political law barops unsecured

LABOR LAW REVIEWER

ELECTION LAW

CONSTITUTIONALLAW I

CONSTITUTIONALLAW II

PUBLICINTERNATIONAL LAW

ADMINISTRATIVELAW

LAW ONPUBLIC OFFICERS

LOCALGOVERNMENT LAW

POLITICAL LAW 2010

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POLITICAL LAW REVIEWER

CONSTITUTIONAL LAW 1Table of Contents

Chapter I. The State .................................................3I. Territory .......................................................3

A. 1987 Const., Art. I ...................................3B. Treaty of Paris, Art. III .............................3C. Archipelagic Doctrine ..............................4

II. People..........................................................4A. Definition .................................................4B. Citizenship ..............................................4

III. Sovereignty..................................................6A. Kinds.......................................................6B. Theory of Auto-Limitation ........................6C. “Dominium” v “Imperium” ........................6D. Jurisdiction ..............................................6E. Suits Against the State and the Doctrineof Sovereign Immunity......................................7

IV. Government .................................................8A. Definition .................................................8B. Functions ................................................8C. Doctrine of Parens Patriae ......................8D. De Jure and De Facto Governments.......9

Chapter II. Structure and Powers of Government –Separation of Powers ............................................10

I. Legislative Department ..............................10A. Nature and Classification of LegislativePower .............................................................10B. Composition, Qualifications and Term ofOffice10C. Election .................................................11D. Salaries, Privileges and Disqualifications

12E. Internal Government of Congress .........13F. Electoral Tribunals ................................14G. Commission on Appointments ..............15H. Powers of Congress..............................16

II. Judiciary.....................................................21A. In General .............................................21B. Supreme Court......................................23C. Judicial and Bar Council........................25

III. Executive ...................................................25A. The President........................................25B. Vice President.......................................41

IV. Constitutional Commissions.......................42A. Common Provisions..............................42B. Civil Service Commission......................42C. Commission on Elections......................43D. Commission on Audit ............................44

V. Constitutionally-Mandated Bodies .............44A. Sandiganbayan .....................................44B. Ombudsman .........................................44C. Commission on Human Rights..............45

Chapter III. National Economy and Patrimony.....46I. General Principles .....................................46

A. Goals.....................................................46B. Citizenship Requirements .....................46C. Filipino First...........................................46

II. Natural Resources .....................................46A. Regalian Doctrine [Jura Regalia] ..........46

B. Exploration, Development, and Utilization47

C. Stewardship Concept ............................48III. Private Lands.............................................48

A. General Rule .........................................48B. Exceptions.............................................48

IV. Monopolies.................................................48V. Central Monetary Authority ........................48

Chapter IV. Current Events and Special Topics ..49I. Party-List System.......................................49II. Question Hour v. Inquiries In Aid ofLegislation ...........................................................51III. Executive Privilege................................51IV. People’s Initiative .......................................52V. Right of Reply ............................................53VI. The (Erstwhile) Province of ShariffKabunsuan ..........................................................53VII. MOA on Ancestral Domain (MOA-AD) ..54


CONSTITUTIONAL LAW IITable of Contents

Chapter I. Bill of Rights .................................58I. In General ...........................................58II. Bases and Purpose.............................59

A. Bases: .............................................59III. Accountability ......................................59

Chapter II. Fundamental Powers ..................60of the State......................................................60

I. Police Power .......................................60A. Definition .........................................60

II. Eminent Domain..................................63A. Definition .........................................63B. Who May Exercise..........................63C. Requisites .......................................64

III. Taxation ..............................................65A. Definition and Scope.......................65B. Who May Exercise.........................65C. Limitations.......................................65D. Double Taxation..............................66

Chapter III. Due Process................................67I. In General ...........................................67II. Substantive Due Process....................67

A. Scope..............................................68B. Requisites .......................................68C. Doctrines.........................................68

III. Procedural Due Process .....................69A. Scope..............................................69B. Kinds ...............................................69

IV. Due Process As Limitation OnFundamental State Powers .........................70

A. Vis-à-vis Police Power ....................70B. Vis-à-vis Eminent Domain ..............70C. Vis-à-vis Power to Tax....................71

Chapter IV. Equal Protection of the Laws....72I. Definition and Scope of Protection......72II. Requisites of Valid Classification ........72III. Examples of Valid Classification .........72

A. Aliens ..............................................72B. Filipino Female Domestics WorkingAbroad .....................................................73C. Land-based vs. Sea-based FilipinoOverseas Workers...................................73D. Qualification for Elective Office.......73E. Office of the Ombudsman...............73F. Print vs. Broadcast Media...............73

IV. Standards of Judicial Review..............73A. “Rational Basis Test” ......................73B. “Strict Scrutiny Test” .......................73C. “Intensified Means Test” .................73

Chapter V. Requirements for Fair Procedure.........................................................................74

I. Nature and Scope ...............................74II. ARREST..............................................74

A. Requisites for Issuance of a ValidArrest Warrant .........................................74B. Requisites of a Valid WarrantlessArrest (Rule 113, Sec. 5, Rules on CriminalProcedure)...............................................75

III. SEARCH AND SEIZURE....................77IV. Detention/Custodial Investigation .......80

A. Rights under Custodial Investigation80

B. Tests of Waiver of Miranda Rights .83V. Protocol After Conduct Of Investigation

84VI. Other Rights Guaranteed Under Art. III.Sec. 12.........................................................84VII. Exclusionary Rules .........................84VIII. Right to Bail ....................................86

Chapter VI. Rights of the Accused...............88II. Rights Post Trial..................................91

Chapter VII. Writs ...........................................94I. HABEAS CORPUS .............................94II. WRIT OF AMPARO ............................96III. WRIT OF HABEAS DATA...................96

Chapter VIII. Privacy of Communication andCorrespondence ............................................99

I. Intrusion, When Allowed .....................99II. Forms of Correspondence Covered ...99III. ENABLING LAW .................................99

Chapter IX. Freedom of Expression...........101I. Basis, Components, Scope andLimitations..................................................101II. CONTENT-BASED RESTRICTIONS103IV. CONTENT-NEUTRAL RESTRICTIONS

106

Chapter X. Freedom of Religion .................109I. Non-establishment Clause................109II. Free Exercise Clause........................110III. Tests .................................................111

Chapter XI. Liberty of Abode and Travel ...112I. Liberty of Abode................................112II. Right to Travel...................................112III. Right to Return to One’s Country......112

Chapter XII. RA 9372: Human Security Act*.......................................................................113

Chapter XIII. Latest Cases...........................119


PUBLIC INTERNATIONAL LAWTable of Contents

Chapter I. Preliminaries ...............................124I. Public International Law (PIL) ...........124II. Contra-Distinctions............................124III. Relationship between PIL and MunicipalLaw 125

A. Monist View...................................125B. Dualist View ..................................125C. Monist-Naturalist View ..................125D. Coordinationist View .....................125

IV. The Philippine Doctrine .....................125A. Doctrine of Incorporation ..............125B. Doctrine of Transformation ...........125

Chapter II. Actors of International Law ......126I. Subjects and Objects of InternationalLaw 126

A. States............................................126B. Individuals .....................................128C. International Organizations (IO)....128

Chapter III. The Norms of International Law.......................................................................129

I. Concepts ...........................................129II. Sources of International Law ............129

A. Treaty as Source of Law...............129B. Customary International Law........129C. General Principle of Law...............131D. Subsidiary Source: Judicial Decisions

132E. Subsidiary Source: Publicists .......132F. Other Sources...............................132

III. Status of Norms ................................132A. Jus Cogens or Peremptory Norms132B. Erga Omnes Norms ......................132

Chapter IV. The Law of Treaties .................133I. Definition ...........................................133II. Requisites for Validity........................133

A. Treaty Making Capacity ................133B. Competence of theRepresentative/Organ Making the Treaty

133C. Parties Must Freely Give Consent 133D. Object and Subject Matter Must beLawful ....................................................133E. Ratification in Accordance with theConstitutional Process of the PartiesConcerned .............................................133

III. The Treaty-Making Process..............133A. Negotiation....................................133B. Adoption (Article 9, VCLOT) .........133C. Authentication of the Text (Article 10,VCLOT) .................................................134

D. Expression of Consent to be boundby the Treaty (Article 11, VCLOT).........134E. Registration with the UN...............135

IV. Philippine Law...................................135V. Amendment or Modification of Treaty

135VI. Reservations .....................................135VII. Invalid Treaties .............................135VIII. Grounds for Termination...............135

Chapter V. International Responsibility.....137I. Breach...............................................137

A. Is Fault or Malice Necessary? ......137B. The Standard of Diligence ............137

II. Attribution ..........................................137A. Direct and Indirect Attribution .......138B. Conduct Attributable to the State .138

III. Consequences of State Responsibility138

A. Duty to Make Reparation..............138B. Forms of Reparation.....................138

IV. Circumstances Precluding Wrongfulness139

V. Diplomatic Protection (“Espousal ofClaim”) .......................................................139

A. Material Dates...............................140B. Exhaustion of Local Remedies .....140

Chapter VI. Sovereignty and Jurisdiction .141I. Sovereignty .......................................141

A. Characteristics ..............................141B. Sovereign Equality of States ........141C. Corollaries.....................................141

II. Jurisdiction ........................................141A. Criminal Jurisdiction .....................141B. Reserved Domain of DomesticJurisdiction ............................................141C. Doctrine of State Immunity ...........141

Chapter VII. The Law of the Sea .................143I. Concepts ...........................................143

A. Distinguished from Maritime orAdmiralty Law........................................143B. Baseline ........................................143

II. Waters...............................................143A. Internal Waters .............................144B. Territorial Waters ..........................144C. Contiguous Zone ..........................144D. Exclusive Economic Zone ............144E. High Seas .....................................145

III. Archipelagic State .............................146IV. Continental Shelf...............................146

A. Limits of the Continental Shelf......148


B. Rights of the Coastal State over theContinental Shelf ...................................148C. Rights with Respect to ContinentalShelf vs. EEZ.........................................148

V. Settlement of Disputes ......................149A. Peaceful Settlement of Disputes ..149B. Compulsory Settlement of Disputes

149C. Jurisdiction of Court or Tribunal....149D. Composition of the InternationalTribunal for the Law of the Sea (ITLOS)149E. Jurisdiction of ITLOS ....................149F. Applicable Laws in Settlement ofDisputes by the ITLOS ..........................149

Chapter VIII. The Use of Force inInternational Law..........................................150

I. Jus Ad Bellum v Jus in Bello .............150II. Rules on the Use of Force ................150

A. General Rule.................................150B. Exceptions ....................................150

Chapter IX. International Human Rights Law.......................................................................152

I. Definition of Human Rights ...............152II. Classification of Human Rights .........152III. “Internationalization” of Human Rights

152IV. Sources of Human Rights .................152

A. Convention....................................152B. Custom..........................................152

V. International Bill of Human Rights.....153A. Universal Declaration of HumanRights (UDHR).......................................153B. International Covenant on Civil andPolitical Rights (ICCPR) ........................153C. International Covenant on Economic,Social and Cultural Rights (ICESCR) ....154D. Common Provisions in the ICCPRand the ICESCR and differences ..........154

VI. Specific Norms in Human Rights ......154A. Genocide.......................................154B. Torture ..........................................155C. Rights of the Child ........................155D. Law against Discrimination ...........155E. Refugee Law.................................156

Chapter X. International Humanitarian Law.......................................................................157

I. Definition of “Armed Conflict” ............157II. Fundamental Principles of IHL..........157III. Application of IHL ..............................158IV. The Four Geneva Conventions and theTwo Additional Protocols ...........................158V. Application of the Four GenevaConventions and the Two AdditionalProtocols ....................................................158VI. Definition of Concepts and Phrases..159

A. Combatants...................................159

B. Hors de combat ............................159C. Protected Persons ........................159D. Martens clause .............................159E. Military Objective ..........................159F. Belligerency Status.......................159

VII. IHL and Weapons of MassDestruction.................................................160VIII. IHL and Non-International ArmedConflict 160

A. Common Article 3 and Protocol II.160B. Control-of-Territory .......................161C. War of National Liberation ............161

IX. Neutrality ...........................................161X. Protective Emblems..........................161

A. Who May Use ...............................162B. Misuse of the Emblem ..................162C. Punishment...................................162

XI. The International Criminal Court .......162A. Crimes within the Court’s Jurisdiction

162B. Modes of Incurring Criminal Liability

163C. Sources of Law.............................163D. Other Key Concepts .....................163E. Landmark Cases ..........................163

Chapter XI. Diplomatic Intercourse............165I. Agents of Diplomatic Intercourse......165

A. Head of State................................165B. The Foreign Office........................165C. The Diplomatic Corps ...................165

II. Functions and Duties ........................165III. Diplomatic Immunities and Privileges165

A. Personal Inviolability.....................165B. Inviolability of Premises and Archives

166C. Right of Official Communication ...166D. Immunity from Local Jurisdiction ..166E. Exemption from Taxes and CustomsDuties ....................................................166

IV. Consular Relations............................167A. Ranks............................................167B. Necessary Documents .................167C. Immunities and Privileges.............167

Chapter XII. Recent International Law Issuesin Philippine Law..........................................168

I. Daniel Smith and the Visiting ForcesAgreement .................................................168II. The Constitutionality of the BaselinesLaw 169III. VIOLENCE AGAINST WOMEN (VAW)AS A FORM OF TORTURE ......................169

Appendix 1 - Straight and Normal Baselines.......................................................................171Appendix 2 - Continental Shelf and theMaritime Zones.............................................171


ADMINISTRATIVE LAWTable of Contents

Chapter I. Preliminary Considerations.......174A. Definitions .........................................174B. Historical Considerations ..................174C. Modes of Creation of AdministrativeAgencies ....................................................174D. When is an agency administrative? ..174E. Types of Administrative Agencies.....174

Chapter II. Powers of AdministrativeAgencies .......................................................174

A. Quasi-Legislative (Rule-making) Powers174

1. Definition .......................................1742. Non-delegation doctrine................1743. Legislative Delegation...................174

B. Quasi-Judicial (Adjudicatory) Powers174C. Determinative Powers .......................174

Chapter III. Judicial Review and Enforcementof Agency Action..........................................174

A. Considerations ..................................1741. Basis .............................................1742. Factors to Consider in JudicialReview: ..................................................1743. The doctrines of forum shopping, litispendentia and res judicata also apply toadministrative agencies. ........................1744. General Rule.................................1745. Exceptions ....................................1746. When judicial review is valid despitefinality of administrative decisions: ........1747. Availability of Judicial Reviewdepends on:...........................................174

B. Four Important Doctrines in JudicialReview .......................................................174

1. Doctrine of Primary Jurisdiction orPreliminary Resort .................................1742. Doctrine of Exhaustion ofAdministrative Remedies.......................1743. Doctrine of Qualified Political Agency

1744. Ripeness .......................................174

C. Extent of Judicial Review ..................1741. General Rule.................................1742. General Principles ........................1743. Law-fact Distinction.......................1744. Question of Law............................1745. Question of Fact ...........................1746. Question of Discretion ..................174

D. Modes of Judicial Review..................1741. Certiorari .......................................1742. Prohibition .....................................1743. Mandamus ....................................1744. Declaratory Relief .........................174

5. Habeas Corpus.............................1746. Writ of Amparo..............................1747. Habeas Data.................................1748. Injunction as Provisional Remedy 174

E. Enforcement of Agency Action .........1741. Res Judicata; Finality of Judgment

1742. Writ of Execution; Mandamus.......174


ELECTION LAWTable of Contents

Chapter I. General Principles......................198A. Definitions .........................................198

1. Suffrage ........................................1982. Scope............................................198

B. Constitutional Mandate on Congress 199C. Election Period ..................................199

Chapter II. COMELEC...................................200A. Composition ......................................200B. Qualifications.....................................200C. Powers and Functions.......................200

1. Constitutional powers and functions[Art. IX-C, Sec. 2]...................................2002. Statutory powers...........................201

D. Rendition of Decision ........................2011. Composition ..................................2012. Time Period and Votes Required .2023. COMELEC decisions reviewable bythe Supreme Court ................................202

E. Measures Designed for COMELEC’sIndependence ............................................202

Chapter III. Voters: Qualification andRegistration ..................................................203

A. Qualifications.....................................203B. Registration of Voters........................203

1. Definition .......................................2032. System of Continuing Registration ofVoters ....................................................2043. Illiterate or disabled voters............2044. Election Registration Board ..........2045. Change of residence or address ..2046. Challenges to right to register.......2047. Deactivation of Registration..........2058. Reactivation of Registration..........2059. Certified List of Voters ..................205

C. Inclusion and Exclusion Proceedings205D. Annulment of Book of Voters ............205E. Overseas Absentee Voter .................206

1. Definitions .....................................2062. Coverage ......................................2063. Qualifications ................................2064. Disqualifications............................2065. Personal Overseas AbsenteeRegistration ...........................................2066. Inclusion and Exclusion Proceedings

2067. National Registry of OverseasAbsentee Voters ....................................206

Chapter IV. Pre-Election Requirements .....207A. Certificates of Candidacy ..................207

1. Candidate, Definition ....................2072. Qualifications .....................................207

3. Disqualifications............................2074. Filing and withdrawal of certificate ofcandidacy ..............................................2085. Effect of filing certificate of candidacy

2096. Substitution of Candidates............2097. Duty of COMELEC .......................2098. Petition to declare a duly registeredcandidate as a nuisance candidate.......2099. Petition to Deny Due Course or toCancel Certificate ..................................21010. Effect of disqualification case...210

B. Registration of Political Parties .........2101. Party System ................................2102. Definitions .....................................2103. Purpose ........................................2114. Procedure for Registration............2115. Who May Not be Registered ........2116. Grounds for refusal and/orcancellation of registration ....................2117. Parameters in Allocation of Seats forParty-List Representatives ....................2128. Effect of Change of Affiliation...2129. Nomination of Party-ListRepresentative ......................................212

C. Party-list and District RepresentativesDistinguished .............................................213

Chapter V. Election Campaign andExpenditures ................................................214

A. Election Campaign............................2141. Election Campaign or PartisanPolitical Activity......................................2142. Campaign Period..........................2143. Lawful Election Propaganda.........2154. Prohibited Acts .............................2155. Equal Access to Media Time andSpace ....................................................2157. Election Surveys...........................2168. Application for Rallies, Meetings andOther Political Activity............................216

B. Election Contributions and Expenditures216

1. Definitions .....................................2162. Prohibited Contributions ...............2173. Prohibited Fund-raising Activities .2174. Limitations on Expenses...............2175. Statement of Contributions andExpenses...............................................2176. Requisites of a Prohibited Donation

218

Chapter VI. Election Proper ........................219A. In General .........................................219


1. What Constitutes an Election........2192. Failure of Elections .......................2193. Postponement of Elections ...........2194. Special Elections ..........................220

B. Board of Election Inspectors .............220C. Casting of Votes................................220

1. Voting Hours .................................2202. Voting............................................2203. Challenge of Illegal Voters............2204. Challenge based on certain illegalacts 220

D. Counting of Votes..............................2201. Counting Proper............................2202. Election Returns ...........................220

E. Canvassing of Votes .........................2201. Definitions .....................................2202. Composition of Board of Canvassers

2203. Prohibitions on BOC .....................2204. Canvass by the BOC ....................2205. Certificate of Canvass and Statementof Votes .................................................2206. Proclamation .................................220

Chapter VII. Modes of Challenging Candidacyand Election Results....................................220

A. Cancellation of Certificate of Candidacy220

1. Grounds ........................................2202. Nature of Proceedings.......................2203. Procedure .....................................220

B. Pre-Proclamation Controversies .......2201. Jurisdiction ....................................2202. When Not Allowed ........................2203. Nature of Proceedings ..................2204. Issues That May Be Raised..........2205. Issues That Cannot Be Raised.....2206. Procedure .....................................2207. Effect of Filing of Pre-ProclamationControversy ...........................................2208. Effect of Proclamation of WinningCandidate ..............................................2209. Petition to Annul or SuspendProclamation..........................................22010. Declaration of Failure of Election

220C. Disqualification Cases.......................220

1. Procedure .....................................2202. Effect .................................................220

Chapter VIII. Election Offenses...................220A. Jurisdiction over Election Offenses...220B. Prosecution of Election Offenses......220C. Preferential Disposition of ElectionOffenses.....................................................220D. Election Offenses ..............................220

1. Registration...................................2202. Certificate of Candidacy................2203. Election Campaign........................220

4. Voting............................................2205. Counting of Votes .........................2206. Canvassing ...................................2207. Acts of Government or Public Officers

2208. Coercion, Intimidation, Violence...2209. Other Prohibitions.........................22010. Penalties...................................220

E. Arrests in Connection with ElectionCampaign ..................................................220F. Prescription .......................................220G. Prohibited Acts Under R.A. 9369......220


LAW ON PUBLIC OFFICERSTable of Contents

Chapter I. Public Office and Officers .........234A. Public Office ......................................234

1. Definition .......................................2342. Purpose.........................................2343. Nature ...........................................2344. Elements .......................................2345. Public Office v. Public Employment

2346. Public Office v. Public Contract ....2347. No vested right to public office. ....2348. Public Office is not Property. ........2349. Creation of Public Office ...............23410. Methods of Organizing PublicOffices 23411. Modification and Abolition of PublicOffice 23412. Estoppel in Denying Existence ofOffice 234

B. Public Officer.....................................2341. Definition .......................................2342. A Person Cannot be Compelled toAccept a Public Office. ..........................2343. Public Officer’s Power is Delegated(not Presumed)......................................234

C. Classification of Public Offices andPublic Officers............................................234D. De Facto Officers ..............................234

1. De Facto Doctrine.........................2342. De Facto Officer Defined ..............2343. Elements of a De Facto Officership

2344. Office created under anunconstitutional statute..........................2345. Legal Effect of Acts of De FactoOfficers ..................................................2346. Liabilities of De Facto Officers ......2347. Right to Compensation of De FactoOfficer ....................................................234

Chapter II. Eligibility and Qualifications ....234A. Definition ...........................................234B. Power to Prescribe Qualifications .....234C. Time of Possession of Qualifications 234D. Eligibility is Presumed .......................234E. Qualifications Prescribed ByConstitution ................................................234F. Religious Test or Qualification is notRequired ....................................................234G. Disqualifications to Hold Public Office

234

Chapter III. Formation of Official Relation .234A. Modes of Commencing Official Relation

234

B. Election .............................................234C. Appointment......................................234

1. Definition.......................................2342. Nature of Power to Appoint ..........2343. Classification of Appointments .....2344. Steps in Appointing Process.........2345. Presidential Appointees................234

D. Qualification Standards andRequirements under the Civil Service Law234

1. Qualification Standards ................2342. Political Qualifications for an Office

2343. No Property Qualifications............2344. Citizenship ....................................2345. Effect of Removal of QualificationsDuring the Term ....................................2346. Effect of Pardon upon theDisqualification to Hold Public Office ....234

E. Discretion of Appointing Official ........234F. Effectivity of Appointment .................234G. Effects of a Complete, Final andIrrevocable Appointment............................234H. Civil Service Commission’s (CSC’s)Jurisdiction.................................................234I. Appointments to the Civil Service .....234


LOCAL GOVERNMENT LAWTable of Contents

Chapter I. Basic Principles..........................258I. Nature and Status .............................258

A. Definition .......................................258B. Dual Nature...................................258

II. Principles of Local Government Law 259A. State Policy, Principles ofDecentralization.....................................259B. Local Autonomy............................259C. Decentralization ............................259C. Devolution .....................................260

III. The Local Government Code............260A. Effectivity.......................................260B. Scope............................................260C. Rules of Interpretation ..................260

Chapter II. Creation and Dissolution of LGUs.......................................................................261

I. Creation.............................................261A. General Provisions .......................261B. Specific Requirements..................261C. Authority to Create Local GovernmentUnits262D. Creation and Conversion of LGUs263E. Plebiscite.......................................264F. Beginning of Corporate Existence 264

II. Division and Merger; Abolition ..........266A. Division and Merger......................266B. Abolition ........................................266

III. Settlement of Boundary Disputes .267A. Jurisdictional Responsibility forSettlement of Boundary Dispute............267B. Appeal...........................................267C. Maintenance of the Status Quo ....267

Chapter III. General Powers andAttributes of LGUs .......................................268I. Powers in General ...............................268

A. Sources of Powers of LGUs..............268B. Classification of Powers of LGUs......268C. Execution of Powers .........................268

II. Political and Corporate Nature of LGUs268

III. Governmental Powers ....................269A. General Welfare ................................269

1. Police Power .................................2692. Limitations.....................................2703. Abatement of Nuisance ................2714. Closure of Roads ..........................271

B. Power to Generate Revenue ............272C. Eminent Domain................................273D. Basic Services and Facilities ............275E. Reclassification of Lands ..................276F. Corporate Powers .............................277G. Local Legislative Power ....................278

Chapter IV. Local Initiative and Referendum.......................................................................283

A. Definition ...........................................283B. Requirements....................................283C. Procedure .........................................283D. Effectivity of Local Propositions ........283E. Limitations on Initiatives....................283F. Limitations Upon Local LegislativeBodies........................................................284

Chapter V. Municipal Liability.....................285A. Specific Provisions making LGUs Liable

285B. Liability for Torts, Violation of the Lawand Contracts ............................................285C. Personal Liability of Public Official ....286

Chapter VI. Intergovernmental Relations –National Government and LGUs.................287

I. Executive Supervision.......................287A. 1987 Constitution, Art. X, Sec. 2 and4 287B. Administrative Code of 1987, Title XIIChapter I................................................287

II. Consultations ....................................288LGC Sec. 2(c), 26, 27 ...........................288A. Declaration of Policy.....................288B. Maintenance of Ecological Balance

288C. Prior Consultation .........................288

III. Relations with Philippine NationalPolice 289

LGC, Sec. 28 ........................................289IV. Other Relations.............................290

A. Inter-local Relations......................290B. Relations with Non-Governmentalorganizations .........................................290

Chapter VII. Local Officials .........................291I. Elective Local Officials .......................291

A. Qualifications ....................................291B. Disqualifications ...............................292`C. Manner of Election ............................294D. Term of Office ...................................294E. Rules on Succession ........................296F. Recall ................................................299G. Discipline...........................................300

1. Administrative Action ....................3002. Penalties .......................................3023. Power of Tribunals........................303

II. Appointive Officials.............................304A. Appointments ....................................304B. Discipline...........................................306C. Removal ............................................306


D. Officials Common to All Municipalities,Cities and Provinces ..................................306

III. Provisions Applicable to Elective andAppointive Officials .....................................307

A. Prohibited Interests ...........................307LGC Sec. 89 ..............................................307B. Practice of Profession .......................307C. Prohibition against Appointment .......307

IV. Local Boards and Councils ................307A. Local School Board ...........................307B. Local Health Board............................307C. Local Development Council ..............307D. Local Peace and Order Council ........307

Chapter VIII. Local Government Units .......307A. The Barangay....................................307

1. Katarungang Pambarangay..........3072. Sangguniang Kabataan ................307

B. The Municipality ................................307C. The City.............................................307D. The Province .....................................307

Chapter IX. Miscellaneous and FinalProvisions.....................................................307

A. Posting and Publication of Ordinanceswith Penal Sanctions .................................307B. Penalties for Violation of TaxOrdinances.................................................307C. Provisions for Implementation...........307

Chapter X. Application of LGC toAutonomous Regions and Other Entities..307

I. The Autonomous Region in MuslimMindanao ...................................................307II. Cordillera Administrative Region.......307III. The Metropolitan Manila DevelopmentAuthority.....................................................307

POLITICAL LAW REVIEWER TABLE of CONTENTS

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CONSTITUTIONAL LAW 1Table of Contents

Chapter I. The State .................................................3I. Territory .......................................................3

A. 1987 Const., Art. I ...................................3B. Treaty of Paris, Art. III .............................3C. Archipelagic Doctrine ..............................4

II. People..........................................................4A. Definition .................................................4B. Citizenship ..............................................4

III. Sovereignty..................................................6A. Kinds.......................................................6B. Theory of Auto-Limitation ........................6C. “Dominium” v “Imperium” ........................6D. Jurisdiction ..............................................6E. Suits Against the State and the Doctrineof Sovereign Immunity......................................7

IV. Government .................................................8A. Definition .................................................8B. Functions ................................................8C. Doctrine of Parens Patriae ......................8D. De Jure and De Facto Governments.......9

Chapter II. Structure and Powers of Government –Separation of Powers ............................................10

I. Legislative Department ..............................10A. Nature and Classification of LegislativePower .............................................................10B. Composition, Qualifications and Term ofOffice10C. Election .................................................11D. Salaries, Privileges and Disqualifications

12E. Internal Government of Congress .........13F. Electoral Tribunals ................................14G. Commission on Appointments ..............15H. Powers of Congress..............................16

II. Judiciary.....................................................21A. In General .............................................21B. Supreme Court......................................23C. Judicial and Bar Council........................25

III. Executive ...................................................25A. The President........................................25B. Vice President.......................................41

IV. Constitutional Commissions.......................42A. Common Provisions..............................42B. Civil Service Commission......................42C. Commission on Elections......................43D. Commission on Audit ............................44

V. Constitutionally-Mandated Bodies .............44A. Sandiganbayan .....................................44B. Ombudsman .........................................44C. Commission on Human Rights..............45

Chapter III. National Economy and Patrimony.....46I. General Principles .....................................46

A. Goals.....................................................46B. Citizenship Requirements .....................46C. Filipino First...........................................46

II. Natural Resources .....................................46A. Regalian Doctrine [Jura Regalia] ..........46

B. Exploration, Development, and Utilization47

C. Stewardship Concept ............................48III. Private Lands.............................................48

A. General Rule .........................................48B. Exceptions.............................................48

IV. Monopolies.................................................48V. Central Monetary Authority ........................48

Chapter IV. Current Events and Special Topics ..49I. Party-List System.......................................49II. Question Hour v. Inquiries In Aid ofLegislation ...........................................................51III. Executive Privilege................................51IV. People’s Initiative .......................................52V. Right of Reply ............................................53VI. The (Erstwhile) Province of ShariffKabunsuan ..........................................................53VII. MOA on Ancestral Domain (MOA-AD) ..54


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Chapter I. The State

I. TERRITORYA. 1987 CONSTITUTION, ART. IB. TREATY OF PARISC. ARCHIPELAGIC DOCTRIN

II. PEOPLEA. DEFINITIONSB. CITIZENSHIP

III. SOVEREIGNTYA. KINDSB. THEORY OF AUTO-LIMITATIONC. DOMINIUM V. IMPERIUMD. JURISDICTIONE. SUITS AGAINST THE ST

DOCTRINE OF SOVEREIGIV. GOVERNMENT

A. DEFINITIONB. FUNCTIONSC. DOCTRINE OF PARENS PD. DE JURE AND DE FACTO

I. Territory

(Asked 7 times in the Bar)

A. 1987 Const., Art. I

SCOPE OF THE NATIONAL TERRITORY ASDEFINED IN THE CONSTITUTION1) Philippine archipelago2) All other territories over which the Philippines has

sovereignty or jurisdiction3) Territorial sea, Seabed, Subsoil, Insular shelves,

and other submarine areas corresponding to (1)and (2)

4) (1) and (2) also consist of terrestrial, fluvial, andaerial domains

B. Treaty of Paris, Art. III

“Spain cedes to the United States the archipelagoknown as the Philippines Islands, and comprehendingthe islands lying within the following line” xxx

*Image taken from:http://media.photobucket.com/image/philippine%20map%20image%20international%20law/jibrael_2007/Jibrael%202008/map1_rpterritory.jpg

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Chapter I. THE STATE

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IRT. I

ARCHIPELAGIC DOCTRINE

LIMITATION

SUITS AGAINST THE STATE AND THEDOCTRINE OF SOVEREIGN IMMUNITY

ATRIAEGOVERNMENTS

NATIONAL TERRITORY ASDEFINED IN THE CONSTITUTION

All other territories over which the Philippines has

Territorial sea, Seabed, Subsoil, Insular shelves,and other submarine areas corresponding to (1)

(1) and (2) also consist of terrestrial, fluvial, and

“Spain cedes to the United States the archipelagoknown as the Philippines Islands, and comprehendingthe islands lying within the following line” xxx

http://media.photobucket.com/image/philippine%20map%20image%20international%20law/jibrael_2007/Jibrael%202008/map1_rpterritory.j

POLITICAL LAW REVIEWER Chapter I. THE STATE

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C. Archipelagic Doctrine

Elements:1. Internal waters – “waters around, between and

connecting the islands of the archipelago”2. Straight baseline method – consists of drawing

straight lines connecting appropriate points onthe coast without departing to any appreciableextent from the general direction of the coast,in order to delineate the internal waters from theterritorial waters of an archipelago

Refer to PIL, Chap. 12, II for further discussionon Baselines

II. People

A. Definition

The term assumes three different meanings,depending on the context in which it is used:(NACHURA)

1. Inhabitants, as used in:

i. “The right of the people to be secure intheir persons, houses, papers, and effectsagainst unreasonable searches and seizuresof whatever nature and for any purpose shallbe inviolable x x x” (Sec 2, Art III)

The right of an individual to besecure in his person is guaranteedby the Constitution. The same isdeclared a popular right of thepeople and indisputably applies toboth citizens and foreigners in thiscountry. [Qua Chee Gan vsDeportation Board (1963)]

ii. “Civilian authority is, at all times, supremeover the military. The Armed Forces of thePhilippines is the protector of the peopleand the State. Its goal is to secure thesovereignty of the State and the integrity ofthe national territory. (Sec 3, Art II)

2. Electors, as used in:

i. “The President and the Vice-President shallbe elected by direct vote of the people”(Sec 4, Art VII)

3. Citizens, as used in:

i. “We, the sovereign Filipino people …”(Preamble)

ii. “The Philippines is a democratic andrepublican State. Sovereignty resides inthe people and all government authorityemanates from them.” (Sec 1, Art II)

iii. “The prime duty of the Government is toserve and protect the people. TheGovernment may call upon the people todefend the State and, in the fulfillmentthereof, all citizens may be required, underconditions provided by law, to renderpersonal military, or civil service.” (Sec 4, ArtII)

“The right of the people to information on matters ofpublic concern shall be recognized. Access to officialrecords, and to documents, and papers pertaining toofficial acts, transactions, or decisions, as well as togovernment research data used as basis for policydevelopment, shall be afforded the citizen, subject tosuch limitations as may be provided by law.” (Sec 7,Art III)

As an element of a state, “people” means acommunity of persons adequate in number for self-sufficiency and defense, and also capable ofmaintaining the continued existence of thecommunity and held together by a common bond oflaw. (BERNAS)

B. Citizenship


1. Who are citizens?

i. Citizens of the Philippines at the time of theadoption of this Constitution;

ii. Those whose fathers or mothers are citizensof the Philippines;

iii. Those who elected to be citizens. This isavailable only to:- those born before January 17, 1973,- to Filipino mothers,- and elect Philippine citizenship upon

reaching the age of majority

iv. Those naturalized in accordance with law.

ARTICLE IV, Section 1 (3), 1987 Constitution isalso applicable to those who are born to Filipinomothers and elected Philippine citizenship beforeFebruary 2, 1987.

This is to correct the anomalous situationwhere one born of a Filipino father and an alienmother was automatically granted the status of anatural-born citizen, while one born of a Filipinomother and an alien father would still have toelect Philippine citizenship. [Co v. ElectoralTribunal of the House of Representatives (1991)]

2. Natural-borni. citizens of the Philippines from birth without

having to perform any act to acquire orperfect their Philippine citizenship; and

ii. those who elect Philippine citizenship inaccordance with ARTICLE IV, Section 1 (3)

The term "natural-born citizens," isdefined to include "those who arecitizens of the Philippines from birthwithout having to perform any act toacquire or perfect their Philippinecitizenship." [Tecson vs COMELEC(2004)]

Only two, i.e., jus soli and jus sanguinis, couldqualify a person to being a "natural-born" citizenof the Philippines. Jus soli, per Roa vs. Collectorof Customs (1912), did not last long. With theadoption of the 1935 Constitution and the


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reversal of Roa in Tan Chong vs. Secretary ofLabor (1947), jus sanguinis or bloodrelationship would now become the primarybasis of citizenship by birth.

3. Who must be Natural-Born?

i. President (Sec. 2, Art VII)

ii. Vice-President (Sec. 3, Art VII)

iii. Members of Congress (Secs. 3 and 6, Art VI)

iv. Justices of SC and lower collegiate courts(Sec. 7 (1), Art VIII)

v. Ombudsman and his deputies (Sec. 8, ArtXI)

vi. Members of Constitutional Commissions

vii. CSC (Sec. 1 (1), Art IX B)

viii. COMELEC (Sec. 1 (1) Art IX C)

ix. COA (Sec. 1 (1), Art IX D)

x. Members of the Central Monetary Authority(Sec. 20, Art XII)

xi. Members of the Commission on HumanRights (Sec. 17 (2), Art XIII)

4. Grounds for Loss of Citizenship

i. Naturalization in a foreign country [Sec.1 (1),CA 63];

ii. Express renunciation or expatriation [Sec.1(2), CA 63];

iii. Taking an oath of allegiance to anothercountry upon reaching the age of majority;

iv. Accepting a commission and serving in thearmed forces of another country, unlessthere is an offensive/ defensive pact with thecountry, or it maintains armed forces in RPwith RP’s consent;

v. Denaturalization;

vi. Being found by final judgment to be adeserter of the AFP;

vii. Marriage by a Filipino woman to an alien, ifby the laws of her husband’s country, shebecomes a citizen thereof.

Expatriation is a constitutional right.No one can be compelled to remain aFilipino if he does not want to. [GoGullian vs Government]

EXCEPTION: A Filipino may not divesthimself of Philippine citizenship in anymanner while the Republic of the Philippinesis at war with any country. (Sec. 1 (3), Com.Act No. 63)

Aznar v COMELEC, (1995)Loss of Philippine citizenship cannot bepresumed. Considering the fact that admittedly,Osmeña was both a Filipino and an American,the mere fact that he has a certificate stating thathe is an American does not mean that he is notstill a Filipino, since there has been NOEXPRESS renunciation of his Philippinecitizenship. [Aznar vs COMELEC (1995)]

5. How may citizenship be reacquired?i. Naturalization (CA No. 63 and CA No. 473)

now an abbreviated process, no need towait for 3 years (1 year for declaration ofintent, and 2 years for the judgment tobecome executory)

requirements:a.) be 21 years of ageb.) be a resident for 6 monthsc.) have good moral characterd.) have no disqualification Naturalization is never final and

may be revoked if one commits actsof moral turpitude. [Republic vs Guy(1982)]

ii. Repatriation Repatriation results in the recovery of

the original nationality. Therefore, if he isa natural-born citizen before he lost hiscitizenship, he will be restored to hisformer status as a natural-born Filipino.[Bengson III vs. HRET (2001)]

Mere filing of certificate of candidacyis not a sufficient act of repatriation.Repatriation requires an express andequivocal act. [Frivaldo vs COMELEC(1989)]

In the absence of any official action orapproval by proper authorities, a mereapplication for repatriation does not,and cannot, amount to an automaticreacquisition of the applicant’sPhilippine citizenship. [Labo vsCOMELEC (1989)]

iii. Legislative Act both a mode of acquiring and

reacquiring citizenship

6. Dual Allegiance

i. aliens who are naturalized as Filipinos butremain loyal to their country of origin (citesource)

ii. public officers who, while serving thegovernment, seek citizenship in anothercountry (cite source)

disqualified from running for any electivelocal position. (Sec 40d, Local GovernmentCode)

Once a candidate files his candidacy, he isdeemed to have renounced his foreigncitizenship. [Mercado vs Manzano (1999)]

Clearly, in including §5 in Article IV oncitizenship, the concern of theConstitutional Commission was not withdual citizens per se but with naturalizedcitizens who maintain their allegiance totheir countries of origin even after theirnaturalization. Hence, the phrase “dual


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citizenship” in R.A. No. 7160, §40(d) andin R.A. No. 7854, §20 must be understoodas referring to “dual allegiance.”

Consequently, persons with mere dualcitizenship do not fall under thisdisqualification. Unlike those with dualallegiance, who must, therefore, be subjectto strict process with respect to thetermination of their status, for candidateswith dual citizenship, it should suffice if,upon the filing of their certificates ofcandidacy, they elect Philippinecitizenship to terminate their status aspersons with dual citizenship consideringthat their condition is the unavoidableconsequence of conflicting laws of differentstates.

Cf: RA 9225 (Citizenship Retention and Re-acquisitionAct of 2003)

Sec. 3. Retention of Philippine Citizenship. — Anyprovision of law to the contrary notwithstanding, natural-borncitizens of the Philippines who have lost their Philippinecitizenship by reason of their naturalization as citizens of aforeign country are hereby deemed to have re-acquiredPhilippine citizenship upon taking the following oath ofallegiance to the Republic: xxxNatural-born citizens of the Philippines who, after theeffectivity of this Act, become citizens of a foreign countryshall retain their Philippine citizenship upon taking theaforesaid oath.

Sec. 4. Derivative Citizenship. — The unmarried child,whether legitimate, illegitimate or adopted, below eighteen(18) years of age, of those who re-acquire Philippinecitizenship upon effectivity of this Act shall be deemedcitizens of the Philippines.

Sec. 5. Civil and Political Rights and Liabilities. — Thosewho retain or re-acquire Philippine citizenship under this Actshall enjoy full civil and political rights and be subject to allattendant liabilities and responsibilities under existing laws ofthe Philippines and the following conditions:(1) Those intending to exercise their right of suffrage must

meet the requirements under Sec. 1, Art. V of theConstitution, RA 9189, otherwise known as "TheOverseas Absentee Voting Act of 2003" and otherexisting laws;

(2) Those seeking elective public office in the Philippinesshall meet the qualifications for holding such publicoffice as required by the Constitution and existing lawsand, at the time of the filing of the certificate ofcandidacy, make a personal and sworn renunciation ofany and all foreign citizenship before any public officerauthorized to administer an oath;

(3) Those appointed to any public office shall subscribeand swear to an oath of allegiance to the Republic ofthe Philippines and its duly constituted authorities priorto their assumption of office: provided, that theyrenounce their oath of allegiance to the country wherethey took that oath;

(4) Those intending to practice their profession in thePhilippines shall apply with the proper authority for alicense or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to anypublic office in the Philippines cannot be exercised by,or extended to, those who:(a) are candidates for or are occupying any public

office in the country of which they are naturalized

citizens; and/or(b) are in active service as commissioned or non-

commissioned officers in the armed forces of thecountry which they are naturalized citizens.

III. Sovereignty


Supreme and uncontrollable power inherent in aState by which the State is governed.

A. Kinds

1. Legal sovereignty - power to issue finalcommands.

2. Political sovereignty - power behind the legalsovereign, or the sum total of the influences thatoperate upon it.

3. Internal sovereignty - power to control domesticaffairs.

4. External sovereignty (also known asindependence) - power to direct relations withother states.

B. Theory of Auto-Limitation

It is the property of the State-force due to which aState has exclusive legal competence of self-limitation and self-restriction.

Sovereignty is subject to restrictions andlimitations voluntarily agreed to by thePhilippines, expressly or impliedly, as a memberof the family of nations. [Tañada vs Angara(1997)]

C. “Dominium” v “Imperium”

[Lee Hong Hok v. David, (1972)]

“Dominium” – capacity of the State to own property. covers such rights as title to land,

exploitation and use of it, and disposition orsale of the same.

Regalian doctrine all lands of the public domain belong to

the State, and anyone claiming title hasthe burden to show ownership, comeswithin this concept. In this capacity, theState descends to the status of ordinarypersons and thus becomes liable assuch. [Cruz v. Sec of DENR, (2000)]

“Imperium” State’s authority to govern. covers such activities as passing laws

governing a territory, maintaining peace andorder over it, and defending it against foreigninvasion.

When the State acts in this capacity, itgenerally enjoys sovereign immunity.


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D. Jurisdiction

Jurisdiction is the manifestation of sovereignty.The jurisdiction of the state is understood as bothits authority and the sphere of the exercise of thatauthority. (SINCO)

1. KINDS:

i. Territorial jurisdiction authority of the State to have all persons

and things within its territorial limits to becompletely subject to its control andprotection.

ii. Personal jurisdiction authority of the State over its nationals,

their persons, property, and acts,whether within or outside its territory.(Art 15, CC: Laws relating to familyrights and duties, or to the status,condition and legal capacity of personsare binding upon citizens of thePhilippines, even though living abroad.)

iii. Extraterritorial jurisdiction authority of the State over persons,

things, or acts, outside its territorial limitsby reason of their effects to its territory

E. Suits Against the State and the Doctrine ofSovereign Immunity

(Asked two times in the Bar)

The State may not be sued without its consent.(Sec 3, Art XVI)

There can be no legal right as against theauthority that makes the laws on which the rightdepends. also called the doctrine of RoyalPrerogative of Dishonesty. [Kawananakoa v.Polyblank (1907)]

If the State is amenable to suits, all its time wouldbe spent defending itself from suits and thiswould prevent it from performing it otherfunctions. [Republic vs. Villasor (1973)]

1. A suit is against the State regardless of who isnamed the defendant if:

i. it produces adverse consequences to thepublic treasury in terms of disbursement ofpublic funds and loss of governmentproperty.

ii. cannot prosper unless the State has given itsconsent.

2. In the following instances, it was held that the suitis not against the State:

i. when the purpose of the suit is to compel anofficer charged with the duty of makingpayments pursuant to an appropriationmade by law in favor of the plaintiff to makesuch payment, since the suit is intended tocompel performance of a ministerial duty.[Begoso v. PVA (1970)]

ii. when from the allegations in the complaint, it

is clear that the respondent is a publicofficer sued in a private capacity;

iii. when the action is not in personam with thegovernment as the named defendant, but anaction in rem that does not name thegovernment in particular.

3. How the State’s consent to be sued is given:i. Express consent

a. It is effected only by the will of thelegislature through the medium of a dulyenacted statute.

b. may be embodied either in a:General Law authorizes any person who meets

the conditions stated in the law tosue the government in accordancewith the procedure in the law

Special Law may come in the form of a private

bill authorizing a named individualto bring suit on a special claim

Art 2189, CC: Provinces, cities andmunicipalities shall be liable fordamages for the death or injuriessuffered by any person by reason ofthe defective conditions of roads,streets, public buildings and otherpublic works under their control andsupervision.

ii. Implied consent when the State enters into a business

contract or itself commences litigation. State may only be liable for

proprietary acts (jure gestionis) andnot for sovereign acts (jure imperii)

When state files complaint, suabilitywill result only where thegovernment is claiming affirmativerelief from the defendant. [US v.Guinto, (1990)]

When it would be inequitable for theState to invoke its immunity.

In instances when the State takesprivate property for public use orpurpose.

iii. When does Liability Attach?a. The Government is only liable for the

acts of its agents, officers andemployees, when they act as specialagents within the meaning of Art. 2180(6) CC.

Special Agent one who receives a definite and fixed

order or commission, foreign to theexercise of the duties of his office if he isa special official. [Merritt v. Govt of thePhilippine Islands, (1916)] This concept does not apply to any

executive agent who is anemployee of the activeadministration and who on his ownresponsibility performs the functions


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which are inherent in and naturallypertain to his office and which areregulated by law and theregulations.

Unauthorized acts of governmentofficials or officers are not actsof the State, and an action againstthe officials or officers by onewhose rights have been invaded orviolated by such acts, for theprotection of his rights, is not a suitagainst the State.

The doctrine of immunity from suitwill not apply and may not beinvoked where the public official isbeing sued in his private andpersonal capacity as an ordinarycitizen, for acts without authority orin excess of the powers vested inhim. [Lansang vs CA (2000)]

b. When the Government creates acorporation, it invariably provides thiscorporation a separate entity and withthe capacity to sue and be sued. Consent to be sued includes

actions based on quasi-delict eventhough committed by regular, andnot special, agents.

Rule: a government entity can besued for tort, but if it is, it can invokethe defense that it acted through itsregular employee, and not througha special agent.

c. The principle of State immunity from suitdoes not apply when the reliefdemanded requires no affirmativeofficial action on the part of the Stateor the affirmative discharge of anyobligation which belongs to the State inits political capacity, even though theofficers or agents who are madedefendants claim to hold or act only byvirtue of a title of the State and as itsagents and servants. [Republic vSandoval, (1993)]

IV. Government

(Asked two times in the Bar)

A. Definition

Sec. 2(1) Administrative Code. “Government of theRepublic of the Philippines” is defined as:the corporate governmental entity through which thefunctions of government are exercised throughout thePhilippines, including the various arms through which political authority is

made effective in the Philippines, whether pertaining to:1. the autonomous regions,2. the provincial, city, municipal, or barangay

subdivisions, or3. other forms of local government.

“Government” is that institution or aggregate ofinstitutions by which an independent societymakes and carries out those rules of action whichare necessary to enable men to live in a socialstate or which are imposed upon the peopleforming that society by those who possess thepower or authority of prescribing them.[US vsDorr (1903)]

B. Functions

1. Constituent functions - constitute the very bondsof society; compulsory.

i. keeping of order and providing protection

ii. fixing of legal relations between man andwife, and children

iii. regulation of the holding, transmission andinterchange of property

iv. define crime and punishment

v. regulates and determines contract betweenindividuals

vi. dealings of state with foreign powers

2. Ministrant functions - undertaken to advance thegeneral interests of society; optional.

i. public works

ii. public education

iii. public charity

iv. health and safety regulations

v. trade and industry

The distinction between constituent andministrant functions is not relevant in ourjurisdiction. [ACCFA v. Federation of LaborUnions, (1969)]

C. Doctrine of Parens Patriae

Parens patriae is the task of the government toact as guardian of the rights of the people.

This prerogative of parens patriae is inherent inthe supreme power of every state, whether thatpower is lodged in a royal person or in thelegislature

The Monte de Piedad y Caja de Ahorros deManila is an institution organized in accordancewith the canon law, having been created by theroyal order of the King of Spain of July 8, 1880,made under the royal patronate powers then


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existing in the Crown of Spain. The royal orderreferred to created, according to the purposeexpressed therein, an institution for the safeinvestment of the savings of the poor classes andto assist the needy in time of need by loaningsuch savings to them at a low rate of interest.[Government of the Philippine Islands v. Montede Piedad, (1916)]

D. De Jure and De Facto Governments

1. De jure government

i. has rightful title

ii. no power or control, either because this hasbeen withdrawn from it, or because it has notyet actually entered into the exercise thereof.[In re Letter of Associate Justice Puno,(1992)]

2. De facto government

i. government of fact, that is, it actuallyexercises power or control without legal title.[Co Kim Cham v. Valdes, (1945)]

The legitimacy of the Aquino government isnot a justiciable matter. It belongs to therealm of politics where only the people of thePhilippines are the judge. And the peoplehave made the judgment; they haveaccepted the government of PresidentCorazon C. Aquino which is in effectivecontrol of the entire country so that it is notmerely a de facto government but in factand law a de jure government. Moreover,the community of nations has recognized thelegitimacy of the present government. All theeleven members of this Court, asreorganized, have sworn to uphold thefundamental law of the Republic under hergovernment. [In re Bermudez, (1986) citingLawyers League for a Better Philippines v.Aquino, (1986)]

In the cited cases [Lawyers League for aBetter Philippines and/or Oliver A. Lozano v.President Corazon C. Aquino, et al], we heldthat the government of former PresidentAquino was the result of a successfulrevolution by the sovereign people, albeit apeaceful one. No less than the FreedomConstitution declared that the Aquinogovernment was installed through a directexercise of the power of the Filipino people"in defiance of the provisions of the 1973Constitution, as amended."

It is familiar learning that the legitimacy of agovernment sired by a successful revolutionby people power is beyond judicial scrutinyfor that government automatically orbits out of theconstitutional loop. In checkered contrast, thegovernment of respondent Arroyo is notrevolutionary in character. The oath that shetook at the EDSA Shrine is the oath under the1987 Constitution. In her oath, shecategorically swore to preserve and defend

the 1987 Constitution. Indeed, she has stressedthat she is discharging the powers of thepresidency under the authority of the 1987Constitution.

In fine, the legal distinction between EDSAPeople Power I EDSA People Power II is clear.EDSA I involves the exercise of the people powerof revolution which overthrew the wholegovernment. EDSA II is an exercise of peoplepower of freedom of speech and freedom ofassembly to petition the government for redressof grievances which only affected the office of thePresident. EDSA I is extra-constitutional andthe legitimacy of the new government thatresulted from it cannot be the subject ofjudicial review, but EDSA II is intra-constitutional and the resignation of thesitting President that it caused and thesuccession of the Vice President as Presidentare subject to judicial review. EDSA Ipresented a political question; EDSA II involveslegal questions. xxx

Even if the petitioner can prove that he did notresign, still, he cannot successfully claim that heis a President on leave on the ground that he ismerely unable to govern temporarily. That claimhas been laid to rest by Congress and thedecision that respondent Arroyo is the dejure, president made by a co-equal branch ofgovernment cannot be reviewed by this Court.[Estrada v Desierto/ Estrada v GMA, (2001)]

POLITICAL LAW REVIEWER Chapter II. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers

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Chapter II. Structure and Powers ofGovernment – Separation of Powers

I. LEGISLATIVE DEPARTMENTA. NATURE AND CLASSIFICATION OF

LEGISLATIVE POWERB. COMPOSITION, QUALIFICATIONS AND TERM

OF OFFICEC. ELECTIOND. SALARIES, PRIVILEGES AND

DISQUALIFICATIONSE. INTERNAL GOVERNMENT OF CONGRESSF. ELECTORAL TRIBUNALSG. COMMISSION ON APPOINTMENTSH. POWERS OF CONGRESS

II. JUDICIAL DEPARTMENTA. IN GENERALB. SUPREME COURTC. JUDICIAL AND BAR COUNCIL

III. EXECUTIVE DEPARTMENTA. PRESIDENTB. VICE-PRESIDENT

IV. CONSTITUTIONAL COMMISSIONSA. COMMON PROVISIONSB. CIVIL SERVICE COMMISSIONC. COMMISSION ON ELECTIONSD. COMMISSION ON AUDIT

V. CONSTITUTIONALLY-MANDATED BODIESA. SANDIGANBAYANB. OMBUDSMANC. COMMISSION ON HUMAN RIGHTS

I. Legislative Department


A. Nature and Classification of LegislativePower

1. Nature: The authority to make laws and to alter or

repeal them. Vested in Congress, except to the extent

reserved to the people by provision oninitiative and referendum

Plenary (Congress may legislate on anysubject matter provided that the limitationsare observed.)

2. Classification of Legislative Power: Original - possessed by the sovereign

people Derivative - delegated by the sovereign

people to legislative bodies and issubordinate to the original power of thepeople

Constituent - power to amend and revisethe Constitution

Ordinary - power to pass ordinary laws

B. Composition, Qualifications and Term of Office

Senate(Art. VI secs. 2-4)

House of Representatives(Art. VI secs. 5-8)

Composition 24 senators elected at large Not more than 250 members, unless otherwiseprovided by law, consisting of:1. District Representatives2. Party-List Representatives3. Sectoral Representatives

Qualifications Natural-born citizen At least 35 years old on the day of the

election Able to read and write A registered voter Resident of the Philippines for at least 2

years immediately preceding the day of theelection

Natural-born citizens At least 25 years old on the day of the election Able to read and write Registered voter in the district he seeks to

represent A resident of the said district for at least 1 year

immediately preceding the day of the election

Term ofOffice

6 years 3 years

Term Limits 2 consecutive terms. 3 consecutive terms.

1. Senate(Art. VI Secs. 2-4)

Composition: 24 senators elected at large

Qualifications:1. Natural-born citizen2. At least 35 years old on the day of the

election3. Able to read and write4. A registered voter5. Resident of the Philippines for at least 2

years immediately preceding the day of theelection

Term of Office: 6 years, commencing at noon

on the 30th

day of June next following theirelection

Term Limits: only up to 2 consecutive terms.However, they may serve for more than 2 termsprovided that the terms are not consecutive.

2. House of Representatives(Art. VI Secs. 5-8)

Composition: Not more than 250 members,unless otherwise provided by law, consisting of:

i. District Representatives elected from legislative districts

apportioned among the provinces, cities,


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and the Metro Manila area. Rules on Apportionment of Legislative

Districts:1. Proportional representation based

on number of inhabitantsa. Each city with a population of

at least 250,000, or eachprovince, shall have at least 1representative. Each province,irrespective of the number ofinhabitants, shall have at least1 representative.

b. Each legislative district shallcomprise, as far as practicable,contiguous, compact, andadjacent territory.

2. Re-apportionment by Congresswithin 3 years after the return ofeach census

ii. Party-List Representatives 20% of the total number of

representatives chosen indirectly through a party

selected by voters RA 7941 (An Act Providing For The

Election Of Party-List RepresentativesThrough The Party-List System, AndAppropriating Funds Therefor)o Parties, organizations, and

coalitions must obtain at least 2% ofall votes cast to obtain a party-listseat

o Those garnering more than 2% areentitled to additional seats inproportion to their total number ofvotes, but may not have more than3 seats

o Disqualified:1. Religious Sects2. Foreign Organizations3. Those Advocating Violence or

Unlawful Meanso Qualified Sectors:

1. Labor2. Peasant3. Fisherfolk4. Urban Poor5. Indigenous Cultural

Communities6. Elderly7. Handicapped8. Women9. Youth10. Veterans11. Overseas Workers12. Professionals

iii. Sectoral Representatives For 3 consecutive terms from 2

February 1987, 25 seats shall beallotted to sectoral representatives.

to be chosen by appointment orelection, as may be provided by law

Until a law is passed, they areappointed by the President from a list

of nominees by the respectivesectors. (Art. XVIII, sec. 7)

Sec. 41, RA 7160 (An Act Providing for a Local GovernmentCode of 1991): Manner of Election.

(c) In addition thereto, there shall be one (1) sectoralrepresentative from the women, one (1) from the workers,and one (1) from any of the following sectors: the urbanpoor, indigenous cultural communities, disabled persons, orany other sector as may be determined by the sanggunianconcerned within ninety (90) days prior to the holding of thenext local elections, as may be provided for by law. TheComelec shall promulgate the rules and regulations toeffectively provide for the election of such sectoralrepresentatives.

Qualifications of Representatives:1. Natural-born citizens2. At least 25 years old on the day of

the election3. Able to read and write4. Registered voter in the district he

seeks to represent5. A resident of the said district for at

least 1 year immediately precedingthe day of the election.

Term of Office: 3 years, commencingat noon on the 30

thday of June next

following their election.

In B.P. Blg. 881 members of the legislatureincluded in the enumeration of elective publicofficials are to be considered resigned fromoffice from the moment of the filing of theircertificates of candidacy for another office,except for President and Vice-President. Theterm of office prescribed by the Constitutionmay not be extended or shortened by thelegislature, but the period during which anofficer actually holds the office (tenure) maybe affected by circumstances within orbeyond the power of said officer.

Tenure may be shorter than the term orit may not exist at all. These situations willnot change the duration of the term of office.[Dimaporo vs Mitra (1991)]

Term Limits: No member of the Houseof Representatives shall serve for more than3 consecutive terms.

3. Synchronized Terms of Office(Secs 1-2, Art XVIII)

C. Election

1. Regular Elections Unless otherwise provided by law, the

regular election of the Senators and theMembers of the House of Representativesshall be held on the second Monday of May.(Sec 8, Art VI)

2. Special Election In case of vacancy in the Senate or in the

House of Representatives, a special election


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may be called to fill such vacancy in themanner prescribed by law,

But the Senator or Member of the House ofRepresentatives thus elected shall serveonly for the unexpired term. (Sec 9, Art VI)

The Constitution mandates that there shouldalways be adequate representation for everyprovince or legislative district. If a vacancyoccurs in a manner contemplated in theConstitution, then Congress has the authority ifnot the duty to call for special elections.[Lozada v. COMELEC, (1983)]

D. Salaries, Privileges and Disqualifications

1. Salaries The salaries of Senators and Members of

the House of Representatives shall bedetermined by law.

No increase in said compensation shall takeeffect until after the expiration of the full termof all the Members of the Senate and theHouse of Representatives approving suchincrease. [Ligot v. Mathay, (1974)]

Official Annual SalaryPresident Php 300,000Vice-President, President ofthe Senate, Speaker of theHouse of Representatives,and Chief Justice of theSupreme Court

Php 240,000

Senators, Members of theHouse of Representatives,Associate Justices of theSupreme Court, andChairmen of theConstitutional Commissions

Php 204,000

Members of theConstitutional Commissions

Php 180,000

2. Freedom from arrest(Art VI Sec 11, 1987 Constitution) A Senator or Member of the House of

Representatives shall, in all offensespunishable by not more than six yearsimprisonment, be privileged from arrest whilethe Congress is in session.

No Member shall be questioned nor be heldliable in any other place for any speech ordebate in the Congress or in any committeethereof.

3. Speech and Debate Clause In this case, a clarification of the scope and

limitation of the parliamentary immunity wasmade. There was reiteration that,

First, Congressional immunity is a guaranteeof immunity from answerability before an outsideforum but not from answerability to thedisciplinary authority of congress itself;

Second, to come under the guarantee thespeech or debate" must be one made "inCongress or in any committee thereof." [Jimenezv. Cabangbang, (1966)]

Each House of the Congress can discipline itsmembers for disorderly conduct or behavior.

What constitutes disorderly behavior isentirely up to Congress to define.

Although a member of Congress shall not beheld liable in any other place for any speech ordebate in the Congress or in any committeethereof, such immunity, although absolute in itsprotection of the member of Congress againstsuits for libel, does not shield the memberagainst the disciplinary authority of theCongress. [Osmena v. Pendatun, (1960)]

4. Disqualifications May not hold any other office or employment

in the government during his term withoutforfeiting his seat. (Art VI Sec 13)

May not be appointed to any office createdor the emoluments thereof were increasedduring the term for which he was elected.(Art VI Sec 13)

Cannot personally appear as counsel beforeany court, electoral tribunal, quasi-judicialand administrative bodies during his term ofoffice. (Art VI Sec 14)

Shall not be financially interested, directly orindirectly, in any contract with, or franchiseor special privilege granted by thegovernment during his term of office. (Art VISec 14)

Shall not intervene in any matter before anyoffice of the government when it is for hispecuniary benefit or where he may be calledupon to act on account of his office. (Art VISec 14)

Certain salient circumstances militate against theintervention of Assemblyman Fernandez in theSEC Case.

He had acquired a mere P200.00 worth ofstock in IPI, representing ten shares out of262,843 outstanding shares.

He acquired them after the contestedelection of Directors, after the quo warranto suithad been filed before SEC, and one day beforethe scheduled hearing of the case before theSEC.

Before he moved to intervene, he hadsignified his intention to appear as counsel forrespondent, but which was objected to bypetitioners. Realizing, perhaps, the validity of theobjection, he decided, instead, to "intervene" onthe ground of legal interest in the matter underlitigation.

Under those facts and circumstances thatthere has been an indirect "appearance ascounsel before ... an administrative body" andthat is a circumvention of the Constitutionalprohibition.

The "intervention" was an afterthought toenable him to appear actively in the proceedingsin some other capacity. [Puyat v De Guzman,(1982)]


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5. Duty to Disclose A public officer or employee shall, upon

assumption of office and as often as may berequired by law, submit a declarationunder oath of his assets, liabilities, andnet worth.

Cases wherein declaration shall be disclosedto the public in the manner provided by law:o Presidento Vice-Presidento the Members of the Cabineto the Congresso the Supreme Courto the Constitutional Commissions and

other constitutional officeso officers of the armed forces with

general or flag rank (Art XI Sec 17) All Members of the Senate and the House of

Representatives shall, upon assumption ofoffice, make a full disclosure of their financialand business interests.o They shall notify the House concerned

of a potential conflict of interest that mayarise from the filing of a proposedlegislation of which they are authors.(Art VI Sec 12)

The records and books of accounts of theCongress shall be preserved and be open tothe public in accordance with law,o such books shall be audited by the

Commission on Audit which shallpublish annually an itemized list ofamounts paid to and expenses incurredfor each Member. (Art VI Sec 20)

E. Internal Government of Congress

1. Election of officers

Officers:1. Senate President2. Speaker of the House3. Such officers as deemed by each house to be

necessary

Election of Officers: By a majority vote of allrespective members

2. Quorum

Majority of each House shall constitute aquorum.

A smaller number may adjourn from day to dayand may compel the attendance of absentmembers.

In computing a quorum, members who areoutside the country, thus outside of each House’scoercive jurisdiction, are not included.

“Majority” refers to the number of memberswithin the “jurisdiction” of the Congress (thoseit can order arrested for the purpose ofquestioning). In this case, one Senator was out ofthe Philippines which is not within the“jurisdiction” of the Senate, so that the workingmajority was 23 Senators.There is a difference between a majority of "all

members of the House" and a majority of "theHouse", the latter requiring less number than thefirst. Therefore, an absolute majority (12) of allmembers of the Senate less one (23) constitutesconstitutional majority of the Senate for thepurpose of the quorum. [Avelino v. Cuenco,(1949)]

3. Rules of Proceedings

Each House shall determine its own proceduralrules.

Issues may either be:o Political- On matters affecting only internal

operation of the legislature, the legislature’sformulation and implementation of its rules.

o Justiciable - when the legislative rule affectsprivate rights.

4. Discipline of Members

Each house may punish its members fordisorderly behavior, and with the concurrence of2/3 of ALL its members:1. Suspension (shall not exceed 60 days)2. Expulsion

Other disciplinary measures:1. deletion of unparliamentary remarks from the

record2. fine3. imprisonment4. censure

Senate expelled Senator Alejandrino fordisorderly conduct for assaulting Senator de Veraduring one of their debates in session. Senateadopted a resolution depriving SenatorAlejandrino of all the prerogatives, privilegesand emoluments of his office for the period ofone year.The Court held that the resolution was illegalsince it amounted to expulsion and it woulddeprive the electoral district of representationwithout any means to fill the vacancy. TheSenate had no authority to suspend an appointedSenator like Senator Alejandrino. [Alejandrino v.Quezon, (1924)]

5. Journal and Congressional Records

a. The Enrolled Bill Theory An enrolled bill is the official copy of

approved legislation and bears thecertifications of the presiding officers of eachHouse.

where the certifications are valid and are notwithdrawn, the contents of the enrolled billare conclusive upon the courts.

RATIONALE OF ENROLLED BILLTHEORY- An enrolled Act in the custody ofthe Secretary of State, and having the officialattestations of the Speaker of the House ofRepresentatives, of the President of theSenate, and of the President of the UnitedStates, carries, on its face, a solemnassurance by the legislative and executive


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departments of the government, charged,respectively, with the duty of enacting andexecuting the laws, that it was passed byCongress. The respect due to coequal andindependent departments requires thejudicial department to act upon thatassurance, and to accept, as having passedCongress, all bills authenticated in themanner stated; leaving the courts todetermine, when the question properlyarises, whether the Act, so authenticated, isin conformity with the Constitution [Astorgavs Villegas, (1974) citing Field vs. Clark].

Respect due to a co-equal departmentrequires the courts to accept the certificationof the presiding officer of the legislativebody. [Casco vs Gimenez (1963)]

A duly authenticated bill or resolution importsabsolute verity and is binding on thecourts.[Mabanag v. Lopez Vito, (1947)]

b. Probative value of the Journal The Journal is conclusive upon the courts. But when the contents of the journal conflicts

with that of an enrolled bill, the enrolled billprevails over the contents of the journal.

Congress may validly continue enactingbills even beyond the reglementaryperiod of adjournment. When thejournal shows that Congress conducteda sine die session where the hands ofthe clock are stayed in order to affordCongress the opportunity to continue itssession. All bills enacted during thesine die session are valid andconclusive upon the Courts.

The Journals are conclusiveevidence of the contents thereof andCourts are bound to take judicialnotice of them. [US vs Pons (1916)]

c. Matters required to be entered in the Journal Yeas and Nays on third and final reading of

a bill Veto message of the President Yeas and Nays on the repassing of a bill

vetoed by the President Yeas and Nays on any question at the

request of 1/5 of members present.

d. Journal Entry Rule v. Enrolled Bill Theory

It may be noted that the enrolled bill theory isbased mainly on "the respect due to coequaland independent departments," whichrequires the judicial department "to accept,as having passed Congress, all billsauthenticated in the manner stated." Thus ithas also been stated in other cases that ifthe attestation is absent and the same is notrequired for the validity of a statute, thecourts may resort to the journals and other

records of Congress for proof of its dueenactment. [Astorga v. Villegas, (1974)]

e. Congressional Record

6. Sessions

a. Regular Sessions Convenes once every year on the 4

th

Monday of July. Continues to be in session until 30 days

before the start of its next regular session,exclusive of Saturdays, Sundays, and legalholidays.

b. Special Sessions Called by the President at any time when

Congress is not in session

c. Adjournments Neither House can adjourn for more than 3

days during the time Congress is in sessionwithout the consent of the other House.

Neither can they adjourn to any other placethan that where the two houses are sitting,without the consent of the other.

d. Joint Sessions Voting separately

Choosing the President (Sec. 4, Art VII) Determining the President’s temporary

disability (Id., Sec. 11, Par 4) Confirming the nomination of a Vice-

President (Id., Sec. 9) Declaring a state of war (Sec. 23(1), Art

VI) Amending the Constitution (Sec. 1(1),

Art XVII) Voting Jointly

To revoke or extend martial law orsuspension of privilege of habeascorpus (Sec. 18 Art VII)

F. Electoral Tribunals

1. Composition

3 Supreme Court Justices to be designated bythe Chief Justice (The senior Justice in theElectoral Tribunal shall be its Chairman).

6 Members of the Senate or House, as the casemay be, chosen on the basis of proportionalrepresentation from the political parties andparty-list organizations.

The ET shall be constituted within 30 days afterthe Senate and the House shall have beenorganized with the election of the President andthe Speaker.

Members chosen enjoy security of tenure andcannot be removed by mere change of partyaffiliation.

The five LDP members who are also membersof the Senate Electoral Tribunal may not inhibitthemselves since it is clear that the Constitutionintended legislative and judiciary membership tothe tribunal. As a matter of fact, the 2:1 ratio of


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legislative to judiciary indicates thatlegislative membership cannot be ignored.To exclude themselves is to abandon a dutythat no other court can perform. [Abbas vsSET (1988)]

2. Nature of Function

Jurisdiction: be the sole judge of all CONTESTSrelating to the election, returns, and qualificationsof their respective members. ET has jurisdictiononly when there is an election contest.

Election Contest - one where a defeatedcandidate challenges the qualification and claimsfor himself the seat of a proclaimed winner.

The Electoral Tribunal of each House is theSOLE judge of all contests relating to theelection, returns, and qualifications of themembers of Congress.

In the absence of election contest, theElectoral Tribunal has no jurisdiction.

The Electoral Tribunals are independentconstitutional bodies and cannot be regulated byCongress.

Supreme Court has jurisdiction over theElectoral Commission and the subject matter ofthe present controversy for the purpose ofdetermining the character, scope and extentof the constitutional grant to the ElectoralCommission as "the sole judge of all contestsrelating to the election, returns and qualificationsof the members of the National Assembly."[Angara vs Electoral Commission (1936)]

3. Independence of the Electoral Tribunals

Since the ET’s are independent constitutionalbodies, independent even of the respectiveHouse, neither Congress nor the Courts mayinterfere with procedural matters relating to thefunctions of the ET’s. [Co vs HRET, (1991)]

The HRET was created to function as anonpartisan court although two-thirds of itsmembers are politicians. It is a non-political bodyin a sea of politicians.

To be able to exercise exclusive jurisdiction,the House Electoral Tribunal must beindependent. Its jurisdiction to hear and decidecongressional election contests is not to beshared by it with the Legislature nor with theCourts. "The Electoral Commission is a bodyseparate from and independent of the legislatureand though not a power in the tripartite schemeof government, it is to all intents and purposes,when acting within the limits of its authority, anindependent organ; while composed of amajority of members of the legislature it is abody separate from and independent of thelegislature. [Bondoc v. Pineda, (1991)]

Valid grounds / Just cause for termination ofmembership to the tribunal.o Expiration of Congressional term of office;o Death or permanent disability;o Resignation form political party which one

represents in the tribunal;o Removal from office for other valid reasons.

4. Powers

Lazatin v. HRET, (1988)The HRET will only gain jurisdiction upon

proclamation of the candidate. Until suchproclamation, he is not yet a member of theHouse; hence, the HRET will not have jurisdictionover him. Jurisdiction over such remains withthe COMELEC.

As constitutional creations invested withnecessary power, the Electoral Tribunals are, inthe exercise of their functions independentorgans — independent of Congress and theSupreme Court. The power granted to HRET bythe Constitution is intended to be as completeand unimpaired as if it had remained originally inthe legislature [ Co vs HRET (1991) citing Angaravs. Electoral Commission [1936]).

5. Judicial Review of Decisions of ElectoralTribunals

With the SC only insofar as the decision orresolution was renderedo without or in excess of jurisdiction, oro with grave abuse of discretion tantamount to

denial of due process.

To question the jurisdiction of the lower court orthe agency exercising judicial or quasi-judicialfunctions, the remedy is a special civil actionfor certiorari under Rule 65 of the Rules ofCourt. The petitioner in such cases must clearlyshow that the public respondent acted withoutjurisdiction or with grave abuse of discretionamounting to lack or excess of jurisdiction. Graveabuse of discretion defies exact definition, butgenerally refers to "capricious or whimsicalexercise of judgment as is equivalent to lack ofjurisdiction. The abuse of discretion must bepatent and gross as to amount to an evasion ofpositive duty or a virtual refusal to perform a dutyenjoined by law, or to act at all in contemplationof law, as where the power is exercised in anarbitrary and despotic manner by reason ofpassion and hostility. [Garcia vs HRET (1999)]

G. Commission on Appointments

(Sec, Art VII)

1. Composition:

a. Senate President as ex-officio chairman (shallnot vote except in case of a tie.)

b. 12 Senatorsc. 12 Members of the House

The 12 Senators and 12 Representatives are electedon the basis of proportional representation fromthe political parties and party-list organizations.


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The authority of the House of Representatives tochange its representation in the Commission onAppointments to reflect at any time the changesthat may transpire in the political alignments of itsmembership. It is understood that such changesin membership must be permanent and do notinclude the temporary alliances or factionaldivisions not involving severance of politicalloyalties or formal disaffiliation and permanentshifts of allegiance from one political party toanother. [Daza vs SIngson (1989)

The provision of Section 18 on proportionalrepresentation is mandatory in character anddoes not leave any discretion to the majorityparty in the Senate to disobey or disregard therule on proportional representation RATIONALE:The party with a majority representation in theSenate or the house of Representatives can bysheer force of numbers impose its will on thehapless minority.

By requiring a proportional representation inthe Commission on Appointments, Section 18 ineffect works as a check on the majority party inthe Senate and helps to maintain the balance ofpower. No party can claim more than what it isentitled to under such rule. [Guingona, Jr. vsGonzales, (1993)]

The Commission on Appointments shall beconstituted within 30 days after the Senate andthe House of Representative shall have beenorganized with the election of the President andthe Speaker.

The Commission on Appointments shall act on allappointments within 30 session days from theirsubmission to Congress.

The Commission on Appointments shall rule by amajority vote of all its members.

2. Meetings

Commission on Appointments shall meet onlywhile Congress is in session.

Meetings are held either at the call of theChairman or by a majority of all its members.

Since the Commission on Appointments is alsoan independent constitutional body, its rules ofprocedure are also outside the scope ofcongressional powers as well as that of thejudiciary.

3. Jurisdiction

a. Commission on Appointments shall confirm theappointments by the President with respect to thefollowing positions: Heads of the Executive Departments (except

if it is the Vice-President who is appointed tothe post);

Ambassadors, other public ministers orconsuls;

Officers of the AFP from the rank of Colonelor Naval Captain;

Other officers whose appointments arevested in him by the Constitution (e.g.

COMELEC members);

b. Congress cannot by law require that theappointment of a person to an office created bysuch law shall be subject to confirmation by theCommission on Appointments.

c. Appointments extended by the President to theabove-mentioned positions while Congress isnot in session shall only be effective untildisapproval by the Commission onAppointments or until the next adjournmentof Congress.

H. Powers of Congress

1. General(Sec Art VI)

a. Legislative Powers: (Scope: vested inCongress by the Constitution except to theextent reserved to the people by theprovision on initiative and referendum). powers of appropriation, taxation and

expropriation authority to make, frame and enact laws

b. Non-legislative Powers (Scope) power to canvass the presidential

elections; declare the existence of war; give concurrence to treaties and

amnesties; propose constitutional amendments; impeach; derivative and delegated power; implied powers such as the power to

punish contempt in legislativeinvestigations.

2. Specific Powers

a. Constituent powerb. Legislative Inquiriesc. Appropriationd. Taxatione. Concurrence in treaties and international

agreementsf. War powers and delegations powers

3. Inherent Powers

a. Police Power Make, ordain, and establish all manner

of wholesome and reasonable laws,statutes and ordinances as they shalljudge for the good and welfare of theconstituents.

Includes maintenance of peace andorder, protection of life, liberty andproperty and the promotion of generalwelfare

b. Power of Taxationc. Power of Eminent Domaind. Contempt power

4. Limitations:


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a. Formal or Procedural Limitations Prescribes the manner of passing bills in

the form they should take Limitations provided by Sec 26, Art VI

o Every bill passed by the Congressshall embrace only one subjectwhich shall be expressed in the title

o No bill passed by either house shallbecome law unless it has passed 3readings on separate days

o Printed copies in its final form havebeen distributed to its members 3days before the passage of the bill Exception: president certifies to

the necessity of its immediateenactment to meet a publiccalamity or emergency

b. Substantive Limitations Circumscribe both the exercise of the

power itself and the allowable subject oflegislation

Express limitations:o Sec 24-26, 28-30, Art VI

Express limitations on general powerso Bill of rights

Implied Limitationso No power to pass irrepealable lawo Non-encroachment on powers of

other departmentso Non-delegability of powers

5. Discussion of Specific Powers

a. Constituent Powers Power to propose amendments to the

Constitution

b. Legislative Inquiries (Sec 21, Art VI)

Requisites:o Must be in aid of legislationo In accordance with duly published rules

of procedureo Right of persons appearing in or

affected by such inquiries shall berespected

Additional limitation: Executive Privilege(Refer to Chap 4, III)

c. Appropriation General Limitations:

o Appropriations must be for a PUBLICPURPOSE.

o Cannot appropriate public funds orproperty, directly or indirectly, in favor of1. Any sect, church, denomination, or

sectarian institution or system ofreligion or

2. Any priest, preacher, minister, orother religious teacher or dignitaryas such.

EXCEPT if the priest, etc is assigned to:1. the Armed Forces;2. any penal institution;3. government orphanage;4. leprosarium

o Government is not prohibited from

appropriating money for a valid secularpurpose, even if it incidentally benefits areligion, e.g. appropriations for anational police force is valid even if thepolice also protects the safety ofclergymen.

o Also, the temporary use of publicproperty for religious purposes is valid,as long as the property is available forall religions.

