of Immigration is also given, by
destruction of property, or who is a legislative delegation, the power to issue warrants
member of or affiliated with any of arrests.
organization entertaining, advocating or
teaching such doctrines, or who in any NOTE: Sec. 2, Art. III of the Constitution does not
manner whatsoever lends assistance, require judicial intervention in the execution of a
financial or otherwise, to the final order of deportation issued in accordance
dissemination of such doctrines; with law. The constitutional limitation
9. Any alien who commits any of the acts contemplates an order of arrest in the exercise of
described in Sec. 45 of CA 613, judicial power as a step preliminary or incidental
independent of criminal action which may to prosecution or proceedings for a given offense
be brought against him: Provided, that in or administrative action, not as a measure
the case of alien who, for any reason, is indispensable to carry out a valid decision by a
convicted and sentenced to suffer both competent official, such as a legal order of
imprisonment and deportation, said alien deportation, issued by the Commissioner of
shall first serve the entire period of his Immigration, in pursuance of a valid legislation.
imprisonment before he is actually (Morano v. Vivo, G.R. No. L-22196, June 30, 1967)
deported: Provided, however, that the
imprisonment may be waived by the EVIDENCE OBTAINED THROUGH PURELY
Commissioner of Immigration with the MECHANICAL ACT
consent of the Department Head, and
upon payment by the alien concerned of The constitutional right of an accused against self-
such amount as the Commissioner may fix incrimination proscribes the use of physical or
and approved by the Department Head. moral compulsion to extort communications from
(Paragraph added pursuant to Republic the accused and not the inclusion of his body in
Act No. 144, Sec. 3); evidence when it may be material. Purely
10. Any alien who, at any time within five mechanical acts are not included in the
years after entry, shall have been prohibition as the accused does not thereby
convicted of violating the provisions of speak his guilt, hence the assistance and guiding
Commonwealth Act No. 653 (Philippine hand of counsel is not required. The essence of the

2019 GOLDEN NOTE S
Bill of Rights
right against self-incrimination is testimonial PRIVATE AND PUBLIC COMMUNICATIONS
compulsion, that is, the giving of evidence against
himself through a testimonial act. (Dela Cruz vs. GR: Right to privacy of communication and
People G.R. No. 200748 July 23, 2014) correspondence is inviolable. (1987 Philippine
Constitution, Sec. 3, Art. III).
NOTE: No person shall be compelled to be a
witness against himself. This constitutional XPNs:
privilege has been defined as a protection against 1. By lawful order of the court; and
testimonial compulsion, but this has since been 2. Public safety or public order as prescribed by
extended to any evidence “communicative in law.
nature” acquired under circumstances of duress
essentially, the right is meant to avoid and prohibit NOTE: Any evidence in violation of this right or the
positively the repetition and the recurrence of right against unreasonable searches and seizures
essentially inhuman procedure of competing a shall be inadmissible for any purpose in any
person, in a criminal or in any other case, to proceedings.
furnish the missing evidence necessary for his
conviction. Thus, an act, whether or passive, that Anti-Wire Tapping Act (R.A. No. 4200)
would amount to disclosure of any incriminatory
facts is covered by inhibition of the Constitution. A special law prohibiting and penalizing secret
(People vs. Anacleto Q. Olvis G.R. No. 71092, recording of conversations either through wire-
September 30, 1987) tapping or tape recorders. It provides penalties for
specific violations of private communication.
Example of purely mechanical acts:
1. a woman charged with adultery It shall be unlawful for any person, not being
may be compelled to submit to authorized by all the parties to any private
physical examination to communication or spoken word, to tap any wire or
determine her pregnancy; cable, or by using any other device or
(Villaflor vs. Summers, 41 Phil. arrangement, to secretly overhear, intercept, or
62 [1920]) record such communication or spoken word by
2. an accused may be compelled to using a device commonly known as a dictaphone
submit to physical examination or dictagraph or detectaphone or walkie-talkie or
and to have a substance taken tape-recorder, or however otherwise described.
from his body for medical (R.A. No. 4200, Sec. 1)
determination as to whether he
was suffering from gonorrhea INTRUSION, WHEN ALLOWED; EXCLUSIONARY
which was contracted by his RULE
victim; (U.S. vs. Tan Teng, 23 Phil.
145 [1912]) The right to privacy is not absolute
3. to expel morphine from his
mouth; (U.S. vs. Ong Siu Hong, 36 The right of privacy or "the right to be let alone,"
Phil. 735 [1917]) like the right of free expression, is not an absolute
4. to have the outline of his foot right. A limited intrusion into a person's privacy
traced to determine its identity has long been regarded as permissible where that
with bloody footprints; (U.S. vs. person is a public figure and the information
Salas, 25 Phil. 337 [1913]; U.S. vs. sought to be elicited from him or to be published
Zara, 42 Phil. 308 [1921]) about him constitute of a public character.
5. to be photographed or Succinctly put, the right of privacy cannot be
measured, or his garments or invoked to resist publication and dissemination of
shoes removed or replaced, or to matters of public interest. The interest sought to
move his body to enable the be protected by the right of privacy is the right to
foregoing things to be done. be free from unwarranted publicity, from
(People vs. Otadora, 86 Phil. 244 the wrongful publicizing of the private affairs and
[1950]) activities of an individual which are outside the
realm of legitimate public concern. (Ayer
PRIVACY OF COMMUNICATION AND Productions Pty. Ltd. v. Capulong, G.R. No. 82380,
CORRESPONDENCE April 29, 1988)
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POLITICAL LAW
NOTE: Probable cause in Sec. 2, Art. III should be agencies inevitably suffers from the inefficiency,
followed for the court to allow intrusion. incompetence, mismanagement, or other work-
Particularity of description is needed for written related misfeasance of its employees. Indeed, in
correspondence, but if the intrusion is done many cases, public employees are entrusted with
through wire-taps and the like, there is no need to tremendous responsibility, and the consequences
describe the content. However, identity of the of their misconduct or incompetence to both the
person or persons whose communication is to be agency and the public interest can be severe. In
intercepted, and the offense or offenses sought to contrast to law enforcement officials, therefore,
be prevented, and the period of the authorization public employers are not enforcers of the criminal
given should be specified. law; instead, public employers have a direct and
overriding interest in ensuring that the work of
A regulation mandating the opening of mail or the agency is conducted in a proper and efficient
correspondence of detainees is not violative of manner. In our view, therefore, a probable cause
the constitutional right to privacy requirement for searches of the type at issue here
would impose intolerable burdens on public
There is no longer a distinction between an inmate employers. The delay in correcting the employee
and a detainee with regard to the reasonable misconduct caused by the need for probable cause
expectation of privacy inside his cell. The rather than reasonable suspicion will be
curtailment of certain rights is necessary to translated into tangible and often irreparable
accommodate institutional needs and objectives of damage to the agency's work, and ultimately to the
prison facilities, primarily internal security. As public interest.
long as the letters are not confidential
communication between the detainee and his Besides, Pollo failed to prove that he had an actual
lawyer the detention officials may read them. But (subjective) expectation of privacy either in his
if the letters are marked confidential office or government-issued computer which
communication between detainee and the lawyer, contained his personal files. He did not allege that
the officer must not read them but only inspect he had a separate enclosed office which he did not
them in the presence of detainees. A law is not share with anyone, or that his office was always
needed before an executive officer may intrude locked and not open to other employees or
into the rights of privacy of a detainee or a visitors. Neither did he allege that he used
prisoner. By the very fact of their detention, they passwords or adopted any means to prevent other
have diminished expectations of privacy rights. employees from accessing his computer files.
(Alejano v. Cabuay, G.R. No. 160792, August 25, (Pollo v. David, G.R. No. 181881, October 18, 2011)
2005)
The Cybercrime Law does not regard as crime
Q: The CSC Chairperson Karina Constantino- private communications of sexual character
David received a letter-complaint which said between consenting adults
that an employee of the CSC was a lawyer of an
accused government employee having a The deliberations of the Bicameral Committee of
pending case in the said agency. Acting on the Congress on Sec.4(c)(i) of the law show a lack of
matter, she ordered the backing up of all files intent to penalize a private showing between and
in the computers found in the Public among two private persons although that may be
Assistance and Liaison Division (PALD) of a form of obscenity to some. The understanding of
which Briccio Pollo was the Officer-in-Charge. those who drew up the cybercrime law is that the
Drafts of legal pleadings were found in Pollo’s element of “engaging in a business” is necessary to
computer. Thereafter, he was charged with constitute the crime of illegal cybersex. The Act
Dishonesty, Grave Misconduct, Conduct actually seeks to punish cyber prostitution, white
Prejudicial to the Best Interest of the Service slave trade, and pornography for favor and
and Violation of R.A. No. 6713. On his part, consideration. This includes interactive
Pollo attacks the backing up of his files as it prostitution and pornography, e.g., by webcam.
was done without his knowledge and consent, (Disini v. Secretary of Justice, G.R. No. 203335,
thus infringing on his constitutional right to February 11, 2014)
privacy. Is he correct?
Right of privacy in social media
A: NO. Public employers have an interest in
ensuring that their agencies operate in an effective To address concerns about privacy, but without
and efficient manner, and the work of these defeating its purpose, Facebook was armed with

2019 GOLDEN NOTE S
Bill of Rights
different privacy tools designed to regulate the 1. Whether, by his conduct, the individual has
accessibility of a user’s profile as well as exhibited an expectation of privacy; and
information uploaded by the user. It is through the 2. This expectation is one that society recognizes
availability of said privacy tools that many OSN as reasonable.”
(Online Social Network) users are said to have a 3. Customs, community norms, and practices
subjective expectation that only those to whom may, therefore, limit or extend an individual’s
they grant access to their profile will view the “reasonable expectation of privacy.” Hence,
information they post or upload thereto. the reasonableness of a person’s expectation
of privacy must be determined on a case-to-
This, however, does not mean that any Facebook case basis since it depends on the factual
user automatically has a protected expectation of circumstances surrounding the case. (Ople v.
privacy in all of his or her Facebook activities. Torres, G.R. No. 127685, July 23, 1998)
Before one can have an expectation of privacy in Q: Sps. Hing were owner of a parcel of land and
his or her OSN activity, it is first necessary that Aldo Inc. constructed an auto-repair shop
said user, in this case the children of building on the adjacent lot. Aldo filed a case
petitioners, manifest the intention to keep certain for injunction and damages claiming that the
posts private, through the employment of Sps. Hing were constructing a fence without
measures to prevent access thereto or to limit its valid permit and that the construction would
visibility. And this intention can materialize in destroy their building. The case was dismissed
cyberspace through the utilization of the OSN’s for failure of Aldo to substantiate its
privacy tools. In other words, utilization of these allegations. Aldo Inc. then installed two
privacy tools is the manifestation, in cyber world, cameras on their building facing the property
of the user’s invocation of his or her right to of the Sps. Hing. The spouses contend that the
informational privacy. installation of the cameras was an invasion of
their privacy. Is there a limitation on the
Therefore, a Facebook user who opts to make use installation of surveillance cameras?
of a privacy tool to grant or deny access to his or
her post or profile detail should not be denied the A: YES. In this day and age, video surveillance
informational privacy right which necessarily cameras are installed practically everywhere for
accompanies said choice. Otherwise, using these the protection and safety of everyone. The
privacy tools would be a feckless exercise, such installation of these cameras, however, should not
that if, for instance, a user uploads a photo or any cover places where there is reasonable
personal information to his or her Facebook page expectation of privacy, unless the consent of the
and sets its privacy level at “Only Me” or a custom individual, whose right to privacy would be
list so that only the user or a chosen few can view affected, was obtained. Nor should these cameras
it, said photo would still be deemed public by the be used to pry into the privacy of another’s
courts as if the user never chose to limit the residence or business office as it would be no
photo’s visibility and accessibility. Such position, if different from eavesdropping, which is a crime
adopted, will not only strip these privacy tools of under Republic Act No. 4200 or the Anti-
their function but it would also disregard the very Wiretapping Law. (Sps. Hing v. Choachuy, G.R. No.
intention of the user to keep said photo or 179736, June 26, 2013)
information within the confines of his or her
private space. (Vivares v. St. Theresa’s College, G.R. Prohibited Acts under the Anti-Wire Tapping
No. 202666, September 29, 2014) Law (R.A. No. 4200) (2009 Bar)
Reasonable expectation of privacy test 1. To tap any wire or cable, or by using any other
device or arrangement, to secretly overhear,
This test determines whether a person has a intercept, or record such communication or
reasonable expectation of privacy and whether the spoken word by using a device commonly known
expectation has been violated. as a dictaphone or dictagraph or detectaphone or
walkie-talkie or tape recorder, or however
In Ople v. Torres, we enunciated that “the otherwise described by any person, not being
reasonableness of a person’s expectation of authorized by all the parties to any private
privacy depends on a two-part test: communication or spoken word;
2. To knowingly possess any tape record, wire
record, disc record, or any other such record, or
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copies thereof, of any communication or spoken As a result of Ramirez’s recording of the event,
word secured either before or after the effective Garcia filed a criminal case for violation of RA
date of this Act in the manner prohibited by this 4200, alleging that the act of secretly taping the
law; confrontation was illegal. Ramirez contends
3. To replay the same for any other person or that the facts charged do not constitute an
persons; offense. Was there a violation of R.A. 4200?
4. To communicate the contents thereof, either
verbally or in writing; or A: YES. The unambiguity of the express words of
5. To furnish transcriptions thereof, whether the provision, taken together with the above-
complete or partial, to any other person. quoted deliberations from the Congressional
Record, therefore plainly supports the view held
Under Sec. 3 of RA 4200, a peace officer, who is by the respondent court that the provision seeks
authorized by a written order of the Court, may to penalize even those privy to the private
execute any of the acts declared to be unlawful in communications. Where the law makes no
Sec. 1 and Sec. 2 of the said law in cases involving distinctions, one does not distinguish.
the crimes of:
The nature of the conversations is immaterial to a
1. Treason; violation of the statute. The substance of the same
2. Espionage; need not be specifically alleged in the information.
3. Provoking war and disloyalty in case of The mere allegation that an individual made a
war; secret recording of a private communication by
4. Piracy and mutiny in the high seas; means of a tape recorder would suffice to
5. Rebellion (conspiracy and proposal and constitute an offense under Section 1 of R.A. 4200.
inciting to commit included); As the Solicitor General pointed out in his
6. Sedition (conspiracy, inciting included) COMMENT before the respondent court:
7. Kidnapping; and "Nowhere (in the said law) is it required that
8. Violations of CA 616 (punishing before one can be regarded as a violator, the
espionage and other offenses against nature of the conversation, as well as its
national security). communication to a third person should be
professed."
The use of telephone extension is not a violation of
R.A. 4200 (Anti-Wire Tapping Law). The use of a The phrase "private communication" in Section 1
telephone extension to overhear a private of R.A. 4200 is broad enough to include verbal or
conversation is neither among those devices, nor non-verbal, written or expressive
considered as a similar device, prohibited under communications of "meanings or thoughts" which
the law. (Gaanan v. IAC, G.R. No. L-69809 October are likely to include the emotionally-charged
16, 1986) exchange between petitioner and private
respondent, in the privacy of the latter's office.
Forms of Correspondence covered: (Ramirez v. CA, G.R. No. 93833, September 28, 1995)
1. Letters; Q: DOJ Secretary Raul Gonzales warned that

2. Messages; reporters who had copies of the compact disc
3. Telephone calls; and (CD) and those broadcasting or publishing its
4. Telegrams and the like. contents could be held liable under the Anti-
Wiretapping Act. Secretary Gonzales also
Q: Ester S. Garcia, in a confrontation with ordered the NBI to go after media
Socorro Ramirez, allegedly vexed, insulted, organizations “found to have caused the
and humiliated Ramirez in a "hostile and spread, the playing and the printing of the
furious mood" and in a manner offensive to contents of a tape” of an alleged wiretapped
Ramirez’s dignity and personality. Ramirez conversation involving the President about
then filed a civil case for damages against fixing votes in 2004 national elections. Can the
Garcia. In support of her claim, Ramirez DOJ Secretary use the Anti-Wiretapping act as
produced a verbatim transcript of the event. a regulatory measure to prohibit the media
The transcript on which the civil case was from publishing the contents of the CD?
based was culled from a tape recording of the
confrontation. A: NO. The Court ruled that not every violation of
a law will justify straitjacketing the exercise of

2019 GOLDEN NOTE S
Bill of Rights
freedom of speech and of the press. There are laws petition the government for redress of grievances.
of great significance but their violation, by itself (Art. III,Sec. 4, 1987 Philippine Constitution)
and without more, cannot support suppression of
free speech and free press. In fine, violation of law Rationale
is just a factor, a vital one to be sure, which should
be weighed in adjusting whether to restrain People are kept from any undue interference from
freedom of speech and of the press. The totality of the government in their thoughts and words. It
the injurious effects of the violation to private and flows from the philosophy that the authorities do
public interest must be calibrated in light of the not necessarily know what is best for the people.
preferred status accorded by the Constitution and
by related international covenants protecting Scope of protected freedom of expression
freedom of speech and of the press. By all means, under the Constitution
violations of law should be vigorously
prosecuted by the State for they breed their own 1. Freedom of speech;
evil consequence. But to repeat, the need to 2. Freedom of the press;
prevent their violation cannot per se trump the 3. Right of assembly and to petition the
exercise of free speech and free press, a preferred government for redress of grievances;
right whose breach can lead to greater evils. 4. Right to form associations or societies not
(Chavez v. Gonzales, G.R. No. 168338, February 15, contrary to law;
2008) 5. Freedom of religion; and
6. Right to access to information on matters
Exclusionary rule of public concern.
Any evidence obtained in violation of the Protected speech includes every form of
Constitution shall be inadmissible for any purpose expression, whether oral, written, tape or disc
in any proceeding. However, in the absence of recorded. It includes motion pictures as well as
governmental interference, the protection against what is known as symbolic speech such as the
unreasonable search and seizure cannot be wearing of an armband as a symbol of protest.
extended to acts committed by private individuals. Peaceful picketing has also been included within
(People v. Marti, G.R. No. 78109, January 18, 1991) the meaning of speech.
NOTE: This rule is commonly known as “The fruit Speech is not limited to vocal communication.
of the poisonous tree.” Conduct is treated as a form of speech sometimes
referred to as ‘symbolic speech such that when
Q: Can the exclusionary rule be applied as speech and non-speech elements are combined in
against private individuals who violate the the same course of conduct, the ‘communicative
right to privacy? element’ of the conduct may be ‘sufficient to bring
into play the right to freedom of expression the
A: YES. Although generally, the Bill of Rights can form of expression is just as important as the
only be invoked against violations of the information conveyed that it forms part of the
government, the Court has recognized an instance expression. (Diocese of Bacolod v. Commission on
where it may also be applied as against a private Elections, G.R. No. 205728, January 21, 2015)
individual.
Note: Freedom to express ones sentiments and
Letters of a husband’s paramour kept inside the belief does not grant one the license to nullify the
husband’s drawer, presented by the wife in the honor and integrity of another. Any sentiment
proceeding for legal separation, is not admissible must be expressed within the proper forum and
in evidence The reason is that marriage does not with proper regard for the right of others. (Soriano
divest one of his/her right to privacy of v. Laguardia, G.R. 164785, March 15, 2010)
communication. (Zulueta v. CA, G.R. No. 107383,
February 20, 1996) Four aspects of freedom of speech and press
FREEDOM OF SPEECH AND EXPRESSION 1. Freedom from censorship or prior restraint –

see discussion on prior restraint.
No law shall be passed abridging the freedom of 2. Freedom from subsequent punishment to
speech, of expression, or of the press, or of the publication – see discussion on subsequent
right of the people peaceably to assemble and punishment, pg. 28.
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3. Freedom of access to information regarding disclose the names of commissioners and/or
matters of public interest – Official papers, payors of election surveys on the ground that it
reports and documents, unless held is a curtailment of free speech. Decide.
confidential and secret by competent
authority in the public interest, are public A: SWS is wrong. The names of those who
records. As such, they are open and subject to commission or pay for election surveys, including
regulation, to the scrutiny of the inquiring subscribers of survey firms, must be disclosed
reporter or editor. Information obtained pursuant to Section 5.2(a) of the Fair Election Act.
confidentially may be printed without This requirement is a valid regulation in the
specification of the source; and that source is exercise of police power and effects the
closed to official inquiry, unless the revelation constitutional policy of guaranteeing equal access
is deemed by the courts, or by a House or to opportunities for public service. Section 5.2(a)’s
committee of the Congress, to be vital to the requirement of disclosing subscribers neither
security of the State. curtails petitioners’ free speech rights nor violates
4. Freedom of circulation – Refers to the the constitutional proscription against the
unhampered distribution of newspapers and impairment of contracts. Concededly, what are
other media among customers and among the involved here are not election propaganda per se.
general public. It may be interfered with in Election surveys, on their face, do not state or
several ways. The most important of these is allude to preferred candidates. When published,
censorship. Other ways include requiring a however, the tendency to shape voter preferences
permit or license for the distribution of media comes into play. In this respect, published election
and penalizing dissemination of copies made surveys partake of the nature of election
without it, and requiring the payment of a fee propaganda. It is then declarative speech in the
or tax, imposed either on the publisher or on context of an electoral campaign properly subject
the distributor, with the intent to limit or to regulation. Hence, Section 5.2 of the Fair
restrict circulation. These modes of Election Act’s regulation of published surveys.
interfering with the freedom to circulate have
been constantly stricken down as It is settled that constitutionally declared
unreasonable limitations on press freedom. principles are a compelling state interest. Here, we
(Chavez v. Gonzales G.R. No. 168338, February have established that the regulation of election
15, 2008) (2014 Bar) surveys effects the constitutional policy,
articulated in Article II, Section 26, and reiterated
NOTE: There need not be total suppression; even and affirmed in Article IX-C, Section 4 and Article
restriction of circulation constitutes censorship. XIII, Section 26 of the 1987 Constitution, of
guaranteeing equal access to opportunities for
Political Speech public service.
Political speech is one of the most important While it does regulate expression (i.e., petitioners’
expressions protected by the Fundamental Law. publication of election surveys), it does not go so
“and have to be protected at all costs for the sake far as to suppress desired expression. There is
of democracy." (GMA Network v. COMELEC, G.R. No. neither prohibition nor censorship specifically
205357, September 2, 2014). Political speech is aimed at election surveys. The freedom to publish
motivated by the desire to be heard and election surveys remains. All Resolution No. 9674
understood, to move people to action. It is does is articulate a regulation as regards the
concerned with the sovereign right to change the manner of publication, that is, that the disclosure
contours of power whether through the election of of those who commissioned and/or paid for,
representatives in a republican government or the including those subscribed to, published election
revision of the basic text of the Constitution. We surveys must be made. (Social Weather Station v.
evaluate restrictions on freedom of expression COMELEC, G.R. No. 208062, April 7, 2015)
from their effects. We protect both speech and
medium because the quality of this freedom in Q: COMELEC Resolution No. 9615 deviated
practice will define the quality of deliberation in from the previous COMELEC resolutions
our democratic society. (Diocese of Bacolod v. relative to the airtime limitations on political
COMELEC, G. R. No. 205728, January 21, 2015) advertisements. It computes the airtime on an
aggregate basis involving all the media of
Q: Social Weather Station (SWS) questions broadcast communications compared to the
COMELEC Resolution 9674 requiring them to past where it was done on a per station basis.

2019 GOLDEN NOTE S
Bill of Rights
The result of which is the reduction of the serve the governed, not the governors. The
allowable minutes within which candidates Government's power to censor the press was
and political parties would be able to campaign abolished so that the press would remain forever
through the air. Did COMELEC commit grave free to censure the Government. The press was
abuse of discretion in issuing said resolution? protected so that it could bare the secrets of
government and inform the people. Only a free and
A: YES. The assailed rule on “aggregate-based” unrestrained press can effectively expose
airtime limits is unreasonable and arbitrary as it deception in government.” (GMA Network v.
unduly restricts and constrains the ability of COMELEC, G.R. No. 205357, September 2, 2014)
candidates and political parties to reach out and
communicate with the people. Here, the adverted Q: Members of the faculty of the University of
reason for imposing the “aggregate-based” airtime the Philippines College of Law published a
limits – leveling the playing field – does not statement on the allegations of plagiarism and
constitute a compelling state interest which would misrepresentation relative to a certain Court’s
justify such a substantial restriction on the decision. Essentially, the faculty calls for the
freedom of candidates and political parties to resignation of Justice Mario Pascual in the face
communicate their ideas, philosophies, platforms of allegations of plagiarism in his work.Does
and programs of government. And, this is specially this act of the faculty members squarely fall
so in the absence of a clear-cut basis for the under the freedom of speech and expression?
imposition of such a prohibitive measure. In this
particular instance, what the COMELEC has done A: NO. The publication of a statement by the
is analogous to letting a bird fly after one has faculty of the University of the Philippines College
clipped its wings. regarding the allegations of plagiarism and
misrepresentation in the Supreme Court was
It is also particularly unreasonable and whimsical totally unnecessary, uncalled for and a rash act of
to adopt the aggregate-based time limits on misplaced vigilance. While most agree that the
broadcast time when we consider that the right to criticize the judiciary is critical to
Philippines is not only composed of so many maintaining a free and democratic society, there is
islands. There are also a lot of languages and also a general consensus that healthy criticism
dialects spoken among the citizens across the only goes so far. Many types of criticism leveled at
country. Accordingly, for a national candidate to the judiciary cross the line to become harmful and
really reach out to as many of the electorates as irresponsible attacks. These potentially
possible, then it might also be necessary that he devastating attacks and unjust criticism can
conveys his message through his advertisements threaten the independence of the judiciary.
in languages and dialects that the people may (Re: Letter of the UP Law Faculty entitled
more readily understand and relate to. To add all “Restoring Integrity: A Statement by the Faculty of
of these airtimes in different dialects would the University of the Philippines College of Law on
greatly hamper the ability of such candidate to the Allegations of Plagiarism and
express himself – a form of suppression of his Misrepresentation in the Supreme Court.”, A.M. No.
political speech. 10-10-4-SC, October 19, 2010)
COMELEC itself states that “[t]elevision is PRIOR RESTRAINT AND SUBSEQUENT

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

2019 GOLDEN NOTE S
Bill of Rights
people. Juan Dela Cruz filed a case for online function. (Pita v. CA, G.R. No. 80806, October 5,
libel against Nestor, Dexter and 23 other 1989)
people who liked the post using as his basis 3. Criticism of Official Conduct – In New York
Sec. 5 of the Cybercrime law which penalizes Times v. Sullivan, 376 US 254, March 9, 1964,
any person who willfully abets or aids in the the constitutional guarantee requires a
commission of any of the offenses enumerated federal rule that prohibits a public official
in the said law. Is this provision of the law from recovering damages for a defamatory
constitutional? falsehood relating to his official conduct
unless he proves that the statement was made
A: NO. Section 5 with respect to Section 4(c)(4) is with actual malice.
unconstitutional. Its vagueness raises 4. Rights of students to free speech in school
apprehension on the part of internet users premises not absolute – The school cannot
because of its obvious chilling effect on the suspend or expel a student solely on the basis
freedom of expression, especially since the crime of the articles he has written except when
of aiding or abetting ensnares all the actors in the such article materially disrupts class work or
cyberspace front in a fuzzy way. What is more, as involves substantial disorder or invasion of
the petitioners point out, formal crimes such as rights of others. (Miriam College Foundation v.
libel are not punishable unless consummated. In CA, GR 127930, December 15, 2000)
the absence of legislation tracing the interaction of
netizens and their level of responsibility such as in Doctrine of Fair Comment
other countries, Section 5, in relation to Section
4(c)(4) on Libel, Section 4(c)(3) on Unsolicited GR: Every discreditable public imputation is false
Commercial Communications, and Section 4(c)(2) because every man is presumed innocent, thus,
on Child Pornography, cannot stand scrutiny. every false imputation is deemed malicious, hence,
(Ibid.) actionable.
Freedom from subsequent punishment XPN: When the discreditable imputation is

directed against a public person in his public
A limitation on the power of the State from capacity, such is not necessarily actionable.
imposing a punishment after publication or
dissemination. Without this assurance, the NOTE: For it to be actionable, it must be shown
individual would hesitate to speak for fear that he that either there is a false allegation of fact or
might be held to account for his speech, or that he comment based on a false supposition.
might be provoking the vengeance of the officials
he may have criticized. (Nachura, Outline Reviewer XPN to the XPN: If the comment is an
in Political Law, p. 152) expression of opinion, based on
established facts; it is immaterial
This second basic prohibition of the free speech whether the opinion happens to be
and press clause prohibits systems of subsequent mistaken, as long as it might reasonably
punishment which have the effect of unduly be inferred from facts. (Borjal v. CA, G.R.
curtailing expression. No. 126466, January 14, 1999)
NOTE: Freedom from subsequent punishment is Freedom of the Press

not absolute; it may be properly regulated in the
interest of the public. The State may validly impose The guaranty of freedom to speak is useless
penal and/or administrative sanctions such as in without the ability to communicate and
the following: disseminate what is said. And where there is a
need to reach a large audience, the need to access
1. Libel – A public and malicious imputation of a the means and media for such dissemination
crime, vice or defect, real or imaginary or any becomes critical. This is where the press and
act omission, status tending to cause dishonor, broadcast media come along.
discredit or contempt of a natural or judicial
person, or blacken the memory of one who is In the ultimate analysis, when the press is silenced,
dead. (Art 353, Revised Penal Code) or otherwise muffled in its undertaking of acting
2. Obscenity – In Pita v. Court of Appeals, the as a sounding board, the people ultimately would
Supreme Court declared that the be the victims. (GMA Network v. COMELEC, G.R. No.
determination of what is obscene is a judicial 205357, September 2, 2014)
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POLITICAL LAW
incidents in the Supreme Court and
Q: A national daily newspaper carried an characterizing the justices as “thieves” and “a
exclusive report stating that Senator Bal Bass basket of rotten apples.” The Court En Banc
received a house and lot located at YY Street, required Wincy to explain why no sanction
Makati, in consideration for his vote to cut should be imposed on her for indirect
cigarette taxes by 50%. The Senator sued the contempt of court. Did the order of the Court
newspaper, its reporter, editor and publisher violate freedom of the press?
for libel, claiming the report was completely
false and malicious. According to the Senator, A: NO. While freedom of speech, of expression and
there is no YY Street in Makati, and the tax cut of the press are at the core of civil liberties and
was only 20%. He claimed one million pesos in have to be protected at all costs for the sake of
damages. The defendants denied "actual democracy, these freedoms are not absolute. For,
malice," claiming privileged communication if left unbridled, they have the tendency to be
and absolute freedom of the press to report on abused and can translate to licenses, which could
public officials and matters of public concern. lead to disorder and anarchy. Erika crossed the
If there was any error, the newspaper said it line, as hers are baseless scurrilous attacks which
would publish the correction promptly. Are demonstrate nothing but an abuse of press
the defendants liable for damages? freedom. They leave no redeeming value in
furtherance of freedom of the press. They do
A: NO. Since Senator Bal Bass is a public person nothing but damage the integrity of the High Court,
and the questioned imputation is directed against undermine the faith and confidence of the people
him in his public capacity, in this case actual malice in the judiciary, and threaten the doctrine of
means the statement was made with knowledge judicial independence. (In Re: Allegations
that it was false or with reckless disregard of Contained in the Columns of Mr. Amado P.
whether it was false or not. Since there is no proof Macasaet, A.M. No. 07-09-13-SC, August 8, 2008)
that the report was published with knowledge that
it is false or with reckless disregard of whether it CONTENT-BASED AND CONTENT-NEUTRAL
was false or not, the defendants are not liable for REGULATIONS
damages. (Borjal v. CA, G.R. No. 126466, January 14,
1999) CONTENT- CONTENT-BASED
NEUTRAL RESTRAINT
The Borjal doctrine is not applicable in a case REGULATION
where the allegations against a public official Merely concerned The restriction is based
were false and no effort was exerted to verify with the incidents of on the subject matter
the information before publishing his articles. the speech, or one of the utterance or
that merely controls speech. The cast of the
Types of Privileged Communications the time, place or restriction determines
manner, and under the test by which the
1. Absolutely Privileged –those which are not well-defined challenged act is
actionable even if the actor acted in bad faith standards. assailed with.
No presumption of There is presumption
e.g.: Art. VI, Sec 11, of the 1987 unconstitutionality. of unconstitutionality.
Constitution, which exempts a
member of Congress from liability of NOTE: The burden of
any speech or debate in the Congress proof to overcome the
or in any Committee thereof. presumption of
unconstitutionality is
2. Qualifiedly Privileged - defamatory imputations with the government.
are not actionable unless found to have been made Test to be used: Test to be used: Clear
without good intention or justifiable motive. To Intermediate and Present Danger.
this genre belong “private communications” and Approach.
“fair and true report without any comments or
remarks.” (Borjal v. CA, G.R. No. 126466, January 14, FACIAL CHALLENGE AND THE OVERBREADTH
1999) DOCTRINE
Q: Wincy Diez penned several articles in Facial Challenge (2015 Bar)

Malaya newspaper regarding alleged bribery

2019 GOLDEN NOTE S
Bill of Rights
A challenge to a statute in court, in which the
plaintiff alleges that the legislation is always, and NOTE: A litigant cannot thus successfully mount a
under all circumstances, unconstitutional, and facial challenge against a criminal statute on either
therefore void. vagueness or overbreadth grounds.
Facial challenge is allowed to be made to a vague The rule established in our jurisdiction is, only
statute and to one which is overbroad because of statutes on free speech, religious freedom, and
possible “chilling effect” upon protected speech. other fundamental rights may be facially
The theory is that “[w]hen statutes regulate or challenged. (Southern Hemisphere Engagement
proscribe speech and no readily apparent Network, Inc. v. Anti-Terrorism Council, G.R. No.
construction suggests itself as a vehicle for 178552, October 5, 2010)
rehabilitating the statutes in a single prosecution,
the transcendent value to all society of Overbreadth Doctrine (2010, 2014 Bar)
constitutionally protected expression is deemed
to justify allowing attacks on overly broad statutes The overbreadth doctrine decrees that a
with no requirement that the person making the governmental purpose to control or prevent
attack demonstrate that his own conduct could not activities constitutionally subject to state
be regulated by a statute drawn narrow specifity.” regulations may not be achieved by means which
(Estrada v. Sandiganbayan GR. 148560, November sweep unnecessarily broadly and thereby invade
19, 2001) the area of protected freedoms. (Southern
Hemisphere Engagement Network, Inc. v. Anti-
Facial Challenge vs. “As-applied” Challenge Terrorism Council, G.R. No. 178552, October 5,
2010)
FACIAL CHALLENGE “AS-APPLIED”
CHALLENGE NOTE: The application of the overbreadth
An examination of Considers doctrine is limited to a facial kind of challenge and,
the entire law, only extant facts owing to the given rationale of a facial challenge,
pinpointing its flaws affecting real litigants applicable only to free speech cases.
and defects, not only
on the basis of its The most distinctive feature of the overbreadth
actual operation to technique is that it marks an exception to some of
the parties, but also the usual rules of constitutional litigation.
on the assumption or Ordinarily, a particular litigant claims that a
prediction that its statute is unconstitutional as applied to him or
very existence may her; if the litigant prevails, the courts carve away
cause others not the unconstitutional aspects of the law by
before the court to invalidating its improper applications on a case to
refrain from case basis. Moreover, challengers to a law are not
constitutionally permitted to raise the rights of the third parties
protected speech or and can only assert their own interests. In
activities. overbreadth analysis, those rules give way;
(Southern Hemisphere Engagement Network, Inc. v. challenges are permitted to raise the rights of third
Anti-Terrorism Council, G.R. No. 178552, October 5, parties; and the court invalidates the entire statute
2010) “on its face,” not merely “as applied for” so that the
overbroad law becomes unenforceable until a
Q: Is facial challenge to a penal statute properly authorized court construes it more
allowed? narrowly. The factor that motivates court to
depart from the normal adjudicatory rules is the
A: NO. Facial challenges are not allowed in penal concern with the “chilling,” deterrent effect of the
statutes. Criminal statutes have general in overbroad statute on third parties not courageous
terrorem effect resulting from their very existence, enough to bring suit. The Court assumes that an
and, if facial challenge is allowed for this reason overbroad law’s “very existence may cause others
alone, the State may well be prevented from not before the court to refrain from
enacting laws against socially harmful conduct. In constitutionally protected speech or expression.”
the area of criminal law, the law cannot take An overbreadth ruling is designed to remove that
chances as in the area of free speech. (KMU v. deterrent effect on the speech of those third
Ermita, G.R. No. 17855, October 5, 2010) parties. (Southern Hemisphere Engagement
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Network, Inc. v. Anti-Terrorism Council, G.R. No.
178552, October 5, 2010) NOTE: In his dissenting opinion, Justice Carpio
cited Action for Children's Television v. FCC
DANGEROUS TENDENCY, BALANCING OF which establishes the safe harbor period to be
INTERESTS, AND CLEAR AND PRESENT from 10:00 in the evening to 6:00 in the morning,
DANGER TESTS when the number of children in the audience is at
a minimum. In effect, between the hours of 10:00
Dangerous Tendency Test p.m. and 6:00 a.m., the broadcasting of material
considered indecent is permitted. Between the
Question: Whether the speech restrained has a hours of 6:00 a.m. and 10:00 p.m., the broadcast of
rational tendency to create the danger any indecent material may be sanctioned.
apprehended, be it far or remote, thus government Clear and Present Danger Test (2014 Bar)
restriction would then be allowed. It is not
necessary though that evil is actually created for The government must also show the type of harm
mere tendency towards the evil is enough. the speech sought to be restrained would bring
about— especially the gravity and the imminence
Emphasis: Nature of the circumstances under of the threatened harm – otherwise the prior
which the speech is uttered, though the speech per restraint will be invalid. Prior restraint on speech
se may not be dangerous. based on its content cannot be justified by
hypothetical fears, “but only by showing a
Balancing of interest Test substantive and imminent evil that has taken the
life of a reality already on ground.” As formulated,
Question: Which of the two conflicting interests “the question in every case is whether the words
(not involving national security crimes) demands used are used in such circumstances and are of
the greater protection under the particular such a nature as to create a clear and present
circumstances presented: danger that they will bring about the
substantive evils that Congress has a right to
a. When particular conduct is regulated in the prevent. It is a question of proximity and degree.”
interest of public order The regulation which restricts the speech content
b. And the regulation results in an indirect, must also serve an important or substantial
conditional and partial abridgement of speech. government interest, which is unrelated to the
(Gonzales v. COMELEC, G.R. No. L-27833, April 18, suppression of free expression. (Chavez v.
1969) Gonzales, G.R. No. 168338, February 15, 2008)
Q: Can an offensive and obscene language The question in every case is whether the words
uttered in a prime-time television broadcast used are used in such circumstances and are of
which was easily accessible to the children be such a nature as to create a clear and present
reasonably curtailed and validly restrained? danger that they will bring about the substantive
evils that Congress has a right to prevent. (Schenck
A: YES. In Soriano v. MTRCB, G.R. No. 165636, April v. United States, 249 U.S. 47, March 3, 1919)
29, 2009, the Court, applying the balancing of
interest doctrine, ruled that the government’s NOTE: The test can be applied with regard to the
interest to protect and promote the interests and Freedom of Religion when what is involved is
welfare of the children adequately buttresses the religious speech as this is often used in cases of
reasonable curtailment and valid restraint on freedom of expression.
petitioner’s prayer to continue as program host
of Ang Dating Daan during the suspension period. STATE REGULATION OF DIFFERENT TYPES OF
Soriano’s offensive and obscene language uttered MASS MEDIA
on prime-time television broadcast, without
doubt, was easily accessible to the children. His TYPES OF MASS MEDIA
statements could have exposed children to a
language that is unacceptable in everyday use. As Live Media Coverage of Court Proceedings
such, the welfare of children and the State’s
mandate to protect and care for them, as parens The propriety of granting or denying permission
patriae, constitute a substantial and compelling to the media to broadcast, record, or photograph
government interest in regulating Soriano’s court proceedings involves weighing the
utterances in TV broadcast. constitutional guarantees of freedom of the

2019 GOLDEN NOTE S
Bill of Rights
press, the right of the public to information and coverage can produce would affect everyone,
the right to public trial, on the one hand, and on the including the judge, witnesses, and the families
other hand, the due process rights of the of all concerned parties. The OSG, however,
defendant and the inherent and constitutional contends that the coverage by live media
power of the courts to control their proceedings in neither constitutes a barbarous act nor inflicts
order to permit the fair and impartial upon the accused inhuman physical harm or
administration of justice. Collaterally, it also raises torture that is shocking to the conscience and
issues in the nature of media, particularly is freedom of the press. Should live broadcast
television and its role in society, and of the impact of the trial be disallowed?
of new technologies on law.
A: NO. The Court is now disallowing live media
Considering the prejudice it poses to the broadcast of the trial of “Maguindanao massacre”
defendant's right to due process as well as to the cases but is still allowing the filming of the
fair and orderly administration of justice and proceedings for (1) the real-time transmission to
considering further that the freedom of the press specified viewing areas, and (2) documentation.
and the right of the people to information may be
served and satisfied by less distracting, degrading While the Court recognizes the freedom of press
and prejudicial means, live radio and television and the right to public information, the
coverage of court proceedings shall not be constitutional rights of the accused provide more
allowed. Video footages of court hearings for news than ample justification to take a second look at
purposes shall be restricted and limited to shots of the view that a camera that broadcasts the
the courtroom, the judicial officers, the parties and proceedings live on television has no place in a
their counsel taken prior to the commencement of criminal trial because of its prejudicial effects on
official proceedings. No video shots or the rights of accused individuals. As we have
photographs shall be permitted during the trial previously held, the live coverage of judicial
proper. proceedings involve an inherent denial of due
process. In this case that has achieved notoriety
An accused has a right to a public trial but it is a and sensational status, a greater degree of care is
right that belongs to him, more than anyone else, required to safeguard the constitutional rights of
where his life or liberty can be held critically in the accused. To be in the best position to weigh the
balance. A public trial aims to ensure that he is conflicting testimonies of the witnesses, the judge
fairly dealt with and would not be unjustly must not be affected by any outside force or
condemned and that his rights are not influence. Like any human being, however, a judge
compromised in secret conclaves of long ago. A is not immune from the pervasive effects of media.
public trial is not synonymous with publicized
trial; it only implies that the court doors must be In a constitutional sense, public trial is not
open to those who wish to come, sit in the synonymous with publicized trial. The right to a
available seats, conduct themselves with proper public trial belongs to the accused. The
decorum and observe the trial process (Secretary requirement of a public trial is satisfied by the
of Justice v. Estrada, A.M. No. 01-4-03-SC, September opportunity of the public and press to attend the
13, 2001). trial and to report what they have observed. The
accused’s right to a public trial should not be
Q: In 2011, the Supreme Court promulgated a confused with the freedom of the press and the
Resolution partially granting pro hac vice the public’s right to know as a justification for
request for live broadcast by television and allowing the live broadcast of the trial (Notice of
radio of the trial court proceedings of the Resolution, In Re: Petition for Radio and TV
“Maguindanao massacre” cases, subject to Coverage of cases against Zaldy Ampatuan, A.M. No.
specific guidelines set forth in said Resolution. 10-11-5-SC, October 23, 2012).
Accused Andal Ampatuan, Jr. filed a Motion for
Reconsideration alleging that the Resolution Q: Can an offensive and obscene language
“deprives him of his rights to due process, uttered in a prime-time television broadcast
equal protection, presumption of innocence, which was easily accessible to the children be
and to be shielded from degrading reasonably curtailed and validly restrained?
psychological punishment.” Ampatuan
contends that the Court should accord more A: YES. In Soriano v. MTRCB, G.R. No. 165636, April
vigilance because the immense publicity and 29, 2009, the Court, applying the balancing of
adverse public opinion which live media interest doctrine, ruled that the government’s
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POLITICAL LAW
interest to protect and promote the interests and 1. Government has a substantial interest to
welfare of the children adequately buttresses the protect;
reasonable curtailment and valid restraint on 2. The regulation directly advances that
petitioner’s prayer to continue as program host interest; and
of Ang Dating Daan during the suspension period. 3. It is not more than extensive than is
Soriano’s offensive and obscene language uttered necessary to protect that interest.
on prime-time television broadcast, without (Central Hudson Gas & Electric Corp v.
doubt, was easily accessible to the children. His Public Service Commission of NY, 447 US
statements could have exposed children to a 557, June 20, 1980)
language that is unacceptable in everyday use. As
such, the welfare of children and the State’s Q: EO 51 (Milk Code) was issued by President
mandate to protect and care for them, as parens Val Anton is on October 28, 1986 by virtue of
patriae, constitute a substantial and compelling the legislative powers granted to the President
government interest in regulating Soriano’s under the Freedom Constitution. On May 15,
utterances in TV broadcast. 2006, the DOH issued Revised Implementing
Rules and Regulations (RIRR) which was to
NOTE: In his dissenting opinion, Justice Carpio take effect on July 7, 2006. The Association of
cited Action for Children's Television v. FCC Healthcare Workers claimed that the Milk
which establishes the safe harbor period to be Code only regulates and does not impose
from 10:00 in the evening to 6:00 in the morning, unreasonable requirements for advertising
when the number of children in the audience is at and promotion while RIRR imposes an
a minimum. In effect, between the hours of 10:00 absolute ban on such activities for breast
p.m. and 6:00 a.m., the broadcasting of material milk substitutes intended for infants from 0-
considered indecent is permitted. Between the 24 months old or beyond, and forbids the use
hours of 6:00 a.m. and 10:00 p.m., the broadcast of of health and nutritional claims. Were the
any indecent material may be sanctioned. labeling requirements and advertising
regulations under the RIRR valid?
COMMERCIAL SPEECH
A: YES. Sec. 13 on “total effect” and Sec. 26 of Rule
Commercial speech is a separate category of VII of the RIRR contain some labeling
speech which is not accorded the same level of requirements, specifically: a) that there be a
protection as that given to other constitutionally statement that there is no substitute to breastmilk;
guaranteed forms of expression but is nonetheless and b) that there be a statement that powdered
entitled to protection. The State cannot rob him of infant formula may contain pathogenic
this right without violating the constitutionally microorganisms and must be prepared and used
guaranteed freedom of expression. Unsolicited appropriately. Sec. 16 of the RIRR prohibits all
advertisements are legitimate forms of health and nutrition claims for products within the
expression. (Disini v. Secretary of Justice, G.R. No. scope of the Milk Code, such as claims of increased
203335, February 18, 2014) emotional and intellectual abilities of the infant
and young child. These provisions of the Milk
It pertains to communication which “no more than Code expressly forbid information that would
proposes a commercial transaction,” such as imply or create a belief that there is any milk
Advertisements of goods or of services. product equivalent to breast milk or which is
humanized or maternalized, as such information
To enjoy protection, commercial speech: would be inconsistent with the superiority of
breastfeeding. Thus, the RIRR is a reasonable
1. Must not be false or misleading; and means of enforcing the Milk Code and deterring
(Friedman v. Rogers, 440 US 1, February circumvention of the protection and promotion of
21, 1979) breastfeeding as embodied in the Milk Code.
2. Should not propose an illegal (Pharmaceutical and Health Care Association of the
transaction. (Pittsburgh Press Co. v Philippines v. Duque, G.R. No. 173034, October 9,
Human Relations Commissions, 413 US 2007)
376, June 21, 1973)
Heckler’s Veto (2014 Bar)
NOTE: However, even truthful and lawful
commercial speech maybe regulated if: Occurs when an acting party's right to freedom of
speech is curtailed or restricted by the

2019 GOLDEN NOTE S
Bill of Rights
government in order to prevent a reacting party's
behavior. The term Heckler’s Veto was coined by A profession of faith to an active power that binds
University of Chicago professor of law Harry and elevates man to his creator. (Aglipay v. Ruiz,
Kalven. G.R. No. L-45459, March 13, 1937)
The “heckler's veto” involves situations in which Guarantees contained in Sec. 5 Art. III of the
the government attempts to ban protected speech 1987 Constitution (1996, 1997, 1998, 2003,
because it might provoke a violent response. In 2009, 2012 Bar)
such situations, “the mere possibility of a violent
reaction to protected speech is simply not a 1. Non-establishment clause; and
constitutional basis on which to restrict the right 2. Free exercise clause.
to speak”. (Roe v. Crawford, 514 F.3d 789, January
22, 2008) NON-ESTABLISHMENT AND FREE EXERCISE
CLAUSES
It may be in the guise of a permit requirement in
the holding of rallies, parades, or demonstrations Non-Establishment Clause
conditioned on the payment of a fee computed on
the basis of the cost needed to keep order in view Art. III, Sec. 5 states that “No law shall be made
of the expected opposition by persons holding respecting an establishment of religion, or
contrary views. (Gorospe, 2006, citing Forsyth prohibiting the free exercise thereof.”
County v. Nationalist Movement, 505 U.S. 123, June
19, 1992) NOTE: The non-establishment clause means that
the state should adopt a “position of neutrality”
UNPROTECTED SPEECH when it comes to religious matters. (Political Law
Reviewer, Suarez, p. 252 citing CJ Fernando, 2011)
Unprotected speech or low value expression The non-establishment clause bars the State from
refers to libelous statements, obscenity or establishing, through laws, rules, and moral.
pornography, false or misleading advertisement,
insulting or fighting words. Those by which their Purpose of non-establishment clause:
very utterance inflicts injury or tent to incite an
immediate breach of peace and expression 1. Protects voluntarism; and
endangering nation security. (Soriano v. 2.Insulation of political process from interfaith
Laguardia, G.R. 164785, March 15, 2010) dissension.
Limitations on freedom of expression (2014 NOTE: Voluntarism, as a social value, means that
Bar) the growth of a religious sect as a social force must
come from the voluntary support of its members
It should be exercised within the bounds of laws because of the belief that both spiritual and
enacted for the promotion of social interests and secular society will benefit if religions are allowed
the protection of other equally important to compete on their own intrinsic merit without
individual rights such as: benefit of official patronage. (Bernas, S.J., 2011)
1. Laws against obscenity, libel and slander
(contrary to public policy); Accommodation
2. Right to privacy of an individual;
3. Right of state/government to be protected Accommodations are government policies that
from seditious attacks; take religion specifically into account not to
4. Legislative immunities; promote the governments favored form of
5. Fraudulent matters; religion, but to allow individuals and groups to
6. Advocacy of imminent lawless conducts; exercise their religion without hindrance. Their
7. Fighting words; and purpose or effect therefore is to remove a burden
8. Guarantee implies only the right to reach a on, or facilitate the exercise of, a persons or
willing audience but not the right to compel institutions religion. (Estrada v Escritur, AM P-02-
others to listen, see or read. 1651, August 4, 2003)
FREEDOM OF RELIGION Examples of governmental accommodation
Religion
141
POLITICAL LAW
1. In Victoriano v. Elizalde Rope Workers Union, the religious character of such use is merely incidental
Court upheld the exemption of members of Iglesia to a temporary use which is available
ni Cristo from the coverage of a closed shop indiscriminately to the public in general". (Re:
agreement between their employer and a union, Letter of Tony Q. Valenciano, Holding of Religious
because it would violate the teaching of their Rituals at the Hall of Justice Building in Quezon City,
church not to affiliate with a labor organization. A.M. No. 10-4-19-SC, March 7, 2017)
2. In Ebralinag v. Division Superintendent of
Schools of Cebu, the petitioners, who were 2. Art. II, Sec. 6 “Separation of church and state
members of the Jehovah's Witnesses, refused to is inviolable.”
salute the flag, sing the national anthem, and recite 3. Art. IX(C), Sec. 2(5 ) “No religious sects can be
the patriotic pledge for it is their belief that those registered as political parties.”
were acts of worship or religious devotion, which
they could not conscientiously give to anyone or Constitutionally created exceptions to the non-
anything except God. establishment clause
3. In Re: Request of Muslim Employees in the
Different Courts in Iligan City (Re: Office Hours), the 1. Art. 6, Sec.29 (prohibition on
Court recognized that the observance of Ramadan appropriation of public money or
as integral to the Islamic faith and property for the use, benefit or support of
allowed Muslim employees in the Judiciary to hold any religion);
flexible office hours from 7:30 o'clock in the 2. Art. 6, Sec. 28(3) (exemption from taxation
morning to 3:30 o'clock in the afternoon without of properties actually, directly and
any break during the period. exclusively used for religious purposes);
3. Art. 14, Sect. 3(3) (optional religious
 The Revised Administrative Code of 1987 instruction in public elementary and high
has declared Maundy Thursday, Good schools);
Friday, and Christmas Day as regular
holidays. NOTE: Religious instruction in public schools:
 Republic Act (R.A.) No. 9177 proclaimed a. At the option of parents/guardians
the FIRST Day of Shawwal, the tenth expressed in writing;
month of the Islamic Calendar, a national b. Within the regular class hours by
holiday for the observance instructors designated or approved
of EidulFitr (the end of Ramadan). by religious authorities of the
 R.A. No. 9849 declared the tenth day religion to which the children
of Zhu/ Hijja, the twelfth month of the belong; and
Islamic Calendar, a national holiday for c. Without additional costs to the
the observance of EidulAdha. government
 Presidential Decree No. 1083, otherwise
known as the Code of Muslim Personal 4. Art. 14, Sec. 4 (2) (citizenship requirement
Laws of the Philippines, expressly allows of ownership of educational institutions,
a Filipino Muslim to have more than one except those established by religious
(1) wife and exempts him from the crime groups and mission boards); and
of bigamy punishable under Revised
Penal Code (RPC). The same Code allows 5. Art. 6, Sec. 29 (2) (appropriation allowed
Muslims to have divorce. where ecclesiastic is employed in armed
forces, in a penal institution, or in a
Constitutional provisions which express the government-owned orphanage or
non-establishment clause leprosarium.)
1. Art. VI, Sec. 29 “No public money/property given Exceptions to the non-establishment clause as
to religious sect or minister/religious personnel” held by jurisprudence
(except for those assigned to army, penal
institution, government orphanage and 1. Government sponsorship of town
leprosarium). fiestas, some purely religious traditions
have now been considered as having
It has also been held that the aforecited acquired secular character; (Garces v.
constitutional provision "does not inhibit the use Estenzo, G.R. No. L-53487, May 25, 1981)
of public property for religious purposes when the

2019 GOLDEN NOTE S
Bill of Rights
2. Postage stamps depicting Philippines as or deny the immortality of his soul – in fact,
the venue of a significant religious event cherish any religious conviction as he and he
– benefit to the religious sect involved alone sees fit.
was merely incidental as the promotion
of Philippines as a tourist destination However absurd his beliefs may be to others,
was the primary objective; and (Aglipay even if they be hostile and heretical to the
v. Ruiz, G.R. No. L-45459 March 13, 1937) majority, he has full freedom to believe as he
3. Exemption from zoning requirements to pleases. He may not be required to prove his
accommodate unique architectural beliefs. He may not be punished for his
features of religious buildings i.e. inability to do so. (Iglesiani Cristo v. CA, G.R. No.
Mormon’s tall pointed steeple. (Martin v. 119673, July 26, 1996)
Corporation of the Presiding Bishop, 434
Mass. 141, May 16, 2001) 2. Right to act on one’s belief, which is subject to
regulation.
The non-establishment clause states that the
State CANNOT: Where the individual externalizes his beliefs in
acts or omissions that affect the public, his
1. Set up a church; freedom to do so becomes subject to the
2. Pass laws which aid one, all religions or authority of the State. As great as this liberty
prefer one over another; may be, religious freedom, like all the other
3. Force or influence a person to go to or rights guaranteed in the Constitution, it is
stay away from church against his will or limited and subject to the police power of the
force him to profess a belief or disbelief State and can be enjoyed only with proper
in any religion; regard to rights of others.
4. Punish a person for entertaining or
professing religious beliefs or disbeliefs, BENEVOLENT NEUTRALITY AND
for church attendance or non- CONSCIENTIOUS OBJECTORS
attendance;
5. Collect tax in any amount, can be levied Benevolent Neutrality
to support any religious activity or
institution whatever they may adopt to Benevolent neutrality is an approach that looks
teach or practice religion; further than the secular purposes of government
6. Openly or secretly participate in the action and examines the effect of these actions on
affairs of any religious organization or religious exercise. Benevolent neutrality
group or vice versa. (Everson v Board of recognizes the religious nature of the Filipino
Education, 330 U.S. 1., February 10, 1947) people and the elevating influence of religion in
society; at the same time, it acknowledges that
Free Exercise Clause government must pursue its secular goals. In
pursuing these goals, however, government might
The Free Exercise Clause affords absolute adopt laws or actions of general applicability
protection to individual religious convictions. which inadvertently burden religious exercise.
However, the government is able to regulate the Benevolent neutrality gives room for
times, places, and manner of its exercise. (Cantwell accommodation of these religious exercises as
v. Connecticut, 310 U.S. 296, May 20, 1940) required by the Free Exercise Clause. It allows
these breaches in the wall of separation to uphold
Aspects of freedom and enjoyment of religious religious liberty, which after all is the integral
profession and worship purpose of the religion clauses. (Estrada v.
Escritor, A.M. No. P-02-1651, August 4, 2003)
1. Right to believe, which is absolute; and
Conscientious Objector
The individual is free to believe (or disbelieve)
as he pleases concerning the hereafter. He An "individual who has claimed the right to refuse
may indulge his own theories about life and to perform military service on the grounds of
death; worship any god he chooses, or none at freedom of thought, conscience, and/or religion.”
all; embrace or reject any religion; (International Covenant on Civil and Political
acknowledge the divinity of God or of any Rights, Art. 18)
being that appeals to his reverence; recognize
143
POLITICAL LAW
Requisites for one to be considered a
conscientious objector Q: Ang Ladlad is an organization composed of
men and women who identify themselves as
1. The person is opposed to war in any lesbians, gays, bisexuals, or transgendered
form; individuals (LGBTs). Ang Ladlad applied for
2. He must show that this opposition is registration with the COMELEC to participate
based upon religious training and in the party-list elections. The COMELEC
belief; and dismissed the petition on moral grounds,
3. And he must show that this objection is stating that definition of sexual orientation of
sincere. (Clay v. United States, 403 the LGBT sector makes it crystal clear that
U.S.698, June 28, 1971) petitioner tolerates immorality which offends
religious beliefs based on the Bible and the
Q: Angel, a court interpreter, is living with a Koran. Ang Ladlad argued that the denial of
man not her husband. Ben filed an registration, insofar as it justified the
administrative case against Angel as he exclusion by using religious dogma, violated
believes that she is committing an immoral act the constitutional guarantees against the
that tarnishes the image of the court, thus she establishment of religion. Is this argument
should not be allowed to remain employed correct?
therein as it might appear that the court
condones her act. Angel admitted that she has A: YES. It was a grave violation of the non-
been living with a man without the benefit of establishment clause for the COMELEC to utilize
marriage for twenty years and that they have a the Bible and the Koran to justify the exclusion
son. But as a member of the religious sect of Ang Ladlad. Our Constitution provides in Art. III,
known as the Jehovah’s Witnesses, the Watch Sec. 5 that “no law shall be made respecting an
Tower and Bible Tract Society, their conjugal establishment of religion, or prohibiting the free
arrangement is in conformity with their exercise thereof.” At bottom, what our non-
religious beliefs. In fact, after ten years of establishment clause calls for is government
living together, she executed on July 28, 1991 a neutrality in religious matters. Clearly,
“Declaration of Pledging Faithfulness.” Should governmental reliance on religious justification is
Angel’s right to religious freedom carve out an inconsistent with this policy of neutrality. (Ang
exception from the prevailing jurisprudence Ladlad v. COMELEC, G.R. No. 190582, April 8, 2010)
on illicit relations for which government
employees are held administratively liable? NOTE: When the law speaks of immoral or,
necessarily, disgraceful conduct, it pertains to
A: YES. Angel’s conjugal arrangement cannot be public and secular morality; it refers to those
penalized as she has made out a case for conducts which are proscribed because they are
exemption from the law based on her fundamental detrimental to conditions upon which depend the
right to freedom of religion. The Court recognizes existence and progress of human society. (Leus v.
that the State’s interests must be upheld in order St. Scholastica’s College Westgrove, G.R. No. 187226,
that freedom – including religious freedom – may January 28, 2015)
be enjoyed. In the area of religious exercise as a
preferred freedom, however, man stands Q: Dychie, Rose Anne, Julie, Kimmy, Alarice and
accountable to an authority higher than the State, Krizelle were minor school children and
and so the State interest sought to be upheld must member of the sect, Jehovah’s Witnesses. They
be so compelling that its violation will erode the were expelled from their classes by various
very fabric of the State that will also protect the public school authorities for refusing to salute
freedom. In the absence of showing that such State the flag, sing the national anthem and recite
interest exists, man must be allowed to subscribe the “Panatang Makabayan” required by R.A.
to the Infinite. Furthermore, our Constitution 1265. According to them, the basic assumption
adheres to the Benevolent Neutrality approach in their universal refusal to salute the flags of
that gives room for accommodation of religious the countries in which they are found is that
exercises as required by the Free Exercise such a salute constitutes an act of religious
Clause. The benevolent neutrality doctrine allows devotion forbidden by God's law and that their
accommodation of morality based on religion, freedom of religion is grossly violated. On the
provided it does not offend compelling state other hand, the public authorities claimed that
interests. (Estrada v. Escritor, A.M. No. P-02-1651, the freedom of religious belief guaranteed by
June 22, 2006) the Constitution does not mean exception from

2019 GOLDEN NOTE S
Bill of Rights
non-discriminatory laws like the saluting of
flag and the singing of the national anthem. To 1. Has the statute or government action
allow otherwise would created a burden on the free exercise of
disrupt school discipline and demoralize the religion? – Courts often look into the
teachings of civic consciousness and duties of sincerity of the religious belief, but
citizenship. Is the expulsion justified? without inquiring into the truth of the
belief since the free exercise clause
A: NO. Religious freedom is a fundamental right of prohibits inquiring about its truth;
highest priority. The two-fold aspect of right to 2. Is there a sufficiently compelling state
religious worship is: 1.) Freedom to believe which interest to justify this infringement of
is an absolute act within the realm of thought. 2.) religious liberty? – In this step, the
Freedom to act on one’s belief regulated and government has to establish that its
translated to external acts. The only limitation to purposes are legitimate for the State and
religious freedom is the existence of grave that they are compelling; and
and present danger to public safety, morals, health 3. Has the State in achieving its legitimate
and interests where State has right to prevent. The purposes used the least intrusive means
expulsion of the petitioners from the school is not possible so that the free exercise is not
justified. infringed any more than necessary to
In the case at bar, the students expelled are only achieve the legitimate goal of the State? –
standing quietly during ceremonies. By observing The analysis requires the State to show
the ceremonies quietly, it doesn’t present any that the means in which it is achieving
danger so evil and imminent to justify their its legitimate State objective is the least
expulsion. The expulsion of the students by reason intrusive means, or it has chosen a way
of their religious beliefs is also a violation of a to achieve its legitimate State end that
citizen’s right to free education. The non- imposes as little as possible intrusion on
observance of the flag ceremony does not totally religious beliefs.
constitute ignorance of patriotism and civic
consciousness. Love for country and admiration Doctrine of Separation of Church and the State
for national heroes, civic consciousness, and form
of government are part of the school curricula. Q: What is a purely ecclesiastical affair to
Therefore, expulsion due to religious beliefs is which the State cannot meddle?
unjustified. (Ebralinag v. Division Superintedent of
Cebu, G.R. No. 95770, March 1, 1993) A: An ecclesiastical affair is “one that concerns
doctrine, creed, or form of worship of the church,
LEMON AND COMPELLING STATE INTEREST or the adoption and enforcement within a
religious association of needful laws and
Lemon Test regulations for the government of the
membership, and the power of excluding from
A test to determine whether an act of the such associations those deemed not worthy of
government violates the non-establishment membership.” Based on this definition, an
clause. ecclesiastical affair involves the relationship
between the church and its members and relate to
To pass the Lemon test, a government act or policy matters of faith, religious doctrines, worship and
must: governance of the congregation. To be concrete,
examples of this so-called ecclesiastical affairs to
1. Have a secular purpose; which the State cannot meddle are proceedings for
2. Not promote or favor any set of religious excommunication, ordinations of religious
beliefs or religion generally; and ministers, administration of sacraments and other
3. Not get the government too closely activities with attached religious significance.
involved (“entangled”) with religion. (Pastor Dionisio V. Austria v. NLRC, G.R. No. 124382,
(Lemon v. Kurtzman, 403 U.S. 602, June 28, Aug. 16, 1999, 1st Div. [Kapunan])
1971)
Q: Petitioner is a religious minister of the
Compelling State Interest Seventh Day Adventist (SDA). He was
Used to determine if the interests of the State are dismissed because of alleged
compelling enough to justify infringement of misappropriation of denominational funds,
religious freedom. It involves a three-step process: willful breach of trust, serious misconduct,
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POLITICAL LAW
gross and habitual neglect of duties and
commission of an offense against the person of Examples:
his employer’s duly authorized representative. 1. Persons in the danger zone areas (e.g.
He filed an illegal termination case against the Mt. Pinatubo, Taal Volcano) may be
SDA before the labor arbiter. The SDA filed a relocated to safer areas and
motion to dismiss invoking the doctrine of evacuation centers in case of danger
separation of Church and State. Should the and emergency to save lives and
motion be granted? property.
2. Insane persons who roam around in
A: NO. Where what is involved is the relationship Roxas Boulevard may be committed by
of the church as an employer and the minister as the government to the National Mental
an employee and has no relation whatsoever with Hospital for appropriate treatment
the practice of faith, worship or doctrines of the and medical attention.
church, i.e., the minister was not excommunicated
or expelled from the membership of the NOTE: Under Art. III, Sec. 6, of the Constitution, a
congregation but was terminated from lawful order of the court is required before the
employment, it is a purely secular affair. liberty of abode and of changing the same can be
Consequently, the suit may not be dismissed impaired.
invoking the doctrine of separation of church and
the state. (Pastor Dionisio V. Austria v. NLRC, G.R. Q: Paz, was employed by the Far Eastern
No. 124382, Aug. 16, 1999) Employment Bureau, owned by Jocelyn. An
advanced payment has already been given to
Growth of a religious sect as a social force must Paz by the employment agency, for her to work
come from the voluntary support of its members as a maid. However, Paz wanted to transfer to
because of the belief that both spiritual and another residence, which was disallowed by
secular society will benefit if religions are allowed the employment agency. Further she was
to compete on their own intrinsic merit without detained and her liberty was restrained. The
benefit of official patronage. (Bernas, S.J., 2011) employment agency wanted that the advance
payment, which was applied to her
LIBERTY OF ABODE AND RIGHT TO TRAVEL transportation expense from the province
should be paid by Paz before she could be
Rights guaranteed under Sec. 6 of the Bill of allowed to leave. Does the employment agency
Rights (1991, 1996, 1998, 2012 Bar) has the right to restrain and detain a maid who
could not return the advance payment it gave?
1. Freedom to choose and change one’s
place of abode; and A: NO. An employment agency, regardless of the
2. Freedom to travel within the country and amount it may advance to a prospective employee
outside. or maid, has absolutely no power to curtail her
freedom of movement. The fact that no physical
Liberty of abode force has been exerted to keep her in the house of
the respondent does not make less real the
It is the right of a person to have his home or to deprivation of her personal freedom of movement,
maintain or change his home, dwelling, residence freedom to transfer from one place to another,
or habitation in whatever place he has chosen, freedom to choose one’s residence. Freedom may
within the limits prescribed by law. be lost due to external moral compulsion, to
founded or groundless fear, to erroneous belief in
SCOPE AND LIMITATIONS the existence of an imaginary power of an
impostor to cause harm if not blindly obeyed, to
The right is NOT absolute, as there may be a law any other psychological element that may curtail
that restricts the freedom , as when the person is a the mental faculty of choice or the unhampered
leper or a convict. exercise of the will. If the actual effect of such
psychological spell is to place a person at the
The liberty of abode may be impaired only: mercy of another, the victim is entitled to the
protection of courts of justice as much as the
a. Upon lawful order of the court and; and individual who is illegally deprived of liberty by
b. Within the limits prescribed by law such duress or physical coercion. (Cuanca v Salazar, 82
as public safety and security. Phil. 851, January 1, 1941)

2019 GOLDEN NOTE S
Bill of Rights
Code, in particular, its basic policy to "afford
Right to Travel protection to labor," pursuant to the Department
of Labor's rule-making authority vested in it by the
This refers to the right of a person to go where he Labor Code. The petitioner assumes that it is
pleases without interference from anyone. unreasonable simply because of its impact on the
right to travel, but as we have stated, the right
The limitations on the right to travel itself is not absolute. The disputed Order is a valid
qualification thereto. (Philippine Association of
a. Interest of national security; Service Exporters, Inc. v. Drilon, G.R. No. 81958, June
b. Public safety; and 30, 1988)
c. Public health.
A member of the military cannot travel freely
NOTE: It is settled that only a court may issue a to other places apart from his command post
hold departure order against an individual
addressed to the Bureau of Immigration and Mobility of travel is another necessary restriction
Deportation. However, administrative authorities, on members of the military. A soldier cannot leave
such as passport-officers, may likewise curtail his/her post without the consent of the
such right in the interest of national security, commanding officer. The reasons are self-evident.
public safety, or public health, as may be provided The commanding officer has to be aware at all
by law. times of the location of the troops under
command, so as to be able to appropriately
DPWH may validly ban certain vehicles on respond to any exigencies. For the same reason,
expressways in consideration of constitutional commanding officers have to be able to restrict the
provisions of right to travel. movement or travel of their soldiers, if in their
judgment, their presence at place of call of duty is
The right to travel does not mean the right to necessary. At times, this may lead to
choose any vehicle in traversing a toll way. The unsentimental, painful consequences, such as a
right to travel refers to the right to move from one soldier being denied permission to witness the
place to another. Travelers can traverse the toll birth of his first-born, or to attend the funeral of a
way any time they choose using private or public parent. Yet again, military life calls for
four-wheeled vehicles. Petitioners are not denied considerable personal sacrifices during the period
the right to move from Point A to Point B along the of conscription, wherein the higher duty is not to
toll way. Anyone is free to access the toll way, self but to country. (Gudani v. Senga, G.R. No.
much as the rest of the public can. The mode by 170165, August 15, 2006)
which one wishes to travel pertains to the manner
of using the toll way, a subject that can be validly WATCH-LIST AND HOLD DEPARTURE ORDERS
limited by regulation. (Mirasol v. DPWH, G.R. No.
158793, June 8, 2006) NOTE: Right to travel is not impaired by a hold
departure order. The basic reason for the rule is
Q: PASEI is engaged in the recruitment of found in People v Uy Tuising, 61 Phil. 404, 1935,
Filipino workers, male and female, for where it was said that inasmuch as the jurisdiction
overseas employment. It challenged the of the courts from which orders and processes
validity of Department Order 1 of the were issued does not extend beyond that of the
Department of Labor and Employment (DOLE) Philippines, they would have no binding force
because it suspends the deployment of female outside of said jurisdiction.
domestic and household workers in Iraq,
Jordan and Qatar due to growing incidence of Q: Several criminal complaints were filed
physical and personal abuses to female against former President Gloria Macapagal
overseas workers. PASEI contends that it Arroyo (GMA) before the DOJ. In view thereof,
impairs the constitutional right to travel. Is the DOJ Sec. De Lima issued Watchlist Orders
contention correct? (WLO) pursuant to her authority under DOJ
Circular No. 41 which was issued pursuant to
A: NO. The deployment ban does not impair the the rule-making powers of the DOJ in order to
right to travel. The right to travel is subject, among keep individuals under preliminary
other things, to the requirements of "public investigation within the jurisdiction of the
safety," "as may be provided by law." Department Philippines. Subsequently, GMA requested for
Order No. 1 is a valid implementation of the Labor the issuance of Allow Departure Orders (ADO)
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POLITICAL LAW
so that she may be able to seek medical attacked the order on the ground that it
attention abroad. Before the resolution of her violates the right to travel. Are they correct?
application for ADO, GMA filed a petition with
prayer for the issuance of a TRO seeking to A: NO. This case does not actually involve the right
annul and set aside DOJ Circular No. 41 and to travel in its essential sense. Any bearing that
WLOs issued against her for being Proclamation No. 475 may have on the right to
unconstitutional. A TRO was issued but GMA travel is merely corollary to the closure of Boracay
was prevented from leaving the country. Is DOJ and the ban of tourists and non-residents
Circular No. 41 unconstitutional for being a therefrom which were necessary incidents of the
violation of the right to travel? island's rehabilitation. There is certainly no
showing that Proclamation No. 475 deliberately
A: YES. The DOJ has no authority to issue DOJ meant to impair the right to travel. The questioned
Circular No. 41 which effectively restricts the right proclamation is clearly focused on its purpose of
to travel through the issuance of WLOs and HDOs rehabilitating Boracay and any intention to
(Hold Departure Orders). There are only three directly restrict the right cannot, in any manner, be
considerations that may permit a restriction on deduced from its import.
the right to travel: national security, public safety
or public health. Further, there must be an explicit Also significant to note is that the closure of
provision of statutory law or Rules of Court Boracay was only temporary considering the
providing for the impairment. categorical pronouncement that it was only for a
definite period of six months. Hence, if at all, the
DOJ Circular No. 41 is not a law. It is not a impact of Proclamation No. 475 on the right to
legislative enactment, but a mere administrative travel is not direct but merely consequential; and,
issuance designed to carry out the provisions of an the same is only for a reasonably short period of
enabling law. DOJ is not authorized to issue WLOs time or merely temporary. (Zabal v. Duterte, G.R.
and HDOs to restrict the constitutional right to No. 238467, February 12, 2019)
travel. There is no mention of the exigencies stated
in the Constitution that will justify the impairment. Return to one’s country
The provision simply grants the DOJ the power to
investigate the commission of crimes and Q: Ferdinand Marcos, in his deathbed, has
prosecute offenders. It does not carry the power to signified his desire to return to the Philippines
indiscriminately devise all means it deems proper to die. But President Corazon Aquino barred
in performing its functions without regard to the return of Marcos and his family. The
constitutionally-protected rights. Marcoses invoke their right to return. Is the
right to return a constitutionally protected
DOJ cannot justify the restraint in the liberty of right?
movement imposed by the circular on the ground
that it is necessary to ensure presence and A: NO. The right to return to one’s country is not
attendance in the preliminary investigation of the among the rights specifically guaranteed in the Bill
complaints. There is no authority of law granting of Rights, which treats only of the liberty of abode
it the power to compel the attendance of the and the right to travel. Nevertheless, the right to
subjects of a preliminary investigation pursuant to return may be considered as a generally accepted
its investigatory powers. Its investigatory power is principle of International law, and under the
simply inquisitorial and, unfortunately, not broad Constitution, is part of the law of the land.
enough to embrace the imposition of restraint on However, it is distinct and separate from the right
the liberty of movement. (Genuino v. De Lima, G.R. to travel and enjoys a different protection under
No. 197930, April 17, 2018) the International Covenant of Civil and Political
Rights. (Marcos v. Manglapus, G.R. No. 88211,
Q: President Rodrigo Duterte issued September 15, 1989 & October 27, 1989)
Proclamation No. 475 formally declaring a
state of calamity in Boracay and ordering its RIGHT TO INFORMATION
closure for six (6) months. On account of this,
Boracay residents Mark Anthony Zabal and Rationale
Thiting Jacosalem filed the present petition
alleging that they would suffer grave and The purpose is to promote transparency in policy-
irreparable damage as their livelihood making and in the operations of the government,
depends on the tourist activities therein. They as well as provide the people sufficient

2019 GOLDEN NOTE S
Bill of Rights
information to exercise effectively other
constitutional rights. Armed with the right The right does not extend to the following:
information, citizens can participate in public
discussions leading to the formulation of 1. National security matters. These include
government policies and their effective state secrets regarding military,
implementation. An informed citizenry is essential diplomatic and other national security,
to the existence and proper functioning of any and information on inter-government
democracy. (IDEALs v. PSALM, G.R. No. 192088, exchanges prior to the conclusion of
October 9, 2012) treaties and executive agreements.
2. Criminal matters relating to investigation,
Three categories of information: apprehension, and detention of criminals
which the court may not inquire into prior
1. Official records; to arrest, prosecution and detention;
2. Documents and papers pertaining to official 3. Trade and industrial secrets and other
acts, transactions and decisions; and banking transactions as protected by the
3. Government research data used in Intellectual Property Code and the
formulating policies. (Article 3, Section 7, Secrecy of Bank Deposits Act; and
1987 Constitution) 4. Other confidential information falling
under the scope of the Ethical Safety Act
Electoral Debates concerning classified information.
(Chavez v. PCGG, G.R. No. 130716,
Q: The online news agency Rappler, Inc. sued December 9, 1998)
COMELEC Chair Bautista for breach of contract
(MOA) in disallowing the former to stream Q: Adolfo, filed in his capacity as a citizen and
online the coverage of the 2016 presidential as a stakeholder in the industry involved in
and vice-presidential debates. Does Rappler, importing petrochemicals, filed a mandamus
Inc. have a cause of action against Chair petition to compel the Committee on Tariff and
Bautista? Related Matters (CTRM) to provide him a copy
of the minutes of its May 23, 2005 meeting; as
A: YES. Aside from the fact that Chair Bautista well as to provide copies of all official records,
clearly breached an express stipulation of the MOA documents, papers and government research
allowing Rappler, Inc. to stream online the data used as basis for the issuance of Executive
coverage of the debates, the presidential and vice- Order No. 486 which lifted the suspension of
presidential debates are held primarily for the the tariff reduction schedule on
benefit of the electorate to assist the electorate in petrochemicals. Wilfredo based his action on
making informed choices on election day. Through the constitutional right to information on
the conduct of the national debates among matters of public concern and the State’s policy
presidential and vice-presidential candidates, the of full public disclosure. Will the petition
electorate will have the "opportunity to be prosper?
informed of the candidates' qualifications and
track record, platforms and programs, and their A: NO. The State’s policy of full public disclosure is
answers to significant issues of national concern." restricted to transactions involving public interest
The political nature of the national debates and the and is tempered by reasonable conditions
public's interest in the wide availability of the prescribed by law.
information for the voters' education certainly
justify allowing the debates to be shown or Two requisites must concur before the right to
streamed in other websites for wider information may be compelled by writ of
dissemination. (Rappler, Inc. v. Bautista, G.R. No. mandamus. Firstly, the information sought must
222702, April 5, 2016) be in relation to matters of public concern or
public interest. And, secondly, it must not be
SCOPE AND LIMITATIONS exempt by law from the operation of the
constitutional guarantee.
GR: The access must be for a lawful purpose and is
subject to reasonable conditions by the custodian The information sought by Wilfredo are classified
of the records. as a closed-door Cabinet meeting by virtue of the
CTRM’s composition and the nature of its mandate
XPNs: dealing with matters of foreign affairs, trade and
149
POLITICAL LAW
policy-making. A President and those who assist
him must be free to explore alternatives in the NON-IMPAIRMENT OF CONTRACTS
process of shaping policies and making decisions Impairment of contracts
and to do so in a way many would be unwilling to
express except privately. Without doubt, Any law which introduces a change into the
therefore, ensuring and promoting the free express terms of the contract, or its legal
exchange of ideas among the members of CTRM construction, or its validity, or its discharge, or the
tasked to give tariff recommendations to the remedy for its enforcement, impairs the contract.
President were truly imperative. (Sereno v.
Committee on Tariff and Related Matters of the The law impairs the obligation of contracts if:
NEDA, G.R. No. 175210, February 1, 2016)
1. It changes the terms and conditions of a legal
PUBLICATION OF LAWS AND REGULATIONS contract either as to the time or mode of
performance; or
Rationale for Publication of Laws 2. It imposes new conditions or dispenses with
those expressed if it authorizes for its
There is a need for publication of laws to reinforce satisfaction something different from that
the right to information. In Tañada v. Tuvera, the provided in its terms.
Court said that Laws must come out in the open in
the clear light of the sun instead of skulking in the NOTE: Mere technical change which does not
shadows with their dark, deep secrets. Mysterious change the substance of the contract, and which
pronouncements and rumored rules cannot be still leaves an efficacious remedy for enforcement
recognized as binding unless their existence and does NOT impair the obligation of contracts. A
contents are confirmed by a valid publication valid exercise of police power is superior to
intended to make full disclosure and give proper obligation of contracts.
notice to the people.
Applicability of the provision
Publication of regulations
NOTE: It is NOT absolute and is NOT to be read
Publication is necessary to apprise the public of with literal exactness. It is restricted to contracts
the contents of penal regulations and make the with respect to property or some object of value
said penalties binding on the persons affected and which confer rights that may be asserted in a
thereby. (Pesigan v. Angeles, G.R. No. L-6427, April court of justice; it has no application to statutes
30, 1984) relating to public subjects within the domain of the
general legislative powers of the State and
Publication is required in the following: involving the public rights and public welfare of
the entire community affected by it.
1. All statutes, including those of local
application, and private laws; This constitutional provision is applicable ONLY if
2. President decrees and executive orders the obligation of contract is impaired by legislative
promulgated by the President; act (statute, ordinance, etc.). The act need not be
3. Administrative rules and regulations if their by a legislative office; but it should be legislative in
purpose is to enforce and implement existing nature. Furthermore, the impairment must be
law; and substantial. (Philippine Rural Electric Cooperatives
4. Memorandum Circulars, if they are meant Assoc. v. DILG Secretary, G.R. No. 143076, June 10,
note merely to interpret but to “fill in the 2003)
details” which that body is supposed to
enforce. Inapplicability of the provision
Publication is NOT required in the following: One, in case of franchises, privileges, licenses, etc.
1. Interpretative regulations and those NOTE: These are subject to amendment,

merely internal in nature, regulating only the alteration or repeal by Congress when the
personnel of the administrative agency; and common good so requires.
2. Letters of instructions issued by
administrative superiors concerning rules Two, there is neither public interest involved nor
and guidelines. a law that supports the claim.

2019 GOLDEN NOTE S
Bill of Rights
CMU terminates the agreement concerning the
NOTE: It can only be invoked if it is against the royalties effective April 12, 1995. However,
government or when the government intervenes PAL insists that the agreement could only be
in contract between the parties. (Pacific Wide effectively terminated on 31 October 1995, or
Realty and Development Corp. v. Puerto Azul Land, the last day of the then current traffic period
Inc., G.R. No. 180893, November 25, 2009) and therefore the provisions of the agreement
shall continue to be enforced until such date.
NOTE: The non-impairment clause always yields Can the execution of the CMU between Kuwait
to the police power of the state–and even to the and Philippine Governments automatically
power of taxation and eminent domain–for as long terminate the Commercial Agreement?
as the subject matter of the contract is imbued
with paramount public interest. Into every A: NO. An act of the Philippine Government
contract is deemed written the police power of the negating the commercial agreement between the
State. Also, the police power may not be bargained two airlines would infringe the vested rights of a
away through the medium of a contract, or even private individual. Since PAL was already under
that of a treaty. private ownership at the time the CMU was
entered into, the Court cannot presume that any
Mutuality of contracts and all commitments made by the Philippine
Government are unilaterally binding on the carrier
GR: Valid contracts should be respected by the even if this comes at the expense of diplomatic
legislature and not tampered with by subsequent embarrassment. Even granting that the police
laws that will change the intention of the parties power of the State may be exercised to impair the
or modify their rights and obligations. vested rights of privately-owned airlines, the
deprivation of property still requires due process
NOTE: The will of the parties to a contract must of law. (Kuwait Airline Corporation v. PAL, G.R. No.
prevail. A later law which enlarges, abridges, or in 156087, May 8, 2009)
any manner changes the intent of the parties to the
contract necessarily impairs the contract itself and FREE ACCESS TO COURTS AND ADEQUATE
cannot be given retroactive effect without LEGAL ASSISTANCE
violating the constitutional prohibition against
impairment of contracts. (Sangalang v. IAC, G.R. Basis
No. 71169, December 22, 1988)
Free access to courts and quasi-judicial bodies and
XPN: Enactment of laws pursuant to the exercise adequate legal assistance shall not be denied to
of police power because public welfare prevails any person by reason of poverty. (Sec. 11, Art. 3,
over private rights. It is deemed embedded in 1987 Constitution) (1991, 2002 Bar)
every contract a reservation of the State’s exercise
of police power, eminent domain and taxation, so Right to free access to courts
long as it deals with a matter affecting the public
welfare. (PNB v. Remigio, G.R. No. 78508, March 21, This right is the basis for Sec. 17, Rule 5 of the New
1994) Rules of Court allowing litigation in forma pauper
is. Those protected include low paid employees,
Q: While still being a GOCC, PAL entered into a domestic servants and laborers. (Cabangis v.
Commercial Agreement and Joint Services Almeda Lopez, G.R. No. 47685, September 20, 1940)
Agreement with Kuwait Airways in 1981
establishing a joint commercial arrangement Q: The Municipal Trial Court denied Jaypee’s
whereby PAL and Kuwait Airways were to petition to litigate in forma pauperis on the
jointly operate the Manila-Kuwait (and vice ground that Jaypee has regular employment
versa) route, utilizing the planes and services and sources of income thus cannot be classified
of Kuwait Airways. In that Agreement, PAL may as poor or pauper. Is the court’s order
collect royalties from Kuwait Airways. justified?
Subsequently, the government lost control
over PAL and became a private corporation. A: NO. They need not be persons so poor that they
After 14 years, delegations from the Philippine must be supported at public expense. It suffices
government and Kuwait government met. The that the plaintiff is indigent. And the difference
talks culminated in a Confidential between paupers and indigent persons is that the
Memorandum of Understanding (CMU). The latter are persons who have no property or
151
POLITICAL LAW
sources of income sufficient for their support aside income of a litigant that is the determinative
from their own labor though self-supporting when factor. For, really, property may have no income. It
able to work and in employment. (Acar v. Rosal, may even be a financial burden. (Enaje v. Ramos,
G.R. No. L-21707, March 18, 1967) G.R. No. L-22109, January 30, 1970)
Q: The Good Shepherd Foundation, Inc. seeks MIRANDA/CUSTODIAL INVESTIGATION

to be exempted from paying legal fees for its RIGHTS
indigent and underprivileged clients couching
their claim on the free access clause embodied These are the rights to which a person under
in Sec. 11, Art. III of the Constitution. Is the custodial investigation is entitled. At this stage, the
contention tenable? person is not yet an accused as there is yet no case
filed against him. He is merely a suspect.
A: NO. The Court cannot grant exemption of
payment of legal fees to foundations/institutions The following are the rights of suspects:
working for indigent and underprivileged people.
According to Sec. 19, Rule 141, Rules of Court, only 1. Right to remain silent; (2013 Bar)
a natural party litigant may be regarded as an 2. Right to competent and independent counsel,
indigent litigant that can be exempted from preferably of his own choice;
payment of legal fees. Exemption cannot be 3. Right to be reminded that if he cannot afford
extended to the foundations even if they are the services of counsel, he would be provided
working for the indigent and underprivileged with one
people. (Re: Query of Mr. Roger C. Prioreschi Re: 4. Right to be informed of his rights;
exemption from legal and filing fees of the Good 5. Right against torture, force, violence, threat,
Shepherd Foundation, Inc., A. M. No. 09-6-9-SC, intimidation or any other means which
August 19, 2009) vitiate the free will;
6. Right against secret detention places,
Q: A pauper is known to have several parcels of solitary, incommunicado, or similar forms of
land but that for several years prior to the detention;
filing of the complaint in the inferior court said 7. Right to have confessions or admissions
parcels of land had been divided and obtained in violation of these rights
partitioned amongst his children who had considered inadmissible in evidence.
since been in possession thereof and paying (Miranda v Arizona, 384 U.S. 436, June 13,
the taxes thereon. Is he considered indigent? 1966) (2013 Bar)
May he apply for free legal assistance?
NOTE: Even if the person consents to answer
A. YES. Republic Act 6034 (An Act Providing questions without the assistance of counsel, the
Transportation and Other Allowances for Indigent moment he asks for a lawyer at any point in the
Litigants), has defined the term "indigent" to refer investigation, the interrogation must cease until
to a person "who has no visible means of income an attorney is present.
or whose income is insufficient for the subsistence
of his family." The “Miranda Rights” are available to avoid
involuntary extrajudicial confession.
Even on the assumption that petitioner owns
property, he may still be an indigent considering The purpose of providing counsel to a person
his sworn statement that he had no income. Under under custodial investigation is to curb the police-
the standard set forth in Acar v. Rosal as well as the state practice of extracting a confession that leads
recent legislations heretofore adverted to, it is the appellant to make self-incriminating statements.
income of a litigant that is the determinative (People v. Rapeza, G.R. No. 169431, April 3, 2007)
factor. For, really, property may have no income. It
may even be a financial burden whose income is Availability
insufficient for the subsistence of his family."
1. During custodial investigation;
Even on the assumption that petitioner owns As soon as the investigation ceases to be a
property, he may still be an indigent considering general inquiry unto an unsolved crime and
his sworn statement that he had no income. Under direction is aimed upon a particular suspect,
the standard set forth inAcar v. Rosal as well as the as when the suspect who has been taken into
recent legislations heretofore adverted to, it is the police custody and to whom the police would

2019 GOLDEN NOTE S
Bill of Rights
then direct interrogatory questions which of custodial investigation" (Ho Wai Pang v. People,
tend to elicit incriminating statements; or G.R. No. 176229, October 19, 2011)
(2014 Bar)
2. Critical pre-trial stage. Unavailability of Miranda Rights
R.A. 7438 - An Act Defining Certain Rights of 1. During a police line-up, unless admissions or
Person Arrested, Detained or Under Custodial confessions are being elicited from the
Investigation and the Duties of the Arresting, suspect; (Gamboa v. Cruz, G.R. No. L-56291,
Detaining and Investigating Officers June 27, 1988)
2. During administrative investigations;
This is a special penal law enacted pursuant to (Sebastian, Jr. v Garchitorena, G.R. No 114028,
Section 12, par. 4, Art. III of the 1987 Constitution. October 18, 2000)
3. Confessions made by an accused at the time he
The custodial investigation shall include the voluntarily surrendered to the police or
practice of issuing an invitation to a person who is outside the context of a formal investigation;
under investigation in connection with an offense (People v Baloloy, G.R. No 140740, April 12,
he is suspected to have committed. (R.A. 7438, Sec. 2002)
2) 4. Statements made to a private person; and
(People v Tawat, G.R. No 62871, May 25, 1985)
NOTE: Rights during custodial investigation apply 5. Forensic investigation is not tantamount to
only against testimonial compulsion and not when custodial investigation, therefore Miranda
the body of the accused is proposed to be rights is not applicable. (People v. Tranca, 235
examined (e.g. urine sample, photographs, SCRA 455, August 17, 1994)
measurements, garments, shoes) which is a purely
mechanical act. Waiver
Rights that may be waived
In the case of Galman v. Pamaran, G.R. Nos. 71208-
09, August 30, 1985, it was held that the 1. Right to remain silent; and
constitutional safeguard is applied 2. Right to counsel.
notwithstanding that the person is not yet
arrested or under detention at the time. However, Rights that may not be waived
Fr. Bernas has qualified this statement by saying
that jurisprudence under the 1987 Constitution The right of the accused to be given the Miranda
has consistently held, following the stricter view, warnings.
that the rights begin to be available only when the
person is already in custody. (People v. Ting Lan Requisites for valid waiver
Uy, G.R. No. 157399, November 17, 2005)
1. Made voluntarily, knowingly and
Furthermore, in the case of People v. Reyes, G.R. No. intelligently;
178300, March 17, 2009, the court held that: “The 2. In writing; and
mantle of protection afforded by the above-quoted 3. With the presence of counsel. (People v.
provision covers the period from the time a person Galit, G.R. No. L-51770, March 20, 1985)
is taken into custody for the investigation of his
possible participation in the commission of a Admissibility as evidence of confessions given
crime from the time he was singled out as a to news reporters and/or media and
suspect in the commission of the offense although videotaped confessions
not yet in custody.
Confessions given in response to a question by
Infraction of the rights of an accused during news reporters, not policemen, are admissible.
custodial investigation or the so-called Miranda Where the suspect gave spontaneous answers to a
Rights render inadmissible only the extrajudicial televised interview by several press reporters, his
confession or admission made during such answers are deemed to be voluntary and are
investigation. "The admissibility of other admissible.
evidence, provided they are relevant to the issue
and is not otherwise excluded by law or rules, is Videotaped confessions are admissible, where it is
not affected even if obtained or taken in the course shown that the accused unburdened his guilt
willingly, openly and publicly in the presence of
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POLITICAL LAW
the newsmen. Such confessions do not form part
of confessions in custodial investigations as it was Once the primary source (the tree) is shown to
not given to policemen but to media in attempt to have been unlawfully obtained, any secondary or
solicit sympathy and forgiveness from the public. derivative evidence (the fruit) derived from it is
also inadmissible.
However, due to inherent danger of these
videotaped confessions, they must be accepted NOTE: The rule is based on the principle that
with extreme caution. They should be presumed evidence illegally obtained by the State should not
involuntary, as there may be connivance between be used to gain other evidence, because the
the police and media men. (People v. Endino, G.R. originally illegally obtained evidence taints all
No. 133026, February 20, 2001) evidence subsequently obtained.
NOTE: What the Constitution bars is the Q: Mayor Tatum arrived and proceeded to the
compulsory disclosure of the incriminating facts investigation room. Upon seeing the mayor,
or confessions. The rights under Sec. 12 are appellant Flores approached him and
guarantees to preclude the slightest use of whispered a request to talk privately. The
coercion by the State, and not to prevent the mayor led appellant to the office of the Chief of
suspect from freely and voluntarily telling the Police and there, Flores broke down and said
truth. (People v. Andan, G.R. No. 116437, March 3, "Mayor, patawarin mo ako! I will tell you the
1997) truth. I am the one who killed Villaroman." The
mayor opened the door of the room to let the
Q: Constancio and Berry were charged with the public and media representatives witness the
crime of Rape with Homicide committed confession. The mayor first asked for a lawyer
against “AAA”. During the trial, Amparo, a news to assist appellant but since no lawyer was
reporter, testified that he personally available she ordered the proceedings
interviewed Berry. Amparo declared that photographed and videotaped. In the presence
during his interview, Berry revealed what of the mayor, the police, representatives of the
happened the night “AAA” was killed. Atty. media and appellant's own wife and son,
Suarez testified that during the custodial appellant confessed his guilt. His confession
investigation he advised Berry of his was captured on videotape and covered by the
constitutional rights and the consequences of media nationwide. Did such uncounseled
his statements. Berry then executed an confession violate the suspect’s constitutional
extrajudicial confession which was embodied rights?
in a Sinumpaang Salaysay. However, at the
trial, Berry attested that the Sinumpaang A: NO. A confession given to the mayor may be
Salaysay was false, and claimed that he was admitted in evidence if such confession by the
threatened into signing the same. Is the suspect was given to the mayor as a confidant and
confession admissible? not as a law enforcement officer. In such a case, the
uncounseled confession did not violate the
A: YES. The Court believed that Berry’s confession suspect’s constitutional rights. What the
is admissible because it was voluntary executed constitution bars is the compulsory disclosure of
with the assistance of a competent and incriminating facts or confessions. The rights
independent counsel in the person of Atty. Suarez under Sec. 12 are guarantees to preclude the
following Section 12, Article III of the Constitution. slightest use of coercion by the State and not to
In default of proof that Atty. Suarez was negligent prevent the suspect from freely and voluntarily
in his duties, the Court held that the custodial telling the truth. (People v. Andan, G.R. No. 116437,
investigation of Berry was regularly conducted. March 3, 1997)
there was no ample proof to show that Berry’s
narration of events to Amparo was the product of Q: Accused Antonio Lauga was charged and
intimidation or coercion. Berry’s extrajudicial convicted of the crime of rape of his thirteen-
confession to Amparo, a news reporter, is deemed year old daughter, AAA. During the
voluntary and is admissible in evidence as it was proceedings, Juan Paulo Nepomuceno, a
not made to the police authorities or to an bantaybayanin the barangay, testified that the
investigating officer. (People v. Constancio, G.R. No. accused confessed that he had in fact raped
206226, April 4, 2016) AAA. The trial court found him guilty of the
crime of rape. Lauga contends that the
Fruit of the Poisonous Tree Doctrine extrajudicial confession he made to

2019 GOLDEN NOTE S
Bill of Rights
Nepomuceno is inadmissible in evidence as it No person shall be held to answer for a criminal
was made without assistance of counsel. Is his offense without due process of law. [1987
contention tenable? Constitution, Sec. 14(1), Art. III]
A: YES. A barangay bantay bayan is considered a Requisites of criminal due process (NO-CPJ)
public officer and any extrajudicial confession
made to him without the assistance of counsel is 1. Accused is heard by a Court of competent
inadmissible in evidence as provided for under jurisdiction;
Sec. 12, Art. III of the Constitution. (People v. 2. Accused is proceeded against under the
Lauga, G.R. No. 186228, March 15, 2010) orderly Processes of law;
3. Accused is given Notice and Opportunity to be
RIGHTS OF THE ACCUSED heard;
4. Judgment must be rendered after lawful
1. Due process; hearing.
2. Be presumed innocent;
3. Be heard by himself and counsel; Right to appeal not a natural right
4. Be informed of the nature and cause of the
accusation against him; The right to appeal is neither a natural right nor
5. A speedy, impartial and public trial; part of due process. It is a mere statutory right, but
6. Meet the witnesses face to face; once given, denial constitutes violation of due
7. Have compulsory process to secure the process.
attendance of witnesses and production of
evidence on his behalf; RIGHT TO SPEEDY DISPOSITION OF CASES
8. Against double jeopardy; and
9. Bail. Right to speedy disposition of cases
Q: Go was charged with Other Deceits under This is a right that is available to all persons in all
Art, 318 of the RPC. Upon arraignment, he kinds of proceedings, whether criminal, civil, or
pleaded not guilty. The prosecution's administrative, unlike the right to speedy trial
complaining witness, Li Ping, a frail old which is available only to an accused in a criminal
businessman from Laos, Cambodia, traveled case and, therefore, only the accused may invoke
from his home country back to the Philippines such.
just to attend the hearing. However, trial dates
were subsequently postponed due to his The right to speedy disposition of cases is different
unavailability. Subsequently, the private from the right to speedy trial to the extent that the
prosecutor filed with the MeTC a Motion to former applies to all cases, whether judicial, quasi-
Take Oral Deposition of Li Ping, alleging that judicial, or administrative cases. (1987
he was being treated for lung infection at the Constitution,Art. III, Sec. 16); whereas, the latter
Cambodia Charity Hospital in Laos, Cambodia applies to criminal cases only[1987 Constitution,
and that, upon doctor's advice, he could not Art. III, Sec. 14(2)]
make the long travel to the Philippines by
reason of ill health. Can Li Ping take his Violation
deposition in Laos, Cambodia?
The right to a speedy disposition of a case, like the
A: NO. Nowhere in Sec. 15, Rule 119 of the Rules, right to a speedy trial, is deemed violated only
specifically in criminal proceedings, permits the when the proceedings are attended by vexatious,
taking of deposition outside the Philippines capricious, and oppressive delays; or when
whether the deponent is sick or not. The unjustified postponements of the trial are asked
conditional examination of a prosecution witness for and secured; or even without cause or
cannot defeat the rights of the accused to public justifiable motive, a long period of time is allowed
trial and confrontation of witnesses. (Harry Go vs. to elapse without the party having his case tried.
People of the Philippines, G.R. No. 185527, July (Roquero v. Chancellor of UP-Manila, G.R. No.
18, 2012, PER J. PERLAS-BERNABE) 181851, March 9, 2010)
Criminal due process In determining whether the accused has been

deprived of his right to a speedy disposition of the
case and to a speedy trial, four factors must be
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POLITICAL LAW
considered: (a) length of delay; (b) the reason for press and the public’s right to know as a
the delay; (c) the defendant's assertion of his right; justification for allowing the live broadcast of the
and (d) Prejudice to the defendant. (Angelito trial. The tendency of a high profile case like the
Magno vs. People Philippines, G.R No. 230657, subject case to generate undue publicity with its
March 14, 2018, PER, J. PERLAS-BERNABE) concomitant undesirable effects weighs heavily
against broadcasting the trial. Moreover, the fact
Q: Luz Almeda, Schools Division that the accused has legal remedies after the fact is
Superintendent of the DepEd, was being of no moment, since the damage has been done
charged of violation of R.A. 3019. However, the and may be irreparable. It must be pointed out that
preliminary investigation proceedings took the fundamental right to due process of the
more than 11 long years to resolve due to the accused cannot be afforded after the fact but must
repeated indorsement of the case between the be protected at the first instance. (In Re: Petition
Office of the Ombudsman (Ombudsman) and for Radio and Television Coverage of the Multiple
the Office of the Special Prosecutor (OSP). It is Murder Cases against Maguindanao Governor Zaldy
attributed to the Ombudsman’s failure to Ampatuan, A.M. No. 10-11-5-SC, October 23, 2012)
realize that Almeda was not under the
jurisdiction of the OSP or the Sandiganbayan. RIGHT AGAINST SELF-INCRIMINATION
Almeda then prays for the dismissal of the case
against her, claiming that there was a violation Basis
of her right to speedy trial. Is she correct?
No person shall be compelled to be a witness
A: YES. The right includes within its against himself. (1987 Constitution,Sec. 17, Art. III)
contemplation the periods before, during and after (1990, 1992, 1998, 2006 Bar)
trial, such as preliminary investigations and fact-
finding investigations conducted by the Office of This constitutional privilege has been defined as a
the Ombudsman. Further, this right applies to all protection against testimonial compulsion, but
cases pending before all judicial, quasi-judicial or this has since been extended to any evidence
administrative bodies and not limited to the “communicative in nature” acquired under
accused in criminal proceedings but extends to all circumstances of duress. (People v. Olvis, G.R. No.
parties in all cases, be it civil or administrative in 71092, September 30, 1987)
nature. [Almeda v. Office of the Ombudsman
(Mindanao), G.R. No. 204267, July 25, 2016] NOTE: What is prohibited is the use of physical or
moral compulsion to extort communication from
Right to public trial the witness or to otherwise elicit evidence which
would not exist were it not for the actions
GR: compelled from the witness–NOT the inclusion of
1. Trial must be public in order to prevent his body in evidence when it may be material. For
possible abuses which may be committed instance, substance emitted from the body of the
against the accused; and accused may be received as evidence in
2. The attendance at the trial is open to all, prosecution for acts of lasciviousness. (US v. Tan
irrespective of their relationship to the Teng, 23 Phil. 145, September 7, 1912).And
accused. morphine forced out of the mouth of the accused
may also be used as evidence against him(US v.
XPN: If the evidence to be adduced is “offensive to Ong Siu Hong, 36 Phil. 735, August 3, 1917)
decency or public morals,” the public may be
excluded. (Sec. 21, Rule 119 of the Rules of Consequently, although accused-appellant insists
Criminal Procedure) that hair samples was forcibly taken from him and
submitted to the NBI for forensic examination, the
Public trial is not synonymous with publicized hair samples may be admitted in evidence against
trial him, for what is proscribed is the use of
testimonial compulsion or any evidence
The right to a public trial belongs to the accused. communicative of the nature acquired from the
The requirement of a public trial is satisfied by the accused under duress. (People v. Rondero, 320
opportunity of the members of the public and the SCRA 333, 399-401, December. 9, 1999)
press to attend the trial and to report what they
have observed. The accused’s right to a public trial The right is available in:
should not be confused with the freedom of the