Specific Limitationso For General Appropriations Bills

1. Congress may not increase theappropriations recommended bythe President for the operation ofthe Government as specified in thebudget.

2. Form, content and manner ofpreparation of the budget shall beprescribed by law.

3. No provision or enactment shall beembraced in the generalappropriations bill unless it relatesspecifically to some particularappropriation therein.

4. Procedure in approvingappropriations FOR THECONGRESS shall strictly follow theprocedure for approvingappropriations for otherdepartments and agencies.

5. No law shall be passed authorizingany transfer of appropriations.However, the following may, BYLAW, be authorized to AUGMENTany item in the generalappropriations law for theirrespective offices from savings inother items of their respectiveappropriations:

i. President

ii. Senate President

iii. Speaker of the House

iv. Chief Justice of the SupremeCourt

v. Heads of the ConstitutionalCommissions

Guidelines for disbursement ofDISCRETIONARY FUNDS appropriatedFOR PARTICULAR OFFICIALS:

i. For public purposes

ii. To be supported by appropriatevouchers

iii. Subject to such guidelines as may beprescribed by law

If Congress fails to pass the generalappropriations bill by the end of anyfiscal year:

i. The general appropriations bill for theprevious year is deemed reenacted

ii. It shall remain in force and effect untilthe general appropriations bill is passedby Congress.


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o For Special Appropriations Bill1. Shall specify the purpose for which

it is intended2. Shall be supported by funds

actually available as certified by theNational Treasurer or to be raisedby corresponding revenue proposaltherein

o Limitation on Use of Public Funds (Sec29, Art VI):1. No money shall be paid out of the

National Treasury EXCEPT inpursuance of an appropriationmade by law.

2. However, this rule does not prohibitcontinuing appropriations, e.g. fordebt servicing, for the reason thatthis rule does not require yearly orannual appropriation.

o Four phases of Government’s budgetingprocess:1. Budget preparation2. Legislative authorization3. Budget execution4. Budget accountability

d. Taxation (Sec 28, Art VI) Nature

o Sec 28 is an enumeration of the limitson the inherent and otherwise unlimitedpower

Purposeso Pay debts and provide for the common

defense and general warfare;o Raise revenue;o Instrument of national and social policy;o Instrument for extermination of

undesirable acts and enterprises;o Tool for regulation;o Imposition of tariffs designed to

encourage and protect locally producedgoods against competition for imports.

Limitationso Public. Power to tax should be

exercised only for a public purpose.o Uniform and Equitable.

1. Operates with the same force andeffect in every place where thesubject of it is found

2. Does not prohibit classification forthe purpose of taxation

3. Requirements for validclassification:

i. Based on substantialdistinctions which make realdifferences

ii. Germane to the purpose of law

iii. Applies to present and futureconditions substantiallyidentical to those of the present

iv. Applies equally to those whobelong to the same class

o Progressivity.1. The rate increases as the tax base

increases2. Tax burden is based on the

taxpayers’ capacity to pay3. Suited to the social conditions of

the people4. Reflects aim of the Convention that

legislature following social justicecommand should use taxation asan instrument for more equitabledistribution of wealth

o Constitutional Tax Exemptions:1. Religious, charitable, educational

institutions and their properties2. All revenues and assets of NON-

STOCK NON-PROFITEDUCATIONAL institutions areexempt from taxes and dutiesPROVIDED that such revenues andassets are actually, directly andexclusively used for educationalpurposes (sec. 4 (3) Art XIV).

3. Grants, endowments, donations orcontributions used actually,directly and exclusively foreducational purposes shall beexempt from tax, subject toconditions prescribed by law (sec. 4(4) Art XIV).

o Special Funds1. Money collected on a tax levied for

a special purpose shall be treatedas a special fund and paid out forsuch purpose only.

2. Once the special purpose is fulfilledor abandoned, any balance shall betransferred to the general funds ofthe Government

e. Concurrence in Treaties and internationalagreements (Sec 21, Art VII)

Treaties and other international agreementswhich are in the nature of originalagreements of a permanent nature or whichestablish national policy, or involve politicalissues or changes in national policies needthe concurrence of 2/3 of the members ofthe Senate.

Executive agreements which are merelyimplementation of treaties or statutes or ofwell-established policies or are of transitoryeffectivity do not require Senateconcurrence.

f. War Powers (Sec 23 (1), Art VI) Congress in joint session assembled and

voting separately shall have the sole powerto declare the existence of war

Philippines renounces war as an instrumentof national policy

Even though the legislature can declareexistence of war and enact measures tosupport it, the actual power to make war islodged nonetheless in the executive


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6. Delegation of Powers

a. General rule: Congress cannot delegate itslegislative power (Potestas delegate nonpotest delegare)

b. Exceptions1. Delegation of tariff powers to the

President (Art VI sec. 28(2)).2. Delegation of emergency powers to the

President (Art VI sec. 23(2)).o Preconditions:

i. Limited time periodCA 671 – passed delegativeemergency powers to thepresident in times of war andother national emergencies.Since said grant was given tomeet the emergenciesincidental to the war, suchpowers ceased at the time thewar stopped

ii. Power may be withdrawn byresolution, not necessary that itbe done through statute

iii. Subject to restrictions as thecongress may provide

3. Delegation to the people at large.4. Delegation to local governments.5. Delegation to administrative bodies

(rule-making power).

Tests for a Valid Delegation

1. The Completeness TestThe law must be complete in all its terms andconditions when it leaves the legislature so thatthere will be nothing left for the delegate to dowhen it reaches him except enforce it.

2. The Sufficient Standard TestThe law must fix a standard, the limits of whichare sufficiently determinate or determinable, towhich the delegate must conform in theperformance of his functions. [Pelaez vs. AuditorGeneral, (1965)]

7. Legislative Process

A. Bills that Must Originate EXCLUSIVELY fromthe House of Representatives(Sec. 24, Art VI):

i. Appropriation bills (A bill appropriating a sum ofmoney from the public treasury.) A bill creating anew office, and appropriating funds therefor isNOT an appropriation bill.

ii. Revenue bills (A bill specifically designed to raisemoney or revenue through imposition or levy.)

iii. A law regulating an industry, though incidentallyimposing a tax, does not make the law a revenuebill.

iv. Tariff bills

v. Bills authorizing the increase of public debt

vi. Bills of local application

vii. Private bills

RA 7716 (EVAT Law) did not violate Sec. 24, Art.VI (Origination Clause). It is important toemphasize that it is the law, and not the bill,which is required to originate exclusivelyfrom the HoR, because the bill may undergosuch extensive changes in the Senate that theresult may be the rewriting of the whole.

To insist that a revenue statute, and not just the bill,must be substantially the same as the House billwould be to deny the Senate’s power not only to“concur with amendments” but also to “proposeamendments”. It would violate the co-equality oflegislative power of the Senate. [Tolentino vs.Secretary of Finance (1994)]

B. Procedure for the Passage of Bills

i. Procedure for Enactment:

Introduction: must be by any member of theHouse of Representatives or Senate except forsome measures that must originate only from theformer chamber

First reading: The reading of the title and thenumber; the bill is passed by the SenatePresident or Speaker to the proper committee

Second reading: Entire text is read and debatesare held, and amendments introduced.

The bill as approved in the second reading isprinted in its final form and copies are distributedthree days before the third reading

Third reading: Only the title is read, noamendments are allowed. Vote shall be takenimmediately thereafter and the yeas and naysentered in the journal.

Sent to the other chamber: once the bill passesthe third reading, it is sent to the other chamberwhere it will also go under three readings

Enrolled Bill: The bill is printed as finallyapproved by the Congress, authenticated withthe signatures of the Senate President or theSpeaker and the Secretary and approved by thePresident

ii. Submission to the President; President’s Vetopower (Sec 27, Art VI) Every bill, in order to become a law, must be

presented to and signed by the President. If the President does not approve of the bill,

he shall veto the same and return it with hisobjections to the House from which itoriginated. The House shall enter theobjections in the journal and proceed toreconsider it.

The President must communicate hisdecision to veto within 30 days from the dateof receipt thereof. If he fails to do so, the billshall become a law as if he signed it.

To override the veto, at least 2/3 of ALL themembers of each House must agree to passthe bill. In such case, the veto is overriddenand becomes a law without need ofpresidential approval.


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Item vetoo The President may veto particular items in an

appropriation, revenue or tariff bill.o This veto will not affect items to which he does

not object.

Veto of a Ridero A rider is a provision which does not relate to a

particular appropriation stated in the bill.o Since it is an invalid provision under Section

25(2), the President may veto it as an item.

The executive's veto power does not carrywith it the power to strike out conditions orrestrictions. If the veto is unconstitutional, itfollows that the same produced no effectwhatsoever, and the restriction imposed by theappropriation bill, therefore, remains. [BolinaoElectronics Corp vs Valencia, (1964)]

DOCTRINE OF INAPPROPRIATEPROVISIONS- A provision that is constitutionallyinappropriate for an appropriation bill may besingled out for veto even if it is not anappropriation or revenue item. [Gonzales vsMacaraig, (1990)]

The Constitution provides that only a particularitem or items may be vetoed. The power todisapprove any item or items in an appropriatebill does not grant the authority to veto a part ofan item and to approve the remaining portion ofthe same item. [Bengzon vs. Drilon, (1992)]

“The terms item and provision in budgetarylegislations and practice are concededly different. Anitem in a bill refers to the particulars, the details, thedistinct and severable parts . . . of the bill. It is anindivisible sum of money dedicated to a statedpurpose. An 'item' of an appropriation bill means anitem which in itself is a specific appropriation ofmoney, not some general provision of law, whichhappens to be put into an appropriation bill.'"

The president cannot veto unavoidable obligationssuch as the payment of pensions which has alreadybeen vested by the law. The veto is invalid since it isviolated the separation of property and the judiciary’sfiscal autonomy.

C. Effectivity of Laws

Article 2 (CC)Laws shall take effect after fifteen days following thecompletion of their publication in the Official Gazette, unlessit is otherwise provided. This code shall take effect one yearafter such publication.

unless otherwise provided – this phrase refers tothe date of effectivity, and not to the very act ofpublication. Complete publication isindispensable.

Executive Order No. 200 (June 18, 1987):Amended Art II of CC to include any newspaperof general circulation as a means of publicationother than the Official Gazette

8. Initiative and Referendum(Sec 32, Art VI)

a. Limited only to the proposal of amendmentsb. Requirements for people’s initiative:

12 % of the total number of registered voters at least 3% of all registered voters in every

district should be representedc. No amendments shall be authorized within 5

years following the ratification of the newConstitution.

The right of the people to directly proposeamendments to the Constitution through thesystem of initiative would remain entombed in thecold niche of the Constitution until Congressprovides for its implementation. Stated otherwise,while the Constitution has recognized or grantedthat right, the people cannot exercise it ifCongress, for whatever reason, does notprovide for its implementation.

Held: RA 6735 is incomplete, inadequate, or wantingin essential terms and conditions insofar as initiativeon amendments to the Constitution is concerned.

The court cited the following reasons:1. Sec 2 of the Act does not suggest an initiative on

amendments to the Constitution. The inclusion ofthe word "Constitution" therein was a delayedafterthought. That word is neither germane norrelevant to said section.

2. Unlike in the case of the other systems ofinitiative, the Act does not provide for thecontents of a petition for initiative on theConstitution.While the Act provides subtitles for NationalInitiative and Referendum and for Local Initiativeand Referendum, no subtitle is provided forinitiative on the Constitution. Also, while RA 6735exerted utmost diligence and care in providing forthe details in the implementation of initiative andreferendum on national and local legislation, itfailed, rather intentionally, to do so on the systemof initiative on amendments to the Constitution.[Santiago vs Comelec, (1997)]

The court cited the following reasons for holdingthat there was failure to comply with §2, Art.XVIIof the Constitution: (a) the initiative petition didnot present the full text of the proposedamendments; and (b) the proposed changesconstituted revision not amendment. Theessence of amendments “directly proposed bythe people through initiative upon a petition”is that the entire proposal on its face is apetition by the people. This means twoessential elements must be present. First, thepeople must author and thus sign the entireproposal. No agent or representative can sign ontheir behalf. Second, as an initiative upon apetition, the proposal must be embodied in apetition. Further, a people’s initiative could onlypropose amendments not revisions. OnlyCongress or a constitutional convention canpropose both amendments and revisions to theConstitution. A change in the form of government


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– from presidential and bicameral Congress toparliamentary and unicameral legislature—constitutes revision and not merely amendment.[Lambino v Comelec, (2006)]

II. Judiciary


A. In General

1. Judicial Power v. Judicial Review(Asked 6 times in the Bar)

JUDICIAL POWER JUDICIAL REVIEWWherevested

Supreme CourtLower courts

Supreme CourtLower courts

Definition Duty to settle actualcontroversiesinvolving rightswhich are legallydemandable andenforceable, and todetermine whetheror not there hasbeen a grave abuseof discretionamounting to lack orexcess of jurisdictionon the part of anybranch orinstrumentality of theGovernment [Art.VIII, Sec. 1, Par. 2]

Power of the courtsto test the validityof executive andlegislative acts inlight of theirconformity with theConstitution[Angara v. ElectoralCommission(1936)]

Requisites forexercise

Jurisdiction – powerto decide and hear acase and execute adecision thereof

1. Appropriatecase: actualcase orcontroversy

2. Standing:personal andsubstantialinterest

3. Question raisedat the earliestopportunity

4. Lis mota of thecase

When the judiciary mediates to allocateconstitutional boundaries, it does not assertany superiority over the other departments; itdoes not in reality nullify or invalidate an act ofthe legislature, but only asserts the solemn andsacred obligation assigned to it by theConstitution to determine conflicting claims ofauthority under the Constitution and toestablish for the parties in an actualcontroversy the rights which that instrumentsecures and guarantees to them. This is intruth all that is involved in what is termed "judicialsupremacy" which properly is the power ofjudicial review under the Constitution. [Angara v.Electoral Commission, (1936)]

Functions of Judicial Reviewa. Checkingb. Legitimatingc. Symbolic [NACHURA]

Essential Requisites for Judicial Reviewa. Actual case or controversy

This means that there must be a genuineconflict of legal rights and interests whichcan be resolved through judicialdetermination. [John Hay vs. Lim, (2003)]

This precludes the courts from entertaining thefollowing:

i. Request for an advisory opinion [Guingonavs. CA, (1998)]

ii. Cases that are or have become moot andacademic, unless --- capable of repetition yet evading review

[Alunan III v. Mirasol, (1997); Sanlakasv. Executive Secretary, (2004)]; or

when the court feels called upon toexercise its symbolic function andprovide future guidance [Salonga v.Paño, (1985)]

b. Standing: NOT the same as “real party in interest”A proper party is one who has sustained or is inimminent danger of sustaining a direct injury asa result of the act complained of [NACHURA,citing IBP v. Zamora (2000)]. The alleged injurymust also be capable of being redressed by afavorable judgment [Tolentino v. Comelec,(2004)].

i. requires partial consideration of the merits ofthe case in view of its constitutional andpublic policy underpinnings [Kilosbayan vsMorato, (1995)]

ii. may be brushed aside by the court as amere procedural technicality in view oftranscendental importance of the issuesinvolved [Kilosbayan vs Guingona, (1994);Tatad vs DOE, (1995)]

iii. Who are proper parties? taxpayers, when public funds are

involved [Tolentino vs Comelec, (2004)] Government of the Philippines, when

questioning the validity of its own laws[People vs Vera, (1937)]

legislators, when the powers ofCongress are being impaired [Philconsavs Enriquez, (1994)]

citizens, when the enforcement of apublic right is involved [Tañada vsTuvera, (1985)]

c. Constitutional question must be raised at theearliest possible opportunity, except:

i. in criminal cases, at the discretion of thecourt

ii. in civil cases, if necessary for thedetermination of the case itself

iii. when the jurisdiction of the court is involved[NACHURA]

d. Decision on the constitutional question must bedeterminative of the case itself.

The reason for this is the doctrine of separationof powers which requires that due respect be


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given to the co-equal branches, and because ofthe grave consequences of a declaration ofunconstitutionality. [De la Llana v. Alba, (1982)]

Political Question Doctrine The term “political question” refers to: (1) matters

to be exercised by the people in their primarypolitical capacity; or (2) those specificallydelegated to some other department orparticular office of the government, withdiscretionary power to act. It is concerned withissues dependent upon the wisdom, not legality,of a particular measure. [Tañada v. Cuenco,(1957)]

In recent years, the Court has set aside this doctrineand assumed jurisdiction whenever it foundconstitutionally-imposed limits on the exercise ofpowers conferred upon the Legislative and Executivebranches [BERNAS].

POLITICAL QUESTION JUSTICIABLECONTROVERSY

Alejandrino v. Quezon,(1924): The legislature’sexercise of disciplinarypower over its member isnot to be interfered with bythe Court.

Avelino v. Cuenco, (1949):election of Senate Presidentwas done without therequired quorum

Vera v. Avelino, (1946):inherent right of thelegislature to determine whoshall be admitted to itsmembership

Tañada v. Cuenco, (1957):The selection of themembers of the SenateElectoral Tribunal is subjectto constitutional limitations.

Mabanag v. Lopez-Vito,(1947): Proposal to amendthe Constitution is a highlypolitical function performedby Congress in its sovereigncapacity.

Cunanan v. Tan, Jr., (1962):The Commission onAppointments is aconstitutional creation anddoes not derive its powerfrom Congress.

Osmeña v. Pendatun,(1960): disciplinary power ofthe legislature

Gonzales v. Comelec,(1967); Tolentino v.Comelec, (1971):abandoned Mabanag v.Lopez-Vito

Severino v. Governor-General, (1910): Mandamusand injunction could not lieto enforce or restrain a dutywhich is discretionary(calling a special localelection).

Lansang v. Garcia, (1971):Suspension of the privilegeof the writ of habeas corpusis not a political question.

Montenegro v. Castañeda,(1952): Authority to decidewhether the exigency hasarisen requiring thesuspension of the privilegeof the writ of habeas corpusbelongs to the President.

Javellana v. ExecutiveSecretary, (1973): WON the1973 Constitution had beenratified in accordance withthe 1935 Constitution isjusticiable.

Manalang v. Quitoriano,(1954): President’sappointing power is not tobe interfered with by theCourt.Javellana v. ExecutiveSecretary, (1973): Thepeople may be deemed tohave cast their favorablevotes in the belief that indoing so they did the partrequired of them by Article

POLITICAL QUESTION JUSTICIABLECONTROVERSY

XV, hence, it may be saidthat in its political aspect,which is what counts most,after all, said Article hasbeen substantially compliedwith, and, in effect, the 1973Constitution has beenconstitutionally ratified.

Effect of a Declaration of Unconstitutionalitya. Orthodox view

An unconstitutional act is not a law; it confers norights; it imposes no duties; it affords noprotection; it creates no office; it is inoperative, asif it had not been passed at all.

b. Modern view Pelaez v. Auditor General, (1965)Certain legal effects of the statute prior to itsdeclaration of unconstitutionality may berecognized. [NACHURA]

2. Appointment and Qualifications

SC and CAJUSTICE

RTCJUDGE

MTC/MCTCJUDGE

Citizenship Natural-bornFilipino

Filipino

Age At least 40years old

At least35 yearsold

At least30 yearsold

Experience 15 years ormore as ajudge or alower courtor hasbeenengaged inthe practiceof law inthe Phils.for thesameperiod

Has been engaged forat least 5 years in thepractice of law* in thePhilippines or has heldpublic office in thePhilippines requiringadmission to thepractice of law as anindispensable requisite

Tenure Hold office during good behavior untilthey reach the age of 70 orbecome incapacitated to dischargetheir duties

Characteristics Person of proven competence,integrity, probity and independence

“Practice of law” is not confined to litigation.It means any activity in and out of court, whichrequires the application of law, legal procedure,knowledge, training and experience. [Cayetano v.Monsod, (1991)]

3. Disqualification from Other Positions orOffices

Art. VIII, Sec. 12. The Members of the Supreme Court andof other courts established by law shall not be designated toany agency performing quasi-judicial or administrativefunctions.


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The issue concerns the legal right of themembers of the SC, sitting as a board ofarbitrators, the decision of a majority of whomshall be final, to act in that capacity.

It was held that the SC and its membersshould not and cannot be required to exerciseany power or to perform any trust or to assumeany duty not pertaining to or connected w/ theadministering of judicial functions. [Meralco vsPasay Transportation Co., (1932)]

A judge in the CFI shall not be detailed with theDepartment of Justice to perform administrativefunctions as this contravenes the doctrine ofseparation of powers. [Garcia vs Macaraig,(1972)]

4. Grounds Removal from Office onImpeachment of Members of the SC(Art. XI, Sec. 2)

i. Culpable violation of the Constitution

ii. Treason

iii. Bribery

iv. Graft and corruption

v. Other high crimes

vi. Betrayal of public trust

B. Supreme Court

1. Composition

i. Chief Justice and 14 Associate Justicesii. May sit en banc or in divisions of three, five, or

seven Members

iii. Vacancy shall be filled within 90 days from theoccurrence thereof

2. Powers: Jurisdiction

i. Originala. Cases affecting ambassadors, other public

ministers and consuls [Art. VIII, Sec. 5(1)];b. Petitions for certiorari, prohibition,

mandamus, quo warranto, and habeascorpus [Art. VIII, Sec. 5(1)];

c. Sole judge of all contests relating to theelection, returns, and qualifications of thePresident or Vice-President, and maypromulgate its rules for the purpose [Art. VII,Sec. 4, par. 7];

d. Sufficiency of the factual basis of theproclamation of martial law or thesuspension of the privilege of the writ ofhabeas corpus or the extension thereof [Art.VII, Sec. 18, par. 3].

ii. Appellate

Art. VIII, Sec. 5. The Supreme Court shall have thefollowing powers:xxx(2) Review, revise, reverse, modify, or affirm on appealor certiorari, as the law or the Rules of Court mayprovide, final judgments and orders of lower courts in:(a) All cases in which the constitutionality or validity of

any treaty, international or executive agreement, law,presidential decree, proclamation, order, instruction,ordinance, or regulation is in question.(b) All cases involving the legality of any tax, impost,assessment, or toll, or any penalty imposed in relationthereto.(c) All cases in which the jurisdiction of any lower courtis in issue.(d) All criminal cases in which the penalty imposed isreclusion perpetua or higher.(e) All cases in which only an error or question of law isinvolved.

iii. Congressional power vis-à-vis SC

Art. VIII, Sec. 2. The Congress shall have the power todefine, prescribe, and apportion the jurisdiction of thevarious courts [subject to the followingconditions/limitations:

a. It may not increase or decrease theappellate jurisdiction of SC

b. It may not pass a law reorganizing theJudiciary when it undermines the security oftenure of the Members of the latter

Section 27 of Republic Act No. 6770(Ombudsman Act of 1989), together withSection 7, Rule III of Administrative OrderNo. 07 (Rules of Procedure of the Office ofthe Ombudsman), and any other provision oflaw or issuance implementing the aforesaidAct and insofar as they provide for appealsin administrative disciplinary cases from theOffice of the Ombudsman to the SupremeCourt, are declared INVALID for increasingthe Court’s appellate jurisdiction. However, itcannot be said that transfer of appellatejurisdiction to the CA is an act of creating anew right of appeal because such power ofthe SC to transfer appeals to subordinateappellate courts is purely a procedural andnot a substantive power. [Fabian vsDesierto, (1998)]

3. Other Powers

i. Rule-making

Art. VIII, Sec. 5. The Supreme Court shall have thefollowing powers:xxx(5) Promulgate rules concerning the protection andenforcement of constitutional rights, pleading, practice,and procedure in all courts, the admission to thepractice of law, the integrated bar, and legal assistanceto the under-privileged.

The 1987 Constitution took away the powerof Congress to repeal, alter, or supplementrules concerning pleading, practice andprocedure. In fine, the power topromulgate rules of pleading, practiceand procedure is no longer shared by thisCourt with Congress, more so with theExecutive. [Echegaray vs Secretary ofJustice, (1999)]


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Limitations:a. Shall provide a simplified and inexpensive

procedure for speedy disposition of casesb. Uniform for all courts in the same gradec. Shall not diminish, increase or modify

substantive rights

ii. Administrativea. Assign temporarily judges of lower courts to

other stations as public interest may require; shall not exceed 6 months without the

consent of the judge concernedb. Order a change of venue or place of trial to

avoid a miscarriage of justice;c. Appoint all officials and employees of the

Judiciary in accordance with the Civil ServiceLaw;

d. Supervision over all courts and thepersonnel thereof;

e. Discipline judges of lower courts, or ordertheir dismissal by a vote of a majority of theMembers who actually took part in thedeliberations on the issues in the case andvoted [en banc].

4. Manner of Sitting and Required Votes

i. En banca. decided with the concurrence of a majority

of the Members who actually took part inthe deliberations and voted.

b. Instances when the SC sits en banc: (C-DD-MM-PO) Those involving the constitutionality,

application, or operation of: (TOIL-PIPOO) Treaty Orders International or executive

agreement Law Presidential decrees Instructions Proclamations Ordinances Other regulations

Exercise of the power to disciplinejudges of lower courts, or order theirdismissal [Art. VIII, Sec. 11]

Cases or matters heard by a divisionwhere the required number of votes todecide or resolve (the majority of thosewho took part in the deliberations on theissues in the case and voted thereonand in no case less than 3 members) isnot met [Art. VIII, Sec. 4(3)]

Modifying or reversing a doctrine orprinciple of law laid down by the court ina decision rendered en banc or indivision [Art. VIII, Sec. 4(3)]

Actions instituted by citizen to test thevalidity of a proclamation of martial lawor suspension of the privilege of the writ[Art. VII, Sec. 18]

When sitting as Presidential ElectoralTribunal [Art. VII, Sec. 4, par. 7]

All other cases which under the Rules ofCourt are required to be heard by theSC en banc. [Id., Sec. 4(2)]

ii. In divisions Requirement and Procedures:

With the concurrence of a majority of theMembers who actually took part in thedeliberations and voted

In no case without the concurrence of atleast three of such Members

When required number is not obtained,the case shall be decided en banc:Provided: that no doctrine or principle oflaw laid down by the court in a decisionrendered en banc or in division may bemodified or reversed except by the courtsitting en banc

The Supreme Court sitting en banc is not anappellate court vis-à-vis its Divisions. Theonly constraint is that any doctrine orprinciple of law laid down by the Court, eitherrendered en banc or in division, may beoverturned or reversed only by the Courtsitting en banc.[ Firestone Ceramics v. CA,(2000)]

iii. Provisions of the Rules of Court

Rule 56, Sec. 7. Procedure if opinion is equally divided.Where the court en banc is equally divided or thenecessary majority cannot be had, the case shall againbe deliberated on, and if after such deliberation nodecision is reached, the original action commencedin the court shall be dismissed; in appealed cases,the judgment or order appealed from shall standaffirmed; and on all incidental matters, the petition ormotion shall de denied.

Rule 125, Sec. 3. Decision if opinion is equallydivided. – When the Supreme Court en banc isequally divided or the necessary majority cannotbe had on whether to acquit the appellant, thecase shall again be deliberated upon and if nodecision is reached after re-deliberation, thejudgment of conviction of the lower courtshall be reversed and the accused acquitted.

5. Requirements as to Decisions(applicable also to lower collegiate courts)

i. Conclusions shall be reached in consultationbefore the case is assigned to a Member for thewriting of the opinion;

ii. Certification to this effect signed by the ChiefJustice shall be issued and a copy thereofattached to the record of the case and servedupon the parties;

iii. Any Member who took no part, or dissented, orabstained from a decision or resolution muststate the reason;

iv. Decision shall clearly and distinctly expressthe facts and the law on which it is based


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No petition for review or MR of a decisionshall be refused due course or deniedwithout stating the legal basis

The Court reminds all lower courts, lawyers,and litigants that it disposes of the bulk of itscases by minute resolutions and decreesthem as final and executory, as where acase is patently without merit, where theissues raised are factual in nature, where thedecision appealed from is supported bysubstantial evidence and is in accord withthe facts of the case and the applicable laws,where it is clear from the records that thepetition is filed merely to forestall the earlyexecution of judgment and for non-compliance with the rules. The resolutiondenying due course or dismissing thepetition always gives the legal basis. Asemphasized in In Re: Wenceslao Laureta(1987), “The Court is not ‘duty bound’ torender signed Decisions all the time. It hasample discretion to formulate Decisionsand/or Minute Resolutions, provided alegal basis is given, depending on itsevaluation of a case”. This is the only waywhereby it can act on all cases filed before itand, accordingly discharge its constitutionalfunctions. [Borromeo vs. Court of Appeals,(1990)]

6. Mandatory Period for Deciding Cases

SUPREMECOURT

LOWERCOLLEGIATECOURTS

LOWER COURTS

24 monthsfrom date ofsubmission

12 months, unlessreduced by SC

3 months, unlessreduced by SC

Art. VIII, Sec. 15(3). Upon the expiration of thecorresponding period, a certification to this effect signed bythe Chief Justice or the presiding judge shall forthwith beissued and a copy therefor attached to the record of the caseor matter, and served upon the parties. The certification shallstate why a decision or resolution has not been renderedor issued within said period.

Art. VIII, Sec. 15(4). Despite the expiration of theapplicable mandatory period, the court, without prejudice tosuch responsibility as may have been incurred inconsequence thereof, shall decide or resolve the case ormatter submitted thereto for determination, without furtherdelay.

C. Judicial and Bar Council

1. Compositioni. Ex Officio Members

Chief Justice as ex officio Chairman Secretary of Justice Representative of the Congress

ii. Regular Members appointed by the President for a term of

4 years with the consent of theCommission on Appointments but theterm of those initially appointed shall bestaggered as to create continuity

Representative of the Integrated Bar (4years)

Professor of Law (3 years) Retired Member of the SC (2 years) Representative of the private sector (1

year)iii. Clerk of SC as Secretary ex officio

2. Functioni. Recommending appointees to the Judiciary;ii. Such other functions and duties as the SC

may assign.

3. Procedurei. Members of the SC and Judges of lower

courts appointed by the Pres. from a list of at

least 3 nominees prepared by the JBCfor every vacancy

no confirmation neededii. Lower courts

President shall issue the appointmentswithin 90 days from the submission ofthe list

III. Executive


A. The President

1. Qualifications, Election, Term and Oath

i. Qualifications (Sec. 2, Art VII) natural-born citizen of the Philippines a registered voter able to read and write at least forty years of age on the day of the

election a resident of the Philippines for at least ten

years immediately preceding such election.o residency and domicile mean the same

thing under election lawo The ff must be taken into consideration:

1. bodily presence2. animus manendi3. animus revertendi

The candidate must be qualified on the dayof the elections.

ii. Term and Election (Sec. 4, Art VII) Elected by direct vote of the people Unless otherwise provided by law, the

regular election for President and Vice-President shall be held on the secondMonday of May.

Canvassing of votes:o Congress shall promulgate rules for

canvassing of the certificates.o Board of canvassers duly certifies

returns of every election for Presidentand VP and transmits them toCongress, directed to the SenatePresident.


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o Senate President shall, not later than 30days after the day of election (2ndTuesday of June), open all certificates inthe presence of the members ofCongress in a joint public session. TheCongress, upon determination of theauthenticity and due execution of thecertificates, shall canvass the votes.

o The persons having the highest numberof votes shall be proclaimed elected. Incase of a tie, one of the candidates shallbe chosen by the vote of a majority of allthe members of Congress, votingseparately.

o The Supreme Court en banc, shall bethe sole judge of all contests relating tothe election, returns, and qualificationsof the President, or VP, and maypromulgate its rules for the purpose.

Regular Election and Termo The President and Vice-President (who shall

be elected with and in the same manner asthe President) shall be elected by direct voteof the people for a term of 6 years

o Term shall begin on the noon of June 30next following the day of election. *Theregular election for President and Vice-President shall be held on the 2

ndMonday of

May. (Art. VII, Sec. 4 pars. 1 & 3).

Special Election and Termo A special election to elect the President and

Vice-President shall be called by Congress,pursuant to Art VII, Section 10, if1. a vacancy occurs in the offices of

President and Vice- President2. more than 18 months3. before the date of the next regular

presidential election.o The failure of the SC to issue an injunction

on time is a decision in itself in favor of thevalidity of the law calling for Snap Electionsdespite the absence of vacancy. [PhilippineBar Association, Inc. v COMELEC, (1985)]

o The Constitution is silent as to whether thepersons elected in the special election shallserve only for the unexpired portion of theterm.

Whether the new President can run for re-election if he has not served more than 4years (Art VII, Section 4, par. 1) depends onthe construction of the phrase "hassucceeded as the President.”

Re-election

A. Presidento Not eligible for any re-election.o No person who has "succeeded" as

President and has served as such formore than 4 years, shall be qualified forany election to the same office (thePresidency) at any time. (par. 1 Sec. 4,Art VII)

The person who succeeds asPresident and not just in an actingcapacity, could either be(i) the Vice-President, or(ii) one who was elected President

in a special election.B. Vice President

o shall not serve for more than 2successive terms.

o a voluntary renunciation of office forany length of time, shall not beconsidered an interruption in thecontinuity of the service for the full termsfor which he was elected. (par 2, Sec. 4,Art VII). applicable beginning 1992, because

of the Transitory Provisions. Thisprohibition is similar to thatapplicable to Senators.

Canvassing of Election Returnso Congress acts as Board of Canvassers of

every election for President and Vice-President.

Electoral Tribunal for the Election of thePresident and Vice- Presidento The Supreme Court, sitting en banc, shall be

the sole judge of all contests relating tothe election, returns, and qualifications ofthe President or Vice-President, and maypromulgate its rules for that purpose. (par 7,Sec. 4, Art VII.) while election controversies in the

Congress are under the exclusivejurisdiction of their respective ElectoralTribunals, those in the Executive areunder the Supreme Court itself.

iii. Oath of Office (Sec 5, Art VII) Before they enter into office, the President,

the Vice-President or the Acting Presidentshall take the following oath or affirmation:

"I do solemnly swear (or affirm) that I willfaithfully and conscientiously fulfill my dutiesas President (or Vice-President or ActingPresident) of the Philippines, preserve anddefend its Constitution, execute its laws, dojustice to every man, and consecrate tomyself to the service of the Nation. So helpme God." (In case of affirmation, lastsentence will be omitted.)

2. Privilege and Salary

o The President shall have an official residence.o The salaries of the President and Vice-President

shall be determined by law and shall not bedecreased during their tenure. No increase in said compensation shall take

effect until after the expiration of the term ofthe incumbent during which such increasewas approved.

Unless the Congress provides otherwise, thePresident shall receive an annual salary of P


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300,000 (Sec 17, Art XVIII)o They shall not receive during their tenure any

other emolument from the Government or anyother source.

3. Prohibitions (Sec 13, Art VII)

o Prohibited acts:i. Hold any other office or employment during

their tenure, unless otherwise provided in theConstitution

ii. Directly or indirectly practice any otherprofession

iii. Directly or indirectly participate in anybusiness

iv. Be financially interested in any contract with,or in any franchise, or special privilegegranted by the Government or anysubdivision, agency or instrumentalitythereof, including GOCCs or theirsubsidiaries.

v. Appoint President’s spouse and relatives byconsanguinity or affinity within the 4th civildegree as Members of the ConstitutionalCommissions, or the Office of theOmbudsman, or as Secretaries,Undersecretaries, chairmen or heads ofbureaus or offices, including GOCCs andtheir subsidiaries.

o Who are prohibited?1. President2. Vice-President,3. the Members of the Cabinet, and their

deputies or assistants

The stricter prohibition applied to the Pres. and hisofficial family under Sec. 13, Art. VII as compared tothe prohibition applicable to appointive officials ingeneral under Art. IX, B, Sec. 7, par. 2 are proof ofthe intent of the 1987 Constitution to treat them asa class by itself and to impose upon said classstricter prohibitions.However, the prohibition against holding dual ormultiple offices or employment under Art. VII, Sec. 13must not be construed as applying to postsoccupied by the Executive officials specifiedtherein w/o additional compensation in an ex-officio capacity as provided by law and as requiredby the primary functions of said official's office. Thereason is that these posts do not comprise "anyother office" w/in the contemplation of theconstitutional prohibition but are properly animposition of additional duties and function onsaid officials. [Civil Liberties Union v ExecutiveSecretary, (1991)]o Prohibitions against other officials

(1.) Sec. 13, Art VINo Senator or Member of the House ofRepresentatives, during his term, may:o hold any other office or employment in the

Government, or any of its subdivisions,agencies, or instrumentalities includingGOCCs or their subsidiaries

o be appointed to any office which may havebeen created or the emoluments thereof

increased during the term for which he waselected

(2.) Sec. 2, Art IX-ANo member of the Constitutional Commissionduring his term, shall:o hold any other office or employment.o engage in the practice of any profession or in

the active management or control of anybusiness which in any way may be affectedby the functions of his office

o be financially interested, directly or indirectly,in any contract with, or in any franchise orprivilege granted by the Government, any ofits subdivisions, agencies, orinstrumentalities, including government-owned or controlled corporations or theirsubsidiaries.

(3.) Sec. 7. Art IX BNo elective official during his tenure shall:o be eligible for appointment or designation in

any capacity to any public office or position.No appointive official shall:o hold any other office or employment in the

Government or any of its subdivisions,agencies or instrumentalities, includingGOCCs or their subsidiaries.

(4.) Sec. 12, Art VIIIThe Members of the Supreme Court and of othercourts established by law shall not be designatedto any agency performing quasi-judicial oradministrative functions.

o Exceptions to rule prohibiting executiveofficials from holding additional positions:

a. President

(1) The President can assume a Cabinetpost, (because the departments aremere extensions of his personality,according to the Doctrine of QualifiedPolitical Agency, so no objection canbe validly raised based on Sec. 13, ArtVII

(2) The President is the Chairman of NEDA.(Sec. 9, Art XII)

b. Vice-President

xxx The Vice-President may be appointed asmember of the Cabinet. Such appointmentrequires no confirmation (Sec 3, Art VII)

c. Cabinet

(1) The Secretary of Justice shall be an ex-officio member of the Judicial and BarCouncil. ( Sec. 8[1], Art VIII)

(2) Unless otherwise allowed by law or bythe primary functions of his position,appointive officials shall not hold anyother office or employment in theGovernment or any subdivision, agencyor instrumentality thereof, includinggovernment- owned or controlled


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corporations or their subsidiaries. (Art.IX, B, 7, par. 2)

Art. VII, Sec. 13 talks of "unless otherwiseprovided by the Constitution." In the case ofCabinet members, this refers to Art. IX, B, 7,par. 2.

Thus, the Constitution allows a Cabinetmember to hold another office providedeither(1) such is necessitated by the primary

functions of his positiona. Secretary of Trade and Industry as

Chairman of NDCb. Secretary of Agrarian Reform as

Chairman of the Land Bank(2) such is allowed by law.

4. Succession

Vacancy in the Presidency

Two sets of rules in succession:1. vacancy took place before the beginning of the

term on June 302. vacancy during the pendency of the terms that

commences on June 30

i. Temporary or permanent vacancy in thePresidency before the term

Causes Effect1. President has not yet

qualified (e.g. he hadan operation and so hecould not take his oathof office on June 30)

2. President has not yetbeen "chosen" andqualified (e.g. there is atie and Congress hasnot yet broken the tie)

VP shall act as Presidentuntil the President-elect shallhave qualified, or shall havebeen "chosen” and qualified,as the case may be. (pars. 2& 3, sec 7, Par VII).

President-elect1. dies, or2. becomes permanently

disabled

VP elect shall become thePresident. (par. 4, Sec 7, ArtVII)

Both President and VP1. have not been "chosen"

or2. have not qualified, or3. die, or4. become permanently

disabled

Senate President, or in caseof his inability, the Speakerof the House, shall act asPresident until a Presidentor a VP shall have been"chosen" and qualified. (par.5)

In case both SenatePresident and Speaker ofthe House are unable to actas President, Congress shallby law, provide for the"manner of selecting" theone who will act asPresident until a Presidentor VP shall have been either"chosen" or "elected"pursuant to the specialelection referred to in Art VII,Sec 10, and qualified.

ii. Permanent Vacancy in the Presidency duringthe term

Causes EffectPresident's1. death2. permanent disability,3. removal from office

(impeached), or4. resignation*

VP shall become Presidentfor the unexpired portion ofthe term. (par. 1)

Both the President's andVP's1. death2. permanent disability3. removal from office

(impeached)4. resignation

Senate President or, in caseof his inability, the Speakerof the House, shall becomeActing President until thePresident or VP shall havebeen "elected" (pursuant toArt. VII, Sec. 10) andqualified. (par. 1.)

Acting President1. dies2. becomes permanently

disabled3. resigns

Congress shall by law,provide "who" shall beActing President until thePresident or VP shall havebeen "elected" (pursuant toArt. VII, Sec. 10) andqualified. Acting Presidentshall be subject to the samerestrictions of powers anddisqualifications.(par. 2)

* The president’s resignation must be willful andintentional, and it must be strictly construed.When impeachment proceedings have becomemoot due to the resignation of the Pres, propercriminal and civil cases may already be filedagainst him. [Estrada v. Desierto (2001)]

* The totality test was applied to determinewhether or not the president has indeedresigned. Many things were considered includingthe Angara Diary. [Res’n on the Motion for Recon(2001]

Comparisons and distinctions between the twovacancies:

a) The incumbent President never holds-over thePresidency in any case.

b) The vacancy must occur in the offices of both thePresident and Vice-President in order for the SenatePresident, or the Speaker, or, in their inability, theone provided to succeed according to the Law ofSuccession passed by the Congress, to succeed asActing President until the qualification of the Presi-dent.

c) The Law on Succession must be passed by theCongress in both cases in the event that thePresident, Vice-President, Senate President and theSpeaker are all unable to act as President. But inthe case of a vacancy occurring before the term, thelaw provides only for the "manner of selecting" theActing President, while in the case of a vacancyoccurring during the term, it provides for "theperson" who shall act as President. In both cases,the stint of the Acting President is temporary.

d) When the vacancy comes before the term, theConstitution talks of the successor acting asPresident until a President has been "chosen" and"qualified"; when it comes during, it talks of"elected" and qualified. The reason is that beforethe term, the vacancy in the Presidency need not befilled up by election, since it may be filled up by a


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vote of Congress in case of a tie (Art. VII, Sec. 4,par. 5); but during the term, the only way to fill upthe vacancy is by special election.

e) A special election in both cases is held, pursuant toArt. VII, Sec. 10, only when both offices of Presidentand Vice-President are vacant. However, if thevacancy occurs before the term, the grounds arelimited to 2 (death and permanent disability or both),while if the vacancy occurs during the term, thegrounds are 4 (death, permanent disability, removal,and resignation).

f) The vacancy that occurs before the term of officemay be temporary or permanent; the vacancy thatoccurs during the term of office can only be apermanent one. Thus, a different set of rulesapplies, to be discussed next following, in case ofthe temporary inability of the President during theterm of office.

Special election in Sec. 10, Art VII.

1. The Congress shall, at ten o'clock in the morningof the third day after the vacancy in the offices ofthe President and Vice-President occurs,convene in accordance with its rules withoutneed of a call

2. Within seven days enact a law calling for aspecial election to elect a President and a Vice-President to be held not earlier than forty-fivedays nor later than sixty days from the time ofsuch call. The bill calling such special election:

a. is deemed certified under paragraph 2,Section 26, Article VI

(xxx the President certifies to the necessityof its immediate enactment to meet apublic calamity or emergency xxx)

b. shall become law upon its approval onthird reading by the Congress.

Appropriations for the special electiona. charged against any current appropriationsb. exempt from the requirements of

paragraph 4, Section 25, Article VI of thisConstitution.(“A special appropriations bill shall specifythe purpose for which it is intended, andshall be supported by funds actuallyavailable as certified by the NationalTreasurer, or to be raised by acorresponding revenue proposal therein”)

3. The convening of the Congress cannot besuspended nor the special election postponed.

4. No special election shall be called if the vacancyoccurs within eighteen months before the date ofthe next presidential election.

iii. Temporary Vacancy in the Presidency Duringthe term

o A vacancy in the Presidency arising from hisdisability can occur in any of the ff ways:1. A written declaration by the President2. Written declaration by the Cabinet3. Finding by Congress by 2/3 vote that the

President is disabled.o In all these cases, the Vice-President temporarily

acts as the President.

Actions Required EffectVoluntaryDeclaration ofInability byPresident

President transmits to Senate Presidentand Speaker of the House his writtendeclaration that he is unable to dischargethe powers and duties of his office

VP to become Acting President until the President transmits toSenate President and Speaker of the House a written declarationthat he is no longer unable to discharge his office.

ContestedInability of thePresident

1. Majority of all Cabinet memberstransmit to the Senate President andSpeaker of the House their writtendeclaration that the President is unable todischarge his office.

VP shall immediately assume the Presidency in an acting capacity

2. President contests by sending his ownwritten declaration to the SenatePresident and Speaker that no inabilityexists.

President shall automatically assume his office.

3. Majority of the Cabinet insist on theiroriginal stand by transmitting a secondwritten declaration of the President'sinability within 5 days from resumption ofoffice of the President.

a. Congress shall convene, if it is not in session, within 48 hours,without need of call, in accordance with its rules, and decidebefore the 12th day after it is required to assemble. If it is alreadyin session, it must meet immediately, and decide within 10 daysafter receipt of the second written declaration by the Cabinetb. If the President, by a 2/3 vote of both houses voting separately,is determined to be "unable" to discharge his office, then the VPshall act as President. If less than 2/3 find him unable, thePresident shall continue exercising the powers and duties of hisoffice.


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o Serious Illness of the President (Sec 12, Art VII)a. The public shall be informed of the state of

his health.b. The members of the Cabinet in charge of

national security and foreign relations andthe Chief of Staff of the Armed Forces of thePhilippines, shall not be denied access to thePresident during such illness.

5. Removal

i. Impeachment, Sec. 2, Art XI.

o Who are Subject to Impeachment: The President the Vice-President the Members of the Supreme Court the Members of the Constitutional

Commissions Ombudsman

o Reasons for Impeachment culpable violation of the Constitution treason bribery graft and corruption other high crimes betrayal of public trust.

o All other public officers and employees may beremoved from office as provided by law, but notby impeachment.

ii. Impeachment Process Art. XI, Sec. 3.

1. Who may initiateThe House of Representatives shall have theexclusive power to initiate all cases ofimpeachment.

2. Verified Complainta. A verified complaint for impeachment may be

filed by any Member of the House ofRepresentatives or by any citizen uponresolution of endorsement by any Memberthereof

b. Verified Complaint shall be included in theOrder of Business within ten session days,and referred to the proper Committee withinthree session days thereafter.

c. The Committee, after hearing, and by amajority vote of all its Members, shall submitits report to the House within sixty sessiondays from such referral, together with thecorresponding resolution.

d. The resolution shall be calendared forconsideration by the House within tensession days from receipt thereof.

3. Number of votes necessaryA vote of at least one-third of all the Members ofthe House shall be necessary either to affirm afavorable resolution with the Articles ofImpeachment of the Committee, or override itscontrary resolution. The vote of each Membershall be recorded.

4. In case the verified complaint or resolution ofimpeachment is filed by at least one-third of allthe Members of the House.

The same shall constitute the Articles ofImpeachment, and trial by the Senate shallforthwith proceed.

5. No impeachment proceedings shall be initiatedagainst the same official more than once within aperiod of one year.

6. The Senate shall have the sole power to try anddecide all cases of impeachment. No person shallbe convicted without the concurrence of two-thirds of all the Members of the Senate.o When sitting for that purpose, the Senators

shall be on oath or affirmation.o When the President of the Philippines is on

trial, the Chief Justice of the Supreme Courtshall preside, but shall not vote.

7. Judgment in cases of impeachment shall notextend further than:o removal from office ando disqualification to hold any office under the

Republic of the Philippines.But the party convicted shall nevertheless beliable and subject to prosecution, trial, andpunishment according to law.

The officer can still be tried for a criminal caseaside from impeachment. (BERNAS)

“Initiation” - governed by the rules of the House ofReps;

“Trial”-governed by the rules of the Senate.

The basic issue here was theconstitutionality of the filing of the secondimpeachment complaint against then ChiefJustice Davide. The following are the pertinentconstitutional provisions:

Art. XI, Section 3 (1) The House ofRepresentatives shall have the exclusive powerto initiate all cases of impeachment. [Franciscov. House of Representatives, (2003)]x x x

(5) No impeachment proceedings shall beinitiated against the same official more than oncewithin a period of one year.

The Court held that once an impeachmentcomplaint has been initiated and subsequentlydismissed, another impeachment complaint mayno longer be filed until after the lapse of one year.In so ruling, the Court differentiated between theinitiation of the impeachment case and theimpeachment proceeding. The latter is initiatedwhen a verified complaint is filed and referred tothe House Committee on Justice for action, or bythe filing of at least 1/3 of the Members of theHouse with the Secretary General of the House.In consequence therefore, once an impeachmentcomplaint has been initiated, anotherimpeachment complaint may not be filed againstthe same official within a 1-year period. TheHouse Impeachment Rules were therebydeclared unconstitutional for giving the term“initiate” a different meaning, i.e., it pegged theinitiation of the impeachment proceedings to,among others, the finding by the House


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Committee on Justice that the verified complaintand/or resolution is sufficient in substance.

6. Powers and Functions of the President

o Executive powero Control of executive departmentso General supervision of local governmentso Power of appointmento Executive clemencieso Commander in chief powers

Military powers Suspension of the writ of habeas corpus Martial law

o Emergency powerso Contracting and guaranteeing foreign loanso Powers over foreign affairso Power over legislationo Immunity from suit

(A) Executive Power

o It is the duty to implement the laws within thestandards imposed by the legislature. *Thispower is exercised by the President. (Sec 1 ArtVII)

o The President shall have control of all theexecutive departments, bureaus, and offices. Heshall ensure that the laws be faithfully executed(Sec 17).

The Court held that as administrative head ofthe government, the President is vested withthe power to execute, administer and carryout laws into practical operation. [NationalElectrification Commission vs. CA (1997)]

The powers of the President cannot be said to belimited only to the specific power enumerated inthe Constitution. In other words, executive poweris more than the sum of specific powers soenumerated.

The framers did not intend that by enumeratingthe powers of the Pres, he shall exercise thosepowers and no other.

These unstated residual powers are impliedfrom the grant of executive power and whichare necessary for the Pres to comply with hisduties under the Constitution. [Marcos vsManglapus (1989)]

(B) Control of Executive Departments(Sec 17, Art VII)

Control is the power of an officer to alter ormodify or nullify or to set aside what asubordinate has done in the performance of hisduties and to substitute one's own judgment tothat of a subordinate.

Qualified political agency doctrine (also alterego principle)- “all the different executive andadministrative organizations are mere adjuncts ofthe Executive Department, the heads of thevarious executive departments are assistants andagents of the Chief Executive, and, except incases wherein the Chief Executive is required by

the Constitution or by the law to act in person orthe exigencies of the situation demand that he actpersonally, the multifarious executive andadministrative functions of the Chief Executiveare performed by and through the executivedepts., performed and promulgated in the regularcourse of business, are, unless disapproved orreprobated by the Chief Executive, presumptivelyacts of the Chief Executive.” [Free TelephoneWorkers Union vs. Minister of Labor andEmployment (1981)]

(C) General Supervision of Local Governmentsand Autonomous Regions

The President shall exercise general supervisionover local governments. (Sec 4, Art X)

The President shall exercise general supervisionover autonomous regions to ensure that laws arefaithfully executed. (Sec 16, Art X)

Supervision and Control Distinguished

Supervision Control- Overseeing or the power or

authority of the officer to seethat subordinate officersperform their duties, and if thelatter fail or neglect to fulfillthem, then the former may takesuch action or steps asprescribed by law to makethem perform these duties.

- This does not include the powerto overrule their acts, if theseacts are within their discretion.

- Power of an officer toalter, modify, nullifyor set aside what asubordinate officer haddone and tosubstitute thejudgment of the formerfor that of the latter.

(D) Power of appointment

o Definition: the selection, by the authority vestedwith the power, of an individual who is to exercisethe functions of a given office.

o Appointment is distinguished from:1. Designation – imposition of additional duties,

usually by law, on a person already in thepublic service

2. Commission – written evidence of theappointment

o Classification of Power of Appointment:

1. With the consent of the Commission onAppointments

There are 4 groups of officers whom thePres may appoint:

1. Heads of the Executive Department,ambassadors, other public ministers andconsuls, officers of the armed forcesfrom the rank of colonel or naval captainand other officers whose appointmentsare vested in him;

2. All other officers of the governmentwhose appointments are not otherwiseprovided by law;

3. Those whom the President may beauthorized to appoint;


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4. Officers lower in rank whoseappointments Congress may by law vestin the President alone.

Heads of bureaus were deliberately removedfrom the provision of appointments requiringconfirmation and were included in the 4

th

group and hence, their appointments nolonger need confirmation. [Sarmiento vsMison, (1987)]

The seats reserved for sectoral reps may befilled by appointment by the President underArt XVIII, Sec7. It is indubitable that sectoralrepresentatives to the House are among the“other officers whose appointments arevested in the Pres in this Constitution”,referred to in the 1

stsentence of Art. VII, Sec.

16. These appointments require theconfirmation of the Commission onAppointments.Notes: From the rulings in Sarmiento III v.Mison 1987, Bautista v. Salonga 1989, andDeles v. Constitutional Commission 1989,these doctrines are deducible:

1. Confirmation by the Commission onAppointments is required only forpresidential appointees as mentioned inthe first sentence of Sec. 16, Art. VII,including those officers whoseappointments are expressly vested bythe Constitution itself in the President:(a) Heads of the executive departments(b) Ambassadors, other public

ministers and consuls(c) Officers of the Armed Forces of the

Philippines with the rank of colonelor naval captain (because these areofficers of a sizeable commandenough to stage a coup)

(d) Other officers whose appointmentsare vested in the President in theConstitution:(i) Chairman and Commissioners

of the ConstitutionalCommissions (Sec 1 Art IX-B,Sec 1 (2) Art IX-B, Sec 1(2) ArtIx-D)

(ii) Regular members of theJudicial and Bar Council (Sec 8(2) Art VII)

(iii) Sectoral representatives (Sec 7Art XVIII, Sec 18 Art X)

2. Confirmation is not required when thePresident appoints other governmentofficers whose appointments are nototherwise provided for by law or thoseofficers whom he may be authorized bylaw to appoint (like the Chairman andMembers of the Commission on HumanRights). Also, as observed in Sarmientov. Mison, when Congress:o creates inferior offices but omits to

provide for appointment thereto, or

o provides in an unconstitutionalmanner for such appointments

the officers are considered as amongthose whose appointments are nototherwise provided for by law.

2. Upon Recommendation of the Judicial andBar Council

(a) Members of the Supreme Court and allother courts. (Sec 9, Art VIII)a. Appointments need no confirmationb. For lower courts, appointment shall

be issued within 90 days fromsubmission of the list

(b) Ombudsman and his 5 deputies (forLuzon, Visayas, Mindanao, general andmilitary) Sec 9 Art XIa. Such appointments shall require no

confirmation.b. All vacancies shall be filled within

three months after they occur.

3. Appointment of Vice-President as Member ofthe Cabinet (Sec 3, Art.VII)

o Appointment requires no confirmation

4. Appointments solely by the President (Sec.16, Art VII)

1. Those vested by the Constitution on thePresident alone (e.g. appointment ofVice-President to the Cabinet) [Art. VII,Sec. 3(2)]

2. Those whose appointments are nototherwise provided by law.

3. Those whom he may be authorized bylaw to appoint.

4. Those other officers lower in rank whoseappointment is vested by law in thePresident (alone).The phraseology ismuddled:

Sarmiento v Mison (1987):In arguing that even bureau chiefs neededconfirmation even if they are of inferior rank,the basis was the phrase, "the Congressmay, by law, vest in the appointment of otherofficers lower in rank in the President alone".This meant that until a law is passed givingsuch appointing power to the Presidentalone, then such appointment has to beconfirmed. The SC dismissed this viewhowever, saying that the inclusion of theword "alone" was an oversight. Thus, theConstitution should read "The Congressmay, by law, vest the appointment of otherofficers lower in rank in the President."

o Limitations on appointing power of thePresident

a. The spouse and relatives byconsanguinity or affinity within the 4thcivil degree of the President shall not,during his "tenure", be appointed as (sec13, Art VII)


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(i) members of the ConstitutionalCommissions,

(ii) member of the Office ofOmbudsman,

(iii) Secretaries,(iv) Undersecretaries,(v) Chairmen or heads of bureaus or

offices, including government-owned or controlled corporationsand their subsidiaries.

b. The President shall have the power tomake appointments during the recessof the Congress, whether voluntary orcompulsory, but such appointmentsshall be effective only until disapprovalby the Commission on Appointments oruntil the next adjournment of the Con-gress. (par 2, Sec 16, Art VII)

c. Two months immediately before the nextpresidential elections (2nd Monday ofMarch), and up to the end of his "term"(June 30), a President (or ActingPresident) shall not make appointments.

(Sec 15, Art VII)

Exception:Temporary appointments, to executivepositions, when continued vacancies will(1) prejudice public service (e.g

Postmaster); or(2) endanger public safety (e.g. Chief of

Staff).

The SC ruled that while "midnightappointments" (note: made byoutgoing President near the end of histerm) are not illegal, they should bemade in the capacity of a "caretaker"doubly careful and prudent in makingthe selection, so as not to defeat thepolicies of the incoming administration.The filling up of vacancies in importantposts, if few, and so spaced as to affordsome assurance of deliberate action andcareful consideration of the need for theappointment and the appointee’squalifications, may be undoubtedlypermitted. But the issuance of 350appointments in one night and theplanned induction of almost all of them afew hours before the inauguration of thenew President may be regarded asabuse of presidential prerogatives.[Aytona vs Castillo (1962)]

The SC emphasized that the Aytonaruling does not declare all midnightappointments as invalid, and that the adinterim appointment of the petitionerchief of police here, whose qualificationand regularity were not disputed, exceptfor the fact that it was made during thelast few days of the old administration, isthus not invalid. [Quimsing vsTajanglangit (1964)]

The prohibition against midnightappointments applies only to thepresident and does not extend tolocal elective officials. Moreover,there is no law that prohibits localelective officials from makingappointments during the last days of hisor her tenure. [De Rama v. CA (2001)]

o Interim or recess appointments

1) Regular and recess (ad-interim)appointments

Appointments requiring confirmationare of two kinds(i) regular, if the CA, that is,

Congress, is in session(ii) during the recess of Congress

(because the Commission shallmeet only while Congress is insession [Art. VI, Sec. 19]).

Regular appointment - one made bythe President while Congress is insession, takes effect only afterconfirmation by the Commission onAppointments, and once approved,continues until the end of the term of theappointee.

Ad-interim appointment - one made bythe President while Congress is not insession, takes effect immediately, butceases to be valid if disapproved by theCommission on Appointments or uponthe next adjournment of Congress. (Art.VII, Sec. 16, par. 2)

Ad interim appointment – apermanent appointment made bythe Pres in the meantime thatCongress is in recess. It ispermanent as it takes effectimmediately and can no longer bewithdrawn by the President oncethe appointee has qualified intooffice. The fact that it is subject tothe confirmation of the Commissionon Appointments does not alter itspermanent character. Hence, saidappointment is effective until (1)disapproved by the CA or (2) thenext adjournment of Congress[Matibag vs Benipayo (2002)]

2) Acting/Temporary appointment – can bewithdrawn or revoked at the pleasure ofthe appointing power. The appointeedoes not enjoy security of tenure. Thisis the kind of appointment that theConstitution prohibits the Pres frommaking to the independent constitutionalcommissions.The mere filing of a motion forreconsideration of the confirmation of anappointment cannot have the effect of


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recalling or setting aside saidappointment. The Consti is clear – theremust either be a rejection by theCommission on Appointments or non-action on its part for the confirmation tobe recalled.

Also, the power to approve ordisapprove appointments is conferredon the CA as a body and not on theindividual members. [Pacete vsSecretary (1971)]

3) Temporary DesignationsAdmin Code of 1987, Book III Sec. 17The President may designate an officeralready in the govt. service or any othercompetent person to perform the functions ofany office in the executive branch,appointment to which is vested in him by law,when:(a) The officer regularly appointed to the

office is unable to perform his duties byreason of illness, absence or any othercause; or

(b) There exists a vacancy;In no case shall a temporary designationexceed one (1) year.

o Limitations on the appointing power of theActing President

1. Appointments extended by an ActingPresident shall remain effective unlessrevoked by the elected President withinninety days from his assumption orreassumption of office. (Sec. 14 Art VII)

2. A President or Acting President shall notmake appointments two monthsimmediately before the next presidentialelections and up to the end of his term except temporary appointments to

executive positions when continuedvacancies therein will prejudicepublic service or endanger publicsafety. (Sec 15, Art VII)

7. Executive Clemencies

o The President may grant:a. Reprieves

a temporary relief from or postponementof execution of criminal penalty orsentence or a stay of execution.(BLACK)

It is the withholding of a sentence for aninterval of time, a postponement ofexecution, a temporary suspension ofexecution. [People vs. Vera, supra]

b. Commutations Reduction of sentence. (BLACK) It is a remission of a part of the

punishment; a substitution of a lesspenalty for the one originally imposed.[People vs. Vera, supra]

c. Pardons, and Permanent cancellation of sentence.

(BLACK) It is an act of grace proceeding from the

power entrusted with the execution ofthe laws, which exempts the individualon whom it is bestowed, from thepunishment the law inflicts for the crimehe has committed. It is a remission ofguilt, a forgiveness of the offense.[People v Vera, supra]

Plenary or partialo Plenary - extinguishes all the

penalties imposed upon theoffender, including accessorydisabilities

o Partial – does not extinguish allpenalties imposed

Absolute or conditionalo Conditional - the offender has the

right to reject the same since hemay feel that the condition imposedis more onerous than the penaltysought to be remitted.

o Absolute pardon - pardonee has nooption at all and must accept itwhether he likes it or not. In thissense, an absolute pardon is similarto commutation, w/c is also notsubject to acceptance by theoffender.

d. Remit fines and forfeitures, after convictionby final judgment

o Except:(a) In cases of impeachment, and(b) As otherwise provided in this Constitution

No pardon, amnesty, parole orsuspension of sentence for violation ofelection laws, rules, and regulationsshall be granted by the Presidentwithout the favorable recommendationby the Commission (on Elections.) (Sec5, Art IX)

o The President shall also have the power to grantamnesty with the concurrence of a majority of allthe Members of the Congress. (Sec 19, Art VII) Amnesty - a sovereign act of oblivion for past

acts, granted by government generally to aclass of persons who have been guiltyusually of political offenses and who aresubject to trial but have not yet been con-victed, and often conditioned upon theirreturn to obedience and duty within aprescribed time. (BLACK; Brown v Walker,161 US 602).

Probation - a disposition under which adefendant after conviction and sentence isreleased subject to conditions imposed bythe court and to the supervision of aprobation officer. [Sec. 3 (a), PD 968.]

Parole - suspension of the sentence of aconvict granted by a Parole Board afterserving the minimum term of the inde-terminate sentence penalty, without grantinga pardon, prescribing the terms upon whichthe sentence shall be suspended. [REYES]


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o Effects of Pardon (Case Law)

There are 2 limitations upon the exercise ofthe constitutional prerogative of the Pres. togrant pardon: (1) that the power beexercised after conviction; (2) that suchpower does not extend to cases ofimpeachment. [Cristobal v Labrador(1940)]

o Absolute pardon has the effect of removingthe disqualification from voting and beingelected incident to criminal conviction underSec 94(a) of the Election Code.The Chief Executive, after inquiry into theenvironmental facts, should be at liberty toatone the rigidity of the law to the extent ofrelieving completely the party or partiesconcerned from the accessory and resultantdisabilities of criminal conviction. [Pelobellov. Palatino (1941)]

Pardon implies guilt and does not erase thefact of the commission of the crime and theconviction thereof. It does not ipso factorestore a convicted felon to a public officenecessarily relinquished or forfeited byreason of the conviction although suchpardon undoubtedly restores his eligibility forappointment to that office. [Monsanto vsFactoran (1989)]

Notes:"Pardon granted after conviction frees theindividual from all the penalties and legaldisabilities and restores him to all his civil rights.

But unless expressly grounded on theperson's innocence (w/c is rare), it cannot bringback lost reputation for honesty, integrity and fairdealing.

This must be constantly kept in mind lest welose track of the true character and purpose ofthe privilege. xxx"

o Application of Pardoning Powers toAdministrative Cases

If the President can grant reprieves,commutations and pardons, and remit finesand forfeitures in criminal cases, with muchmore reason can she grant executiveclemency in administrative cases, which areclearly less serious than criminal offenses.

However, the power of the President to grantexecutive clemency in administrative casesrefers only to administrative cases in theExecutive branch and not in the Judicial orLegislative branches of the govt. [Llamas vExecutive Secretary (1991)]

Removal of Administrative Penalties

Sec. 53, Chapter 7, Subtitle A, Title I, Book V,Administrative Code of 1987Removal of Administrative Penalties orDisabilities.-- In meritorious cases and uponrecommendation of the (Civil Service)Commission, the President may commute or

remove administrative penalties or disabilitiesimposed upon officers or employees in disciplinarycases, subject to such terms and conditions as hemay impose in the interest of the service

o Who may avail of amnesty? (Case Law) (Asked 5times in the Bar)

Amnesty Proclamation No. 76 applies evento Hukbalahaps already undergoingsentence upon the date of its promulgation.The majority of the Court believes that by itscontext and pervading spirit the proclamationextends to all members of the Hukbalahap.[Tolentino vs Catoy (1948)]

The SC agreed with the Sandiganbayan thatin fact the petitioners were expresslydisqualified from amnesty. The acts forwhich they were convicted were ordinarycrimes without any political complexionand consisting only of diversion of publicfunds to private profit. The amnestyproclamation covered only acts in thefurtherance of resistance to duly constitutedauthorities of the Republic and applies onlyto members of the MNLF, or other anti-government groups. [Macaga-an vs People(1987)]

8. Powers as Commander-in-Chief

o Powers as Commander-in-Chief:a. He may call out such armed forces to

prevent or suppress lawless violence,invasion or rebellion.

b. He may suspend the privilege of the writ ofhabeas corpus, or

c. He may proclaim martial law over the entirePhilippines or any part thereof.

o Subject to judicial review to determine whether ornot there has been a grave abuse of discretionamounting to lack or excess of jurisdiction (par.2, Sec 1, Art VIII)

a. Call out the AFP to prevent lawless violence

This is merely a police measure meant to quelldisorder. As such, the Constitution does notregulate its exercise radically

It is not disputed that the President has fulldiscretionary power to call out the armed forcesand to determine the necessity for the exercise ofsuch power. While the Court may examinewhether the power was exercised withinconstitutional limits or in a manner constitutinggrave abuse of discretion, none of the petitionershere have, by way of proof, supported theirassertion that the President acted without factualbasis. The President, in declaring a state ofrebellion and in calling out the armed forces, wasmerely exercising a wedding of her ChiefExecutive and Commander-in-Chief powers.These are purely executive powers, vested onthe President by Sections 1 and 18, Article VII, as


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opposed to the delegated legislative powerscontemplated by Section 23 (2), Article VI.[Sanlakas v Executive Secretary (2004)]

Assailed is PP1017 (Declaration of State ofNational Emergency). It is different from the lawin Sanlakas as this proclamation was woven outof the “calling out” and “take care” powers of thePresident joined with the “temporary takeover”provision under Art. XII, section 17.

PP1017 purports to grant the President, withoutauthority or delegation from Congress, to takeover or direct the operation of any privately-owned public utility or business affected withpublic interest.

The SC held that while the President could validlydeclare the existence of a state of nationalemergency even in the absence of aCongressional enactment, the exercise of theemergency powers, such as the taking over ofprivately-owned public utility or business affectedwith public interest, requires a delegation fromCongress which is the repository of emergencypowers.

PP1017 did not authorize said temporary takeover without authority from Congress. [David v.Arroyo (2006)]

b. Suspend the privilege of the writ of habeascorpus

A "writ of habeas corpus" is an order from thecourt commanding a detaining officer to informthe court(i) if he has the person in custody, and(ii) his basis in detaining that person.

The "privilege of the writ" is that portion of the writrequiring the detaining officer to show cause why heshould not be tested. Note that it is the privilege thatis suspended, not the writ itself.

o Requisites:1) There must be an invasion or rebellion, and2) The public safety requires the suspension.

o Effects of the suspension of the privilege:1) The suspension of the privilege of the writ

applies only to persons "judicially charged"for rebellion or offenses inherent in or directlyconnected with invasion (Art. VII, Sec. 18,par. 5). Such persons suspected of the above

crimes can be arrested and detainedwithout a warrant of arrest.

The suspension of the privilege doesnot make the arrest without warrantlegal. But the military is, in effect,enabled to make the arrest, anywaysince, with the suspension of the

privilege, there is no remedy availableagainst such unlawful arrest (arbitrarydetention).

The arrest without warrant is justified bythe emergency situation and thedifficulty in applying for a warrantconsidering the time and the number ofpersons to be arrested.

The crime for which he is arrested mustbe one related to rebellion or invasion.As to other crimes, the suspension ofthe privilege does not apply.

2) During the suspension of the privilege of thewrit, any person thus arrested or detainedshall be judicially charged within 3 days, orotherwise he shall be released. (Art. VII,Sec. 18, par. 6). The effect of the suspension of the

privilege, therefore, is only to extend theperiods during which he can be detainedwithout a warrant. When the privilege issuspended, the period is extended to 72hours.

What happens if he is not judiciallycharged nor released after 72 hours?The public officer becomes liable underArt. 125 for "delay in the delivery ofdetained persons."

3) The right to bail shall not be impaired evenwhen the privilege of the writ of habeascorpus is suspended. (Art. III, Sec. 13)

c. Proclaim Martial Law

o Requisites:1) There must be an invasion or rebellion, and2) Public safety requires the proclamation of

martial law all over the Philippines or anypart thereof.

o Effects of the proclamation of martial law:

The President can:1) Legislate2) Order the arrest of people who obstruct the

war effort.

o But the following cannot be done (Art. VII, Sec.18, par. 4)a. Suspend the operation of the Constitution.b. Supplant the functioning of the civil courts

and the legislative assemblies. martial law is proclaimed only because

the courts and other civil institutions likeCongress have been shut down. Itshould not happen that martial law isdeclared in order to shut down the civilinstitutions.

c. Confer jurisdiction upon military courts andagencies over civilians, where civil courts areable to function. "open court" doctrine

o holds that civilians cannot be triedby military courts if the civil courtsare open and functioning.

o if the civil courts are not functioning,


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then civilians can be tried by themilitary courts.

o Martial law usually contemplates acase where the courts are alreadyclosed and the civil institutions havealready crumbled, that is a "theaterof war." If the courts are still open,the President can just suspend theprivilege and achieve the sameeffect.

d. Automatically suspend the privilege of thewrit of habeas corpus. The President must suspend the

privilege expressly.The Role of Congress [Art. VII, Sec. 18, pars. 1-2]

a. Congress may revoke the proclamation of martiallaw or suspension of the privilege of the writ ofhabeas corpus before the lapse of 60 days fromthe date of suspension or proclamation

b. Upon such proclamation or suspension,Congress shall convene at once. If it is not insession, it shall convene in accordance with itsrules without need of a call within 24 hoursfollowing the proclamation or suspension.

c. Within 48 hours from the proclamation or thesuspension, the President shall submit a report,in person or in writing, to the Congress (meetingin joint session of the action he has taken).

d. The Congress shall then vote jointly, by anabsolute majority. It has two options:(i) To revoke such proclamation or suspension.

When it so revokes, the Presidentcannot set aside (or veto) the revocationas he normally would do in the case ofbills.

(ii) To extend it beyond the 60-day period of itsvalidity. Congress can only so extend the

proclamation or suspension upon theinitiative of the President.

The period need not be 60 days; it couldbe more, as Congress would determine,based on the persistence of theemergency.

If Congress fails to act before themeasure expires, it can no longerextend it until the President againredeclares the measure.

o Congress cannot "validate" the proclamation orsuspension, because it is already valid.

o If Congress extends the measure, but before theperiod of extension lapses the requirements forthe proclamation or suspension no longer exist,Congress can lift the extension, since the powerto confer implies the power to take back.

o If Congress does not review or lift the order, thiscan be reviewed by the Supreme Court pursuantto the next section.

The Role of the Supreme Court[Art. VII, Sec. 18, par. 3]

o The Supreme Court may review, in anappropriate proceeding filed by any citizen, thesufficiency of the factual basis of:(a) the proclamation of martial law or the

suspension of the privilege of the writ, or(b) the extension thereof. It must promulgate its

decision thereon within 30 days from itsfiling. (Sec 18 (3), Art. VII)

o The jurisdiction of the SC may be invoked in aproper case.

o Petition for habeas corpus When a person is arrested without a warrant

for complicity in the rebellion or invasion, heor someone else in his behalf has thestanding to question the validity of theproclamation or suspension.

Before the SC can decide on the legality ofhis detention, it must first pass upon thevalidity of the proclamation or suspension.

o Test of Arbitrariness: [IBP v. Zamora, (2000)] to be used by the Supreme Court in so

reviewing the act of the President inproclaiming or suspending, or the act ofCongress in extending

seeks to determine the sufficiency of thefactual basis of the measure.

The question is not whether the President orCongress acted correctly, but whether heacted arbitrarily in that the action had nobasis in fact. amounts to a determination of whether

or not there was grave abuse of discre-tion amounting to lack or excess ofjurisdiction. (Sec 1(2) Art. VIII)

The issue there raised was whether insuspending the privilege of the writ in 1971,Marcos had a basis for doing so. The SC, inconsidering the fact that the President basedhis decision on (a) the Senate report on thecondition in Central Luzon and (b) a closeddoor briefing by the military showing theextent of subversion, concluded that thePresident did not act arbitrarily. One maydisagree with his appreciation of the facts,but one cannot say that it is without basis.[Lansang v Garcia (1971)]

o 2 conditions must concur for the valid exercise ofauthority to suspend the privilege:(a) there must be an actual invasion,

insurrection, rebellion or imminent danger;and

(b) public safety must require the suspension ofthe privilege. [This holding of the SC is nowfound in Art. VII, Sec. 18, par. 3.] Thefunction of the court is to check and notsupplant the executive or to ascertain merelywhether he has gone beyond theconstitutional limits of jurisdiction. Theproper standard is not correctness butarbitrariness.


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There are 4 ways, then, for the proclamation orsuspension to be lifted: (P-C-S-O)

1) Lifting by the President himself2) Revocation by Congress3) Nullification by the Supreme Court4) Operation of law after 60 days

Military trial of civilians void even under MartialLaw, if civil courts are open. (Sec 18(4) Art.VII,).

Cf. RA 7055 (1991) "An Act StrengtheningCivilian Supremacy over the Military by Returningto the Civil Courts the Jurisdiction over CertainOffenses involving Members of the Armed Forcesof the Philippines, other Persons Subject toMilitary Law, and the Members of the PhilippineNational Police, Repealing for the PurposeCertain Presidential Decrees"

RA 7055 effectively placed upon the civilcourts the jurisdiction over certain offensesinvolving members of the AFP and othermembers subject to military law.

RA 7055 provides that when theseindividuals commit crimes or offensespenalized under the RPC, other specialpenal laws, or local government ordinances,regardless of whether civilians are co-accused, victims, or offended parties whichmay be natural or juridical persons, theyshall be tried by the proper civil court, exceptwhen the offense, as determined beforearraignment by the civil court, is service-connected in which case it shall be tried bycourt-martial.

The assertion of military authority overcivilians cannot rest on the President's poweras Commander in Chief or on any theory ofmartial law. As long as civil courts remainopen and are regularly functioning, militarytribunals cannot try and exercise jurisdictionover civilians for offenses committed by themand which are properly cognizable by civilcourts. To hold otherwise is a violation of theright to due process. [Olaguer vs MilitaryCommission No. 34 (1987)]

9. Emergency powers (Sec 23, Art. VI).

o The Congress may by law authorize thePresident to exercise powers necessary andproper to carry out a declared national policy.

o Different from the Commander-in-Chief clause: When the President acts under the

Commander-in-Chief clause, he acts under aconstitutional grant of military power, whichmay include the law-making power.

When the President acts under theemergency power, he acts under aCongressional delegation of law-makingpower.

o Meaning of “power necessary and proper” Power to issue rules and regulations

This power is:(1) for a limited period, and(2) subject to such restrictions as Congress may

provide.

The power ceases:(a) upon being withdrawn by resolution of the

Congress, or, if Congress fails to adopt suchresolution,

(b) upon the next (voluntary) adjournment ofCongress. For the fact that Congress is ableto meet in session uninterruptedly andadjourn of its own will proves that theemergency no longer exists is to justify thedelegation.

This rule or the termination of the grant ofemergency powers is based on decided cases,which in turn became Art. VII, Sec. 15 of the1973 Constitution.

The Congress granted the President certainemergency powers. (CA671) After the war,Congress held a special session. The SCheld that the emergency power lasted onlyuntil Congress held its regular session. Thefact that Congress could now meet meantthat there was no emergency anymore thatwould justify the delegation. The assertionthat new legislation is needed to repealCA671 is not in harmony with theConstitution. If a new law were necessary toterminate it, then it would be unlimited andindefinite. This would create an anomalysince what was intended to meet atemporary emergency becomes a permanentlaw. [Araneta v Dinglasan (1949)]

The specific power to continue in force lawsand appropriations which would lapse orotherwise become inoperative is a limitationon the general power to exercise such otherpowers as the executive may deemnecessary to enable the government to fulfillits responsibilities and to maintain andenforce its authority. [Rodriguez v Gella(1953)]

o Inconsistency between the Constitution and thecases: (BARLONGAY) The Constitution [Art. VI, Sec. 23 (2)] states

that the emergency powers shall cease uponthe next adjournment of Congress unlesssooner withdrawn by resolution of Congress

Cases tell us that the emergency powersshall cease upon resumption of session.

Reconciling the two: it would not be enoughfor Congress to just resume session in orderthat the emergency powers shall cease. Ithas to pass a resolution withdrawing suchemergency powers, otherwise such powersshall cease upon the next adjournment ofCongress.


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10. Contracting and Guaranteeing ForeignLoans

o Requisites for contracting and guaranteeingforeign loans:1. With the concurrence of the monetary board

(Sec 20, Art VII)2. subject to limitations as may be provided by

law (Sec 21, Art XII)3. information on foreign loans obtained or

guaranteed shall be made available to thepublic (sec 21, Art XII)

o Cf. Republic Act 4860 An Act Authorizing The President Of The

Philippines To Obtain Such Foreign LoansAnd Credits, Or To Incur Such ForeignIndebtedness, As May Be Necessary ToFinance Approved Economic DevelopmentPurposes Or Projects, And To Guarantee, InBehalf Of The Republic Of The Philippines,Foreign Loans Obtained Or Bonds Issued ByCorporations Owned Or Controlled By TheGovernment Of The Philippines ForEconomic Development Purposes IncludingThose Incurred For Purposes Of Re-LendingTo The Private Sector, Appropriating TheNecessary Funds Therefore, And For OtherPurposes Approved, September 8, 1966.

o Role of Congress:1. The President does not need prior approval

by the Congressa. Because the Constitution places the

power to check the President’s power onthe Monetary Board

b. Congress may provide guidelines andhave them enforced through theMonetary Board

11. Powers over Foreign Affairs

(a) Treaty-making power

o No treaty or international agreement shall bevalid and effective unless concurred in by at leasttwo-thirds of all the members of the Senate. (Sec21, Art VII)

o Treaty distinguished from executive agreements:

1. Executive Agreements entered into by the President need no concurrence.

International agreements involving politicalissues or changes in national policy andthose involving international agreements ofpermanent character usually take the form ofTREATIES. But the internationalagreements involving adjustments in detailcarrying out well-established national policiesand traditions and those involving a more orless temporary character usually take theform of EXECUTIVE AGREEMENTS. [Commissioner of Customs vs. Eastern SeaTrading (1961)]

The agreement is not a "treaty" as the termis used in the Constitution. The agreementwas never submitted to the Senate forconcurrence. It must be noted that a treatyis not the only form that an internationalagreement may assume. For the grant oftreaty making power to the Executive and theSenate does not exhaust the power of thegovernment over international relations.

Consequently, executive agreements may beentered into with other states and areeffective even without the concurrence of theSenate. From the point of view ofinternational law, there is no differencebetween treaties and executive agreementsin their binding effect upon states concernedas long as the negotiating functionaries haveremained within their powers. The distinctionbetween an executive agreement and atreaty is purely a constitutional one and hasno international legal significance. [USAFFEVeterans Assn. vs Treasurer (1959)]

o Nature of Executive Agreements:

There are 2 classes:(1) agreements made purely as executive acts

affecting external relations and independentof or without legislative authorization, whichmay be termed as presidential agreements,and

(2) agreements entered into in pursuance ofacts of Congress, or Congressional-Executive Agreements.

Although the President may, under theAmerican constitutional system enter intoexecutive agreements without previouslegislative authority, he may not, byexecutive agreement, enter into a transactionwhich is prohibited by statutes enacted priorthereto. Under the Constitution, the mainfunction of the Executive is to enforce lawsenacted by Congress. The former may notinterfere in the performance of the legislativepowers of the latter, except in the exercise ofhis veto power. He may not defeat legislativeenactments that have acquired the status oflaw, by indirectly repealing the same throughan executive agreement providing for theperformance of the very act prohibited bysaid laws. [Gonzales v Hechanova (1963)]

The issue in this case is the constitutionalityof the VFA. The SC held that once theSenate performs the power to concur withtreaties or exercise its prerogative within theboundaries prescribed by the Constitution,the concurrence cannot be viewed as anabuse of power, much less a grave abuse ofdiscretion. The President, in ratifying theVFA and submitting the same forconcurrence of the Senate, acted within theconfines and limits of the power vested inhim by the Constitution. The Presidentmerely performed a constitutional task and


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exercised a prerogative that chiefly pertainsto the functions of his office. [Bayan vsExecutive Secretary (2000)]

(b) Deportation of undesirable aliens

[Qua Chee Gan vs Deportation Board (1963]

o The President may deport only according togrounds enumerated by law since it would beunreasonable and undemocratic to hold that analien be deported upon an unstated or undefinedground depending merely on the use of anunlimited discretion by the President.

o 2 ways of deporting an undesirable alien:(a) by order of the President after due

investigation(b) by the Commissioner of Immigration

o The President can delegate the power ofinvestigation but not the power to order the arrestof an alien.

o The Deportation Board may not order the arrestof the alien in this case. If an implied grant ofpower, considering that no express authority wasgranted by law, would curtail the right of a personthen a delegation of the implied power must berejected as inimical to the liberties of the people.

[Go Tek vs Deportation Board (1977)]

o The Deportation Board can entertain deportationbased on grounds not specified in Sec 37 of theImmigration Law. The Board has jurisdiction toinvestigate Go Tek even if he had not beenconvicted yet.

o The President’s power to deport aliens and toinvestigate them subject to deportation areprovided in the Revised Administrative Code.

o The State has inherent power to deportundesirable aliens. This power is exercised bythe President.

o There is no legal nor constitutional provisiondefining the power to deport aliens because theintention of the law is to grant the Chief Executivethe full discretion to determine whether an alien’sresidence in the country is so undesirable as toaffect the security, welfare or interest of the state.

o The Chief Executive is the sole and exclusivejudge of the existence of facts which wouldwarrant the deportation of aliens.

12. Power over Legislation

(a) Message to Congress

The President shall address the Congress at theopening of its regular session. He may alsoappear before it at any other time. (Sec 23, ArtVII)

Every 4th Monday of July, the President deliversthe State of the Nation Address, which containshis proposals for legislation. Through thisspeech, he can influence the course of legislation

that Congress can take during the regularsession.

(b) Prepare and Submit the Budget

The President shall submit to Congress within thirtydays from the opening of every regular session, asthe basis of the general appropriations bill, a budgetof expenditures and sources of financing, includingreceipts from existing and proposed revenuemeasures. (Sec 22, Art VII)o The budget is the plan indicating:

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

This budget is the upper limit of the appropriations billto be passed by Congress. Through the budget,therefore, the President reveals the priorities of thegovernment.

(c) Veto power

o As a general rule, all bills must be approved bythe President before they become law, exceptwhen:(i) the veto of the President is overridden by 2/3

vote of all the Members of the House whereit originated; and

(ii) the bill passed is the special law to elect thePresident and Vice-President.

o This gives the President an actual hand inlegislation. However, his course of action is onlyto approve it or veto it as a whole. (SeeLegislative Power of Congress)

It is true that the Constitution provides amechanism for overriding a veto (Art. VI, Sec. 27[1]). Said remedy, however, is available onlywhen the presidential veto is based on policy orpolitical considerations but not when the veto isclaimed to be ultra vires. In the latter case, itbecomes the duty of the Court to draw thedividing line where the exercise of executivepower ends and the bounds of legislativejurisdiction begin. [PHILCONSA v Enriquez(1994)]

(d) Emergency Power

o In times of war or other national emergency, theCongress, may, by law, authorize the President,for a limited period, and subject to suchrestrictions as it may prescribe, to exercisepowers necessary and proper to carry out adeclared national policy. Unless soonerwithdrawn by resolution of the Congress, suchpowers shall cease upon the next adjournmentthereof. (Sec 23, Art VI see discussion above)

(e) Fixing of tariff rates (Sec 28, Art VI)

o The Congress may, by law, authorize thePresident to fix: within specified limits, and subject to such limitations and restrictions as


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it may impose, tariff rates import and export quotas tonnage and wharfage dues other duties or imposts within the

framework of the national developmentprogram of the Government.

o Reason for delegation: highly technical nature ofinternational commerce, and the need toconstantly and with relative ease adapt the ratesto prevailing commercial standards.

13. Immunity from Suit

The President as such cannot be sued, enjoyingas he does immunity from suit, but the validity ofhis acts can be tested by an action againstthe other executive officials or suchindependent constitutional agencies as theCommission on Elections and the Commission onAudit. [Carillo vs. Marcos (1981)]

The petition seeks clarification as to whom theConstitution refers to as the incumbent Pres andVice Pres. The petition amounts in effect to a suitagainst the incumbent Pres. Aquino and it isequally elementary that incumbent Presidents areimmune from suit or from being brought to courtduring the period of their incumbency and tenure.[In Re Bermudez (1986)]

The SC held that the privilege of immunity fromsuit pertains to the President by virtue of theoffice and may be invoked only by the holderof the office; not by any other person in thePresident's behalf. Thus, an accused in acriminal case where the President is acomplainant cannot raise the presidentialprivilege as a defense to prevent the case fromproceeding against the accused. Moreover, thereis nothing in our laws that would prevent thePresident from waiving the privilege. ThePresident may shed the protection afforded bythe privilege and submit to the court's jurisdiction.[Soliven vs Makasiar (1988); Beltran vs Makasiar(1988)]

The President’s immunity from suit extendsbeyond his term so long as the act in questionwas done during his term.

Petitioners theorize that the present petition forprohibition is improper because the same attacksan act of the President, in violation of the doctrineof presidential immunity from suit. Petitioners’contention is untenable for the simple reason thatthe petition is directed against petitioners andnot against the President. The questioned actsare those of petitioners and not of the President.Furthermore, presidential decisions may bequestioned before the courts where there isgrave abuse of discretion or that thePresident acted without or in excess ofjurisdiction. [Gloria v CA (2000)]

B. Vice President

Article VII, Section 3. There shall be a VicePresident who shall have the same qualifications andterm of office and be elected with, and in the samemanner, as the President. He may be removed fromoffice in the same manner as the President.

The Vice President may be appointed as a Member ofthe Cabinet. Such appointment requires noconfirmation.

1. Qualifications, Election, Term and Oath

a. Qualifications* same as President (Sec. 3, Art VII)

b. Term and Election* same as President (Sec. 4, Art VII)

c. Oath* same as President (except for the statement ofposition)

2. Privilege and Salary

* same as President

except: the Vice-President, xxx [shall receive annualsalary of] P240,000 (Sec 17, Art XVIII)

3. Prohibitions

* same as President

4. Succession

* same as President (Art. VII, Sec. 9)5. Removal

Impeachment Process

* same as President (Art. XI, Sec. 3)

6. Functions

a. Right of succession

The Vice-President shall assume the functions of thepresident in case of:1. death, permanent disability, removal from office,

or resignation of the President (Sec 8, Art VII)2. Whenever the President transmits to the

President of the Senate and the Speaker of theHouse of Representatives his written declarationthat he is unable to discharge the powers andduties of his office, and until he transmits to thema written declaration to the contrary (Sec 11, ArtVII)

3. Whenever a majority of all the Members of theCabinet transmit to the President of the Senateand to the Speaker of the House ofRepresentatives their written declaration that thePresident is unable to discharge the powers andduties of his office

b. Membership in Cabinet

xxx The Vice-President may be appointed as memberof the Cabinet. Such appointment requires noconfirmation. (Sec 3, Art VII)


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IV. Constitutional Commissions

A. Common Provisions


1. Disqualifications; Inhibitions

o No member of a Constitutional Commission shall,during his tenure:i. hold any other office or employmentii. engage in the practice of any professioniii. engage in the active management and control

of any business which in any way may beaffected by the functions of his office

iv. be financially interested, directly or indirectly, inany contract with, or in any franchise orprivilege granted by the Government, any of itssubdivisions, agencies or instrumentalities,including GOCCs or their subsidiaries. (Art. IX,sec.2)

2. Composition and Qualifications

CSC COMELEC COAChairman and 2Commissioners(Comm)

Chairman and6 Comm

Chairman and 2Comm

Natural-born citizensAt least 35 years of age

Proven capacity forpublicadministration, andmust not have beencandidates for anyelective position inthe lectionsimmediatelypreceding theirappointment

Holders of acollegedegree, andmust not havebeencandidates forany electiveposition in theimmediatelyprecedingelections

Majority,including theChairman,shall beMembers ofthe PhilippineBar who havebeen engagedin the practiceof law for atleast 10 years

Certified publicaccountantswith not less than10 years auditingexperience, orMembers of thePhilippine Barwho have beenengaged in thepractice of law forat least 10 years,and must nothave beencandidates forany electiveposition in theelectionsimmediatelypreceding theirappointment

At no time shallall Members ofthe Commissionbelong to thesame profession.

Appointed by the President with the consent of theCommission on Appointments for a term of 7 years withoutreappointmentStaggered term ofthose first appointed:a) Chairman 7yearsb) 1 Comm 5yearsc) Other Comm 3years

Staggered termof those firstappointed:a) 3 Members7 yearsb) 2 Members 5 yearsc) Last 2Members 3years

Staggered termof those firstappointed:a) Chairman 7yearsb) 1 Comm 5yearsc) Other Comm 3 years

Appointment to any vacancy shall be only for the unexpiredportion of the term of the predecessor. In no case shall anyMember be appointed or designated in a temporary or actingcapacity.

3. Compensation

Fixed by law and shall not be decreased duringtheir tenure. (sec. 3)

4. Power to Appoint Personnel (sec. 4)

5. Fiscal Autonomy (sec. 5)

6. Rule-Making Power

shall not diminish, increase, or modify substantiverights (sec. 6)

7. Procedure

i. Decision on any case or matter broughtbefore it shall be decided by a majority voteof all its Members within 60 days ofsubmission for decision or resolution

ii. SC has certiorari jurisdiction which a partyaggrieved by any decision, order, or ruling ofeach Commission can invoke within 30 daysfrom receipt of a copy. (sec.16)

8. Other functions provided by law(sec. 8)

At issue was the “no report, no release” policy ofthe DBM which the latter is invoking, in additionto the fact that there is an alleged shortage offunds, to justify the withholding of the balance ofthe CSC’s annual budget. It was held that suchpolicy may not be validly enforced againstoffices vested with fiscal autonomy like theCSC and other Constitutional Commissions.Being “automatic” means that the budgetreleases cannot be made contingent on theperformance of a particular act or the availabilityof funds, otherwise, the constitutional mandate ofautomatic and regular release would besignificantly emasculated.[ CSC v. DBM, (2005)]

B. Civil Service Commission


1. Scope of Civil Service

Art. IX-B, Sec. 2(1). The civil service embraces all branches,subdivisions, instrumentalities, and agencies of theGovernment, including government-owned or controlledcorporations with original charters.

2. Terms and Conditions of GovernmentEmployment

i. Merit-based systemii. No holding of other positionsiii. Standardization of salaryiv. No partisan political activityv. Security of tenure Temporary employees of

the Government shall be given such protection asmay be provided by law.

vi. Right to self-organization (v. Right to strike)

Art. XIII, Sec. 3. [The State] shall guarantee the rights of allworkers to self-organization,…peaceful concertedactivities, including the right to strike in accordance withlaw.


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Art. III, Sec. 8. The right of the people, including thoseemployed in the public and private sectors, to formunions, association, or societies for purposes not contraryto law shall not be abridged.

Art. IX-B, Sec. 2(5). The right to self-organization shall notbe denied to government employees.

Sec. 38, Book V, Title I, Subtitle A, Chapter 6,Administrative Code of 1987.Who: All government employees, including those in GOCCswith original chartersException: (1) members of the AFP, (2) police officers andpolicemen, (3) firemen, (4) jail guards.Scope of right: (1) form, join or assist employees'organizations of their own choosing for the furtherance andprotection of their interests(2) form, in conjunction with appropriate governmentauthorities, labor-management committees, work councilsand other forms of workers' participation schemes to achievethe same objectives

Employees in the Civil Service may not resort tostrikes, walkouts and other temporary workstoppages in order to alter the terms andconditions of their employment, which aregenerally governed and fixed by law. Governmentemployees may, through their unions orassociations, either(1) petition the Congress for the betterment of

the terms and conditions of employmentwhich are within the ambit of legislation, or

(2) negotiate with the appropriate governmentagencies for the improvement of those whichare not fixed by law. If there be anyunresolved grievances, the dispute may bereferred to the Public Sector Labor-Management Council for appropriate action.[SSS Employees’ Association v. CA, (1989)]

3. Disqualifications

i. Candidate who has lost in any election, within 1year after such election, cannot be appointed toany office in the Civil Service;

ii. No elective official shall be eligible forappointment or designation in any capacity to anypublic office or position during his tenure;

iii. No appointive official shall hold any other office oremployment in the Civil Service unless otherwiseallowed by law or by the primary functions of hisposition.

4. Powers and Functions

Art. IX-B, Sec. 3. The Civil Service Commission, as thecentral personnel agency of the Government, shallestablish a career service and adopt measures to promotemorale, efficiency, integrity, responsiveness,progressiveness, and courtesy in the civil service. It shallstrengthen the merit and rewards system, integrate allhuman resources development programs for all levelsand ranks, and institutionalize a management climateconducive to public accountability. It shall submit to thePresident and the Congress an annual report on itspersonnel programs.

5. Salary

i. Standardized compensation, taking into accountthe nature of the responsibilities pertaining to,and the qualifications required for their positions

ii. No additional, double, or indirectcompensation unless specifically authorized bylaw

iii. No elective or appointive public officer oremployee shall accept without the consent ofthe Congress, any present, emolument, office,or title of any kind from any foreign government

C. Commission on Elections



i. Enforce all laws relating to the conduct ofelection:o Recommend to the Congress effective

measures to minimize election spending,and to prevent and penalize all forms ofelection frauds, offenses, malpractices, andnuisance candidacies

o Submit to the President and the Congress, acomprehensive report on the conduct ofeach election, plebiscite, initiative,referendum, or recall

ii. Decide administrative questions pertaining toelection except the right to vote;

iii. File petitions in court for inclusion or exclusion ofvoters;

iv. Investigate and prosecute cases of violations ofelection laws;

v. Recommend pardon, amnesty, parole orsuspension of sentence of election law violators;

vi. Deputize law enforcement agencies andinstrumentalities of the Government for theexclusive purpose of ensuring free, orderly,honest, peaceful, and credible elections;

vii. Recommend to the President the removal of anyofficer or employee it has deputized for violationor disregard of, or disobedience to its directive;

viii. Registration of political parties, organizations andcoalitions and accreditation of citizens’ arms;

ix. Regulation of public utilities and media ofinformation.

The law limits the right of free speech and ofaccess to mass media of the candidatesthemselves. The limitation however, bears aclear and reasonable connection with theobjective set out in the Constitution. For it isprecisely in the unlimited purchase of print spaceand radio and television time that the resourcesof the financially affluent candidates are likely tomake a crucial difference. The purpose is toensure "equal opportunity, time, and space,and the right to reply," as well as uniform andreasonable rates of charges for the use of suchmedia facilities, in connection with "publicinformation campaigns and forums amongcandidates." [National Press Club vs Comelec,(1992)]


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x. Decide election cases

Art. IX-C, Sec. 3. The Commission on Elections may sit enbanc or in two divisions, and shall promulgate its rules ofprocedure in order to expedite disposition of election cases,including pre- proclamation controversies. All such electioncases shall be heard and decided in division, provided thatmotions for reconsideration of decisions shall bedecided by the Commission en banc.

2. Jurisdiction

i. Exclusive original: all contests relating to theelections, returns, and qualifications of all electiveregional, provincial, and city officials

ii. Appellate:o elective municipal officials decided by trial

courts of general jurisdictiono elective barangay officials decided by trial

courts of limited jurisdiction

Once a winning candidate has been proclaimed,taken his oath, and assumed office as a Memberof the House of Representatives, the Comelec’sjurisdiction over election contests relating to hiselection, returns, and qualifications ends, and theHRET’s own jurisdiction begins. [Aggabao vsComelec, (2005)]

Congress cannot make decisions of MTC orMCTC in a barangay election appealable to thetrial court, because Comelec has exclusiveappellate jurisdiction over all contests involvingbarangay elective officials decided by trial courtsof limited jurisdiction. The jurisdiction of theComelec, however, is over questions of fact;questions of law go to the SC. [Flores v. Comelec,(1990)]

D. Commission on Audit

(Asked 1 time in the Bar)


i. Examine, audit, and settle accounts pertaining toGovernment funds or property: its revenue,receipts, expenditures, and useso Post-audit basis: Constitutional bodies,

commissions and offices; Autonomous statecolleges and universities; GOCCs with nooriginal charters and their subsidiaries; Non-governmental entities receiving subsidy orequity, directly or indirectly, from or throughthe Government, which are required by lawor the granting institution to submit suchaudit as a condition of subsidy or equity

ii. Exclusive Authorityo Define the scope of its audit and

examination;o Establish techniques and methods required ;o Promulgate accounting and auditing rules

and regulations.

Art. IX-D, Sec. 3. No law shall be passed exempting anyentity of the Government or its subsidiaries in any guisewhatever, or any investment of public funds, from thejurisdiction of the Commission on Audit.

V. Constitutionally-Mandated Bodies

A. Sandiganbayan


Art. XI, Sec. 4. The present anti-graft court known as theSandigan-bayan shall continue to function and exercise itsjurisdiction as now or hereafter may be provided by law.

Under RA 8249 (AN ACT FURTHER DEFININGTHE JURISDICTION OF THESANDIGANBAYAN, AMENDING FOR THEPURPOSE PRESIDENTIAL DECREE NO. 1606,AS AMENDED, PROVIDING FUNDSTHEREFOR, AND FOR OTHER PURPOSES), todetermine whether the Sandiganbayan hasjurisdiction, one must look into two (2) criteria,namely:1) The nature of the offense, and2) The salary grade of the public official.

To further strengthen the functional and structuralorganization of the Sandiganbayan, severalamendments have been introduced to theoriginal law creating it, the latest of which areRepublic Acts No. 7975 and No. 8249.

Under these new laws, the jurisdiction of theSandiganbayan is now confined to casesinvolving public officials occupying positionsclassified as salary grade 27 and higher.

As restructured, the Sandiganbayan is presentlycomposed of: a Presiding Justice and fourteen (14) Associate Justices

who sit in five (5) Divisions of three Justices each in the trial and determination of

cases.

B. Ombudsman


1. Qualification Natural born citizen at time of appointment At least 40 yrs old With probity and independence Member of the Bar Not a candidate for elective office in

immediately preceding election At least 10 yrs had been a judge OR in

practice of law

2. Appointment JBC to nominate at least 6 for original

Ombudsman JBC to nominate at least 3 for every vacancy

thereafter Vacancies to be filled within 3 months after

occurrence Appointed by the President Appointment needs no confirmation

3. Term 7 yrs without reappointment


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4. RemovalBy impeachment for: culpable violation of the constitution treason bribery graft and corruption other high crimes betrayal of public trust

5. Benefits Ombudsman has rank of Chairman of a

ConCom Enjoys fiscal autonomy Automatic and regular release of funds Salary cannot be decreased during term

6. Powers/DutiesMAIN PURPOSE: protectors of the people Shall act promptly on complaints against

public officials/govt employees AND notifycomplainants of action taken and the result

Investigate on its own or any complaint whenappears to be: Illegal Unjust Improper Inefficient

Direct, on its own or upon complaint, anypublic official/govt employee to: perform and expedite an act/duty

required stop/prevent/correct any abuse or

impropriety of duty Direct the officer concerned to take

appropriate action against the publicofficial/govt employee

Recommend for their: removal suspension demotion fine censure prosecution

Ensure compliance of the recommendation Subject to limitations of law, direct the officer

concerned to furnish copies of relateddocuments/contracts entered by his officeinvolving use of public funds: Further report any irregularity to the

Commission on Audit Request assistance and information from

other govt agencies for the discharge of hisduties

Publicize, with due prudence, matterscovered by investigation, wheneverwarranted

Determine the causes of the ff and makerecommendations for their eradication, andobservance of high standards ofethics/efficiency: Inefficiency Red tape Mismanagement Fraud Govt corruption

Promulgate its rules of procedure Exercise other functions provided by law Declare his assets, liabilities, and net worth

upon assumption of office and when requiredby law

7. Disqualification Cannot hold any other office or employment

during tenure Cannot engage in any profession or active

management/control of any businessaffecting their office

Cannot be financially interested, directly orindirectly, in any contract, franchise, orprivilege granted by the Government or itsagencies/corporations (Sec. 2, Art. IX-A)

Cannot run for any office in the electionimmediately succeeding their term of office

Cannot be granted any financialaccommodation for business purposes,directly or indirectly, within tenure.

C. Commission on Human Rights


1. Composition and Qualifications

Chairman and 4 Memberso natural-born Filipinoso majority shall be members of the Baro The term of office and other qualifications

shall be provided by law.


Investigate, on its own or on complaint by anyparty, all forms of human rights violations involvingcivil and political rights

The Commission can only protect “civil andpolitical rights,” which do not include the lesstraditional social and economic rights. [Simon v.CHR, (1994)]

o Note, however, that the reason for these modestobjectives of the Framers of the Constitution is thedesire not to overburden the CHR during its initialyears. The limitation does not exclude thepossibility of expanding the Commission’s scopelater --- as in fact Section 19 specifically allows(BERNAS).

IMPT: Section 25 of the Universal Declaration ofHuman Rights (UDHR) as well as the InternationalCovenant on Economic, Social, and Cultural Rights(ICESCR) are deemed part of Philippine law pursuantto the Incorporation Clause of the Constitution.

Art. XIII, Sec. 19. The Congress may provide forother cases of violations of human rights that should fallwithin the authority of the Commission, taking intoaccount its recommendations.

The Commission was not meant by thefundamental law to be another court or quasi-judicial agency in this country, or duplicate muchless take over the functions of the latter. It isconceded, however, that the Commission mayinvestigate, i.e., receive evidence and makefindings of fact as regards claimed humanrights violations involving civil and politicalrights. [Cariño v. CHR, (1991)]

POLITICAL LAW REVIEWER Chapter III. NATIONAL ECONOMY and PATRIMONY

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Chapter III. National Economy and Patrimony


I. GENERAL PRINCIPLESA. GOALSB. CITIZENSHIP REQUIREMENTSC. FILIPINO FIRST

II. NATURAL RESOURCESA. REGALIAN DOCTRINEB. EXPLORATION, DEVELOPMENT, UTILIZATIONC. STEWARDSHIP CONCEPT

III. PRIVATE LANDSIV. MONOPOLIESV. CENTRAL MONETARY AUTHORITY

I. General Principles

A. Goals

1. More equitable distribution of opportunities,income and wealth

2. Sustained increase in amount of goods andservices produced by the nation for the benefitof the people

3. Expanding production as the key to raising thequality of life for all, especially theunderprivileged.

B. Citizenship Requirements

100% Filipino 60-40 70-30Marine Wealth[Art. XII, Sec. 2,par. 2]

Natural Resources[Art. XII, Sec. 2,par. 1](Co-production,Joint venture,Production sharingagreemenents)

Agreements shallnot exceed aperiod of 25 yearsrenewable foranother 25 years.

AdvertisingIndustry [Art.XVI, Sec. 11]

Agricultural lands[Art. XII, Sec. 3]o Lease: < 500

ha.o Purchase,

homesteador grant: < 12ha.

o Privatecorpora-tionsmay leasenot morethan 1,000ha. for 25years,renewable foranother 25years.

EducationalInstitutions [Art.XIV, Sec. 4(2)]

Practice ofprofessions [Art.XII, Sec. 14]

Areas ofInvestment asCongress mayprescribe(percentage canbe higher) [Art.XII, Sec. 10]

100% Filipino 60-40 70-30Small-scaleutilization ofnatural resources(as may beprovided by law)[Art. XII, Sec. 2,par. 3]

Operation ofpublic utility [Art.XII, Sec. 11]o Cannot be for

longer periodthan 50 years

o Executiveandmanagingofficers mustbe Filipino

A public utility is a business or service engaged inregularly supplying the public with some commodity orservice of public consequence. A joint venture fallswithin the purview of an “association” pursuant to Sec.11, Art. XII; thus a joint venture which would engage inthe business of operating a public utility must complywith the 60%-40% Filipino-foreign capitalizationrequirement. [JG Summit Holdings v. CA, (2000)]

C. Filipino First

Art. XII, Sec. 10. In the grant of rights, privileges, andconcessions covering the national economy and patrimony,the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreigninvestments within its national jurisdiction and in accordancewith its national goals and priorities.

The term “patrimony” pertains to heritage, and giventhe history of the Manila Hotel, it has become a part ofour national economy and patrimony. Thus, the FilipinoFirst policy provision of the Constitution is applicable.Such provision is per se enforceable, and requires nofurther guidelines or implementing rules or laws forits operation. [Manila Prince Hotel v. GSIS, (1997)]

Art. XII, Sec. 12. The State shall promote the preferentialuse of Filipino labor, domestic materials and locally producedgoods, and adopt measures that help make themcompetitive.

II. Natural Resources

A. Regalian Doctrine [Jura Regalia]

The King had title to all the land in the Philippinesexcept so far as it saw fit to permit private titles tobe acquired.. [Cariño v. Insular Government,(1909)]

As in previous Constitutions, the 1987Constitution adheres to this doctrine as illustratedby this section:

Art. XII, Sec. 2. All lands of the public domain, waters,minerals, coal, petroleum, and other mineral oils, all forces ofpotential energy, fisheries, forests or timber, wildlife, floraand fauna, and other natural resources are owned by theState. With the exception of agricultural lands, all othernatural resources shall not be alienated.

Under the Regalian Doctrine, all lands not otherwiseclearly appearing to be privately owned are presumedto belong to the State. The classification of public landsis an exclusive prerogative of the Executive Departmentthrough the Office of the President. [Republic v.Register of Deeds of Quezon, (1994)]


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B. Exploration, Development, and Utilization

Art. XII, Sec. 2, par. 4. The President may enter intoagreements with foreign-owned corporations involvingeither technical or financial assistance for large-scaleexploration, development, and utilization of minerals,petroleum, and other mineral oils according to the generalterms and conditions provided by law, based on realcontributions to the economic growth and general welfare ofthe country. In such agreements, the State shall promote thedevelopment and use of local scientific and technicalresources.

The State, being the owner of the natural resources,is accorded the primary power and responsibility inthe exploration, development and utilization thereof.As such it may undertake these activities through fourmodes:(1) The State may directly undertake such activities;(2) The State may enter into co-production, joint

venture or production-sharing agreements withFilipino citizens or qualified corporations;

(3) Congress may, by law, allow small-scaleutilization of natural resources by Filipino citizens;or

(4) For the large-scale exploration, development andutilization of minerals, petroleum and othermineral oils, the President may enter intoagreements with foreign-owned corporationsinvolving technical or financial assistance.[[La Bugal-B’Laan Tribal Assn. v. Ramos,(Jan,2004)]

FTAA(1987 Const.)

SERVICECONTRACT(1973 Const.)

Parties Only thePresident (inbehalf of theState), and onlywithcorporations

A Filipino citizen,corporation orassociation with a“foreign person orentity”

Size ofActivities

Only large-scaleexploration,development andutilization

Contractor providesall necessaryservices andtechnology and therequisite financing,performs theexploration workobligations, andassumes allexploration risks

NaturalResourcesCovered

Minerals,petroleum andother mineral oils

Virtually the entirerange of thecountry’s naturalresources

Scope of theAgreements

Involving eitherfinancial ortechnicalassistance

Contractor providesfinancial or technicalresources,undertakes theexploitation orproduction of agiven resource, ordirectly managesthe productiveenterprise,operations of theexploration andexploitation of theresources or thedisposition of

FTAA(1987 Const.)

SERVICECONTRACT(1973 Const.)marketing orresources

Following this framework, the SC declared thefollowing provisions of the Philippine Mining Act of1995 (RA 7942) unconstitutional for being contraryto Sec. 2, Art. XII of the 1987 Constitution:a. The proviso in Sec. 3(aq), which defines a

“qualified person”, to wit: Provided, That a legallyforeign-owned corporation shall be deemed aqualified person for purposes of granting anexploration permit, FTAA or mineral processingpermit

b. Sec. 23, which specifies the rights andobligations of an exploration permit grantee

c. Sec. 33, which prescribes the eligibility of acontractor in an FTAA

d. Sec. 35, which enumerates the terms andconditions for every FTAA

e. Sec. 39, which allows the contractor to convertthe FTAA into a mineral production-sharingagreement (MPSA)

f. Sec. 56, which authorizes the issuance of amineral processing permit to a contractor in anFTAA

The following provisions of the same Act werelikewise deemed void as they are dependent on theforegoing provisions and cannot stand on their own:a. Section 3 (g), which defines the term “contractor,”

insofar as it applies to a financial or technicalassistance agreement;

b. Section 34, which prescribes the maximumcontract area in a financial or technicalassistance agreements;

c. Section 36, which allows negotiations for financialor technical assistance agreements;

d. Section 37, which prescribes the procedure forfiling and evaluation of financial or technicalassistance agreement proposals;

e. Section 38, which limits the term of financial ortechnical assistance agreements;

f. Section 40, which allows the assignment ortransfer of financial or technical assistanceagreements;

g. Section 41, which allows the withdrawal of thecontractor in an FTAA;

h. The second and third paragraphs of Section 81,which provide for the Government’s share in afinancial and technical assistance agreement;

i. Section 90, which provides for incentives tocontractors in FTAAs insofar as it applies to saidcontractors;

The Court then struck down the Financial andTechnical Assistance Agreement (FTAA) entered intobetween the Government and Western MiningCorporation (Phils.), Inc. (WMCP) for being similar toservice contracts, previously allowed under the 1973Constitution but which are now proscribed under the1987 Constitution.

On motion for reconsideration, the SC reversedits original decision and upheld the


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constitutionality of the subject FTAA, the MiningLaw, and its Implementing Rules.

The Constitution should be read in broad, life-givingstrokes. It should not be used to strangulateeconomic growth or to serve narrow, parochialinterests. Rather, it should be construed to grant thePresident and Congress sufficient discretion andreasonable leeway to enable them to attract foreigninvestments and expertise, as well as to secure forour people and our posterity the blessings ofprosperity and peace. The Court fully sympathize withthe plight of La Bugal B’laan and other tribal groups,and commend their efforts to uplift their communities.However, the Court cannot justify the invalidationof an otherwise constitutional statute along withits implementing rules, or the nullification of anotherwise legal and binding FTAA contract.

The Court believes that it is not unconstitutional toallow a wide degree of discretion to the ChiefExecutive, given the nature and complexity of suchagreements, the humongous amounts of capital andfinancing required for large-scale mining operations,the complicated technology needed, and theintricacies of international trade, coupled with theState’s need to maintain flexibility in its dealings, inorder to preserve and enhance our country’scompetitiveness in world markets. On the basis of thiscontrol standard, the Court upholds theconstitutionality of the Philippine Mining Law, itsImplementing Rules and Regulations -- insofar asthey relate to financial and technical agreements -- aswell as the subject Financial and TechnicalAssistance Agreement (FTAA). [La Bugal-B’laanTribal Assn. v. Ramos, (Dec. 2004)]

C. Stewardship Concept

Art. XII, Sec. 6. The use of property bears a social function,and all economic agents shall contribute to the commongood.

Individuals and private groups, including corporations,cooperatives, and similar collective organizations, shall havethe right to own, establish, and operate economicenterprises, subject to the duty of the State to promotedistributive justice and to intervene when the common goodso demands.

Art. XIII, Sec. 6. The State shall apply the principles ofagrarian reform or stewardship, whenever applicable inaccordance with law,

in the disposition or utilization of other natural resources,including lands of the public domain under lease orconcession suitable to agriculture,

subject to prior rights, homestead rights of small settlers, andthe rights of indigenous communities to their ancestral lands.

III. Private Lands

A. General Rule

No private lands shall be transferred or conveyedexcept to individuals, corporations, or associationsqualified to acquire or hold lands of the public domain.(Art. XII, sec. 7)

B. Exceptions

i. Hereditary succession(Art. XII, sec. 7)

ii. A natural-born citizen of the Philippines who haslost his Philippine citizenship may be a transfereeof private lands, subject to limitations provided bylaw.(Art. XII, sec. 8)

IV. Monopolies

Art. XIII, Sec. 19. The State shall regulate or prohibitmonopolies when the public interest so requires. Nocombinations in restraint of trade or unfair competition shallbe allowed.

Although the Constitution enshrines freeenterprise as a policy, it nevertheless reserves tothe Government the power to intervene whenevernecessary for the promotion of the generalwelfare. [Philippine Coconut Dessicators v. PCA,(1998)]

Monopolies are not per se prohibited by theConstitution but may be permitted to exist to aidthe government in carrying on an enterprise or toaid in the performance of various services andfunctions in the interest of the public.Nonetheless, a determination must first be madeas to whether public interest requires amonopoly. As monopolies are subject to abusesthat can inflict severe prejudice to the public, theyare subject to a higher level of State regulationthan an ordinary business undertaking. [Agan, Jr.v. PIATCO, (2003)]

V. Central Monetary Authority

[Art. XII, Sec. 20]

Functions:

1. Provide policy directions in the areas of money,banking, and credit;

2. Supervise the operations of banks;

3. Exercise such regulatory powers as may beprovided by law over the operations of financecompanies and other institutions performingsimilar functions

Qualifications of the Governors:

1. Natural-born Filipino;2. Known probity, integrity and patriotism;3. Majority shall come from the private sector

Subject to such other qualifications anddisabilities as may be provided by law

Until the Congress otherwise provides, the CentralBank of the Philippines operating under existing laws,shall function as the central monetary authority.

POLITICAL LAW REVIEWER Chapter IV. CURRENT EVENTS and SPECIAL TOPICS

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Chapter IV. Current Events and SpecialTopics

I. PARTY-LIST SYSTEMII. QUESTION HOUR V. INQUIRIES IN AID OF

LEGISLATIONIII. EXECUTIVE PRIVILEGEIV. PEOPLE’S INITIATIVEV. RIGHT OF REPLY BILLVI. THE (ERSTWHILE) PROVINCE OF SHARIFF

KABUNSUANVII. MOA ON ANCESTRAL DOMAIN (MOA-AD)

I. Party-List System

The SC laid down the following guidelines forscreening party-list participants ---

1) The parties must represent the marginalized andunderrepresented.

2) Major political parties must comply with thisstatutory policy

3) Religious sects are prohibited by the Constitution4) The party must not be disqualified under RA 79415) The part must not be an adjunct of an entity or

project funded by the government6) The party and its nominees must comply with the

requirements of the law7) The members must come from the marginalized

and underrepresented sectors8) The nominee must be able to contribute to the

formulation and enactment of appropriatelegislation that will benefit the nation

9) Their nominees must come from the same party.[Ang Bagong Bayani v. Comelec, (2001)]

The Legal and Logical Formula for the Philippines

Step One. The initial step is to rank all theparticipating parties, organizations and coalitionsfrom the highest to the lowest based on thenumber of votes they each received. Then the ratiofor each party is computed by dividing its votesby the total votes cast for all the partiesparticipating in the system. All parties with at leasttwo percent of the total votes are guaranteed oneseat each. Only these parties shall be considered inthe computation of additional seats. The partyreceiving the highest number of votes shallthenceforth be referred to as the “first” party.

Step Two. The next step is to determine the numberof seats the first party is entitled to, in order to be ableto compute that for the other parties. Since thedistribution is based on proportional representation,the number of seats to be allotted to the otherparties cannot possibly exceed that to which thefirst party is entitled by virtue of its obtaining themost number of votes.

For example, the first party received 1,000,000 votesand is determined to be entitled to two additionalseats. Another qualified party which received 500,000votes cannot be entitled to the same number of seats,since it garnered only fifty percent of the votes won bythe first party. Depending on the proportion of itsvotes relative to that of the first party whose number

of seats has already been predetermined, the secondparty should be given less than that to which the firstone is entitled.

The other qualified parties will always be allottedless additional seats than the first party for tworeasons:(1) the ratio between said parties and the first party

will always be less than 1:1, and(2) the formula does not admit of mathematical

rounding off, because there is no such thing as afraction of a seat.

Verily, an arbitrary rounding off could result in aviolation of the twenty percent allocation. Anacademic mathematical demonstration of suchincipient violation is not necessary because thepresent set of facts, given the number of qualifiedparties and the voting percentages obtained, willdefinitely not end up in such constitutionalcontravention.

The Court has previously ruled in Guingona Jr. v.Gonzales that a fractional membership cannot beconverted into a whole membership of one when itwould, in effect, deprive another party's fractionalmembership. It would be a violation of theconstitutional mandate of proportional representation.We said further that "no party can claim more thanwhat it is entitled to x x x.” [Veterans Federation Partyv. Comelec, (2000)]

Formula for Determining Additional Seats for theFirst Party

The formula for computing the number of seats to whichthe first party is entitled is as follows:

Number of votesof first party

------------------Total votes for

party-list system

=

Proportion of votesrelative to total votes

for party list

If the proportion of votes received by the firstparty without rounding it off is equal to at least sixpercent of the total valid votes cast for all theparty list groups, then the first party shall beentitled to two additional seats or a total of threeseats overall. If the proportion of votes without arounding off is equal to or greater than four percent,but less than six percent, then the first party shallhave one additional or a total of two seats. And if theproportion is less than four percent, then the first partyshall not be entitled to any additional seat.

Note that the above formula will be applicable only indetermining the number of additional seats the firstparty is entitled to. It cannot be used to determine thenumber of additional seats of the other qualifiedparties. As explained earlier, the use of the sameformula for all would contravene the proportionalrepresentation parameter.


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Formula for Additional Seats of Other QualifiedParties

Step Three. The next step is to solve for the numberof additional seats that the other qualified parties areentitled to, based on proportional representation. Theformula is encompassed by the following complexfraction:

Additional seatsfor concerned

party=

No. of votes ofconcerned party

---------------No. of votes ofthe first party

xNo. of additionalseats allocated

to first party

Incidentally, if the first party is not entitled to anyadditional seat, then the ratio of the number ofvotes for the other party to that for the first one ismultiplied by zero. The end result would be zeroadditional seats for each of the other qualifiedparties as well.

The above formula does not give an exactmathematical representation of the number ofadditional seats to be awarded since, in order to beentitled to one additional seat, an exact whole numberis necessary. In fact, most of the actual mathematicalproportions are not whole numbers and are notrounded off for the reasons explained earlier.

To repeat, rounding off may result in the awarding of anumber of seats in excess of that provided by the law.

Furthermore, obtaining absolute proportionalrepresentation is restricted by the three-seat-per-partylimit to a maximum of two additional slots. An increasein the maximum number of additional representativesa party may be entitled to would result in a moreaccurate proportional representation. But the law itselfhas set the limit: only two additional seats. Hence, weneed to work within such extant parameter. [VeteransFederation Party v. Comelec, (2000)]

SC declared the 2%-threshhold used for computingthe allocation of additional seats under the VeteransFormula, pursuant to Sec. 11, RA 7941,unconstitutional, because it renders the attainmentof the maximum number of available party seatsmathematically impossible once the available party listseats exceeds 50, as in the present state of the law,where 55 seats are available to party-listrepresentatives.

In determining the allocation of seats forparty-list representatives under Section 11 ofR.A. No. 7941, the following procedure shallbe observed:

1. The parties, organizations, and coalitions shall beranked from the highest to the lowest based onthe number of votes they garnered during theelections.

2. The parties, organizations, and coalitionsreceiving at least two percent (2%) of the totalvotes cast for the party-list system shall beentitled to one guaranteed seat each.

3. Those garnering sufficient number of votes,according to the ranking in paragraph 1, shall beentitled to additional seats in proportion to their

total number of votes until all the additional seatsare allocated.

4. Each party, organization, or coalition shall beentitled to not more than three (3) seats.

In computing the additional seats, the guaranteedseats shall no longer be included because they havealready been allocated, at one seat each, to everytwo-percenter. Thus, the remaining available seatsfor allocation as “additional seats” are the maximumseats reserved under the Party List System less theguaranteed seats. Fractional seats are disregarded inthe absence of a provision in R.A. No. 7941 allowingfor a rounding off of fractional seats.

The three-seat cap, as a limitation to the number ofseats that a qualified party-list organization mayoccupy, remains a valid statutory device that preventsany party from dominating the party-list elections.

However, by a vote of 8-7, the Court decided tocontinue the ruling in Veterans disallowing majorpolitical parties from participating in the party-listelections, directly or indirectly. [Barangay Associationfor National Advancement and Transparency(BANAT) v. Comelec, (2009)]

Puno, C.J., Concurring and Dissenting Opinion:

Limiting the party-list system to the marginalized andexcluding the major political parties from participatingin the election of their representatives is aligned withthe constitutional mandate to “reduce social,economic, and political inequalities, and removecultural inequalities by equitably diffusing wealth andpolitical power for the common good”.

The evils that faced our marginalized andunderrepresented people at the time of the framing ofthe 1987 Constitution still haunt them today. It isthrough the party-list system that the Constitutionsought to address this systemic dilemma. In ratifyingthe Constitution, our people recognized how theinterests of our poor and powerless sectoral groupscan be frustrated by the traditional political partieswho have the machinery and chicanery to dominateour political institutions. If we allow major politicalparties to participate in the party-list system electoralprocess, we will surely suffocate the voice of themarginalized, frustrate their sovereignty and betraythe democratic spirit of the Constitution.

Nachura, J., Separate Opinion:

The inflexible 2% threshold vote required forentitlement by a party-list group to a seat in the Houseof Representatives in Republic Act (R.A.) No. 7941 isunconstitutional.

This minimum vote requirement ─ fixed at 2% of thetotal number of votes cast for the party list system ─presents an unwarranted obstacle to the fullimplementation of Section 5 (2), Article VI, of thePhilippine Constitution.

As such, it effectively defeats the declaredconstitutional policy, as well as the legislative


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objective expressed in the enabling law, to allow thepeople’s broadest representation in Congress, theraison d’etre for the adoption of the party-list system.

A legal provision that poses an insurmountable barrierto the full implementation and realization of theconstitutional provision on the party-list system shouldbe declared void.

I submit that, until Congress shall have effected anacceptable amendment to the minimum voterequirement in R.A. 7941, we abide by the sensiblestandard of “proportional representation” and adopt agradually regressive threshold vote requirement,inversely proportional to the increase in thenumber of party-list seats.

Thus, at present, considering that there are 55 seatsallocated for party-list groups, the formula should be:

100%(Total # of votes cast for party-list)

55 party-list seats = 1.818%

The minimum vote requirement will graduallylessen as the number of party-list seats increases.Accordingly, if the scenario we presented aboveshould ever come to pass, and there are 100 seatsallocated for party-list groups, then the threshold voteshould be 1%, based on the following computation:

100%(Total # of votes cast for party-list)

100 party-list seats = 1%

II. Question Hour v. Inquiries In Aid ofLegislation

Macalintal v. Comelec, (2003), Puno, C.J.,Concurring and Dissenting Opinion:

Categories of Congressional Oversight Functions

A. Scrutiny

1. Primary purpose is to determine economy andefficiency of the operation of governmentactivities

2. In the exercise of legislative scrutiny, Congressmay request information and report from theother branches of government.

3. based primarily on the power of appropriation ofCongress

4. Congress can ask the heads of departments toappear before and be heard by either House ofCongress on any matter pertaining to theirdepartments.

Art. VI, Sec. 22. The heads of departments may, upon theirown initiative, with the consent of the President, or upon therequest of either House, as the rules of each House shallprovide, appear before and be heard by such House on anymatter pertaining to their departments. Written questionsshall be submitted to the President of the Senate or theSpeaker of the House of Representatives at least three daysbefore their scheduled appearance. Interpellations shall notbe limited to written questions, but may cover matters relatedthereto. When the security of the State or the public interestso requires and the President so states in writing, theappearance shall be conducted in executive session

o Under the 1973 Constitution, a similar provisionexpressly referred to this appearance as the“question hour”. In contrast to such provision,however, the tenor of its counterpart in thepresent Constitution is merely permissive. Hence,the President may or may not consent to theappearance of the heads of departments; andeven if he does, he may require that theappearance be in executive session.Reciprocally, Congress may refuse the initiativetaken by a department secretary.

5. Likewise, Congress exercises legislative scrutinythru its power of confirmation.

B. Congressional Investigation

Art. VI, Sec. 21. The Senate or the House ofRepresentatives or any of its respective committee mayconduct inquiries in aid of legislation in accordance withits duly published rules of procedure. The rights of personsappearing in or affected by such inquiries shall be respected.

o Limitationsi. Must be in aid of legislative functionsii. Must be conducted in accordance with duly

published rules of procedureiii. Persons appearing therein are afforded their

constitutional rights

Although there is no provision in the Constitutionexpressly investing either House of Congresswith power to make investigations and exacttestimony to the end that it may exercise itslegislative functions advisedly and effectively,such power is so far incidental to the legislativefunction as to be implied. In other words, thepower of inquiry — with process to enforce it — isan essential and appropriate auxiliary to thelegislative function. A legislative body cannotlegislate wisely or effectively in the absence ofinformation respecting the conditions whichlegislation is intended to affect or change; andwhere the legislative body does not itself possessthe requisite information — which is notfrequently true — recourse must be had to otherswho do possess it. [Arnault v. Nazareno, (1950)]

C. Legislative Supervision

Congress exercises supervision over the executiveagencies through its veto power.

It typically utilizes veto provisions when granting thePresident or an executive agency the power topromulgate regulations with the force of law. Theseprovisions require the President or an agency topresent the proposed regulations to Congress, whichretains a “right” to approve or disapprove anyregulation before it takes effect.


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III. Executive Privilege

Citing American sources, the SC defined andexplained “executive privilege” as follows ---

(1) It is the right of the President and high-levelexecutive branch officers to withhold informationfrom Congress, the courts, and ultimately thepublic;

(2) It takes on various forms, whereby U.S.Presidents invoke it in order to prevent asubversion of crucial military or diplomaticobjectives, or to protect the identity of informers,or to maintain the internal nature of theformulation of governmental decisions andpolicies;

(3) It is based on the constitutional doctrine ofseparation of powers. [Senate v. Ermita, (2006)]

exempts the executive from disclosurerequirements applicable to the ordinary citizen ororganization

where such exemption is necessary to thedischarge of highly important executiveresponsibilities involved in maintaininggovernmental operations, and

extends not only to military and diplomaticsecrets but also to documents integral to anappropriate exercise of the executive domesticdecisional and policy making functions, that is,those documents reflecting the frank expressionnecessary in intra-governmental advisory anddeliberative communications. [Neri v Senate(2008)]

Two kinds of executive privilege:[citing In re: Sealed Case]

1. Presidential Communications Privilege2. Deliberative Process Privilege

Presidential Communications Deliberative ProcessScope Communications, documents or other materials that reflect

presidential decision-making and deliberations and that thePresident believes should remain confidentialo applies to documents in their entirety, and covers final and post-

decisional materials as well as pre-deliberative ones

Advisory opinions, recommendationsand deliberations comprising part of aprocess by which governmentaldecisions and policies are formulated.

Who arecovered

President operational proximity test: meant to encompass only those

functions that form the core of presidential authority, involvingwhat the court characterized as “quintessential and non-delegable

Executive officials

Basis Rooted in the constitutional principle of separation of power andthe President’s unique constitutional role

Common law privilege

Elements 1. The protected communication must relate to a “quintessentialand non-delegable presidential power.”

2. The communication must be authored or “solicited and received”by a close advisor of the President or the President himself.The judicial test is that an advisor must be in “operationalproximity” with the President.

3. The presidential communications privilege remains a qualifiedprivilege that may be overcome by a showing of adequateneed, such that the information sought “likely contains importantevidence” and by the unavailability of the information elsewhereby an appropriate investigating authority.

How does one draw the line, or balance, thecompeting claims of the presidency and thelegislature?o Citing Senate v. Ermita (2006), the Court

held that “the oversight function ofCongress may be facilitated bycompulsory process only to the extentthat it is performed in pursuit oflegislation.”

o It is conceded that it is difficult to draw theline between an inquiry in aid of legislationand an inquiry in the exercise of oversightfunction of Congress. In this regard, muchwill depend on the content and the mannerthe inquiry is conducted.


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IV. People’s Initiative

Lambino v. COMELEC (2006):In Santiago v. COMELEC (1997), the SC declaredRA. 6735 on People’s Initiative to be “incomplete,inadequate, or wanting in essential terms andconditions insofar as initiative on amendments to theConstitution is concerned.”

The Lambino petition seeks to use the same law for anew people’s initiative in order to convert the presentgovernment set-up into a parliamentary-unicameralsystem.

Held:o The Court held that the Santiago decision need

not be revisited. The Lambino petition warrantedoutright dismissal for failure to comply with thebasic requirement of Section 2, Art. XVII suchthat an affirmation or reversal of Santiago will notchange the outcome of the case.

o The Lambino petition failed to comply because:a) the initiative petition did not present the full

text of the proposed amendments, andb) the proposed changes constituted revision,

not amendment.

o The essence of amendments “directly proposedby the people through initiative upon petition” isthat the entire proposal on its face is a petition bythe people. This means the 2 essentialelements must be present:1) The people must author and thus sign the

entire proposal. No agent or representativecan sign on their behalf.

2) As an “initiative upon a petition”, the proposalmust be embodied in the petition.

o Further, a people’s initiative could only proposeamendments, not revisions. Only a Congress ora Constitutional Convention can propose bothamendments and revisions to the Constitution. Achange in the form of government—frompresidential and bicameral to parliamentary andunicameral—constitutes revision and not merelyan amendment.

V. Right of Reply

Highlights of House Bill No. 3306

A. To Whom the Right to Reply is Granted

1. All persons accused of any crime or offensedefined by law, or

2. Criticized by innuendo, suggestion or rumor forany lapse in behavior in public or private life.

B. Where Reply is Published or Broadcast

1. Same space of the printed media whereaccusation or criticism was published

2. Same program where accusation or criticism wasbroadcast Media covered include websites and any

electronic devices

C. When Reply is Published or Broadcast

Not later than 1 day after the reply shall have beendelivered to the editorial office of the publicationconcerned or to the station that carried the broadcastbeing replied to.

D. Length of Reply

Not longer than the accusation or criticism.

E. Other Provisions

1. It is the obligation of the publication orbroadcast network which featured theaccusations against a person, if the latter iseventually cleared of the crime alluded to him, tocorrect its previous report.

2. The publication or broadcasting of the reply shallbe free of charge, payment or fees.

3. Failure or refusal to publish or broadcast a replyor the correction of an erroneous news item iscarries penal sanctions consisting of both finesand imprisonment.

4. The publication of the reply or correction does notpreclude recourse to the exercise of other legalrights and remedies available to the partyconcerned.


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VI. The (Erstwhile) Province of ShariffKabunsuan

Sema v. Comelec, (2008):

Facts:o The ARMM's legislature, the ARMM Regional

Assembly, exercising its power to createprovinces under Section 19, Article VI of RA9054, enacted Muslim Mindanao Autonomy ActNo. 201 (MMA Act 201) creating the Province ofShariff Kabunsuan.

o The province was composed of the eightmunicipalities in the first district of Maguindanaoand the City of the Cotabato. However, CotabatoCity, though part of the first legislative district ofMaguindanao, voted against its inclusion in theARMM in the plebiscite held in November 1989.

Issue: WON the ARMM Regional Assembly cancreate the Province of Shariff Kabunsuan.

Held:1. There is no provision in the Constitution that

conflicts with the delegation to regional legislativebodies of the power to create municipalitiesand barangays, provided the provisions ofSection 10, Article X of the Constitution isfollowed.

However, the creation of provinces and citiesis another matter.

Section 5 (3), Article VI of the Constitutionprovides, “Each city with a population of at leasttwo hundred fifty thousand, or each province,shall have at least one representative” in theHouse of Representatives.

Similarly, Section 3 of the Ordinance appended tothe Constitution provides, “Any province that mayhereafter be created, or any city whosepopulation may hereafter increase to more thantwo hundred fifty thousand shall be entitled in theimmediately following election to at least oneMember.

Thus, the power to create a province or cityinherently involves the power to create alegislative district.

The creation of the ARMM, and the grant oflegislative powers to its Regional Assembly underits organic act, did not divest Congress of itsexclusive authority to create legislativedistricts. To allow the ARMM Regional Assemblyto create a national office is to allow its legislativepowers to operate outside the ARMM’s territorialjurisdiction.

This violates Section 20, Article X of theConstitution which expressly limits the coverageof the Regional Assembly’s legislative powers“[w]ithin its territorial jurisdiction x x x.”

Thus, the creation of the Province of ShariffKabunsuan without a legislative district isunconstitutional.

2. Only Congress can create provinces andcities because the creation of provinces andcities necessarily includes the creation oflegislative districts, a power only Congresscan exercise under Section 5, Article VI of theConstitution and Section 3 of the Ordinanceappended to the Constitution. The ARMMRegional Assembly cannot create a provincewithout a legislative district because theConstitution mandates that every province shallhave a legislative district. Thus, MMA Act 201,enacted by the ARMM Regional Assembly andcreating the Province of Shariff Kabunsuan, isvoid.

VII. MOA on Ancestral Domain (MOA-AD)

Province of North Cotabato v. GRP, Esperon(2008)

Facts:

In lieu of the historical hostilities occurring inMindanao perpetrated by Muslim secessionist groupsand the failure of a number of peace talks entered intobetween the government and the MNLF (the MILFbroke away from MNLF and continued armedhostilities), President Arroyo issued Executive OrderNo.3 defining the policy and administrative structurefor the government’s comprehensive peace effort.

Later on, she issued Memorandum of Instructions tothe GRP Peace Panel providing the GeneralGuidelines on the Peace Talks with the MILF.Pursuant to this, the MILF and the AFP suspended allmilitary actions and began the peace talks. Butdespite two rounds of formal peace talks, violence stillensued.

Later on, the GRP and the MILF again agreed to acessation of hostilities to give way to exploratory talksto be conducted in Kuala Lumpur. The exploratorytalks culminated in the drafting of the subject of MOA-AD intended to be signed on August 5, 2008 in KualaLumpur.

Petitioners wanted to secure copies of the MOA butthey were denied. They filed petitions which resultedto a cease and desist order from the Supreme Courtrestraining the government to sign the MOA-AD andprompted the SolGen to submit to the court the finaldraft of the MOA-AD.

Later on, the Executive Department pronounced that itwould not longer sign the MOA-AD and dissolved theGRP Peace Panel.

Petitioners still filed 13 petitions assailing theconstitutionality of the MOA-AD arguing that thereremains a justiciable controversy to resolve.

Held:Concrete acts under the MOA-AD are not necessaryto render the present controversy ripe. In Pimentel, Jr.v. Aguirre (2000), this Court held that the mereenactment of the questioned law or the approval of


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the challenged action ripened the dispute to a judicialcontroversy even without any other overt act. By thesame token, when an act of the President, who in ourconstitutional scheme is a coequal of Congress, isseriously alleged to have infringed the Constitutionand the laws, settling the dispute becomes the dutyand the responsibility of the courts.Contrary to the contention of the respondents, thenon-signing of the MOA-AD and the eventualdissolution of the GRP Peace Panel did not moot thepresent petitions. It bears emphasis that the signing ofthe MOA-AD did not push through due to the Court'sissuance of a Temporary Restraining Order.Likewise, the MOA-AD cannot be considered a mere"list of consensus points," especially given itsnomenclature, the need to have it signed or initialedby all the parties concerned on August 5, 2008, andthe far-reaching Constitutional implications ofthese "consensus points," foremost of which is thecreation of the BJE. In fact, there is a commitment onthe part of respondents to amend and effectnecessary changes to the existing legal framework forcertain provisions of the MOA-AD to take effect.Consequently, the present petitions are not confinedto the terms and provisions of the MOA-AD, but toother on-going and future negotiations andagreements necessary for its realization. Thepetitions have not, therefore, been rendered moot andacademic simply by the public disclosure of the MOA-AD, the manifestation that it will not be signed as wellas the disbanding of the GRP Panel not withstanding.Moreover, these petitions are imbued with paramountpublic interest, involving a significant part of thecountry's territory and the wide-ranging politicalmodifications of affected LGUs. The assertion that theMOA-AD is subject to further legal enactmentsincluding possible Constitutional amendments morethan ever provides impetus for the Court to formulatecontrolling principles to guide the bench, the bar,the public and, in this case, the government andits negotiating entity.

Also:1. The Presidential Adviser on Peace Process,

General Esperon, committed grave abuse ofdiscretion when he failed to carry out thepertinent consultation process as required by EO3, RA 7160 (LGC) and RA 8371 (IPRA).

2. The MOA-AD cannot be reconciled with theConstitution and laws, particularly the associativerelationship envisioned between GRP and BJE.Therefore, it is unconstitutional.

3. The clause on the MOA-AD that “inconsistentprovisions will not take effect until the frameworkis amended” does not cure the MOA-AD’sunconstitutionality.

4. Respondent’s act of guaranteeing theamendments is, by itself, already a constitutionalviolation.

Nachura’s Dissent:

In light of supervening events, there is no more actualcase or controversy to be resolved. There can be noviolation of the Constitution because the MOA-ADwas not consummated. On the substantive aspect,Nachura believed that the constitutionality of theMOA-AD should be viewed from the perspective ofexecutive power. As Chief Executive andCommander-in-Chief, there is an implied power givento the President as protector of peace. Implied fromthe calling out power of the President which does notrequire existence of actual invasion or rebellion, thePresident may exercise not only emergency powers,but day-to-day problems of maintaining peace andorder and ensuring domestic tranquility. The mandateof the GRP Peace Panel emanated from ExecutiveOrder No. 3 which was issued pursuant to the powerof the President to maintain peace and order.

- end of Constitutional Law I -


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CONSTITUTIONAL LAW IITable of Contents

Chapter I. Bill of Rights .................................58I. In General ...........................................58II. Bases and Purpose.............................59

A. Bases: .............................................59III. Accountability ......................................59

Chapter II. Fundamental Powers ..................60of the State......................................................60

I. Police Power .......................................60A. Definition .........................................60

II. Eminent Domain..................................63A. Definition .........................................63B. Who May Exercise..........................63C. Requisites .......................................64

III. Taxation ..............................................65A. Definition and Scope.......................65B. Who May Exercise.........................65C. Limitations.......................................65D. Double Taxation..............................66

Chapter III. Due Process................................67I. In General ...........................................67II. Substantive Due Process....................67

A. Scope..............................................68B. Requisites .......................................68C. Doctrines.........................................68

III. Procedural Due Process .....................69A. Scope..............................................69B. Kinds ...............................................69

IV. Due Process As Limitation OnFundamental State Powers .........................70

A. Vis-à-vis Police Power ....................70B. Vis-à-vis Eminent Domain ..............70C. Vis-à-vis Power to Tax....................71

Chapter IV. Equal Protection of the Laws....72I. Definition and Scope of Protection......72II. Requisites of Valid Classification ........72III. Examples of Valid Classification .........72

A. Aliens ..............................................72B. Filipino Female Domestics WorkingAbroad .....................................................73C. Land-based vs. Sea-based FilipinoOverseas Workers...................................73D. Qualification for Elective Office.......73E. Office of the Ombudsman...............73F. Print vs. Broadcast Media...............73

IV. Standards of Judicial Review..............73A. “Rational Basis Test” ......................73B. “Strict Scrutiny Test” .......................73C. “Intensified Means Test” .................73

Chapter V. Requirements for Fair Procedure.........................................................................74

I. Nature and Scope ...............................74II. ARREST..............................................74

A. Requisites for Issuance of a ValidArrest Warrant .........................................74B. Requisites of a Valid WarrantlessArrest (Rule 113, Sec. 5, Rules on CriminalProcedure)...............................................75

III. SEARCH AND SEIZURE....................77IV. Detention/Custodial Investigation .......80

A. Rights under Custodial Investigation80

B. Tests of Waiver of Miranda Rights .83V. Protocol After Conduct Of Investigation

84VI. Other Rights Guaranteed Under Art. III.Sec. 12.........................................................84VII. Exclusionary Rules .........................84VIII. Right to Bail ....................................86

Chapter VI. Rights of the Accused...............88II. Rights Post Trial..................................91

Chapter VII. Writs ...........................................94I. HABEAS CORPUS .............................94II. WRIT OF AMPARO ............................96III. WRIT OF HABEAS DATA...................96

Chapter VIII. Privacy of Communication andCorrespondence ............................................99

I. Intrusion, When Allowed .....................99II. Forms of Correspondence Covered ...99III. ENABLING LAW .................................99

Chapter IX. Freedom of Expression...........101I. Basis, Components, Scope andLimitations..................................................101II. CONTENT-BASED RESTRICTIONS103IV. CONTENT-NEUTRAL RESTRICTIONS

106

Chapter X. Freedom of Religion .................109I. Non-establishment Clause................109II. Free Exercise Clause........................110III. Tests .................................................111

Chapter XI. Liberty of Abode and Travel ...112I. Liberty of Abode................................112II. Right to Travel...................................112III. Right to Return to One’s Country......112

Chapter XII. RA 9372: Human Security Act*.......................................................................113

Chapter XIII. Latest Cases...........................119

POLITICAL LAW REVIEWER Chapter I. BILL of RIGHTS

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Chapter I. Bill of Rights

I. IN GENERALII. BASES AND PURPOSE

A. BASESB. PURPOSE

III. ACCOUNTABILITY

I. In General

It is a declaration and enumeration of a person'sfundamental civil and political rights. It alsoimposes safeguards against violations by thegovernment, by individuals, or by groups ofindividuals.

People vs. Marti, G.R. No. 81561 (January 18,1991):

“The Bill of Rights governs the relationshipbetween the individual and the state. Itsconcern is not the relation between individuals,between a private individual and otherindividuals. What the Bill of Rights does is todeclare some forbidden zones in the privatesphere inaccessible to any power holder.”(Sponsorship Speech of Commissioner Bernas ,Record of the Constitutional Commission, Vol. 1,p. 674; July 17, 1986; Emphasis supplied)

It is generally self-executing.

Article III contains the chief protection forhuman rights but the body of the Constitutionguarantees other rights as well.

1. Civil rights – rights that belong to anindividual by virtue of his citizenship in astate or community (e.g. rights to property,marriage, freedom to contract, equalprotection, etc.)

2. Political rights – rights that pertain to anindividual’s citizenship vis-à-vis themanagement of the government (e.g. right ofsuffrage, right to petition government forredress, right to hold public office, etc.)

3. Social and economic rights – rights whichare intended to insure the well-being andeconomic security of the individual

4. Rights of the accused – civil rightsintended for the protection a person accusedof any crime

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IICONSTITUTIONAL LAW II TEAM

Prof. Ibarra M. GutierrezFaculty Editor

Paula DeveraturdaLead Writer

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DESIGN & LAYOUT

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POLITICAL LAW REVIEWER Chapter I. BILL of RIGHTS

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II. Bases and Purpose

A. Bases:1. Importance accorded to the dignity and

worth of the individual.2. Protection against arbitrary actions of

government and other members ofsociety

B. Purpose:1. To preserve democratic ideals2. To safeguard fundamental rights3. To promote the happiness of an

individual

Philippine Blooming Mills EmployeesOrganization vs. Philippine Blooming Mills Co.,Inc. (1973):

The Bill of Rights is designed to preserve theideals of liberty, equality and security"against the assaults of opportunism, theexpediency of the passing hour, the erosion ofsmall encroachments, and the scorn andderision of those who have no patience withgeneral principles." (Justice Cardoso, Nature ofJudicial Process, 90-93; Tanada and Fernando,Constitution of the Philippines, 1952 ed., 71.)

In the pithy language of Mr. Justice RobertJackson, the purpose of the Bill of Rights isto withdraw "certain subjects from thevicissitudes of political controversy, to placethem beyond the reach of majorities andofficials, and to establish them as legalprinciples to be applied by the courts. One'srights to life, liberty and property, to free speech,or free press, freedom of worship and assembly,and other fundamental rights may not besubmitted to a vote; they depend on theoutcome of no elections." (West Virginia StateBoard of Education vs. Barnette, 319 U.S. 624,638)

III. Accountability

People vs. Marti (1991):

That the Bill of Rights embodied in theConstitution is not meant to be invokedagainst acts of private individuals…

Serrano vs. NLRC (2000):

Section 3 of Article XIII of the Constitutionrequires the State to give full protection to labor.We cannot be faithful to this duty if we give noprotection to labor when the violator of its rightshappens to be private parties like privateemployers. A private person does not have abetter right than the government to violate anemployee's right to due process. To be sure,violation of the particular right of employees tosecurity of tenure comes almost always fromtheir private employers.

POLITICAL LAW REVIEWER Chapter II. FUNDAMENTAL POWERS

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Chapter II. Fundamental Powers of theState

I. POLICE POWERA. DEFINITIONB. SCOPE AND LIMITATIONSC. WHO MAY EXERCISED. TESTS FOR VALIDITY OF EXERCISEE. ILLUSTRATION ON THE EXERCISE

II. EMINENT DOMAINA. DEFINITIONB. WHO MAY EXERCISEC. REQUISITES

III. TAXATIONA. DEFINITION AND SCOPEB. WHO MAY EXERCISEC. LIMITATIONSD. DOUBLE TAXATION

I. Police Power

A. Definition

Ermita-Malate Hotel and Motel OperatorsAssociation, Inc. vs. Mayor of Manila (1967):

It is the inherent and plenary power of thestate which enables it to prohibit all that ishurtful to the comfort, safety and welfare ofsociety.

B. Scope and Limitations

1. Scope

General Coverage:

Rubi vs. Provincial Board, G.R. No. L-14078(March 7, 1919)

"The police power of the State," one courthas said, "is a power coextensive with self-protection, and is not inaptly termed the 'lawof overruling necessity.' It may be said to bethat inherent and plenary power in the Statewhich enables it to prohibit all things hurtfulto the comfort, safety and welfare ofsociety." (Lake View vs. Rose Hill CemeteryCo. [1873], 70 Ill., 191.)

It may be said to be that inherent andplenary power in the State which enables itto prohibit all things hurtful to the comfort,safety and welfare of society." (Lake Viewvs. Rose Hill Cemetery Co. [1873], 70 Ill.,191.)

Ortigas & Co., Limited Partnership vs. Feati

Bank and Trust Co. (1979):

…the state, in order to promote the generalwelfare, may interfere with personal liberty,with property, and with business andoccupations. Persons may be subjected toall kinds of restraints and burdens, in orderto secure the general comfort health andprosperity of the state and to thisfundamental aim of our Government, therights of the individual are subordinated.(citations omitted)

Ermita-Malate Hotel and Motel OperatorsAssoc. vs. Mayor of Manila (1967):

...has been properly characterized as themost essential, insistent and the leastlimitable of powers, (Cf. Ichong v.Hernandez, (1957) 101 Phil. 1155, at p.1163) extending as it does "to all the greatpublic needs." (Noble state Bank vs.Haskell, 219 U.S. 412)

Specific Coverage

Public Health Public Morals Public Safety Public Welfare

2. Limitations

US vs. Toribio (1910):

The legislative determination “as to what is aproper exercise of its police powers is not finalor conclusive, but is subject to the supervision ofthe court.” (Mr. Justice Brown in his opinion inthe case of Lawton vs. Steele [152 U.S., 133,136]

C. Who May Exercise

1. Legislature

Police power is lodged primarily in thenational legislature.

2. Executive

By virtue of a valid delegation of legislativepower, it may also be exercised by thepresident, administrative bodies, andlawmaking bodies of LGUs (R.A. 7160, sec.16).


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Churchill and Tait vs. Rafferty (1915):

...this power is limited only by the Acts ofCongress and those fundamentals principleswhich lie at the foundation of all republicanforms of government. An Act of the Legislaturewhich is obviously and undoubtedly foreign toany of the purposes of the police power andinterferes with the ordinary enjoyment ofproperty would, without doubt, be held to beinvalid.

Note: MMDA vs. Garin (2005):

Rep. Act No. 7924 does not grant the MMDAwith police power, let alone legislative power,and that all its functions are administrative innature. (MMDA v. Bel-Air Village Association,G.R. No. 135962, March 27, 2000) BUT it is notprecluded—and in fact is duty-bound—toconfiscate and suspend or revoke drivers'licenses in the exercise of its mandate oftransport andtraffic management, as well as theadministration and implementation of all trafficenforcement operations, traffic engineeringservices and traffic education programs.(Section 3(b), Rep. Act No. 7924)

D. Tests for Validity of Exercise of PolicePower

1. LAWFUL SUBJECT: Interest of the generalpublic (as distinguished from a particularclass required exercise).

2. LAWFUL MEANS: Means employed isreasonably necessary for theaccomplishment of the purpose, and is notunduly oppressive

E. Illustrations on the Exercise of PolicePower

1. National Security

Ichong vs. Hernandez (1957):

SC upheld the constitutionality of RA 1180 (AnAct to Regulate the Retail Business) whichsought to nationalize the retail trade business byprohibiting aliens in general from engagingdirectly or indirectly in the retail trade. Aliens didnot question the exercise of police power; theyclaim, however, that there was a violation of thedue process and equal protection clauses.

Scope of the police power: Since the Courtscannot foresee the needs and demands ofpublic interest and welfare, they cannot delimitbeforehand the extent or scope of the policepower by which and through which the stateseeks to attain or achieve public interest andwelfare.

Police power and national security: “Thedisputed law was enacted to remedy a realactual threat and danger to nationaleconomy posed by alien dominance and controlof the retail business; the enactment clearly fallswithin the scope of the police power of the State,thru which and by which it protects its ownpersonality and insures its security and future.”

2. Public Safety

Agustin vs. Edu, (1979):

Agustin questions President Marcos’ Letter ofInstruction No. 229 compelling owners ofmotor vehicles to install specific earlywarning devices to reduce road accidents.Agustin already installed warning devices in hiscar but they were not the same ones specified inthe LOI. He argued that the said LOI violated thepolice power of the state for being oppressive,arbitrary and unconscionable.

Police power, public safety: The Courtidentified police power as a dynamic agency,suitably vague and far from preciselydefined, rooted in the conception that men inorganizing the state and imposing upon itsgovernment limitations to safeguardconstitutional rights did not intend to enable anindividual citizen or a group of citizens toobstruct unreasonably the enactment ofsuch salutary measures calculated tocommunal peace, safety, good order, andwelfare. According to the Court, a heavy burdenlies in the hands of the petitioner who questionsthe state’s police power if was clearly intendedto promote public safety.

3. Public Morals

Ermita-Malate Motel and Motel OperatorsAssn. vs. City Mayor of Manila (1967):

Ermita Malate Hotel and Motel OperationsAssoc. assails the constitutionality of OrdinanceNo. 4760.


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The grounds adduced were: (1) unreasonableand violative of due process insofar as itwould impose different fees for different classesof hotels/motels and prohibit 18 year-olds frombeing accepted in such hotels, unlessaccompanied by parents or a lawful guardianand making it unlawful for the owner, manager,keeper or duly authorized representative of suchestablishments to lease any room or portionmore than twice every 24 hours, and (2)invasion of the right to privacy and theguaranty against self-incrimination because itrequires clients to fill up the prescribed form in alobby open to public view at all times and in hispresence, wherein personal information aremandated to be divulged.

Police power, public morals: The mantle ofprotection associated with the due processguaranty does not cover petitioners. Thisparticular manifestation of a police powermeasure being specifically aimed tosafeguard public morals is immune fromsuch imputation of nullity resting purely onconjecture and unsupported by anything ofsubstance. Police power is "that inherent andplenary power in the State which enables itto prohibit all that is hurt full to the comfort,safety, and welfare of society xxx There is noquestion but that the challenged ordinance wasprecisely enacted to minimize certain practiceshurtful to public morals.

Cf. White Light Corporation, et al vs. City ofManila (2009):

The case of White Light vs. City of Manila wastermed by Justice Tinga as a “middle case”. Itwas meant to identify its case within a spectrumof cases decided by the Supreme Court whichdealt with ordinances which has for its viewthe regulation of public morals.

It is called a “middle case” because unlike itspredecessors where the issue is either awholesale ban against hotels and motels or areasonable regulatory device as the one foundin Ermita-Malate vs. City of Manila, this is acase where the ordinance in questionseverely restricts the services of theabovementioned establishments.

The ratio decidendi started with an outline of thetest of a valid ordinance i.e. it must be within thecorporate powers of the local government toenact and pass and it must conform withsubstantive requirements.

A reading of the ordinance at bar would yieldthat it prohibits two practices: the wash rateadmission and renting out a room more thantwice per day.

These prohibitions are anchored in the power ofthe LGU to implement ordinances hinged on thegeneral welfare clause—the devolved aspect ofpolice power.

This case churned out three standards forjudicial review: the STRICT SCRUTINY TESTfor laws dealing with freedom of the mind andcurtailment of political process and theRATIONAL BASIS STANDARD OF REVIEW foreconomic legislation. A third standard wascreated known as the IMMEDIATE SCRUTINYfor evaluating standards based on gender andlegitimacy.

The Supreme Court justified the application ofthe strict scrutiny test to this particularordinance despite its lack of political significanceby saying that it is not gravitas alone which issheltered by the Bill of Rights. It is preciselythese reflexive exercises of fundamental actswhich best reflect the degree of libertyenjoyed.

Sexual behavior is one of these fundamentalacts covered by the penumbra of rights.While the reality of illicit activity is judiciallyrecognized, it cannot be denied that sexualbehavior between consenting adults isconstitutionally protected.

Apart from the right to privacy, the ordinancealso proscribes other legitimate activities most ofwhich are grounded on the convenience ofhaving a place to stay during the short intervalsbetween travels.

The Ordinance was struck down as an arbitraryintrusion to private rights. It made nodistinction between lodgings and placedevery establishment as susceptible to illicitpatronage.

4. The National Economy

U.S. vs. Toribio, G.R. No. L-5060 (January 26,1910)

Police power, national economy The Statecan restrict or limit private use, if such isdeemed by the legislature to be detrimental tothe public welfare.