2019 GOLDEN NOTE S
Bill of Rights
1. Criminal cases;
2. Civil cases; ACCUSED ORDINARY WITNESS
3. Administrative cases; Can refuse to take the Cannot refuse to take
4. Impeachment; witness stand the witness stand; can
5. Other legislative investigations that altogether by only refuse to answer
possess a criminal or penal aspect. invoking the right specific questions
against self- which would
NOTE: It does not apply to private investigations incrimination. incriminate him in the
done by private individual (BPI v. CASA, commission of an
GR.No.149454, May 28, 2004). When the privilege offense.
against self-incrimination is violated outside of
court, say, by the police, then the testimony, as NOTE: For, in reality, the purpose of calling an
already noted, is not admissible under the accused as a witness for the People would be to
exclusionary rule. When the privilege is violated incriminate him. The rule positively intends to
by the court itself, that is, by the judge, the court is avoid and prohibit the certainly inhuman
ousted of its jurisdiction, all its proceedings are procedure of compelling a person “to furnish the
null and void, and it is as if no judgment has been missing evidence necessary for his conviction”.
rendered (Chavez v. CA, G.R. No. L-29169, August (Chavez v. CA, G.R. L-29169, August 19, 1968)
19, 1968). (Note: heading of the note says private
individuals but enumerated public authority RIGHT AGAINST DOUBLE JEOPARDY
instead)
No person shall be twice put in jeopardy of
NOTE: This right may be invoked not only in punishment for the same offense. If an act is
criminal cases, but even in administrative punished by a law and an ordinance, conviction or
proceedings that partake of a criminal nature acquittal under either shall constitute a bar to
(Secretary of Justice v. Lantion, 322 SCRA 160, another prosecution for the same act.
January 18, 2000).This may even be invoked
during inquiries in aid of legislation in the Two kinds of double jeopardy
Congress, and even in impeachment proceedings.
(Bengzon v. Senate Blue Ribbon Committee, 203 1. Double jeopardy for the same offense; (1st
SCRA 767, November 20, 1991) sentence, Sec. 21 of Art. III); and
2. Double jeopardy for the same act. (2nd
Incriminating question sentence, Sec. 21 of Art. III); (People v. Quijada,
259 SCRA 191, July 24, 1995)
A question tends to incriminate when the answer
of the accused or the witness would establish a fact Requisites
which would be a necessary link in a chain of
evidence to prove the commission of a crime by Legal jeopardy attaches only upon:
the accused or the witness.
1. Valid complaint or information;
NOTE: The privilege against self-incrimination is 2. Filed before a competent court;
not self-executing or automatically operational. It 3. The arraignment of the accused;
must be claimed. It follows that the right may be 4. To which he had pleaded; and
waived, expressly, or impliedly, as by a failure to 5. Defendant was previously acquitted or
claim it at the appropriate time. convicted, or the case dismissed or otherwise
terminated without his express consent.
The privilege against self-incrimination can be (Saldariega v. Panganiban, G.R. Nos. 211933 &
claimed only when the specific question, 211960, April 15, 2015)
incriminatory in character, is actually addressed
to the witness. It cannot be claimed at any other NOTE: Consent of the accused to the dismissal
time. It does not give a witness the right to cannot be implied or presumed; it must be
disregard a subpoena, to decline to appear before expressed as to have no doubt as to the accused’s
the court at the time appointed. (Rosete v. Lim, G.R. conformity. (Caes v. IAC, 179 SCRA 54, November 6,
No. 136051, June 8, 2006) 1989)
Right against self-incrimination of an accused To substantiate a claim of double jeopardy, the

vs. Right against self-incrimination of a witness following must be proven:
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POLITICAL LAW
because doing so would amount to re-
1. A first jeopardy must have attached prior to prosecution or revival of the charge against
the second; her despite her acquittal, and would thereby
2. The first jeopardy must have been validly violate the constitutional prescription against
terminated; and double jeopardy. Is the contention of GMA
3. The second jeopardy must be for the same tenable?
offense or the second offense includes or is
necessarily included in the offense charged in A: YES. The general rule is that the grant of a
the first information, or is an attempt to demurrer to evidence operates as an acquittal and
commit the same or is a frustration thereof. is, thus, final and unappealable. The demurrer to
evidence in criminal cases, such as the one at bar,
Rationale is ''filed after the prosecution had rested its case,"
and when the same is granted, it calls "for an
To reconsider a judgment of acquittal places the appreciation of the evidence adduced by the
accused twice in jeopardy for being punished for prosecution and its sufficiency to warrant
the crime of which he has already been absolved. conviction beyond reasonable doubt, resulting in a
There is reason for this provision of the dismissal of the case on the merits, tantamount to
Constitution. In criminal cases, the full power of an acquittal of the accused." Such dismissal of a
the State is ranged against the accused. If there is criminal case by the grant of demurrer to evidence
no limit to attempts to prosecute the accused for may not be appealed, for to do so would be to place
the same offense after he has been acquitted, the the accused in double jeopardy. The verdict being
infinite power and capacity of the State for a one of acquittal, the case ends there. (Macapagal-
sustained and repeated litigation would Arroyo v. People of the Philippines, G.R. No. 220598,
eventually overwhelm the accused in terms of April 18, 2017)
resources, stamina, and the will to fight. (Lejano v.
People, G.R. Nos. 176389 and 176864, December 14, Related protections provided by the right
2010) against double jeopardy
Grant of demurrer to evidence operates as an 1. Against a second prosecution for the same
acquittal offense after acquittal;
2. Against a second prosecution for the same
The general rule that the grant of a demurrer to offense after conviction; and
evidence operates as an acquittal and is, thus, final 3. Against multiple punishments for the same
and unappealable, to wit: offense.
The demurrer to evidence in criminal cases, such Exceptions to the right against double
as the one at bar, is "filed after the prosecution had jeopardy
rested its case," and when the same is granted, it 1. When the trial court acted with grave abuse of
calls "for an appreciation of the evidence adduced discretion amounting to lack or excess of
by the prosecution and its sufficiency to warrant jurisdiction; (Bangayan, Jr. v. Bangayan, G.R.
conviction beyond reasonable doubt, resulting in No. 172777, and De Asis Delfin v. Bangayan, G.R.
a dismissal of the case on the merits, tantamount to No. 172792, October 19, 2011)
an acquittal of the accused." Such dismissal of a 2. The accused was not acquitted nor was there
criminal case by the grant of demurrer to evidence a valid and legal dismissal or termination of
may not be appealed, for to do so would be to place the case;
the accused in double jeopardy. The verdict being 3. Dismissal of the case was during the
one of acquittal, the case ends there. preliminary investigation;
4. It does not apply to administrative cases; and
Q: Former President Gloria Macapagal-Arroyo 5. Dismissal or termination of the case was with
(GMA) filed a demurrer to evidence as a the express consent of the accused.
defense in the criminal case filed against her.
The Supreme Court granted the said petition. NOTE: When the dismissal is made at the
The Office of the Ombudsman moved for the instance of the accused, there is no double
reconsideration of the decision. As a defense, jeopardy. (People v. Quijada, 160 SCRA 516, July
GMA contends that the decision has effectively 24, 1996)
barred the consideration and granting of the
motion for reconsideration of the State

2019 GOLDEN NOTE S
Bill of Rights
GR: Double jeopardy is not available when the crime but is one already punished under the Art.
case is dismissed other than on the merits or 353. Sec. 4(c)(4) merely establishes the computer
other than by acquittal or conviction upon system as another means of publication. Charging
motion of the accused personally, or through the offender under both laws would be a blatant
counsel, since such dismissal is regarded as violation of the proscription against double
with express consent of the accused, who is jeopardy. (Disini v. Secretary of Justice, G.R. No.
therefore deemed to have waived the right to 203335, February 11, 2014)
plea double jeopardy.
Q: Jet was convicted for Reckless Imprudence
XPNs: Resulting in Slight Physical Injuries. Can he
1. Dismissal based on insufficiency of still be prosecuted for Reckless Imprudence
evidence; (Saldariega v. Panganiban, G.R. Resulting in Homicide and Damage to Property
Nos. 211933 & 211960, April 15, 2015) arising from the same incident?
2. Dismissal because of denial of accused’s
right to speedy trial; and (Ibid.) A: NO. The doctrine that reckless imprudence
3. Accused is discharged to be a State under Art. 365 is a single quasi-offense by itself
witness. and not merely a means to commit other crimes
such that conviction or acquittal of such quasi-
6. When the case was provisionally dismissed; offense bars subsequent prosecution for the same
7. The graver offense developed due to quasi-offense, regardless of its various resulting
supervening facts arising from the same act or acts. Reason and precedent both coincide in that
omission constituting the former charge; once convicted or acquitted of a specific act of
reckless imprudence, the accused may not be
NOTE: Doctrine of Supervening Event - The prosecuted again for that same act. For the essence
accused may still be prosecuted for another of the quasi-offense of criminal negligence under
offense if a subsequent development changes Art. 365 of the Revised Penal Code lies in the
the character of the first indictment under execution of an imprudent or negligent act that, if
which he may have already been charged or intentionally done, would be punishable as a
convicted. felony. The law penalizes thus the negligent or
careless act, not the result thereof. The gravity of
8. The facts constituting the graver charge the consequence is only taken into account to
became known or were discovered only after determine the penalty, it does not qualify the
a plea was entered in the former complaint or substance of the offense. And, as the careless act is
information; single, whether the injurious result should affect
9. The plea of guilty to a lesser offense was made one person or several persons, the offense
without the consent of the prosecutor and of (criminal negligence) remains one and the same,
the offended party except as otherwise and cannot be split into different crimes and
provided in Sec. 1(f) of Rule 116. prosecutions. (Jason Ivler y Aguilar v. Hon.
Modesto-San Pedro, G.R. No. 172716, November 17,
Q: Hans, a writer in Q Magazine, published an 2010)
article about Carlo’s illicit affairs with other
women. The magazine also happened to have a A valid information is required in order for the
website where the same article was published. first jeopardy to attach
Carlo then filed a libel case against Hans both
under the Revised Penal Code and the When accused policemen entered their pleas of
Cybercrime Law. Is there a violation of the not guilty, and later arraigned anew by reason of
proscription against double jeopardy? amendment of information, and consequently
convicted, they were not placed in double
A: YES. There should be no question that if the jeopardy. The first requirement for jeopardy to
published material on print, said to be libelous, is attach – that the information was valid – has not
again posted online or vice versa, that identical been complied with. (Herrera v. Sandiganbayan,
material cannot be the subject of two separate G.R. Nos. 119660-61, February 13, 2009)
libels. The two offenses, one, a violation of Art. 353
of the Revised Penal Code and the other a violation NOTE: When the first case was dismissed due to
of Sec. 4(c)(4) of R.A. 10175 involve essentially the insufficiency of evidence without giving the
same elements and are in fact one and the same prosecution the opportunity to present its
offense. Online libel under Sec. 4(c)(4) is not a new
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POLITICAL LAW
evidence, jeopardy has not yet attached. (People v. The appeal of an accused operates as a waiver
Dumlao, G.R. No. 168918, March 2, 2009) of his right against double jeopardy
Q: After a long and protracted trial, the accused When an accused appeals from the sentence of the
involved in the murder of then Senator Aquino trial court, he waives the constitutional safeguard
were acquitted by the Sandiganbayan. After against double jeopardy and throws the whole
the EDSA People Power Revolution, a case open to the review of the appellate court,
commission appointed by President Aquino which is then called upon to render such judgment
recommended the re-opening of the Galman- as law and justice dictate, whether favorable or
Aquino murder case after finding out that the unfavorable to the appellant." In other words,
then authoritarian president Marcos ordered when appellant appealed the RTC’s judgment of
the Tanodbayan and Sandiganabyan to rig the conviction for murder, he is deemed to have
trial. Marcos repudiated the findings of the abandoned his right to invoke the prohibition on
very Fact Finding Board that he himself double jeopardy since it became the duty of the
appointed to investigate the assassination of appellate court to correct errors as may be found
Ninoy Aquino; he totally disregarded the in the appealed judgment. Thus, appellant could
Board's majority and minority findings of fact not have been placed twice in jeopardy when the
and publicly insisted that the military's "fall CA modified the ruling of the RTC by finding him
guy" Rolando Galman was the killer of Ninoy guilty of robbery with homicide as charged in the
Aquino; the Sandiganbayan's decision in effect Information instead of murder. (People v. Torres,
convicted Rolando Galman as Ninoy's assassin G.R. No. 189850, September 22, 2014)
notwithstanding that he was not on trial but
the victim,and granted all 26 accused total INVOLUNTARY SERVITUDE
absolution notwithstanding the Fact Finding
Board declaring the soldiers' version of Involuntary servitude
Galman being Aquino's killer a perjured story.
Will the rule on double jeopardy apply? It is the condition where one is compelled by force,
coercion, or imprisonment, and against his will, to
A: NO. There was no double jeopardy. It is a settled labor for another, whether he is paid or not.
doctrine that double jeopardy cannot be invoked
against this Court's setting aside of the trial courts' GR: No involuntary servitude shall exist. (1993
judgment of dismissal or acquittal where the Bar)
prosecution which represents the sovereign
people in criminal cases is denied due process.The XPNs: (P-S-E-C-O-M)
proceedings that took place before was a sham and
a mock trial which resulted in the denial of the 1. Punishment for a crime for which the party
State’s right to due process. (Galman v. has been duly convicted;
Sandiganbayan, G.R. No. 72670, September 12, 2. Personal military or civil service in the
1986) interest of national defense;
3. In naval enlistment, a person who enlists in a
Effect of order of a court which lacks merchant ship may be compelled to remain in
jurisdiction service until the end of a voyage;
4. Posse comitatus or the conscription of able-
Since the MTC did not have jurisdiction to take bodied men for the apprehension of criminals;
cognizance of the case pending this Court's review 5. Return to work order issued by the DOLE
of the RTC Order, its order of dismissal was a total Secretary or the President;
nullity and did not produce any legal effect. Thus, 6. Minors under patria potestas are obliged to
the dismissal neither terminated the action on the obey their parents.
merits, nor amounted to an acquittal. The same
can be said of the Order of Revival. Since both RIGHTS AGAINST EXCESSIVE FINES AND
orders cannot be the source of any right nor create CRUEL AND INHUMAN PUNISHMENTS
any obligation, the dismissal and the subsequent
reinstatement of Criminal Case No. 89724 did not It has long been held that the prohibition of cruel
effectively place the petitioners in double and unusual punishments is generally aimed at the
jeopardy. (Quiambao v. People, G.R. No. 185267, form or character of the punishment rather than
September 17, 2014) its severity in respect of duration or amount, and
applies to punishments which public sentiment

2019 GOLDEN NOTE S
Bill of Rights
has regarded as cruel or obsolete, for instance, A specific sum levied upon any person belonging
those inflicted at the whipping post, or in the to a certain class without regard to property or
pillory, burning at the stake, breaking on the occupation (e.g. community tax).
wheel, disemboweling, and the like. Fine and
imprisonment would not thus be within the NOTE: A tax is not a debt since it is an obligation
prohibition. It takes more than merely being arising from law. Hence, its non-payment maybe
harsh, excessive, out of proportion, or severe for a validly punished with imprisonment. Only poll tax
penalty to be obnoxious to the Constitution. is covered by the constitutional provision.
NOTE: The fact that the punishment authorized by If an accused fails to pay the fines imposed upon
the statute is severe does not make it cruel and him, this may result in his subsidiary
unusual. (Corpuz v. People, G.R. No. 180016, April imprisonment because his liability is ex delicto and
29, 2014) not ex contractu.
NOTE: Mere extinguishment of life alone does not Generally, a debtor cannot be imprisoned for
constitute cruel, degrading, inhuman punishment. failure to pay his debt. However, if he contracted
To be such, it must involve prolonged agony and his debt through fraud, he can be validly punished
suffering; it refers more to the nature of the in a criminal action as his responsibility arises not
punishment to be inflicted upon a convict, that from the contract of loan but from commission of
which is shocking to the conscience of mankind a crime. (Lozano v. Martinez, G.R. No. L-63419,
under contemporary standards. (Leo Echegaray v. December 18, 1986)
Secretary of Justice, G.R. No. 132601, October 12,
1998) EX POST FACTO LAW AND
BILL OF ATTAINDER
Cruel and Inhuman penalty
An ex post facto law is any law that makes an
A penalty is cruel and inhuman if it involves action, done before the passage of the law, and
torture or lingering suffering (e.g. being drawn which was innocent when done, criminal, and
and quartered). punishes such action. (United State v. Vicente Diaz
Conde and Apolinaria R. De Conde, G.R. No. L-18208,
Degrading penalty February 14, 1922) (1990 Bar)
A penalty is degrading if it exposes a person to Kinds of ex post facto law

public humiliation (e.g. being tarred and
feathered, then paraded throughout town). It can be a law that:
1. Makes an act, which was innocent when
NOTE: The power to re-impose the death penalty done, criminal and punishes such action;
for certain heinous crimes is vested in the 2. Aggravates a crime or makes it greater
Congress; not in the President. After all, the power than when it was committed;
to define crimes and impose penalties is legislative 3. Changes the punishment and inflicts a
in nature. greater punishment than the law annexed
to the crime when it was committed;
NON-IMPRISONMENT FOR DEBTS 4. Alters the legal rules of evidence and
receives less or different testimony than
Basis the law required at the time of the
commission of the offense in order to
No person shall be imprisoned for debt or non- convict the defendant;
payment of a poll tax. (1987 Constitution, Sec. 20, 5. Assumes to regulate civil rights and
Art. III) (1993, 1997, 2000, 2002 Bar) remedies only. In effect imposes penalty
or deprivation of a right for something
Debt which when done was lawful; and
6. Deprives a person accused of a crime of
It is any civil obligation arising from contract. some lawful protection to which he has
become entitled, such as the protection of
Poll tax a former conviction or acquittal, or a
proclamation of amnesty. (Nuñez v.
161
POLITICAL LAW
Sandiganbayan and People, G.R. Nos. L- for alleged offenses committed, they become
50581-50617, January 30, 1982) ex-post facto laws which are proscribed by the
Constitution. The Committee filed a Motion for
Characteristics of ex post facto law Reconsideration, but the Ombudsman denied
it on July 27, 1998.
The ex post facto law must:
1. Refer to criminal matters; Are Administrative Order No. 13 and
2. Be retroactive in its application; and Memorandum Order No. 61 ex-post facto laws?
3. To the prejudice of the accused.
A: NO. The constitutional doctrine that outlaws an
Q: On Oct. 8, 1992 President Ramos issued A.O. ex post facto law generally prohibits the
No. 13 creating the Presidential AdHoc Fact- retrospectivity of penal laws. Penal laws are those
Finding Committee on Behest Loans. The acts of the legislature which prohibit certain acts
Committee was tasked to inventory all behest and establish penalties for their violations; or
loans and determine the courses of action that those that define crimes, treat of their nature, and
the government should take to recover these provide for their punishment. The subject
loans. administrative and memorandum orders clearly
do not come within the shadow of this definition.
By Memorandum Order No. 61 dated Nov. 9, Administrative Order No. 13 creates the
1992, the functions of the Committee were Presidential Ad Hoc Fact-Finding Committee on
expanded to include all non-performing loans Behest Loans, and provides for its composition
which shall embrace behest and non-behest and functions. It does not mete out penalty for the
loans. Said Memorandum also named criteria act of granting behest loans. Memorandum Order
to be utilized as a frame of reference in No. 61 merely provides a frame of reference for
determining a behest loan. determining behest loans. Not being penal laws,
Administrative Order No. 13 and Memorandum
Several loan accounts were referred to the Order No. 61 cannot be characterized as ex post
Committee for investigation, including the loan facto laws. There is, therefore, no basis for the
transactions between PEMI and the DBP. Ombudsman to rule that the subject
administrative and memorandum orders are ex
Consequently, Atty. Salvador, Consultant of the post facto. (Salvador v. Mapa, Jr.,G.R. No. 135080,
Fact-Finding Committee, and representing the November 28, 2007)
PCGG, filed with the Ombudsman a sworn
complaint for violation of Sections 3(e) and (g) Bill of attainder
of R.A. No. 3019 against the respondents Mapa,
Jr. et. al. The Ombudsman dismissed the It is a legislative act that inflicts punishment
complaint on the ground of prescription. without trial, its essence being the substitution of
legislative fiat for a judicial determination of guilt.
According to the Ombudsman, the loans were (People v. Ferrer, G.R. Nos. L-32613-14, December
entered into by virtue of public documents 27, 1972)
during the period of 1978 to 1981.Records
show that the complaint was referred and filed NOTE: It is only when a statute applies either to
with the Ombudsman on Oct. 4, 1996 or after named individuals or easily ascertainable
the lapse of more than fifteen years from the members of a group in such a way as to inflict
violation of the law. Therefore, the offenses punishment on them without a judicial trial that it
charged had already prescribed. becomes a bill of attainder.
The Presidential Ad Hoc Committee on Behest Two kinds of bill of attainder

Loans was created on Oct. 8, 1992 under
Administrative Order No. 13. Subsequently, 1. Bill of attainder proper (legislative imposition
Memorandum Order No. 61, dated Nov. 9, of the death penalty); and
1992, was issued defining the criteria to be 2. Bill of pains and penalties (imposition of a
utilized as a frame of reference in determining lesser penalty.
behest loans.
WRITS OF HABEAS CORPUS, KALIKASAN,
Accordingly, if these Orders are to be HABEAS DATA, and AMPARO
considered the bases of charging respondents

2019 GOLDEN NOTE S
Bill of Rights
WRIT OF HABEAS CORPUS The writ applies only to persons judicially charged
for rebellion or offenses inherent in or directly
It is an order from the court commanding a connected with invasion and anyone arrested or
detaining officer to inform the court: detained during suspension must be charged
within 3 days. Otherwise, he should be released.
1. If he has the person in custody; and
2. State his basis in detaining that person. WRIT OF KALIKASAN
Privilege of the writ This writ is a remedy available to any person

whose constitutional right to a balanced and
It is that portion of the writ requiring the detaining healthful ecology is violated, or threatened with
officer to show cause why he should not be tested. violation by an unlawful act or omission of a public
It is the privilege that is suspended, not the writ official or employee, or private individual or
itself. The duration of the suspension shall not entity, involving environmental damage of such
exceed 60 days unless extended by the Congress. magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or
When available provinces. (Rule 7, Rules of Procedure for
Environmental Cases)
For a person deprived of liberty due to mistaken
identity. In such cases, the person is not under any Where to file the petition
lawful process and is continuously being illegally
detained (In the Matter of the Petition for Habeas a. The Supreme Court; or
Corpus of Datukan Malang Salibo, Ibid.). b. Any station of the Court of Appeals.
It may be availed of as a post-conviction remedy or NOTE: The rationale for this is that the jurisdiction
when there is an alleged violation of the liberty of of both tribunals is national in scope which
abode (Ibid.). corresponds with the magnitude of the
environmental damage contemplated by the
It may not be used as a means of obtaining Rules.
evidence on the whereabouts of a person, or as a
means of finding out who has specifically abducted Procedure for the issuance of a writ of
or caused the disappearance of a certain person. kalikasan
When forcible taking and disappearance–not
arrest and detention–have been alleged, the The petitioner shall file his application for a Writ
proper remedy is not habeas corpus proceedings, of Kalikasan with the proper tribunal as specified
but criminal investigation and proceedings. in the preceding paragraph. The filing of a petition
Habeas corpus generally applies to all cases of for the writ does not preclude the filing of separate
illegal confinement or detention by which any civil, criminal, or administrative actions.
person is deprived of his liberty or by which the
rightful custody of any person is withheld from the Nature of the Writ of Kalikasan
person entitled thereto (Martinez v. Mendoza, G.R.
No. 153795, August 17, 2006). The Writ of Kalikasan is an extraordinary remedy
which may be issued depending on the magnitude
If the detainee’s incarceration is by virtue of a of the environmental damage. The environmental
judicial order in relation to criminal cases damage must be one which prejudices the life,
subsequently filed against them, the remedy of health, or property of inhabitants in two or more
habeas corpus no longer lies (Ilagan v. Enrile, G.R. cities or provinces, or that which transcends
No. 70748, October 21, 1985). political and territorial boundaries.
Requisites for the valid suspension of the It is also a remedy which enforces the right to
privilege of the writ of habeas corpus information by compelling the government or a
private entity to produce information regarding
1. There must be an actual invasion, the environment that is within their custody.
insurrection or rebellion; and
2. Public safety requires the suspension. Persons who may file a petition for a writ of
kalikasan
163
POLITICAL LAW
The Writ of Kalikasan may be availed of by any of life, liberty, or security on the other. As the rules
the following: and existing jurisprudence on the matter evoke,
alleging and eventually proving the nexus between
a. Natural or juridical persons; one’s privacy right to the cogent rights to life,
b. Entities authorized by law; or liberty or security are crucial in habeas data cases,
c. People’s organizations, non-governmental so much so that a failure on either account
organizations, or any public interest group certainly renders a habeas data petition
accredited by or registered with any dismissible. In this case, Ilagan was not able to
government agency. sufficiently allege that his right to life, liberty or
security was or would be violated through the
WRIT OF HABEAS DATA supposed reproduction and threatened
dissemination of the subject sex video. (Dr. Lee vs.
The writ of habeas data is a remedy available to Psupt. Ilagan, GR No. 203254, October 8, 2014, J.
any person whose right to privacy in life, liberty or PERLAS-BERNABE)
security is violated or threatened by an unlawful
act or omission of a public official or employee, or Reliefs available in the petition for issuance of
of a private individual or entity engaged in the writ of habeas data
gathering, collecting or storing of data or
information regarding the person, family, home 1. Updating, rectification, suppression, or
and correspondence of the aggrieved party. (Sec. 1, destruction of the database or information or
Rule on the Writ of Habeas Data) files kept by the respondent;
2. In case of threats of the unlawful act, the relief
Any aggrieved party may file a petition for the writ may include a prayer for an order enjoining
of habeas data. However, in cases of extralegal the act complained of; and
killings and enforced disappearances, the petition 3. A general prayer for other reliefs that are just
may be filed by: and equitable under the circumstances is also
allowed.
1. Any member of the immediate family of
the aggrieved party, namely: the spouse, When Writ of Habeas Data is not applicable
children and parents; or
2. Any ascendant, descendant or collateral A writ of habeas data may not be issued to protect
relative of the aggrieved party within the purely property and commercial concerns nor
fourth civil degree of consanguinity or when the grounds invoked in support of the
affinity, in default of those mentioned in petitions therefore are vague or doubtful.
the preceding paragraph.
NOTE: It bears reiteration that like the writ of
Q: Neri Ilagan and Joy Lee are common law amparo, habeas data was conceived as a response,
partners. Lee confronted Ilagan regarding a given the lack of effective and available remedies,
purported sex video she discovered from a to address the extraordinary rise in the number of
camera involving Ilagan and another woman. killings and enforced disappearances. Its intent is
Ilagan denied the video and demanded Lee to to address violations of or threats to the rights to
return the camera, but to no avail. During their life, liberty or security as a remedy independently
confrontation, Ilagan allegedly slammed Lee’s from those provided under prevailing rules.
head against a wall inside his office and walked (Manila Electric Company v. Lim, GR. No. 184769,
away. This prompted Lee to utilize said video October 5, 2010)
as evidence in filing various complaints against
Ilagan. Ilagan claimed that such reproduction Who May File a petition for the writ of habeas
of the subject video violated his and the data
woman’s right to life, liberty, security, and
privacy. Hence the lower court issued a Writ of Any person whose right to privacy in life, liberty or
Habeas Data in favor of Ilagan. Is the lower security is violated or threatened by an unlawful
court correct in extending the privilege of the act or omission of a public official or employee, or
Writ of Habeas Data to Ilagan? of a private individual or entity engaged in the
gathering, collecting or storing of data or
A: NO. A Petition for a Writ of Habeas Data must information regarding the person, family, home
adequately show that there exists a nexus between and correspondence of the aggrieved party. (The
the right to privacy on one hand, and the right to

2019 GOLDEN NOTE S
Bill of Rights
Rule on the Writ of Habeas Data, A. M. No. 08-1-16- Cement Corporation v. Mingson Mining Industries
SC, Sec. 1, January 22, 2008) Corporation, G.R. No206728, November 12, 2014)
However, in cases of extralegal killings and WRIT OF AMPARO

enforced disappearances, the petition may be
filed by: It is a remedy available to any person whose right
to life, liberty and security is violated or
a. Any member of the immediate family threatened with violation by an unlawful act or
of the aggrieved party, namely: the omission of a public official or employee, or of a
spouse, children and parents; or private individual or entity. The writ shall cover
b. Any ascendant, descendant or extralegal killings and enforced disappearances or
collateral relative of the aggrieved threats thereof. Its constitutional basis is found on
party within the fourth civil degree of Art. VIII, Sec. 5 of the Constitution which states
consanguinity or affinity, in default of that “The Supreme Court shall have the following
those mentioned in the preceding powers: xxx (5) Promulgate rules concerning the
paragraph. (The Rule on the Writ of protection and enforcement of constitutional
Habeas Data, A. M. No. 08-1-16-SC,Sec. rights, xxx. Such rules shall provide a simplified
2, January 22, 2008) and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts
Q: The Municipal Appraisal Board (MAB) of of the same grade, and shall not diminish, increase,
Kawit Cavite issued a Resolution decreasing or modify substantive rights. xxx
the assessed fair market value of the subject
lands from P700.00 per sq. m to P500.00 per Petition for Writ of Amparo may be filed at any
sq. m. Thereafter, a parcel of lot was auctioned justice of courts of the place where the threat, act
at P500 per sq.m., which was awarded to FJI or omission was committed or any of its elements
Property Developers, Inc. However, in the occurred.
Report of the Commission on Audit, it was
found that the proper fair market value for Applicability
said lot should have been P878.26 per sq. m.
The COA Report, as a supplement to such, Writ of Amparo does not apply to a child custody
concluded that the Municipality suffered case
undue injury when it was deprived of income.
Hence, a Complaint was filed against the When what is involved is the issue of child custody
members of the MAB. The Office of and the exercise of parental rights over a child,
Ombudsman Luzon finds that members of the who, for all intents and purposes, has been legally
MAB are guilty of Grave Misconduct. Are the considered a ward of the State, the Amparo rule
members of the MAB administratively liable cannot be properly applied. To reiterate, the
for Grave Misconduct? privilege of the writ of amparo is a remedy
available to victims of extra-judicial killings and
A: No. There is no substantial evidence to hold enforced disappearances or threats of a similar
respondents administratively liable for Grave nature, regardless of whether the perpetrator of
Misconduct. Substantial evidence is such relevant the unlawful act or omission is a public official or
evidence as a reasonable mind may accept as employee or a private individual. It is envisioned
adequate to support a conclusion. In cases before basically to protect and guarantee the right to life,
the Office of the Ombudsman, jurisprudence liberty and security of persons, free from fears and
instructs that “the fundamental rule in threats that vitiate the quality of life. (Yusay v.
administrative proceedings is that the Segui, G.R. No. 193652, August 5, 2014)
complainant has the burden of proving, by
substantial evidence, the allegations in his Writ of Amparo does not cover the Constitutional
complaint. In this case, records are bereft of any right to travel. (Reyes v. Gonzales, G.R. No. 182161,
showing that respondents December 3, 2009)
wrongfully intended to transgress some Applicable even though petitioners already

established and definite rule of action. The escaped detention
passage of MAB-Resolution was merely done, so
that lands within the municipality which have the In case were the victims of abduction were able to
same attributes will be assessed uniformly. (Apo escape, it should be stressed that they are now free
165
POLITICAL LAW
from captivity not because they were released by definition of an enforced or involuntary
virtue of a lawful order or voluntarily freed by disappearance. Indeed, Ku was arrested by agents
their abductors. Understandably, since their of the BI, but there was no refusal on the part of
escape, they have been under concealment and the BI to acknowledge such arrest nor was there
protection by private citizens because of the threat any refusal to give information on the
to their life, liberty, and security. The threat whereabouts of Ku. Neither can it be said that the
vitiates their free will as they are forced to limit BI had any intention to remove Ku from the
their movements or activities. Precisely because protection of the law for a prolonged time. (Mison
they are being shielded from the perpetrators of v. Gallegos, G.R. No. 210759, June 23, 2015)
their abduction, they cannot be expected to show The petition may be filed by the aggrieved party or
evidence of overt acts of threat such as face-to-face by any qualified person or entity in the following
intimidation or written threats to their life, liberty order:
and security. Nonetheless, the circumstances of
their abduction, detention, torture, and escape 1. Any member of the immediate family,
reasonably support a conclusion that there is an namely: the spouse, children and parents
apparent threat that they will again be abducted, of the aggrieved party;
tortured, and this time, even executed. These 2. Any ascendant, descendant or collateral
constitute threats to their liberty, security, and life, relative of the aggrieved party within the
actionable through a petition for a Writ of Amparo. fourth civil degree of consanguinity or
(Sec. of National Defense and AFP Chief of Staff v. affinity, in default of those mentioned in
Manalo, G.R. No. 180906, October 7, 2008) the preceding paragraph; or
3. Any concerned citizen, organization,
Extralegal killings association or institution, if there is no
known member of the immediate family
These pertain to killings committed without due or relative of the aggrieved party.
process of law, i.e., without legal safeguards or
judicial proceedings. Q: Petitioners (Atty. Ladaga, Atty. Librado-
Trinidad and Atty. Zarate) share the common
Enforced disappearance circumstance of having their names included
in the Order of Battle List (OB List) which is
Arrest, detention, abduction or any other form of alleged to be containing the names of
deprivation of liberty committed by agents of the organizations and personalities in Davao City
State or by persons or groups of persons acting connected to the Communist Party of the
with the authorization, support or acquiescence of Philippines (CPP) and its military arm, the New
the State, followed by a refusal to acknowledge the People’s Army (NPA). They perceive that by the
deprivation of liberty or by concealment of the fate inclusion of their names in the said list, they
or whereabouts of the disappeared person, which become easy targets of unexplained
places such person outside the protection of the disappearances or extralegal killings a real
law. [R.A. 10353, Sec. 3(b)] threat to their life, liberty and security.
Petitioners attested to the threatening visits
As clarified in Navia, with the enactment of R.A. No. and tailing of their vehicles by menacing
9851 [now R.A. No. 10353], the Amparo Rule is strangers. Also, they alleged that the OB List is
now a procedural law anchored, not only on the really a military hit-list as there have already
constitutional rights to life, liberty and security, been three (3) victims (Celso Pojas, Lodenio
but on a concrete statutory definition as well of Monzon and Dr. Rogelio Peñera) of
what an ‘enforced or involuntary disappearance’ extrajudicial killing whose violent deaths can
is. Therefore, A.M. No. 07-9-12-SC’s reference to be linked directly to the OB List. Thus, the
enforced disappearances should be construed to petitioners separately filed before the RTC a
mean the enforced or involuntary disappearance Petition for the Issuance of a Writ of Amparo.
of persons contemplated in Section 3(g) of R.A. No. Does the totality of evidence satisfy the degree
9851 [now Sec. 3(b), R.A. 10353]. Meaning, in of proof required under the Amparo Rule?
probing enforced disappearance cases, courts
should read A.M. No. 07-9-12-SC in relation to R.A. A: NO. The Writ of Amparo was promulgated by
No. 9851[should now be read as R.A. No. 10353]. the Court pursuant to its rule-making powers in
Guided by the parameters of R.A. No. 9851 [now response to the alarming rise in the number of
R.A. No. 10353], we can readily discern that Ku’s cases of enforced disappearances and
circumstance does not come under the statutory extrajudicial killings. The burden of proof and

2019 GOLDEN NOTE S
Bill of Rights
standard of diligence required of the Amparo Rule petitioners' amparo petition does not allege any
is substantial evidence or that amount of relevant case of extrajudicial killing and/or enforced
evidence which a reasonable mind might accept as disappearance, or any threats thereof, in the
adequate to support a conclusion. In this case, a senses above-described. Their petition is merely
mere inclusion of one’s name in the OB List, anchored on a broad invocation of respondents'
without more, does not suffice to discharge the purported violation of their right to life and
burden to establish actual threat to one’s right to security, carried out by private individuals
life, liberty and security by substantial evidence. without any showing of direct or indirect
The Court holds that the existence of the OB List government participation. (Spouses Rozelle
could not be directly associated with the menacing Raymond Martin and Claudine Margaret
behavior of suspicious men or the violent death of Santiago vs. Raffy Tulfo, Ben Tulfo, And Erwin
certain personalities. The adduced evidence Tulfo, G.R. No. 205039, October 21, 2015, PER J.
showed that, except for Celso Pojas, the names of PERLAS-BERNABE)
the supposed victims of extrajudicial killings are
manifestly absent in the subject OB List.
Only actual threats, as may be established from all

the facts and circumstances of the case, can qualify
as a violation that may be addressed. In this case,
no substantial evidence of an actual threat to
petitioners’ life, liberty and security has been
shown to exist. No link has been sufficiently
established to related the subject OB List either to
the threatening visits received by petitioners from
unknown men or to the violent deaths of the three
(3) mentioned personalities which could strongly
suggest that the inclusion of one’s name in the OB
List would eventually result to enforced
disappearance and murder of those persons
tagged therein as militants. (In Matter of Petition
for Issuance of a Writ Of Amparo in Favor of
Lilibeth O. Ladaga, G. R. No. 189689, November
13, 2012, PER J. PERLAS-BERNABE)
Q: After arriving at the Ninoy Aquino

International Airport, spouses Rozelle
Raymond Martin (Raymart) and Claudine
Margaret Santiago (Claudine) waited for their
baggage but they were eventually informed
that it was transferred to another flight. While
making a formal complaint, the spouses
noticed a man, later identified as Ramon Tulfo,
taking pictures of Claudine. A brawl thereafter
ensued.
Days after the incident, Raffy, Ben, and Erwin

Tulfo, brothers of Mon, aired on their TV
program comments against the spouses and
threatened to retaliate. Terrified, the spouses
filed before the RTC a petition for the issuance
of a writ of amparo against them. Will the
petition prosper?
A: NO. The Rule on the Writ of Amparo was

intended to address cases involving extralegal
killings and/or enforced disappearances, or
threats thereof. In this case, it is undisputed that
167
POLITICAL LAW
CITIZENSHIP A: There are public offices/government positions
that requires a Filipino citizen to be a natural-
Citizenship born.
It pertains to a membership in a political Government officials required to be natural-

community, which is personal and more or less born Filipino citizens
permanent in character.
1. President;
Citizenship vs. Nationality 2. Vice-President;
3. Members of Congress;
Citizenship Nationality 4. Justices of Supreme Court and lower
A term denoting It has a broader collegiate courts;
membership of a meaning, embracing 5. Ombudsman and his deputies;
citizen in a political all who owe allegiance 6. Members of Constitutional Commissions;
society, which to a state, whether 7. Members of the Central Monetary
membership implies, democratic or not, Authority;
reciprocally, a duty of without thereby 8. Members of the Commission on Human
allegiance on the part becoming citizens. Rights.
of the member and Because they owe
duty of protection on allegiance to it, they MODES OF ACQUIRING CITIZENSHIP
the part of the state are not regarded as
aliens. 1. By birth
a. Jus Sanguinis – On the basis of
WHO ARE FILIPINO CITIZENS blood relationship.
b. Jus Soli – On the basis of the
The following are citizens of the Philippines: place of birth.
(1) Those who are Filipino citizens at the time 2. By naturalization – The legal act of
of the adoption of the 1987 Constitution; adopting an alien and clothing him with
(2) Those whose fathers or mothers are the privilege of a citizen.
citizens of the Philippines; 3. By marriage – When a foreign woman
(3) Those born before January 17, 1973, of marries a Filipino husband, provided, she
Filipino mothers, who elect Philippine possesses all qualifications and none of
citizenship upon reaching the age of the disqualifications for naturalization.
majority; and
(4) Those who are naturalized in accordance LOSS AND RE-ACQUISITION OF PHILIPPINE
with law. (Art. IV, Sec. 1, 1987 CITIZENSHIP
Constitution)
Philippine citizenship may be lost or reacquired in
Caram rule the manner provided by law. (Sec. 3, Art. IV, 1987
Costitution)
Natural-Born Filipino Citizens
Loss of Philippine citizenship; Grounds
The following are natural-born Filipino citizens:
(1) Those who are citizens of the Philippines 1. Naturalization in a foreign country;
from birth without having to perform any 2. Express renunciation of citizenship
act to acquire or perfect their Philippine (expatriation); or
citizenship; 3. Subscribing to an oath of allegiance to the
(2) Those who elect Philippine citizenship in constitution or laws of a foreign country
accordance with Par. 3, Sec. 1, Art. IV of upon attaining 21 years of age; or
the 1987 Constitution shall be deemed 4. Rendering service to or accepting
natural-born citizens. commission in the armed forces of a
Q: Not all citizens of the Philippines are foreign country unless:
natural-born. What is the relevance of the a. The Philippines has a defensive
status of being a natural-born Filipino citizen? and/or offensive pact of alliance
with the said foreign country; or

2019 GOLDEN NOTE S
Citizenship
b. The said foreign country issue the certificate of identification as Filipino
maintains armed forces in the citizen to the repatriated citizen.
Philippine territory with its
consent provided that at the time RA 9225 “Citizenship Retention and Re-
of rendering said service, or acquisition Act of 2003”
acceptance of said commission,
and taking the oath of allegiance Reacquisition
incident thereto, states that he
does so only in connection with Natural-born citizens of the Philippines who have
its service to said foreign lost their Filipino citizenship due to naturalization
country. as citizens of a foreign country are deemed to have
re-acquired Philippine citizenship; and
5. Cancellation of certificate of
naturalization (Denaturalization); or Retention
6. Having been declared by final judgment a
deserter of the armed forces of the Natural-born citizens of the Philippines who, after
Philippines in times of war; or the effectivity of RA 9225, become citizens of a
7. In case of a woman, upon her marriage, to foreign country shall retain their Philippine
a foreigner if, by virtue of the laws in force citizenship. (David vs. Agbay, G.R. No. 199113,
in her husband’s country, she acquires his March 18, 2015)
nationality.
Running for Elective Posts; Oath of Allegiance
Ways to reacquire citizenship and Renunciation of Foreign Citizenship
1. Naturalization; R.A. 9225 requires Filipinos availing themselves of

2. Repatriation; and the benefits under the said Act to (1) take their
3. Direct act of Congress. oath of allegiance to the Republic of the
Philippines, but also to (2) explicitly renounce
Naturalization their foreign citizenship if they wish to run for
elective posts in the Philippines.
An act of formally adopting a foreigner into the
political body of a nation by clothing him or her The oath of allegiance is a general requirement for
with the privileges of a citizen. all those who wish to run as candidates in
Philippine elections; while the renunciation of
Repatriation foreign citizenship is an additional requisite only
for those who have retained or reacquired
The recovery of the original nationality. This Philippine citizenship under R.A. No. 9225 and
means that a naturalized Filipino who lost his who seek elective public posts, considering their
citizenship will be restored to his prior status as a special circumstance of having more than one
naturalized Filipino citizen. On the other hand, if citizenship. To qualify as a candidate in Philippine
he was originally a natural-born citizen before he elections, Filipinos must only have one citizenship,
lost his Philippine citizenship, he will be restored namely, Philippine citizenship. (Jacot vs. Dal, G.R.
to his former status as a natural-born Filipino. No. 179848, November 27, 2008) By renouncing
(Bengzon vs. HRET and Cruz, G.R. No. 142840, May foreign citizenship, one is deemed to be solely a
7, 2001) Filipino citizen, regardless of the effect of such
renunciation under the laws of the foreign
How repatriation is effected country.
Repatriation shall be effected by: Filing of a certificate of candidacy does not ipso
1. Taking the necessary oath of allegiance to facto amount to a renunciation of foreign
the Republic of the Philippines; and citizenship
2. Registration in the proper civil registry
and in the Bureau of Immigration. RA 9225 requires the twin requirements of
swearing to an Oath of Allegiance and executing a
The Bureau of Immigration shall thereupon cancel Renunciation of Foreign Citizenship. (Roseller De
the pertinent alien certificate of registration and Guzman v. COMELEC, G.R. No. 180048, June 19,
2009)
169
POLITICAL LAW
with naturalized citizens who maintain their
Effect of use of foreign passport; Maquiling allegiance to their countries of origin even after
doctrine their naturalization. Consequently, persons with
mere dual citizenship are not disqualified
Use of a foreign passport amounts to repudiation considering that their condition is the unavoidable
or recantation of the oath of renunciation. The consequence of conflicting laws of different states.
renunciation of foreign citizenship is not a hollow Unlike those with dual allegiance, who must,
oath that can simply be professed at any time, only therefore, be subject to strict process with respect
to be violated the next day. It requires an absolute to the termination of their status.
and perpetual renunciation of the foreign
citizenship and a full divestment of all civil and The fact that a person has dual citizenship does not
political rights granted by the foreign country disqualify him from running for public office.
which granted the citizenship. (Maquiling v. (Cordora v. COMELEC, G.R. No. 176947, February
COMELEC, G.R. No. 195649, April 16, 2013) 19, 2009) Candidates with dual citizenship can run
for public office provided that upon the filing of
Strict adherence to Maquiling doctrine their certificates of candidacy, they elect
Philippine citizenship to terminate their status as
Matters dealing with qualifications for public persons with dual citizenship. (Mercado vs.
elective office must be strictly complied with. the Manzano, G.R. No. 135083, May 26, 1999)
novelty of the issue is not an excuse from strictly
complying with the eligibility requirements to run FOUNDLINGS
for public office or to simply allow [a candidate] to
correct the deficiency in his qualification by Foundlings are natural-born citizens
submitting another oath of renunciation. It is with
more reason that we should similarly require As a matter of law, foundlings are as a class,
strict compliance with the qualifications to run for natural-born citizens. While the 1935
local elective office. (Arnado v. COMELEC, G.R. No. Constitution's enumeration is silent as to
210164, August 18, 2015) foundlings, there is no restrictive language which
would definitely exclude foundlings either.
DUAL CITIZENSHIP AND DUAL ALLEGIANCE Because of silence and ambiguity in the
enumeration with respect to foundlings, there is a
Dual Citizenship vs. Dual Allegiance need to examine the intent of the framers.
Dual Citizenship Dual Allegiance The deliberations of the 1934 Constitutional

It arises when, as a This refers to the Convention show that the framers intended
result of concurrent situation where a foundlings to be covered by the enumeration. Also,
application of the person the delegate to the Convention and constitution
different laws of two simultaneously owes, law author Jose Aruego said that:
or more States, a by some positive act,
person is loyalty to two or more During the debates on this provision,
simultaneously States. Delegate Rafols presented an amendment
considered a citizen of to include as Filipino citizens the
both said states. illegitimate children with a foreign father
It is allowed It is prohibited by the of a mother who was a citizen of the
considering that their Constitution because Philippines, and also foundlings; but this
condition is merely an it is inimical to the amendment was defeated primarily
unavoidable national interest. because the Convention believed that the
consequence of cases, being too few to warrant the
conflicting laws of inclusion of a provision in the
different states. Constitution to apply to them, should be
governed by statutory legislation.
Q: Is dual citizenship allowed? If yes, can Moreover, it was believed that the rules of
persons with dual citizenship run for public international law were already clear to
office? the effect that illegitimate children
followed the citizenship of the mother,
A: YES. The concern of the Constitutional and that foundlings followed the
Commission was not with dual citizens per se but nationality of the place where they were

2019 GOLDEN NOTE S
Citizenship
found, thereby making unnecessary the perfect it. (Poe-Llamanzares v. COMELEC, G.R. No.
inclusion in the Constitution of the 221697, March 8, 2016)
proposed amendment. (Poe-Llamanzares
v. COMELEC, G.R. No. 221697, March 8, Foundlings are likewise citizens under
2016) international law
Domestic laws on adoption also support the All of the international law conventions and
principle that foundlings are Filipinos instruments on the matter of nationality of
foundlings were designed to address the plight of
These laws do not provide that adoption confers a defenseless class which suffers from a
citizenship upon the adoptee. Rather, the adoptee misfortune not of their own making. We cannot be
must be a Filipino in the first place to be adopted. restrictive as to their application if we are a
Adoption deals with status, and a Philippine country which calls itself civilized and a member
adoption court will have jurisdiction only if the of the community of nations.
adoptee is a Filipino. (Poe-Llamanzares v.
COMELEC; G.R. No. 221697; March 8, 2016) The common thread of the UDHR, UNCRC and
ICCPR is to obligate the Philippines to grant
Q: Grace Poe-Llamanzares was found nationality from birth and ensure that no child is
abandoned as a newborn infant in the Parish stateless. This grant of nationality must be at the
Church of Jaro, Iloilo. Having parental care and time of birth.
custody over her, Emiliano Militar reported
and registered her as a foundling with the Universal Declaration of Human Rights (UDHR)
Office of the Civil Registrar of Iloilo City. Article 15 of the UDHR states that: “Everyone has
Consequently, a Foundling Certificate was the right to a nationality” and that “No one shall be
issued in her favor. Eventually, Grace Poe ran arbitrarily deprived of his nationality nor denied
for presidency. In her Certificate of Candidacy, the right to change his nationality.”
she declared herself as a natural-born citizen.
However, Atty. Estrella Elamparo opposed this UN Convention on the Rights of the Child (UNCRC)
because under the Constitution averring that
the process to determine that a child is a Article 7 of UNCRC imposes the obligation on our
foundling leading to the issuance of a foundling country that “The child shall be registered
certificate under these laws and the issuance of immediately after birth and shall have the right
said certificate are acts to acquire or perfect from birth to a name, the right to acquire a
Philippine citizenship which make the nationality and as far as possible, the right to know
foundling a naturalized Filipino at best. Thus, and be cared for by his or her parents” and that
Poe-Llamanzares is not a natural-born citizen “States Parties shall ensure the implementation of
since she performed an act to acquire or these rights in accordance with their national law
perfect Philippine citizenship. Is Atty. and their obligations under the relevant
Elamparo correct? international instruments in this field, in
particular where the child would otherwise be
A: NO. Under Article IV, Section 2 "Natural-born stateless.”
citizens are those who are citizens of the
Philippines from birth without having to perform International Covenant on Civil and Political Rights
any act to acquire or perfect their Philippine (ICCPR)
citizenship." In the first place, "having to perform
an act" means that the act must be personally done Article 24 of ICCPR thereof provide for the right of
by the citizen. In this instance, the determination every child "to acquire a nationality"
of foundling status is done not by the child but by
the authorities. Secondly, the object of the process Hague Convention on Certain Questions Relating to
is the determination of the whereabouts of the the Conflict of Nationality Laws
parents, not the citizenship of the child. Lastly, the
process is certainly not analogous to Article 14 of the abovementioned convention
naturalization proceedings to acquire Philippine provides that a foundling is presumed to have the
citizenship, or the election of such citizenship by "nationality of the country of birth."
one born of an alien father and a Filipino mother
under the 1935 Constitution, which is an act to United Nations Convention on the Reduction of
Statelessness
171
POLITICAL LAW
Article 2 thereof provides that a foundling found in

the territory of a Contracting State shall, in the
absence of proof to the contrary, be considered to
have been born within the territory of parents
possessing the nationality of that State.

2019 GOLDEN NOTE S
Law on Public Officers
LAW ON PUBLIC OFFICERS nevertheless a protected right. It cannot be
taken from its incumbent without due
GENERAL PRINCIPLES process. (Morfe v. Mutuc, G.R. No. L-20387,
January 31, 1968; Aparri v. CA, G.R. No. L-
Public office 30057, January. 31, 1984)
It is the right, authority, and duty created and 5. It is not a Natural right – Under our political
conferred by law, by which for a given period, system, the right to hold public office exists
either fixed by law or enduring at the pleasure of only because and by virtue of some law
the creating power, an individual is invested with expressly or impliedly creating and conferring
some portion of the sovereign functions of the it.
government, to be exercised by him for the benefit
of the public. (Fernandez v. Sto. Tomas, G.R. No. Elements of a public office (CALIC)
116418, March 7, 1995)
1. Created by Constitution or by law or by some
The individual so invested is a public officer. body or agency to which the power to create
(Laurel v. Desierto, G.R. No. 145368, April 12, 2002) the office has been delegated;
2. Invested with Authority to exercise some
Purpose of a public office portion of the sovereign power of the State;
3. The powers conferred and the duties to be
A public office is created to effect the end for which discharged must be defined directly or
government has been instituted which is the impliedly by the Legislature or through
common good; not profit, honor, or private legislative authority;
interest of any person, family or class of persons. 4. Duties are performed Independently without
(63C Am. Jur. 2d Public Officers and Employees 667 control unless those of a subordinate; and
[1997]) 5. Continuing and permanent. (Fernandez v. Sto.
Tomas, G.R. No. 116418, March 7, 1995; Tejada
Characteristics of public office (P3VN) v. Domingo, G.R. No. 91860, January 13, 1992)
1. It is a Public trust – The principle of “public Public office vs. Public contract
office is a public trust” means that the officer
holds the public office in trust for the benefit BASIS PUBLIC PUBLIC
of the people—to whom such officers are OFFICE CONTRACT
required to be accountable at all times, and to Incident of Originates
serve with utmost responsibility, loyalty, and sovereignty. from the will
efficiency, act with patriotism and justice, and of the
lead modest lives. (1987 Constitution, Art. XI, contracting
As to
Sec. 1) parties,
creation
2. It is not a Property and is outside commerce of subject to the
man. It cannot be the subject of a contract.– limitations
The concept "public office is not a property” imposed by
means that no officer an aquire vested right in law.
the holding of a public office, nor can his right Has for its Imposes
to hold the office be transmitted to his heirs object the obligations
upon his death. Neverthless, the right to hold carrying out of only upon
a public office is a protected right-secured bu sovereign as persons who
due process and the provision of Constitution As to well as entered the
on security of tenure. (Santos v. Secretary of persons governmental same.
Labor, G.R. No.L-21624, February 27, 1968) affected functions
3. It is Personal to the public officer – It is not a affecting even
property transmissible to the heirs of the persons not
officer upon the latter’s death. (Santos v. bound by
Secretary of Labor, G.R. No.L-21624, February contract.
27, 1968) As to Embraces the Is almost
4. It is not a Vested right. subject idea of tenure, always
matter duration, and limited in its
NOTE: However, right to a public office is and scope continuity. The duration and
173
POLITICAL LAW
duties specific in its b. Honorary.
connected objects. Its
therewith are terms define 7. As to legality of title to office
generally and limit the a. De facto; or
continuing and rights and b. De jure.
permanent. obligations of
the parties, Kinds of Government Employment
and neither
may depart CAREER SERVICE NON-CAREER
therefrom SERVICE
without the Entrance is based on Entrance is based on
consent of the merits and fitness, qualifications other
other. which is determined than merit and fitness.
by competitive
Public officer examination (except
for non-competitive
The public officer, generally, is the one who holds positions) or based
a “public office.” A public officer is such an officer on highly technical
as is required by law to be elected or appointed, qualifications.
who has a designation or title given to him by law, Opportunity for No such opportunity.
and who exercise functions concerning the public, advancement to
assigned to him by law. higher career
position.
NOTE: Under Section 2 (b), RA 3019: The Anti- There is security of Tenure is limited to a
Graft and Corrupt Practices Act, public officer tenure. period specified by
includes elective and appointive officials and law, coterminus with
employees, permanent or temporary, whether in the appointing
the classified, unclassified or exempt service, authority or subject to
receiving compensation, even nominal, from the his pleasure, or which
government. is limited to the
duration of a
Kinds of a public officer particular purpose.
1. As to creation MODES OF ACQUIRING TITLE TO PUBLIC

a. Constitutional; or OFFICE
b. Statutory.
Modes of filling up public offices
2. As to nature of functions
a. Civil; or 1. Appointment;
b. Military. 2. Election;
3. Designation; or
3. As to the branch of Government to which it 4. In some instances by contract or by some
belongs other modes authorized by law. (Preclaro v.
a. Legislative; Sandiganbayan, G.R. No. 111091, Aug. 21,
b. Executive; or 1995)
c. Judicial. a. Succession by operation of law;
4. As to the branch of Government served or
a. National; or b. By direct provisions of law.
b. Local.
KINDS OF APPOINTMENT
5. As to exercise of judgment
a. Quasi-Judicial/Discretionary; or Appointment
b. Ministerial.
The act of designation by the executive officer,
6. As to compensation board, or body to whom that power has been
a. Lucrative, office of profit, or office delegated, the individual who is to exercise the
coupled with an interest; or powers and functions of a given office. It refers to

2019 GOLDEN NOTE S
the nomination or designation of an individual to Appointing authority
an office. (Borromeo v. Mariano, G.R. No. L-16808,
January 3, 1921) 1. Inherently belongs to the people.
It is, in law, equivalent to “filling a vacancy”. (Conde It belongs to where the people have chosen to
v. National Tobacco Corp., G.R. No. L-11985, January place it by their Constitution or laws. (63C Am.
28, 1961) Jur. 2d Public Officers and Employees 738, 1997)
NOTE: It is a basic precept in the law of public 2. Entrusted to designated elected and appointed
officers that no person, no matter how qualified public officials.
and eligible he is for a certain position may be
appointed to an office which is not vacant. There The appointment of public officials is generally
can be no appointment to a non-vacant position. looked upon as properly belonging to the
The incumbent must first be legally removed, or executive department. Appointments may also
his appointment validly terminated before one be made by Congress or the courts, but when so
could be validly installed to succeed him. (Garces made should be taken as an incident to the
v. Court of Appeals, G.R. No. 114795, July 17, 1996) discharge of functions within their respective
spheres. (Government v. Springer, 50 Phil. 259,
Nature of appointment affirmed in Springer v. Government, 277 U.S.
189, 72 Ed. 845, 48 S.CT. 480 [1928])
Appointment is an essentially discretionary power
and must be performed by the officer in which it is NOTE: The general rule is that the appointing
vested according to his best lights, the only power is the exclusive prerogative of the
condition being that the appointee should possess President, upon which no limitations may be
the qualifications required by law. If he does, then imposed by Congress, except those resulting from
the appointment cannot be faulted on the ground the need of securing the concurrence of the
that there are others better qualified who should Commission of Appointments and from the
have been preferred. This is a political question exercise of the limited power to prescribe the
involving considerations of wisdom which only qualifications or disqualifications to a given
the appointing authority can decide. (Luego v. CSC, appointive office. (Rafael v. Embroidery and
G.R. No. L-69137, August 5, 1986) Apparel Control and Inspections Board, G.R. No. L-
19978, September. 29, 1967)
Appointment vs. Designation
Where the law is silent as to who is the appointing
APPOINTMENT DESIGNATION authority, it is understood to be the President of
It is the selection by It connotes merely the the Philippines. (Rufino v. Endriga, G.R. No. 139554,
the proper authority imposition by law of July 21, 2006)
of an individual who additional duties on an
is to exercise the incumbent official.. Absent any contrary statutory provision, the
functions of a given power to appoint carries with it the power to
office. remove or discipline. (Aguirre, Jr. v. De Castro, G.R.
It connotes Shall hold the office No. 127631, December 17, 1999)
permanence. When only in a temporary
completed, ususally capacity and maybe President appoints four groups of officers
with its confirmation, replaced at will by the (1987 Constitution, Art. VII, Sec. 16)
appointment results in appoiting authority. It
security of tenure does not confer 1. First group - Heads of the Executive
unless he is security of tenure in departments, ambassadors, other public
replaceable at the the person named. ministers and consuls, officers of the armed
pleasure because of forces from the rank of colonel or naval
the nature of his office. captain, and other officers;
Essentially executive Legislative in nature.
in nature. NOTE: The only officers whose
(Binamira v. Garrucho, (Binamira v. Garrucho, appointments need confirmation by the
G.R. No. 92008, July 30, G.R. No. 92008, July 30, Commission on Appointments are those
1990) 1990) mentioned in the first group.
175
POLITICAL LAW
2. Second group - Those whom the President the appointment ban. These steps in the
may be authorized by law to appoint without appointment process should always concur and
the consent of the Commission on operate as a single process. There is no valid
Appointments; appointment if the process lacks even one step.
(Velicaria-Garafil v. Office Of The President, G.R. No.
3. Third group - Refers to all other officers of 203372, June 16, 2015)
the Government whose appointments are not
otherwise provided by law (the law is silent Procedure for the appointment of those that
or if the law authorizing the head of a require confirmation by the Commission on
department, agency, commission, or board to Appointments
appoint is declared unconstitutional) and
without the consent of the Commission on 1. Nomination by the President;
Appointments; and 2. Confirmation by the Commission on
Appointments;
4. Fourth group - Lower-ranked officers whose 3. Issuance of commission; and
appointments Congress may by law vest in 4. Acceptance by the appointee.
the heads of departments, agencies,
commissions, or boards. NOTE: Appointment is deemed complete upon
acceptance. Pending such acceptance, which is
Appointee’s acceptance of office optional on the part of the appointee, the
appointment may still be validly withdrawn.
GR: An appointee’s acceptance of office is not
necessary to complete or to make the appointment GR: Appointment to a public office cannot be
valid where there is no provision of law to the forced upon any citizen.
contrary.
XPN: If it is for purposes of defense of the State
XPN: Acceptance, however, is necessary to enable under Sec. 4, Art. 2 (also an XPN to the rule against
the appointee to have full possession, enjoyment, involuntary servitude). (Lacson v. Romero, No. L-
and responsibility of an office. (Borromeo v 3081, Oct. 14, 1949)
Mariano, G.R. No. L-16808, January 3, 1921; Lacson
v. Romero, G.R. No. L-3081, October 14, 1949) NOTE:
 In ad interim appointments, steps 1, 3 and 4
NOTE: An appointee cannot impose his own precede step 2.
conditions for the acceptance of a public office. He  For appointments which do not require
may only either accept or decline it. (De Leon, confirmation, step 2 is skipped.
2014)
Kinds of Appointments
The following elements should always concur
in the making of a valid (which should be 1. Permanent –An appointment in the civil
understood as both complete and effective) service issued to a person who meets all the
appointment requirements for the position to which he is
being appointed, including the appropriate
1. Authority to appoint and evidence of the eligibility prescribed, in accordance with the
exercise of the authority; provisions of law, rules and standards
2. Transmittal of the appointment paper and promulgated in pursuance thereof. It lasts
evidence of the transmittal; until lawfully terminated, thus, enjoys
3. A vacant position at the time of appointment; security of tenure. [P.D. 807 (Civil Service
and Decree), Sec. 25(a)]
4. Receipt of the appointment paper and
acceptance of the appointment by the 2. Temporary – A kind of appointment issued to
appointee who possesses all the a person who meets all the requirements for
qualifications and none of the the position to which he is being appointed,
disqualifications. except the appropriate civil service eligibility,
in the absence of appropriate eligibilities and
The concurrence of all these elements should it becomes necessary in the public interest to
always apply, regardless of when the appointment fill a vacancy. [P.D. 807, Sec. 25(b)]
is made, whether outside, just before, or during

2019 GOLDEN NOTE S
NOTE: Temporary appointment shall not Meets all Has not qualified in an
exceed 12 months, but the appointee may be requirements for appropriate
replaced sooner if a qualified civil service position except civil examination but
eligible becomes available. [P.D. 807, Sec. service eligibility. otherwise meets
25(b)] [Sec 25(b), Civil requirements for
Service Act of 1959] appointment to a
One who holds a temporary or acting regular position.
appointment has no fixed tenure of office, and,
therefore, his enjoyment can be terminated at NOTE: Provisional appointments in general
the pleasure of the appointing power even have already been abolished by R.A. 6040.
without hearing or cause. (Erasmo v. Home However, it still applies with regard to
Insurance & Guaranty Corporation, G.R. No. teachers under the Magna Carta for Public
139251, August 29, 2002) School Teachers.
However, if the appointment is for a specific 4. Regular appointment – One made by the
period, the appointment may not be revoked President while Congress is in session, takes
until the expiration of the term. effect only after confirmation by the CA and,
once approved, continues until the end of the
NOTE: Acquisition of civil service eligibility term of the appointee.
will not automatically convert the temporary
appointment into a permanent one. (Prov. Of 5. Ad interim appointment– One made by the
Camarines Sur v. CA, G.R. No. 104639, July 14, President while Congress is not in session,
1995) which takes effect immediately, but ceases to
be valid if:
3. Provisional appointment – One which may be a. Disapproved by the CA or
issued, upon the prior authorization of the b. Upon the next adjournment of Congress,
Commissioner of the CSC, to a person who has either in regular or special session, the CA
not qualified in an appropriate examination but has not acted upon it. (1990, 1994 Bar)
who otherwise meets the requirements for
appointment to a regular position in the Difference between Regular appointment, Ad
competitive service, whenever a vacancy interim appointment, Temporary appointment
occurs and the filling thereof is necessary in the and Designation
interest of the service and there is no
appropriate register of eligibles at the time of TEMPO- DESIGNAT
appointment. (Jimenea v. Guanzon, G.R. No. L- REGUL AD
RARY or ION
24795, January 29, 1968) AR INTERIM
ACTING
Made Made Lasts Mere
Temporary Appointment vs. Provisional when when until a imposition
Appointment (1994 Bar) Congres Congress perm- of new or
s is in is NOT in anent additional
TEMPORARY PROVISIONAL session. session. appointm duties to be
APPOINTMENT APPOINTMENT ent is performed
Issued to a person to Issued upon to the issued. by an
a position needed prior authorization of officer in a
only for a limited CSC. [Sec 24(e), Civil special
period not exceeing Service Act of 1959] manner
twelve months. [Sec while he
24(d), Civil Service performs
Act of 1959] the
Necessary in the Vacancy occurs and function of
public interest to fill the filing thereof is his
the vacancy. necessary in the permanent
interest of the service office.
& there is no Made Made Cannot The officer
appropriate register of only before be validly is already
eligible at the time of after the confirmat confirme in service
appointment. nominat d by the by virtue of
177
POLITICAL LAW
ion is ion of the CA an earlier the first instance by the Department Head, subject
confirm CA. because appointme to appeal to the CSC.
ed by there was nt
CA. no valid performing The protest must be for a cause (i.e. appointee is
nominati other not qualified; appointee was not the next-in-rank;
on functions. unsatisfactory reasons given by the appointing
Continu Shall May be Maybe authority in making the questioned appointment).
es until cease to terminat terminate The mere fact that the protestant has the more
the be valid if ed at the d anytime. impressive resume is not a cause for opposing an
expira dis-app- pleasure appointment. (Aquino v. CSC, G.R. No. 92403, April
-tion of -roved by of 22, 1992)
the CA or appointin
term. upon the g power Revocation vs. Recall of appointment
next without
adjourn- hearing Where an appointment requires the approval of
ment of or cause. the CSC, such appointment may be revoked or
Congress. withdrawn by the appointing authority any time
before the approval by the CSC.
Acting Appointment (2003 Bar)
After an appointment is completed, the CSC has
An acting appointment is merely temporary. the power to recall an appointment initially
(Sevilla v. CA, G.R. No. 88498, June 9, 1992) A approved on any of the following grounds:
temporary appointment cannot become a
permanent appointment, unless a new 1. Non-compliance with procedures/criteria in
appointment, which is permanent, is made. merit promotion plan;
(Marohombsar v. Alonto, G.R. No. 93711, February 2. Failure to pass through the selection board;
25, 1991) 3. Violation of existing collective relative
agreement to promotion;
However, if the acting appointment was made 4. Violation of CSC laws, rules and regulations.
because of a temporary vacancy, the temporary (Debulgado v. CSC, G.R. No. 111471, Sept. 26,
appointee holds office until the assumption of 1994)
office by the permanent appointee. In such case,
the appointing authority cannot use the acting Term vs. Tenure
appointment as a justification in order to evade or
avoid the security of tenure principle provided for TERM TENURE
under the Constitution and the Civil Service Law. Fixed and definite period The period during
(Gayatao v. CSC, G.R. No. 93064, June 22, 1992) of the time which the law which the
prescribes that an office incumbent actually
Q: Can the CSC revoke an appointment by the may hold an office. holds the office.
appointing power and direct the appointment It is not affected by It may be shorter
of an individual of its choice? holding over of the than term.
incumbent after
A: NO. The CSC cannot dictate to the appointing expiration of the term for
power whom to appoint. Its function is limited to which he was appointed
determining whether or not the appointee meets or elected.
the minimum qualification requirements
prescribed for the position. Otherwise, it would be NOTE: Term of office is different from the right to
encroaching upon the discretion of the appointing hold office. The latter is the just and legal claim to
power. (Medalla v. Sto. Tomas, G.R. 94255, May 5, hold and enjoy the powers and responsibilities of
1992) the office. (Casibang v. Aquino, G.R. No. L-38025,
August 20, 1979)
Protest to appointment
Kinds of terms
Any person who feels aggrieved by the
appointment may file an administrative protest 1. Term fixed by law;
against such appointment. Protests are decided in 2. Term dependent on good behavior until
reaching retirement age; and

2019 GOLDEN NOTE S
3. Indefinite term, which terminates at the the lack of the authority to appoint one since no
pleasure of the appointing authority. (Borres vacancy exists. (Aldovino v. COMELEC, G.R. No.
v. CA, G.R. No. L-36845, August 21, 1998) 184836, December 23, 2009)
Three-Term Limit Rule Concept of “Hold-over”
The term of office of elective local officials, In the absence of an express or implied
except barangay officials, which shall be constitutional or statutory provision to the
determined by law, shall be three years and no contrary, an officer is entitled to hold office until
such official shall serve for more than his successor is elected or appointed and has
three consecutive terms. qualified. (Lecaroz v. Sandiganbayan, G.R. No.
130872, March 25, 1999)
For the three-term limit rule for elective local
government officials to apply, two conditions or Term limits of elective officers
requisites must concur, to wit: 1) that the official
concerned has been elected for three consecutive 1. President – Six years, without re-election;
terms in the same local government post, and 2) 2. Vice President – Six years, with one re-
that he has fully served three consecutive terms. election if consecutive;
(Lonzanida v. COMELEC, G.R. No. 135150, July 28, 3. Senators – six years, with one re-election if
1999) consecutive;
4. Representative – three years, with two re-
Rationale: To prevent the establishment of elections if consecutive; and
political dynasties and to enhance the freedom of 5. Local Executive Officials – three years, with
choice of the people. (Borja, Jr. v. COMELEC, G.R. No. two re-elections if consecutive, in the same
133495, Sept. 3, 1998) position.
Voluntary renunciation ELIGIBILITY AND QUALIFICATION

REQUIREMENTS
It is an act of surrender based on the surrenderee’s
own freely exercised will; in other words, a loss of Requirements for public office
title to office by conscious choice. (Aldovino v.
COMELEC, G.R. No. 184836, December 23, 2009) 1. Eligibility – It is the state or quality of being
legally fit or qualified to be chosen.
NOTE: Voluntary renunciation of the office for any
length of time shall not be considered as an 2. Qualification – This refers to the act which a
interruption in the continuity of his service for the person, before entering upon the
full term for which he was elected. (1987 performance of his duties, is by law
Constitution, Art. X, Sec. 8) required to do such as the taking, and
often, subscribing and filing of an official
Q: Is the preventive suspension of an elected oath, and, in some cases, the giving of an
public official an interruption of his term of official bond. It may refer to:
office for purposes of the three-term limit rule a. Endowments, qualities or attributes
under Section 8, Article X of the Constitution which make an individual eligible for
and Section 43(b) of Republic Act No. 7160? public office e.g. citizenship; or
b. The act of entering into the performance
A: NO. Strict adherence to the intent of the three- of the functions of a public office e.g.
term limit rule demands that preventive taking oath of office..
suspension should not be considered an
interruption that allows an elective officials stay in NOTE: To entitle a public officer to hold a public
office beyond three terms. A preventive office, he must possess all the qualifications and
suspension cannot simply be a term interruption none of the disqualifications prescribed by law for
because the suspended official continues to stay in the position, not only at the time of his election or
office although he is barred from exercising the appointment but also during his incumbency.
functions and prerogatives of the office within the
suspension period. The best indicator of the General Qualifications for Public Office
suspended officials continuity in office is (CARESCAP)
the absence of a permanent replacement and
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POLITICAL LAW
1. Citizenship; tenure. Once any of the required qualification is
lost, his title may be reasonably challenged.
NOTE: Only natural-born Filipinos who owe (Frivaldo v. COMELEC, G.R. No. 87193, June 23,
total and undivided allegiance to the Republic 1989; Aguila v. Genato, G. R No. L-55151, March 17,
of the Philippines could run for and hold 1981)
elective public office. (Arnado v. COMELEC,
G.R. No. 210164, August 18, 2015) Authority to prescribe qualifications
Congress enacted R.A. 9225 allowing natural- Congress is generally empowered to prescribe the
born citizens of the Philippines who have lost qualifications for holding public office, provided it
their Philippine citizenship by reason of their does not exceed thereby its constitutional powers
naturalization abroad to reacquire Philippine or impose conditions of eligibility inconsistent
citizenship and to enjoy full civil and political with constitutional provisions.
rights upon compliance with the
requirements of the law. They may now run Limitation on the power of Congress to
for public office in the Philippines provided prescribe qualifications
that they: (1) meet the qualifications for
holding such public office as required by the Congress has no power to require qualifications
Constitution and existing laws; and (2) make a other than those qualifications specifically set out
personal and sworn renunciation of any and in the Constitution. Such Constitutional criteria
all foreign citizenships before any public are exclusive.
officer authorized to administer an oath prior
to or at the time of filing of their CoC. (Arnado Power of Congress to prescribe
v. COMELEC, ibid.; RA 9225, Sec. 5) disqualifications
This rule applies to all those who have re- In the absence of constitutional inhibition,
acquired their Filipino citizenship without Congress has the same right to provide
regard as to whether they are still dual disqualifications as it has to provide qualifications
citizens or not. It is a pre-requisite imposed for office.
for the exercise of the right to run for public
office. (Sobejana-Condon v. COMELEC, G.R. No. Congress, however, may not add disqualifications
198742, August 10, 2012) where the Constitution has provided them in such
a way as to indicate intention that the
For appointive public officials, R.A. 9225 disqualifications provided shall embrace all which
requires an oath of allegiance to the Republic are to be permitted. Moreover, when the
of the Philippines and its duly constituted Constitution has attached a disqualification to the
authorities prior to their assumption of office: holding of any office, Congress cannot remove it
Provided, that they renounce their oath of under the power to prescribe qualifications as to
allegiance to the country where they took that such offices as it may create. (46 C.J. 936-937)
oath. [R.A. 9225, Sec. 5(3)]
Perfection of the right of a public officer to
2. Age; enter in office
3. Residence;
4. Education; Upon his oath of office, it is deemed perfected.
5. Suffrage; Only when the public officer has satisfied this
6. Civil service examination; prerequisite can his right to enter into the position
7. Ability to read and write; and be considered complete. Until then, he has none at
8. Political affiliation, as a rule, is not a all, and for as long as he has not qualified; the
qualification. holdover officer is the rightful occupant. (Lecaroz
v. Sandiganbayan, G.R. No. 130872, March 25, 1999)
XPN: Party-list, membership in the Electoral
Tribunal, Commission on Appointments DISABILITIES AND INHIBITIONS OF PUBLIC
OFFICERS
NOTE: The qualifications for public office are
continuing requirements and must be possessed Disqualifications attached to civil service
not only at the time of appointment or election or employees or officials
assumption of office but during the officer’s entire

2019 GOLDEN NOTE S
1. Losing candidate in any election
a. Cannot be appointed to any office in the Prohibitions imposed under the Constitution
government or GOCCs or their against the holding of two or more positions
subsidiaries; and
b. Period of disqualification: One year after A. Members of Congress shall not:
such election. 1. Appear as counsel before any court, electoral
XPN: Losing candidates in barangay tribunal, or quasi-judicial and other
elections administrative bodies;
2. Be interested in any contract with, or in any
2. Elective officials: franchise, or special privilege granted by the
GR:They are not eligible for appointment or Government, or any subdivision, agency or
designation in any capacity to any public office instrumentality thereof, including GOCCs, or
or position during their tenure. its subsidiary; or
3. Intervene in any matter before any office of
XPN: May hold ex officio positions. the Government for his pecuniary benefit or
E.g. The Vice President may be appointed as a where he may be called upon to act on account
Cabinet member. of his office.
3. Appointive officials: B. The President, Vice President, Members of the

GR: Cannot hold any other office in the Cabinet, and their deputies or assistants, unless
government. or any agency or instrumentality otherwise allowed by the Constitution, shall
thereof, including GOCCs and their not:
subsidiaries. 1. Directly or indirectly practice any other
profession; or
XPN: Unless otherwise allowed by law, or by 2. Participate in any business, or be financially
the primary functions of his position. interested in any contract with, or in any
franchise, or special privilege granted by the
NOTE: The exception does not apply to Government, or any subdivision, agency or
Cabinet members, and those officers instrumentality thereof, including GOCCs, or
mentioned in Art. VII, Sec. 13. They are its subdivisions; shall avoid conflict of interest
governed by the stricter prohibitions in the conduct of their office.
contained therein.
C. Members of the Constitutional Commission shall
Prohibitions attached to elective and not:
appointive officials in terms of compensation 1. Hold any other office or employment or
engage in the practice of any profession or in
GR: They cannot receive: the active management or control of any
business that may be affected by the functions
1. Additional compensation – An extra reward of his office; or
given for the same office 2. Be financially interested, directly or indirectly,
e.g. bonus in any contract with, or in any franchise, or
2. Double compensation – When an officer is special privilege granted by the Government,
given two sets of compensation for two or any subdivision, agencies or
different offices held concurrently by one instrumentalities including GOCCs, or their
officer. subsidiaries. These shall also apply to the
3. Indirect compensation Ombudsman and his deputies during his term.
XPN: Unless specifically authorized by law. D. Unless otherwise allowed by law or by the
primary functions of his position, no appointive
NOTE: “Specifically authorized” means a specific official shall hold any other office or
authority particularly directed to the officer or employment in the Government or any
employee concerned. subdivision, agency or instrumentality thereof,
including GOCCs or their subsidiaries. (1987
Pensions and gratuities, per diems and allowances Constitution, Art. IX – B, Sec. 7; Flores v Drilon,
are not considered as additional, double, or G.R. No. 104732 June 22, 1993)
indirect compensation. (1987 Constitution, Art. IX-
B, Sections 7-8) E. No member of the armed forces in the active
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POLITICAL LAW
service shall, at any time, be appointed or transaction requiring the approval of their
designated in any capacity to a civilian position office;
in the government including GOCCs or any of 2. Prohibition against outside employment and
their subsidiaries. [1987 Constitution, Art. XVI, other activities related thereto – Owning,
Sec. 5(4)] controlling, managing or accepting
employment as officer, employee, consultant,
Grounds for disqualification to hold public counsel, broker, agent, trustee or nominee in
office any private enterprise regulated, supervised
or licensed by their office;
1. Mental or physical incapacity; 3. Engaging in the private practice of their
2. Misconduct or commission of a crime; profession; and
3. Impeachment; 4. Recommending any person to any position in
4. Removal or suspension from office; any private enterprise which has a regular or
pending official transaction with their office.
NOTE: Where there is no constitutional or
statutory declaration of ineligibility for NOTE: These prohibitions shall continue to
suspension or removal from office, the courts apply for a period of one year after
may not impose the disability. resignation, retirement, or separation from
public office, except in the case of participating
5. Consecutive terms exceeding the allowable in any business or having financial interest in
number of terms; any contract with the government, but the
6. Holding more than one office (except ex professional concerned cannot practice his
officio) profession in connection with any matter
7. Relationship with the appointing power before the office he used to be with, in which
(nepotism) (2010 Bar); case the one-year prohibition shall likewise
8. Office newly created or the emoluments of apply.
which have been increased (forbidden office);
9. Being an elective official(Flores v. Drilon, G.R. Prohibitions against the practice of other
No. 104732, June 22, 1993); professions under the LGC
10. Losing candidate in the election within 1 year
following the date of election (prohibitions 1. Local chief executives (governors, city and
from office, not from employment); and municipal mayors) are prohibited from
practicing their profession;
XPN: Losing candidates in barangay 2. Sanggunian members may practice their
elections profession, engage in any occupation, or teach
in schools except during session hours; and
11. Grounds provided for under the LGC. 3. Doctors of medicine may practice their
profession even during official hours of work
NOTE: The Supreme Court held that while all in cases of emergency provided that they do
other appointive officials in the Civil Service are not derive monetary compensation
allowed to hold other office or employment in the therefrom.
government during their tenure when such is
allowed by law or by the primary functions of their Q: Can the members of Sanggunian engage in
positions, members of the Cabinet, their deputies the practice of law under the LGC?
and assistants may do so only when expressly
authorized by the Constitution itself. (Civil A: GR: Yes.
Liberties Union v. Executive Secretary, G.R. No.
83896, February 22, 1991) XPNs:
1. Cannot appear as counsel in any civil case
Prohibitions under Code of Conduct and wherein a LGU or any office, agency or
Ethical Standards for Public Officials and instrumentality of the government is the
Employees adverse party;
2. Cannot appear as counsel in any criminal case
1. Prohibition against financial and material wherein an officer or employee of the national
interest – Directly or indirectly having any or local government is accused of an offense
financial or material interest in any committed in relation to his office;

2019 GOLDEN NOTE S
3. Shall not collect any fee for their appearance understanding that such gift, favor or benefit shall
in administrative proceedings involving the influence their official actions. De Vera thus
LGU of which he is an official; and violated her sacred oath as a court employee to
4. May not use property and personnel of the serve the Judiciary with utmost loyalty and to
Government, except when defending the preserve the integrity and reputation of the
interest of the Government. Judiciary as an institution dispensing justice to all.
Her violation was made worse by her committing
Other prohibitions imposed on public officers it in exchange for easy money. She was thereby
guilty of corruption. She compounded her guilt by
1. Prohibition against solicitation of gifts. [R.A. disobeying the orders of the Court requiring her to
6713, Sec. 7(d) ] explain herself. Under the circumstances, she
committed grave misconduct which is punishable
NOTE: Public officers, however, may accept by dismissal from service. (Galindez v. Susbilla-De
the following gifts from foreign governments: Vera, A.M. No. P-13-3126, February 4, 2014)
a. Gifts of nominal value received as
souvenir or mark of courtesy; Public officers who may engage in partisan
b. Scholarship or fellowship grant or political activities
medical treatment; or
c. Travel grants or expenses for travel a. Those holding political offices, such as the
outside the Philippines. [RA 6713, Sec. President of the Philippines, Vice President of the
7(d)] Philippines; Executive Secretary or Department
Secretaries and other Members of the Cabinet; all
2. Prohibition against partisan political other elective officials at all levels; and those in the
activities. [1987 Constitution, Art. IX(B), Sec. personal and confidential staff of the above
2(4)] officials; and
NOTE: Partisan political activity is an act NOTE: It shall, however, be unlawful for them to
designed to promote the election or defeat of solicit contributions from their subordinates or
a particular candidate/s to a public office. It is subject them to any of the acts involving
also known as “electioneering”. (OEC, Sec. 79) subordinates prohibited in the Election Code.
Officers or employees in the Civil Service b. National, provincial, city and municipal elective
including members of the Armed Forces officials. (Santos v. Yatco, G.R. No. L- 16133,
cannot engage in such activity except to vote. November 6, 1959)
They shall not use their official authority or
influence to coerce the political activity of any 3. Prohibition against engaging in strike. (Social
person. (1987 Administrative Code, Book V, Security System Employees Assn. v. CA, G.R No.
Title I, Subtitle A, Sec. 55) 85279, July 28, 1989)
4. Restriction against engaging in the practice of
Officers and employees in the Civil Service can law. (R.A. 7160, Sec. 90)
nonetheless express their views on current 5. Prohibition against practice of other
political issues and mention the names of the professions. (R.A. 7160, Sec. 90)
candidates they support. 6. Restriction against engaging in private
business. (Abeto v. Garces, A.M. No. P-88-269,
Q: De Vera, a Court Stenographer deliberately December 29, 1995)
and fraudulently, and for a consideration, 7. Restriction against accepting certain
misrepresented her ability to assist the employment. [RA 6713, Sec. 7(b)]
complainant in the adoption of her niece and
nephew. The Office of the Court Administrator
equated those acts as Grave Misconduct and Q: Does the election or appointment of an
dismissed De Vera from office. Is the OCA attorney to a government office disqualify him
correct? from engaging in the private practice of law?
A: YES. Section 2, Canon 1 of the Code of Conduct A: YES. As a general rule, judges, other officials of
or Court Personnel has enjoined all court the superior courts, of the office of the Solicitor
personnel from soliciting or accepting any gift, General and of other government prosecution
favor or benefit based on any or explicit offices; the President; Vice-President, and
183
POLITICAL LAW
members of the cabinet and their deputies or GR: A public officer is not liable for injuries
assistants; members of constitutional sustained by another due to official acts done
commissions; and civil service officers or within the scope of authority.
employees whose duties and responsibilities
require that their entire time be at the disposal of XPNs:
the government are strictly prohibited from 1. Otherwise provided by law;
engaging in the private practice of law. (E.O. 297) 2. Statutory liability; (New Civil Code, Articles. 27,
32, 34)
RIGHTS AND LIABILITIES OF PUBLIC 3. Presence of bad faith, malice, or negligence;
OFFICERS
NOTE: Absent of any showing of bad faith or
Rights and privileges of public officers malice, every public official is entitled to the
presumption of good faith as well as regularity
Right to: in the performance or discharge of official
1. Office; duties. (Blaquera v. Alcala, G.R. No. 109406,
2. Compensation/salary; September 11, 1998)
3. Appointment;
4. Vacation and sick leave; 4. Liability on contracts entered into in excess or
5. Maternity leave; without authority; and
6. Retirement pay; 5. Liability on tort if the public officer acted
7. Longevity pay; beyond the limits of authority and there is bad
8. Pension; faith. (USA v. Reyes, G.R. No. 79253, March 1,
9. Self-organization; and 1993)
10. Protection of temporary employees.
NOTE: Ruling in Arias v. Sandiganbayan that heads
Prohibition against diminution of salary of of offices may rely to a certain extent on their
constitutional officers subordinates is not automatic. As held in Cesa v.
Officeof the Ombudsman, when there are facts that
Congress is given the power to fix the salaries of point to an irregularity and the officer failed to
certain constitutional officers, but after it has done take steps to rectify it, even tolerating it, the Arias
so, it may not reduce the salary of any of them doctrine is inapplicable. (Ombudsman v. de los
during his term or tenure. This provision is Reyes, G.R. No. 208976, October 13, 2014)
intended to secure their independence. [1987
Constitution, Art. IX (A), Sec. 3] Three-fold responsibility/liability of public
officers
Extent of the right to self-organization of
employees in the public service 1. Criminal liability;
2. Civil liability; and
While the Constitution recognizes the right of 3. Administrative liability.
public employees to organize, they are prohibited
from staging strikes, demonstrations, mass leaves, Liabilities of ministerial officers
walk-outs, and other forms of mass action which
may result to temporary cessation of work or 1. Non-feasance – It is the neglect to perform an
disturbance of public service. Their right to self- act which is the officer's legal obligation to
organization is limited only to form unions or to perform.
associate without including the right to strike. 2. Misfeasance – The failure to observe the
Labor unions in the government may bargain for proper degree of care, skill, and diligence
better terms and conditions of employment by required in the performance of official duty;
either petitioning the Congress for better terms and
and conditions, or negotiating with the 3. Malfeasance – It refers to the performance of
appropriate government agencies for the an act which the officer had no legal right to
improvement of those not fixed by law. (SSS perform.
Employees Assn. v. CA, G.R No. 85279, July 28, 1989)
NOTE: The plaintiff must show that he has
Liabilities of Public officers suffered an injury, and that it results from a breach
of duty which the officer owed him.