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In this case, the general public interest andthe country’s material welfare is affectedbecause of the contagious disease thatthreatened to kill all the carabaos in thecountry, such carabaos being the work animalalmost exclusively in use in the fields as well asfor draft purposes.

The scarcity of these animals, the increase intheir sale value, and the prevalence of carabaothefts, justified Legislature to adoptreasonable measures for the preservation ofthese work animals, even to the extent ofprohibiting and penalizing what would, underordinary conditions, be a perfectly legitimate andproper exercise of rights of ownership andcontrol of the private property of the citizen.

The police power rests upon necessity andthe right of self-protection and. “…it is clearthat the enactment of the provisions of thestatute under consideration was required by"the interests of the public generally, asdistinguished from those of a particularclass;" and that the prohibition of theslaughter of carabaos for humanconsumption, so long as these animals arefit for agricultural work or draft purposeswas a "reasonably necessary" limitation onprivate ownership, to protect the communityfrom the loss of the services of such animals bytheir slaughter by improvident owners.

II. Eminent Domain

Art. III, Sec. 9. Private property shall not be takefor public use without just compensation.

Art. XII, Sec. 18. The State may, in the interestof national welfare or defense, establish andoperate vital industries and, upon payment ofjust compensation, transfer to public ownershiputilities and other private enterprises to beoperated by the government.

Art. XIII, Sec. 4 The State shall, by law,undertake an agrarian reform programfounded on the right of farmers and regularfarmworkers who are landless, to owndirectly or collectively the lands they till or,in the case of other farmworkers, to receivea just share of the fruits thereof.

To this end, the State shall encourage andundertake the just distribution of all agriculturallands, subject to such priorities and reasonableretention limits as the Congress may prescribe,

taking into account ecological, developmental,or equity considerations, and subject to thepayment of just compensation.

In determining retention limits, the State shallrespect the right of small landowners. The Stateshall further provide incentives for voluntaryland-sharing.

Art. XIII, Sec. 9 The State shall, by law, and forthe common good, undertake, in cooperationwith the private sector, a continuing programof urban land reform and housing which willmake available at affordable cost, decenthousing and basic services to under-privileged and homeless citizens in urbancenters and resettlement areas.

It shall also promote adequate employmentopportunities to such citizens. In theimplementation of such program the State shallrespect the rights of small property owners.

Art XIV, Sec. 13. The National assembly mayauthorize, upon payment of just compensation,the expropriation of private lands to besubdivided into small lots and conveyed at costto deserving citizens.

A. Definition

It is the right of the government to take privateproperty with just compensation.

Visayan Refining Co. vs. Camus, G.R. No. L-15870 (December 3, 1919):

The power of eminent domain does not dependfor its existence on a specific grant in theconstitution. It is inherent in sovereignty andexists in a sovereign state without anyrecognition of it in the constitution. Theprovisions found in most of the stateconstitutions relating to the taking of property forthe public use do not by implication grant thepower to the government of the state, but limit apower which would otherwise be withoutlimit. (citations omitted)

B. Who May Exercise

Inherently:

Executive Legislative

Visayan Refining Co. vs. Camus, G.R. No. L-15870 (December 3, 1919):


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…the performance of the administrative actsnecessary to the exercise of the power ofeminent domain in behalf of the state is lodgedby tradition in the Sovereign or other ChiefExecutive.

…where the Legislature has expressly conferredthe authority to maintain expropriationproceedings upon the Chief Executive, the rightof the latter to proceed therein is clear.

…"Once authority is given to exercise the powerof eminent domain, the matter ceases to bewholly legislative. The executive authorities maythen decide whether the power will be invokedand to what extent." (citations omitted)

By Delegation:

City of Manila vs. Chinese Community of Manila,G.R. No. L-14355 (October 31, 1919)

The general power to exercise the right ofeminent domain must not be confused with theright to exercise it in a particular case.

The power of the legislature to confer, uponmunicipal corporations and other entitieswithin the State, general authority to exercisethe right of eminent domain cannot bequestioned by the courts, but that generalauthority of municipalities or entities must not beconfused with the right to exercise it in particularinstances.

The moment the municipal corporation or entityattempts to exercise the authority conferred, itmust comply with the conditions accompanyingthe authority. The necessity for conferring theauthority upon a municipal corporation toexercise the right of eminent domain isadmittedly within the power of thelegislature.

But whether or not the municipal corporation orentity is exercising the right in a particular caseunder the conditions imposed by the generalauthority, is a question which the courts havethe right to inquire into.

When a stature or charter or by general law hasconferred the right of eminent domain upon aprivate entity. (Tenorio vs. Manila Railroad Co.,G.R. No. L-6690, March 29, 1912)

ASEXERCISED

BYCONGRESS

AS EXERCISEDBY DELEGATES

Extent ofPower

Pervasive andall-encompassing

Can only be asbroad as theenabling law andthe conferringauthorities want itto be

QuestionofNecessity

Politicalquestion

Justiciablequestion. RTChas to determinewhether there isa genuinenecessity for itsexercise, as wellas what theproperty’s valueis

Re:privateproperty

Delegate cannotexpropriateprivate propertyalready devotedto public use

C. Requisites

Generallya. Taking of Private Propertyb. for Public Use,c. with Just Compensation, andd. Due Process.

Specifically

(LGUs, Sec. 19, Local Government Code):a. Ordinance by a local legislature council

is enacted authorizing local chiefexecutive to exercise eminent domain,

b. For public use, purpose or welfare or forthe benefit of the poor and of thelandless,

c. Payment of just compensation,d. Valid and definite offer has been

previously made to owner of theproperty sought to be expropriated butsuch offer was not accepted(Municipality of Parañaque vs. VMRealty, 1998)

Heirs of Ardona vs. Reyes, G.R. Nos. L-60549,60553 to 60555 (October 26, 1983):

The particular mention in the Constitution ofagrarian reform and the transfer of utilities andother private enterprises to public ownershipmerely underscores the magnitude of the


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problems sought to be remedied by theseprograms. They do not preclude nor limit theexercise of the power of eminent domain forsuch purposes like tourism and otherdevelopment programs.

There can be no doubt that expropriation forsuch traditions' purposes as the construction ofroads, bridges, ports, waterworks, schools,electric and telecommunications systems,hydroelectric power plants, markets andslaughterhouses, parks, hospitals, governmentoffice buildings, and flood control or irrigationsystems is valid. However, the concept ofpublic use is not limited to traditionalpurposes. Here as elsewhere the Idea that"public use" is strictly limited to clear cases of"use by the public" has been discarded.

Private bus firms, taxicab fleets, roadsiderestaurants, and other private businesses usingpublic streets end highways do not diminish inthe least bit the public character ofexpropriations for roads and streets. Thelease of store spaces in underpasses of streetsbuilt on expropriated land does not make thetaking for a private purpose. Airports and pierscatering exclusively to private airlines andshipping companies are still for public use.The expropriation of private land for slumclearance and urban development is for apublic purpose even if the developed area islater sold to private homeowners,commercial firms, entertainment and servicecompanies, and other private concerns.

III. Taxation

A. Definition and Scope

It is the enforced proportional contributions frompersons and property, levied by the State byvirtue of its sovereignty, for the support of thegovernment and for all public needs.

It is as broad as the purpose for which it isgiven.

Purpose: To raise revenue Tool for regulation Protection/power to keep alive

B. Who May Exercise

legislature (primarily) local legislative bodies (Sec. 5 Art. 10,

1987 Consti)

President (o a limited extent, whengranted delegated tariff powers underSec. 28 (2) Art. 6, 1987 Consti)

C. Limitations

General Limitations

Power to tax exists for the general welfare;should be exercised only for a publicpurpose

might be justified as for public purpose evenif the immediate beneficiaries are privateindividuals

Tax should not be confiscatory: If a taxmeasure is so unconscionable as to amountto confiscation of property, the Court willinvalidate it. But invalidating a tax measuremust be exercised with utmost caution,otherwise, the State’s power to legislate forthe public welfare might be seriouslycurtailed

Specific Limitations

Uniformity of taxation:a. General Rule: simply geographical

uniformity, meaning it operates with thesame force and effect in every placewhere the subject of it is found

b. Exception: rule does not prohibitclassification for purposes of taxation,provided the ff requisites are met:i. standards used are substantial and

not arbitraryii. categorization is germane to

achieve the legislative purposeiii. the law applies, all things being

equal to both present and futureconditions

iv. applies equally to members of thesame class

c. Rules:i. Equal protection clause: taxes

should be uniform (persons orthings belonging to the same classshall be taxed at the same rate) andequitable (taxes should beapportioned among the peopleaccording to their capacity to pay)

ii. Progressive system of taxation:The rate increases as the tax baseincreases, with basis as socialjustice Taxation as an instrument for a

more equitable distribution ofwealth

iii. Delegated tax legislation:Congress may delegate law-making


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authority when the constitution itselfspecifically authorizes it.

Impairment of Obligations of Contractsa. General Rule: Power of taxation may

not be used to violate the constitutionalright of every person to be securedagainst any statute that impairs theobligation of contracts;

b. Exception: But if the statute exempts aparty from any one class of taxes, theimposition of a different tax is not animpairment of the obligation ofcontracts.

Tax Exemptionsa. A corollary power but must be for a

public purpose, uniform and equitableand in conformity with the equalprotection clause

b. Tax exemptions are granted gratuitouslyand may be revoked at will, exceptwhen it was granted for valuableconsideration

c. May either be constitutional or statutoryi. If statutory, it has to have been

passed by majority of all the

members of Congress (Art. VI, sec.28 (4))

d. Constitutional exemptions (1987CONST., art. VI, sec. 28(3))i. Educational institutions (both

profit and non-profit): Benefitsredound to students, but onlyapplied to property taxes not excisetaxes

ii. Charitable institutions: Religiousand charitable institutions giveconsiderable assistance to the Statein the improvement of the morality ofthe people and the care of theindigent and the handicapped

iii. Religious property

D. Double Taxation

Occurs when additional taxes are laid on thesame subject by the same taxing jurisdictionduring the same taxing period for the samepurpose

No provision in the Constitution specificallyprohibiting double taxation, but will not beallowed if it violates equal protectionclause.

COMPARATIVE TABLE

POLICE POWER EMINENT DOMAIN TAXATION

Compensation

None(The altruistic feelingthat one has contributedto the public good[NACHURA])

Just compensation(Full and fair equivalent ofthe property taken)required.

None(The protection givenand public improvementsinstituted by the Statebecause of these taxes[NACHURA])

Use of Property

Not appropriated forpublic use

Appropriated for publicuse

Use taxing power as animplement for theattainment of alegitimate policeobjective—to regulate abusiness or trade

Objective

To destroy noxiousproperty or to restrainthe noxious use ofproperty

Property taken for publicuse; it is not necessarilynoxious

Earn revenue for thegovernment

What it RegulatesLiberty and Property Property rights only Property rights only

POLITICAL LAW REVIEWER Chapter III. DUE PROCESS

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Chapter III. Due Process

I. IN GENERALA. MINIMUM REQUIREMENTSB. NOTED EXCEPTIONS TO DUE

PROCESSII. SUBSTANTIVE DUE PROCESS

A. SCOPEB. REQUISITESC. DOCTRINES

III. PROCEDURAL DUE PROCESSA. SCOPEB. KINDS

IV. DUE PROCESS AS LIMITATION ONFUNDAMENTAL STATE POWERSA. VIS-A-VIS POLICE POWERB. VIS-A-VIS EMINENT DOMAINC. VIS-A-VIS POWER TO TAX

Art. III, Sec. 1. No person shall be deprived oflife, liberty or property without due process oflaw, nor shall any person be denied the equalprotection of the laws.

Art. XIII, Sec. 1. The Congress shall givehighest priority to the enactment of measuresthat protect and enhance the right of all thepeople to human dignity, reduce social,economic, and political inequalities and removecultural inequities by equitably diffusing wealthand political power for the common good.

To this end, the State shall regulate theacquisition, ownership, use, and disposition ofproperty and its increments.

I. In General

Due process of law simply states that “[i]t ispart of the sporting idea of fair play to hear "theother side" before an opinion is formed or adecision is made by those who sit in judgment.”(Ynot vs. IAC, 1987)

It covers any governmental action whichconstitutes a deprivation of some person'slife, liberty, or property.

A. Minimum Requirements

Due process of law guarantees: notice and opportunity to be heard to persons who would be affected by the

order or act contemplated.

B. Noted Exceptions to Due Process

(Ynot vs. IAC, 1987)

The conclusive presumption, bars theadmission of contrary evidence as long assuch presumption is based on humanexperience or there is a rational connectionbetween the fact proved and the factultimately presumed therefrom.

There are instances when the need forexpeditious action will justify omission ofthese requisites, as in the summaryabatement of a nuisance per se, like a maddog on the loose, which may be killed onsight because of the immediate danger itposes to the safety and lives of the people.

Pornographic materials, contaminated meatand narcotic drugs are inherentlypernicious and may be summarilydestroyed.

The passport of a person sought for acriminal offense may be cancelled withouthearing, to compel his return to the countryhe has fled.

Filthy restaurants may be summarilypadlocked in the interest of the publichealth and bawdy houses to protect thepublic morals.

In such instances, previous judicial hearingmay be omitted without violation of dueprocess in view of: 1) the nature of the propertyinvolved; or 2) the urgency of the need to protectthe general welfare from a clear and presentdanger.

II. Substantive Due Process

City of Manila vs. Laguio, (2005)Substantive due process, asks whether thegovernment has an adequate reason fortaking away a person’s life, liberty, orproperty.

In other words, substantive due process looks towhether there is a sufficient justification for thegovernment’s action.


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A. Scope

Substantive due process is an aspect of dueprocess which serves as a restriction on the law-making and rule-making power of thegovernment.

The law itself, not merely the procedures bywhich the law would be enforced, should be fair,reasonable, and just.

B. Requisites

(US vs. Toribio, 1910)

Laws which interfere with life, liberty orproperty satisfy substantive due processwhen there is:

1. Lawful object i.e. the interests of the publicin general (as distinguished from those of aparticular class) require the intervention ofthe State, and

2. Lawful means i.e. means employed arereasonably necessary for theaccomplishment of the purpose and notunduly oppressive on individuals.

Tañada vs. Tuvera (1986):Publication of laws is part of substantive dueprocess.

People vs. Nazario (1988):VOID FOR VAGUENESS DOCTRINE: Anaccused is denied the right to be informed of thecharge against him and to DUE PROCESSwhere the statute itself is couched in suchINDEFINITE LANGUAGE that it’s not possiblefor men of ordinary intelligence to determinetherefrom what acts/omissions are punished.

C. Doctrines

1. Overbreadth Doctrine: A governmentalpurpose may not be achieved by meanswhich sweep unnecessarily broadly andthereby invade the area of protectedfreedoms. David vs. Arroyo (2006)a. Claims of facial overbreadth are

entertained in cases involving statuteswhich by their terms seek to regulateonly spoken words. Such claims havebeen curtailed when invoked againstordinary criminal laws that are sought tobe applied to protected conduct.

b. A facial challenge using the overbreadthdoctrine will require the Court toexamine PP 1017 and pinpoint itsflaws and defects, not on the basis of

its actual operation to petitioners, buton the assumption or prediction thatits very existence may cause othersnot before the Court to refrain fromconstitutionally protected speech orexpression.

c. Also, the challenger must establish thatthere can be no instance when theassailed law may be valid.

A plain reading of PP 1017 shows that it is notprimarily directed to speech / speech-relatedconduct. It is actually a call upon the AFP toprevent or suppress all forms of lawlessviolence. Petitioners did not show WON there’san instance when PP1017 may be valid.

2. Void for Vagueness: An act is vague whenit lacks comprehensible standards thatmen of common intelligence mustnecessarily guess at its commonmeaning and differ as to its application.

The statute is repugnant to the constitutionin 2 respects:a. It violates due process for failure to

accord persons, especially the partiestargeted by it, fair notice of what conductto avoid,

b. It leaves law enforcers an unbridleddiscretion in carrying out its provisions.

Still on David vs. Arroyo:Related to the "overbreadth" doctrine is the

"void for vagueness doctrine" which holds that"a law is facially invalid if men of commonintelligence must necessarily guess at itsmeaning and differ as to its application." It issubject to the same principles governingoverbreadth doctrine. For one, it is also ananalytical tool for testing "on their faces" statutesin free speech cases. Like overbreadth, it is saidthat a litigant may challenge a statute on itsface only if it is vague in all its possibleapplications.

A facial review of PP 1017 on the ground ofvagueness is unwarranted. Petitioners did noteven attempt to show that PP 1017 is vague inall its application. They also failed to establishthat men of common intelligence cannotunderstand the meaning and application of PP1017.


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III. Procedural Due Process

A. Scope

Procedural due process is that aspect of dueprocess which serves as a restriction on actionsof judicial and quasi-judicial agencies of thegovernment. It refers to the method or mannerby which a law is enforced.

B. Kinds

1. Judicial Due Process

Civil Due Process

Requisites (Banco Espanol vs. Palanca, 1918)

a) An impartial court of tribunal clothed withjudicial power to hear and determine thematter before it.

b) Jurisdiction must be lawfully acquiredover the person of the defendant andover the property subject matter of theproceeding

Note: NOTICE is an essential elementof due process, otherwise the Court willnot acquire jurisdiction and its judgmentwill not bind the defendant.

To be meaningful, it must be both as totime and place.

c) The defendant must be given anopportunity to be heard

d) Judgment must be rendered uponlawful hearing and must clearly explainits factual and legal bases... (Sec. 14,Art. 8, 1987 Consti; Banco Español-Filipino vs. Palanca)

Note: Reyes vs. CA (1977): Theallowance or denial of motions forextension rests principally on the sounddiscretion of the court to which it isaddressed, but such discretion must beexercised wisely and prudently, with aview to substantial justice. Poverty isrecognized as a sufficient ground forextending existing period for filing. Theright to appeal is part of due processof law.

Criminal Due Process

Requisites (People vs. Vera, 1937)

a) Accused is heard by a court ofcompetent jurisdiction;

b) Accused is proceeded against under theorderly process of law;

c) Accused is given notice and opportunityto be heard;

d) Judgment rendered is within theauthority of a constitutional law. (Mejiavs. Pamaran, 1988)

2. Administrative due process

Requisites of Procedural Due Process inAdministrative Agencies (Ang Tibay vs. CIR;also known as the Ang Tibay Rules):

1. Right to a hearing to present own case andsubmit evidence in support thereof.

2. Tribunal must consider the evidencepresented.

3. Decision rendered must have support.4. Evidence which supports the finding or

conclusion is substantial (such relevantevidence as a reasonable mind accept asadequate to support a conclusion).

5. The decision must be rendered on theevidence presented at the hearing, or atleast contained in the record and disclosedto the parties affected.

6. The tribunal or any of its judges, must act onits or his own independent consideration ofthe law and facts of the controversy, and notsimply accept the views of a subordinate inarriving at a decision.

7. The tribunal should, in all controversialquestions, render its decision in such amanner that the parties to the proceedingcan know the various issues involved, andthe reasons for the decision rendered.


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IV. Due Process As Limitation OnFundamental State Powers

A. Vis-à-vis Police Power

Cruz vs. Paras (1983):

Petitioners are operators of nightclubs inBulacan. They filed a prohibition suit to stop theMunicipality of Bacaue from enforcing anordinance prohibiting the operation of saidnightclubs. The Court held that a municipalcorp cannot prohibit the operation ofnightclubs. They may only regulate such. RA938 granted municipalities the power to regulateestablishments. While another act amended it toinclude the power to prohibit its operation, sucha construction of the amendatory act would be toconstrue it in a way that it violates theconstitutional provision that “every bill shallembrace only 1 subject which shall beexpressed in the title thereof.” Here, the title ofthe amended RA remained the same so that thepower granted is still regulation not prohibition.

Bautista vs. Juinio (1984):

LOI No. 869 banned the use of vehicles with Aand EH plates on weekends and holidays inview of the energy crisis. Some exceptions areservice, truck, consular corps vehicles.Petitioners, owners of an 8 cylinder 1969 Buickand a 6 cylinder Willy’s Kaiser Jeep questionedthe validity of LOI on grounds of it beingdiscriminatory and a denial of due process.

Court held that it cannot be held void on its face.It has a presumption of validity. LOI is anenergy conservation measure; it is anappropriate response to a problem. Nor does itdeny equal protection to petitioners since theLOI operates equally and uniformly w/ class tow/c petitioners belong. The government is notrequired to adhere to a policy of “all or none.”

B. Vis-à-vis Eminent Domain

De Knecht vs. Bautista (1980):

CHOICE OF PROPERTY TO BEEXPROPRIATED IS SUBJECT TO JUDICIALREVIEW AS TO REASONABLENESS:

Under Section 2, Article IV of the PhilippineConstitution, the Republic of the Philippines cantake private property upon payment of justcompensation. However, private property tobe taken cannot be chosen arbitrarily andcapriciously, as the landowner is entitled to

due process. The Department of PublicHighways originally established the extension inCuneta Avenue, and it is assumed that theymade extensive studies regarding it. The changefrom Cuneta Avenue to Fernando Rein-Del PanStreets cannot be justified on the ground ofsocial impact, as the properties to be affectedalong Cuneta Avenue are mostly motels.

EPZA vs. Dulay (1987):

DETERMINATION OF JUST COMPENSATIONIS JUDICIAL FUNCTION:

The Presidential Decrees merely serve as aguide or a factor for the courts in determiningamount of just compensation (which should bethe fair and full value of the property at time oftaking). The courts have the power and authorityto determine just compensation, independent ofwhat the decrees state, and thus may appointcommissioners to help in determining justcompensation.

Sumulong vs. Guerrero (1987):

SCOPE OF JUDICIAL REVIEW INEXPROPRIATION PROCEEDINGS:

In this case the Court held that “socializedhousing” falls under the scope of public use, andis therefore a valid basis for expropriation.

Manotok vs. NHA (1987):

HEARING:What the due process clause requires is that

the landowner must be given reasonableopportunity to be heard and to present his claimor defense. Although due process does notalways necessarily demand that a proceeding behad before a court of law, it still mandates someform of proceeding wherein notice andreasonable opportunity to be heard are given tothe owner to protect his property rights. Althoughthere are exceptional situations when in theexercise of the power of eminent domain, therequirement does not need judicial process,when it is alleged that the landowner’s right todue process of law has been violated in thetaking of his property, the courts can probe andcheck on the alleged violation.

Subjects of Judicial Review in EminentDomain:

a. Validity of takingb. Adequacy of compensation,c. “Public use” character of the purpose of

taking.

1. Taking


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Definition A physical dispossession of the owner of his

actual property, or its use. It may include trespass without actual

eviction of owner, such as the materialimpairment of value of property, orpreventions of ordinary uses for which theproperty was intended.

Requisites for a valid taking:a. The expropriator must enter a private

propertyb. Entry must be for more than a momentary

periodc. Entry must be under warrant or color of legal

authorityd. Proerty must be devoted to public use or

otherwise informally appropriated orinjuriously affected

e. Utilization of the property must be in such away as to oust the owner and deprive him ofbeneficial enjoyment of the property(Republic vs. Castelvi, 1974)

Q: What happens if the expropriator does notuse the property for a public purpose but sells itto a private user?

A: Property reverts back to the owner in feesimple. (Heirs of Moreno vs. Mactan-CebuInternational Airport, 2005)

2. Public Use

DefinitionThe idea that "public use" means "use by thepublic" has been discarded. At present,whatever may be beneficially employed forthe general welfare satisfies the requirement ofpublic use. (Heirs of Juancho Ardona vs. Reyes,123 SCRA 220)

That only a few benefit from the expropriationdoes not diminish its public-use character,inasmuch as pubic use now includes the broadernotion of indirect public benefit or advantage(Filstream International vs. CA, 284 SCRA 716)

3. Just Compensation

DefinitionProvince of Tayabas vs. Perez (1938): It is thejust and complete equivalent of the loss whichthe owner of the thing expropriated has to sufferby reason of the expropriation.

BASIS: Fair Market Value

Price fixed by a buyer (desirous but notcompelled to buy) and a seller (willing but notcompelled to sell).

Must include consequential damages(damages to other interest of the owner attributeto the expropriation) and deduct consequentialbenefits (increase of value of other interestsattribute to new use of the former property)

“Taking” via eminent domain vs. “taking”under social justice clause

Agrarian Reform (Art. XIII, Sec. 4)This provision is an exercise of the police

power of the State through eminent domain(Association of Small Landowners vs. Secretaryof Agrarian Reform) as it is a means to regulateprivate property.

C. Vis-à-vis Power to Tax

The inherent limitation on the power oftaxation is public purpose. Taxes areexacted only for a public purpose. Theycannot be used for purely private purposesor for the exclusive benefit of privatepersons

The reason for this is simple. The power totax exists for the general welfare; hence,implicit in its power is the limitation that itshould be used only for a public purpose.

Taxation should be exercised with caution tominimize the injury to the proprietary rightsof a taxpayer.

It must be exercised fairly, equally, anduniformly, lest the tax collector kill the ‘henthat lays the golden eggs.’ in order tomaintain the general public’s trust andconfidence in the Government, this powermust be used justly and not treacherously.(Roxas y Cia vs. CTA, 23 SCRA 276)

Premature issuance of final assessment noticeand demand letter is tantamount to denial ofreply to the preliminary assessment notice.[THESE ARE] essential elements of due processbecause they constitute the notice andopportunity to present one’s side. (Phil. HealthCare Providers vs. CIR, 2008)

POLITICAL LAW REVIEWER Chapter IV. EQUAL PROTECTION of the LAWS

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Chapter IV. Equal Protection of the Laws

I. DEFINITION AND SCOPE OFPROTECTION

II. REQUISITES OF VALID CLASSIFICATIONIII. EXAMPLES OF VALID CLASSIFICATION

A. ALIENB. FILIPINO FEMALE DOMESTICS

WORKING ABROADC. LAND-BASED VS. SEA-BASED

FILIPINO OVERSEAS WORKERSD. QUALIFICATION FOR ELECTIVE

OFFICEE. OFFICE OF THE OMBUDSMANF. PRINT VS. BROADCAST MEDIA

IV. THREE STANDARDS OF JUDICIALREVIEWA. RATIONAL BASIS TESTB. STRICT SCRUTINY TESTC. INTENSIFIED MEANS TEST

I. Definition and Scope of Protection

Definition

City of Manila vs. Laguio (2005) citing Ichong vs.Hernandez (1957):

Equal protection requires that all persons orthings similarly situated should be treatedalike, both as to rights conferred andresponsibilities imposed.

Similar subjects, in other words, should notbe treated differently, so as to give unduefavor to some and unjustly discriminateagainst others.

The guarantee means that no person orclass of persons shall be denied the sameprotection of laws which is enjoyed by otherpersons or other classes in likecircumstances.

Scope Natural and juridical Persons (the equal

protection clause extends to artificialpersons but only insofar as their property isconcerned.)

A corporation as an artificial person isprotected under the Bill of Rights againstdenial of due process, and it enjoys theequal protection of the law. (Smith, Bell &Co., vs. Natividad, 1919)

A corporation is also protected againstunreasonable searches and seizures. (SeeStonehill vs. Diokno, 1967)

It can only be proceeded against by dueprocess of law, and is protected against

unlawful discrimination. (Bache & Co. vs.Ruiz, 1971)

II. Requisites of Valid Classification

People vs. Cayat (1939):a. It must rest on substantial distinctions;b. It must be germane to the purpose of the

law;c. It must not be limited to existing conditions

only.

Ormoc Sugar Co. vs Treasurer of OrmocCity:

An ordinance was declared void because ittaxes only centrifugal sugar produced andexported by the Ormoc Sugar Company andnone other, such that if a new sugarcentral is established in Ormoc, it wouldnot be subject to the ordinance.

d. It must apply equally to all members of thesame class.

III. Examples of Valid Classification

Lacson vs. Executive Secretary (1999):All classifications made by law are generallypresumed to be valid unless shown otherwiseby petitioner.

A. Aliens

General rule:The general rule is that a legislative act may

not validly classify the citizens of the State onthe basis of their origin, race or parentage.

Exceptions:1. In times of great and imminent danger, such

as a threatened invasion or war, such aclassification is permitted by the Constitutionwhen the facts so warrant (e.g.discriminatory legislation against Japanesecitizens during WWII).

2. The political rights of aliens do not enjoy thesame protection as that of citizens.

3. Statutes may validly limit to citizensexclusively the enjoyment of rights orprivileges connected with the publicdomain, the public works, or the naturalresources of the State.

4. The rights and interests of the state in thesethings are not simply political but alsoproprietary in nature; and so the citizensmay lawfully be given preference over'aliens in their use or enjoyment.

POLITICAL LAW REVIEWER Chapter IV. EQUAL PROTECTION of the LAWS

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Ichong vs, Hernandez (1957):

The Court upheld the Retail Trade NationalizationLaw despite the objection that it violated the EPclause, because there exists real and actual, positiveand fundamental differences between an alien and anational.

B. Filipino Female Domestics WorkingAbroad

They are a class by themselves because of thespecial risks to which their class was exposed. (PhilAssociation of Service Exporters vs. Drilon)

C. Land-based vs. Sea-based FilipinoOverseas Workers

There is dissimilarity as to work environment, safety,danger to life and limb, and accessibility to social, civiland spiritual activities. (Conference of MaritimeManning Agencies vs. POEA)

D. Qualification for Elective Office

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

E. Office of the Ombudsman

Allowing it to start an investigation based on ananonymous letter does not violate EP clause. TheOffice of the Ombudsman is different from otherinvestigatory and prosecutory agencies of governmentbecause those subject to its jurisdiction are publicofficials who, through official pressure and influence,can quash, delay or dismiss investigations againstthem (Almonte vs. Vasquez).

F. Print vs. Broadcast Media

There are substantial distinctions between the two towarrant their different treatment under BP 881(Telecommunications and Broadcast Attorneys of thePhil vs. COMELEC)

IV. Standards of Judicial Review

A. “Rational Basis Test”

The classification should bear a reasonablerelation to government's purpose.

Notes: Important when there is no plausible

difference between the disadvantaged classand those not disadvantaged.

Also important when the governmentattaches a morally irrelevant and negativesignificance to a difference between theadvantaged and the disadvantaged.

B. “Strict Scrutiny Test”

This test is triggered when a fundamentalconstitutional right is limited by a law. Thisrequires the government to show an overridingor compelling government interest so greatthat it justifies the limitation of fundamentalconstitutional rights (the courts make thedecision of WON the purpose of the law makesthe classification necessary).

Applied also when the classification has a"suspect" basis (Suspect Classes – classessubject to such a history of purposeful unequaltreatment or relegated to such a position ofpolitical powerlessness as to commandextraordinary protection from the majoritarianpolitical process.)

C. “Intensified Means Test”

In this situation the Court accepts the articulatedpurpose of the legislation but it should closelyscrutinize the relationship between theclassification and the purpose based on aspectrum of standards, by gauging the extentto which constitutionally guaranteed rightsdepend upon the affected individual interest.

The balancing test or the equality test is used.

Applicable to certain sensitive but not suspectclasses; certain important but notfundamental interest.

Immediate Scrutiny Test

White Light Corporation vs. City of Manila(2009):

A third standard, denominated as heightened orimmediate scrutiny, was later adopted by theU.S. Supreme Court for evaluatingclassifications based on gender and legitimacy.Immediate scrutiny was adopted by the U.S.Supreme Court in Craig. While the test mayhave first been articulated in equal protectionanalysis, it has in the United States since beenapplied in all substantive due process cases aswell.

POLITICAL LAW REVIEWER Chapter V. REQUIREMENTS for FAIR PROCEDURE

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Chapter V. Requirements for FairProcedure

THIS SECTION DEALS WITH THE RIGHTSOF A PERSON BEFORE AND DURINGCUSTODIAL INVESTIGATIONS I.E. BEFOREHE HAS BEEN ACCUSED OF A CRIME

I. NATURE AND SCOPE OF THE RIGHT INART. III, SEC. 2

II. ARRESTA. REQUISITES FOR ISSUANCE OF

VALID ARREST WARRANTB. WHEN ARREST MAY BE MADE

WITHOUT A WARRANTIII. SEARCH AND SEIZURE

A. REQUISITES OF A VALID SEARCHWARRANT

B. WHEN SEARCH MAY BE MADEWITHOUT WARRANT

C. PROPERTIES SUBJECT OFSEIZURE

IV. DETENTION/CUSTODIALINVESTIGATIONA. RIGHTS UNDER CUSTODIAL

INVESTIGATIONB. TESTS OF WAIVER OF MIRANDA

RIGHTSV. PROTOCOL AFTER CONDUCT OF

INVESTIGATIONVI. OTHER RIGHTS GUARANTEED UNDER

ART. III. SEC. 12VII. EXCLUSIONARY RULES

A. VIS-À-VIS VIOLATION OF THE RIGHTAGAINST UNREASONABLESEARCHES AND SEIZURES

B. VIS-À-VIS VIOLATION OF THERIGHTS OF PERSONS UNDERCUSTODIAL INVESTIGATION

C. VIS-À-VIS VIOLATION OF THE RIGHTAGAINST SELF-INCRIMINATION

VIII.RIGHT TO BAIL

I. Nature and Scope

ART. III, SEC. 2. The right of the people to besecure in their persons, houses, papers, andeffects against unreasonable searches andseizures of whatever nature and for anypurpose shall be inviolable, and no searchwarrant or warrant of arrest shall issue exceptupon probable cause to be determinedpersonally by the judge after examinationunder oath or affirmation of the complainantand the witnesses he may produce, andparticularly describing the place to besearched and the persons or things to be

seized.

Nature

Personal

It may be invoked only by the person entitled toit. (Stonehill vs. Diokno)

It may be waived expressly or impliedly only bythe person whose right is invaded, not by onewho is not duly authorized to effect suchwaiver. (People vs. Damaso, 1992)

Directed Against the Government and ItsAgencies (State Action Requirement)

The right cannot be set up against actscommitted by private individuals (People vs.Marti)

Scope

Natural Persons

It protects all persons including aliens (QuaChee Gan vs. Deportation Board, 1963).

Artificial Persons

Artificial persons are protected to a limitedextent. (Bache & Co. Inc vs. Ruiz, 1971) Theopening of their account books is not protected,by virtue of police and taxing powers of theState.

II. ARREST

A. Requisites for Issuance of a ValidArrest Warrant

Beltran vs. Makasiar (1988):

What the Constitution underscores is theexclusive and personal responsibility of theissuing judge to satisfy himself of theexistence of probable cause.

In satisfying himself of the existence ofprobable cause for the issuance of a warrantof arrest, the judge is not required topersonally examine the complainant and hiswitnesses.

Following established doctrine and procedure,he shall:1) Personally evaluate the report and the


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supporting documents submitted by thefiscal regarding the existence of probablecause and, on the basis thereof, issue awarrant of arrest; or

2) If he finds no probable cause, He may disregard the fiscal's report

and Require the submission of supporting

affidavits of witnesses to aid him inarriving at a conclusion as to theexistence of probable cause.

Existence of probable cause

Such facts and circumstances which wouldlead a reasonably discreet and prudentmean to believe that an offense has beencommitted by the person sought to bearrested. (Webb vs. De Leon, 1995)

Determination of probable cause personallyby the judge.

i. Personally evaluate the report andsupporting documents submitted by thefiscal regarding the existence of probablecause and, on the basis thereof, issue thearrest warrant; OR

ii. If he finds no probable cause, he maydisregard the prosecutor’s report andrequire the submission of supportingaffidavits of witnesses to aid him inarriving at a conclusion as to the existenceof probable cause (Cruz vs. Judge Areola,2002).

As to warrant of arrest:i. On the basis of their personal knowledge

of the facts they are testifying to.ii. The arrest warrant must describe

particularly the person to be seized.o By stating the name of the person to

be arrested.o If not known, then a “John Doe

warrant” may be issued, with somedescriptio persona that will enablethe officer to identify the accused.

Pangandaman vs. Casar (1988):JOHN DOE WARRANT: Warrants issuedagainst 50 John Does, none of whom thewitnesses could identify, were consideredas “general warrants” and thus void.

B. Requisites of a Valid WarrantlessArrest (Rule 113, Sec. 5, Rules onCriminal Procedure)

1. When, in his presence, the person to bearrested has committed, is actuallycommitting, or is attempting to commit anoffense;

Umil vs. Ramos:

Rebellion is a continuing offense. Therefore arebel may be arrested w/o a warrant at anytime of the day or the night as he is deemed tobe in the act of committing rebellion.

Parulan vs. Dir of Prisons:

Though kidnapping w/ serious illegal detentionis deemed a continuing crime, it can beconsidered as such only when the deprivationof liberty is persistent and continuing from oneplace to another.

People vs. De Lara (1994):

HOT PURSUIT:The arrest of the accused inside his house

following hot pursuit of the person whocommitted the offense in flagrante was heldvalid.

People vs. Hindoy (2001):

BUY-BUST:A buy-bust operation is a valid in flagrante

arrest. The subsequent search of the personarrested and the premises within his immediatecontrol is valid as an incident to a lawful arrest.

People vs. Rodrigueza:

EXCEPTION TO BUY-BUST.Instead of arresting the suspect after the

sale in a buy-bust op, the officer returned to thepolice headquarters and filed his report. It wasonly in the evening that he, without warrant,arrested the suspect at his house where driedmarijuana leaves were found and seized.Unlawful arrest.

2. When an offense has just beencommitted and he has probable cause tobelieve based on personal knowledge offacts or circumstances that the person to bearrested has committed it;


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Requisites:

i. Offense had JUST been committed;ii. Person making the arrest has probable

cause to believe based on PERSONALKNOWLEDGE.

Note: There must be a large measure ofimmediacy between the time the offense iscommitted and the time of the arrest. Ifthere was an appreciable lapse of timebet. arrest and commission of crime,warrant of arrest must be secured.(NACHURA)

People vs Kimura:

Warrantless arrest of accused for selling MJ 2days after he escaped is invalid.

People vs Gerente:

PERSONAL KNOWLEDGE:The police saw the victim dead at the

hospital and when they inspected the crimescene, they found the instruments of death.The eyewitnesses reported the happening andpointed to Gerente as one of the killers. Herethe warrantless arrest only 3 hrs after the killingwas held valid since personal knowledge wasestablished as to the fact of death and factsindicating that Gerente killed the victim.

People vs. Burgos (1986)

Burgos was convicted for the crime of IllegalPossession of Firearms in Furtherance ofSubversion. One Masamlok claimed that hehad been forcibly recruited by Burgos to theNPA, threatening him with the use of firearmagainst his life and family. Masamlok was alsoallegedly threatened to attend an NPA seminar.The next day the authorities went to arrestBurgos without a warrant. They found him in hisresidence plowing his field. Burgos denied theaccusation, but his wife pointed to a placebelow their house where a gun was buried inthe ground. After the firearm was recovered,Burgos allegedly pointed to a stock pile ofcogon where he had hidden subversivedocuments. The prosecution presented anextrajudicial confession made by Burgos.However, Burgos claimed that he had beenmauled and hit repeatedly until he would admitand sign an extrajudicial confession.

Exceptions to warrant of arrest: Art. IV, Sec.3 of the Constitution safeguards against wantonand unreasonable invasion of the privacy and

liberty of a citizen as to his person, papers, andeffects. Rule 113, Sec. 6 of the Rules of Courtprovides the exceptions to the warrantrequirement.

However, the instant case does not fall underany of the exceptions in Rule 113, Sec. 6.First, it requires that the officer arresting aperson who has committed, is committing,or is about to commit an offense must havepersonal knowledge of that fact. The offensemust be committed in his presence or within hisview. In the instant case: The knowledge as to the offense was

furnished by Masamlok. The location of the firearm was given by the

Burgos’ wife. At the time of the arrest, Burgos was not in

actual possession of any firearm orsubversive document.

Neither was he committing any act whichcould be described as subversive. He wasin fact plowing his field at the time of hisarrest.

It is clear that the arresting officers had nopersonal knowledge of the commission ofthe offense because such information wasonly supplied to them by an informant.

Neither has Burgos committed any offense intheir presence as he was merely plowing hisfield at the time of arrest. On the other hand,Sec. 6 (b) of Rule 113 requires that a crimemust in fact or actually have beencommitted first. It is not enough that thereis reasonable ground to believe that theperson to be arrested has committed acrime. That a crime has actually beencommitted is an essential precondition. Inthe instant case, it was not even establishedthat indeed a crime has been committed. Theinformation that a crime was probablycommitted was supplied by Masamlok whodid not even give his testimony under oath.

Finally, the Court finds no compelling reasonfor the haste of the arresting officers toarrest Burgos if indeed he committed acrime. There is no showing that there was realapprehension that Burgos was on the verge offlight or escape and that his whereabouts areunknown.


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3. When the person to be arrested is aprisoner who has escaped from a penalestablishment or place where he is servingfinal judgment or is temporarily confinedwhile his case is pending, or has escapedwhile being transferred from oneconfinement to another.

ADDITIONAL EXCEPTION (NOT IN THERULES): When the right is voluntarilywaived (estoppel).

People vs. Salvatierra:

Appellant is estopped from questioning theillegality of the arrest when he voluntarilysubmitted himself to the jurisdiction of the courtby entering a plea of not guilty and byparticipating in the trial.

SCOPE OF WAIVER: Waiver is limited to theillegal arrest. It does not extend to the searchmade as an incident thereto, or the subsequentseizure of evidence allegedly found during thesearch (People vs. Peralta, 2004).

III. SEARCH AND SEIZURE

A. Requisites of a Valid Search Warrant

1. Existence of probable cause

Such facts and circumstances; which would lead a reasonably discreet

and prudent man to believe that an offense has been committed

and that the objects sought in connection

with the offense are in the place soughtto be searched. (Burgos vs. Chief ofStaff, 1984)

2. Determination of probable causepersonally by the judge.

3. After personal examination under oath oraffirmation of the complainant and thewitnesses he may produce.

How it is done: In the form of searchingquestions and answers, in writing andunder oath (Rule 126, Sec. 6, ROC)

Mere affidavits of the complainant andhis witnesses are thus not sufficient.

The examining Judge has to takedepositions in writing of thecomplainant and the witnesses hemay produce and attach them to therecord.

Such written deposition is necessaryin order that the Judge may be ableto properly determine the existenceor non-existence of the probablecause, to hold liable for perjury theperson giving it if it will be found laterthat his declarations are false

It is axiomatic that the examinationmust be probing and exhaustive, notmerely routinary or pro-forma, if theclaimed probable cause is to beestablished.

The examining magistrate must notsimply rehash the contents of theaffidavit but must make his owninquiry on the intent and justification ofthe application. (Roan vs. Gonzales,1984)

4. On the basis of their personal knowledgeof the facts they are testifying to.

5. The warrant must describe particularlythe place to be searched and the personsor things to be seized.

PLACE TO BE SEARCHED:The search warrant issued to search

petitioner’s compound for unlicensed firearmswas held invalid for failing to describe the placewith particularity, considering that thecompound was made up of 200 bldgs, 15plants, 84 staff houses, 1 airstrip etc spread outover 155 hectares. (PICOP vs. Asuncion,1999).

DESCRIPTION OF PLACE:The description of the property to be seized

need not be technically accurate nor precise.Its nature will vary according to whether theidentity of the property is a matter of concern.The description is required to be specific only inso far as the circumstances will allow. (Kho vs.Judge Makalintal, 1999)

DESCRIPTION OF PERSONS SEARCHED:SW valid despite the mistake in the name

of the persons to be searched. The authoritiesconducted surveillance and test-buy ops beforeobtaining the SW and subsequently


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implementing it. They had personalknowledge of the identity of the personsand the place to be searched, although theydid not specifically know the names of theaccused. (People vs. Tiu Won Chua, 2003)

GENERAL WARRANT: One that (1) does notdescribe with particularity the things subject ofthe search and seizure; and (2) where probablecause has not been properly established. It is avoid warrant. (Nolasco vs. Paño, 1985)

EXCEPTION TO GENERAL WARRANTS:General descriptions will not invalidate theentire warrant if other items have beenparticularly described. (Uy vs. BIR, 2000)

Conduct of the Search (Sec. 7, Rule 126, ROC) In the presence of a lawful occupant

thereof or any member of his family, OR If occupant or members of the family are

absent: In the presence of 2 witnesses ofo sufficient ageo discretiono residing in the same locality

Force may be used in entering a dwellingif justified by Rule 126 ROC.

People vs. Gesmundo:

Failure to comply with Sec. 7 Rule 126invalidates the search.

People vs. Salanguit:

FORCIBLE ENTRY JUSTIFIED:Occupants of the house refused to

open the door despite the fact that thesearching party knocked several times, andthe agents saw suspicious movements ofthe people inside the house.

People vs. Benny Go (2003):

UNLAWFUL SEARCH:Police officers arrived at appellant’s

residence and “side-swiped (sinagi)appellant’s car (which was parked outside)to gain entry into the house. Appellant’sson, who is the only one present in thehouse, opened the door and wasimmediately handcuffed to a chair afterbeing informed that they are policemen witha warrant to search the premises.

B. Searches without Warrant, when Valid

General rule: Areas within the reach andcontrol of the accused are the permissibleareas of search for both stop-and-frisk andsearch-incident-to-a-valid-arrest (Espano vs.CA; People vs. Cubcubin, 2001).

People vs. Veloso (1925):

It was alleged that Parliamentary Club was agambling house; search warrant was obtained.Veloso read the warrant and said that he wasnot “John Doe”. The Court ruled that the JohnDoe search warrant was valid and held thatthere is nothing to prevent issue and service ofwarrant against a party whose name isunknown. Besides, the officers had the right toarrest the persons engaged in prohibited game.An officer making an arrest may take fromthe person arrested any money / propertyfound upon his person, w/c was used incommission of crime, or was the fruit of thecrime, or w/c may furnish the person w/means of committing violence or escaping,or w/c may be used as evidence on trial, butnot otherwise.

Other specific situations:

Quick Look:1. Search is an Incident to a Lawful Arrest.2. Search of Moving Vehicles3. Plain View Doctrine4. Stop and Frisk Searches5. Valid Express Waiver6. Customs search7. Visual Search at Checkpoints8. Conduct of “Areal Target Zoning” and

“saturation drive”9. Exigent and Emergency Circumstances

1. Search is an incident to a lawful arrest.

Sec. 12, Rule 126, Rules of Court. Searchincident to lawful arrest. - A person lawfullyarrested may be searched for dangerousweapons or anything which may be used asproof of the commission of an offense, withouta search warrant. The provision (R126, S12) is declaratory in

the sense that it is confined to the search,without a search warrant, of a person whohad been arrested.

It is also a general rule that, as an incidentof an arrest, the place or premises wherethe arrest was made can also be searchwithout a search warrant. In this latter case,"the extent and reasonableness of the


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search must be decided on its own factsand circumstances.

What must be considered is the balancingof the individual's right to privacy and thepublic's interest in the prevention of crimeand the apprehension of criminals.(Nolasco vs. Pano, 1985)

Test for validity: Item to be searched was within the

arrester’s custody; Search was contemporaneous with the

arrest

Nolasco vs Cruz Paño (1985):

Aguilar-Roque and Nolasco, allegedlyconnected w/ the CPP-NPA and accused ofrebellion and subversion, assert that the searchwarrant in this case is void because (1) itdoesn’t sufficiently describe things subject ofthe search & seizure and (2) probable causehasn’t been established for lack of searchingquestions propounded to applicant’s witness.Court ruled that the search warrant is void.However, the Court also ruled that the searchin question did not need a search warrant.Under the Rules of Court, a person chargedw/ an offense may be searched fordangerous weapons or anything w/c may beused as proof of the commission of theoffense. As an incident of an arrest, thepremises where the arrest was made canalso be searched w/o search warrant.

Nolasco vs. Paño, M.R., 1987:In this Motion for Partial Reconsideration of the1985 decision, the petitioners submit that awarrantless search can be justified only if it’s anincident to a lawful arrest and that since Aguilarwasn’t lawfully arrested, a search w/o warrantcouldn’t be made. The SolGen offered noobjection to declaration that the search wasillegal and to the return of the seized items. TheMotion for Partial Reconsideration is granted.

2. Search of Moving Vehicles

Securing SW is not practicable since thevehicle can be quickly moved out of the localityor jurisdiction in which the warrant must besought (Papa vs. Mago 1968)

3. Plain View Doctrine: Things seized arewithin plain view of a searching party

Requisites (People vs. Musa; People vs.Sarap, 2003):a. Prior valid intrusion into a place;b. Evidence:

inadvertently discovered by police who had the right to be where

they were;c. Evidence must be immediately apparent

andd. Noticed without further search

4. Stop and Frisk Searches

There should be a genuine reason to “stop-and-frisk in the light of the police officer’sexperience and surrounding conditions towarrant a belief that the person detained hasweapons concealed. (Malacat vs. CA 1997,citing Terry vs. Ohio)

5. Valid Express Waiver made Voluntarilyand Intelligently

Requisites (People vs. Peralta, 2004):

a. Must appear that right exists;b. Person involved had actual/ constructive

knowledge of the existence of such right;c. Said person had an actual interest to

relinquish the right;d. Waiver is limited only to the arrest;e. Waiver does not extend to search made as

an incident thereto, or to any subsequentseizure of evidence found in the search.

People vs. Kagui Malasugui (1936):

It was ruled that the right to be secure fromunreasonable search may be waived.Waiver may be express or implied. Whenone voluntarily submits to a search orconsents to have it made of his person /premises, he is precluded from latercomplaining. In this case, the appellant neithermade objection nor even muttered a bit ofprotest when the search was conducted on hisperson. Also, as held in Weeks v. UnitedStates, when the search of the person detainedor arrested and seizure of effects found in hispossession are incidental to an arrest made inconformity w/ the law, they cannot beconsidered unreasonable, much less unlawful.


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6. Customs Search

Searches of vessel and aircraft for violation ofimmigration and smuggling laws. (Papa vs.Mago, 1968)

7. Visual Search at Checkpoints(Valmonte vs. de Villa)

8. Conduct of “areal target zoning” and“saturation drive” in the exercise of themilitary powers of the President (Guanzonvs. de Villa, 1990)

9. Exigent and Emergency Circumstances(People vs. de Gracia 1994)

Example: 1989 Coup d’etat

C. Properties Subject to Seizure

General rule: Only the articles particularlydescribed in the warrant may be seized.

o Property subject of an offenseo Stolen or embezzled property and other

proceeds or fruits of an offenseo Used or intended to be used as a means of

committing an offense (Sec. 2 Rule 126,ROC)

People vs. Salanguit:

Where the warrant authorized only the seizureof shabu, and not marijuana, the seizure of thelatter was held unlawful.

Burgos vs. Chief of Staff:

It is not necessary that the property to besearched or seized should be owned by theperson against whom the person is issued; it issufficient that the property is within his controlor possession.

Comparison of Procedures in ObtainingSearch Warrants and Arrest Warrants

R112, Sec. 6. When warrant of arrest mayissue. – (a) By the Regional Trial Court. –Within ten (10) days from the filing of thecomplaint or information, the judge shallpersonally evaluate the resolution of theprosecutor and its supporting evidence. Hemay immediately dismiss the case if theevidence on record clearly fails to establishprobable cause. If he finds probable cause, he

shall issue a warrant of arrest, or a commitmentorder if the accused has already been arrestedpursuant to a warrant issued by the judge whoconducted the preliminary investigation or whenthe complaint or information was filed pursuantto section 7 of this Rule. In case of doubt onthe existence of probable cause, the judgemay order the prosecutor to presentadditional evidence (THIS IS NOT FOUND INTHE PROCEDURE FOR A SEARCHWARRANT) within five (5) days from noticeand the issue must be resolved by the courtwithin thirty (30) days from the filing of thecomplaint of information.

R126, Sec. 4. Requisites for issuing searchwarrant. – A search warrant shall not issueexcept upon probable cause in connectionwith one specific offense to be determinedpersonally by the judge after examinationunder oath or affirmation of the complainantand the witness he may produce, andparticularly describing the place to be searchedand the things to be seized which may beanywhere in the Philippines.

IV. Detention/Custodial Investigation

A. Rights under Custodial Investigation

ART. III, SEC. 12, 1987 CONSTITUTION

1. Any person under investigation for thecommission of an offense shall have theright to be informed of his right to remainsilent and to have competent andindependent counsel preferably of his ownchoice. If the person cannot afford theservices of counsel, he must be providedwith one. These rights cannot be waivedexcept in writing and in the presence ofcounsel.

2. No torture, force, violence, threat,intimidation, or any other means whichvitiate the free will shall be used againsthim. Secret detention places, solitary,incommunicado, or other similar forms ofdetention are prohibited.

3. Any confession or admission obtained inviolation of this or Section 17 hereof shallbe inadmissible in evidence against him.

4. The law shall provide for penal and civilsanctions for violations of this section aswell as compensation to the rehabilitationof victims of torture or similar practices, andtheir families.


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In Miranda vs. Arizona:The Federal Supreme Court made it clear thatwhat is prohibited is the "incommunicadointerrogation of individuals in a policedominated atmosphere, resulting in self-incriminating statements without fullwarnings of constitutional rights.”

MIRANDA RIGHTS

The person under custodial investigationmust be warned that—1. He has a right to remain silent,2. That any statement he does make may be

used as evidence against him, and3. That he has a right to the presence of an

attorney, either retained or appointed.

People vs. Galit (1985):

The long question during the appraisal ofGalit’s constitutional rights followed by amonosyllabic answer does not satisfy therequirements of the law that the accused beinformed of his rights. Instead there shouldbe several short and clear questions andevery right explained in simple words in adialect or language known to the personunder investigation. In this case, the accusedis from Samar and there is no showing that heunderstands Tagalog. Furthermore, waiver ofthe right to counsel must be done in thepresence of counsel, otherwise, the procuredstatements will be inadmissible.

People vs. Duero (1985):

“Inasmuch as the prosecution in this case failedto prove that before Duero made his allegedoral confession he was informed of hisrights to remain silent and to have counseland because there is no proof that heknowingly and intelligently waived thoserights, his confession is inadmissible inevidence.” Accused repudiated his alleged oralconfession during trial. Since, the SC foundthat the procedure set out in the Mirandacase was not followed, oral confession ofaccused to police station commander isinadmisible in evidence. (enshrined in Art. III,Sec. 12 of the 1987 Constitution)

People vs. Andag (1980):

The SC reversed the lower court’s imposition ofdeath penalty because “the accused was noteven informed at the start of the investigation ofhis right to counsel, much less afforded the

service of counsel notwithstanding hisinsistence.” He was given the unacceptableexcuse that there were no available lawyers.

As used in this Act, "custodial investigation"shall include the practice of issuing an"invitation" to a person who is investigated inconnection with an offense he is suspected tohave committed, without prejudice to theliability of the "inviting" officer for any violationof law.

NOTE: These rights were further reiteratedunder RA 7438, otherwise known as AN ACTDEFINING CERTAIN RIGHTS OF PERSONARRESTED, DETAINED OR UNDERCUSTODIAL INVESTIGATION AS WELL ASTHE DUTIES OF THE ARRESTING,DETAINING AND INVESTIGATINGOFFICERS, AND PROVIDING PENALTIESFOR VIOLATIONS THEREOF

RA 7438, Rights of Persons under CustodialInvestigation;

Section 1. Statement of Policy. - It is the policyof the Senate to value the dignity of everyhuman being and guarantee full respect forhuman rights

Section 2. Rights of Persons Arrested,Detained or Under Custodial Investigation;Duties of Public Officers. –

(b) Any public officer or employee, or anyoneacting under his order or his place, who arrests,detains or investigates any person for thecommission of an offense: shall inform the latter, in a language

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

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

confer privately with the personarrested, detained or under custodialinvestigation.

If such person cannot afford the services ofhis own counsel, he must be providedwith a competent and independentcounsel by the investigating officer.

1. When Rights are Available:

When the person is already incustody


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Custodial investigation involves anyquestioning initiated by lawenforcement

During “critical pre-trial stages” in thecriminal process

People vs. Mara, (1994):

The rights under sec. 12, Art. 3 are availablewhen the investigation is no longer a generalinquiry unto an unsolved crime but has begunto focus on a particular suspect, as when thesuspect has been taken into police custody andthe police carries out a process of interrogationthat lends itself to eliciting incriminatingstatements.

People vs. Escordial:

An out-of-court identification may be made in a“show up” (accused is brought face to facewith the witness for identification), or “policeline-up” (suspect is identified by witness from agroup of persons gathered for that purpose).

U.S. vs. Wade 388 U.S. 218 (1967):

Neither the lineup itself nor anything requiredtherein violated respondent's Fifth Amendmentprivilege against self-incrimination, sincemerely exhibiting his person for observation bywitnesses and using his voice as an identifyingphysical characteristic involved no compulsionof the accused to give evidence of a testimonialnature against himself which is prohibited bythat Amendment. HOWEVER, the SixthAmendment guarantees an accused theright to counsel not only at his trial but atany critical confrontation by theprosecution at pretrial proceedings wherethe results might well determine his fate andwhere the absence of counsel mightderogate from his right to a fair trial.

During custodial investigations, these types ofidentification have been recognized as “criticalconfrontations of the accused by theprosecution, necessitating presence ofcounsel for the accused. Otherwise, theidentification will be inadmissible in evidence.

Note: INVITATIONS - Sec. 2, RA 7438provides that custodial investigation shallinclude the practice of issuing an invitation to aperson who is under investigation in connectionwith an offense he is suspected to havecommitted.

Babst vs. NBI (1984):

Ordinarily, an invitation to attend a hearing andanswer some questions which the personinvited may heed or refuse is notunconstitutional. Under certaincircumstances, however, such an invitationcan easily assume a different appearance.Here, where the invitation comes from apowerful group composed predominantly ofranking military officers issued at a time whenthe country has just emerged from martial ruleand when the suspension of the privilege of thewrit of habeas corpus has not entirely beenlifted and the designated interrogation site is amilitary camp, the same can easily be taken notas a strictly voluntary invitation but as anauthoritative command which one can onlydefy at his peril, especially where theinvitation carries the ominous seaming that"failure to appear . . . shall be considered as awaiver…and this Committee will be constrainedto proceed in accordance with law."

2. Discussion of Rights Accorded

People vs. Agustin, (1995):This carries the correlative obligation on thepart of the investigator to explain, andcontemplates effective communication whichresults in the subject/accused understandingwhat is conveyed.

a. Right to Remain Silent The warning is needed simply to make

the person under custodialinvestigation aware of the existence ofthe right;

This warning is the thresholdrequirement for an intelligent decisionas to its exercise.

More importantly, such a warning is anabsolute pre-requisite in overcomingthe inherent pressures of theinterrogation atmosphere.

Further, the warning will show theindividual that his interrogators areprepared to recognize his privilegeshould he choose to exercise it.

b. Right against Self-Incrimination underArt. III, Sec. 12 The warning of the right to remain silent

must be accompanied by theexplanation that anything said can andwill be used against the individual incourt.


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This warning is needed in order tomake him aware not only of theprivilege to remain silent, but also ofthe consequences of forgoing it.

c. Right to Counsel

RA 7438, Rights of Persons under CustodialInvestigation; Section 2. Rights of PersonsArrested, Detained or Under CustodialInvestigation; Duties of Public Officers. –

(a) Any person arrested detained or undercustodial investigation shall at all times beassisted by counsel;

The Miranda doctrine was modified toqualify the right to counsel to meancompetent and independent counselpreferably of the suspect's own choice.

An individual need not make a pre-interrogation request for a lawyer.

While such request affirmatively secureshis right to have one, his failure to ask fora lawyer does not constitute a waiver.

No effective waiver of the right tocounsel during interrogation can berecognized unless specifically madeAFTER the warnings have been given.

o The accused who does not knowhis rights and therefore does notmake a request may be the personwho most needs counsel.

If an individual indicates that he wishes theassistance of counsel before anyinterrogation occurs, the authoritiescannot rationally ignore or deny hisrequest on the basis that the individualdoes not have or cannot afford aretained attorney.

In order fully to apprise a personinterrogated of the extent of his rights underthis system then, it is necessary to warnhim not only that he has the right to consultwith an attorney, but also that if he isindigent a lawyer will be appointed torepresent him.

POLICE LINE-UPS (Gamboa vs. Cruz, 1988):

When petitioner was identified by thecomplainant at the police line-up, he hadnot been held yet to answer for acriminal offense.

The police line-up is not a part of thecustodial inquest, hence, he was not yetentitled to counsel.

Thus, it was held that when the processhad not yet shifted from the investigatory tothe accusatory as when police investigationdoes not elicit a confession the accusedmay not yet avail of the services of hislawyer (Escobedo vs. Illinois of the UnitedStates Federal Supreme Court, 1964).

However, given the clear constitutionalintent in the 1987 Constitution, themoment there is a move or even an urgeof said investigators to elicit admissionsor confessions or even plain informationwhich may appear innocent orinnocuous at the time, from said suspect,he should then and there be assisted bycounsel, unless he waives the right, butthe waiver shall be made in writing and inthe presence of counsel.

d. Rights to Visitation and Conference

Sec. 2. Rights of Persons Arrested, Detained orUnder Custodial Investigation; Duties of PublicOfficers. –

(f) Any person arrested or detained or undercustodial investigation shall be allowedvisits by or conferences with any member of his immediate family,

or any medical doctor; priest or religious minister chosen by

him; or by his counsel; or by any national non-governmental

organization duly accredited by theCommission on Human Rights or

by any international non-governmental organization dulyaccredited by the Office of thePresident.

The person's "immediate family" shallinclude his or her spouse, fiance orfiancee, parent or child, brother orsister, grandparent or grandchild, uncleor aunt, nephew or niece, and guardianor ward.

B. Tests of Waiver of Miranda Rights

1. What Cannot be Waived

The right to remain silent and the right tocounsel may be waived.

What cannot be waived is THE RIGHT TOBE GIVEN THE MIRANDA WARNINGS.


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2. Rule on Waiver

ART. III, SEC. 12:(1) Must be in writing(2) Made in the presence of counsel

RA 7438, Rights of Persons under CustodialInvestigation; Section 2. Rights of PersonsArrested, Detained or Under CustodialInvestigation; Duties of Public Officers. –

(e) Any waiver by a person arrested ordetained under the provisions of Article125 of the Revised Penal Code, or undercustodial investigation, shall be in writingand signed by such person in the presenceof his counsel; otherwise the waiver shallbe null and void and of no effect.

3. Burden of Proving Voluntariness ofWaiver (People vs. Jara, 1986)

Whenever a protection given by theConstitution is waived by the personentitled to that protection, the presumptionis always against the waiver.

Consequently, the prosecution mustprove with strongly convincing evidenceto the satisfaction of this Court that indeedthe accused: Willingly and voluntarily submitted his

confession and Knowingly and deliberately manifested

that he was not interested in having alawyer assist him during the taking ofthat confession.

V. Protocol After Conduct OfInvestigation

Sec. 2. Rights of Persons Arrested, Detained orUnder Custodial Investigation; Duties of PublicOfficers. –

(c) The custodial investigation report shall be: Reduced to writing by the investigating

officer; It shall be read and adequately explained

to him by his counsel or by the assistingcounsel provided by the investigatingofficer in the language or dialect knownto such arrested or detained person,

The reading and explanation SHOULD BEDONE BEFORE such report is signed, orthumb-marked (if the person arrested or

detained does not know how to read andwrite).

EFFECT OF FAILURE TO FOLLOWPROTOCOL: Such investigation report shallbe null and void and of no effect whatsoever.

VI. Other Rights Guaranteed Under Art.III. Sec. 12

A. No torture, force, violence, threatintimidation or any other means whichvitiate the free will shall be used againsthim

B. Secret detention places, solitary,incommunicado, or other similar forms ofdetention are prohibited

C. Confessions or admissions obtained inviolation of these rights are inadmissibleevidence.

VII.Exclusionary Rules

RA 7438, Rights of Persons under CustodialInvestigation; Section 2. Rights of PersonsArrested, Detained or Under CustodialInvestigation; Duties of Public Officers.

(d) Any extrajudicial confession made by aperson arrested, detained or under custodialinvestigation: shall be in writing and signed by such

person in the presence of his counsel or inthe latter's absence,

upon a valid waiver, and in the presence of any of the parents, elder

brothers and sisters, his spouse, themunicipal mayor, the municipal judge,district school supervisor, or priest orminister of the gospel as chosen by him;

otherwise, such extrajudicial confessionshall be inadmissible as evidence in anyproceeding.

A. Vis-à-vis Violation of the Right AgainstUnreasonable Searches and Seizures

Sec. 3(2), Art. 3, 1987 CONSTI. Any evidenceobtained in violation of this or the precedingsection shall be inadmissible for any purpose inany proceeding.


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Evidence obtained in violation of Sec. 2 Art. 3shall be inadmissible for any purpose and inany proceeding (Stonehill vs, Diokno, 1967)

Nardone vs. US:

Once the primary source is shown to havebeen unlawfully obtained, any secondary orderivative evidence is also inadmissible.

B. Vis-à-vis Violation of the Rights ofPersons under Custodial Investigation

ART. III, SEC. 12(3): Any confession oradmission obtained in violation of this orSection 17 hereof shall be inadmissible inevidence against him.

C. Vis-à-vis Violation of the Right AgainstSelf-incrimination

ART. III. SEC. 17: No person shall becompelled to be a witness against himself.[in relation to SEC. 12(3)]

RA 7438 | Rights of Persons under Custodial InvestigationSection 4. Penalty Clause.

PERSON LIABLE FOR WHAT ACTS PENALTYAny arresting publicofficer or employee,or any investigatingofficer

fails to inform any person arrested,detained or under custodialinvestigation of his right to remainsilent and to have competent andindependent counsel preferably of hisown choice

o a fine of Six thousand pesos(P6,000.00) or a penalty ofimprisonment of not less thaneight (8) years but not more thanten (10) years, or both.

o The penalty of perpetual absolutedisqualification shall also beimposed upon the investigatingofficer who has been previouslyconvicted of a similar offense.

Public officer oremployee, or anyoneacting upon orders ofsuch investigatingofficer or in his place

fails to provide a competent andindependent counsel to a personarrested, detained or under custodialinvestigation for the commission of anoffense if the latter cannot afford theservices of his own counsel

Same as above

Any person who obstructs, prevents or prohibitsany lawyer, any member of theimmediate family of a person arrestedfrom visiting and conferring privatelywith him, or from examining and treatinghim, or from ministering to his spiritualneeds, at any hour of the day or, in urgentcases, of the night

penalty of imprisonment of not lessthan four (4) years nor more thansix (6) years, and a fine of fourthousand pesos (P4,000.00)


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VIII. Right to Bail

Art. III. Sec. 13. All persons, except thosecharged with offenses punishable by reclusionperpetua when the evidence of guilt is strong,shall, before conviction, be bailable by sufficientsureties, or be released on recognizance as maybe provided by law. the right to bail shall not beimpaired even when the privilege of the writ ofhabeas corpus is suspended. Excessive bailshall not be required.

Definition(Rule 114, Sec. 1, ROC)

Bail is the security given for the release of aperson in custody of the law, furnished by him ora bondsman, conditioned upon his appearancebefore any court as may be required.

Dela Camara vs. Enage (1971)

Before conviction, every person is bailableexcept if charged with capital offenses when theevidence of guilt is strong. Such a right flowsfrom the presumption of innocence in favor ofevery accused who should not be subjected tothe loss of freedom as thereafter he would beentitled to acquittal, unless his guilt be provedbeyond reasonable doubt.

Comendador vs. De Villa (1991)

The military men who participated in the failedcoup d’ etat should be denied release on bail.The argument that denial from the military of theright to bail would violate the equal protectionclause is not acceptable, given that the officersand members of the military are not similarlysituated with others. They are allowed afiduciary use of firearms and can easily continuetheir insurgent activities against the government.National security considerations should impressupon the Court that release on bail ofrespondents constitutes a damaging precedent.

Enrile vs. Perez (En Banc Resolution, 2001)

It has not been alleged that the persons to bearrested for their alleged participation in the"rebellion" on May 1, 2001 are members of anoutlawed organization intending to overthrow thegovernment. Therefore, to justify a warrantlessarrest under Section 5(a), there must be ashowing that the persons arrested or to bearrested has committed, is actuallycommitting or is attempting to commit theoffense of rebellion. In other words, there must

be an overt act constitutive of rebellion takingplace in the presence of the arresting officer.

xxx

This requirement was not complied withparticularly in the arrest of Senator Enrile. Inthe Court's Resolution of May 5, 2001 in thepetition for habeas corpus filed by SenatorEnrile, the Court noted that the swornstatements of the policemen whopurportedly arrested him were hearsay.Senator Enrile was arrested two (2) days afterhe delivered allegedly seditious speeches.Consequently, his arrest without warrant cannotbe justified under Section 5(b) which states thatan arrest without a warrant is lawful when madeafter an offense has just been committed andthe arresting officer or private person hasprobable cause to believe based on personalknowledge of facts and circumstances that theperson arrested has committed the offense.

“Since the evidence in this case is hearsay, theevidence of guilt is not strong, bail is allowed.”

1. Bail as a Matter of Right vs. Matter ofDiscretion

Matter ofright

Matter of Discretion

Bail is amatter of rightin all casesnot punishableby reclusionperpetua.

In case the evidence of guilt isstrong.

In such a case, according toPeople vs. San Diego, (1966),the court's discretion to grantbail must be exercised in thelight of a summary of theevidence presented by theprosecution.

Thus, the order granting orrefusing bail must contain asummary of the evidence forthe prosecution followed by theconclusion on whether or notthe evidence of guilt is strong(Note: it is not the existenceof guilt itself which isconcluded but the strengthof the probability that guiltexists).

Also discretionary inextradition proceedings,because extradition courts donot render judgments ofconviction or acquittal so it


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does not matter WON thecrimes the accused is beingextradited for is punishable byreclusion perpetua (USGovernment vs. JudgePuruganan and Mark Jimenez,2002)

2. When Available:

From the very moment of arrest (which maybe before or after the filing of formal chargesin court) up to the time of conviction by finaljudgment (which means after appeal).

No charge need be filed formally before onecan file for bail, so long as one is underarrest. (Heras Teehankee vs. Rovica, 1945)

Lavides vs CA, 2000:

Arraigment of the accused is not essential to theapproval of the bail bond. When bail isauthorized, it should be granted beforearraignment. Otherwise the accused may beprecluded from filing a motion to quash. Also,the court will be assured of the presence of theaccused at the arraignment precisely by gratingbail and ordering his presence at any stage ofthe proceeding.

3. Standards for Fixing Bail

RULE 114. Sec. 9. Amount of bail;guidelines. – The judge who issued the warrantor granted the application shall fix a reasonableamount of bail considering primarily, but notlimited to, the following factors:

(a) Financial liability of the accused to give bail;(b) Nature and circumstance of the offense;(c) Penalty for the offense charged;(d) Character and reputation of the accused;(e) Age and health of the accused;(f) Weight of the evidence against the accused;(g) Probability of the accused appearing at the

trial;(h) Forfeiture of other bail;(i) The fact that the accused was a fugitive

from justice when arrested; and(j) Pendency of other cases where the

accused is on bail.

Excessive bail shall not be required.

Dela Camara v. Enage (1971):

The constitution prohibits “excessive bail.”Where the lower court fixed bail at P 1, 195,200.00, it rendered the right to bail nugatory. /

"Discretion…is with the court called upon to ruleon the question of bail. We must stress,however, that where conditions imposedupon a defendant seeking bail would amountto a refusal thereof and render nugatory theconstitutional right to bail, we will nothesitate to exercise our supervisory powersto provide the required remedy.

STANDARDS FOR FIXING BAIL: CitingVillaseñor vs. Abano, guidelines in the fixing ofbail are: (1) ability of the accused to give bail; (2)nature of the offense; (3) penalty for the offensecharged; (4) character and reputation of theaccused; (5) health of the accused; (6) characterand strength of the evidence; (7) probability ofthe accused appearing in trial; (8) forfeiture ofother bonds; (9) whether the accused wasafugitive from justice when arrested; and (10) if the accused is under bond for appearance at trialin other cases."

4. Right to Bail and Right to Travel Abroad

Manotok vs CA (1986):

The main issue in this case is WON a personfacing a criminal indictment and provisionallyreleased on bail have an unrestricted right totravel. The Court held that the “constitutionalright to travel being invoked by petitioner is notan absolute right. Section 5, Article IV of the1973 Constitution states: The liberty of abodeand of travel shall not be impaired except uponlawful order of the court, or when necessary inthe interest of national security, public safety orpublic health.

The Court considered the order of the TCreleasing petitioner on bail as a lawful ordercontemplated by the above-quoted constitutionalprovision.

POLITICAL LAW REVIEWER Chapter VI. RIGHTS of the ACCUSED

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Chapter VI. Rights of the Accused

I. RIGHTS DURING TRIALA. PRESUMPTION OF INNOCENCEB. RIGHT TO BE HEARD PERSONALLY

OR BY COUNSELC. RIGHT TO BE INFORMED OF

NATURE AND CAUSE OFACCUSATION

D. RIGHT TO SPEEDY, IMPARTIAL ANDPUBLIC TRIAL

E. RIGHT OF CONFRONTATIONF. RIGHT TO COMPULSORY

PROCESSESG. TRIAL IN ABSENTIAH. RIGHT AGAINST SELF-

INCRIMINATION

II. RIGHTS POST TRIALA. RIGHT AGAINST DOUBLE JEOPARDYB. EXCESSIVE FINES AND CRUEL,

DEGRADING AND INHUMANPUNISHMENT

C. INVOLUNTARY SERVITUDED. IMPRISONMENT FOR DEBTE. EX POST FACTO LAWS AND BILLS

OF ATTAINDER

I. Rights During Trial

ART. III. SEC. 14. 1987 CONSTITUTION.

(1) No person shall be held to answer for acriminal offense without due process of law.

(2) In all criminal prosecutions, the accusedshall be presumed innocent until thecontrary is proved, and shall enjoy the rightto be heard by himself and counsel, to beinformed of the nature and cause of theaccusation against him, to have a speedy,impartial, and public trial, to meet thewitnesses face to face, and to havecompulsory process to secure theattendance of witnesses and the productionof evidence in his behalf. However, afterarraignment, trial may proceednotwithstanding the absence of the accused:Provided, that he has been duly notified andhis failure to appear is unjustifiable.

ROC. RULE 115. RIGHTS OF ACCUSED

Section 1. Rights of accused at trial. – In allcriminal prosecutions, the accused shall beentitled to the following rights:

(a) To be presumed innocent until the contraryis proved beyond reasonable doubt.

(b) To be informed of the nature and causeof the accusation against him.

(c) To be present and defend in person andby counsel at every stage of theproceedings, from arraignment topromulgation of the judgment. The accusedmay, however, waive his presence at thetrial pursuant to the stipulations set forth inhis bail, unless his presence is specificallyordered by the court for purposes ofidentification.

The absence of the accused withoutjustifiable cause at the trial of which he hadnotice shall be considered a waiver of hisright to be present thereat.

When an accused under custodyescapes, he shall be deemed to havewaived his right to be present on allsubsequent trial dates until custody overhim is regained. Upon motion, the accusedmay be allowed to defend himself in personwhen it sufficiently appears to the court thathe can properly protect his rights without theassistance of counsel.

(d) To testify as a witness in his own behalfbut subject to cross-examination onmatters covered by direct examination.His silence shall not in any mannerprejudice him.

(e) To be exempt from being compelled tobe a witness against himself.

(f) To confront and cross-examine thewitnesses against him at the trial. Eitherparty may utilize as part of its evidence thetestimony of a witness who is deceased,out of or cannot with due diligence be foundin the Philippines, unavailable, or otherwiseunable to testify, given in another case orproceeding, judicial or administrative,involving the same parties and subjectmatter, the adverse party having theopportunity to cross-examine him.

(g) To have compulsory process issued tosecure the attendance of witnesses andproduction of other evidence in his behalf.

(h) To have speedy, impartial and publictrial.

(i) To appeal in all cases allowed and in themanner prescribed by law.


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A. Presumption of Innocence

People vs. Dramavo (1971):

The requirement of proof beyond reasonabledoubt is a necessary corollary of theconstitutional right to be presumed innocent.

Alejandro vs. Pepito (1980):

The accused cannot present evidence beforethe prosecution does so, even if the accusedpleads guilty. It violates the presumption ofinnocence.

People vs. Acuram:

The presumption of regularity (in official duties)cannot by itself prevail over the presumption ofinnocence of the accused. But where it is not thesole basis for conviction, the presumption ofregularity of performance of official functionsmay prevail over the constitutional presumptionof innocence.

Corpus vs. People:

EQUIPOISE RULE:Where the evidence adduced by the parties

are evenly balanced, the constitutionalpresumption of innocence should tilt the balancein favor of the accused.

B. Right to be Heard Personally or byCounsel

ART. III. SEC. 12. 1987 CONSTITUTION.1. Any person under investigation for the

commission of an offense shall have theright to be informed of his right to remainsilent and to have competent andindependent counsel preferably of his ownchoice. If the person cannot afford theservices of counsel, he must be providedwith one. These rights cannot be waivedexcept in writing and in the presence ofcounsel.

RA 7438. Rights of Persons under CustodialInvestigation. SEC. 2. Rights of PersonsArrested, Detained or Under CustodialInvestigation; Duties of Public Officers. –(a) Anyperson arrested detained or under custodialinvestigation shall at all times be assisted bycounsel;

Elements of the Right to Counsel:

1. Court’s duty to inform the accused of right tocounsel before being arraigned;

2. It must ask him if he desires the services ofcounsel;

3. If he does, and is unable to get one, theCourt must give him one; if the accusedwishes to procure private counsel, the Courtmust give him time to obtain one.

4. Where no lawyer is available, the Court mayappoint any person resident of the provinceand of good repute for probity and ability.

C. Right to be Informed of Nature andCause of Accusation

Vera vs. People:

Procedural due process requires that theaccused must be informed why he is beingprosecuted and what charge he must meet.

D. Right to Speedy, Impartial and PublicTrial

ART. III. SEC. 16. All persons shall have theright to a speedy disposition of their casesbefore all judicial, quasi-judicial, oradministrative bodies.

ART. III. SEC. 3. Civilian authority is, at alltimes, supreme over the military. xxx

Sec. 10. Law on speedy trial not a bar toprovision on speedy trial inthe Constitution. – No provision of law onspeedy trial and no rule implementing the sameshall be interpreted as a bar to any charge ofdenial of the right to speedy trial guaranteed bySection 14(2), Article III, of the 1987Constitution.

Olaguer vs. Military Commission (1987):

IMPARTIAL TRIALA civilian cannot be tried by a military court

so long as the civil courts are open andoperating, even during Martial Law.

Acevedo vs. Sarmiento (1970):Dismissal based on the denial of the right tospeedy trial amounts to an acquittal.


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Note: RA 8493 provides: a 30-day arraignmentwithin the filing of the information or from thedate the accused appeared before the court; trialshall commence 30 days from the arraignment,as fixed by the court. The entire trial period shallnot exceed 180 days, except as otherwiseauthorized by the SC Chief Justice.

E. Right of Confrontation

This is the basis of the right to cross-examination.

F. Right to Compulsory Processes

1. Right to Secure Attendance of Witness2. Right to Production of Other Evidence

G. Trial in Absentia

Borja vs. Mendoza (1977):

WHEN CAN TRIAL IN ABSENTIA BE DONE:Accused failed to appear for trial despite

postponement and notice to his bondsmen. TheCourt then allowed prosecution to presentevidence despite the fact that accused had notbeen arraigned. Petitioner was found guilty. Theissue is WON the court has jurisdiction. TheCourt held that because accused was notarraigned, he was not informed of the natureand cause of accusation against him, Therefore,the Court has no jurisdiction. Theindispensable requisite for trial in absentia isthat it should come after arraignment.

Gimenez vs. Nazareno (1988)After arraignment, during which accusedpleaded not guilty, case was set for hearing butthe accused escaped. He was tried in absentia.Lower court held the proceedings against him inabeyance to give him the opportunity to crossexamine witnesses against him and present hisevidence.

The Court held that abeyance of proceedingswas invalid. Such right to cross examine andpresent evidence on his behalf is waived byfailure to appear during the trial of which hehad notice.

When Presence of the Accused is a DUTY1) Arraignment and Plea2) During Trial, for identification3) Promulgation of Sentence

(Exception: Light offense -> can be viacounsel)

Aquino vs. Military Commission (1975)

Petitioner challenges the jurisdiction ofmilitary commissions to try him (for murder,illegal possession of firearms and forviolation of the Anti-Subversion Act) arguingthat he being a civilian, such trial duringmartial law deprives him of his right to dueprocess.

An issue has been raised as to WONpetitioner could waive his right to be presentduring trial.

On a 7-5 voting: SEVEN justices voted thatpetitioner may waive his right to be present atALL stages of the proceedings while FIVE votedthat this waiver is qualified, he cannot waivewhen he is to be identified.

Trial in Absentia: As a general rule, subject tocertain exceptions, any constitutional orstatutory right may be waived if such waiver isnot against public policy.

Considering Art IV, Sec 19, 1973 Constitution(trial of a capital offense may proceed even inthe absence of the accused) and the absence ofany law specifically requiring his presence at allstages of his trial, there appears, no logicalreason why petitioner, although he ischarged with a capital offense, should beprecluded from waiving his right to bepresent in the proceedings for theperpetuation of testimony, since this right wasconferred upon him for his protection andbenefit.

H. Right Against Self-Incrimination

Sec. 17, Art. 3. No person shall be compelled tobe a witness against himself.

1. Scope

Compulsory testimonial self-incrimination

It refers therefore to the use of the mentalprocess and the communicative faculties,and not to a merely physical activity.

If the act is physical or mechanical, theaccused can be compelled to allow orperform the act, and the result can be usedin evidence against him.


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2. Examples

a. Handwriting in connection with a prosecutionfor falsification is NOT allowed, for thisinvolves the use of the mental processes(Beltran vs. Samson, 53 Phil 570; Bermudezvs. Castillo, 1937).

b. Re-enactment of the crime by the accused isNOT allowed, for this also involves themental process.

c. The accused can be required to allow asample of a substance taken from his body(U.S. vs. Tan Teh, 1912), or be ordered toexpel the morphine from his mouth (U.S. vs.Ong Sio Hong, 1917)

d. Accused may be made to take off hergarments and shoes and be photographed(People vs. Otadura, 96 Phil 244, 1950);compelled to show her body for physicalinvestigation to see if she is pregnant by anadulterous relation (Villaflor vs. Summers,1920)

e. Order to give a footprint sample to see if itmatches the ones found in the scene of thecrime is allowed (People vs. Salas andPeople vs. Sara).

3. Kinds of Proceeding Applicable

General rule: The privilege is available in anyproceedings, even outside the court, for theymay eventually lead to a criminal prosecution.

a. It extends to administrative proceedingswhich possess a criminal or penal aspect. Adoctor who was being investigated by amedical board for alleged malpractice whowould lose his license if found guilty, couldnot be compelled to take the witness standwithout his consent. (Pascual vs. Board ofMedical Examiners, 1969)

b. It extends to a fact-finding investigationby an ad hoc body. A person can becompelled to testify provided he is givenimmunity co-extensive with the privilegeagainst self-incrimination (Galman vs.Pamaran, 1985)

4. Use Immunity v. Transactional Immunity

a. Transactional Immunity

ART. XIII. SEC. 18. 1987 CONSTITUTION.The Commission on Human Rights shall havethe following powers and functions:

xxx(8) Grant immunity from prosecution to any

person whose testimony or whosepossession of documents or other evidenceis necessary or convenient to determine thetruth in any investigation conducted by it orunder its authority;

b. Use and Fruit of Immunity

Galman vs. Pamaran (1985):

“Use immunity” prohibits use of a witness’compelled testimony and its fruits in any mannerin connection with the criminal prosecution of thewitness. On the other hand “transactionalimmunity” grants immunity to witness fromprosecution for an offense to which hiscompelled testimony relates.

5. Effect of Denial of Privilege

EXCLUSIONARY RULE under ART. III. SEC.17 in relation to SEC. 12: When the privilegeagainst self-incrimination is violated outside ofcourt (e.g. police), then the testimony, asalready noted, is not admissible.

OUSTED OF JURISDICTION: When theprivilege is violated by the Court itself, that is, bythe judge, the court is ousted of its jurisdiction,all its proceedings and even judgment are nulland void. (Chavez vs. CA, 1968)

II. Rights Post Trial

A. Right against Double Jeopardy

ART. III. SEC. 21. No person shall be twice putin jeopardy of punishment for the same offense.If an act is punished by a law and an ordinance,conviction or acquittal under either shallconstitute a bar to another prosecution for thesame act.

1. Elements of Double Jeopardy(Rule 117, Sec. 7; People vs. Obsania,1968)

a. Court of competent jurisdiction;b. A Complaint/Information sufficient in form

and substance to sustain a conviction;


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c. Arraignment and plea by the accused;d. Conviction, acquittal, or dismissal of the

case without the express consent, of theaccused.

2. When Subsequent Prosecution is Barred

a. Same offenseb. Attempt of the same offensec. Frustration of the same offensed. Offense necessarily included in the 1st

offense (All the elements of the 2ndconstitute some of the elements of the 1stoffense)

e. Offense that necessarily includes the 1stoffense (All the elements of the 1stconstitute some of the elements of the 2ndoffense)

3. Exceptions

a. The graver offense developed due to"supervening facts" arising from the sameact or omission constituting the formercharged.

b. The facts constituting the graver chargebecame known or were discovered onlyafter the filing of the former complaint orinformation.

c. The plea of guilty to the lesser offense wasmade without the consent of the fiscal andthe offended party.

4. When Defense of Double Jeopardy isAvailable

a. Dismissal based on insufficiency ofevidence;

b. Dismissal because of denial of right tospeedy trial;

c. Accused is discharged to be a state witness.

5. When Defense of Double Jeopardy isNOT Available

RULE 117. Sec. 8, par 1. Provisionaldismissal.—A case shall not be provisionallydismissed except with the express consent ofthe accused and with notice to the offendedparty.

When the case is dismissed other than onthe merits, upon motion of the accusedpersonally, or through counsel, such

dismissal is regarded as “with expressconsent of the accused”, who is thereforedeemed to have waived the right to pleadouble jeopardy.

6. Termination of Jeopardy

a. By acquittalb. By final convictionc. By dismissal without express consent of

accusedd. By “dismissal” on the merits

A. Excessive Fines and Cruel, Degradingand Inhuman Punishment

ART. III. SEC. 19. 1987 CONSTITUTION.1. Excessive fines shall not be imposed, nor

cruel, degrading or inhuman punishmentinflicted. Neither shall death penalty beimposed, unless, for compelling reasonsinvolving heinous crimes, the Congresshereafter provides for it. Any death penaltyalready imposed shall be reduced toreclusion perpetua.

2. The employment of physical, psychological,or degrading punishment against anyprisoner or detainee or the use ofsubstandard or inadequate penal facilitiesunder subhuman conditions shall be dealtwith by law.

People vs. dela Cruz (1953):

In this case the Court took into account, inlowering the penalty to reclusion perpetua of theaccused most of whom were already death rowconvicts, the deplorable sub-human conditionsof the National Penitentiary where the crime wascommitted.

RA 9346 (June 24, 2006): An Act Prohibitingthe Imposition of Death Penalty in thePhilippines:Sec. 1. The imposition of the penalty of death ishereby prohibited. Accordingly, R.A. No. 8177,otherwise known as the Act Designating Deathby Lethal Injection is hereby repealed. R.A. No.7659, otherwise known as the Death PenaltyLaw, and all other laws, executive orders anddecrees, insofar as they impose the deathpenalty are hereby repealed or amendedaccordingly.


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B. Involuntary Servitude

ART. III. SEC. 18 (2). 1987 CONSTITUTION.No involuntary servitude in any form shall existexcept as a punishment for a crime whereof theparty shall have been duly convicted.

C. Imprisonment for Debt

ART. III. SEC. 20. 1987 CONSTITUTION.No person shall be imprisoned for debt or non-payment of a poll tax.

D. Ex Post Facto Laws and Bills OfAttainder

ART. III. SEC. 22. 1987 CONSTITUTION.No ex post facto law or bill of attainder shall beenacted.

People vs. Ferrer (1972):

RA 1700 which declared the Communist Party ofthe Philippines a clear and present danger toPhilippine security, and thus prohibitedmembership in such organization, wascontended to be a bill of attainder. Although thelaw mentions the CPP in particular, its purposeis not to define a crime but only to lay a basis orto justify the legislative determination thatmembership in such organization is a crimebecause of the clear and present danger tonational security.

POLITICAL LAW REVIEWER Chapter VII. WRITS

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Chapter VII. Writs

I. HABEAS CORPUSII. WRIT OF AMPAROIII. HABEAS DATA

I. Habeas Corpus

ART. III. SEC. 15. 1987 CONSTITUTION.The privilege of the writ of habeas corpus shallnot be suspended except in cases of invasion orrebellion when the public safety requires it.

ART. VII. SEC. 18. 1987 CONSTITUTION. The President shall be the Commander-in-

Chief of all armed forces of the Philippinesand whenever it becomes necessary, hemay call out such armed forces to prevent orsuppress lawless violence, invasion orrebellion.

In case of invasion or rebellion, when thepublic safety requires it, he may, for aperiod not exceeding sixty days,suspend the privilege of the writ ofhabeas corpus or place the Philippines orany part thereof under martial law.

Within forty-eight hours from theproclamation of martial law or thesuspension of the privilege of the writ ofhabeas corpus, the President shallsubmit a report in person or in writing tothe Congress.

The Congress, voting jointly, by a vote ofat least a majority of all its Members inregular or special session, may revokesuch proclamation or suspension, whichrevocation shall not be set aside by thePresident.

Upon the initiative of the President, theCongress may, in the same manner, extendsuch proclamation or suspension for aperiod to be determined by the Congress,if the invasion or rebellion shall persistand public safety requires it.

The Congress, if not in session, shall, withintwenty-four hours following suchproclamation or suspension, convene inaccordance with its rules without need of acall.

The Supreme Court may: 1) review, 2) inan appropriate proceeding; 3) filed byany citizen, 4) the sufficiency of thefactual basis of the proclamation ofmartial law or the suspension of theprivilege of the writ or the extension

thereof, and 5) must promulgate its decisionthereon within thirty days from its filing.

A state of martial law does not suspendthe operation of the Constitution, norsupplant the functioning of the civil courts orlegislative assemblies, nor authorize theconferment of jurisdiction on military courtsand agencies over civilians where civilcourts are able to function, norautomatically suspend the privilege ofthe writ.

The suspension of the privilege of thewrit shall apply only to persons judiciallycharged for rebellion or offenses inherentin or directly connected with invasion.

Villavicencio vs. Lukban (1919):

"A prime specification of an application for a writof habeas corpus is restraint of liberty.

The essential object and purpose of the writof habeas corpus is to inquire into allmanner of involuntary restraint asdistinguished from voluntary, and to relievea person therefrom if such restraint is illegal.Any restraint which will preclude freedom ofaction is sufficient.

The forcible taking of these women fromManila by officials of that city, who handedthem over to other parties, who depositedthem in a distant region, deprived thesewomen of freedom of locomotion just aseffectively as if they had been imprisoned.Placed in Davao without either money orpersonal belongings, they were prevented fromexercising the liberty of going when and wherethey pleased.

The restraint of liberty which began in Manilacontinued until the aggrieved parties werereturned to Manila and released or until theyfreely and truly waived his right."

"We believe the true principle should be that, ifthe respondent is within the jurisdiction of thecourt and has it in his power to obey the order ofthe court and thus to undo the wrong that he hasinflicted, he should be compelled to do so. Evenif the party to whom the writ is addressedhas illegally parted with the custody of aperson before the application for the writ isno reason why the writ should not issue.

Lansang vs. Garcia (1971):Petitioners were arrested without warrants anddetained, upon the authority of Proclamation 889(Which suspended the privilege of the Writ of


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Habeas Corpus) and subsequently filed apetition for writ of habeas corpus, assailing thevalidity of the said Proclamation and theirdetention.

The Court upheld the violation of theProclamation and dismissed the petitions. TheSupreme Court held that the authority tosuspend the privilege of the writ iscircumscribed, confined and restricted, notonly by the prescribed setting or the conditionsessential to its existence, but, also, as regardsthe time when and the place where it may beexercised.

Thus, the Court has the authority to inquire intothe existence of the factual bases for theproclamation in order to determine itsconstitutional sufficiency. The test for suchjudicial inquiry is whether or not the Executiveacted arbitrarily in issuing the Proclamation. Thetest is not correctness, but arbitrariness.

For the suspension of the privilege of the writ tobe valid, (a) there must be "invasion,insurrection or rebellion" or, pursuant toparagraph (2), section 10 of Art. VII of theConstitution, "imminent danger thereof"; and (b)public safety must require the aforementionedsuspension. The President declared inProclamation No. 889, as amended, that bothconditions are present, and the Supreme Courtagreed. The President did not act arbitrarily;the Court acknowledged the existence of asizeable group of men (Communists and theNPA) who have publicly risen in arms tooverthrow the government and have thusbeen and still are engaged in rebellion againstthe Government of the Philippines.

Moncupa vs. Enrile (1986):

It is not physical restraint alone which can beinquired into by means of the writ of habeascorpus. In this case, the petition is valid aspetitioner’s temporary release from detention isaccompanied with restrictions w/ the ff effects: 1)curtailed freedom of movement by the conditionthat he must get approval of respondents for anytravel outside Metro Manila, 2) abridged libertyof abode because prior approval of respondentis required in case petitioner wants to changeplace of residence, 3) abridged freedom ofspeech due to prohibition from taking anyinterviews inimical to national security, and 4)petitioner is required to report regularly torespondents or their reps.

Gumabon vs. Director of Prisons (1971):

It being undeniable that if the Hernandez rulingwere to be given a retroactive effect petitionershad served the full term for which they couldhave been legally committed, is habeas corpusthe appropriate remedy?”

YES. In Cruz vs. Director of Prisons (1910),"The courts uniformly hold that where asentence imposes punishment in excess ofthe power of the court to impose, suchsentence is void as to the excess,

The rule is that the petitioner is not entitled tohis discharge on a writ of habeas corpusunless he has served out so much of thesentence as was valid." xxx “While the abovedecision speaks of a trial judge losing jurisdictionover the case, insofar as the remedy of habeascorpus is concerned, the emphatic affirmationthat it is the only means of benefiting theaccused by the retroactive character of afavorable decision holds true. Petitionersclearly have thus successfully sustained theburden of justifying their release.”

Sombong vs. CA (1990):

Sombong claims that she is the mother of thechild Christina, who is under the custody of Neri,and filed a petition for the issuance of the writ ofhabeas corpus. The Supreme Court denied thepetition.

In order to justify the grant of the writ of habeascorpus, the restraint of liberty must be in thenature of an illegal and involuntary deprivation offreedom of action. However, habeas corpusmay still be resorted to even if the restraint isvoluntary in cases where the rightful custodyof any person is withheld from the personentitled thereto. The said writ is the properlegal remedy to enable parents to regain thecustody of a minor child even if the child is in thecustody of a third person of her own free will.

Sombong does not have the right of custodyover the child, because the evidence adduceddoes not warrant the conclusion that Christina isthe same person as her child Arabella.

Velasco vs. CA (1995):

Larkins was arrested after a certain Alinea fileda complaint-affidavit for rape against him beforethe NBI. There was no warrant. A complaint forrape was subsequently filed before the RTC. Hiscommon-law wife filed a petition for habeascorpus.


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The Supreme Court held that even if the arrestof a person is illegal, supervening eventsmay bar his release or discharge fromcustody. The court must thus look into thelegality of his detention as of, at the earliest, thefiling of the application for a writ of habeascorpus, for even if the detention is at itsinception illegal, it may, by reason of somesupervening events, such as the instancesmentioned in Section 4 of Rule 102, be nolonger illegal at the time of the filing of theapplication. Among such supervening eventsare: The issuance of a judicial process

preventing the discharge of the detainedperson.

Another is the filing of a complaint orinformation for the offense for which theaccused is detained.

By then, the restraint of liberty is already byvirtue of the complaint or information and,therefore, the writ of habeas corpus is no longeravailable.

Section 4 of Rule 102 reads in part as follows:"Nor shall anything in this rule be held toauthorize the discharge of a person chargedwith or convicted an offense in the Philippines."It may also be said that by filing his motion forbail, Larkins admitted that he was under thecustody of the court and voluntarily submittedhis person to its jurisdiction.

II. Writ of Amparo and Writ of Habeas Data

QUERY WRIT OF AMPARO HABEAS DATAWhat is the writ ofamparo?

Remedy Available to any person Whose right to life, liberty, and

security has been violated or is

threatened with violation By an unlawful act or omission of a public official or employee,

or of a private individual orentity.

The writ covers extralegal killingsand enforced disappearances orthreats thereof.

Remedy Available to any person Whose right to life, liberty, and

security has been violated or is threatened

with violation By an unlawful act or omission of a public official or employee, or

of a private individual or entity

Engaged in the gathering,collecting or storing of data orinformation regarding the person,family, home and correspondenceof the aggrieved party.

What rule governspetitions for and theissuance of a writ ofamparo?

It is governed by The Rule on theWrit of Amparo (A.M. No. 07-9-12-SC ), which was approved by theSupreme Court on 25 September2007. This Rule also governsexisting cases involving extralegalkillings and enforceddisappearances or threats thereof.

The Rule on the Writ of Habeas Data(A.M. No. 08-1-16-SC), which wasapproved by the Supreme Court on22 January 2008. That Rule shall notdiminish, increase or modifysubstantive rights.

What is the SupremeCourt’s basis in issuingthe Rule?

The Rule was drafted pursuant tothe Supreme Court’s constitutionalpower to promulgate rules for theprotection and enforcement ofconstitutional rights (Constitution,Art. VIII, Sec. 5[5]).

(Constitution, Art. VIII, Sec. 5[5]).

When does the Rule takeeffect?

The Rule takes effect on 24 October2007, following its publication inthree (3) newspapers of generalcirculation.

The Rule takes effect on 2 February2008, following its publication in three(3) newspapers of general circulation.

Who may file a petitionfor the issuance of a writof amparo?

the aggrieved party or by anyqualified person or entity in thefollowing order:

The aggrieved party. However, in cases of extralegal

killings and enforced


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QUERY WRIT OF AMPARO HABEAS DATA

Any member of the immediatefamily, namely: the spouse,children and parents of theaggrieved party;

Any ascendant, descendant orcollateral relative of theaggrieved party within thefourth civil degree ofconsanguinity or affinity, indefault of those mentioned in thepreceding paragraph; or

Any concerned citizen,organization, association orinstitution, if there is no knownmember of the immediate familyor relative of the aggrievedparty.

disappearances, the petition maybe filed byo Any member of the immediate

family of the aggrieved party,namely: the spouse, childrenand parents; or

o Any ascendant, descendantor collateral relative of theaggrieved party within thefourth civil degree ofconsanguinity or affinity, indefault of those mentioned inthe preceding paragraph.

Where can the petition befiled?

The petition may be filed on anyday and at any time with:

The Regional Trial Court of theplace where the threat, act oromission was committed or any ofits elements occurred, the writ shall be returnable

before such court or judge.

or with the Sandiganbayan, theCourt of Appeals, or any justice ofsuch courts. The writ shall be enforceable

anywhere in the Philippines. It may be returnable before

such court or any justicethereof, or to any Regional TrialCourt to any Regional TrialCourt of the place where thethreat, act or omission wascommitted or any of itselements occurred.

The Supreme Court, or anyjustice The writ shall be enforceable

anywhere in the Philippines. it may be returnable before such

Court or any justice thereof, orbefore the Sandiganbayan orthe Court of Appeals or any oftheir justices, or to any RegionalTrial Court of the place wherethe threat, act or omission wascommitted or any of its elementsoccurred.

Regional Trial Court where the petitioner or

respondent resides, or that which has jurisdiction

over the place where the data orinformation is gathered, collectedor stored, at the option of thepetitioner.

Supreme Court;Court of Appeals;Sandiganbayan: when the actionconcerns public data files ofgovernment offices.

How much is the docketor filing fees for thepetition?

There is NO docket and other lawfulfees for the petition. The court,justice or judge shall docket the

No docket and other lawful fees shallbe required from an indigentpetitioner.


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QUERY WRIT OF AMPARO HABEAS DATApetition and act upon it immediately.

The petition of the indigent shall bedocketed and acted uponimmediately, without prejudice tosubsequent submission of proof ofindigency not later than 15 days fromthe filing of the petition.

What is therequired burden ofproof?

The parties shall establish theirclaims by substantial evidence.

The respondent who is a privateindividual or entity must prove thatordinary diligence as required byapplicable laws, rules andregulations was observed in theperformance of duty.

The respondent who is a publicofficial or employee must prove thatextraordinary diligence asrequired by applicable laws, rulesand regulations was observed in theperformance of duty.

Instead of having thehearing in open court,can it be done inchambers?

Yes. It can be done when therespondent invokes the defense thatthe release of the data orinformation in question shallcompromise national security orstate secrets, or when the data orinformation cannot be divulged to thepublic due to its nature or privilegedcharacter

Can the respondentinvoke the legalpresumption (Rules ofCourt, Rule 131, Sec.3[m]) that official duty hasbeen regularlyperformed?

No. The respondent public official oremployee cannot invoke thepresumption that official duty hasbeen regularly performed to evaderesponsibility or liability.

Secretary of National Defense vs. Manalo(2008):

The Manalo brothers were abducted, detained,and tortured repeatedly by the military. Aftertheir escape, they filed a petition for the privilegeof the Writ of Amparo. The Supreme Courtgranted the petition and held that there was acontinuing violation of the Manalos’ right tosecurity. Considering that they only escapedfrom captivity and have implicated militaryofficers, there is still a threat to their lives,liberty, and security. The threat vitiates theirfree will and they are forced to limit theirmovements and activities. The governmentalso failed to provide them protection becausethe military themselves perpetrated theabduction, detention, and torture. The

government also failed to provide an effectiveinvestigation.

As regards the relief granted, the Court heldthat the production order under the Amparorule is different from a search warrant andmay be likened to the production ofdocuments or things under Rule27.1, ROC.They also said that the disclosure of thepresent places of assignment of theimplicated military officers would notjeopardize the exercise of the militaryfunctions of the officers. Such disclosure isrelevant in ensuring the safety of the Manalobrothers.

POLITICAL LAW REVIEWER Chapter VIII. PRIVACY of COMMUNICATION and CORRESPONDENCE

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Chapter VIII. Privacy of Communicationand Correspondence

I. INTRUSION, WHEN ALLOWEDII. FORMS OF CORRESPONDENCE

COVEREDIII. ENABLING LAW

ART. III. SEC. 3. 1987 CONSTITUTION.(1) The privacy of communication and

correspondence shall be inviolable exceptupon lawful order of the court, or whenpublic safety or order requires otherwise, asprescribed by law.

(2) Any evidence obtained in violation of this orthe preceding section shall be inadmissiblefor any purpose in any proceeding.

I. Intrusion, When Allowed

1. By lawful order of the court2. When public safety or public order requires

otherwise, as may be provided by law

II. Forms of Correspondence Covered

1. letters2. messages3. telephone calls4. telegrams, and the like (BERNAS)

III. ENABLING LAW

Republic Act 4200: AN ACT TO PROHIBITAND PENALIZE WIRE TAPPING AND OTHERRELATED VIOLATIONS OF THE PRIVACY OFCOMMUNICATION, AND FOR OTHERPURPOSES (1965)

Section 1.

Unlawful Acts:

1. For any person not being authorized byall the parties to any privatecommunication or spoken word to tapany wire or cable, or by using anyother device or arrangement,

2. to secretly overhear, intercept, or recordsuch communication or spoken wordby using a device commonly known as adictaphone or dictagraph or

detectaphone or walkie-talkie or taperecorder, or however otherwisedescribed.

3. For any person, be he a participant ornot in the act or acts penalized in thenext preceding sentence, to knowinglypossess any tape record, wire record,disc record, or any other suchrecord, or copies thereof, of anycommunication or spoken word securedeither before or after the effective dateof this Act in the manner prohibited bythis law

4. to replay the same for any otherperson/persons

5. to communicate the contents thereof,either verbally or in writing,

6. to furnish transcriptions thereof,whether complete or partial, to any otherperson

Exception 1:

That the use of such record or any copiesthereof as evidence in any civil, criminalinvestigation or trial of offenses mentioned inSec. 3 hereof, shall not be covered by thisprohibition.

Section 3.

Exception 2:

Any peace officer, who is authorized by a writtenorder of the Court may lawfully execute any ofthe acts declared to be unlawful in the twopreceding Sections in cases involving the crimesof:

1. treason2. espionage3. provoking war and disloyalty in case of war4. piracy, and mutiny in the high seas,5. rebellion, conspiracy and proposal to commit

rebellion, inciting to rebellion6. sedition, conspiracy to commit sedition,

inciting to sedition7. kidnapping as defined by the RPC8. violations of Commonwealth Act No. 616,

punishing espionage and other offensesagainst national security

Requirements for valid issuance of writtenorder:

POLITICAL LAW REVIEWER Chapter VIII. PRIVACY of COMMUNICATION and CORRESPONDENCE

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1. Upon written application and examinationunder oath or affirmation of the applicantand the witnesses he may produce, and

2. A showing of:i. reasonable grounds to believe that

any of the crimes enumeratedhereinabove has been committed oris being committed or is about to becommitted: Provided, however, That incases involving the offenses of rebellion,conspiracy and proposal to commitrebellion, inciting to rebellion, sedition,conspiracy to commit sedition, andinciting to sedition, such authority shallbe granted only upon prior proof that arebellion or acts of sedition, as the casemay be, have actually been or are beingcommitted;

ii. reasonable grounds to believe thatevidence will be obtained essential tothe conviction of any person for, or tothe solution of, or to the prevention of,any such crimes; and

iii. no other means readily available forobtaining such evidence.

Contents of the order:

1. the identity of the person/persons whosecommunications, conversations,discussions, or spoken words are to beoverheard, intercepted, or recorded and, inthe case of telegraphic or telephoniccommunications, the telegraph line or thetelephone number involved and its location;

2. the identity of the peace officer authorized tooverhear, intercept, or record thecommunications, conversations,discussions, or spoken words

3. the offense/offenses committed or sought tobe prevented

4. the period of the authorization. Theauthorization shall be effective for theperiod specified in the order which shallnot exceed sixty (60) days from the date ofissuance of the order, unless extended orrenewed by the court upon being satisfiedthat such extension or renewal is in thepublic interest.

Section 4.

Inadmissibility:

Any communication or spoken word, or theexistence, contents, substance, purport, effect,or meaning of the same or any part thereof, orany information therein contained obtained orsecured by any person in violation of thepreceding sections of this Act shall not beadmissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing orinvestigation.

Gaanan vs. IAC (1986):

The use of a telephone extension for thepurpose of overhearing a private conversationwithout authorization did NOT violate R.A. 4200because a telephone extension device was notamong those "device(s) or arrangement(s)"enumerated therein, following the principle that"penal statutes must be construed strictly infavor of the accused”.

POLITICAL LAW REVIEWER Chapter IX. FREEDOM of EXPRESSION

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Chapter IX. Freedom of Expression

I. BASIS, COMPONENTS, SCOPE ANDLIMITATIONSA. FREEDOM FROM CENSORSHIP OR

PRIOR RESTRAINTB. FREEDOM FROM SUBSEQUENT

PUNISHMENTII. CONTENT-BASED RESTRICTIONS

A. TESTSB. APPLICATIONS OF VARIOUS TESTS

IN SPECIFIC INSTANCES1. FREEDOM OF EXPRESSION AND

NATIONAL SECURITY2. FREEDOM OF EXPRESSION AND

LIBEL3. FREEDOM OF EXPRESSION AND

THE RIGHT TO PRIVACY4. FREEDOM OF EXPRESSION AND

THE ADMINISTRATION OFJUSTICE

5. FREEDOM OF INFORMATIONIII. CONTENT-NEUTRAL RESTRICTIONS

A. FREEDOM OF ASSEMBLYB. FREEDOM OF ASSOCIATION AND

SELF-ORGANIZATIONC. MOVIE CENSORSHIPD. BROADCAST MEDIA

I. Basis, Components, Scope andLimitations

Basis

Sec. 4, Art. 3. No law shall be passed abridgingthe freedom of speech, of expression, or of thepress, or the right of the people peaceably toassemble and petition the government forredress of grievances.

Sec. 18. (1), Art. 3 No person shall be detainedsolely by reason of his political beliefs andaspirations.

All are indispensable to the “uninhibited, robustand wide-open debate in the free marketplace ofideas” (Abrams vs. US)

U.S. vs. Bustos (1909):While indeed, the news item subject of thepresent case might have ruffled the sensitivitiesof plaintiff, this Court however believes that thealleged defamatory articles fall within thepurview of a qualifiedly privileged matter, andthat therefore, it cannot be presumed to bemalicious. The onus of proving malice is

accordingly shifted to the plaintiff, that is, thathe must prove that the defendants wereactuated by ill-will in what they caused to beprinted and published, with a design tocarelessly or wantonly injure the plaintiff.

ComponentsSpeech, expression, and press include:

a) Written or spoken words (recorded or not)b) Symbolic speech (e.g. wearing armbands as

symbol of protest)c) Movies (BERNAS)

Scope of Protected FreedomsAny and all modes of protection are embraced inthe guaranty. It is reinforced by Sec. 18(1), Art.3.

A. Freedom from Censorship or PriorRestraint

Concept:

Censorship conditions the exercise of freedomof expression upon the prior approval of thegovernment.

The censor serves therefore as the political,moral, social and artistic arbiter for thepeople, usually applying only his own subjectivestandards in determining what is good andwhat’s not.

General rules:

1. Any system of prior restraints of expressioncomes to the Court bearing a heavypresumption against its constitutionality,giving the government a heavy burden toshow justification for the imposition of suchrestraint. (New York vs. United States 1971)

2. There need not be total suppression.Even restriction of circulation constitutescensorship (Grosjean vs. American PressCo. 297 US 233)

Examples of Unconstitutional PriorRestraint:

1. COMELEC prohibition against radiocommentators or newspaper columnists


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from commenting on the issues involved ina scheduled plebiscite (Sanidad vs.COMELEC)

2. Arbitrary closure of a radio station (EasternBroadcasting vs. Dans)

3. COMELEC resolution prohibiting the postingof decals and stickers in mobile units likecars and other moving vehicles (Adiong vs.COMELEC)

4. Search, padlocking and sealing of theoffices of newspaper publishers (We Forum)by military authorities (Burgos vs. Chief ofStaff)

5. An announcement of a public figure toprohibit the media to issue a specific kind ofstatement amounts to prior restraint,which is violative of the right to freepress. (Chavez vs. Gonzales, 2006)

Examples of Constitutional Prior Restraint:

1. Law which prohibits, except during theprescribed election period, the making ofspeeches, announcements or commentariesfor or against the election of any candidatefor office (Gonzales vs. COMELEC)

2. Prohibition on any person making use of themedia to sell or to give free of charge printspace or air time for campaign or otherpolitical purposes except to the COMELEC.Ratio: police power of State to regulatemedia for purpose of ensuring equalopportunity, time and space for politicalcampaigns. (National Press Club vs.COMELEC, Osmena vs. COMELEC)

3. Movie censorship: the power of the MTCRBcan be exercised only for purposes ofreasonable classification, not censorship.(NACHURA citing Gonzales vs. Katigbakand Ayer vs. Judge Capulong)

4. Near vs. Minnesota, (1931):a. When a nation is at war, many things

that might be said in time of peace aresuch a hindrance to its effort that theirutterance will not be endured so long asmen fight and that no court could regardthem as protected by any constitutionalright

b. Actual obstruction to the government’srecruiting service or the publication of

the sailing dates of transports or thenumber and location of troops

c. Obscene publicationsd. Incitements to acts of violence and the

overthrow by force of orderlygovernment

B. Freedom from Subsequent Punishment

Concept:

Freedom of speech includes freedom afterspeech. Without this assurance, the citizenwould hesitate to speak for fear he might beprovoking the vengeance of the officials he hascriticized (chilling effect).

If criticism is not to be conditioned on thegovernment’s consent, then neither should itbe subject to the government’s subsequentchastisement.

Examples of Valid Subsequent Restraints:

1. Libel. Every defamatory imputation ispresumed to be malicious. (Alonzo vs. CA)Exceptions to this presumption are found inArt. 354 of the RPC.

2. Obscenity. The determination of what isobscene is a judicial function. (Pita vs. CA)

U.S. vs. Kottinger:

Accused was convicted for exhibiting nudepainting and pictures, notwithstanding hisclaim that he had done so in the interest ofart. Court said that the purpose wascommercial, not merely artistic, because hecharged admission fees to the exhibition.

3. Contempt for criticism/publications tendingto impede, obstruct, embarrass or influencethe courts in administering justice in apending suit or proceeding (sub judice)(People vs. Alarcon)

4. Being a public figure does not automaticallydestroy in toto a person's right to privacy.The limits of freedom of expression arereached when it touches upon matters ofprivate concern (Lagunzad vs. Gonzales)

5. Right of students to free speech in schoolpremises must not infringe on the school’s


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right to discipline its students (MiriamCollege Foundation vs. CA 2000).

Exceptions:

1. Fair comment on matters of public interest.Fair comment is that which is true or, iffalse, expresses the real opinion of theauthor based upon reasonable degree ofcare and on reasonable grounds.

2. Criticism of official conduct is given thewidest latitude. (US vs. Bustos)

II. Content-Based Restrictions

A. Tests

1. Dangerous Tendency Test

Cabansag vs. Fernandez:

If the words uttered create a dangeroustendency of an evil which the State has the rightto prevent, then such words are punishable.

People vs. Perez:

It is sufficient if the natural tendency and theprobable effect of the utterance were to bringabout the substantive evil that the legislativebody seeks to prevent.

2. Clear and Present Danger Test

Schenck vs. United States (1919):

The question in every case is whether the wordsused are used in such circumstances and are ofsuch a nature as to create a clear and presentdanger that they will bring about the substantiveevils that Congress has a right to prevent. It is aquestion of proximity and degree.

Gonzales vs. COMELEC:

This rule requires that “the danger created mustnot only be clear and present but also traceableto the ideas expressed”.

Note: This test has been adopted by thePhilippine SC lock, stock and barrel and is the

test most applied to cases re: freedom ofexpression.

3. Balancing of Interest Test

American Communications Assoc. vs.Douds, (339 US 282):

When a particular conduct is regulated in theinterest of public order, and the regulationresults in an indirect, conditional and partialabridgement of speech, the duty of the courts isto determine which of the two conflictinginterests demands greater protection.

Gonzales vs. Comelec:

The test is applied when two legitimate valuesnot involving national security crimescompete.

4. Direct Incitement Test

Salonga vs. Cruz Paño (1986):

In this case, the Petitioner was charged withviolation of the Revised Anti-Subversion Actafter being apparently implicated by a certainVictor Lovely as being involved in the series ofbombings in Metro Manila.

Direct Incitement Test: In the case before us,there is no teaching of the moral propriety of aresort to violence, much less an advocacy offorce or a conspiracy to organize the use offorce against the duly constituted authorities.

The alleged remark about the likelihood ofviolent struggle unless reforms are instituted isnot a threat against the government. Nor is iteven the uninhibited, robust, caustic, orunpleasantly sharp attack which is protected bythe guarantee of free speech.

Parenthetically, the American case ofBrandenburg vs. Ohio (395 U.S. 444) states thatthe constitutional guarantees of free speechand free press do not permit a State to forbidor proscribe advocacy of the use of force orof law violation except where such advocacyis directed to inciting or producing imminentlawless action and is likely to incite orproduce such action.

Political discussion even among thoseopposed to the present administration is


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within the protective clause of freedom ofspeech and expression. The same cannot beconstrued as subversive activities per se or asevidence of membership in a subversiveorganization.

5. Grave-But-Improbable Danger Test

Dennis vs. U.S. (1951):

In this case, the Petitioners, leaders of theCommunist Party in this country, were indictedin a federal district court under § 3 of the SmithAct for (1) wilfully and knowingly conspiring toorganize as the Communist Party a group ofpersons to teach and advocate the overthrowand destruction of the Government of the UnitedStates by force and violence, and (2) toknowingly and wilfully advocate and teach theduty and necessity of overthrowing anddestroying the Government of the United Statesby force and violence.

Grave-But-Improbable Danger Test: Todetermine the clear and present danger of theutterances bringing about the evil which thatlegislature has the power to punish, "In eachcase [courts] must ask whether the gravity ofthe 'evil,' discounted by its improbability,justifies such invasion of free speech as isnecessary to avoid the danger." In this case,an attempt to overthrow the Government byforce is a sufficient evil for Congress to prevent.It is the existence of the conspiracy whichcreates the danger.

B. Applications of Various Tests inSpecific Instances

I. Freedom of Expression and NationalSecurity

Espuelas vs. People (1951)

Espuelas was convicted in the lower court of thecrime of inciting to sedition. Espuelas had hispicture taken, making it to appear as if he werehanging lifeless at the end of a piece of ropesuspended from the limb of a tree, when in truthand in fact, he was merely standing on a barrel.After securing copies of his photograph, he sentcopies to several newspapers and weeklies ofgeneral circulation throughout the Philippinesand abroad, for their publication with a suicidenote or letter, wherein he made to appear that it

was written by a fictitious suicidee, AlbertoReveniera and addressed to the latter'ssupposed wife.

These reasons point to the Roxasadministration, his disappointments andhumiliations because of the former and his lackof power to put under Juez de Cuchillo all theRoxas people in power. Finally, the letterinstructed the wife to teach their children to burnpictures of Roxas if they come across one.Espuelas admitted the fact that he wrote theletter and caused its publication and that he hadimpersonated one Alberto Reveniera and posedhimself as Alberto Reveniera in a picture takenwherein he was shown hanging by the end of arope tied to a limb of a tree.

Freedom of Expression, national security:The letter is a scurrilous libel against theGovernment. It suggests or incites rebelliousconspiracies or riots and tends to stir up thepeople against the constituted authorities, or toprovoke violence from opposition groups whomay seek to silence the writer, which is the sumand substance of the offense underconsideration. Such writings are criminal notonly because they tend to incite to a breachof the peace but because they are conduciveto the destruction of the very governmentitself. Malicious endeavors to stir up public strifeare prohibited.

Our Legislature has spoken in article 142 of theRPC and the law must be applied. This kind oflegislation must be weighed carefully vis-à-visthe fundamental right to freedom of speech.Such freedom, although secured by theConstitution, does not confer an absoluteright to speak or publish withoutresponsibility whatever one may choose. It isnot unbridled license that gives immunity forevery possible use of language and preventsthe punishment of those who abuse thisfreedom.

The privilege of any citizen to criticize hisgovernment and government officials and tosubmit his criticism to the "free trade of ideas"and to plead for its acceptance in "thecompetition of the market" is not to berestrained. However, let such criticism bespecific and therefore constructive,reasoned or tempered, and not acontemptuous condemnation of the entiregovernment set-up.

Such wholesale attack is nothing less than aninvitation to disloyalty to the government….


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When the use of irritating language centersnot on persuading the readers but oncreating disturbance, the rationale of freespeech cannot apply and the speaker orwriter is removed from the protection of theconstitutional guaranty.

II. Freedom of Expression and Libel

Bulletin Publishing vs. NoelNATIONAL COMMUNITY STANDARD ASBASIS OF WHAT IS DEFAMATORY:Facts: An article in Phil. Panorama describedAmir Mindalano as not belonging to a royalhouse.Held: Court held that there is no libel. Such adescription cannot be regarded as defamatory,an imputation of a vice or defect, or tending tocast dishonor, discredit or contempt or toblacken the memory of one who is dead. In acommunity like ours which is bothrepublican and egalitarian, such anascription, whether correct or not, cannot bedefamatory.

It is to the standards of the nationalcommunity, not to those of the region that acourt must refer especially where anewspaper is national in reach andcoverage.xxx

Newsweek vs. IAC (1986):REPORT OF OFFICIAL CONDUCT ISPRIVILEGED AND COVERED BY PRESSFREEDOM: Where the defamation is alleged tohave been directed at a group/class, it isessential that the statement must be sosweeping or all-embracing as to apply to everyindividual in that group or class, or sufficientlyspecific so that each individual in the class orgroup can prove that the defamatory statementspecifically pointed to him, so that he can bringthe action separately, if need be.

Also, the report in the Newsweek article referringas it does to an official act performed by anelective public official (i.e. that the victim hadbeen arrested by members of special police unitbrought by the mayor of Kabankalan whoincidentally is a sugar planter), is w/in the realmof privilege and is protected by the constitutionalguarantees of free speech and press.

MVRS v. Islamic Da’Wah Council of the Phil(2003)Islamic Da’Wah Council of the Philippines, Inc.,a local federation of more than 70 Muslimreligious organizations, filed a complaint for

damages against MVRS Publications, Inc.,arising from an article, which says that the pig issacred for the Muslims.

Freedom of Expression, Libel: As the size ofthese groups increases, the chances formembers of such groups to recover damages ontortious libel become elusive. This principle issaid to embrace two important public policies:first, where the group referred to is large, thecourts presume that no reasonable reader wouldtake the statements as so literally applying toeach individual member; and second, thelimitation on liability would satisfactorilysafeguard freedom of speech and expression,as well as of the press, effecting a soundcompromise between the conflictingfundamental interests involved in libel cases.

Courts must be viewpoint-neutral when it comesto religious matters if only to affirm the neutralityprinciple of free speech rights under modernjurisprudence where "all ideas are treated equalin the eyes of the First Amendment - even thoseideas that are universally condemned and runcounter to constitutional principles."

Under the right to free speech, "there is no suchthing as a false idea. However pernicious anopinion may seem, we depend for its correctionnot on the conscience of judges and juries buton the competition of other ideas."

Denying certiorari and affirming the appellatecourt decision would surely create a chillingeffect on the constitutional guarantees offreedom of speech, of expression, and of thepress.

III. Freedom of Expression and the Right toPrivacy

Lagunzad vs. Sotto (1979)Being a public figure does not automaticallydestroy in toto a person’s right to privacy.The right to invade a person’s privacy todisseminate public info does not extend to afictional representation of a person, no matterhow public a figure he/she may be. In the caseat bar, petitioner admits that he included a littleromance in the film about Moises Padilla(despite efforts to present the true-to-life story ofthe latter) because w/o it, it would be a drabstory of torture and brutality.

Ayer Productions vs. Capulong (1988):Facts: TC issued a writ of preliminary injunctionagainst petitioners ordering them to desist from


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producing the movie “The Four-Day Revolution”,a docu-drama of EDSA I, on the ground that itviolated the right to privacy of Juan Ponce Enrilewho was featured in the documentary.

Held:1) Freedom of speech and expression includes

freedom of filming and producing motionpictures and to exhibit them. The fact thatsuch film production is a commercial activityis not a disqualification for availing offreedom of speech and expression.

2) The right to privacy cannot be involved toresist publication and dissemination ofmatter of public interest.

3) The intrusion is no more than necessary tokeep the film a truthful historical account.Enrile is a public figure because of hisparticipation as a principal actor in theculminating events of the revolution.

4) There must be no knowing or recklessdisregard of truth in depicting theparticipation of Enrile in EDSA I. Also, theremust be no presentation of his private lifeand no revelation of intimate orembarrassing personal facts.

IV. Freedom of Expression and theAdministration Of Justice

Cabansag vs. Fernandez (1957)

Facts: Due to the delay in the disposition of hisoriginal case, Cabansag asked for help from thePresident through a letter addressed to thePresidential Complaints and ActionsCommission (PCAC). A contempt charge wasbrought against him for sending that letter whichtended to degrade the lower court in the eyes ofthe President and of the people. SC reversedthe ruling which cited him in contempt.

Held:

Freedom of Expression and theAdministration of Justice: For his act (ofsending his letter to the President and not to theSec of Justice or SC) to be contemptuous, thedanger must cause a serious imminent threat tothe administration of justice. We cannot inferthat such act has "a dangerous tendency" tobelittle the court or undermine the administrationof justice for the writer merely exercised hisconstitutional right to petition the government forredress of a legitimate grievance.

V. Freedom of Information

Valmonte vs. Belmonte

Facts: Media practitioners requestedinformation from the GM of GSIS regardingclean loans granted to certain members of thedefunct Batasang Pambansa on the guaranty ofImelda Marcos shortly before the Feb 1986elections. Request was refused on the ground ofconfidentiality.

Held: The right to information is not absolute. Itis limited to matters of public concern and issubject to such limitations as may be providedby law. That the GSIS was exercising aproprietary function would not justify itsexclusion of the transactions from the coverageof the right to info. But although citizens havesuch right and, pursuant thereto, are entitled to“access to official records,” the Constitution doesnot accord them the right to compel custodiansof official records to prepare lists, summariesand the like in their desire to get info on mattersof public concern.

III. Content-Neutral Restrictions

1. Freedom of Assembly

Primicias vs. Fugoso (1948):

The right to freedom of speech and to peaceablyassemble and petition the government forredress of grievances are fundamental personalrights of the people guaranteed by theconstitutions of democratic countries. City ortown mayors are not conferred the power torefuse to grant the permit, but only thediscretion in issuing the permit to determineor specify the streets or public places wherethe parade may pass or the meeting may beheld.

J.B.L. Reyes vs. Bagatsing (1983):

The Court held here that freedom of speech andfreedom to peaceably assemble is entitled tobe accorded utmost deference and respect,and cannot be limited or denied unless thereis showing of a clear and present danger of asubstantive evil that the State has a right toprevent. For the constitutional right to beinvoked, riotous conduct, injury to property andacts of vandalism must be avoided.Furthermore, absent any clear and present


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danger of a substantive evil, peaceableassembly in public places like streets orparks cannot be denied.

Bayan vs. Ermita (2006)

The CPR, insofar as it would purport to differfrom or be in lieu of maximum tolerance, isNULL and VOID

CPR serves no valid purpose if it means thesame thing as maximum tolerance (Sec. 3[c] of B.P. 880), and is illegal if it meanssomething else. Accordingly, what is to befollowed is and should be that mandated bythe law itself, namely, maximum tolerance.

B.P. 880 not unconstitutional B.P. No. 880 is not an absolute ban of public

assemblies but a restriction that simplyregulates the time, place and manner of theassemblies. The law is not vague oroverbroad. There is, likewise, no priorrestraint, since the content of the speech isnot relevant to the regulation. A fair andimpartial reading of B.P. No. 880 thusreadily shows that it refers to all kinds ofpublic assemblies that would use publicplaces.

Freedom Parks B.P. 880 provides that every city and

municipality must set aside a freedom parkwithin six months from the law’s effectivity in1985, or 20 years ago. Section 15 of the lawprovides for an alternative forum through thecreation of freedom parks where no priorpermit is needed for peaceful assembly andpetition at any time. According to theSolGen (Nachura), however, he is awareof only ONE declared freedom park -Fuente Osmena in Cebu City. Withoutsuch alternative forum, to deny thepermit would in effect be to deny theright.

Hence, local governments are given adeadline of 30 days within which todesignate specific freedom parks asprovided under B.P. No. 880. If, after thatperiod, no such parks are so identified inaccordance with Section 15 of the law, allpublic parks and plazas of the municipalityor city concerned shall in effect be deemedfreedom parks; no prior permit of whateverkind shall be required to hold an assemblytherein. The only requirement will be writtennotices to the police and the office of the

mayor to allow proper coordination andorderly activities.

Permit Application There is need to address the situation

adverted to by petitioners where mayors donot act on applications for a permit andwhen the police demand a permit and therallyists could not produce one, the rally isimmediately dispersed.

In such a situation, as a necessaryconsequence and part of maximumtolerance, rallyists who can show the policean application duly filed on a given date can,after two days from said date, rally inaccordance with their application without theneed to show a permit, the grant of thepermit being then presumed under the law,and it will be the burden of the authorities toshow that there has been a denial of theapplication, in which case the rally may bepeacefully dispersed following the procedureof maximum tolerance prescribed by thelaw.

Conclusion For this reason, the so-called calibrated

pre-emptive response policy has noplace in our legal firmament and must bestruck down as a darkness that shroudsfreedom. It merely confuses our people andis used by some police agents to justifyabuses. On the other hand, B.P. No. 880cannot be condemned as unconstitutional; itdoes not curtail or unduly restrict freedoms;it merely regulates the use of public placesas to the time, place and manner ofassemblies.

Far from being insidious, “maximumtolerance” is for the benefit of rallyists, notthe government. The delegation to themayors of the power to issue rally permits isvalid because it is subject to theconstitutionally-sound clear and presentdanger standard.

2. Freedom of Association and Self-Organization

SEC. 17. Human Security Act:

SEC. 17. Proscription of Terrorist Organizations,Association, or Group of Persons. -- Anyorganization, association, or group of personsorganized for the purpose of engaging in


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terrorism, or which, although not organized forthat purpose, actually uses the acts to terrorizementioned in this Act or to sow and create acondition of widespread and extraordinary fearand panic among the populace in order tocoerce the government to give in to an unlawfuldemand shall, upon application of theDepartment of Justice before a competentRegional Trial Court, with due notice andopportunity to be heard given to theorganization, association, or group of personsconcerned, be declared as a terrorist andoutlawed organization, association, or group ofpersons by the said Regional Trial Court.

People vs. Ferrer (1972):

The right to associate is not absolute.

Sec. 2 (5), Art 9-B. 1987 Constitution. Theright to self-organization shall not be denied togovernment employees.

Sec. 8, Art. 3, 1987 Constitution. The right ofthe people, including those employed in thepublic and private sectors, to form unions,associations, or societies for purposes notcontrary to law shall not be abridged.

par. 2, Sec. 3(2), Art. 13, 1987 Constitution. Itshall guarantee the rights of all workers to self-organization, collective bargaining andnegotiations, and peaceful concerted activities,

including the right to strike in accordance withlaw. They shall be entitled to security of tenure,humane conditions of work, and a living wage.They shall also participate in policy anddecision-making processes affecting their rightsand benefits as may be provided by law.

3. Movie Censorship

Gonzales vs. Kalaw Katigbak (1985):

Facts: Gonzales was the producer of the movieKapit sa Patalim w/c the Board of Review forMotion Pictures and Televisions classified as fit“For Adults Only.”

Held: Here the Court held that the power of theBoard is limited to the classification of films. Forfreedom of expression is the rule and restrictionsthe exception. Censorship is allowable onlyunder the clearest proof of a clear andpresent danger of a substantive evil to publicsafety, morals, health or any other legitpublic interest. 1) There should be no doubtwhat is feared may be traced to theexpression complained of. 2) Also, theremust be reasonable apprehension about itsimminence. It does not suffice that thedanger is only probable.

4. Broadcast Media

POLITICAL LAW REVIEWER Chapter X. FREEDOM of RELIGION

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Chapter X. Freedom of Religion

I. NON-ESTABLISHMENT CLAUSEA. CONCEPTB. BASISC. ACTS NOT PERMITTED BY THE

ESTABLISHMENT CLAUSED. ACTS PERMITTED BY THE

ESTABLISHMENT CLAUSEE. TEST

II. FREE EXERCISE CLAUSEA. DUAL ASPECTB. LAWS JUSTIFIED UNDER THE FREE

EXERCISE CLAUSEIII. TESTS

A. CLEAR AND PRESENT DANGERTEST

B. COMPELLING STATE INTERESTTEST

C. CONSCIENTIOUS OBJECTOR TEST

Art. III, Sec. 5. No law shall be made respectingan establishment of religion; or prohibiting thefree exercise thereof. The free exercise andenjoyment of religious profession and worship,without discrimination or preference, shallforever be allowed. No religious test shall berequired for the exercise of civil or politicalrights.

I. Non-establishment Clause

A. Concept

The clause prohibits excessive governmententanglement with, endorsement or disapprovalof religion (Victoriano v. Elizalde Rope WorkersUnion 1974, Lynch v. Donnelly, 465 US 668(1984) O'Connor, J., concurring); AlleghenyCounty v. Greater Pittsburg ACLU 1989).

B. Basis

Rooted in the separation of Church and State(Sec. 2(5), Art. 9-C; Sec. 5(2), Sec. 29(2) Art. 6,1987 Consti).

C. Acts NOT permitted by Non-establishment Clause

1. Prayer and Bible-reading in public schools(Engel v. Vitale 1967; Abington SchoolDistrict v. Schemp 1963)

2. Financial subsidy for parochial schools(Lemon vs. Kurtzman)

3. Religious displays in public spaces

Glassroth vs. Moore, 335 F.3d 1282 (11th Cir.2003):

Display of granite monument of 10commandments in front of a courthouse isunconstitutional for being is unmistakably non-secular. Nothing in its setting de-emphasizes itsreligious nature. It engenders in viewers a sensethat Christianity is endorsed by the government.

4. Mandatory religious subjects or prohibitionof secular subjects (evolution) in schools(Epperson vs. Arkansas)

5. Mandatory bible reading in school (a form ofpreference for belief over non-belief)(School District vs. Schempp)

6. Word “God” in the Pledge of Allegiance

Newdow vs. US (2003):

Mandatory recitation in school of such a Pledgeof Allegiance would tend to discriminate againststudents who are atheists.

D. Acts Permitted by the EstablishmentClause

1. Tax exemption

Sec. 28 (3), Art. 6. Charitable institutions,churches and personages or conventsappurtenant thereto, mosques, non-profitcemeteries, and all lands, buildings, andimprovements, actually, directly, and exclusivelyused for religious, charitable, or educationalpurposes shall be exempt from taxation.

2. Operation of sectarian schools

Sec. 4(2), Art. 14. Educational institutions, otherthan those established by religious groups andmission boards, shall be owned solely bycitizens of the Philippines or corporations orassociations at least sixty per centum of thecapital of which is owned by such citizens…

3. Religious instruction in public schools

Sec. 3(3), Art. 14. At the option expressed inwriting by the parents or guardians, religion shallbe allowed to be taught to their children or wardsin public elementary and high schools within theregular class hours by instructors designated or


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approved by the religious authorities of thereligion to which the children or wards belong,without additional cost to the Government.

Civil Code, Art. 359. The government promotesthe full growth of the faculties of every child. Forthis purpose, the government will establish,whenever possible:

(1) Schools in every barrio, municipality and citywhere optional religious instruction shall betaught as part of the curriculum at the option ofthe parent or guardian.xxx

4. Public aid to religion

Sec. 29 (2), Art. 6. No public money or propertyshall be appropriated, applied, paid, oremployed, directly or indirectly, for the use,benefit, or support of any sect, church,denomination, sectarian institution, or system ofreligion, or of any priest, preacher, minister,other religious teacher, or dignitary as such,except when such priest, preacher, minister,or dignitary is assigned to the armed forces,or to any penal institution, or governmentorphanage or leprosarium.

5. Postage stamps depicting Philippines as thesite of a significant religious event

Aglipay vs. Ruiz, (64 Phil. 201):Postage stamps which promote a Catholicevent are constitutional. The benefit toreligious sect is incidental to promotion ofPhilippines as a tourist destination.

6. Government sponsorship of town fiestas.Traditions which used to be purely religiousbut have now acquired secular character arepermissible (Garces vs. Estenzo)

7. Book lending program for students inparochial schools. The benefit redounds tostudents and parents and not to anyparticular sect. (Board of Education vs.Allen, 392 U.S. 236)

8. Display of crèche in a secular setting

Lynch vs. Donnely, (1984):Crèche is displayed in a secular manner,and merely depicts the origins of the holiday.The Constitution mandates accommodationand not merely tolerance. Instead of anabsolutist approach, court inquires if the lawor conduct has a secular purpose.

9. Financial support for secular academicfacilities

Tilton vs. Richardson, (403 U.S. 672):WON a law that grants financial support forexpansion of educational facilities inparochial schools is constitutional. HELD:Yes, secular purpose – facilities to be usedfor secular activities. The facilities built herewere a library and a science center.

10. Exemption from zoning requirements toaccommodate unique architectural featuresof religious buildings

Martin vs. Corporation of the PresidingBishop, (434 Mass. 141):WON zoning law giving exemption toreligious sect (Mormons building a tallpointed steeple) is constitutional. HELD:Yes, court may not determine whetherarchitectural features are necessary for aparticular religion, e.g. steeple pointingupwards into heaven for Mormons.

E. Test

Lemon vs. Kurtzman, (403 U.S. 602): LemonTest1. Statute must have a secular legislative

purpose.2. Primary effect must be one that neither

advances nor inhibits religion.3. Must not foster excessive entanglement

between government and religion.

II. Free Exercise Clause

A. Dual Aspect

1. Freedom to believe - absolute2. Freedom to act on one’s belief – subject to

regulation

B. Laws Justified under Free ExerciseClause

1. Exemption from flag salute

Ebralinag vs. Division Superintendent ofSchools of Cebu (1993):

Conscientious Objectors cannot be compelled tosalute the flag on pain of being dismissed fromone's job or of being expelled from school.


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2. Freedom to propagate religious doctrines

American Bible Society vs. City of Manila(1957):

The power to tax the exercise of the privilege isthe power to control or suppress its enjoyment.Those who can tax the exercise of religiouspractice can make its exercise so costly asto deprive it of the resources necessary forits maintenance.

3. Exemption from union shop

Victoriano vs. Elizalde Rope Workers Union(1974):

Neither does the law constitute an establishmentof religion. It has been held that in order towithstand objections based on this ground, thestatute must have a secular purpose and thatpurpose must not directly advance or diminishthe interest of any religion. Congress actedmerely to relieve persons of the burden imposedby union security agreements. The freeexercise of religious profession or belief issuperior to contract rights.

4. Non-disqualification from local governmentoffice

Pamil vs. Teleron (1978):

For lack of votes, law disqualifying religiousleaders from public office is held valid. As perfree exercise clause, it is invalid for it requires areligious test for qualification.

Dean Pangalangan: There should be nodistinction between ordinary believer and thePope; if the former can hold office, why not thelatter.

III. Tests

A. Clear and Present Danger Test

Ebralinag vs. Div. Superintendent:

The existence of a grave and present danger, ofa character both grave and imminent, of aserious evil to public safety, public morals, public

health or any other legitimate interest, that thestate has a right to prevent.

B. Compelling State Interest Test

(from a benevolent neutrality stance)

1. Determine sincerity and centrality of claimedreligious belief and practice

2. Compelling state interest must overridereligious belief and practice

3. The means adopted in pursuing its interestis the least restrictive to religious freedom

Estrada vs. Escritor (2003):

Although the morality contemplated by laws issecular, benevolent neutrality could allow foraccommodation of morality based on religion,provided it does not offend compelling stateinterests.

C. Conscientious Objector Test

1. Conscientiously opposed to war in any form.2. Opposition is based upon religious training

and belief.3. Objection is sincere. (See Cassious Clay vs.

US)

Note: Meaning of religious training and belief:WON it is sincere and meaningful and occupiesa place in the life of its possessor parallel to thatfilled by the orthodox belief in God. (US vs.Seeger, 380 US 163). This expands themeaning of religion to cover not just recognizedsects but also personal beliefs akin totraditional religion.

POLITICAL LAW REVIEWER Chapter XI. LIBERTY of ABODE and TRAVEL

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Chapter XI. Liberty of Abode and Travel

I. LIBERTY OF ABODEII. RIGHT TO TRAVELIII. RIGHT TO RETURN TO ONE’S COUNTRY

I. Liberty of Abode

Rubi vs. Provincial Board (1919):

"Liberty" as understood in democracies, is notlicense; it is "Liberty regulated by law."

The right of the individual is necessarily subjectto reasonable restraint by general law for thecommon good. The Liberty of the citizens maybe restrained in the interest of the public health,or of the public order and safety, or otherwisewithin the proper scope of the police power.

None of the rights of the citizen can be takenaway except by due process of law.

The government's measure in relocating theManguianes, a nomadic people with a wayfaringlife and without permanent individual property isnecessary both in the interest of the public asowner of the lands about which they are rovingand for the proper accomplishment of thepurposes and objectives of the government. Foras people accustomed to nomadic habit, theywill always long to return to the mountains andfollow a wayfaring life, and unless a penalty isprovinced for, you can not make them livetogether and the noble intention of theGovernment of organizing them politically willcome to naught. Furthermore, their relocation(and the imposition that they are not allowed toemigrate to some other places under penalty ofimprisonment) is a proper restraint to theirliberty, they being taught and guided in Tigbaoto improve their living conditions, and improvetheir education. In short, everything is beingdone from them in order that their advancementin civilization and material prosperity may beassured.

Villavicencio vs. Lukban (1919):

The executive of a municipality does not havethe right to force citizens of the PhilippineIslands to change their domicile from one localityto another. Law defines power, and there is nolaw nor regulation that allows a mayor or a

police chief to restrain the liberty of abode ofcitizens of the Philippines.

II. Right to Travel

Manotok vs. CA (1986):

RIGHT NOT ABSOLUTE:The Constitutional Right to Travel under

Sec. 5, Art. IV of the 1973 Consitution is not anAbsolute Right, and can only be impaired uponlawful order of the court, or when necessary inthe interest of national security, public safety orpublic health. Releasing the petitioner on bailand that as a condition, he make himselfavailable at all times is a valid restriction on hisright to travel. To allow him to travel, especiallyabroad will make the order of the court nugatoryas the court's jurisdiction cannot extend beyondthe Philippines.

III. Right to Return to One’s Country

Marcos vs. Manglapus (1989):

The threats to the government, to which thereturn of the Marcoses has been viewed toprovide a catalytic effect, have not been shownto have ceased. The President has unstatedresidual powers which are implied from the grantof executive power and which are necessary forher to comply with her duties under theConstitution. One of her duties is to protect andpromote the the interest and welfare of thepeople. Her decision to bar the return of theMarcoses and subsequently, the remains of Mr.Marcos at the present time and under presentcircumstances is in compliance with thisbounden duty.

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Chapter XII. RA 9372: Human Security Act*

RELEVANT PROVISIONS VIS-À-VIS CONSTITUTIONAL GUARANTEES

REPUBLIC ACT 9327 CRITICISMConspiracy to Commit Terrorism, § 4 If terrorism is defined by result, then how can a

conspiracy to commit the Section 3 offensearise?

Surveillance of suspects and interception andrecording of communications, § 7

Upon written order of the Court of Appeals,“The provisions of RA 4200 to the contrarynotwithstanding” Intercept and record, withthe use of any mode, form, kind or type ofelectronic or other surveillance equipment ofintercepting and tracking devices, or with theuse of any other suitable ways and means forthat purpose, any communication, message,conversation, discussion, or spoken or writtenwords between members of a judiciallydeclared and outlawed terroristorganization, association or group ofpersons or of any person charged with orsuspected of the crime of terrorism or ofconspiracy to commit terrorism.

ART. III. SEC. 3. 1987 CONSTITUTION.1. The privacy of communication and

correspondence shall be inviolable exceptupon lawful order of the court, or whenpublic safety or order requires otherwise asprescribed by law.

2. Any evidence obtained in violation of this orthe preceding section shall be inadmissiblefor any purpose in any proceeding.

Proscription of Terrorist Organizations,Association or Group of Persons, § 17

Any organization, association or group ofpersons organized for the purpose of engagingin terrorism, or which although not organizedfor this purpose, actually uses the acts toterrorize shall, upon application of theDepartment of Justice before a competentRegional Trial Court, with due notice andopportunity to be heard given to theorganization, association or group of personsconcerned, be declared as a terrorist andoutlawed organization, association, or group ofpersons by the court.

Note: “to terrorize” ≠ to commit the crime of terrorism?

ART. III. SEC. 4. 1987 CONSTITUTION.No law shall be passed abridging the freedomof speech, of expression, or of the press, or theright of the people peaceably to assemble andpetition the government for redress ofgrievances.

ART. III. SEC. 8. 1987 CONSTITUTION.The right of the people, including thoseemployed in the public and private sectors, toform unions, associations, or societies forpurposes not contrary to law shall not beabridged.

ART. III. SEC. 18. 1987 CONSTITUTION.1) No person shall be detained solely byreason of his political beliefs and aspirations.

Periods of Detention without Judicial (sic) Warrantof Arrest, §18

The provisions of Article 125 of the RevisedPenal Code to the contrarynotwithstanding, any police or lawenforcement personnel, who, having been dulyauthorized in writing by the Anti-TerrorismCouncil has taken custody of a person chargedwith or suspected of the crime of terrorism orthe crime of conspiracy to commit terrorismshall, without incurring any criminal liabilityfor delay in the delivery of detained persons

ART. III. SEC. 1. 1987 CONSTITUTION.No person shall be deprived of life, liberty, orproperty without due process of law, nor shallany person be denied the equal protection ofthe laws.

ART. 125., REVISED PENAL CODEDelay in the delivery of detained persons tothe proper judicial authorities. — Thepenalties provided in the next preceding article

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to the proper judicial authorities, deliversaid charged or suspected person to theproper judicial authority within a period ofthree (3) days counted from the moment thesaid charged or suspected person has beenapprehended or arrested, detained, and takeninto custody by the said police, or lawenforcement personnel.

Periods of Detention in the Event of anActual or Imminent Terrorist Attack, §19

“suspects” may be detained for more than 3days without the written approval of the HumanRights Commission or judge of the nearestcourt.

Note: Law is silent as to the MAXIMUMPERIOD OF DETENTION

shall be imposed upon the public officer oremployee who shall detain any person forsome legal ground and shall fail to deliver suchperson to the proper judicial authorities withinthe period of; twelve (12) hours, for crimes oroffenses punishable by light penalties, or theirequivalent; eighteen (18) hours, for crimes oroffenses punishable by correctional penalties,or their equivalent and thirty-six (36) hours, forcrimes, or offenses punishable by afflictive orcapital penalties, or their equivalent.

Restriction on Travel, §26

o Situation contemplated: Bail is grantedbecause “evidence of guilt is not strong”

o Court may, upon application of the prosecution,limit the right to travel of the accused to withinthe municipality or city where he resides orwhere the case is pending, in the interest ofnational security and public safety;

o May also be placed under house arrest byorder of the court at his or her usual place ofresidence; while under house arrest, he/shemay not use telephones, cellphones, emails,computers, the internet or other means ofcommunication with people outside theresidence until otherwise ordered by the court.

ART. III. SEC. 13. 1987 CONSTITUTION.All persons, except those charged withoffenses punishable by reclusion perpetuawhen evidence of guilt is strong, shall, beforeconviction, be bailable by sufficient sureties, orbe released on recognizance as may beprovided by law. The right to bail shall not beimpaired even when the privilege of the writ ofhabeas corpus is suspended. Excessive bailshall not be required.

ART. III. SEC. 14. 1987 CONSTITUTION.1. XXX2. In all criminal prosecutions, the accusedshall be presumed innocent until thecontrary is proved,

_____________________________________________* Acknowledgment: Thank you to Prof.Theodore Te for allowing us to substantially liftthe materials from his report on the HSA.

POLITICAL LAW REVIEWER Chapter XII. BP 880

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BATAS PAMBANSA BLG. 880

AN ACT ENSURING THE FREE EXERCISE BYTHE PEOPLE OF THEIR RIGHT PEACEABLYTO ASSEMBLE AND PETITION THEGOVERNMENT FOR OTHER PURPOSES

Section 1. Title - This Act shall be known as"The Public Assembly Act of 1985."

Section 2. Declaration of policy - Theconstitutional right of the people peaceably toassemble and petition the government forredress of grievances is essential and vital to thestrength and stability of the State. To this end,the State shall ensure the free exercise of suchright without prejudice to the rights of others tolife, liberty and equal protection of the law.

Section 3. Definition of terms - For purposes ofthis Act:(a) "Public assembly" means any rally,

demonstration, march, parade, processionor any other form of mass or concertedaction held in a public place for the purposeof presenting a lawful cause; or expressingan opinion to the general public on anyparticular issue; or protesting or influencingany state of affairs whether political,economic or social; or petitioning thegovernment for redress of grievances.

The processions, rallies, parades,demonstrations, public meetings andassemblages for religious purposes shall begoverned by local ordinances: Provided,however, That the declaration of policy asprovided in Section 2 of this Act shall befaithfully observed.

The definition herein contained shall notinclude picketing and other concerted actionin strike areas by workers and employeesresulting from a labor dispute as defined bythe Labor Code, its implementing rules andregulations, and by the Batas PambansaBilang 227.

(b) "Public place" shall include any highway,boulevard, avenue, road, street, bridge orother thoroughfare, park, plaza, square,and/or any open space of public ownershipwhere the people are allowed access.

(c) "Maximum tolerance" means the highestdegree of restraint that the military, policeand other peace keeping authorities shallobserve during a public assembly or in thedispersal of the same.

(d) "Modification of permit" shall include thechange of the place and time of the publicassembly, rerouting of the parade or street

march, the volume of loud-speakers orsound system and similar changes.

Section 4. Permit when required and when notrequired - A written permit shall be required forany person or persons to organize and hold apublic assembly in a public place. However, nopermit shall be required if the public assemblyshall be done or made in a freedom park dulyestablished by law or ordinance or in privateproperty, in which case only the consent of theowner or the one entitled to its legal possessionis required, or in the campus of a government-owned and operated educational institutionwhich shall be subject to the rules andregulations of said educational institution.Political meetings or rallies held during anyelection campaign period as provided for by laware not covered by this Act.

Section 5. Application requirements - Allapplications for a permit shall comply with thefollowing guidelines:(a) The applications shall be in writing and shall

include the names of the leaders ororganizers; the purpose of such publicassembly; the date, time and durationthereof, and place or streets to be used forthe intended activity; and the probablenumber of persons participating, thetransport and the public address systems tobe used.

(b) The application shall incorporate the dutyand responsibility of applicant under Section8 hereof.

(c) The application shall be filed with the officeof the mayor of the city or municipality inwhose jurisdiction the intended activity is tobe held, at least five (5) working days beforethe scheduled public assembly.

(d) Upon receipt of the application, which mustbe duly acknowledged in writing, the officeof the city or municipal mayor shall causethe same to immediately be posted at aconspicuous place in the city or municipalbuilding.

Section 6. Action to be taken on theapplication -(a) It shall be the duty of the mayor or any

official acting in his behalf to issue or grant apermit unless there is clear and convincingevidence that the public assembly will createa clear and present danger to public order,public safety, public convenience, publicmorals or public health.

(b) The mayor or any official acting in his behalfshall act on the application within two (2)working days from the date the application


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was filed, failing which, the permit shall bedeemed granted. Should for any reason themayor or any official acting in his behalfrefuse to accept the application for a permit,said application shall be posted by theapplicant on the premises of the office of themayor and shall be deemed to have beenfiled.

(c) If the mayor is of the view that there isimminent and grave danger of a substantiveevil warranting the denial or modification ofthe permit, he shall immediately inform theapplicant who must be heard on the matter.

(d) The action on the permit shall be in writingand served on the application within twenty-four hours.

(e) If the mayor or any official acting in hisbehalf denies the application or modifies theterms thereof in his permit, the applicantmay contest the decision in an appropriatecourt of law.

(f) In case suit is brought before theMetropolitan Trial Court, the Municipal TrialCourt, the Municipal Circuit Trial Court, theRegional Trial Court, or the IntermediateAppellate Court, its decisions may beappealed to the appropriate court withinforty-eight (48) hours after receipt of thesame. No appeal bond and record on appealshall be required. A decision granting suchpermit or modifying it in terms satisfactory tothe applicant shall, be immediatelyexecutory.

(g) All cases filed in court under this Sectionshall be decided within twenty-four (24)hours from date of filing. Cases filedhereunder shall be immediately endorsed tothe executive judge for disposition or, in hisabsence, to the next in rank.

(h) In all cases, any decision may be appealedto the Supreme Court.

(i) Telegraphic appeals to be followed byformal appeals are hereby allowed.

Section 7. Use of public thoroughfare - Shouldthe proposed public assembly involve the use,for an appreciable length of time, of any publichighway, boulevard, avenue, road or street, themayor or any official acting in his behalf may, toprevent grave public inconvenience, designatethe route thereof which is convenient to theparticipants or reroute the vehicular traffic toanother direction so that there will be no seriousor undue interference with the free flow ofcommerce and trade.

Section 8. Responsibility of applicant - It shallbe the duty and responsibility of the leaders andorganizers of a public assembly to take all

reasonable measures and steps to the end thatthe intended public assembly shall be conductedpeacefully in accordance with the terms of thepermit. These shall include but not be limited tothe following:(a) To inform the participants of their

responsibility under the permit;(b) To police the ranks of the demonstrators in

order to prevent non-demonstrators fromdisrupting the lawful activities of the publicassembly;

(c) To confer with local government officialsconcerned and law enforcers to the end thatthe public assembly may be held peacefully;

(d) To see to it that the public assemblyundertaken shall not go beyond the timestated in the permit; and

(e) To take positive steps that demonstrators donot molest any person or do any act undulyinterfering with the rights of other personsnot participating in the public assembly.

Section 9. Non-interference by law enforcementauthorities - Law enforcement agencies shall notinterfere with the holding of a public assembly.However, to adequately ensure public safety, alaw enforcement contingent under the commandof a responsible police officer may be detailedand stationed in a place at least one hundred(100) meter away from the area of activity readyto maintain peace and order at all times.

Section 10. Police assistance when requested -It shall be imperative for law enforcementagencies, when their assistance is requested bythe leaders or organizers, to perform their dutiesalways mindful that their responsibility to provideproper protection to those exercising their rightpeaceably to assemble and the freedom ofexpression is primordial. Towards this end, lawenforcement agencies shall observe thefollowing guidelines:(a) Members of the law enforcement contingent

who deal with the demonstrators shall be incomplete uniform with their nameplates andunits to which they belong displayedprominently on the front and dorsal parts oftheir uniform and must observe the policy of"maximum tolerance" as herein defined;

(b) The members of the law enforcementcontingent shall not carry any kind offirearms but may be equipped with baton orriot sticks, shields, crash helmets with visor,gas masks, boots or ankle high shoes withshin guards;

(c) Tear gas, smoke grenades, water cannons,or any similar anti-riot device shall not beused unless the public assembly is attendedby actual violence or serious threats of


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violence, or deliberate destruction ofproperty.

Section 11. Dispersal of public assembly withpermit - No public assembly with a permit shallbe dispersed. However, when an assemblybecomes violent, the police may disperse suchpublic assembly as follows:(a) At the first sign of impending violence, the

ranking officer of the law enforcementcontingent shall call the attention of theleaders of the public assembly and ask thelatter to prevent any possible disturbance;

(b) If actual violence starts to a point whererocks or other harmful objects from theparticipants are thrown at the police or at thenon-participants, or at any property causingdamage to such property, the ranking officerof the law enforcement contingent shallaudibly warn the participants that if thedisturbance persists, the public assemblywill be dispersed;

(c) If the violence or disturbances prevailing asstated in the preceding subparagraph shouldnot stop or abate, the ranking officer of thelaw enforcement contingent shall audiblyissue a warning to the participants of thepublic assembly, and after allowing areasonable period of time to lapse, shallimmediately order it to forthwith disperse;

(d) No arrest of any leader, organizer orparticipant shall also be made during thepublic assembly unless he violates duringthe assembly a law, statute, ordinance orany provision of this Act. Such arrest shallbe governed by Article 125 of the RevisedPenal Code, as amended:

(e) Isolated acts or incidents of disorder orbranch of the peace during the publicassembly shall not constitute a group fordispersal.

Section 12. Dispersal of public assemblywithout permit - When the public assembly isheld without a permit where a permit is required,the said public assembly may be peacefullydispersed.

Section 13. Prohibited acts - The following shallconstitute violations of this Act:(a) The holding of any public assembly as

defined in this Act by any leader or organizerwithout having first secured that writtenpermit where a permit is required from theoffice concerned, or the use of such permitfor such purposes in any place other thanthose set out in said permit: Provided,however, That no person can be punished

or held criminally liable for participating in orattending an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial ormodification of a permit in violation of theprovisions of this Act by the mayor or anyother official acting in his behalf.