2019 GOLDEN NOTE S
Command Responsibility Doctrine It is well settled, as a general rule, that public
officers of the government, in the performance of
A superior officer is liable for the acts of his their public functions, are not liable to third
subordinate in the following instances: persons, either for the misfeasances or positive
wrongs, or for the nonfeasances, negligence, or
1. He negligently or willfully employs or retains omissions of duty of their official subordinates.
unfit or incompetent subordinates; (McCarthy v. Aldanese, G.R. No. L-19715, March 5,
2. He negligently or willfully fails to require his 1923)
subordinates to conform to prescribed
regulations; Rationale behind official immunity
3. He negligently or carelessly oversees the
business of the office as to give his It promotes fearless, vigorous, and effective
subordinates the opportunity for default; administration of policies of government. The
4. He directed, cooperated, or authorized the threat of suit could also deter competent people
wrongful act; or from accepting public office.
5. The law expressly makes him liable. (E.O. No.
292, Administrative Code of 1987, Book I, Chap. The immunity of public officers from liability for
9, Sections 38 and 39) the non-feasances, negligence or omissions of duty
of their official subordinates and even for the
Arias Doctrine latter’s misfeasances or positive wrongs rests
upon obvious considerations of public policy, the
The head of office is not required to examine every necessities of the public service and the
single detail of any transaction from its inception perplexities and embarrassments of a contrary
until it is finally approved. We would be setting a doctrine. [Alberto Reyes, Wilfredo B. Domo-Ong and
bad precedent if a head of office plagued by all too Herminio C. Principio v. Rural Bank of San Miguel
common problems—dishonest or negligent (Bulacan), Inc., G.R. No. 154499, February 27, 2004]
subordinates, overwork, multiple assignments or
positions, or plain incompetence—is suddenly Applicability of the doctrine
swept into a conspiracy conviction simply because
he did not personally examine every single detail, This doctrine is applicable only whenever a public
painstakingly trace every step from inception, and officer is in the performance of his public
investigate the motives of every person involved functions. On the other hand, this doctrine does
in a transaction before affixing his signature as the not apply whenever a public officer acts outside
final approving authority. the scope of his public functions.
All heads of offices have to rely to a reasonable NOTE: A public officer enjoys only qualified, NOT
extent on their subordinates and on the good faith absolute immunity.
of those who prepare bids, purchase supplies, or
enter into negotiations. There has to be some Distinction between official immunity from
added reason why he should examine each State immunity
voucher in such detail. (Arias v. Sandiganbayan,
G.R. No. 81563, December 19, 1989) Immunity of public officials is a more limited
principle than governmental immunity, since its
NOTE: It must include certification from the purpose is not directly to protect the sovereign,
subordinate and the supporting documents, but rather to do so only collaterally, by protecting
otherwise Arias doctrine cannot be upheld. the public official in the performance of his
government function, while, the doctrine of State
Immunity of Public Officers immunity principally rested upon the tenuous
ground that the king could do no wrong. It serves
It is an exemption that a person or entity enjoys to protect the impersonal body politic or
from the normal operation of the law such as a government itself from tort liability.
legal duty or liability, either criminal or civil.
STATE IMMUNITY OFFICIAL IMMUNITY
Immunity of public officers from liabilities to Principle of Concept of Municipal
third persons International Law. Law.
Availed of by States Availed of by public
against an officials against the
185
POLITICAL LAW
international court or members of the discouraged;
tribunal. public.
The purpose is to To protect the public NOTE: The general rule is that a de facto
protect the assets of official from liability officer cannot claim salary and other
the State from any arising from compensations for services rendered by him
judgment. negligence in the as such. However, the officer may retain
performance of his salaries collected by him for services rendered
discretionary duties. in good faith when there is no de jure officer
claiming the office.
NOTE: When public officials perform purely
ministerial duties, however, they may be held 3. The de facto officer is subject to the same
liable. liabilities imposed on the de jure officer in the
discharge of official duties, in addition to
DE FACTO vs. DE JURE OFFICERS whatever special damages may be due from
him because of his unlawful assumption of
De jure officer office; and
4. The acts of the de facto public officer, insofar
A de jure officer is one who is in all respects legally as they affect the public, are valid, binding and
appointed or elected and qualified to exercise the with full legal effect.
office.
Manner by which challenge to a de facto office
De facto officer (2000, 2004, 2009, 2010 Bar) is made
A de facto officer is one who assumed office under 1. The incumbency may not be challenged
the color of a known appointment or election but collaterally or in an action to which the de
which appointment or election is void for reasons facto officer is not a party;
that the officer was not eligible, or that there was 2. The challenge must be made in a direct
want of power in the electing body, or that there proceeding where title to the office will be the
was some other defect or irregularity in its principal issue; and
exercise, wherein such ineligibility, want of power, 3. The authorized proceeding is quo warranto
or defect being unknown to the public. either by the Solicitor General in the name of
the Republic or by any person claiming title to
De jure officer vs. De facto officer the office.
DE JURE OFFICER DE FACTO OFFICER Q: Ross ran as congressman of Cagayan

Has lawful title to Has possession of and province. His opponent, Paulo, however, was
the office. performs the duties the one proclaimed as the winner by the
under a colorable title COMELEC. Ross filed seasonably a protest
without being before the HRET. After two years, the HRET
technically qualified in reversed the COMELEC’s decision and Ross was
all points of law to act. proclaimed finally as the duly elected
Holding of office Holding of office rests on Congressman. Thus, he had only one year to
rests on right. reputation. serve in Congress.
Officer cannot be Officer may be ousted in
removed through a a direct proceeding 1. Can Ross collect salaries and allowances
direct proceeding against him. from the government for the first two
(quo warranto). years of his term as Congressman?
2. Should Paulo refund to the government the
Effects of the acts of de facto public officers salaries and allowances he had received as
Congressman?
1. The lawful acts, so far as the rights of third 3. What will happen to the bills that Paulo
persons are concerned are, if done within the alone authored and were approved by the
scope and by the apparent authority of the HoR while he was seated as Congressman?
office, are considered valid and binding; Reason and explain briefly.
2. The de facto officer cannot benefit from his
own status because public policy demands A:
that unlawful assumption of public office be

2019 GOLDEN NOTE S
1. NO. Ross cannot collect salaries and him, and appropriated for the payment of his
allowances from the government for the first debts, because of the following reasons:
two years of his term, because in the
meanwhile Paulo collected the salaries and 1. While it is still in the hands of the disbursing
allowances. Paulo was a de facto officer while officer, it belongs to the government;
he was in possession of the office. To allow 2. Public policy forbids such practice since it
Ross to collect the salaries and allowances will would be fatal to the public service; and
result in making the government pay a second 3. It would be tantamount to a suit against the
time. State in its own court, which is prohibited,
2. NO. Paulo is not required to refund to the except with its consent.
government the salaries and allowances he
received. As a de facto officer, he is entitled to De facto officer vs. Usurper
the salaries and allowances because he
rendered services during his incumbency. DE FACTO OFFICER USURPER (2000 Bar)
3. The bills which Paulo alone authored and
were approved by the House of Complies with the Takes possession
Representatives are valid because he was a de 3 elements of a de of an office and
facto officer during his incumbency. The acts jure officer, does official acts
of a de facto officer are valid insofar as the namely: without any
public is concerned. (Rodriguez v. Tan, G.R. No. 1. Existence of a de actual or
L-3913, August 7, 1952) jure office; apparent
2. Must possess the authority.
Recovery of the salary received by a de facto legal qualifications
officer during a wrongful tenure for the office in
question; and
As a rule, the rightful incumbent of the public 3. Must have qualified
office may recover from a de facto officer the himself to perform
salaries received by the latter during the time of the duties of such
the latter's wrongful tenure even though he office according to
entered into the office in good faith and under a the mode
colorable title. The de facto officer takes the prescribed by law.
salaries at his risks and must therefore account to
Has color of right Has neither color
the de jure officer for the amounts he received.
or title to office. of right or title to
However, where there is no de jure officer, a de
office.
facto officer shall be entitled to the salaries and
emoluments accruing during the period when he Acts are rendered Acts are
actually discharged the duties. (Monroy v. CA, G.R. valid as to the absolutely void.
No. L-23258, July 1, 1967) public until his title
is adjudged
NOTE: In Monroy v. CA, the Supreme Court said insufficient.
that the Rodriguez ruling cannot be applied for the
GR: The rightful Not entitled to
absence of factual and legal similarities.
incumbent of a compensation
public office may
Essence of de facto doctrine
recover from an
officer de facto the
The de facto doctrine has been formulated, not for
salary received by
the protection of the de facto officer principally,
the latter during
but rather for the protection of the public and
the time of his
individuals who get involved in the official acts of
tenure even
persons discharging the duties of an office without
though he entered
being lawful officers.
into the office in
good faith and
Q: May the salary of a public officer or
under color of title.
employee be subject to garnishment? Why?
XPN:
A: NO. It may not, by garnishment, attachment, or
Where there is no
order of execution, be seized before being paid to
187
POLITICAL LAW
de jure public
officer, the officer 1. For members of SC and judges of lower courts
de facto who in – 70 years old
good faith has had 2. Gov't officers and employees – 65 years old
possession of the 3. Optional retirement – 60 years old and must
office and has have rendered at least 20 service years
discharged the
duties pertaining Resignation (2000 Bar)
thereto, is legally
entitled to the It is the act of giving up or declining a public office
emoluments of the and renouncing the further right to use such office
office, and may, in indefinitely. In order to constitute a complete and
an appropriate operative act of resignation, the officer or
action, recover the employee must show a clear intention to
salary, fees and relinquish or surrender his position accompanied
other by an act of relinquishment. Resignation implies of
compensations the intention to surrender, renounce, relinquish
attached to the the office. (Estrada v. Desierto, G.R. No. 146738,
office. (Gen. March 2, 2001)
Manager, Philippine
Ports Authority v. It must be in writing and accepted by the accepting
Monserate, G.R. No. authority as provided for by law.
129616, April 17,
2002) Accepting authorities for resignation
1. For appointed officers, the tender of

TERMINATION OF OFFICIAL RELATION
resignation must be given to the appointing
authority;
Modes of terminating official relationships
2. For elected officers, tender to officer
authorized by law to call an election to fill the
1. Expiration of term or tenure;
vacancy. The following authorized officers
2. Reaching the age limit for retirement;
are:
3. Resignation;
4. Recall;
a. Respective chambers – For members of
5. Removal; Congress;
6. Abandonment;
b. President – For governors, vice-
7. Acceptance of an incompatible office;
governors, mayors and vice-mayors of
8. Abolition of office;
highly urbanized cities and independent
9. Prescription of the right to office;
component cities;
10. Impeachment;
c. Provincial governor – For municipal
11. Death; mayors and vice-mayors, city mayors and
12. Failure to assume office;
vice-mayors of component cities;
13. Conviction of a crime; or
d. Sanggunian concerned – For sanggunian
14. Filing of a COC
members; and
e. Municipal/city mayors – For barangay
NOTE: Appointive officials, active members of
officials.
the Armed Forces of the Philippines, and
officers and employees of the GOCCs, shall be Courtesy Resignation
resigned from his office upon the filing of his
COC. (Quinto v. COMELEC, February 22, 2010,
It cannot properly be interpreted as resignation in
G.R. No. 189698)
the legal sense for it is not necessarily a reflection
of a public official's intention to surrender his
Elective officials shall continue to hold office,
position. Rather, it manifests his submission to the
whether he is running for the same or a
will of the political authority and the appointing
different position. (Fair Elections Act, Sec. 14 power. (Ortiz V. COMELEC, G.R. No. 78957, June 28,
expressly repealed B.P. Blg. 881, Sec. 67)
1988)
Age limit for retirement

2019 GOLDEN NOTE S
Q: During the May 1998 election, petitioner Limitations on recall
Sabrina was elected President while
respondent Immaculate was elected Vice- 1. An elective official can be subjected to recall
President. From the beginning of her term, only once; and
petitioner was plagued by jueteng issues that 2. No recall shall take place within one year from
slowly eroded her popularity. Afterwards, the the assumption of office or one year
impeachment trial started and the people immediately preceding a regular local
conducted a 10-kilometer line holding lighted election. [R.A. No. 7160, Sec. 74 (b)]
candles in EDSA Shrine to symbolize their
solidarity in demanding Sabrina’s resignation. NOTE: For the time bar to apply, the
On January 19, Sabrina agreed to the holding of approaching local election must be one where
a snap election for President. On January 20, the position of the official to be recalled is to
Chief Justice Valentin administered the oath to be actually contested and filled by the
respondent Immaculate as President of the electorate. (Angobung v. COMELEC, G.R. No.
Philippines. On the same day, Sabrina issued a 126576, March 5, 1997)
press statement that she was leaving
Malacañang Palace for the sake of peace and in Effect of recall on the three-term limit rule
order to begin the healing process of the (2010 Bar)
nation. It also appeared that on the same day,
she signed a letter stating that she was The three-term limit for local elected officials is
transmitting a declaration that she was unable not violated when a local official wins in a recall
to exercise the powers and duties of his office election for mayor after serving three full terms as
and that by operation of law and the mayor since the recall election is not considered
Constitution, the Vice-President shall be the an immediate re-election, it is not counted for
Acting President. Are the acts of Sabrina purposes of the three-term limit. Term limits
constitutive of resignation? should be construed strictly to give the fullest
possible effect to the right of the electorate to
A: YES. Resignation is not a high level legal choose their leaders. (Socrates v. COMELEC, G.R.
abstraction. It is a factual question and No. 154512, November 12, 2002)
its elements are beyond quibble: there must be an
intent to resign and the intent must be coupled by Abandonment (2000 Bar)
acts of relinquishment (totality test). The validity It is the voluntary relinquishment of an office by
of a resignation is not governed by any formal the holder with the intention of terminating his
requirement as to form. It can be oral, written, possession and control thereof.
express or implied. As long as the resignation is
clear, it must be given legal effect. (Estrada Q: Does the acceptance of an incompatible
v.Desierto, G.R. No. 146738, March 2, 2001) office ipso facto vacate the other?
A: GR: Yes.
Removal
XPN: Where such acceptance is authorized by law.
It refers to the forcible and permanent separation
of the incumbent from office before the expiration NOTE: It is contrary to the policy of the law that
of the public officer's term. (Feria, Jr. v. Mison, G.R. the same individual should undertake to perform
No. 8196, August 8, 1989) inconsistent and incompatible duties. He who,
while occupying one office, accepts another
Recall incompatible with the first, ipso facto, absolutely
vacates the first office. That the second office is
It is an electoral mode of removal employed inferior to the first does not affect the rule.
directly by the people themselves through the
exercise of their right of suffrage. It is a political Q: Does the acceptance of an incompatible
question not subject to judicial review. It is a office pertain to its physical impossibility?
political question that has to be decided by the
people in their sovereign capacity. (Evardone v. A: NO.The incompatibility contemplated is not the
COMELEC, G.R. No. 94010, December 2, 1991) mere physical impossibility of one person’s
performing the duties of the two offices due to a
NOTE: Recall only applies to local officials. lack of time or the inability to be in two places at
the same moment, but that which proceeds from
189
POLITICAL LAW
the nature and relations of the two positions to Propriety of Quo Warranto as a mode to
each other as to give rise to contrariety and remove an Impeachable Officer
antagonism should one person attempt to
faithfully and impartially discharge the duties of The language of Section 2, Article XI of the
one toward the incumbent of the other. Constitution does not foreclose a quo warranto
(Canonizado v. Aguirre, G.R. No. 133132, February action against impeachable officers. The provision
15, 2001) uses the permissive term "may" which, in
statutory construction, denotes discretion and
Prescriptive period for petitions for cannot be construed as having a mandatory effect.
reinstatement or recovery of public office We have consistently held that the term "may" is
indicative of a mere possibility, an opportunity or
It must be instituted within one year from the date an option. The grantee of that opportunity is
of unlawful removal from the office. Such period vested with a right or faculty which he has the
may be extended on grounds of equity. option to exercise. An option to remove by
impeachment admits of an alternative mode of
Period to take the oath of office to avoid failure effecting the removal.
to assume office
We hold, therefore, that by its tenor, Section 2,
Failure to take the oath of office within six months Article XI of the Constitution allows the institution
from proclamation of election shall cause the of a quo warranto action against an impeachable
vacancy of the office UNLESS such failure is for a officer. After all, a quo warranto petition is
cause beyond his control. (OEC. 881, Sec. 11) predicated on grounds distinct from those of
impeachment. The former questions the validity of
Termination of official relationship through a public officer's appointment while the latter
conviction by final judgment indicts him for the so-called impeachable offenses
without questioning his title to the office he holds.
When the penalty imposed carries with it the (Republic vs. Sereno, G.R. No. 237428, May 11, 2018)
accessory penalty of disqualification.
NOTE: The courts should be able to inquire into
Quo Warranto the validity of appointments even of impeachable
officers. To hold otherwise is to allow an absurd
It is a proceeding or writ issued by the court to situation where the appointment of an
determine the right to use an office, position or impeachable officer cannot be questioned even
franchise and to oust the person holding or when, for instance, he or she has been determined
exercising such office, position or franchise if his to be of foreign nationality or, in offices where Bar
right is unfounded or if a person performed acts membership is a qualification, when he or she
considered as grounds for forfeiture of said fraudulently represented to be a member of the
exercise of position, office, or franchise. Bar. Unless such an officer commits any of the
grounds for impeachment and is actually
NOTE: It is commenced by a verified petition impeached, he can continue discharging the
brought in the name of the Republic of the functions of his office even when he is clearly
Philippines or in the name of the person claiming disqualified from holding it. Such would result in
to be entitled to a public office or position usurped permitting unqualified and ineligible public
or unlawfully held or exercised by another. (Rules officials to continue occupying key positions,
of Court, Rule 66, Sec. 1) exercising sensitive sovereign functions until they
are successfully removed from office through
Nature and purpose of quo warranto impeachment. This could not have been the intent
of the framers of the Constitution. (ibid.)
It literally means “by what authority” and the
object is to determine the right of a person to the Prescription does not lie against the State in
use or exercise of a franchise or office and to oust Quo Warranto Proceedings
the holder from its enjoyment, if his claim is not
well-founded, or if he has forfeited his right to When the Solicitor General himself commences
enjoy the office. (Tecson v. Comelec, G.R. No. the quo warranto action either (1) upon the
161434, March 3, 2004) President's directive, (2) upon complaint or (3)
when the Solicitor General has good reason to
believe that there is proof that (a) a person usurps,

2019 GOLDEN NOTE S
intrudes into, or unlawfully holds or exercises· a private individuals claiming rights to a public
public office, position or franchise; (b) a public office, not against the State.
officer does or suffers an act which is a ground for
the forfeiture of his office; or (c) an association Indeed, there is no proprietary right over a public
acts as a corporation without being legally office. Hence, a claimed right over a public office
incorporated or without lawful authority so to act, may be waived. In fact, even Constitutionally-
he does so in the discharge of his task and mandate protected rights may be waived. Thus, we have
to see to it that the best interest of the public and consistently held that the inaction of a person
the government are upheld. In these three claiming right over a public office to assert the
instances, the Solicitor General is mandated under same within the prescriptive period provided by
the Rules to commence the necessary quo the rules, may be considered a waiver of such
warranto petition. right. This is where the difference between a quo
warranto filed by a private individual as opposed
When the government is the real party in interest, to one filed by the State through the Solicitor
and is proceeding mainly to assert its rights, there General lies. There is no claim of right over a public
can be no defense on the ground of laches or office where it is the State itself, through the
prescription. Indubitably, the basic principle that Solicitor General, which files a petition for quo
"prescription does not lie against the State" which warranto to question the eligibility of the person
finds textual basis under Article 1108 (4) of the holding the public office. As We have emphasized
Civil Code, applies in this case. in the assailed Decision, unlike Constitutionally-
protected rights, Constitutionally-required
Jurisprudence across the United States likewise qualifications for a public office can never be
richly reflect that when the Solicitor General files waived either deliberately or by mere passage of
a quo warranto petition in behalf of the people and time. While a private individual may, in proper
where the interests of the public are involved, the instances, be deemed to have waived his or her
lapse of time presents no effective bar. Aptly, in right over title to public office and/or to have
State ex rel Stovall v. Meneley, it was held that a quo acquiesced or consented to the loss of such right,
warranto action is a governmental function and no organized society would allow, much more a
not a propriety function, and therefore the prudent court would consider, the State to have
doctrine of laches does not apply. waived by mere lapse of time, its right to uphold
and ensure compliance with the requirements for
That prescription does not lie in this case can also such office, fixed by no less than the Constitution,
be deduced from the very purpose of an action for the fundamental law upon which the foundations
quo warranto. People v. City Whittier explains that of a State stand, especially so when the
the remedy of quo warranto is intended to prevent government cannot be faulted for such lapse.
a continuing exercise of an authority unlawfully (Republic vs. Sereno, G.R. No. 237428, June 19, 2018)
asserted. Indeed, on point is People v. Bailey when
it ruled that because quo warranto serves to end a Quo warranto under Rule 66 vs. Quo warranto
continuous usurpation, no statute of limitations in electoral proceedings
applies to the action.
QUO WARRANTO IN
QUO WARRANTO
Needless to say, no prudent and just court would ELECTORAL
UNDER RULE 66
allow an unqualified person to hold public office, PROCEEDINGS
much more the highest position in the Judiciary. In The issue is legality of The issue is eligibility
this case, the Republic cannot be faulted for the occupancy of the of the person elected.
questioning respondent's qualification· for office office by virtue of a
only upon discovery of the cause of ouster. legal appointment.
(Republic vs. Sereno, G.R. No. 237428, May 11, 2018) Grounds: usurpation, Grounds: ineligibility
forfeiture, or illegal or disqualification to
One-year prescriptive period applies only to association. (Rules of hold the office. (OEC,
private individuals Court, Rule 66, Sec. 1) Sec. 253)
Presupposes that the Petition must be filed
The long line of cases decided by this Court since respondent is already within 10 days from
the 1900's, which specifically explained the spirit actually holding office the proclamation of
behind the rule providing a prescriptive period for and action must be the candidate.
the filing of an action for quo warranto, reveals commenced within one
that such limitation can be applied only against year from cause of
191
POLITICAL LAW
ouster or from the time
the right of petitioner NOTE: Appointment to any vacancy shall be only
to hold office arose. for the unexpired term of the predecessor. In no
Petitioner is person Petitioner may be any case shall any Member be appointed or designated
entitled to office. voter even if he is not in a temporary or acting capacity. [1987
entitled to the office. Constitution, Art. IX-B, Sec. 1(2)]
Person adjudged Actual or
entitled to the office compensatory Qualifications
may bring a separate damages are
action against the recoverable in quo 1. Natural-born citizen;
respondent to recover warranto proceedings 2. At least 35 years old at the time of
damages. (Rules of under the OEC. appointment;
Court, Rule 66, Sec. 11) 3. With proven capacity for public
administration; and
NOTE: If the dispute is as to the counting of votes 4. Not a candidate in any election immediately
or on matters connected with the conduct of the preceding the appointment. [1987
election, quo warranto is not the proper remedy Constitution, Art. IX-B, Sec 1(1)]
but an election protest. (Cesar v. Garrido, G.R. No.
30705, March 25, 1929) Disqualifications
THE CIVIL SERVICE 1. No candidate who has lost in any election

shall, within one year after such election, be
Scope appointed to any office in the Government of
The Civil Service embraces every branch, agency, any GOCC or in any of its subsidiaries; (1987
subdivision, and instrumentality of the Constitution, Art. IX-B, Sec. 6)
government, including every government-owned 2. No elective official shall be eligible for
or controlled corporations whether performing appointment or designation in any capacity
governmental or proprietary functions. [1987 to any public office or position during his
Constitution, Art. IX-B, Sec. 2(1)] tenure; [1987 Constitution, Art. IX-B, Sec.
7(1)] (1995, 2002 Bar)
Constitutional Functions of the CSC 3. Unless otherwise allowed by law or by the
primary functions of his position, no
As the central personnel agency of the appointive official shall hold any other office
government, it: or employment in the Government or any
subdivision, agency or instrumentality
1. Establishes a career service; thereof including GOCCs or their
2. Adopts measures to promote morale, subsidiaries; [1987 Constitution, Art. IX-B,
efficiency, integrity, responsiveness, Sec. 7(2)] and,
progressiveness and courtesy in the Civil 4. No officer or employee in the civil service
Service; shall engage, directly or indirectly, in any
3. Strengthens the merits and rewards system; electioneering or partisan political activity.
4. Integrates all human resources and [1987 Constitution, Art. IX-B, Sec. 2(4)]
development programs for all levels and
ranks; and Classification
5. Institutionalizes a management climate
conducive to public accountability. (1987 1. Career Service; and
Constitution, Art. IX-B, Sec. 3) 2. Non-Career Service.
Composition of the CSC Career Service
A. Chairman; and The Career Service shall be characterized by (1)

B. Two Commissioners entrance based on merit and fitness to be
determined as far as practicable by competitive
The Chairman and the Commissioners shall be examinations, or based on highly technical
appointed by the President with the consent of the qualifications; (2) opportunity for advancement to
Commission on Appointments for a term of seven higher career positions; and (3) security of tenure.
years without reappointment.

2019 GOLDEN NOTE S
The Career Service shall include: 7. Permanent laborers, whether skilled, semi-
skilled, or unskilled.
1. Open Career positions are those for
appointment to which prior qualification in an Non-Career Service
appropriate examination is required;
The Non-Career Service shall be characterized by
2. Closed Career positions are those which are (1) entrance on bases other than those of the usual
scientific or highly technical in nature; these tests of merit and fitness utilized for the career
include the faculty and academic staff of state service; and (2) tenure which is limited to a period
colleges and universities, and scientific and specified by law, or which is coterminous with that
technical positions in scientific or research of the appointing authority or subject to his
institutions which shall establish and maintain pleasure, or which is limited to the duration of a
their own merit systems; particular project for which purpose employment
was made.
3. Positions in the Career Executive Service (CES),
namely Undersecretary, Assistant Secretary, The Non-Career Service shall include:
Bureau Director, Assistant Bureau Director,
Regional Director, Assistant Regional Director, 1. Elective officials and their personal or
Chief of Department Service and other officers of confidential staff;
equivalent rank as may be identified by the Career 2. Department Heads and other officials of Cabinet
Executive Service Board, all of whom are rank who hold positions at the pleasure of the
appointed by the President; President and their personal or confidential staff;
3. Chairman and members of commissions and
NOTE: For a position to be considered as CES, boards with fixed terms of office and their
a. The position must be among those personal or confidential staff;
enumerated under Book V, Title I, Subtitle 4. Contractual personnel or those whose
A, Chapter 2, Section 7(3) of the employment in the government is in accordance
Administrative Code of 1987 or a position with a special contract to undertake a specific
of equal rank as those enumerated and work or job, requiring special or technical skills
identified by the CESB to be such position not available in the employing agency, to be
of equal rank; and accomplished within a specific period, which in no
b. The holder of the position must be a case shall exceed one year, and performs or
presidential appointee. (Seneres v. Sabido, accomplishes the specific work or job, under his
G.R. No. 172902, October 21, 2015) own responsibility with a minimum of direction
and supervision from the hiring agency; and
Requisites for a CES employee to acquire 5. Emergency and seasonal personnel.
security of tenure:
Classes of positions in the Career Service
a. CES eligibility; and
b. Appointment to the appropriate CES a) Classes of positions in the career service
rank. (Seneres v. Sabido, ibid.) appointment to which requires examinations
shall be grouped into three major levels as
4. Career officers, other than those in the Career follows:
Executive Service, who are appointed by the
President, such as the Foreign Service Officers in 1. The first level shall include clerical,
the Department of Foreign Affairs; trades, crafts, and custodial service
positions which involve non-professional
5. Commissioned officers and enlisted men of the or sub-professional work in a non-
Armed Forces which shall maintain a separate supervisory or supervisory capacity
merit system; requiring less than four years of collegiate
studies;
6. Personnel of government-owned or -controlled 2. The second level shall include
corporations, whether performing governmental professional, technical, and scientific
or proprietary functions, who do not fall under the positions which involve professional,
non-career service; and technical, or scientific work in a non-
supervisory or supervisory capacity
193
POLITICAL LAW
requiring at least four years of college The test used to determine confidentiality of
work up to Division Chief level; and a position. The occupant of a particular
3. The third level shall cover positions in the position could be considered a confidential
Career Executive Service. employee if the predominant reason why he
was chosen by the appointing authority was
b) Except as herein otherwise provided, the latter’s belief that he can share a close
entrance to the first two levels shall be intimate relationship with the occupant
through competitive examinations, which which ensures freedom of discussion without
shall be open to those inside and outside the fear of embarrassment or misgivings of
service who meet the minimum qualification possible betrayals of personal trust and
requirements. Entrance to a higher level does confidential matters of State. (De los Santos v.
not require previous qualification in the lower Mallare, G.R. No. L-3881, August 31, 1950)
level. Entrance to the third level shall be
prescribed by the Career Executive Service c. Highly technical – Requires technical skill
Board. or training in the highest degree.
c) Within the same level, no civil service NOTE: The test to determine whether the
examination shall be required for promotion position is non-competitive is the nature of
to a higher position in one or more related the responsibilities, not the description given
occupational groups. A candidate for to it. The Constitution does not exempt the
promotion should, however, have previously above-given positions from the operation of
passed the examination for that level. (P.D. the principle that “no officer or employee of
807, Art. IV) the civil service shall be removed or
suspended except for cause provided by law.”
Manner of appointment to the civil service
Q: Who may be appointed in the civil service?
Appointments in the civil service shall be made
only according to merit and fitness to be A: Whoever fulfills all the qualifications prescribed
determined, as far as practicable, and, except to by law for a particular position may be appointed
positions which are policy-determining, primarily therein.
confidential, or highly technical, by competitive
examination. [1987 Constitution, Art. IX-B Sec. NOTE: The CSC cannot disapprove an
2(2)] appointment just because another person is better
qualified, as long as the appointee is himself
Principal groups of position in the Civil Service, qualified. It cannot add qualifications other than
on the basis of appointment those provided by law. (Cortez v. CSC, G.R. No.
92673, March 13, 1991)
1. Competitive positions – According to merit and
fitness to be determined by competitive Authority to recall appointments
examinations, as far as practicable;
The Civil Service Commission has the authority to
2. Non-competitive positions – Do not have to recall appointments made in disregard of the
take into account merit and fitness. No need applicable provisions of Civil Service Law and
for competitive examinations; and regulations. (Sales v. Carreon Jr., G.R. No. 160791,
a. Policy-determining – They are tasked to February 13, 2007)
formulate a method of action for the
government or any of its subdivisions. Q: The CSC issued a Resolution granting the
b. Primarily confidential – Their duties are City Government of Dumaguete the authority
not merely clerical but devolve upon the to take final action on all its appointments
head of an office, which, by reason of his subject to rules and regulations and within the
numerous duties, delegates his duties to limits and restrictions of the implementing
others, the performance of which guidelines of the CSC Accreditation Program as
requires skill, judgment, trust and amended and subject to monthly monitoring
confidence by the Civil Service Field Office (CSFO). On June
5, 7, and 11, 2001, Dumaguete City outgoing
Proximity Rule Mayor Felipe Antonio B. Remollo promoted 15
city hall employees, and regularized another

2019 GOLDEN NOTE S
74 city hall employees, including the herein 52 The prohibition against suspension or dismissal of
petitioners. But the incoming Mayor Perdices an officer or employee of the Civil Service “except
did not honor the appointments made by for cause provided by law” is “a guaranty of both
former Mayor Remollo and he ordered the City procedural and substantive due process.” “Not
Administrator to direct the City Assistant only must removal or suspension be in accordance
Treasurer to refrain from making any cash with the procedure prescribed by law, but also
disbursements for payments of petitioners' they can only be made on the basis of a valid cause
salary differentials based on their new provided by law.” (Land Bank of the Philippines
positions. Further, a CSC resolution was passed v. Rowena O. Paden, G.R. No. 157607, July 7, 2009)
invalidating the appointments of the
employees. Is the CSC authorized to invalidate Characteristic of security of tenure
appointments?
It is the nature of the appointment that
A: YES. In Quirog v. Aumentado, the Court held that characterizes security of tenure and not the nature
the ruling in De Rama v. Court of Appeals does not of one’s duties or functions.
mean that the raison d' etre behind the prohibition
against midnight appointments may not be Where the appointment is permanent, it is
applied to those made by chief executives of local protected by the security of tenure provision. But
government units. Indeed, the prohibition is if it is temporary or in an acting capacity, which
precisely designed to discourage, nay, even can be terminated at any time, the officer cannot
preclude, losing candidates from issuing invoke the security of tenure.
appointments merely for partisan purposes
thereby depriving the incoming administration of NOTE: The holder of a temporary appointment
the opportunity to make the corresponding cannot claim a vested right to the station to which
appointments in line with its new policies. assigned, nor to security of tenure thereat. Thus,
(Nazareno v. City of Dumaguete, G.R. No. 181559, he may be reassigned to any place or station.
October 2, 2009) (Teotico v. Agda, G.R. No. 87437, May 29, 1991)
Security of tenure Attachment of security of tenure
It means that no officer or employee in the civil It attaches once an appointment is issued and the
service shall be suspended or dismissed except for moment the appointee assumes a position in the
cause provided by law, and after due process or civil service under a completed appointment, he
after he shall have been given the opportunity to acquires a legal, not merely equitable, right (to the
defend himself. position) which is protected not only by statute,
but also by the constitution, and cannot be taken
NOTE: One must be validly appointed to enjoy away from him either by revocation of the
security of tenure. Thus, one who is not appointed appointment, or by removal, except for cause, and
by the proper appointing authority does not with previous notice and hearing. (Aquino v. CSC,
acquire security of tenure. G.R. No. 92403, April 22, 1992)
Once an appointment is issued and completed and
the appointee assumes the position, he acquires a Security of tenure for Career Executive Service
legal right, not merely an equitable right to the (CES)
position. (Lumigued v. Exevea, G.R. No. 117565,
November. 18, 1997) Security of tenure in the CES is thus acquired with
respect to rank and not to position. The guarantee
Regardless of the characterization of the position of security of tenure to members of the CES does
held by a government employee covered by civil not extend to the particular positions to which
service rules, be it career or non-career position, they may be appointed  a concept which is
such employee may not be removed without just applicable only to first and second-level
cause. (Jocom v. Regalado, G.R. No. 77373, August employees in the civil service  but to the rank to
22, 1991) which they are appointed by the President. Within
the CES, personnel can be shifted from one office
Bases of the constitutional guaranty of security or position to another without violation of their
of tenure in the civil service (1999, 2005 Bar) right to security of tenure because their status and
salaries are based on their ranks and not on their
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POLITICAL LAW
jobs. (Seneres v. Sabido, G.R. No. 172902, October indirectly terminate his service, or force his
21, 2015) resignation. Such a transfer would in effect
circumvent the provision that safeguards the
Illustration: The position of NCC (National tenure of office of those who are in the Civil
Computer Center) Director General is a CES Service. (CSC v. PACHEO, G.R. No. 178021, January
position equivalent to Career Executive Service 25, 2012)
Officer (CESO) Rank I. Seneres is already CES
eligible, but no President has yet appointed him NOTE: Acceptance of a temporary appointment or
to any CES rank (despite the previous assignment without reservation or upon one’s
recommendation of the CESB for his own volition is deemed waiver of security of
appointment to CESO Rank I). Therefore, tenure. (Palmera v. CSC, G.R. No. 110168, August 4,
Seneres's membership in the CES is still 1994)
incomplete. Falling short of one of the
qualifications that would complete his Rules applicable to temporary employees vis-
membership in the CES, Seneres cannot a-vis security of tenure
successfully interpose violation of security of
tenure. His appointment to the position of NCC 1. Not protected by security of tenure – can be
Director General could only be construed as removed anytime even without cause;
temporary, and he could be removed any time 2. If they are separated, this is considered an
even without cause. Even assuming that he was expiration of term. But, they can only be
already conferred with a CES rank, his removed by the one who appointed them; and
appointment would be permanent as to his CES 3. Entitled to such protection as may be
rank only but not as to his position as NCC provided by law. [1987 Constitution, Art. IX-B,
Director General. As member of the CES, he could Sec. 2(6)]
be reassigned or transferred from one position
to another from one department, bureau, or Q: May the courts determine the proper
office to another provided that there would be no classification of a position in government? Is
reduction in his rank or salary and that his the position of corporate secretary in a GOCC
reassignment/transfer was not oftener than primarily confidential in nature?
every two years, among other conditions.
(Seneres v. Sabido, ibid.) A: YES. The courts may determine the proper
classification of a position in government. A strict
Security of tenure for non-competitive reading of the law (E.O. 292) reveals that primarily
positions confidential positions fall under the non-career
service. The tenure of a confidential employee is
1. Primarily confidential officers and employees coterminous with that of the appointing authority,
hold office only for so long as confidence in or is at the latter's pleasure. However, the
them remains. If there is genuine loss of confidential employee may be appointed or
confidence, there is no removal, but merely remain in the position even beyond the
the expiration of the term of office. compulsory retirement age of 65 years.
2. Non-career service officers and employees’
security of tenure is limited to a period Jurisprudence establishes that the Court is not
specified by law, coterminous with the bound by the classification of positions in the civil
appointing authority or subject to his service made by the legislative or executive
pleasure, or which is limited to the duration of branches, or even by a constitutional body like the
a particular purpose. CSC. The Court is expected to make its own
3. Political appointees in Foreign Service possess determination as to the nature of a particular
tenure coterminous with that of the position, such as whether it is a primarily
appointing authority or subject to his confidential position or not, without being bound
pleasure. by prior classifications made by other bodies.
Instances where a transfer may be considered In fine, a primarily confidential position is

violative of employee’s security of tenure characterized by the close proximity of the
positions of the appointer and appointee as well as
When the transfer is a preliminary step toward his the high degree of trust and confidence inherent in
removal, or a scheme to lure him away from his their relationship.
permanent position, or when it is designed to

2019 GOLDEN NOTE S
In the light of the instant controversy, the Court's such reassignment shall not involve a
view is that the greater public interest is served if reduction in rank, status or salary; [Revised
the position of a corporate secretary is classified Administrative Code of 1987, Title I-A, Book V,
as primarily confidential in nature. (CSC v. Javier, Chapter 5, Sec. 26(7)]
G.R. No. 173264, February 22, 2008) 8. Demotion – A movement from one position to
another involving the issuance of an
PERSONNEL ACTIONS appointment with diminution in duties,
responsibilities, status or rank which may or
Any action denoting movement or progress of may not involve reduction in salary;
personnel in the civil service. (City Mayor 9. Secondment – It is the movement of an
Debulgado v. CSC, G.R. No. 111471, September 26, employee from one department or agency to
1994) another which is temporary in nature. It may
or may not require the issuance of an
Personnel actions include appointment, and may involve an increase in
compensation and benefits. Acceptance of a
1. Appointment through Certification – It is secondment is voluntary on the part of the
issued to a person who has been selected from employee. The payment of salaries of a
a list of qualified persons certified by the seconded employee shall be borne by the
Commission from an appropriate register of receiving agency and the seconded employee
eligible and who meets all other requirements shall be on leave without pay in his mother
of the position; [Revised Administrative Code of agency for the duration of his secondment.
1987, Title I-A, Book V, Chapter 5, Sec. 26(2)] (Señeres v. Sabido, G.R. No. 172902, Oct. 21,
2. Promotion – It is the movement from one 2015)
position to another with increase in duties and
responsibilities as authorized by law and ACCOUNTABILITY OF PUBLIC OFFICERS
usually accompanied by an increase in pay;
[Revised Administrative Code of 1987, Title I-A, DISCIPLINE
Book V, Chapter 5, Sec. 26(2)]
3. Transfer – A movement from one position to Disciplinary Action
another which is of equivalent rank, level or
salary without break in service involving It is a proceeding, which seeks the imposition of
issuance of an appointment; disciplinary sanction against, or the dismissal or
4. Reinstatement – A person who has been suspension of, a public officer or employee on any
permanently appointed to a position in the of the grounds prescribed by law after due
career service and who has, through no hearing.
delinquency or misconduct, been separated
therefrom, may be reinstated to a position in GROUNDS
the same level for which he is qualified;
5. Reemployment – Persons who have been Grounds for the discipline of public officers
appointed permanently to positions in the
career service and who have been separated 1. Dishonesty;
as result of reduction in force and or 2. Oppression;
reorganization shall be entered in a list from 3. Neglect of duty;
which selection for reemployment shall be
made; (The Revised Administrative Code of NOTE: Gross neglect is such neglect which,
1987, Chapter 5, Book V, Title I-A, Sec. 26[5]) from the gravity of the case or the frequency
6. Detail – A movement of an employee from one of instances, becomes so serious in its
agency to another without issuance of an character as to endanger or threaten the
appointment and shall be allowed, only for a public welfare. (Office of the Court
limited period in the case of employees Administrator v. Guan, A.M. No. P-07-2293, July
occupying professional, technical and 15, 2015)
scientific positions; (The Revised
Administrative Code of 1987, Chapter 5, Book V, 4. Misconduct;
Title I-A, Sec. 26[6]) 5. Disgraceful and immoral conduct;
7. Reassignment – An employee may be 6. Discourtesy in the course of official duties;
reassigned from one organizational unit to 7. Inefficiency and incompetence in the
another in the same agency, provided that performance of official duties;
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POLITICAL LAW
8. Conviction of a crime involving moral Decisionfinding petitioner guilty of grave
turpitude; misconduct. Is the petitioner correct when it
9. Being notoriously undesirable; contended that the CA failed to appreciate that
10. Falsification of official documents; there was no substantial evidence to warrant
11. Habitual drunkenness; the meting out of the extreme penalty of
12. Gambling; dismissal from service?
13. Refusal to perform official duty or render
overtime service; A: NO. Misconduct generally means wrongful,
14. Physical or mental incapacity due to immoral improper or unlawful conduct motivated by a
or vicious habits; and premeditated, obstinate or intentional purpose. It
15. Willful refusal to pay just debts or willful is a transgression of some established and definite
failure to pay taxes. rule of action, a forbidden act, a dereliction of duty.
Qualified by the term “gross,”it means conduct
Q: The Office of the Court Administrator that is“ out of all measure beyond allowance;
recommends that Cesare Sales be dismissed flagrant; shameful; such conduct as is not to be
from service in the Judiciary despite his 17 excused.” We find that the evidence on record
years length of service on the ground of demonstrates a pattern of negligence and gross
habitual tardiness. The Report submitted misconduct on the part of the petitioner that fully
shows that Sales had always been tardy in satisfies the standard of substantial evidence.
going to the office for the months of January to Substantial evidence is such amount of relevant
September 2011. In addition, he was on several evidence that a reasonable mind might accept as
sick leaves, forced leaves, and vacation leaves. adequate to support a conclusion. (Hallasgo v.
On the days he was on leave, he indicated in his Commission on Audit, G.R. No. 171340, September
DTRs "sick leave applied," "vacation leave 11, 2009)
applied" or "forced leave applied." In his
comment, Sales admitted his frequent Q: In 1993, Macario Catipon filed an
tardiness in going to the office but pleaded that application to take the Career Service
he be given consideration by the Court. Should Professional Examination (CPSE), believing
Sales be dismissed from service on the ground that the CSC still allowed applicants to
of habitual tardiness? substitute the length of their government
service for any academic deficiency which they
A:YES. Under CSC Memorandum Circular No. 04, s. may have. When he passed, he was later
1991, an officer or employee shall be considered promoted to Senior Analyst and Officer-in-
habitually tardy if he is late for work, regardless of Charge Branch Head of the SSS Bangued. In
the number of minutes, ten (10) times a month for October 1995, he finally eliminated his
at least two (2) months in a semester, or at least deficiency of 1.5 units in Military Science.
two (2) consecutive months during the year. In
the case of Sales, he had continuously incurred In 2003, he was charged with Dishonesty,
tardiness during the months of January to Falsification of Official documents, Grave
September 2011 for more than 10 times each Misconduct and Conduct Prejudicial to the Best
month, except during the month of March when he Interest of the Service by the CSC-CAR for
only came in late 10 times. (Re: Habitual tardiness making deliberate false entries in his CSPE
of Cesare Sales, MTC Office of Clerk of Court, Manila, application. The CSC exonerated Catipon from
A.M. No. P-13-3171, January 28, 2014) the offense charged but found him guilty of
Conduct Prejudicial to the Best Interest of
Q: Hallasgo was the Municipal Treasurer of the Service. Catipon appealed the judgment
Municipality of Damulog, Bukidnon and was directly to the Court of Appeals, but the
accused before the Office of the Deputy petition was dismissed for violating the
Ombudsman for Mindanao of unauthorized doctrine of administrative remedies.
withdrawal of monies of the public treasury
amounting to malversation of public funds by 1. Is the CA correct?
outgoing and incumbent officials of the 2. Should Catipon be exonerated of the latter
municipality. The Office of the Ombudsman for offense?
Mindanao determined that it could not make a
complete evaluation of the issues without A: 1. YES. It is the Civil Service Commission
conducting an extensive audit. The Deputy Proper, which shall have jurisdiction over
Ombudsman for Mindanao issued a decisions of Civil Service Regional Offices. It is only

2019 GOLDEN NOTE S
the decision of the Commission Proper that may be officer's function. On the basis of the foregoing, the
brought to the CA on petition for review, under Court holds that Borja acted in a manner
Section 50 of MC 19. Indeed, the administrative prejudicial to the best interest of the service. By
agency concerned is in the "best position to causing SPCWD to pay the backwages and other
correct any previous error committed in its benefits due to Eje and Tolentino, Borja clearly
forum." placed said office in a financial disadvantage as it
was made to pay a liability which did not belong to
2. YES. Catipon was negligent in filling up his CSPE it, especially considering that the amount involved
application form and in failing to verify and taken from SPCWD's funds, i.e.,
beforehand the specific requirements for the CSPE P1,942,031.82, is by no means negligible. In doing
examination. The claim of good faith and absence so, the integrity of Borja's office was put in to
of deliberate intent or willful desire to defy or question, and SPCWD was placed in a deleterious
disregard the rules relative to the CSPE is not a financial position. (Office of the Ombudsman vs.
defense as to exonerate him from the charge of Borja, G. R. No. 201830, November 10, 2015,
conduct prejudicial to the best interest of the PER, J. PERLAS-BERNABE)
service; under our legal system, ignorance of the
law excuses no one from compliance therewith. JURISDICTION
(Catipon Jr. vs. Japson, G.R. No. 191787, June 22,
2015) Disciplinary Jurisdiction of Heads of
ministries, agencies and instrumentalities,
Q: In August 1991, the Board of Directors of San provinces, cities and municipalities
Pablo City Water District (SPCWD) passed
separate resolutions dismissing its division They have jurisdiction to investigate and decide
chiefs, Evelyn Eje and Racquel Tolentino, on matters involving disciplinary action against
the basis of the administrative complaint filed officers and employees under their jurisdiction.
by its General Manager, Borja. Eje and Their decision shall be final in case the penalty
Tolentino appealed to the Merit Systems imposed is suspension of not more than 30 days or
Protection Board (MSPB) of the Civil Service fine in an amount not exceeding 30 days salary. In
Commission (CSC), which affirmed their other cases, the decision shall be initially appealed
dismissal from service. The case was, to the department head and finally to the Civil
thereafter, elevated to the CA which set aside Service Commission and pending appeal, the same
Eje and Tolentino's dismissal and awarded shall be executory except when the penalty is
them backwages an other employment removal, in which case the same shall be executory
benefits. The CA, however, ruled that the only after confirmation by the department head.
backwages could not be charged against (Sec. 37, P.D. 807)
SPCWD, in view of the doctrine that where a
public officer removes or dismisses another Note: Sec. 9, R.A. 4670 Magna Carta for Public
officer wrongfully, he acts outside the scope of School Teachers provides that the committee to
his authority and hence, shall be held hear administrative charges against public school
personally liable. Eje and Tolentino were teachers must include a representative of the
reinstated and paid their backwages which teachers’ organization. The appointment by the
were, however, taken from SPCWD's funds DECS Secretary of teachers to the committee does
upon Borja's approval. Borja and the other not comply with this requirement, as it is the
officers of SPCWD were charged teachers’ organization which possesses the right
administratively on the ground that they used to indicate its choice of representative in the
public funds to settle a private obligation, committee, and the DECS Secretary cannot usurp
considering that the said backwages and other such right. The inclusion of a representative of the
benefits were Borja's personal liabilities. Will teachers’ organization in the committee is
the administrative case against Borja prosper? indispensable to ensure an impartial tribunal.
(Fabella v. Court of Appeals G R No. 110379,
A: YES. While there is no concrete description of November 28, 1997)
what specific acts constitute the offense of conduct
prejudicial to the best interest of the service under Disciplinary Jurisdiction of Civil Service
the civil service law and rules, it has been Commission
jurisprudentially held to pertain to acts that
tarnish the image and integrity of the public office, It has jurisdiction over the employees of
even if it not be related or connected to the public Government branches, subdivisions,
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POLITICAL LAW
instrumentalities, and agencies, including Availability of appeal in administrative
government-owned or -controlled corporations disciplinary cases
with original charters. It has the authority to hear
and decide administrative disciplinary cases 1. Appeal is available if the penalty is:
instituted directly with it or brought to it on appeal a. Demotion;
and to enforce or order execution of its decisions, b. Dismissal; or
resolutions or orders. (De Leon, 2014) c. Suspension for more than 30 days or fine
equivalent to more than 30 day salary.
Supreme Court upheld the authority of the Civil [P.D. 807, Sec.37(a)]
Service Commission to hear and decide a
complaint filed by the CSC itself against NOTE: Decisions are initially appealable to the
petitioners. In this case, the acts complained of department heads and then to the CSC. Only the
arose from cheating allegedly committed by the respondent in the administrative disciplinary
petitioners in the civil service examination. The case, not the complainant, can appeal to the CSC
examination was under the direct control and from an adverse decision. The complainant in an
supervision of the Commission. The culprits were administrative disciplinary case is only a witness,
government employees over whom the and as such, the latter cannot be considered as an
Commission undeniably has jurisdiction. (Cruz v. aggrieved party entitled to appeal from an adverse
Civil Service Commission, G.R, No. 144464, decision. (Mendez v. CSC, G. R. No. 95575, December
November 27, 2001) 23, 1991)
Jurisdiction over administrative disciplinary 2. Appeal is NOT available if the penalty is:
actions against elective local officials. a. Suspension for not more than 30 days;
b. Fine not more than 30 day salary;
Jurisdiction over administrative disciplinary c. Censure;
actions against elective local officials is lodged in d. Reprimand;
two authorities: the Disciplinary Authority and the e. Admonition; or
Investigating Authority. (A.O. No. 23) f. When the respondent is exonerated.
The Disciplining Authority is the President of the NOTE: In the second case, the decision becomes
Philippines, whether acting by himself or through final and executory by express provision of law.
the Executive Secretary. The Secretary of the
Interior and Local Government is the Investigating Availability of the services of the Solicitor
Authority, who may act by himself or constitute an General
Investigating Committee. The Secretary of the
DILG, however, is not the exclusive Investigating If the public official is sued for damages arising
Authority. In lieu of the DILG Secretary, the out of a felony for his own account, the State is not
Disciplining Authority may designate a Special liable and the Solicitor General is not authorized
Investigating Committee. to represent him therefore. The Solicitor General
may only do so in suits for damages arising not
The President as Disciplinary Authority from a crime but from the performance of a public
officer’s duties. (Vital-Gozon v. CA, G.R No. 101428,
The power to discipline evidently includes the August 5, 1992)
power to investigate. As the Disciplining
Authority, the President has the power derived The Office of the Solicitor General can represent
from the Constitution itself to investigate the public official at the preliminary investigation
complaints against local government officials. A.O. of his case, and that if an information is eventually
No. 23, however, delegates the power to filed against the said public official, the said Office
investigate. The President remains the may no longer represent him in the litigation.
Disciplining Authority. What is delegated is the (Anti-Graft League v. Ortega, G.R. No. L-33912,
power to investigate, not the power to discipline. September 11, 1980)
Note: A Presidential appointee is under the direct DISMISSAL, PREVENTIVE SUSPENSION,

disciplinary authority of the President (Villaluz v. REINSTATEMENT AND BACK SALARIES
Zaldivar, G.R. No. L-22754, December 31, 1965)
Nature of preventive suspension

2019 GOLDEN NOTE S
Preventive suspension is not a penalty by itself; it PENDING
is merely a measure of precaution so that the PENDING APPEAL
INVESTIGATION
employee who is charged may be separated from
the scene of his alleged misfeasance while the Not a penalty but only a Punitive in character
same is being investigated, to prevent him from means of enabling the
using his position or office to influence disciplinary authority
prospective witnesses or tamper with the records, an unhampered
which may be vital in the prosecution of the case investigation
against him. (Beja v. CA, G.R. No. 91749, March 31, After the lapse of If exonerated, he
1992) 90 days, the law should be reinstated
provides that he be with full pay for the
It can be ordered even without a hearing because automatically period of suspension
this is only preliminary step in an administrative reinstated
investigation. (Alonzo v. Capulong, et al., G.R. No.
110590, May 10, 1995) During such preventive If during the appeal
suspension, the he remains
NOTE: When a public officer is charged with employee is not entitled suspended and the
violation of the Anti-Graft and Corrupt Practices to payment of salaries penalty imposed is
Act or R.A. 3019, a pre-suspension hearing is only reprimand, the
required solely to determine the applicability of suspension pending
such law and for the accused be given a fair and appeal becomes
adequate opportunity to challenge the validity of illegal and he is
the criminal proceedings against him. This may be entitled to back
done through various pleadings. (Torres v. salary
Garchitorena, G.R. No. 153666, December 27, 2002) corresponding to the
period of
Periods of preventive suspension suspension.
1. For administrative cases: Q: Is a public officer entitled to back wages

a. Civil Service Law – 90 days during his suspension pending appeal when
b. Local Government Code (R.A. 7160) the result of the decision from such
i. Sec. 85: 60 days for appointive officials appeal does not amount to complete
(suspension to be imposed by the local exoneration but carries with it a certain
chief executive) number of days of suspension?
ii. Sec. 63: 60 or 90 days for elective
officials A: NO. Although entitled to reinstatement, he is
not entitled to back wages during such suspension
c. Ombudsman Act – six months pending appeal. Only one who is completely
exonerated or merely reprimanded is entitled to
2. For criminal cases: Anti-Graft and Corrupt such back wages. (Sec. of Education v. CA. G.R. No.
Practices Act (R.A. 3019) – 90 days by analogy. 128559, October 4, 2000)
(Gonzaga v. Sandiganbayan G.R. No. 96131
September 6, 1991) Conditions before an employee may be entitled
to back salaries
NOTE: Service of preventive suspension will not
be credited to the penalty of suspension after 1. The employee must be found innocent of the
having been found guilty because they are of charges; and
different character. If however the preventive 2. His suspension must be unjustified. (CSC v.
suspension is indefinite wherein his term is about Cruz GR No. 187858, August 9, 2011)
to expire and suspension is not lifted such will be
considered unconstitutional for being violative of NOTE: The requirement that the suspension must
due process of law. (Layno, Sr. v. Sandiganbayan, be unjustified is automatically subsumed in the
G.R. No. L-65848, May 24, 1985) other requirement of exoneration. (CSC v. Cruz GR
No. 187858, August 9, 2011)
Preventive suspension pending investigation
vs. preventive suspension pending appeal Q: When is suspension unjustified?
201
POLITICAL LAW
If the proper penalty imposable for the offense Good faith vs. COA disallowance
actually committed does not exceed one month,
then there would have been no occasion for a Every public official is entitled to the presumption
suspension pending appeal since a decision of good faith in the discharge of official duties, such
imposing the penalty of suspension for not more that, in the absence of any proof that a public
than 30 days or fine in an amount not exceeding officer has acted with malice or bad faith, he
thirty days salary is final and not subject to appeal. should not be charged with personal liability for
(Book V, Section 47, par. 2 of Executive Order No. damages that may result from the performance of
292; Section 7, Rule III of Administrative Order No. an official duty. (Lanto vs COA, G.R. No. 217189,
7, Rules of Procedure of the Office of the April 18, 2017)
Ombudsman, April 10, 1990, as amended by
Administrative Order No.17, September 15, 2003 Under the circumstances, the petitioners albeit
which took effect on November 19, 2003) officials of the MWSS, were not members of the
Board of Trustees and, as such, could not be held
Reinstatement and Back Salaries personally liable for the disallowed benefits by
virtue of their having had no part in the approval
Guiding principles of the disallowed benefits. In sum, the recipients of
the benefits  officials and employees alike  were
1. Reinstatement and back salaries are not liable to refund the amounts received for
separate and distinct reliefs available to an having acted in good faith due to their honest
illegally dismissed public officer or belief that the grant of the benefits had legal basis.
employee; (Metropolitan Waterworks and Sewerage System v.
2. Back salaries may be awarded to illegally COA, G.R. No. 217189, November 21, 2017)
dismissed based on the constitutional
provision that no officer or employee in the CONDONATION DOCTRINE
civil service shall be removed or suspended
except for cause provided by law; to deny The condonation doctrine connotes a complete
these employees their back salaries extinguishment of liability of a public officer or
amounts to unwarranted punishment after “denying the right to remove one from office
they have been exonerated from the charge because of misconduct during a prior term.”
that led to their dismissal or suspension.
The present legal basis for an award of back Under the new ruling, the Supreme Court simply
salaries is in Section 47, Book V of the finds no legal authority to sustain the condonation
Administrative Code of 1987; doctrine in this jurisdiction. It was a doctrine
3. Back salaries are ordered paid to an officer adopted from one class of US rulings way back in
or an employee only if he is exonerated of 1959 and thus, out of touch from – and now
the charge against him and his suspension rendered obsolete by – the current legal regime. In
or dismissal is found and declared to be consequence, it is high time to abandon the
illegal; condonation doctrine that originated from
4. If the exoneration of the employee is Pascual, and affirmed in the cases following the
relative (as distinguished from complete same, such as Aguinaldo, Salalima, Mayor Garcia,
exoneration), an inquiry into the factual and Governor Garcia, Jr.
premise of the offense charged and of the
offense committed must be made. If the Prospective application of the doctrine
administrative offense found to have been
actually committed is of lesser gravity than The abandonment of the condonation doctrine
the offense charged, the employee cannot should be prospective in application for the reason
be considered exonerated if the factual that judicial decisions applying or interpreting the
premise for the imposition of the lesser laws or the Constitution, until reversed, shall form
penalty remains the same. The employee part of the legal system of the Philippines. (Carpio-
found guilty of a lesser offense may only be Morales v. CA, G.R. No. 217126-27, November 10,
entitled to back salaries when the offense 2015, PER, J. PERLAS-BERNABE)
actually committed does not carry the
penalty of more than one-month The condonation doctrine would not apply to
suspension or dismissal. (CSC v. Cruz, G.R. appointive officials since, as to them, there is no
No. 187858, August 9, 2011) sovereign will to disenfranchise. (Carpio-Morales
v. CA, ibid.)

2019 GOLDEN NOTE S
This refers to “acts which are just short of being
IMPEACHMENT criminal but constitute gross faithlessness against
public trust, tyrannical abuse of power, inexcusable
It is a method of national inquest into the conduct negligence of duty, favoritism, and gross exercise of
of public men. It is an extraordinary means of discretionary powers.” Acts that should constitute
removal exercised by the legislature over a betrayal of public trust as to warrant removal from
selected number of officials, the purpose being to office may be less than criminal but must be
ensure the highest care in their indictment and attended by bad faith and of such gravity and
conviction and the imposition if special penalties seriousness as the other grounds for impeachment.
in case of finding a guilt, taking into account the (Gonzales III v. Office of the President, G.R. No.
degree or nature of the offense committed and the 196231, September 4, 2012)
high status of the wrongdoers. (Cruz and Cruz,
Philippine Political Law, 2014) New ground added as a catch-all to cover all manner
of offenses unbecoming a public functionary but not
Impeachable officers punishable by criminal statutes like:
1. President; 1. Inexcusable negligence of duty

2. Vice-President; 2. Tyrannical abuse of authority
3. Members of the Supreme Court; 3. Breach of official duty by malfesance or
4. Members of the Constitutional Commissions; misfeasance, cronyism, favorititsm, obstruction of
and duty. (Cruz, Philippine Political Law)
5. Ombudsman.
Steps in the impeachment process (2012 Bar)
NOTE: The enumeration is exclusive. (1987
Constitution, Art. XI,Sec. 2) Constituion provides that the House of
Representatives shall have the exclusive power to
An impeachable officer may be ousted from office inititate all cases of impeachment. (1987
through other means of methods, such as quo Constitution, Art XI)
warranto. (Republic v. Sereno, G.R. No. 237428,
May, 11, 2018) 3. Initiating impeachment case
a. Verified complaint filed by any member of
Grounds for impeachment (CTB-GOB) (1999, the House of Representatives or any
2012, 2013 Bar) citizen upon resolution of endorsement
by any member thereof;
1. Culpable violation of the Constitution;
2. Treason; NOTE: If the verified complaint is filed by
3. Bribery; at least 1/3 of all its members of the
4. Graft and Corruption; House of Representatives, the same shall
5. Other high crimes ; and constitute the Articles of Impeachment,
6. Betrayal of public trust. (1987 Constitution, and trial by the Senate shall forthwith
Art. XI, Sec. 2) proceed. [1987 Constitution, Art. XI, Sec. 3
(4)]
NOTE: The enumeration is exclusive.
b. Inclusion in the order of business within
Culpable violation of the Constitution 10 session days;
c. Referred to the proper committee within
It refers to wrongful, intentional or willful disregard 3 session days from its inclusion;
or flouting of the fundamental law. Obviously, the d. The committee, after hearing, and by
act must be deliberate and motivated by bad faith to majority vote of all its members, shall
constitute a ground for impeachment. Mere submit its report to the House of
mistakes in the proper construction of the Representatives together with the
Constitution, on which students of law may corresponding resolution;
sincerely differ, cannot be considered a valid ground e. Placing on calendar the Committee
for impeachment. resolution within 10 days from
submission;
Betrayal of public trust f. Discussion on the floor of the report; and
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POLITICAL LAW
g. A vote of at least 1/3 of all the members of the committee.” (Gutierrez v. House of
the House of Representatives shall be Representatives Committee on Justice, G.R. No.
necessary either to affirm a favorable 193459, February 15, 2011)
resolution with the Articles of
Impeachment of the committee or Power of the HoR to determine the sufficiency
override its contrary resolution. [(1987 of form and substance of an impeachment
Constitution, Art. XI, Sec. 3 (2-3)] complaint
4. Trial and Decision in impeachment proceedings It is an exponent of the express constitutional

a. The Senators take an oath or affirmation; grant of rulemaking powers of the HoR. In the
and discharge of that power and in the exercise of its
discretion, the House has formulated
NOTE: When the President of the determinable standards as to form and substance
Philippines shall be impeached, the Chief of an impeachment complaint. Furthermore the
Justice of the Supreme Court shall preside, impeachment rules are clear in echoing the
otherwise the Senate President shall constitutional requirements in providing that
preside in all other cases of impeachment. there must be a “verified complaint or resolution”
(Senate Resolution No. 890) and that the substance requirement is met if there
is “a recital of facts constituting the offense
b. A decision of conviction must be charged and determinative of the jurisdiction of
concurred in by at least 2/3 of all the the committee”. (Gutierrez v. House of
members of Senate. Representatives Committee on Justice, ibid.)
NOTE: The power to impeach is essentially a non- Limitations imposed by the Constitution upon
legislative prerogative and can be exercised by the initiation of impeachment proceedings
conferred upon it by the Constitution. (Gutierrez v. 1. The House of Representatives shall have the
House of Representatives Committee on Justice, G.R. exclusive power to initiate all cases of
No. 193459, February 15, 2011) impeachment; and
2. Not more than one impeachment proceeding
The Senate has the sole power to try and decide all shall be initiated against the same official within a
cases of impeachment. [1987 Constitution, Art. XI, period of one year (One-year bar rule).
Sec. 3(6)] Hence, judgment in an impeachment
proceeding is normally not subject to judicial NOTE: An impeachment case is the legal
review. controversy that must be decided by the Senate
while an impeachment proceeding is one that is
XPN: Courts may annul the proceedings if there is initiated in the House of Representatives. For
a showing of a grave abuse of discretion or non- purposes of applying the one-year bar rule, the
compliance with the procedural requirements of proceeding is initiated or begins when a verified
the Constitution. complaint is filed and referred to the Committee
on Justice for action. (Francisco v. House of
Determination of sufficiency of form and Representatives, et. al., G.R. No. 160261, November
substance of an impeachment complaint 10, 2003)
An exponent of the express constitutional grant of The power to impeach is essentially a non-
rulemaking powers of the HoR. legislative prerogative and can be exercised by
In the discharge of that power and in the exercise conferred upon it by the Constitution. (Francisco v.
of its discretion, the House has formulated House of Representatives, ibid) It is, by its nature, a
determinable standards as to form and substance sui generis politico-legal process. (Gonzales III v.
of an impeachment complaint. Furthermore, the Office of the President, G.R.196231, January 28,
impeachment rules are clear in echoing the 2014)
constitutional requirements in providing that
there must be a “verified complaint or resolution” Impeachment is deemed initiated
and that the substance requirement is met if there
is “a recital of facts constituting the offense A verified complaint is filed and referred to the
charged and determinative of the jurisdiction of Committee on Justice for action. This is the

2019 GOLDEN NOTE S
initiating step which triggers the series of steps Effects of conviction in impeachment (2012
that follow. The term “to initiate” refers to the Bar)
filing of the impeachment complaint coupled with
Congress’ taking initial action of said complaint. 1. Removal from office;
(Francisco v. House of Rep., G.R. No. 160261, Nov. 10, 2. Disqualification to hold any other office under
2003) the Republic of the Philippines; and
3. Party convicted shall be liable and subject to
One-year bar rule (2014 Bar) prosecution, trial and punishment according
to law. [1987 Constitution, Art. XI, Sec. 3 (7)]
Initiation takes place by the act of filing of the
impeachment complaint and referral to the House Q: Can a Supreme Court Justice be charged in a
Committee on Justice. Once an impeachment criminal case or disbarment proceeding
complaint has been initiated in the foregoing instead of an impeachment proceeding?
manner, another may not be filed against the same
official within the one year period. (Gutierrez v. A: NO, because the ultimate effect of either is to
HoR Committee on Justice, ibid.) remove him from office, circumventing the
provision on removal by impeachment thus
NOTE: The limitation refers to the element of time, violating his security of tenure. (In Re: First
and not the number of complaints. The Indorsement from Hon. Raul Gonzalez, A.M. No. 88-
impeachable officer should defend himself in only 4-5433, April 15, 1988)
one impeachment proceeding, so that he will not
be precluded from performing his official An impeachable officer who is a member of the
functions and duties. Similarly, Congress should Philippine bar cannot be disbarred first without
run only one impeachment proceeding so as not to being impeached. (Jarque v. Desierto, A.C. No. 4509,
leave it with little time to attend to its main work December 5, 1995)
of law-making. (Gutierrez v. The House of
Representatives Committee on Justice, ibid.) Judicial review in impeachment proceedings
Purpose of the one-year bar rule The precise role of the judiciary in impeachment
cases is a matter of utmost importance to ensure
1. To prevent undue or too frequent harassment; the effective functioning of the separate branches
and while preserving the structure of checks and
2. To allow the legislature to do its principal task balance in our government. The acts of any branch
of legislation. (Francisco v. House of or instrumentality of the government, including
Representatives supra.) those traditionally entrusted to the political
departments, are proper subjects of judicial
The consideration behind the intended limitation review if tainted with grave abuse or arbitrariness.
refers to the element of time, and not the number (Chief Justice v. Senate, G.R. No. 200242, July 17,
of complaints. The impeachable officer should 2012)
defend himself in only one impeachment
proceeding, so that he will not be precluded from THE OMBUDSMAN
performing his official functions and duties.
Similarly, Congress should run only one Composition:
impeachment proceeding so as not to leave it with
little time to attend to its main work of law- 1. The Ombudsman;
making. The doctrine laid down in Francisco that 2. One overall Deputy;
initiation means filing and referral remains 3. At least one Deputy each for Luzon, Visayas and
congruent to the rationale of the constitutional Mindanao; and
provision. (Gutierrez v. The House of 4. One Deputy for the military establishment.
Representatives Committee on Justice, supra) (1987 Philippine Constitution, Art. XI, Sec. 5)
NOTE: Congress may look into separate FUNCTIONS

complaints against an impeachable officer and
consider the inclusion of matters raised therein, in 1. Investigate and prosecute on its own or on
the adoption of the Articles of Impeachment. complaint by any person, any act or
(Francisco v. House of Representatives, et. al., supra) omission of any public officer or employee,
office or agency, when such act or omission
205
POLITICAL LAW
appears to be illegal, unjust, improper or paragraphs (1), (2), (3) and (4) hereof,
inefficient. It has primary jurisdiction over when circumstances so warrant and with
cases cognizable by the Sandiganbayan and, due prudence: provided, that the
in the exercise of this primary jurisdiction, Ombudsman under its rules and regulations
it may take over, at any stage, from any may determine what cases may not be made
investigatory agency of Government, the public: provided, further, that any publicity
investigation of such cases; (2012 Bar) issued by the Ombudsman shall be
balanced, fair and true;
2. Direct, upon complaint or at its own
instance, any officer or employee of the 7. Determine the causes of inefficiency, red
Government, or of any subdivision, agency tape, mismanagement, fraud, and
or instrumentality thereof, as well as any corruption in the Government, and make
government-owned or controlled recommendations for their elimination and
corporations with original charter, to the observance of high standards of ethics
perform and expedite any act or duty and efficiency;
required by law, or to stop, prevent, and
correct any abuse or impropriety in the 8. Administer oaths, issue subpoena and
performance of duties; subpoena duces tecum, and take testimony
in any investigation or inquiry, including the
3. Direct the officer concerned to take power to examine and have access to bank
appropriate action against a public officer accounts and records;
or employee at fault or who neglect to
perform an act or discharge a duty required 9. Punish for contempt in accordance with the
by law, and recommend his removal, Rules of Court and under the same
suspension, demotion, fine, censure, or procedure and with the same penalties
prosecution, and ensure compliance provided therein;
therewith; or enforce its disciplinary
authority as provided in Section 21 of R.A. 10. Delegate to the Deputies, or its investigators
6770: provided, that the refusal by any or representatives such authority or duty as
officer without just cause to comply with an shall ensure the effective exercise or
order of the Ombudsman to remove, performance of the powers, functions, and
suspend, demote, fine, censure, or duties herein or hereinafter provided;
prosecute an officer or employee who is at
fault or who neglects to perform an act or 11. Investigate and initiate the proper action for
discharge a duty required by law shall be a the recovery of ill-gotten and/or
ground for disciplinary action against said unexplained wealth amassed after February
officer; (2009 Bar) 25, 1986 and the prosecution of the parties
involved therein; and (R.A. 6770, Sec. 15)
4. Direct the officer concerned, in any
appropriate case, and subject to such 12. Promulgate its rules of procedure and
limitations as it may provide in its rules of exercise such other powers or perform such
procedure, to furnish it with copies of functions or duties as may be provided by
documents relating to contracts or law. [1987 Constitution, Art. XI, Sec. 13(7);
transactions entered into by his office see also R.A. 6770, Sec. 18]
involving the disbursement or use of public
funds or properties, and report any NOTE: The Ombudsman can investigate the acts of
irregularity to the Commission on Audit for the Supreme Court. (2003 Bar)
appropriate action;
The powers of the Ombudsman are not merely
5. Request any government agency for recommendatory. His office was given teeth to
assistance and information necessary in the render this constitutional body not merely
discharge of its responsibilities, and to functional but also effective. Under R.A. 6770 and
examine, if necessary, pertinent records and the 1987 Constitution, the Ombudsman has the
documents; constitutional power to directly remove from
government service an erring public official other
6. Publicize matters covered by its than a member of Congress and the Judiciary.
investigation of the matters mentioned in (Estarija v. Ranada, G.R. No. 159314, June 26, 2006)

2019 GOLDEN NOTE S
the Constitutional Commissions, and they shall
Effect of charges arising from same receive the same salary, which shall not be
act/omission lodged before the Ombudsman decreased during their term of office. (1987
and regular courts Philippine Constitution, Art. XI, Sec. 10)
Administrative and criminal charges filed before Disqualifications and inhibitions

the Office of the Ombudsman and the trial court,
respectively, are separate and distinct from each 1. Shall not hold any other office or employment;
other even if they arise from the same act or 2. Shall not engage in the practice of any
omission. This is because the quantum of proof profession or in the active management or
required in criminal cases is proof beyond control of any business which in any way may
reasonable doubt, while in administrative cases, be affected by the functions of his office; and
only substantial evidence is required. Moreover, 3. Shall not be financially interested, directly or
the purpose of the administrative proceedings is indirectly, in any contract with, or in any
mainly to protect the public service, based on the franchise or privilege granted by the
time-honored principle that a public office is a government, or any of its subdivisions, etc.
public trust. On the other hand, the purpose of the Shall not be qualified to run for any office in
criminal prosecution is the punishment of crime. the election immediately succeeding their
Thus, even the dismissal of a criminal case does cessation from office. (R.A. 6770, Sec. 9)
not necessarily foreclose the administrative action
against the respondent. (Gonzales v. Serrano. G.R. Scope of powers
No. 175433, March 11, 2015)
1. The Ombudsman can investigate only officers
Ombudsman’s fiscal autonomy of government owned corporations with
original charters; (Khan, Jr v. Ombudsman, G.R.
The Ombudsman shall enjoy fiscal autonomy. Its No. 125296, July 20, 2006)
approved annual appropriations shall be
automatically and regularly released. (1987 2. The jurisdiction of the Ombudsman over
Constitution, Art. XI, Sec. 14) disciplinary cases involving public school
teachers has been modified by Sec. 9 of R.A.
Term of office 4670 (Magna Carta for Public School
Teachers) which says that such cases must
Seven years without reappointment. (1987 first go to a committee appointed by the
Constitution, Art. XI, Sec. 11) Secretary of Education; (Ombudsman v.
Estandarte, G.R. 168670, April 13, 2007)
Qualifications of the Ombudsman and his
Deputies 3. The Ombudsman Act authorizes the
Ombudsman to impose penalties in
1. Natural born citizen of the Philippines; administrative cases; (Ombudsman v. CA, G.R.
2. At least 40 years of age at the time of No. 167844, Nov. 22, 2006; Ombudsman v.
appointment; Lucero, G.R. No. 168718 November 24, 2006)
3. Of recognized probity and independence;
4. Member of the Philippine Bar; NOTE: According to Sec. 60 of the LGC,
5. Must not have been candidate for any elective elective officials may be dismissed only by the
office in the immediately preceding election; proper court. “Where the disciplining
and authority is given only the power to suspend
6. For the Ombudsman: He must have been for and not the power to remove, it should not be
10 years or more, a judge or engaged in the permitted to manipulate the law by usurping
practice of law in the Philippines. the power to remove.” (Sangguniang
Barangay v. Punong Barangay, G.R. No.
NOTE: The Ombudsman may only be removed by 170626, March 3, 2008)
impeachment.
4. The Special Prosecutor may not file
Rank and salary information without authority from the
Ombudsman; (Perez v. Sandiganbayan, G.R.
The Ombudsman and his Deputies shall have the No. 166062, September 26, 2006)
rank of Chairman and Members, respectively, of
207
POLITICAL LAW
5. The Ombudsman has been conferred rule that as it may, the refusal, without just cause, of
making power to govern procedures under it; any officer to comply with such an order of the
(Buencamino v. CA, GR 175895, April 12, 2007) Ombudsman to penalize erring officer or
employee is a ground for disciplinary action. Thus,
6. A preventive suspension will only last 90 days, there is a strong indication that the Ombudsman’s
not the entire duration of the criminal case; recommendation is not merely advisory in nature
(Villasenor v. Sandiganbayan G.R. No. 180700, but actually mandatory within the bounds of law.
March 4, 2008) This should not be interpreted as usurpation of the
Ombudsman of the authority of the head of office
7. Sec 14, first paragraph, of the Ombudsman or any officer concerned. It has long been settled
Act, which says, “No writ of injunction shall be that the power of the Ombudsman to investigate
issued by any court to delay an investigation and prosecute any illegal act or omission of any
being conducted by the Ombudsman under this public official is not an exclusive authority, but a
Act, unless there is a prima facie evidence that shared or concurrent authority in respect of the
the subject matter of the investigation is offense charged. (Ledesma v. CA, G.R. No. 161629,
outside the jurisdiction of the Office of the July 29, 2005)
Ombudsman” is DECLARED INEFFECTIVE
until SC issues a procedural rule on the Power of the Military Deputy Ombudsman to
matter; and (Carpio-Morales v. CA, G.R. No. investigate civilian police
217126-27, November 10, 2015)
Since the power of the Ombudsman is broad and
8. Sec 14, second paragraph, of the Ombudsman the Deputy Ombudsman acts under the direction
Act, which says, “No court shall hear any of the Ombudsman, the power of the Military
appeal or application for remedy against the Deputy to investigate members of the civilian
decision or findings of the Ombudsman, except police has also been affirmed. (Acop v.
the Supreme Court, on pure question of law” is Ombudsman, G.R. No. 120422, September 27, 1995)
UNCONSTITUTIONAL for it attempts to
effectively increase SC’s appellate jurisdiction The Ombudsman may still investigate even if
without its advice and concurrence. (Carpio- the private complainants lack sufficient
Morales v. Binay, Jr., ibid.) personal interest in the subject matter of
grievance
Delegability of the powers of the Ombudsman
Sec 20 of R.A. 6770 has been clarified by the Rules
The power to investigate or conduct a preliminary of Procedure of the Office of the Ombudsman.
investigation on any Ombudsman case may be Under, Sec 4, Rule III thereof, even if the ground
exercised by an investigator or prosecutor of the raised is the supposed lack of sufficient personal
Office of the Ombudsman, or by any Provincial or interest of complainants in the subject matter of
City Prosecutor or their assistants, either in their the grievance under Sect 20(4) [R.A. 6770], the
regular capacities or as deputized Ombudsman dismissal on that ground is not mandatory and is
prosecutors. (Honasan II v. Panel of Investigators of discretionary on the part of the Ombudsman or
the DOJ, G.R. No. 159747, June 15, 2004) Deputy Ombudsman evaluating the
administrative complaint. The Ombudsman
NOTE: While the Ombudsman’s power to cannot be faulted for exercising its discretion
investigate is primary, it is not exclusive and, under Sec 20 of R.A. 6670, which allows the
under the Ombudsman Act of 1989, he may Ombudsman to decide not to conduct the
delegate it to others and take it back any time he necessary investigation of any administrative act
wants to. (Acop v. Ombudsman, G.R. No. 120422, or omission complained of, if it believes that the
September 27, 1995) complainant has no sufficient personal interest in
the subject matter of the grievance. (Bueno v. Office
Power of the Ombudsman to directly dismiss a of the Ombudsman, G.R. No. 191712, September 17,
public officer 2014)
Under Sec. 13(3) of Art. XI, the Ombudsman can Q: Can the claim of confidentiality prevent the
only recommend to the officer concerned the Ombudsman from demanding the production
removal of a public officer or employee found to be of documents needed for their investigation?
administratively liable. (Tapiador v. Office of the
Ombudsman, G.R. No. 129124. March 15, 2002) Be

2019 GOLDEN NOTE S
A: NO. In Almonte v. Vasquez, G.R. No. 95367, May JUDICIAL REVIEW IN PENAL PROCEEDINGS
23, 1995,the Court said that where the claim of
confidentiality does not rest in the need to protect Authority of the Ombudsman in reviewing
military, diplomatic or the national security penal proceedings
secrets but on general public interest in preserving
confidentiality, the courts have declined to find in In the exercise of its investigative power, the Court
the Constitution an absolute privilege even for the has consistently held that courts will not interfere
President. with the discretion of the fiscal or the Ombudsman
to determine the specificity and adequacy of the
Moreover, even in cases where matters are really averments of the offense charged. He may dismiss
confidential, inspection can be done in camera. the complaint forthwith if he finds it to be
insufficient in form and substance or if he
JUDICIAL REVIEW IN ADMINISTRATIVE otherwise finds no ground to continue with the
PROCEEDINGS inquiry; or he may proceed with the investigation
of the complaint if, in his view, it is in due and
Authority of the Ombudsman in reviewing proper form. (Ocampo v. Ombudsman, G.R. No.
Administrative proceedings 103446-47, August 30, 1993)
Sec. 19 of the Ombudsman Act further enumerates NOTE: In Garcia-Rueda v. Pascasio, G.R. No.
the types of acts covered by the authority granted 118141, September 5, 1997, the Court held that
to the Ombudsman. The Ombudsman shall act on “while the Ombudsman has the full discretion to
all complaints relating, but not limited to acts or determine whether or not a criminal case is to be
omissions which: filed, the Court is not precluded from reviewing
the Ombudsman’s action when there is grave
1. Are contrary to law or regulation; abuse of discretion.”
2. Are unreasonable, unfair, oppressive or
discriminatory; OFFICE OF THE SPECIAL PROSECUTOR
3. Are inconsistent with the general course of an
agency's functions, though in accordance with The existing Tanodbayan (at the time of the
law; adoption of the 1987 Constitution) shall hereafter
4. Proceed from a mistake of law or an arbitrary be known as the Office of the Special Prosecutor. It
ascertainment of facts; shall continue to function and exercise its powers
5. Are in the exercise of discretionary powers as now or hereafter provided by law, except those
but for an improper purpose; or conferred on the Office of the Ombudsman created
6. Are otherwise irregular, immoral or devoid of under the Constitution. (Zaldivar v. Gonzales, G.R.
justification. No. 79690-707, October 7, 1988)
In the exercise of its duties, the Ombudsman is The Tanodbayan (called the Special Prosecutor
given full administrative disciplinary authority. under the 1987 Constitution) is clearly without
His power is not limited merely to receiving, authority to conduct preliminary investigations
processing complaints, or recommending and to direct the filing of criminal cases with the
penalties. He is to conduct investigations, hold Sandiganbayan, except upon orders of the
hearings, summon witnesses, and require Ombudsman. The right to do so was lost when the
production of evidence and place respondents 1987 Constitution became effective on February 2,
under preventive suspension. This includes the 1987. (Salvador Perez v. Sandiganbayan, G.R. No.
power to impose the penalty of removal, 166062, September 26, 2006)
suspension, demotion, fine, or censure of a public
officer or employee. (Ombudsman v. Galicia, G.R. In Orap v. Sandiganbayan, 139 SCRA 252, it was
No. 167711, October 10, 2008) held that the Special Prosecutor may prosecute
before the Sandiganbayan judges accused of graft
NOTE: Appeals from resolutions of the Office of and corruption, even if they come under the
the Ombudsman in administrative disciplinary administrative supervision of the Supreme Court.
cases should be taken to the Court of Appeals via In Inting v. Tanodbayan, 97 SCRA 494, it was held
Petition for Review under Rule 43 of the Rules of that pursuant to PD 1607, the Tanodbayan could
Court . (Fabian v. Desierto, G.R. No. 129742, review and reverse the findings of the City Fiscal,
September 16, 1998) and order him to withdraw certain charges,
inasmuch as the President’s power of control (in
209
POLITICAL LAW
this instance) is exercised not by the Secretary of treasurers, assessors, engineers and
Justice but by the Tanodbayan because the other provincial department heads;
offense/s charged were allegedly committed by a ii. City mayors, vice-mayors, members of
public functionary in connection with her office. the sangguniang panlungsod, city
(De Leon, 2014) treasurers, assessors engineers and
other city department heads;
THE SANDIGANBAYAN iii. Officials of the diplomatic service
occupying the position of consul and
Sandiganbayan is a special appellate collegial higher;
court in the Philippines. The special court was iv. Philippine army and air force colonels,
established by P.D. No. 1486, as subsequently naval captains, and all officers of
modified by P.D. No. 1606 and by R.A. numbered higher rank;
7975, 8249 and 10660. v. Officers of the Philippine National
Police while occupying the position of
Composition of the Sandiganbayan provincial director and those holding
the rank of senior superintendent or
Under P.D. 1606, as amended by R.A. 8249, further higher;
amended by R.A. 10660, it is composed of: vi. City and provincial prosecutors and
their assistants, and officials and
1. Presiding Justice; and prosecutors in the Office of the
2. Twenty Associate Justices, with the rank of Ombudsman and special prosecutor;
Justice of the Court of Appeals. and
vii. Presidents, directors or trustees, or
NOTE: It sits in seven divisions with three managers of government-owned or -
members each. controlled corporations, state
universities or educational
Nature of the Sandiganbayan institutions or foundations.
Sandiganbayan is NOT a constitutional court. It is b. Members of Congress and officials thereof

a statutory court; that is, it is created not by the classified as Grade'27'and and higher
Constitution, but by statute, although its creation under the Compensation and Position
is mandated by the Constitution. Classification Act of 1989;
c. Members of the judiciary without
Exclusive original jurisdiction of the prejudice to the provisions of the
Sandigabayan Constitution;
d. Chairmen and members of Constitutional
1. Violations of R.A. No. 3019, as amended, Commissions, without prejudice to the
otherwise known as the Anti-graft and provisions of the Constitution; and
Corrupt Practices Act, R.A. No. 1379, and e. All other national and local officials
Chapter II, Section 2, Title VII, Book II of the classified as Grade'27'and higher under
Revised Penal Code, where one or more of the the Compensation and Position
accused are officials occupying the following Classification Act of 1989.
positions in the government whether in a
permanent, acting or interim capacity, at the 2. Other offenses or felonies whether simple or
time of the commission of the offense: complexed with other crimes committed by the
public officials and employees mentioned in
a. Officials of the executive branch subsection a of this section in relation to their
occupying the positions of regional office.
director and higher, otherwise classified
as Grade '27' and higher, of the 3. Civil and criminal cases filed pursuant to and
Compensation and Position Classification in connection with Executive Order Nos. 1, 2,
Act of 1989 (R.A. No. 6758), specifically 14 and 14-A, issued in 1986.
including:
NOTE: The Regional Trial Court shall have
i. Provincial governors, vice-governors, exclusive original jurisdiction where the
members of the sangguniang information: (a) does not allege any damage to the
panlalawigan and provincial government or any bribery; or (b) alleges damage

2019 GOLDEN NOTE S
to the government or bribery arising from the committed in relation to office. The power of the
same or closely related transactions or acts in an Sandiganbayan to sit in judgment of high-ranking
amount not exceeding One million pesos government officials is not omnipotent. The
(P1,000,000.00). (R.A. 10660, Sec. 2) Sandiganbayan's jurisdiction is circumscribed by
law and its limits are currently defined in R.A.
NOTE: In case private individuals are charged as 10660.
co-principals, accomplices or accessories with the
public officers or employees, they shall be tried Section 4(b) of P.D. 1606, as amended by R.A.
jointly with said public officers and employees. 10660, is the general law on jurisdiction of the
(PD 1606, Sec. 4) Sandiganbayan over crimes and offenses
committed by high-ranking public officers in
Private persons may be charged together with relation to their office; Section 90, R.A. 9165 is the
public officers to avoid repeated and unnecessary special law excluding from the Sandiganbayan's
presentation of witnesses and exhibits against jurisdiction violations of R.A. 9165 committed by
conspirators in different venues, especially if the such public officers. In the latter case, jurisdiction
issues involved are the same. It follows therefore is vested upon the RTCs designated by the
that if a private person may be tried jointly with Supreme Court as drugs court, regardless of
public officers, he may also be convicted jointly whether the violation of R.A. 9165 was committed
with them. (Balmadrid v. Sandiganbayan, G.R. No. in relation to the public officials' office. (De Lima v.
L-58327, March 22, 1991) Guerrero, G.R. No. 229781, October 10, 2017)
Determination of the jurisdiction of the Voting requirement

Sandiganbayan
All three members of a division shall deliberate on
It shall be determined by the allegations in the all matters submitted for judgment, decision, final
information specifically on whether or not the acts order or resolution.
complained of were committed in relation to the
official functions of the accused. It is required that The concurrence of a majority of the members of a
the charge be set forth with particularity as will division shall be necessary to render a judgment,
reasonably indicate that the exact offense which decision, or final order, or to resolve interlocutory
the accused is alleged to have committed is one in or incidental motions. (R.A. 10660, Sec. 3)
relation to his office. (Lacson v. Executive
Secretary¸ G.R. No. 128096, January 20, 1999) Mandatory suspension of a public officer
against whom a valid information is filed
Jurisdiction over the violation of R.A. No. 9165
committed by a public official with Salary It is now settled that Sec. 13, R.A. 3019, makes it
Grade 31 during incumbency mandatory for the Sandiganbayan to suspend any
public officer against whom a valid information
A plain reading of R.A. 9165, as of R.A. 6425, will charging violation of that law, or any offense
reveal that jurisdiction over drug-related cases is involving fraud upon the government or public
exclusively vested with the Regional Trial Court funds or property is filed. (Bolastig v.
and no other. The clear intent of the legislature Sandiganbayan, G.R. No. 110503, August 4, 1994)
not only to retain the "exclusive original
jurisdiction" of the RTCs over violations of the NOTE: Under Sec. 13, R.A. 3019, any public officer
drugs law but to segregate from among the several against whom any criminal prosecution under a
RTCs of each judicial region some RTCs that will valid information under this Act or under the
"exclusively try and hear cases involving provisions of the RPC on bribery is pending in
violations of [R.A. 9165)." If at all, the change court, shall be suspended from office. Should he be
introduced by the new phraseology of Section 90, convicted by final judgment, he shall lose all
R.A. 9165 is not the deprivation of the RTCs' retirement or gratuity benefits under any law, but
"exclusive original jurisdiction" but the further if he is acquitted, he shall be entitled to
restriction of this "exclusive original jurisdiction. reinstatement and to the salaries and benefits
The exclusive original jurisdiction over violations which he failed to receive during suspension,
of R.A. 9165 is not transferred to the unless in the meantime administrative
Sandiganbayan whenever the accused occupies a proceedings have been filed against him.
position classified as Grade 27 or higher,
regardless of whether the violation is alleged as
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POLITICAL LAW
Appeal from a decision of the Sandiganbayan The provision found in Sec. 15, Art. XI of the 1987
to the SC Constitution that "the right of the State to recover
properties unlawfully acquired by public officials
The appellate jurisdiction of the Supreme Court or employees, from them or from their nominees
over decisions and final orders of the or transferees, shall not be barred by prescription,
Sandiganbayan is limited to questions of law . laches or estoppel," has already been settled in
(Cabaron v. People, G.R. No. 156981, October 5, Presidential Ad Hoc Fact-Finding Committee on
2009) Behest Loans v. Desierto, G.R. No. 130140, where
the Court held that the above cited constitutional
Ill-gotten wealth provision "applies only to civil actions for recovery
of ill-gotten wealth, and NOT to criminal cases.
Any asset, property, business enterprise or (Presidential Ad Hoc Fact- Finding Committee On
material possession of any person within the Behest Loans v. Desierto, G.R. No. 135715, April 13,
purview of Sec. 2 of R.A. 7080, acquired by him 2011)
directly or indirectly through dummies, nominees,
agents, subordinates and/or business associates
by any combination or series of the following
means or similar schemes:
1. Through misappropriation, conversion,

misuse, or malversation of public funds or
raids on the public treasury;
2. By receiving, directly or indirectly, any
commission, gift, share, percentage, kickbacks
or any other form of pecuniary benefit from
any person and/or entity in connection with
any government contract or project or 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 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; and
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. (R.A. 7080, “An Act
Defining and Penalizing the Crime of Plunder”)
Non-applicability of prescription, laches and

estoppel in criminal prosecution for the
recovery of ill-gotten wealth

2019 GOLDEN NOTE S
Administrative Law
ADMINISTRATIVE LAW 7. Includes the body of judicial doctrines on any
of the above.
GENERAL PRINCIPLES
Classifications:
Administrative Law
As to Source
It is a branch of public law fixing the organization
and determines the competence of administrative Law that controls Law made by the
authorities, and indicates the individual remedies administrative administrative
for the violation of the rights. [Administrative Code, authorities authorities
Sec. 2(3)]
GR: The Revised Administrative Code is the General regulations

principal text that governs this branch of law. The Constitution, statutes, and particular
Code, however, does not cover the military as long judicial decisions, determinations;
as it deals with purely military affairs. They are Executive Orders, constitute under
governed by the Articles of War. Administrative delegations of power
Orders, etc. embodied in
XPN: If it deals with their relationship with the statutory
Civilians, still governed by the Administrative administrative law,
Code. and imposing and
constantly expanding
Other institutions excluded: body of law.
As to Purpose
1. Board of Pardons and Parole; Adjective or
Substantive
2. State Universities and Colleges; and Procedural
Administrative
3. Highly Urbanized Cities. Administrati
Law
ve Law
Administration Establishes the
procedure which an Derived from same
1. As an institution–It refers to the group or agency must or may sources but contents
aggregate of persons in whose hands the follow in the pursuit are different in that
reins of government are for the time being. of its legal purpose. the law establishes
primary rights and
2. As a function –It pertains to the execution, in duties.
non-judicial matters, of the law or will of the
State as expressed by competent authority. As to Applicability
(Nachura, Ouline Reviewer in Political Law, p. Special/
493) General
Particular
Administrati
Administrati
ve Law
Scope: ve Law
Part that is of general Part that pertains to
1. Fixes the administrative operation and nature and common particular service;
structure of the government; to all, or most, proceeds from the
2. Executes or enforces that which is entrusted administrative particular statute
to administrative authorities (all those public agencies; chiefly but creating the
officers and organs of the government not exclusively individual agency.
charged with the amplification, application procedural law.
and execution of the law);
3. Governs public officers and creates
administrative officers; Kinds:
4. Provides remedies to those aggrieved by these
agencies; 1. Statutes setting up administrative authorities;
5. Governs Judicial Review; 2. Body of doctrines and decisions dealing with
6. Includes rules, regulation, orders and the creation, operation, and effect of
decisions made by administrative authorities; determinations and regulations of such
and administrative authorities;
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POLITICAL LAW
3. Rules, regulations, or orders of such Doctrine of Exhaustion administrative
administrative authorities in pursuance of the of Administrative remedies.
purposes, for which administrative Remedies (DEAR).
authorities were created or endowed; and Does not require prior Requires prior notice
notice and hearing and hearing (except
e.g. Omnibus Rules Implementing the Labor (except when the law when the law does
Code, circulars of Central Monetary Authority. requires it). not require it).
May be assailed in Appealed to the Court
4. Determinations, decisions, and orders of such court through an of Appeals via
administrative authorities in the settlement of ordinary action. petition for review
controversies arising in their particular field. (Rule 43).
e.g. Awards of NLRC with respect to money Non-similarity of functions and powers of
claims of employees. (Nachura, Outline administrative agencies
Reviewer in Political Law, p. 493)
Not all administrative agencies perform the same
POWERS OF ADMINISTRATIVE AGENCIES functions or exercise the types of powers. While
some act merely as investigative or advisory
Administrative power or function bodies, most administrative agencies have
investigative, rule-making, and determinative
Involves the regulation and control over the functions, or at least two of such functions.
conduct and affairs of individuals for their own
welfare and the promulgation of rules and QUASI-LEGISLATIVE (RULE-MAKING) POWER
regulations to better carry out the policy of the
legislature or such as are devolved upon the The exercise of delegated legislative power,
administrative agency by the organic law of its involving no discretion as to what the law shall be,
existence. (In re: Rodolfo U. Manzano, A.M. No. 88- but merely the authority to fix the details in the
7-1861-RTC, October 5, 1988) execution or enforcement of a policy set out in the
law itself. (Nachura, Outline Reviewer in Political
Powers of administrative agencies Law, p. 494)
1. Discretionary – The law imposes a duty upon a It is the power to make rules and regulations
public officer, and gives him the right to which results in delegated legislation that is within
decide how or when the duty shall be the confines of the granting statute and the
performed; and doctrine of non-delegability and separation of
2. Ministerial – One which is as clear and specific powers. (Holy Spirit Homeowners Association vs.
as to leave no room for the exercise of Secretary Defensor, G.R. No. 163980, August 3,
discretion in its performance. 2006)
Basic powers of administrative agencies Legislative vs. Quasi-legislative power
1. Quasi-legislative power or rule-making LEGISLATIVE QUASI-LEGISLATIVE

power; Determine what the Determine how the
2. Quasi-judicial or adjudicatory power; and law shall be law shall be enforced.
3. Determinative power. Cannot be delegated. Can be delegated.
Quasi-legislative vs. Quasi-judicial power Limitations to the exercise of quasi-legislative

power
QUASI-LEGISLATIVE QUASI-JUDICIAL
Operates on the future. Operates based on 1. Within the limits of the powers granted to
past facts. administrative agencies;
General application. Particular application 2. Cannot make rules or regulations which are
(applies only to the inconsistent with the provision of the
parties involved). Constitution or statute;
May be assailed in Only be challenged in 3. Cannot defeat the purpose of the statute;
court without court with prior 4. May not amend, alter, modify, supplant,
subscribing to the exhaustion of enlarge, or limit the terms of the statute;

2019 GOLDEN NOTE S
Administrative Law
5. A rule or regulation must be uniform in Administrative Order No. 00-05 was issued.
operation, reasonable and not unfair or Said Order provided that only accredited
discriminatory. domestic air carriers shall be allowed to
operate as ‘common carriers’ licensed under
Administrative rule said rule. Respondent assails the validity of A.
O. No. 00-05 on the ground that it was issued in
Any agency statement of general applicability, excess of petitioner’s authority as an
which implements or interprets a law fixes and administrative agency. Was respondent’s
describes procedures in, or practice requirements contention valid?
of, an agency, including its regulations. The term
includes memoranda or statements concerning A: NO. Petitioner’s issuance of the assailed order
the internal administration or management of an was well within its statutory authority.
agency not affecting the rights of, or procedure Administrative agencies possess two kinds of
available to the public. [Administrative Code of powers, the quasi-legislative or rule-making
1987, Sec. 2 (2)] power, and the quasi-judicial or administrative
adjudicatory power. The first is the power to make
Source of the power to promulgate rules and regulations resulting from a valid
administrative rules and regulations delegated legislation that is within the confines of
the granting statute and in accord with the
Derived from the legislature, by virtue of a valid doctrine of non-delegability and separability of
delegation, either express or implied. powers. The second is the power to hear and
determine questions of fact to which the
Doctrine of Subordinate Legislation legislative policy is to apply and to decide in
accordance with the standards laid down by the
Power of administrative agency to promulgate law itself in enforcing and administering the same
rules and regulations on matters within their own law. Petitioner had the explicit authority to fill in
specialization. the details as to how to carry out or effectively
implement the objectives of R.A. No. 7611 in
Reason behind the delegation protecting and enhancing Palawan's natural
resources consistent with the SEP. In fact, the
It is well established in this jurisdiction that, while petitioner was expressly given the authority to
the making of laws is a non-delegable activity that impose penalties and sanctions in relation to the
corresponds exclusively to Congress, nevertheless implementation of the SEP and the other
the latter may constitutionally delegate authority provisions of R.A. No. 7611. (The Palawan Council
to promulgate rules and regulations to implement for Sustainable Development v. Ejercito Lim, G.R.
a given legislation and effectuate its policies, for No. 183173, August 24, 2016)
the reason that the legislature often finds it
impracticable (if not impossible) to anticipate and Q: Redmont filed on January 2, 2007 three (3)
provide for the multifarious and complex separate petitions for the denial of Petitioner
situations that may be met in carrying the law into Narra Nickel's respective Mineral Production
effect. All that is required is that: Sharing Agreements (MPSAs) and/or
Exploration Permits (EPs) applications before
(1) The regulation should be germane to the the Panel of Arbitrators (POA) of the DENR-
objects and purposes of the law; and MGB. Redmont's primary argument was that
(2) That the regulation be not in petitioners were all controlled by their
contradiction with it, but conforms to the common majority stockholder, MBMI
standards that the law prescribes. (People Resources, Inc. (MBMI) - a 100% Canadian-
of the Philippines v. Exconde, G.R. No. L- owned corporation - and, thus, disqualified
9820, August 30, 1957) from being grantees of MPSAs and/or EPs.
Meanwhile, Redmont separately sought the
Q: Respondent was an operator of a domestic cancellation and/or revocation of the executed
air carrier primarily that of transporting live FTAA through a Petition filed before the Office
fish from Palawan to fish traders. Petitioner is of the President (OP). Redmont asserted,
the government agency responsible for the among others, that the FTAA was highly
governance, implementation, and policy anomalous and irregular, considering that
direction of the Strategic Environment Plan petitioners and their mother company, MBMI,
(SEP) for Palawan pursuant to which have a long history of violating and
215
POLITICAL LAW
circumventing the Constitution and other laws, charge of enforcing. (BPI Leasing v. CA, G.R. No.
due to their questionable activities in the 127624, November 18, 2003)
Philippines and abroad. The OP finding, inter
alia, that petitioners misrepresented that they REQUISITES FOR VALIDITY
were Filipino corporations qualified to engage
in mining activities, cancelled and/or revoked 1. Issued under authority of law;
the said FTAA, and, in turn, gave due course to 2. Within the scope and purview of the law;
Redmont's EP application. On appeal, the CA 3. It must be reasonable;
affirmed the decision of OP. Whether the CA 4. Publication in the Official Gazette or in a
correctly affirmed on appeal the OP's newspaper of general circulation, as
cancellation and/or revocation of the FTAA? provided in Executive Order No. 200
A: NO. Quasi-judicial or administrative Required as a condition precedent to the

adjudicatory power is the power of the effectivity of a law to inform the public of the
administrative agency to adjudicate the rights contents of the law or rules and regulations
of persons before it. The OP’s cancellation before their rights and interests are affected
and/or revocation of the FTAA is an exercise of by the same. (Philippine International
a contractual right that is purely administrative Trading Corporation v. COA, G.R. No. 132593,
in nature , and thus, cannot be treated as an June 25, 1999)
adjudication. Being a government or public
contract, the FTAA is subject to fundamental NOTE: If not otherwise required by law, an
contract principles, one of which is the principle agency shall, as far as practicable, publish or
of mutuality of contracts which would definitely circulate notices of proposed rules and afford
be violated if one were to accept the view that interested parties the opportunity to submit
the OP, a contracting party, can adjudicate on their views prior to the adoption of any rule.
the contract’s own validity. Thus, absent the [1987 Administrative Code, Administrative
OP’s proper exercise of a quasi-judicial function, Procedure, Sec. 9(1)] (2000, 2009 Bar)
the CA had no appellate jurisdiction over the
case, and its Decision is, perforce, null and void. Exceptions to the requirement of
(Narra Nickel Mining And Development publication
Corporation vs. Redmont Consolidated Mines
Corporation, G.R. No. 202877, December 09, 1. Interpretative regulations;
2015, PER, J. PERLAS-BERNABE) 2. Internal regulations; and
3. Letters of instructions. (Tañada v.
KINDS OF ADMINISTRATIVE RULES AND Tuvera G.R. No. L-63915, December 29,
REGULATIONS 1986)
1. Supplementary or detailed legislation; 5. Necessity for notice and hearing

2. Interpretative legislation;
3. Contingent legislation- Issued upon the GR: An administrative body need not comply
happening of a certain contingency which the with the requirements of notice and hearing,
administrative body is given the discretion to in the performance of its executive or
determine; legislative functions, such as issuing rules
4. Procedural; and regulations. (Corona v. United Harbor
5. Internal; and Pilots Association of the Philippines, G.R. No.
6. Penal. 111963, December 12, 1997)
Administrative issuances according to their XPNs: The legislature itself requires it and
nature and substance: mandates that the regulation shall be based
on certain facts as determined at an
1. Legislative Rule – It is in the matter of appropriate investigation. (Hon. Executive
subordinate legislation, designed to Secretary v. Southwing Heavy Industries, Inc.,
implement a primary legislation by providing G.R. No. 164171, August 22, 2006)
the details thereof; and
2. Interpretative rule – Provides guidelines to The administrative rule goes beyond merely
the law which the administrative agency is in providing for the means that can facilitate or
render least cumbersome the

2019 GOLDEN NOTE S
Administrative Law
implementation of the law but substantially be enforced. (Administrative Code of 198, Sec. 3;
adds to or increases the burden of those GMA v. MTRCB, G.R. No. 148579, February 5, 2007)
governed. (CIR v. CA, G.R. No. 11976, August
26, 1996) Effectivity of administrative rules
Additional requisites for administrative rules GR: Administrative rules take effect depending on
and regulations with penal sanctions the date provided by it.
Requisites to be complied with: XPN: If the administrative rule is silent on the

matter of its date of effectivity, it shall take effect
1. Law must declare the act punishable; after 15 days following the completion of their
2. Law must define the penalty; and publication.
3. Rules must be published in the Official
Gazette or in a newspaper of general Authority of Administrative Officers to
circulation. (Hon. Secretary Perez v. LPG Interpret the Law
Refillers Association of the Philippines, G.R.
No. 159149, June 26, 2006) Tasked to implement the law and authorized to
interpret it because they have the expertise to do
Requisites for a valid delegation of quasi- so.
legislative or rule-making power
Contemporaneous Construction
1. Completeness Test - The statute is complete in
itself, setting forth the policy to be executed by The construction placed upon the statute by an
the agency; and executive or administrative officer called upon to
2. Sufficient Standard Test - Statute fixes a execute or administer such statute.
standard, mapping out the boundaries of the
agency’s authority to which it must conform. Usually in the form of circulars, directives,
opinions, and rulings.
It lays down a sufficient standard when it
provides adequate guidelines or limitations in the Effect of Administrative Interpretations to
law to map out the boundaries of the delegate’s Courts
authority and prevent the delegation from running
riot. To be sufficient, the standard must specify the They are not binding upon the courts. However,
limits of the delegate’s authority, announce the they are given great weight unless such
legislative policy and identify the conditions under construction is clearly shown to be in sharp
which it is to be implemented. (ABAKADA Guro contrast with the governing law of the state.
Party List v. Purisima, G.R. No. 166715, August 14, (Nestle Philippines Inc. v. CA, G.R. No. 86738,
2008) November 13, 1991)
The administrative body may not make rules and QUASI-JUDICIAL (ADJUDICATORY) POWER
regulations which are inconsistent with the
provisions of the Constitution or a statute, Power of administrative authorities to make
particularly the statute it is administering or determinations of facts in the performance of their
which created it, or which are in derogation of, or official duties and to apply the law as they
defeat, the purpose of a statute. (Dagan v. construe it to the facts so found. It partakes the
Philippine Racing Commission G.R. No. 175220, nature of judicial power, but exercised by a person
February 12, 2009) other than a judge.
Filing of copies of administrative rules and The proceedings partake of the character of
regulations before the UPLC judicial proceedings. Administrative body is
normally granted the authority to promulgate its
Each agency must file with the Office of the own rules of procedure, provided they do not
National Administrative Register (ONAR) of the increase, diminish or modify substantive rights,
University of the Philippines Law Center three and subject to disapproval by the Supreme Court.
certified copies of every rule adopted by it. (Nachura, Outline Reviewer in Political Law, p. 504)
Administrative issuances which are not published
or filed with the ONAR are ineffective and may not Limited jurisdiction of quasi-judicial agencies
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POLITICAL LAW
e.g., Power to appoint a receiver, power to
An administrative body could wield only such issue injunctions
powers as are specifically granted to it by its
enabling statute. Its jurisdiction is interpreted 6. Examining powers – This is also called as
strictissimi juris. investigatory power. Requires production of
books, papers, etc., and the attendance of
Conditions for the Proper Exercise of Quasi- witnesses and compelling the testimony.
Judicial Power
ADMINISTRATIVE DUE PROCESS
1. Jurisdiction must be properly acquired by the
administrative body; and Nature of administrative proceedings
2. Due process must be observed in the conduct
of the proceedings. It is summary in nature.
Classifications of Adjudicatory Powers Inapplicability of technical rules of procedure

and evidence in administrative proceedings
1. Enabling powers – Permits the doing of an act
which the law undertakes to regulate and The technical rules of procedure and of evidence
which would be unlawful without prevailing in courts of law and equity are not
governmental orders. It is characterized by controlling in administrative proceedings to free
the grant or denial of permit or authorization. administrative boards or agencies from the
e.g., Issuance of licenses to engage in a compulsion of technical rules so that the mere
particular business. admission of matter which would be deemed
2. Directing powers – Orders the doing or incompetent in judicial proceedings would not
performing of particular acts to ensure the invalidate an administrative order.
compliance with the law and are often
exercised for corrective purposes. Cardinal requirements of due process in
e.g., public utility commissions, powers of administrative proceedings (1994 Bar)
assessment under the revenue laws,
reparations under public utility laws, and 1. Right to a hearing which includes the right to
awards under workmen’s compensation laws, present one’s case and submit evidence in
and powers of abstract determination such as support thereof;
definition-valuation, classification and fact 2. The tribunal must consider the evidence
finding. presented;
3. The decision must be supported by evidence;
3. Dispensing powers – Exempt from or relax a 4. Such evidence must be substantial;
general prohibition, or authority to relieve 5. The decision must be rendered on the
from an affirmative duty. evidence presented at the hearing or at least
e.g., authority of zoning boards to vary contained in the record, and disclosed to the
provisions of zoning ordinances, or the parties affected;
authority of the Acceptance Board of the 6. The tribunal or body or any of its judges must
Philippine Army to relieve certain persons act on its own independent consideration of
from military training. the law and facts of the controversy in arriving
at a decision;
4. Summary powers – Apply compulsion or force 7. The board or body should render decision in
against person or property to effectuate a such a manner that parties can know the
legal purpose without a judicial warrant to various issues involved and the reasons for
authorize such action. the decision rendered. (Ang Tibay v. CIR, G.R.
e.g., Abatement of nuisance, summary No. L-46496, February 27, 1940)
restraint, levy of property of delinquent
taxpayers NOTE: The essence of due process in
administrative proceedings is the opportunity to
5. Equitable powers – The power to determine explain one’s side or seek a reconsideration of the
the law upon a particular state of facts that has action or ruling complained of. As long as the
the right to, and must, consider and make parties are given the opportunity to be heard
proper application of the rules of equity. before judgment is rendered, the demands of due
process are sufficiently met. What is offensive to