(c) The unjustified and arbitrary refusal toaccept or acknowledge receipt of theapplication for a permit by the mayor or anyofficial acting in his behalf;

(d) Obstructing, impeding, disrupting orotherwise denying the exercise of the rightto peaceful assembly;

(e) The unnecessary firing of firearms by amember of any law enforcement agency orany person to disperse the public assembly;

(f) Acts in violation of Section 10 hereof;(g) Acts described hereunder if committed

within one hundred (100) meters from thearea of activity of the public assembly or onthe occasion thereof;1. the carrying of a deadly or offensive

weapon or device such as firearm,pillbox, bomb, and the like;

2. the carrying of a bladed weapon and thelike;

3. the malicious burning of any object inthe streets or thoroughfares;

4. the carrying of firearms by members ofthe law enforcement unit;

5. the interfering with or intentionallydisturbing the holding of a publicassembly by the use of a motor vehicle,its horns and loud sound systems.

Section 14. Penalties - Any person found guiltyand convicted of any of the prohibited actsdefined in the immediately preceding Sectionshall be punished as follows:(a) violation of subparagraph (a) shall be

punished by imprisonment of one month andone day to six months;

(b) violations of subparagraphs (b), (c), (d), (e),(f), and item 4, subparagraph (g) shall bepunished by imprisonment of six months andone day to six years;

(c) violation of item 1, subparagraph (g) shall bepunished by imprisonment of six months andone day to six years without prejudice toprosecution under Presidential Decree No.1866;

(d) violations of item 2, item 3, or item 5 ofsubparagraph (g) shall be punished byimprisonment of one day to thirty days.

Section 15. Freedom parks - Every city andmunicipality in the country shall within sixmonths after the effectivity of this Act establishor designate at least one suitable "freedom park"


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or mall in their respective jurisdictions which, asfar as practicable, shall be centrally locatedwithin the poblacion where demonstrations andmeetings may be held at any time without theneed of any prior permit.

In the cities and municipalities ofMetropolitan Manila, the respective mayors shallestablish the freedom parks within the period ofsix months from the effectivity of this Act.

Section 16. Constitutionality - Should anyprovision of this Act be declared invalid orunconstitutional, the validity or constitutionalityof the other provisions shall not be affectedthereby.

Section 17. Repealing clause - All laws,decrees, letters of instructions, resolutions,orders, ordinances or parts thereof which areinconsistent with the provisions of this Act arehereby repealed, amended, or modifiedaccordingly.

Section 18. Effectivity - This Act shall take effectupon its approval.

Approved, October 22, 1985.

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Chapter XIII. Latest Cases

Salonga vs. Daniel Smith (February 2009):

Petitioners contend that these undertakingsviolate another provision of the Constitution,namely, that providing for the exclusive power ofthis Court to adopt rules of procedure for allcourts in the Philippines (Art. VIII, Sec. 5[5]).They argue that to allow the transfer of custodyof an accused to a foreign power is to providefor a different rule of procedure for that accused,which also violates the equal protection clauseof the Constitution (Art. III, Sec. 1.).The Courtfinds no violation of the Constitution becausethere is a substantial basis for a differenttreatment of a member of a foreign militaryarmed forces allowed to enter our territory andall other accused.

The rule in international law is that a foreignarmed forces allowed to enter one’s territory isimmune from local jurisdiction, except to theextent agreed upon. The Status of ForcesAgreements involving foreign military unitsaround the world vary in terms and conditions,according to the situation of the parties involved,and reflect their bargaining power. But theprinciple remains, i.e., the receiving State canexercise jurisdiction over the forces of thesending State only to the extent agreed upon bythe parties.12

As a result, the situation involved is not one inwhich the power of this Court to adopt rules ofprocedure is curtailed or violated, but rather onein which, as is normally encountered around theworld, the laws (including rules of procedure) ofone State do not extend or apply—except to theextent agreed upon—to subjects of anotherState due to the recognition of extraterritorialimmunity given to such bodies as visiting foreignarmed forces.

Soriano vs. Laguardia (29 April 2009):

There is nothing in petitioner’s statementssubject of the complaints expressing anyparticular religious belief, nothing furthering hisavowed evangelical mission. The fact that hecame out with his statements in a televised bibleexposition program does not automaticallyaccord them the character of a religiousdiscourse. Plain and simple insults directed atanother person cannot be elevated to the statusof religious speech.

Villanueva vs. Philippine Daily Inquirer (15May 2009)

The rule on privileged communication had itsgenesis not in the nation’s penal code but in theBill of Rights of the Constitution guaranteeingfreedom of speech and of the press. As early as1918, in United States v. Cañete,23 this Courtruled that publications which are privileged forreasons of public policy are protected by theconstitutional guaranty of freedom of speech.24

In the instant case, there is no denying that thequestioned articles dealt with matters of publicinterest. These are matters about which thepublic has the right to be informed, taking intoaccount the very public character of the electionitself. For this reason, they attracted mediamileage and drew public attention not only to theelection itself but to the candidates. As a politicalcandidate, petitioner consequently assumed thestatus of a public figure.

But even assuming a person would not qualifyas a public figure, it would not necessarily followthat he could not validly be the subject of apublic comment. For he could; for instance, ifand when he would be involved in a publicissue. If a matter is a subject of public or generalinterest, it cannot suddenly become less somerely because a private individual is involvedor because in some sense the individual did notvoluntarily choose to become involved. Thepublic’s primary interest is in the event; thepublic focus is on the conduct of the participantand the content, effect and significance of theconduct, not the participant’s prior anonymity ornotoriety.

Pates vs. COMELEC (June 2009)

Procedural rules should be treated with utmostrespect and due regard since they are designedto facilitate the adjudication of cases to remedythe worsening problem of delay in the resolutionof rival claims and in the administration ofjustice. The requirement is in pursuance to thebill of rights inscribed in the Constitution whichguarantees that "all persons shall have a right tothe speedy disposition of their before all judicial,quasi-judicial and administrative bodies," theadjudicatory bodies and the parties to a case arethus enjoined to abide strictly by the rules. Whileit is true that a litigation is not a game oftechnicalities, it is equally true that every casemust be prosecuted in accordance with theprescribed procedure to ensure an orderly andspeedy administration of justice. There have

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been some instances wherein this Court alloweda relaxation in the application of the rules, butthis flexibility was "never intended to forge abastion for erring litigants to violate the ruleswith impunity." A liberal interpretation andapplication of the rules of procedure can beresorted to only in proper cases and underjustifiable causes and circumstances.

People vs. Lopez (26 September 2008):

There are eight (8) instances when awarrantless search and seizure is valid, to wit:

(1) consented searches; (2) as an incident to alawful arrest; (3) searches of vessels and aircraftfor violation of immigration, customs, and druglaws; (4) searches of moving vehicles; (5)searches of automobiles at borders orconstructive borders; (6) where the prohibitedarticles are in "plain view;" (7) searches ofbuildings and premises to enforce fire, sanitary,and building regulations; and (8) "stop and frisk"operations.

Quinto vs. Comelec (01 December 2009):

The equal protection of the law clause in theConstitution is not absolute, but is subject toreasonable classification. If the groupings arecharacterized by substantial distinctions thatmake real differences, one class may be treatedand regulated differently from the other.

The equal protection of the law clause is againstundue favor and individual or class privilege, aswell as hostile discrimination or the oppressionof inequality. It is not intended to prohibitlegislation which is limited either in the object towhich it is directed or by territory within which itis to operate. It does not demand absoluteequality among residents; it merely requires thatall persons shall be treated alike, under likecircumstances and conditions both as toprivileges conferred and liabilities enforced. Theequal protection clause is not infringed bylegislation which applies only to those personsfalling within a specified class, if it applies aliketo all persons within such class, and reasonablegrounds exist for making a distinction betweenthose who fall within such class and those whodo not.

ON TIMBER LICENSEAND THE NON-IMPAIRMENT CLAUSE

Alvarez substituted by Gozun (DENR) vs.PICOP (03 December 2009): A timber license isnot a contract within the purview of the non-impairment clause is edifying.

Needless to say, all licenses may thus berevoked or rescinded by executive action. It isnot a contract, property or a property rightprotected by the due process clause of theConstitution because timber license is aninstrument by which the State regulates theutilization and disposition of forest resources tothe end that public welfare is promoted. A timberlicense is not a contract within the purview of thedue process clause; it is only a license or aprivilege, which can be validly withdrawnwhenever dictated by public interest or publicwelfare as in this case.

A license is merely a permit or privilege to dowhat otherwise would be unlawful, and is not acontract between the authority, federal, state, ormunicipal, granting it and the person to whom itis granted; neither is it a property or a propertyright, nor does it create a vested right; nor is ittaxation. The granting of license does not createirrevocable rights, neither is it property orproperty rights.

Sison vs. PNCC (04 December 2009):(NOTE: Also involves Remedial Law)

Unquestionably, the Court has the power tosuspend procedural rules in the exercise of itsinherent power, as expressly recognized in theConstitution, to promulgate rules concerning‘pleading, practice and procedure in all courts.’In proper cases, procedural rules may berelaxed or suspended in the interest ofsubstantial justice, which otherwise may bemiscarried because of a rigid and formalisticadherence to such rules. x x x

Be it remembered that rules of procedure arebut mere tools designed to facilitate theattainment of justice. Their strict and rigidapplication, which would result in technicalitiesthat tend to frustrate rather than promotesubstantial justice, must always be avoided. x xx Time and again, this Court has suspended itsown rules and excepted a particular case fromtheir operation whenever the higher interests ofjustice so require.

- end of Constitutional Law II -


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PUBLIC INTERNATIONAL LAWTable of Contents

Chapter I. Preliminaries ...............................124I. Public International Law (PIL) ...........124II. Contra-Distinctions............................124III. Relationship between PIL and MunicipalLaw 125

A. Monist View...................................125B. Dualist View ..................................125C. Monist-Naturalist View ..................125D. Coordinationist View .....................125

IV. The Philippine Doctrine .....................125A. Doctrine of Incorporation ..............125B. Doctrine of Transformation ...........125

Chapter II. Actors of International Law ......126I. Subjects and Objects of InternationalLaw 126

A. States............................................126B. Individuals .....................................128C. International Organizations (IO)....128

Chapter III. The Norms of International Law.......................................................................129

I. Concepts ...........................................129II. Sources of International Law ............129

A. Treaty as Source of Law...............129B. Customary International Law........129C. General Principle of Law...............131D. Subsidiary Source: Judicial Decisions

132E. Subsidiary Source: Publicists .......132F. Other Sources...............................132

III. Status of Norms ................................132A. Jus Cogens or Peremptory Norms132B. Erga Omnes Norms ......................132

Chapter IV. The Law of Treaties .................133I. Definition ...........................................133II. Requisites for Validity........................133

A. Treaty Making Capacity ................133B. Competence of theRepresentative/Organ Making the Treaty

133C. Parties Must Freely Give Consent 133D. Object and Subject Matter Must beLawful ....................................................133E. Ratification in Accordance with theConstitutional Process of the PartiesConcerned .............................................133

III. The Treaty-Making Process..............133A. Negotiation....................................133B. Adoption (Article 9, VCLOT) .........133C. Authentication of the Text (Article 10,VCLOT) .................................................134

D. Expression of Consent to be boundby the Treaty (Article 11, VCLOT).........134E. Registration with the UN...............135

IV. Philippine Law...................................135V. Amendment or Modification of Treaty

135VI. Reservations .....................................135VII. Invalid Treaties .............................135VIII. Grounds for Termination...............135

Chapter V. International Responsibility.....137I. Breach...............................................137

A. Is Fault or Malice Necessary? ......137B. The Standard of Diligence ............137

II. Attribution ..........................................137A. Direct and Indirect Attribution .......138B. Conduct Attributable to the State .138

III. Consequences of State Responsibility138

A. Duty to Make Reparation..............138B. Forms of Reparation.....................138

IV. Circumstances Precluding Wrongfulness139

V. Diplomatic Protection (“Espousal ofClaim”) .......................................................139

A. Material Dates...............................140B. Exhaustion of Local Remedies .....140

Chapter VI. Sovereignty and Jurisdiction .141I. Sovereignty .......................................141

A. Characteristics ..............................141B. Sovereign Equality of States ........141C. Corollaries.....................................141

II. Jurisdiction ........................................141A. Criminal Jurisdiction .....................141B. Reserved Domain of DomesticJurisdiction ............................................141C. Doctrine of State Immunity ...........141

Chapter VII. The Law of the Sea .................143I. Concepts ...........................................143

A. Distinguished from Maritime orAdmiralty Law........................................143B. Baseline ........................................143

II. Waters...............................................143A. Internal Waters .............................144B. Territorial Waters ..........................144C. Contiguous Zone ..........................144D. Exclusive Economic Zone ............144E. High Seas .....................................145

III. Archipelagic State .............................146IV. Continental Shelf...............................146

A. Limits of the Continental Shelf......148


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B. Rights of the Coastal State over theContinental Shelf ...................................148C. Rights with Respect to ContinentalShelf vs. EEZ.........................................148

V. Settlement of Disputes ......................149A. Peaceful Settlement of Disputes ..149B. Compulsory Settlement of Disputes

149C. Jurisdiction of Court or Tribunal....149D. Composition of the InternationalTribunal for the Law of the Sea (ITLOS)149E. Jurisdiction of ITLOS ....................149F. Applicable Laws in Settlement ofDisputes by the ITLOS ..........................149

Chapter VIII. The Use of Force inInternational Law..........................................150

I. Jus Ad Bellum v Jus in Bello .............150II. Rules on the Use of Force ................150

A. General Rule.................................150B. Exceptions ....................................150

Chapter IX. International Human Rights Law.......................................................................152

I. Definition of Human Rights ...............152II. Classification of Human Rights .........152III. “Internationalization” of Human Rights

152IV. Sources of Human Rights .................152

A. Convention....................................152B. Custom..........................................152

V. International Bill of Human Rights.....153A. Universal Declaration of HumanRights (UDHR).......................................153B. International Covenant on Civil andPolitical Rights (ICCPR) ........................153C. International Covenant on Economic,Social and Cultural Rights (ICESCR) ....154D. Common Provisions in the ICCPRand the ICESCR and differences ..........154

VI. Specific Norms in Human Rights ......154A. Genocide.......................................154B. Torture ..........................................155C. Rights of the Child ........................155D. Law against Discrimination ...........155E. Refugee Law.................................156

Chapter X. International Humanitarian Law.......................................................................157

I. Definition of “Armed Conflict” ............157II. Fundamental Principles of IHL..........157III. Application of IHL ..............................158IV. The Four Geneva Conventions and theTwo Additional Protocols ...........................158V. Application of the Four GenevaConventions and the Two AdditionalProtocols ....................................................158VI. Definition of Concepts and Phrases..159

A. Combatants...................................159

B. Hors de combat ............................159C. Protected Persons ........................159D. Martens clause .............................159E. Military Objective ..........................159F. Belligerency Status.......................159

VII. IHL and Weapons of MassDestruction.................................................160VIII. IHL and Non-International ArmedConflict 160

A. Common Article 3 and Protocol II.160B. Control-of-Territory .......................161C. War of National Liberation ............161

IX. Neutrality ...........................................161X. Protective Emblems..........................161

A. Who May Use ...............................162B. Misuse of the Emblem ..................162C. Punishment...................................162

XI. The International Criminal Court .......162A. Crimes within the Court’s Jurisdiction

162B. Modes of Incurring Criminal Liability

163C. Sources of Law.............................163D. Other Key Concepts .....................163E. Landmark Cases ..........................163

Chapter XI. Diplomatic Intercourse............165I. Agents of Diplomatic Intercourse......165

A. Head of State................................165B. The Foreign Office........................165C. The Diplomatic Corps ...................165

II. Functions and Duties ........................165III. Diplomatic Immunities and Privileges165

A. Personal Inviolability.....................165B. Inviolability of Premises and Archives

166C. Right of Official Communication ...166D. Immunity from Local Jurisdiction ..166E. Exemption from Taxes and CustomsDuties ....................................................166

IV. Consular Relations............................167A. Ranks............................................167B. Necessary Documents .................167C. Immunities and Privileges.............167

Chapter XII. Recent International Law Issuesin Philippine Law..........................................168

I. Daniel Smith and the Visiting ForcesAgreement .................................................168II. The Constitutionality of the BaselinesLaw 169III. VIOLENCE AGAINST WOMEN (VAW)AS A FORM OF TORTURE ......................169

Appendix 1 - Straight and Normal Baselines.......................................................................171Appendix 2 - Continental Shelf and theMaritime Zones.............................................171

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Chapter I. Preliminaries

I. PUBLIC INTERNATIONAL LAWII. CONTRA-DISTINCTIONSIII. RELATIONSHIP BETWEEN PIL AND

MUNICIPAL LAWA. MONIST VIEWB. DUALIST VIEWC. MONIST-NATURALIST VIEWD. COORDINATIONIST VIEW

IV. THE PHILIPPINE DOCTRINEA. DOCTRINE OF INCORPORATIONB. DOCTRINE OF TRANSFORMATION

I. Public International Law (PIL)

Traditionally, PIL is understood to be the body ofprinciples, norms and processes which regulatesthe relations of states and other internationalpersons, and governs their conduct affecting theinterests of States (MAGALLONA).

Other jurists, however, have defined PIL as "acontinuing process of authoritative decisions byauthorized decision-makers, when authority andpower coincide (HIGGINS).

It is not just the reference to the trend of pastdecisions which are termed 'rules' but a matrix ofnorms and process that come into being throughthe interaction of authority and internationalreality (MAGALLONA).

II. Contra-Distinctions

Municipal Law deals with the conduct or statusof individuals, corporations, and other ‘private’entities within states. PIL may be distinguishedtherefrom in that it prescribes rules andprocesses that govern the relations of stateswith each other, and the rights of other entitiesinsofar as they implicate the community of states(note: whom it governs). (vs. PIL, Asked 1 timein the Bar))

Private International Law is that part of thelaws of each State (conflict of laws rules) whichdetermines whether in dealing with a factualsituation involving a foreign element, the law orjudgment of some other State will be recognizedor applied in the forum (SALONGA). Unlike PILwhich is international in character and origin,private international law is national or municipalin character (note: character of norms beingapplied). It even involves the recognition andenforcement of a foreign judgment from anotherjurisdiction.P

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PUBLIC INTERNATIONAL LAW TEAM

Prof. Jay BatongbacalFaculty Editor

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POLITICAL LAW REVIEWER Chapter I. PRELIMINARIES

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III. Relationship between PIL andMunicipal Law

Although distinct, PIL and Municipal areinterrelated. Below are the four theoreticalviews on how they are related (CARTER ANDTRIMBLE):

A. Monist View

International and municipal legal systems arefundamentally part of one legal order. This viewconsiders international law to be superior,with municipal law being a mere subset ofinternational law.

Thus, international norms are applicable withinmunicipal systemseven without some positiveact of the State.

B. Dualist View

International law and municipal law are separatesystems.

Only those problems affecting internationalrelations are within the scope of internationallaw.

Thus, before an international norm can have aneffect within a municipal legal system, that normmust be transformed, or adopted into themunicipal system through a positive act by aState organ. (Exception: CustomaryInternational Law and General Principles ofInternational Law)

C. Monist-Naturalist View

PIL is superior to municipal law, and that bothsystems are but a part of a higher system ofnatural law.

D. Coordinationist View

International law and municipal law operate indifferent spheres, but municipal law is(generally) obliged to be in conformity withinternational law.

IV. The Philippine Doctrine

A. Doctrine of Incorporation

The Philippines “adopts the generally acceptedprinciples of international law as part of the lawof the land” (Art.II, Sec.2, Constitution).

These “generally accepted principles ofinternational law” refer to norms that are bindingupon all states (international customs andgeneral principles of international law).

Though these principles do not become part ofthe Constitution, they nonetheless become partof the Philippine legal system, and may besubject to judicial notice as law (MAGALLONA).

Secretary of Justice vs. Lantion, (2000)

“Under the doctrine of incorporation, rules ofinternational law form part of the law of the land,and no further legislative action is needed tomake such rules applicable in the domesticsphere.”

B. Doctrine of Transformation

The rule is different with respect to treaties.

They have to be transformed in order to be partof Philippine law.

A treaty is “transformed” when a treaty is ratifiedafter it has been concurred in by the Senate(Art.VII, Sec.21, Constitution). After ratification,a treaty shall be deemed as if legislated byour Legislature.

Note: Executive Agreements shall be effective inthe Philippines after they are ratified by the ChiefExecutive, without need for Senate concurrenceor ratification (BERNAS).

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Chapter II. Actors of International Law

I. SUBJECTS AND OBJECTS OFINTERNATIONAL LAWA. STATES

1. REQUISITE ELEMENTSi. PEOPLEii. TERRITORYiii. GOVERNMENTiv. INDEPENDENCE OR

SOVEREIGNTY

2. RECOGNITIONB.INDIVIDUALSC.INTERNATIONAL ORGANIZATIONS

I. Subjects and Objects of InternationalLaw

Subjects of International Law refer to entities: capable of possessing international rights

and duties; and having the capacity to maintain these rights

by bringing international claims (Reparationsfor Injuries Advisory Opinion, 1949).

A State is a quintessential example of a subjectof international law.

By contrast, an Object of International Law isthe person or thing in respect of which rights areheld and obligations are assumed by thesubject. It is, therefore, not directly governed bythe rules of international law. Its rights may beasserted and its responsibilities imposedindirectly, through the instrumentality of anintermediate agency (the subject). For example,individuals are objects in respect of whichhuman rights obligations are imposed uponStates. When an individual’s human rights isviolated by another State, the aggrievedperson’s State of nationality may “espouse” hisclaim and invoke the erring state’s responsibility(see: Discussion on Diplomatic Protection inChapter 5, Part V).

Notwithstanding this distinction, both subjectsand objects are considered actors ininternational law. They are:

A. States

States remain the most important actors ininternational law.

A state is defined as a group of people, more orless numerous, permanently living in a definiteterritory, under an independent governmentorganized for political ends and capable of

entering into legal relations with otherstates(Montevideo Convention on the Rights andDuties of States, Art.1 [1933]).

1. Requisite Elements

i. PeopleThe term “people” refers to an aggregate ofindividuals of both sexes who live togetheras a community despite racial or culturaldifferences. Although no minimum number isprovided, they should be permanent, andsufficient to maintain and perpetuatethemselves.

ii. TerritoryA state must exercise control over a certainarea. It need not be exactly defined bymetes and bounds, so long as there exists areasonable certainty of identifying it. Nominimum land area is required.

iii. GovernmentGovernment is the physical manifestation ofa state. Government must be organized,exercising control over and capable ofmaintaining law and order within its territory.

Note: Under the Rules on Succession ofStates, even changes of entiregovernments do not affect the identityand personality of the state. Oncestatehood is established, neither invasionnor disorder alone can remove its characteras a state (BROWLIE).

a. “Effective” GovernmentAlthough an effective government is thebest evidence of the existence of aState, an effective government is notalways strictly necessary (BROWLIE).

The requirement of effective governmentis not strictly applied when the State,already long-existing, happens toundergo a period of civil strife or internalchaos due to natural disaster orinvasion.

Thus, with the collapse of theirgovernments, Afghanistan and Somaliawere deemed failed states, but theyremained states.

Further, some states were deemedstates even before their governmentswere "very well organized" (ex. Poland,Burundi, and Rwanda).


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b. Governments de facto & de jureA government de jureis a governmentfrom law, that is, one with a color oflegitimacy.

A government de facto is one thatgoverns without a mandate of law. Solong as it is in place, it may commandobedience from the inhabitants of theoccupied area.

The de facto ruler may suspend lawsand enact new ones.

The establishment of a de factogovernment does not by itself abolish alllawsand structures established bythedeposedgovernment.

Only “laws of political nature affectingpolitical relations” are suspended ipsofacto; laws that enforce public order andregulate social and commercial liferemain in effect unless they are changedby the de facto sovereign.

Conversely, the re-establishment of thede jure government does not void theacts of the preceding de factogovernment.

Three kinds of de facto government:(1) Government de facto in the strict

legal sense is that which usurps –either by force or the will of themajority – the legal government andmaintains and control against it;

(2) Government by paramount force isthat which results from theoccupation of a state or a partthereof by invading forces in time ofwar; and

(3) Government established as anindependent government byinhabitants of a country who rise ininsurrection against the parent state.

iv. Independence or Sovereignty(Asked 1 time in the Bar)

Refers to the capacity to enter into relationswith other states. A state must be free fromoutside control in conducting foreign andinternal affairs.

It has, however, been advanced that the factthat a State “may be acting under thedirection of another State” is not of concernto international law (SALONGA).

The practice of states has been to ignore—so far as the issue of statehood isconcerned—various forms of political andemotional blackmail and interferencedirected against the weaker members of thecommunity."

Thus, it is sufficient for a State to possessexternal appearanceof capacity to enter intointernational relations (BROWNLIE).

2. Recognition

Act by which a state acknowledges theexistence of another state, government orbelligerent community and indicates willingnessto deal with the entity as such underinternational law.

Declaratory View vs. Constitutive View(Asked 1 time in the Bar).

The Declaratory View (Prevailing View) positsthat recognition is a mere declaration oracknowledgement of an existing state of lawand fact, legal personality having beenpreviously conferred by operation of law(BROWNLIE).

The Constitutive View (Minority View) positsthat the political act of recognition is aprecondition to the existence of legal rightsof a state. In its logical extreme, this is to saythat the very personality of a state depends onthe political decision of other states(BROWNLIE).

Important Doctrines: Wilson/Tobar Doctrine(Asked 1 time in the

Bar)– precludes recognition of governmentestablished by revolution, civil war, coupd’etat or other forms of internal violenceuntil freely elected representatives of thepeople have organized a constitutionalgovernment (US President WoodrowWilson, 1913 and Ecuadorian FM, 1907)

Stimson Doctine – precludes recognition ofany government established as a result ofexternal aggression (US Sec. of State HenryStimson, 1932)

Estrada Doctrine(Asked 1 time in the Bar) –dealing or not dealing with the governmentestablished through a political upheaval isnot a judgment on the legitimacy of the saidgovernment (Mexican Minister GenaroEstrada, 1930)


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Effects of Recognition:1. Diplomatic relations2. Right to sue in courts of recognizing state3. Right to possession of properties of

predecessor in the recognizing state4. All acts of the recognized state or

government are validated retroactively,preventing the recognizing state frompassing upon their legality in its own court.

B. Individuals

While States are have traditionally been deemedto be subject of international law, individualshave likewise become in some degree subjectsof that law. (This will be discussed further in theChapter on Human Rights)

C. International Organizations (IO)

The status and powers of an IO is determined byagreement and not by general or customaryinternational law.

IO’s are considered subjects of international law“if their legal personality is established bytheir constituent instrument (charter).”

Further, its constituent rights and duties, orcapacities and immunities, are limited to thoseset forth in the treaty creating the internationalorganization” (MAGALLONA).

1. Preconditions for InternationalPersonality of IO

I. It must constitute a permanentassociation of states, with lawfulobjects, equipped with organs;

II. There must be a distinction, in terms oflegal powers and purposes, betweenthe organization [and] its memberstates; and

III. It must have legal powers that it mayexercise on the internationalplane andnot solely within the national systems ofone or more states.

2. Capacity to Bring a Claim for Reparation

An IO such as the United Nations (UN)must be deemed to have such powerswhich, though not expressly granted inits Charter, are conferred upon it bynecessary implication as being essentialto the performance of its duties.

Thus, though the UN Charter did notexpressly clothe the UN with thecapacity to bring an international claimfor reparations, the UN neverthelesspossessed functional personality(Reparations for Injuries AdvisoryOpinion, ¶147).

IO’s are deemed to have powers notexpressly granted in their charterswhere these unstated powers are either implicitly bestowed in their charters

or necessary to effect powers

expressly granted.

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Chapter III. The Norms of InternationalLaw

I. CONCEPTSII. SOURCES OF INTERNATIONAL LAW

A. TREATY AS SOURCE OF LAWB. CUSTOMARY INTERNATIONAL LAW

1. ELEMENTS2. SCOPE3. DUALITY OF NORMS

C. GENERAL PRINCIPLE OF LAWD. SUBSIDIARY SOURCE: JUDICIAL

DECISIONSE. SUBSIDIARY SOURCE: PUBLICISTSF. OTHER SOURCES

III. STATUS OF NORMSA. JUS COGENS OR PEREMPTORY NORMSB. ERGA OMNES NORMS

I. Concepts

Formal Sources vs. Material Sources

Formal sources consist of the methods andprocedures for the creation of rules ofgeneral application which are legally bindingupon States. Material sources, upon theother hand, are the substantive evidence ofthe existence of the norms.

Material sources supply the substance ofthe rule, while formal sources confer upon itthe force of law.

Lex lata vs. Lex ferenda

Lex lata – what the law isLex ferenda – what jurists think the lawshould be or will become

II. Sources of International Law


Primary Sources: International Conventions, whether general

or particular, establishing rules expresslyrecognized by the contracting states(Treaties);

International Custom, as evidence of ageneral custom accepted as law;

General Principles of Law recognized bycivilized nations;

Subsidiary Sources: Judicial Decisions; and Teachings of the most highly qualified

publicists of the various nations (Art. 38, ICJStatute).

Treaties, Customs and GeneralPrinciples (Primary Sources) create law,while court decisions publicists’teachings constitute evidence of what isthe law.

With respect to the three primarysources, the order the enumerationdoes not provide a hierarchy in allcases.Thus, although treaties are mentionedfirst, they are not ipso facto superior tocustoms and general principles.

A. Treaty as Source of Law

A 'treaty' means an international agreementconcluded between States in written form andgoverned by international law, whetherembodied in a single instrument or in two ormore related instruments and whatever itsparticular designation" (Art.2(1), ViennaConvention on the Law of Treaties (VCLOT))

Under the VCLOT, the term “treaty”includes all agreements between states,regardless of how they are called. Thus, forpurposes of international law, treaties,executive agreements, exchanges of notes,etc. are all treaties.Note, however, that Philippine law makes adistinction between treaties and executiveagreements. Although they are equallybinding, only treaties require theconcurrence of the Senate to beeffective.(Art. 7, Sec. 21, 1987 Constitution)

A state party to a treaty is bound to complywith the obligations it assumed under suchtreaty in good faith [Pacta suntservanda](Art.26, VCLOT).

Treaty Obligation is based on consent. Nostate may be bound by a treaty obligationunless it has so consented [Pacta tertiis necnocet nec prosunt ](Art. 34, VCLOT).

As a general rule, treaties do not bind non-parties to the treaty

Treaties shall be further discussed on theChapter on the Law of Treaties.

B. Customary International Law

Norms of international law are those that resultfrom a general and consistent practiceof stateswhich they follow under a sense of legalobligation. For custom to exist, it requires theconcurrence of 2 elements:(1) State Practice and(2) Opinio juris.


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Unlike treaties, customary norms arelegally binding upon states regardless ofwhether they consent, subject to thePersistent Objector rule.

1. Elements

i. State PracticeFor custom to exist, the customary practicemust be both consistent and general.

(1) Consistency requires substantialuniformity, and not necessarily completeuniformity in practice.

(2) Generality likewise does not requireuniversality.

The absence of protest could be consideredevidence of the binding nature of customarypractice (AKEHURST).

Acts Evidencing State Practice (HARRIS):a. Diplomatic correspondenceb. Policy statementsc. Press releasesd. Opinions of official legal adviserse. Official manuals on legal decisions

(executive decisions and practices;government comments on drafts by the ILC)

f. International and national judicial decisionsg. Recitals in treaties and international

instrumentsh. Practice of international organs

UN General Assembly Resolutionsaregenerally just recommendations. They have nobinding effect under the Charter, save in limitedfields like budgetary concerns. However,suchresolutions may nonetheless be an evidence ofstate practice that is relevant in the developmentof custom.

ii. Opinio juris sive necessitatis

Refers to the belief on the part of Statesthat a particular practice is required bylaw. It is the existence of opinio juris thatdistinguishes binding custom from mereusage, from comity, and from courtesy orprotocol.

Note: It is not a “maxim,” it is an elementrequired in order for custom to come intofruition.

2. Scope

Custom may be:General binding upon all or moststatesorParticular binding between only two oramong a few states.

In cases it has decided, the ICJ has indeedrecognized the possibility of regional custom(Asylum Case) and of bilateral custom (Right ofPassage over Indian Territory Case).

Norms or Principles of CustomaryInternational Lawas Identified by thePhilippine Supreme Court as forming part ofPhilippine Law

1. Rules and principles of land warfare and ofhumanitarian law under the HagueConvention and the Geneva Convention(Kuroda v. Jalandoni, 1949)

2. Pacta sunt servanda (La Chemise Lacostev. Fernandez, 1984)

3. Human Rights as defined under theUniversal Declaration of Human Rights(Reyes v. Bagatsing, 1983)

4. The principle of restrictive sovereignimmunity (Sanders v. Veridiano, 1988)

5. The principle in diplomatic law that thereceiving State has the special duty toprotect the premises of the diplomaticmission of the sending State (Reyes v.Bagatsing, 1983)

6. The right of a citizen to return to his owncountry (Marcos v. Manglapus, 1989)

7. The principle that “a foreign army allowed tomarch through friendly country or to bestationed in it, by permission of itsgovernment or sovereign, is exempt fromcriminal jurisdiction of the place”. (Raquizav. Bradford, 1945)

8. The principle that judicial acts not of apolitical complexion of a de factogovernment established by the militaryoccupant in an enemy territory, is validunder international law. (Montebon v.Director of Prisons, 1947)

9. The principle that private property seizedand used by the enemy in times of warunder circumstances not constituting validrequisition does not become enemy propertyand its private ownership is retained, theenemy having acquired only its temporaryuse. (Noceda v. Escobar, 1950)

10. The principle that a State has the right toprotect itself and its revenues, a right notlimited to its own territory but extending tothe high seas (Asaali v. Commissioner,1968)


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The Persistent Objector.When a State hascontinuously objected to a new customary normat the time when it is yet in the process offormation, by such persistent objection the normwill not be applicable as against that State.

3. Duality of Norms

It is possible for a norm of international law toexist both as a customary norm and aconventional norm(ex. The Prohibition againstthe Use of Force). Such norms are said to be ofdual character.

Norms of dual character come into beingthrough any of the following ways:a. A treaty provision may simply restate a

customary norm (as is true of many of theprovisions in the VCLOT;

b. A treaty provision may constitute evidenceof custom;

c. A treaty provision may crystallize into acustomary norm.

For a treaty provision to crystallize intocustom, the provision must be norm-creating. The treaty must be law-making,creating legal obligations which are notdissolved by their fulfilment.

The number of parties, the explicitacceptance of rules of law, and, in somecases, the declaratory nature of theprovisions produce a strong law-creatingeffect at least as great as the generalpractice considered sufficient to support acustomary rule (BROWNLIE).

The customary norm retains a separateidentity even if its content is identical withthat of a treaty norm. Thus, a state thatcannot hold a state responsibility for abreach of a treaty obligation can still hold theerring state responsible for the breach of theidentical customary norm (See Nicaraguavs. US Case).

C. General Principle of Law

Refer to those general principles in municipallaw (particularly those of private law) that maybe appropriated to apply to the relations ofstates (OPPENHEIM).

Unlike custom, it does not require to besupported by state practice that is consistentand virtually uniform; it being sufficient that suchprinciple is found in a number of legaljurisdictions (ROQUE).

Examples:

1. Principles in Roman Law – estoppel, resjudicata, res inter alios acta, prescription.

When Thailand did not object to, and has infact benefited from, the Treaty of 1904 for 50years, it is deemed to have accepted saidtreaty. It is thereby precluded fromquestioning Annex I thereof, which showedthat the Temple of Preah Vihear was withinCambodian territory (Temple of PreahVihear Case).

2. Procedural Rules – the use ofcircumstantial evidence, hearsay evidence(press reports).

Press reports can be used to corroboratethe existence of a fact; and, when theydemonstrate matters of public knowledgewhich have received extensive presscoverage, they can be used to prove a factto the satisfaction of the court(Nicaragua vs.US Case, ¶62-63).

Circumstantial evidence is admitted asindirect evidence in all systems of law andits use is recognized by internationaldecisions. Such circumstantial evidence,however, must consist of a series of facts orevents that lead to a singleconclusion.(Corfu Channel Case)

3. Substantive – duty to make reparations,principle of reciprocity, pacta sunt servanda,separate corporate personality (BarcelonaTraction Case).

Every breach of an engagement(international obligation) entails theobligation to make reparation. The amountof reparation required is that amount whichis necessary to bring the injured partyback to the situation had the wrong notoccurred [The Standard of “Full”Reparations] (Chorzow Factory Case).

4. Jurisdictional Principles – The power of atribunal to determine the extent of its ownjurisdiction (competence de la competence).

Note: International tribunals have not beenconsistent in their manner of determiningwhether a principle in municipal lawconstitutes a general principle. In someinstances they have examined different legalsystems; in others, they merely declared aprinciple in municipal law as constituting ageneral principle of international law.


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D. Subsidiary Source: Judicial Decisions

a. Preliminary note: International law does notfollow the rule on stare decisis. Art. 59 of theICJ State (which Art.38(1)(d) makesreference to) expressly limits the effect of adecision only to the parties to the case.

b. Be that as it may, decisions of internationaltribunals exercise considerable influence asimpartial and well-considered statements ofthe law by (qualified) jurists made in light ofactual problems. Decisions of internationaltribunals constitute evidence of the state ofthe law (BROWLIE).

E. Subsidiary Source: Publicists

Writings of highly qualified publicists likewiseconstitute evidence the state of the law.

The problem, though, is that some publicistsmay be expressing not what the law is (lex lata),but what they think the law should be or will be(lex ferenda).

F. Other Sources

a. Ex Aequo et Bono the court may applythis standard of “what is equitable and good”to decide a case when the parties to thedispute so agree.

b. Equity refers to the application ofstandards of justice that are not contained inthe letter of existing law. It has often beenapplied in cases involving territorial disputesand maritime delimitations.

c. Unilateral Declarations declarationsmade by way of unilateral acts, concerninglegal or factual situations, may have theeffect of creating legal obligations.

Nothing in the nature of a quid pro quo,nor any subsequent acceptance, nor evenany reaction from other states is required forsuch declaration to take effect.

Verily, unilateral declarations bind theState that makes them.

In the Eastern Greenland case, the ICJ held thatDenmark not only had a superior claim over thecontested territory, but that Norway was furtherbound by the Ihlen Declaration not to opposeDenmark’s claim. The Ihlen Declaration is astatement made by the Norwegian ForeignMinister, Nils Claus Ihlen, on the topic ofDenmark's sovereignty over Greenland, whichMr. Ihlen declared verbally to the DanishMinister that "...the plans of the Royal [Danish]

Government respecting Danish sovereignty overthe whole of Greenland would be met with nodifficulties on the part of Norway."

Also in the Nuclear Test cases, France declaredthat it would cease atmospheric nuclear tests.This signaled that there had ceased to be adispute, since it had bound itself to do whatAustralia and New Zealand wanted.

III. Status of Norms

A. Jus Cogens or Peremptory Norms

Refer to norms accepted and recognized by theinternational community of States as a normfrom which no derogation is permitted andwhich can be modified only by a subsequentnorm of such character (Art.53, VCLOT).

When a treaty provision violates jus cogensnorms, it would be void; and a subsisting treatyprovision shall be voided by the emergence of anew jus cogens norm.

B. Erga Omnes Norms

International obligations of such character andimportance that: their violation by any state allows any other

state to invoke the violator's liability, even if only one state or only a few incurred

direct material damage.

It usually has to do with issues on standing.

In the Barcelona Traction Light and Power Co.Case, the grant of standing to sue because ofviolations of an erga omnes obligation ispremised on the idea that the maintenance ofsome norms are of interest to the entireworld community, their violation being an injuryto the interest, not only of the state directlyoffended, but of all states (i.e. outlawing acts ofgenocide or aggression).

POLITICAL LAW REVIEWER Chapter IV. The LAW of TREATIES

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Chapter IV. The Law of Treaties

I. DEFINITIONII. REQUISITES FOR VALIDITYIII. THE TREATY-MAKING PROCESS

A. NEGOTIATIONB. ADOPTIONC. CONSENT

1. SIGNATURE2. RATIFICATION

D. EXCHANGE OF INSTRUMENTS OFRATIFICATION

E. REGISTRATION WITH THE UNIV. PHILIPPINE LAW ON TREATIESV. AMENDMENT OR MODIFICATION OF TREATYVI. RESERVATIONSVII. INVALID TREATIESVIII. GROUNDS FOR TERMINATION

I. Definition

A 'treaty' is: an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or

in two or more related instruments and whatever its particular designation(Art.2(1),

VCLOT)

Under the VCLOT, the term “treaty” includesall agreements between states, regardlessof how they are called. Thus, for purposesof international law, treaties, executiveagreements, exchanges of notes, etc. are alltreaties. Note, however, that Philippine lawmakes a distinction between treaties andexecutive agreements. Both are equallybinding, but only treaties require theconcurrence of the Senate to be effective.

Treaty ExecutiveAgreements

SubjectMatter

1. PoliticalIssues

2. Changes innationalpolicy

3. Involvesinternationalagreementsof apermanentcharacter

1. Transitoryeffectivity

2. Adjusts details tocarry out well-establishednational policiesand traditions

3. Temporary4. Implements

treaties, statutes,policies

Ratification

Requiresratification bythe 2/3 of theSenate to bevalid andeffective (Art.VII, Sec. 21)

Does not requireconcurrence bySenate to be binding

II. Requisites for Validity

A. Treaty Making Capacity

Possessed by all states as an attribute ofsovereignty. International organizations alsopossess treaty-making capacity, althoughlimited by the organization’s purpose.

B. Competence of theRepresentative/Organ Making theTreaty

Generally exercised by the head of state.

Full Powers– refers to the authority of a personto sign a treaty or convention on behalf of astate.

Plenipotentiary - Persons other than the headof state, head of government or foreign ministermust produce such instrument in order to sign atreaty binding their government. Such a personis called a plenipotentiary.

C. Parties Must Freely Give Consent

If consent was given erroneously, or it wasinduced by fraud, the treaty shall bevoidable.

D. Object and Subject Matter Must beLawful

E. Ratification in Accordance with theConstitutional Process of the PartiesConcerned

III. The Treaty-Making Process

A. Negotiation

State representatives discuss the terms andprovisions of the treaty.

B. Adoption (Article 9, VCLOT)

It means that the form and content have beensettled by the negotiating States. It ispreparatory to the authentication of the text ofthe treaty and to its signature.


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C. Authentication of the Text (Article 10,VCLOT)

It means that the stage where the definitive textof the treaty is established as the correct andauthentic one.

D. Expression of Consent to be bound bythe Treaty (Article 11, VCLOT)

Consent to be bound by the terms of a treatymay be expressed through:

1. Signature, when the negotiator is authorizedto sign the treaty;

Art.12(1), VCLOT.Signature alone would besufficient to bind the state to the obligationsunder the treaty if(a) the treaty provides that signature shall have

that effect;(b) it is otherwise established that the

negotiating States agreed that signatureshould have that effect; or

(c) if the State can be shown to have had theintention to be bound by the signature (lookat full powers of its representative)

2. Ratification, the formal consent to the treatygiven by the Head of State, sometimes inconjunction with the legislature; or

Under international law, ratification isnecessary when(a) the treaty provides for such consent to

be expressed by means of ratification;(b) it is otherwise established that the

negotiating States agreed thatratification should be required;

(c) the representative of the State hassigned the treaty subject to ratification(Art.14(1), VCLOT), that is, when theintent was to make it subject toratification.

3. Exchange of instruments Constituting theTreaty

4. Acceptance5. Approval6. Accession

- the method by which a State, undercertain conditions, becomes a party to atreaty of which it is not a signatory and inthe negotiation of which it did not takepart.

7. By any other means agreed by the parties

Doctrine of Transformation.In Philippine Law, treaties have to betransformedin order to be part of Philippine law.

A treaty is “transformed” when a treaty isratified after it has been concurred in by theSenate (Art.VII, Sec.21, Constitution).

After ratification, a treaty shall be deemed asif legislated by our Legislature.


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La Chemise Lacoste v. Fernandez: Lacoste, aFrench corporation, sued local counterfeitersbefore Philippine courts. When the counterfeiterschallenged its legal personality to sue beforePhilippine courts, the Court held that thePhilippines has ratified international conventionsfor the protection of intellectual property, and itwould frustrate the object of these conventions ifLacoste is barred from filing its claims directly inPhilippine courts.

E. Registration with the UN

IV. Philippine Law

In the Philippines, the negotiation of treaties andtheir ratification are executive functions,subject to concurrence of the Senate. UnderArt.VII, Sec.21(Treaty Clause) of theConstitution, treaties must receive theconcurrence of the Senate before they may beeffective.

V. Amendment or Modification of Treaty

General Rule: Consent of all parties is required.

Exception:If the treaty itself so allows, twoStates may modify a provision only insofar astheir relationship inter se.

VI. Reservations

Definition:A unilateral statement made by astate upon entering a treaty whereby it purportsto exclude or modify the legal effect of certainprovision/s of the treaty in their application to thereserving state (Art.19. VCLOT).

Exceptions:A reservation shall not operate to modify orexclude the provisions of a treaty:1. Where the treaty expressly prohibits

reservations in general;2. Where the treaty expressly prohibits that

specific reservation being made; or3. Where the reservation is incompatible with

treaty’s object and purpose (Reservation tothe Genocide Conventions AdvisoryOpinion).

VII. Invalid Treaties

1. If the treaty violates a jus cogens norm ofinternational law (void);

2. If the conclusion of a treaty is procured bythreat or use of force (void);

3. Error of fact, provided that such fact formedan essential basis of a state’s consent to bebound;

4. If the representative of a state was corruptedto consent by another negotiating state;

5. If consent was obtained through fraudulentconduct of another negotiating state;

6. If the representative consented in violationof specific restrictions on authority, provided: the restriction was notified to the other

negotiating States prior to the representative expressing

such consent;7. If consent was given in violation of

provisions of internal law regardingcompetence to conclude treaties that ismanifest and of fundamental importance.

VIII. Grounds for Termination

1. Expiration of the term, or withdrawal of aparty in accordance with the treaty;

2. Extinction of a party to the treaty, when thetreaty rights and obligations would notdevolve upon the successor-state;

3. Mutual agreement of parties;4. Denunciation or desistance by a party;5. Supervening impossibility of performance;6. Conclusion of a subsequent inconsistent

treaty;7. Loss of subject matter;8. Material breach or violation of treaty9. Fundamental Change of Circumstance

(Rebus sic stantibus) (Art.62, VCLOT)

A contracting state may unilaterally withdrawfrom a treaty when a vital or fundamentalchange of circumstance occurs such that thefoundation upon which its consent to be boundinitially rested has disappeared.

Requisites:i. Change is so substantial that the

foundation of the treaty has altogetherdisappeared

ii. Change was unforeseen orunforeseeable at the time of the treaty’sperfection

iii. Change was not caused by the partyinvoking the doctrine

iv. Doctrine was invoked within a


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reasonable timev. Treaty’s duration is indefinitevi. Doctrine cannot operate retroactively (it

must not adversely affect provisionswhich have already been complied withprior to the vital change)

10. Outbreak of war between the parties, unlessthe treaty relates to the conduct of war (ex.The Four Geneva Conventions).

11. Severance of diplomatic relations (if suchrelationship is indispensable for the treaty’sapplication).

12. Jus Cogens Application: Emergence of anew peremptory norm of generalinternational law which renders void anyexisting, conflicting treaty.

POLITICAL LAW REVIEWER Chapter V. INTERNATIONAL RESPONSIBILITY

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Chapter V. International Responsibility

I. BREACHA. IS FAULT OR MALICE NECESSARY?B. THE STANDARD OF DILIGENCE

II. ATTRIBUTIONA. DIRECT AND INDIRECT ATTRIBUTIONB. CONDUCT ATTRIBUTABLE TO THE

STATEIII. CONSEQUENCES OF STATE

RESPONSIBILITYA. DUTY TO MAKE REPARATIONB. FORMS OF REPARATION

1. RESTITUTION2. COMPENSATION3. SATISFACTION4. DECLARATORY RELIEF

IV. CIRCUMSTANCES PRECLUDINGWRONGFULNESS

V. DIPLOMATIC PROTECTION (“ESPOUSAL OFCLAIM”)A. MATERIAL DATESB. EXHAUSTION OF LOCAL REMEDIES

Every internationally wrongful act of a Stateentails the international responsibility of thatState.

Whether an act is “international wrongful” or notdepends upon international law, and itswrongfulness is not affected by a contrarycharacterization in domestic law.

Requisites to Engage the Responsibility of aState A binding obligation and a failure to fulfill

that obligation (breach) The act or omission is attributable to the she

state

I. Breach

A. Is Fault or Malice Necessary?

The issue of whether the failure to fulfill abinding obligation must be coupled with faultor malice is a contested area in internationallaw.

Those who subscribe to the Doctrine orObjective (or Strict) Liability hold that faultor malice is unnecessary to engage theresponsibility of the state, it being sufficientthat there is a causal connection betweenthe act done and the injury suffered (orhow “remote” the injury suffered is from theact perpetrated).

Though the general rule for determining liabilityis objective responsibility, the theory of culpamay be relevant in certain special situations,such as:

i. When the breach results from acts ofindividuals not employed by the state orfrom the activities of licensees ortrespassers on its territory;

ii. When a state engages in lawful activities, inwhich case responsibility may result fromculpa in executing these lawful activities;

iii. When determining the amount of thedamages;

iv. When due diligence or liability for culpa isstipulated in a treaty.

B. The Standard of Diligence

A state breaches its international obligationif it fails to exercise the due diligence whichcould reasonably have prevented theconduct that caused the injury.

Where due diligence is relevant, is a state’sability to fulfill an obligation relevant?

The Relativist view holds that circumstancesaffecting a State’s ability to perform its dutieswould be relevant in determining the degree ofdiligence that must characterize its performanceof its obligations. Thus, a State breaches itsobligation only if:

i. It is aware of its obligation;ii. It had the means to fulfill them;iii. Yet it failed to do so (Tehran Hostages

Case).

The Objective view holds that the State’s abilityto fulfill is irrelevant.

II. Attribution

A State becomes liable for the acts ofindividuals,(1) when they are State organs or agent acting

under color of authority.(2) If they are not officers, the State is

nonetheless liable when the state adoptsthe acts of individuals or

(3) when it is negligent in preventing or inpunishing the acts.

EXAMPLE: When a State is bound by a duty toprosecute, or has an international obligation toexert efforts to prevent certain acts, and theState maliciously or negligently fails to do so.


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A. Direct and Indirect Attribution

1. Direct – State is liable for an act imputableto it that breaches an internationalobligation.

2. Indirect – the State becomes liable forbeing negligent in preventingor punishingthe internationally wrongful conduct, not forthe act itself.

B. Conduct Attributable to the State

1. Conduct of State organs (Art.4, Articlesof State Responsibility (ASR)) Refers to any person or entity that is

considered as such under its domesticlaw.

The conduct of a State organ is an act ofthat State, whatever the function of thatorgan, whatever position it holds in theorganization of the State, whether it isthe organ of the central government or alocal unit of the State.

2. Conduct of persons or entities not beingstate organs but exercising elements ofgovernment authority (Para-StatalEntities) (Art.5, ASR)

3. Conduct of organs placed at the disposalof a State by another State (Art.6, ASR)

4. Ultra vires conduct (Art.7, ASR) The acts of public officials, when done

withapparent authority or in their officialcapacity, are imputable to their State,even when these acts are beyond theirauthority or contravene superior orders

5. Conduct directed or controlled by a State(Art.8, ASR)

6. Conduct carried out in the absence ordefault of official authorities (Levee enmasse) (Art.9, ASR)

7. Conduct of an insurrectional movementthat becomes the new government of theState (Art.10, ASR)

NOTE: Where the insurrectional movementdoes not succeed, its conduct shall not beattributable to the State.

8. Conduct acknowledged and adopted by aState as its own (Art.11, ASR) When a State “adopts” the acts of

individuals as its own, it becomesresponsible therefor.Adoption occurs when(i) the State encourages these acts,(ii) the individuals effectively act as

agents in performing the offendingacts, and

(iii) the State endorses as its own theacts of the individuals.

9. Failure to Exercise Due Diligence A State becomes indirectly responsible

when it has an international obligation toprevent the internationally wrongful actsof individuals under its control, and theState maliciously or negligently fails todo so.

III. Consequences of StateResponsibility

The responsible State is under the obligation:1. To cease the act, if it is continuing; and2. To offer appropriate assurances and

guarantees of non-repetition(Art.30, ASR).

A. Duty to Make Reparation


Every breach on an international obligationinvolves the duty to make reparations. Theresponsible State is under the obligation to makefull reparation for the injury cause by theinternationally wrongful act. Injury includes anydamage, whether material or moral.

NOTE: While a breach gives rise to stateresponsibility, the duty to make reparations isthe consequence of state responsibility.

B. Forms of Reparation

Full reparation for the injury caused by theinternationally wrongful act shall take theform of restitution, compensation andsatisfaction, either singly or in combination(Art.34, ASR).

1. Restitution (Art.35, ASR)

Wiping out all the consequences of thebreach. Re-establishing the situation which

would probably have existed hadthe wrongful act not beencommitted.

Restitution could take the form of:(i) Legal Restitution – the declaration

that an offending treaty, law,executive act, or other, is invalid;and

(ii) Specific Restitution – restitution inkind.


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2. Compensation (Art.36, ASR)

The payment of money as valuation ofthe wrong done. The amount thereofmust correspond to:i. The value in which a restitution in

kind would bear; andii. The award of damages for loss

sustained which would not becovered by restitution in kind orpayment in place of it (ChorzowFactory Case).

3. Satisfaction (Art.37, ASR)

Insofar as the injury suffered by theoffended State is not made good byrestitution or compensation, theresponsible State is under the obligationto render satisfaction. It may consist of:i. Apology and other acknowledgment

of wrongdoing;ii. Punishment of individuals

concerned; andiii. Taking measures to prevent a

recurrence of the wrong.

Satisfaction may also be in pecuniaryform.

Pecuniary satisfaction, however, isdistinguishable from compensation onthe basis of their intention. Pecuniary satisfaction is meant to

be a token of regret andacknowledgement of wrongdoing (amonetary "sorry"), whilecompensation is intended to repairthe injury caused.

4. Declaratory Relief

Tribunals may give declaratory judgmentswhen:1. It is, or the parties deem it to be, the

proper way to deal with a dispute (ex.disputes over territory); or

2. The object is not to give satisfaction forthe wrong received (BROWNLIE)

IV. Circumstances PrecludingWrongfulness

1. Wronged State consented to the act thatcaused injury (Art.20, ASR)

2. Act was done in self-defense (Art.21, ASR)

3. Act was a countermeasure taken against theanother State (Art.22, ASR)

4. Act done in compliance with the offenderState's obligations under a peremptory norm(Art.23, ASR)

5. Author of the wrongful act has no otherreasonable way, in a situation of distress, tosave his life or the life of a person entrustedto his case.

Exception: When the State caused thedistress or the act in question will cause agreater peril (Art.23, ASR). In such cases,the act shall remain wrongful.

6. Act was done due to force majeure (Art.24,ASR)

7. Act was done in due to a state of necessity(Art. 25)

As a general rule, necessity may not beinvoked by a State as a ground forprecluding the wrongfulness of an actnot in conformity with an internationalobligation of that State.

Except when:a. The act was the only way to

safeguard an essential interest froma grave and imminent peril

b. Act must not seriously impair anessential interest of the State orStates to which the obligationbreached is owed, or of theinternational community as a whole

c. The existence and imminence ofsuch a peril must be dulyestablished

d. The means to avert the peril mustbe absolutely necessary to avert thedanger

e. The obligation violated must not beof peremptory character.

V. Diplomatic Protection (“Espousal ofClaim”)

DEFINITIONS.

A procedure whereby the State asks relief for the violation of the rights of the State through the harm done to its citizens, and the tribunal would award damages to the

State(OPPENHEIM).

Consists of the invocation by a State, throughdiplomatic action or other means of peacefulsettlement, of the responsibility of another State for an injury caused by an internationally

wrongful act of that State


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to a natural or legal person that is a nationalof the former State

with a view to the enforcement of suchresponsibility (Sec.1, Draft Articles onDiplomatic Protection).

The State entitled to exercise diplomaticprotection is the State of Nationality(Sec.3(1), DADP).

1. A natural person’s State of nationalitypertains to the State whose nationality thatperson has acquired, in accordance with thelaw of that State, by birth, descent,naturalization, succession of States or in anyother manner, not inconsistent withinternational law (Sec.4, DADP).

2. A Corporation’s State of nationalitypertains to the State under whose law thecorporation was incorporated.

However, when the corporation is controlled by nationals of another State

or States and has no substantial business activities in

the State of incorporation, and the seat of management and the

financial control of the corporation areboth located in another State,

that State shall be regarded as the State ofnationality (Sec.4, DADP).

A. Material Dates

A State is entitled to exercise diplomaticprotection in respect of a person who was anational of that State continuously from the(1) date of injury to the date of the (2) officialpresentation of the claim.Continuity is presumed if that nationalityexisted at both these dates (Sec.5, DADP).

Mavromattis case: the primary nexus fordiplomatic protection is nationality. An injuryto the national is also an injury to the State

Amvatielos case: Since individuals are notwithin the jurisdiction of an internationalcourt, it is only through a State’s espousal ofits national’s claims that the individual to theinternational scene upon its discretion. Thedecision whether to espouse a claim or notis entirely for the State to determine.

Nottebohm Case: Other states are notbound by another's claim of nationality.Determining nationality is a matter ofdomestic law.

When a person, however, is given

nationality by 2 states, the case now goesinto the realm of international law.

The test for the nationality of a person is themost significant link. In this case,Nottebohm failed to satisfy the test. Eventhough he was a national of Liechtenstein,Guatemala was not bound to recognize suchcitizenship because he merely had acitizenship of convenience (not agenuinelink to Liechtenstein).

B. Exhaustion of Local Remedies

Local remedies refers to the legal remedieswhich are open to an injured person beforethe judicial or administrative courts orbodies, whether ordinary or special, of theState alleged to be responsible for causingthe injury.

The exhaustion of local remedies is a pre-condition before a State may present aninternational claim in behalf of its injurednational.

Exceptions:i. There are no reasonably available local

remedies to provide effective redress, or thelocal remedies provide no reasonablepossibility of such redress;

ii. There is undue delay in the remedialprocess which is attributable to the Statealleged to be responsible;

iii. There was no relevant connection betweenthe injured person and the State alleged tobe responsible at the date of injury;

iv. The injured person is manifestly precludedfrom pursuing local remedies; or

v. The State alleged to be responsible haswaived the requirement that local remediesbe exhausted.

POLITICAL LAW REVIEWER Chapter VI. SOVEREIGNTY and JURISDICTION

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Chapter VI. Sovereignty and Jurisdiction

I. SOVEREIGNTYA. CHARACTERISTICSB. SOVEREIGN EQUALITY OF STATESC. CORROLARIES

II. JURISDICTIONA. BASES OF CRIMINAL JURISDICTIONB. RESERVED DOMAIN OF DOMESTIC

JURISDICTIONC. DOCTRINE OF STATE IMMUNITY

I. Sovereignty

Sovereignty is the supreme anduncontrollable power inherent in a State bywhich that State is governed (CRUZ).

Sovereignty has also been used to refer tothe general legal competence of states,including its power to exercise legislativejurisdiction, and the power to acquire title toterritory (BROWNLIE).

A. Characteristics

(CRUZ):1. Permanent2. Exclusive3. Comprehensive4. Absolute5. Inalienable6. Imprescriptible

B. Sovereign Equality of States

All States enjoy sovereign equality. They haveequal rights and duties and are equal membersof the international community, notwithstandingdifferences of an economic, social, political orother nature (Principle 6, Declaration onPrinciples of International Law ConcerningFriendly Relations and Co-operation AmongStates [UN GA Res.2625(XXV)]).

C. Corollaries

1. States are juridically equal;2. Each State enjoys the rights inherent in full

sovereignty;3. Each State has the duty to respect the

personality of other States;4. The territorial integrity and political

independence of the State are inviolable;5. Each State has the right freely to choose

and develop its political, social, economicand cultural systems;

6. Each State has the duty to comply fully andin good faith with its international obligationsand to live in peace with other States.

II. Jurisdiction

State jurisdiction is the power of a stateunder international law to govern personsand property by its municipal law.

This may be criminal or civil, and maybe exclusive or concurrent with other states(HARRIS).

A. Criminal Jurisdiction

BASES:1. Territoriality Principle – jurisdiction is

determined by reference to the placewhere the crime is committed.

2. Protective Principle – court is vestedwith jurisdiction if a national interest isinjured.

3. Nationality Principle – court hasjurisdiction if the offender is a national ofthe forum state.

4. Passive Personality Principle – acourt has jurisdiction if the victim is anational of the forum state.(S.S. LotusCase)

5. Universality Principle – jurisdiction isasserted with respect to crimesconsidered committed against the wholeof humanity (hostes humani generis).Forexample, piracy in the high seas.(People v. Lo-lo and Saraw, 1922)

B. Reserved Domain of DomesticJurisdiction

The domain of state activities where thejurisdiction of states is not bound by internationallaw: the extent of this domain depends oninternational law and varies according to itsdevelopment (i.e. when a norm crystallizes intocustom).

The reservation of this domain, however, iswithout prejudice to the use of enforcementmeasures under Chapter VII of the Charter.

C. Doctrine of State Immunity

This refers to a principle by which a State, itsagents, and property are immune from judicialprocess of another state. (MAGALLONA)

Domestic courts must decline to hear casesagainst foreign sovereigns out of deference totheir roles as sovereigns.

This principle is premised on juridical equality ofstates, according to which a state may not

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impose its authority or extend its jurisdiction onanother state without the consent of the latterthrough a waiver of immunity. (Par in parem nonhabet imperium).

This doctrine is embodied under Article XVI,Sec. 3 of the 1987 Constitution, to wit:

“The State may not be sued without its consent.”

Application:(Asked 1 time in the Bar)1. Absolute Sovereign Immunity - a State

cannot be sued in a foreign court no matterwhat act it is sued for.

2. Restrictive Sovereign Immunity – a Stateis immune from suits involving governmentalactions (jure imperii), but not for thosearising from purely commercial or non-governmental activity (jure gestionis).

The Philippine Supreme Court recognizes thesecond theory, and has established certain rulesin its application.

Test: Whether, assuming the public officer isfound liable, enforcement of the decision willrequire an affirmative act on the part of theState. If the answer is yes, then the act inquestion would be covered by State immunity.

Acts characterised by the Supreme Court asActs Juri Imperii:

1. The lease by a foreign government ofapartment buildings for use of its militaryofficers (Syquia v. Lopez, 1949)

2. The conduct of public bidding for the repairof wharf at a United States Naval Station(USA v. Ruiz, 1985)

3. The change of employment status of militarybase employees (Sanders v. Veridiano,1988)

Acts characterised as Acts Juri Gestionis:

1. The hiring of cook in the recreation center,consisting of 3 restaurants, a cafeteria, abakery, a store, and a coffee and pastryshop at John Hay Air Station in Baguio City,to cater to American servicemen and thegeneral public (USA v. Guinto, 1990)

2. The bidding for the operation of barbershops in Clark Air Base (USA v. Guinto,supra)


Chapter VII. The Law of the Sea

I. CONCEPTSA. DISTINGUISHED FROM M

ADMIRALTY LAW:B. BASELINE

II. WATERSA. INTERNAL WATERSB. TERRITORIAL WATERSC. CONTIGUOUS ZONED. EXCLUSIVE ECONOMIC ZONEE. HIGH SEAS

III. ARCHIPELAGIC STATEIV. CONTINENTAL SHELF

A. LIMITS OF THE CONTINENTAL SHELFB. RIGHTS OF THE COASTAL STATE OV

THE CONTINENTAL SHELFC. RIGHTS WITH RESPECT

CONTINENTAL SHELF VS. EEZV. SETTLEMENT OF DISPUTES

A. PEACEFUL SETTLEMENT OF DISPUTESB. COMPULSORY SETTLEMEN

DISPUTESC. JURISDICTION OF COURT OR TRIBUNALD. COMPOSITION OF THE INTERNATIONAL

TRIBUNAL FOR THE LAW OF T(ITLOS)

E. JURISDICTION OF ITLOSF. APPLICABLE LAWS IN SETTLEMENT OF

DISPUTES BY THE ITLOS

I. Concepts

The Law of the Sea (LOS) is the body of treatyrules and customary norms governing the use ofthe sea, the exploitation of its resources, and theexercise of jurisdiction over maritime regimes(MAGALLONA).

It is the branch of PIL which regulates therelations of states with respect to the use of theoceans.(Asked 1 time in the Bar)

A. Distinguished from Maritime orAdmiralty Law

1. Content: Maritime law is (traditionally)associated with private law context of rightsand obligations pertaining to carriage ofpersons and goods by sea.

2. Scope: Maritime law concerns the rightsand duties of individual private persons incommercial transactions. LOS deals withrights and duties of states.

B. Baseline

The line from which a breadth of the territorialsea and other maritime zones, such as the“contiguous zone” and the “exclusive economiczone” is measured.

Chapter VII. The

Law of the Sea

DISTINGUISHED FROM MARITIME OR

ONE

ENTAL SHELFTHE COASTAL STATE OVER

RIGHTS WITH RESPECT TO. EEZ

OF DISPUTESCOMPULSORY SETTLEMENT OF

T OR TRIBUNALNTERNATIONAL

NAL FOR THE LAW OF THE SEA

ETTLEMENT OF

The Law of the Sea (LOS) is the body of treatyrules and customary norms governing the use ofthe sea, the exploitation of its resources, and theexercise of jurisdiction over maritime regimes

It is the branch of PIL which regulates thetions of states with respect to the use of the

Distinguished from Maritime or

Maritime law is (traditionally)law context of rights

and obligations pertaining to carriage of

Maritime law concerns the rightsand duties of individual private persons incommercial transactions. LOS deals with

e line from which a breadth of the territorialsea and other maritime zones, such as the“contiguous zone” and the “exclusive economic

Its purpose is to determine the starting point tobegin measuring maritime zones.boundary ofthe coastal state.(See Appendix 1)

1. Normal baseline – the territorial sea is thelow-water line along the coast as marked onlarge-scale charts officially recognized bythe coastal state (Art. 5, UN Convention onthe Law of the Sea, or UNCLOS).

2. Straight baseline– where the coastline isdeeply indented or cut into, or if there is afringe of islands along the coast in itsimmediate vicinity, the method of straightlines joining the appropriate points may beemployed in drawing the baseline fromwhich the breadth of the territorial sea ismeasured (Art. 7, UNCLOS)

II. Waters

The waters of a state can be classified generallyas internal, territorial, contiguous, or belongingto the exclusive economic zone (EEZ). Theextent of these waters depend on their distancefrom the state’s baseline

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Its purpose is to determine the starting point tobegin measuring maritime zones.boundary of

coastal state.(See Appendix 1)

the territorial sea is thewater line along the coast as marked on

scale charts officially recognized bythe coastal state (Art. 5, UN Convention onthe Law of the Sea, or UNCLOS).

where the coastline isdeeply indented or cut into, or if there is afringe of islands along the coast in itsimmediate vicinity, the method of straightlines joining the appropriate points may beemployed in drawing the baseline from

th of the territorial sea ismeasured (Art. 7, UNCLOS)

The waters of a state can be classified generallyas internal, territorial, contiguous, or belongingto the exclusive economic zone (EEZ). Theextent of these waters depend on their distance

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A. Internal Waters


These are waters of lakes, rivers, and bayslandward of the baseline of the territorial sea.

However, in case of archipelagic states, waterslandward of the baseline other than those rivers,bays and lakes, are archipelagic waters.

Internal waters are treated as part of a State'sland territory, and is subject to the full exerciseof sovereignty. Thus, the coastal state maydesignate which waters to open and which toclose to foreign shipping.

B. Territorial Waters


These waters stretch up to 12 miles from thebaseline on the seaward direction.

They are subject to the jurisdiction of the coastalstate, which jurisdiction almost approximatesthat which is exercised over land territory.

Except that the coastal state must respect therights to (1) innocent passage and, in the caseof certain straits, to (2) transit passage.(Asked 1time in the Bar)

1. Innocent passage navigation through theterritorial sea w/o entering internal waters,going to internal waters, or coming frominternal waters and making for the highseas.

It must (a) involve only acts that arerequired by navigation or by distress, and (b)not prejudice the peace, security, or goodorder of the coastal state.

2. Transit passage the right to exercisefreedom of navigation and overflight solelyfor the purpose of continuous andexpeditious transit through the straightsused for international navigation.

The right cannot be unilaterallysuspended by the coastal state.

INNOCENT PASSAGE TRANSITPASSAGE

Pertains to navigation ofships only

Includes the right ofoverflight

Requires submarines andother underwater vehiclesto navigate on the surfaceand show their flag.

Submarines are allowed tonavigate in “normal mode”– i.e. submerged

Can be suspended, butunder the condition that itdoes not discriminateamong foreign ships, and

Cannot be suspended

INNOCENT PASSAGE TRANSITPASSAGE

such suspension isessential for the protectionof its security, andsuspension is effectiveonly after having been dulypublished (Art. 25,UNCLOS)In the designation of sealanes and traffic separationschemes, the coastal stateshall only take into accountthe recommendations ofthe competent internationalorganization.

Designation of sea lanesand traffic separationschemes is subject toadoption by competentinternational organizationupon the proposal andagreement of statesbordering the straits.

C. Contiguous Zone


This is the maritime zone (up to 24 nauticalmiles) adjacent to the territorial sea where thecoastal state may exercise certain protectivejurisdiction.

Thus, the coastal state may exercise the controlnecessary to:a. Prevent infringement of its customs, fiscal,

immigration or sanitary laws and regulationswithin its territory or territorial sea;

b. Punish infringement of the above laws andregulations committed within its territory orterritorial sea.

The coastal state must not extend itscontiguous zone beyond 24 nautical miles fromthe baseline. Note that the contiguous zone ismerely a zone of jurisdiction for a particularpurpose. It is not a zone of sovereignty.

D. Exclusive Economic Zone


A coastal state may establish an EEZ that maystretch up to 200 miles from its baselines.

Within this zone, a State may regulate nonlivingand living resources, other economic resources,artificial installations, scientific research, andpollution control.

Under the UNCLOS, states have the sovereignright to exploit the resources of this zone, butshall share that part of the catch that is beyondits capacity to harvest.

1. Resources covered by sovereign rights ofcoastal states in the EEZ include living and


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non-living resources in the waters of theseabed and its subsoil.

2. Coastal states have the primaryresponsibility to utilize, manage andconserve the living resources within theirEEZ, i.e. ensuring that living resources arenot endangered by overexploitation, and theduty to promote optimum utilization of livingresources by determining allowable catch.

3. If after determining the maximum allowablecatch, the coastal state does not have thecapacity to harvest the entire catch, it shallgive other states access to the surplusby means of arrangements allowableunder the UNCLOS.

Note however that the UNLCOS doesnot specify the method for determining“allowable catch.” Hence, states mayestablish illusory levels.

4. Geographically disadvantaged states (thosewho have no EEZ of their own or thosecoastal states whose geographical situationsmake them dependent on the exploitation ofthe living resources of the EEZ of otherstates) and land-locked stateshave theright to participate, on equitable basis, inthe exploitation of the surplus of theliving resources in the EEZ of coastalstates of the same subregion or region.

Note: a coastal state whose economy isoverwhelmingly dependent on theexploitation of its EEZ is not required toshare its resources.

5. The coastal state has jurisdiction over thei. establishment and use of artificial

islands, installations and structures,ii. scientific research,iii. the preservation and protection of

marine environment.

6. Under Art. 58 of the UNCLOS, all statesenjoy the freedom of navigation, overflight,and laying of submarine cables andpipelines in the EEZ of coastal states.

7. The coastal state has the right to enforceall laws and regulations enacted toconserve and manage the livingresources in its EEZ. It may board andinspect a ship, arrest a ship and its crew andinstitute judicial proceedings against them.

Note: In detention of foreign vessels, thecoastal state has the duty to promptly notifythe flag state of the action taken.

Conflicts regarding the attribution of rights andjurisdiction in the EEZ must be resolved on thebasis of equity and in the light of all relevant

circumstances, taking into account the respective

importance of the interests involved to theparties as well as to the internationalcommunity as a whole. (Art. 59, UNCLOS).

E. High Seas

These are all parts of the sea that are notincluded in the EEZ, in the territorial sea, or inthe internal waters of a state, or are in thearchipelagic waters of the archipelagic state.

They are beyond the jurisdiction and sovereignrights of states.

a. High seas are open to all states, whethercoastal or land-locked, and no state mayvalidly purport to subject any of the highseas to its sovereignty.

b. It is the right of every state to sail shipsflying its flag on the high seas, and thusno state can prevent ships or other statesfrom using the high seas for lawfulpurposes. The high seas, however, isreserved for peaceful purposes.

c. “Freedom of the high seas” comprises the(a) freedom of navigation,(b) freedom of overflight,(c) freedom of fishing,(d) freedom to lay submarine cables and

pipelines,(e) freedom to construct artificial islands

and installations, and(f) freedom of scientific research.

All states must exercise these freedoms withdue regard for the interests of other states.

d. In the high seas, a state has exclusivejurisdiction over ships sailing under itsflag, hence it is called a “flag state”.Warships and ships owned and operated bya State also enjoy immunity from thejurisdiction of any other state other than theflag state.

Exceptions to this rule include collision of ships,where the master or any person in the service ofthe ship is subject to concurrent jurisdiction ofthe flag state and the state of which such personis a national. Also, every state may seize apirate ship, or ships taken by pirates. In cases ofhot pursuit, a warship or aircraft of a state maystop and arrest a foreign ship on the high seas.


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III. Archipelagic State

It is a state up made up of wholly one or morearchipelagos. It may include other islands.

An archipelago is a group of islands, includingparts of islands, interconnecting waters andother natural features which are so closelyrelated that such islands, waters and naturalfeatures form an intrinsic geographical,economic and political entity, orwhich historically have been regarded as such.

Baselines of archipelagic states.Straightbaselines join the outermost points of theoutermost islands and drying reefs of anarchipelago, provided that within such baselinesare included the main islands and an area inwhich the ratio of the water to the area of theland, including atolls, is between 1 to 1 and 9 to1. Such are called straight archipelagicbaselines.

Two Kinds of Archipelagoes1.Coastal – situated close to a mainland and

may be considered part thereof, i.e. Norway2.Mid-ocean– situated in the ocean at such

distance from the coasts of firm land, i.e.Indonesia (note: The Archipelagic Stateprovisions apply only to mid-oceanarchipelagos composed of islands, and NOTto a partly continental state.)

Territorial sea and other maritime zones –the breadth of the territorial sea, thecontiguous zone, and the EEZ is measuredfrom the straight archipelagic baselines.

Archipelagic waters– these are the watersenclosed by the straight archipelagicbaselines, regardless of their depth ordistance from the coast.

It is subject to the sovereignty of thearchipelagic state, but subject to the right ofinnocent passage for the ships of all states.

Other Rights with Respect to ArchipelagicWaters

1. Rights under existing agreement on the partof third states should be respected by thearchipelagic state.

2. Within its archipelagic waters, thearchipelagic state shall recognize traditionalfishing rightsand other legitimate activities ofimmediately adjacent neighboring states.

3. The archipelagic state shall respect existingsubmarine cables laid by other states and“passing through its waters without making alandfall”.

4. Right of archipelagic sea lanes passage:It is the right of foreign ships and aircraft tohave continuous, expeditious, andunobstructed passage in sea lanes and airroutes through or over archipelagic watersand the adjacent territorial sea of thearchipelagic state.

Note: the archipelagic state designates thesea lanes as proposals to the “competentinternational organization”. It is theInternational Marine Organization (IMO)which adopts them through Art. 53(9) of theUNCLOS which states that “theOrganization may adopt only sea lanes andtraffic separation schemes as may beagreed with the archipelagic state, afterwhich such state may designate, prescribeor substitute them”.

Special Issue:Under Art. 1 of the 1987 Constitution, thearchipelagic waters of the Philippines arecharacterized as forming part of “the internalwaters of the Philippines.” However, under theUNCLOS, archipelagic waters consist mainly ofthe “waters around, between, and connectingthe islands of the archipelago, regardless ofbreadth or dimension.”

Thus, conversion from internal waters underthe Constitution into archipelagic waters underthe UNCLOS gravely derogates thesovereignty of the Philippine state.Remember that sovereignty over internal watersprecludes the right of innocent passage andother rights pertaining to archipelagic watersunder the UNCLOS.

IV. Continental Shelf

(See Appendix 2)

Definition– it is the seabed and subsoil of thesubmarine areas extending beyond the territorialsea of the coastal state throughout the naturalprolongation of its lands territory up to1. the outer edge of the continental margin, or2. a distance of 200 nautical miles from the

baselines of the territorial sea where theouter edge of the continental margin doesnot extend up to that distance.

Continental margin the submergedprolongation of the land mass of the continental


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state, consisting of the continental shelf proper,the continental slope, and the continental rise.


A. Limits of the Continental Shelf

Juridical or Legal Continental Shelf: 0nautical miles from baselines

Extended Continental Shelf: 200nautical miles from baselines depending ongeomorphological or geological data andinformation

When the continental shelf extends beyond200 nautical miles, the coastal state shallestablish its outer limits.

At any rate, the continental shelf shall notextend beyond 350 nautical miles from thebaseline of the territorial sea, or 100 nauticalmiles from the 2500-meter isobath (or the pointwhere the waters are 2500 meters deep).

B. Rights of the Coastal State over theContinental Shelf

The continental shelf does not form part ofthe territory of the coastal state.

It only has sovereign rights withrespect to the exploration andexploitation of its natural resourcesincluding the mineral and other noresources of the seabed and subsoiltogether with living organisms belonging tothe sedentary species.

*

For example, the coastal state has theexclusive right to authorize and regulate oildrilling on its continental shelf.

These rights are exclusive in the sense thatwhen the coastal state does not explore

* Sedentary species are organisms which, at the harvestablestate, are either immobile on or under the seabed, or areunable to move except in constant physical contact with theseabed or subsoil.

Chapter VII. The

Limits of the Continental Shelf

Juridical or Legal Continental Shelf: 0-200

Extended Continental Shelf: 200-350nautical miles from baselines depending ongeomorphological or geological data and

When the continental shelf extends beyond200 nautical miles, the coastal state shall

At any rate, the continental shelf shall notextend beyond 350 nautical miles from the

, or 100 nauticalmeter isobath (or the point

waters are 2500 meters deep).

al State over the

The continental shelf does not form part ofthe territory of the coastal state.

only has sovereign rights withrespect to the exploration andexploitation of its natural resources,including the mineral and other non-livingresources of the seabed and subsoiltogether with living organisms belonging to

For example, the coastal state has theexclusive right to authorize and regulate oil-

in the sense thatwhen the coastal state does not explore

Sedentary species are organisms which, at the harvestablestate, are either immobile on or under the seabed, or areunable to move except in constant physical contact with the

its continental shelf or exploit its resources,no one may undertake these activitieswithout the coastal state’s consent.

Note: In instances where the continental marginis more than 200 nautical miles from thebaselines, and hence extends beyond the EEZ,the coastal state has the exclusive right toexploit mineral and non-living resources in the“excess area”.

C. Rights with Respect to ContinentalShelf vs. EEZ

ContinentalShelf

Duty tomanageandconservelivingresources

No duty

Rights ofthe coastalstate as tonaturalresources

Relate tomineral andother non-livingresources of theseabed and thesubsoil

Rights ofthe coastalstate as tolivingresources

Apply only tosedentaryspecies of suchliving resources

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its continental shelf or exploit its resources,no one may undertake these activitieswithout the coastal state’s consent.

: In instances where the continental marginnautical miles from the

baselines, and hence extends beyond the EEZ,the coastal state has the exclusive right to

living resources in the

Rights with Respect to Continental

EEZ

Coastal state isobliged to manageand conserve livingresources in theEEZ

Have to do withnatural resources ofboth waterssuperadjacent tothe seabed andthose of the seabedand subsoilDo not pertain tosedentary species


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V. Settlement of Disputes

A. Peaceful Settlement of Disputes

Under par. 3, Art. 2 of the UN Charter, Stateshave the duty to settle disputes by peacefulmeans. This obligation extends to State Partiesof the UNCLOS, underscoring the right of theparties to resort to peaceful means of their ownchoice on which they can agree any time.

B. Compulsory Settlement of Disputes

Where no successful settlement can beachieved, or if the parties are unable to agree onthe means of settlement of a dispute concerningthe application of UNCLOS, such dispute maybe governed by the principle of compulsorysettlement, where procedures entail bindingdecisions.

Compulsory Procedures that States Parties CanChoose From:i. International Tribunal for the Law of the

Sea*;

ii. International Court of Justice;iii. Arbitral Tribunal

*;

iv. Special Arbitral Tribunal*;

The choice of the State Parties must beexpressed in a written declaration, which isrevocable and replaceable.

C. Jurisdiction of Court or Tribunal

The court or Tribunal has jurisdiction over:1. any dispute submitted to it concerning the

application or interpretation of UNCLOS2. any dispute concerning the interpretation or

application of an international agreement: related to the purposes of the UNCLOS when such dispute is submitted to it in

accordance with that agreement.

D. Composition of the InternationalTribunal for the Law of the Sea (ITLOS)

It is composed of 21 “independent memberselected from among persons enjoying thehighest reputation for fairness and integrity andof recognized competence in the field of the lawof the sea”.

The composition shall also be representative ofthe world’s principal legal systems and ofequitable geographical distribution.

* as established under the UNCLOS.

E. Jurisdiction of ITLOS

Its jurisdiction covers all disputes submitted to itin accordance with the UNCLOS. It also includesmatters submitted to it under any otheragreement.

F. Applicable Laws in Settlement ofDisputes by the ITLOS

The Tribunal shall apply the UNLCOS and otherrules of international law not incompatible withthe UNCLOS.

It may also decide a case ex aequo et bono(what is equitable and just) if the parties soagree.

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Chapter VIII. The Use of Force inInternational Law

I. JUS AD BELLUM v JUS IN BELLOII. RULES ON THE USE OF FORCE

A. GENERAL RULEB. EXCEPTIONS

1. EXCEPTIONS UNDER THE CHARTERa. SELF-DEFENSEb. AUTHORIZED ENFORCEMENT

ACTION2. EXCEPTIONS UNDER CUSTOM

a. RESPONSIBILITY TO PROTECT(“R2P”)

b. HUMANITARIAN INTERVENTIONc. GENERAL ASSEMBLY

RESOLUTIONd. WARS OF NATIONAL

LIBERATION

I. Jus Ad Bellum v Jus in Bello

Jus ad bellumRefers to the body of norms that govern theconditions when a State may have recourse towar or other uses of force.

Jus in belloThe laws that govern the conduct of war byStates. (To be discussed further in the Chapteron International Humanitarian Law)

II. Rules on the Use of Force


A. General Rule

States are to refrain in their internationalrelations from the threat or use of force againstthe territorial integrity or political independenceof any state, or in any manner inconsistent withthe purposes of the United Nations.

This norm is of dual character, existing both intreaty law (Art.2[4], UN Charter) and customaryinternational law.

B. Exceptions


1. Exceptions under the Charter

The Charter provides two exceptions to thegeneral prohibition against the use of force.

a. Self-Defense(Asked 2 times in the Bar)

Nothing in the present Charter shallimpair the inherent right of individual orcollective self-defence if an armedattack occurs against a Member of theUnited Nations, until the SecurityCouncil has taken measures necessaryto maintain international peace andsecurity (Art.51, UN Charter).

Requisites:i. There be an armed attack;

An armed attack is understood as includingnot merely action by regular armed forcesacross an international border, but also "thesending by or on behalf of a State of armedbands, groups, irregulars or mercenaries,which carry out acts of armed force againstanother State of such gravity as to amountto" (inter alia) an actual armed attackconducted by regular forces, "or itssubstantial involvement therein" (Art.3(g),Definition of Aggression annexed to GeneralAssembly resolution 3314 [XXIX])

ii. The use of force must be necessary todefend against an armed attack(Necessity);

iii. The forcible response must be promptlyafter the attack (Immediacy);

iv. The force used must be proportional tothe attack made (Proportionality)(Nicaragua v. US Case).

b. Authorization Enforcement Action bySecurity Council acting under its ChapterVII Powers

The collective security apparatuscontained in Chapter VII of the Charter,which allows for a successive process ofconflict resolution, culminating in armedenforcement actions carried out underthe aegis of the Security Council.

2. Exceptions under Custom

a. Responsibility to Protect (“R2P”)

A recently developed concept ininternational relations which relates to:(a) a state's responsibilities towards its

population and to(b) the international community's

responsibility in case a state fails tofulfill its responsibilities.

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One important aim, among many others,is to provide a legal and ethical basis forhumanitarian intervention.

b. Humanitarian Intervention

The forcible intervention by externalactors (ex. the international communitythrough the UN) into a state that isunwilling or unable to prevent or rectifymassive violations of human rights (ex.Genocide).

Humanitarian intervention, it has beenargued, finds legal support underArt.1(3), UN Charter may provide abasis for the use of force to.

c. Peacekeeping Operations throughGeneral Assembly’s Uniting for PeaceResolution

This was necessitated by the paralysisof the Security Council that resultedfrom the disagreement of the latter'sveto-wielding members, and wasinaugurated by the Uniting for PeaceResolution.

The peacekeeping operations initiatedby the General Assembly constitute aninterpretation of the Charter that createsanother exception to the rule against theuse of force.

d. Wars of National Liberation

Wars by peoples against racist, colonialand alien domination "for theimplementation of their right to self-determination and independence islegitimate and in full accord withprinciples of international law," and thatany attempt to suppress such struggle isunlawful (Resolution 3103 [XXVIII]).

When peoples subjected to aliendomination resort to forcible action inorder to exercise their right to self-determination, they "are entitled to seekand to receive support in accordancewith the purposes and principles of theCharter (1970 Resolution 2625 [XXV]).

These declarations constitute either anauthoritative interpretation of the Charter, beingthe subsequent practice of the parties, or anirregular amendment of the Charter's provisionsthrough the creation of new norms of customarylaw (Art.31(3), VCLOT; Case concerning theInterpretation of the Air Transport AgreementBetween the United States and Italy)

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Chapter IX. International Human RightsLaw

I. DEFINITION OF HUMAN RIGHTSII. CLASSIFICATION OF HUMAN RIGHTSIII. “INTERNATIONALIZATION” OF HUMAN

RIGHTSIV. SOURCES OF HUMAN RIGHTS

A. CONVENTIONB. CUSTOM

V. INTERNATIONAL BILL OF HUMAN RIGHTSA. UNIVERSAL DECLARATION OF HUMAN

RIGHTS (UDHR)B. INTERNATIONAL COVENANT ON CIVIL

AND POLITICAL RIGHTS (ICCPR)C. INTERNATIONAL COVENANT ON

ECONOMIC, SOCIAL AND CULTURALRIGHTS (ICESCR)

D. COMMON PROVISIONS IN THE ICCPRAND ICESCR AND DIFFERENCES

VI. SPECIFIC NORMS IN HUMAN RIGHTSA. GENOCIDEB. TORTUREC. RIGHTS OF THE CHILDD. LAW AGAINST DISCRIMINATIONE. REFUGEE LAW

I. Definition of Human Rights


Human rights are those fundamental andinalienable rights which are essential for lifeas a human being.

They pertain to rights of an individual as ahuman being which are recognized by theinternational community as a whole throughtheir protection and promotion undercontemporary international law.

II. Classification of Human Rights

A. First generation – consists of civil andpolitical rights;

B. Second generation – consists of economic,social and cultural rights;

C. Third generation – refers to right todevelopment, right to peace, and right toenvironment.

Firstgeneration

Secondgeneration

ObligatoryForce underInternationalLaw

strictly (orobjectively)obligatory,whatever theeconomic orother conditionsof the statesobligated

relativelyobligatory: Statesare required toprogressivelyachieve the fullrealization of theserights “to themaximum of their

availableresources”

Derogation/Restriction,whenallowed

may only bederogated in apublicemergency

may be restrictedfor the generalwelfare, with orwithout an“emergency thatthreatens theindependence orsecurity of a StateParty.”

III. “Internationalization” of HumanRights

The international community, through theUN Charter, has accepted the regulation ofhuman rights, and has therefore shiftedmatters or questions pertaining to humanrights from exclusive domesticjurisdiction to international regulation.

IV. Sources of Human Rights

A. Convention

The first important multilateral conventionprotecting human rights was the UnitedNations Charter, which imposes theobligation to promote and protect humanrights (UN Charter, Art 1(1), par. 2).

Two important general conventionsprotecting human rights in international laware the International Covenant on Civil andPolitical Rights (ICCPR), and theInternational Covenant on Economic, Social,and Cultural Rights (ICESCR).

These are considered to be authoritativeinterpretations of the UN Charter

B. Custom

It has been proposed that the protection ofhuman rights now exists even in customarylaw.

This is evidenced by the widespreadacceptance of numerous internationalconventions and instrumentsthat require orsignify assent to the protection of humanrights.

Widespread acceptance of the UNDeclaration of Human Rights as acodification of international human rights lawis evidence that international customprotects human rights (MERON).


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V. International Bill of Human Rights

The “International Bill of Human Rights” is aconvenient designation of the three maininstruments of human rights on theinternational plane.

These are1.) the Universal Declaration of Human

Rights,2.) the International Covenant on Civil and

Political Rights, and3.) the International Covenant on

Economic, Social and Cultural Rights.

A. Universal Declaration of Human Rights(UDHR)

The UDHR is the first comprehensivecatalogue of human rights proclaimed by aninternational organization.

It must be noted, however, that the UDHR isnot a treaty.

It has no obligatory character because it wasadopted by the UN GA as Resolution 217A(III). As a resolution, it is merelyrecommendatory.

Despite this, the UNDHR is considered anormative instrument that creates bindingobligations for all States because of theconsensus evidenced by the practice ofStates that the Declaration is now binding aspart of international law (Juan CarilloSalcedo, Human Rights, UniversalDeclaration).

The UDHR embodies both first and secondgeneration rights. The civil and politicalrights enumerated include:1. The right to life, liberty, privacy and

security of person;2. Prohibition against slavery;3. The right not to be subjected to arbitrary

arrest, detention or exile;4. The right to fair trial and presumption of

innocence;5. The right to a nationality;6. The right to freedom of thought,

conscience and religion;7. The right to freedom of opinion and

expression;8. Right to peaceful assembly and

association;9. The right to take part in the government

of his country.

Economic, social and cultural rightsenumerated in the UDHR include:

a. The right to social security;b. The right to work and protection against

unemployment;c. The right to equal pay for equal work;d. The right to form and join trade unions;e. The right to rest and leisure.

B. International Covenant on Civil andPolitical Rights (ICCPR)


The ICCPR is an international covenant andis binding on the respective State Parties.

It embodies the first generation of humanrights, although it lists more rights than theUDHR:1. The right to own property;2. The right to seek in other countries

asylum from prosecution;3. The right of members of ethnic, religious

or linguistic groups not to be denied toenjoy their own culture, to profess andpractice their own religion, or to use theirown language;

4. The right to compensation in case ofunlawful arrest;

5. The right to legal assistance in criminalprosecution;

6. The right against self-incrimination;7. Protection against double jeopardy;8. Right to review by higher tribunal in case

of criminal conviction;9. Right of every child to nationality;10. Right to protection of a child as required

by his status as a minor;11. Right of persons below 18 years old not

to be sentenced to death for crimes;12. Right against the carrying out of death

sentence on the part of a pregnantwoman.

Obligations of State Parties

1. Under the ICCPR, State Parties undertaketo respect and to ensure to all individualswithin their territory the rights enumeratedtherein, without distinction of any kind, suchas race, color, sec, language, religion,political or other opinion, national or socialorigin, birth or other status.

2. State Parties are required to take thenecessary steps to adopt legislative or othermeasures that are necessary to give effectto the rights recognized in the ICCPR.

3. State Parties must ensure that any personwhose rights or freedoms are violate havean effective remedy, notwithstanding that


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the violation has been committed by personsaction in an official capacity.

4. State Parties must ensure that any personclaiming such remedy shall have his rightthereto determined by competentjudicial, administrative or legislativeauthority, and that they shall enforce theremedy when granted.

C. International Covenant on Economic,Social and Cultural Rights (ICESCR)

The ICESCR, like the ICCPR, is aninternational covenant and is binding on therespective State Parties.

It embodies the second generation of humanrights, although it lists more rights than theUDHR:1. Right to health;2. Right to strike;3. Right to be free from hunger;4. Rights to enjoy the benefits of scientific

progress;5. Freedom for scientific research and

creativity.

Obligations of State Parties

State Parties are required to undertake thenecessary steps to the maximum of itsavailable resources, with a view to achievingprogressively the full realization of the rightsenumerated in the covenant by allappropriate means.

Note – unlike the ICCPR, the states under theICESCR merely agree to take steps to themaximum of its available resources.

D. Common Provisions in the ICCPR andthe ICESCR and differences

The common provisions of the two Covenantsdeal with collective rights, namely:1. The right of self-determination of peoples;2. the right of peoples to freely dispose of their

natural wealth and resources;3. the right not of peoples not to be deprived of

their own means of subsistence

Note – these rights are not covered by theUDHR.

VI. Specific Norms in Human Rights

A. Genocide


Under international law, genocide refers toany of the following acts (actus reus), whensuch acts are committed with intent todestroy, in whole or in part, a national,ethnical, racial or religious group, as such(dolus specialis):

1. Killing members of the group;2. Causing serious bodily or mental harm

to the members of the group;3. Deliberately inflicting on the group

conditions of life calculated to bringabout its physical destruction in whole orin part;

4. Imposing measures intended to preventbirths within the group; and

5. Forcibly transferring children of thegroup to another group (Article 6,Statute of the International CriminalCourt)

Nature of the Prohibition

Genocide is covered by the Convention onthe Prevention and Punishment of the Crimeof Genocide.

The ICJ, in its advisory opinion, explainedthe nature of genocide as a crime underinternational law involving a denial of theright of existence of entire human groups, adenial which shocks the conscience ofmankind and results in great losses tohumanity.The ICJ also recognized the customarynature of the proscription, stating that theprinciple under the Convention arerecognized by civilized nations as binding onStates even without conventional obligation.

Acts Punishable

The Convention defines the following actsas punishable:

1. Genocide;2. Conspiracy to commit genocide;3. Direct and public incitement to commit

genocide;4. Complicity in genocide.

The Genocide convention provides that thecrime of genocide shall be tried by acompetent tribunal of the State in which the act was

committed, or


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by such international tribunal as mayhave jurisdiction with respect to theState Parties which shall have acceptedits jurisdiction.

One such tribunal is the InternationalCriminal Court (Art 5, Rome Statute).

Notes – Individual criminal liability is provided forthe crime of genocide, whether such individual isa public official or a private person.

Genocide may be committed during war/armedconflict or during time of peace.

B. Torture

The Convention Against Torture and OtherCruel, Inhumane or Degrading Punishmentdefines torture as any act by which severe painor suffering, whether physical or mental, isintentionally inflicted on a person for suchpurposes as

1. Obtaining from him or a third personinformation or a confession;

2. Punishing him for an act he or a third personhas committed, or is suspected of havingcommitted;

3. Intimidating or coercing him or a thirdperson;

4. For any reason based on discrimination ofany kind

When such pain or suffering is inflicted by orat the instigation of or with consent oracquiescence of a public official or personacting in an official capacity.

Nature of the prohibition

As a principle of international law, prohibitionagainst torture is created by an obligation ergaomnes, an obligation of every state towards theinternational community as a whole.

It forms part of the principles and rulesconcerning the basic rights of the human person.

Salient Features

Under the Convention, the prohibition againsttorture is non-derogable. No exceptionalcircumstance, such as war or public emergency,may be invoked to justify torture nor a superior’sorder or other authority be used as a justificationfor torture.

It is an obligation for State Parties to takemeasures to prevent torture and to ensure thatthe acts of torture are legally punishable in theirjurisdiction.

C. Rights of the Child

The Convention on the Rights of the Child(CRC) is the primary international instrumentconcerning the legal status of the child ininternational law.

Concerns pertaining to his personhood,legal protection and in general human rightsstandards have come under the regime ofinternational law and are no longer confinedto the exclusive domestic jurisdiction ofStates that are parties to the CRC.

Substantive Rights of the Child Under theCRC:

1. The inherent right to life2. To have a name from birth;3. To acquire a nationality, adequate standard

of living, social security and health care;4. Political, civil, economic, social and cultural

rights, including freedom of thought,conscience, religion, expression,association, education, access toinformation, minority rights, and civil andcriminal procedural rights;

5. Prohibition against discrimination;6. Protection during armed conflict and refugee

right;7. Right to family environment and the right to

know the parents and be cared for by them.

D. Law against Discrimination

The International Convention on theElimination of All Forms of RacialDiscrimination defines racialdiscrimination as any distinction, exclusion, restriction

or preference based on race, color,gender, descent, or national or ethnicorigin

which has the purpose or effect ofnullifying or impairing the recognition,enjoyment or exercise on an equalfooting, of human rights andfundamental freedoms

in the political, economic, social,cultural, or any other field of public life.

Notes: the definition of racial discrimination isconsidered as an authoritative interpretation ofthe non-discrimination clause of the UN Charter(Art. 55 and 56). Also, affirmative action, orpositive discrimination, are not considered ascontrary to the Convention.


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E. Refugee Law

A refugee is a person who, owing to a well founded fear of being

persecuted for reasons of race, religion, nationality,

membership in a particular social groupor political opinion,

is outside the country of his nationalityand is unable or owing to such fear, isunwilling to avail himself of theprotection of that country; or

who, not having a nationality and beingoutside the country of his formerhabitual residence,

is unable or, owing to such fear, isunwell to return to it (ConventionRelating to the Status of Refugees)

Cessation of Status as Refugee

A refugee ceases to be such when:1. He has voluntarily re-availed himself of the

protection of the country of his nationality;2. He has voluntarily acquired his nationality,

having lost it;3. He has acquired a new nationality and

enjoys the protection of the state of his newnationality;

4. He has voluntarily re-established himself inthe country which he has left or outsidewhich he remained owing to fear ofpersecution;

5. He can no longer continue to refuse theprotection of the country of his nationalitybecause the circumstance by which he hasacquire the status of refugee no longerexists.

Who May Not Qualify as Refugees

A status of a refugee may not apply to thefollowing persons with respect to whomthere are serious reasons for consideringthat:

1. He has committed a crime against peace, awar crime, or a crime against humanity;

2. He has committed a serious, non-politicalcrime outside the country of refuge prior tohis admission to that country as a refugee;

3. He has been guilty of acts contrary to thepurposes and principles of the UN.

The Right of Non-Refoulment

It is the right of the refugee no to be expelledor returned in any manner whatsoever to thefrontiers of territories where his life orfreedom would be threatened on account ofhis of race, religion, nationality, membershipin a particular social group or politicalopinion.

Note: the Convention requires that the refugeeconform to the laws and regulations, as well asmeasures taken for the maintenance of publicorder, of the country of refuge.

POLITICAL LAW REVIEWER Chapter X. INTERNATIONAL HUMANITARIAN LAW

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Chapter X. International HumanitarianLaw

I. ARMED CONFLICTII. FUNDAMENTAL PRINCIPLES OF IHLIII. APPLICATION OF IHLIV. THE FOUR GENEVA CONVENTIONS AND THE

TWO ADDITIONAL PROTOCOLSV. APPLICATIONVI. CONCEPTS

A. COMBATANTSB. HORS DE COMBATC. PROTECTED PERSONSD. THE MARTENS CLAUSEE. MILITARY OBJECTIVEF. BELLIGERENCY STATUS

VII. IHL AND WEAPONS OF MASS DESTRUCTIONVIII. NON-INTERNATIONAL ARMED CONFLICT

A. COMMON ARTICLE 3 AND PROTOCOL IIB. CONTROL OF TERRITORYC. WAR OF NATIONAL LIBERATION

IX. NEUTRALITYX. PROTECTIVE EMBLEMS

A. WHO MAY USEB. MISUSE OF EMBLEMC. PUNISHMENT

XI. THE INTERNATIONAL CRIMINAL COURT(ICC)A. CRIMES WITHIN THE COURT’S

JURISDICTIONB. MODES OF INCURRING CRIMINAL

LIABILITYC. SOURCES OF LAWD. OTHER KEY CONCEPTSE. LANDMARK CASES

IHL is the branch of public international lawwhich governs armed conflicts to the endthat the use of violence is limited and thathuman suffering is mitigated or reduced byregulating or limiting the means of militaryoperations and by protecting those who donot or no longer participate in the hostilities.

IHL has Two Branches: (1) Law of TheHague, which establishes the rights andobligations of belligerents in the conduct ofmilitary operations, and limits the means ofharming the enemy; and the (2) Law ofGeneva, which is designed to safeguardmilitary personnel who are no longer takingpar in the fighting and people not activelyengaged in hostilities (i.e. civilians)(INTERNATIONAL COMMITTEE OF THERED CROSS [“ICRC”]).

Note: The two branches draw their namesfrom the cities where each was initiallycodifies. With the adoption of the AdditionalProtocols of 1977, which combine bothbranches, that distinction is now of merelyhistorical and instructive value (ICRC).

HUMANITARIAN LAW V. HUMAN RIGHTSLAW

IHL and IHR are complementary. Both strive toprotect the lives, health and dignity of humanpersons, albeit from different angle. Thefollowing distinctions may be noted (ICRC):1. Application. IHL applies in situations of

armed conflict, whereas IHR applies both intimes of peace and in war.

2. Derogation. Some human rights treatiespermit governments to derogate from certainrights in times of public emergency (Art.4,ICCPR). No derogations are permitted underIHL as it was conceived precisely toemergency situations, such as an armedconflict.

3. Holder of Obligation. IHL imposes dutiesonly upon those who are parties to an armedconflict. Human rights apply to all Stategovernments.

I. Definition of “Armed Conflict”

(Prosecutor vs. Tadic, Para.70).

An Armed Conflict exists when there isresort to the use of force between two states (international armed

conflict), or between government authorities and an

organized armed group, or between such groups within the same

territory (non-international armedconflict)

Note: Wars of National Liberation have beenclassified as international armed conflicts(ICRC)

Mere internal disturbances and tensions, orriots or isolated or sporadic acts of armedviolence does not amount to an armedconflict (Tadic)Note: Cases of this type are governed by theprovisions of human rights law and therelevant domestic laws.

II. Fundamental Principles of IHL

1. Parties to an armed conflict, together withtheir armed forces, do not have unlimitedchoice of methods or means of warfare.

They are prohibited from employingweapons or means of warfare that causeunnecessary damage or excessive suffering.

2. Parties to an armed conflict shall, at alltimes, distinguish between civilianpopulation and the combatants (Principle


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of Distinction). Civilians shall be spared frommilitary attacks which shall be directed onlyagainst military objectives.

3. Persons hors de combat are those whohave been injured in the course of hostilebattle action and are no longer able todirectly take part in hostilities. They shall beprotected and treated humanely withoutany adverse distinction. Their right to lifeand physical and moral integrity shall berespected.

4. It is prohibited to kill or injure an enemy whois hors de combat or who surrenders.

5. The wounded and the sick shall beprotected and cared for by the party to theconflict which has them in its power.Protection shall also apply to medicalpersonnel, establishments, transports andmaterial.

6. Combatants and civilian who are capturedby authority of the party to a dispute areentitled to respect for their right to life,dignity, conviction, and other personalrights. They shall be protected against actsof violence or reprisals. (Legality of theThreat or Use of Nuclear Weapons,Advisory Opinion by the ICJ)

III. Application of IHL

IHL is not concerned with the lawfulness orunlawfulness of armed conflict.

The application of IHL in armed conflict,whether such is the result of an unlawfulthreat or use of force, pertains solely to thefact of armed conflict, even if the use offorce remains unlawful.

As such, IHL applies to all armedconflicts, regardless of whether resort tothreat or the use of force was lawful orunlawful

IHL governs in both international andnon-international armed conflicts.

Common Article 2 and 3 of the four GenevaConventions states that the Convention shallapply in all cases of declared war or anyother armed conflict between to or more[Contracting Parties] even if the state of waris not recognized by one of them.

As used in Article 3, armed conflict pertainsto non-international armed conflicts in that itdeals with armed confrontation between the

government and a rebel or insurgentmovement, not between states.

IV. The Four Geneva Conventions andthe Two Additional Protocols

The four Geneva Conventions and theAdditional Protocols are the primary legalinstruments that embody IHL.Namely, they are:

1. The Geneva Convention for theAmelioration of the Condition of theWounded and Sick in Armed Forcesin the Field (“1

stGeneva Convention”,

Aug. 12, 1949);2. The Geneva Convention for the

Amelioration of the Condition ofWounded, Sick and ShipwreckedMembers of Armed Forces at Sea(“2

ndGeneva Convention”, Aug. 12,

1949);3. The Geneva Convention Relative to the

Treatment of Prisoners of War (“3rd

Geneva Convention”, Aug. 12, 1949);4. The Geneva Convention Relative to the

Protection of Civilian Persons in Timeof War (“4

thGeneva Convention”, Aug.

12, 1949);5. Protocol Additional to the Geneva

Conventions of 12 August 1949 andRelating to the Protection of Victimsof International Armed Conflicts(“Protocol I”, June 8, 1977);

6. Protocol Additional to the GenevaConventions of 12 August 1949 andRelating to the Victims of Non-International Armed Conflict(“Protocol II”, June 8, 1977).

V. Application of the Four GenevaConventions and the TwoAdditional Protocols

The principles under the four GenevaConventions are regarded by theinternational community as a whole ashaving a character of general orcustomary international law, and thereforebinding on all states.

In the ICJ advisory opinion in the Legality ofthe Threat or Use of Nuclear Weapons, theCourt expressed that the fundamentalrules of IHL are to be observed by allstates whether or not they have ratifiedthe conventions that contain them,


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because they constitute intransgressibleprinciples of customary international law.

The four Conventions are applicable only tointernational armed conflicts,

EXCEPT common Article 3 which applies inthe case of armed conflict not of aninternational character occurring in theterritory of one of the State Parties.

As to the Protocols, Protocol I is designedfor the protection of victims of internationalarmed conflicts, while Protocol II pertains tothe protection of victims of non-internationalarmed conflicts.

VI. Definition of Concepts and Phrases

A. Combatants

Combatants are members of the armedforces of a Party to a conflict (Art. 3(2),Protocol 1).

They have the right to participate directlyand indirectly in hostilities (Art 43(2) Protocol1).

In fact, only combatants are allowed toengage in hostilities.

According to one commentator, a combatantis allowed to use force, even to kill, and willnot be held personally responsible for hisacts, as he would be where he to the sameas a normal citizen (Gasser, IHL-AnIntroduction)

B. Hors de combat

Under Art. 41(2) of Protocol I, a person ishors de combat if he:a. Is in the power of an adverse party to

the conflict;b. He clearly expresses an intention to

surrender; orc. He has been rendered unconscious or is

otherwise incapacitated by wounds orsickness, and is therefore incapable ofdefending himself, provided that in anyof these cases, he abstains from anyhostile act and does not attempt toescape.

Persons hors de combat shall be protectedand treated humanely without any adversedistinction. Their right to life and physicaland moral integrity shall be respected

C. Protected Persons

Protected persons are those who enjoy or areentitled to protection under the GenevaConventions.

Categories of protected persons include:

a. The wounded, the sick, and shipwrecked;b. Prisoners of Warc. Civilians

For purposes of protection, civilians arefurther classified as:a. Civilians who are victims of conflict in

countries involvedb. Civilians in territories of the enemy;c. Civilians in occupied territories;d. Civilians internees

D. Martens clause

The Martens Clause is an “umbrellaprovision” which reads:

“In cases not covered by Protocol I, or byany other international agreements, civiliansand combatants remain under the protectionand authority of the principles ofinternational law derived from establishedcustom, from the principles of humanity, andfrom the dictates of public conscience.”

Where gaps or loopholes arise in theinterpretation and application of internationalagreements or treaties of humanitarian law,resort to the Martens Clause may be made.

E. Military Objective

An object, which by its nature, purpose, use,or location, makes an effective contribution to

military action, and whose total or partial destruction,

neutralization or capture makes aneffective contribution to military action.

F. Belligerency Status

It is the formal acknowledgement by a thirdparty of the existence of a state of warbetween the central government and aportion of such state.

Belligerency exists when a sizeable portion of the territory of a

state is under the effective control of aninsurgent community,

which seeks to establish a separategovernment and


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the insurgents are in de facto control ofa portion of the territory and population,

have a political organization, are able to maintain such control, and conduct themselves according to the

laws of war (Asked 1 time in the Bar).

VII. IHL and Weapons of MassDestruction

Art. 51(4) of Protocol I provide that as ameasure of protection of civilian population,indiscriminate attacks are prohibited.

Attacks which are consideredindiscriminate, or those that do notdistinguish between military objectives andcivilians or civilian objects, are:1. Those which are not directed at a

specific military objective;2. Those which employ a method or means

of combat which cannot be directed at aspecific military objective; or

3. Those that employ a method or meansof combat the effect of which cannot belimited as required by the protocol.

An attack is also considered indiscriminate ifit may be expected to cause incidentalloss to human life, injury to civilians,damage to civilian objects, or acombination thereof, which would beexcessive in relation to the concrete anddirect military advantage anticipated (Art. 54,para. 5(b), Protocol I)

Nuclear WeaponsIn its advisory opinion in Legality of the Threat orUse of Nuclear Weapons, the ICJ expressedthat nuclear weapons, having been developedafter most of the principles and rules of IHLapplicable to armed conflicts, are governed bysuch principles and rules.

VIII. IHL and Non-International ArmedConflict

Common Article 3 of the four GenevaConventions is the only provision applicableto non-international armed conflicts.

It defines the following obligations:

1. Persons taking no active part in thehostilities, including members of thearmed forces who have laid down theirarms and

those placed hors de combat, shall in allinstances be treated humanely withoutany adverse distinction founded on race,color, religion or faith, sex, birth orwealth, or any other similar criteria.

2. With respect to the persons mentionedabove, the following acts shall remainprohibited:i. Violence to life and person, in

particular, murder of all kinds,mutilation, cruel treatment andtorture;

ii. Taking of hostages;iii. Outrages upon personal dignity, in

particular humiliating and degradingtreatment;

iv. The passing of sentences and thecarrying out of executions withoutprevious judgment pronounced by aregularly constituted court, affordingall the judicial guarantees which arerecognized as indispensable bycivilized peoples.

3. The wounded and the sick shallbecollected and cared for.

The application of provisions above does notaffect the legal status of the parties to theconflict. Hence, an insurgent or a rebel groupdoes not assume belligerency status.

Article 3 is indifferent to the legal character ofsuch group.

It must be noted that Article 3 is to be applied asa minimum.

A. Common Article 3 and Protocol II

Protocol II develops and supplementscommon Article 3 (Art. 1, Protocol II).

It applies to: all armed conflicts which take place in

the territory of a State Party, between its armed forces and dissident

armed forces or other organized groups which, under responsible command,

exercise such control over a part ofits territory

as to enable to carry out sustained andconcerted military operations and toimplement the Protocol.

Application of Article 3 and Protocol II

The rules in Article 3 are recognized ascustomary norms of international law, andtherefore applicable to all States. However,Protocol II is a treaty and binding only Statesthat are parties to it.


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Its rules, however, may still develop intocustomary norms binding on all states, by thegeneral practice of states coupled with theiracceptance of them as law (opinio juris).

B. Control-of-Territory

The test of whether a dissident armed forcehas control of territory is when such armedforce can (1) carry out sustained andconcerted military operations, and whether ithas (2) the capacity to comply with theprovisions of the Protocol.

In a non-international armed conflict wherethe dissident armed forces do not exercisesuch control over territory, Article 3, and notProtocol II may be applicable. The result isthat this situation may give rise to twocategories of non-international armedconflicts: one where only Article 3 applies,and the other where both Article 3 andProtocol II apply.

C. War of National Liberation

An armed conflict may be of such nature inwhich peoples are fighting against colonialdomination and alien occupation and againstracist regimes in the exercise of their right toself-determination.

This conflict, however, is considered aninternational armed conflict under Art. 1, par.3 and 4 of Protocol I.

Article 2 common to the four Genevaconventions provides that “all cases ofdeclared war or any other armed conflictwhich may arise between two or more of theHigh Contracting Parties, even if the state ofwar is not recognized by one of them.”Hence, the Geneva conventions andProtocol I govern wars of national liberation.

IX. Neutrality


Neutrality is the legal status of a State in times ofwar, by which it adopts impartiality in relation to

the belligerents with their recognition.

The Hague Convention Respecting the Rightsand Duties of Neutral Powers (Oct. 18, 1907)governs the status of neutrality by the followingrules:

a. The territory of the neutral Power isinviolable;

b. Belligerents are forbidden to move troops ormunitions of war and supplies across theterritory of a neutral Power;

c. A neutral power is forbidden to allowbelligerents to use its territory for movingtroops, establishing communication facilities,or forming corps of combatants.

d. Troops of belligerent armies received by aneutral Power in its territory shall be internedby away from the theatre of war;

e. The neutral Power may supply them withfood, clothing or relief required by humanity;

f. If the neutral Power receives escapedprisoners of war, it shall leave them atliberty. It may assign them a place ofresidence if it allows them to remain in itsterritory;

g. The neutral power may authorize thepassage into its territory of the sick andwounded if the means of transport bringingthem does not carry personnel or materialsof war

The Third Geneva Convention (Prisoners ofWar) allows neutral Powers to cooperate withthe parties to the armed conflict in makingarrangements for the accommodation in theformer’s territory of the sick and woundedprisoners of war.

Interned persons among the civilian population,in particular the children, the pregnant women,the mothers with infants and young children,wounded and sick, may be accommodated in aneutral state in the course of hostilities, byagreement between the parties to the conflict.

Protecting Power

A protecting power is a State or an organization not taking part in the hostilities, which may be a neutral state, designated by one party to an armed conflict

with the consent of the other to safeguard or protect its humanitarian

interests in the conflict, the performance ofwhich IHL defines specific rights and duties.

X. Protective Emblems

Emblems:

1. Red Cross (Geneva Conventions)2. Red Crescent (Geneva Conventions)3. Red Crystal (Third Additional Protocol to the

Geneva Conventions)

Note: Protocol III is an amendment to theGeneva Conventions relating to the Adoption ofan Additional Distinctive Emblem for use by


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national societies. It entered into force on 14January 2007, six months after the secondratification.

A. Who May Use

During armed conflict, the emblem may be usedas a protective device by:1. Medical services of armed forces;2. National Red Cross, Red Crescent or Red

Crystal societies duly recognized andauthorized by their governments to lendassistance to the medical services of armedforces;

3. Civilian hospitals and other medical facilitiesrecognized as such by the government (i.e.first-aid posts, ambulances);

4. Other voluntary relief agencies, subject tothe same conditions as national societies(ICRC).

B. Misuse of the Emblem

Any use not expressly authorized by IHLconstitutes a misuse. They include:1. Imitation – the use of a sign which, by its

shape and/or color, may cause confusionwith the emblem.

2. Usurpation – the use of the emblem bybodies or persons not entitled to do so.

3. Perfidy – making use of the emblem in timeof conflict to protect combatants or militaryequipment.

C. Punishment

State Parties to the Geneva Conventions arerequired to take steps to prevent and punishmisuse of the emblem both in time of peace andin war.

Art.8(2)(b)(vii) of the ICC Statute makes theimproper use of the distinctive emblems of theGeneva Conventions a War Crime.

XI. The International Criminal Court

The ICC is a permanent criminal tribunalestablished to prosecute individuals who haveviolated laws applicable during armed conflict.

Requisites to be held criminally liable:

1. Act constituting a crime within the Court’sjurisdiction; and that

2. Requisite standards for incurring criminalliability are satisfied.

A. Crimes within the Court’s Jurisdiction

(Art.5, ICC Statute)

The jurisdiction of the Court shall be limited tothe most serious crimes of concern to theinternational community as a whole. The Courthas jurisdiction in accordance with this Statutewith respect to the following crimes:

1. Genocide (Art.6, ICC Statute)Genocide refers to any of the following acts(actus reus) which are committed with intentto destroy, in whole or in part, a national,ethnical, racial or religious group, as such(dolus specialis):1. Killing members of the group;2. Causing serious bodily or mental harm

to the members of the group;3. Deliberately inflicting on the group

conditions of life calculated to bringabout its physical destruction in whole orin part;

4. Imposing measures intended to preventbirths within the group; and

5. Forcibly transferring children of thegroup to another group (Art.6, ICCStatute).

2. Crimes Against Humanity (“CAH”) (Art.7,ICC Statute)Refers to acts (actus reus) committedknowingly as part of a widespread orsystematic attack directed against anycivilian population. In any case, the attackmust involve the multiple commission ofsuch acts, made pursuant to or infurtherance of a State or organizationalpolicy.

3. War Crimes (Art.8, ICC Statute)Refer to grave breaches of the 1949 GenevaConventions and other violations of the lawsand customs applicable in international andnon-international armed conflict.

4. The Crime of AggressionThe ICC shall exercise jurisdiction over thecrime of aggression once a provisiondefining the crime and setting out theconditions under which the Court shallexercise jurisdiction with respect to thiscrime.

Such provision shall be adoptedpursuant to the rules on amendment(Art.121, ICC Statute). This amendmentmay be proposed in the ReviewConference to be convened by the UNSecretary General seven years after theStatute has entered into force (Art.123,ICC Statute).


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Note: The ICC Statute entered into force in2002. The Review Conference is scheduledto be convened this year (2009).

B. Modes of Incurring Criminal Liability

1. Individual Criminal Responsibility(Direct)(Art.25, ICC Statute)A person shall be criminally responsible andliable for punishment for a crime within thejurisdiction of the Court if that personcommits, orders, solicits or induces thecommission of such a crime, or aids, abetsor otherwise assists in the its commission.

2. Command and Superior Responsibility(Indirect)(Art.28, ICC Statute)The responsibility of military commandersand civilian superiors for crimes committedby subordinate members of their armedforces or other persons subject to theircontrol.

Requisites:1. The commander or superior must

exercise effective control over thosewho committed the crime;

2. The commander knew or should haveknown of the violations beingperpetrated by his subordinates(Art.28(a)(i), ICC Statute);

or thatthe Superior knew orconsciously disregarded informationthat indicate that the subordinates werecommitting or about to commit suchcrimes (Art.28(b)(ii), ICC Statute);

Note: A civilian superior may not be heldcriminally liable upon the basis ofimputed knowledge (“should haveknown”). He must have consciouslydisregarded information which wouldhave notified him of the violations beingperpetrated by his subordinates.

3. Failure to prevent or to punish saidviolations.

C. Sources of Law

The Court shall apply:1. In the first place, this Statute, the Elements

of Crimes and its Rules of Procedure andEvidence;

2. In the second place, applicable treaties andthe principles and rules of international law,including the established principles of theinternational law of armed conflict;

3. Failing that, General principles of lawderived by the Court from national laws of

legal systems of the world including, asappropriate, the national laws of States thatwould normally exercise jurisdiction over thecrime, provided that those principles are notinconsistent with this Statute and withinternational law and internationallyrecognized norms and standards.

D. Other Key Concepts

Principle of Complementarity (Art.17, ICCStatute)

The ICC is intended as a court of last resort,investigating and prosecuting only wherenational courts have failed. The ICC shallassume jurisdiction over a case only wherenational criminal jurisdictions are genuinelyunwilling or unable to investigate and prosecutemost serious crimes of international concern.Where a State is able or willing, a case is notadmissible to the Court (CASSESE).

Nullum crimen nullum poena sine lege(Art.22, ICC Statute)

A general principle in criminal law whichprovides that a person shall not be criminallyresponsible (under the ICC Statute) unless theconduct in question constitutes, at the time ittakes place, a crime within the jurisdiction of theCourt.

As in any criminal proceeding, the accusedshall be presumed innocent until provedguilty. The iota of evidence required toconvict an accused is proof beyondreasonable doubt (Art.66, ICC Statute).

Applicable Penalties: The ICC may impose(a) imprisonment for a specified number ofyears, which may not exceed a maximum of30 years; or (b) a term of life imprisonmentwhen justified by the extreme gravity of thecrime and the individual circumstances ofthe convicted person. In no case may theCourt impose capital punishment.

E. Landmark Cases

1. The Case of Thomas Lubanga Dyilo

Thomas Lubanga Dyilo is a former rebel leaderfrom the Democratic Republic of the Congo. Hefounded and led the Union of Congolese Patriots(UPC) and was a key player in the Ituri conflict.Rebels under his command have been accusedof massive human rights violations, includingethnic massacres, murder, torture, rape,mutilation, and forcibly conscripting childsoldiers.


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On 17 March 2006, Lubanga became the firstperson ever arrested under a warrant issued bythe International Criminal Court. He is on trial forthe war crime of enlisting children under the ageof fifteen years and using them to participateactively in hostilities.

Status: The Pre-Trial Chamber I committedThomas Lubanga Dyilo for trial. The Chamberfound that there is sufficient evidence toestablish substantial grounds to believe thatThomas Lubanga Dyilo is criminally responsibleas co-perpetrator for the war crimes he ischarged of.

2. Sudan President Omar Al Bashir

On March 2009, the ICC Pre-Trial Chamberissued a warrant for the arrest of Omar AlBashir, President of Sudan. Al Bashir is chargedof war crimes and crimes against humanity. Heis suspected of being criminally responsible, asan indirect (co-)perpetrator, for intentionallydirecting attacks against an important part of thecivilian population of Darfur, Sudan, murdering,exterminating, raping, torturing and forciblytransferring large numbers of civilians, andpillaging their property.

Significance: This is the first warrant of arrestever issued for a sitting Head of State by theICC.

Under Article 27 0f the ICC Statute, Omar AlBashir’s official capacity as sitting Head of Statedoes not exclude his criminal responsibility, nordoes it grant him immunity against prosecutionbefore the ICC. Immunities or special proceduralrules which may attach to the official capacity ofa person, whether under national or internationallaw, shall not bar the Court from exercising itsjurisdiction over such a person.

POLITICAL LAW REVIEWER Chapter XI. DIPLOMATIC INTERCOURSE

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Chapter XI. Diplomatic Intercourse

I. AGENTS OF DIPLOMATIC INTERCOURSEA. HEAD OF STATEB. THE FOREIGN OFFICEC. THE DIPLOMATIC CORPS

II. FUNCTIONS AND DUTIESIII. DIPLOMATIC IMMUNITIES AND PRIVILEGES

A. PERSONAL INVIOLABILITYB. INVIOLABILITY OF PREMISES AND

ARCHIVESC. RIGHT OF OFFICIAL COMMUNICATIOND. IMMUNITY FROM LOCAL JURISDICTIONE. EXEMPTION FROM TAXES AND

CUSTOMS DUTIESIV. CONSULAR RELATIONS

A. RANKSB. NECESSARY DOCUMENTSC. IMMUNITIES AND PRIVILEGES

Diplomatic Intercourse, also referred to asthe Right of Legation, is the right of theState to send and receive diplomaticmissions, which enables States to carry onfriendly intercourse.

I. Agents of Diplomatic Intercourse

A. Head of State

The head of State represents the sovereignty ofthe State, and enjoys the right to specialprotection for his physical safety and thepreservation of his honor and reputation.

Upon the principle of exterritoriality, hisquarters, archives, property and means oftransportation are inviolate.

He is immune from criminal and civil jurisdiction,except when he himself is the plaintiff, and is notsubject to tax or exchange or currencyrestrictions.

B. The Foreign Office

The body entrusted with the conduct of actualday-to-day foreign affairs.

It is headed by a Secretary or a Minister who, inproper cases, may make binding declarations onbehalf of his government (Legal Status ofEastern Greenland Case).

C. The Diplomatic Corps

Refers to the collectivity of all diplomaticenvoys accredited to a State.

It is composed of:1. Head of Mission – classified into: (a)

Ambassadors or nuncios – accredited toHeads of State, and other heads of missionof equivalent rank; (b) Envoys, Ministers andInternuncios – accredited to Heads of State;(c) Charges d’affaires – accredited toMinisters of Foreign Affairs.

2. Diplomatic Staff – those engaged indiplomatic activities and are accordeddiplomatic rank.

3. Administrative and Technical Staff – thiseemployed in the administrative and technicalservice of the mission.

4. Service Staff – those engaged in thedomestic service of the mission(NACHURAREVIEWER)

In the Philippines, the President appoints(Art.VII,Sec.16, Constitution), sends andinstructs the diplomatic and consularrepresentatives.

II. Functions and Duties

The main functions of a diplomatic missionare the following:1. Represent the sending State in the

receiving State;2. Protect in the receiving State the

interests of the sending State and itsnationals, within the limits allowed byinternational law;

3. Negotiate with the government of thereceiving State;

4. Ascertain, by all lawful means, theconditions and developments in thereceiving State and reporting the sameto the sending State;

5. Promote friendly relations between thesending State and receiving State, anddeveloping their economic, cultural andscientific relations.

III. Diplomatic Immunities and Privileges


A. Personal Inviolability

The receiving State shall treat him with duerespect and take all steps to prevent anyattack on his person, freedom or dignity.

The diplomatic representative shall not beliable to any form of arrest or detention.

The diplomatic envoy, however, may bearrested temporarily in case of urgentdanger, such as when he commits an act of


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violence which makes it necessary to puthim under restraint for the purpose ofpreventing similar acts.

B. Inviolability of Premises and Archives

The premises occupied by a diplomaticmission, including the private residence ofthe diplomatic agent, are inviolable.

Such premises cannot be entered orsearched, and neither can the goods,records and archives be detained by localauthorities even under lawful process.

The envoy must consent to such entry,except in extreme cases of necessity (ex.When there is imminent danger that a crimeof violence is to be perpetrated in thepremises; when the premises are on fire).

The service of writs, summons, orders orprocesses within the premises of mission orresidence of the envoy is prohibited.

Even if a criminal takes refuge within thepremises, the peace officers cannot breakinto such premises to apprehend the same.

The fugitive should, however, besurrendered upon demand by localauthorities, except when the right of asylumexists.

C. Right of Official Communication

The envoy is entitled to fully and freelycommunicate with his government.

The mission may employ all appropriatemeans to send and receive messages byany of the usual modes of communication orby diplomatic courier, which shall enjoyinviolability.

D. Immunity from Local Jurisdiction

A diplomatic agent enjoys immunity fromcriminal jurisdiction of the receiving State.

He may not be arrested, prosecuted,prosecuted or punished for any offense hemay commit, unless his immunity is waived.

This privilege, however, only exempts adiplomatic agent from local jurisdiction; itdoes not import immunity from legal liability.

The diplomatic agent also enjoys immunityfrom the civil and administrative jurisdictionof the receiving State, even with respect tohis private life.

His properties are not subject togarnishment, seizure for debt, execution andthe like.

The diplomatic agent also cannot becompelled to testify, not even bydeposition, before any judicial oradministrative tribunal in the receiving Statewithout the consent of his government.

E. Exemption from Taxes and CustomsDuties

Diplomatic agents are exempt from alldues and taxes, whether personal orreal, national, regional or municipal.

He is also exempt from all customsduties of articles for the official use ofthe mission and those for the personaluse of the envoy or members of thefamily forming part of his household,including articles intended for hisestablishment.

Baggage and effects are entitled to freeentry and are usually exempt frominspection.

Exception to Tax Exemption:

i. Indirect taxes incorporated in the price ofgoods purchased or services availed

ii. Dues and taxes on private immovableproperty situated in the receiving State

iii. Estate, succession or inheritance taxeslevied by the receiving State

iv. Dues and taxes on private incomesourced within the receiving State

v. Capital taxes on investments incommercial ventures in the receiving State

Duration of Immunities and Privileges.

These privileges are enjoyed by the envoy fromthe moment he enters the territory of thereceiving State, and shall cease when he leavesthe country.

With respect to official acts, immunity shallcontinue indefinitely.

Waiver of Immunities.

Diplomatic privileges may be waived. Suchwaiver may be made only by the government ofthe sending State if it concerns the immunities ofthe head of the mission. In other cases, thewaiver may be made either by the governmentor by the chief of the mission.


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IV. Consular Relations

Consuls are State agents residing abroad forvarious purposes but mainly in the interest of commerce and navigation, issuance of visa (permit to visit his country),

and such other functions as are designed to

protect nationals of the appointing State.

A. Ranks

1. Consul General: heads several consulardistricts, or one exceptionally large consulardistrict.

2. Consul: in charge of a small district or townor port.

3. Vice Consul: assists the consul.4. Consular agent:one entrusted with the

performance of certain functions by theconsul.

B. Necessary Documents

The following documents are necessary forthe assumption of Consular functions:1. Letters Patent(letter de provision) –

the letter of appointment or commissionwhich is transmitted by the sending stateto the Secretary of Foreign Affairs of thecountry where the consul is to serve.

2. Exequatur – the authorization given tothe consul by the sovereign of thereceiving State, allowing him to exercisehis function within the territory.

C. Immunities and Privileges

1. Freedom of communication;2. Inviolability of archives, but not of the

premises where legal processes may beserved and arrests made;

3. Exemption from local jurisdiction foroffenses committed in the discharge ofofficial functions, but not for other offenseexcept for minor infractions;

4. Exemption from testifying on officialcommunications or on matters pertaining toconsular functions;

5. Exemption from taxes, customs duties,military or jury service.

POLITICAL LAW REVIEWER Chapter XII. RECENT INTERNATIONAL LAW ISSUES

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Chapter XII. Recent International LawIssues in Philippine Law

I. DANIEL SMITH AND THE VFAII. CONSTITUTIONALITY OF THE BASELINES

LAWIII. VIOLENCE AGAINST WOMEN AS TORTURE

I. Daniel Smith and the Visiting ForcesAgreement

The issue of the constitutionality of the VisitingForces Agreement (VFA) was once again raisedin Nicolas v. Romulo (G.R. No. 175888)involving the custody of convicted rapist LanceCorporal Daniel Smith after the PhilippineSupreme Court had already ruled in favor of itsconstitutionality in Bayan v. Zamora.

The controversy centers on a specific transitoryprovision in the 1987 Constitution which statesthat:

After the expiration in 1991 of theAgreement between the Philippines andthe United States of America concerningMilitary Bases, foreign military bases,troops, or facilities shall not be allowedin the Philippines except under a treatyduly concurred in by the Senate and,when the Congress so requires, ratifiedby a majority of the votes cast by thepeople in a national referendum heldfor that purpose, and recognized as atreaty by the other contracting State.(Art. XVIII, sec. 25).

In particular, the main problem lies on what itmeans for the VFA “to be recognized as atreaty” by the United States.

There is apparently an international law issue inthis case involving, as it does, the recognition ofa treaty.

This seems to be the mindset of the SupremeCourt in Bayan v. Zamora when it affirmed theconstitutionality of the VFA saying that “thephrase ‘recognized as a treaty’ means that theother contracting party accepts oracknowledges the agreement as a treaty” evenwithout the US following its constitutionalrequirements (i.e. Senate concurrence) for theacceptance of a treaty.

Notably, the Court in Bayan said that “it isinconsequential whether the United States treatsthe VFA only as an executive agreementbecause, under international law, an executive

agreement is as binding as a treaty”—in otherwords, treating the controversy as aninternational law issue.

Dean Merlin Magallona argues that the BayanCourt should have treated the issue as adomestic case because it is a constitutionalattack against the VFA, not a case ininternational law.

The petitioners in the recent case of Nicolas v.Romulo contended that the PhilippineGovernment should have custody of DanielSmith because the VFA—which will govern suchissue of custody—is void for beingunconstitutional.

They said this in the wake of Medellin v. Texas(552 U.S. ___ (2008)) decided by the USSupreme Court which held that treaties enteredinto by the United States are not automaticallypart of US domestic law unless: these treaties are self-executing or there is an implementing legislation to make

them enforceable.

The Philippine Supreme Court answered that theVFA is enforceable because it is considered asan implementation of the RP-US Mutual DefenseTreaty and the VFA is covered by animplementing legislation—i.e. the Case-ZablockiAct, USC Sec. 112(b)—which treats VFA as anexecutive agreement to be immediatelyimplemented 60 days from its ratification.

The dissenting opinion of Chief Justice ReynatoPuno follows his dissent in Bayan. He says thatthere is an “anomalous asymmetry” in the legaltreatment of the VFA between the US and thePhilippines because the VFA can never beconsidered as a binding treaty in the US if it hasno concurrence of the US Senate; indeed, theacknowledgement of the US President of theVFA as a “treaty” is not enough.

Moreover, nowhere in the text of the VFA statesthat it is self-executory both in the US and thePhilippines.

The dissent of Justice Carpio follows the sameline of reasoning. He points out that “the Case-Zablocki Act operates merely as a timelynotification to the U.S. Congress of the executiveagreements, “other than a treaty,” that the U.S.President has entered into with foreign States”as clearly stated in its provisions.

Art. XVIII, sec. 25 of the Philippine Constitution,he says, “bars the efficacy of such a treaty thatis enforceable as domestic law only in the


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Philippines but unenforceable as domestic law inthe other contracting State”.

II. The Constitutionality of the BaselinesLaw

Republic Act 9522 was enacted to comply withthe deadline set by the United NationsConvention of the Law of the Sea (UNCLOS) formember states to draw its baselines as a resultof the Third United Nations Conference on theLaw of the Sea in 1973 (the UNCLOS IIIregime).

The statute amended Republic Act 3046 entitled“An Act to Define the Baselines of the TerritorialSea of the Philippines” by changing thebaselines of the Philippines and specificallyexcluding the Kalayaan Island Group and theScarborough Shoal (also known as Bajo deMasinloc) from such baselines.

Instead they are considered as a regime ofislands under Article 121 of the UNCLOS whichcan have its own territorial sea, contiguous zoneand exclusive economic zone and a continentalshelf in accordance with the provisions of theConvention (Sec. 2, RA 9522).

There is currently a petition in the SupremeCourt questioning its constitutionality for itallegedly violates Article 1 of the 1987Constitution which used the Treaty of Paris,the Treaty of Washington and the 1930Convention between the US and Great Britainasits basis in defining the national territory ofthe Philippines.

The baselines set by RA 9522 is said to be aradical departure from the baselines set by suchtreaties on which our Constitution is based.

Moreover, by disregarding Article 1 of thePhilippine Constitution, the new baselines lawallegedly converts the internal waters of thePhilippines—“the waters around, between, andconnecting the islands of the archipelago” intoarchipelagic waters under the UNCLOS IIIregime thus rendering nugatory the reservationsof the Philippines under the UNCLOS andallowing ships of all states the right of innocentpassage (UNCLOS Art. 52) and the right ofarchipelagic sea lanes passage, i.e., the rights ofnavigation and overflight solely for the purposeof continuous, expeditious, and unobstructedtransit between one part of the high seas or anexclusive economic zone and another part of thehigh seas or an exclusive economic zone(UNCLOS Art. 53).

Other provisions of the Constitution that are saidto be violated are:

1. Art. II, sec. 7 on the pursuit of independentforeign policy;

2. Art. II. Sec. 8 on the policy of freedom fromnuclear weapons in Philippine territory—since foreign ships of all kinds to navigate inPhilippine waters including nuclear-poweredsubmarines, nuclear-powered warships andother ships carrying weapons-grade nuclearsubstances (UNCLOS Art. 52 in relation toArts. 20, 22, 23);

3. Art. II, sec, 16 on the policy of a balancedand healthful ecology;

4. Art. XII, sec. 2 on marine wealth and

5. Art. XIII, sec. 7 on the protection on offshorefishing grounds for fishermen.

III. VIOLENCE AGAINST WOMEN (VAW)AS A FORM OF TORTURE*

State acquiescence in domestic violence cantake many forms, some of which may be subtlydisguised. For instance, Civil laws that appear tohave little to do with violence also have animpact on women’s ability to protect themselvesand assert their rights.

Laws that restrict women’s right to divorce orinheritance, or that prevent them from gainingcustody of their children, receiving financialcompensation or owning property, all serve tomake women dependent upon men and limittheir ability to leave a violent situation…Statesshould be held accountable for complicity inviolence against women, whenever they createand implement discriminatory laws that may trapwomen in abusive circumstances

State responsibility may also be engaged ifdomestic laws fail to provide adequate protectionagainst any form of torture and ill-treatment inthe home.

International law has developed considerablyover the years to become more gender-inclusive. In 1996, the Special Rapporteur onviolence against women stated that: “theargument that domestic violence should be

*Nowak, Manfred, Special Rapporteur, Report on

Torture and Other Cruel, Inhuman or DegradingTreatment Or Punishment for Item 3 of theProvisional Agenda: Promotion and Protection of AllHuman Rights, Civil, Including The Right ToDevelopment during the Seventh Session of the UnitedNations Human Rights Council last January 15, 2008.


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understood and treated as a form of torture and,when less severe, ill-treatment, is one thatdeserves consideration by the rapporteurs andtreaty bodies that investigate these violationstogether perhaps with appropriate NGO expertsand jurists”.

In 2000, the Human Rights Committeeindicated that domestic violence can giverise to violations of the right not to besubjected to torture or ill-treatment underarticle 7 of the ICCPR.

In line with this statement the Committee hasmentioned the need for States to adopt specificlegislation combating domestic violence,including legislation criminalizing maritalrape.More specifically, it has called upon Statesto ensure that their justice systems incorporaterestraining orders to protect women from violentfamily members, provide shelters and othersupport to victims, establish measures toencourage women to report domestic violence tothe authorities,and offer “material andpsychological relief to the victims.


Appendix 1 - Straight and Normal Baselines

For States A and B, normal baselinesFor State C, combinations of normal and straight baselines are used. Straight baselines are employed onthe part of the coastwhich is fringed with islets.

Appendix 2 - Continental Shelf and the Maritime Zones

Straight and Normal Baselines

For States A and B, normal baselines—the lines depicting the low water line—are used.For State C, combinations of normal and straight baselines are used. Straight baselines are employed onthe part of the coastwhich is fringed with islets.

Continental Shelf and the Maritime Zones

- end of Public International Law -

APPENDICES

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are used.For State C, combinations of normal and straight baselines are used. Straight baselines are employed on


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ADMINISTRATIVE LAWTable of Contents

Chapter I. Preliminary Considerations.......174A. Definitions .........................................174B. Historical Considerations ..................174C. Modes of Creation of AdministrativeAgencies ....................................................174D. When is an agency administrative? ..175E. Types of Administrative Agencies.....175

Chapter II. Powers of AdministrativeAgencies .......................................................176

A. Quasi-Legislative (Rule-making) Powers176

1. Definition .......................................1762. Non-delegation doctrine................1763. Legislative Delegation...................176

B. Quasi-Judicial (Adjudicatory) Powers178C. Determinative Powers .......................183

Chapter III. Judicial Review and Enforcementof Agency Action..........................................184

A. Considerations ..................................1841. Basis .............................................1842. Factors to Consider in JudicialReview: ..................................................1843. The doctrines of forum shopping, litispendentia and res judicata also apply toadministrative agencies. ........................1844. General Rule.................................1845. Exceptions ....................................1846. When judicial review is valid despitefinality of administrative decisions: ........1857. Availability of Judicial Reviewdepends on:...........................................185

B. Four Important Doctrines in JudicialReview .......................................................185

1. Doctrine of Primary Jurisdiction orPreliminary Resort .................................1852. Doctrine of Exhaustion ofAdministrative Remedies.......................1863. Doctrine of Qualified Political Agency

1874. Ripeness .......................................187

C. Extent of Judicial Review ..................1881. General Rule.................................1882. General Principles ........................1883. Law-fact Distinction.......................1884. Question of Law............................1885. Question of Fact ...........................1886. Question of Discretion ..................189

D. Modes of Judicial Review..................1901. Certiorari .......................................1902. Prohibition .....................................1903. Mandamus ....................................1914. Declaratory Relief .........................192

5. Habeas Corpus.............................1926. Writ of Amparo..............................1937. Habeas Data.................................1938. Injunction as Provisional Remedy 193

E. Enforcement of Agency Action .........1941. Res Judicata; Finality of Judgment

1942. Writ of Execution; Mandamus.......194

POLITICAL LAW REVIEWER Chapter I. PRELIMINARY CONSIDERATIONS

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Chapter I. Preliminary Considerations

A. DEFINITIONSB. HISTORICAL CONSIDERATIONSC. MODES OF CREATION OF ADMINISTRATIVE

AGENCIESD. WHEN IS AN AGENCY ADMINISTRATIVE?E. TYPES OF ADMINISTRATIVE AGENCIES

A. Definitions

1. Administrative Law is that branch ofmodern law under which the executivedepartment of the government, acting ina quasi-legislative or quasi-judicialcapacity, interferes with the conduct ofthe individual for the purpose of promotingthe well-being of the community (DEANROSCOE POUND)

2. Administrative Agencies are the organs ofgovernment, other than a court and otherthan the legislature, which affect the rights ofprivate parties either through adjudication orthrough rule-making.

B. Historical Considerations

1. Why did administrative agencies comeabout? Growing complexities of modern life Multiplication of number of subjects

needing government regulation; and Increased difficulty of administering laws

[Pangasinan Transportation vs PublicService Commission (1940)]

2. Why are administrative agencies needed?Because the government lacks: Time Expertise and Organizational aptitude for effective and

continuing regulation of newdevelopments in society (STONE)

C. Modes of Creation of AdministrativeAgencies

1. 1987 Constitution(e.g. CSC, COMELEC, COA, CHR, Commissionon Appointments, Judicial and Bar Council andNEDA)

2. Legislative Enactment(e.g. NLRC, SEC, PRC, Social SecurityCommission, Commission on Immigration andDeportation, Philippine Patent Office, Games and

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ADMINISTRATIVE LAW TEAM

Prof. Rodolfo Noel QuimboFaculty Editor

Diana Lutgarda BonillaLead Writer

POLITICAL LAW


ACADEMICS COMMITTEE




Kae Guerrero

DESIGN & LAYOUT

Pat HernandezViktor FontanillaRusell Aragones


LECTURES COMMITTEE


Heads


Arianne Cerezo


Volunteers

MOCK BAR COMMITTEE

Lilibeth Perez


Dahlia Salamat

LOGISTICS

Charisse Mendoza


Jill HernandezHead


Faye CelsoJoie Bajo

Members

POLITICAL LAW REVIEWER Chapter I. PRELIMINARY CONSIDERATIONS

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Amusement Board, Board of Energy, andInsurance Commission)

3. Executive Order/ Authority of law(e.g. Fact-finding Agencies)

D. When is an agency administrative?

1. Where its function is primarily regulatory EVEN IF it conducts hearings and

determines controversies to carry out itsregulatory duty.

2. On its rule-making authority, it isadministrative when it does not havediscretion to determine what the law shall bebut merely prescribes details for theenforcement of the law.

E. Types of Administrative Agencies

1. Government grant or gratuity, specialprivilege (e.g. Bureau of Lands, Phil. VeteransAdmin., GSIS, SSS, PAO);

2. Carrying out the actual business ofgovernment (e.g. BIR, Customs, Immigration,Land Registration Authority);

3. Service for public benefit (e.g. Philpost, PNR,MWSS, NFA, NHA);

4. Regulation of businesses affected withpublic interest (e.g. Insurance Commission,LTFRB, NTC, HLURB);

5. Regulation of private businesses andindividuals (e.g. SEC);

6. Adjustment of individual controversiesbecause of a strong social policy involved(e.g. ECC, NLRC, SEC, DAR, COA).

POLITICAL LAW REVIEWER Chapter II. POWERS of ADMINISTRATIVE AGENCIES

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Chapter II. Powers of AdministrativeAgencies

A. QUASI-LEGISLATIVE (RULE-MAKING)POWERS1. DEFINITION2. NON-DELEGATION DOCTRINE3. LEGISLATIVE DELEGATION

a. REQUISITES OF A VALIDDELEGATION

b. A SUFFICIENT STANDARDc. FORM OF THE SUFFICIENT

STANDARDd. PERMISSIBLE DELEGATION

B. QUASI-JUDICIAL (ADJUDICATORY) POWERS1. DEFINITION2. SOURCE3. REQUISITES FOR VALID EXERCISE4. GENERAL RULE5. WHAT QUASI-JUDICIAL POWERS

INCLUDE6. INVESTIGATIVE POWERS7. SUBPOENA POWERS8. POWER TO CITE IN CONTEMPT9. WARRANTS OF ARREST10. ADMINISTRATIVE SEARCHES11. DUE PROCESS12. NOTICE AND HEARING13. ADMINISTRATIVE AND JUDICIAL

PROCEEDINGS ARISING FROM THESAME FACTS

14. RULES OF EVIDENCEC. DETERMINATIVE POWERS

The powers of administrative agencies are: Quasi-legislative (Rule-making) Quasi-judicial (Adjudicatory) and Determinative

A. Quasi-Legislative (Rule-making)Powers


1. Definition

The authority delegated by the law-making bodyto the administrative agency to adopt rules andregulations intended to carry out the provisionsof a law and implement legislative policy.

2. Non-delegation doctrine

Potestas delegata non delegare potest. Whathas been delegated cannot be delegated.

3. Legislative Delegation

a. Requisites for a valid delegation

i. The law must be complete in itself andmust set forth the policy to be executed

ii. The law must fix a standard, the limitsof which are sufficiently determinate ordeterminable, to which the delegatemust conform

b. A sufficient standard:i. Defines legislative policy, marks its

limits, maps out its boundaries andspecifies the public agency to apply it;and

ii. Indicates the circumstances underwhich the legislative command is to beeffected. [Santiago v COMELEC (1997);ABAKADA Guro List vs Ermita (2005)]

c. Form of the sufficient standard:i. Expressii. Implied [Edu vs Ericta (1970)]iii. Embodied in other statutes on the same

matter and not necessarily in the samelaw being challenged. [Chiongbian vsOrbos (1995)]

d. Permissible Delegation

i. Ascertainment of Factii. Filling in of Detailsiii. Fixing of Rates, Wages, Pricesiv. Licensing Function, andv. Administrative Rule-Making

i. Ascertainment of Fact. A statute maygive to non-judicial officers: the power to declare the existence

of facts which call into operation thestatute’s provisions and

may grant them and theirsubordinate officers the power toascertain and determine appropriatefacts as a basis of procedure in theenforcement of laws.

Such functions are merely incidentalto the exercise of power granted bylaw to clear navigable streams ofunauthorized obstructions. They canbe conferred upon executiveofficials provided the party affectedis given the opportunity to be heard.[Lovina vs. Moreno(1963)]

ii. Filling in of details For necessity and as a means of

enforcement and execution [Alegrevs Collector of Customs (1920)]

iii. Fixing of rates, wages, prices

Sec. 2(3), 1987 Administrative Code.“Rate” means any charge to the public for a


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service open to all and upon the sameterms, including individual or joint rates, tolls,classification or schedules thereof, as wellas communication, mileage, kilometrage andother special rates which shall be imposedby law of regulation to be observed andfollowed by any person.

Sec. 9, 1987 Administrative Code. PublicParticipation. –(2) In the fixing of rates, no rule or final ordershall be valid unless the proposed ratesshall have been published in a newspaper ofgeneral circulation at least 2 weeks beforethe first hearing thereon.

Generally, the power to fix rates is aquasi-legislative function. However,it becomes judicial when the rateis applicable only to anindividual.

Can the power to fix rates bedelegated to a common carrier orother public service? NO. The lattermay propose new rates, but thesewill not be effective without theapproval of the administrativeagency. [KMU vs Garcia (1994)]

What are considered in the fixing ofrates? (1) the present valuation ofall the property of a public utility,and (2) the fixed assets. Theproperty is deemed taken andcondemned by the public at the timeof filing the petition, and the rateshould go up and down with thephysical valuation of the property.[Ynchausti vs Public UtilityCommissioner (1922)]

iv. Licensing Function

Sec. 17, 1987 Administrative Code.Licensing Procedure. – (1) When the grant,renewal, denial or cancellation of a license isrequired to be preceded by notice andhearing, the provisions concerning contestedcases shall apply insofar as practicable.

(2) Except in cases of willful violation ofpertinent laws, rules and regulations or whenpublic security, health, or safety requiresotherwise, no license may be withdrawn,suspended, revoked or annulled withoutnotice and hearing.

Sec. 18, 1987 Administrative Code. Non-expiration of License. – Where the licenseehas made timely and sufficient application forthe renewal of a license with reference toany activity of a continuing nature, theexisting license shall not expire until theapplication shall have been finally

determined by the agency.

Sec. 2(10), 1987 Administrative Code.“License” includes the whole or any part ofany agency permit, certificate, passport,clearance, approval, registration, charter,membership, statutory exemption or otherform of permission, or regulation of theexercise of a right or privilege.

Sec. 2(11), 1987 Administrative Code.“Licensing” includes agency processinvolving the grant, renewal, denial,revocation, suspension, annulment,withdrawal, limitation, amendment,modification or conditioning or a license.

When are notice and hearingrequired in licensing? Only if it is acontested case. Otherwise, it canbe dispensed with.(e.g. driver’slicenses).

No expiry date does not mean thelicense is perpetual. A licensepermit is a special privilege, apermission or authority to do what iswithin its terms. It is alwaysrevocable. [Gonzalo Sy Trading vsCentral bank (1976)]

v. Administrative Rule-makingo Types of Administrative Rules:

a. Supplementary legislationb. Interpretative legislationc. Contingent legislation

a. Supplementary legislationPertains to rules and regulations to fixdetails in the execution of a policy in thelaw. e.g. IRRs of the Labor Code.

b. Interpretative legislationPertains to rules and regulationsconstruing or interpreting the provisionsof a statute to be enforced and they arebinding on all concerned until they arechanged, i.e. BIR Circulars.

GENERAL DISTINCTIONS FROMLEGISLATIVE RULES

Legislative Rules Interpretative RulesPromulgated pursuantto its quasi-legislative /rule-making functions.

Passed pursuant to itsquasi-judicial capacity.

Create a new law, anew policy, with theforce and effect of law.

Merely clarify the meaning ofa pre-existing law byinferring its implications.

Need publication. Need not be published.So long as the courtfinds that the legislativerules are within the

The court may review theircorrectness of theinterpretation of the law


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Legislative Rules Interpretative Rulespower of theadministrative agency topass, as seen in theprimary law, then therules bind the court.The court cannotquestion the wisdom orcorrectness of the policycontained in the rules.

given by the administrativebody, and substitute its ownview of what is correct to theadministrative body. If it isnot within the scope of theadministrative agency, courtcan only invalidate the samebut not substitute itsdecision or interpretation orgive its own set of rules.

Due process involveswhether the partieswere afforded theopportunity to benotified and heardbefore the issuance ofthe ruling.

Due process means that thebody observed the properprocedure in passing rules.

o Restrictions on interpretativeregulations: (a) does not change thecharacter of a ministerial duty, (b)does not involve unlawful use oflegislative or judicial power.

o Administrative interpretations: mayeliminate construction anduncertainty in doubtful cases.When laws are susceptible of two ormore interpretations, theadministrative agency should makeknown its official position.

o Administrative construction/interpretation not controlling as tothe proper construction of a statute,but generally it is given great weight,has a very persuasive influenceand may actually be regarded by thecourts as the controlling factor.

o Administrative interpretation ismerely advisory; Courts finallydetermine what the law means.

c. Contingent legislationPertains to rules and regulations madeby an administrative authority on theexistence of certain facts or things uponwhich the enforcement of the lawdepends.

o Requisites of a valid administrativerule (WRAP) Authorized by law Within the scope or authority of

law Reasonableness promulgated in accordance with

prescribed Procedure

o Publication Rules Administrative rules and

regulations are subject to thepublication and effectivity rules

of the Admin Code in relation tothe Civil Code.

EO 200 requires publication oflaws in the Official Gazette or ina newspaper of generalcirculation. Publication isindispensable, especially if therule is general.EXCEPTIONS: Interpretative rules Internal regulations (i.e.

regulating personnel) Letters of instructions

issued by administrativesuperior to subordinates

Effectivity: 15 days after publication,not 15 days from date of filing withthe UP Law Center.EXCEPTIONS: Different date is fixed by law or

specified in the rule. In case of imminent danger to

public health, safety andwelfare.

o Penal Rules

Sec. 6, 1987 Administrative Code.Omission of Some Rules. – (2) Everyrule establishing an offense or definingan act which, pursuant to law ispunishable as a crime or subject to apenalty shall in all cases be published infull text.

a) The law itself must declare theact as punishable and mustalso define or fix the penaltyfor the violation.

b) Can administrative bodies makepenal rules? NO. Penal statutesare exclusive to the legislatureand cannot be delegated.Administrative rules andregulations must not include,prohibit or punish acts which thelaw does not even define as acriminal act. [People vs Maceren(1977)]

c) If a rule is penal, it must bepublished before it takes effect.[People vs Que Po Lay (1954)]

B. Quasi-Judicial (Adjudicatory) Powers


1. Definition. The power of the administrativeagency to determine questions of fact towhich the legislative policy is to apply, in


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accordance with the standards laid down bythe law itself.

2. Source. Incidental to the power of regulationbut is often expressly conferred by thelegislature through specific provisions in thecharter of the agency.

DISTINCTIONS FROM JUDICALPROCEEDINGS

Kind ofProceedings

Administrative Judicial

Nature ofProceedings Inquisitorial Adversarial

Rules ofProcedure

Liberally applied Followtechnicalrules in theRules ofCourt

Nature andExtent ofDecision

Decision limited tomatters of generalconcern

Decisionincludesmattersbrought asissue by theparties

Parties The agency itselfmay be a party tothe proceedingsbefore it

The partiesare only theprivatelitigants

3. Requisites for a Valid Exercise:a. Jurisdictionb. Due process

4. General Rule: A tribunal, board or officerexercising judicial functions acts withoutjurisdiction if no authority has beenconferred to it by law to hear and decidecases.a. Jurisdiction to hear is explicitly or by

necessary implication, conferredthrough the terms of the enablingstatute.

b. Effect of administrative acts outsidejurisdiction—VOID.

5. Quasi-judicial powers include: (SF-SWIP)a. Investigativeb. Subpoenasc. Power to Cite in Contemptd. Warrants of Arrest (only upon final order

of deportation)e. Administrative Searchesf. Imposition of Fines and penalties

6. Investigative powers. Administrativeagencies’ power to conduct investigationsand hearings, and make findings andrecommendations thereon is inherent intheir functions as administrative agencies

Findings of facts by administrativebodies which observed proceduralsafeguards (e.g. notice and hearingparties, and a full consideration ofevidence) are accorded the greatestrespect by courts

7. Subpoena powers. All agencies withquasi-judicial functions have the power toissue subpoena even if the charter is silentas to such power.

Why? Adjudicative power will be renderedinutile if there is no subpoena power.

Test for valid enforcement of subpoena:[Evangelista vs Jarencio (1975)](a) Within the authority of the agency.(b) Demand not too indefinite.(c) Information reasonably relevant.

8. Power to cite in contempt. This power mustbe expressly granted in the charter (ex. PD902-A creating the SEC). If there is no grant, the agency must go

to the RTC. Why? Because the power tocite in contempt is inherently judicial.

Contempt power can be used for quasi-judicial functions (but NOT ministerialones) [Guevarra vs COMELEC (1958)]

9. Warrants of arrest. Administrative agenciescannot issue warrants of arrest. Only ajudge may issue warrants. [Salazar vAchacoso (1990)]

EXCEPTION: Deportation of illegal andundesirable aliens following a final order ofdeportation. [Qua Chee Gan v DeportationBoard (1963)]

Two ways of deporting:i. Commissioner of Immigration (Sec

37 of CA 618)ii. President after due investigation

(Sec 69 of Administrative Code) Can the Commissioner issue warrants

of arrest?

Issuance of the warrants of arrest by theCommissioner, solely for the purpose ofinvestigation and before a final order ofdeportation is issued, conflicts withparagraph 3, Sec. 1, Art. III of the 1935Constitution, which states that the powerto determine probable cause forwarrants of arrest is limited to judges.Warrants of arrest issued solely for thepurpose of investigation and before afinal order of deportation is issued aretherefore null and void. Notice and


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bonds are sufficient to ensure that thesubject will appear at the hearingwithout prejudice to more drasticmeasures in case of recalcitrantrespondents. [Vivo v Montesa (1968)]

The cases of Harvey and Lucien TranVan Nghia, however, diverge from theQua Chee Gan ruling.