2019 GOLDEN NOTE S
Administrative Law
due process is the denial of the opportunity to be suspect in a custodial investigation. It is not an
heard. (Flores v. Montemayor, G.R. No. 170146, June absolute right and may, thus, be invoked or
6, 2011) rejected in criminal proceeding and, with more
reason, in an administrative inquiry. (Lumiqued v.
Effect of non-observance of notice and hearing Exevea, G.R No. 117565, November 18, 1997)
As a rule, it will invalidate the administrative Quantum of proof required in administrative

proceedings. A failure to comply with the proceedings
requirements may result in a failure to acquire
jurisdiction. Substantial evidence – that amount of relevant
evidence that a reasonable mind might accept as
NOTE: Right to notice may be waived. adequate to support a conclusion.
Necessity of Notice and Hearing ADMINISTRATIVE APPEAL AND REVIEW
A hearing may take place after the deprivation Administrative appeal

occurs. What the law prohibits is not the absence
of previous notice but the absolute absence It includes the review by a higher agency of
thereof and the lack of opportunity to be heard. decisions rendered by an administrative agency,
commenced by petition of an interested party.
NOTE: There has been no denial of due process if
any irregularity in the premature issuance of the NOTE: Under the 1987 Administrative Code,
assailed decision has been remedied by an order administrative appeals from a decision of an
giving the petitions the right to participate in the agency are taken to the Department Head, unless
hearing of the MR. The opportunity granted by, such appeal is governed by a special law.
technically, allowing petitioners to finally be able
to file their comment in the case, resolves the Administrative review
procedural irregularity previously inflicted upon
petitioners. (Nasecore v. ERC, G.R. No. 190795, July A superior officer or department head, upon his or
6, 2011) her own volition, may review the decision of an
administrative agency or that of a subordinate’s
Exceptions to the requirement of notice and decision pursuant to the power of control.
hearing
It is, however, subject to the caveat that a final and
1. Urgency of immediate action; executory decision is not included within the
2. Tentativeness of administrative action; power of control, and hence can no longer be
3. Grant or revocation of licenses or permits to altered by administrative review.
operate certain businesses affecting public
order or morals; Different kinds of administrative appeal and
4. Summary abatement of nuisance per se which review
affects safety of persons or property;
5. Preventive suspension of public officer or 1. Inheres in the relation of administrative
employee facing administrative charges; superior to administrative subordinate;
6. Cancellation of a passport of a person sought 2. Statutes which provide for determination to
for criminal prosecution; be made by a particular officer or body subject
7. Summary proceedings of distraint and levy to appeal, review or redetermination by
upon property of a delinquent taxpayer; another officer or body in the same agency or
8. Replacement of a temporary or acting in the same administrative system;
appointee; and 3. The statute makes or attempts to make a court
9. Right was previously offered but not claimed. a part of the administrative scheme by
providing in terms or effect that the court, on
Inapplicability of the right to counsel in review of the action of an administrative
administrative inquiries agency;
4. The statute provides that an order made by a
The right to counsel which may not be waived, division of a commission or board has the
unless in writing and in the presence of counsel, as same force and effect as if made by the subject
recognized by the Constitution, is a right of a to a rehearing by the commission;
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POLITICAL LAW
5. The statute provides for an appeal to an officer his official conduct shall be does not affect private
on an appeal to the head of the department or rights do not constitute an exercise of judicial
agency; powers. (Lovina v. Moreno, G.R. No. L-17821,
6. Statutes which provide for appeal at the November 21, 1963)
highest level namely, the president. (De Leon,
Administrative Law: Text and Cases (2010) Exceptions to the rule that findings of facts of
page 311) administrative agencies are binding on the
courts
Enforcement of Administrative Decisions
1. Findings are vitiated by fraud, imposition, or
1. As provided for by law; or collusion;
2. Through the court’s intervention. 2. Procedure which led to factual findings is
irregular;
ADMINISTRATIVE RES JUDICATA 3. Palpable errors are committed;
4. Factual findings not supported by evidence;
Non-applicability of the doctrine of res judicata 5. Grave abuse of discretion, arbitrariness, or
capriciousness is manifest;
The doctrine of res judicata applies only to judicial 6. When expressly allowed by statute; and
or quasi-judicial proceedings and not to the 7. Error in appreciation of the pleadings and in
exercise of purely administrative functions. the interpretation of the documentary
Administrative proceedings are non-litigious and evidence presented by the parties.
summary in nature; hence, res judicata does not
apply. (Nasipit Lumber Company, Inc. v. NLRC, G.R. Fact-finding quasi-judicial body
No. 54424, August 31, 1989)
A fact-finding quasi-judicial body (e.g., Land
Exceptions to the Non-Applicability of Res Transportation Franchising and Regulatory
Judicata in Administrative Proceedings Board) whose decisions (on questions regarding
certificate of public convenience) are influenced
1. Naturalization proceedings or those involving not only by the facts as disclosed by the evidence
citizenship and immigration; in the case before it but also by the reports of its
2. Labor relations; and field agents and inspectors that are periodically
3. Decisions affecting family relations, personal submitted to it, has the power to take into
status or condition, and capacity of persons. consideration the result of its own observation
and investigation of the matter submitted to it for
NOTE: It is well settled that findings of fact of decision, in connection with other evidence
quasi-judicial agencies, such as the COA, are presented at the hearing of the case. (Pantranco
generally accorded respect and even finality by South Express, Inc. v Board of Transportation, G.R.
this Court, if supported by substantial evidence, in No. L-49664, November 22, 1990)
recognition of their expertise on the specific
matters under their jurisdiction. (Reyna v. COA, Investigatory power
G.R. No. 167219, February 8, 2011)
Power to inspect, secure, or require the disclosure
FACT-FINDING, INVESTIGATIVE, LICENSING, of information by means of accounts, records,
AND RATE-FIXING POWERS reports, statements and testimony of witnesses. It
is implied and not inherent in administrative
Fact-finding power agencies.
a. Power to declare the existence of facts which Power to issue subpoena not inherent in
call into operation the provisions of a statute; administrative bodies
and
b. Power to ascertain and determine It is settled that these bodies may summon
appropriate facts as a basis for procedure in witnesses and require the production of evidence
the enforcement of particular laws. only when duly allowed by law, and always only in
connection with the matter they are authorized to
NOTE: The mere fact that an officer is required by investigate.
law to inquire the existence of certain facts and to
apply the law thereto in order to determine what

2019 GOLDEN NOTE S
Administrative Law
Power to cite a person in contempt not and hearing. [1987 Administrative Code,
inherent in administrative bodies Administrative Procedure, Sec. 17(2)]
It must be expressly conferred upon the body, and Nature of an administrative agency’s act if it is
additionally, must be used only in connection with empowered by a statute to revoke a license for
its quasi-judicial as distinguished from its purely non-compliance or violation of agency
administrative or routinary functions. regulations
NOTE: If there is no express grant, the agency Where a statute empowers an agency to revoke a
must invoke the aid of the RTC under Rule 71 of license for non-compliance with or violation of
the Rules of Court. agency regulations, the administrative act is of a
judicial nature, since it depends upon the
Q: May administrative agencies issue warrants ascertainment of the existence of certain past or
of arrest or administrative searches? present facts upon which a decision is to be made
and rights and liabilities determined.
A: GR: NO. Under the 1987 Constitution, only a
judge may issue warrants. Rate
XPN: In cases of deportation of illegal and It means any charge to the public for a service
undesirable aliens, whom the President or the open to all and upon the same terms, including
Commissioner of Bureau of Immigration and individual or joint rates, tolls, classification or
Deportation may order arrested following a final schedules thereof, as well as communication,
order of deportation. (Salazar v. Achacoso, G.R. No. mileage, kilometrage and other special rates
81510, March 14, 1990) which shall be imposed by law or regulation to be
observed and followed by a person. [1987
Licensing power Administrative Code, Administrative Procedure, Sec.
2(3)]
The action of an administrative agency in granting
or denying, or in suspending or revoking, a license, Rate-fixing power
permit, franchise, or certificate of public
convenience and necessity. It is the power usually delegated by the legislature
to administrative agencies for the latter to fix the
License rates which public utility companies may charge
the public.
Includes the whole or any part of any agency’s
permit, certificate, passport, clearance, approval, NOTE: The power to fix rates is essentially
registration, charter, membership, statutory legislative but may be delegated. (Philippine Inter-
exemption or other form of permission, or Island v. CA, G.R. No. 100481, January 22, 1997)
regulation of the exercise of a right or privilege.
[1987 Administrative Code, Administrative The legislature may directly provide for these
Procedure, Sec. 2(10)] rates, wages, or prices. But while the legislature
may deal directly with these subjects, it has been
Licensing found more advantageous to place the
performance of these functions in some
It includes agency process involving the grant, administrative agency. The need for dispatch, for
renewal, denial, revocation, suspension, flexibility and technical know-how is better met by
annulment, withdrawal, limitation, amendment, entrusting the rate-fixing to an agency other than
modification or conditioning of a license. [1987 the legislature itself. (Cortes, 1963)
Administrative Code, Administrative Procedure, Sec.
2(11)] Rate-fixing procedure
NOTE: Except in cases of willful violation of The administrative agencies perform this function
pertinent laws, rules and regulations or when either by issuing rules and regulations in the
public security, health, or safety requires exercise of their quasi-legislative power or by
otherwise, no license may be withdrawn, issuing orders affecting a specified person in the
suspended, revoked or annulled without notice exercise of its quasi-judicial power.
221
POLITICAL LAW
NOTE: In the fixing of rates, no rule or final order Rules and/or rates Rules and the rate
shall be valid unless the proposed rates shall have laid down are meant imposed apply
been published in a newspaper of general to apply to all exclusively to a
circulation at least two weeks before the first enterprises. particular party.
hearing thereon. [1987 Administrative Code, Prior notice and Prior notice and
Administrative Procedure,Sec. 9(2)] (2000, 2009 hearing to the hearing are essential
Bar) affected parties is not to the validity of such
a requirement, except rates. But an
Requirements for the delegation of the power where the legislature administrative agency
to ascertain facts to be valid itself requires it. may be empowered by
law to approve
The law delegating the power to determine some provisionally, when
facts or state of things upon which the law may demanded by urgent
take effect or its operation suspended must public need, rates of
provide the standard, fix the limits within which public utilities without
the discretion may be exercised, and define the a hearing.
conditions therefor. Absent these requirements,
the law and the rules issued thereunder are void, DOCTRINE OF PRIMARY JURISDICTION and
the former being an undue delegation of legislative EXHAUSTION OF ADMINISTRATIVE REMEDIES
power and the latter being the exercise of rule-
making without legal basis. (U.S. v. Ang Tang Ho, Doctrine of Primary Jurisdiction or Doctrine of
G.R. No. L-17122, February 27, 1992) Prior Resort
Standard required on delegated power to fix Under the principle of primary jurisdiction, courts
rates cannot or will not determine a controversy
involving question within the jurisdiction of an
It is required that the rate be reasonable and just. administrative body prior to the decision of that
(American Tobacco Co. v. Director of Patents, G.R. question by the administrative tribunal where the:
No. L-26803, October 14, 1975)
1. Question demands administrative
In any case, the rates must both be non- determination requiring special knowledge,
confiscatory and must have been established in experience and services of the administrative
the manner prescribed by the legislature. Even in tribunal;
the absence of an express requirement as to 2. Question requires determination of technical
reasonableness, this standard may be implied. A and intricate issues of a fact;
rate-fixing order, though temporary or provisional 3. Uniformity of ruling is essential to comply
it may be, is not exempt from the procedural with purposes of the regulatory statute
requirements of notice and hearing when administered.
prescribed by statute, as well as the requirement
of reasonableness. (Philippine Communications NOTE: In such instances, relief must first be
Satellite Corporation v. NTC, G.R. No. 84818, obtained in administrative proceeding before a
December 18, 1989) remedy will be supplied by the courts even though
the matter is within the proper jurisdiction of a
Re-delegating power to fix rates is prohibited court. The judicial process is accordingly
suspended pending referral of the claim to the
The power delegated to an administrative agency administrative agency for its view.
to fix rates cannot, in the absence of a law
authorizing it, be delegated to another. This is Rationale:
expressed in the maxim, potestas delagata non
delegari potest. (Kilusang Mayo Uno Labor Center v. 1. To take full advantage of administrative
Garcia, Jr., G.R. No. 115381, December 23, 1994) expertness; and
2. To attain uniformity of application of
POWER TO FIX POWER TO FIX RATE regulatory laws which can be secured only if
RATES EXERCISED EXERCISED AS A determination of the issue is left to the
AS A LEGISLATIVE QUASI-JUDICIAL administrative body.
FUNCTION FUNCTION

2019 GOLDEN NOTE S
Administrative Law
Instances where the doctrine finds no 1. Suspend the judicial process pending referral
application of such issues to the administrative body for
its review; or
1. By the court's determination, the legislature 2. If the parties would not be unfairly
did not intend that the issues be left solely to disadvantaged, dismiss the case without
the initial determination of the administrative prejudice. (Euro-Med Laboratories Phil. v.
body; Province of Batangas, G.R No. 148106, July 17,
2. The issues involve purely questions of law; 2006)
and
3. Courts and administrative bodies have Applicability of the Doctrine of Primary
concurrent jurisdiction. Jurisdiction
Exceptions to the Doctrine of Primary In recent years, it has been the jurisprudential
Jurisdiction trend to apply this doctrine to cases involving
matters that demand the special competence of
1. Where there is estoppel on the part of the administrative agencies even if the question
party invoking the doctrine; involved is also judicial in character. It applies
2. Where the challenged administrative act is where a claim is originally cognizable in the courts,
patently illegal, amounting to lack of and comes into play whenever enforcement of the
jurisdiction; claim requires the resolution of issues which,
3. Where there is unreasonable delay or official under a regulatory scheme, have been placed
inaction that will irretrievably prejudice the within the special competence of an
complainant; administrative body; in such case, the judicial
4. Where the amount involved is relatively small process is suspended pending referral of such
so as to make the rule impractical and issues to the administrative body for its view.
oppressive; (Villaflor v. Court of Appeals, G.R. No. 95694,
5. Where the question involved is purely legal October 9, 1997)
and will ultimately have to be decided by the
courts of justice; Q: A civil case for the collection of sum of
6. Where judicial intervention is urgent; money was filed by X Company against the
7. When its application may cause great and province of Batangas before the RTC. After the
irreparable damage; petitioner’s presentation of evidence, the
8. Where the controverted acts violate due province of Batangas moved for the dismissal
process; of the case on the ground that it is the
9. When the issue of non-exhaustion of Commission on Audit which has primary
administrative remedies has been rendered jurisdiction over the matter for it involves
moot; transactions with the province which was
10. When there is no other plain, speedy and governed by the Local Government Code
adequate remedy; provisions and COA rules and regulations on
11. When strong public interest is involved; and supply and property management in local
12. In quo warranto proceedings. (The Province of governments. Is the contention of the province
Aklan v. Jody King Construction and of Batangas correct?
Development Corp., G.R. Nos. 197592 & 202623,
November 27, 2013) A: YES. It is the COA and not the RTC which has
primary jurisdiction to pass upon petitioner’s
Raising the issue of primary jurisdiction money claim against respondent local government
unit. Such jurisdiction may not be waived by the
The court may motu proprio raise the issue of parties’ failure to argue the issue nor active
primary jurisdiction and its invocation cannot be participation in the proceedings. The doctrine of
waived by the failure of the parties to argue it, as primary jurisdiction holds that if a case is such that
the doctrine exists for the proper distribution of its determination requires the expertise,
power between judicial and administrative bodies specialized training and knowledge of an
and not for the convenience of the parties. In such administrative body, relief must first be obtained
case the court may: in an administrative proceeding before resort to
the courts is had even if the matter may well be
within their proper jurisdiction. It applies where a
claim is originally cognizable in the courts and
223
POLITICAL LAW
comes into play whenever enforcement of the is settled jurisprudence that upon determination
claim requires the resolution of issues which, of State liability, the prosecution, enforcement or
under a regulatory scheme, have been placed satisfaction thereof must still be pursued in
within the special competence of an accordance with the rules and procedures laid
administrative agency. In such a case, the court in down in P.D. No. 1445, otherwise known as the
which the claim is sought to be enforced may Government Auditing Code of the Philippines
suspend the judicial process pending referral of which pertains to COA’s primary jurisdiction to
such issues to the administrative body for its view examine, audit and settle all claims of any sort due
or, if the parties would not be unfairly from the Government or any of its subdivisions,
disadvantaged, dismiss the case without agencies and instrumentalities. Rejection of the
prejudice. (Euro-Med Laboratories Phil. Inc. v. claim will authorize the claimant to elevate the
Province of Batangas, G.R. No. 148106, July 17, matter to the Supreme Court on certiorari and in
2006) effect, sue the State thereby. (University of the
Philippines v. Dizon, G.R. No. 171182, August 23,
Q: Petitioner university contracted the 2012)
services of Stern Builders Corporation for the
construction and renovation of its buildings in Doctrine of Exhaustion of Administrative
UP Los Banos. In an action filed by Stern Remedies
Builder against petitioner, the RTC rendered a
favorable judgment and granted the motion for It calls for resorting first to the appropriate
execution filed therewith by Stern Builders. administrative authorities in the resolution of a
Consequently, the sheriff served notices of controversy falling under their jurisdiction and
garnishment on the petitioner’s depository must first be appealed to the administrative
banks. Petitioner filed an urgent motion to superiors up to the highest level before the same
quash the notices of garnishment; and a may be elevated to the courts of justice for review.
motion to quash the writ of execution on the
ground that government funds and properties Premature invocation of court intervention is fatal
could not be seized by virtue of writs of to one’s cause of action. Exhaustion of
execution or garnishment except in pursuance administrative remedies is a prerequisite for
of an appropriation law or other specific judicial review; it is a condition precedent which
statutory authority. However RTC, through must be complied with.
respondent Judge, authorized the release of
the garnished funds of the UP. CA upheld RTC’s Rationale:
judgment and the issuance of the writ of
garnishment of petitioner’s funds. Was the 1. To enable the administrative superiors to
appellate court correct in sustaining RTC’s correct the errors committed by their
jurisdiction to issue the writ of garnishment subordinates;
against petitioner? 2. Courts should refrain from disturbing the
findings of administrative bodies in deference
A: NO. The CA erred in ruling that Petitioner’s to the doctrine of separation of powers;
funds could be the proper subject of a writ of 3. Courts should not be saddled with the review
execution or garnishment. The settlement of the of administrative cases;
monetary claim was still subject to the primary 4. Judicial review of administrative cases is
jurisdiction of the COA despite the final decision of usually effected through special civil actions
the RTC having already validated the claim. The which are available only if there is no other
funds of Petitioner are government funds that are plain, speedy, and adequate remedy; and,
public in character, including any interest accruing 5. To avail of administrative remedy entails
from the deposit of such funds in any banking lesser expenses and provides for a speedier
institution, which constitute a "special trust fund," disposition of controversies.
the disbursement of which should always be
subject to auditing by the COA. As such, the private Exceptions to the application of the doctrine
claimants had no alternative except to first seek (1991, 2000, 2004 Bar)
the approval of the COA of their monetary claim.
Trial judges should not immediately issue writs of 1. Violation of due process;
execution or garnishment against the Government 2. When there is estoppel on the part of the
or any of its subdivisions, agencies and administrative agency concerned;
instrumentalities to enforce money judgments. It

2019 GOLDEN NOTE S
Administrative Law
3. When the issue involved is a purely legal resolution implementing the water rate
question; increase of P90 for the first ten cubic meters of
4. When there is irreparable injury; water consumption. Because of this,
5. When the administrative action is patently consumers filed a Petition for Injunction
illegal amounting to lack or excess of against the petitioner before the RTC alleging
jurisdiction; that ALWAD violated LOI 700 by implementing
6. When the respondent is a Department a rate increase greater than 60% of current
Secretary whose acts as an alter ego of the rate and failing to conduct public hearing for
President bears the implied and assumed the imposed rate of ₱90. ALWAD filed a Motion
approval of the latter; to Dismiss for failure to exhaust
7. When the subject matter is a private land case administrative remedy under PD 198 as
proceedings; amended. One of the respondents then
8. When it would be unreasonable; questioned the legality of the water rate
9. When no administrative review is provided by increase before the National Water Resources
law; Board (NWRB). RTC denied ALWAD’s Motion to
10. When the rule does not provide a plain, Dismiss. On appeal, CA affirmed the RTC. Does
speedy, and adequate remedy; RTC have jurisdiction over the matter?
11. When the issue of non-exhaustion of
administrative remedies has been rendered A: YES. The failure to exhaust administrative
moot; remedy does not affect the RTC’s jurisdiction. Non-
12. When there are circumstances indicating the exhaustion of administrative remedies only
urgency of judicial intervention; renders the action premature, that the cause of
13. When it would amount to a nullification of a action is not ripe for judicial determination. It is
claim; and incumbent upon the party who has an
14. Where the rule on qualified political agency administrative remedy to pursue the same to its
applies. (Laguna CATV Network v. Maraan, appropriate conclusion before seeking judicial
G.R. No. 139492, November 19, 2002) intervention. Although the doctrine of exhaustion
does not preclude in all cases a party from seeking
Effect of non-exhaustion of administrative judicial relief, cases where its observance has been
remedies disregarded require a strong showing of the
inadequacy of the prescribed procedure and of
Failure to observe the doctrine of exhaustion of impending harm. (Merida Water District v.
administrative remedies does not affect the Bacarro, G.R. No. 165993, September 30, 2008)
jurisdiction of the Court. The only effect of non-
compliance with this rule is that it will deprive the Q: Deputy Ombudsman Katerina Sanchez was
complainant of a cause of action, which is a ground dismissed by the Office of the President on the
for a motion to dismiss. If not invoked at the ground of betrayal of public trust and a
proper time, this ground is deemed waived and the disciplinary proceeding against Special
court can take cognizance of the case and try it. Prosecutor Miranda Ramos is pending before
(Republic v. Sandiganbayan, G.R. Nos. 112708-09, the OP. For this reason, Sanchez and Ramos
March 29, 1996) challenged the constitutionality of Section 8(2)
of R.A. 6770 or The Ombudsman Act of 1989
Effect of non-compliance regarding the president’s disciplinary
jurisdiction over a deputy ombudsman and a
Non-compliance with the doctrine of primary special prosecutor. The Supreme Court
jurisdiction or doctrine of exhaustion of rendered its decision upholding the
administrative remedies is not jurisdictional for constitutionality of the said law and ordered
the defect may be waived by a failure to assert the the reinstatement of Sanchez. As regards
same at the earliest opportune time. Ramos, the Court ruled that the disciplinary
proceeding against her should be continued
Q: Alicia Water District (ALWAD), a GOCC that because Section 8(2) of R.A. No. 6770 is not
operates water utility services conducted unconstitutional. Only the OP, through the OSG
public hearing for the purpose of increasing moved for the reconsideration of the Court’s
the water rate. They subsequently received a ruling. What then is the effect of the absence of
letter from the Local Water Utilities motion for reconsideration on the part of
Administration (LWUA) confirming the Sanchez and Ramos?
proposed water rates. ALWAD issued a
225
POLITICAL LAW
A: NONE. The omission of the filing of a motion for submitted to a court without first giving such
reconsideration poses no obstacle for the Court’s administrative agency the opportunity to dispose
review of its ruling on the whole case since a of the same after due deliberation.
serious constitutional question has been raised
and is one of the underlying bases for the validity
or invalidity of the presidential action. If the
President does not have any constitutional
authority to discipline a Deputy Ombudsman
and/or a Special Prosecutor in the first place, then
any ruling on the legal correctness of the OP’s
decision on the merits will be an empty one. In
other words, since the validity of the OP’s decision
on the merits of the dismissal is inextricably
anchored on the final and correct ruling on the
constitutional issue, the whole case – including the
constitutional issue – remains alive for the Court’s
consideration on motion for reconsideration.
(Emilio A. Gonzales III v. Office of the
President/Wendell Bareras-Sulit v. Atty. Paquito N.
Ochoa, Jr., G.R. No. 196231/G.R. No. 196232, January
28, 2014)
Doctrine of Primary Jurisdiction vs. Doctrine of

Exhaustion of Administrative Remedies
DOCTRINE OF
DOCTRINE OF
EXHAUSTION OF
PRIMARY
ADMINISTRATIVE
JURISDICTION
REMEDIES
Both deal with the proper relationships
between the courts and administrative
agencies.
Case is within the Claim is cognizable in
concurrent the first instance by an
jurisdiction of the administrative agency
court and an alone.
administrative
agency but the
determination of the
case requires the
technical expertise of
the administrative
agency.
Although the matter Judicial interference is
is within the withheld until the
jurisdiction of the administrative.
court, it must yield to process has been
the jurisdiction of the completed.
administrative
agency.
NOTE: The general rule is that before a party may

seek the intervention of the court, he should first
avail of all the means afforded him by
administrative processes. The issues which
administrative agencies are authorized to decide
should not be summarily taken from them and

2019 GOLDEN NOTE S
Election Law
ELECTION LAW within its scope election, plebiscite, initiative and
referendum. (Nachura, 2014)
SUFFRAGE
Right of suffrage not absolute
Suffrage is the right and obligation of qualified
citizens to vote in the election of certain local and The exercise of the right of suffrage is subject to
national officers and in the determination of existing substantive and procedural requirements
questions submitted to the people. It includes embodied in our Constitution, statute books, and
within its scope election, plebiscite, initiative and other repositories of law. (Akbayan-Youth v.
referendum. (Nachura, 2014) COMELEC, G.R. No. 147066, March 26, 2001)
Right of suffrage not absolute Scope of Suffrage
The exercise of the right of suffrage is subject to 5. Plebiscite –The electoral process by which an
existing substantive and procedural requirements initiative on the Constitution is approved or
embodied in our Constitution, statute books, and rejected by the people.
other repositories of law. (Akbayan-Youth v.
COMELEC, G.R. No. 147066, March 26, 2001) 6. Initiative - The power of the people to propose
amendments to the Constitution or to propose
Scope of Suffrage and enact legislations through election called
for the purpose. [R.A. 6735, The Initiative and
1. Plebiscite –The electoral process by which an Referendum Act, Sec. 3(a)]
initiative on the Constitution is approved or a. Initiative on the Constitution;
rejected by the people. b. Initiative on statutes; or
c. Initiative on local legislation.
2. Initiative - The power of the people to propose
amendments to the Constitution or to propose 7. Referendum –The power of the electorate to
and enact legislations through election called approve or reject a piece of legislation through
for the purpose. [R.A. 6735, The Initiative and an election called for the purpose.
Referendum Act, Sec. 3(a)] iii. Referendum on statutes; or
a. Initiative on the Constitution; iv. Referendum on local laws.
b. Initiative on statutes; or
c. Initiative on local legislation. 8. Recall –The mode of removal of an elective
public officer by the people after 1 year of
3. Referendum –The power of the electorate to assuming the office and not later than 1 year
approve or reject a piece of legislation through befor- the end of his term of office.
an election called for the purpose.
i. Referendum on statutes; or Election
ii. Referendum on local laws.
Election is the means by which people choose their
4. Recall –The mode of removal of an elective officials for a definite and fixed period and to
public officer by the people after 1 year of whom they entrust for the time being the exercise
assuming the office and not later than 1 year of the powers of government. (Nachura, 2016)
befor- the end of his term of office.
Components of an election
Election
1. Choosing or selecting candidates to public
Election is the means by which people choose their office by popular vote;
officials for a definite and fixed period and to 2. Holding of electoral campaign;
whom they entrust for the time being the exercise 3. Conducting of the polls;
of the powers of government. (Nachura, 2016) 4. Listing of votes;
5. Casting and receiving the ballots from the
Suffrage is the right and obligation of qualified voters;
citizens to vote in the election of certain local and 6. Counting the ballots;
national officers and in the determination of 7. Making the election returns; and
questions submitted to the people. It includes 8. Proclaiming the winning candidates
227
POLITICAL LAW
Kinds of elections 1. These qualifications are continuing
requirements; and
1. Regular election – It is an election participated 2. Congress may not add qualifications but can
in by those who possess the right of suffrage, provide for procedural requirements and
not otherwise disqualified by law, and is disqualifications. However, the disqualifications
registered voters. must not amount to qualifications.
2. Special election –It is held when there is failure Residence and domicile
of election on the scheduled date of regular
election in a particular place or to fill a In election cases, the Court treats domicile and
vacancy in office before the expiration of the residence as synonymous terms. Both import not
term for which the incumbent was elected. only an intention to reside in a fixed place but also
personal presence in that place, coupled with
Rules on construction of election laws conduct indicative of such intention (Pundaodaya
v. COMELEC, G.R. No. 179313, September 17, 2009).
CONSTRUCTION OF ELECTION LAW
Laws for conduct of Before the election: Effect of transfer of residence
elections Mandatory
After the election: Any person, who transfers residence solely by
Directory reason of his occupation, profession or
employment in private or public service,
Laws for Mandatory and strictly
education, etc., shall not be deemed to have lost his
Candidates construed
original residence. [OEC, Art. XII, Sec. 117(2);
Procedural rules Liberally construed in
Asistio v. Aguirre, G.R. No. 191124, April 27, 2010]
favor of ascertaining
the will of the
Establishing a new domicile
electorate
To establish a new domicile of choice, personal
Election period
presence in the place must be coupled with
conduct indicative of this intention. (Jalover v. de
GR: The period of election starts at 90 days before
la Pena, G.R. No. 209286, September 23, 2014)
and ends 30 days after the election date pursuant
to Sec. 9, Art. IX-C of the Constitution and Sec. 3 of
Disqualifications for the exercise of suffrage
B.P. 881, otherwise known as the Omnibus
Election Code (OEC). 1. Sentenced by final judgment to suffer
imprisonment for not less than one year,
XPN: Under these same provisions, the COMELEC unless granted a plenary pardon or granted
is not precluded from setting a period different
amnesty;
from that provided thereunder. (Aquino v.
COMELEC, G.R. No. 211789-90, March 17, 2015) 2. Conviction by final judgment of any of the
following:
QUALIFICATION AND DISQUALIFICATION OF
a. Crime involving disloyalty to the
VOTERS
government;
b. Violation against national security; or
Qualifications for the exercise of suffrage
c. Firearms laws
1. Filipino citizenship; NOTE: The right to vote is reacquired upon
2. At least 18 years of age; expiration of five years after service of
3. Resident of the Philippines for at least one sentence referred to in the two preceding
year; items.
4. Resident of the place where he proposes to
vote for at least six months immediately 3. Insanity or incompetence as declared by
preceding the election; and competent authority. (OEC, Art. XII, Sec. 118)
5. Not otherwise disqualified by law. (Art. V,
1987 Constitution, Sec. 1) NOTE: These are the same grounds for
disqualification to register as a voter under Sec. 11
NOTE: of R.A. 8189, Voter’s Registration Act of 1996.

2019 GOLDEN NOTE S
Election Law
foregoing, the irregularities surrounding Xander’s
REGISTRATION OF VOTERS application for registration eloquently proclaims
that he did not comply with the minimum
Registration requirements of RA 8189. This leads to only one
conclusion: that Xander, not having demonstrated
Registration is the act of accomplishing and filing that he duly accomplished an application for
a sworn application for registration by a qualified registration, is not a registered voter. Hence, he
voter before the election officer of the city or must be disqualified to run for Mayor. (Gunsi Sr. v.
municipality wherein he resides and including the COMELEC, G.R. No. 168792, February 23, 2009)
same in the book of registered voters upon
approval by the Election registration Board. [RA. Illiterate and disabled voters
8189, Voter’s Registration Act of 1996,Sec. 3(a)] It
does not confer the right to vote; it is but a Any illiterate person may register with the
condition precedent to the exercise of the right. assistance of the Election Officer or any member of
Registration is a regulation, not a qualification. an accredited citizen’s arms. The application for
(Yra v. Abano, G.R. No. 30187, November 5, 1928) registration of a physically disabled person may be
prepared by any relative within the fourth civil
Double-registrant degree of consanguinity or affinity or by the
Election Officer or any member of an accredited
It pertains to any person who, being a registered citizen’s arm using the data supplied by the
voter, registers anew without filing an application applicant. The fact of illiteracy or disability shall be
for cancellation of his previous registration. [OEC, so indicated in the application (R.A. 8189, Sec. 14).
Art. XXII, Sec. 261(y)(5)]
NOTE: R.A. 9369 (The Poll Automation Law) now
Double registrants are still qualified to vote defines a disabled voter as “a person with
provided that COMELEC has to make a impaired capacity to use the Automated Election
determination on which registration is valid, and System”
which is void. COMELEC laid down the rule in [Sec.2(1)].
Minute Resolution No. 00-1513 that while the first
registration of any voter subsists, any subsequent
registration thereto is void ab initio. (Maruhom v. Kinds of registration system
COMELEC, G.R. No. 179430, July 27, 2009)
1. Continuing; and
Q: Shanti filed a petition for the cancellation of 2. Computerized.
the COC of Xander for Mayor of South Upi
alleging that Xander was not a registered voter System of continuing registration
in the Municipality of South Upi since Allen
failed to sign his application for registration, GR: It is a system where the application of
thus, the unsigned application for registration registration of voters shall be conducted daily in
has no legal effect. In refutation, Xander the office hours of the election officer during
asseverated that his failure to sign his regular office hours.
application for registration did not affect the
validity of his registration since he possesses XPN: No registration shall be conducted during
the qualifications of a voter set forth in the the period starting 120 days before a regular
Omnibus Election Code as amended by Sec. 9 of election and 90 days before a special election. (R.A.
R.A. 8189. Should Allen be disqualified? 8189, Sec. 8)
A: YES. R.A. 8189 (The Voter’s Registration Act of Q: Kabataan Party-List assailed the
1996) specifically provides that an application for constitutionality of RA 10367, which directs
registration shall contain specimen signatures of COMELEC to implement a mandatory
the applicant as well as his/her thumbprints, biometrics registration system for new voters
among others. The evidence shows that Allen and those registered voters whose biometrics
failed to sign very important parts of the have not been captured shall submit
application, which refer to the oath which Xander themselves for validation. In compliance,
should have taken to validate and swear to the COMELEC implemented rules and regulations
veracity of the contents appearing in the prescribing the procedure for validation,
application for registration. Plainly, from the deactivation, and reactivation of voters’
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POLITICAL LAW
registration records (VRRs). Kabataan Party-
List claimed that RA 10367 is unconstitutional 1. Any person who has been sentenced by final
because biometric validation is not different judgment to suffer imprisonment for not less
from the unconstitutional requirement of than one year, such disability not having been
literacy and property because mere non- removed by plenary pardon or amnesty;
validation already absolutely curtails the
exercise of the right of suffrage through NOTE: The right to vote may be automatically
deactivation. Is RA 10367 unconstitutional? reacquired upon expiration of fiveyears after
service of sentence as certified by the clerk of
A: NO. The Court ruled that the right to vote is not court.
a natural right but is a right created by law.
Suffrage is a privilege granted by the State to such 2. Any person who has been adjudged by a final
persons or classes as are most likely to exercise it judgment by a competent court or tribunal pf
for the public good. A registration requirement having caused/committed any crime
rises to the level of a literacy, property or other involving disloyalty to the duly constituted
substantive requirement as contemplated by the government such as rebellion, sedition,
Framers of the Constitution - that is, one which violation of the anti-subversion and firearm
propagates a socio-economic standard which is laws, or any crime against national security,
bereft of any rational basis to a person's ability to unless restored to his full civil and political
intelligently cast his vote and to further the public rights in accordance with law;
good - the same cannot be struck down as
unconstitutional. Court definitively characterized NOTE: The right to vote may be regained
registration as a form of regulation and not as a automatically upon expiration of five years
qualification for the right of suffrage – “biometrics after service of sentence.
refers to a quantitative analysis that provides a
positive identification of an individual such as 3. Any person declared by competent authority
voice, photograph, fingerprint, signature, iris, to be insane or incompetent unless such
and/or such other identifiable features." disqualification has been subsequently
(Kabataan Partylist v. COMELEC, G.R. No. removed by a declaration of a proper
189868, December 15, 2009, PER J. PERLAS- authority that such person is no longer insane
BERNABE) or incompetent;
Book of voters 4. Any person who did not vote in the two
successive preceding regular elections as
Classified as permanent whereby each precinct shown by their voting records. For this
shall have a permanent list of all registered voters purpose, regular elections do not include SK
residing within the territorial jurisdiction of the elections;
precinct.
5. Any person whose registration has been
Grounds for alteration ordered excluded by the Court;
1. Deactivation/reactivation; 6. Any person who has lost his Filipino

2. Exclusion/ inclusion; citizenship. (R.A. 8189, Sec. 27)
3. Cancellation of registration in case of death;
4. Annulment of book of voters; INCLUSION AND EXCLUSION PROCEEDINGS
5. New voters; and
6. Transfer of residence. Inclusion proceedings
Deactivation Any person whose application for registration has

been disapproved by the Board or whose name
It is the removal from the registration records has been stricken out from the list may file with
from the precinct books of voters and places the the court a petition to include his name in the
same, properly marked and dated in indelible ink, permanent list of voters in his precinct at any time
in the inactive file after entering the cause of but not within 105 days prior to a regular election
deactivation. or 75 days prior to a special election.
Grounds for deactivation Exclusion proceedings

2019 GOLDEN NOTE S
Election Law
The proceedings for the exclusion or inclusion of
Any registered voter, representative of a political voters in the list of voters are summary in
party or the Election Officer, may file with the character. Except for the right to remain in the list
court a sworn petition for the exclusion of a voter of voters or for being excluded therefrom for the
from the permanent list of voters giving the name, particular election in relation to which the
address and the precint of the challenged voter at proceedings had been held, a decision in an
any time exclusion or inclusion proceeding, even if final and
but not within 100 days prior to a regular election unappealable, does not acquire the nature of res
or 65 days before special election. judicata. It does not operate as a bar to any further
action that a party may take concerning the
Jurisdiction subject passed upon in the proceeding. Thus, a
decision in an exclusion proceeding would neither
1. MTC – original and exclusive; be conclusive on the voter’s political status, nor
2. RTC – appellate jurisdiction; and bar subsequent proceedings on his right to be
3. SC – appellate jurisdiction over RTC on registered as a voter in any other election.
question of law. (Domino v. COMELEC, G.R. No. 134015, July 19,
1999)
Who may file, period of filing; and grounds
Voter using fake address not excluded
Inclusion Exclusion
Who 1. Any private 1. Any registered A citizen cannot be disenfranchised for the
may file person whose voter in the city flimsiest of reasons. Only on the most serious
application was or municipality. grounds, and upon clear and convincing proof,
disapproved by (OEC, Sec. 142) may a citizen be deemed to have forfeited this
the Election precious heritage of freedom. (Asistio v. Aguirre,
Registration 2. G.R. No. 191124, April 27, 2010)
Board. Representative
of political party LOCAL AND OVERSEAS ABSENTEE VOTING
2. Those whose
names were 3.Election officer Local absentee voting
stricken out (R.A. 8189,
from the list of Sec.39). It refers to a system of voting whereby
voters. (OEC, government officials and employees, including
Sec. 139) 4. COMELEC members of the Armed Forces of the Philippines
(AFP), and the Philippine National Police (PNP),
3. COMELEC media practitioners including their technical and
Period Any timeexcept Anytime support staff who are duly registered voters, are
for filing 105 days before except100 days allowed to vote for the national positions in places
regular election before a regular where they are not registered voters but where
or 75 days election or 65 they are temporarily assigned to perform election
before a special days before a duties on election day. [COMELEC Resolution 9637,
election special election Sec. 1(a), 13 February 2013.]
(COMELEC (COMELEC
Resolution No. Resolution No. Overseas Voting
8820). 9021).
Grounds 1. Application 1. Not qualified The process by which qualified citizens of the
for registration for possessing Philippines abroad exercise their right to vote.
has been disqualification; [R.A. 10590, Sec. 3(k), amending R.A. 9189, Sec. 3]
disapproved by 2. Flying voters;
the board; or or 1. Coverage
2. Name has 3. Ghost voters.
been stricken Qualified citizens of the Philippines may vote
outfrom, the for President, Vice-President, Senators and
list. Party-List Representatives, as well as in all
national referenda and plebiscites. (R.A. 10590,
Res judicata not applicable Sec. 4, amending R.A. 9189)
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POLITICAL LAW
2. Qualifications It refers to any person aspiring for or seeking an
elective public office, who has filed a Certificate of
a. Filipino citizens abroad; Candidacy (CoC) by himself or through an
b. At least 18 years of age on the day of accredited political party, aggroupment or
elections; and coalition of parties[OEC,Sec. 79(a)].
c. Not otherwise disqualified by law.
Any person may thus file a CoC on any day within
the prescribed period for filing a CoC, yet that
3. Disqualifications person shall be considered a candidate, for
purposes of determining one’s possible violations
a. Those who have lost their Filipino of election laws, only during the campaign period.
citizenship in accordance with Philippine (Penera v. COMELEC, G.R. No. 181613, November
laws; 25, 2009; R.A. 9369, Poll Automation Law, Sec. 15)
b. Those who have expressly renounced
their Philippine citizenship and who have QUALIFICATIONS AND DISQUALIFICATIONS
pledged allegiance to a foreign country, OF CANDIDATES
except those who have reacquired or
retained their Philippine citizenship Qualifications of Candidates
under R.A. 9225;
c. Those who have committed and are I. National level
convicted in a final judgment by a
Philippine court or tribunal of an offense A. For President and Vice-President
punishable by imprisonment of not less 1. Natural-born citizen;
than one year, such disability not having 2. At least 40 years old on the day of the
been removed by plenary pardon or election;
amnesty: Provided, however, that any 3. Able to read and write;
person disqualified to vote under this 4. Registered voter; and
subsection shall automatically acquire the 5. Resident of the Philippines for at least10
right to vote upon the expiration of five years immediately preceding the day of
years after service of sentence; and the election. (1987 Constitution, Art. VII,
d. Any citizen of the Philippines abroad Sections 2 and 3)
previously declared insane or
incompetent by competent authority in B. For Senator
the Philippines or abroad, as verified by 1. Natural-born citizen;
the Philippine embassies, consulates or 2. At least 35 years old on the day of the
Foreign Service establishments election;
concerned, unless such competent 3. Able to read and write;
authority subsequently certifies that such 4. Registered voter; and
person is no longer insane or incompetent 5. Resident of the Philippines for not less
(R.A. 10590, Sec. 5, amending R.A. 9189). than two years immediately preceding
the day of the election. (1987
DETAINEE VOTING Constitution, Art. VI,Sec. 3)
Detainee voting (either through the special polling II. Local level
place inside jails or escorted voting) may be
availed of by any registered detainee whose A. For District Representatives
registration is not transferred/deactivated/ 1. Natural-born citizen;
cancelled/ deleted. (Sec. 1 of Resolution No. 9371, 2. Registered voter in the district in which
March 6,2012, COMELEC.) he shall be elected;
3. Resident of the same district for a period
*See Resolution No. 9371 dated March 6,2012 not less than one year immediately
preceding the day of the election;
CANDIDACY 4. Able to read and write; and
5. At least 25 years old on the day of the
Candidate election. (1987 Constitution, Art. VI, Sec. 6)

2019 GOLDEN NOTE S
Election Law
B. For Governor, Vice Governor, Mayor, Vice- his vacation from work in Canada. Where is his
Mayor, Punong Barangay and Sangguniang residence for the purpose of elections?
Members (1994, 2005 Bar)
A: CANADA. In Coquilla v. COMELEC, SC ruled that
1. Citizen of the Philippines; naturalization in a foreign country may result in an
2. Registered voter in the barangay, abandonment of domicile in the Philippines. This
municipality, city, or province or, in the holds true in Caballero's case as permanent
case of a member of the Sangguniang resident status in Canada is required for the
Panlalawigan, Sangguniang Panlungsod, acquisition of Canadian citizenship. Hence,
or Sangguniang Bayan, the district where Caballero had effectively abandoned his domicile
he intends to be elected; in the Philippines and transferred his domicile of
3. Resident therein for at least one year choice in Canada. His frequent visits to Uyugan,
immediately preceding the day of the Batanes during his vacation from work in Canada
election; cannot be considered as waiver of such
4. Able to read and write Filipino or any abandonment. (Caballero v. COMELEC, G.R. No.
other local language or dialect. (R.A. 7160 209835, September 22, 2015)
Local Government Code of the Philippines,
Sec. 39) Grounds for disqualification (1994, 1999,
2010 Bar)
NOTE:
1.Congress may not add to qualifications for 1. Declared as incompetent or insane by
elective officials provided in the Constitution; and competent authority;
2. Qualifications prescribed by law are continuing 2. Convicted by final judgment for subversion,
requirements and must be possessed for the insurrection, rebellion, or any offense for
duration of the officer’s active tenure. (Frivaldo v. which he has been sentenced to a penalty of
COMELEC, G.R. No. 87193, June 23, 1989) 18 months imprisonment;
3. Convicted by final judgment for a crime
Purpose of the residency requirement involving moral turpitude;
4. Election offenses under Sec. 261 of the OEC;
The minimum requirement under our 5. Committing acts of terrorism to enhance
Constitution and election laws for the candidates' candidacy
residency in the political unit they seek to 6. Spending in his election campaign an amount
represent has never been intended to be an empty in excess of that allowed;
formalistic condition. It carries with it a very 7. Soliciting, receiving, or making prohibited
specific purpose: to prevent “stranger[s] or contributions;
newcomer[s] unacquainted with the conditions 8. Not possessing qualifications and possessing
and needs of a community” from seeking elective disqualifications under the Local Government
offices in that community. (Jalover v. de la Pena, Code;
G.R. No. 209286, September 23, 2014) 9. Sentenced by final judgment for an offense
involving moral turpitude or for an offense
Registered property as residency proof punishable by one year or more of
imprisonment within two years after serving
The fact that a candidate has no registered sentence;
property under his name in the locality wherein he 10. Removed from office as a result of an
seeks to be elected does not belie his actual administrative case;
residence therein because property ownership is 11. Convicted by final judgment for violating the
not among the qualifications required of oath of allegiance to the Republic;
candidates for local election. It is enough that he 12. Dual citizenship (more specifically, dual
should live in the locality, even in a rented house allegiance)
or that of a friend or relative. (Jalover v. dela Pena, 13. Fugitives from justice in criminal or non-
ibid.) political cases here or abroad;
14. Permanent residents in a foreign country or
Q: Caballero was a natural-born Filipino who those who have acquired the right to reside
had his domicile of origin in Uyugan, Batanes. abroad and continue to avail of the same right;
However, he later worked in Canada and 15. Insane or feeble-minded;
became a Canadian citizen. Notwithstanding, 16. Nuisance candidate;
he frequently visited Uyugan, Batanes during 17. Violation of Sec. 73 OEC with regard to CoC; or
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POLITICAL LAW
18. Violation of Sec. 78 on material candidacy within the period fixed herein. (OEC,
misrepresentation in the COC. Sec. 73)
Effect of an unsworn renunciation of foreign The certificate of candidacy shall be filed by the
citizenship candidate personally or by his duly authorized
representative at any day from the
Failure to renounce foreign citizenship in commencement of the election period but not later
accordance with the exact tenor of Sec. 5(2) of R.A. than the day before the beginning of the campaign
9225 renders a dual citizen ineligible to run for period. In cases of postponement or failure of
and thus hold any elective public office. (Sobejana- election, no additional certificate of candidacy
Condon v. COMELEC, G.R. No. 198742, August 10, shall be accepted except in cases of substitution of
2012) candidates. (OEC,Sec. 75)
Q: Joseph Dimapilis was elected as Punong A CoC evidences candidate’s statutory eligibility to
Barangay of Brgy. Pulung Maragul in October be elected for an elective post. It is the document
2010 and in 2013 he ran for re-election for the which formally accords upon a person the status
same position and won. When he filed his COC, of a candidate. (Tagolino v. HRET and Lucy Torres-
he declared under oath that he is eligible for Gomez, G.R. No. 202202, March 19. 2013)
the office that he seeks to be elected. A petition
for Disqualification was filed against Mr. NOTE: A CoC may be amended before the
Dimapilis on the ground that he was barred elections, even after the date of its filing.
from running in an election since he was
suffering from the accessory penalty of Provisions of the election law on certificates of
perpetual disqualification to hold public office candidacy are mandatory in terms. However, after
as a consequence of his dismissal from service the elections, they are regarded as directory so as
as then Kagawad of Brgy. Pulung Maragul in an to give effect to the will of the electorate. (Saya-
order dated November 10,2009 by the Ang Sr. v. COMELEC, G.R. No. 155087, November 28,
Ombudsman. Is Dimapilis barred to run due to 2003)
his misrepresentation he committed in his
COC? Purpose
A: YES, because of the material misrepresentation 1. Enable the voters to know, at least 60 days
and a COC is a formal requirement for eligibility to before the regular election, the candidates
public office. A person intending to run for office among whom they have to choose; and
must not only possess the required qualifications 2. Avoid confusion and inconvenience in the
for the position for which he intends to run but tabulation of the votes cast. (Miranda v. Abaya,
must also possess none of the grounds for G.R. No. 136351, July 28, 1999)
disqualification under the law. In this case
Dimapilis was found guilty of Grave Misconduct Filing CoC on the tenure of incumbency
and its penalty is perpetual disqualification from
holding public office and the COMELEC has the 1. As to appointive official – He/she is considered
legal duty to enforce and administer laws relative ipso facto RESIGNED from his office upon the
to the conduct of an election and under Sec. 78 of filing of his CoC and such resignation is
the OEC the COMELEc has the legal duty to cancel irrevocable. (OEC, Sec. 66) (2002 Bar);
the COC of anyone who is suffering from the 2. As to elective official – It has no effect. The
penalty of special disqualification to run for public candidate shall continue to hold office,
office by virtue of final judgment. (Joseph C. whether he is running for the same or a
Dimapilis vs. COMELEC, GR NO. 227158, April 18, different position. (Fair Elections Act, Sec. 14,
2017, PER, J. PERLAS-BERNABE) expressly repealed B.P. 881, Sec. 67)
FILING OF CERTIFICATES OF CANDIDACY Q: Do the deemed-resigned provisions which

are applicable to appointive officials and not to
EFFECT OF FILING elective officials violate the equal protection
clause of the constitution?
No person shall be eligible for any elective public
office unless he files a sworn certificate of A: NO. Substantial distinctions clearly exist
between elective officials and appointive officials.

2019 GOLDEN NOTE S
Election Law
The former occupy their office by virtue of the candidate, or in the case of a candidate for
mandate of the electorate. They are elected to an President, Vice-President or Senator, with the Law
office for a definite term and may be removed Department; Provided that, the substitute and the
therefrom only upon stringent conditions. On the substituted candidate have the same surnames.
other hand, appointive officials hold their office by (COMELEC Resolution 9984, August 18, 2015)
virtue of their designation thereto by an
appointing authority. Some appointive officials Requisites for valid substitution
hold their office in a permanent capacity and are
entitled to security of tenure while others serve at 1. The substitute must belong to the same party
the pleasure of the appointing authority. (Quinto v. or coalition; and
COMELEC, G.R. 189698, December 1, 2009) 2. The deceased, disqualified or withdrawn
candidate must have duly filed a valid CoC.
Effect of filing two certificates of candidacy
NOTE: The second requisite is a condition sine
It disqualifies the person to run for both elective qua non. (Tagolino v. HRET and Lucy Torres-
positions (OEC, Sec. 73). Gomez, G.R. No. 202202, March 19. 2013)
However, before the expiration of the period for Q: Raphael and Angelo filed their CoCs for the
the filing of CoC, the person who has filed more position of Mayor of Lucena City. Angelo filed a
than one certificate of candidacy may declare petition to disqualify Raphael, alleging that
under oath the office for which he desires to be Raphael still filed his CoC despite knowing that
eligible and cancel the CoC for the other office or he had exceeded the 3-term limit as Mayor of
office/s. A person who has filed a certificate of Lucena City. COMELEC First Division
candidacy may, prior to election, withdraw the disqualified Raphael. Marian, the wife of
same. The filing of a withdrawal certificate of Raphael, filed her own CoC in substitution of
candidacy shall not affect whatever civil, criminal, her husband, Raphael. Can Marian validly
or administrative liabilities as candidate may have substitute her husband?
incurred (COMELEC Resolution 8678, Sec. 1).
A: NO. A disqualified candidate may only be
SUBSTITUTION AND WITHDRAWAL OF substituted if he had a valid CoC in the first place
CANDIDATES because, if the disqualified candidate did not have
a valid and seasonably filed CoC, he is and was not
Substitution a candidate at all. If a person was not a candidate,
he cannot be substituted under Sec. 77 of the OEC.
An official candidate of a duly registered political If we were to allow the so-called "substitute" to file
party or coalition who dies, withdraws, or is a "new" and "original" CoC beyond the period for
disqualified for any cause after the last day for the the filing thereof, it would be a crystalline case of
filing of CoCs may be substituted by a candidate unequal protection of the law. Thus, there was no
belonging to, and nominated by, the same political valid candidate for Marian to substitute due to
party or coalition. Raphael’s ineligibility. The existence of a valid CoC
is therefore a condition sine qua non for a
No substitute shall be allowed for any independent disqualified candidate to be validly substituted
candidate. (Tagolino v. HRET and Lucy Torres-Gomez, G.R. No.
202202, March 19. 2013).
The substitute for a candidate, who died or is
disqualified by final judgment, may file a CoC up to Q: James was a candidate for Vice Mayor in the
mid-day of Election Day; Provided that, the First Order City. His Certificate of Nomination
substitute and the substituted have the same and Acceptance (CONA) was signed by his
surnames. party’s chapter president Lorena. It appears,
however, that his chapter president was not
If the death or disqualification should occur authorized by their national party leader to
between the day before the election and mid-day sign James’ CONA. So, COMELEC considered
of Election Day, the substitute candidate may file a him an independent candidate instead of being
CoC with any Board of Election Inspectors, a candidate by his party. Subsequently, James’
Election Officers, Provincial Election Supervisor, party submitted proof that Romualdez was
or Regional Election Director, as the case may be, authorized to sign James’ CONA. Few days after
in the political subdivision where such person is a filing his CoC, James died due to a heart attack.
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POLITICAL LAW
Marcelina, James’ wife, filed her CoC to provision shall not apply. [R.A. 9006(Fair Elections
substitute her deceased husband. James, Act), Sec. 12]
despite his demise, received twice as much
votes as Winston, James’ rival for the position. No Candidate, No Substitution
Winston then questioned the substitution of
Marcelina saying that an independent Sec. 77, OEC requires that there be a candidate in
candidate cannot be substituted. COMELEC order for substitution to take place. Thus, if a
agreed with Winston. Marcelina sought to person’s CoC had been denied due course to
reverse COMELEC’s decision before the SC. and/or cancelled under Sec. 78, OEC, he or she
Who should the SC favor? cannot be validly substituted in the electoral
process. Stated differently, since there would be
A: Marcelina. Petitioner’s deceased husband’s no candidate to speak of under a denial of due
name remained on the ballot notwithstanding his course to and/or cancellation of a CoC case, then
death even before the campaign period for the there would be no candidate to be substituted.
local elections began on March 29, 2013. Yet, he (PERLAS-BERNABE CASE; Tagolino vs. HRET and
received almost twice the number of votes as the Lucy Torres-Gomez, G.R. No. 202202, March 19.
second placer, private respondent, in a decisive 2013)
victory. Since the people could not have possibly
meant to waste their votes on a deceased NUISANCE CANDIDATES
candidate, we conclude that petitioner was the
undisputed choice of the electorate as Vice Mayor Any registered candidate for the same office may
on the apparent belief that she may validly file a petition to declare a duly registered
substitute her husband. That belief was not candidate as a nuisance candidate, personally or
contradicted by any official or formal ruling by the through duly authorized representative with
COMELEC prior to the elections. COMELEC, within five days from the last day of
filing of CoC. [R.A. 6646 (The Electoral Reforms Law
The late submission of the authority to sign the of 1987), Sec. 5]
CONA to the COMELEC was a mere technicality
that cannot be used to defeat the will of the Grounds
electorate in a fair and honest election. Non-
compliance with formal requirements laid down The COMELEC may motu proprio or upon verified
in election laws when not used as a means for petition refuse to give due course to or cancel a
fraudulent practice will be considered a harmless certificate of candidacy if shown that it was filed
irregularity. Allowing the belated submission of to:
the authority to sign CONAs will not result in the
situation proscribed by Section 77 of the Omnibus 1. Put the election process in mockery or
Election Code – that an independent candidate will disrepute;
be invalidly substituted. In the case at bar, neither 2. Cause confusion among the voters by the
the COMELEC nor private respondent contended similarity of the names of the registered
the deceased was not in fact a bona fide member of candidates; or
his party. The record is bereft of any allegation 3. Clearly demonstrate that the candidate has no
that the authority was inexistent, forged or in any bona fide intention to run for the office for
way defective. The only issue was that it was not which the CoC has been filed and thus prevent
submitted within the prescribed deadline (Engle v. a faithful determination of the true will of the
COMELEC, G.R. No. 215995, January 19, 2016). electorate. (OEC, Sec. 69)
Stray votes Power of COMELEC
In case of valid substitutions after the official GN: The COMELEC may, motu proprio or upon
ballots have been printed, the votes cast for the verified petition of an interested party, refuse to
substituted candidates shall be considered as give due course to or cancel a CoC upon showing
stray votes but shall not invalidate the whole of the above-stated circumstances. (OEC,Sec. 69)
ballot. For this purpose, the official ballots shall
provide spaces where the voters may write the XPN: The COMELEC cannot motu proprio deny due
name of the substitute candidates if they are course to or cancel an alleged nuisance candidate’s
voting for the latter: Provided, however, that if the certificate of candidacy without providing the
substitute candidate of the same family name, this

2019 GOLDEN NOTE S
Election Law
candidate his opportunity to be heard. (Timbol v. exclusively on the ground that material
COMELEC, G.R. No. 206004, February 24, 2015) representation contained therein as required is
false. The petition may be filed not later than 25
Reason for the prohibition of Nuisance days from the time of filing of the certificate of
Candidates candidacy, and shall be decided, after due notice
and hearing, not later than 15 days before the
The prohibition against nuisance candidates is election.
aimed precisely at preventing uncertainty and
confusion in ascertaining the true will of the In addition, the COMELEC may motu proprio or
electorate. Thus, in certain situations, final upon verified petition refuse to give due course to
judgments declaring a nuisance candidate should or cancel a certificate of candidacy if show that it
effectively cancel the COC filed by such candidates was filed:
as of election day. Otherwise, potential nuisance
candidates will continue to put the electoral 1. Put the election process in mockery or
process into mockery by filing certificates of disrepute;
candidacy at the last minute and delaying 2. Cause confusion among the voters by the
resolution of any petition to declare them as similarity of the names of the registered
nuisance candidates, until elections are held and candidates; or
the votes counted and canvasses. (Celestino 3. Clearly demonstrate that the candidate has no
Martinez v. HRET, G.R. No. 189034, January bona fide intention to run for the office for
11,2010) which the CoC has been filed and thus prevent
a faithful determination of the true will of the
Effect of voting a nuisance candidate electorate. (OEC, Sec. 69)
The votes cast for a nuisance candidate are not PETITION FOR DISQUALIFICATION
stray but counted in favor of the bona fide
candidate. (Dela Cruz v. COMELEC, G.R. No. 192221, It is the remedy against any candidate who does
November 13, 2012) not possess all the qualifications required by the
Constitution or law, or who commits any act
MINISTERIAL DUTY OF COMELEC TO RECEIVE declared by law to be grounds for disqualification.
CERTIFICATES (COMELEC Rules of Procedure, Rule 25, Sec.1)
GR: The COMELEC shall have the ministerial duty Time of filing the petition for disqualification
to receive and acknowledge receipt of the
certificates of candidacy. Provided, that said The petition for disqualification may be filed any
certificates are under oath and contain all the day after the last day for filing of certificates of
required data and in the form prescribed by the candidacy, but not later than the date of
Commission. (OEC, Sec. 7; Cerafica v. COMELEC, proclamation. (COMELEC Rules of Procedure, Rule
G.R. No. 205136, December 2, 2014) 25,Sec. 3)
XPNs: COMELEC may go beyond the face of the Nature of the proceedings
CoC in the following:
The petition is heard summarily (COMELEC Rules
1. Nuisance candidates(OEC, Sec. 69); of Procedure, Rule 25, Sec. 4). However, the
2. Petition to deny due course or to cancel a COMELEC cannot disqualify a candidate without
CoC(OEC, Sec. 78); or hearing and affording him opportunity to adduce
3. Filing of a disqualification case on any of the evidence to support his side and taking into
grounds enumerated in Sec. 68, OEC. account such evidence.
REMEDIES AND JURISDICTION IN ELECTION Final and executory judgment

LAW
A decision or resolution is deemed final and
PETITION NOT TO GIVE DUE COURSE TO OR executory if, in case of a division ruling, no motion
CANCEL A CERTIFICATE OF CANDIDACY for reconsideration is filed within the
reglementary period, or in cases of rulings of the
A verified petition seeking to deny due course to a Commission en banc, no restraining order is
certificate of candidacy may be filed by any person issued by the Supreme Court within five days from
237
POLITICAL LAW
receipt of the decision or resolution. (2013 3. Complaint filed after election and proclamation
COMELEC Rules of Procedure, Rule 23, Sec. 8, as of winner – The complaint shall be dismissed.
amended by COMELEC Resolution No. 9523)
NOTE: The complaint shall be referred for
Grounds for disqualification preliminary investigation to the Law
Department.
1. Any person who has been declared by
competent authority insane or incompetent, 4. Complaint filed after election but before
or has been sentenced by final judgment for proclamation of winner – The complaint shall
subversion, insurrection, rebellion, or for any be dismissed.
offense for which he has been sentenced to a
penalty of more than 18 months or for a crime NOTE: The complaint shall be referred for
involving moral turpitude (OEC, Sec. 12); preliminary investigation to the Law
2. Any candidate who, in action or protest in Department. If the Law Department makes a
which he is a party, is declared by final prima facie finding of guilt and the
decision guilty of or found by COMELEC of corresponding information has been filed
having: with the trial court, the complainant may file a
a. Given money or other material petition for suspension of the proclamation of
consideration to influence, induce or the respondent.
corrupt the voters of public officials
performing electoral functions; 5. Submission of recommendation to Commission
b. Committed acts of terrorism to enhance en banc – The Law Department shall terminate
his candidacy; the preliminary investigation within 30 days
c. Spent in his election campaign an amount from receipt of the referral and shall submit
in excess of the allowed; and its study, report and recommendation to the
d. Solicited, received or made any Commission en banc within five days from the
contribution prohibited under the conclusion of the preliminary investigation. If
Omnibus Election Code. (OEC, Sec. 68) it makes a prima facie finding of guilt, it shall
submit with such study the Information for
3. Any person who is a permanent resident of or filing with the appropriate court.
an immigrant to a foreign country, unless said
person has waived his status as permanent Remedy if petition for disqualification is
resident or immigrant of a foreign country. unresolved on election day
(OEC, Sec. 68)
The petitioner may file a motion with the division
NOTE: R.A. 9225expressly provides for the or Commission en banc where the case is pending,
conditions before those who re-acquired Filipino to suspend the proclamation of the candidate
citizenship may run for a public office in the concerned, provided that the evidence for the
Philippines. grounds to disqualify is strong. For this purpose, at
least three days prior to any election, the Clerk of
(See earlier discussion on the grounds for the Commission shall prepare a list of pending
disqualification under Candidacy for a longer list.) cases and furnish all Commissioners copies of said
the list.
Rules on disqualification cases
In the event that a candidate with an existing and
1. Complaint filed before election – The pending petition to disqualify is proclaimed
Commission shall determine whether the acts winner, the Commission shall continue to resolve
complained of have in fact been committed. If the said petition. (COMELEC Rules of Procedure,
so, the COMELEC shall order the Rule 25, Sec. 5, as amended by COMELEC Resolution
disqualification of the respondent candidate. 9523, September 25, 2012).
2. Complaint not resolved before election – Petition to deny due course to or cancel CoC vs.
COMELEC may motu propio or on motion of petition for disqualification
any of the parties refer the complaint to the
Law Department of the Commission. PETITION TO
PETITION FOR
DENY DUE COURSE
DISQUALIFICATION
TO OR CANCEL CoC

2019 GOLDEN NOTE S
Election Law
Based on a Premised on Sec. 12 of 1. No voting has taken place in the precincts
statement of a OEC, or Sec. 40 of the concerned on the date fixed by law, or even if
material LGC. there was voting, the election nonetheless
representation in resulted in a failure to elect; and
the said certificate 2. The votes cast would affect the results of the
that is false. election.
The person whose A person who is
certificate is disqualified under Sec. Power to declare a failure of election
cancelled or denied 68 is merely prohibited
due course under to continue as a The COMELEC en banc has the original and
Sec. 78 is not candidate. exclusive jurisdiction to hear and decide petitions
treated as a for declaration of failure of election or for
candidate at all, as if annulment of election results (R.A. 7166, Sec. 4).
he never filed a CoC.
A person whose CoC A candidate who is Failure of Elections vs. Postponement of
has been denied due disqualified under Sec. Elections
course or cancelled 68 can be validly
under Sec. 78 substituted under Sec. FAILURE OF POSTPONEMENT OF
cannot be 77 of the OEC because ELECTIONS ELECTIONS
substituted because he remains a candidate Any serious cause of:
he is never until disqualified. a. Force Majeure
considered as b. Violence
candidate. c. Terrorism
d. Loss or destruction of election
FAILURE OF ELECTION, CALL OF SPECIAL paraphernalia
ELECTION e. Other analogous cases
Definition
Grounds for failure of elections Failure to elect and Serious impossibility
affect results of to have free and
Failure of elections may be declared in the elections. orderly elections.
following cases:
As to when the grounds must exist
1. The election in any polling place has not been Grounds may occur Grounds must exist
held on the date fixed on account of force any time before before voting.
majeure, violence, terrorism, fraud, or other proclamation.
analogous causes; As to procedure
2. The election in any polling place had been
suspended before the hour fixed by law for the 1. Verified petition 1. Verified petition by
closing of the voting on account of force by any interested any interested
majeure, violence, terrorism, fraud, or other person person or motu
analogous causes; and 2. Due Notice; and proprio by
3. After the voting and during the preparation 3. Hearing. COMELEC en banc
and transmission of the election returns or 2. Due notice; and
canvass thereof such election results in failure 3. Hearing.
to elect on account of force majeure, violence, As to effects
fraud or analogous causes. (Banaga Jr. v.
COMELEC, G.R. No. 134696, July 31, 2000) 1. Declaration of 1. Election is
Failure of postponed; and
NOTE: There is failure of elections only when the elections; and 2. Conduct elections
will of the electorate has been muted and cannot 2. Holding of reasonably close to
be ascertained (Benito v. COMELEC, G.R. No. continuation of elections not held,
134913, Jan. 19, 2001). elections but not later than
reasonably close 30 days from
Requisites for declaration of failure of to election not cessation of cause.
elections held, but not later
than 30 days from
The following requisites must concur: cessation of cause.
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POLITICAL LAW
participating party list group, before the Board or
Q: Ted and Barney both ran for the position of directly with the COMELEC. (COMELEC Resolution
representative of the first district of Northern No. 8804, Rule 3, Sec. 1)
Samar. Ted won while Barney placed second.
Barney filed an election protest before the Purpose
HRET against Ted, alleging terrorism
committed by the supporters of Ted before, To ascertain winners in the elections on basis of
during, and after the elections. Barney prayed election returns duly authenticated by BEI and
for the annulment of Ted’s election. Ted admitted by the BOC. (Abella v. Larrazabal, G.R. No.
argued that HRET has no jurisdiction over the 87721-30, December 21, 1989)
protest on the premise that annulment of
election returns on the ground of terrorism is Q: Sao was an official candidate for Municipal
akin to a declaration of failure of elections Mayor. Que ran for the same position. Sao
which is under the exclusive jurisdiction of alleged to have witnessed an anomalous
COMELEC. Is Ted correct? activity that affected the integrity of several
election returns (ER). During the canvassing,
A: NO. The power of the HRET to annul elections Sao sought for the exclusion of the contested
differs from the power granted to the COMELEC to ERs on the grounds of massive fraud, illegal
declare failure of elections. The Constitution no proceedings, tampered/falsified and
less, grants the HRET with exclusive jurisdiction to obviously manufactured returns. He alleged
decide all election contests involving the members that the oral objections were timely made, and
of the House of Representatives, which necessarily the written petition for Petition for Exclusion
includes those which raise the issue of fraud, was filed with the Municipal Board of
terrorism or other irregularities committed Canvassers (MBOC). Were the allegations
before, during or after the elections. To deprive raised by Sao on the contested ERs proper in a
the HRET the prerogative to annul elections would pre-proclamation controversy?
undermine its constitutional fiat to decide election
contests. The phrase “election, returns and A: NO. The unsubstantiated issues raised by Sao
qualifications” should be interpreted in its totality were not proper for a pre-proclamation
as referring to all matters affecting the validity of controversy. Pre-proclamation controversy is
the contestee's title. Consequently, the annulment summary in character which must be promptly
of election results is but a power concomitant to decided. Hence, the Board of Canvassers (BOC)
the HRET's constitutional mandate to determine will not look into allegations of irregularity that
the validity of the contestee's title. are not apparent on the face of ERs that appear
otherwise authentic and duly accomplished. The
The power granted to the HRET by the Court found that there is absolutely no indication
Constitution is intended to be as complete and that the contested ERs were falsified or tampered
unimpaired as if it had remained originally in the with. Claims that contested ERs are obviously
legislature. Thus, the HRET, as the sole judge of all manufactured or falsified must be evident from
contests relating to the election, returns and the face of the said documents. As such, there was
qualifications of members of the House of no valid ground to delay the proclamation, since
Representatives, may annul election results if in its the unsubstantiated issued raised by Sao were not
determination, fraud, terrorism or other electoral proper for a pre-proclamation controversy. (Sao v.
irregularities existed to warrant the annulment. COMELEC, G.R. No. 182221, February 2, 2010)
Because in doing so, it is merely exercising its
constitutional duty to ascertain who among the Jurisdiction
candidates received the majority of the valid votes
cast. (Abayon v. HRET, G.R. No. 223032, May 3, COMELEC has exclusive jurisdiction over pre-
2016) proclamation cases. It may order, motu proprio or
upon written petition, and after due notice and
PRE-PROCLAMATION CONTROVERSY hearing the partial or total suspension of the
proclamation of any candidate-elect or annul
Pre-proclamation controversy refers to any partially or totally any proclamation, if one has
question pertaining to or affecting the proceedings been made, as the evidence shall warrant. (OEC,
of the BoC, which may be raised by any candidate Sec. 242)
or by any registered political party or coalition of
political parties, or by any accredited and Nature and execution of judgment

2019 GOLDEN NOTE S
Election Law
5. Manifest errors in the Certificates of Canvass
It shall be heard summarily by the COMELEC. Its or Election Returns. (R.A. 7166, Sec. 15; Chavez
decision shall be executory after five days from v. COMELEC, G.R. No. 16277, August 31, 2004)
receipt by the losing party, unless otherwise
ordered. NOTE: The enumeration is restrictive and
exclusive. (Suhuri v. Commission on Elections, G.R.
When not allowed (2008 Bar) No. 181869, October 2, 2009)
1. For the positions of President, Vice President, Issues that cannot be raised
Senator and Member of House of
Representatives (R.A. 7166, Sec. 15); and 1. Appreciation of ballots, as this is performed by
the BEI at the precinct level and is not part of
XPNs: the proceedings of the BOC (Sanchez v.
a. Correction of manifest errors; COMELEC, G.R. No. 78461, August 12, 1987);
b. Questions affecting the composition or 2. Technical examination of the signatures and
proceedings of the Board of Canvassers thumb marks of voters (Matalam v. COMELEC,
(COMELEC Res. No. 8804, March 22, G.R. No. 123230, April 18, 1997);
2010,Rule 3,Sec. 1); and 3. Prayer for re-opening of ballot boxes (Alfonso
v. COMELEC, G.R. No. 107847, June 2, 1994);
NOTE: However, this does not preclude 4. That the padding of the List of Voters may
the authority of the appropriate constitute fraud, or that the BEI may have
canvassing body, motu proprio or upon fraudulently conspired in its preparation;
written complaint of an interested vote-buying and terrorism (Ututalum v.
person, to correct manifest errors in the COMELEC, G.R. No. 84843-44, January 22,
certificate of canvass or election before it. 1990);
(R.A. 9369, Sec. 38) 5. Challenges directed against the BEI (Ututalum
v. COMELEC, G.R. No. 84843-44, January
c. Determination of the authenticity and due 22, 1990);and
execution of certificates of canvass as 6. Fraud, terrorism and other illegal electoral
provided in Sec. 30 of RA 7166, as practices. These are properly within the office
amended by RA 9369. of election contests over which electoral
tribunals have sole, exclusive jurisdiction
2. No pre-proclamation cases are allowed in case (Loong v. COMELEC, G.R. No. 93986, December
of barangay election. (R.A. 6679, Sec. 9) 22, 1992).
Issues that may be raised (1996 Bar) Effect of filing of pre-proclamation controversy
1. Illegal composition or proceedings of the 1. The period to file an election contest shall be
board of election canvassers; suspended during the pendency of the pre-
2. Canvassed election returns are either: proclamation contest in the COMELEC or the
a. Incomplete; Supreme Court;
b. Contain material defects; 2. The right of the prevailing party in the pre-
c. Appear to be tampered with or falsified; proclamation contest to the execution of
or COMELEC’s decision does not bar the losing
d. Contain discrepancies in the same returns party from filing an election contest; and
or in authentic copies; 3. Despite the pendency of a pre-proclamation
contest, the COMELEC may order the
3. The election returns were: proclamation of other winning candidates
a. Prepared under duress, threats, coercion, whose election will not be affected by the
intimidation; or outcome of the controversy.
b. Obviously manufactured or not authentic;
Termination of pre-proclamation cases
4. Substituted or fraudulent returns in
controverted polling places were canvassed, GR: Pre-proclamation cases are terminated at the
the results of which materially affected the beginning of term of the officers. (R.A. 7166, Sec.
standing of the aggrieved candidate(s); or 16)
241
POLITICAL LAW
XPNs: House of Representatives. Layug then filed a
1. When based on evidence, motion for reconsideration claiming denial of
COMELEC determines that petition is due process for the failure of COMELEC to serve
meritorious; him, his representatives a copy of said
2. The SC in a petition for certiorari issues a resolution. However, said motion was denied.
contrary order; or Hence, Layug filed a petition for Certiorari
3. The case is not a pre-proclamation case. under Rule 65 before the Supreme Court
(Peñaflorida v. COMELEC, G.R. No. 125950, imputing grave abuse of discretion on the part
November 18, 1997) of the COMELEC for failure to issue a notice of
promulgation to Layug's counsel and hear and
Q: Is the COMELEC precluded from exercising decide his motion for reconsideration. The
powers over pre proclamation controversies, COMELEC argued that since there was already
when the Electoral Tribunal acquires a proclamation of Buhay Party List as winner,
jurisdiction? the HRET and not the court has jurisdiction
over the questions relating to qualifications.
A: Does the court have jurisdiction over the
GR: YES. COMELEC is precluded from exercising petition?
powers over pre-proclamation controversies
when the Electoral Tribunal acquires jurisdiction. A: YES. Section 6 of the Party-List System Act
states that "the COMELEC may motu proprio or
XPNs: upon verified complaint of any interested party,
1. BOC was improperly constituted; remove or cancel, after due notice and hearing, the
2. Proclamation was null and void; registration of any national, regional or sectoral
3. Quo warranto is not the proper remedy; party, organization or coalition. Thus, it is the
4. What was filed was a petition to annul a Court, under its power to review decisions, orders,
proclamation, and not a quo warranto or or resolutions of the COMELEC provided under
election protest; and Section 7, Article IX-A of the 1987 Constitution and
5. Election contest expressly made without Section 1, Rule 37 of the COMELEC Rules of
prejudice to pre-proclamation controversy or Procedure that has jurisdiction to hear the instant
it was made ad cautelam. petition. (Rolando D. Layug vs. Commssion On
Elections, G. R. No. 192984, February 28, 2012,
Petition to annul or suspend the proclamation PER J. PERLAS-BERNABE)
It is a remedy where there is a manifest error on ELECTION PROTEST

the face of the transmitted returns or variance of
results from the election returns and CoC, and a Post-election disputes
winning candidate is about to be, or has already
been proclaimed on the basis thereof. These are disputes which arise or are instituted
after proclamation of winning candidates and
The COMELEC is required to hear the petition which issues pertain to the casting and counting of
immediately and the ballots may be ordered to be votes (election protests), or to the eligibility or
manually recounted to verify the manifest errors disloyalty of the winning candidates (quo
or alleged variance. warranto).
NOTE: The filing of a petition to annul or suspend Nature and purpose of an election contest
the proclamation shall suspend the running of the
period within which to file an election protest or It is a special summary proceeding the object of
quo warranto proceedings. which is to expedite the settlement of
controversies between candidates as to who
Q: Layug, in his capacity as a tax payer, filed a received the majority of legal votes.
petition to disqualify Buhay Party-List from
participating in the May 2010 elections, and NOTE: Statutes providing for election contests are
Brother Mike from being its nominee but the to be liberally construed to the end that the will of
same was denied by the COMELEC second the people in the choice of public officers may not
division for lack of substantial evidence. be defeated by mere technical objections. It is
Consequently, COMELEC proclaimed Buhay imperative that his claim be immediately cleared
Party-List as winner entitled to two seats in the not only for the benefit of the winner but for the

2019 GOLDEN NOTE S
Election Law
sake of public interest, which can only be achieved Effect if the protestant accepts a permanent
by brushing aside technicalities of procedure appointment
which protract and delay the trial of an ordinary
action. (Vialogo v. COMELEC, G.R. No. 194143, Acceptance of a permanent appointment to a
October 4, 2011) regular office during the pendency of his protest is
an abandonment of the electoral protest. The same
Where election protests can be filed is true if a protestant voluntarily sought election to
an office whose term would extend beyond the
1. COMELEC – It is the sole judge of all contests expiry date of the term of the contested office, and
relating to elections, returns, and after winning the said election, took her oath and
qualifications of all elective regional, assumed office and there after continuously
provincial and city officials (reviewable by SC serves it. The reason for this is that the dismissal
under Rule 64 using Rule 65); of the protest would serve public interest as it
would dissipate the aura of uncertainty as to the
NOTE: Decisions of COMELEC en banc are results of the presidential election, thereby
appealable to SC(2001 Bar). enhancing the all-to crucial political stability of the
nation during this period of national recovery
2. Presidential Electoral Tribunal –Against the (Santiago v. Ramos, P.E.T. Case No. 001, February
President and Vice President; 13, 1996).
3. SET – Against a senator;
4. HRET –Against a representative; In assuming the office of Senator, one has
5. RTC – Over contests for municipal officials effectively abandoned or withdrawn this protest.
which may be appealed to COMELEC; and Such abandonment or withdrawal operates to
6. MeTC or MTC – For barangay officials which render moot the instant protest. Moreover, the
may be appealed to COMELEC. dismissal of this protest would serve public
interest as it would dissipate the aura of
Grounds for the filing of election protests uncertainty as to the results of the election.
(Legarda v. De Castro, PET case no. 003, January 18,
1. Fraud; 2008)
2. Vote-buying;
3. Terrorism; Requisites for an execution pending appeal in
4. Presence of flying voters; election protest cases
5. Misreading or misappreciation of ballots;
6. Disenfranchisement of voters; 1. It must be upon motion by the prevailing party
7. Unqualified members of board of election with notice to the adverse party;
inspector; and 2. There must be good reasons for the said
8. Other election irregularities. execution; and
3. The order granting the said execution must
NOTE: Pendency of election protest is not state the good reasons. (Navarosa v. COMELEC,
sufficient basis to enjoin the protestee from G.R. No. 157957, September 18, 2003)
assuming office.
“Good reasons”
Content of an election protest
A combination of two or more of the following:
It must be initiated by filing a protest that must
contain the following allegations: 1. That public interest is involved or the will of
the electorate;
1. The protestant is a candidate who duly 2. The shortness of the remaining portion of the
filed a COC and was voted for in the term of the contested office; or
election; 3. The length of time that the election contest has
2. The protestee has been proclaimed; and been pending. (Ramas v. COMELEC, G.R. No.
3. The petition was filed within ten (10) 130831. February 10, 1998)
days after the proclamation. (Miro v.
COMELEC, G.R. No. L-57574, April 20, NOTE: If instead of issuing a preliminary
1983) injunction in place of a TRO, a court opts to decide
the case on its merits with the result that it also
enjoins the same acts covered by its TRO, it stands
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POLITICAL LAW
to reason that the decision amounts to a grant of Election protest vs.Quo warranto case under
preliminary injunction. Such injunction should be the OEC (2001, 2006 Bar)
deemed in force pending any appeal from the
decision. The view that execution pending appeal BASIS ELECTION QUO
should still continue notwithstanding a decision of PROTEST WARRANTO
the higher court enjoining such execution—does (2009 Bar)
not make sense. It will render quite inutile the By a losing By any voter
proceedings before such court. (Panlilio v. candidate for who is a
COMELEC, G.R. No. 184286, February 26, 2010) the same office registered voter
for which the in the
Best pieces of evidence in an election contest winner filed his constituency
Who
COC. where the
1. Ballots are the best and most conclusive may file
winning
evidence in an election contest where the candidate
correctness of the number of votes of each sought to be
candidate is involved (Delos Reyes, G.R. No. disqualified ran
170070, February 28, 2007); and for office.
2. Election returns are the best evidence when Who received Whether the
the ballots are lost, destroyed, tampered or the majority or candidate who
fake. plurality of the was proclaimed
votes which and elected
Right to withdraw were legally should be
cast? disqualified
A protestant has the right to withdraw his protest because of
or drop polling places from his protest. The Issue/s
Whether there ineligibility or
protestee, in such cases, has no cause to complain were disloyalty to the
because the withdrawal is the exclusive irregularities in Philippines.
prerogative of the protestant. the conduct of
the election
QUO WARRANTO which affected
its results.
Quo warranto proceeding for an elective office
Effect of filing an election protest or a petition
Quo warrant refers to an election contest relating for quo warranto
to the qualifications of an elective official on the
ground of (1) ineligibility or (2) disloyalty to Generally, it bars the subsequent filing of a pre-
the Republic of the Philippines. The issue is proclamation controversy or a petition to annul
whether respondent possesses all the proclamation. It also amounts to the abandonment
qualifications and none of the disqualifications of one filed earlier, thus, depriving the COMELEC
prescribed by law. (A.M. No. 07-4-15-SC, May 15, of the authority to inquire into and pass upon the
2007) title of the protestee or the validity of his
proclamation. Once the competent tribunal has
Jurisdiction acquired jurisdiction over an election protest or a
petition for quo warranto, all questions relative
NOTE: Quo warranto proceedings against a thereto will have to be decided in the case itself
Congressman-elect, Senator-elect, President-elect and not in another proceeding. (Villamor v.
and VP-elect are brought before the appropriate COMELEC, G.R. No. 169865, July 21, 2006)
electoral tribunals created by the Constitution.
Q: In March 2013, COMELEC First Division
Quo warranto proceedings against any regional, issued a resolution cancelling Jeninah’s CoC on
provincial or city officials are brought before the the ground that she is not a citizen of the
COMELEC. Philippines because of her failure to comply
with the requirements of the Citizenship
Quo warranto proceedings against municipal Retention and Re-acquisition Act of 2003. On
officials and barangay officials are brought before April 8, 2013, Jeninah filed an MR claiming that
the RTCs and MTCs respectively. she is a natural-born Filipino citizen, but it was
denied by COMELEC on May 14 for lack of merit

2019 GOLDEN NOTE S
Election Law
and declared it final and executory. Jeninah,
however, was proclaimed the winner of the
May 2013 elections, and took her oath of office
but is yet to assume office on June 30, 2013.
Jeninah contends that COMELEC lost
jurisdiction pursuant to Sec. 17, Art. 6 of the
1897 Constitution which states that HRET has
the exclusive jurisdiction to be the “sole judge
of all contests relating to the election, returns
and qualifications” of the Members of the HOR.
Is the contention of Jeninah correct?
A: NO. The Court has invariably held that once a

winning candidate has been proclaimed, taken his
oath, and assumed office as a Member of the HOR,
the COMELEC's jurisdiction over election contests
relating to his election, returns, and qualifications
ends, and the HRET's own jurisdiction
begins. Here, Jeninah, the winning candidate
cannot be considered a Member of the HOR
because, primarily, he has not yet assumed
office. To repeat what has earlier been said, the
term of office of a Member of the HOR begins only
“at noon on the 30th day of June next following
their election.” Thus, until such time, the COMELEC
retains jurisdiction. (Reyes v. COMELEC, G.R. No.
207264, June 25, 2013)
245
POLITICAL LAW
LOCAL GOVERNMENTS services and facilities in their respective
jurisdictions, the same law provides a categorical
PRINCIPLES OF LOCAL AUTONOMY exception of cases involving nationally-funded
projects, facilities, programs and services. The
The principle of local autonomy essentially means national government is, thus, not precluded from
decentralization. Autonomy is either (1) taking a direct hand in the formulation and
decentralization of administration or (2) implementation of national development
decentralization of power. programs especially where it is implemented
locally in coordination with the LGUs concerned.
Decentralization of administration (Pimentel, Jr. vs. Executive Secretary Ochoa, G.R.
No. 195770, July 17, 2012, PER J. PERLAS-
There is decentralization of administration when BERNABE)
the central government delegates administrative
powers to political subdivisions in order to Presidential Power of Supervision
broaden the base of government power and in the
process make local governments ‘more Autonomy, however, is not meant to end the
responsive and more accountable’ and ensure relation of partnership and interdependence
their fullest development as self-reliant between the central administration and local
communities and make them more effective government units. Local governments, under the
partners in the pursuit of national development Constitution, are subject to regulation, however
and social progress.’ limited, and for no other purpose than precisely,
albeit paradoxically, to enhance self-government.
Decentralization of power (Ganzon v. Court of Appeals, G.R. No. 93252, August
5, 1991)
On the other hand, decentralization of power
“involves as abdication of political power in favor The president’s power over LGUs is now limited to
of local government units declared to be supervision, not control.
autonomous. This is termed as devolution. (The
Local Government Code Revisited 2011 Ed., p. 8, The president exercises “general supervision”
Aquilino Pimentel, Jr.) over the LGUs, but only to “ensure that local affairs
are administered according to law.” It means
Q: In 2008, the DSWD launched the "Pantawid “overseeing or the authority of an officer to see
Pamilyang Pilipino Program" (4Ps). This that the subordinate officer perform their duties.
government intervention scheme "provides If the subordinate officers fail or neglect to fulfill
cash grant to extreme poor households to their duties, the official may take such action or
allow the members of the families to meet steps as prescribed by law to make them perform
certain human development goals." A their duties. (The Local Government Code Revisited,
Memorandum of Agreement executed by the 2011 Ed., p. 14, Aquilino Pimentel Jr.)
DSWD with each participating LGU outlines in
detail the obligation of both parties during the LGU Dual Personality
intended five-year implementation. Congress,
for its part, sought to ensure the success of the LGUs have a dual personality: political and
4Ps by providing it with funding. Does this corporate. Being political units of government and
encroach upon the local autonomy of the LGUs? as agents of the national government, LGUs exercise
governmental powers. On the other hand, as a
A: NO. The purpose of the delegation is to make corporate entity, they exercise powers which are
governance more directly responsive and effective proprietary in nature but which they can perform
at the local levels. But to enable the country to for the benefit of their constituencies (The Local
develop as a whole, the programs and policies Government Code Revisited 2011 ed., p. 62, Aquilino
effected locally must be integrated and Pimentel, Jr.).
coordinated towards a common national goal.
Thus, policy-setting for the entire country still lies Under Philippine laws, the City of Manila is a
in the President and Congress. While the Local political body corporate and as such (is) endowed
Government Code charges the LGUs to take on the with the faculties of municipal corporations to be
functions and responsibilities that have already exercised by and through its city government in
been devolved upon them from the national conformity with law, and in its proper corporate
agencies on the aspect of providing for basic name. It may sue and be sued, and contract and be

2019 GOLDEN NOTE S
Local Governments
contracted with. Its powers are twofold in
character-public, governmental or political on the Provinces, cities, municipalities, and geographical
one hand, and corporate, private and proprietary on areas sharing common and distinctive historical
the other. Governmental powers are those and cultural heritage, economic and social
exercised in administering the powers of the state structures, and other relevant characteristics. (Sec.
and promoting the public welfare and they include 15, Art. X, 1987 Constitution)
the legislative, judicial, public and political.
Municipal powers on the one hand are exercised for Autonomous region is a form of local
the special benefit and advantage of the community government
and include those which are ministerial, private and
corporate (City of Manila v. Intermediate Appellate The inclusion of autonomous regions in the
Court, G.R. No. 71159, November 15, 1989). enumeration of political subdivisions of the State
under the heading "Local Government" indicates
Local Fiscal Autonomy quite clearly the constitutional intent to consider
autonomous regions as one of the forms of local
Fiscal autonomy means that local governments governments. (Kida v. Senate, GR No. 196271,
have the power to create their own sources of February 28, 2012)
revenue in addition to their equitable share in the
national taxes released by the national Constitution mandates the creation of
government, as well as the power to allocate their autonomous regions only in Muslim Mindanao
resources in accordance with their own priorities. and Cordilleras
It extends to the preparation of their budgets, and
local officials in turn have to work within the There shall be created autonomous regions in
constraints thereof. They are not formulated at the Muslim Mindanao and in the Cordilleras within the
national level and imposed on local governments, framework of the Constitution and the national
whether they are relevant to local needs and sovereignty as well as territorial integrity of the
resources or not. Further, a basic feature of local Republic of the Philippines. (Sec. 15, Art. X, 1987
fiscal autonomy is the constitutionally mandated Constitution)
automatic release of the shares of local
governments in the national internal revenue. The Congress shall enact an organic act for each
(Province of Batangas v. Romulo, G.R. No. 152774, autonomous region. The organic act shall define
May 27, 2004) the basic structure of government for the region
consisting of the executive department and
Automatic release of LGU shares legislative assembly, both of which shall be
elective and representative of the constituent
The shares of the LGUs in the central government political units. The organic acts shall likewise
taxes and in the proceeds of natural resources provide for special courts with personal, family,
within their territories shall be automatically and and property law jurisdiction consistent with the
directly released to them. (The Local Government provisions of this Constitution and national laws.
Code Revisited 2011 Ed., p. 129, Aquilino Pimentel (Sec. 18, Art. X, 1987 Constitution)
Jr.)
NOTE: As of now (2019), there is only one
NOTE: A “no report, no release” policy may not be autonomous region created -- the Autonomous
validly enforced against offices vested with fiscal Region in Muslim Mindanao (ARMM). Several
autonomy such as Constitutional Commissions attempts have been made in the Cordilleras to
and local governments. The automatic release create an autonomous region but has repeatedly
provision found in the Constitution means that failed.
these local government units cannot be required
to perform any act to receive the “just share” Organic Law for the Bangsamoro Autonomous
accruing to them from the national coffers. (Civil Region in Muslim Mindanao (RA 11054)
Service Commission v. Department of Budget and
Management, G.R. No. 158791, July 22, 2005) R.A. No. 11054 abolished ARMM and placed in its
stead the Bangsamoro Autonomous Region in
AUTONOMOUS REGIONS AND THEIR Muslim Mindanao (BARMM). It also created the
RELATION TO THE NATIONAL GOVERNMENT Bangsamoro Government which has exclusive
powers over some matters including budgeting,
Autonomous Regions administration of justice, agriculture, disaster risk
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reduction and management, ancestral domains, development;
human rights, local government units, public
works, social services, tourism, and trade and (6) Economic, social, and tourism development;
industry.
(7) Educational policies;
In relation to the National Government, Section 1,
Article V of R.A. No. 11054 states that “all powers, (8) Preservation and development of the cultural
functions, and responsibilities not granted by the heritage; and
Constitution or by national law to the Bangsamoro
Government shall be vested in the National (9) Such other matters as may be authorized by
Government.” law for the promotion of the general welfare of the
people of the region. (Sec. 20, Art. X, 1987
Also, Section 1, Article VI thereof provides that the Constitution)
President shall exercise general supervision over
the Bangsamoro Government to ensure that laws Local police responsible for peace and order
are faithfully executed. The President may but national government responsible for
suspend the Chief Minister for a period not defense and security
exceeding six (6) months for willful violation of the
Constitution, national laws, or this Organic Law. The preservation of peace and order within the
regions shall be the responsibility of the local
On the aspect of intergovernmental relations, an police agencies which shall be organized,
Intergovernmental Relations Body was created to maintained, supervised, and utilized in accordance
coordinate and resolve issues on with applicable laws. The defense and security of
intergovernmental relations through regular the regions shall be the responsibility of the
consultation and continuing negotiation in a non- National Government. (Sec. 21, Art. X, 1987
adversarial manner. Constitution)
President exercises general supervision LOCAL GOVERNMENT UNITS

POWERS
The President shall exercise general supervision
over autonomous regions to ensure that the laws The following powers of LGUs:
are faithfully executed. (Sec. 16, Art. X, 1987
Constitution) a. Police Power
b. Eminent Domain
Limitation of powers and functions of c. Taxation
autonomous regions d. Legislative Power
All powers, functions, and responsibilities not POLICE POWER (GENERAL WELFARE CLAUSE)
granted by the Constitution or by law to the
autonomous regions shall be vested in the Nature of police power
National Government. (Sec. 17, Art. X, 1987
Constitution) The police power of the LGU is not inherent. LGUs
exercise the police power under the general
Within its territorial jurisdiction and subject to the welfare clause (LGC, Sec. 16,).
provisions of this Constitution and national laws,
the organic act of autonomous regions shall General welfare clause
provide for legislative powers over:
LGUs shall exercise powers that are necessary,
(1) Administrative organization; appropriate, or incidental for its efficient and
effective governance, and those which are essential
(2) Creation of sources of revenues; to the promotion of general welfare. Within their
respective territorial jurisdiction, LGUs shall ensure
(3) Ancestral domain and natural resources; and support, among other things, the preservation
and enrichment of culture, promote health and
(4) Personal, family, and property relations; safety, enhance the right of the people to a balanced
ecology, encourage and support the development of
(5) Regional urban and rural planning appropriate and self-reliant scientific and

2019 GOLDEN NOTE S
Local Governments
technological capabilities, improve public morals, College, G.R. No. 161107, March 12, 2013)
enhance economic prosperity and social justice,
promote full employment among its residents, Q: The Sangguniang Panlungsod of Davao City
maintain peace and order, and preserve the comfort enacted an ordinance imposing a ban against
and convenience of their inhabitance. (R.A. 7160, Sec. aerial spraying as an agricultural practice by
16) all agricultural entities within Davao City.
Pursuant to the ordinance, the ban against
Two branches of the General Welfare Clause aerial spraying would be strictly enforced
three months thereafter. The Pilipino Banana
1. General Legislative Power – Authorizes the Growers and Exporters Association, Inc.
municipal council to enact ordinances and (PBGEA) filed a petition in the RTC to
make regulations not repugnant to law, as challenge the constitutionality of the
may be necessary to carry into effect and ordinance, alleging that the ordinance
discharge the powers and duties conferred exemplified the unreasonable exercise of
upon the municipal council by law. police power and violated the equal
2. Police Power Proper – Authorizes the protection clause. The RTC declared that the
municipality to enact ordinances as may be ordinance is valid and constitutional saying
necessary and proper for the health and that the City of Davao had validly exercised
safety, prosperity, morals, peace, good police power under the General Welfare
order, comfort, and convenience of the Clause of the Local Government Code and that
municipality and its inhabitants, and for the the ordinance was consistent with the Equal
protection of their property (Rural Bank of Protection Clause. On appeal, however, the CA
Makati v. Municipality of Makati, July 2, reversed the judgment of the RTC. Is the
2004). ordinance valid?
Requisites/limitations for the proper A:NO. Requiring the respondents and other
exercise of the police power (PREN) affected individuals to comply with the
consequences of the ban within the three-month
1. The interests of the public generally, as period under pain of penalty like fine,
distinguished from those of a particular class, imprisonment and even cancellation of business
require the interference of the state(Equal permits would definitely be oppressive as to
Protection Clause) constitute abuse of police power.
2. The means employed are reasonably necessary The ordinance violated the equal protection
for the attainment of the object sought to be clause. The imposition of the ban is too broad
accomplished and not duly oppressive (Due because the ordinance applies irrespective of the
Process Clause) substance to be aerially applied and irrespective of
3. Exercisable only within the territorial limits of the agricultural activity to be conducted. Such
the LGU, except for protection of water supply imposition becomes unreasonable inasmuch as it
(LGC, Sec. 16) patently bears no relation to the purported
4. Must not be contrary to the Constitution and inconvenience, discomfort, health risk and
the laws. environmental danger which the ordinance seeks
to address. Theburden will now become more
NOTE: There must be a concurrence of a lawful onerous to various entities, including those with
subject and lawful method. (Lucena Grand Central v. no connection whatsoever to the intended
JAC, G.R. No. 148339 February 23, 2005) purpose of the ordinance. (Mosqueda vs. Pilipino
Banana Growers & Exporters Assoc., G.R. No.
Tests when police power is invoked as the 189185 & 189305, August 16, 2016)
rationale for the valid passage of an ordinance
Ministerial duty of the Local Chief Executive
1. Rational relationship test – An ordinance must
pass the requisites as discussed above. The LGC imposes upon the city mayor, to “enforce
2. Strict scrutiny test – The focus is on the all laws and ordinances relative to the governance
presence of compelling, rather than of the city.” As the chief executive of the city, he has
substantial, governmental interest and on the the duty to enforce an ordinance as long as it has
absence of less restrictive means for achieving not been repealed by the Sanggunian or annulled
that interest. (Fernando v. St. Scholastica’s by the courts. He has no other choice. It is his
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POLITICAL LAW
ministerial duty to do so. (Social Justice Society v. come out with an effective order or resolution
Atienza, Jr., G.R. No. 156052, March 7, 2007) thereon. Pertinent herein is Sec. 444 (b)(3)(vi) of
the LGC, which empowered the mayor to order the
Abatement of nuisance without judicial closure and removal of illegally constructed
proceeding establishments for failing to secure the necessary
permits.
The abatement of nuisances without judicial
proceedings applies to nuisance per se or those In the case at bar, Boracay West Cove admittedly
which affect the immediate safety of persons and failed to secure the necessary permits, clearances,
property and may be summarily abated under the and exemptions before the construction,
undefined law of necessity. (Tayaban v. People, expansion, and operation of Boracay West Cove’s
G.R. No. 150194, March 6, 2007) hotel in Malay, Aklan. To recall, Boracay West Cove
declared that the application for zoning compliance
The LGUs have no power to declare a particular was still pending with the office of the mayor even
thing as a nuisance unless such a thing is a nuisance though construction and operation were already
per se; nor can they effect the extrajudicial ongoing at the same time. As such, it could no
abatement of a nuisance per accidens. Those things longer be denied that it openly violated Municipal
must be resolved by the courts in the ordinary Ordinance 2000-131 (Aquino v. Municipality of
course of law. (AC Enterprises, Inc. v. Frabelle Malay, Aklan, G.R. No. 211356, September 29, 2014).
Properties Corp., G.R. No. 166744, November 2,
2006) NOTE: Based on law and jurisprudence, the office
of the mayor has quasi-judicial powers to order the
Q: The Mayor of Malay, Aklan ordered through closing and demolition of establishments. This
Executive Order No. 10 the demolition of the power granted by the LGC, is not the same power
Boracay West Cove Resort and Hotel without devolved in favor of the LGU under Sec. 17
first conducting judicial proceedings on the (b)(2)(ii), which is subject to review by the DENR.
ground that the said hotel was built on a "no The fact that the building to be demolished is
build zone" as demarcated in Municipal located within a forestland under the
Ordinance 2000-131. The owner of the Boracay administration of the DENR is of no moment, for
West Cove imputed grave abuse of discretion on what is involved herein, strictly speaking, is not an
the part of the Mayor. Is the owner correct? issue on environmental protection, conservation of
natural resources, and the maintenance of
A: NO. Generally, LGUs have no power to declare a ecological balance, but the legality or illegality of
particular thing as a nuisance unless such a thing is the structure. Rather than treating this as an
a nuisance per se. Despite the hotel’s classification environmental issue then, focus should not be
as a nuisance per accidens, however, the Court still diverted from the root cause of this debacle-
found in this case that the LGU may nevertheless compliance. (Aquino v. Municipality of Malay, Aklan,
properly order the hotel’s demolition. This is supra.)
because, in the exercise of police power and the
general welfare clause, property rights of Powers deemed implied in the power to grant
individuals may be subjected to restraints and permits and licenses
burdens in order to fulfill the objectives of the
government. Power to issue licenses and permits include
power to revoke, withdraw, or restrict through
Otherwise stated, the government may enact the imposition of certain conditions. However, the
legislation that may interfere with personal liberty, conditions must be reasonable and cannot amount
property, lawful businesses and occupations to to an arbitrary interference with the business.
promote the general welfare. (Acebedo Optical Company, Inc. v. CA, G.R. No.
100152, March 31, 2000)
One such piece of legislation is the LGC, which
authorizes city and municipal governments, acting Object of the permit requirement
through their local chief executives, to issue
demolition orders. Under existing laws, the office of The object of the permit requirement is the proper
the mayor is given powers not only relative to its supervision of the enumerated businesses, trades,
function as the executive official of the town; it has or occupation.
also been endowed with authority to hear issues
involving property rights of individuals and to NOTE: The issuance of permits and licenses is a

2019 GOLDEN NOTE S
Local Governments
function of the local chief executive. Q: The Sangguniang Panglungsod of Marikina
City enacted an ordinance “Regulating the
Q: Acebedo Optical Company applied with the Construction of Fences and Walls in the City of
Office of the City Mayor of Iligan for a business Marikina”. The ordinance provided, among
permit. The City Mayor issued such permit others, that fences should not be more than 1
subject to special conditions that the company meter and fences in excess of 1 meter shall be
cannot put up an optical clinic but only a 80% see-thru. It further provided that in no
commercial store; it cannot examine patients case shall walls and fences be built within the
and prescribe glasses; and it cannot sell five meter parking area allowance located
eyeglasses without a prescription from an between the front monument line and the
independent optometrist. Samahan ng building line of commercial and industrial
Optometrist ng Pilipinas lodged a complaint establishments and educational and religious
against Acebedo for violating the conditions institutions. Is the ordinance valid?
which resulted in the revocation of its permit.
Did the City Mayor have the authority to A: NO. It has long been settled that the State may
impose special conditions in the grant of the not, under the guise of police power, permanently
business permit? divest owners of the beneficial use of their
property solely to preserve or enhance the
A: NO. Police power is essentially regulatory in aesthetic appearance of the community.
nature and the power to issue license or grant Compelling the respondents to construct their
business permits, if for a regulatory purpose, is fence in accordance with the assailed ordinance is,
within the ambit of this power. This power thus, a clear encroachment on their right to
necessarily includes the power to revoke and to property, which necessarily includes their right to
impose conditions. However, the power to grant or decide how best to protect their property.
issue licenses or business permits must always be (Fernando v. St. Scholastica's College, G.R. No.
exercised in accordance with law, with utmost 161107, March 12, 2013)
observance of the rights of all concerned to due
process and equal protection of the law. What is Q: Can the City Mayor of Manila validly take
sought by Acebedo from the City Mayor is a permit custody of several women of ill repute and
to engage in the business of running an optical deport them as laborers without knowledge
shop. It does not purport to seek a license to and consent to the said deportation?
engage in the practice of optometry. A business
permit is issued primarily to regulate the conduct A: NO. One can search in vain for any law, order,
of business and the City Mayor cannot, through the or regulation, which even hints at the right of the
issuance of such permit, regulate the practice of a Mayor of the city of Manila or the chief of police of
profession. Such a function is within the exclusive that city to force citizens of the Philippine
domain of the administrative agency specifically Islands — and these women despite their being in
empowered by law to supervise the profession, in a sense lepers of society are nevertheless not
this case the Professional Regulations Commission chattels but Philippine citizens protected by the
and the Board of Examiners in Optometry. same constitutional guaranties as are other
(Acebedo Optical Company Inc. v. Court of Appeals, citizens — to change their domicile from Manila
G.R. No. 100152, March 31, 2000) to another locality. (Villavicencio v. Lukban, G.R.
No. L-14639, March 25, 1919)
NOTE: However, certain professions may be
affected by the exercise of police power. An Q: May an LGU require customers to fill out a
ordinance in Manila was held not to regulate the prescribed form stating personal information
practice of massage, much less restrict the practice such as name, gender, nationality, age, address,
of such profession. Instead, the end sought to be and occupation before they could be admitted
obtained was to prevent the commission of to a motel, hotel, or lodging house?
immorality under the practice of prostitution in an
establishment masquerading as a massage clinic A: YES. The Ordinance was enacted precisely to
where the operation thereof offers to massage minimize certain practices hurtful to public morals
superficial parts of the bodies of customers for such as the increase in the rate of prostitution,
hygienic or aesthetic purposes. (Physical Therapy adultery, and fornication in Manila traceable in
Organization of the Philippines v. Municipal Board great part to the existence of motels, which
of Manila, G.R. No. L-10488, August 30, 1957) "provide a necessary atmosphere for clandestine
entry, presence, and exit" and thus become the
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POLITICAL LAW
"ideal haven for prostitutes and thrill-seekers". prohibiting the disco pub owners and the
Precisely it was intended to curb the opportunity hospitality girls from pursuing their calling or
for the immoral or legitimate use to which such business but is merely regulating it. (Social Justice
premises could be and are being devoted. (Ermita- Society v. Dangerous Drugs Board, G.R. No. 157870,
Malate Hotel and Motel Operations Association v. Nov. 3, 2008)
City Mayor of Manila, G.R. No. L-24693, July 31,
1967) This ordinance is a valid exercise of police power,
because its purpose is to safeguard public health.
Q: Mayor Lim signed into law, City Ordinance (Beltran v. Secretary of Health, G.R. No. 133640,
7774, which prohibits short time admission in November 25, 2005)
hotels, motels, lodging houses, pension houses,
and similar establishments in the City of NOTE: Municipal corporations cannot prohibit the
Manila to protect public morals. Pursuant to operation of night clubs. They may be regulated, but
the above policy, short-time admission and not prevented from carrying on their business.
rate, wash-up rate or other similarly concocted (Dela Cruz v. Paras, G.R. Nos. L-42571-72, July 25,
terms, are hereby prohibited in hotels, motels, 1983)
inns, lodging houses, pension houses and
similar establishments in the City of Manila. Q: The Quezon City Council issued Ordinance
Petitioners argued that the Ordinance is 2904 which requires the construction of
unconstitutional and void since it violates the arcades for commercial buildings to be
right to privacy and the freedom of movement; constructed in zones designated as business
it is an invalid exercise of police power; and it zones in the zoning plan of Quezon City, along
is an unreasonable and oppressive EDSA. However, at the time the ordinance was
interference in their business. Is the ordinance passed there was yet no building code passed by
valid? the legislature. Thus, the regulation of the
construction of the buildings are left to the
A: NO. Individual rights may be adversely discretion of the LGUs. Under this ordinance,
affected only to the extent that may fairly be the city council required that the arcade is to be
required by the legitimate demands of public created in a way that building owners are not
interest or public welfare. However well- allowed to construct his wall up to the edge of
intentioned the Ordinance may be, it is in effect an the property line, thereby creating a space
arbitrary and whimsical intrusion into the rights of under the first floor. In effect, property owners
the establishments as well as their patrons. The relinquish the use of the space as an arcade for
Ordinance needlessly restrains the operation of pedestrians instead of using the property for
the businesses of the petitioners as well as their own purposes.
restricting the rights of their patrons without
sufficient justification. The Ordinance rashly Subsequently, Justice Gancayo sought to be
equates wash rates and renting out a room more exempted from the application of the ordinance
than twice a day with immorality without to which the City Council responded favorably
accommodating innocuous intentions (White in his favor.
Light Corp., v. City of Manila, G.R. No. 122846,
January 20, 2009). MMDA then sent a notice of demolition to
Justice Gancayco alleging that a portion of his
Q: The Sangguniang Panlungsod of Pasay City building violates the National Building Code in
passed an ordinance requiring all disco pub relation to the ordinance. Is the Ordinance a
owners to have all their hospitality girls tested valid exercise of police power in regulating the
for the AIDS virus. Both disco pub owners and use of property in a business zone?
the hospitality girls assailed the validity of the
ordinance for being violative of their A: YES. In the exercise of police power, property
constitutional rights to privacy and to freely rights of individuals may be subject to restraints
choose a calling or business. Is the ordinance and burdens in order to fulfill the objectives of the
valid? Explain. government. Property rights must bow down to the
primacy of police power because it must yield to the
A: YES. The ordinance is a valid exercise of police general welfare. It is clear that the objective of the
power. The right to privacy yields to certain ordinance were the health and safety of the city and
paramount rights of the public and defers to the its inhabitants. At the time he ordinance was
exercise of police power. The ordinance is not passed, there was no national building code, thus

2019 GOLDEN NOTE S
Local Governments
there was no law which prohibits the city council operations.
from regulating the construction of buildings,
arcades and sidewalks in their jurisdiction. The Manila Ordinance cites only four (4)
(Gancayco v. City Government of Quezon City, G.R. No. exemptions, namely: (a) minors accompanied
177807, Oct. 11, 2011) by their parents, family members of legal age,
or guardian; (b) those running lawful errands
Q: Rivera was found washing her clothing near such as buying of medicines, using of
the Santolan pumping station near Boso-Boso telecommunication facilities for emergency
dam. Rivera’s act of washing clothing purposes and the like; (c) night school
interfered with the purity of the water which students and those who, by virtue of their
was supplied to Manila by the Santolan employment, are required in the streets or
pumping station. She was charged with outside their residence after 10:00 p.m.; and
violation of Sec. 4(f) of Ordinance No. 149 (d) those working at night.
which prohibited washing of garments in the
waters of any river or water course. Manila’s For its part, the Navotas Ordinance provides
municipal board adopted the same section by more exceptions, to wit: (a) minors with night
virtue of the Acts of the Philippine Commission classes; (b) those working at night; (c) those
and was authorized to purify the source of who attended a school or church activity, in
water supply as well as the drainage area of coordination with a specific barangay office;
such water supply. Rivera contented that the (d) those traveling towards home during the
municipal court of the City of Manila and the curfew hours; (e) those running errands under
Court of First Instance of the City of Manila had the supervision of their parents, guardians, or
no jurisdiction to try her for the crime persons of legal age having authority over
committed. Does the CFI of Manila have them; (f) those involved in accidents,
jurisdiction over the offense, considering that calamities, and the like. It also exempts minors
the washing of clothes was in the Mariquina from the curfew during these specific
River? occasions: Christmas eve, Christmas day, New
Year's eve, New Year's day, the night before the
A: YES. Boundaries usually mark the limit for the barangay fiesta, the day of the fiesta, All Saints'
exercise of the police powers by the municipality. and All Souls' Day, Holy Thursday, Good Friday,
However, in certain instances – the performance Black Saturday, and Easter Sunday.
of police functions, the preservation of public
health and acquisition of territory for water Petitioners argue that the Curfew Ordinances
supply – the municipality is granted police power are unconstitutional because they deprive
beyond its boundaries. The Santolan pumping minors of the right to liberty and the right to
station is a part of the public water supply of travel without substantive due process. Are
Manila with water taken from that part of the said ordinances valid?
Mariquina River, in the waters of which Rivera
washed clothes. Public water supply is not limited A: The Manila and Navotas Ordinances are not
to water supply owned and controlled by a valid.
municipal corporation, but should be construed as
meaning a supply of water for public and domestic While rights may be restricted, the restrictions
use, furnished or to be furnished from water must be minimal or only to the extent necessary to
works. The provisions of the Ordinance No. 149 achieve the purpose or to address the State's
would be meaningless and absurd if made compelling interest.
applicable only to the Santolan pumping station
and not to that part of the Mariquina River The Manila and Navotas Ordinances are not
immediately above it and from which the pumping narrowly drawn in that their exceptions are
station draws water for the use of the inhabitants inadequate and therefore, run the risk of overly
of the City of Manila. (Rivera v. Campbell, G.R. No. L- restricting the minors' fundamental freedoms. To
11119, March 23, 1916) be fair, both ordinances protect the rights to
education, to gainful employment, and to travel at
Q: Following the campaign of President night from school or work. However, even with
Duterte to implement a nationwide curfew for those safeguards, the Navotas Ordinance and, to a
minors, Navotas City and the City of Manila greater extent, the Manila Ordinance still do not
started to strictly implement their curfew account for the reasonable exercise of the minors'
ordinances on minors through police rights of association, free exercise of religion,
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POLITICAL LAW
rights to peaceably assemble, and of free
expression, among others. The exceptions under As worded, the prohibition in Section 57-A is clear,
the Manila Ordinance are too limited, and thus, categorical, and unambiguous. It states that "[n]o
unduly trample upon protected liberties. The penalty shall be imposed on children for x x x
Navotas Ordinance is apparently more protective violations [of] juvenile status offenses]." Thus, for
of constitutional rights than the Manila Ordinance; imposing the sanctions of reprimand, fine, and/or
nonetheless, it still provides insufficient imprisonment on minors for curfew violations,
safeguards: First, although it allows minors to portions of Section 4 of the Manila Ordinance
engage in school or church activities, it hinders directly and irreconcilably conflict with the clear
them from engaging in legitimate non-school or language of Section 57-A of RA 9344, as amended,
non-church activities in the streets or going to and and hence, invalid. (SPARK, Et. al. vs. Quezon City,
from such activities; thus, their freedom of GR No. 225442, August 08, 2017, PER, J. PERLAS-
association is effectively curtailed. It bears BERNABE)
stressing that participation in legitimate activities
of organizations, other than school or church, also Q: The Sanggunian of Cagayan De Oro enacted
contributes to the minors' social, emotional, and Ordinance No. 3353 prohibiting the issuance
intellectual development, yet, such participation is of business permits and cancelling existing
not exempted under the Navotas Ordinance. business permits for the operation of casinos;
Second, although the Navotas Ordinance does not and Ordinance No. 3375-93, prohibiting the
impose the curfew during Christmas Eve and operation of a casino. Z assailed the validity of
Christmas day, it effectively prohibits minors from the ordinances on the ground that both
attending traditional religious activities (such as violated P.D. 1869 which permits the
simbang gabi) at night without accompanying operation of casinos, centralized and regulated
adults, xxx. This legitimate activity done pursuant by PAGCOR. However, the Sanggunian
to the minors' right to freely exercise their religion contended that pursuant to the LGC they have
is therefore effectively curtailed. Third, the the police power to prohibit the operations of
Navotas Ordinance does not accommodate casinos for the general welfare. Was there a
avenues for minors to engage in political rallies or valid exercise of police power?
attend city council meetings to voice out their
concerns in line with their right to peaceably A: NO. P.D. 1869 creating the PAGCOR expressly
assemble and to free expression. (SPARK, Et. al. authorized it to centralize and regulate all games
vs. Quezon City, GR No. 225442, August 08, 2017, of chance including casinos. This has not been
PER, J. PERLAS-BERNABE) amended by the LGC which empowers LGUs to
prevent or suppress only those forms of gambling
Q: The City of Manila passed a Curfew prohibited by law. Casino gambling is, however,
Ordinance on minors which imposes several authorized under P.D. 1869. This decree has the
penalties for violators. Petitioners argue that status of a statute that cannot be annulled or
the Curfew Ordinance is unconstitutional amended by a mere ordinance. PAGCOR can set up
because it contravenes RA 9344's express casinos with or without the consent of the host
command that no penalty shall be imposed on local government. (Magtajas v. Pryce Properties
minors for curfew violations. Is petitioners’ and PAGCOR, G.R. No. 111097, July 20, 1994)
contention proper?
Contempt Powers
A:YES. The Manila Ordinance is in conflict with the
clear language of Section 57-A of RA 9344, as Although the Sanggunian of a municipality may
amended, and hence, invalid. exercise certain powers under the General Welfare
Clause, citing nonmembers of the Sanggunian for
The law does not prohibit the enactment of contempt or issuing subpoena to compel non-
regulations that curtail the conduct of minors, members to attend public hearings or investigation
when the similar conduct of adults are not is not one of them.
considered as an offense or penalized (i.e., status
offenses). Instead, what it prohibits is the EMINENT DOMAIN
imposition of penalties on minors for violations of
these regulations. Consequently, the enactment of Local government units have no inherent power of
curfew ordinances on minors, without penalizing eminent domain. Local governments can exercise
them for violations thereof, is not violative of such power only when expressly authorized by the
Section 57-A. Legislature. By virtue of the Local Government

2019 GOLDEN NOTE S
Local Governments
Code, Congress conferred upon local government 1. Property sought to be acquired
units the power to expropriate. (Masikip v. City of 2. The reason for the acquisition
Pasig, G.R. No. 136349, January 23, 2006) 3. The price offered
Strictly speaking, the power of eminent domain NOTE:

delegated to an LGU is in reality not eminent but 1. If owner accepts offer: a contract of sale will
“inferior”. The national legislature is still the be executed.
principal of the LGUs, and the latter cannot go 2. If owner accepts but at a higher price: Local
against the principal’s will or modify the same chief executive shall call a conference for the
(Beluso v. Municipality of Panay, G.R. No. 153974, purpose of reaching an agreement on the
August 7, 2006). selling price; If agreed, contract of sale will be
drawn. (Implenting Rules and Regulations of
Requisites for the valid exercise of the LGC, Art. 35)
power of eminent domain (OPCO
) Elements for an authorized immediate entry
1. An Ordinance is enacted by the local
legislative council authorizing the local chief 1. Filling of a complaint for expropriation which
executive, in behalf of the LGU, to exercise is sufficient in form and substance
the power of eminent domain or pursue 2. Deposit of the amount equivalent to fifteen
expropriation proceeding over a percent (15%) of the fair market value of
particular private property. the property to be expropriated based on its
current tax declaration.
NOTE: LGU cannot authorize an
expropriation of private property through a NOTE: Upon compliance, the issuance of writ of
mere resolution of its lawmaking body. possession becomes ministerial. (City of Iloilo v.
Legaspi, G.R. No. 154614, Nov. 25, 2004)
2. It must be for Public use, purpose, or
welfare or for the benefit of the poor or The advance deposit required under Section 19 of
landless the LGC constitutes an advance payment only in the
event the expropriation prospers. Such deposit also
NOTE: Property already devoted to public has a dual purpose: as pre-payment if the
use may not be taken for another public use. expropriation succeeds and as indemnity for
(City of Manila v. Chinese Community of damages if it is dismissed. This advance payment, a
Manila, G.R. No. L-14355, October 31, 1919) prerequisite for the issuance of a writ of possession,
should not be confused with payment of just
3. There must be payment of just Compensation compensation for the taking of property even if it
could be a factor in eventually determining just
4. A valid and definite Offer has been compensation. If the proceedings fail, the money
previously made to the owner of the property could be used to indemnify the owner for damages.
sought to be expropriated, but said offer was (City of Manila v. Alegar Corporation, G.R. No.
not accepted. (Municipality of Paranaque v. 187604, June 25, 2012)
V.M. Realty Corporation, G.R. No. 127820. July
20, 1998) Phases of expropriation proceedings
NOTE: The Supreme Court held “the burden is 1. The determination of the authority of the
on the LGU to prove its compliance with the plaintiff to exercise the power of
mandatory requirement of a valid and definite eminent domain and the propriety of its
offer to the owner of the property before its exercise in the context of the facts involved
filing of its complaint for expropriation. Failure in the suit.
to prove compliance with the mandatory
requirement will result in the dismissal of the NOTE: It ends with an order, if not dismissal
complaint. of action, of condemnation declaring that the
plaintiff has a lawful right to take the
Due process requirements in eminent property sought to be condemned, for the
domain (PRP) public use or purpose described in the
complaint, upon the payment of just
Offer must be in writing specifying: compensation to be determined as of the
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POLITICAL LAW
date of the filing of the complaint. The law expressly exempted “small property
owners” from expropriation of their land for urban
An order of dismissal, if this be ordained, land reform. (City of Mandaluyong v. Aguilar, G.R.
would be a final one, since it finally No. 137152, Jan. 29, 2001)
disposes of the action and leaves nothing
more to be done by the Court on the merits. Satisfaction of “genuine necessity”
The order of condemnation shall be a final one, requirement
as the Rules expressly state, in the proceedings
before the Trial Court, no objection to the The right to take private property for public
exercise of the right of condemnation (or the purposes necessarily originates from “the
propriety thereof) shall be filed or heard. necessity” and the taking must be limited to such
necessity. In City of Manila v. Chinese Community
2. The determination by the RTC of the just of Manila, it is held that necessity must be of a
compensation for the property sought to be public character. Moreover, the ascertainment of
taken. the necessity must precede or accompany and
not follow the taking of the land. In City of Manila
This is done by the Court with the assistance v. Arellano Law College, the necessity within the
of not more than three (3) commissioners. rule that the particular property to be
The order fixing the just compensation on expropriated must be necessary, does not mean
the basis of the evidence before, and findings an absolute, but only a reasonable or practical
of, the commissioners would be final. It would necessity, such as would combine the greatest
finally dispose of the second stage of the suit benefit to the public with the least
and leave nothing more to be done by the inconvenience and expense to the condemning
Court regarding the issue. (Brgy. San Roque, party and the property owner consistent with
Talisay, Cebu v. Hrs. of Francisco Pastor, G.R. such benefit. (Masikip v. City of Pasig, G.R. No.
No. 138896, June 20, 2000) 136349, Jan. 23, 2006)
NOTE: LGU’s prolonged occupation of private Q: May LGUs expropriate a property to

property without the benefit of expropriation provide a right-of-way to residents of a
proceedings entitles the landowner to damages. subdivision?
(City of Iloilo v. Judge Contreras-Besana, G.R. No.
168967, February 12, 2010) A: NO. Considering that the residents who need
a feeder road are all subdivision lot owners, it is
Satisfaction of “public use” requirement the obligation of the subdivision owner to acquire
a right-of-way for them. However, the failure of
In case only a few could actually benefit from the subdivision owner to provide an access road
the expropriation of the property, the same does does not shift the burden to the LGU
not diminish its public use character. It is simply concerned. To deprive respondents of their
not possible to provide for all at once, land and property instead of compelling the subdivision
shelter, for all who need them. Corollary to the owner to comply with his obligation under the
expanded notion of public use, expropriation is law is an abuse of the power of eminent domain
not anymore confined to vast tracts of land and and is patently illegal. Worse, the
landed estates. It is therefore of no moment that expropriation will actually benefit the
the land sought to be expropriated is less than subdivision’s owner who will be able to
half a hectare only. Through the years, the public circumvent his commitment to provide road
use requirement in eminent domain has evolved access to the subdivision in conjunction with his
into a flexible concept, influenced by changing development permit and license to sell from the
conditions. Public use now includes the broader Housing and Land Use Regulatory Board, and
notion of indirect public benefit or advantage also be relieved of spending his own funds for a
including in particular, urban land reform and right-of-way. (Barangay Sindalan v. CA G.R. No.
housing. (Philippine Columbian Association v. 150640, March 22, 2007)
Panis, G.R. No. L-106528, Dec. 21, 1993)
Q: Municipality of Panay issued resolutions
NOTE: The passage of R.A. 7279, the “Urban authorizing the municipal government through
Development and Housing Act of 1992” the Mayor to initiate expropriation
introduced a limitation on the size of the land proceedings. A petition for expropriation was
sought to be expropriated for socialized housing. filed by the Municipality of Panay. Petitioners

2019 GOLDEN NOTE S
Local Governments
are the owners of parcels of land which are verified complaint in the proper court. Before the
going to be expropriated by the LGU. Petitioners City as the expropriating authority filed such
argue that such expropriation was based only verified complaint, no expropriation proceeding
on a resolution and not on an ordinance could be said to exist. Until then, the petitioners as
contrary to Sec. 19 of LGC. Is the exercise of the owners could not also be deprived of their
eminent domain by the Municipality of Panay property under the power of eminent domain.
valid? (Spouses Antonio and Fe v. CA, G.R. No.
156684,April6,2011)
A: NO. The LGC expressly requires an ordinance for
the purpose of expropriation, and a resolution Q: Petitioner Himlayang Pilipino filed a
which merely expresses the sentiment of the petition to annul an ordinance which provides
municipal council will not suffice. As respondent's that at least 6% of the total area of every
expropriation in this case was based merely on a private cemetery shall be set aside for charity
resolution, such expropriation is clearly defective. burial grounds of deceased paupers. Petitioner
While the Court is aware of the constitutional policy alleged that the ordinance is an invalid
promoting local autonomy, the court cannot grant exercise of the power of eminent domain as
judicial sanction to an LGU's exercise of its they were not paid just compensation.
delegated power of eminent domain in However, the City government of Quezon City
contravention of the very law giving it such power. argued that the ordinance is an exercise of
[Beluso v. Municipality of Panay (Capiz), G.R. No. police power, hence, just compensaition is not
153974, Aug. 7, 2006] necessary. Is the ordinance valid?
Q: Spouses Yusay owned a parcel of land, half A: NO. The power to regulate does not include the
of which they used as their residence, and the power to prohibit. A fortiori, the power to regulate
rest they rented out to nine other families. does not include the power to confiscate. The
Allegedly, the land was their only property and ordinance in question not only confiscates but also
only source of income. The Sangguniang prohibits the operation of a memorial park
Panglungsod of Mandaluyong City adopted a cemetery. There is no reasonable relation between
resolution authorizing the City Mayor to take the setting aside of at least 6% of the total area of
the necessary legal steps for the expropriation a private cemeteries for charity burial grounds of
of the land of the spouses for the purpose of deceased paupers and the promotion of health,
developing it for low cost housing for the less morals, good order, safety, or the general welfare
privileged but deserving city inhabitants. The of the people.
spouses then filed a petition for certiorari and
prohibition in the RTC, praying for the Section 9 of the assailed Ordinance is not a mere
annulment of the Resolution due to its being police regulation but an outright confiscation. It is
unconstitutional, confiscatory, and without not an exercise of police power but eminent
force and effect. The City countered that the domain. It deprives a person of his private
Resolution was a mere authorization.Hence, property without due process of law and without
the suit of the spouses was premature. Will the payment of just compensation. Instead of building
petition for certiorari and prohibition or maintaining a public cemetery for this purpose,
prosper? the city passes the burden to private cemeteries.
Police power does not involve the taking or
A: NO.Certiorari did not lie against the confiscation of property with the exception of few
Sangguniang Panglungsod, which was not a part of cases where there is a necessity to confiscate
the Judiciary settling an actual controversy private property in order to destroy it for the
involving legally demandable and enforceable purpose of protecting the peace and order and of
rights when it adopted Resolution No. 552, but a promoting the general welfare. (Quezon City v.
legislative and policy-making body declaring its Ericta, G.R. No. L-34915, June 24, 1983)
sentiment or opinion. Furthermore, the remedy of
prohibition was not called for, considering that Q: The municipal council of Baao, Camarines
only a resolution expressing the desire of the Sur, passed an ordinance providing that any
Sangguniang Panglungsod to expropriate the person who will construct or repair a building
petitioners’ property was issued. It was premature should, before doing such, obtain a written
for the petitioners to mount any judicial challenge, permit from the Municipal Mayor and if said
for thepower of eminent domain could be building destroys the view of the Public Plaza
exercised by the City only through the filing of a or occupies any public property, it shall be
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POLITICAL LAW
removed at the expense of the owner of the tourism purposes although this specific objective
building or house. X filed a written request for is not expressed in the Constitution. The policy
a permit to construct a building on a parcel of objectives of the framers can be expressed only in
land adjacent to their gasoline station. The general terms such as social justice, local
request was denied because the proposed autonomy, conservation and development of the
building would destroy the view or beauty of national patrimony public interest, and general
the public plaza. X proceeded with the welfare, among others. (Heirs of Ardona v. Reyes,
construction of the building without a permit G.R. No. G.R No. L-60549, Oct. 26, 1983)
because his former house was destroyed by a
typhoon. X was charged and convicted of Q: Sps. Hipolito are the registered owners of a
violating the Ordinance for having constructed parcel of land in Santa Ana, Manila. They
a building that destroys the view of the public applied for permission to erect a strong-
plaza without a mayor’s permit. Is the material residential building on the lot. For
ordinance valid? more than 40 days, the city engineer took no
action. Wherefore, Hipolito wrote him a letter
A: NO. The ordinance is unreasonable and manifesting his readiness to pay the fee and to
oppressive, in that it operates to permanently comply with existing ordinances governing the
deprive appellants of the right to use their own issuance of building permits. The engineer
property; hence, it oversteps the bounds of police declined to issue the permit as according to the
power, and amounts to a taking of appellants’ Urban Commission’s Adopted Plan for the Sta.
property without just compensation. But while Ana, the streets will be widened to the
property may be regulated in the interest of the respective widths of 22-m. and 10 m and will
general welfare and, in its pursuit, the State may affect the proposed building. Was the engineer
prohibit structures offensive to sight, the State correct in not issuing the permit?
may not, under the guise of police power,
permanently divest owners of the beneficial use of A: NO. The refusal of the city engineer to issue a
their property and practically confiscate them building permit to private landowners constitutes
solely to preserve or assure the aesthetic taking when there is no law or ordinance requiring
appearance of the community. To legally achieve private land owners to conform to the proposed
that result, the municipality must give the owners widening of the street approved by the Urban
just compensation and an opportunity to be heard. Commission. Where the City has not expropriated
The Ordinance was beyond the authority of said the strip of land affected by the proposed widening
municipality to enact, and is therefore null and of the street, inasmuch as there is no legislative
void. (People v. Fajardo, G.R No. L-12172, Aug. 29, authority to establish a building line, the denial of
1958) this permit would amount to taking of private
property for public use under the power of
Q:The Philippine Tourism Authority sought eminent domain without following the procedure
the expropriation of 282 hectares of rolling prescribed for the exercise of such power. The city
land situated in Barangay Alubog and Babag, engineer required to issue the building permit
Cebu City, under an express authority to upon payment of the fees. (Hipolito v. City of
acquire by purchase or by any other means any Manila, G.R No. L-3887, Aug. 21, 1950)
private land within the tourism zone.
Petitioner contended that the taking was not NOTE: Private property already devoted to public
for public use and that there is no specific use can still be a subject of expropriation by
constitutional provision authorizing the taking Congress but not by LGUs.
of private property for tourism purposes. Is
the contention valid? TAXING POWERS
A: NO. Expropriation by the PTA under P.D. 564 of Nature of the power of taxation of LGUs
land owned by the local government for
promotion of tourism is a valid exercise of the It is already well-settled that although the power
State’s power of eminent domain. The concept of to tax is inherent in the State, the same is not true
public use is not limited to traditional purposes. for the LGUs to whom the power must be
Here, as elsewhere, the idea that “public use” is delegated by Congress and must be exercised
strictly limited to clear cases of “use by the public” within the guidelines and limitations that
has been discarded. The State’s power of eminent Congress may provide. (Geron v. Pilipinas Shell,
domain extends to the expropriation of land for G.R. No. 18763, July 8, 2015)

2019 GOLDEN NOTE S
Local Governments
the Philippines (FDCP). Secs 13 and 14 of R.A.
ARMM’s taxing power 9167 provided for the tax treatment of certain
graded films — film producers were to be
The ARMM has the legislative power to create entitled to an incentive equivalent to the
sources of revenues within its territorial amusement tax imposed and collected by the
jurisdiction and subject to the provisions of the cities, subject to various rates depending on the
1987 Constitution and national laws. [1987 grade of their film, to be remitted to the FDCP.
Constitution,Art. X, Sec. 20(2)] FDCP had sent demand letters for unpaid
amusement tax reward with five percent
Q: Can the local governments tax national surcharge for each month of delinquency due to
government instrumentalities? the producers. The proprietors and cinema
operators refused to remit the amounts while
A: Sec. 133 of the LGC states that “unless otherwise Cebu City insisted on its claim on the amounts
provided in the Code, local governments cannot in question. Then, Cebu City filed a petition for
tax national government instrumentalities. This declaratory relief before RTC, Branch 14,
doctrine emanates from the “supremacy” of asking it to declare Secs. 13 and 14 of R.A. 9167
National government over local governments. invalid and unconstitutional. Colon Heritage
Otherwise, mere creatures of the State can defeat Corporation filed a similar petition before the
National policies thru extermination of what local RTC Branch 5, seeking to declare Sec. 14
authorities may perceive to be undesirable unconstitutional. The RTC declared Secs. 13 and
activities or enterprise using the power to tax as "a 14 of R.A. 9167 unconstitutional. The RTC said
tool for regulation”. (Basco v. Philippine what R.A. 9167 seeks to accomplish is the
Amusements and Gaming Corporation, G.R. No. segregation of amusement taxes raised and
91649, May 14, 1991) collected by Cebu City and its subsequent
transfer to FDCP. This, it said, is a confiscatory
Q: The President, through A.O. 372, measure where the national government
ordered the withholding of 10% of the LGUs' extracts money from the local government’s
IRA "pending the assessment and evaluation by coffers and transfers it to the FDCP, a private
the Development Budget Coordinating agency, which in turn, will award the money to
Committee of the emerging fiscal situation" in private persons, film producers, for having
the country. Is the A.O. valid? produced graded films. Is the RTC correct?
A: NO. A basic feature of local fiscal autonomy is A: YES. Under R.A. 9167, covered LGUs still have
the automatic release of the shares of LGUs in the power to levy amusement taxes, albeit at the
the national internal revenue. This is mandated end of the day, they will derive no revenue
by no less than the Constitution. The LGC specifies therefrom. The same, however, cannot be said for
further that the release shall be made directly to FDCP and the producers of graded films since the
the LGU concerned within five days after every amounts thus levied by the LGUs which should
quarter of the year and “shall not be subject to any rightfully accrue to them, they being the taxing
lien or holdback that may be imposed by the authority-will be going to their coffers. As a matter
national government for whatever purpose.” As a of fact, it is only through the exercise by the LGU of
rule, the term "shall" is a word of command that said power that the funds to be used for the
must be given a compulsory meaning. The amusement tax reward can be raised. Without said
provision is, therefore, imperative. (Pimentel Jr. v. imposition, the producers of graded films will
Aguirre, G.R. No. 132988, July 19, 2000) receive nothing from the owners, proprietors and
lessees of cinemas operating within the territory of
Q: In 1993, Cebu City imposed amusement taxes the covered LGU.
under Sec. 140 of the LGC and passed “Revised
Omnibus Tax Ordinance of the City of Cebu.” Taking the resulting scheme into consideration, it is
Secs. 42 and 43, Chapter XI of the city ordinance apparent that what Congress did in this instance
requires proprietors, lessees or operators of was not to exclude the authority to levy amusement
theatres, cinemas, concert halls, circuses, taxes from the taxing power of the covered LGUs,
boxing stadia, and other places of amusement, but to earmark, if not altogether confiscate, the
to pay an amusement tax equivalent to 30% of income to be received by the LGU from the
the gross receipts of admission fees. taxpayers in favor of and for transmittal to FDCP,
Meanwhile, R.A. 9167 was enacted on June 7, instead of the taxing authority. This is in clear
2002 creating the Film Development Council of contravention of the constitutional command that
259
POLITICAL LAW
taxes levied by LGUs shall accrue exclusively to said the Proceeds of National Taxes), of the LGC which
LGU and is repugnant to the power of LGUs to says, “Section 284. Allotment of Internal Revenue
apportion their resources in line with their Taxes. - Local government units shall have a share
priorities. in the national internal revenue taxes x x x”
It is a basic precept that the inherent legislative The phrase national internal revenue taxes
powers of Congress, broad as they may be, are engrafted in Section 284 is undoubtedly more
limited and confined within the four walls of the restrictive than the term national taxes written in
Constitution. Accordingly, whenever the legislature Section 6. As such, Congress has actually departed
exercises its power to enact, amend, and repeal from the letter of the 1987 Constitution stating
laws, it should do so without going beyond the that national taxes should be the base from which
parameters wrought by the organic law. the just share of the LGU comes. Such departure is
impermissible.
In the case at bar, through the application and
enforcement of Sec. 14 of R.A. 9167, the income It is clear from the foregoing clarification that the
from the amusement taxes levied by the covered exclusion of other national taxes like customs
LGUs did not and will under no circumstance duties from the base for determining the just share
accrue to them, not even partially, despite being the of the LGUs contravened the express
taxing authority therefor. Congress, therefore, constitutional edict in Section 6, Article X the 1987
clearly overstepped its plenary legislative power, Constitution. (Mandanas v. Ochoa, G.R. No. 199802,
the amendment being violative of the fundamental July 3, 2018)
law's guarantee on local autonomy. (Film
Development Council of the Philippines v. Colon 3. Equitable share in the proceeds of the
Heritage Realty Corporation, G.R. No. 203754, June utilization and development of the national
16, 2015) wealth within their areas. (1987 Constitution
Art. X,Sec. 7)
Main sources of revenues of LGUs
Principles governing exercise of taxing and
1. Taxes, fees, and charges. (1987 Constitution revenue-sharing powers of LGUs
Art. X, Sec. 5)
1. Taxation shall be uniform in each LGU
2. Internal Revenue Allotment (IRA) - Just share 2. Taxes, fees, charges and other impositions
in the national taxes which shall be shall be equitable and based as far as
automatically released to them. (1987 practicable on the taxpayer’s ability to pay; it
Constitution Art. X,Sec. 6) shall be levied and collected only for public
purpose; it must not be unjust, excessive,
NOTE: The current sharing is 40% local and oppressive, or confiscatory; it must not be
60% national. The share cannot be reduced contrary to law, public policy, national
except if there is unmanageable public sector economic policy, or restraint of trade;
deficit. 3. The collection of local taxes, fees, charges
and other impositions shall in no case be let
Q: Mandanas, et al, allege that the insertion by to any private person.
Congress of the words internal revenue in the 4. The revenue collected shall inure solely to
phrase national taxes found in Section 284 of the benefit of, and be subject to disposition
the LGC caused the diminution of the base for by, the local government unit, unless
determining the just share of the LGUs, and specifically provided therein.
should be declared unconstitutional as it 5. Each local government unit shall, as far as
contravened Section 6, Article X of the 1987 practicable, evolve a progressive system of
Constitution. Is limiting the LGU’s IRA to taxation. (LGC, Sec. 130)
national internal revenue taxes contrary to the
Constitution? Principles governing financial affairs,
transactions and operations of LGUs
A: YES. Section 6, Article X the 1987 Constitution
textually commands the allocation to the LGUs of a 1. No money shall be paid out of the local
just share in the national taxes. Carrying out the treasury except in pursuance of an
provision’s mandate, Congress enacted Section appropriation ordinance or law;
284, Title III (Shares of Local Government Units in 2. Local government funds and monies shall be

2019 GOLDEN NOTE S
Local Governments
spent solely for public purposes;
3. Local revenue is generated only from sources 1. The tax is for a public purpose;
expressly authorized by law or ordinance, 2. The rule on uniformity of taxation is
and collection thereof shall at all times observed;
be acknowledged properly; 3. Either the person or property taxed is within
4. All monies officially received by a local the jurisdiction of the government levying the
government officer in any capacity or on any tax; and
occasion shall be accounted for as local 4. In the assessment and collection of certain
funds, unless otherwise provided; kinds of taxes, notice and opportunity for
5. Trust funds in the local treasury shall not be hearing are provided. (Pepsi-Cola Bottling Co.
paid out except in the fulfillment of the v. Municipality of Tanauan, G.R. No. L-31156,
purpose for which the trust was created or February 27, 1976)
the funds received;
6. Every officer of the LGU whose duties permit Procedural requirements for a valid revenue
or require the possession or custody of local ordinance
funds shall be properly bonded, and such
officer shall be accountable and 1. A prior public hearing on the measure to be
responsible for said funds and for conducted according to the prescribed rules.
the safekeeping thereof in conformity
with the provisions of law; NOTE: An ordinance levying taxes, fees or
7. Local governments shall formulate charges shall not be enacted without any prior
sound financial plans and local budgets shall public hearing conducted for the purpose.
be based on functions, activities, and projects (Figuerres v. CA, G.R. No. 119172, March 25,
in terms of expected results; 1999)
8. Local budget plans and goals shall, as far as
practicable, be harmonized with national 2. Publication of the tax ordinance, within 10
development plans, goals and strategies in days after their approval, for 3 consecutive
order to optimize the utilization of days in a newspaper of local circulation,
resources and to avoid duplication in the use provided that in provinces, cities, and
of fiscal and physical resources. municipalities where there are no
9. Local budgets shall operationalize approved newspapers of local circulation, the same may
local development plans; be posted in at least two (2) conspicuous
10. LGUs shall ensure that their respective and publicly accessible places.
budgets incorporate the requirements of their
component units and provide for equitable NOTE: If the tax ordinance or revenue
allocation of resources among these measure contains penal provisions as
component units; authorized in Art. 280of this Rule, the gist of
11. National planning shall be based on local such tax ordinance or revenue measure shall
planning to ensure that the needs and be published in a newspaper of general
aspirations of the people as articulated by circulation within the province where the
the LGUs in their respective local sanggunian concerned belongs. (IRR of LGC,
development plans are considered in the Art. 276)
formulation of budgets of national line
agencies or offices; Effectivity of tax ordinance
12. Fiscal responsibility shall be shared by all
those exercising authority over the financial In case the effectivity of any tax ordinance or
affairs, transactions and operations of revenue measure falls on any date other than
LGUs; and the beginning of the quarter, the same shall
13. The LGU shall endeavor to have a balanced be considered as falling at the beginning of the
budget in each fiscal year of operation. (LGC, next ensuing quarter and the taxes, fees, or
Sec. 305) charges due shall begin to accrue therefrom. (IRR
of LGC, Art. 276)
NOTE: The general principles on taxation also
apply to the taxing powers of LGUs. Q: The Province of Palawan passes an
ordinance requiring all owners/operators of
Requirements for a valid tax ordinance (PUJ- fishing vessels that fish in waters surrounding
NO) the province to invest ten percent (10%) of
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POLITICAL LAW
their net profits from operations therein in
any enterprise located in Palawan. NARCO 1. Taxpayer first pays the taxes
Fishing Corp., a Filipino corporation with head 2. There shall be annotation on the tax receipts
office in Navotas, Metro Manila, challenges the the words "paid under protest".
ordinance as unconstitutional. Decide. (1991 3. The protest in writing must be filed within
Bar) thirty (30) days from payment of the tax to the
provincial, city treasurer or municipal
A: The ordinance is invalid. The ordinance was treasurer, in the case of a municipality within
apparently enacted pursuant to Art. X, Sec. 7 of Metropolitan Manila Area, who shall decide
the Constitution, which entitles local the protest within sixty (60) days from
governments to an equitable share in the receipt. (LGC, Sec. 252)
proceeds of the utilization and development of the
national wealth within their respective areas. NOTE: A claim for tax exemption, whether full or
However, this should be made pursuant to law. A partial, does not deal with the authority of local
law is needed to implement this provision and a assessor to assess real property tax, but merely
local government cannot constitute itself unto a raises a question of reasonableness of correctness
law. In the absence of a law, the ordinance in of such assessment, which requires compliance
question is invalid. with Sec. 252 of the LGC. (Camp John Hay
Development Corporation v. Central Board of
Authority to determine the legality or Assessment Appeals, G.R. No. 169234, October 2,
propriety of a local tax ordinance or revenue 2013)
measure
Remedies available to the LGUs to enforce the
It is the Secretary of Justice who shall determine payment of taxes
questions on the legality and constitutionality
of ordinances or revenue measures. 1. Imposing penalties (surcharges and penalty
interest) in case of delinquency (LGC, Sec. 168)
Such questions shall be raised on appeal within 2. Availing local government’s liens (LGC, Sec.
thirty days from the effectivity thereof to the 173)
Secretary of Justice who shall render a decision 3. Administrative action through distraint of
within sixty days from the date of receipt of the goods, chattels, and other personal
appeal. property [LGC, Sec. 174(a)]
4. Judicial action [LGC, Sec. 174(b)]
NOTE: Such appeal shall not have the effect
of suspending the effectivity of the ordinance Community tax
and the accrual and payment of the tax, fee, or
charge levied therein: Provided, finally, that Community tax is a poll or capitation tax which is
within thirty days after receipt of the decision or imposed upon person who resides within a
the lapse of the sixty-day period without the specified territory.
Secretary of Justice acting upon the appeal, the
aggrieved party may file appropriate Exempted from the payment of community tax
proceedings with a court of competent
jurisdiction (RTC). (LGC, Sec. 187) 1. Diplomatic and consular representatives;
2. Transient visitors when their stay in
Tax Protest the Philippines does not exceed 3 months
(LGC, Sec. 159)
The formal statement, usually in writing, made by a
person who is called upon by public authority to Real property taxes
pay a sum of money, in which he declares that he
does not concede the legality or justice of the claim These are directly imposed on privilege to use real
or his duty to pay it, or that he disputes the amount property such as land, building, machinery, and
demanded; the object being to save his right to other improvements, unless specifically exempted.
recover or reclaim the amount, which right would
be lost by his acquiescence. Thus, taxes may be paid Q: After the effectivity of LGC, Bayantel was
under "protest". (Black’s Law Dictionary) granted by Congress a legislative franchise
with tax exemption privileges which partly
Requisites of a valid tax protest in a LGU (PAP) reads: “the grantee, its successors or assigns

2019 GOLDEN NOTE S
Local Governments
shall be liable to pay the same taxes on their ordinance in conflict with a state law of general
real estate, buildings and personal character and statewide application is
property, exclusive of this franchise, as universally held to be invalid. In every power to
other persons or corporations are now or pass ordinances given to a municipality, there is
hereafter may be required by law to pay.” an implied restriction that the ordinances shall
This provision existed in the company’s be consistent with the general law. (Batangas
franchise prior to the effectivity of the LGC. CATV v. Court of Appeals, G.R. No. 138810,
Quezon City then enacted an ordinance September 29, 2004)
imposing a real property tax on all real
properties located within the city limits and NOTE: The rule against undue delegation of
withdrawing all exemptions previously legislative powers applies to LGUs. In the case of
granted. Among properties covered are those Villegas v. Tsai Pao Ho (G.R. No. 29646, October
owned by the company. Bayantel asserts that its 10, 1978), a city ordinance was declared void
properties are exempt from tax under its because it constituted undue delegation of
franchise. Is Bayantel correct? legislative power to the Mayor. The ordinance
did not lay down any standard to guide the
A:YES. The properties are exempt from taxation. Mayor in the exercise of his discretion in the
The grant of taxing powers to local governments issuance or denial of an alien employment
under the Constitution and the LGC does not affect permit.
the power of Congress to grant tax exemptions.
The Sanggunian
The term "exclusive of the franchise" is interpreted
to mean properties actually, directly and A sanggunian is a collegial body. Legislation,
exclusively used in the radio and which is the principal function of the
telecommunications business. The subsequent sanggunian, requires the participation of all its
piece of legislation which reiterated the phrase members so that they may not only represent
“exclusive of this franchise” found in the previous the interests of their respective constituents but
tax exemption grant to the company is an express also help in the making of decisions, by voting
and real intention on the part of the Congress to upon every question put upon the body.
once again remove from the LGC’s delegated taxing (Zamora v. Caballero, G.R. No. 147767, January
power, all of the company’s properties that are 14, 2004)
actually, directly and exclusively used in the pursuit
of its franchise. (The City Government of Quezon City, NOTE: A petition for certiorari filed against a
et al., v. Bayan Telecommunications, Inc., G.R. No. Sangguniang Panlungsod assailing the legality of
162015, March 6, 2006) an ordinance will not lie since the Sanggunian is
not a tribunal, board or officer exercising
Elements so that the President may interfere in judicial or quasi-judicial functions. (Liga ng mga
local fiscal matters Barangay National v. City Mayor of Manila, G.R.
No. 154599, January 21, 2004)
1. An unmanaged public sector deficit of the
national government; No power to subpoena and hold persons in
2. Consultations with the presiding officers of contempt (1993 Bar)
the Senate and the House of Representatives
and the presidents of the various local leagues; The contempt power and the subpoena power
3. And the corresponding recommendation of cannot be deemed implied in the delegation of
the secretaries of the Department of certain legislative functions to local legislative
Finance, Interior and Local Government, and bodies. These cannot be presumed to exist in
Budget and Management (Pimentel, Jr. v. favor of the latter and must be considered an
Aguirre, G.R. No. 132988, July 19, 2000). exception to Sec. 4 of B.P. Blg. 337 which
provides for liberal rules of interpretation in
LEGISLATIVE POWER favor of local autonomy. Since the existence of
these powers poses a potential derogation of
Nature of local legislative powers individual rights, the law cannot be liberally
construed to have impliedly granted such
It is a fundamental principle that municipal powers to local legislative bodies. The intention
ordinances are inferior in status and of the people, through their representatives, to
subordinate to the laws of the State. An share these powers with the local legislative
263
POLITICAL LAW
bodies must clearly appear in pertinent Under Sec. 49(b), “in the event of the inability of
legislation. (Negros Oriental II Electric the regular presiding officer to preside at the
Cooperative Inc., v. Sangguiang Panlungsod ng sanggunian session, the members present and
Dumaguete, G.R. No. L-72492, November 5, 1987) constituting a quorum shall elect from among
themselves a temporary presiding officer”.
Local legislative bodies and their presiding (Gamboa v. Aguirre, G.R. No. 134213, July 20, 1999)
officers
Quorum in the sanggunian
Province - Sangguniang Panlalawigan - Vice-
governor Quorum is defined as the number of members of a
body which when legally assembled in their
City - Sangguniang Panlungsod- City Vice - mayor proper places, will enable the body to transact its
proper business or that number which makes a
Municipality - Sangguniang bayan - Municipal lawful body and gives it power to pass upon a law,
Vice-mayor ordinance or any valid act. ‘Majority’, when
required to constitute a quorum, means the
Barangay - Sangguniang barangay - Punong number greater than half or more than half of any
Barangay total.
NOTE: The presiding officer shall vote only to break Q: What is the number that would determine the
a tie [Sec. 49(a) LGC]. quorum of our sanggunian that has a total
membership of eleven (11) including the vice-
In the absence of the regular presiding officer or mayor?
his inability to preside at the sanggunian session,
the members present and constituting a quorum A: The Sangguniang Bayan is composed of eight
shall elect from among themselves a temporary (8) regular members, the Liga ng mga Barangay
presiding officer. [LGC, Sec. 49(b); Gamboa v. Aguirre, President and the SK Federation President as ex-
G.R. No. 134213, July 20, 1999] officio members, and the Vice-Mayor as Presiding
Officer. The total membership in a sanggunian
Q: May an incumbent Vice-Governor, acting as bayan, therefore, is eleven (11).
governor, continue to preside over the sessions
of the Sangguniang Panlalawigan (SP)? If not, Relative thereto, Section 53 of the Local
who may preside in the meantime? Government Code of 1991 provides that a majority
of all the members of the sanggunian who have
A:NO. A Vice-Governor who is concurrently an been elected and qualified shall constitute a
acting governor is actually a quasi-governor. For quorum to transact official business. "Majority"
purposes of exercising his legislative prerogatives has been defined in Santiago vs. Guingona, et al.
and powers, he is deemed a non-member of the SP (G.R. No. 134577, 18 November 1998) as that
for the time being. Being the Acting Governor, the which is greater than half of the membership of the
Vice-Governor cannot continue to simultaneously body.
exercise the duties of the latter office, since the
nature of the duties of the provincial Governor call Following the said ruling, since the total
for a full-time occupant to discharge them. Such is membership of the sanggunian being 11, 11
not only consistent with but also appears to be the divided by 2 will give us a quotient of 5.5. Let it be
clear rationale of the new Code wherein the policy noted however that a fraction cannot be
of performing dual functions in both offices has considered as one whole vote, since it is physically
already been abandoned. and legally impossible to divide a person or even
his vote into a fractional part. Accordingly, we
The creation of a temporary vacancy in the office have to go up to the next whole number, which is
of the Governor creates a corresponding 6.
temporary vacancy in the office of the Vice-
Governor whenever the latter acts as Governor by In this regard, 6 is more than 5.5 and therefore,
virtue of such temporary vacancy. The continuity more than one-half of the total membership of the
of the Acting Governor’s (Vice-Governor) powers sangguniang bayan in conformity with the
as presiding officer of the SP is suspended so long jurisprudential definition of the term majority.
as he is in such capacity. Thus, the presence of 6 members shall already
constitute a quorum in the sangguniang bayan for

2019 GOLDEN NOTE S
Local Governments
it to conduct official sessions. (DILG Opinion No.
46-2007 and La Carlota City et al, v. Atty. Rex Rojo, 4. In case of special sessions:
G.R. No. 181367, April 24, 2012) a. Written notice to the members must be
served personally at least 24 hoursbefore
Procedures to be taken by the presiding the special session is held
officer if there is a question on quorum b. Unless otherwise concurred in by 2/3
votes of the sanggunian members
Should there be a question of quorum raised present, there being no quorum, no other
during a session, the presiding officer shall: matters may be considered at aspecial
session except those stated inthe notice
1. Immediately proceed to call the roll of the (LGC, Sec. 52).
members and
2. Announce the results [LGC, Sec. 53 (a)] Q: On its first regular session, may the
sanggunian transact business other than the
Procedures to be taken by the presiding matter of adopting or updating its existing
officer if there is no quorum rules or procedure?
The presiding officer may: A:YES. There is nothing in the language of the
LGC that restricts the matters to be taken up
1. Declare a recess until such time that quorum during the first regular session merely to the
is constituted adoption or updating of the house rules. (Malonzo
2. Compel immediate attendance of the v. Zamora, G.R. No. 137718, July 27, 1999)
members who are absent without justifiable
cause REQUISITES FOR VALID ORDINANCE
3. Declare the session adjourned for lack of
quorum and no business shall be transacted if Ordinance [not-CUPPUn-Gen]
there is still no quorum despite enforcement
of attendance [LGC, Sec. 53 (b)(c)] As a municipal statute, it is a rule of conduct or of
action, laid down by the municipal authorities that
Fixing of Sessions must be obeyed by the citizens. It is drafted,
prepared, promulgated by such authorities for the
Regular Sessions - By resolution on the 1st day of information of all concerned, under and by virtue
the session immediately following the election of of powers conferred upon them by law (United
its members States v. Pablo Trinidad, G.R. No. L-3023, January 16,
1907).
Special Sessions - When public interest so
demands, special session may be called for by the 1. Must not contravene the constitution and
chief executive or by a majority vote members of any statute
sanggunian. 2. Must not be unfair or oppressive
3. Must not be partial or discriminatory
NOTE: The minimum number of regular sessions 4. Must not prohibit, but may regulate trade
shall be once a week for the sangguniang 5. Must not be unreasonable
panlalawigan, sangguniang panlungsod, and 6. Must be general in application and
sangguniang bayan, and twice a month for the Consistent with public policy. (Magtajas v.
sangguniang barangay. [LGC, Sec. 52 (a)] Pryce Properties Corporation, Inc., July 20,
1994)
Guidelines in the conduct of a sanggunian
session NOTE: The mere fact that there is already a
general statute covering an act or omission is
1. It shall be open to public, unless it is a insufficient to negate the legislative intent to
closed-door session empower the municipality to enact ordinances
2. No two sessions, regular or special, may be with reference to the same act or omission under
held in a single day the ‘general welfare clause’ of the Municipal
3. Minutes of the session be recorded and each Charter (United States v. Pascual Pacis, G.R. No.
sanggunian shall keep a journal and record of 10363, September 29, 1915).
its proceedings which may be published
upon resolution of the sanggunian concerned. Ordinance vs. Resolution
265
POLITICAL LAW
municipal funds from which the salary of the
Ordinance officer could be paid. The Mayor’s refusal in
- Law complying with the directive of the Director of the
- General and permanent character Bureau of Local Government that the salary could
- Third reading is necessary for an ordinance be provided for is oppressive. (Pilar v.
Sangguniang Bayan of Dasol, Pangasinan, G.R. No.
Resolution L-63216, March 12, 1984)
- Merely a declaration of the sentiment or
opinion of a lawmaking body on a specific Items that the local chief executive can veto
matter
- Temporary in nature 1. Item/s of an appropriation ordinance.
2. Ordinance/resolution adopting local
GR: Third reading is not necessary in resolution development plan and public investment
program
XPN: Unless decided otherwise by a majority of all 3. Ordinance directing the payment of money or
the Sanggunian members. (Roble Arrastre, Inc. v. creating liability (LGC, Sec. 55)
Villaflor, G.R. No. 128509, August 22, 2006)
NOTE: Ordinances enacted by the sangguniang
NOTE: It has been held that even where the barangayshall, upon approval by a majority of
statute or municipal charter requires the all its members be signed by the punong
municipality to act by an ordinance, if a resolution barangay. The latter has no veto power.
is passed in the manner and with the statutory
formality required in the enactment of an Approval of ordinances
ordinance, it will be binding and effective as an
ordinance. Such resolution may operate 1. By affixing the signature of the local chief
regardless of the name by which it is called. (Favis executive on each and every page thereof if he
v. City of Baguio, G.R. No. L-29910, April 25, 1969) approves the same
2. By overriding the veto of the local chief
Three readings allowed in one day executive by 2/3 vote of all members of
the sanggunian if the local chief executive
There is nothing in the LGC which prohibits the vetoed the same(LGC, Sec. 54)
three readings of a proposed ordinance from
being held in just one session day. It is not the NOTE: A sanggunian may provide for a vote
function of the courts to speculate that the requirement different (not majority vote) from that
councilors were not given ample time for prescribed in the LGC for certain (but not all)
reflection and circumspection before the passage ordinances as in amending a zoning ordinance
of the proposed ordinance by conducting three (Casino v. Court of Appeals, G.R. No. 91192, Dec. 2,
readings in just one day. (Malonzo v. Zamora, G.R. 1991).
No. 137718, July 27, 1999)
Effectivity of ordinance or resolution
Veto of the Local Chief Executive (1996, 2005
Bar) GR: After 10 days from the date a copy is posted in
a bulletin board at the entrance of the capitol or
The Local Chief Executive may veto the ordinance city, municipal or barangay hall and in at least 2
only once on the ground that the ordinance is conspicuous spaces [LGC, Sec. 59 (a)].
ultra vires and prejudicial to public welfare. The
veto must be communicated to the sanggunian XPN: Unless otherwise stated in the
within: ordinance or resolution [LGC, Sec. 59 (a)].
a. 15 days for a province Effect of the enforcement of a disapproved

b. 10 days for a city or municipality (LGC, ordinance or resolution
Secs. 54 and 55)
It shall be a sufficient ground for the suspension
NOTE: While “to veto or not to veto involves the or dismissal of the official or employee (LGC, Sec.
exercise of discretion,” a mayor exceeded his/her 58).
authority in an arbitrary manner when he/she
vetoes a resolution where there exist sufficient Ordinances requiring publication for its

2019 GOLDEN NOTE S
Local Governments
effectivity panlungsod or municipal
sangguniang ordinance.
1. Ordinances that carry with them penal pangbayan (LGC, Effect:
sanctions[LGC, Sec. 59 (c)] Sec. 56) Barangay
2. Ordinances and resolutions passed by ordinance is
highly urbanized and independent suspended
component cities [LGC, Sec. 59 (d)] until such
time as the
Review of ordinances or resolutions (2009 revision
Bar) called is
effected
Component (LGC, Sec.
Cities and Barangay 57)
Basis Municipal Ordinances
Ordinances or LOCAL INITIATIVE AND REFERENDUM
Resolutions
Sangguniang Sangguniang Initiative- The legal process whereby the
Panlalawigan Panlungsod registered voters of LGU may directly propose,
As to Who
or enact or amend any ordinance (LGC, Sec. 120)
Reviews
Sangguniang
Bayan Referendum- The legal process whereby the
As to Within 3 days Within 10 registered voters of the LGU may approve, amend
When after approval days after its or reject any ordinance enacted by the
copies of enactment sanggunian(R.A. 7160, Sec. 126)
ordinance
or NOTE: Local initiative includes not only ordinances
resolutions but also resolutions as its appropriate
be subjects(Garcia v. COMELEC, G.R. 111230,
forwarded September. 30, 1994).
Within 30 days Within 30
after the receipt; days after Limitations on local initiative
the receipt.
1. Examine, or 1. It shall not be exercised for more than once
2. Transmit to the a year.
provincial 2. It shall extend only to subjects or matters
attorney or which are within the legal powers of the
provincial sanggunian to enact.
As to prosecutor. 3. If at any time before the initiative is held,
Period to If it is transmitted, the sanggunian concerned adopts in toto the
examine the provincial proposition presented and the local chief
attorney or executive approves the same, the initiative
prosecutor must shall be canceled. However, those against such
submit his action may, if they so desire, apply for
comments or initiative in the manner herein provided. (LGC,
recommendations Sec. 124)
within 10 days
from receipt of the Procedure in conducting local initiative
document.
If no action has If no action 1. Number of voters who should file petition
As to When been taken within has been with the Sanggunian concerned:
declared 30 days after taken within a. Province and cities – not less than 1000
valid submission. 30 days after registered voters
submission. b. Municipality – at least 100 registered
As to When If it is beyond the If voters
declared powerconferred inconsistent c. Barangay – at least 50 registered voters
invalid on the with the law
(grounds) sangguniang or city or 2. The sanggunian concerned has 30 days to act
267
POLITICAL LAW
on the petition. If the sanggunian does not take
any favorable action, the proponents may Ultra vires contracts are those which:
invoke the powers of initiative, giving notice to
sanggunian. a. Are entered into beyond the express, implied
3. Proponents will have the following number or inherent powers of the LGU; and
of days to collect required number of b. Do not comply with the substantive
signatures requirements of law e.g., when expenditure of
a. Provinces and cities – 90 days public funds is to be made, there must be an
b. Municipalities – 60 days actual appropriation and certificate of
c. Barangay – 30 days availability of funds. (Land Bank of the
Philippines v. Cacayuran, G.R. No. 191667, April
4. Signing of petition in a public place, before the 17, 2013)
election registrar or his designated
representatives, in the presence of a NOTE: Such are null and void and cannot be
representative of the proponent and of the ratified or validated.
sanggunian concerned.
5. Date of initiative is set by COMELEC if the Instance when a defective municipal
required number of signatures has been contract may be ratified
obtained (LGC, Sec. 122)
Ratification of defective municipal contracts is
Effectivity of proposition possible only when there is non-compliance with
the requirements of authority of the officer
If the proposition is approved by a majority of the entering into the contract and/or conformity
votes cast, it will take effect 15 days after with the formal requisites of a written contract
certification by the COMELEC (LGC, Sec. 123). as prescribed by law. Ratification may either be
expressed or implied.
Rule of COMELEC over local referendum
NOTE: An act attended only by an irregularity, but
The local referendum shall be held under the remains within the municipality’s power, is
control and direction of the COMELEC within considered as an ultra vires act subject to
ratification and/or validation.
a. Provinces and cities – 60 days
b. Municipalities – 45 days Examples:
c. Barangay – 30 days
a. Those entered into by the improper
The COMELEC shall certify and proclaim the department, board, officer of agent;
results of the said referendum (LGC, Sec. 126) b. Those that not comply with the formal
requirements of a written contract e.g., the
Rule on repeal, modification and amendment of Statute of Frauds. (Land Bank of the
an ordinance or proposition approve through an Philippines v. Cacayuran, supra.)
initiative and referendum
Contracts entered into by a local chief
Any proposition or ordinance approved through an executive may be subject to constructive
initiative and referendum shall not be repealed, ratification
modified or amended by the sanggunian within 6
months from the date of approval thereof. A loan agreement entered into by the provincial
governor without prior authorization from the
It may be amended, modified or repealed within 3 Sangguniang Panlalawigan is unenforceable. The
years thereafter by a vote of ¾ of all its members Sanggunian’s failure to impugn the contract’s
(LGC, Sec. 125) validity despite knowledge of its infirmity is an
implied ratification that validates the contract.
NOTE: In case of barangays, the period shall be 18 (Ocampo v. People, G.R. No. 156547-51 & 156382-
months after the approval thereof (LGC, Sec. 125) 85, February 4, 2008)
ULTRA VIRES ACTS Doctrine of estoppel does not apply against a

municipal corporation to validate an invalid
Ultra vires contracts contract

2019 GOLDEN NOTE S
Local Governments
speaks of prior authorization or authority from the
The doctrine of estoppel cannot be applied as Sangguniang Panlungsod and not ratification. It
against a municipal corporation to validate a cannot be denied that the City Council issued Res.
contract which it has no power to make, or which 280 authorizing Mayor Tiama to purchase the
it is authorized to make only under prescribed subject lots.
conditions, within prescribed limitations, or in a
prescribed mode or manner, although the NOTE: As aptly pointed out by the Ombudsman,
corporation has accepted the benefits thereof and ratification by the City Council is not a condition
the other party has fully performed its part of the sine qua non for a mayor to enter into contracts.
agreement, or has expended large sums in With the resolution issued by the Sangguniang
preparation for performance. A reason frequently Panlungsod, it cannot be said that there was
assigned for this rule is that to apply the doctrine evident bad faith in purchasing the subject lots.
of estoppel against a municipality in such a case The lack of ratification alone does not characterize
would be to enable it to do indirectly what it the purchase of the properties as one that gave
cannot do directly. (In Re: Pechueco Sons Company unwarranted benefits to Pamana or Prudential
v. Provincial Board of Antique, G.R. No. L-27038, Jan. Bank or one that caused undue injury to Calamba
30, 1970) City. (Vergara v. Ombudsman, G.R. No. 174567,
March 12, 2009)
Authority to negotiate and secure
grants Competitive or Public Bidding
The local chief executive may, upon authority of Refers to a method of procurement which is open
the sanggunian, negotiate and secure financial to participation by any interested party and
grants or donations in kind, in support of the basic which consists of the following processes:
services or facilities enumerated under Sec. 17 advertisement, pre-bid conference, eligibility
of LGC, from local and foreign assistance screening of prospective bidders, receipt and
agencies without necessity of securing opening of bids, evaluation of bids, post-
clearance or approval from any department, qualification, and award of contract. [R.A. 9184,
agency, or office of the national government or IRR, Sec 5 (h)]
from any higher LGU; Provided, that projects
financed by such grants or assistance with Requirement of public bidding
national security implications shall be approved
by the national agency concerned (LGC, Sec. 23) In the award of government contracts, the law
requires competitive public bidding. It is aimed to
Q: The City Council of Calamba issued several protect the public interest by giving the public
resolutions authorizing Mayor Tiama to the best possible advantages thru open
negotiate with landowners within the vicinity competition. It is a mechanism that enables the
of Barangays Real, Halang, and Uno, for a new government agency to avoid or preclude
city hall site and to purchase several lots and to anomalies in the execution of public contracts.
execute, sign and deliver the required (Garcia v. Burgos, G.R. No. 124130, June 29, 1998)
documents. Mayor Tiama then entered into
MOA, Deed of Sale, Deed of Mortgage, and Deed Failure of bidding
of Assignment.
When any of the following occurs:
Thereafter, Ong, a member of the City Council, 1. There is only one offeror
questioned the lack of ratification by the City 2. When all the offers are non-complying or
Council of the contracts, among others. Should unacceptable. (Bagatsing v. Committee on
all the documents pertaining to the purchase of Privatization, G.R. No. 112399, July 14, 1995)
the lots bear the ratification by the City Council
of Calamba? LIABILITY
A: NO. Sec. 22(c), LGC, provides: (c) Unless Every local government unit, as a corporation,
otherwise provided in this Code, no contract may shall have the power to sue and be sued (LGC, Sec.
be entered into by the local chief executive in 22).
behalf of the LGU without prior authorization by
the sanggunian concerned. Clearly, when the local LGUs have the power to sue and be sued. Because
chief executive enters into contracts, the law of the statutory waiver, LGUs are not immune
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POLITICAL LAW
from suit (Agra, Amicus Imperiorum Locorum, rule is that a municipal corporation can be held
2016). liable to third persons ex contractu or ex delicto.
Local government units and their officials are not There can be no hard and fast rule for purposes of
exempt from liability for death or injury to determining the true nature of an undertaking or
persons or damage to property (LGC, Sec. 24). function of a municipality; the surrounding
circumstances of a particular case are to be
Suability is not the same as liability considered and will be decisive. The basic element,
however beneficial to the public the undertaking
It is a categorical statement that LGUs do not enjoy may be, is that it is governmental in essence;
absolute and unqualified immunity from suits. otherwise the function becomes private or
Therefore, an LGU’s suability is something that is proprietary in character. (Municipality of Malasiqui
recognized but their liability is subject to evidence v. Heirs of Fontanilla, G.R. No. L-29993, October 23,
(The Local Government Code Revisited 2011 Ed., 1978)
p144, Aquilino Pimentel, Jr.).
NOTE: Tests of liability is the nature of task being
Governmental vs. proprietary functions performed.
If the injury is caused in the course of the Liabilities of LGUs (1994, 2009 Bar)
performance of a governmental function or duty,
no recovery, as a rule, can be had from the 1. LGUs and their officials are not exempt from
municipality unless there is an existing statute on liability arising from death or injury to
the matter, nor from its officers so long as they persons or damage to property (LGC, Sec. 24).
performed their duties honestly and in good faith
or that they did not act wantonly and maliciously. 2. LGUs shall be liable for damages for the death
With respect to proprietary functions, the settled of, or injuries suffered by, any person by
rule is that a municipal corporation can be held reason of the defective condition of roads,
liable to third persons ex contractu or ex delicto. streets, bridges, public buildings, and other
public works under their control or
There can be no hard and fast rule for purposes of supervision. (New Civil Code, Art. 2189)
determining the true nature of an undertaking or
function of a municipality; the surrounding NOTE: LGU is liable even if the road does not
circumstances of a particular case are to be belong to it as long as it exercises control or
considered and will be decisive. The basic element, supervision over the said roads.
however beneficial to the public the undertaking
may be, is that it is governmental in essence; 3. The State is responsible in like manner
otherwise the function becomes private or when it acts through a special agent; but not
proprietary in character. (Municipality of Malasiqui when the damage has been caused by the
v. Heirs of Fontanilla, G.R. No. L-29993 October 23, official to whom the task done properly
1978) pertains. In which case, Art. 2180 shall be
applicable. [New Civil Code, Article 2180 (6)]
Scope of municipal liability
4. When a member of a city or municipal
Municipal liabilities arise from various sources police force refuses or fails to render aid or
in the conduct of municipal affairs, both protection to any person in case of danger
governmental and proprietary. to life or property, such peace officer shall
be primarily liable for damages and the city
Governmental vs. proprietary functions or municipality shall be subsidiarily
responsible therefor. (New Civil Code, Art.34)
If the injury is caused in the course of the
performance of a governmental function or duty, Sources of municipal liability
no recovery, as a rule, can be had from the
municipality unless there is an existing statute on 1. Liability arising from violation of law
the matter, nor from its officers so long as they
performed their duties honestly and in good faith NOTE: Liability arising from violation of law
or that they did not act wantonly and maliciously. such as closing municipal streets without
With respect to proprietary functions, the settled indemnifying persons prejudiced thereby,

2019 GOLDEN NOTE S
Local Governments
non-payment of wages to its employees due to from considerations outside it. The measure
lack of funds or other causes or its refusal to of recovery is the benefit received by the
abide a temporary restraining order may municipal corporation. The province cannot
result in contempt charge and fine. set up the plea that the contract was ultra vires
2. Liability for contracts and still retain benefits. (Province of Cebu v.
IAC,ibid.)
NOTE:
a. LGU is liable provided that the contract Tort liability of LGUs
is intra vires or it is ultra vires that is only
attended by irregularities, which does not 1. LGU-engaged in governmental function–
preclude ratification or the application of Not liable
the doctrine of estoppel.
XPN: Unless it’s expressly made liable by a
If it is ultra vires, which are entered into statute or its officers acted wantonly or
beyond the express, implied or inherent maliciously. (Torio v. Fontanilla, G.R. No. L-
powers of the local government unit or do 29993 October 23, 1978)
not comply with the substantive
requirements of law they are not liable. 2. LGU-engaged in proprietary function–
b. A private individual who deals with a Liable
municipal corporation is imputed with
CONSTRUCTIVE knowledge of the Q: A collision between a passenger jeepney,
extent of the power or authority of the sand and gravel truck, and a dump truck
municipal corporation to enter into driven by Monte and owned by the
contracts. Municipality of San Fernando occurred which
resulted to the death of Jessica, a passenger of
3. Liability for tort the jeepney. The heirs of Jessica instituted an
action for damages against the Municipality. Is
NOTE: They may be held liable for torts arising the municipality liable for the tort committed
from the performance of their private and by its employee?
proprietary functions under the principle of
respondeat superior. (City of Manila v. A: NO. The driver of the dump truck was
Intermediate Court of Appeals 179 SCRA 428) performing duties or tasks pertaining to his office
– he was on his way to get a load of sand and gravel
Doctrine of Implied Municipal Liability for the repair of San Fernando's municipal streets.
The municipality cannot be held liable for the tort
A municipality may become obligated, upon an committed by its regular employee, who was then
implied contract, to pay the reasonable value of engaged in the discharge of governmental
the benefits accepted or appropriated by it as to functions. The death of the passenger –– tragic and
which it has the general power to contract. The deplorable though it may be –– imposed on the
doctrine of implied municipal liability has been municipality no duty to pay monetary
said to apply to all cases where money or other compensation. (Municipality of San Fernando v.
property of a party is received under such Hon. Firme, G.R. No. L-52179, April 8, 1991)
circumstances that the general law, independent
of express contract, implies an obligation upon Q: The Municipality of Malasiqui authorized
the municipality to do justice with respect to the celebration of town fiesta by way of a
the same. (Province of Cebu v. IAC, G.R. No. resolution and appropriated an amount for the
72841, January 29, 1987) construction of 2 stages. One of the members of
the group to perform a play during the fiesta
NOTE: The obligation of a municipal was Fontanilla. Before the dramatic part of the
corporation upon the doctrine of an implied play was reached, the stage collapsed and
contract does not connote an enforceable Fontanilla was pinned underneath resulting to
obligation. Some specific principle or his death. The heirs of Fontanilla filed a
situation of which equity takes cognizance complaint against the Municipality. Is the
must be the foundation of the claim. The municipality liable?
principle of liability rests upon the theory that
the obligation implied by law to pay does not A: YES. The town fiesta was an exercise of a private
originate in the unlawful contract, but arises or proprietary function of the
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POLITICAL LAW
municipality.Holding a fiesta, even if the purpose Jurisdictional Responsibility for Settlement of
is to commemorate a religious or historical event Boundary Dispute
of the town, is in essence an act for the special
benefit of the community and not for the general Generally, the rule is to settle boundary disputes
welfare of the public performed in pursuance of a between and among LGUs amicably. Specifically,
policy of the state. No governmental or public boundary disputes involving the LGUs are referred
policy of the state is involved in the celebration of for settlement to the sanggunians concerned. For
a town fiesta. (Municipality of Malasiqui v. Heirs of example, those involving: (a) barangays within one
Fontanilla, G.R. No. L-29993, Oct. 23, 1978) municipality or city are referred to the Sangguniang
Bayan or the Sangguniang Panglungsod; (b)
Q: X was elected as Vice Mayor of Dasol, municipalities within the same province to the
Pangasinan. The Sangguniang Bayan adopted Sangguniang Panlalawigan and (c) municipalities
Resolution No. 1 which increased the salaries of or component cities of different provinces are
the Mayor and Municipal Treasurer to P18,636 jointly referred to the sanggunians concerned.
and P16,044 per annum respectively. However,
the Resolution did not provide for an increase The same rule mentioned in paragraph (c) is
in salary of the Vice Mayor despite the fact that followed when the boundary disputes involve a
such position is entitled to an annual salary of component city or municipality, on the one hand,
P16,044. X questioned the failure of the and a highly urbanized city on the other, or
Sangguniang Bayan to appropriate an amount between or among highly urbanized cities. (The
for the payment of his salary. The Sangguniang Local Government Code Revisited 2011 Ed., p. 275-
Bayan increased his salary and enacted a 276, Aquilino Pimentel, Jr)
Resolution No. 2 appropriating an amount as
payment of the unpaid salaries. However, the Procedure for Settling Boundary Disputes
Resolution was vetoed by the respondent
mayor. Can X avail of damages due to the failure Article 17, Rule III of the Rules and Regulations of
of the respondents to pay him his lawful salary? the LGC outlines the procedures governing
boundary disputes, which succinctly includes the
A: YES. The Mayor alone should be held liable and filing of the proper petition, and in case of failure to
not the whole Sanggunian Bayan. Respondent amicably settle, a formal trial will be conducted and
Mayor vetoed the Resolution without just cause. a decision will be rendered thereafter. An aggrieved
While "to veto or not to veto involves the exercise party can appeal the decision of the sanggunian to
of discretion" as contended by respondents, the appropriate RTC. (Calanza v. PICOP, G.R. No.
respondent Mayor, however, exceeded his 146622, April 24, 2009)
authority in an arbitrary manner when he vetoed
the resolution since there are sufficient municipal Said rules and regulations state:
funds from which the salary of the petitioner could (a) Filing of petition - The sanggunian concerned
be paid. may initiate action by filing a petition, in the
form of a resolution, with the sanggunian
Respondent Mayor’s refusal, neglect or omission in having jurisdiction over the dispute.
complying with the directives of the Provincial (b) Contents of petition - The petition shall state the
Budget Officer and the Director of the Bureau of grounds, reasons or justifications therefore.
Local Government that the salary of X be provided (c) Documents attached to petition - The petition
for and paid the prescribed salary rate, is reckless shall be accompanied by:
and oppressive, hence, by way of example or 1. Duly authenticated copy of the law or
correction for the public good, respondent Mayor is statute creating the LGU or any other
liable personally to the petitioner for exemplary or document showing proof of creation of
corrective damages. (Pilar v. Sangguniang bayan ng the LGU;
Dasol, Pangasinan,G.R. No. 63216, March 12, 1984) 2. Provincial, city, municipal, or barangay
map, as the case may be, duly certified
SETTLEMENT OF BOUNDARY DISPUTES by the LMB.
3. Technical description of the
Boundary Dispute boundaries of the LGUs concerned;
4. Written certification of the provincial,
When a portion or the whole of the territorial area city, or municipal assessor, as the case
of an LGU is claimed by two or more LGUs. may be, as to territorial jurisdiction
over the disputed area according to

2019 GOLDEN NOTE S
Local Governments
records in custody; dispute.
5. Written declarations or sworn
statements of the people residing in the Q: (1.) There was a boundary dispute between
disputed area; and Dueñas, a municipality, and Passi, an
6. Such other documents or information independent component city, both of the same
as may be required by the sanggunian province. State how the two local government
hearing the dispute. units should settle their boundary dispute.
(d) Answer of adverse party - Upon receipt by the (2.) The Sangguniang Bayan of the Municipality
sanggunian concerned of the petition together of Santa, Ilocos Sur passed Resolution No. 1
with the required documents, the LGU or LGUs authorizing its Mayor to initiate a petition for
complained against shall be furnished copies the expropriation of a lot owned by Christina as
thereof and shall be given fifteen (15) working site for its municipal sports center. This was
days within which to file their answers. approved by the Mayor. However, the
(e) Hearing - Within five (5) working days after Sangguniang Panlalawigan of Ilocos Sur
receipt of the answer of the adverse party, the disapproved the Resolution as there might still
sanggunian shall hear the case and allow the be other available lots in Santa for a sports
parties concerned to present their respective center. Nonetheless, the Municipality of Santa,
evidences. through its Mayor, filed a complaint for eminent
(f) Joint hearing - When two or more sanggunians domain. Christina opposed this on the following
jointly hear a case, they may sit en banc or grounds:
designate their respective representatives.
Where representatives are designated, there (a) The Municipality of Santa has no power to
shall be an equal number of representatives expropriate;
from each sanggunian. They shall elect from (b) Resolution No. 1 has been voided since the
among themselves a presiding officer and a Sangguniang Panlalawigan disapproved it for
secretary. In case of disagreement, selection being arbitrary; and
shall be by drawing lot. (c) The Municipality of Santa has other and
(g) Failure to settle - In the event the sanggunian better lots for that purpose. Resolve the case
fails to amicably settle the dispute within sixty with reasons. (2005 Bar)
(60) days from the date such dispute was
referred thereto, it shall issue a certification to A: Since Passi is an independent component city,
the effect and copies thereof shall be furnished while Duenas is a municipality, the procedure in
the parties concerned. Section 118 of the Local Government Code does not
(h) Decision - Within sixty (60) days from the date apply to them. Since there is no law providing for
the certification was issued, the dispute shall the jurisdiction of any court or quasi-judicial
be formally tried and decided by the agency over the settlement of their boundary
sanggunian concerned. Copies of the decision dispute, the Regional Trial Court has jurisdiction
shall, within fifteen (15) days from the to adjudicate it. Under Section 19 (6) of the
promulgation thereof, be furnished the parties Judiciary Reorganization Act, the Regional Trial
concerned, DILG, local assessor, COMELEC, Court has exclusive original jurisdiction in all
NSO, and other NGAs concerned. cases not within the exclusive jurisdiction of any
(i) Appeal - Within the time and manner court or quasi-judicial agency. (Municipality of
prescribed by the Rules of Court, any party may Kananga v. Madrono, G.R. No. 141375. April 30,
elevate the decision of the sanggunian 2003)
concerned to the proper Regional Trial Court
having jurisdiction over the dispute by filing VACANCIES AND SUCCESSION
therewith the appropriate pleading, stating
among others, the nature of the dispute, the Vacancy
decision of the sanggunian concerned and the
reasons for appealing therefrom. The Regional Absence should be reasonably construed to mean
Trial Court shall decide the case within one (1) ‘effective’ absence, that is, one that renders the
year from the filing thereof. Decisions on officer concerned powerless, for the time being, to
boundary disputes promulgated jointly by two discharge the powers and prerogatives of his/her
(2) or more sangguniang panlalawigans shall office. There is no vacancy whenever the office is
be heard by the Regional Trial Court of the occupied by a legally qualified incumbent. A sensu
province, which first took cognizance of the contrario, there is a vacancy when there is no
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POLITICAL LAW
person lawfully authorized to assume and exercise in case of the permanent disability of
at present the duties of the office. (Gamboa, Jr. v. highest ranking Sanggunian member,
Aguirre, G.R. No. 134213, July 20, 1999) c. Second highest ranking Sanggunian
member
Classes of vacancies in the elective post
Permanent Vacancy: 3. Office of the Vice Governor or Vice-
Mayor
Arises when an elected local official: a. Highest ranking Sanggunian member;
in case of the permanent disability of
1. Fills a higher vacant office; or highest ranking Sanggunian member,
2. Refuses to assume office; or
3. Fails to qualify; or NOTE: The highest ranking municipal
4. Dies; or councilor’s succession to the office of vice-
5. Removed from office; or mayor cannot be considered a voluntary
6. Voluntarily resigns; or renunciation of his office as councilor,
7. Permanently incapacitated to discharge the since it occurred by operation of law.
functions of his office. (LGC, Sec. 44) (Montebon v. COMELEC, G.R. No. 180444,
April 8, 2008)
Temporary Vacancy:
4. Second highest ranking Sanggunian
Arises when an elected official is temporarily member.Office of the Punong Barangay
incapacitated to perform his duties due to legal or a. Highest ranking Sanggunian
physical reason such as: member; in case of the
permanent disability of highest
1.Physical sickness; ranking Sanggunian member,
2.Leave of absence; b. Second highest ranking
3.Travel abroad; or Sanggunian member
Arises when an elected official is temporarily NOTE: For purposes of succession, ranking
incapacitated to perform his duties due to legal or in the Sanggunian shall be determined on the
physical reason such as: basis of the proportion of the votes obtained
by each winning candidate to the total number
1.Physical sickness; of registered voters in each district in the
2.Leave of absence; immediately preceding local election. [LGC, Sec.
3.Travel abroad; or 44 (d)(3)]
4. Suspension from office. (LGC, Sec. 46)
B. In case automatic succession is not applicable
Filling of vacancy and there is vacancy in the membership of the
sanggunian, it shall be filled up by appointment in
1. Automatic succession the following manner:
2. By appointment (LGC, Sec. 45)
1. The President, through the Executive
Rules of succession in case of permanent Secretary, shall appoint the political
vacancies (1995, 1996, 2002 Bar) nominee of the local chief executive for
the sangguniangpanlalawigan and
A. In case of permanent vacancy in: panlungsod of highly urbanized cities and
1. Office of the Governor independent component cities [LGC, Sec.
a. Vice-Governor; in his absence, 45 (a)(1)]
b. Highest ranking Sanggunian member; 2. The Governor shall appoint the political
in case of the permanent disability of nominees for the sangguniang panlungsod
highest ranking Sanggunian member, of component cities and the
c. Second highest ranking Sanggunian sangguniang bayan concerned [LGC, Sec.
member 45 (a)(2)]
3. The city or municipal mayor shall appoint
2. Office of the Mayor the recommendation of the sangguniang
a. Vice-Mayor; in his absence, barangay concerned [LGC, Sec. 45 (a)(3)]
b. Highest ranking Sanggunian member;

2019 GOLDEN NOTE S
Local Governments
GR: The successor (by appointment) should Sanggunian that should be filled up with someone
come from the same political party as the who should belong to the political party of
sanggunian member whose position has petitioner Tamayo. Under Sec 44 of the LGC, a
become vacant. permanent vacancy arises when an elective official
fills a higher vacant office, refuses to assume office,
XPN: In the case of vacancy in the Sangguniang fails to qualify, dies, is removed from office,
barangay. voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his
The reason for the rule is to maintain the party office. Sec 45 (b) of the same law provides that
representation as willed by the people in the “only the nominee of the political party under
election. which the Sanggunian member concerned has
been elected and whose elevation to the position
Hold-over status next higher in rank created the last vacancy in the
Sanggunian shall be appointed in the manner
In case of failure of elections involving barangay herein provided. The appointee shall come from
officials, the incumbent officials shall remain in the political party as that of the Sanggunian
office in a hold-over capacity pursuant to R.A. member who caused the vacancy…”The term “last
9164. (Adap v. COMELEC, G.R. No. 161984, February vacancy” is thus used in Sec. 45(b) to differentiate
21, 2007) it from the other vacancy previously created. The
term “by no means” refers to the vacancy in the No.
The “last vacancy” in the Sanggunian 8 position which occurred with the elevation of
8th placer to the 7th position in the Sanggunian.
It refers to the vacancy created by the elevation of Such construction will result in absurdity.
the member formerly occupying the next higher in (Navarro v. CA, G.R. No. 141307, March 28, 2001)
rank, which in turn also had become vacant by any
of the causes enumerated. NOTE: In case of vacancy in the representation of
the youth and the barangay in the Sanggunian, it
Q: In the 1997 local elections Calimlim was shall be filled automatically by the official next in
elected as Mayor, Aquino as Vice-Mayor and rank of the organization concerned. [LGC, Sec.
Tamayo as the highest ranking member of the 45(d)]
Sanggunian. In 1999, Mayor Calimlim died,
thus Vice-Mayor Aquino succeeded him as Rules on temporary vacancies (2002 Bar)
Mayor. Accordingly, the highest-ranking
member of the Sanggunian, Tamayo, was 1. In case of temporary vacancy of the post of
elevated to the position of the Vice-Mayor. the local chief executive (leave of absence,
Since a vacancy occurred in the Sangguniang travel abroad, and suspension): the Vice-
Bayan by the elevation of petitioner Tamayo to Governor, City or Municipal Vice Mayor, or
the office of the Vice-Mayor, Governor the highest ranking sangguniang barangay
Agbayani appointed Navarro as Member of the shall automatically exercise the powers and
Sangguniang Bayan. Navarro belonged to the perform the duties and functions of the
same political party as that of Tamayo. local chief executive concerned. Such
automatic exercise means that they no
Respondents argue that it was the former vice- longer have to be appointed to the position
mayor Aquino who created the permanent by anyone.
vacancy in the Sanggunian and thus, the
appointee must come from the former vice NOTE:
mayor’s political party. Petitioners, however, GR: The acting Governor or Mayor cannot
contend that it was the elevation of Tamayo to exercise the power to appoint, suspend or
the position of vice-mayor which resulted in a dismiss employees.
permanent vacancy and thus, the person to be
appointed to the vacated position should come XPN: If the period of temporary incapacity
from the same political party as that of exceeds 30 working days.
Tamayo, in this case Navarro. Are the
respondents correct? 2. If travelling outside his jurisdiction but within the
country for a period not exceeding 3 days, the local
A: NO. With the elevation of Tamayo to the chief executive may designate in writing the officer-
position of Vice-Mayor, a vacancy occurred in the in-charge of their respective offices. The OIC
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POLITICAL LAW
cannot exercise the power to appoint, suspend or 3. The abolition of an elective local office due to the
dismiss employee. conversion of a municipality to a city does not, by
itself, work to interrupt the incumbent official’s
If no designation was made, then the vice governor, continuity of service.
vice mayor, or in his absence, the highest-ranking
member of the sanggunian is authorized to assume 4. Preventive suspension is not a term-interrupting
the office on the 4th day of absence of the local chief event as the elective officer’s continued stay and
executive. entitlement to the office remain unaffected during
the period of suspension, although he is barred
3. If the local chief executive’s travel exceeds 3 days, from exercising the functions of his office during
the vice governor or vice mayor, or in his absence, this period.
the highest ranking sanggunian member assumes
the office of the local chief executive. 5. When a candidate is proclaimed as winner for an
elective position and assumes office, his term is
Termination of temporary incapacity interrupted when he loses in an election protest
and is ousted from office, thus disenabling him from
1. Upon submission to the appropriate serving what would otherwise be the unexpired
sanggunian of a written declaration by the portion of his term of office had the protest been
local chief executive concerned that he has dismissed (Lonzanida and Dizon). The break or
reported back to office, if the temporary interruption need not be for a full term of three
incapacity was due to years or for the major part of the 3-year term; an
a. Leave of absence; interruption for any length of time, provided the
b. Travel abroad; and cause is involuntary, is sufficient to break the
c. Suspension continuity of service.
2. Upon submission by the local chief executive 6. When an official is defeated in an election protest
of the necessary documents showing that and said decision becomes final after said official
the legal causes no longer exist, if the had served the full term for said office, then his loss
temporary incapacity was due to legal in the election contest does not constitute an
reasons[LGC, Sec. 46(b)]. interruption since he has managed to serve the
term from start to finish. His full service, despite the
Rules on consecutiveness of terms and/or defeat, should be counted in the application of term
involuntary interruption: limits because the nullification of his proclamation
came after the expiration of the term. (Abundo v.
1.When a permanent vacancy occurs in an elective COMELEC, G.R. No. 201716, Jan. 8, 2013)
position and the official merely assumed the
position pursuant to the rules on succession under RECALL
the LGC, then his service for the unexpired portion
of the term of the replaced official cannot be treated It is a mode of removal of a public officer, by the
as one full term as contemplated under the subject people, before the end of his term. The people’s
constitutional and statutory provision that service prerogative to remove a public officer is an
cannot be counted in the application of any term incident of their sovereign power, and in the
limit. If the official runs again for the same position absence of constitutional restraint, the power is
he held prior to his assumption of the higher office, implied in all governmental operations. (Garcia v.
then his succession to said position is by operation COMELEC, G.R. No. 111511, Oct. 5, 1993)
of law and is considered an involuntary severance
or interruption. NOTE: All expenses incident to recall elections
shall be borne by the COMELEC. For this
2. An elective official, who has served for three purpose, the annual General Appropriations Act
consecutive terms and who did not seek the (GAA) shall include a contingency fund at the
elective position for what could be his fourth term, disposal of the COMELEC for the conduct of recall
but later won in a recall election, had an elections (LGC, Sec. 75)
interruption in the continuity of the official’s
service. For, he had become in the interim, i.e., from Q: Goh filed before the COMELEC a recall
the end of the 3rd term up to the recall election, a petition against Mayor Bayron due to loss of
private citizen. trust and confidence. On 1 April 2014, the
COMELEC promulgated Resolution No. 9864

2019 GOLDEN NOTE S
Local Governments
which found the recall petition sufficient in concerned and supported by the registered
form and substance, but suspended the voters in the LGU concerned during the election
funding of any and all recall elections until the in which the local official sought to be recalled
resolution of the funding issue. Petitioner was elected subject to the following percentage
submits that the same is a grave abdication requirements:
and wanton betrayal of the constitutional
mandate of the COMELEC and a grievous a. At least twenty-five percent (25%) in the
violation of the sovereign power of the people. case LGUs with a voting population of not
What Resolution Nos. 9864 and 9882 have more than twenty thousand (20,000);
given with one hand (the affirmation of the b. At least twenty percent (20%) in the case of
sufficiency of the Recall Petition), they have LGUs with a voting population of at least
taken away with the other (the issue of lack twenty thousand(20,000) but not more
funding). The COMELEC suspended the holding than seventy-five thousand (75,000):
of a recall election supposedly through lack of Provided, That in no case shall the required
funding. Did the COMELEC gravely abuse its petitioners be less than five thousand
discretion when it suspended the recall (5,000);
election? c. At least fifteen percent (15%) in the case of
LGUs with a voting population of at least
A: YES. The COMELEC committed grave abuse of seventy-five thousand (75,000) but not more
discretion in issuing Resolution Nos. 9864 and than three hundred thousand (300,000):
9882. The 2014 GAA provides the line item Provided, however, That in no case shall the
appropriation to allow the COMELEC to perform required number of petitioners be less than
its constitutional mandate of conducting recall fifteen thousand(15,000); and
elections. There is no need for supplemental d. At least ten percent (10%) in the case of LGUs
legislation to authorize the COMELEC to conduct with a voting population of over three
recall elections for 2014. Considering that there is hundred thousand (300,000):Provided,
an existing line item appropriation for the conduct however, that in no case shall the required
of recall elections in the 2014 GAA, we see no petitioners be less than forty-five thousand
reason why the COMELEC is unable to perform its (45,000) (LGC, Sec. 70, as amended by RA 9244)
constitutional mandate to “enforce and administer
all laws and regulations relative to the conduct of NOTE: By virtue of RA 9244, Secs. 70 and 71 of
xxx recall.” Should the funds appropriated in the the LGC were amended, and the Preparatory
2014 GAA be deemed insufficient, then the Recall Assembly has been eliminated as a
COMELEC Chairman may exercise his authority to mode of instituting recall of elective local
augment such line item appropriation from the government officials.
COMELEC’s existing savings, as this augmentation
is expressly authorized in the 2014 GAA. All pending petitions for recall initiated through
Resolution No. 9864 is therefore partially reverse the Preparatory Recall Assembly shall be
and set aside insofar as it directed the suspension considered dismissed upon the effectivity of RA
of any and all proceedings in the recall petition. 9244. (Approved February 19, 2004)
(Goh v. Bayron, G.R No. 212584, November 25,
2014) Recall process
Ground for recall 1. Petition of a registered voter in the LGU

concerned, supported by percentage of
The only ground for recall of local government registered voters during the election in which
officials is loss of confidence. It is not subject to the local official sought to be recalled was
judicial inquiry. The Court ruled that ‘loss of elected.
confidence’ as a ground for recall is a political 2. Within 15 days after filing, COMELEC must
question. (Garcia v. COMELEC, G.R. No. 111511, Oct. certify the sufficiency of the required
5, 1993) number of signatures.
Recall initiation NOTE: Failure to obtain required number

automatically nullifies petition.
The Recall of any elective provincial, city,
municipal or barangay official shall be commenced 3. Within 3 days of certification of sufficiency,
by a petition of a registered voter in the LGU COMELEC shall provide the official with copy
277
POLITICAL LAW
of petition and shall cause its publication for
three weeks (once a week) in a national Governor Peralta can run again as governor. He did
newspaper and a local newspaper of general not fully serve his third term, because he lost in the
circulation. Petition must also be posted for recall election. His third term should not be
10 to 20 days at conspicuous places (LGC, included in computing the three-term limit.
Sec. 70 (b)(2), as amended by RA 9244) (Lonzanida v. COMELEC, G.R. No. 135150, July 28,
1999)
NOTE: Protest should be filed at this point
and ruled with finality within 15 days after Governor Peralta cannot refuse to run in the recall
filing. election. He is automatically considered as duly
registered candidate (LGC, Sec. 71)
4. COMELEC verifies and authenticates the He is not allowed to resign (LGC, Sec. 72)
signature
5. COMELEC announces acceptance of Prohibition from resignation
candidates.
6. COMELEC sets election within 30 days after The elective local official sought to be recalled shall
the filing of the resolution or petition for not be allowed to resign while the recall process is
recall in the case of in progress (LGC, Sec. 73)
barangay/city/municipality, and 45days in
the case of provincial officials. Officials Limitations on recall (2008 Bar)
sought to be recalled are automatic
candidates (LGC, Secs. 70 & 71) 1. Any elective local official may be the
subject of a recall election only once during
NOTE: The official or officials sought to be his term of office for loss of confidence; and
recalled shall automatically be considered as 2. No recall shall take place within one (1)
duly registered candidate or candidates to the year from the date of the official’s
pertinent positions and, like other candidates, assumption to office or one (1) year
shall be entitled to be voted upon (LGC, Sec. 71) immediately preceding a regular election
(LGC, Sec. 74)
Effectivity of Recall
The Supreme Court held that the term recall
The recall of an elective local official shall be referred to in the one-year time bar rule refers to the
effective only upon the election and proclamation recall election and not the preliminary proceeding
of a successor in the person of the candidate to initiate recall. It is clear that the initiation of recall
receiving the highest number of votes cast during proceeding is not prohibited within the one-year
the election on recall. period provided in Section 74 (b) of the LGC.
(Claudio v. COMELEC, G.R. No. 140560. May 4, 2000)
Should the official sought to be recalled receive the
highest number of votes, confidence in him is NOTE: The one-year time bar will not apply
thereby affirmed, and he shall continue in where the local official sought to be recalled is
office(LGC, Sec. 72) a mayor and the approaching election is a
barangay election. (Angobung v. COMELEC, G.R.
Q: Governor Peralta was serving his third term No. 126576, March 5, 1997)
when he lost his governorship in a recall
election. Q: Sec. 74 of the LGC provides that “no recall
shall take place within one year immediately
A. Who shall succeed Governor Peralta in his preceding a regular local election.” What does
office as Governor? the term “regular local election,” as used in this
B. Can Governor Peralta run again as governor section, mean?
in the next election?
C. Can Governor Peralta refuse to run in the A: Referring to an election where the office held
recall election and instead resign from his by the local elective official sought to be recalled
position as governor? is to be actually contested and filled by the
electorate (Paras v. COMELEC, G.R. No. 123169,
A: The candidate who received the highest number Nov. 4, 1996).
of votes in the recall will succeed Governor Peralta
(LGC, Sec. 72) Q. Will it be proper for the COMELEC to act

2019 GOLDEN NOTE S
Local Governments
on a petition for recall signed by just one Sanggunian, irrespective of the district he had
person? been elected from. Allowing Naval to run as a
Sanggunian member for the fourth time is
A: NO. A petition for recall signed by just one violative of the inflexible three-term limit rule.
person is in violation of the statutory 25% Is Julia correct?
minimum requirement as to the number of
signatures supporting any petition for recall. A: YES. As worded, the constitutional provision
(Angobung v. COMELEC, G.R. No. 126576, March 5, fixes the term of a local elective office and limits an
1997) elective official’s stay in office to no more than
three consecutive terms. The “limitation” under
TERM LIMITS this first branch of the provision is expressed in the
negative—“no such official shall serve for more
Term of office of an elected local official than three consecutive terms.” This formulation—
no more than three consecutive terms—is a clear
Three (3) years starting from noon of June 30 command suggesting the existence of an inflexible
following the election or such date as may be rule. This examination of the wording of the
provided by law, except that of elective constitutional provision and of the circumstances
barangay officials, for maximum of 3 consecutive surrounding its formulation impresses upon us the
terms in the same position (LGC, Sec. 43) clear intent to make term limitation a high priority
constitutional objective whose terms must be
The term of office of Barangay and Sangguniang strictly construed and which cannot be defeated by,
Kabataan elective officials, by virtue of RA 9164 nor sacrificed for, values of less than equal
and RA 10742, is three (3) years. constitutional worth.
NOTE: The objective of imposing the three-term In Naval’s case, the words of R.A. No. 9716 plainly
limit rule is to “avoid the recall of a single person state that the new Second District is to be created,
accumulating excess power over a particular but the Third District is to be renamed. The
territorial jurisdiction as a result of a prolonged rationale behind reapportionment is the
stay in the same office”. constitutional requirement to achieve equality of
representation among the districts.The aim of
For a three-term rule to apply, the local official legislative apportionment is to equalize population
must have fully served the term and been elected and voting power among districts. The basis for
through regular election. districting shall be the number of the inhabitants of
a city or a province and not the number of
Q: From 2004 to 2007 and 2007 to 2010, Naval registered voters therein. Naval’s ineligibility to
had been elected as a Board Member of the run, by reason of violation of the three-term limit
Sangguniang Panlalawigan for the Second rule, does not undermine the right to equal
District, Province of Camarines Sur. On October representation of any of the districts in Camarines
12, 2009, the President approved R.A. No. 9716, Sur. With or without him, the renamed Third
which reapportioned the legislative districts in District, which he labels as a new set of
Camarines Sur. 8 out of 10 towns were taken constituents, would still be represented, albeit by
from the old Second District to form the present another eligible person.
Third District. The present Second District is
composed of the two remaining towns, Gainza In sum, there is no compelling reason to side with
and Milaor, merged with five towns from the Naval. To declare otherwise would be to create a
old First District. In the 2010 elections, Naval dangerous precedent unintended by the drafters of
once again won as among the members of the our Constitution and of R.A. No. 9716. Considering
Sanggunian, Third District. He served until that the one-term gap or rest after three
2013. In the 2013 elections, Naval ran anew and consecutive elections is a result of a compromise
was re-elected as Member of the Sanggunian, among the members of the Constitutional
Third District. Nelson Julia was likewise a Commission, no cavalier exemptions or exceptions
Sanggunian Member candidate from the Third to its application is to be allowed. Further,
District in the 2013 elections. He filed before sustaining Naval’s arguments would practically
the COMELEC a Verified Petition to Deny Due allow him to hold the same office for 15 years.
Course or to Cancel COC of Naval. Julia posited (Naval v. COMELEC, G.R. No. 207851, July 8, 2014)
that Naval had fully served for three
consecutive terms as a member of the Term limit of Barangay officials
279
POLITICAL LAW
The term of office of barangay officials was fixed at

three years under R.A. 9164 (19 March 2002).
Further, Sec.43 (b) provides that "no local
elective official shall serve for more than three (3)
consecutive terms in the same position. The Court
interpreted thissection referring to all local
elective officials without exclusions or exceptions.
(COMELEC v. Cruz, G.R. No. 186616, Nov. 20, 2009)
NOTE: Voluntary renunciation of the office for any

length of time shall not be considered as an
interruption in the continuity of service for the full
term for which the elective official concerned was
elected. (Sec 43(b), LGC; see previous discussion on
Abundo v. COMELEC, infra.)

2019 GOLDEN NOTE S
National Economy and Patrimony
Property Registration Decree and Other Related
NATIONAL ECONOMY AND PATRIMONY Laws, 2015)
Goals of the National Economy Regalian Doctrine is embodied in the

Constitution
The following are the goals of the national
economy: All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces
(1) A more equitable distribution of of potential energy, fisheries, forests, or timber,
opportunities, income and wealth; wildlife, flora and fauna, and other natural
(2) Sustained increase in the amount of goods resources are owned by the State. With the
and services produced by the nation for exception of agricultural lands, all other natural
the benefit of the people; and resources shall not be alienated. (Sec. 2, Art. XII,
(3) An expanding productivity as the key to 1987 Constitution)
raising the quality of life for all, especially,
the underprivileged. (Sec. 1, Art. XII, 1987 Exception to the Regalian Doctrine
Constitution)
When there is an existing native title to land or
How the State may attain the goals of the ownership of land by Filipinos by virtue of
national economy possession under a claim of ownership since time
immemorial and independent of any grant from
The State shall promote industrialization and full the Spanish Crown. (Carino v. Insular Government,
employment based on sound agricultural GR No. 2869, March 25, 1907)
development and agrarian reform, through
industries that make full and efficient use of Any land that should have been in the possession
human and natural resources, and which are of an occupant and of his predecessors in interest
competitive in both domestic and foreign markets. since time immemorial, for such possession would
However, the State shall protect Filipino justify the presumption that the land had never
enterprises against unfair foreign competition and been part of the public domain or that it had been
trade practices. (Sec. 1, Art. XII, 1987 Constitution) a private property even before the Spanish
conquest. (Oh Cho v. Director of Lands, Gr No. L-
REGALIAN DOCTRINE 48321, August 31, 1946)
Regalian Doctrine Constitutionality of RA 8371 “Indigenous

Peoples’ Rights Act” (IPRA Law)
All lands of whatever classification and other
natural resources not otherwise appearing to be The Regalian Doctrine does not negate native title
clearly within private ownership belong to the to lands held in private ownership since time
State. The State is the source of any asserted right immemorial and independent of any grant from
to ownership of land and charged with the the Spanish Crown. IPRA recognizes the right of
conservation of such patrimony. (Republic v. ownership of Indigenous Cultural Communities or
Raneses, GR No. 189970, June 9, 2014; Sec. of DENR Indigenous Peoples (ICCs/IPs) to their ancestral
v. Yap, GR No. 167707, October 8, 2008) domains and ancestral lands on the basis of native
title. (Cruz v. Sec. of DENR, GR No. 135385,
Jura Regalia December 6, 2000)
Under the concept of jura regalia, private title to NOTE: The constitutionality of the law was
land must be traced to some grant, express or deemed upheld only because the votes were
implied, from the Spanish Crown or its successors, equally divided 7 to 7. Hence, the necessary
the American Colonial government, and majority was not obtained. Accordingly, pursuant
thereafter, the Philippine Republic. Title to land to Rule 56, Sec. 7 of the Rules of Civil Procedure,
must emanate from some source for it cannot be the petition was dismissed.
issue forth from nowhere.
Native Title
Jura regalia simply means that the State is the
original proprietor of all lands and, as such, is the Native title refers to pre-conquest rights to lands
general source of all private titles. (p. 3, Agcaoili, and domains which, as far back as memory
281
POLITICAL LAW
reaches, have been held under a claim of private development and utilization (EDU) of natural
ownership by ICCs/IPs, have been public lands resources:
and are thus indisputably presumed to have been
held that way since before the Spanish Conquest. GR: Filipino citizens or entities with 60%
[Sec. 3(l), Chapter II, RA 8371] capitalization owned by Filipino citizens.
Ancestral Domain XPN: For large-scale EDU of minerals,

petroleum and other mineral oils, the
All areas generally belonging to ICCs/IPs President may enter into agreements with
comprising lands, inland waters, coastal areas, and foreign-owned corporations involving
natural resources therein, held under a claim of technical or financial agreements only. (1987
ownership, occupied and possessed by ICCs/IPs, Constitution, Art. XII, Sec. 2)
by themselves or through their ancestors,
communally or individually since time State may also directly exploit its natural
immemorial, continuously to the present, except resources in either of two ways:
when interrupted by war, force majeure or
displacement by force, deceit, stealth or as a a. State may set up its own company to
consequence of government projects or any other engage in the exploitation of natural
voluntary dealings with government and/or resources.
private individuals or corporations. [Sec. 3(a), b. State may enter into a financial or
Chapter II, RA 8371] technical assistance agreement
(“FTAA”) with private companies
Q: In 1958, President Garcia issued a who act as contractors of the
Presidential Proclamation reserving hectares State (La Bugal-B’laan v. DENR Sec.,
of lands of the public domain in Musuan G.R. No. 127882, December 1, 2004).
Bukidnon, as a school site for Central
Mindanao University. In 2003, President 2. Use and enjoyment of nation’s marine wealth
Arroyo issued a Presidential Proclamation within the territory: Exclusively for Filipino
taking hectares from CMU’s registered lands citizens; (1987 Constitution, Art. XII, Sec. 2)
for distribution to indigenous peoples and 3. Alienable lands of the public domain:
cultural communities. CMU filed a petition to a. Only Filipino citizens may acquire not
declare the proclamation unconstitutional. more than 12 hectares by purchase,
Decide. homestead or grant, or lease not more
than 500 hectares.
A: The lands by their character have become b. Private corporations may lease not more
inalienable from the moment President Garcia than 1000 hectares for 25 years
dedicated them for CMUs use. They have ceased to renewable for another 25 years; (1987
be alienable public lands. Besides, Sec. 56 of IPRA Constitution, Art. XII, Sec. 3)
provides that property rights within the ancestral
domains already existing and/or vested upon its 4. Certain areas of investment: reserved for
effectivity shall be recognized and respected. In Filipino citizens or entities with 60% owned
this case, ownership over the subject lands had by Filipinos, although Congress may provide
been vested in CMU as early as 1958. for higher percentage; (1987 Constitution, Art.
Consequently, transferring the lands in 2003 to XII, Sec. 10)
the indigenous peoples around the area is not in 5. In the grant of rights, privileges and
accord with IPRA. (CMU v. Exec. Secretary, GR No. concessions covering the national economy
184869, September 21, 2010) and patrimony, State shall give preference to
qualified Filipinos; and (1987 Constitution, Art.
NATIONALIST AND CITIZENSHIP XII, Sec. 10)
REQUIREMENT PROVISIONS 6. Franchise, certificate or any other form of
authorization for the operation of a public
Filipinized activities as provided in Art. XII of utility; only to Filipino citizens or entities with
the Constitution 60% owned by Filipinos. (1987 Constitution,
Art. XII, Sec. 11)
1. Co-production, joint venture, or production
sharing agreement for exploration, NOTE: Such franchise, etc., shall neither be
exclusive, nor, for a period longer than 50

2019 GOLDEN NOTE S
years, and subject to amendment, alteration He had and has no capacity or personality to
or repeal by Congress. All executive and question the subsequent sale of the same property
managing officers must be Filipino citizens. by his wife on the theory that in so doing he is
merely exercising the prerogative of a husband in
Q: President Estrada signed into law RA 8762, respect of conjugal property. To sustain such a
also known as the Retail Trade Liberalization theory would permit indirect controversion of the
Act of 2000. It expressly repealed R.A. 1180, constitutional prohibition. If the property were to
which absolutely prohibited foreign nationals be declared conjugal, this would accord to the
from engaging in the retail trade business. R.A. alien husband a not insubstantial interest and
8762 now allows them to do under special right over land, as he would then have a decisive
categories. Several members of the House of vote as to its transfer or disposition. This is a right
Representatives, filed a petition assailing the that the Constitution does not permit him to have.
constitutionality of RA 8762. They mainly (Cheeseman v. IAC, G.R. No. 74833, January 21,
argue that it violates the mandate of the 1987 1991)
Constitution for the State to develop a self-
reliant and independent national economy EXPLORATION, DEVELOPMENT, AND
effectively controlled by Filipinos. Is the Retail UTILIZATION OF NATURAL RESOURCES
Trade Liberalization Act of 2000
constitutional? Exploration, development and utilization of
natural resources (2015 Bar)
A: YES. While Sec. 19, Art. II of the 1987
Constitution requires the development of a self- Only Filipino citizens and corporations or
reliant and independent national economy associations at least sixty percent (60%) of whose
effectively controlled by Filipino entrepreneurs, it capital is owned by Filipino citizens are qualified
does not impose a policy of Filipino monopoly of to take part in exploration, development and
the economic environment. The objective is to utilization of natural resources (1987 Constitution,
simply prohibit foreign powers or interests from Art. XII, Sec. 2).
maneuvering our economic policies and ensure
that Filipinos are given preference in all areas of Since natural resources, except agricultural
development. It does not rule out the entry of resources that cannot be alienated, they can be
foreign investments, goods, and services. While it explored, developed, or utilized by:
does not encourage their unlimited entry into the
country, it does not prohibit them either. In fact, it 1. Direct undertaking of activities by the State
allows an exchange on the basis of equality and 2. Co-production, joint venture, or production
reciprocity, frowning only on foreign competition sharing agreements with the State and all
that is unfair. (Espina v. Zamora, G.R. No. under the full control and supervision of the
143855, September 21, 2010) State (Miners Association v. Factoran, G.R. No.
98332, January 16, 1995).
An alien may not acquire property by virtue of
a purchase made by him and his Filipino wife NOTE: However, as to marine wealth, only Filipino
(1994, 1998, 2002, 2009 Bar) citizens are qualified. This is also true of natural
resources in rivers, bays, lakes and lagoons, but
The fundamental law prohibits the sale to aliens of with allowance for cooperatives (1987
residential land. Sec. 7, Art. XII ordains that, "Save Constitution, Art. XII, Sec. 2, pars. 2 and 3).
in cases of hereditary succession, no private land
shall be transferred or conveyed except to Control Test and Grandfather Rule (2015 Bar)
individuals, corporations, or associations qualified
to acquire or hold lands of the public In Narra Nickel Mining and Development
domain." Thus, assuming that it was his intention Corporation v. Redmont Consolidated Mines
that the lot in question be purchased by him and Corpoation, G.R. No. 195580, January 28, 2015
his wife, he acquired no right whatever over the (Resolution), these two tests were discussed by the
property by virtue of that purchase; and in Supreme Court in determining whether or not
attempting to acquire a right or interest in land, Narra Nickel Mining and Development
vicariously and clandestinely, he knowingly Corporation Tesoro Mining and Development, Inc.,
violated the Constitution; the sale as to him was and McArthur Mining, Inc. complied with the
null and void. Filipino ownership requirement, thus, entitled to
Mineral Production Sharing Agreements (MPSAs).
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POLITICAL LAW
2. The similar corporate structure and
Control Test Grandfather Rule shareholder composition of the three
Also known as the The method by which corporations;
“liberal test”; This the percentage of 3. A major Filipino shareholder within the
provides that shares Filipino equity in a corporate layering did not pay any amount
belonging to corporation is with respect to its subscription; and
corporations or computed, in cases 4. The dubious act of the foreign investor in
partnerships at least where corporate conveying its interests in the mining
60% of the capital of shareholders are corporations to another domestic
which is owned by present, by attributing corporation.
Filipino citizens shall the nationality of the
be considered of second or even NOTE: Corporate layering is valid insofar as it
Philippine nationality. subsequent tier of does not intend to circumvent the Filipino
This does not ownership to ownership requirement of the Constitution (Narra
scrutinize further the determine the Nickel Mining and Development Corporation v.
ownership of the nationality of the Redmont Consolidated Mines Corpoation, G.R. No.
Filipino corporate 195580, April 21, 2014).
shareholdings. shareholder.
Thus, to arrive at the Validity of service contract entered into by the
actual Filipino State with a foreign-owned corporation
ownership and
control in a Subject to the strict limitations in the last two
corporation, both the paragraphs of Sec. 2 Art. XII, financial and
direct and indirect technical agreements are a form of service
shareholdings in the contract. Such service contacts may be entered
corporation are into only with respect to minerals, petroleum, and
determined. other mineral oils. The grant of such service
Primary test (but Applies only contracts is subject to several safeguards, among
it may be when the 60-40 them:
combined with Filipino-foreign
the Grandfather ownership is in 1. That the service contract be crafted in
Rule) doubt or where accordance with a general law setting
there is reason to standard of uniform terms, conditions
believe that there and requirements;
is non- Ratio: To attain certain
compliance with uniformity in provisions and
the provisions of avoid the possible insertion of
the Constitution terms disadvantageous to the
on the country.
nationality
restriction. 2. President be the signatory for the
government; and
Ratio:Before an agreement is
presented to the President for
NOTE: “Doubt” - does not refer to the fact that the signature, it will have been vetted
apparent Filipino ownership of the corporation’s several times over at different
equity falls below the 60% threshold. Rather, it levels to ensure that it conforms
refers to various indicia that the "beneficial to law and can withstand public
ownership" and "control" of the corporation do scrutiny.
not in fact reside in Filipino shareholders but in
foreign stakeholders. 3. President reports the executed
agreement to Congress within 30 days.
Circumstances that compelled the application Ratio: To give that branch of
of the Grandfather Rule in Narra Nickel Mining government an opportunity to
v. Redmont Consolidated Mines look over the agreement and
interpose timely objections, if
1. The three mining corporations had the same
100% Canadian owned foreign investor;

2019 GOLDEN NOTE S
any (La Bugal B’laan v. DENR, G.R. XPN: In case of valid delegation of legislative
No. 127882, December 1, 2004). authority to some administrative agencies to issue
franchises of certain public utilities.
FRANCHISES, AUTHORITY, AND CERTIFICATES
FOR PUBLIC UTILITIES Franchise requirement before one can operate
a public utility (1994 Bar)
Public Utility
The Constitution, in no uncertain terms, requires a
A "public utility" is a business or service engaged franchise for the operation of a public utility.
in regularly supplying the public with some However, it does not require a franchise before
commodity or service of public consequence such one can own the facilities needed to operate a
as electricity, gas, water, transportation, telephone public utility so long as it does not operate them to
or telegraph service. (Sec. 14, CA No. 146; National serve the public.
Power Corporation v. CA, GR No. 112702, September
26, 1997) Sec. 11, Art. XII provides that, “No franchise,
certificate or any other form of authorization for
Public utilities are privately owned and operated the operation of a public utility shall be granted
businesses whose services are essential to the except to citizens of the Philippines or to
general public. They are enterprises which corporations or associations organized under the
specially cater to the needs of the public and laws of the Philippines at least 60% of whose
conduce to their comfort and convenience. As capital is owned by such citizens, nor shall such
such, public utility services are impressed with franchise, certificate or authorization be exclusive
public interest and concern. (Kilusang Mayo Uno character or for a longer period than 50 years…”
Labor Center v. Garcia; LTFRB, GR No. 115381, (Tatad v. Garcia, G.R. No. 114222, April 6, 1995).
December 23, 1994)
Exclusivity of a public utility franchise
Operation of a Public Utility
A franchise to operate a public utility is not an
No franchise, certificate, or any other form of exclusive private property of the franchisee. Under
authorization for the operation of a public utility the Constitution, no franchisee can demand or
shall be granted except to citizens of the acquire exclusivity in the operation of a public
Philippines or to corporations or associations utility. Thus, a franchisee cannot complain of
organized under the laws of the Philippines at seizure or taking of property because of the
least sixty per centum of whose capital is owned issuance of another franchise to a competitor
by such citizens, nor shall such franchise, (Pilipino Telephone Corp. v. NRC, G.R. No. 138295,
certificate, or authorization be exclusive in August 28, 2003).
character or for a longer period than fifty years.
(Sec. 11, Art. XII, 1987 Constitution) Foreigners who own substantial stockholdings
in a corporation, engaged in the advertising
Thus, only Filipino citizens or corporations at least industry, cannot sit as a treasurer of said
60% of whose capital is Filipino owned are corporation
qualified to acquire a franchise, certificate, or
authorized to operate a public utility. A treasurer is an executive or a managing officer.
Sec. 11(2), Art. XVI provides that the participation
Operation v. Ownership of Public Utilities of the foreign investors in the governing bodies of
entities shall be limited to their proportionate
The Constitution requires a franchise for the share in the capital thereof, and all the officers of
operation of a public utility. However, it does not such entities must be citizens of the Philippines
require a franchise before one can own the (Bar examination in Political Law, 1989).
facilities needed to operate a public utility.
Ownership requirement
Delegation of authority to grant franchise
1. Advertising- 70% of their capital must be
GR: Under the Constitution, Congress has the owned by Filipino citizens [Art. XVI, Sec.
authority to grant a public utility franchise 1(2)]
2. Mass Media- must be wholly owned by
Filipino citizens [Art. XVI, Sec. 11(1)]
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POLITICAL LAW
3. Educational institutions- 60% of their Imperium vs. Dominium
capital must be owned by Filipino citizens
[Art. XVI, Sec. 4(2)] Imperium Dominium
The power to govern The capacity of the
Interpretation of the term “capital” as used in possessed by the State State to own or
Sec. 11, Art. XII in determining compliance which is embraced in acquire properties.
with the ownership requirement sovereignty.
Refers only to shares of stock entitled to vote in the

election of directors, and only to common shares Classification of Lands of Public Domain
and not to the total outstanding capital stock
comprising both common and non-voting 1. Agricultural;
preferred shares. 2. Forest or timber;
3. Mineral lands; and
Considering that common shares have voting 4. National parks (Sec. 3, Art. XII, 1987
rights which translate to control, as opposed to Constitution)
preferred shares which usually have no voting
rights, the term "capital" in Sec. 11, Art. XII of the Conversion of Public Land to Private Land
Constitution refers only to common shares.
However, if the preferred shares also have the Before any land may be converted to alienable and
right to vote in the election of directors, then the disposable land, there must be a positive act from
term "capital" shall include such preferred shares the government. Unless and until the land is
because the right to participate in the control or released in an official proclamation, it may not
management of the corporation is exercised form part of the disposable agricultural lands of
through the right to vote in the election of the public domain. (Sunbeam v. CA, GR No. L-50464,
directors. In short, the term "capital" in Sec. 11, January 29, 1990)
Art. XII of the Constitution refers only to shares of
stock that can vote in the election of directors There must be an express declaration by the State
(Gamboa v. Sec. of Finance, G.R. No. 176579, June 28, that the public dominion property is no longer
2011). intended for public service or the development of
the national wealth or that the property has been
NOTE: The Constitution expressly declares as converted into patrimonial. Without such express
State policy the development of an economy declaration, the property, even if classified as
“effectively controlled” by Filipinos. Consistent alienable or disposable, remains property of the
with such State policy, the Constitution explicitly public dominion, pursuant to Article 420(2), and
reserves the ownership and operation of public thus incapable of acquisition by prescription. It is
utilities to Philippine nationals, who are defined in only when such alienable and disposable lands are
the Foreign Investments Act of 1991 as Filipino expressly declared by the State to be no longer
citizens, or corporations or associations at least intended for public service or for the development
60% of whose capital with voting rights belongs to of the national wealth that the period of
Filipinos (Gamboa v. Sec. of Finance, ibid.). acquisitive prescription can begin to run. Such
declaration shall be in the form of a law duly
State Take-Over of Business Affected with enacted by Congress or a Presidential
Public Interest; Requisites Proclamation in cases where the President is duly
authorized by law. (Heirs of Mario Malabanan v.
The State may take over or direct the operation of Republic of the Philippines, GR No. 179987, April 29,
any privately owned public utility or business 2009)
affected with public interest provided that:
Purchase or grant
1. There is national emergency;
2. The public interest so requires; and Public land is acquired from the government
3. Under reasonable terms prescribed by it. either by purchase or by grant. (Oh Cho v. Director
(Sec. 17, Art. XII, 1987 Constitution) of Lands, supra)
ACQUISITION, OWNERSHIP AND TRANSFER OF Prescription

PUBLIC AND PRIVATE LANDS

2019 GOLDEN NOTE S
Public land held by a possessor, personally or Natural-born citizens who lost their
through his predecessors-in-interest, openly, citizenship
continuously and exclusively for ten (10) or thirty
(30) years is converted to private property by the Any natural-born citizen of the Philippines who
mere lapse of completion of said period, ipso jure. has lost his Philippine citizenship and who has the
The land ipso jure ceases to be of the public legal capacity to enter into a contract under
domain and becomes private property. (Director of Philippine laws may be a transferee of a private
Lands v. IAC, GR No. 73002, December 29, 1986) land up to a maximum area of one thousand
square meters, in the case of urban land, or one
Two (2) kinds of prescription by which hectare in the case of rural land, to be used by him
Patrimonial Property may be acquired as his residence. (Sec. 2, BP 185)
1. Ordinary – possession for at least 10 Religious Corporations can own lands

years, in good faith and with just title
2. Extraordinary – possession for at least A corporation sole by the nature of its
30 years, regardless of good faith or just incorporation is vested with the right to purchase
title and hold real estate property. It need not therefore
be treated as an ordinary private corporation
There must be an express declaration that the because whether or not it be so treated as such, the
property is no longer intended for public service Constitutional provision involved will,
or development of national wealth. Without such nevertheless, be not applicable. (Sec. 113, BP 68;
declaration, the property, even if classified as Republic v. IAC, GR No. 75042, November 29, 1988)
alienable and disposable, remains property of the
State, and thus, may not be acquired by But religious associations controlled by non-
prescription. (Malabanan v. Republic, GR No. Filipinos cannot own lands
179987, April 29, 2009)
The Constitution makes no exception in favor of
Disposition of private lands or holding of lands religious associations restricting the acquisition of
the public domain public agricultural lands and other natural
resources to corporations or associations at least
No private land shall be transferred or conveyed sixty per centum of the capital of which is owned
except to individuals, corporations or associations by such citizens. To permit religious associations
qualified to acquire or hold lands of the public controlled by non-Filipinos to acquire agricultural
domain. (Sec. 7, Art. XII, 1987 Constitution) lands would be to drive the opening wedge to
revive alien religious land holdings in this country.
Exception (Register of Deeds v. Ung Siu Si Temple, GR No. L-
6776, May 21, 1955)
1. By hereditary succession;
2. Former natural-born citizens of the Aliens and alien-owned corporations may
Philippines who has lost his Philippine lease private lands
citizenship;
3. Condominium units The maximum period allowable for the duration of
4. Those acquired by Americans while the leases of private lands to aliens or alien-owned
Parity Right Agreement was still in effect. corporations, associations, or entities not qualified
to acquire private lands in the Philippines shall be
Hereditary succession; Intestate succession twenty-five (25) years, renewable for another
period of twenty-five (25) years upon mutual
This means foreigners who inherit through agreement of both lessor and lessee. (Sec. 1, PD
intestate succession. It does not extend to testate 471)
succession for otherwise the Constitutional
prohibition will be for naught and meaningless. Foreign nationals can own condominium units
Any alien would be able to circumvent the
prohibition by paying money to a Philippine They can own Philippine real estate through the
landowner in exchange for a devise of a piece of purchase of condominium units or townhouses
land. (Ramirez v. Ramirez, GR No. L-27952, constituted under the Condominium principle
February 15, 1982) with Condominium Certificates of Title as long as
the alien interest in such corporation does not
287
POLITICAL LAW
exceed the limits imposed by existing laws. (Sec. 5, physician’s oath and to enter their names in
RA 4726) the rolls of the PRC. Decide.
It expressly allows foreigners to acquire A: I will dismiss the special civil action for
condominium units and shares in condominium mandamus. The Board of Medicine shall sign and
corporations up to not more than 40% of the total issue certificates of registration to those who have
and outstanding capital stock of a Filipino-owned satisfactorily complied with the requirements of
or controlled corporation. As long as the 60% of the Board. Thus, when an examinee satisfies the
the members of this Condominium Corporation requirements for the grant of his physician’s
are Filipino, the remaining members can be license, the Board is obliged to administer to him
foreigners. (Jacobus Bernhard Hulst v. PR Builders, his oath and register him as a physician, pursuant
Inc., GR No. 156364, September 25, 2008) to the Medical Act of 1959. (PRC v. De Guzman, GR
No. 144681, June 21, 2004)
PRACTICE OF PROFESSIONS
Requirement for Foreigners to Practice of
Practice of Profession in the Philippines Medicine in the Philippines
GR: The practice of all professions in the A foreign citizen is required to submit competent
Philippines shall be limited to Filipino citizens. and conclusive documentary evidence, confirmed
(Sec. 14, Art. XII, 1987 Constitution) by the Department of Foreign Affairs (DFA),
showing that his countrys existing laws permit
XPN: Save in cases prescribed by law. citizens of the Philippines to practice medicine
under the same rules and regulations governing
Reciprocity Clause citizens thereof. (Board of Medicine v. Yasuyuki
Ota, GR No. 166097, July 14, 2008; Sec. 9, RA No.
A foreigner may practice profession in the 2382 “Medical Act of 1959”)
Philippines if there is a reciprocity provision
provided in laws regulating a profession. Q: Yasuyuki Ota, a Japanese national residing
in the Philippines, graduated from Bicol
Regulation of the Practice of Medicine Christian College of Medicine with a degree of
Doctor of Medicine. He filed an application to
It is long established rule that a license to practice take the medical board examinations in order
medicine is a privilege or franchise granted by the to obtain a license. He submitted the Medical
government. However, the power to regulate the Practitioners Law of Japan duly authenticated
exercise of a profession or pursuit of an by the Consul General of the Philippine
occupation cannot be exercised by the State or its Embassy to Japan. After passing the board
agents in an arbitrary, despotic, or oppressive exams, the Board of Medicine denied Ota’s
manner. (PRC v. De Guzman, GR No. 144681, June request for a license to practice medicine in the
21, 2004) Philippines on the ground that no reciprocity
can be found in the law of Japan as there are no
Q: Graduates of Fatima College of Medicine Filipinos who can possibly practice there. Ota
passed the Physician Licensure Exam in 1993 filed a petition for mandamus against the
conducted by the Board of Medicine. The Board Board. Decide.
observed that the grades of 79 successful
examinees from the said college in the most A: I will grant the mandamus. It is enough that the
difficult subjects were unusually and laws in the foreign country permit a Filipino to get
exceptionally high. The PRC asked the NBI to license and practice therein. Requiring
investigate the irregularity. The NBI found that respondent to prove first that a Filipino has
the questionable passing rate of Fatima already been granted license and is actually
examinees leads to the conclusion that they practicing therein unduly expands the
gained early access to the test questions. The requirements provided for under the Medical Act.
Board issued a resolution withholding the It merely requires a foreign citizen to submit
registration as physicians of all the examinees competent and conclusive documentary evidence,
from Fatima College of Medicine. The confirmed by the Department of Foreign Affairs
examinees filed a special civil action for (DFA), showing that his countrys existing laws
mandamus against the Board of Medicine permit citizens of the Philippines to practice
praying that they be ordered to administer the medicine under the same rules and regulations

2019 GOLDEN NOTE S
governing citizens thereof. (Board of Medicine v. favor certain groups, to the prejudice of others or
Yasuyuki Ota, GR No. 166097, July 14, 2008; Sec. 9, to the prejudice of the interests of the country.
RA No. 2382 “Medical Act of 1959”) (Philippine Society for the Prevention of Cruelty to
Animals v. COA, GR No. 169752, September 25,
Practice of Law 2007)
Only Filipino citizens may be admitted to the Creation of GOCCs

Philippine bar and therefore, practice law. (Rule
138, Rules of Court) GOCC may be created or established by special
charters in the interest of the common good and
Filipino citizenship is a continuing subject to the test of economic viability. (Sec. 17,
requirement for practice of law Art. XII, 1987 Constitution)
Filipino citizenship is a requirement to the bar and NOTE: See extensive discussion of GOCCs under
is, in fact, a continuing requirement for the Public Corporations.
practice of law. The loss thereof means
termination of the petitioner’s membership in the MONOPOLIES, RESTRAINT OF TRADE, AND
bar; ipso jure the privilege to engage in the UNFAIR COMPETITION
practice of law. (In Re: Petition to Re-Acquire the
Privilege to Practice Law in the Philippines, Epifanio Monopoly
B. Muneses, BM No. 2112, July 24, 2012)
A privilege or peculiar advantage vested in one or
Reacquisition of Filipino Citizenship to more persons or companies, consisting in the
Practice Law exclusive right (or power) to carry on a particular
business or trade, manufacture a particular article,
A Filipino lawyer who becomes a citizen of another or control the sale of a particular commodity.
country and later re-acquires his Philippine (Agan, Jr. v. PIATCO, G.R. No. 155001, May 5, 2003)
citizenship under RA No. 9225, remains to be a
member of the Philippine Bar. However, the right State policy regarding monopolies
to resume the practice of law is not automatic. A
person who intends to practice his profession in The State shall regulate or prohibit monopolies
the Philippines must apply with the proper when the public interest so requires. No
authority for license or permit to engage in such combination in restraint of trade or unfair
practice. (Petition for Leave to Resume Practice of competition shall be allowed. (1987 Constitution,
Law, Benjamin Dacanay, BM No. 1678, December Art. XII, Sec. 16)
17, 2007)
Test on whether there is unlawful machination
ORGANIZATION AND REGULATION OF or combination in restraint of trade
CORPORATIONS, PRIVATE AND PUBLIC
Whether under the particular circumstances of the
Proscription on Congress to Create Private case and the nature of the particular contract
Corporations involved, such contract is, or is not, against public
policy. (Avon v. Luna, G.R. No. 153674, Dec. 20,
The congress shall not, except by general law, 2006)
provide for the formation, organization, or
regulation of private corporations. (Sec. 16, Art. XII, NOTE: The phrase “unfair foreign competition and
1987 Constitution) trade practices” is not to be understood in a
limited legal and technical sense, but in the sense
Rationale for the proscription of anything that is harmful to Philippine
enterprises. At the same time, however, the
The proscription is to prevent the pressure of intention is not to protect local inefficiency. Nor is
special interests upon the law-making body in the the intention to protect local industries from
creation of corporations or in the regulation of the foreign competition at the expense of the
same. To permit the law-making body by special consuming public.
law to provide for the organization, formation, or
regulation of private corporations would be in Essence of the provision
effect to offer to it the temptation in many cases to
289
POLITICAL LAW
Sec. 19 is anti-trust in history and spirit. Only
competition which is fair can release the creative
forces of the market. Competition is thus the
underlying principle of Section 19, Article XII.
The objective of anti-trust law is ‘to assure a

competitive economy based upon the belief that
through competition, producers will strive to
satisfy consumer wants at the lowest price with
the sacrifice of the fewest resources. Additionally,
there is reliance upon “the operation of the
‘market’ system (free enterprise) to decide what
shall be produced, how resources shall be
allocated in the production process, and to whom
various products will be distributed. The market
system relies on the consumer to decide what and
how much shall be produced, and on competition,
among producers who will manufacture it.
(Energy Regulatory Board v. CA G.R. No. 113079,
April 20, 2001)
Regulation of monopolies
Monopolies are not per se prohibited by the

Constitution. It may be permitted to exist to aid the
government in carrying on an enterprise or to aid
in the interest of the public. However, because
monopolies are subject to abuses that can inflict
severe prejudice to the public, they are subjected
to a higher level of State regulation than an
ordinary business undertaking. (Agan, Jr. v.
PIATCO, G.R. No. 155001, May 5, 2003)
Allowance of contracts requiring exclusivity
Contracts requiring exclusivity are not per se void.

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

State
Although the Constitution enshrines free

enterprise as a policy, it nevertheless reserves to
the Government the power to intervene whenever
necessary for the promotion of the general
welfare, as reflected in Secs. 6 and 19 of Art. XII.
(Assoc. of Phil. Coconut Desiccators v. Phil. Coconut
Authority, G.R. No. 110526, February 10, 1998)

2019 GOLDEN NOTE S
Social Justice and Human Rights
5. Health
SOCIAL JUSTICE AND HUMAN RIGHTS 6. Women
7. Role and rights of people’s organization
Constitutional mandate 8. Human rights
Congress shall give highest priority to the Factors which must be weighed in regulating
enactment of measures that protect and enhance the relations between workers and employers
the right of all people to human dignity, reduce
social, economic, and political inequalities and 1. The right of labor to its just share in the
remove cultural inequities by equitably diffusing fruits of production.
wealth and political power for the common good. 2. The right of enterprises to reasonable
(Sec. 1, Art. XIII, 1987 Constitution) returns of investments, and to expansion
and growth. [1987 Constitution, Art XIII,
The promotion of social justice shall include the Sec. 3, par. (4)]
commitment to create economic opportunities
based on freedom of initiative and self-reliance. Provisions of the 1987 Constitution on women
(Sec. 2, Art. XIII, 1987 Constitution)
1. The State shall equally protect the life of
CONCEPT the mother and the life of the unborn from
conception. (1987 Constitution, Art. II, Sec.
Social justice 12)
2. The State recognizes the role of women in
Social justice is "neither communism, nor nation-building and shall ensure the
despotism, nor atomism, nor anarchy," but the fundamental equality before the law of
humanization of laws and the equalization of women and men. (1987 Constitution, Art.
social and economic forces by the State so that II, Sec. 14)
justice in its rational and objectively secular 3. The State shall protect working women by
conception may at least be approximated. Social providing safe and healthful working
justice means the promotion of the welfare of all conditions, taking into account their
the people, the adoption by the Government of maternal functions, and such faculties and
measures calculated to insure economic stability opportunities that will enhance their
of all the competent elements of society, through welfare and enable them to realize their
the maintenance of a proper economic and social full potential in the service of the nation.
equilibrium in the interrelations of the members (1987 Constitution, Art. XIII, Sec. 14)
of the community, constitutionally, through the
adoption of measures legally justifiable, or extra- Consultation requirement before urban and
constitutionally, through the exercise of rowers rural dwellers can be relocated
underlying the existence of all governments on the
time-honored principle of salus populi est suprema The urban and rural dwellers and the
lex. (Calalang vs. Williams, G.R. No. 47800, communities where they are to be relocated must
December 2, 1940) be consulted. Otherwise, there shall be no
resettlement. [1987 Constitution, Art. XIII, Sec. 10
Social justice does not champion division of (20)]
property or equality of economic status; what it
and the Constitution do guaranty are equality of People’s organizations
opportunity, equality of political rights, equality
before the law, equality between values given and People’s organizations are bona fide associations
received on the basis of efforts exerted in their of citizens with demonstrated capacity to promote
production. (Guido v. Rural Progress the public interest and with identifiable
Administration, G.R. No. L-2089, October 31, 1949) leadership, membership and structure. [Art. XIII,
Sec. 15 (2), 1987 Constitution]
Aspects of human life covered by Article XIII
The State shall respect the role of independent
1. Social justice and human rights people’s organizations to enable the people to
2. Labor pursue and protect, within the democratic
3. Agrarian and Natural Resources Reform framework, their legitimate and collective
4. Urban land reform and Housing
291
POLITICAL LAW
interests and aspirations through peaceful and
lawful means. What ESCR includes
Agrarian Reform Economic, social and cultural rights include the

rights to adequate food, to adequate housing, to
Refers to the redistribution of lands, regardless of education, to health, to social security, to take part
crops or fruits produced, to farmers and regular in cultural life, to water and sanitation, and to
farmworkers who are landless, irrespective of work.
tenurial arrangement, to include the totality of
factors and support services designed to lift the Source of ESCR
economic status of the beneficiaries and all other
arrangements alternative to the physical The primary international legal source of
redistribution of lands, such as production or economic, social and cultural rights is the
profit-sharing, labor administration, and the “International Covenant on Economic, Social
distribution of shares of stocks, which will allow and Cultural Rights” but few socio-economic
beneficiaries to receive a just share of the fruits of rights were already recognized under the
the lands they work. [R.A. 6657, Comprehensive “Universal Declaration on Human Rights.”
Agrarian Reform Law of 1988, Sec. 3(a)]
NOTE: It should be noted that various national
Right of Retention under Agrarian Reform laws and international treaties had already
codified many of the human rights we now call
The right of retention is a constitutionally economic, social and cultural rights prior to the
guaranteed right, which is subject to qualification adoption of the Universal Declaration of Human
by the legislature. It serves to mitigate the effects Rights in 1948.
of compulsory land acquisition by balancing the
rights of the landowner and the tenant and by Obligations of States on economic, social and
implementing the doctrine that social justice was cultural rights
not meant to perpetrate an injustice against the
landowner. (Delfino v. Anasao, G.R. No. 197486, The obligations of States in relation to economic,
September 10, 2014) social and cultural rights are expressed differently
from treaty to treaty. The International Covenant
ECONOMIC, SOCIAL, AND CULTURAL RIGHTS on Economic, Social and Cultural Rights requires
States “to take steps” to the maximum of their
Economic, social and cultural rights (ESCR) available resources to achieve progressively the
full realization of economic, social and cultural
Economic, social and cultural rights are those rights. The Covenant also requires States to
human rights relating to the workplace, social guarantee the enjoyment of economic, social and
security, family life, participation in cultural life, cultural rights without discrimination and to
and access to housing, food, water, health care and ensure the equal right of men and women to the
education. (Sarmiento, Human Rights Law/Human enjoyment of these rights. Other treaties or
Rights Culture, 2013) constitutions word obligations differently and
ESCR is interlinked with civil and political even include specific actions that States must take,
rights such as the adoption of legislation or the
promotion of these rights in public policies. (Office
Economic, social and cultural rights are part of the of the United Nations High Commissioner for
body of human rights law. They are also often Human Rights, Frequently Asked Questions on
referred to as second generation human rights. Economic, Social and Cultural Rights)
These rights are deeply intertwined with civil and
political rights, which are first generation rights. Q: Do economic, social and cultural rights
(Karel Vasak, Human Rights, 1977) make people dependent on welfare?
For example, the right to speak freely means little A: NO. One of the principal objectives of human
without a basic education, the right to vote means rights law is to empower individuals so that they
little if you are suffering from have the capacity and the freedom to live a life in
starvation. Similarly, the right to work means dignity. economic, social and cultural rights
little if you are not allowed to meet and assemble require much more than the provision of social
in groups to discuss work conditions. assistance, including the dismantling of social

2019 GOLDEN NOTE S
Social Justice and Human Rights
barriers that obstruct the full participation of (CHR Employees Association vs. CHR, G.R. No.
everyone in economic and social life. 155336 July 21, 2006)
COMMISSION ON HUMAN RIGHTS Powers and functions of CHR
Commission on Human Rights (CHR) Investigatory powers
It is an independent National Human Rights The CHR has the power to investigate all forms of
Institution (NHRI) created under the 1987 human rights violations involving civil and
Philippine Constitution, established on 05 May political rights and monitor the compliance by the
1987 by virtue of Executive Order No. 163. government with international treaty obligations
on human rights. (Sec. 18, Art. XIII, 1987
Mandate of CHR Constitution)
The Commission is mandated to conduct CHR cannot prosecute

investigations on human rights violations against
marginalized and vulnerable sectors of the society, In essence, the Commission’s power is only
involving civil and political rights. investigative. It has no prosecutorial power. For
prosecution, it must rely on the executive
Q: If CHR is created by the 1987 Constitution, is department.
it a constitutional commission?
CHR has no adjudicatory powers
A: NO. The creation of respondent may be
constitutionally mandated, but it is not, in the The Constitution clearly and categorically grants
strict sense, a constitutional commission. Article to the Commission the power to investigate all
IX of the 1987 Constitution, plainly entitled forms of human rights violations involving civil
"Constitutional Commissions," identifies only the and political rights. To investigate is not to
Civil Service Commission, the Commission on adjudicate or adjudge. The legal meaning of
Elections, and the Commission on Audit. The “investigate” is essentially to follow up step by
mandate for the creation of the respondent is step by patient inquiry or observation, to trace or
found in Section 17 of Article XIII of the 1987 track; to search into; to examine and inquire into
Constitution on Human Rights. (CHR Employees with care and accuracy; to find out by careful
Association vs. CHR, G.R. No. 155336 July 21, 2006) inquisition; examination; the taking of evidence; a
The CHR, although admittedly a constitutional legal inquiry. In the legal sense, “adjudicate”
creation is, nonetheless, not included in the genus means to settle in the exercise of judicial authority,
of offices accorded fiscal autonomy by either to determine finally and “adjudge” means to pass
constitutional or legislative fiat. (CHR Employees’ on judicially, to decide, settle or decree, or to
Association vs. CHR, G.R. No. 155336, November 25, sentence or condemn. (Cariño v. CHR, G.R. No.
2004) 96681, Dec. 2, 1991)
Fiscal autonomy of CHR is limited Q: Informal settlers and vendors have put up
structures in an area intended for a People's
Fiscal autonomy granted to the respondent by the Park, which are impeding the flow of traffic in
1987 Constitution and the Administrative Code of the adjoining highway. Mayor Cruz gave notice
1987 shall be limited only to the automatic and for the structures to be removed, and the area
regular release of its approved annual vacated within a month, or else, face
appropriations. demolition and ejectment. The occupants filed
a case with the Commission on Human Rights
The 1987 Constitution extends to respondent a (CHR) to stop the Mayor's move. The CHR then
certain degree of fiscal autonomy through the issued an order to desist against Mayor Cruz
privilege of having its approved annual with warning that he would be held in
appropriations released automatically and contempt should he fail to comply with the
regularly. However, it withholds from respondent desistance order. When the allotted time
fiscal autonomy, in its broad or extensive sense, as lapsed, Mayor Cruz caused the demolition and
granted to the Judiciary, constitutional removal of the structures. Accordingly, the
commissions, and the Office of the Ombudsman. CHR cited him for contempt. Is the CHR
empowered to declare Mayor Cruz in
293
POLITICAL LAW
contempt? Does it have contempt powers at A: The position of the Department of Public Works
all? and Highways and of the local government unit is
correct. As held in Export Processing Zone
A: NO. CHR does not possess adjudicative Authority v. Commission on Human Rights, 208
functions and therefore, on its own, is not SCRA 125 (1992), no provision in the
empowered to declare mayor in contempt for Constitution or any law confers on the
issuing the “order to desist”. However, under the Commission on Human Rights jurisdiction to
1987 Constitution, the CHR is constitutionally issue temporary restraining orders or writs of
authorized, in the exercise of its investigative preliminary injunction. The Commission on
functions, to "adopt its operational guidelines and Human Rights has no judicial power. Its powers
rules of procedure and cite for contempt for are merely investigatory.
violations thereof in accordance with the Rules of
Court." Accordingly, the CHR, in the course of an
investigation, may only cite or hold any person in
contempt and impose the appropriate penalties in
accordance with the procedure and sanctions
provided for in the Rules of Court. (Cariño v. CHR,
G.R. No. 96681, Dec. 2, 1991)
Absence of compulsory powers
It may not issue writs of injunction or restraining

orders against supposed violators of human rights
to compel them to cease and desist from
continuing their acts complained of. (Export
Processing Zone Authority v. CHR, GR No. 101476,
April 14, 1992)
Regarding its contempt powers, the CHR is
constitutionally authorized to "adopt its
operational guidelines and rules of procedure, and
cite for contempt for violations thereof in
accordance with the Rules of Court." That power
to cite for contempt, however, should be
understood to apply only to violations of its
adopted operational guidelines and rules of
procedure essential to carry out its investigatorial
powers. (Simon, Jr. v. CHR, G.R. No.100150, January
5, 1994)
Q: In order to implement a big government

flood control project, the Department of Public
Works and Highways (DPWH) and a local
government unit (LGU) removed squatters
from the bank of a river and certain esteros for
relocation to another place. Their shanties
were demolished. The Commission on Human
Rights (CHR) conducted an investigation and
issued an order for the DPWH and the LGU
to cease and desist from effecting the removal
of the squatters on the ground that the human
rights of the squatters were being violated. The
DPWH and the LGU objected to the order of the
CHR.
Resolve which position is correct. Reasons.

2019 GOLDEN NOTE S
Education, Science, Technology, Arts, Culture and Sports
EDUCATION, SCIENCE, TECHNOLOGY, ARTS,
CULTURE AND SPORTS Academic freedom shall be enjoyed in all
institutions of higher learning. (Sec. 5 (2), Art. XIV,
Arts and Culture 1987 Constitution)
Arts and letters shall enjoy the patronage of the Academic freedom of institutions of higher
State. The State shall conserve, promote, and learning is a freedom granted to “institutions of
popularize the nation’s historical and cultural higher learning” which is thus given a “wide
heritage and resources, as well as artistic sphere of authority certainly extending to the
creations. (Sec. 15, Art. XIV, 1987 Constitution) choice of students.” If such institution of higher
All the country’s artistic and historic wealth learning can decide who can and who cannot study
constitutes the cultural treasure of the nation and in it, it certainly can also determine on whom it can
shall be under the protection of the State which confer the honor and distinction of being its
may regulate its disposition. (Sec. 16, Art. XIV, 1987 graduates. Thus, a university can validly revoke a
Constitution) degree or honor it has conferred to a student after
graduation after finding that such degree or honor
Q: DMCI Project Developers, Inc. (DMCI-PDI) was obtained through fraud. (Garcia v. Faculty
acquired a huge lot in the City of Manila for the Admission Committee, Loyola School of Theology,
construction of the Torre de Manila G.R. No. L-40779, November 28, 1975)
condominium project, a 49-storey building
looming at the back of the Rizal Monument in Aspects of Academic Freedom
Luneta Park. The Knights of Rizal (KoR) filed a
Petition for Injunction against the 1. From the standpoint of the educational
construction, arguing that it will cause the institution – To provide that atmosphere
desecration of the Rizal Monument, which, as a which is most conducive to speculation,
National Treasure, is entitled to full protection experimentation and creation;
of the law. Is the KoR correct? 2. From the standpoint of the faculty –
a. Freedom in research and in the
A: NO. There is no law prohibiting the construction publication of the results, subject to
of Torre de Manila. Section 15, Article XIV of the the adequate performance of his
Constitution is not self-executory, Congress other academic duties
passed laws dealing with the preservation and b. Freedom in the classroom in
conservation of our cultural heritage, such as the discussing his subject less
National Cultural Heritage Act of 2009, which controversial matters which bear no
empowers the National Commission for Culture relation to the subject
and the Arts (NCCA) and other cultural agencies to c. Freedom from institutional
issue a cease and desist order "when the physical censorship or discipline, limited by
integrity of the national cultural treasures or his special position in the community
important cultural properties [is] found to be in
danger of destruction or significant alteration 3. From the standpoint of the student – Right
from its original state. This law declares that the to enjoy in school the guarantee of the Bill
State should protect the "physical integrity" of the of Rights. (Non v. Dames, G.R. No. 89317,
heritage property or building if there is "danger of May 20, 1990)
destruction or significant alteration from its
original state." Physical integrity refers to the Freedoms afforded to educational institutions
structure itself – how strong and sound the relating to its right to determine for itself on
structure is. The same law does not mention that academic grounds
another project, building, or property, not itself a
heritage property or building, may be the subject 1. Who may teach;
of a cease and desist order when it adversely 2. What may be taught;
affects the background view, vista, or sightline of a 3. How shall it be taught; and
heritage property or building. Thus, the law 4. Who may be admitted to study. (Miriam
cannot apply to the Torre de Manila condominium College Foundation v. CA, G.R. No. 127930,
project. (Knights of Rizal v. DMCI Homes, G.R. No. December 15, 2000)
213948, April 25, 2017)
Limitations on academic freedom
ACADEMIC FREEDOM
295
POLITICAL LAW
1. Police power of the State at a contrary conclusion to those of the authors
2. Social Interest of the community of the articles supposedly plagiarized. Beyond
this, however, the statement bore certain
This freedom of a university does not terminate remarks which raise concern for the Court. It
upon the “graduation” of a student, for it is reads: “An extraordinary act of injustice has
precisely the “graduation” of such a student that is again been committed against the brave
in question. An institution of higher learning Filipinas who had suffered abuse during a time
cannot be powerless if it discovers that an of war.”
academic degree it has conferred is not rightfully
deserved. The pursuit of academic excellence is Thus, the Court, in a Show Cause Resolution,
the university’s concern. It should be empowered, directed Dean Leonen, and several other
as an act of self-defense, to take measures to lawyers from UP Law to show cause, why they
protect itself from serious threats to its integrity. should not be disciplined as members of the
(UP Board of Regents v. CA, G.R. No. 134625, Aug. 31, Bar for violation of Canons 1, 11 and 13 and
1999) Rules 1.02 and 11.05 of the Code of
Professional Responsibility.
Q: Juan delos Santos, et al., students of De La
Salle University (DLSU) and College of Saint Does the Show Cause Resolution violate
Benilde are members of the “Domingo Lux respondents’ academic freedom as law
Fraternity”. They lodged a complaint with the professors?
Discipline Board of DLSU charging Alvin
Aguilar, et al. of Tau Gamma Phi Fraternity A: NO. It is not contested that respondents (UP
with “direct assault” because of their Law professors) are, by law and jurisprudence,
involvement in an offensive action causing guaranteed academic freedom and indisputably,
injuries to the complainants, which were the they are free to determine what they will teach
result of a fraternity war. The DLSU-CSB Joint their students and how they will teach. As pointed
Discipline Board found Aguilar et al. guilty and out, there is nothing in the Show Cause Resolution
were meted the penalty of automatic that dictates upon respondents the subject matter
expulsion. Was DLSU within its rights in they can teach and the manner of their instruction.
expelling the students? Moreover, it is not inconsistent with the principle
of academic freedom for this Court to subject
A: NO. It is true that schools have the power to lawyers who teach law to disciplinary action for
instill discipline in their students as subsumed in contumacious conduct and speech, coupled with
their academic freedom. This power does not give undue intervention in favor of a party in a pending
them the untrammeled discretion to impose a case, without observing proper procedure, even if
penalty which is not commensurate with the purportedly done in their capacity as teachers.
gravity of the misdeed. If the concept of (RE: Letter of the UP Law Faculty, A.M. No. 10-10-4-
proportionality between the offense committed SC, March 8, 2011)
and the sanction imposed is not followed, an
element of arbitrariness intrudes. Thus, the Regulatory power of the Education Secretary
penalty of expulsion imposed by DLSU on Aguilar, as to teaching and non-teaching personnel of
et al. is disproportionate to their deeds. (DLSU v. private schools
CA, G.R. No. 127980, December 19, 2007)
The qualifications of teaching and non-teaching
Q: The counsel of the losing party in the case of personnel of private schools, as well as the causes
Vinuya, et al. v. Exec. Sec filed a Supplemental for the termination of their employment, are an
Motion for Reconsideration, in the said integral aspect of the educational system of
Decision, they posited their charge of private schools. It is thus within the authority of
plagiarism as one of the grounds for the Secretary of Education to issue a rule, which
reconsideration of the decision. A statement by provides for the dismissal of teaching and non-
the faculty of UP Law on the allegations of teaching personnel of private schools based on
plagiarism and misrepresentation in the SC their incompetence, inefficiency, or some other
entitled “Restoring Integrity” was submitted disqualification. (Leus v. St. Scholastica’s College
by the UP professors. They expressed Westgrove, G.R. No. 187226, January 28, 2015)
dissatisfaction over Justice Del Castillo’s
explanation on how he cited the primary Philippine Military Academy’s (PMA) authority
sources of the quoted portions and yet arrived to impose disciplinary measures

2019 GOLDEN NOTE S
Education, Science, Technology, Arts, Culture and Sports
PMA may impose disciplinary measures and

punishment, as it deems fit and consistent with the
peculiar needs of the Academy. Even without
express provision of a law, the PMA has regulatory
authority to administratively dismiss erring
cadets. As an academic institution, the PMA has the
inherent right to promulgate reasonable norms,
rules and regulations that it may deem necessary
for the maintenance of school discipline, which is
specifically mandated by Sec. 3 (2), Article XIV of
the 1987 Constitution. The PMA has the freedom
on who to admit (and, conversely, to expel) given
the high degree of discipline and honor expected
from its students who are to form part of the AFP.
The schools’ power to instill discipline in their
students is subsumed in their academic freedom
and that “the establishment of rules governing
university-student relations, particularly those
pertaining to student discipline, may be regarded
as vital, not merely to the smooth and efficient
operation of the institution, but to its very survival.
The dismissal of Cudia from the PMA due to being
2 minutes late for a class was affirmed. (Cudia v.
PMA, G.R. No. 211362, February 24, 2015)
It must be borne in mind that schools are

established, not merely to develop the intellect
and skills of the studentry, but to inculcate lofty
values, ideals and attitudes of the total man. Under
the rubric of "right to education," students have a
concomitant duty to learn under the rules laid
down by the school. Hence, as the primary training
and educational institution of the AFP, the PMA
certainly has the right to invoke academic freedom
in the enforcement of its internal rules and
regulations, which are the Honor Code and the
Honor System. The Honor Code is a set of basic and
fundamental ethical and moral principle. It is the
minimum standard for cadet behavior and serves
as the guiding spirit behind each cadet's action.
Throughout a cadet's stay in the PMA, he or she is
absolutely bound thereto. (ibid.)
297
POLITICAL LAW
THE FAMILY accordance with their religious convictions and
the demands of responsible parenthood; and (b)
Policy statement the right of families or family associations to
participate in the planning and implementation of
The State recognizes the Filipino family as the policies and programs that affect them. The RH
foundation of the nation. Accordingly, it shall Law cannot infringe upon this mutual decision-
strengthen its solidarity and actively promote its making and endanger the institutions of marriage
total development. (Sec. 1, Art. XV, 1987 and the family. (Imbong vs. Ochoa, GR No. 204819,
Constitution) April 8, 2014)
Marriage, as an inviolable social institution, is the Curfew ordinances do not violate the right of
foundation of the family and shall be protected by parents to rear their children
the State. (Sec. 2, Art. XV, 1987 Constitution)
While parents have the primary role in
Duty of the family childrearing, it should be stressed that “when
actions concerning the child have a relation to the
The family has the duty to care for its elderly public welfare or the well-being of the child, the
members but the State may also do so through just State may act to promote these legitimate
programs of social security. (Sec. 4, Art. XV, 1987 interests.” As our Constitution itself provides, the
Constitution) State is mandated to support parents in the
exercise of these rights and duties. State authority
RIGHTS is therefore, not exclusive of, but rather,
complementary to parental supervision. As parens
Obligation of the state patriae, the State has the inherent right and duty
to aid parents in the moral development of their
The State shall defend: children. It should be emphasized that the Curfew
Ordinances apply only when the minors are not —
(1) The right of spouses to found a family in whether actually or constructively —
accordance with their religious accompanied by their parents. The only aspect of
convictions and the demands of parenting that the Curfew Ordinances affects is the
responsible parenthood; parents’ prerogative to allow minors to remain in
(2) The right of children to assistance, public places without parental accompaniment
including proper care and nutrition, and during the curfew hours. In this respect, the
special protection from all forms of ordinances neither dictate an overall plan of
neglect, abuse, cruelty, exploitation and discipline for the parents to apply to their minors
other conditions prejudicial to their nor force parents to abdicate their authority to
development; influence or control their minors’ activities.
(3) The right of the family to a family living (SPARK vs. Quezon City, GR 225442, August 8,
wage and income; and 2017, PER J. PERLAS-BERNABE)
(4) The right of families or family
associations to participate in the planning
and implementation of policies and
programs that affect them. (Sec. 3, Art. XV,
1987 Constitution)
RH law violates the Sec. 3, Art. XV of the

Constitution
Sec. 23(a)(2)(i) of the Reproductive Health Law,

which permits RH procedures even with only the
consent of the spouse undergoing the procedure,
disregarding spousal consent, intrudes into
marital privacy and autonomy, and goes against
the constitutional safeguards for the family as the
basic social institution. It particularly violates Sec.
3, Art. XV, which mandates the State to defend (a)
the right of spouses to found a family in

2019 GOLDEN NOTE S
Amendments or Revisions of the Constitution
AMENDMENTS OR REVISIONS OF THE
CONSTITUTION Tests to determine whether a proposed change
is an amendment or a revision
Amendment vs. Revision
1. Quantitative test – Asks whether the
BASIS AMENDMENT REVISION proposed change is so extensive in its
provisions as to change directly the
An isolated or A revamp or
‘substantial entirety’ of the Constitution by
piecemeal rewriting of
the deletion or alteration of numerous
change by the whole
existing provisions.
adding, instrument,
deleting, or altering the
Definition 2. Qualitative test – Asks whether the change
reducing substantial
will accomplish such far reaching changes in
without entirety of the
the nature of our basic governmental plan as
altering the Constitution.
to amount to a revision. (Lambino v. Comelec,
basic principles
G.R. No. 174153, October 25, 2006)
involved.
PROCEDURE TO AMEND OR REVISE THE CONSTITUTION
BASIS CONSTITUENT CONSTITUTIONAL PEOPLE’S INITIATIVE

ASSEMBLY (ConAss) CONVENTION (ConCon)
How proposed By Congress, 1. By Congress, upon a vote of By the people, upon a petition
acting as 2/3 of ALL its members (to thru a plebiscite (at least 12%
Constituent call for a ConCon); OR of the TOTAL number of
Assembly upon 2. By Congress, upon a registered voters, of which
a vote of ¾ of majority vote of ALL its every legislative district must
ALL its members to submit to the be represented by 3% of the
members Electorate the question of registered voters therein
(2014 Bar) calling a ConCon (1987 Constitution, Art. XVII,
(+Plebiscite) (1987 Sec. 2) (+Full text of the
Constitution, Art. XVII, Sec. 3) proposed amendments
attached in the petition)
NOTE: No amendment shall be
NOTE: Although the law is authorized more than once
NOTE: Although the silent on whether the voting every five years thereafter.
law is silent on is done separately or jointly,
whether the voting is the prevailing view is for
done separately or separate voting as the
jointly, the prevailing Congress is bicameral.
view is for separate
voting as the
Congress is
bicameral.
Coverage Amendment or Revision Amendment ONLY
Legal 1. Manner of Proposal; or Propositions can be declared
Questions 2. Manner of calling ConCon null and void for violation of
(Subject - This is a case where Congress, acting as a ConAss, the Constitution.
to calls for a ConCon but does not provide details for the
Judicial calling of such ConCon, and Congress, in exercising its
Review) ordinary legislative power, may supply such details.
Political Substance of
Questions the proposal.
Whether ConAss or ConCon should initiate the
amendment or revision.
Limits No amendment be authorized
oftener than once every 5
299
POLITICAL LAW
years (1987 Constitution, Art.
XVII, Sec. 2).

2019 GOLDEN NOTES 300
Amendments or Revisions of the Constitution
Ratification b. Direct Initiative – The people themselves
filed the petition with the COMELEC and
Amendments or revisions to the Constitution by not with Congress.
Constituent Assembly or Constitutional
Convention shall be valid when ratified by a RA 6735 is INADEQUATE in covering the
majority of the votes cast in a plebiscite which system of initiative on amendments to the
shall be held not earlier than 60 days nor later than Constitution (2014 Bar)
90 days after the approval of such amendment or
revision. Under the said law, initiative on the Constitution is
confined only to proposals to amend. The people
Amendments by People’s Initiative shall be valid are not accorded the power to "directly propose,
when ratified by a majority of the votes cast in a enact, approve, or reject, in whole or in part, the
plebiscite which shall be held not earlier than 60 Constitution" through the system of initiative.
days nor later than 90 days after the certification They can only do so with respect to "laws,
by the COMELEC of the sufficiency of the petition. ordinances, or resolutions." Secondly, the Act does
not provide for the contents of a petition for
Requisites for a valid Ratification initiative on the Constitution. The use of the clause
"proposed laws sought to be enacted, approved or
1. Held in a plebiscite conducted under the rejected, amended or repealed" denotes that RA
Election Law; 6735 excludes initiative on the amendments of the
2. Supervised by COMELEC; and Constitution.
3. Only registered voters take part.
Also, while the law provides subtitles for National
Doctrine of Proper Submission Initiative and Referendum and for Local Initiative
and Referendum, no subtitle is provided for
Under this doctrine, there should be no piece-meal initiative on the Constitution. This means that the
submission to the people of proposed main thrust of the law is initiative and referendum
amendments to the Constitution. This is to enable on national and local laws. If RA 6735 were
them to make an intelligent appraisal thereof. intended to fully provide for the implementation
(Tolentino v. COMELEC, G.R. No. L-34150, of the initiative on amendments to the
October16, 1971) Constitution, it could have provided for a subtitle,
considering that in the order of things, the primacy
Initiative of interest, or hierarchy of values, the right of the
people to directly propose amendments to the
It is the power of the people to propose Constitution is far more important than the
amendments to the Constitution or to propose and initiative on national and local laws.
enact legislation.
While RA 6735 specially detailed the process in
Kinds of Initiative under the Initiative and implementing initiative and referendum on
Referendum Act (RA 6735) national and local laws, it intentionally did not do
so on the system of initiative on amendments to
4. Initiative on the Constitution – Refers to a the Constitution. (Defensor-Santiago v. COMELEC
petition proposing amendments to the G.R. No. 127325, March 19, 1997)
Constitution.
5. Initiative on statutes – Refers to a petition to Referendum
enact a national legislation.
6. Initiative on local legislation – Refers to a It is the power of the electorate to approve or
petition proposing to enact a regional, reject legislation through an election called for
provincial, municipal, city, or barangay law, that purpose.
resolution or ordinance. [RA 6735, Sec. 3 (a)]
Kinds of Referendum
NOTE: Sec. 3 (b) of RA 6735 provides for:
3. Referendum on Statutes - Refers to a petition
a. Indirect Initiative – Exercise of initiative by to approve or reject a law, or part thereof,
the people through a proposition sent to passed by Congress.
Congress or the local legislative body for 4. Referendum on Local Law – Refers to a
action. petition to approve or reject a law, resolution
301
POLITICAL LAW
or ordinance enacted by regional assemblies
and local legislative bodies.
Initiative vs. Referendum (2000 Bar)
BASIS INITIATIVE REFERENDUM

1. Propose
amendments
to the Approve or
Extent Constitution; reject
2. Propose and legislation
enact
legislation.
NOTE: The following are the limitations on

initiative or referendum:
c. No petition embracing more than one (1)

subject shall be submitted to the electorate.
d. Statutes involving emergency measures, the
enactment of which are specifically vested
in Congress by the Constitution, cannot be
subject to referendum until 90 days after
their effectivity. (RA 6735, Sec. 10)

Public International Law
PUBLIC INTERNATIONAL LAW Examples of obligations erga omnes
FUNDAMENTAL CONCEPTS 1. Outlawing of acts of aggression;

2. Outlawing of genocide;
Public International Law (PIL) 3. Basic human rights; and,
4. Protection from slavery and racial
It is a body of legal principles, norms and discrimination.
processes which regulates the relations of States
and other international persons and governs their JUS COGENS
conduct affecting the interest of the international
community as a whole. (Magallona, 2005) Also referred to as ‘peremptory norm of general
international law’.
Private International Law (PRIL) or Conflict of
Laws Literally means “compelling law.” A norm accepted
and recognized by the international community of
It is that part of law which comes into play when States as a whole as a norm from which no
the issue before the court affects some fact, event derogation is permitted and which can be
or transaction that is so clearly connected with a modified only by a subsequent norm of general
foreign system of law as to necessitate recourse to international law having the same character.
that system. (Sempio-Diy, Conflict of Laws, 2004 ed., (Vienna Convention on the Law of Treaties, Art. 53)
p. 1, citing Cheshire, Private International Law,
1947 ed., p. 6) Elements of jus cogens
Grand divisions of PIL 1. A norm accepted and recognized by

international community of states as a whole;
1. Laws of Peace – They govern normal relations 2. No derogation is permitted; and,
between States in the absence of war; 3. Which can only be modified by a subsequent
2. Laws of War – They govern relations between norm having the same character.
hostile or belligerent states during wartime;
and, Examples or norms with jus cogens in
3. Laws of Neutrality – They govern relations character
between a non-participant State and a
participant State during wartime or among 1. Laws on genocide;
non-participating States. 2. Principle of self-determination;
3. Principle of racial non-discrimination;
OBLIGATIONS ERGA OMNES 4. Crimes against humanity;
5. Prohibition against slavery and slave trade;
An obligation of every State towards the 6. Piracy; and
international community as a whole. All states 7. Torture.
have a legal interest in its compliance, and thus all
States are entitled to invoke responsibility for Distinguish Jus Cogens from Erga Omnes
breach of such an obligation. (Case Concerning The Obligation
Barcelona Traction, ICJ 1970)
1. All jus cogens rules create erga omnes
NOTE: Such obligations derive, for example, in obligations while only some rules creating
contemporary international law, from the erga omnes obligations are rules of jus
outlawing of acts of aggression, and of genocide, as cogens;
also from the principles and rules concerning the 2. With regard to jus cogens obligations the
basic rights of the human person, including emphasis is on their recognition by the
protection from slavery and racial discrimination. international community ‘as a whole,’ whilst
Some of the corresponding rights of protection with regard to obligations erga omnes the
have entered into the body of general emphasis is on their nature;
international law others are conferred by 3. The legal consequences of violations or rules
international instruments of universal or quasi- creating erga omnes obligations differ from
universal character. (Romulo v. Vinuya, G.R. No. those of breach of the rules of jus cogens in
162230, April 29, 2010) that in addition to the consequences deriving
303
POLITICAL LAW
from a breach of erga omnes obligations RELATIONSHIP BETWEEN INTERNATIONAL
further consequences, specified in Art. 53 of AND NATIONAL LAW
the Vienna Convention on the Law of Treaties
(VCLT), follow from violations of the rules of Monism (Monistic Theory)
jus cogens.
Both international law and domestic law are part
NOTE: According to Art. 53 of the VCLT, a treaty is of a single legal order; international law is
void if, at the time of its conclusion, it conflicts with automatically incorporated into each nation’s
a peremptory norm of general international law. legal system and that international law is
For the purposes of the present Convention, a supreme over domestic law.
peremptory norm of general international law is a
norm accepted and recognized by the Here, international laws or norms are applicable
international community of States as a whole as a within the municipal system even without a
norm from which no derogation is permitted and positive act of the state.
which can be modified only by a subsequent norm
of general international law having the same Dualism (Dualist or Pluralist Theory)
character.
This affirms that the international law and
EX AEQUO ET BONO municipal law are distinct and separate; each is
supreme in its own sphere and level of operation.
The concept of ex aequo et bono literally means
“according to the right and good” or “from equity An international norm or law must first be
and conscience.” transformed or adopted into the municipal system
through a positive act of the state.
A judgment based on considerations of fairness,
not on considerations of existing law, that is, to International law vs. Municipal law
simply decide the case based upon a balancing of
the equities. (Brownlie, 2003) BASIS INTERNATION MUNICIPAL
AL LAW LAW
NOTE: Under Art. 38 (1)(c) of the Statute of the Adopted by Issued by a
International Court of Justice (ICJ), equity is 1) a Enacting states as a political
general principle of international law; and 2) a Authority common rule of superior for
way of infusing elements of reasonableness and action. observance.
“individualised” justice whenever a law leaves a Regulate Regulate
margin of discretion to a Court in deciding a case. relations of relations of
states and other individuals
If the principle of equity is accepted, customary Purpose international among
law may be supplemented or modified in order to persons. themselves
achieve justice. (Kacrozowska, 2010) or with their
own states.
Under Art. 38(2) of the Statute of the ICJ, means Applies to the Applies to a
that a decision may be made ex aequo et bono, i.e. conduct of single
the court should decide the case not on legal States and country or
considerations but solely on what is fair and international nation and
reasonable in the circumstances of the case organizations, within a
(equity contralegem). However, the parties must Scope of their relations determined
expressly authorize the court to decide a case ex Application with each other territory and
auquo et bono. or, their to its
relations with inhabitants.
Art. 33 of the United Nations Commission on persons,
International Trade Law’s Arbitration Rules natural or
(1976) provides that the arbitrators shall juridical.
consider only the applicable law, unless the Derived Consists
arbitral agreement allows the arbitrators to principally from mainly of
consider ex aequo et bono, or amiable Source(s) treaties, enactments
compositeur. international from the
customs and lawmaking

general authority of the Constitution.
principles of each state.
law. In a situation however, where the conflict is
Resolved thru Redressed irreconcilable, and a choice has to be made
state-to-state thru local between a rule of international law and municipal
Remedy in law, jurisprudence dictates that municipal law
transactions. administrati
case of should be upheld by the municipal courts for the
ve and
violation reason that such courts are organs of municipal
judicial
processes. law and are accordingly bound by it in all
Collective Individual circumstances.
responsibility responsibilit
Reason: y The fact that international law has been made part
Scope of of the law of the land does not pertain to or imply
because it
Responsibili the primacy of international law over national or
attaches
ty municipal law in the municipal sphere. The
directly to the
state and not to doctrine of incorporation decrees that rules of
its nationals international law are given equal standing with,
Subject to Not subject but are not superior to, national legislative
judicial notice to judicial enactments. Accordingly, the principle of lex
before notice posterior derogat priori takes effect – a treaty may
international before repeal a statute and a statute may repeal a treaty.
tribunals. internationa
l tribunals In states where the Constitution is the highest law
(Vienna of the land, such as the Republic of the Philippines,
Convention both statutes and treaties may be invalidated if
Role in on the Law they are in conflict with the Constitution.
Internation of Treaties, (Secretary of Justice v. Hon. Ralph C. Lantion, G.R.
al Tribunals Art. 27; No. 139465, Jan. 18, 2000)
Permanent
Court of Examples of “generally accepted principles of
Internationa international law”
l Justice,
1931, Polish 1. Pacta sunt servanda;
Nationals in 2. Rebus sic stantibus;
Danzig - things remain as they are
Case). - opposite of pacta sund servanda
Doctrine of Incorporation 3. Par in parem non habet imperium;

- all states are sovereign equals
It means that the rules of international law form - an equal state cannot assume jurisdiction over
part of the law of the land and no further another equal state
legislative action is needed to make such rules
applicable in the domestic sphere. 4. State Immunity from Suit;
- a state (and its agents acting within their
The doctrine of incorporation is applied whenever official capacity) cannot be sued without its
municipal tribunals (or local courts) are consent
confronted with situations in which there appears
to be a conflict between a rule of international law 4. Right of states to self-defense; and
and the provisions of the Constitution or statute of 5. Right to self-determination of people.
the local state.
Doctrine of Transformation
Efforts should first be exerted to harmonize them,
so as to give effect to both since it is to be It provides that the generally accepted rules of
presumed that municipal law was enacted with international law are not per se binding upon the
proper regard for the generally accepted state but must first be embodied in legislation
principles of international law in observance of enacted by the lawmaking body and so
the Incorporation Clause in Section 2, Article II of transformed into municipal law. [Cruz,
305
POLITICAL LAW
International Law (2003 Ed.), p. 6] contain limitations on Philippine sovereignty.
The consideration in this partial surrender of
NOTE: This doctrine runs counter Art. II, Sec. 2 of sovereignty is the reciprocal commitment of
the 1987 Constitution, which states that “The other contracting States in granting the same
Philippines xxx adopts the generally accepted privilege and immunities to the Philippines.
principles of international law as part of the law of
the land xxx”. NOTE: For example, this kind of reciprocity in
relation to the principle of auto-limitation
Types of Transformation Theories characterizes the Philippine commitments under
WTO-GATT. (Ibid.)
1. Hard Transformation Theory – Only legislation
can transform international law into domestic SOURCES OF OBLIGATIONS IN
law. Courts may apply international law only INTERNATIONAL LAW
when authorized by legislation; and,
2. Soft Transformation Theory – Either a judicial Art. 38 of the Statute of International Court of
or legislative act of a state can transform Justice (SICJ) provides that the Court, whose
International Law into domestic law. function is to decide in accordance with
international law such disputes as are submitted
Pacta Sunt Servanda (2000 Bar) to it, shall apply:
International agreements must be performed in Primary Sources (2012 Bar)

good faith. A treaty engagement is not a mere
moral obligation but creates a legally binding 1. International conventions or treaties;
obligation on the parties. A state which has 2. International custom; and
contracted a valid international agreement is 3. The general principles of law recognized by
bound to make in its legislation such modification civilized nations
as may be necessary to ensure fulfillment of the
obligation undertaken. Subsidiary Sources
Principle of Auto-Limitation (2006 Bar) 1. Judicial decisions; and

2. Teachings of the most highly qualified
It is the doctrine where a state adheres to publicists of various nations.
principles of international law as a
limitation/restriction to the exercise of its INTERNATIONAL CONVENTIONS OR TREATIES
sovereignty.
(See discussions under the heading Treaties, and the
NOTE: While sovereignty has traditionally been Vienna Convention on the Law of Treaties)
deemed absolute and all-encompassing on the
domestic level, it is however subject to INTERNATIONAL CUSTOM OR CUSTOMARY
restrictions and limitations voluntarily agreed to INTERNATIONAL LAW (CIL)
by the Philippines, expressly or impliedly, as a
member of the family of nations. By the A custom is a practice which has grown between
doctrine of incorporation, the country is bound by states and has come to be accepted as binding by
generally accepted principles of international law, the mere fact of persistent usage over a long
which are considered to be automatically part of period of time. [Cruz, International Law (2003 Ed.),
our own laws. Thus, sovereignty of a state is not p. 22]
absolute in an international level.
A customary rule requires the presence of two
Corollary, a state has agreed to surrender some if elements:
its sovereign rights in exchange for greater
benefits that it may derive by being a member of 1. An objective element (general practice)
family of nations or by virtue of treaty stipulations. consisting of a relatively uniform and constant
Correlation of Reciprocity and the Principle of State practice; and,
Auto-Limitation
2. A psychological element consisting of
When the Philippines enters into treaties, subjective conviction of a State that it is legally
necessarily, these international agreements may bound to behave in a particular way in respect

of a particular type of situation. This element is customary international law bears the burden of
usually referred to as the opinio juris sive proving it meets both requirements (objective and
necessitates. psychological elements).
The Objective Element – general practice Binding effect of international customs
This is normally constituted by the repetition of GR: All States are bound by international customs,
certain behavior on the part of a State for a certain including Dissenting States.
length of time which manifests a certain attitude,
without ambiguity, regarding a particular matter. XPN: Dissenting States are not bound by
Evidence of state practice may include a codifying international customs if they had consistently
treaty, if a sufficient number of states sign, ratify, objected to it while the project was merely in the
or accede. process of formation (Persistent Objector Rule).
However, as no particular duration is required Dissent, however protects only the dissenter and
for practice to become law, on some occasions, does not apply to other States. A State joining the
instant customs comes into existence. For that international law system for the first time after a
reason, a few repetitions over a short period of practice has become customary law is bound by
time may suffice or many over a long period of such practice.
time or even no repetition at all in so far as an
instant custom is concerned. However, the shorter Persistent Objector Rule
the time, the more extensive the practice would
have to be to become law. If during the formative stage of a rule of customary
international law, a State persistently objects to
A practice must be constant and uniform, in that developing rule it will not be bound by it. Once
particular with regard to the affected States, but a customary rule has come into existence, it will
complete uniformity is not required. It would apply to all States except any persistent objectors.
suffice that conduct is generally consistent with However, an objecting State, in order to rely on the
the rule and that instances of practice inconsistent persistent objector rule, must:
with the rule are treated as breaches of that
practice is concerned, this will usually mean 1. Raise its objection at the formative stage of
widespread but not necessarily universal the rule in question;
adherence to the rule. 2. Be consistent in maintaining its objection;
and,
Indeed, custom may be either general or regional. 3. Inform other States of its objection. This is
General customs apply to the international particularly important with regard to a rule
community as a whole. Local or regional which has been almost universally accepted.
customs apply to a group of States or just two If a State remains silent, its silence will be
States in their relations inter se. interpreted as acquiescence to the new rule.
The Subjective Element – opinio juris sive NOTE: The burden of proof is on the objecting
necessitates State. The persistent objector rule does not apply
if the CIL has already evolved into a jus cogens rule.
To assume the status of CIL, the rule in question
must be regarded by States as being binding in The relationship between treaties and
law, i.e. that they are under a legal obligation to international custom
obey it.
They co-exist, develop each other and, sometimes,
The main purpose of the opinio juris sive clash. If there is a clash between a customary rule
necessitates is to distinguish between customary and a provision of a treaty because they are of
rule and mere usage followed out of courtesy or equal authority (except when the customary rule
habit. Usage, while also a long established way of involved is of a jus cogens nature whereupon being
doing things, is not coupled with opinion juris superior it will prevail), the one which is identified
(conviction that it is obligatory and right). as being the lex specialis will prevail. The lex
specialis will be determined contextually.
NOTE: In the North Sea Continental Shelf Cases,
the ICJ stated that the party asserting a rule of Treaties resulting to rules of customary law
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POLITICAL LAW
therefore, strictly speaking not a formal source of
Treaties may give rise to rules of customary law law. However, they clarify the existing law on the
when the following conditions are present: topic and may, in some circumstances, create a
new principle in international law. They can also
1. The provisions of the treaty should be be considered evidence of State practice.
fundamentally norm-creating in character;
2. Participation in the treaty or convention Judicial decisions, whether from international
must include those States whose interest tribunals or from domestic courts, are useful to the
would be affected by the provision in extent they address international law directly or
question; and, demonstrate a general principle.
3. Within the period of time since the adoption
of the treaty or convention, State practice Art. 59 of the Statute of the ICJ, provides that:
must have been both extensive and uniform.
“decisions of the courts have no binding force,
NOTE: The party invoking the rule must be the one except for the parties and in respect of the case
to prove that the rule meets all the requirements concerned.”
for the creation of customary law
This provision shows that:
The treaty may also reflect a custom in three ways:
1. Decision of the ICJ has no binding
1. It may be declarative of a custom; or, authority; and,
2. It may crystallize a rule of custom in statu 2. ICJ does not make law.
nascendi; or,
3. It may serve to generate a rule of customary NOTE: In practice, the ICJ will follow the previous
law in the future. decisions so as to have judicial consistency, or if it
does not follow, the court will distinguish its
GENERAL PRINCIPLES OF LAW previous decisions from the case actually being
heard. (Interpretation of Peace Treaties, 1950)
The general principles of law are mostly derived
from the law of nature and are observed by the TEACHING OF AUTHORITATIVE PUBLICISTS
majority of states because they are believed to be (Including Learned Writers)
good and just. [Cruz, International Law (2003 Ed.),
p 24] “Teachings” refer simply to the writings of learned
scholars. However, the Article 38(1)(d) of the ICJ
Reference to such principles is taken whenever no is expressly limited to teachings of “the most
municipal law, custom or treaty is applicable, as highly qualified publicists.”
directed under Art. 38 of the ICJ. In order to exist,
they must be recognized by civilized nations. Such works are resorted to by judicial tribunals
not for the speculation of their authors
NOTE: The main objective of inserting the third concerning what the law ought to be, but for
source in Art. 38 is to fill in gaps in treaty and trustworthy evidence of what the law really is.
customary law and to meet the possibility of a non (Justice Gray in Paquete Habana case, 175 U.S.
liquet. 677)
Non liquet means the possibility that a court or Requisites to be a most highly qualified
tribunal could not decide a case because of a ‘gap’ publicist:
in law.
1. His writings must be fair and impartial
e.g.: Burden of proof, admissibility of evidence, representation of law; and,
waiver, estoppel, unclean hands, necessity, and 2. He/she acknowledged authority in the field.
force majeure.
e.g.: Grotius, Lauterpacht, Oppenheim, Crawford,
DECISIONS OF INTERNATIONAL TRIBUNALS Aust, Shaw, and Brownlie. Authoritative sources
within this list include the writings of former
As there is no binding authority of precedent in Judges, the secondary opinions of Judges who are
international law, international court and tribunal not in the majority of their cases, and documents
cases do not make law. Judicial decisions are, created by the International Law Commission.

Within the context of a specific field, there are source of international law despite the fact that it
additional scholars who would be regarded as may produce significant legal effects.
“highly qualified publicists.”
Q: Ang Ladlad is incorporated in 2003, and first
Burdens of Proof applied for registration with the COMELEC in
2006. The application for accreditation was
In the Corfu Channel Case (U.K. v. Albania, 1949), denied on the ground that the organization had
the ICJ set out the burdens of proof applicable to no substantial membership base. On August
cases before it. The Applicant normally carries the 17, 2009, Ang Ladlad again filed a Petition for
burden of proof with respect to factual allegations registration with the COMELEC. On November
contained in its claim by a preponderance of the 11, 2009, after admitting the petitioner’s
evidence. The burden falls on the Respondent evidence, the COMELEC (Second Division)
with respect to factual allegations contained in a dismissed the Petition on moral grounds. In
cross-claim. However, the Court may draw an this Petition before the Court, Ang Ladlad
adverse inference if evidence is solely in the invokes that the Yogyakarta Principles - a set
control of one party that refuses to produce it. of international principles relating to sexual
orientation and gender identity, intended to
Hard law (2009 Bar) address documented evidence of abuse of
rights of lesbian, gay, bisexual, and
Means binding laws; to constitute law, a rule, transgender (LGBT) individuals, reflects
instrument or decision must be authoritative and binding principles of international law. Can the
prescriptive. In international law, hard law Court consider these principles as binding
includes treaties or international agreements, under international law?
as well as customary laws. These instruments
result in legally enforceable commitments for A: NO, the Court cannot rely on the application of
countries (states) and other international the Yogyakarta Principle.
subjects.
There are declarations and obligations outlined in
Soft law (2009 Bar) said Principles which are not reflective of the
current state of international law, and do not find
These are non-binding rules of international law. basis in any of the sources of international law
Soft law is of relevance and importance to the enumerated under Article 38(1) of the Statute of
development of international law because it: the International Court of Justice. Petitioner also
has not undertaken any objective and rigorous
1. has the potential of law-making, i.e. it may be analysis of these alleged principles of
a starting point for later ‘hardening’ of non- international law to ascertain their true status.
binding provisions (e.g. UNGA resolutions
may be translated into binding treaties); International law is full of principles that promote
2. may provide evidence of an existing international cooperation, harmony, and respect
customary rule; for human rights, most of which amount to no
3. may be formative of the opinio juris or of State more than well-meaning desires, without the
practice that creates a new customary rule; support of either State practice or opinio juris.
4. may be helpful as a means of a purposive These principles are at best - de lege ferenda - and
interpretation of international law; do not constitute binding obligations on the
5. may be incorporated within binding treaties Philippines. Much of contemporary international
but in provisions which the parties do not law is characterized by the soft law nomenclature.
intend to be binding;
6. may in other ways assist in the development SUBJECTS
and application of general international law.
A subject of international law is an entity that has
NOTE: The importance of soft law is emphasized rights and responsibilities under that law. It has an
by the fact that not only States but also non-State international personality in that it can directly
actors participate in the international law-making assert rights and be held directly responsible
process through the creation of soft law. under the law of nations. It meant that it can be a
Nevertheless, soft law is made up of rules lacking proper party in transactions involving the
binding force, and the general view is that it should application of the law of nations among members
not be considered as an independent, formal of the international community. [Cruz,
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POLITICAL LAW
International Law (2003 Ed.), p. 27] nations among through the
members of instrumentalit
The subjects of international law: international y of an
communities. intermediate
1. Direct subjects agency.
a. States;
b. Colonies and dependencies; NOTE: Under the traditional concept, only states
c. mandates and trust territories (2003 are considered subjects of international law.
Bar); belligerent communities; However, under the contemporary concept,
d. The Vatican; individuals and international organizations are
e. The United Nations; international also subjects because they have rights and duties
administrative bodies; and under international law.
f. To a certain extent, individuals.
Q: Malaya Lolas have approached the Executive
2. Indirect subjects Department through the DOJ, DFA, and OSG,
a. International organizations; requesting assistance in filing a claim against
b. Individuals; and the Japanese officials and military officers who
c. Corporations. ordered the establishment of the “comfort
women” stations in the Philippines. But
3. Incomplete subjects officials of the Executive Department declined
a. Protectorates; to assist the petitioners,and took the position
b. Federal states; and that the individual claims of the comfort
c. Mandated and trust territories. women for compensation had already been
fully satisfied by Japan’s compliance with the
Object Peace Treaty between the Philippines and
Japan. May we force the government to pursue
They are those who indirectly have rights under, the claims of comfort women under the
or are beneficiaries of international law through doctrine of jus cogens?
subjects of international law.
A: NO, the Philippines is not under any
Subject vs. Object of International Law international obligation to espouse petitioners’
claims.
BASIS SUBJECT OBJECT
Entity that has Person or From a domestic law perspective, the Executive
rights and thing in Department has the exclusive prerogative to
responsibilitie respect of determine whether to espouse petitioner’s claims
s under that which rights against Japan. In the international sphere, the only
Definition
law. are held and means available for individuals to bring a claim
obligations within the international legal system has been
assumed by when the individual is able to persuade a
the subject. government to bring a claim on the individual’s
Has Not directly behalf. Even then, it is not the individual’s rights
international governed by that are being asserted, but rather, the state’s own
personality the rules of rights.
that it can international
Applicable directly assert law. The question whether the Philippine government
law rights and can should espouse claims of its nationals against a
be held foreign government is a foreign relations matter,
responsible the authority for which is demonstrably
under the law committed by our Constitution not to the courts
of nations. but to the political branches. In this case, the
It can be a Its rights are Executive Department has already decided that it
Capacity to proper party received and is to the best interest of the country to waive all
enter into in transactions its claims of its nationals for reparations against
transactio involving the responsibilitie Japan in the Treaty of Peace of 1951.
n application of s imposed
the law of indirectly The State is the sole judge to decide whether its

protection will be granted, to what extent it is Other suggested elements of a State
granted, and when will it cease. It retains, a
discretionary power the exercise of which may be 1. Civilization
determined by considerations of a political or 2. Recognition
other nature, unrelated to the particular case. The
International Law Commissions (ILCs) Draft Nation
Articles on Diplomatic Protection fully support
this traditional view. They (i) state that "the right Nation is defined as a body of people more or less
of diplomatic protection belongs to or vests in the of the same race, language, religion and historical
State,(ii) affirm its discretionary nature by traditions. (Fenwick 104; Sarmiento, 2007)
clarifying that diplomatic protection is a
"sovereign prerogative" of the State; and (iii) Doctrine of Equality of States
stress that the state "has the right to exercise
diplomatic protection on behalf of a national. It is All states are equal in international law despite of
under no duty or obligation to do so. (Vinuya v. their obvious factual inequalities as to size,
Romulo, G.R. No. 162230, April 28, 2010) population, wealth, strength, or degree of
civilization. (Sarmiento, 2007)
International Community
Principle of State Continuity
It is the body of juridical entities which are
governed by the law of nations. From the moment of its creation, the state
continues as a juristic being notwithstanding
NOTE: Under the modern concept, it is composed changes in its circumstances provided only that
not only of States but also of such other they do not result in loss of any of its essential
international persons such as the UN, the Vatican elements. (Sapphire Case, 11 Wall. 164 in Cruz,
City, colonies and dependencies, mandates and 2003)
trust territories, international administrative
bodies, belligerent communities and even Q: If State sovereignty is said to be absolute,
individuals. how is it related to the independence of other
States and to their equality on the
STATES international plane?
It is a community of persons, more or less A: From the standpoint of the national legal order,
numerous, permanently occupying a definite State sovereignty is the supreme legal authority in
portion of territory, independent of external relation to subjects within its territorial domain.
control, and possessing an organized government This is the traditional context in referring to
to which the great body of inhabitants render sovereignty as absolute. However, in international
habitual obedience. sphere, sovereignty realizes itself in the existence
of a large number of sovereignties, such that there
Elements of a State prevails in fact co-existence of sovereignties under
conditions of independence and equality.
1. Permanent population (people) – An (Magallona, 2004)
aggregate of individuals of both sexes, who
live together as a community despite racial or State sovereignty as defined in international
cultural differences; law
2. Defined territory – Fixed portion of the earth’s
surface which the inhabitants occupy; It is the right to exercise in a definite portion of the
3. Government – The agency through which the globe the functions of a State to the exclusion of
will of the state is formulated, expressed and another State. Sovereignty in the relations
realized; and between States signifies independence.
4. Capacity to enter into relations with other Independence in regard to a portion of the globe is
states (independence/sovereignty) – The the right to exercise therein to the exclusion of any
power of a state to manage its external affairs other State, the functions of a State. (Island of
without direction or interference from Palmas case: USA v. the Netherlands, April 4, 1928)
another state. (Montevideo Convention on the
Rights and Duties of States, Art. 1) Fundamental rights of a State
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POLITICAL LAW
1. Existence and self-preservation; c. Where a part of a State becomes a
2. Sovereignty and independence; separate State, property of the
3. Equality; predecessor State located in the territory
4. Property and jurisdiction; and, of the new State passes to the new State.
5. Diplomatic intercourse.
3. As to public debts – the agreement between
Extinguishment of a State predecessor and successor State govern;
otherwise:
The radical impairment of actual loss of one or a. Where a part of the territory of a State
more of the essential elements of the state will becomes part of the territory of another
result in its extinction. (Cruz, 2003) State, local public debt and the rights and
obligations of the predecessor State
Succession under contracts relating to that territory
are transferred to the successor State;
State succession takes place when one state b. Where a State is absorbed by another
assumes the rights and some of the obligations of State, public debt and the rights and
another because of certain changes in the obligations under contracts of the
condition of the latter. This holds true in the event absorbed State pass to the absorbing
that a state is extinguished or is created. (Cruz, State;
2000) c. Where a part of a State becomes a
separate State, local public debt and the
“Clean Slate” Rule rights and obligations of the predecessor
State under contracts relating to that
When one State ceases to exist and is succeeded by territory are transferred to the successor
another on the same territory, the newly State.
independent State is not bound to maintain in
force, or to become a party to, any treaty by reason 4. As to treaties
only of the fact that at the date of the succession of a. When part of the territory of a State
States the treaty was in force in respect of the becomes the territory of another State,
territory to which the succession of States relates. the international agreements of the
predecessor State cease to have effect in
XPNs respect of the territory and international
1. When the new State agrees to be bound by the agreements of the successor State come
treaties made by its predecessor; into force there.
2. Treaties affecting boundary regime (uti
possidetis); and NOTE: “Moving Treaty or Moving
3. Customary international law. Boundaries” Rule – A third State may seek
relief from the treaty on ground of rebus
Rules on state succession sic stantibus
1. As to territory – The capacities, rights and When a State is absorbed by another

duties of the predecessor State with respect to State, the international agreements of the
that territory terminate and are assumed by absorbed State are terminated and the
the successor State. international agreements of the
2. As to State property – The agreement between absorbing State become applicable to the
the predecessor and the successor State territory of the absorbed State.
govern; otherwise:
a. Where a part of the territory of a State NOTE: “Moving Treaty or Moving
becomes part of the territory of another Boundaries” Rule may apply.
State, property of the predecessor State
located in that territory passes to the b. When a part of a State becomes a new
successor State; State, the new State does not succeed to
b. Where a State is absorbed by another the international agreements to which the
State, property of the absorbed State, predecessor State was a party, unless,
wherever located, passes to the absorbing expressly or by implication, it accepts
State; or such agreements and the other party or
parties thereto agree or acquiesce; or,

c. Pre-existing boundary and other Eriberto Misa, ibid)
territorial agreements continue to be
binding notwithstanding (Uti possidetis NOTE: An inhabitant of a conquered State may be
rule). convicted of treason against the legitimate
sovereign committed during the existence of
Effects of a change of sovereignty on municipal belligerency. Although the penal code is a non-
laws political law, it is applicable to treason committed
against the national security of the legitimate
1. Laws partaking of a political complexion are government, because the inhabitants of the
abrogated automatically occupied territory were still bound by their
2. Laws regulating private and domestic rights allegiance to the latter during the enemy
continue in force until changed or abrogated occupation. Since the preservation of the
allegiance or the obligation of fidelity and
Effect of change of sovereignty when Spain obedience of a citizen or subject to his government
ceded the Philippines to the US or sovereign does not demand from him a positive
action, but only passive attitude or forbearance
The political laws of the former sovereign are not from adhering to the enemy by giving the latter aid
merely suspended but abrogated. As they regulate and comfort, the occupant has no power, as a
the relations between the ruler and the ruled, corollary of the preceding consideration, to repeal
these laws fall to the ground ipso facto unless they or suspend the operation of the law of treason.
are retained or re-enacted by positive act of the (Anastacio Laurel vs. Eriberto Misa, ibid)
new sovereign.
Succession of government
Non-political laws, by contrast, continue in
operation, for the reason also that they regulate There is succession of government where one
private relations only, unless they are changed by government replaces another either peacefully or
the new sovereign or are contrary to its by violent methods. The integrity of the state is not
institutions. (Cruz, Public International Law, 2014) affected; the state continues as the same
international person except only that its lawful
Effect of Japanese occupation to the representative is changed. (Cruz, 2000)
sovereignty of the US over the Philippines
Effects of a change of government
Sovereignty is not deemed suspended although
acts of sovereignty cannot be exercised by the 1. If the change is peaceful, the new government
legitimate authority. Thus, sovereignty over the assumes the rights and responsibilities of the
Philippines remained with the US although the old government;and,
Americans could not exercise any control over the 2. If the change was effected thru violence, a
occupied territory at the time. What the distinction must be made.
belligerent occupant took over was merely the a. Acts of political complexion may be
exercise of acts of sovereignty. (Anastacio Laurel denounced;and,
vs. Eriberto Misa, G.R. No. L-409, January 30, 1947) b. Routinary acts of mere governmental
administration continue to be effective.
Status of allegiance during Japanese
occupation Recognition
There was no case of suspended allegiance during It is the acknowledgment extended by a State to:
the Japanese occupation. Adoption of the theory 1. Another State;
of suspended allegiance would lead to 2. Government; or a
disastrous consequences for small and weak 3. Belligerent community
nations or states, and would be repugnant to the
laws of humanity and requirements of public Recognition is not an element of the State
conscience, for it would allow invaders to legally
recruit or enlist the quisling inhabitants of the The political existence of the state is independent
occupied territory to fight against their own of recognition by the other states. Even before
government without the latter incurring the risk of recognition, the state has the right to defend its
being prosecuted for treason. To allow suspension integrity and independence to provide for its
is to commit political suicide. (Anastacio Laurel vs. conservation and prosperity, and consequently to
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POLITICAL LAW
organize itself as it sees fit, to legislate upon its In Philippine setting: It is the President who
interests, administer its services, and to define the determines the question of recognition and his
jurisdiction and competence of its courts. The decisions on this matter are considered acts of
exercise of these rights has no other limitation state which are, therefore, not subject to judicial
than the exercise of the rights of other states review.
according to international law. (Montevideo
Convention on the Rights and Duties of States, Art. Basis of Authority of the President (TRiMP)
3)
a. Treaty-making power;
NOTE: The acknowledgment by a State is coupled b. Right in general to act as the foreign policy
with an indication of its willingness to deal with spokesman of the nation;
the entity as such under international law. c. Military power; and,
d. Power to send and receive diplomatic
1. To treat the new State as such; representatives.
2. To accept the new government as having
authority to represent the State it purports to NOTE: Being essentially discretionary, the
govern and maintain diplomatic relations exercise of these powers may not be compelled.
with it; and,
3. To recognize in case of insurgents that they Doctrine of Association (2010 Bar)
are entitled to exercise belligerent rights
(Hackworth, 166) It is formed when two states of unequal power
voluntarily establish durable links. In the basic
Kinds of Recognition model, one state, the associate, delegates certain
responsibilities to the other, the principal, while
1. Express recognition- may be verbal or in maintaining its international status as a state. Free
writing. It may be extended through: association represents a middle ground between
a. Formal proclamation or announcement; integration and independence.
b. Stipulation in a treaty;
c. Letter or telegram; or, NOTE: Republic of the Marshall Islands and the
d. Official call or conference. Federated States of Micronesia are formerly part
of the U.S. Administered Trust Territory of the
2. Implied recognition- it is when the recognizing Pacific Islands.
state enters into official intercourse with the
new member by: The associated state arrangement has usually
a. Exchanging diplomatic representatives been used as a transitional device of former
with it; colonies on their way to full independence.
b. Bipartite treaty;
c. Acknowledging its flag; or, e.g: Antigua, St. Kitts-Nevis-Anguilla, Dominica, St.
d. Entering into formal relations with it. Lucia, St. Vincent, and Grenada.
Theories of recognition of a State (2004 Q: Formal peace talks between the Philippine
Bar)(Con-Dec) Government and MILF resulted to the crafting
of the GRP-MILF Tripoli Agreement on Peace
1. Constitutive theory – Recognition is the last (Tripoli Agreement 2001) which consists of
indispensable element that converts the state three (3) aspects: a.) security aspect; b.)
being recognized into an international person; rehabilitation aspect; and c.) ancestral domain
and, aspect.
2. Declaratory theory – Recognition is merely an
acknowledgment of the pre-existing fact that Various negotiations were held which led to
the state being recognized is an international the finalization of the Memorandum of
person. (Cruz, 2003) Agreement on the Ancestral Domain (MOA-
AD). In its body, it grants “the authority and
Authority to recognize jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro” to the
It is to be determined according to the municipal Bangsamoro Juridical Entity (BJE). The latter,
law of each State. in addition, has the freedom to enter into any
economic cooperation and trade relation with

foreign countries. essential
requisites of a
The MOA-AD further provides for the extent of State at the
the territory of the Bangsamoro. With regard time
to governance, on the other hand, a shared recognition is
responsibility and authority between the extended.
Central Government and BJE was provided. Irrevocable. Revocable (if
The relationship was described as brought about
“associative.” Does the MOA-AD violate the As to its by violent or
Constitution and the laws? revocability unconstitutional
means).
A: YES. The concept of association is not
recognized under the present Constitution.
Indeed, the concept implies powers that go beyond Requirements for recognition of government
anything ever granted by the Constitution to any
local or regional government. It also implies the 1. The government is stable and effective, with
recognition of the associated entity as a state. The no substantial resistance to its authority;
Constitution, however, does not contemplate any 2. The government must show willingness and
state in this jurisdiction other than the Philippine ability to discharge its international
State, much less does it provide for a transitory obligations; and,
status that aims to prepare any part of Philippine 3. The government must enjoy popular consent
territory for independence. or approval of the people.
The provisions of the MOA indicate that the parties Tests in recognizing a new government
aimed to vest in the BJE the status of an associated
state or, at any rate, a status closely approximating 1. Objective test- the government must be able to
it (Province of North Cotabato v. GRP, G.R. No. maintain order within the state and repel
183591, October 14, 2008). external aggression; and
2. Subjective tests- government is willing to
Recognition of State vs. Recognition of comply with its international obligations
Government
Tobar or Wilson Doctrine (2004 Bar)
BASIS STATE GOVERNMENT
On a definite Person or a It precludes recognition to any government
territory of group of coming into existence by revolutionary means so
human persons capable long as the freely elected representatives of the
society of binding the people thereof have not constitutionally
politically state they claim reorganized the country.
organized, to represent.
independent Stimson Doctrine
and capable
of observing There iso recognition of a government established
the It does not carry through external aggression. (Nachura, 2009)
obligations with it the
of recognition of Estrada Doctrine (2004 Bar)
As to extent
international State.
law. It involves a policy of never issuing any
declaration giving recognition to governments and
It carries of accepting whatever government is in effective
with it the control without raising the issue of recognition. An
recognition inquiry into legitimacy would be an intervention
of in the internal affairs of another State.
government
Reason: The Wilson doctrine vs. Estrada doctrine
State
recognized In the Wilson or Tobar doctrine, a government
has all the established by means revolution, civil war, coup d’
etat or other forms of internal violence will not be
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POLITICAL LAW
recognized until the freely elected representatives 1. It may refer to the state of war between two
of the people have organized a constitutional (2) or more states. In which case, the states of
government, while in the Estrada doctrine any war are referred to as the belligerent states;
diplomatic representatives in a country where an and
upheaval has taken place will deal or not deal with 2. Actual hostilities amounting to civil war
whatever government is in control therein at the within a single state.
time and either action shall not be taken as a
judgment on the legitimacy of the said Requisites in recognizing belligerency (OSSO)
government.
1. There must be an Organized civil government
De jure recognition vs. De facto recognition directing the rebel forces;
(1998 Bar) 2. The rebels must occupy a Substantial portion
of the territory of the state;
BASIS RECOGNITIO RECOGNITIO 3. The conflict between the legitimate
N DE JURE N DE FACTO government and the rebels must be Serious,
Relatively Provisional making the outcome certain; and
permanent. (e.g.: duration 4. The rebels must be willing and able to
Duration Observe the laws of war.
of armed
struggle).
Vests title to Does not vest Legal Consequences of Belligerency
Entitlemen properties of title to
t to government properties of PERIOD EFFECT
properties abroad. government Before It is the legitimate government
abroad. Recognition that is responsible for the acts of
Brings about Limited to of the the rebels affecting foreign
Scope of parent nationals and their properties.
full diplomatic certain
Diplomatic
relations. juridical state
Power
relations. 1. The belligerent community is
considered a separate state
Effects of Recognition (FIPA) for the purposes of the
conflict it is waging against
1. Full diplomatic relations are established; the legitimate government;
EXP: Where the government recognized is de 2. Their relations for the
facto duration of hostilities be
2. Immunity from jurisdiction of courts of law of governed by the laws of
recognizing State; war;
3. Right to Possession of the properties of its 3. Troops of other belligerent
predecessor in the territory of the recognizing when captured, shall be
State ; and, After treated as prisoners of
recognition war;
NOTE: This is not applicable as to Recognition of the 4. Parent state shall no
of State. parent longer be liable for any
state damage that may be caused
4. All Acts of the recognized stated or to third parties by rebel
government are validated retroactively, government;
preventing the recognizing state from passing 5. Both belligerents may
upon their legality in its own courts. exercise the right to visit
and search upon neutral
Belligerency merchant vessels; and,
6. Both the rebel and the
It exists when the inhabitants of a State rise up in legitimate government shall
arms for the purpose of overthrowing the be entitled to full war
legitimate government or; when there is a state of status
war between two states. They are under obligation to
As to third observe strict neutrality and
Two (2) senses of belligerency: States abide by the consequences
arising from that position.

exercise of its functions and is derived from the
Insurgency vs. Belligerency treaty creating it. (Bernas, 2009)
BASIS INSURGENCY BELLIGERENCY NOTE: The term "international organization" is

A mere initial More serious generally used to describe an organization set up
stage of war. and widespread by agreement between two or more states. Under
It involves a and contemporary international law, such
rebel presupposes the organizations are endowed with some degree of
movement, existence of war international legal personality such that they are
As to and is usually between two or capable of exercising specific rights, duties and
nature not more states powers. They are organized mainly as a means for
recognized. (first sense) or conducting general international business in
actual civil war which the member states have an interest.
within a single
state (second "Specialized agencies" are international
sense). organizations having functions in particular fields.
Sanctions to Belligerency is (ICMC vs. Calleja, G.R. No. 85750, September. 28,
insurgency governed by the 1990)
are governed rules on
As to the by municipal international Q: What does the term “auxiliary status” of
applicable law – Revised law as the some international organizations entail?
law Penal Code, belligerents
i.e. rebellion. may be given A: The term “auxiliary status” of some
international international organizations, such as the Red Cross
personality. Society, means that it is at one and the same time
a private institution and a public service
Recognition of Belligerency organization because the very nature of its work
implies cooperation with the state. The PNRC, as a
Recognition of belligerency is the formal National Society of the International Red Cross
acknowledgment by a third party of the existence and Red Crescent Movement, can neither be
of a state of war between the central government “classified as an instrumentality of the state, so as
and a portion of that state. not to lose its character of neutrality” as well as its
independence, nor strictly as a private corporation
Q: When does belligerency exist? since it is regulated by international humanitarian
law and is treated as an auxiliary of the state.
A: Belligerency exists when a sizable portion of the (Liban v. Gordon, G.R. No. 175352, January 18,
territory of a state is under the effective control of 2011)
an insurgent community which is seeking to
establish a separate government and the Q: There has been an assassination on 17
insurgents are in de facto control of a portion of September 1948, by Jewish terrorist
the territory and population, have a political organizations, of the UN’s chief truce
organization, and are able to maintain such control negotiator, a Swedish national, Count Folke
and conduct themselves according to the laws of Bernardotte, and of the UN observer, a
war. For example, Great Britain recognized a state Frenchman, Colonel André Sé rot, while on an
of belligerency in the United States during the Civil official mission for the UN. They were
War. murdered in the eastern part of Jerusalem,
which was under Israeli control, at the time
INTERNATIONAL ORGANIZATIONS when Israel had proclaimed its independence
but had not yet been admitted to the UN. The
Bodies created by sovereign states and whose UN considered that Israel had neglected to
functioning is regulated by international law, not prevent or punish the murderers and wished
the law of any given country. They have functional to make a claim for compensation under
personality which is limited to what is necessary international law. The UN General Assembly
to carry out their functions as found in the sought the advice of the ICJ as to the legal
instruments of the organization. It is set up by capacity of the UN to make such a claim. Does
treaty among two or more states. It enjoys UN have a legal personality to make a claim?
immunity which is based on the need for effective
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POLITICAL LAW
A: Yes, UN has legal personality. economic, social and independent State, the
cultural development free association or
The Court held that the UN possessed a judicial within the framework integration with an
personality on the international plane and was of an existing State. independent State or
therefore capable of presenting such a claim with the emergence into
a view to obtaining reparation due in respect of the NOTE: Recognized any other political
damage caused to both its assets and its agents sources of status freely
(the so-called functional protection) – an objective international law determined by a
international legal personality operates erga establish that the right people which
omnes. to self-determination constitute modes of
of a people is normally implementing the
The Court has come to the conclusion that the fulfilled through right of self-
organization is an international person. That is not internal self- determination by that
the same thing as saying that it is a State, which it determination. people.
certainly is not, or that its legal personality and
rights and duties are the same as those of a State. NOTE: arises only in
Still less is it the same thing as saying that it is a the most extreme
‘super-state’, whatever that expression may mean. cases and, even then,
It does not even imply that all its rights and duties under carefully
must be upon that plane. What it does mean is that defined
it is a subject of international law and capable of circumstances.
possessing international rights and duties, and
that it has capacity to maintain its rights by Exceptional cases in which the right to external
bringing international claims. self-determination can arise, namely:
INDIVIDUALS 1. Where a State is under colonial rule;

2. Subject to foreign domination or exploitation
The modern trend in public international law is outside a colonial context; and,
the primacy placed on the worth of the individual 3. Blocked from the meaningful exercise of its
person and the sanctity of human rights. Slowly, right to internal self-determination. (Province
the recognition that the individual person may of North Cotabato v. GRP, G.R. No. 183591,
properly be a subject of international law is now October 14, 2008)
taking root. The vulnerable doctrine that the
subjects of international law are limited only to NOTE: The people’s right to self-determination
states was dramatically eroded towards the does not extend to a unilateral right of secession.
second half of the past century. For one, the
Nuremberg and Tokyo trials after World War II Right to Internal Self-Determination of
resulted in the unprecedented spectacle of Indigenous Peoples
individual defendants for acts characterized as
violations of the laws of war, crimes against peace, Indigenous peoples situated within States do not
and crimes against humanity. Recently, under the have a general right to independence or secession
Nuremberg principle, Serbian leaders have been from those states under international law, but they
persecuted for war crimes and crimes against do have the right amounting to the right to internal
humanity committed in the former Yugoslavia. self-determination. Such right is recognized by the
These significant events show that the individual UN General Assembly by adopting the United
person is now a valid subject of international law. Nations Declaration on the rights of Indigenous
(Government of Hong Kong Special Administrative Peoples (UNDRIP). (Province of North Cotabato v.
Region v. Hon. Olalia, G.R. No. 153675, April 19, GRP, ibid).
2007)
NOTE: The UNDRIP, while upholding the right of
Internal Self-Determination vs. External Self- indigenous peoples to autonomy, does not obligate
Determination States to grant indigenous peoples the near
independent status of an associated state. There is
Internal Self- External Self- no requirement that States now guarantee
Determination Determnation indigenous peoples their own police and internal
People of a states' Establishment of a security force, nor is there an acknowledgment of
pursuit of its political, sovereign and the right of indigenous peoples to the aerial

domain and atmospheric space. But what it
upholds is the right of indigenous peoples to the 1. Personal jurisdiction – the power exercised by
lands, territories and resources, which they have a state over its nationals
traditionally owned, occupied or otherwise used 2. Territorial jurisdiction – jurisdiction of a state
or acquired. (Province of North Cotabato v. GRP, over all persons and property within its
ibid.) jurisdiction
3. Land jurisdiction – jurisdiction over
Q: In 1947, the UN made the border between everything found within the terrestrial
Israel and Palestine known as the Green Line. domain of the state
Following the Palestinian Arab violence in 4. Maritime and fluvial jurisdiction – the internal
2002, Israel began the construction of the waters of a state are assimilated to the land
barrier that would separate West Bank from mass and subjected to the same degree of
Israel. Palestinians insisted that the fence is an jurisdiction exercised over the terrestrial
“apartheid fence” designed to de facto annex domain (i.e. enclosed waters such as the land-
the West Bank of Israel. The case was locked lakes, national rivers and man-made
submitted to the ICJ for an advisory opinion by canals)
the General Assembly of the United Nations 5. Contiguous zone – states have claimed
under resolution ES-10/14. Did Israel “protective jurisdiction” over contiguous zone
undermine the right of self-determination of or a zone of the high seas contiguous to its
the people of Palestine when it created the territorial sea to:
wall? a. prevent infringement of its
customs, fiscal, immigration or
A: YES. Construction of the wall severely impedes sanitary regulations within its
the exercise by the Palestinian people of its right territory or territorial sea; and
to self-determination. b. punish infringement of the above
regulations within its territory or
The existence of a “Palestinian people” is no longer territorial sea
in issue. Such existence has moreover been
recognized by Israel in the exchange of letters. The 6. Continental shelf – the coastal state has the
Court considers that those rights include the right sovereign right to explore the continental
to self-determination, as the General Assembly has shelf and to exploit its natural resources and
recognized on a number of occasions. The route for this purpose it may erect on it such
chosen for the wall gives expression in loco to the installations and equipment as may be
illegal measures taken by Israel with regard to necessary
Jerusalem and the settlements. Also, there were 7. Patrimonial Sea – also known as exclusive
further alterations to the demographic economic zone; all living and non-living
composition of the Occupied Palestinian Territory resources found therein belong exclusively to
resulting from the construction of the wall as it is the coastal state
contributing to the departure of Palestinian 8. Open seas – a state may exercise jurisdiction
population from certain areas. That construction, on the open seas in the ff:
along with measures taken previously, has been a. over its vessels;
said to severely impede the exercise by the b. over pirates;
Palestinian people of its right to self- c. in the exercise of the right of visit
determination, and is therefore a breach of Israel’s and search; and
obligation to respect that right. (ICJ Advisory d. under the doctrine of hot pursuit
Opinion on Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, July 9. Aerial jurisdiction – local state has jurisdiction
9, 2004) over the airspace above it to an unlimited
height
JURISDICTION OF STATES 10. Other territories – a state may, by virtue of
customary or conventional international law,
In Public International Law, it is the right of a State extend its jurisdiction beyond its territory and
to exercise authority over persons and things over territory not falling under its sovereignty
within its boundaries subject to certain [Cruz, International Law (2003 Ed.), p. 125-
exceptions. 140]
Kinds of jurisdictions BASIS OF JURISDICTION
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POLITICAL LAW
TERRITORIALITY PRINCIPLE Consequences of Statelessness (1995 Bar)
A state has absolute, but not necessarily exclusive, 1. No State can intervene or complain in behalf
power to prescribe, adjudicate and enforce rules of of the Stateless person for an international
conduct that occurs within its territory. (2005, delinquency committed by another State in
2009 Bar) inflicting injury upon him;
2. He cannot be expelled by the State if he is
NOTE: An aspect of this principle is the “Effects lawfully in its territory except on grounds of
Doctrine” – which provides that a state has national security or public order (1994 Bar);
jurisdiction over acts occurring outside its and
territory but having effects within it. 3. He cannot avail himself of the protection and
benefits of citizenship like securing for
Nationality Doctrine himself a passport or visa and personal
documents.
A State may exercise jurisdiction over its nationals,
with respect to their conduct, whether within or Rights of stateless persons
outside its territory.
A Stateless person is not entirely without right,
NATIONALITY AND STATELESSNESS protection or recourse under the Law of Nations.
Under the Convention in Relation to the Status of
NATIONALITY PRINCIPLE Stateless Persons, the contracting States agree to
accord the stateless persons within their
It is membership in a political community with all territories treatment at least as favorable as that
its concomitant rights and obligations. It is the tie accorded their nationals with respect to:
that binds the individual to his State, from which
he can claim protection and whose laws he is 1. Freedom of religion;
obliged to obey. 1. Access to the courts;
1. Rationing of products in short supply;
NOTE: Citizenship has a more exclusive meaning in 1. Elementary education;
that it applies only to certain members of the State 1. Public relief and assistance;
accorded more privileges than the rest of the 1. Labor legislation; and,
people who owe it allegiance. Its significance is 1. Social Security.
municipal, not international.
NOTE: They also agree to accord them treatment
Multiple Nationality not less favorable than that accorded to aliens
generally in the same circumstances. The
It is the possession by an individual of more than Convention also provides for the issuance of
one nationality. It is acquired as the result of the identity papers and travel documents to the
concurrent application to him of the conflicting Stateless persons.
municipal laws of two or more States claiming him
as their national. Status of foundlings under Philippine laws
STATELESSNESS As a matter of law, foundlings are as a class,

natural-born citizens. While the 1935
It is the condition or status of an individual who is Constitution's enumeration is silent as to
either: foundlings, there is no restrictive language which
would definitely exclude foundlings either. The
1. De jure stateless person – Stripped of his deliberations of the 1934 Constitutional
nationality by their former government and Convention show that the framers intended
without having an opportunity to acquire foundlings to be covered by the enumeration,
another; or pursuant to the amendment proposed by Sr.
2. De facto stateless person – One who possesses Rafols. Though the Rafol’s amendment was not
a nationality whose country does not give him carried out, it was not because there was any
protection outside his own country and who is objection to the notion that persons of "unknown
commonly referred to as refugee. (Frivaldo v. parentage" are not citizens but only because their
COMELEC, G.R. No. 123755, June 28, 1996) number was not enough to merit specific mention.

Convention on the Reduction of Statelessness of
Foundlings are likewise citizens under 1961 provides that if the law of the contracting
international law. The common thread of the States results in the loss of nationality, as a
Universal Declaration of Human Rights, United consequence of marriage or termination of
Nations Convention on the Rights of the Child and marriage, such loss must be conditional upon
the International Covenant on Civil and Political possession or acquisition of another nationality.
Rights obligates the Philippines to grant
nationality from birth and ensure that no child is PROTECTIVE PRINCIPLE
stateless. This grant of nationality must be at the
time of birth, and it cannot be accomplished by the Any State has the right to punish acts even if
application of our present naturalization laws. committed outside its territory, when such acts
constitute attacks against its security, as long as
Furthermore, the principles stated in Art. 14 of the that conduct is generally recognized as criminal by
1930 Hague Convention on Certain Questions states in the international community (2009 Bar).
Relating to the Conflict of Nationality Laws under
which a foundling is presumed to have the e.g: plots to overthrow the government, forging its
nationality of the country of birth. While the currency, and plot to break its immigration
Philippines is not a party to the Hague Convention, regulations.
it is a signatory to the Universal Declaration on
Human Rights, which effectively affirms Art. 14 of UNIVERSALITY PRINCIPLE
the 1930 Hague Convention. (Poe v. Comelec, G.R.
No. 221697, March 8, 2016) Certain offenses are so heinous and so widely
condemned that any state that captures an
Doctrine of Indelible Allegiance offender may prosecute and punish that person on
behalf of the international community regardless
It states that an individual may be compelled to of the nationality of the offender or victim or
retain his original nationality notwithstanding where the crime was committed (2005 Bar).
that he has already renounced it under the law of
another State whose nationality he has acquired. Q: Prior to the outbreak of WWII, Adolf
Eichmann was an Austrian by birth who
Doctrine of Effective Nationality volunteered to work for the Security Service in
Berlin. He rose through the ranks and
A person having more than one nationality shall be eventually occupied the position of Referant
treated as if he had only one – either the for Jewish Affairs. He oversaw the transport
nationality of the country in which he is habitually and deportation of Jewish persons and
and principally resident or the nationality of the explored the possibility of setting up a slave
country with which in the circumstances he Jewish state in Madagascar.
appears to be in fact most closely connected.
He was captured by Israeli Security Forces in
NOTE: Also known as Nottebohm principle or Argentina and handed over to the District
the Genuine Link Doctrine. (International Court Court of Jerusalem to stand for war crimes
of Justice, Liechtenstein v. Guatemala, 1955) against humanity and crimes against the
Jewish people. He was convicted of all 15
Doctrine of Genuine Link counts and sentenced to death.
It states that the bond of nationality must be real Does the District Court of Jerusalem have
and effective in order that a State may claim a jurisdiction to try the case in light of the fact
person as its national for the purpose of affording that Eichmann is a foreign national and crimes
him diplomatic protection. were committed on foreign territory?
Measures states have taken to prevent A: YES. The principle of territorial sovereignty
statelessness merely requires that the State exercises its power
to punish within its own borders, not outside
In the Convention on the Conflict of Nationality them; that subject to this restriction every State
Laws of 1930, the Contracting States agree to may exercise a wide discretion as to the
accord nationality to persons born in their application of its laws and the jurisdiction of its
territory who would otherwise be stateless. The courts in respect of acts committed outside the
321
POLITICAL LAW
State; and that only in so far as it is possible to ambassador or public minister of any foreign
point to a specific rule prohibiting the exercise of state from criminal jurisdiction in the
this discretion. That view was based on the Philippines. [Agpalo, Public International Law
following two grounds: (1) It is precisely the (2006 Ed.), p. 280]
conception of State sovereignty which demands
the preclusion of any presumption that there is a 2. Foreign state property, including embassies,
restriction on its independence; and (2) Even if it consulates, and public vessels engaged in non-
is true that the principle of the territorial character commercial activities;
of criminal law is firmly established in various 3. Acts of state;
States, it is no less true that in almost of such States 4. Foreign merchant vessels exercising the rights
criminal jurisdiction has been extended so as to of innocent passage or arrival under stress;
embrace offenses committed outside its territory. 5. Foreign armies passing through or stationed
in its territories with its permission;
However, it is the universal character of the crimes Such other persons or property, including
in question which vests in every State the power organizations like the United Nations, over
to try those who participated in the preparation of which it may, by agreement, waive
such crimes, and to punish them therefor. It jurisdiction [Cruz, International Law (2003
follows that the State which prosecutes and Ed.), p. 127]
punishes a person for that offense acts solely as
the organ and agent of the international NOTE: The principle underlying immunity of
community, and metes out punishment to the organizations is the assurance of unimpeded
offender for his breach of the prohibition imposed performance of their functions by the agencies
by the law of nations. (Attorney-General of the concerned.
Government of Israel v. Eichmann, Israel Sup. Ct.
1962) Extra-territoriality principle
PASSIVE PERSONALITY PRINCIPLE The exemption of foreign persons from the

jurisdiction of the State of residence and it arises
It authorizes states to assert jurisdiction over from treaty provisions.
offenses committed against their citizens abroad.
It recognizes that each state has a legitimate DIPLOMATIC AND CONSULAR LAW
interest in protecting the safety of its citizens
when they journey outside national boundaries. Right of legation/ Right of Diplomatic
Intercourse
EXEMPTIONS FROM JURISDICTION
It is the right of the state to send and receive
ACT OF STATE DOCTRINE diplomatic missions, which enables states to carry
on friendly intercourse. It is governed by the
A State should not inquire into the legal validity of Vienna Convention on Diplomatic Relations
the public acts of another State done within the (1961).
territory of the latter. (Nachura, 2009)
The exercise of this right is one of the most
INTERNATIONAL ORGANIZATIONS AND ITS effective ways of facilitating and promoting
OFFICERS intercourse among nations. Through the active
right of sending diplomatic representatives and
Exceptions to the territoriality principle: the passive right of receiving them, States are able
1. Foreign states, heads of states, diplomatic to deal more directly and closely with each other
representatives, and consuls to a certain in the improvement of their mutual intercourse.
degree;
NOTE: As the right of legation is purely
NOTE: RA No. 75, entitled “An Act to penalize consensual, the State is not obliged to maintain
acts which would impair the proper diplomatic relations with other States.
observance by the Republic and inhabitants of
the Philippines of the immunities, rights and If it wants to, a State may shut itself from the rest
privileges of duly accredited foreign of the world, as Japan did until the close of the 19th
diplomatic and consular agents in the century.
Philippines”, exempts the person of any

Disadvantage: A policy of isolation would hinder
the progress of a State since it would be denying Persona non grata
itself of the many benefits available from the
international community. In international law and diplomatic usage means a
person not acceptable (for reasons peculiar to
Agents of diplomatic intercourse himself) to the court or government to, which it is
proposed to accredit him in the character of an
1. Head of State; ambassador or minister.
2. Foreign secretary or minister;
3. Members of diplomatic service; Agreation
4. Special diplomatic agents appointed by head
of the State; and, It is a practice of the States before appointing a
5. Envoys ceremonial. particular individual to be the chief of their
diplomatic mission in order to avoid possible
Diplomatic Corps embarrassment.
It is a body consisting of the different diplomatic It consists of two acts:

representatives who have been accredited to the
same local or receiving State. It is headed by a 1. The inquiry, usually informal, addressed by
doyun de corps, who, by tradition, is the oldest the sending State to the receiving State
member within the highest rank or, in Catholic regarding the acceptability of an individual to
countries, the papal nuncio. be its chief of mission;and
2. The agreement, also informal, by which the
Functions of a diplomatic mission (Re-P-Pro-N- receiving State indicates to the sending State
A-R) that such person, would be acceptable.
1. Represent sending State in receiving State; Letter of Credence

2. Protect in receiving State interests of sending
State and its nationals; It is the document by which the envoy is
3. Negotiate with government of receiving State; accredited by the sending State to the foreign State
4. Promote friendly relations between sending to which he is being sent. It designates his rank and
and receiving States and developing their the general object of his mission, and asks that he
economic, cultural, and scientific relations; be received favorably and that full credence be
5. Ascertain by all lawful means conditions and given to what he says on behalf of his State.
developments in receiving State and reporting
thereon to government of sending State; and, Letter Patent
6. In some cases, Represent friendly
governments at their request. The appointment of a consul is usually evidenced
by a commission, known sometimes as letter
Classes of heads of a diplomatic mission patent or letred’provision, issued by the appointing
authority of the sending State and transmitted to
1. Ambassadors or nuncio- accredited to Heads of the receiving State through diplomatic channels.
State and other heads of missions of
equivalent rank; DIPLOMATIC IMMUNITY (2001, 2005 Bar)
2. Envoys ministers and internuncios- accredited Nature
to heads of State; and,
3. Charge d’ affaires- accredited to ministers of Diplomatic immunity is essentially a political
foreign affairs. question and the courts should refuse to look
beyond the determination by the executive
NOTE: The appointment of diplomats is not branch.
merely a matter of municipal law because the
receiving State is not obliged to accept a
representative who is a persona non grata to it. Q: Besides the head of the mission, who can
Indeed, there have been cases when duly enjoy diplomatic immunities and privileges?
accredited diplomatic representatives have been
rejected, resulting in strained relations between A: Diplomatic suite or retinue which consists of:
the sending and receiving State.
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POLITICAL LAW
1. Official staff- itis made up of the diplomatic agent in the receiving State outside
administrative and technical personnel of the his official functions.
mission, including those performing clerical
work, and the member of their respective Modes of waiving diplomatic immunity and
families; and, privileges
2. Non-official staff- composed of the household 1. Expressly by the sending State; or,
help, such as the domestic servants, butlers, 2. Impliedly, as when the person entitled to the
and cooks and chauffeurs employed by the immunity from jurisdiction commences
mission. litigation in the local courts and thereby opens
himself to any counterclaim directly
NOTE: As a rule, however, domestic servants connected with the principal claim.
enjoy immunities and privileges only to the extent
admitted by the receiving State and insofar as they NOTE: Waiver of immunity from jurisdiction with
are connected with the performance of their regard to civil and administrative proceedings
duties. shall not be held to mean implied waiver of the
immunity with respect to the execution of
Privileges and immunities of diplomatic judgment, for which a separate waiver shall be
mission necessary.
1. Personal inviolability – Members of Q: The U.S. Ambassador from the Philippines

diplomatic mission shall not be liable for any and the American Consul General also in the
form of arrest or imprisonment; Philippines quarreled in the lobby of Manila
2. Inviolability of premises – Premises, Hotel and shot each other. May Philippine
furnishings and means of transport shall be courts take jurisdiction over them for trial and
immune from search, seizure, attachment or punishment for the crime they may have
execution; committed?
3. Archives or documents shall be inviolable;
4. Diplomatic agents are immune from criminal, A: The Philippine courts can take jurisdiction over
civil or administrative liability; the Consul but not over the Ambassador. The
5. Receiving State shall protect official Ambassador is immune from prosecution for all
communication and official correspondence crimes committed by him whether officially or in
of diplomatic mission; his private capacity. The consul is immune from
6. Receiving State shall ensure all members of criminal prosecution only for acts committed by
diplomatic mission freedom of movement him in connection with his official functions.
and travel;
7. A diplomatic agent is exempted to give Q: The Ambassador of State X to the
evidence as a witness; Philippines bought, in the name of his
8. Exemption from general duties and taxes government, two houses and lots at Forbes
including custom duties with certain Park, Makati. One house is used as the
exceptions; chancery and residence of the ambassador,
9. Use of flag and emblem of sending State on and the other as quarters for nationals of State
premises of receiving State. X who are studying in the University of Santo
Tomas. The Registrar of Deeds refused to
Exceptions: register the sale and to issue Transfer
Certificates of Title in the name of State X on
1. Any real action relating to private the ground of the prohibition of the
immovables situated in the territory of the Constitution against the alienation of lands in
receiving State unless the envoy holds the favor of aliens. Is his refusal justified?
property in behalf of the sending State;
2. Actions relating to succession where A: The prohibition in the Constitution against
diplomatic agent is involved as executor, alienation of lands in favor of aliens does not apply
administrator, heirs or legatee as a private to alienation of the same in favor of foreign
person and not on behalf of the sending State; governments to be used as chancery and residence
and, of its diplomatic representatives. The receiving
3. An action relating to any professional or State is under obligation to facilitate the
commercial activity exercised by the acquisition on its territory, in accordance with its

laws, by the sending State of premises necessary clause does not ipso facto result in the dropping of
for its mission, or to assist the latter in obtaining the charges. (Liang vs. People, G.R. No. 125865,
accommodation in some other way. Therefore, the January 28, 2000)
refusal of the Register of Deeds to register the sale
and the issuance of TCT in the name of State X is Exequatur (1991 Bar)
unjustified.
An authorization from the receiving State
However, in so far as the house and lot to be used admitting the head of a consular post to the
as quarters of the nationals of State X who are exercise of his functions. Thus, an appointee
studying in the University of Santo Tomas are cannot start performing his function unless the
concerned, the Register of Deeds correctly refused receiving State issues an exequatur to him.
registration. Here, the prohibition in the
constitution against the transfer of properties to Diplomats vs. Consuls
parties other than the Filipino citizens or
corporation 60% of the capital of which is owned
by such citizens should be followed.
They are concerned with
Q: Huefeng is an economist working with the Diplomats political relations of States.
Asian Development Bank (ADB). He was
They are not concerned with
charged with grave oral defamation before the
political matters and attend
MeTC for allegedly uttering defamatory words Consuls rather to administrative and
to his co-worker. The MeTC judge received an
economic issues.
"office of protocol” from the DFA stating that
petitioner is covered by immunity from legal
process under the Agreement between the Kinds of consuls
ADB and the Philippine Government. As a
result, the judge dismissed the cases filed 1. Consules missi – Professional or career consuls
against the petitioner. However, upon petition who are nationals of the sending State and are
for certiorari and mandamus before the RTC, required to devote their full time to the
the decision of the lower court was reversed discharge of their duties; and,
and set aside. Is Huefeng covered by 2. Consules electi – May or may not be nationals
immunity provided under the agreement? of the sending State and perform their
consular functions only in addition to their
A: NO. He cannot invoke his immunity under the regular callings
agreement. Under the Agreement, the immunity
mentioned therein is not absolute, but subject to NOTE: Examples of regular callings include acting
the exception that the act was done in "official as notary, civil registrar and similar
capacity." administrative capacities and protecting and
assisting the nationals of the sending State.
Slandering a person could not possibly be covered
by the immunity agreement because our laws do Ranks of consuls
not allow the commission of a crime, such as
defamation, in the name of official duty. It is well- 1. Consul-general – Heads several consular
settled principle of law that a public official may be districts, or one exceptionally large consular
liable in his personal private capacity for whatever district;
damage he may have caused by his act done with 2. 2. Consul – Takes charge of a small district or
malice or in bad faith or beyond the scope of his town or port;
authority or jurisdiction(Liang vs. People, G.R. No. 3. Vicconsul – Assist the consul; and
125865, Jan. 28, 2000). 4. Consular agent – Usually entrusted with the
performance of certain functions by the
NOTE: Courts cannot blindly adhere and take on consul.
its face the communication from the DFA that
petitioner is covered by any immunity. The DFAs Duties of consuls (P-Ob- Prom-Is-Su)
determination that a certain person is covered by
immunity is only preliminary which has no 1. Protection of the interests of the sending State
binding effect in courts. xxx At any rate, it has been and its nationals in the receiving State;
ruled that the mere invocation of the immunity
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POLITICAL LAW
2. Promotion of the commercial, economic, They are immune only with respect to that part
cultural, and scientific relations of the sending where the consular work is being performed.
and receiving States;
3. Observation of the conditions and Q: May consular offices be subject to
developments in the receiving State and expropriation by the receiving State?
report the same to the sending State;
4. Issuance of passports and other travel A: YES, for purposes of national defense or public
documents to nationals of the sending State utility.
and visas or appropriate documents to
persons wishing to travel to the sending State; NOTE: With respect to expropriation by the
and, receiving State, steps shall be taken to avoid
5. Supervision and inspection of vessels and impeding the performance of consular
aircraft of the sending State. functions, and prompt, adequate and effective
compensation shall be paid by the sending
Sources of authority of consuls State. (Art. 31 of the Vienna Convention on
Consular Relations and Optional Protocols)
1. Letter patent or letter ‘de provision – Which is
the commission issued by the sending State, Diplomatic Immunity vs. Consular Immunity
and
2. Exequatur – Which is the permission given BASIS DIPLOMATI CONSULAR
them by the receiving State to perform their C
functions therein. Premises of Consular
the mission premises
Immunity of Consuls includes the includes the
building or buildings or
Consuls enjoy their own immunities and privileges parts of parts of
but not to the same extent as those enjoyed by the building and buildings and
diplomats. Like diplomats, consuls are entitled to: the land the land
Scope as to
irrespective irrespective of
1. Inviolability of their correspondence, buildings
of the ownership used
archives and other documents and
ownership exclusively for
2. Freedom of movement and travel premises
used for the the purposes of
3. Immunity from jurisdiction for acts purpose of consular posts.
performed in their official capacity; and the mission
4. Exemption from certain taxes and including the
customs duties residence of
the head of
Liabilities of Consuls mission.
GR: The GR: The agents
1. Arrest and punishment for grave offenses; and agents of the of the receiving
2. May be required to give testimony, subject to receiving state may not
certain exceptions. state may not enter the
enter the consular
NOTE: Members of a consular post are under no premises of premises.
obligation to give evidence on the following the mission.
situations: On entry of XPN: Consent
agents of XPN: Consent of the head of
a. Concerning matters connected with the the of the head of the consular
exercise of their functions; receiving the mission. post.
b. To produce official correspondence and state Consent is
documents; and, assumed in case
c. To give evidence as expert witness with of fire or other
regard to the law of the sending State disasters
requiring
Immunity of consular offices prompt
protective
action.

Personal Consular bag 2. A consular officer does not enjoy immunity
baggage of a shall not be from the criminal jurisdiction of the receiving
diplomatic opened. It may State and are not amenable to the jurisdiction
agent shall be requested of the judicial or administrative authorities of
not be that the bag be the receiving State in respect of acts performed
opened. opened in their in the exercise of consular functions.
presence by an However, this does not apply in respect of a civil
authorized action either:
As to representative 1. Arising out of a contract concluded by a
inviolabilit of the receiving consular officer in which he did not enter
y of state if they expressly or impliedly; and
baggage have serious 2. By a third party for damages arising from an
reason to accident in the receiving State caused by a
believe that the vehicle, vessel or aircraft. (Vienna Convention
bag contains on the Consular Relations, Arts. 41 and 43)
objects of other
articles, Grounds for Termination of Consular Office
documents, (2D-2W-RN)
correspondenc
e or articles. 1. Death of consular officer
Not obliged May be called 2. Recall
to give upon to attend 3. Dismissal
As a evidence as a as a witness; if 4. Notification by the receiving State to the
witness witness. declined, no sending State that it has ceased to consider as
before the coercive member of the consular staff
court measure or 5. Withdrawal of his exequatur by the receiving
penalty may be State.
applied. 6. War – outbreak of war between his home
State and the receiving State.
Differences in the privileges or immunities of
diplomatic envoys and consular officers from Immunity of International Organizations
the civil and criminal jurisdiction of the
receiving State Q: Trade Union of the Philippines and Allied
Services (TUPAS) filed with then Ministry of
1. A diplomatic agent shall enjoy immunity from Labor and Employment a Petition for
the criminal jurisdiction of the receiving State. Certification Election among the rank and file
He shall also enjoy immunity from its civil and members employed by International Catholic
administrative jurisdiction; while Migration Commission (ICMC), an
international organization rendering
XPNs: voluntary humanitarian services in the
a. A real action relating to private immovable Philippines. ICMC opposed the petition of
property situated in the territory of the TUPAS on the ground that it is an international
receiving State, unless he holds it on behalf of organization registered with the United
the sending State for the purpose of the Nations, hence, enjoys diplomatic immunity.
mission; Meanwhile, the Philippine Government and
b. An action relating to succession in which the the Ford and Rockefeller Foundations signed a
diplomatic agent is involved as executor, Memorandum of Understanding establishing
administrator, heir or legatee as private the International Rice Research Institute
person and not on behalf of the sending State; (IRRI), which was intended to be an
and autonomous, philanthropic, tax-free, non-
c. An action relating to any professional or profit, non-stock organization designed to
commercial activity exercised by the carry out the principal objective of conducting
diplomatic agent in the receiving State outside basic research on rice plant. IRRI has an
of his official functions. (Vienna Convention of existing local union, the Kapisanan ng
Diplomatic Relations, Art. 31) Manggagawa at TAC sa IRRI (Kapisanan),
which filed a petition for direct certification
election with the DOLE. The latter dismissed
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POLITICAL LAW
the petition on the ground that Pres. Decree DIPLOMATIC RELATIONS
No. 1620 conferred upon it the status of an
international organization and granting it Grounds for termination of diplomatic
immunity from all civil, criminal and relations under municipal law (RADAR)
administrative proceedings under Philippine
laws. Do ICMC and IRRI enjoy diplomatic 1. Resignation;
immunity? 2. Accomplishment of the purpose;
3. Death;
A: YES. P.D. 1620 is constitutional. There can be 4. Abolition of the office; and
no question that diplomatic immunity has been 5. Removal.
granted to ICMC and IRRI. The grant of immunity
from local jurisdiction to ICMC and IRRI is clearly Grounds for termination of diplomatic relation
necessitated by their international character and under international law
respective purposes. The objective is to avoid the
danger of partiality and interference by the host 1. War – Outbreak between the sending and the
country in their internal workings. The exercise of receiving State;
jurisdiction by the Department of Labor in these 2. Extinction of either the sending State or the
instances would defeat the very purpose of receiving State; and
immunity, which is to shield the affairs of 3. Recall – Demanded by the receiving State
international organizations, in accordance with when the foreign diplomat becomes persona
international practice, from political pressure or non grata
control by the host country to the prejudice of
member States of the organization, and to ensure Termination of diplomatic relations does not
the unhampered performance of their functions. terminate consular relations between the
(ICMC vs. Calleja, G.R. No. 85750, Sept. 28, 1990) sending and receiving States
NOTE: There are basically three propositions Consuls belong to a class of State agents distinct
underlying the grant of international immunities from that of diplomatic officers. They are not
to international organizations. These principles, clothed with diplomatic character and are not
contained in the ILO Memorandum are stated accredited to the government of the country
thus: 1) international institutions should have a where they exercised their consular functions;
status which protects them against control or they deal directly with local authorities
interference by any one government in the
performance of functions for the effective They do not represent their State in its relations
discharge of which they are responsible to with foreign States and are not intermediaries
democratically constituted international bodies in through whom matters of State are discussed
which all the nations concerned are represented; between governments. Consuls look mainly after
2) no country should derive any national financial the commercial interest of their own State in the
advantage by levying fiscal charges on common territory of a foreign State.
international funds; and 3) the international
organization should, as a collectivity of States GENERAL PRINCIPLES OF TREATY LAW
members, be accorded the facilities for the
conduct of its official business customarily Treaty (2003 Bar)
extended to each other by its individual member
States. The theory behind all three propositions is A treaty is generally defined as agreements
said to be essentially institutional in character. "It between and among States, by which parties
is not concerned with the status, dignity or obligate themselves to act, or refrain from acting,
privileges of individuals, but with the elements of according to the terms of the treaty.
functional independence necessary to free
international institutions from national control However, under the Vienna Convention on the
and to enable them to discharge their Law of Treaties (VCLT), a treaty has been defined
responsibilities impartially on behalf of all their as “an international agreement concluded
members. The raison d'etre for these immunities is between States in written form and governed by
the assurance of unimpeded performance of their international law, whether embodied in a single
functions by the agencies concerned. (ICMC vs. instrument or in two or more related instruments
Calleja, G.R. No. 85750, September. 28, 1990) and whatever its particular designation.”

Essential Characteristics of Treaties narrow area of practice between two States (e.g.
trade agreements). Such treaties may lead to the
1. It becomes binding on the parties to it by virtue formation of general international law through the
of their consent; and operation of the principles governing the
development of customary rules in the following
2. While treaties will, in most cases, be written ways:
instruments concluded between States, the term
applies equally to unwritten agreements and to 1. A series of treaties each of which lay down
agreements between States and international similar rule may produce a rule of customary
organizations and between international international law to the same effect.
organizations. 2. A rule contained in a treaty originally
concluded between a limited number of
Many treaties, particularly those of a multilateral parties may subsequently be accepted or
nature designed to establish general rules of imitated as a general rule.
common application, exhibit a mixture of 3. A treaty may have evidential value as to the
‘legislative’ characteristics. A provision of a treaty existence of a rule which has crystallized into
may: law by an independent process of
development.
1. Purport to codify existing rules of
customary law, e.g. Art. 55 of the 1982 VIENNA CONVENTION ON THE LAW OF
Convention on the Law of the Sea which TREATIES (VCLT) (2012 Bar)
provides for the recognition of the EEZ;
2. Crystallize a developing rule of law, firmly The law of treaties is the body of rules which
establishing a legal footing a situation govern what is a treaty, how it is made and
which has previously been part of the brought into force, amended, terminated, and
practice of a limited number of States; or generally operates. Apart from issues of jus cogens,
3. Generate rules of law independently of it is not concerned with the substance of a treaty
the previous practice of State, e.g. (the rights and obligations created by it), which is
prohibition on the threat or use of force in known as treaty law. Although the VCLT does not
international relations. occupy the whole ground of the law of treaties, it
covers the most important areas and is the
Two kinds of a treaty indispensable starting point for any description of
the law. For good reason, the VCLt has been called
1. Law-making treaties (normative treaties); and the treaty on treaties.
2. Treaty contracts
It was adopted on May 22, 1969 and opened for
Law-making treaties or Normative Treaties signature on May 23, 1969. The Convention
entered into force on January 27, 1980.
Treaties which are concluded by a large number of
States for purposes of: Scope
1. Declaring, confirming, or defining there 1. The VCLT sets out the law and procedure for the
understanding of what the law is on a making, operation, and termination of a treaty;
particular subject;
2. Stipulating or laying down new general rules 2. It does not apply to all treaties, only those
for future international conduct; and between States (Art. 1 VCLT). Nor is it concerned
3. Creating new international institutions. with the substance of a treaty as such. That is a
matter for the negotiating States;
It lays down rules of general or universal
application and are intended for future and 3. The VCLT as a treaty does not apply
continuing observance. retroactively to treaties concluded before its entry
into force. Only rules in the VCLT that codify or
Treaty Contracts reflect rules of CIL apply; and
Resemble contracts in that they are concluded to 4. Because the VCLT resulted from a codification
perform contractual rather than normative project, many of its rules are consistent with
functions. It usually concerns the regulation of a otherwise applicable rule of CIL.
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POLITICAL LAW
Usual steps in the treaty-making process
FUNDAMENTAL PRINCIPLES OF THE LAW OF (NeS-RA-ER)
TREATIES
1. Negotiation – Conducted by the parties to
1. The principle of free consent – A state reach an agreement on its terms;
cannot be bound by treaty to which it has not 2. Signature – The signing of the text of the
consented. Free consent is vital for initial instrument agreed upon by the parties;
adoption and subsequent development of a 3. Ratification – The act by which the provisions
particular treaty as it ensures that a State of a treaty are formally confirmed and
remains in control of the commitments it has approved by the State;
made under the relevant treaty;
2. The principle of pacta sunt servanda – NOTE: In our jurisdiction, the power to ratify is
Literally means agreements must be kept. vested in the President. The role of the Senate is
Embodied in Art. 26 VCLT, which states that; limited only to giving or withholding its consent,
‘Every treaty in force is binding upon the or concurrence, to the ratification.
parties to it and must be performed by them
in good faith. Therefore, a contracting party There are two constitutional provisions that
will be held responsible for breach of a treaty.’ require the concurrence of the Senate on treaties
Applies only to treaties which are in force, not or international agreements Section 21, Article VII
to invalid, suspended or terminated treaties; deals with treaties or international agreements in
and general, in which case, the concurrence of at least
3. The principle of good faith – Recognized as two-thirds (2/3) of all the Members of the Senate
the foundation of international legal order. is required to make the subject treaty, or
States and non-State actors are required to international agreement, valid and binding on the
comply with binding obligations imposed part of the Philippines. This means it forms part of
upon them by international law, irrespective Philippine law by virtue of transformation.
of whether such obligations derive from
treaties, customary rules, or any other source The involvement of the Senate in the treaty-
of international law. It is all encompassing as making process manifests the adherence of the
it even imposes obligations on a State in the Philippine system of government to the principle
pre-ratification stage. of checks and balances. This indispensable
participation of the legislative branch by way of
It applies throughout the life of a treaty, form its concurrence provides the “check” to the
negotiation, through its performance to its ratification of the treaty by the executive branch.
termination.
In contrast, Section 25, Article XVIII is a special
Each time a State is in breach of the principle of provision that applies to treaties which involve the
pacta sunt servanda it also violates the principle of presence of foreign military bases, troops or
good faith. facilities in the Philippines. Under this provision,
the concurrence of the Senate is only one of the
Essential requisites of a valid treaty requisites to render compliance with the
constitutional requirements and to consider the
1. It must be a written instrument or agreement binding on the Philippines. Section 25,
instruments between two or more parties; Article XVIII further requires that "foreign military
2. The parties must be States within the meaning bases, troops, or facilities" may be allowed in the
of international law (IL); Philippines only by virtue of a treaty duly
3. It must be governed by IL; and concurred in by the Senate, ratified by a majority
4. It must be intended to create legal obligations. of the votes cast in a national referendum held for
that purpose if so required by Congress, and
Exclusions recognized as such by the other contracting state.
(BAYAN vs. Zamaora, G.R. No. 138570, October 10,
1. Those concluded between states and other 2000)
subjects of IL;
2. Agreements not in writing; and 4. Accession – A State can accede to a treaty only
3. Those which are governed by the national law if invited or permitted to do so by the
system chosen by the parties. contracting parties. Such invitation or

permission is usually given in the accession a. Ratification in municipal law – is the formal
clause of the treaty itself; act of the appropriate organ of the State
5. Exchange of instruments of ratification; and effected in accord with national
6. Registration with the United Nations. constitutional law.
b. Ratification in international law –
Ratification is a procedure which brings
Traditional methods of expressing consent to a a treaty into force for the State
treaty concerned by establishing its definitive
consent to be bound by the particular
1. Signature – The legal effects of signature are as treaty. International law is not
follows: concerned with the requirements of its
constitutional law.
a. The signing of a treaty may represent
simply an authentication of its text. Where NOTE: Despite the fact that a treaty may be
signature is subject to ratification, ratified by nothing more than the signature of the
acceptance or approval, signature does not relevant State’s representative, in many case
establish consent to be bound; States insist upon a ratification procedure
consisting of more formal steps.
NOTE: The act of signing a treaty creates an
obligation of good faith on the part of the Ratification is so required when under Art.
signatory: to refrain from acts calculated to 14(1) of the VCLT:
frustrate the objects of the treaty and to
submit the treaty to the appropriate 1. A treaty provides for such consent to be
constitutional machinery for approval. expressed by means of ratification;
Signature does not, however, create an 2. It is otherwise established that the negotiating
obligation to ratify. States were agreed that ratification should be
required;
b. In the case of a treaty which is only to 3. The representative of the State has signed the
become binding upon ratification, treaty subject to ratification; or
acceptance or approval, that treaty, unless 4. The intention of the State to sign the treaty
declaratory of customary law, will not be subject to ratification appears from the full powers
enforceable against a party until one of of its representative or was expressed during the
those steps is taken; and negotiation.
c. Where a treaty is not subject of ratification, Accession or adherence or adhesion

acceptance or approval, but a State’s
signature will signify consent to be bound. Occurs when a State, which did not participate in
The consent of a State to be bound by a the negotiating and singing of the relevant treaty,
treaty is expressed by the signature of its formally accepts its provisions. It may occur
representatives when: before or after a treaty has entered into force. It is
only possible if it is provided for in the treaty, or if
i. The treaty provides that signature all the parties to the treaty agree that the acceding
shall have that effect; State should be allowed to accede.
ii. It is otherwise established that the
negotiating states were agreed that Q: A petition for mandamus was filed in the SC
signature should have that effect; or to compel the Office of the Executive Secretary
iii. The intention of the State to give effect and the Department of Foreign Affairs to
to the signature appears from the full transmit (even without the signature of the
powers of the representative or was President) the signed copy of the Rome Statute
expressed during the negotiations. of the International Criminal Court (ICC) to the
Senate of the Philippines for its concurrence or
2. Ratification – A formal act whereby one State ratification – in accordance with Sec. 21, Art.
declares its acceptance of the terms of the treaty VII of the 1987 Constitution.
and undertakes to observe them. Ratification is
used to describe two distinct procedural acts: Petitioners contend that ratification of a
treaty, under both domestic law and
international law, is a function of the Senate.
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POLITICAL LAW
That under treaty law and customary
international law, Philippines has a ministerial 1. When a treaty is a mere formal expression of
duty to ratify the Rome Statute. Respondents customary international law, which, as such is
on the other hand, argued that executive enforceable on all civilized states because of
department has no duty to transmit the Rome their membership in the family of nations;
Statute to the Senate for concurrence. Decide. 2. Under Art. 2 of its charter, the UN shall ensure
that non-member States act in accordance
A: The power to ratify treaties does not belong to with the principles of the Charter so far as may
the Senate. be necessary for the maintenance of
international peace and security. Under Art.
Under the Constitution the power to ratify is 103, obligations of member-states shall
vested in the President subject to the concurrence prevail in case of conflict with any other
of the Senate. The President has the discretion international agreement including those
even after the signing of the treaty by the concluded with non-members;
Philippine representative whether or not to ratify 3. The treaty itself may expressly extend its
a treaty. The signature of the representative does benefits to non-signatory States; and
not signify final consent, it is ratification that binds 4. Parties to apparently unrelated treaties may
the state to the provisions of the treaty and also be linked by the most-favored nation
renders it effective. clause.
The role of the Senate is limited only to giving or Effectivity date of a treaty
withholding its consent, concurrence to the
ratification. It is within the President to refuse to 1. In such manner and upon such date as it may
submit a treaty to the Senate or having secured its provide or as the negotiating States may
consent for its ratification, refuse to ratify it. Such agree;or,
decision is within the competence of the President 2. Failing any such provision or agreement, a
alone, which cannot be encroached by this Court treaty enters into force as soon as consent to
via writ of mandamus. (Pimentel v. Executive be bound by the treaty has been established
Secretary, G.R. No. 158088, July 6, 2005) for all the negotiating States.
The House of Representatives (HoR) cannot take NOTE:

active part in the conduct of foreign relations, GR: A State may not invoke the fact that its consent
particularly in entering into treaties and to the treaty was obtained in violation of its
international agreements. As held in US v. Curtiss internal law.
Wright Export Corporation (299 US 304), it is the
President alone who can act as representative of XPN: If the violation was manifest and concerned
the nation in the conduct of foreign affairs. a rule of its internal law of fundamental
Although the Senate has the power to concur in importance.
treaties, the President alone can negotiate treaties
and Congress is powerless to intrude into this. A violation is manifest if it would be objectively
evident to any State conducting itself in the matter
NOTE: However, if the matter involves a treaty or in accordance with normal practice and in good
an executive agreement, the HoR may pass a faith.
resolution expressing its views on the matter.
Reservation
Protocol de Clôture
It is a unilateral statement, however phrased or
It is a final act and an instrument which records named, made by a State, when signing, ratifying,
the winding up of the proceedings of a diplomatic accepting, approving, or acceding to a treaty,
conference and usually includes a reproduction of whereby it purports to exclude or modify the legal
the texts of treaties, conventions, effect of certain provisions of the treaty in their
recommendations and other acts agreed upon and application to that State.
signed by the plenipotentiaries attending the
conference. Reservation is NOT applicable when:
Instances when a third State who is a non- 1. The treaty itself provides that no reservation
signatory may be bound by a treaty shall be admissible;

2. The treaty allows only specified reservations EXECUTIVE
which do not include the reservation in AGREEMENT
question; and, It involves These are
3. The reservation is incompatible with the basic political adjustments
object and purpose of the treaty. issues and of details in
changes in carrying out
Effects of Reservation and of Objections to As to nature
national well
Reservations policy. established
national
1. Modifies, for the reserving State in its policies.
relations with that other party, the provisions Permanent Merely
of the treaty to which the reservation relates As to
international temporary
to the extent of the reservation; permanence
agreements. arrangements.
2. Modifies those provisions to the same extent It needs the It needs no
for that other party in its relations with the Concurrence concurrence concurrence
reserving State; of Senate of the Senate. from the
3. The reservation does not modify the Senate.
provisions of the treaty for the other parties to
the treaty inter se; and Q: Enhanced Defense Cooperation Agreement
4. When a State objecting to a reservation has (EDCA) authorizes the U.S. military forces to
not opposed the entry into force of the treaty have access to and conduct activities within
between itself and the reserving State, the certain "Agreed Locations" in the country. It
provisions to which the reservation relates do was not transmitted to the Senate on the
not apply as between the two States to the Executive's understanding that to do so was no
extent of the reservation. longer necessary. Accordingly, in June 2014,
the DFA and the U.S. Embassy exchanged
Judicial Review of Treaties diplomatic notes confirming the completion of
all necessary internal requirements for the
Even after ratification, the Supreme Court has the agreement to enter into force in the two
power of judicial review over the constitutionality countries. Is the Executive branch of
of any treaty, international or executive government correct?
agreement and must hear such case en banc.
A: YES. The EDCA need not be submitted to the
Rules in case of conflict between a treaty and a Senate for concurrence because it is in the form of
custom a mere executive agreement, not a treaty. Under
the Constitution, the President is empowered to
1. If the treaty comes after a particular custom- enter into executive agreements on foreign
treaty prevails, as between the parties to the military bases, troops, or facilities if (1) such
treaty agreement is not the instrument that allows the
2. If the custom develops after the treaty- custom entry of such and (2) if it merely aims to
prevails it being an expression of a later will. implement an existing law or treaty.
A treaty or conventional rule may not qualify EDCA is in the form of an executive agreement
as a norm of jus cogens character since it merely involves “adjustments in detail” in
the implementation of the Mutual Defense Treaty
Treaty rule binds only States that are parties to it and the Visiting Forces Agreement. These are
and even in the event that all States are parties to existing treaties between the Philippines and the
a treaty, they are entitled to terminate or U.S. that have already been concurred in by the
withdraw from the treaty. Philippine Senate and have thereby met the
requirements of the Constitution under Art XVIII,
NOTE: If a treaty at the time of its conclusion, Sec 25. Because of the status of these prior
conflicts with jus cogens, it is void. (2008 Bar) agreements, EDCA need not be transmitted to the
Senate. (Saguisag v. Executive Secretary, G.R. No.
Treaty vs. Executive Agreement (2015 Bar) 212426, January 12, 2016)
Applicable rules when there is conflict

BASIS TREATY between a treaty and a domestic legislation
333
POLITICAL LAW
evident to any State acting by normal practice
The rule will depend on which court is deciding. and good faith;
6. Essential error – an error, whether unilateral
1. International Court - will uphold treaty or mutual, must neither concern a question of
obligation in general. law nor the wording of text of a treaty agreed
by the parties. It must relate to a fact or
NOTE: However, Art. 46 of the VCLT states that: situation which was assumed at the time when
a treaty was concluded and formed an essential
a. A State may not invoke the fact that its consent basis of its consent. Further, a State will not be
to be bound by a treaty has been expressed in able to claim error if by its own conduct it
violation of a provision of its internal law contributed to it; and
regarding competence to conclude treaties as 7. Violations of restrictions on the competence of
invalidating its consent unless that violation was the representative of a State – the restrictions
manifest and concerned a rule of its internal law of on the competence must have been notified to
fundamental importance. the other parties.
b. A violation is manifest if it would be objectively
evident to any State conducting itself in the matter Grounds of nullity which lead to nullity of a
in accordance with normal practice and in good treaty for all contracting parties
faith.
1. A treaty is void if at the time of its conclusion it
2. Domestic Court conflicts with a rule of jus cogens;
a. Treaty vs. Constitution – The Constitution will
always prevail. 2. If a new jus cogens emerges, any existing treaty
b. Treaty vs. Statute - When the two instruments which is in conflict with that rule becomes void
relate to the same subject, try to give effect to and terminates.
both; if inconsistent, legal techniques on
statutory construction would be employed. Some Grounds for the suspension of a treaty
of such rules say that the “later in time prevails” or
that the “specific law prevails over the general”. A treaty may be suspended in six situations. Two
of them are:
Modification of a treaty
1. Where all contracting parties agree to suspend
GR: A treaty may not be modified without the the operation of a treaty, or some of its provisions;
consent of all the parties.
2. Where to or more parties agree to suspend its
XPN: If allowed by the treaty itself, two states may operation temporarily between themselves
modify a provision only insofar as their countries provided this is either allowed under the relevant
are concerned. treaty or not prohibited.
Grounds of nullity affecting the consent of a NOTE: The remaining situations are set out in
party to a treaty Articles 59-62 of the VCLT and are the same as for
termination of a treaty
1. Corruption of a representative of a State –
‘corruption’ must be a ‘substantial influence. A Grounds for termination of a treaty
small courtesy or favor shown to a
representative will be insufficient; A party in the following situations has a choice
2. Coercion of a representative of a State – it must either to suspend or terminate the relevant treaty:
be directed at the representative personally or
his/her family; 1. Material breach of a treaty
3. Coercion of a State – it must be shown that the 2. Impossible for a party to perform its obligations
conclusion of a treaty has been procured by the 3. Rebus sic stantibus
threat or use of force; 4. All contracting parties to an earlier treaty are
4. Fraud; also parties to a later treaty and the two treaties
5. Manifest violation of its internal law – the relate to the same subject matter.
alleged violation of a domestic law must
concern fundamental provisions which relate NOTE: Additionally a treaty can be terminated:
to the State’s treaty-making power and must be

1. When the termination of a treaty is in 2. The fundamental change is the result of a
accordance with the terms of the treaty. breach by the party invoking it of an
2. Parties to the relevant treaty agreed to obligation under the treaty or of any other
terminate the treaty. obligation owed to any other party to the
3. If the treaty is in conflict with a just cogens rule. treaty.
Termination vs. Suspension DOCTRINE OF STATE RESPONSIBILITY
When a treaty is suspended, it is still valid but its A State may be held responsible for an
operation is suspended temporarily, either for all international delinquency, directly or indirectly,
the parties or some of them. On the other hand, imputable to it which causes injury to the national
when a treaty is terminated, it is no longer in force of another State. Liability will attach to the State
as it has ended its existence. where its treatment of the alien falls below the
international standard of justice or where it is
Doctrine of rebus sic stantibus remiss in according him the protection or redress
that is warranted by the circumstances. (2010
It states that a fundamental change of Bar)
circumstances which determined the parties to
accept a treaty, if it has resulted in a radical NOTE: No government can be held responsible for
transformation of the extent of the obligations the act of rebellious bodies of men committed in
imposed by it, may under certain conditions, violation of its authority, where it is itself guilty of
afford the party affected a ground to invoke the no breach of good faith, or of no negligence in
termination of the treaty. suppressing insurrection.
The change must have increased the burden of the Elements of state responsibility
obligations to be executed to the extent of
rendering performance essentially different from 1. An act or omission in violation of International
the original intention. Law
2. Attributable to the State
Requisites of rebus sic stantibus (Not-IR, Must- 3. Causing damage to a third State either directly
URIS) or indirectly to a national of the third State.
1. The change must not have been caused by the Kinds of state responsibility
party Invoking the doctrine;
2. The doctrine cannot operate Retroactively, 1. Direct State responsibility – Where the
i.e., it must not adversely affect provisions international delinquency was committed by
which have already been complied with prior superior government officials or organs like
to the vital change in the situation; the chief of State or the national legislature,
3. The change must have been Unforeseen or liability will attach immediately as their acts
unforeseeable at the time of the perfection of may not be effectively prevented or reversed
the treaty; under the constitution or laws of the State.
4. The doctrine must be invoked within a 2. Indirect State responsibility – Where the
Reasonable time; offense is committed by inferior government
5. The duration of the treaty must be Indefinite; officials or by private individuals. The State
and will be held liable only if, by reason of its
6. The change must be so Substantial that the indifference in preventing or punishing it, it
foundation of the treaty must have altogether can be considered to have connived in
disappeared. effecting its commission.
Limitation on the application of the principle Requisites for the enforcement of the doctrine
of rebus sic stantibus of State Responsibility (NER)
The principle of rebus sic stantibus cannot be 1. Nationality of the Claimant/The Doctrine of
invoked as a ground for terminating or Effective Nationality/The Genuine Link
withdrawing from a treaty if: Doctrine;
2. The injured alien must first Exhaust all local
1. The treaty establishes a boundary; or remedies; and
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POLITICAL LAW
3. He must be Represented in the international licenses or trespassers on its territory;
claim for damages by his own State. 2. A state engages in lawful activities, in which
case responsibility may result from culpa in
Calvo Clause executing these lawful activities;
3. Determining the amount of damages; and,
A stipulation by which an alien waives or restricts 4. Due diligence or liability for culpa is stipulated
his right to appeal to his own state in connection in a treaty.
with any claim arising from the contract and
agrees to limit himself to the remedies available Motive (intent) is relevant when:
under the laws of the local state.
1. The existence of a deliberate intent to injure
NOTE: This cannot be interpreted to deprive the may have an effect on the remoteness of the
alien’s state of the right to protect or vindicate his damage and may help to establish the breach
interests in case they are injured in another state, of duty; and
as such waiver can legally be made not by the alien 2. Motive and intent may be a specific element in
but by his own state. defining permitted conduct.
Elements of an Internationally Wrongful Act Relief available where a State is liable for an
(AB) internationally wrongful act
1. Act or omission is Attributable to the State 1. Declaratory relief – Declaration by a court

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

losses sustained which would not be fear, is unwilling to avail himself of the protection
covered by the first two. of the government of the country of his nationality,
or, if he has no nationality, to return to the country
4. Compensation – Payment of money as a of his former habitual residence.
valuation of the wrong done.
Elements before one may be considered as a
NOTE: The compensation must correspond to refugee (ONPer)
the value which restitution in kind would
bear; the award of damages for loss sustained 1. The person is Outside the country of his
which would not be covered by restitution in nationality, or in the case of Stateless persons,
kind or payment in place of it. outside the country of habitual residence;
2. The person lacks National protection; and
Pecuniary satisfaction vs. Compensation 3. The person fears Persecution in his own
country.
BASIS PECUNIARY
COMPENSATION
SATISFACTION NOTE: The second element makes a refugee a
A token of regret To make up for or Stateless person.
and repair the
As to acknowledgment damage done. Refugees v. Internally displaced persons
nature of wrongdoing
(“monetary Refugees are people who, owing to well-founded
sorry”). fear of being persecuted for reasons of race,
religion, nationality, membership of a particular
State’s exercise of diplomatic protection social group or political opinion, are outside the
country of his nationality, are unable or owing to
When a State admits into its territory foreign such fear, are unwilling to avail themselves of the
investments or foreign nationals, whether natural protection of that country, or who not having a
or juristic persons, it is bound to extend to them nationality and being outside the country of their
the protection of the law and assumes obligations former habitual residence as a result of such
concerning the treatment to be afforded to them. events, are unable or, owing to such fear are
unwilling to return to it. (United Nations
These obligations, however, are neither absolute Convention Relating to the Status of Refugees, 1951
nor unqualified. An essential distinction should be Sec. A par. 2)
drawn between:
While internally displaced persons are those who
2. Obligations of the State towards the have been forced to flee their homes, suddenly or
international community as a whole - concern unexpectedly in large numbers as a result of
of all States. All States can be held to have a armed conflict, internal strife, systematic violation
legal interest in their protection; they are of human rights, or natural or man-made disaster,
obligations erga omnes. and, who are within their territory of their
country. (Analytical Report of the United Nations’
3. Obligations the performance of which is the Secretary-General on Internally Displaced Persons,
subject of diplomatic protection - cannot be February 14, 1992)
held, when one such obligation in particular
is in question, in a specific case, that all States Principle of Non-Refoulment
have a legal interest in its observance. (Case
Concerning Barcelona Traction, Light and Posits that a State may not deport or expel
Power Company, Limited, February 5, 1970) refugees to the frontiers of territories where their
life or freedom would be put in danger or at risk.
REFUGEES (Magallona, 2005)
Any person who is outside the country of his EXTRADITION

nationality or the country of his former habitual
residence because he has or had well-founded fear It is the surrender of an individual by the state
of persecution by reason of his race, religion, within whose territory he is found to the state
nationality, membership of a political group or under whose laws he is alleged to have committed
political opinion and is unable or, because of such a crime or to have been convicted of a crime.
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POLITICAL LAW
Basis of extradition 1. File/issue request through diplomatic

representative with:
The extradition of a person is required only if a. Criminal charge and warrant of arrest;
there is a treaty between the State of refuge and b. Recital of facts;
the State of origin. In the absence of such treaty, c. Text of applicable law designating the
the local state has every right to grant asylum to offense;
the fugitive and not refuse to deliver him back to d. Pertinent papers; and
the latter state even if he is its national. As a e. Decision of conviction.
gesture of comity, however, the surrender
requested is may still be effected by the state of 2. DFA forwards request to DOJ.
asylum. Furthermore, even with a treaty, crimes 3. DOJ files petition for extradition with RTC.
which are political in character are exempted. 4. Upon receipt of a petition for extradition and
its supporting documents, the judge must
Fundamental Principles study them and make, as soon as possible, a
prima facie finding whether:
1. Based on the consent of the State expressed in a. They are sufficient in form and substance;
a treaty (or manifested in an act of goodwill); b. They show compliance with the
2. Principle of specialty – A fugitive who is Extradition Treaty and Law; and
extradited may be tried only for the crime c. The person sought is extraditable.
specified in the request for extradition and
included in the list of offenses in the At his discretion, the judge may require the
extradition treaty, unless the requested State submission of further documentation or may
does not object to the trial of such person for personally examine the affiants and witnesses
the unlisted offense (1993 Bar); of the petitioner. If, in spite of this study and
3. Any person may be extradited, whether he is a examination, no prima facie finding is possible,
national of the requesting State, of the State of the petition may be dismissed at the
refuge or of another State. He need not be a discretion of the judge.
citizen of the requesting State;
4. Political or religious offenders are generally 5. On the other hand, if the presence of a prima
not subject to extradition (2002 Bar); It has facie case is determined, then the magistrate
been held that “in order to constitute an must immediately issue a warrant for the
offense of a political character, there must be arrest of the extraditee, who is at the same
two or more parties in the state, each seeking time summoned to answer the petition and to
to impose the government of their own choice. appear at scheduled summary hearings;
NOTE: Attentat clause is a provision in an 6. Hearing (provide counsel de officio if
extradition treaty which states that the necessary);
murder of the head of state or any member of 7. Appeal to CA within 10 days whose decision
his family is not to be regarded as a political shall be final and executory;
offense and therefore extraditable. 8. Decision forwarded to DFA through the DOJ;
5. The offense must have been committed within and
the territory of the requesting State or against 9. Individual placed at the disposal of the
its interest; and authorities of requesting State – costs and
6. Double criminality rule – The act for which the expenses to be shouldered by requesting
extradition is sought must be punishable in State.
both the requesting and requested States.
(1991, 2007 Bar) Extradition vs. Deportation (1993 Bar)
Common bars to extradition BASIS EXTRADITION DEPORTATION

Effected at the Unilateral act of
1. Failure to fulfill dual criminality; As to
request of the the local State.
2. Political nature of the alleged crime; authority
State of origin.
3. Possibility of certain forms of punishment; Based on Based on causes
4. Jurisdiction; and offenses arising in the
5. Citizenship of the person in question. As to
committed in local State.
cause
the State of
Procedure origin.

Calls of the Undesirable Nature of extradition proceeding
return of the alien may be
As to fugitive to the deported to a Extradition proceeding is sui generis. It is not a
effect State of origin. State other than criminal proceeding which will call into operation
his own or the all the rights of an accused as guaranteed by the
State of origin. Bill of Rights.
Due process in extradition proceeding Validity of a petition for bail in extradition

cases
Q: Is a respondent in an extradition proceeding
entitled to notice and hearing before the Sec. 11, Art. II of our Constitution provides: “The
issuance of a warrant of arrest? State values the dignity of every human person and
guaranteed full respect for human rights.” The
A: YES Philippines, therefore, has the responsibility of
1. On the Basis of the Extradition Law protecting and promoting the right of every
person to liberty and due process, ensuring that
Under Sec. 6 of P.D. 1069, Extradition Law uses the those detained or arrested can participate in the
word “immediate” to qualify the arrest of the proceedings before a court, to enable it to decide
accused. Hearing entails sending notices to the without delay on the legality of the detention and
opposing parties, receiving facts and order their release if justified.
arguments from them, and giving them time to
prepare and present such facts and The Philippine authorities are under obligation to
arguments. Arrest subsequent to a hearing can no make available to every person under detention
longer be considered “immediate.” The law could such remedies which safeguards their
not have intended the word as a mere superfluity fundamental right to liberty. These remedies
but, on the whole, as a means of imparting a sense include the right to be admitted to bail.
of urgency and swiftness in the determination of (Government of Hong Kong Special Administrative
whether a warrant of arrest should be issued. Region v. Olalia, Jr., G.R. No. 153675, April 19, 2007)
The court is expected merely to get a good first Requisites for granting bail in extradition
impression, a prima facie finding, sufficient to cases
make a speedy initial determination as regards the
arrest and detention of the accused. The possible extraditee must show upon a clear
and convincing evidence that:
2. On the Basis of the Constitution 1. He will not be a flight risk or a danger to the
community; and,
Even Sec. 2 of Art. III of our Constitution, does not 2. There exist special, humanitarian and
require a notice or a hearing before the issuance of compelling circumstances.
a warrant of arrest. To determine probable cause
for the issuance of arrest warrants, the Rights of a person arrested and detained in
Constitution itself requires only the examination, another State
under oath or affirmation, of complainants and
the witnesses they may produce. There is no 1. Right to have his request complied with by the
requirement to notify and hear the accused before receiving State to so inform the consular post
the issuance of warrants of arrest. (U.S. v. of his condition;
Purganan, G.R. No. 148571, September 24, 2002) 2. Right to have his communication addressed to
the consular post forwarded by the receiving
Q: Does an extraditee’s have a right of access to State accordingly; and
the evidence against him? 3. Right to be informed by the competent
authorities of the receiving State without
A: It depends. During the executive phase of an delay his rights as mentioned above.
extradition proceeding, an extraditee does not
have the right of access to evidence in the hands of Q: Is the retroactive application of the
the government. But during the judicial phase he extradition treaty amounting to an ex post
has. (Secretary v. Judge Lantion, GR. No. 139465, facto law?
October 17, 2000)
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POLITICAL LAW
A: No. In Wright v. Court of Appeals, G.R. No.113213, governing the protection of migrant workers and
August 15,1994, it was held that the retroactive families. Concluded on December 18, 1990, it
application of the Treaty of Extradition does not entered into force on July 1, 2003 after the
violate the prohibition against ex post facto laws, threshold of 20 ratifying states was reached in
because the Treaty is neither a piece of criminal March 2003. The Committee on Migrant Workers
legislation nor a criminal procedural statute. It (CMW) monitors implementation of the
merely provided for the extradition of persons Convention and is one of the seven UN-linked
wanted for offenses already committed at the time human rights treaty bodies.
the treaty was ratified.
UNIVERSAL DECLARATION OF HUMAN RIGHTS
BASIC PRINCIPLES OF INTERNATIONAL
HUMAN RIGHTS LAW The basic international statement of the
inalienable rights of human beings. It is the first
Human Rights comprehensive international human rights
instrument. It covers civil and political rights, and
Those inalienable and fundamental rights which economic, social and cultural rights.
are essential for life as human beings.
NOTE: Rights covered by UDHR are customary
International Human Rights Law international law, hence, even during the times
when the bill of rights under the Constitution are
The law which deals with the protection of inoperative, rights under UDHR remained in effect.
individuals and groups against violations by (Republic v. Sandiganbayan, G.R. No. 104768, July
governments of their internationally guaranteed 21, 2003)
rights, and with the promotion of these rights.
(Buergenthal) Q: Is UDHR a treaty?
NOTE: International human rights are divided into A: No. It has no obligatory character because it was
3 generations, namely: adopted by the UN General Assembly as
Resolution 217 (III). As a resolution, it is merely
1. First generation: traditional civil and political recommendatory.
rights;
2. Second generation: economic, social and Basic rights guaranteed by the UDHR
cultural rights; and
3. Third generation: right to peace, clean 1. All human beings are born free and equal in
environment, self-determination, common dignity and rights;
heritage of mankind, development, minority 2. Everyone is entitled to all the rights and
rights. freedoms in this Declaration, without
distinction of any kind such as race, color, sex,
Classification of Human Rights religion, property, or birth. No distinction
shall also be made on the basis of the political
1. Individual rights; and or international status of a country or
2. Collective rights (right to self-determination of territory to which a person belongs;
people; the permanent sovereignty over 3. Right to life, liberty and security of person;
natural resources) 4. Right against slavery or servitude;
5. Right against torture or to cruel, inhuman and
Main instruments of human rights degrading treatment or punishment;
6. Right to be recognized everywhere as a
1. Universal Declaration of Human Rights; person before the law;
2. The International Covenant on Economic, 7. Right to equal protection of the law;
Social and Cultural Rights; and 8. Right to an effective remedy before courts for
3. International Covenant on Civil and Political acts violating fundamental rights;
Rights and its two Optional Protocols. 9. Right against arbitrary arrest, detention or
exile;
NOTE: The Philippines is a signatory to the 10. Right to a fair and public hearing by an
International Convention on the Protection of the independent and impartial tribunal;
Rights of All Migrant Workers and Members of Their 11. Right to be presumed innocent until proven
Families. This instrument is a multilateral treaty guilty;

12. Right to privacy, family, home or and respect of rights of others, for public order and
correspondence; general welfare.
13. Right to freedom of movement and residence;
right to leave any country, including one’s own INTERNATIONAL COVENANT ON CIVIL AND
and to return to one’s own country; POLITICAL RIGHTS
14. Right to seek and enjoy in another country
asylum from persecution; however, this may It is an international covenant and is binding on
not be invoked in the case of prosecutions the respective state parties. It commits its parties
genuinely arising from non-political crimes or to respect the civil and political rights of
acts contrary to the principles of the United individuals. It includes the first generation of
Nations; human rights.
15. Right to a nationality and right against The substantive rights that are treated in the
arbitrary deprivation of such right; covenant on Civil and Political Rights are found in
16. Right to marry, entered into freely and with Articles 1, and 6 to 27.
full consent, without any limitation due to
race, nationality or religion; entitled to equal 1. Life
rights to marriage, during marriage and 2. Liberty and property
dissolution; the family is the natural and 3. Equality
fundamental group of society and is entitled to
protection by society and State.; Rights guaranteed in the International
17. Right to own property alone as well as in Covenant on Civil and Political rights
association with others; right against
arbitrary deprivation of such property; 1. Right to self-determination;
18. Right to freedom of thought, conscience and 2. Right to an effective remedy;
religion; 3. Equal right of men and women to the
19. Right to freedom of opinion and expression; enjoyment of all the civil and political rights;
20. Right to freedom of peaceful assembly and 4. Right to life;
association; no one may be compelled to 5. Not to be subjected to torture or to cruel,
belong to an association; inhuman or degrading treatment or
21. Right to suffrage; right to take part in the punishment. In particular, freedom from
government of one’s country, directly or medical or scientific experimentation except
through representatives; right of equal public with his consent (1992, 2010 Bar);
service in one’s country; 6. Freedom from slavery and servitude;
22. Right to social security; 7. Right to liberty and security of person;
23. Right to work/labor, free choice of 8. Right to be treated with humanity and with
employment, just and favorable conditions of respect for the inherent dignity of the human
work; right to equal pay for equal work; right person;
to form and join trade unions; 9. No imprisonment on the ground of inability to
24. Right to rest and leisure, including reasonable fulfill a contractual obligation;
working hours and periodic holidays with 10. Right to liberty of movement and freedom to
pay; choose his residence;
25. Right to a standard of living adequate for the 11. Right to a fair and public hearing by a
health and being of one’s self and his family; competent, independent and impartial
motherhood and childhood are entitled to tribunal established by law;
special care and assistance; 12. No one shall be held guilty of an criminal
26. Right to education; and offense on account of any act or omission
27. Right to freely participate in the cultural life of which did not constitute a criminal office,
the community, enjoy the arts and share in under national or international law, at the
scientific advancement. time when it was committed;
13. Right to recognition everywhere as a person
Under the Declaration, everyone is entitled to a before the law;
social and international order in which the rights 14. Right to privacy;
and freedoms in this Declaration can be fully 15. Right to freedom of thought, conscience and
realized. The exercise of these rights and freedoms religion;
are subject only to such limitations as are 16. Right to freedom of expressions;
determined by law, for the purpose of recognition 17. Right of peaceful assembly;
18. Right of freedom of association;
341
POLITICAL LAW
19. Right to marry and to found a family; 1. No exceptional circumstances whatsoever,
20. Right to such measures of protection as are whether a state of war or a threat or war,
required by his status as a minor, name and internal political instability or any other
nationality; public emergency or any order from a
21. Right to participation, suffrage and access to superior officer or a public authority may be
public service; invoked as a justification of torture;
22. Right to equal protection of the law; and, 2. No State party shall expel, return (“refouler”)
23. Right of minorities to enjoy their own culture, or extradite a person to another State where
to profess and practice their religion and to there are substantial grounds for believing
use their own language. that he would be in danger of being subjected
to torture;
NOTE: 3. All acts of torture are offenses under a State
GR: In times of public emergency which threatens Party’s criminal law;
the life of the nation and the existence of which is 4. State Parties shall afford the greatest measure
officially proclaimed, parties may take measures of assistance in connection with civil
to derogate from their obligations to the extent proceedings brought in respect of any of the
strictly required by the exigencies of the situation. offences;
5. To ensure that education and information
XPNs: There can be no derogation from the regarding the prohibition against torture are
following: fully included on persons involved in the
custody, interrogation or treatment of any
1. Right to life individual subject to any form of arrest,
2. Freedom from torture or cruel, inhuman or detention, or imprisonment;
degrading punishment 6. To keep under systematic review
3. Freedom from slavery interrogation rules, instructions, methods and
4. Freedom from imprisonment for failure to practices as well as arrangements for the
fulfill a contractual obligation custody and treatment of persons subjected to
5. Freedom from ex post facto laws any form of arrest, detention or imprisonment
6. Right to recognition everywhere as a person in any territory under its jurisdiction, with a
before the law view to preventing any case of torture;
7. Freedom of thought, conscience and religion 7. To ensure a prompt and impartial
investigation wherever there is reasonable
Torture ground to believe that an act of torture has
been committed;
Any act by which severe pain or suffering, whether 8. To ensure that an individual subjected to
physical or mental, is intentionally inflicted on a torture has the right complain and have his
person for such purposes as obtaining from him or case promptly and impartially examined by
a third person, information or a confession, competent authorities;
punishing him for an act he or a third person has 9. To ensure that the victim obtains redress and
committed or is suspected of having committed, or has an enforceable right to fair and adequate
intimidating or coercing him or a third person, or compensation;
for any reason based on discrimination of any 10. To ensure that any statement established to
kind, when such pain or suffering is inflicted by or have been made as a result of torture shall not
at the instigation of or with the consent or be invoked as evidence in any proceedings,
acquiescence of a public official or other person except against a person accused of torture as
acting in an official capacity. (United Nations evidence that the statement was made; and
Convention against Torture and Other Cruel, 11. To prevent in any territory under its
Inhuman or Degrading Treatment or Punishment jurisdiction other acts of cruel, inhuman or
[UNCTO] Effective June 26, 1987) degrading treatment or punishment which do
not amount to torture when such acts are
NOTE: It does not include pain or suffering arising committed by or at the instigation of or with
only from, inherent in or incidental to lawful the consent of acquiescence of a public official
sanctions. or other person acting in an official capacity.
Obligations of the State Parties in the UNCTO Instances when a state party may establish its
jurisdiction over offenses regarding torture

1. When the offenses are committed in any means and methods of warfare. This is used to be
territory under its jurisdiction or on board a known as the Laws of War which provides for
ship or aircraft registered in the State; instances when the use of armed force is justifiable
2. When the alleged offender is a national of that (jus ad bellum) and regulates the conduct of armed
State; conflict (jus in bello).
3. When the victim was a national of that State if
that State considers it appropriate; and Importance of IHL
4. Where the alleged offender is present in any
territory under its jurisdiction and it does not It is one of the most powerful tools the
extradite him. international community has at its disposal to
ensure the safety and dignity of people in times of
NOTE: Nos. 1 to 3 are considered as extraditable war. It seeks to preserve a measure of humanity,
offences. In the absence of an extradition treaty, with the guiding principle that even in war there
the UNCTO may be considered as the legal basis are limits.
for extradition. Such offenses shall be treated, for
the purpose of extradition, as if they have been Fundamental principles of IHL
committed not only in the place in which they
occurred but also in the territories of the State 1. Parties to armed conflict are prohibited from
required to establish their jurisdiction. employing weapons or means of warfare that
cause unnecessary damage or excessive
INTERNATIONAL COVENANT ON ECONOMIC, suffering (Principle of prohibition of use of
SOCIAL AND CULTURAL RIGHTS weapons of a nature to cause superfluous injury
or unnecessary suffering);
It is a multilateral treaty adopted by the United 2. Parties to armed conflict shall distinguish
Nations General Assembly. It commits its parties between civilian populace from combatants
to work toward the granting of economic, social, and spare the former from military attacks
and cultural rights. It embodies the second (Principle of distinction between civilians and
generation of human rights. combatants);
3. Persons hors de combat and those who do not
Rights guaranteed thereunder take part in hostilities are entitled to respect
for their lives and their moral and physical
1. Right to work (Art. 6) integrity. They shall be protected and treated
2. Right to favorable conditions of work (Art. 7) humanely without any adverse distinction;
3. Right to form trade unions (Art. 8) 4. It is prohibited to kill or injure an enemy who
4. Right to social security and insurance (Art. 9) surrenders or who is a hors de combat;
5. Right to special assistance for families (Art. 5. The wounded and the sick shall be protected
10) and cared for by the party who is in custody of
6. Right to adequate standard of living (Art. 11) them. Protection shall cover medical
7. Right to the highest standard of physical and personnel, establishments, transports and
mental health (Art. 12) equipment; and
8. Right to education including compulsory 6. Parties who captured civilians and
primary education (Arts. 13 and 14) combatants shall respect the latter’s rights to
9. Right to enjoyment of cultural and scientific life, dignity, and other personal rights.
benefits and international contacts (Art. 15)
10. Right to strike Essential rules of IHL
11. Right to be free from hunger
12. Freedom of scientific research and creativity 1. The parties to a conflict must at all times
distinguish between the civilian population
BASIC PRINCIPLES OF INTERNATIONAL and combatants;
HUMANITARIAN LAW 2. Neither the civilian population as a whole nor
individual civilians may be attacked;
International Humanitarian Law (IHL) 3. Attacks may be made sole against military
objectives;
A set of rules which seek, for humanitarian 4. People who do not or can no longer take part
reasons, to limit the effects of armed conflict. It in the hostilities are entitled to respect for
protects persons who are not or are no longer their lives and for their physical and mental
participating in the hostilities and restricts the integrity and must be treated with humanity,
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POLITICAL LAW
without any unfavorable distinction Branches of IHL
whatever; 1. Law of Geneva – Designed to safeguard
5. It is forbidden to kill or wound an adversary military personnel who are no longer taking
who surrenders or who can no longer take part in the fighting and people not actively
part in the fighting; participating in the war.
6. Neither the parties to the conflict nor
members of their armed forces have an Essence of Geneva Convention
unlimited right to choose methods and means
of warfare; Persons not actively engaged in warfare should be
7. It is forbidden to use weapons or methods of treated humanely. The rules apply to any
warfare that are likely to cause unnecessary international armed conflict, whether a declared
losses and excessive suffering; war or not.
8. The wounded and sick must be collected and
cared for by the party to the conflict which has NOTE: It includes the:
them in its power; a. Wounded and Sick in the Field;
9. Medical personnel and medical b. Wounded, Sick and Shipwrecked at Sea;
establishments, transports and equipment c. Prisoners of War; and
must be spared. The red cross or red crescent d. Civilians.
is the distinctive sign indicating that such
persons and objects must be respected; and 2. Law of the Hague – Establishes the rights and
10. Captured combatants and civilians who find obligations of belligerents in the conduct of
themselves under the authority of the adverse military operations, and limits the means of
party are entitled to respect for their lives, harming the enemy.
their dignity, their personal rights and their
political, religious and other convictions and NOTE: Belligerents are inhabitants of a State
must be protected against all acts of violence who rise up in arms for the purpose of
or reprisals; entitled to exchange of news with overthrowing the legitimate government.
their families and receive aid and enjoy basic
judicial guarantees. Persons protected under IHL
Application of IHL IHL protects those who are not, or no longer,

participating in hostilities, such as:
IHL concerns two situations: 1. Civilians;
1. International armed conflicts, which involve 2. Medical and religious military personnel;
at least two countries; and 3. Wounded, shipwrecked and sick combatants;
2. Armed conflicts that take place in one country and
(such as those between a government and 4. Prisoners of war.
rebel forces).
NOTE: Recognizing their specific needs, IHL
NOTE: IHL applies to all parties to a conflict grants women and children additional protection.
regardless of who started it.
Protection under IHL
“New” conflicts covered by the IHL
1. IHL prohibits the use of weapons which are
1. Anarchic conflicts – It is a situation where armed particularly cruel, or which do not distinguish
groups take advantage of the weakening or between combatants and civilians.
breakdown of the State structures in an attempt to 2. The parties to a conflict are required to:
grab power; and a. Distinguish between combatants and
2. Those in which group identity becomes a focal civilians, and to refrain from attacking
point – These groups exclude the adversary civilians;
through “ethnic cleansing” which consists in b. Care for the wounded and sick and
forcibly displacing or even exterminating protect medical personnel;
populations. This strengthens group feeling to the c. Ensure that the dignity of prisoners of
detriment of the existing national identity, ruling war and civilian internees is preserved by
out any possibility of coexistence with other allowing visits by International
groups. Committee of the Red Cross delegates.

International Humanitarian Law (IHL) vs. role is to enhance the
Human Rights Law effectiveness of the UN
human rights
INTERNATIONAL machinery and to
HUMAN RIGHTS
HUMANITARIAN build up national,
LAW
LAW regional and
Application international capacity
Situations of armed Applicable at all times to promote and
conflict only. in war and peace alike. protect human rights
Permissibility of derogation and to disseminate
No derogations are Some human rights human rights texts
permitted under IHL treaties permit and information.
because it was governments to Human rights also
conceived for derogate from certain provide for the
emergency situations rights, in situations of establishment of
namely armed public emergency. committees of
conflict. independent experts
Purpose charged with
Aims to protect Tailored primarily for monitoring their
people who do not or peacetime,and applies implementation.
are no longer taking to everyone. Their Certain regional
part in hostilities. The principal goal is to treaties (European
rules embodied in IHL protect individuals and American) also
impose duties on all from arbitrary establish human
parties of a conflict. behavior by their own rights courts.
governments.
Consequence to states NOTE: IHL and International human rights law
Obliges states to take States are bound by (hereafter referred to as human rights) are
practical and legal human rights law to complementary. Both strive to protect the lives,
measures, such as accord national law health and dignity of individuals, albeit from a
enacting penal with international different angle.
legislation and obligations.
disseminating IHL. CATEGORIES OF ARMED CONFLICT
Applicable mechanisms
Provides for several Implementing Kinds/types of conflict as contemplated in R.A.
mechanisms that help mechanisms are 9851
its implementation. complex and, contrary
Notably, states are to IHL include regional 1. International Armed Conflict – between
required to ensure systems. Supervisory two or more States including belligerent
respect also by other bodies, e.g. the UN occupation.
states. Provision is Commission on 2. Non-International Armed Conflict –
also made for inquiry Human Rights between governmental authorities and
procedure, a (UNCHR), are either organized armed groups or between such
Protecting Power based on the UN groups within a State.
mechanism, and the Charte or provided for
International Fact- in specific treaties. NOTE: It does not cover internal disturbances or
Finding Commission. tensions such as riots, isolated and sporadic acts of
In addition, the The UNCHR have violence or other acts of a similar nature (R.A.
International developed a 9851).
Committee of the Red mechanism of special
Cross (ICRC) is given a rapporteurs and 3. War of National Liberation– an armed
key role in ensuring working groups, struggle waged by a people through its
respect for the whose task is to liberation movement against the
humanitarian rules. monitor and report on established government to reach self-
human rights determination.
situations either by
country or by topic. Its
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POLITICAL LAW
It is also used to denote conflicts in which peoples 3. A civilian or any person not taking a direct
are fighting against colonial domination and alien part or having ceased to take part in the
occupation and against racist regimes in the hostilities in the power of the adverse
exercise of their right of self-determination, as party;
enshrined in the U.N. Charter and the Declaration 4. A person who, before the beginning of
of Principles of International Law. [Protocol I, Art. hostilities, was considered a stateless
1(4)] person or refugee under the relevant
international instrument accepted by the
INTERNATIONAL ARMED CONFLICT parties to the conflict concerned or under
the national legislation of the state of
Armed conflict under IHL and R.A. 9851 refuge or state of residence;
5. A member of the medical personnel
1. “All cases of declared war or any other armed assigned exclusively to medical purposes
conflict which may arise between two or more or to the administration of medical units
of the Highest contracting parties, even if the or to the operation of an administration of
State of war is not recognized by one of them” medical transports; or
(Geneva Convention of 1949, Art. 2). It also 6. A member of the religious personnel who
applies to armed conflict between the is exclusively engaged in the work of their
government and a rebel or insurgent ministry and attached to the armed forces
movement (Geneva Convention of 1949, Art. 3). of a party to the conflict, its medical units
2. Under R.A. 9851, it is any use of force or armed or medical transports or non-
violence between States or a protracted denominational, non-combatant military
armed violence between governmental personnel carrying out functions similar
authorities and organized groups or between to religious personnel.
such groups within a State provided that it
gives rise or may give rise to a situation to NOTE: In such situations, the Geneva Conventions
which the Geneva Conventions of 12 August and Additional Protocol I, which calls for the
1949 including their common Art. 3 apply. protection of wounded and sick soldiers, medical
personnel, facilities and equipment, wounded and
Instances not covered by an armed conflict sick civilian support personnel accompanying the
armed forces, military chaplains and civilians who
It does not include internal disturbances or spontaneously take up arms to repel an invasion,
tensions such as: apply.
1. Riots;
2. Isolated and sporadic acts of violence; and INTERNAL OR NON-INTERNATIONAL ARMED
3. Other acts of a similar nature. CONFLICT
Hors de combat Inapplicability of IHL in internal disturbance
Refers to any person who: Internal disturbances and other situations of

1. Is in the power of an adverse party to the internal violence are governed by the provisions of
conflict human rights law and such measures of domestic
2. Has clearly expressed an intention to legislation as may be invoked. IHL does not apply
surrender; and to situations of violence not amounting in intensity
Has been rendered unconscious or otherwise to an armed conflict.
incapacitated by wounds or sickness and
therefore is incapable of defending himself Applicability of IHL in non-international
provided he abstains away from any hostile act armed conflicts
and does not attempt to escape (R.A. 9851)
IHL is intended for the armed forces, whether
Protected persons in an armed conflict regular or not, taking part in the conflict, and
protects every individual or category of
1. A person wounded, sick or shipwrecked, individuals not or no longer actively involved in
whether civilian or military; the hostilities. e.g.: wounded or sick fighters;
2. A prisoner of war or any person deprived people deprived of their freedom as a result of the
of liberty for reasons related to an armed conflict; civilian population; medical and religious
conflict personnel.

Categories of wars of national liberation
Applicable rules in non-international armed
conflict 1. Colonial domination;
2. Alien occupation; and
1. Persons taking no active part in the 3. Racist regimes when the peoples oppressed
hostilities, including armed forces who by these regimes are fighting for self-
have laid down their arms and those determination.
placed hors de combat be treated
humanely, without any adverse NOTE: The above listed enumeration is
distinction founded on race, color, EXCLUSIVE.
religion or faith, sex, birth or wealth, or
any other similar criteria. To these end, Effect of the protocol
the following acts are and shall remain
prohibited at any time and any place Armed conflicts that fall under the categories will
whatsoever with respect to the now be regarded as international armed conflicts
abovementioned persons: and thus fall under the International
Humanitarian Law.
a. Violence to life and person, in
particular murder of all kinds, War
mutilation, cruel treatment and
torture; A contention between two States, through their
b. Taking of hostages; armed forces, for the purpose of overpowering the
c. Outrages against personal other and imposing such conditions of peace as the
dignity, in particular humiliating victor pleases.
and degrading treatment;
d. The passing of sentences and the Instances when force is allowed
carrying out of executions
without previous judgment Under the UN Charter, the use of force is allowed
pronounced by a regularly only in two instances, to wit:
constituted court, affording all
the judicial guarantees which are 1. In the exercise of the inherent right of self-
recognized as indispensable by defense; and (1998, 2002, 2009 Bar); and
civilized peoples. 2. In pursuance of the so-called enforcement
action that may be decreed by the Security
2. The wounded and sick shall be collected Council.
and cared for.
Steps in the Commencement of a war
NOTE: An impartial humanitarian body, such as
the International Committee of the Red Cross, may 1. Declaration of war;
offer its services to the parties to the conflict. 2. Rejection of an ultimatum; and
3. Commission of an act of force regarded by at
WAR OF NATIONAL LIBERATION least one of the parties as an act of war.
Armed conflicts in which people are fighting Declaration of war

against colonial domination and alien occupation
and against racist regimes in the exercise of their A communication by one State to another
right to self-determination [Protocol I, Art. 1(4)]. informing the latter that the condition of peace
These are sometimes called insurgencies, between them has come to an end and a condition
rebellions or wars of independence. of war has taken place.
Basis Ultimatum
Protocol Additional to the Geneva Conventions of A written communication by one State to another
12 August 1949 and relating to the Protection of which formulates, finally and categorically, the
Victims of International Armed Conflicts. (Protocol demands to be fulfilled if forcible measures are to
I, June 8 1977) be averted.
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POLITICAL LAW
Effects of the outbreak of war 3. The measures adopted must not be
excessive, in the sense of being out of all
1. Laws of peace are superseded by the laws of proportion to the vocation received
war;
2. Diplomatic and consular relations between Retorsion (1991, 2010 Bar)
the belligerents are terminated;
3. Treaties of political nature are automatically It is an unfriendly act which may be taken by one
cancelled, but those which are precisely state against another. It may be in response to an
intended to operate during war such as one internationally wrongful conduct or an unfriendly
regulating the conduct of hostilities, are act but which is nonetheless lawful.
activated; and
4. Enemy public property found in the territory (Any act taken in “retaliation where the acts
of other belligerent at the outbreak of the complained of do not constitute a legal ground of
hostilities is with certain exceptions, subject offense but are rather in the nature of unfriendly
to confiscation. acts but indirectly hurtful to other states.”
(Fernwich, 532 as cited in Cruz, 2000)
NOTE: An army of occupation can only take
possession of the cash, funds, and property Elements:
liable to requisition belonging strictly to the
State, depots of arms, means of transport, 1. It is unfriendly;
stores and supplies, and, generally, all 2. It is lawful; and
movable property of the State which may be 3. It is remedial in character
used for military operations. Railway plant,
land telegraphs, telephones, steamers, and Because the act is legitimate, no responsibility is
other ships, apart from cases governed by engaged in international law, and the state taking
maritime law, as well as depots of arms and, the retorsion has a wide discretion as to what
generally, all kinds of war material, even unfriendly actions it may implement, and to what
though belonging to companies or to private extent. (Wallace-Brucem The Settlement of
persons, are likewise material which may International Disputes: The Contribution of
serve for military operations, but they must be Australia and New Zealand
restored at the conclusion of peace, and 1998)
indemnities paid for them. (Laws and Customs
of War on Land, Hague II July 29, 1899, Art. 53) Tests in determining the enemy character of
individuals
Reprisal (1991 Bar)
1. Nationality test – If they are nationals of the
Act of self-help on the part if the injured state, other belligerent, wherever they may be;
responding after an unsatisfied demand to an act 2. Domiciliary test – If they are domiciled aliens
contrary to international law on the part of the in the territory of the other belligerent, on the
offending state. assumption that they contribute to its
economic resources;
A retaliatory action against an enemy in wartime. 3. Activities test – If, being foreigners, they
It is an otherwise illegal act done in response to a nevertheless participate in the hostilities in
prior illegal act by an enemy, proportionate to the favor of the other belligerent;
original wrong and designed to compel the enemy 4. Territorial or Commercial Domicile Test – In
to desist from his illegal acts on the battlefield. matters referring to economic warfare; and
Under such circumstances the law of armed 5. Controlling Interest Test – This test is applied
conflicts recognizes the otherwise illegal acts as to corporation in addition to the place of
legal. (The Naulilaa Case, involving Portugal and incorporation test. A corporation is
Germany) considered as enemy if it:
a. is incorporated in an enemy territory; and
Conditions for legitimacy of reprisals b. is controlled by individuals bearing
enemy character.
1. There must have been an illegal action on
the part of the other state; Principle of Distinction
2. They must be preceded by a request for
redress of the wrong;

Parties to an armed conflict must at all times Any person who does not belong to the armed
distinguish between civilian and military targets forces and who is not a combatant.
and that all military operations should only be
directed at military targets. NOTE: In case of doubt whether a person is a
civilian or not, that person shall be considered as a
Participants in war civilian.
1. Combatants – Those who engage directly in Suspension of arms

the hostilities, and
2. Non-combatants – Those who do not, such as A temporary cessation of hostilities by agreement
women and children. of the local commanders for such purposes as the
gathering of the wounded and the burial of the
Combatants dead.
Those individuals who are legally entitled to take Armistice

part in hostilities. These include: The suspension of hostilities within a certain area
or in the entire region of the war, agreed upon by
1. Regular Forces (RF) – Members of the armed the belligerents, usually for the purpose of
forces except those not actively engaged in arranging the terms of the peace.
combat. These are the army, navy, and air
force. Non-combatant members of the armed Armistice vs. Suspension of arms
forces include: chaplains, army services and
medical personnel SUSPENSION OF
BASIS ARMISTICE
2. Irregular Forces (IF) – Also known as ARMS
franctireurs consist of militia and voluntary As to Political Military
corps. These are members of organized purpose
resistance groups, such as the guerrillas. They As to Usually in May be oral.
are treated as lawful combatants provided form writing.
that they are: Only by the May be
a. Being commanded by a person As to who
commanders- concluded by the
responsible for his subordinates; may
in-chief local
b. Wearing a fixed distinctive sign or some conclude
of the commanders.
type of uniform; belligerent
c. Carrying arms openly; and governments.
d. Obeying the laws and customs of war.
Ceasefire
3. Non-privileged Combatants (NPC) – individuals
who take up arms or commit hostile acts An unconditional stoppage of all hostilities usually
against the enemy without belonging to the ordered by an international body like the United
armed forces or forming part of the irregular Nations Security Council for the purpose of
forces. If captured, they are not entitled to the employing peaceful means of settling the
status of prisoners of war. differences between the belligerents.
4. Citizens who rise in a “levee en masse” – The
inhabitants of unoccupied territory who, on Truce
approach of the enemy, spontaneously take
arms to resist the invading troops without Sometimes used interchangeably with armistice
having time to organize themselves, provided but is now generally regarded as a ceasefire with
only that they: conditions attached.
a. Carry arms openly; and
b. Observe the laws and customs of war. Capitulation
5. The officers and crew members of merchant The surrender of military forces, places or
vessels who forcibly resist attack. districts, in accordance with the rules of military
honor.
Civilian
Basic principles that underlie the rules of
warfare
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POLITICAL LAW
1. The Principle of Military Necessity – The Where the territory of one belligerent State is
belligerent may employ any amount of force occupied by the enemy during war, the legitimate
to compel the complete submission of the government is ousted from authority. When the
enemy with the least possible loss of lives, belligerent occupation ceases to be effective, the
time and money. authority of the legitimate government is
automatically restored, together with all its laws,
NOTE: Under R.A. 9851, it is the necessity of by virtue of the jus postliminium.
employing measures which is indispensable
to achieve a legitimate aim of the conflict and Principle of Uti Possidetis
not prohibited by IHL.
Allows retention of property or territory in the
2. The Principle of Humanity – Prohibits the use belligerent’s actual possession at the time of the
of any measure that is not absolutely cessation of hostilities.
necessary for the purpose of the war, such as
the poisoning of wells, destruction of works of Jus ad bellum (Law on the use of force)
art and property devoted to religious or
humanitarian purposes. It seeks to limit resort to force between States.
States must refrain from the threat or use of force
3. The Principle of Chivalry – Prohibits the against the territorial integrity or political
belligerents from the employment of independence of another state. (UN Charter, Art. 2,
treacherous methods in the conduct of par. 4)
hostilities, such as the illegal use of Red Cross
emblems. XPNs:
1. Self-defense; or
4. The Principle of Proportionality – The legal use 2. Following a decision adopted by the UN
of force whereby belligerents must make sure Security Council under Chapter VII of the UN
that harm caused to civilians or civilian Charter.
property is not excessive in relation to the
concrete and direct military advantage from Status Quo Ante Bellum
an anticipated attack or by an attack on
military objective. Each of the belligerents is entitled to the territory
and property which it had possession of at the
War may be terminated by commencement of the war.
1. Simple cessation of hostilities, without the REPUBLIC ACT 9851 (PHILIPPINE ACT ON
conclusion of a formal treaty; CRIMES AGAINST INTERNATIONAL
2. Treaty of peace; HUMANITARIAN LAW, GENOCIDE, AND OTHER
3. Unilateral declaration; and CRIMES AGAINST HUMANITY)
4. The complete submission and subjugation of Effect/relevance of the passage of R.A .9851
one of the belligerents, followed by a dictated
treaty of peace or annexation of conquered R.A. 9851 mandates both the State and non-state
territory armed groups to observe international
humanitarian law standards and gives the victims
Postliminium of war-crimes, genocide and crimes against
humanity legal recourse.
It imports the reinstatement of the authority of the
displaced government once control of the enemy State Policies under R.A. 9851
is lost over the territory affected
1. The renunciation of war and adherence to a
Is that in which persons or things taken by the policy of peace, equality, justice, freedom,
enemy are restored to the former state on coming cooperation and amity with all nations;
actually into the power of the nation to which they 2. Values the dignity of every human person and
belong. guarantees full respect of human rights;
3. Promotion of Children as zones of peace
Application of the Principle of Postliminium 4. Adoption of the generally accepted principles
(1979 Bar) of international law;

5. Punishment of the most serious crimes of e. Willfully depriving a prisoner of war or
concern to the international community; and other protected person of the rights of fair
6. To ensure persons accused of committing and regular trial;
grave crimes under international law all rights f. Arbitrary deportation or forcible transfer
for a fair and strict trial in accordance with of population or unlawful confinement;
national and international law as well as g. Taking hostages;
accessible and gender-sensitive avenues of h. Compelling a prisoner of war or other
redress for victims of armed conflicts. protected person to serve in the forces of
a hostile power; and
NOTE: The application of the provisions of this Act i. Unjustifiable delay in the repatriation of
shall not affect the legal status of the parties to a prisoners of war or other protected
conflict, nor give an implied recognition of the persons.
status of belligerency.
2. In case of non-international armed conflict,
Genocide serious violation of common Art. 3 to the four
Geneva Conventions of August 12 1949,
1. Any of the following acts with intent to namely any of the following acts committed
destroy, in whole or in part, a national, ethnic, against persons taking no active part in the
racial, religious, social or any other similar hostilities, including members of the armed
stable and permanent group such as: forces who have laid down their arms and
a. Killing of members of the group; those placed hors de combat by sickness,
b. Causing serious bodily or mental harm to wounds, detention or any other cause:
members of the group; a. Violence to life and person, in particular,
c. Deliberately inflicting on the group willful killings, mutilation, cruel
conditions of life calculated to bring about treatment and torture;
its physical destruction in whole or in b. Committing outrages upon personal
part; dignity, in particular humiliating and
d. Imposing measure intended to prevent degrading treatment;
births within the group; and c. Taking of hostages; and
e. Forcibly transferring children of the d. The passing of sentences and the carrying
group to another group. out of executions without previous
judgment pronounced by a regularly
2. Directly and publicly inciting others to commit constituted court, affording all judicial
genocide (R.A. 9851) guarantees which are generally
recognized as indispensable.
NOTE: Genocide may be committed either during
war or armed conflict or in times of peace. 3. Other serious violations of the laws and
customs applicable in the armed conflict
War crimes within the established framework of
international law, namely:
It means grave breaches of the Geneva a. Intentionally directing attacks against the
Conventions of August 12, 1949, which are any of civilian population as such or against
the acts enumerated under Article 8 of the ICC individual civilians not taking direct part
Statute against persons or property protected in hostilities;
under the provisions of the relevant Convention. b. Intentionally directing attacks against
civilian objects, that is, objects which are
1. Namely any of the following acts against not military objectives;
persons or property protected: c. Intentionally directing attacks against
a. Willful killing; buildings, material, medical units and
b. Torture or inhuman treatment, including transport, and personnel using the
biological experiments; distinctive emblems of Additional
c. Willfully causing great suffering, or Protocol II in conformity with
serious injury to body or health; international law;
d. Extensive destruction and appropriation d. Intentionally directing attacks against
of property not justified by military personnel, installations, material, units or
necessity and carried out unlawfully and vehicles involved in a humanitarian
wantonly; assistance or peacekeeping mission in
351
POLITICAL LAW
accordance with the Charter of the United cause death to or seriously endanger the
Nations as long as they are entitled to the health of such person or persons;
protection given to civilians or civilian l. Killing wounding or capturing an
objects under the international law of adversary by resort to perfidy
armed conflict;
e. Launching an attack in the knowledge NOTE:Perfidy – A combatant’s conduct
that such attack will cause incidental loss that creates the impression that an
of life or injury to civilians or damage to adversary is entitled to, or is obliged to
civilian objects or widespread long-term accord protection under international law
and severe damage to the natural when in fact the conduct is use to gain an
environment which would be excessive in advantage (Black’s Law Dictionary).
relation to the concrete and direct
military advantage anticipated; m. Declaring that no quarter will be given;
f. Launching an attack against works or n. Destroying or seizing the enemy’s
installations containing dangerous forces property unless such destruction or
in the knowledge that such attack will seizure is imperatively demanded by the
cause excessive loss of life, injury to necessities of war;
civilians or damage to civilian objects, and o. Pillaging a town or place, even when
causing death or serious injury to body or taken by assault;
health; p. Ordering the displacement of the civilian
g. Attacking or bombarding, by whatever population for reasons related to the
means, towns, villages, dwellings or conflict, unless the security of the civilians
buildings which are undefended and involved or imperative military reasons
which are not military objectives, or so demand;
making non-defended localities or q. Transferring, directly or indirectly, by
demilitarized zones the object of attack; occupying power of parts of its own
h. Killing or wounding a person in the civilian population into the territory it
knowledge that he/she is hors de combat, occupies, or the deportation or transfer of
including a combatant who, having laid all or parts of the population of the
down his/her arms no longer having occupied territory within or outside this
means of defense, has surrendered at territory;
discretion; r. Committing outrages upon personal
i. Making improper use of a flag of truce, of dignity, in particular, humiliating and
the flag or the military insignia and degrading treatment;
uniform of the enemy or of the United s. Committing rape, sexual slavery, enforced
Nations, as well as of the distinctive prostitution, forced pregnancy, enforced
emblems of the Geneva Conventions or sterilization, or any other form of sexual
other protective signs under the violence;
International Humanitarian Law, t. Utilizing the presence of a civilian or other
resulting in death, serious personal injury protected person to render certain points,
or capture; areas or military forces immune from
j. Intentionally directing attacks against military operations;
buildings dedicated to religion, education, u. Intentionally using starvation of civilians
art, science, or charitable purposes, as a method of warfare by depriving them
historic monuments, hospitals and places of objects indispensable to their survival,
where the sick and wounded are including willfully impending relief
collected, provided that they are not supplies;
military objectives. v. In an international armed conflict,
k. Subjecting persons who are in the power compelling the nationals of the hostile
of an adverse party to physical mutilation party to take part in the operations of war
or to medical or scientific experiments of directed against their own country, even
any kind, or to removal of tissue or organs if they were in the belligerent’s service
for transplantation, which are neither before the commencement of the war;
justified by the medical, dental or hospital w. In an international armed conflict,
treatment of the person concerned not declaring abolished, suspended or
carried out in his/her interest, and which inadmissible in a court of law the rights

and actions of the nationals of the hostile cultural, religious, gender, sexual orientation
party; other grounds that are universally recognized
x. Committing any of the following acts: as impermissible under international law;
i. Conscripting, enlisting or recruiting 9. Enforced or involuntary disappearance of
children under the age of 15 years persons;
into the national armed forces; 10. Apartheid; and
ii. Conscripting, enlisting, or recruiting 11. Other inhumane acts of similar character
children under the age of 18 years intentionally causing great suffering, or
into an armed force or group other serious injury to body or to mental or physical
than the national armed forces; and health. (RA 9851)
iii. Using children under the age of 18
years to participate actively in CORE INTERNATIONAL OBLIGATIONS OF
hostilities; STATES UNDER THE IHL
y. Employing means of warfare which are 1. The protection of persons who are not, or are
prohibited under international law, such no longer, participating in hostilities;
as:
i. Poison or poisoned weapons; 2. Soldiers who surrender or who are hors de
ii. Asphyxiating, poisonous or other combat are entitled to respect for their lives
gases, and all analogous liquids, and their moral and physical integrity. It is
materials or devices; forbidden to kill or injure them;
iii. Bullets which expand or flatten easily 3. The wounded and sick must be collected and
in the human body, such as bullets cared for by the party to the conflict which has
with hard envelopes which do not them in its power. Protection also covers
entirely cover the core or are pierced medical personnel, establishments, transports
with incisions; and and equipment. The emblem of the red cross,
iv. Weapons, projectiles and material red crescent or red crystal is the sign of such
and methods of warfare which are of protection and must be respected;
the nature to cause superfluous 4. Captured combatants are entitled to respect
injury or unnecessary suffering or for their lives, dignity, personal rights and
which are inherently indiscriminate convictions. They must be protected against all
in violation of the international law of acts of violence and reprisals. They must have
armed conflict. (R.A .9851) the right to correspond with their families and
to receive relief;
“Other crimes against humanity” aside from 5. Civilians under the authority of a party to the
war crimes and genocide under RA 9851 conflict or an occupying power of which they
are not nationals are entitled to respect for
Any of the following acts when committed as part their lives, dignity, personal rights and
of a widespread or systematic attack directed convictions;
against any civilian population, with knowledge of 6. Everyone must be entitled to benefit from
the attack: fundamental judicial guarantees. No one must
be sentenced without previous judgment
1. Murder pronounced by a regularly constituted court;
2. Extermination; 7. No one must be held responsible for an act he
3. Enslavement; has not committed. No one must be subjected
4. Arbitrary deportation or forcible transfer of to physical or mental torture, corporal
population; punishment or cruel or degrading treatment;
5. Imprisonment or other severe deprivation of 8. The right of parties to an armed conflict to
physical liberty in violation of fundamental choose methods and means of warfare is not
rules of international law; unlimited;
6. Torture; 9. Parties to a conflict and members of their
7. Rape, sexual slavery, enforced prostitution, armed forces do not have an unlimited choice
forced pregnancy, enforced sterilization or of methods and means of warfare. It is
any other form of sexual violence of prohibited to employ weapons or methods of
comparable gravity; warfare of a nature to cause unnecessary losses
8. Persecution against any identifiable group or or excessive suffering; and
collectivity on political, racial, national, ethnic,
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POLITICAL LAW
10. Parties to a conflict must at all times
distinguish between the civilian population 1. They form part of such armed forces of the
and combatants in order to spare civilian state; or
population and property. Adequate 2. They fulfill the following conditions:
precautions shall be taken in this regard before a. They are being commanded by a person
launching an attack. responsible as superior;
b. They have a fixed distinctive sign
PRINCIPLE OF HUMANITY OR MARTENS recognizable at a distance;
CLAUSE c. They carry arms openly; and
d. They conduct their operations in
In cases not covered by other international accordance with the laws and customs of
agreements, civilians and combatants remain war.
under the protection and authority of the
principles of International Law derived from Captured guerilla as prisoners of war
established custom, from the Principles of
Humanity and from the dictates of public A captured guerilla or other members of organized
conscience. resistance movements may demand treatment
afforded to a prisoner of war under the 1949
The extensive codification of IHL and the extent of Geneva Convention, provided that:
the accession to the resultant treaties, as well as
the fact that the denunciation clauses that existed 1. They are being commanded by a person
in the codification instruments have never been responsible as superior;
used, have provided the international community 2. They have a fixed distinctive sign recognizable
with a corpus of treaty rules the great majority of at a distance;
which had already become customary and which 3. They carry arms openly; and
reflected the most universally recognized 4. They conduct their operations in accordance
humanitarian principles. These rules indicate the with the laws and customs of war.
normal conduct and behavior expected of States.
NOTE: Persons such as civilian members of
PRISONERS OF WAR military aircraft crews, and war correspondents,
shall be so entitled to prisoner-of-war status when
Those lawful combatants who have fallen into the they fall under the hands of the enemy.
power of the enemy.
Status of Journalists who are engaged in
Rights and privileges of prisoners of war dangerous professional missions in areas of
armed conflicts
1. To be treated humanely;
2. Not to be subject to torture; They shall be treated as civilians, provided that
3. To be allowed to communicate with their they take no action adversely affecting their status
families; as civilians, and their prisoners-of-war status to
4. To receive food, clothing, religious articles, the armed forces when they fall to the enemy
and medicine; hands.
5. To bare minimum of information;
6. To keep personal belongings; Treatment of spies when captured
7. To proper burial;
8. To be grouped according to nationality; As spy is a soldier employing false pretenses or
9. To the establishment of an informed bureau; acts through clandestine means to gather
and information from the enemy.
10. To repatriation for sick and wounded (1949
Geneva Convention) When captured, may be proceeded against under
the municipal law of the other belligerent,
Members of Militias or Volunteer Groups as although under the Hague Convention, may not be
Prisoners-Of-War executed without trial. But if captured after he has
succeeded in rejoining his army, must be treated
Members of militias or volunteer groups are as a prisoner of war. (Nachura, Political Law
entitled to prisoner-of-war status when captured Outline, 2014)
by the enemy, provided that:

A soldier not wearing uniform during hostilities of war or
runs the risk of being treated as a spy and not conflict.
entitled to prisoner of war status. When caught, Avoids Rejects
they are not to be regarded as prisoners of war. involvement imperialism
in a war. and
NOTE: Military scouts are not spies. Purpose
colonialism by
the world
Spies are not entitled to prisoner-of-war status powers.
when captured by the enemy. Any member of the Pre- Evaluates the
armed forces of a party to the conflict who falls determined world political
into the power of an adverse party while engaging As to nature position. events based
in espionage shall not have the right to the status on case-to-
of prisoner of war and may be treated as a spy. case merits.
However, the following acts of gathering or A State considered as a neutralized state

attempting to gather information shall not be
considered as acts of espionage: When its independence and integrity are
guaranteed by an international convention on the
1. When made by a member of the armed forces condition that such State obligates itself to never
who is in uniform; and take up arms against any other State, except for
2. When made by a member of the armed forces self-defense, or enter into such international
who is a resident of the territory occupied by obligations as would indirectly involve a war.
an adverse party who does so but not through
an act of false pretenses or in a deliberately Rights and Duties of a Neutral State
clandestine manner.
1. Duty of abstention – Abstain from taking part
LAW OF NEUTRALITY in the hostilities and from giving assistance to
either belligerent;
Neutrality 2. Duty of prevention – Prevent its territory and
other resources from being used in the
It is non-participation, directly or indirectly, in a conduct of hostilities;
war between contending belligerents. This exists 3. Duty of acquiescence – Acquiesce in certain
only during war time and is governed by the law of restrictions and limitations the belligerents
nations. It is dependent solely on the attitude of may find necessary to impose; and
the neutral state. 4. Right of diplomatic communication – To
continue diplomatic relations with other
e.g.: Switzerland, Sweden, The Vatican City, and neutral states and with the belligerents.
Costa Rica.
Obligations of belligerents
Non-alignment (Neutralism)
1. Respect the status of the neutral State; and
This refers to peacetime foreign policies of nations 2. Avoid any act that will directly or indirectly
desiring to remain detached from conflicting involve it in their conflict; and
interests of other nations or power groups. 3. to submit to any lawful measure it may take to
maintain or protect its neutrality.
Neutralist policy
Some restraints on neutral states
It is the policy of the state to remain neutral in
future wars. 1. Blockade;
2. Contraband of war; and
Neutrality vs. Non-alignment 3. Free ships make free goods.
BASIS NEUTRALITY NON- Blockade

ALIGNMENT
As to Presupposes Exists during It is any effort to cut off all maritime commerce
applicability the existence peace time. between any enemy state and the rest of the world.
The purpose was not only to prevent goods from
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POLITICAL LAW
reaching the enemy but also to prevent the enemy
from exporting to the outside world and thereby Doctrine of Infection
sustaining its war economy. (Sarmiento, 2007)
Innocent goods belonging to the same owner
Elements of a valid blockade shipped together with contraband which are
subject to condemnation may be confiscated.
1. Binding and duly communicated to neutral (Declaration of London, Art. 42)
states;
2. Effective and maintained by adequate Doctrine of Ultimate Destination
sources;
3. Established by a competent authority of The liability of the contraband from being
belligerent government; captured is determined not by their ostensible but
4. Limited only to the territory of the enemy; and by their real destination.
5. Impartially applied to all states.
Doctrine of Free Ships Make Free Goods
Q: Is blockade lawful in international law?
A ship’s nationality determines the status of its
A: if made upon the order or authority of the UN cargo. Thus, enemy goods on a neutral ship,
Secretary Council pursuant to Article 42 of the UN excepting contraband, would not be subject to
Charter, that is, a measure to maintain or restore capture on the high seas.
international peace and security. Otherwise, it will
fall under the UN Charter’s prohibition against the Visit and Search
use of force under Article 2(4).
Belligerent warships and aircraft have the right to
Contraband visit and search neutral merchant vessels on the
high seas to determine whether they are in any
It refers to goods which, although neutral way connected with the hostilities.
property, may be seized by a belligerent because
they are useful for war and are bound for a hostile Unneutral service
destination.
It consists of acts, of a more hostile character than
Kinds of contraband carriage of contraband or breach of blockade,
which are undertaken by merchant vessels of a
1. Absolute – those which are useful for war neutral State in aid of any of the belligerents.
under all circumstances (e.g: guns and
ammunitions); Right of Angary
2. Conditional – those which have both civilian
and military utility (e.g: food and clothing); or A belligerent may, upon payment of just
3. Under the free list – goods useful for war and compensation, seize, use or destroy, in case of
bound for the belligerents but those which are urgent necessity for purposes of offenses or
exempt from the law on contraband for defenses, neutral property found in its territory, in
humanitarian reasons (example: medicines) enemy territory, or on high seas.
Doctrine of Continuous Voyage or Continuous Requisites for the Exercise of Right of Angary
Transport
1. That the property is in the territory under the
Goods immediately reloaded at an intermediate control or jurisdiction of the belligerent;
port on the same vessel, or reloaded on another 2. That there is urgent necessity for the taking;
vessel or other forms of transportation may also and
be seized on the basis of doctrine of ultimate 3. That just compensation is paid to the owner.
consumption.
Termination of Neutrality
Doctrine of Ultimate Consumption
Neutrality is terminated when the neutral State
Goods intended for civilian use which may itself joins the war or upon the conclusion of
ultimately find their way to and be consumed by peace.
belligerent forces may be seized on the way.

LAW OF THE SEA
Baselines may either be:
International Law of the Sea (ILS)
1. Normal
A body of treaty rules amid customary norms 2. Straight
governing the uses of the sea, the exploitation of
its resources, and the exercise of jurisdiction over
maritime regimes. It is a branch of public
international law, regulating the relations of states
with respect to the uses of the oceans. (Arigo v.
Swift, G.R. No. 206510, September 16, 2014)
United Nations Convention on the Law of the

Sea (UNCLOS)
A treaty that defines the rights and obligations of

nations in their use of the world’s oceans,
establishing rules for business, the environment,
and the management of marine natural resources.
The UNCLOS is a multilateral treaty which was

opened for signature on December 10, 1982 at
Montego Bay, Jamaica. It was ratified by the
Philippines in 1984 but came into force on
November 16, 1994 upon the submission of the
60th ratification. The UNCLOS gives to the coastal
State sovereign rights in varying degrees over the
different zones of the sea which are: 1) internal
waters, 2) territorial sea, 3) contiguous zone, 4) Two ways to draw baselines
exclusive economic zone, and 5) the high seas. It
also gives coastal States more or less jurisdiction 1. Normal Baseline
over foreign vessels depending on where the
vessel is located. Insofar as the internal waters and Is one drawn following the “low-water line along
territorial sea is concerned, the Coastal State the coast as marked on large-scale charts officially
exercises sovereignty, subject to the UNCLOS and recognized by the coastal state”. The line follows
other rules of international law. Such sovereignty the curvature of the coast and therefore would
extends to the air space over the territorial sea as normally not consist of straight lines.
well as to its bed and subsoil. (Arigo v. Swift, ibid..)
2. Straight Baseline
Mare Liberum Principle or Free Sea or
Freedom of the Sea Instead of following the curvatures of the coast,
straight lines are drawn connecting selected
It means international waters are free to all points on the coast without appreciable departure
nations and belongs to none of them. from the general shape of the coast.
BASELINES Formation of Baseline
Baseline 1. Mouths of Rivers – If a river flows directly into

the sea, the baseline shall be a straight line
It is a line from which the breadth of the territorial across the mouth of the river between points
sea, the contiguous zone and the exclusive on the low-water line of its banks (UNCLOS,
economic zone is measured in order to determine Art. 9); or
the maritime boundary of the coastal State. 2. Bays – Where the distance between the low-
water marks of the natural entrance points:
It is the “low-water line along the coast as marked a. Does not exceed 24 nautical miles – a
on large scale charts officially recognized by the closing line may be drawn between these
coastal State” (Sec. 5, 182 LOS) two low-water marks, and the waters
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POLITICAL LAW
enclosed thereby shall be considered as dimensions form part of the internal waters of the
internal waters [UNCLOS, Art. 10 (4)]; and Philippines.
b. Exceeds 24 nautical miles – a straight
baseline of 24 nautical miles shall be It emphasizes the unity of land and waters by
drawn within the bay in such a manner as defining an archipelago either as a group of islands
to enclose the maximum area of water surrounded by waters or a body of water studded
that is possible with a line of that length with islands.
[UNCLOS, Art. 10 (5)]
Straight Archipelagic Baselines vis-à-vis
NOTE: This relates only to bays the coasts of which Archipelagic State (2016 Bar)
belong to a single State and does not apply to
“historic” bays. [UNCLOS, Art. 10 (1)] An archipelagic State may draw straight
archipelagic baselines by joining the outermost
Bay points of the outermost islands and drying reefs of
the archipelago provided that within such
It is a well-marked indentation whose penetration baselines are included the main islands and an
is in such proportion to the width of its mouth as area in which the ration of the water to the area of
to contain land-locked waters and constitute more the land, including atolls, is between 1 to 1 and 9
than a mere curvature of the coast. [UNCLOS, Art. to 1. (UNCLOS, Art. 47)
10 (2)]
Guidelines in drawing archipelagic baselines
Water bays are considered international waters of
a coastal state. 1. The length of such baselines shall not exceed
100 nautical miles, except that up to 3 per cent
NOTE: The indentation shall not be regarded as a of the total number of baselines enclosing any
bay unless its area is as large as, or larger than, that archipelago may exceed that length, up to a
of the semi-circle whose diameter is a line drawn maximum length of 125 nautical miles.
across the mouth of that indentation. (Ibid) [UNCLOS, Art. 47 (2)]
2. The drawing of such baselines shall not depart
ARCHIPELAGIC STATES to any appreciable extent from the general
configuration of the archipelago. [UNCLOS,
Archipelago Art. 47(3)]
3. Such baselines shall not be drawn to and from
It means a group of islands, including parts of low tide elevations. [UNCLOS, Art. 47(4)]
islands, interconnecting waters and other natural
features which are so closely interrelated that NOTE: Unless lighthouses or similar
such islands, waters and other natural features installations which are permanently above
form an intrinsic geographical, economic and sea level have been built on them or where a
political entity, or which historically have been low-tide elevation is situated wholly or partly
regarded as such. (UNCLOS, Art. 46) at distances not exceeding the breadth of the
territorial sea from the nearest island. (Ibid)
Archipelagic State
4. It shall not be applied in such a manner as to
A state constituted wholly by one or more cut off from the high seas or the exclusive
archipelagos and may include other islands. economic zone the territorial sea of another
(UNCLOS, Art. 46) State. [UNCLOS, Art. 47(5)]
5. If a part of the archipelagic water of an
Archipelagic Doctrine (2016 Bar) archipelagic State lies between two parts of an
immediately adjacent neighboring State,
Art. I, Sec. 1 of the 1987 Constitution adopts the existing rights and all other legitimate
archipelagic doctrine. It provides that the national interests which the latter State has
territory of the Philippines includes the Philippine traditionally exercised in such waters and all
archipelago, with all the islands and waters rights stipulated by agreement between those
embraced therein; and the waters around, States shall continue and be respected.
between and connecting the islands of the [UNCLOS, Art. 47(6)]
archipelago, regardless of their breadth and

NOTE: The breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and XPN: Right of Innocent Passage may be suspended
the continental shelf are measured from the in some areas of its archipelagic waters. But such
archipelagic baselines drawn in accordance with suspension must be:
Art. 47. (UNCLOS, Art. 48)
1. The suspension is made without
Sovereignty of the archipelagic states discrimination in form or in fact among
foreign ships;
It extends to the waters enclosed by the 2. Suspension is merely temporary;
archipelagic baselines (archipelagic waters), 3. It must specify the areas of it archipelagic
regardless of their depth or distance from the waters where innocent passage shall not
coast, to the air space over the archipelagic waters, be allowed;
as well as to their bed and subsoil and the 4. Such suspension is essential for the
resources contained therein. protection of its security; and
5. Such suspension shall take effect only after
The sovereignty extends to the archipelagic having been duly published. [UNCLOS, Art.
waters but is subject to the right of innocent 52 (2)]
passage which is the same nature as the right of
innocent passage in the territorial sea. [UNCLOS, Q: Does R.A. 9522 (Philippine Archipelagic
Art. 49(1) in relation to Art. 52(1)] Baseline Law) converting internal waters into
archipelagic waters, violate the Constitution in
NOTE: The regime of archipelagic sea lanes subjecting these waters to the right of innocent
passage shall not in other respects affect the status and sea lanes passage including overflight?
of the archipelagic waters, including the sea lanes, (2004, 2015 Bar)
or the exercise by the archipelagic State of its
sovereignty over such waters and their air space, A: NO. Whether referred to as Philippine “internal
bed and subsoil and the resources contained waters” under Art. I of the Constitution or as
therein. [UNCLOS, Art. 49(4)] “archipelagic waters” under UNCLOS III [Art. 49
(1)], the Philippines exercises sovereignty over the
Archipelagic waters body of water lying landward of the baselines,
including the air space over it and the submarine
These are waters enclosed by the archipelagic areas underneath.
baselines, regardless of their depth or distance
from the coast. [UNCLOS, Art. 49(1)] The fact of sovereignty, however, does not
preclude the operation of municipal and
Rights by which archipelagic waters are international law norms subjecting the territorial
subject to: sea or archipelagic waters to necessary, if not
marginal, burdens in the interest of maintaining
1. Rights under existing agreement on the part of unimpeded, expeditious international navigation,
the third states should be respected [UNCLOS, consistent with the international law principle of
Art. 51(1)]; freedom of navigation.
2. The traditional fishing rights and other
legitimate activities of the immediately Thus, domestically, the political branches of the
adjacent neighboring States (Ibid); and Philippine government, in the competent
3. Existing submarine cables laid by other States discharge of their constitutional powers, may pass
and “passing through its waters without legislation designating routes within the
making a windfall” as well as the maintenance archipelagic waters to regulate innocent and sea
and replacement of such cables upon being lanes passage. (Magallona v. Ermita, G.R. No.
notified of their location and the intention to 187167, August 16, 2011)
repair or replace them. [UNCLOS, Art. 51(2)]
NOTE: In the absence of municipal legislation,
Applicability of the right of innocent passage in international law norms, now codified in UNCLOS
archipelagic waters III, operate to grant innocent passage rights over
the territorial sea or archipelagic waters, subject
GR: As a rule, ships of all States enjoy the right of to the treaty’s limitations and conditions for their
innocent passage through archipelagic waters. exercise. Significantly, the right of innocent
[UNCLOS, Art. 52(1)] passage is a customary international law, thus
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POLITICAL LAW
automatically incorporated in the corpus of Sea Lanes and Air Routes
Philippine law. No modern State can validly invoke
its sovereignty to absolutely forbid innocent It shall traverse the archipelagic waters and the
passage that is exercised in accordance with adjacent territorial sea and shall include all
customary international law without risking normal passage routes used as routes for
retaliatory measures from the international international navigation or overflight through or
community. over archipelagic waters and, within such routes,
so far as ships are concerned, all navigational
The imposition of these passage rights through channels, provided that duplication of routes of
archipelagic waters under UNCLOS III was a similar convenience between the same entry and
concession by archipelagic States, in exchange for exit points shall not be necessary. (UNCLOS, Art.
their right to claim all the waters landward of their 53[4])
baselines, regardless of their depth or distance
from the coast, as archipelagic waters subject to Designation or substitution of sea lanes
their territorial sovereignty. More importantly,
the recognition of archipelagic States’ archipelago The archipelagic State shall refer proposals to the
and the waters enclosed by their baselines as one competent international organization
cohesive entity prevents the treatment of their (International Maritime Organization). The IMO
islands as separate islands under UNCLOS III. may adopt only such sea lanes as may be agreed
Separate islands generate their own maritime with the archipelagic State, after which the
zones, placing the waters between islands archipelagic State may designate, prescribe or
separated by more than 24 nautical miles beyond substitute them. [UNCLOS, Art. 53(9)]
the States’ territorial sovereignty, subjecting these
waters to the rights of other States under UNCLOS Regime of Islands
III. (Magallona v. Ermita, ibid.)
1. An island is a naturally formed area of
Right of archipelagic sea lanes passage land, surrounded by water, which is
above water at high tide;
It is the right of foreign ships and aircraft to have 2. Except as provided for in paragraph 3, the
continuous, expeditious and unobstructed territorial sea, the contiguous zone and
passage in sea lanes and air routes through or over the continental shelf of an island are
the archipelagic waters and the adjacent determined in accordance with the
territorial sea of the archipelagic state, “in transit provisions of the Convention applicable to
between one part of the high seas or an exclusive other land territory; and
economic zone.” All ships and aircraft are entitled 3. Rocks which cannot sustain human
to the right of archipelagic sea lanes passage. habitation or economic life of their own
[UNCLOS, Art. 53(1) in relation with Art. 53(3)] shall have no exclusive economic zone or
continental shelf. (UNCLOS, Art. 121)
All ships are entitled to the right of archipelagic
sea lanes passage. Submarines are not required to NOTE: Islands can be very important because of
surface in the course of its passage unlike the the possibility of exploiting oil and gas resources
exercise of right of innocent passage in the around them. This explains the controversy over
territorial sea. [UNCLOS, Art. 20 in relation to Art. Spratleys. It is noteworthy that islands can have
53(3)] their own territorial sea, exclusive economic zone
and continental shelf. However, rocks “which
The right is the same as Transit Passage. Both cannot sustain human habitation or economic life”
define the rights of navigation and overflight in the only have a territorial sea. But there is no clear
normal mode solely for the purpose of international law definition of “economic life”
“continuous, expeditious and unobstructed referred to in no. 3. (Bernas, Introduction to Public
transit.” In both cases, the archipelagic state International Law 2009, p. 129)
cannot suspend passage. (UNCLOS, Arts. 44 and 54)
Artificial islands or installations are not “islands”
NOTE: The right of archipelagic sea lanes passage in the sense of Art. 121 of the UNCLOS. However,
may be exercised through the routes normally coastal states may establish safety zones around
used for international navigation. [UNCLOS, Art. artificial islands and prescribe safety measures
53(12)] around them. [ibid, citing UNCLOS, Art. 60(4) and
(5)]

XPN: A coastal state may extend its internal
Regime of Islands under Philippine Laws waters by applying the straight baseline method in
such a way as to enclose as its internal waters
The baseline in the following areas over which the areas which are previously part of the territorial
Philippines likewise exercises sovereignty and sea. It also applies to straits used for international
jurisdiction shall be determined as "Regime of navigation converted into internal waters by
Islands" under the Republic of the Philippines applying the straight baselines method. Thus, the
consistent with Art. 121 of the United Nations right of innocent passage continues to exist in the
Convention on the Law of the Sea (UNCLOS): “extended” internal waters. [UNCLOS, Art. 8(2)]
a) The Kalayaan Island Group as constituted TERRITORIAL SEA

under Presidential Decree No. 1596; and
b) Bajo de Masinloc, also known as Breadth of The Territorial Sea (2004, 2015
Scarborough Shoal. (R.A. No. 9522, Sect. 2) Bar)
INTERNAL WATERS Every State has the right to establish the breadth
of the territorial sea up to a limit not exceeding 12
Internal waters nautical miles, measured from baselines (UNCLOS,
Art. 3).
These are waters of lakes, rivers and bays
landward of the baseline of the territorial sea. Outer Limit of The Territorial Sea
Waters on the landward side of the baseline of the
territorial sea also form part of the internal waters It is the line every point of which is at a distance
of the coastal state. However, in the case of from the nearest point of the baseline equal to the
archipelagic states, waters landward of the breadth of the territorial sea. (UNCLOS, Art. 4)
baseline other than those of rivers, bays, and lakes,
are archipelagic waters. [UNCLOS, Art. 8 (1)] Territorial sea vs. Internal waters of the
Philippines
Delimitation of internal waters
TERRITORIAL SEA INTERNAL WATERS
Within the archipelagic waters, the archipelagic
state may draw closing lines for the delimitation of Defined by historic Defined by the
internal waters. (UNCLOS, Art. 50 in relation with right or treaty limits archipelago doctrine
Arts. 9, 10, 11)
As defined in the Outermost points of
NOTE: A coastal state has sovereignty over its
Convention on the our archipelago which
internal waters as if internal waters were part of
Law of the Sea, has a are connected with
its land territory. (UNCLOS, Art. 50)
uniform breadth of 12 baselines and all
miles measured from waters comprised
Right of Innocent Passage (1991 Bar)
the lower water mark therein
of the coast
It means navigation through the territorial sea of a
State for the purpose of traversing the sea without
entering internal waters, or of proceeding to
internal waters, or making for the high seas from Methods used in defining territorial sea
internal waters, as long as it is not prejudicial to
the peace, good order or security of the coastal 1. Normal baseline method – The territorial sea is
State. [UNCLOS, Arts. 18 (1)(2), 19(1)] simply drawn from the low-water mark of the
coast, to the breadth claimed, following its
Applicability of the right of innocent passage in sinuousness and curvatures but excluding the
internal waters internal waters in the bays and gulfs (UNCLOS,
Art. 5); and
GR: There is no Right of Innocent Passage through 2. Straight baseline method – Where the
the internal water because it only applies to coastline is deeply indented and cut into, or if
territorial sea and the archipelagic waters. there is a fringe of islands along the coast in its
immediate vicinity, the method of straight
baselines joining appropriate points may be
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POLITICAL LAW
employed in drawing the baseline from which 7. The launching, landing or taking on board of
the breadth of the territorial sea is measure. any military device;
(UNCLOS, Art. 7) 8. The loading or unloading of any commodity,
currency or person contrary to the customs,
NOTE: The Philippines uses this method in fiscal, immigration or sanitary laws and
drawing baselines. regulations of the coastal State;
9. Any act of willful and serious pollution
Sovereignty over the territorial sea (2015 Bar) contrary the Convention;
10. Any fishing activities;
Coastal states exercise sovereignty over 11. The carrying out of research or survey
Territorial sea and it extends to the airspace over activities;
the territorial sea and to its seabed and subsoil. 12. Any act aimed at interfering with any systems
of communication or any other facilities or
NOTE: The sovereignty over the territorial sea is installations of the coastal State; or
subject to the right of innocent passage on the part 13. Any other activity not having a direct bearing
of ships of all states. (Magallona, 2005) on passage. (UNCLOS, Art. 19 [2])
Applicability of the right of innocent passage in Laws and regulations of the coastal State
the internal waters and territorial sea relating to innocent passage
In the territorial sea, a foreign State can claim for The coastal state may adopt laws and regulations
its ships the right of innocent passage, whereas in in respect of all or any of the following:
the internal waters of a State no such right exists. 1. Safety of navigation and the regulation of
maritime traffic;
However, in Saudi Arabia v. Aramco (Arbitration 2. Protection of navigational aids and facilities
1963), the arbitrator said that according to and other facilities or installations;
international law — ports of every state must be 3. Protection of cables and pipelines;
open to foreign vessels and can only be closed 4. Conservation of the living resources of the sea;
when vital interests of the state so requires. But 5. Prevention of infringement of the fisheries
according to the Nicaragua v. US case, a coastal laws and regulations of the coastal State;
state may regulate access to its ports. 6. Preservation of the environment of the coastal
State and the prevention, reduction and
Instances when the right of innocent passage is control of pollution thereof;
considered prejudicial 7. Marine Scientific research and hydrographic
surveys; or
Right of innocent passage is considered prejudicial 8. Prevention of infringement of the customs,
if the foreign ship engages in the following fiscal, immigration or sanitary laws and
activities: regulations of the coastal State. [UNCLOS, Art.
21(1)]
1. Any threat or use of force against the
sovereignty, territorial integrity or political NOTE: It shall not however, apply to the design,
independence of the coastal State, or in any construction, manning or equipment of foreign
other manner in violation of the principles of ships unless they are giving effect to generally
international law embodied in the Charter of accepted international rules or standards.
the United Nations; [UNCLOS, Art. 21(2)]
2. Any exercise or practice with weapons of any
kind; Rules when traversing the territorial sea
3. Any act aimed at collecting information to the through the right of innocent passage
prejudice of the defense or security of the
coastal State; 1. Submarines and other underwater vehicles –
4. Any act aimed at collecting information to the They are required to navigate on the surface
prejudice of the defense or security of the and to show their flag (UNCLOS, Art. 20);
coastal State; 2. Foreign nuclear-powered ships and ships
5. Any act of propaganda aimed at affecting the carrying nuclear or other inherently dangerous
defense or security of the coastal State; or noxious substances – They must carry
6. The launching, landing or taking on board of documents and observe special precautionary
any aircraft; measures established for such ships by

international agreements. They may be
required to confine their passage on sea lanes The coastal State may:
prescribed by the coastal State (UNCLOS, Art. 1. Take the necessary steps in its territorial sea
23); to prevent passage which is not innocent
3. Warships – [UNCLOS, Art. 25(1)];
a. Coastal State may require that it leave the 2. Take the necessary steps to prevent any
territorial sea immediately when it does breach of the conditions to which admission of
not comply with the laws and regulations ships to internal waters or such a call is
of the coastal State and disregards subject [UNCLOS, Art. 25(2)];
compliance (UNCLOS, Art. 30); 3. Without discrimination in form or in fact
b. Flag State shall bear international among foreign ships, suspend temporarily in
responsibility for any loss or damage to specified areas of its territorial sea the
the coastal State resulting from non- innocent passage of foreign ships if such
compliance with the laws and regulations suspension is essential for the protection of its
of the coastal State concerning passage security, including weapon exercises.
(UNCLOS, Art. 31); and [UNCLOS, Art. 25(3)]
c. Submarines in innocent passage are
required to navigate on the surface and to NOTE: No charge may be levied upon foreign ships
show their flag. (UNCLOS, Art. 20) by reason only of their passage through the
territorial sea. [UNCLOS, Art. 26(1)]
NOTE: This will not affect the immunities of
warships and other government ships Charges may be levied only as payment for specific
operated for non-commercial purpose. services rendered to the ship which shall be levied
(UNCLOS, Art. 32) without discrimination. [UNCLOS, Art. 26(2)]
Warship Right of the coastal state to suspend innocent

passage in specified areas
It is a ship belonging to the armed forces of a State
bearing the external marks distinguishing such The coastal state may, without discrimination in
ships of its nationality, under the command of an form or in fact among foreign ships, suspend
officer duly commissioned by the government of temporarily in specified areas of its territorial sea
the State and whose name appears in the the innocent passage of foreign ships if such
appropriate service list or its equivalent,and suspension is essential for the protection of its
manned by a crew which is under regular armed security, including weapons exercises. Such
forces discipline. (UNCLOS, Art. 29) suspension shall take effect only after having been
duly published. [UNCLOS, Art. 25(3), Part II
NOTE: The right of innocent passage pertains to all Territorial Sea and Contiguous Zone]
ships, including warships.
Exercise of criminal jurisdiction of the coastal
Duties of the coastal State with regard to state
innocent passage of foreign ships
GR: Criminal jurisdiction of the coastal state
The coastal State shall: should not be exercised on board a foreign ship
1. Not hamper the innocent passage of the passing through the territorial sea to arrest any
foreign ships through its territorial sea; person or to conduct any investigation in
2. Not impose requirements on foreign ships connection with any crime committed on board
which have the practical effect of denying or the ship during its passage.
impairing the right of innocent passage;
3. Not discriminate in form or in fact against the XPNs:
ships of any State or against ships carrying 1. Consequence of the crime extend to the
cargoes to, from or on behalf of any State; and coastal state;
4. Give appropriate publicity to any danger to 2. Crime is of a kind to disturb the peace of the
navigation, of which it has knowledge, within country or the good order of the territorial sea
its territorial sea. (UNCLOS, Art. 24) 3. Assistance of local authorities has been
requested by the master of the ship or by a
Rights of the coastal state relating to innocent diplomatic agent or consular officer of the flag
passage through the territorial sea: State; or
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POLITICAL LAW
4. Measures are necessary for the suppression of Contiguous zone does not automatically
illicit traffic in narcotic drugs or psychotropic belong to the territory of the coastal state
substances. [UNCLOS, Art. 27(1)]
The coastal state must make a claim to its
NOTE: Such does not affect the right of the coastal Contiguous Zone for pertinent rights to exist. Art.
state to take any steps authorized by its laws for 33 of the UNCLOS speaks in permissive terms, i.e.,
the purpose of an arrest or investigation on board “the coastal state may exercise the control
a foreign ship passing through the territorial sea necessary” for definite purposes. (Magallona,
after leaving internal waters. [UNCLOS, Art. 27(2)] 2005)
Exercise of civil jurisdiction over foreign ships Extent of the Contiguous Zone
passing through the territorial sea of the
coastal state The coastal State may not extend its Contiguous
Zone beyond the 24 nautical miles from the
The coastal state may exercise civil jurisdiction, baseline (from which the breadth of the territorial
subject to the following exceptions: sea is measured). [UNCLOS, Art. 33 (2)]
1. It should not stop or divert a foreign ship Right of transit passage

passing through the territorial sea for the
purpose of exercising civil jurisdiction in It is the right to exercise freedom of navigation and
relation to a person on board the ship overflight solely for the purpose of continuous and
[UNCLOS, Art. 28(1)] expeditious transit through the straits used for
2. It may not levy execution against or arrest the international navigation, i.e., between two areas of
ship for the purpose of any civil proceedings, the high seas or between two exclusive economic
save only in respect of obligations or liabilities zones.
assumed or incurred by the ship itself in the
course or for the purpose of its voyage The requirement of continuous and expeditious
through the waters of the coastal State transit does not preclude passage through the
[UNCLOS, Art. 28(2)] strait for the purpose of entering, leaving or
returning from a State bordering the strait, subject
NOTE: It is without prejudice to the right of to the conditions of entry to that State. [UNCLOS,
the coastal State, in accordance with its laws, Art. 38(2)]
to levy execution against or to arrest, for the
purpose of any civil proceedings, a foreign NOTE: The right of transit passage is not
ship lying in the territorial sea, or passing applicable if there exists seaward of the island a
through the territorial sea after leaving route through the high seas or through an
internal waters. [UNCLOS, Art. 28(3)] exclusive economic zone of similar convenience
with respect to navigational and hydrographical
CONTIGUOUS ZONE characteristics. [UNCLOS, Art. 38(1)]
It is the zone adjacent to the territorial sea, which Vessels entitled to right of transit passage
the coastal State may exercise such control as is
necessary to: All ships and aircraft enjoy the right of transit
1. Prevent infringement of its customs, fiscal, passage.
immigration, or sanitary laws within its
territory or its territorial sea; or Right of innocent passage vs. Transit passage
2. Punish such infringement.
INNOCENT TRANSIT
BASIS
It is the area of water not exceeding 24 nautical PASSAGE PASSAGE
miles from the baseline. It thus extends 12 nautical
miles from the edge of the territorial sea. The Covers Covers
Coastal State exercises authority over that area to navigation only navigation
the extent necessary to prevent infringement of its As to scope
and
customs, fiscal, immigration or sanitation overflight by
authority over its territorial waters or territory to aircrafts
punish such infringement. (Article 33, 1 & 2)

Requires No imposition of obligations on coastal states relative
submarine and requirement to the exploitation, management, and preservation
other specially of the resources found within the zone.
As to
underwater applicable
submarine
vehicles to to Rights of the coastal state in the EEZ (2004,
s
navigate on the submarines. 2005 Bar)
surface and to
show their flag. 1. Sovereign rights;
May be May not be a. For the purpose of exploring and
As to exploiting, conserving and managing the
unilaterally unilaterally
suspension living and non-living resources in the
suspended suspended
In the Designation super adjacent waters of the sea-bed and
designation of of sea lanes the resources of the sea-bed and subsoil;
sea lanes and and traffic and
traffic separation separation b. With respect to the other activities for the
schemes, the schemes is economic exploitation and exploration of
coastal State shall subject to a the EEZ, such as production of energy
only take into proposal from water, currents and winds;
account the and
recommendation agreement 2. Jurisdictional rights; and
As to a. With respect to establishment and use of
s of a competent between
designatio artificial islands;
international States
n of sea b. As to protection and preservation of the
organization. bordering
lanes marine environment; and
the straits
and its c. Over marine scientific research
subsequent
adoption by 3. Other rights and duties provided for in the
a competent Law of the Sea Convention (Law of the Sea
internationa Convention, Art. 56).
l
organization NOTE: The coastal State has no sovereignty over
. the EEZ. What the coastal State only has are
sovereign rights, jurisdictional rights, and other
Thalweg Doctrine rights under the Law of the Sea Convention.
It provides that for boundary rivers, in the absence The coastal state may inspect and arrest ship’s
of an agreement between the riparian States, the crew in its EEZ
boundary line is laid in the middle of the main
navigable channel. The coastal State may board, and inspect a ship,
arrest a ship and its crew and institute judicial
It aims to resolve water boundary disputes. proceedings against them. Arrested vessels and
According to this doctrine, the boundary between their crews may be required to post reasonable
two states divided by a flowing body of water bond or any other form of security. However, they
should be drawn along the thalweg, which is the must be promptly released upon posting of bond.
deepest potion of the channel.
In the absence of agreement to the contrary by the
EXCLUSIVE ECONOMIC ZONE States concerned, UNCLOS does not allow
imprisonment or any other form of corporal
It gives the coastal State sovereign rights overall punishment. However, in cases of arrest and
economic resources of the sea, sea-bed and subsoil detention of foreign vessels, it shall promptly
in an area extending not more than 200 nautical notify the flag state of the action taken.
miles beyond the baseline from which the
territorial sea is measured. (UNCLOS, Articles. 55 & Primary obligations of coastal states over the
57) EEZ
NOTE: The provisions on the exclusive economic

zone are voth a grant of right to and and
365
POLITICAL LAW
1. Proper conservation and management 3. Regulation of seasons and areas of fishing, the
measures that the living resources of the EEZ types, sizes and amount of gear and fishing vessels
are not subjected to over-exploitation; and that may be used;
4. Fixing the age and size of fish that may be
NOTE: The UNCLOS does not set a limit, caught;
except by the duty of the coastal state not to 5. Information required of fishing vessels,
overexploit. (Magallona, 2005) including catch and effort statistics and vessel
position reports;
2. Promote the objective of “optimum 6. The conduct of fisheries research programs
utilization” of the living resources, and to this 7. The placing of observers and trainees by the
end, to determine the maximum allowable coastal state on board foreign vessels;
catch of such resources in relation to its 8. The landing of the catch by foreign vessels in the
capacity to harvest the allowable catch. ports of the coastal state;
[UNCLOS, Art. 61(2), 62(1)] 9. The terms and conditions of joint ventures or
cooperative arrangements;
Objectives of conservation of living resources 10. Training of personnel and transfer of fisheries
in the EEZ technology; and
11. Enforcement procedures.
1. The determination of the allowable catch of the
living resources; NOTE: The nationals of other states granted
2. The maintenance of the living resources in such access to the EEZ must comply with conservation
a way that they are not endangered by over- measures and other conditions provided in these
exploitation; laws and regulations. (UNCLOS, Art. 62)
3. The maintenance or restoration of population of
harvested species at levels which can produce the Contiguous zone vs. EEZ (2004 Bar)
maximum sustainable yield; and (UNCLOS, Art.
61); and CONTIGUOUS ZONE EEZ
4. The maintenance of associated or dependent Known as the protective Ends at the
species above levels at which their reproduction jurisdiction and starts 200th nautical
may become seriously threatened (UNCLOS, Art. from the 12th nautical mile from the
61) mile from low water baseline.
from the baseline.
Note: The coastal state must determine its Coastal state may No state really
capacity to harvest the living resources of the EEZ. exercise the has the
If it does not have capacity to harvest the control necessary exclusive
allowable catch, it shall give other states access to to (1) prevent ownership of it,
the surplus of the allowable catch by means of infringement of its but the state
agreements or arrangements consistent with the customs, fiscal, which has a
UNCLOS. For this purpose the coastal state may immigration, or valid claim on it
establish terms and conditions by laws and sanitary laws according to
regulations. (UNCLOS, Art. 62) within its territory the UNCLOS
or its territorial has the right to
If the coastal state sets the allowable catch at the sea or (2) punish explore and
same level as its harvesting capacity, then no such infringement. exploit its
surplus is left. The result is that the access by other natural
states to surplus stocks may prove to be illusory. resources.
(Magallona, 2005)
CONTINENTAL SHELF
Matters that the coastal state may regulate in
regard to fishing by the nationals of other Otherwise known as archipelagic or insular shelf
states in the EEZ for archipelagos, refers to a) the seabed and
subsoil of the submarine areas adjacent to the
1. Licensing of fishermen, fishing vessels and meters or, beyond that limit, to where the depth
equipment, and the payment of fishing; allows exploitation, and b) the seabed and subsoil
2. Determining the species which may be caught of areas adjacent to islands.
and fixing the quotas to catch;
Categories of Continental shelf

providing that the continental shelf extends to the
1. Continental shelf; and breadth of either shelf, whichever is the farthest.
a. Geological continental shelf; and [UNCLOS, Art. 76(1)(4)]
b. Juridical/Legal Continental Shelf
Continental margin
2. Extended Continental Shelf.
It is the submerged prolongations of the land mass
of the coastal state, consisting of the continental
shelf proper, the continental slope and the
continental rise. It does not include the deep ocean
floor with its ocean ridges or the subsoil. [UNCLOS,
Art. 76(3)]
NOTE: The coastal State shall establish the outer

edge of the continental margin wherever the
margin extends beyond the 200 nautical miles
from the baselines. In establishing the Continental
Margin it shall either use:
1. A line drawn by reference to points no more

than 60 nautical miles from the foot of the
continental slope; or
2. A line drawn by reference to points at which
the thickness of sediments is less than one
percent of the distance to the base of the
continental slope. [UNCLOS, Art. 76(4)]
Geological continental shelf
Permissible breadth of the continental shelf
It comprises the entire prolongation of the coastal
state’s land mass and extends up to the outer edge
Under the said UN Convention, it extends to a
of the continental margin.
distance not extending 200 nautical miles from the
baselines. However, if the coastal State succeeds in
It starts from the baseline from which the
its application for an extended continental shelf, it
territorial sea is measured and has its outer limit
may extend to not more than 350 nautical miles.
at the outer edge of the continental margin which
[UNCLOS, Art. 76(1)(5)]
may extend beyond the 200 nautical miles from
the baseline or may fall short of that distance. NOTE: Under Presidential Proclamation 370, the
continental shelf has no such legal limit. It extends
Continental shelf (Juridical/Legal Continental
outside the area of the territorial sea “to where the
Shelf)
depth of the superjacent waters admits of the
exploitation of such natural resources.” In this
It comprises the sea-bed and subsoil of the
case, exploitation of resources may go beyond the
submarine areas that extend beyond its territorial 200 nautical miles.
sea throughout the natural prolongation of its land
territory to the outer edge of the continental
EXTENDED CONTINENTAL SHELF
margin or to a distance of 200 nautical miles
beyond the baselines from which the breadth of
It is that portion of the continental shelf that lies
the territorial sea is measured if the edge of the
beyond the 200 nautical miles limit in the
continental margin does not extend up to that
juridical/legal continental Shelf. (Ibid)
distance. [UNCLOS, Art. 76(1)]
Benham Plateau
NOTE: The rights of the coastal state over the
continental shelf do not depend on occupation,
It is also known as the Benham Rise. The
effective or notional, or on any express
Philippines lodged its claim on the area with the
proclamation. [UNCLOS, Art. 77(3)]
United Nations Commission on the Limits of the
Continental Shelf on April 8, 2009. The UNCLOS
The UNCLOS unifies the continental and the
approved the claim of the Philippines that the
extended continental shelves into one by
367
POLITICAL LAW
Benham Plateau is part of Philippine Territory on shelf, exploiting the natural resources, and the
April 12, 2012. protection of the marine environment from
pollution. (UNCLOS, Art. 79)
Sovereign rights of a coastal State over the
continental shelf 3. Artificial islands, installations and structures
on the continental shelf (UNCLOS, Art. 80);
1. Right to explore and exploit its natural
resources [UNCLOS, Art. 77(1)]; NOTE: Exclusive right to construct, to
authorize the construction, operation and use
NOTE: This right is exclusive. Should the of artificial islands and installations.
coastal State not explore or exploit the natural Jurisdiction is also exclusive (UNCLOS, Art.
resources, no one may undertake these 80);
activities without the express consent of the
coastal State. [UNCLOS, Art. 77(2)] Natural 4. Marine scientific research [UNCLOS, Art.
resources include mineral and other non- 246(1)]; and
living resources of the seabed and subsoil
together with living organisms belonging to NOTE: May be conducted only with consent.
sedentary species. [UNCLOS, Art. 77(4)] Beyond the 200 nautical mile, the coastal State
cannot withhold consent to allow research on
Rule on payment for exploitation of non- the ground that the proposed research project
living resources has direct significance to exploration or
exploitation of natural resources. [UNCLOS,
GR: Exploitation of the non-living resources of Art. 246(2)(6)]
the continental shelf beyond 200 nautical
miles would entail the coastal State to make 5. Right to authorize and regulate drilling on the
payments or contributions in kind which shall continental shelf for all purposes (UNCLOS,
be made annually with respect to all Art. 81)
production at site after the first five years of
production and 1% of the value or volume of NOTE: This right is exclusive.
production at the site at the sixth year. It shall
increase by 1% for each subsequent year until Limitation on the rights of coastal state over
the 12th year where it shall remain at 7%. the continental shelf
The payments or contributions shall be made Rights of the coastal State over the continental
through the International Seabed Authority, shelf do not affect the legal status of the
which shall distribute them to States Parties superjacent waters or of the air space above those
to this Convention, on the basis of equitable waters and such exercise of right must not infringe
sharing criteria, taking into account the or result in unjustifiable interference with
interests and needs of developing States, navigation and other rights and freedoms of other
particularly the least developed and the land- States. [UNCLOS, Art. 78(1)(2)]
locked among them. [UNCLOS, Art.
82(1)(2)(4)] Island
XPN: A developing State which is a net It is a naturally formed area of land, surrounded by
importer of a mineral resource produced from water, which is above water at high tide.
its continental shelf is exempt from making
such payments or contributions in respect of NOTE: It can have its own territorial sea, exclusive
that mineral resource. [UNCLOS, Art. 82(3)] economic zone and continental shelf.
2. To lay submarine cables and pipelines on the The continental shelf of an island is recognized.
continental shelf [UNCLOS, Art. 79(1)]; However, rocks which cannot sustain human
habitation or economic life shall have no
NOTE: State may make reasonable measures continental shelf or EEZ.
for the prevention, reduction and control of
pollution from pipelines. The laying of cables High or Open seas
is limited by the right of the coastal state to
take measures in exploring its continental

The waters, which do not constitute the internal XPN: However, the arrest or boarding of a vessel
waters, archipelagic waters, territorial sea and sailing in the high seas may be made by a State,
exclusive economic zone of a state. They are other than the flag-State of such vessel, in the
beyond the jurisdiction and sovereign rights of following instances:
states. (UNCLOS, Art. 86)
1. A foreign merchant ship by the coastal State in
It is treated as res communes or res nullius, and its internal waters, the territorial sea and the
thus, are not part of the territory of a particular contiguous zones for any violation of its laws;
State. (UNCLOS, Art. 89) 2. A foreign merchant ship for piracy;
3. Any ship engaged in the slave trade;
Freedoms on the high seas 4. Any ship engaged in unauthorized
broadcasting; or
These are the freedom of: (NOLAFS) 5. A ship without nationality or flying a false flag
or refusing to show its flag.
1. Navigation;
2. Overflight; Flag of Convenience (2004 Bar)
3. To lay submarine cables and pipelines;
4. To construct artificial islands and other It is a national flag flown by a ship not because the
installations permitted under international ship or its crew has an affiliation with the nation,
law; but because the lax controls and modest fees and
5. Fishing; and taxes imposed by that nation have attracted the
6. Scientific research. (UNCLOS, Art. 87[1] in owner to register it there.
relation to Art. 90)
Jurisdiction over crimes committed on board a
NOTE: This is open to all States and shall be foreign private vessel anchored in a coastal
exercised with due regard for the interests of state
other States in their exercise of the freedom of the
high seas. [UNCLOS, Art. 87(2)] Under both the English and French rules, a crime
will be tried by a local state, if serious enough as to
Flag State compromise the peace of its port; otherwise by the
flag state, if it involves only the members of the
It refers to the State whose nationality the ship crew and is of such a petty nature as not to disturb
possesses; for it is nationality which gives the right the peace of the local state.
to fly a country’s flag. In the high seas, a state has
exclusive jurisdiction over ships sailing under its In the French rule, it recognizes the jurisdiction of
flag. It is required however, that there exists a the flag state over crimes committed on board the
genuine link between the State and the ship. vessel except if the crime disturbs the peace, order
[UNCLOS, Arts. 91(1), 92(2)] and security of the host country. In English rule,
the host country has jurisdiction over the crimes
Duty of the flag state committed on board the vessel unless they involve
the internal management of the vessel.
A flag state has the duty to render assistance in
distress in the sense that it shall require the Instances when a State may exercise
master of the ship, without serious danger to the jurisdiction on open seas
ship, crew or passengers, to render assistance to
any person at sea in danger of being lost, or to 1. Slave trade;
rescue persons in distress. It shall require the 2. Hot pursuit;
master to assist the other ship after a collision or 3. Right of approach; and
its crew and passengers. (UNCLOS, Art. 98) 4. Piracy.
Applicable laws to vessels sailing on the high Duty of every state in the transportation of
seas slaves
GR: Vessels sailing on the high seas are subject Every state shall take effective measures to
only to international law and to the laws of the flag prevent and punish the transport of slaves in ships
State. authorized to fly its flag and to prevent the
unlawful use of the flag for that purpose. Any slave
369
POLITICAL LAW
taking refuge on board any ship, whatever its flag, 2. Act of voluntary participation in the operation
shall ipso facto be free. (UNCLOS, Art. 99) of a ship or of an aircraft with knowledge of
facts making it a pirate ship or aircraft; and
Doctrine of Hot Pursuit 3. Act of inciting or of intentionally facilitating an
act described above. (UNCLOS, Art. 101)
It provides that the pursuit of a vessel maybe
undertaken by the coastal State which has “good NOTE: If committed by a warship, government
reason to believe that the ship has violated the ship or governmental aircraft whose crew
laws and regulations of that State.” mutinied and taken control of the ship or aircraft,
it is assimilated to acts committed by a private ship
The pursuit must start when the foreign vessel is or aircraft. (UNCLOS, Art. 102)
within the internal waters, the archipelagic
waters, the territorial waters or the contiguous A ship or aircraft retains its nationality
zone of the pursuing state. It may be carried out although it has become a pirate. (UNCLOS, Art.
only by warships or military aircraft, or any other 104)
ship or aircraft properly marked for that purpose.
Warships on the high seas enjoy immunity
Elements of the Doctrine Of Hot Pursuit from jurisdiction of other states. They enjoy
complete immunity. The jurisdiction of their flag
1. The pursuit must be commenced when the state is exclusive. (UNCLOS, Art. 95)
ship is within the internal waters, territorial
sea or the contiguous zone of the pursuing Q: A Filipino owned construction company
State, and may only be continued outside if the with principal office in Manila leased an
pursuit has not been interrupted; aircraft registered in England to ferry
2. It is continuous and unabated; and construction workers to the Middle East.
3. Pursuit conducted by a warship, military While on a flight to Saudi Arabia with Filipino
aircraft, or government ships authorized to crew provided by the lessee, the aircraft was
that effect. (UNCLOS, Art. 111) highjacked by drug traffickers. The hijackers
were captured in Damascus and sent to the
Arrival Under Stress Philippines for trial. Do the courts of Manila
have jurisdiction over the case?
It refers to involuntary entrance of a foreign vessel
on another state’s territory which may be due to A: Hijacking is actually piracy, as defined in People
lack of provisions, unseaworthiness of the vessel, v. Lol-lo (G.R. No. 17958, February 27, 1922), as
inclement weather, or other case of force majeure, robbery or forcible depredation in the high seas
such as pursuit of pirates. without lawful authority and done animo furandi
and in the spirit and intention of universal
Piracy under the UNCLOS hostility. Piracy is a crime against all mankind.
Accordingly, it may be punished in the competent
It is any illegal act of violence or depredation tribunal in any country where the offender may be
committed for private ends on high seas or outside found or into which he may be carried. The
the territorial control of any state. jurisdiction on piracy unlike all other crimes has
no territorial limits. As it is against all, all so may
Piracy consists of any of the following acts: punish it. Nor does it matter that the crime was
committed within the jurisdictional three-mile
1. Illegal acts of violence or detention, or any act limit of a foreign State for those limits, though
of depredation, committed for private ends by neutral to war, are not neutral to crimes.
the crew or the passengers of a private ship or
a private aircraft and directed: Land-locked states
a. On the high seas, against another ship or
aircraft, or against persons or property on These are states which do not border the seas and
board such ship or aircraft; do not have EEZ.
b. Against a ship, aircraft, persons or
property in a place outside the Geographically disadvantaged states
jurisdiction of any State.
1. Coastal states which can claim no EEZ of their
own; and

2. Coastal states, including states bordering
closed or semi-closed states, whose
geographical situations make them dependent
on the exploitation of the living resources of
the EEZ of other coastal states in the region.
[UNCLOS, Art. 70(2)]
Rights of land-locked states and

geographically disadvantaged states
1. Land-locked States shall have the right to

participate, on an equitable basis, the
exploitation of an appropriate part of the
surplus of the living resources of the exclusive
economic zones of coastal States of the same
sub region or region, taking into account the
relevant economic and geographical
circumstances of all States concerned
[UNCLOS, Art. 69(1)]; and
2. Developed land-locked States shall be entitled
to participate in the exploitation of living
resources only in the exclusive economic
zones of developed coastal States of the same
sub region or region having regard to the
extent to which the coastal State, in giving
access to other States to the living resources
of its exclusive economic zone, has taken into
account the need to minimize detrimental
effects on fishing communities and economic
dislocation in States whose nationals have
habitually fished in the zone. {UNCLOS, Art.
70(1)]
NOTE: This is without prejudice to arrangements

agreed upon in sub region or regions where the
coastal State may grant to land-locked States of the
same sub region or region equal or preferential
rights for the exploitation of the living resources in
the EEZ. [UNCLOS, Art. 70(6)]
This however shall not apply in case of a coastal

State whose economy is overwhelmingly
dependent on the exploitation of the living
resources of its EEZ. (UNCLOS, Art. 71)
371
POLITICAL LAW
EXTENT and DEFINITION RIGHTS and POWERS OF STATES

1. Rights under existing agreement
on the part of the third states
These are waters enclosed by the should be respected.
archipelagic baselines, regardless of
their depth or distance from the coast. 2. The traditional fishing rights and
Internal Waters All waters (part of the sea, rivers, lakes, other legitimate activities of the
etc.) landwards from the baseline of the immediately adjacent
territory. Sovereignty over these waters neighboring States.
is the same extent as sovereignty over
land, and it is not subject to the rights of 3. Existing submarine cables laid by
innocent passage. other States and “passing through
its waters without making a
windfall” as well as the
maintenance and replacement of
such cables upon being notified of
their location and the intention to
repair or replace them.
Territorial Seas are defined by historic

Territorial Sea right or treaty limits. Coastal states exercise sovereignty
As defined in the Convention on the Law over Territorial sea and it extends to
of the Sea, it has a uniform breadth of the airspace over the territorial sea and
12 miles measured from the lower to its seabed and subsoil.
water mark of the coast.
It is the zone adjacent to the territorial The coastal state does not have
Contiguous Zone sea. The contiguous zone may not sovereignty over the contiguous zone
extend more than 24 nautical miles because the contiguous zone is a zone
beyond the baseline from which the of jurisdiction for a particular purpose,
breadth of the territorial sea is not of sovereignty.
measured 12 nautical miles from the
territorial sea. State may exercise control as is
necessary to:
1. Prevent infringement of its

customs, fiscal, immigration,
or sanitary laws within its
territory or its territorial sea
or
2. Punish such infringement.
It gives the coastal State sovereign rights States may exercise;

overall economic resources of the sea, 1. Sovereign rights;
Exclusive Economic sea-bed and subsoil in an area 2. Jurisdictional rights; and
Zone extending not more than 200 nautical 3. Other rights and duties
miles beyond the baseline from which provided for in the Law of the
the territorial sea is measured. Sea Convention.
(Please see discussion on rights of the

coastal state in the EEZ, p. 50)

High Seas They are all parts of the sea that are not They are beyond the jurisdiction and
included in the territorial sea or in the sovereign rights of state.
internal waters of a state.
(Article 1, Geneva Convention) It is treated as res communes or res
nullius, and thus, are not part of the
territory of a particular State.
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POLITICAL LAW
INTERNATIONAL TRIBUNAL FOR THE LAW OF 3. No member of the Tribunal may exercise any
THE SEA political or administrative function, or
associate actively with or be financially
International Tribunal for the Law of the Sea interested in any of the operations of any
(ITLoS) enterprise concerned with the exploration for
or exploitation of the resources of the sea or
It is an independent judicial body established by the seabed or other commercial use of the sea
the Third United Nations Convention on the Law or the seabed [UNCLOS, Annex VI, Statute of
of the Sea that adjudicates disputes arising out of ITLoS, Art. 7(1)];
the interpretation and application of the 4. No member of the Tribunal may act as agent,
Convention. It was established after Ambassador counsel or advocate in any case [UNCLOS,
Arvido Pardo Malta addressed the General Annex VI, Statute of ITLoS, Art. 7(2)];
Assembly of the United Nations and called for “an 5. No member of the Tribunal may participate in
effective international regime over the seabed and the decision of any case in which he has
ocean floor beyond a clearly defined national previously taken part as agent, counsel or
jurisdiction”. Its seat is in Hamburg, Germany. advocate for one of the parties, or as a member
of a national or international court or tribunal,
Part XV of the 1982 UN Convention on the Law of or in any other capacity [UNCLOS, Annex VI,
the Sea requires States to settle peacefully any Statute of ITLoS, Art. 8(1)]; and
dispute concerning the Convention. Failing a 6. If for some special reason a member of the
bilateral settlement, it provides that any dispute Tribunal should not sit in a particular case:
shall be submitted for compulsory settlement to a. Member should inform the President of
one of the tribunals having jurisdiction. (UNCLOS, the Tribunal [UNCLOS, Annex VI, Statute of
Art. 286) These include the ITLos, the ITLoS, Art. 8(2)]; or
International Court of Justice (ICJ), and arbitral or b. President should give the member notice
special arbitral tribunals constituted under the accordingly. [UNCLOS, Annex VI, Statute of
UNCLOS. ITLoS, Art. 8(3)]
The ITLoS is composed of 21 independent NOTE: Any doubt shall be resolved by decision of
members elected by the States partied to the the majority of other members of the Tribunal
UNCLOS from among persons with recognized present. (UNCLOS Annex VII, Arbitration, Art. 7, 8)
competence in the field of the law of the sea and
representing the principal legal systems of the Members enjoy diplomatic privileges and
world. immunities. (UNCLOS Annex VII, Arbitration, Art.
10)
Jurisdiction of the tribunal
Jurisdiction of the Seabed Dispute Chamber
Its jurisdiction comprises all disputes and all
applications submitted to it and all matters The categories of its jurisdiction are the following:
specifically provided for in any other agreement 1. Disputes between State Parties concerning
which confers jurisdiction to the Tribunal. the interpretation or application of treaty or
convention may, in accordance with such
Rules with regard to membership in the agreement, be submitted to the Tribunal.
Tribunal 2. Disputes between a State Party and the
Authority concerning:
1. No two members of the Tribunal may be a. Acts or omissions of the Authority or of a
nationals of the same State [UNCLOS, Annex VI, State Party alleged to be violations of the
Statute of ITLoS, Art. 3(1)]; convention; or
b. Acts of the Authority alleged to be in
NOTE: The person shall be deemed to be a excess of jurisdiction of a misuse of
national of the one in which he ordinarily power.
exercises civil and political rights. (Ibid) 3. Disputes between parties to a contract, being
State Parties, the Authority or the Enterprise,
2. There should be no fewer than three members state enterprises and natural or juridical
from each geographical group to be persons concerning:
established by the UN General Assembly a. Interpretation or application of a relevant
[UNCLOS, Annex VI, Statute of ITLoS, Art. 3(2)]; contract or a plan of work; or

b. Acts or omissions of a party to the
contract relating to activities in the Area China contested the Tribunal’s jurisdiction on the
and directed to the other party or directly following grounds:
affecting its legitimate interest.
1. That the essence of the subject-matter of the
4. Disputes between the Authority and a arbitration is the territorial sovereignty over
prospective contractor who has been several maritime features in the South China
sponsored by a State. Sea (SCS), which is beyond the scope of the
5. Disputes between the Authority and a State Convention, and does not concern the
Party, a state enterprise or a natural or interpretation or application of the
juridical person sponsored by a State Party. Convention;
6. Any other disputes for which the jurisdiction 2. That the two countries have agreed, through
of the Chamber is specifically provided for in bilateral instruments and the Declaration on
the Convention. the Conduct of Parties in the SCS, to settle their
relevant disputes through negotiations. Thus,
Alternative means for the settlement of the Philippines’ resort to arbitration is a
disputes established by the Convention breach of its obligations under international
law; and
Aside from the ITLOS, it also established the 3. Even assuming, arguendo, that the subject-
International Court of Justice, an arbitral tribunal matter of the arbitration were concerned with
constituted in accordance with Annex VII to the the interpretation or application of the
Convention and a special arbitral tribunal Convention, that subject-matter would
constituted in accordance with Annex VIII of the constitute an integral part of maritime
Convention. delimitation, which is covered by China’s 2006
declaration excluding maritime delimitation
THE WEST PHILIPPINE SEA CASE from its acceptance of compulsory dispute
settlement procedures under the UNCLOS.
Arguments of the Republic of the Philippines
(RP): Award on Jurisdiction and Admissibility
1. Declarations that the Philippines’ and China’s The Tribunal found that the submissions of the
respective rights and obligations in regard to Philippines did not per se involve disputes
the waters, seabed, and maritime features of concerning sovereignty or maritime boundary
the South china Sea are governed by the delimitation, which are among the issues that may
UNCLOS; and that China’s claims based on be excluded by States from the subject-matter
“historic rights” encompassed within its so- jurisdiction of compulsory dispute settlement
called “Nine-dash Line” are inconsistent with procedures entailing binding decisions under the
the UNCLOS and therefore invalid; UNCLOS. However, this exclusion of the issue of
2. Determinations as to whether, under the sovereignty or maritime boundary delimitation is
UNCLOS, certain maritime features claimed by premised on the Philippines’ position that the
both states are properly characterized as features claimed by China belong to the
islands, rocks, low tide elevations, or Philippines; are low-tide elevations or rocks only
submerged banks. The Philippines claims in that do not generate either a Territorial Sea (TS),
particular that Scarborough Shoal and eight of EEZ, or a Continental Shelf (CS), or EEZ or a CS
such features in the Spratlys are low-tide only; and that as such, in the case that
elevations or submerged banks that merely any/some/all of these features are found to belong
generate a territorial sea (TS), not an to China, the maritime entitlements they will
exclusive economic zone (EEZ) or continental generate, if at all, will not overlap with the
shelf (CS); and Philippines’ own maritime entitlements.
3. Declarations that China has violated the
UNCLOS by interfering with the Philippines’ The above reasoning will also determine whether
sovereign rights and freedoms, through China acted unlawfully with respect to the
construction and fishing activities that have enjoyment of the Philippines of its rights, and the
harmed the marine environment. obligation to protect and preserve the marine
environment, within the disputed areas. The
Arguments of the People’s Republic of China Tribunal also acknowledged that other findings on
(PRC): the merits may preclude its jurisdiction, where
375
POLITICAL LAW
fishing and fisheries related law enforcement, and • Historical navigation and fishing by China in the
military activities, may be in issue. With respect to waters of the South China Sea were an exercise of
the Scarborough Shoal, however, the Tribunal high sea freedoms rather than a historic right;
found that the exceptions under Art. 297 and 298 there is no evidence that China had historically
cannot oust it of jurisdiction, given that the exercised exclusive control over the waters of the
activities complained of involve traditional fishing South China Sea or prevented other States from
rights and other events occurring in the territorial exploiting their resources
sea, a maritime area over which the said • Between the Philippines and China, there was no
provisions have no application. legal basis for China to claim historic rights to
resources, in excess of the rights provided by the
Finally, the Tribunal asked the Philippines to Convention, within the sea areas falling within the
clarify the content and narrow the scope of its last ‘nine-dash line’
submission, requesting a declaration that “China
shall desist from further unlawful claims and 2. The status of features in the South China Sea
activities.”
Whether certain coral reefs claimed by China are or
Tribunal’s Decision on the Merits of the are not above water at high tide
Philippines’ Claim
• Arts. 13 and 121: features that are above water
1. The ‘nine-dash line’ and China’s claim to historic at high tide generate an entitlement to at least a
rights in the maritime areas of the South China Sea 12-nautical mile territorial sea; features that are
submerged at high tide generate no entitlement to
Whether China has historic rights to resources in maritime zones
the South China Sea beyond the limits of the • Many of the reefs in the South China Sea have
maritime zones that it is entitled to pursuant to the been heavily modified by recent land reclamation
Convention and construction; the Convention classifies
features on the basis of their natural condition
• Based on the history of the Convention and its • Evaluation of features based on the assistance of
provisions concerning maritime zones, the an expert hydrographer and archival materials
Convention was intended to comprehensively and historical hydrographic surveys
allocate the rights of States to maritime areas -Scarborough Shoal, Johnson Reef, Cuarteron
• The question of pre-existing rights to resources Reef, and Fiery Cross Reef are high-tide
was considered during the negotiations on the features, and
creation of exclusive economic zone and a number -Subi Reef, Hughes Reef, Mischief Reef, and
of States wished to preserve historic fishing rights Second Thomas Shoal were submerged at high
in the new zone: this position was rejected; the tide in their natural condition
final text of the Convention gives other States only -But Gaven Reef (North) and McKennan Reef
a limited right of access to fisheries in the are high-tide features
exclusive economic zone and no rights to
petroleum or mineral resources Whether any of the features claimed by China could
• China’s claim to historic rights to resources was generate an entitlement to maritime zones beyond
incompatible with the detailed allocation of rights 12 nautical miles
and maritime zones in the Convention: that China
had historic rights to resources in South China Sea • Art. 121 of the Convention: islands generate an
waters, such rights were extinguished when the entitlement to an exclusive economic zone of 200
Convention entered into force to the extent that nautical miles and to a continental shelf, but rocks
they were incompatible with the Convention’s which cannot sustain human habitation or
system of maritime zones economic life of their own shall have no exclusive
economic zone or continental shelf — closely
Whether China actually had historic rights to linked to the expansion of coastal State
resources in the South China Sea prior to the entry jurisdiction and intended to prevent insignificant
into force of the Convention features from generating large entitlements to
maritime zones that would infringe on
• Prior to the Convention, the waters of the South entitlements of inhabited territory or on high seas
China Sea beyond the territorial sea were legally and the area of the seabed reserved for the
considered part of the high seas where vessels common heritage of mankind
from any State can fish and navigate

• Entitlements of a feature depend on the a)
objective capacity of a feature, b) its natural Traditional fishing at Scarborough Shoal
conditions to sustain either c) a stable community
of people or d) economic activity that is neither • Fishermen from both China and the Philippines
dependent on outside resources nor purely and from other countries had long fished at the
extractive in nature Scarborough Shoal and had traditional fishing
• Even if many of the features are currently rights in the area
controlled by one or other of the littoral States, • Scarborough Shoal is above water at high tide so
which have constructed installations and it generates an entitlement to a territorial sea, its
maintained personnel there and have been surrounding waters do not form part of the
modified to improve their habitability (by land exclusive economic zone, and traditional fishing
reclamation and construction of infrastructure), rights were not extinguished by the Convention
the current presence of official personnel on many • China had violated its duty to respect the
of the features does not establish their capacity, in traditional fishing rights of Philippine fishermen
their natural condition, to sustain a stable by halting access to the Shoal after May 2012
community of people and considered that
historical evidence of habitation or economic life Effect of China’s actions on the marine environment
was more relevant to the objective capacity of the
features • China’s large scale land reclamation and
• Temporary of use of features (as in by small construction of artificial islands at seven features
groups of Chinese fishermen and from other states in the Spratly Islands has caused severe harm to
in the Spratly Islands and Japanese fishing and the coral reef environment
guano mining enterprises) did not amount to • China violated its obligations under Articles 192
inhabitation by a stable community and that all and 194 of the Convention to preserve and protect
historical economic activity had been extractive in the marine environment with respect to fragile
nature ecosystems and the habitat of depleted,
• All high-tide features in the Spratly Islands are threatened, or endangered species
legally “rocks” that do not generate an exclusive • Chinese fishermen were engaged in the
economic zone or continental shelf harvesting of endangered sea turtles, corals and
• The Convention does not provide for a group of giant clams on a substantial scale in the South
islands (such as the Spratly Islands) to generate China Sea using methods that inflicted severe
maritime zones collectively as a unit damage on the coral reef environment; Chinese
authorities were aware of these and failed to fulfill
3. Chinese activities in the South China Sea their due diligence obligation under the
Lawfulness of various Chinese actions in the South Convention to stop them
China Sea under the Convention
Lawfulness of conduct of Chinese law enforcement
• Because Mischief Reef, Second Thomas Shoal and vessels at Scarborough Shoal in April and May 2012
Reed Bank are submerged at high tide and are not (Chinese vessels sought to physically obstruct
overlapped by any possible entitlement of China, Philippine vessels from approaching or gaining
they from part of the exclusive economic zone and entrance to the Shoal)
continental shelf of the Philippines; the
Convention is clear in allocating sovereign rights • Assisted by an independent expert on
to the Philippines with respect to sea areas in its navigational safety and expert evidence on
exclusive economic zone navigational safety provided by the Philippines
• China had violated the Philippines’ sovereign • Chinese law enforcement vessels had repeatedly
rights with respect to its exclusive economic zone approached the Philippine vessels at high speed
and continental shelf: China had a) interfered with and to cross ahead of them at close distances,
Philippine petroleum exploration at Reed Bank, b) creating serious risk of collision and danger to
purported to prohibit fishing by Philippine vessels Philippine ships and personnel
within the Philippines’ exclusive economic zone, c) • China breached its obligations under the
protected and failed to prevent Chinese fishermen Convention on the International Regulations for
from fishing within the Philippines’ exclusive Preventing Collisions at Sea (1972), and Art. 94 of
economic zone at Mischief Reef and Second the Convention concerning maritime safety
Thomas Shoal, and d) constructed installations
and artificial islands as Mischief Reef without the 4. Aggravation of the dispute between the parties
authorization of the Philippines
377
POLITICAL LAW
Whether China’s recent large-scale land Process for securing protection of marks
reclamation and construction of artificial islands at through international registration
seven features in the Spratly Islands since the
commencement of the arbitration had aggravated NOTE: Any reference to an “office” shall be
the dispute between the Parties construed as a reference to the office that is in
charge, on behalf of a Contracting Party, of the
• Parties engaged in a dispute settlement registration of marks, and any reference to
procedure have a duty to refrain from aggravating “marks” shall be construed to pertain to
or extending the dispute or disputes at issue trademarks and service marks.
during the pendency of the settlement process
• China has a) build a large artificial island on 1. Where an application for the registration of a
Mischief Reef which is within the exclusive mark has been filed with the Office of a
economic zone of the Philippines, b) caused Contracting Party or registered in the register
permanent harm to the coral reef ecosystem, and of the of the Office of a Contracting party, the
c) permanently destroyed evidence of the natural person in whose name that application (basic
condition of the features in question application) or that registration (basic
• China violated its obligations to refrain from registration) stands may, subject to the
aggravating or extending the Parties’ disputes provisions of the Madrid Protocol, secure
during the pendency of the settlement process protection for his mark in the territory of the
Contracting Parties, by obtaining the
5. Future conduct of the parties registration of that mark in the register of the
International Bureau of the World Intellectual
Philippines request for declaration that China shall Property Organization, provided that: where
respect the rights and freedoms of the Philippines the basic application has been filed with the
and comply with its duties under the Convention Office of a Contracting State or Organization
or where the basic registration has been made
• Both the Philippines and China have accepted the by such an Office, the person in whose name
Convention and general obligations of good faith that application or registration stands is a
define and regulate their conduct national of that Contracting State or of a State
• The root of the disputes at issue in this member of the Contracting Organization, or is
arbitration lies not in any intention of any Party to domiciled, or has a real and effective
infringe on the legal rights of the other but in the industrial or commercial establishment, in the
fundamentally different understandings of their said Contracting State or State member.
respective rights under the Convention in the 2. The application for international registration
waters of the South China Sea (international application) shall be filed with
the International Bureau through the
(The Republic of the Philippines v. The People’s intermediary of the Office with which the
Republic of China, Case No. 2013-19 in the basic application was filed or by which the
Permanent Court of Arbitration Before the Arbitral basic registration was made, as the case may
Tribunal constituted under UNCLOS Annex VII, July be.
12, 2016, case brief provided by UP Law Institute for
Maritime Affairs and Law of the Sea) Territory of a Contracting Party
MADRID PROTOCOL AND THE PARIS Where the Contracting Party is a State, the
CONVENTION FOR THE PROTECTION OF territory of that State, and where the Contracting
INDUSTRIAL PROPERTY Party is an intergovernmental organization, the
territory in which the constituting treaty of that
Madrid Protocol intergovernmental organization applies. (Madrid
Protocol, Art. 2)
It is the Protocol relating to the Madrid Agreement
which governs the system of international The following may use the system:
registration of marks. The system makes it
possible to protect a mark in a large number of 1. A natural person; or
countries by obtaining an international 2. Legal entity having a connection, through
registration which has effect in each of the establishment, domicile or nationality, with a
Contracting Parties that has been designated. Contracting Party to the Madrid Protocol or
Agreement. (Madrid Protocol, Art. 2)

Moreover, a period of grace of 6 months shall be
Effects on an international registration allowed for such renewal. (Madrid Protocol, Art. 7,
pars. 3 & 4)
The effects of an international registration in each
designated Contracting Party are, as from the date Paris Convention on protection of industrial
of the international registration, the same as if the property
mark had been deposited directly with the Office
of that Contracting Party. (Madrid Protocol, Art. 4) It applies to industrial properties in the widest
sense. It includes patents, marks, industrial
Advantages of the Madrid system designs, utility models, trade names, geographical
indications and the repression of unfair
Instead of filing many national applications in all competition.
countries of interest, in several different
languages, in accordance with different national Industrial property
procedural rules and regulations and paying
several different fees, an international application Shall be understood in the broadest sense,and
may be obtained by simply filing one application shall apply not only to industry or commerce
with the International Bureau (through the Office proper, but likewise to agricultural and extractive
of the home country), in one language (either industries and to all manufactured or natural
English or French) and paying only one set of fees. products, for example, wines, grain, tobacco leaf,
fruit, cattle, minerals, mineral waters, beer,
Also, renewal entails simple payment of the flowers and flour. (Paris Convention, Art. 1)
necessary fees, every 10 years, to the International
Bureau. BASIC PRINCIPLES OF INTERNATIONAL
ENVIRONMENTAL LAW
Likewise, if the international organization is
assigned to a third party or any other change, such ARTICLE II, SECTION 6 OF THE PHILIPPINE
as a change in name and/or address, has occurred, CONSTITUTION
this may be recorded with effect for all designated
Contracting Parties by means of a single “The state shall protect and advance the right of the
procedural step. people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature”
Period of validity of international registration
under the Madrid Protocol INTERNATIONAL ENVIRONMENTAL LAW
10 years, with possibility of renewal under the It is the branch of public international law
conditions set forth in Art. 7 thereof. (Madrid comprising "those substantive, procedural and
Protocol, Art. 6) institutional rules which have as their primary
objective the protection of the environment," the
Requirements for renewal of international term environment being understood as
registration encompassing "both the features and the products
of the natural world and those of human
1. Renewal for a period of only 10 years from the civilization.
expiry of the preceding period;
2. Payment of the basic fee; and Environmental concerns, related to Human
3. It must not bring about any change in the Rights
international registration in its latest form.
(Madrid Protocol, Art. 7) The protection of the environment is a vital part of
contemporary human rights doctrine, for it is a
NOTE: The International Bureau shall, by sending sine qua non for numerous human rights such as
an unofficial notice, remind the holder of the the right to health, and the right to life itself.
international registration and its exact date of (Danube Dam Case, ICJ Rep 1997)
expiry six months before the expiry of the term of
protection.
PRINCIPLE 21 OF THE STOCKHOLM
DECLARATION
379
POLITICAL LAW
Stockholm Declaration responsibility that they bear in the international
pursuit to sustainable development in view of the
The Stockholm Declaration, or the Declaration of pressures their societies place on the global
the United Nations Conference on the Human environment and of the technologies and financial
Environment, was adopted on June 16, 1972 in resources they command.” (Rio Declaration,
Stockholm, Sweden. It contains 26 principles and Principle 7)
109 recommendations regarding the preservation
and enhancement of the right to a healthy PRECAUTIONARY PRINCIPLE
environment.
Principle 15 of the Rio Declaration, commonly
Principle 21 of the Stockholm Declaration known as the Precautionary Principle states:
This declares that States have: In order to protect the environment, the
1. The sovereign right to exploit their own precautionary approach shall be widely applied by
resources pursuant to their own States according to their capabilities. Where there
environmental policies; and are threats of serious damage, lack of full scientific
2. The responsibility to ensure that activities certainly shall not be used as a reason for
within their jurisdiction or control do not postponing cost-effective measures to prevent
cause damage to the environment of other environmental degradation.
States or of areas beyond the limits of national
jurisdiction or otherwise known as the Good NOTE: This principle advocates that the potential
Neighborliness Principle. (Sarmiento, 2007) harm should be addressed even with minimal
predictability at hand. The Precautionary
Principle 21 of the Stockholm Declaration is a Principle requires a high degree of prudence on
part of customary law the part of the stakeholders. Decision makers are
not only mandated to account for scientific
The Court recognizes that the environment is daily uncertainty but can also take positive action, e.g.,
under threat and that the use of nuclear weapons restrict a product or activity even when there is
could constitute a catastrophe for the scientific uncertainty.
environment. The court also recognizes that the
environment is not an abstraction but represents Under Rule 20 of the Rules of Procedure for
the living space, the quality of life and the very Environmental Cases, the Precautionary Principle
human beings, including generations unborn. The is adopted as a rule of evidence. The Supreme
existence of the general obligation of States to Court’s adoption of the Precautionary Principle in
ensure that activities within their jurisdiction and the newly promulgated Rules of Procedure for
control respect the environment of other States or Environmental Cases affords plaintiffs a better
of areas beyond national control is now part of the chance of proving their cases where the risks of
corpus of international law relating to the environmental harm are not easy to prove.
environment. (ICJ Advisory Opinion on the Legality
of the Threat or Use of Nuclear Weapons, July 8, Bt Talong Case
1996)
Greenpeace Southeast Asia and farmer-scientist
Principle of Common but Differentiated coalition MASIPAG asked the CA to stop the
Responsibility planting of BT (Bacillus thuringiensis) talong in
test fields. CA, citing precautionary principle,
This principle requires the protection of specified granted the petition. CA stated that “when human
environmental resource or area as common activities may lead to threats of serious and
responsibility but takes into account the differing irreversible damage to the environment that id
circumstances of certain States in the discharge of scientifically plausible but uncertain, actions shall
such responsibilities. [Framework Convention on be taken to avoid or diminish the threat”. The SC
Climate Change, Art. 3(1)] permanently stopped the field testing for Bt
Talong, upholding the decision of the CA which
It is also embodied in the Rio Declaration which stopped the field trials for the genetically modified
states: “…In view of the different contributions to eggplant. The SC is the first in the world to adopt
global environmental degradation, States have the precautionary principle regarding GMO
common but differentiated responsibilities. The products in its decision (International Service for
developed countries acknowledge the

the Acquisition of Agri-biotech Applications, Inc. V. have adequate confirmation in fact and in law, the
Greenpeace Southeast Asia Philippines, supra). questioned project of NAPOCOR then suffers from
a paucity of purpose, no matter how noble the
When there is lack of full scientific certainty in purpose may be. For what use will modernization
establishing a causal link between human activity serve if it proves to be a scourge on an individual’s
and environmental effect, the court shall apply the fundamental right, not just to health and safety,
precautionary principle in resolving the case but, ostensibly, to life preservation itself, in all of
before it, The constitutional right if the people to a its desired quality? (Hernandez v. NAPOCOR, G.R.
balanced and healthful ecology shall be given the No. 145328, March 23, 2006)
benefit if the doubt (Rule 20, Sec. 1, Rules of
Procedure for Environmental Cases; Polluter Pays Principle
(International Service for the Acquisition of
Agri-biotech Applications, Inc. V. Greenpeace It means that the party responsible for producing
Southeast Asia Philippines, G.R. No. 209271, July the pollutants must bear responsibility for
26, 2016 PER J. PERLAS-BERNABE). shouldering the costs of the damage done to the
environment. It is expressly stated in Principle 16
Q: NAPOCOR began constructing steel towers of the Rio Declaration on Environment and
to support overhead high tension cables in Development: “National authorities should
connection with its Sucat-Araneta-Balintawak endeavor to promote the internalization of
Power Transmission Project. Residents of environment costs and the use of economic
Dasmariñas Village were alarmed by the sight instruments, taking into account the approach that
of the towering steel towers and scoured the the polluter should, in principle, bear the cost of
internet on the possible adverse health effects pollution, with due regard to the public interest
of such structures. They got hold of published and without distorting international trade and
articles and studies linking the incidence of a investment”. (Rio Declaration, Principle 16)
fecund of illnesses to exposure to
electromagnetic fields. The illnesses range Other principles of International
from cancer to leukemia. Environmental Law set forth in the Rio
Declaration
Petitioners filed a complaint for the Issuance of
a TRO and/or a Writ of Preliminary Injunction 1. States have the sovereign right to exploit their
against NAPOCOR. This was granted by the trial own resources pursuant to their own
court. The Court of Appeals reversed the order, environmental policies, and the responsibility
holding that the proscription on injunctions to ensure that activities within their
against infrastructure projects of the jurisdiction or control do not cause damage to
government is clearly mandated by Sec. 1 of the environment of other states or of areas
P.D. 1818. Is the issuance of a Writ of beyond the limits of national jurisdiction
Preliminary Injunction justified, despite the (Principle 2);
mandate of P.D. 1818? 2. Right to development must be fulfilled so as to
equitably meet development needs of present
A: Whether there is a violation of petitioners’ and future generations (Principle 3); and
constitutionally protected right to health is a 3. In order to achieve sustainable development,
question of law that invested the trial court with environmental protection shall constitute an
jurisdiction to issue a TRO and subsequently, a integral part of the development process and
preliminary injunction. This question of law cannot be considered in isolation from it
divests the case from the protective mantle of (Principle 4).
Presidential Decree No. 1818.
Long-Range Transboundary Air Pollution
There is adequate evidence on record to justify the
conclusion that the project of NAPOCOR probably It means air pollution whose physical origin is
imperils the health and safety of the petitioners so situated wholly or in part within the area under
as to justify the issuance by the trial court of a writ the national jurisdiction of one State and which
of preliminary injunction. The health concerns are has adverse effects in the area under the
at the very least, far from imaginary. jurisdiction of another State at such a distance that
is not generally possible to distinguish the
In hindsight, if, after trial, it turns out that the contribution of individual emission sources or
health-related fears that petitioners cleave on to
381
POLITICAL LAW
groups of sources. (1979 Convention on Long- NOTE: Environmental Modification
Range Transboundary Air Pollution, Art. 1) Techniques refers to any technique for the
changing through the deliberate manipulation
Two Fundamental Principles of liability for of natural processes the dynamics,
transboundary pollution under international composition or structure of the earth
law including its biota lithosphere, hydrosphere
and atmosphere or outer space. (ENMOD, Art.
a) First, a state must show material damage and II)
causation to be entitled to legal relief; and
b) Second, a state has a duty to prevent, and may 2. Prohibition of the employment of methods or
be held responsible for pollution by private means of warfare which are intended, or may
parties within its jurisdiction if such pollution be expected, to cause widespread, long-term
results in demonstrable injury to another and severe damage to the natural
state. (Trail Smelter Case, US v. Canada, 1941) environment. (Protocol I Additional to the
Geneva Convention of 1949, Art. 35(3))
Sustainable Development
3. Pollution
It is a development that meets the needs of the
present without compromising the ability of It means any introduction by man, directly or
future generations to meet their own needs. indirectly, of substance or energy into the
environment resulting in deleterious effects of
Principles that embody sustainable such nature as to endanger human health, harm
development living resources, ecosystem, and material property
and impair amenities or interfere with other
1. Principle of intergenerational equity – The legitimate uses of the environment. (Magallona,
need to preserve natural resources for the citing ILA Reports, Vol. 60, 1982)
benefit of future generations;
2. Principle of sustainable use – The aim of
exploiting natural resources in a manner
which is "sustainable," or "prudent," or
"rational," or "wise," or "appropriate";
3. Principle of equitable use or intragenerational
equity – The equitable use of natural
resources, which implies that use by one state,
must take into account the needs of other
states; and
4. Principle of integration – The need to ensure
that environmental considerations are
integrated into economic and other
developmental plans, programs and projects,
and that development needs are taken into
account in applying environmental objectives.
Rules for the protection of the environment in

armed conflict
1. Each State Party undertakes not to engage in

military or other hostile use of environmental
modification techniques having widespread,
long-lasting or severe effects as the means of
destruction, damage or injury to any other
Party State. (Convention on the Prohibition of
Military or other Hostile Use of Environmental
Modification Techniques or the Environmental
Modification Convention [ENMOD], Art. 1)


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POLITICAL LAW

2019 GOLDEN NOTES

Address: Academics Committee

Tel. No: (02) 731-4027

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

Printed in the Philippines August 2019.

ATTY. AL CONRAD B. ESPALDON

POLITICAL LAW COMMITTEE

SARA D. LARCE POLITICAL LAW COMMITTEE ASST. HEAD

ATTY. AL CONRAB B. ESPALDON

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

ATTY. ARTHUR B. CAPILI

ATTY. ELGIN MICHAEL C. PEREZ

JUDGE PHILIP A. AGUINALDO

LENY G. GADANIA, R.G.C.

Justice Amy Lazaro-Javier

Justice Oswaldo D. Agcaoili

Judge Charito M. Sawali

Atty. Carlo L. Cruz

Atty. Enrique V. Dela Cruz

Atty. Rene B. Gorospe

Atty. Victoria V. Loanzon

Atty. Rafaelito M. Garayblas

Atty. Anicia C. Marquez

Atty. Edwin R. Sandoval

Atty. Mauricio C. Ulep

II. Legislative Department .....................................................................................................................19

III. Executive Department .....................................................................................................................53

IV. Judicial Department .........................................................................................................................80

VI. Bill of Rights ...................................................................................................................................100

VII. Citizenship ....................................................................................................................................168

VIII. Law on Public Officers .................................................................................................................172

IX. Administrative Law ........................................................................................................................213

X. Election Law ....................................................................................................................................227

XI. Local Governments ........................................................................................................................246

Xll. National Economy and Patrimony .................................................................................................281

XIII. Social Justice and Human Rights ..................................................................................................291

XV. Education, Science, Technology, Arts, Culture and Sports .............................................................294

XVI. The Family ...................................................................................................................................298

XVII. Amendments or Revisions of the Constitution............................................................................298

XVIII. Public International Law ...........................................................................................................303

THE RISK OF USE OF THIS BAR

UNIVERSITY OF SANTO TOMAS 2

3. The symbols of statehood – Flag of the Constitutional provision on transparency in

UNIVERSITY OF SANTO TOMAS 4

UNIVERSITY OF SANTO TOMAS 6

b. Strict Neutrality Approach – It is not MANDATORY PERMISSIVE PROHIBITED

UNIVERSITY OF SANTO TOMAS 8

Purposes of Separation of Powers A: NO. Pursuant to the principle of separation of

EXECUTIVE LEGISLATIVE JUDICIARY Q: May the RTC or any court prohibit a

UNIVERSITY OF SANTO TOMAS 10

A: NO. The petition is not justiciable because as Principle of Blending of Powers

Verily, the primordial duty of the Court is merely EXECUTIVE CHECK

UNIVERSITY OF SANTO TOMAS 12

XPN: Doctrine of Necessary Implication (2010 STATE IMMUNITY

UNIVERSITY OF SANTO TOMAS 14

UNIVERSITY OF SANTO TOMAS 16

If the local legislative authority refuses to enact a

The government cannot be made to pay