Harvey v Defensor-Santiago (1988].The Commissioner can arrest aliensupon a warrant issued by him anddeported upon warrant issued by thesame after a determination of theexistence of a ground for deportation bythe Board of Commissioners.Deportation proceedings areadministrative in nature, not penal, butmerely preventive. Thus, it need not beconducted strictly in accordance withordinary court proceedings. Therequirement of probable cause,determined by a judge, does not extendto deportation proceedings. What isessential however is that (1) there be aspecific charge against the alien, (2)there be a fair hearing conducted, and(3) the charge be substantiated bycompetent evidence

Lucien Tran Van Nghia v Liwag(1989).

In this case, the arrest and detention bythe CID preparatory to the deportationproceedings was illegal. Here, theparticular circumstances place doubt onthe propriety of the arrest. The MissionOrder was issued on the basis of sworncomplaints of a single individual. Theessential requisite of probable cause isabsent (Implication: the Commissionermay issue warrants of arrest uponfinding of probable cause).

The Qua Chee Gan ruling is reinforcedby a case more recent than the Harveyand Lucien cases.

Salazar v Achacoso (1990)Art. 38 of the Labor Code allowing theSecretary of Labor the power to issuewarrants of arrest is unconstitutional.Only a judge may issue search orarrest warrants. The SC reaffirms thefollowing principles: (1) Under Sec.2,Art. III of the Constitution, only judgesmay issue search warrants and warrantsof arrest; and (2) the exception is incases of deportation of illegal and

undesirable aliens, whom the Presidentor the Commissioner may orderarrested, following a final order ofdeportation, for the purpose of thesame.

Harvey or Qua Chee Gan? Qua CheeGan prevails. It is supported by morerecent cases. Note also that Salazarwas decided en banc, while Harvey wasdecided by a division.

10. Administrative Searches. Warrantless non-emergency inspection of residential andcommercial premises are significantintrusions upon the interests protected bythe 4

thAmendment.

It is surely anomalous to say that theindividual and his private property arefully protected by the constitution onlywhen he is suspected of criminalbehavior. Warrants should normally besought only after entry is refused unlessthere is a citizen complaint or othersatisfactory reason for securingimmediate entry.

There is no justification for relaxing 4th

Amendment safeguards for commercialestablishments. Warrants are anecessary and tolerable limitation on theright to enter upon and inspect places ofbusiness. [Camara vs Municipal Court(1967)]

Limitations on administrative subpoenas ofcorporate books and documents are:i. Limited in scope.ii. Relevant in purpose.iii. Specific directives so compliance will

not be unreasonably burdensome.iv. Subpoena must designate the needed

documents.v. Subpoena may not be made and

enforced in the field.vi. Subpoenaed party may obtain judicial

review of reasonableness of demandprior to suffering penalties for refusal tocomply.

vii. The particular agency’s demand foraccess will be measured against aflexible standard of reasonableness thattakes into account the public need foreffective enforcement of regulations.[See vs Seattle (1967)]


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[Nos. 11-14 cover Administrative Procedure(Asked 9 times in the Bar)]

11. Due Process. Ang Tibay v CIR (1950) lays down the

cardinal primary rights:i. Right to a hearing (Includes the right

of a party to present his own caseand submit evidence in supportthereof)

ii. The tribunal must consider theevidence presented

iii. Decision must be supported byevidence.

iv. Evidence must be substantial.Substantial Evidence: suchrelevant evidence as a reasonablemind might accept as adequate tosupport a conclusion, even if otherminds equally reasonable wouldopine otherwise

v. Decision must be rendered on theevidence presented at the hearingor at least contained in the recordand disclosed to the parties affected

vi. Independent consideration of judge(Must not simply accept the views ofa subordinate)

vii. Decision rendered in such a manneras to let the parties know thevarious issues involved and thereasons for the decision rendered.

Due process does not always entailnotice and hearing prior to thedeprivation of a right. Hearing mayoccur after deprivation, as in emergencycases, in which case, there must be achance to seek reconsideration. [UPBoard of Regents vs CA (1999)]

Presence of a party at a trial is notalways the essence of due process. Allthat the law requires is the element offairness; that the parties be givennotice of trial andi. an opportunity to be heardii. in administrative proceedings, an

opportunity to seek reconsiderationiii. an opportunity to explain one’s side

The law, in prescribing a process ofappeal to a higher level, contemplatesthat the reviewing officer is a persondifferent from the one who issued theappealed decision. Otherwise, thereview becomes a farce; it is renderedmeaningless. [Rivera vs CSC (1995)]

Is a trial necessary? NO. WON to holdan adversarial trial is discretionary.Parties cannot demand it as a matter ofright. [Vinta Maritime v NLRC (1978)].

The right of a party to confront andcross-examine opposing witness is afundamental right which is part of dueprocess. If without his fault, this right isviolated, he is entitled to have the directexamination stricken off the record.[Bachrach Motors vs CIR (1978)]

Evidence on record must be fullydisclosed to the parties. [American Inter-Fashion vs Office of the President(1991)] BUT respondents inadministrative cases are not entitled tobe informed of findings of investigativecommittees but only of the decision ofthe administrative body. [Pefianco vMoral (2000)]

Due process is violated when:i. There is failure to sufficiently explain

the reason for the decisionrendered; or

ii. If not supported by substantialevidence;

iii. And imputation of a violation andimposition of a fine despite absenceof due notice and hearing. [GlobeTelecom v NTC (2004)].

Self-incrimination. The right against self-incrimination may be invoked by therespondent at the time he is called by thecomplainant as a witness. However, if hevoluntarily takes the witness stand, he canbe cross examined; but he may still invokethe right when the question calls for ananswer which incriminates him for anoffense other than that charged. [People vsAyson (1989)]

12. Notice and Hearing. When required:

i. When the law specifically requires it.ii. When it affects a person’s status

and liberty. When not required:

i. Urgent reasons.ii. Discretion is exercised by an officer

vested with it upon an undisputedfact.

iii. If it involves the exercise ofdiscretion and there is no graveabuse.


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iv. When rules to govern future conductof persons or enterprises, unlesslaw provides otherwise.

v. In the valid exercise of police power.

13. Administrative and judicial proceedingsarising from the same facts. The practice in the Philippines has been

to allow an administrative proceedingand a judicial proceeding to take placeat the same time so long as the 2actions are independent of each other.

The difference in the proceeding (oneadministrative, the other criminal) is notlegal incompatibility, but merely physicalincompatibility. They involve differentcauses of action and therefore canproceed simultaneously. [Galang vs CA(1961)]

Material matters in an administrativecase are not necessarily relevant in thecriminal case. Findings in criminal casescannot be conclusive for administrativepurposes. There are defenses, excuses,and attenuating circumstances of valuein administrative proceedings that arenot admissible in criminal cases whichcan have a blunting effect on theconviction. Due process should beupheld. Conviction does not ex propriovigore justify automatic suspension.[Villanos vs Subido (1971)]

Acquittal in the criminal case does notcarry with it relief from administrativeliability. Different standards apply. Theadministrative case requires only apreponderance of evidence to establishadministrative guilt; the criminal caserequires proof beyond reasonable doubtof the criminal charge. [PoliceCommission vs Lood (1980)]

There can be a conviction in a criminalcase and an acquittal in theadministrative case. [Villanos vs Subido(supra)]

14. Rules of Evidence. Generally, apply thespecific rules of the administrative agency.In the absence thereof, apply the generalrules on procedure.

However, administrative agencies arenot bound by the technical rules ofevidence of ordinary courts, so long asdue process is observed. (thePervasive Principle) Why? To allow

administrative agencies to act withspeed and flexibility.

The Pervasive Principle applies in at leastthree areas:i. Admissibility: Generally, agencies are

not bound by the technical rules ofadmissibility.

ii. Judicial Notice: Administrative bodiesmay take into account not only suchevidence as may be presented by theparties in the determination of the case.They may also make their inquiry intofacts at issue, and take judicial notice ofcertain other matters.

iii. Quantum of Evidence: Only substantialevidence is required to support adecision.

Ocular inspection is not equivalent to atrial or presentation of evidence, as it isonly an auxiliary remedy. Parties arestill entitled to a hearing. But if the issuecan be resolved through ocularinspection, there is no prohibition. [Phil.Movie Pictures Workers Association vsPremiere Productions (1953)]

Can the order of testimony be changed?YES, it is within the discretion of thecourt. Such a relaxed procedure isespecially true in administrative bodies.In the broad interest of justice, theadministrative body may except itselffrom technical rules and apply suchsuitable procedure as shall promote theobjectives. [Maceda v ERB (1991)]

When are findings of fact ofadministrative agencies not conclusiveupon the courts?

i. When the decision was renderedby an almost evenly divided courtand the division was precisely onthe facts as borne out by theevidence. [Gonzales vs VictoryLabor Union (1969)]

ii. When the decision was rendered inconsequence of fraud, impositionor mistake, other than error ofjudgment in estimating the value oreffect of the evidence. [Ortua vsSingson (1934)]

iii. When the decision is notsupported by substantial


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evidence. [Manahan v People(1988)]

iv. When the findings are basedmerely on their position papers.There is no trial through positionpapers where the adversarialprocess would ensure a betterpresentation and appreciation of theevidence. [PAL vs Confessor(1994)]

The SC will intervene only when thestandard appears to have beenmisapprehended or grossly misapplied.[Universal Camera vs NLRC (1951)]

C. Determinative Powers

Determinative powers are: (DEEDS)a. Enabling — to permit or allow something

which the law undertakes to regulate, e.g.licenses

b. Directing — i.e. assessment by the BIR orCustoms

c. Dispensing — to exempt from a generalprohibition, or relieve an individual orcorporation from an affirmative duty, e.g.authority of zoning

d. Examining — investigatory power; consistsin requiring production of books, papers, andthe attendance of witnesses and compellingtheir testimony

e. Summary — power to apply compulsion orforce to effect a legal purpose without ajudicial warrant to authorize such action, e.g.fields of health inspection, abatement ofnuisances.

POLITICAL LAW REVIEWER Chapter III. JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION

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Chapter III. Judicial Review andEnforcement of Agency Action

A. CONSIDERATIONS1. BASIS2. FACTORS TO CONSIDER IN JUDICIAL

REVIEW3. DOCTRINES APPLICABLE TO

ADMINISTRATIVE AGENCIES4. GENERAL RULE5. EXCEPTIONS6. WHEN JUDICIAL REVIEW IS VALID

DESPITE FINALITY OF ADMINISTRATIVEDECISIONS

7. AVAILABILITY OF JUDICIAL REVIEWB. FOUR IMPORTANT DOCTRINES IN JUDICIAL

REVIEW1. PRIMARY JURISDICTION2. EXHAUSTION OF ADMINISTRATIVE

REMEDIES3. QUALIFIED POLITICAL AGENCY4. RIPENESS

C. EXTENT OF JUDICIAL REVIEW1. GENERAL RULE2. GENERAL PRINCIPLES3. LAW-FACT DISTINCTION4. QUESTION OF LAW5. QUESTION OF FACT6. QUESTION OF DISCRETION

D. MODES OF JUDICIAL REVIEW1. CERTIORARI2. PROHIBITION3. MANDAMUS4. DECLARATORY RELIEF5. HABEAS CORPUS6. AMPARO7. HABEAS DATA8. INJUNCTION AS PROVISIONAL REMEDY

E. ENFORCEMENT OF AGENCY ACTION1. RES JUDICATA; FINAL JUDGMENT

2. WRIT OF EXECUTION; MANDAMUS

A. Considerations

1. Basis

There is an underlying power in the courts toscrutinize the acts of administrative agenciesexercising quasi-judicial power on questions oflaw and jurisdiction even though no right ofreview is given by the statute.

Judicial review keeps the administrative agencywithin its jurisdiction and protects substantialrights of parties affected by its decisions.Judicial review is proper in cases of lack ofjurisdiction, error of law, grave abuse ofdiscretion, fraud or collusion, or in case theadministrative decision is corrupt, arbitrary orcapricious. [San Miguel Corp. v Labor Secretary(1975)]

2. Factors to Consider in Judicial Review:

a. If what is involved is a question ofconstitutionality, judicial review is available.

b. Intention of Congress prevails.EXCEPTION: when the Constitutionrequires or allows it, judicial review may begranted or withheld as Congress chooses.Thus, the law may provide that adetermination made by an administrativeagency shall be final and irreviewable. Insuch a case, there is no violation of dueprocess.

However, Art. 8 Sec. 1 par. 2 of the 1987Constitution, which provides that the judicialpower includes the power of the courts ofjustice to determine WON there has been agrave abuse of discretion amounting to lackor excess of jurisdiction on the part of anygovernment agency or instrumentality,clearly means that judicial review ofadministrative decisions cannot bedenied the courts when there is anallegation of grave abuse of discretion.

c. Nature of problem involved:i. Right (should be protected by law) v

Privilege (can be unilaterally withdrawn)ii. Question of Law v Question of Fact

(refer to discussion on Extent of JudicialReview on page 147)

d. Finality of the administrative decision.

3. The doctrines of forum shopping, litispendentia and res judicata also applyto administrative agencies.

4. General Rule

Courts will refuse to interfere with proceedingsundertaken by administrative bodies or officialsin the exercise of administrative functions.

5. Exceptions

Administrative proceedings may be reviewed bythe courts upon a showing that the board orofficial:a. Has gone beyond his statutory authority;b. Exercised unconstitutional powers;c. Clearly acted arbitrarily and without regard

to his duty, or with grave abuse of discretion;or

d. The decision is vitiated by fraud, impositionor mistake. [Manuel vs Villena (1971)]


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6. When judicial review is valid despitefinality of administrative decisions:

a. Decision is wrong;b. Manifestly arbitrary, capricious, unjust

decision;c. Not based upon any reasonable

interpretation of law;d. Vitiated by fraud, imposition or mistake;e. Violates or fails to comply with some

mandatory provision of law;f. Administrative body or officer has gone

beyond its/his statutory authority;g. Administrative agency exercised

unconstitutional powers;h. Lack of jurisdiction; Grave abuse of

discretion.

7. Availability of Judicial Review dependson:

i. Whether the enabling statute permitsjudicial review. There is no problem whenthe statute itself expressly grants or prohibitsjudicial review. But when it is silent,generally, judicial review is available

j. Whether the plaintiff has standing.k. Whether the defendant is the proper

defendant. The defendant could be either aprivate party, or the very administrativeagency before whom the right is beingapplied.

l. Whether the forum is the proper forum.The forum is usually provided for in theenacting statute. In its absence, theUniform Appeals Act is applicable. It isvery seldom that the forum is in the RTC,since administrative agencies are usuallygiven the rank equal to or higher than theRTC.

m. Whether the time for the filing of the caseis proper. The period for filing the casemust also be considered in view of thestatute of limitations, as well as the periodrequired by the statute or rules for the filingof appeals.

n. Whether the case is ripe for adjudication.When a person has not exhausted all theadministrative remedies available to him, hiscase is said to be not ripe for judicial reviewyet. He is said to have invoked theintervention of the court prematurely.Although this is not a jurisdictionalrequirement, failure to abide by the doctrineaffects petitioner’s cause of action.

B. Four Important Doctrines in JudicialReview

1. Primary Jurisdiction2. Exhaustion of Administrative Remedies3. Qualified Political Agency4. Ripeness

1. Doctrine of Primary Jurisdiction orPreliminary Resort

a. General rule. Courts will not intervene if thequestion to be resolved is one whichrequires the expertise of administrativeagencies and the legislative intent on thematter is to have uniformity in the rulings.

It can only occur where there is aconcurrence of jurisdiction between thecourt and the administrative agency.

It is a question of the court yielding to theagency because of the latter’s expertise,and does not amount to ouster of the court.[Texas & Pacific Railway v Abilene (1907)]

o It is the recent jurisprudential trend toapply the doctrine of primary jurisdictionin many cases that demand the specialcompetence of administrative agencies.It may occur that the Court has jurisdictionto take cognizance of a particular case,which means that the matter involved is alsojudicial in character. However, if thedetermination of the case requires theexpertise, specialized skills and knowledgeof the proper administrative bodies becausetechnical matters or intricate questions offacts are involved, then relief must first beobtained in an administrative proceedingbefore a remedy will be supplied by thecourts even though the matter is withinthe proper jurisdiction of a court.[Industrial Enterprises v CA (1990)]

o Well-entrenched is the rule that courts willnot interfere in matters which are addressedto the sound discretion of the governmentagency entrusted with the regulation ofactivities coming under the special andtechnical training and knowledge of suchagency. Administrative agencies aregiven a wide latitude in the evaluation ofevidence and in the exercise of theiradjudicative functions, latitude whichincludes the authority to take judicialnotice of facts within their specialcompetence [(Quiambao vs CA (2005)]


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o The doctrine of primary jurisdictionapplies where a claim is originallycognizable in the courts, and comes intoplay whenever enforcement of the claimrequires the resolution of issues which,under a regulatory scheme, have beenplaced within the special competence ofan administrative body; in such case, thejudicial process is suspended pendingreferral of such issues to the administrativebody for its view. And, in such cases, thecourt cannot arrogate into itself the authorityto resolve a controversy, the jurisdictionover which is initially lodged with anadministrative body of special competence.[Sherwill vs Sitio Sto Nino (2005)]

o Reason: In this era of clogged docketcourts, the need for specializedadministrative boards with the specialknowledge and capability to hear anddetermine promptly disputes on technicalmatters has become well nighindispensable. Between the power lodged inan administrative body and a court, theunmistakable trend has been to refer it tothe former. (GMA vs ABS CBN (2005)]

b. Requisites:

1. Administrative body and the regularcourt have concurrent and originaljurisdiction

2. Question to be resolved requiresexpertise of administrative agency

3. Legislative intent on the matter is tohave uniformity in rulings

4. Administrative agency is performing aquasi-judicial or adjudicatory function(not rule-making or quasi-legislativefunction [Smart vs NTC (2003)]

Rationale: It is presumed that anadministrative agency, if afforded anopportunity to pass upon a matter,would decide the same correctly, orcorrect any previous errorcommitted in its forum [Caballes vSison (2004)]

When the Doctrine is Inapplicable:i. If the agency has exclusive

jurisdictionii. When the issue is not within the

competence of theadministrative body to act on.

iii. When the issue involved isclearly a factual question thatdoes not require specializedskills and knowledge forresolution to justify the exerciseof primary jurisdiction.

Effect. The case is not dismissed,but merely suspended until after thematters within the competence ofthe administrative agency arethreshed out and determined.[Vidad vs RTC (1993)]

2. Doctrine of Exhaustion ofAdministrative Remedies

1. General Rule: Where the law hasdelineated the procedure by whichadministrative appeal or remedy could beeffected, the same should be followedbefore recourse to judicial action can beinitiated. [Pascual vs Provincial Board(1959)]

2. Requisites:i. The administrative agency is performing

a quasi-judicial function.ii. Judicial review is available.iii. The court acts in its appellate

jurisdiction.

3. Rationale:i. Legal reason: The law prescribes a

procedure.ii. Practical reason: To give the agency a

chance to correct its own errors [andprevent unnecessary and prematureresort to the courts ;

iii. Reasons of comity: Expedience,courtesy, convenience.

4. Exceptions to the Doctrine of Exhaustion ofRemedies: Purely legal questions. [Castro vs

Secretary (2001)] Steps to be taken are merely matters of

form. [Pascual vs Provincial Board(1959)]

Administrative remedy not exclusive butmerely cumulative or concurrent to ajudicial remedy. [Pascual vs ProvincialBoard (1959)]

Validity and urgency of judicial action orintervention. [Paat vs CA (1997)]

No other plain, speedy, adequateremedy in the ordinary course of thelaw. [Paat v CA (1997)t; Information


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Technology Found’n v COMELEC(2004)]

Resort to exhaustion will only beoppressive and patently unreasonable.[Paat vs CA (1997); Cipriano vsMarcelino (1972)]

Where the administrative remedy is onlypermissive or voluntary and not aprerequisite to the institution of judicialproceedings. [Corpuz vs Cuaderno(1962)]

Application of the doctrine will onlycause great and irreparable damagewhich cannot be prevented except bytaking the appropriate court action. [Paatvs CA (1997); Cipriano vs Marcelino(1972)]

When it involves the rule-making orquasi-legislative functions of anadministrative agency. [Smart vs NTC(2003)]

Administrative agency is in estoppel.[Republic vs Sandiganbayan (1996)]

Doctrine of qualified political agency Subject of controversy is private land in

land case proceedings. [Paat vs CA(1997)]

Blatant violation of due process. [Paatvs CA (1997); Pagara vs CA]

Where there is unreasonable delay orofficial inaction. [Republic vsSandiganbayan (1996)]

Administrative action is patently illegalamounting to lack or excess ofjurisdiction. [Paat vs CA (1997)]

Resort to administrative remedy willamount to a nullification of a claim. [DARvs Apex Investment (2003); Paat vs CA(1997)]

No administrative review provided for bylaw. [Estrada vs CA (2004)]

Issue of non-exhaustion ofadministrative remedies rendered moot.[Estrada vs CA (2004)]

In quo warranto proceedings. [Corpus vsCuaderno (1962)]

Law expressly provides for a differentreview procedure. [SamahangMagbubukid vs CA (1999)]

5. Effect of Failure to Exhaust AdministrativeRemedies:

It does not affect jurisdiction of the court.

The only effect of non-compliance is it thatwill deprive complainant of a cause ofaction, which is a ground for a motion todismiss.

But if not invoked at the proper time, thisground is deemed waived.[Republic vsSandiganbayan (1996)]

3. Doctrine of Qualified Political Agency

1. The act of the department head ispresumptively the act of the President (ashis alter ego), unless revoked by the latter.

2. Example: The President - through his dulyconstituted political agent and alter ego, theDOTC Secretary - may legally and validlydecree the reorganization of theDepartment. [Sec of DOTC v Mabalot(2002)]

3. Exception: Where the law expresslyprovides for exhaustion via an appeal to thePresident. [Tan v Director of Forestry(1983)]

4. Ripeness

1. When applied:i. Administrative agency’s decision is final.ii. Judicial review is available/appropriateiii. Administrative agency exercising its

rule-making or quasi-legislative function

a. Purpose [Abbot Laboratories v Gardner(1967)]

i. To prevent courts, thru avoidance ofpremature adjudication, from entanglingthemselves in abstract agreement overadministrative policies.

ii. To protect agencies from judicialinterference until a decision has beenformalized and its effect is felt in aconcrete way or the imminence of theeffect is demonstrable.

b. Two-fold test for a controversy to be ripe[Abbot Laboratories v Gardner (1967)]

Fitness of the issue for judicial decision. Hardship to the parties of withholding

such court action.


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C. Extent of Judicial Review

1. General Rule2. General Principles3. Law-fact Distinction4. Question of Law

a. General ruleb. What may be questioned?c. Examples

5. Question of Facta. Definitionb. General Rulec. Examples

6. Question of Discretiona. Discretionary Acts v Ministerial Actsb. Judicial review of administrative

discretion v Substitution of judicialdiscretion for administrative discretion

c. General ruled. Rationalee. Exceptionf. Examples

1. General Rule

Laws creating administrative agencies andproviding for judicial review may indicate thescope of that review. Whether the courts mayinquire into questions of law, of fact or of both aswell as of administrative discretion will dependon the enabling act.

2. General Principles

a. Questions of law are always reviewable bythe courts;

b. Substantial Evidence Rule: Findings offact, if based on substantial evidence, areconclusive and binding on the courts;

c. If the decision of a case is discretionary onthe part of the agency, courts can review ifthe decision is attended with capriciousness;and

d. Questions of jurisdiction are alwaysreviewable as they go into the question ofauthority to decide.

3. Law-fact Distinction

a. There is no clear-cut line that separatesquestions of law from questions of fact.There may be cases where the issuesraised may easily be classified under one orthe other, but some cases may involvemixed questions of law and fact;

b. Brandeis Doctrine of Assimilation of Facts:Where what purports to be a finding upon a

question of fact is so involved with anddependent upon a question of law as to bein substance and effect a decision on thelatter, the court will, in order to decide thelegal question, examine the entire recordincluding the evidence if necessary.

4. Question of Law

a. General rule: Questions of law are subject tojudicial review.

b. What may be questioned?i. Constitutionality of the statute

creating the agency and granting itspowers;

ii. Validity of the agency action if thistranscends the limit established by law;or

iii. Correctness of the agency’sinterpretation and application of thelaw.

c. Examples:i. Administrative official’s action which is

based on a misconstruction of law canbe corrected and is not conclusive uponthe courts.

ii. When the conclusion drawn by anadministrative official from the factsfound is erroneous or not warranted bylaw.

iii. Where the act of the administrativeofficial constitutes not only an excess ofregulatory power conferred upon him,but also an exercise of legislative powerwhich he does not have.

iv. The issue of WON an Employer-Employee relationship exists is aquestion of law. [Ysmael vs CIR (1960)]

5. Question of Fact

a. Definition. A question of fact exists if theissue involved is the existence of a fact, thehappening of an event, or which of the twoversions of the happening of an event iscorrect.

b. General Rule: Finality is attached to findingsof fact of some agencies when thesefindings are supported by substantialevidence and as long as there is no graveabuse of discretion.


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c. Examples:

GENERAL RULE:

i. It is not for the reviewing court to weighthe conflicting evidence, determine thecredibility of witnesses, or otherwisesubstitute its judgment for that of theadministrative agency on the sufficiencyof evidence.

The court recognizes that the trial courtor administrative body, as a trier of facts, isin a better position to assess the demeanorof the witnesses and the credibility of theirtestimonies as they were within its proximalview during the hearing or investigation.[Mollaneda vs Umacob (2001)]

ii. Administrative proceedings aregoverned by the substantial evidencerule.

A finding of guilt in an administrativecase would have to be sustained for as longas it is supported by substantial evidencethat the respondent has committed the actsstated in the complaint or formal charge.

This is different from the quantum ofproof required in criminal proceedings whichnecessitates a finding of guilt of the accusedbeyond reasonable doubt.

Ergo, the dismissal of the criminalcase will not foreclose administrativeaction against respondent. [Velasco vsHernandez (2004)]

iii. The substantial evidence standard is notmodified in any way when officials of anadministrative agency disagree in theirfindings. [Universal Camera vs NLRC(1951)]

EXCEPTIONS:i. One circumstance where the court may

not accept the agency’s findings of factis when the decision rendered by analmost evenly divided court and thedivision was precisely on the facts asborne out by the evidence.

In such a situation the court, in order todetermine the substantiality of the evidence,must consider evidence not only in itsquantitative but also in its qualitativeaspects. For, to be substantial, evidencemust first of all be credible. [Gonzales vsVictory Labor Union (1969)]

ii. When there is grave abuse ofdiscretion amounting to lack ofjurisdiction, there is a justification forthe courts to set aside the administrativedetermination. [ Banco Filipino vsCentral Bank (1991)]

iii. The court is inclined to review thefindings of fact of an administrativeofficial if they are not based on athorough examination of the parties’contending claims wherein theadversarial process would ensure abetter presentation and appreciationof evidence. [PAL v. Confessor (1994)]

6. Question of Discretion

a. Discretionary Acts v Ministerial Acts

Discretionary MinisterialWhen applied to publicfunctionaries, discretionmay be defined as thepower or right conferredupon them by law to actofficially under certaincircumstances,according to the dictatesof their own judgmentand conscience and notcontrolled by thejudgment of others.

A ministerial act has beendefined as one performedin response to a dutywhich has been positivelyimposed by law and itsperformance required ata time and in a manner orupon conditionsspecifically designated,the duty to perform underthe conditions specifiednot being dependentupon the officer’sjudgment or discretion.

Discretion is the powerto make a choice amongpermissive actions orpolicies. The veryessence of discretionarypower is that the personor persons exercising itmay choose which ofseveral courses of actionshould be followed.

Ministerial duty is one inrespect to which nothingis left to discretion. It is asimple, definite dutyarising under conditionsadmitted or proved toexist, and imposed bylaw.

b. Judicial review of administrative discretionvs. Substitution of judicial discretion foradministrative discretiono Questions of policy or discretion are

reviewable only for unreasonableness,departure from statutory standards, orlack of evidentiary support; andquestions of wisdom, propriety orexpediency are for the agency and notfor the courts.


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The court will not substitute its discretionor judgment for that of the administrativeagency, but will determine thelawfulness of its action.

The ruling of an administrative agency,on questions of law, while not asconclusive as its findings of facts, isnevertheless persuasive and given muchweight especially if the agency is one ofspecial competence and experience.

c. General rule: In the exercise of discretionlawfully given, the court will not interfere.

d. Rationale: Recognition of the expertise ofthe agency.

e. Exception: If discretion was exercised in acapricious, whimsical, arbitrary, abusive,partial, and hostile manner.

f. Examples:i. The erroneous appreciation of the

significance of the facts before theadministrative agency does not meanthat the administrative agency hadabused its discretion. [Laguna Tayabasvs PSC (1957)]

ii. Courts should not intervene in thatadministrative process, save upon avery clear showing of serious violation oflaw or of fraud, personal malice orwanton oppression.

Courts have none of the technical andeconomic or financial competence whichspecialized administrative agencies have attheir disposal. [PLDT vs NTC (1995)]

D. Modes of Judicial Review

The Modes of Judicial Review are:1. Certiorari2. Prohibition3. Mandamus4. Declaratory Relief5. Habeas Corpus6. Amparo7. Habeas Data8. Injunction as provisional remedy

1. Certiorari

a. Purpose: The purpose of a certiorari is to setaside or nullify proceedings.

b. Requisitesi. Involves question of lack of jurisdiction

or grave abuse of discretionii. No plain, adequate, and speedy remedy

availableiii. The administrative agency must be

performing a quasi-judicial function.Certiorari cannot be invoked if what isinvolved is merely a ministerial function.

c. NOTE: Certiorari for COMELEC decisions islimited to Rule 65. For CSC and COAdecisions, the rules on ordinary appealapply.

d. The special civil action of certiorari is still theproper vehicle for judicial review of thedecision of the NLRC.

A special civil action for certiorarihowever is within the concurrent originaljurisdiction of the SC and CA and it wouldbe advantageous to the aggrieved party torecourse from the NLRC to CA as an initialstep in the process of judicial review. [St.Martin Funeral Homes vs NLRC (1998)]

e. A motion for reconsideration is a remedyand since Purefoods filed a motion forreconsideration beyond the reglementaryperiod, it should suffer the consequences ofits own negligence. [Purefoods Corp. vsNLRC (1989)]

f. Failure of a party to perfect its appeal in themanner and within the period fixed by lawrenders the decision sought to be appealedfinal, with the result that no court canexercise appellate jurisdiction to review thedecision. [Azores vs SEC (1996)]

2. Prohibition

a. Nature. This action is preventive and not foracts already performed. Issues on the samegrounds as certiorari must be timely availedof.

b. Purpose. The purpose of prohibition is toprohibit or stop proceedings.

c. Prohibition is broader in scope compared toCertiorari because it applies to agenciesperforming both quasi-judicial and ministerialfunctions.

d. Requisitesi. Ground raised is lack of jurisdiction or

grave abuse of discretion;ii. No plain, adequate and speedy remedy

available;


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iii. Applies to agencies performing bothquasi-judicial and ministerial functions.

e. When the evidence submitted is conclusiveof his citizenship, the courts should promptlyenjoin the deportation proceedings.

When the evidence is not conclusive oneither side, the citizenship issue should beallowed to be decided first in a judicialproceeding, suspending the administrativeproceedings in the meantime that thealienage or citizenship is being determinedin the courts. [Chua Hiong vs DeportationBoard, (1955)]

f. The exception stated in Chua Hiong shouldbe allowed only in the sound discretion of acompetent court in a proper proceeding [Covs Deportation Board, (1977)]

g. CHR had no jurisdiction to issue the writ ofpreliminary injunction since what is involvedis neither political nor civil rights. CHR’scontention that prohibition is moot andacademic cannot be sustained.

While it is true that prohibition as apreventive remedy is not intended as aremedy to restrain what has alreadyaccomplished, the CHR, in this case, hasyet to promulgate its resolutions, and theprohibition is intended to prevent just that.[Simon, Jr. vs CHR, (1994)]

3. Mandamus

a. Nature. Mandamus is an order compelling aparty to perform an act arising out of apositive duty imposed by law.

b. Mandamus will lie against a ministerial dutywhen the official/agency refuses to exerciseits ministerial duty to act on its quasi-judicialfunctions.

c. Mandamus will not lie to enforce acontractual obligation. The remedy will bespecific performance.

d. Requisites:i. Duty is ministerial.ii. Petitioner has a clear, controlling right.iii. No other plain, speedy and adequate

remedy.

e. Mandamus will not issue to control or reviewthe exercise of discretion of a public officer.The act of confirming is not a ministerialduty. [Blanco vs Board of Examiners,(1924)]

f. The issuance of a visa is a discretionaryfunction on the part of the consul and carrieswith it the concern of public safety.Mandamus only lies to compel theperformance of a ministerial duty. [Ng GlocLiu vs Sec. of Foreign Affairs, (1950)]

g. Mandamus will lie only to compel the boardto take some action when it refuses but it willnot prescribe the action to be taken.Mandamus will not lie to review or controlthe action or decision of the Board wheresuch action or decision is one resting in thediscretion of the Board and involves theconstruction of the law and the application ofthe facts thereto. [Policarpio vs Phil.Veterans Board, (1956)]

h. The Backpay Law enumerates those notentitled to backpay, and no prohibition ismade against aliens in receiving backpay.Having been satisfied that Tan is not amongthose excluded from the coverage of saidlaw, it becomes the ministerial duty of theCommission to give due course topetitioner’s application. [Tan vs VeteransBackpay Commission, (1959)]

i. If one seeks to settle contractual rights andobligations and to regulate a course ofconduct, the remedy in this case is specificperformance. The difference between the 2remedies lies in their basis: mandamus isbased on the ministerial duty imposed bylaw, while specific performance is based oncontract. [Province of Pangasinan v.Reparations Commission, (1977)]

j. Tax assessment is discretionary; therefore,mandamus will not lie. The Commissionercannot be compelled to impose taxassessment not found by him to be due forthat would be tantamount to a usurpation ofan executive function. [Meralco SecuritiesCorporation v. Savellano, (1982)]

k. Mandamus will not issue to:o compel an official to do anything which

is not his duty to do oro give the applicant anything to which he

is not entitled by law.It is simply a command to exercise a poweralready possessed and to perform a dutyalready imposed. [Cruz v. CA, (1996)]

l. Mandamus is a command issuing from acourt of competent jurisdiction, in the nameof the state or the sovereign, directed tosome inferior court, tribunal, or board, or tosome corporation or person requiring the


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performance of a particular duty thereinspecified, which duty results from the officialstation of the party to whom the writ isdirected, or from operation of law. [PRC v.De Guzman, (2004)]

m. MMDA’s obligation to perform their duties asdefined by law, on one hand, and how theyare to carry out such duties, on the other,are two different concepts. While theimplementation of the MMDA’s mandatedtasks may entail a decision-making process,the enforcement of the law or the very act ofdoing what the law exacts to be done isministerial in nature and may be compelledby mandamus. [MMDA v. ConcernedCitizens of Manila Bay (2008)]

A continuing mandamus is a mandamusissued by the court under extraordinarycircumstances with directives with the end ofensuring that its decision would not be set tonaught by administrative inaction orindifference.

n. 2 Situations when a writ of mandamus mayissue: When any tribunal, corporation,board, officer or person unlawfully:i. Neglects the performance of an act

which the law specifically enjoins as aduty resulting from an office, trust, orstation; or

ii. Excludes another from the use andenjoyment of a right or office to whichthe other is entitled.

4. Declaratory Relief

a. Purpose: To determine the construction,validity and declaration of rights.

b. An action for declaratory relief must bebrought in the RTC. It is not among theactions within the original jurisdiction of theSC even if only questions of law areinvolved.

c. Requisites.1) Subject matter must be a deed, will,

contract or written instrument in whichpetitioner is legally interested, or law orgovernmental regulation which affectshis rights.

2) The terms of the written instrument are,or the validity of the law or regulation isdoubtful and requires judicialconstruction.

3) Petition is filed before breach or violationof the instrument or regulation.

4) There must be an actual justiciablecontroversy between persons withadverse interests.

5) Petitioner must have legal interest in thecontroversy.

6) Controversy must be ripe foradjudication

7) All administrative remedies have beenexhausted.

8) Adequate relief is not available throughother means or other forms of action orproceeding.

d. When Not Applicable In securing a judicial declaration of

citizenship. Where petition for declaratory relief is

filed after the breach of law took place. Where petitioner never acquired any

interest in the object of the controversy,and enjoyed no rights which wereviolated.

Where declaratory relief would notterminate the uncertainty of thecontroversy.

Where the relief sought would bedeterminative of issues rather than aconstruction of definite stated rights,status and other relations commonlyexpressed in written instruments since this remedy is available only if it islimited to a declaration of rights, and notto a determination, trial or judicialinvestigation of issues.

5. Habeas Corpus

a. Nature: The great writ of liberty is intendedas a speedy remedy to secure the release ofa person deprived of his liberty.

A person detained upon the orders of anagency may test the validity of his detentionthrough the privilege of the writ of habeascorpus, which is a constitutionallyguaranteed right. (Art. III, sec. 15, 1987Constitution)

b. Requisitesi. There is illegal confinement or detention.ii. There is illegal restraint of liberty.iii. Rightful custody of any person is

withheld from the person entitledthereto.

c. Purpose: Secure the release of a persondeprived of his liberty, and test the validity ofdetention as ordered by an agency.


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d. The writ of habeas corpus will issue when: an alien has been detained by the DOJ

for an unreasonably long period of timeafter it has become apparent that thedeportation order cannot be effectuated;and

no criminal charges have been formallymade or a judicial order issued for hisdetention.

In such case, the order of deportation whichwas not executed is functus officio and thealien is being held without authority of law.[Mejoff vs Director of Prisons, (1951)]

e. Bail renders a writ of habeas corpus mootand academic, as the bail bond givespetitioner liberty. [Co v Deportation Board,(1977)]

f. The release of a detained person, whetherpermanent or temporary, renders a petitionfor the writ of habeas corpus moot andacademic, unless there are restraintsattached which preclude his freedom.[Lucien Tran Van Nghia v. Liwag, (1989)]

6. Writ of Amparo

a. Nature: Amparo, literally “to protect,” isdesigned to protect those other fundamentalrights in the Constitution not covered byhabeas corpus. (The Rationale for the Writof Amparo)

b. Purposes/Types:i. For the protection of personal freedom,

equivalent to the habeas corpus writ(called amparo libertad);

ii. For the judicial review of theconstitutionality of statutes (calledamparo contra leyes);

iii. For the judicial review of theconstitutionality and legality of a judicialdecision (called amparo casacion);

iv. For the judicial review of administrativeactions (called amparo administrativo);and

v. For the protection of peasants’ rightsderived from the agrarian reformprocess (called amparo agrario).(Annotation to the Writ of Amparo)

c. Philippine Version:i. Rights protected: (1) right to life, (2)

liberty and (3) security of persons.ii. The reason for limiting the coverage of

its protection only to the three rights isthat other constitutional rights of our

people are already enforced throughdifferent remedies.

iii. It covers both actual and threatenedviolations of such rights.

iv. It covers violations committed by publicofficials or employees and privateindividuals or entities. (Annotation to theWrit of Amparo)

7. Habeas Data

a. Nature and Purpose: The writ of habeasdata is an independent remedy to protectthe right to privacy, especially the right toinformational privacy.

The writ of habeas data is also a remedy toprotect the right to life, liberty or security of aperson from violation or threatened violationby an unlawful act or omission of a publicofficial or employee or of a private individualor entity. It complements the writ of amparoand writ of habeas corpus. (Annotation tothe Writ of Habeas Data)

8. Injunction as Provisional Remedy

a. Nature: An ancillary remedy provided topreserve the petitioner’s rights while mainaction is pending.

b. Purpose.i. To prevent the commission of certain

acts complained of; orii. To order the continued performance of

some act for the purpose of preventingfurther injury.

c. Requisites:i. Plaintiff is entitled to relief demanded.

The right to the writ is clear when: There is willful invasion of the

petitioner’s right, and the injury is acontinuing one; and effect of thewrit is to re-establish the pre-existing relation. [Lemi vs. Valencia(1966)]

Commission or continuance of anact complained of would probablywork injustice to him.

Defendant, is doing, threatens orabout to do an act in violation ofpetitioner’s rights which may renderthe judgment ineffective.

d. Injunction can only be issued by superior toan inferior body; if co-equals, the injunctioncannot prosper. [Honda vs San Diego,(1966)]


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e. Typesi. Preliminary Mandatory Injunction:

Plaintiff wants to compel defendant to dosomething.

ii. Preliminary Injunction: To prevent orstop defendant from doing something

iii. Restraining Order: Life span of 20 days,after which hearing is then held todecide propriety of the injunction.

iv. Permanent Injunction: If plaintiff wins thecase, injunction becomes permanent(otherwise, the writ is dissolved).

f. The general rule is that injunction cannot beissued in tax collection. An exception is thatif the collection of the tax is prejudicial to theinterest of the government and of thetaxpayer, the CTA is authorized to restrainthe Collector from proceeding with itscollection. [Collector vs. Reyes, (1957)]

g. Sec. 11, RA 1125 (An Act Creating theCourt of Tax Appeals): Who may appeal;effect of appeal. — xxx

No appeal taken by the Court of Appealsfrom the decision of the Collector of InternalRevenue or the Collector of Customs shallsuspend the payment, levy, distraint, and orsale of any property of the taxpayer for thesatisfaction of his tax liability as provided byexisting law; Provided, however, That whenin the opinion of the Court the collection bythe Bureau of Internal Revenue or theCommissioner of Customs may jeopardizethe interest of the Government and/or thetaxpayer the Court at any stage of theproceeding may suspend the said collectionand require the taxpayer either to depositthe amount claimed or to file a surety bondfor not more than double the amount withthe Court.

E. Enforcement of Agency Action

1. Res Judicata; Finality of Judgment

a. When it applies. The doctrine of res judicataapplies only to judicial or quasi-judicialproceedings and not to the exercise ofpurely administrative functions.Administrative proceedings are non-litigiousand summary in nature; hence, res judicatadoes not apply. [Nasipit Lumber Co. vsNLRC (1989)]

b. Requisites:i. The former judgment must be final;

ii. It must have been rendered by a courthaving jurisdiction over the subjectmatter and the parties;

iii. It must be a judgment on the merits; andiv. There must be identity of parties, subject

matter and cause of action [IpekdijanMerchandising vs CTA (1963), FirestoneCeramics vs CA (1999), DBP vs CA(2001)]

c. Effect. Decisions and orders ofadministrative bodies rendered pursuant totheir quasi-judicial authority have, upon theirfinality, the force and effect of a finaljudgment within the purview of the doctrineof res judicata, which forbids the reopeningof matters once judicially determined bycompetent authorities.

2. Writ of Execution; Mandamus

a. General rule: Administrative agenciesperforming quasi-judicial functions have theimplied power to issue writs of execution.

b. EXCEPT: If the enabling law expresslyprovides otherwise.

c. If the law is silent, presume that the agencyhas the power to enforce its decisionsemanating from its quasi-judicial powers.[Apolega vs Hizon, (1968)]

d. The legislature may aid the enforcement ofadministrative determination by providing fora penalty for failure to comply therewith.

Also, direct and positive sanctions (grantof subpoena power and contempt powers)are afforded by provisions foradministrative or judicial processes tocompel obedience or prevent violation of thedetermination.

e. Administrative enforcement includes:i. Revocation;ii. Suspension;iii. Refusal to renew license;iv. Refusal to grant clearance paper to

ships;v. Withholding or denying benefits;vi. Imposing conditions, seizure and sale or

destruction of property;vii. Exclusion and deportation;viii. Imposition and collection of fines and

penalties; andix. Summary enforcement without need for

adjudication: Distraint of personal property or levy

on real property (Commissioner ofInternal Revenue);


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Abatement of nuisance (Secretaryof Health); and

Sequestration of ill-gotten wealth(PCGG);

f. What is the remedy if officials refuse toimplement a final and executory judgment?Mandamus. [Vda. De Corpuz vs TheCommanding General of the Philippine Army(1978)]

g. Execution must conform to that ordained ordecreed in the dispositive part of thedecision.

Where the order of execution is not inharmony with and exceeds the judgmentwhich gives it life, the order pro tanto has novalidity. [Clavano v HLURB, (2002)]

- end of Administrative Law -


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ELECTION LAWTable of Contents

Chapter I. General Principles......................198A. Definitions .........................................198

1. Suffrage ........................................1982. Scope............................................198

B. Constitutional Mandate on Congress 199C. Election Period ..................................199

Chapter II. COMELEC...................................200A. Composition ......................................200B. Qualifications.....................................200C. Powers and Functions.......................200

1. Constitutional powers and functions[Art. IX-C, Sec. 2]...................................2002. Statutory powers...........................201

D. Rendition of Decision ........................2011. Composition ..................................2012. Time Period and Votes Required .2023. COMELEC decisions reviewable bythe Supreme Court ................................202

E. Measures Designed for COMELEC’sIndependence ............................................202

Chapter III. Voters: Qualification andRegistration ..................................................203

A. Qualifications.....................................203B. Registration of Voters........................203

1. Definition .......................................2032. System of Continuing Registration ofVoters ....................................................2043. Illiterate or disabled voters............2044. Election Registration Board ..........2045. Change of residence or address ..2046. Challenges to right to register.......2047. Deactivation of Registration..........2058. Reactivation of Registration..........2059. Certified List of Voters ..................205

C. Inclusion and Exclusion Proceedings205D. Annulment of Book of Voters ............205E. Overseas Absentee Voter .................206

1. Definitions .....................................2062. Coverage ......................................2063. Qualifications ................................2064. Disqualifications............................2065. Personal Overseas AbsenteeRegistration ...........................................2066. Inclusion and Exclusion Proceedings

2067. National Registry of OverseasAbsentee Voters ....................................206

Chapter IV. Pre-Election Requirements .....207A. Certificates of Candidacy ..................207

1. Candidate, Definition ....................2072. Qualifications .....................................207

3. Disqualifications............................2074. Filing and withdrawal of certificate ofcandidacy ..............................................2085. Effect of filing certificate of candidacy

2096. Substitution of Candidates............2097. Duty of COMELEC .......................2098. Petition to declare a duly registeredcandidate as a nuisance candidate.......2099. Petition to Deny Due Course or toCancel Certificate ..................................21010. Effect of disqualification case...210

B. Registration of Political Parties .........2101. Party System ................................2102. Definitions .....................................2103. Purpose ........................................2114. Procedure for Registration............2115. Who May Not be Registered ........2116. Grounds for refusal and/orcancellation of registration ....................2117. Parameters in Allocation of Seats forParty-List Representatives ....................2128. Effect of Change of Affiliation...2129. Nomination of Party-ListRepresentative ......................................212

C. Party-list and District RepresentativesDistinguished .............................................213

Chapter V. Election Campaign andExpenditures ................................................214

A. Election Campaign............................2141. Election Campaign or PartisanPolitical Activity......................................2142. Campaign Period..........................2143. Lawful Election Propaganda.........2154. Prohibited Acts .............................2155. Equal Access to Media Time andSpace ....................................................2157. Election Surveys...........................2168. Application for Rallies, Meetings andOther Political Activity............................216

B. Election Contributions and Expenditures216

1. Definitions .....................................2162. Prohibited Contributions ...............2173. Prohibited Fund-raising Activities .2174. Limitations on Expenses...............2175. Statement of Contributions andExpenses...............................................2176. Requisites of a Prohibited Donation

218

Chapter VI. Election Proper ........................219A. In General .........................................219


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1. What Constitutes an Election........2192. Failure of Elections .......................2193. Postponement of Elections ...........2194. Special Elections ..........................220

B. Board of Election Inspectors .............220C. Casting of Votes................................220

1. Voting Hours .................................2202. Voting............................................2203. Challenge of Illegal Voters............2214. Challenge based on certain illegalacts 221

D. Counting of Votes..............................2221. Counting Proper............................2222. Election Returns ...........................222

E. Canvassing of Votes .........................2221. Definitions .....................................2222. Composition of Board of Canvassers

2233. Prohibitions on BOC .....................2234. Canvass by the BOC ....................2235. Certificate of Canvass and Statementof Votes .................................................2236. Proclamation .................................224

Chapter VII. Modes of Challenging Candidacyand Election Results....................................225

A. Cancellation of Certificate of Candidacy225

1. Grounds ........................................2252. Nature of Proceedings.......................2253. Procedure .....................................225

B. Pre-Proclamation Controversies .......2251. Jurisdiction ....................................2252. When Not Allowed ........................2253. Nature of Proceedings ..................2254. Issues That May Be Raised..........2255. Issues That Cannot Be Raised.....2266. Procedure .....................................2267. Effect of Filing of Pre-ProclamationControversy ...........................................2268. Effect of Proclamation of WinningCandidate ..............................................2269. Petition to Annul or SuspendProclamation..........................................22710. Declaration of Failure of Election

227C. Disqualification Cases.......................227

1. Procedure .....................................2272. Effect .................................................227

Chapter VIII. Election Offenses...................228A. Jurisdiction over Election Offenses...228B. Prosecution of Election Offenses......228C. Preferential Disposition of ElectionOffenses.....................................................228D. Election Offenses ..............................228

1. Registration...................................2282. Certificate of Candidacy................2283. Election Campaign........................228

4. Voting............................................2285. Counting of Votes .........................2296. Canvassing ...................................2297. Acts of Government or Public Officers

2298. Coercion, Intimidation, Violence...2299. Other Prohibitions.........................22910. Penalties...................................229

E. Arrests in Connection with ElectionCampaign ..................................................230F. Prescription .......................................230G. Prohibited Acts Under R.A. 9369......230

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Chapter I. General Principles

A. DEFINITIONS1. SUFFRAGE2. SCOPE

a. ELECTIONb. PLEBISCITEc. REFERENDUMd. INITIATIVEe. RECALL

B. CONSTITUTIONAL MANDATE ON CONGRESSC. ELECTION PERIOD

A. Definitions

1. Suffrage

The right to vote in the election of officerschosen by the people and in determinationof questions submitted to the people.

2. Scope

i. Election: the means by which the peoplechoose their officials for a definite and fixedperiod and to whom they entrust for the timebeing the exercise of the powers ofgovernment.

Kinds: Regular: one provided by law for the

election of officers either nation-wide orin certain subdivisions thereof, after theexpiration of the full term of the formerofficers.

Special: one held to fill a vacancy inoffice before the expiration of the fullterm for which the incumbent waselected.

ii. Plebiscite: election at which any proposedamendment to, or revision of, theConstitution is submitted to the people fortheir ratification.

iii. Referendum: submission of a law pass bythe national or local legislative body to theregistered voters at an election called for thepurpose for their ratification or rejection.

iv. Initiative: the power of the people to proposeamendments to the Constitution or topropose and enact legislation through anelection called for the purpose. [Sec. 3a,R.A. 6735, The Initiative and ReferendumAct]

3 systems of initiative: Initiative on the Constitution: petition

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ELECTION LAW TEAM

Prof. Rodolfo Noel QuimboFaculty Editor

Ria DoocLead Writer

Dianne PatawaranMike Rivera

Writers

POLITICAL LAW


ACADEMICS COMMITTEE




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DESIGN & LAYOUT



LECTURES COMMITTEE


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Arianne Cerezo


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LOGISTICS

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Members

POLITICAL LAW REVIEWER Chapter I. GENERAL PRINCIPLES

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proposing amendments to theConstitution.

Initiative on statutes: petition proposingto enact a national legislation.

Initiative on local legislation: petitionproposing to enact a regional, provincial,city, municipal or barangay law,resolution or ordinance.

The constitutional provision on people's initiativeto amend the Constitution can only beimplemented by law to be passed by Congress.No such law has been passed. R.A. No. 6735 isincomplete, inadequate, or wanting in essentialterms and conditions insofar as initiative onamendments to the Constitution is concerned.Note: Section 2 of Art. XVII Constitution islimited to proposals to AMEND — not to REVISE— the Constitution. [Santiago vs COMELEC(1997)]

v. Recall: the termination of official relationshipof a local elective official for loss ofconfidence prior to the expiration of his termthrough the will of the electorate.

B. Constitutional Mandate on Congress

[Art. V, Sec. 2, Constitution]

i. To provide a system for securing thesecrecy and sanctity of the ballot as well asa system for absentee voting by qualifiedFilipinos abroad.

Laws providing for absentee voting: Sec. 12, R.A. 7166, An Act Providing for

Synchronized National and LocalElections and Electoral Reforms: applies only to elections for the

President, Vice President andSenators

limited to members of the AFP andPNP and other government officersand employees who are:o duly registered voters ando on election day, may be

temporarily assigned inconnection with theperformance of election dutiesto places where they are notregistered voters.

R.A. 9189 (The Overseas AbsenteeVoting Act of 2003)

Please refer to page 206 for a moredetailed discussion The OverseasAbsentee Voting Act of 2003.

ii. To design a procedure for the disabled andthe illiterate to vote without the assistance ofother persons.

C. Election Period

Unless otherwise fixed by the COMELEC inspecial cases, the election period shallcommence 90 days before the day of theelection and shall end 30 days thereafter. [Art.IX-C, Sec. 9, Const.]

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Chapter II. COMELEC

A. COMPOSITIONB. QUALIFICATIONSC. POWERS AND FUNCTIONS

1. CONSTITUTIONAL POWERS ANDFUNCTIONS

2. STATUTORY POWERSD. RENDITION OF DECISION

1. COMPOSITION2. TIME PERIOD AND VOTES REQUIRED3. COMELEC DECISIONS REVIEWABLE BY

THE SUPREME COURTE. MEASURES DESIGNED FOR COMELEC’S

INDEPENDENCE

A. Composition

1 chairman and 6 Commissioners Appointed by the President with the consent

of the Commission on Appointments for aterm of 7 years without reappointment.

No member shall be appointed ordesignated in a temporary or actingcapacity. [Art. IX-C, Sec. 1, Constitution]

B. Qualifications

1. Natural born Filipino citizens2. At least 35 years old3. Holders of a college degree4. Not candidates for any elective position in

the immediately preceding election5. Majority, including the chairman, must be

members of the Bar who have beenengaged in the practice of law for at least 10years. [Art. IX-C, Sec. 1, Const.]

Inhibitions/Disqualifications:

1. Shall not, during tenure, hold any otheroffice or employment.

2. Shall not engage in the practice of anyprofession.

3. Shall not engage in the activemanagement or control of any businesswhich in any way may be affected by thefunctions of his office.

4. Shall not be financially interested,directly or indirectly, in any contract with,or in any franchise or privilege grantedby the Government, any of itssubdivisions, agencies orinstrumentalities, including GOCCs ortheir subsidiaries.

C. Powers and Functions

1. Constitutional powers and functions[Art. IX-C, Sec. 2]

i. Enforce and administer all laws relative tothe conduct of an election, plebiscite,initiative referendum and recall

Promulgate rules and regulations in theenforcement of laws relative toelections.

Fix appropriate periods foraccomplishment of pre-election acts.

Annul/cancellation illegal registry lists ofvoters and order the preparation of anew one.

Cancel canvass of election returns andannul proclamation based on incompleteresults. (Note: COMELEC does not havethe power to annul an election whichmay not have been free, orderly, andhonest; such power is merelypreventive, not curative.)

ii. Quasi-Judicial Powers

Exclusive original jurisdiction over allcontests relating to the election, returnsand qualifications of all elective regional,provincial and city officials.

The possibility of a conflict ofjurisdiction between the COMELECand the Electoral Tribunal regardingcontests involving congressionalelections has been foreclosed by Sec.15, R.A. 7166, An Act Providing forSynchronized National and LocalElections and Electoral Reforms,which prohibits pre-proclamationcontroversies in national offices.

Jurisdiction of the Electoral Tribunal isexercised over the members of theHouse or Senate. A party to theelection controversy is a member ofthe House or Senate only after he hasbeen proclaimed, has taken his oathand has assumed the functions of theoffice. [Aquino vs COMELEC (1995)]

Exclusive appellate jurisdiction over allcontests involving municipal officialsdecided by the RTC, or involving electivebarangay officials decided by the MTC. Inthese cases, the decisions therein shall befinal, executory and unappealable.

The fact that decisions, final orders orrulings of the COMELEC in contests


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involving elective municipal andbarangay officials are final, executoryand not appealable, does not precludea recourse to the Supreme Court byway of a special civil action forcertiorari.

iii. Decide all questions affecting elections Including:

Determination of the number andlocation of polling places

Appointment of election officials andinspectors

Registration of voters

However, it has no jurisdiction overquestions involving the right to vote (i.e.disqualifications of voters, right of aperson to be registered, etc.)

iv. Deputize, with the concurrence of thePresident, law enforcement agencies andinstrumentalities, including the AFP, for theexclusive purpose of ensuring free, orderly,honest, peaceful and credible elections.

v. Register political parties, organizations orcoalitions.

vi. Accredit citizens' arms.

vii. File, upon a verified complaint, or on its owninitiative, petitions in court for the inclusionor exclusion of votes.

viii. Investigate and prosecute cases of violationof election laws

The COMELEC has the power of apublic prosecutor with the exclusiveauthority to conduct the preliminaryinvestigation and the prosecution ofelection offenses punishable under theelection law. The power may beexercised upon complaint or motuproprio.

ix. Recommend to Congress effective measures

to minimize election spending to prevent and penalize all forms of

election frauds, offenses,malpractices, and nuisancecandidates

to the President removal of any officer or employee it

has deputized imposition of disciplinary action for

violation or disregard of, ordisobedience to its directive, order, ordecision

pardon, amnesty, parole orsuspension of sentence for violation ofelection laws, rules and regulations

x. Supervise or regulate during the electionperiod the use or enjoyment of all franchisesor permits for operation of:

transportation and other public utilities media of communication or information all grants, special privileges, or

concessions granted by the Governmentor any instrumentality thereof

to ensure equal opportunity, time, and space,and the right to reply for the holding of free,orderly, honest and peaceful elections

2. Statutory powers

i. Sec. 52 and 57, B.P. 881, OmnibusElection Code

ii. Power to postpone election [Sec. 5, B.P.881]

iii. Power to declare failure of elections [Sec. 6,B.P. 881]

iv. Power to call a special election [Sec. 4, R.A.7166]

Please refer to page 219 for a more detaileddiscussion of power to postpone election,declare failure of elections and to call aspecial election.

D. Rendition of Decision

1. Composition

The COMELEC may sit en banc or in 2divisions.

General Rule: Election cases, including pre-proclamation controversies, shall be heardand decided in division The rule applies only when COMELEC

exercises its adjudicatory or quasi-judicial functions, not when it exercisespurely administrative functions.

Exceptions: Decisions that must berendered by the COMELEC en banc include:i. Decisions on motions for

reconsideration [Art. IX-C, Sec. 3,Const.]

ii. Petitions for correction of manifest


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errors in the tabulation or tallying ofresults [Sec. 5, Rule 27 of the 1993Rules of the COMELEC]

iii. Questions pertaining to proceedings ofthe Board of Canvassers [(Mastura v.Comelec, (1998)]

iv. Postponement of election [Sec. 4, R.A.7166, An Act Providing forSynchronized National and LocalElections and Electoral Reforms]

v. Declaration of failure of election [Sec. 4,R.A. 7166]

vi. Calling of special elections [Sec. 4, R.A.7166]

2. Time Period and Votes Required

Decide by majority vote of all its members anycase or matter brought before it within 60 daysfrom the date of its submission for decision orresolution. [Art. IX-A, Sec. 7 Const.]

3. COMELEC decisions reviewable by theSupreme Court

Only decisions of the COMELEC en bancmay be brought to the Supreme Court bypetition on certiorari within 30 days fromreceipt of a copy thereof. [Art. IX-A, Sec. 7,Const.] By certiorari, a party raises questions of

law in the Supreme Court. Findings offact made by the COMELEC areconclusive upon the Supreme Court.

Only decisions of the COMELEC madein the exercise of its adjudicatory orquasi-judicial power may be brought tothe Supreme Court on certiorari.

Determinations made by the COMELECwhich are merely administrative (not quasi-judicial) in character, may be challenged inan ordinary civil action before the RTC.

The Supreme Court has no power ofsupervision over the COMELEC except toreview its decisions on petitions by certiorari.

E. Measures Designed for COMELEC’sIndependence

1. Constitutionally created, may not beabolished by statute.

2. Conferred certain powers and functionswhich cannot be reduced by statute.

3. Chairmen and members cannot be removedexcept by impeachment.

4. Chairman and Commissioners are givenfixed terms of 7 years.

5. Chairmen and members may not bereappointed or appointed in an actingcapacity.

6. Salaries shall not be decreased during theircontinuance in office.

7. Enjoy fiscal autonomy.8. May promulgate its own procedural rules,

provided they do not diminish, increase ormodify substantive rights (though subject todisapproval by the SC).

9. Chairmen and members are prohibited fromengaging in the practice of any otherprofession or management of any business,or to be financially interested in any contractwith the Government during their tenure inoffice.

10. May appoint their own officials andemployees in accordance with the CivilService Law.

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Chapter III. Voters: Qualification andRegistration

A. QUALIFICATIONSB. REGISTRATION OF VOTERS

1. DEFINITION2. SYSTEM OF CONTINUING

REGISTRATION3. DISQUALIFICATION4. ELECTION REGISTRATION BOARD5. CHANGE OF RESIDENCE OR ADDRESS6. CHALLENGES TO RIGHT TO REGISTER7. DEACTIVATION OF REGISTRATION8. REACTIVATION OF REGISTRATION9. CERTIFIED LIST OF VOTERS

C. INCLUSION AND EXCLUSION PROCEEDINGS1. JURISDICTION2. PETITION FOR INCLUSION3. PETITION FOR EXCLUSION

D. ANNULMENT OF BOOK OF VOTERSE. OVERSEAS ABSENTEE VOTER

1. DEFINITIONS2. COVERAGE3. QUALIFICATIONS4. DISQUALIFICATIONS5. PERSONAL OVERSEAS ABSENTEE

REGISTRATION6. INCLUSION AND EXCLUSION

PROCEEDINGS7. NATIONAL REGISTRY OF OVERSEAS

ABSENTEE VOTERS

A. Qualifications

[Art. V, Sec. 1, 1987 Const.]

1. Citizenship: Filipino citizen by birth ornaturalization

2. Age: at least 18 at the time of the election

3. Residency:i. Resident of the Philippines for at least 1

year andii. Resident of the place wherein they

propose to vote for at least 6 monthsimmediately preceding the election

Note: Any person who temporarilyresides in another city, municipality orcountry solely by reason of his: employment in private or public

service educational activities work in the military or naval

reservations within the Philippines service in the AFP, PNP or confinement or detention in

government institutions inaccordance with law shall not bedeemed to have lost his originalresidence [Sec. 9, R.A. 8189,Voter’s Registration Act of 1996]

It is not necessary that a person shouldhave a house in order to establish hisresidence or domicile in a municipality. It isenough that he should live there, providedthat his stay is accompanied by his intentionto reside therein permanently. [Marcos vsCOMELEC (1995)]

ii. Not otherwise disqualified by law:i. Sentenced by final judgment to suffer

imprisonment for not less than 1 year(unless granted a plenary pardon or anamnesty) shall automatically reacquire right to

vote upon the expiration of 5 yearsafter the service of sentence

ii. Adjudged by final judgment for havingcommitted any crime involving disloyaltyto the duly constituted government (e.g.rebellion, sedition, violation of thefirearms law) or any crime againstnational security (unless restored to fullcivil and political rights in accordancewith law) shall automatically reacquire the

right to vote upon the expiration of 5years after the service of sentence

iii. Insane or incompetent persons asdeclared by competent authority

Note: These are the same 3 grounds fordisqualification to register as a voterunder Sec. 11, R.A. 8189, Voter’sRegistration Act of 1996.

5. Registered voter: In order that a qualifiedelector may vote in any election, plebisciteor referendum, he must be registered in thePermanent List of Voters for the city ormunicipality in which he resides. [Sec. 115,B.P. 881, Omnibus Election Code]

No literacy, property or other substantiverequirement shall be imposed on theexercise of suffrage

B. Registration of Voters

1. Definition

Act of accomplishing and filing of a swornapplication for registration by a qualifiedvoter before the election officer of the city ormunicipality wherein he resides andincluding the same in the book of registeredvoters upon approval by the ElectionRegistration Board. [Sec. 3a, R.A. 8189]


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2. System of Continuing Registration ofVoters

The personal filing of application ofregistration of voters shall be conducteddaily in the office of the Election Officerduring regular office hours.

Period of registration: No registration shall be conducted within

120 days before a regular election 90 days before a special election

[Sec. 8, R.A. 8189]

PALATINO VS COMELECG.R. No. 189868, December 15. 2009

Facts: COMELEC Resolution 8585 set thedeadline for voter registration to 31 October2009. Petitioners asked the SC to declare theresolution null and void, and to requireCOMELEC to extend the voter registration until9 January 2010, the day before the 120-dayperiod prior to the 10 May 2010 regularelections. COMELEC argued that it is authorizeunder the law to fix other dates for pre-electionacts which include voter registration and inAkbayan-Youth vs. COMELEC, the SC denied asimilar prayer for extension of deadline for voterregistration for the 14 May 2001 elections.

Issue: WON COMELEC Resolution 8585 shouldbe declared void.

Ruling: Yes. By Sec. 8 R.A. 8189, Congressitself has determined that the period of 120 daysbefore a regular election and 90 days before aspecial election is enough time for theCOMELEC to make ALL the necessarypreparations with respect to the comingelections. COMELEC is granted the power to fixother periods and dates for pre-election activitiesonly if the same cannot be reasonably heldwithin the period provided by law. There is noground to hold that the mandate of continuingvoter registration cannot be reasonably heldwithin the period provided by Sec. 8 of R.A.8189.

The case is different from Akbayan-Youth vs.COMELEC, wherein the petitioners filed theirpetition with the Court and sought the conduct ofa two-day registration all within the 120-dayprohibitive period. In this case, both the dates offiling of the petition and the extension sought areprior to the 120-day prohibitive period.

3. Illiterate or disabled voters

Illiterate person - may register with theassistance of the Election Officer or anymember of an accredited citizen’s arms

Physically disabled person – application forregistration may be prepared by: any relative within the 4th civil degree of

consanguinity or affinity or by the Election Officer or any member of an accredited citizen’s

arm [Sec. 14, R.A. 8189] R.A. 9369 The Poll Automation Law now

defines a disabled voter as “a personwith impaired capacity to use theAutomated Election System (AES)”(Sec. 2, Par. 11)

4. Election Registration Board

Composition: Chairman: Election Officer

If disqualified, COMELEC shalldesignate an acting Election Officer

Members: Public school official most senior in

rank Local civil registrar, or in his

absence, the city or municipaltreasurer. If neither are available,any other appointive civil serviceofficial from the same locality asdesignated by the COMELEC.

Disqualification: relation to each other or toany incumbent city or municipal electiveofficial within the 4

thcivil degree of

consanguinity or affinity. [Sec. 15, R.A.8189]

5. Change of residence or address

Change of residence to another city ormunicipality – the registered voter may applywith the Election Officer of his newresidence for the transfer of his registrationrecords. [Sec. 12, R.A. 8189]

Change of address in the same municipalityor city – voter shall immediately notify theElection Officer in writing. [Sec. 13, R.A.8189]

6. Challenges to right to register

Who may challenge application forregistration: Any voter, candidate orrepresentative of a registered political party

Form: In writing


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State the grounds therefor Under oath and Attached to the application, together

with the proof of notice of hearing to thechallenger and the applicant

When: must be filed not later than the 2nd

Monday of the month in which the same isscheduled to be heard or processed by theERB [Sec. 18, R.A. 8189]

7. Deactivation of Registration

The board shall remove the registrationrecords of the following persons from thecorresponding precinct book of voters andplace the same in the inactive file:i. Sentenced by final judgment to suffer

imprisonment for not less than 1 year(unless granted a plenary pardon or anamnesty) shall automatically reacquire right to

vote upon the expiration of 5 yearsafter the service of sentence ascertified by clerks of courts

ii. Adjudged by final judgment for havingcommitted any crime involving disloyaltyto the duly constituted government (e.g.rebellion, sedition, violation of thefirearms law) or any crime againstnational security (unless restored to fullcivil and political rights in accordancewith law) shall automatically reacquire the

right to vote upon the expiration of 5years after the service of sentence

iii. Insane or incompetent persons asdeclared by competent authority

iv. Did not vote in the 2 successivepreceding regular elections (excludingSK elections)

v. Registration has been ordered excludedby the Court and

vi. Lost his Filipino citizenship. [Sec. 27,R.A. 8189]

8. Reactivation of Registration

Any voter whose registration has beendeactivated may file with the Election Officera sworn application for reactivation of hisregistration in the form of an affidavit statingthat the grounds for the deactivation nolonger exist.

When: Any time not later than 120 daysbefore a regular election and 90 days beforea special election. [Sec. 28, R.A. 8189]

9. Certified List of Voters

The ERB shall prepare and post a certifiedlist of voters 90 before a regular election and60 days before a special election. [Sec. 30,R.A. 8189]

C. Inclusion and Exclusion Proceedings

Jurisdiction in inclusion and exclusion case:The Municipal and Metropolitan Trial Courtsshall have original and exclusive jurisdictionover all cases of inclusion and exclusion ofvoters in their respective cities ormunicipalities. [Sec. 33, R.A. 8189]

Appeal: Decisions of the MTC or MeTC maybe appealed by the aggrieved party to theRTC within 5 days from receipt of noticethereof. No motion for reconsideration shallbe entertained. [Sec. 33, R.A. 8189]

Petition for Inclusion of Voters in the List: When: any time except 105 days prior to

a regular election or 75 days prior to aspecial election.

Who may file: One whose application for

registration has been disapprovedby the Board of Election Inspectorsor

One whose name has been strickenout from the list [Sec. 34, R.A.8189]

Petition for Exclusion of Voters in the List: When: any time except 100 days prior to

a regular election or 65 days prior to aspecial election.

Who may file: Any registered voter; Any representative of a political

party; the Election Officer

D. Annulment of Book of Voters

The COMELEC shall, upon verified petitionof any voter or election officer or dulyregistered political party, and after noticeand hearing, annul any book of voters thatis:i. not prepared in accordance with R.A. 8189

or the Voters’ Registration Act of 1996ii. prepared through fraud, bribery, forgery,

impersonation, intimidation, force, or anysimilar irregularity

iii. contains data that are statistically improbable


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No order, ruling or decision annulling a bookof voters shall be executed within 90 daysbefore an election. [Sec. 39, R.A. 8189]

E. Overseas Absentee Voter

1. Definitions

Absentee Voting: process by which qualifiedcitizens of the Philippines abroad exercisetheir right to vote. [Sec. 3a, R.A. 9189, TheOverseas Absentee Voting Act]

Overseas Absentee Voter: citizen of thePhilippines who is qualified to register andvote under this Act, not otherwisedisqualified by law, who is abroad on theday of elections. [Sec. 3f, R.A. 9189]

2. Coverage

Elections for president, vice-president,senators and party-list representatives [Sec.3f, R.A. 9189]

3. Qualifications

All Filipino citizens abroad Not otherwise disqualified by law At least 18 years of age on the day of

elections [Sec. 3f, R.A. 9189]


i. have lost their Filipino citizenship inaccordance with Philippine laws

ii. have expressly renounced their Philippinecitizenship and who have pledged allegianceto a foreign country

iii. have committed and are convicted in a finaljudgment by a court or tribunal of an offensepunishable by imprisonment of not less than1 year, including those who have committedand been found guilty of Disloyalty asdefined under Article 137 of the RPC

iv. immigrant or a permanent resident who isrecognized as such in the host country unless he/she executes, upon

registration, an affidavit prepared for thepurpose by the Commission declaringthat: he/she shall resume actual physical

permanent residence in thePhilippines not later than 3 yearsfrom approval of his/her registrationand

he/she has not applied forcitizenship in another country

Effect of failure to return: cause for theremoval of his/her name from theNational Registry of Absentee Votersand his/her permanent disqualification tovote in absentia

v. Previously declared insane or incompetentby competent authority in the Philippines orabroad, as verified by the Philippineembassies, consulates or foreign eserviceestablishments concerned. [Sec.5, R.A.9189]

5. Personal Overseas AbsenteeRegistration

Registration as an overseas absentee votershall be done in person. [Sec.5, R.A. 9189]

6. Inclusion and Exclusion Proceedings

Petition for Inclusion of Voters in the List: When: within 5 days from receipt of the

notice of disapproval Who may file: applicant or his authorized

representative [Sec. 6.7, R.A. 9189]

Petition for Exclusion: When: any time not later than 210 days

before the day of the elections Who may file: any interested person [Sec.

6.7, R.A. 9189]

7. National Registry of OverseasAbsentee Voters

Definition: the consolidated list prepared,approved and maintained by the COMELEC,of overseas absentee voters whoseapplications for registration as absenteevoters, including those registered voters whohave applied to be certified as absenteevoters, have been approved by the ElectionRegistered Board. [Sec. 3e, R.A. 9189]

Grounds for cancellation/amendment ofentries therein:i. When the overseas absentee voter files a

letter under oath addressed to the Comelecthat he/she wishes to be removed from theRegistry of Overseas Absentee Voters, orthat his/her name be transferred to theregular registry of voters.

ii. When an overseas absentee voter’s namewas ordered removed by the Comelec fromthe Registry of Overseas Absentee Votersfor his/her failure to exercise his/her right tovote under R.A. 9189 for 2 consecutivenational elections. (Sec. 9, R.A. 9189)

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Chapter IV. Pre-Election Requirements

A. CERTIFICATES OF CANDIDACY1. CANDIDATE, DEFINITION2. QUALIFICATIONS3. DISQUALIFICATIONS4. FILING AND WITHDRAWAL5. EFFECT OF FILING6. SUBSTITUTION OF CANDIDATES7. DUTY OF COMELEC8. PETITION TO DECLARE NUISANCE

CANDIDATE9. PETITION TO DENY DUE

COURSE/CANCEL CERTIFICATE10. EFFECT OF DISQUALIFICATION CASE

B. REGISTRATION OF POLITICAL PARTY1. PARTY SYSTEM2. DEFINITIONS3. PURPOSE4. PROCEDURE FOR REGISTRATION5. WHO MAY BE REGISTERED6. GROUNDS FOR

REFUSAL/CANCELLATION7. PARAMETERS IN ALLOCATION OF

SEATS8. EFFECT OF CHANGE OF AFFLIATION9. NOMINATION

C. PARTY-LIST AND DISTRICTREPRESENTATIVES DISTINGUISHED

A. Certificates of Candidacy

1. Candidate, Definition

Any person who files his certificate ofcandidacy within prescribed period shall onlybe considered as a candidate at the start ofthe campaign period for which he filed hiscertificate of candidacy. [Sec. 15, R.A. 9369,Poll Automation Law]

Unlawful acts or omissions applicable to acandidate shall take effect only upon thestart of the aforesaid campaign period. [Sec.15, R.A. 9369]

Any registered national, regional, or sectoralparty, organization or coalition thereof thathas filed a manifestation to participate underthe party-list system which has notwithdrawn or which has not beendisqualified before the start of the campaignperiod. [Comelec Res. 8758, Feb. 4, 2010]

2. Qualifications

Qualifications prescribed by law arecontinuing requirements and must bepossessed for the duration of the officer'sactive tenure [Frivaldo v. COMELEC(1989); Labo v. COMELEC (1989)].


Under the Omnibus Election Codei. Declared incompetent or insane by

competent authority (Sec. 12)ii. Permanent resident of or an immigrant

to a foreign country unless he has waived such status

(Sec. 68)iii. Sentenced by final judgment for:

Subversion, insurrection, rebellion Any offense for which he has been

sentenced to a penalty of more than18 months imprisonment

A crime involving moral turpitude(Sec. 12)

iv. Given money or other materialconsideration to influence, induce orcorrupt voters or public officialsperforming electoral functions (Sec. 68)

v. Committed acts of terrorism to enhancehis candidacy (Sec. 68)

vi. Spent in his election campaign anamount in excess of that allowed (Sec.68)

vii. Solicited, received or made prohibitedcontributions (Sec. 68)

viii. Engaged in election campaign orpartisan political activity outside thecampaign period and not pursuant to apolitical party nomination (Sec. 80)

ix. Removed, destroyed, defaced lawfulelection propaganda (Sec. 83)

x. Engaged in prohibited forms of electionpropaganda (Sec. 85)

xi. Violated election rules and regulationson election propaganda through massmedia (Sec. 86)

xii. Coerced, intimidated, compelled, orinfluenced any of his subordinates,members, or employees to aid,campaign or vote for or against anycandidate or aspirant for the nominationor selection of candidates (Sec. 261.d)

xiii. Threatened, intimidated, caused,inflicted or produced any violence,injury, punishment, damage, loss ordisadvantage upon any person or of theimmediate members of his family, hishonor or property, or used fraud tocompel, induce or prevent theregistration of any voter, or theparticipation in any campaign, or thecasting of any vote, or any promise ofsuch registration, campaign, vote, oromission therefrom (Sec. 261.e)

xiv. Unlawful electioneering (Sec. 261.k)xv. Violated the prohibition against release,

disbursement or expenditure of public


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funds 45 days before a regular electionor 30 days before a special election(Sec. 261.v)

xvi. Solicited votes or undertook propagandaon election day for or against anycandidate or any political party withinthe polling place or within a 30m radius(Sec. 261.cc.6)

Under Section 40 of the LGCi. Sentenced by final judgment for an

offense punishable by at least 1 yearimprisonment within 2 years afterserving sentence

ii. Removed from office as a result of anadministrative case

iii. Convicted by final judgment for violatingthe oath of allegiance to the Republic ofthe Philippines

iv. Dual citizenship Dual citizenship as a disqualification

must refer to citizens with dualallegiance. [Mercado v. Manzano,(1999)]

Under R.A. 9225 CitizenshipRetention and Re-acquisition Act of2003, a Filipino who becomes anaturalized citizen of anothercountry is allowed to retain hisFilipino citizenship by swearing tothe supreme authority of theRepublic of the Philippines. The actof taking an oath of allegiance is animplicit renunciation of a naturalizedcitizen’s foreign citizenship.

Dual citizenship is not a ground fordisqualification from running forelective position. Like any othernatural-born Filipino, it is enough fora person with dual citizenship whoseeks public office to (1) file hiscertificate of candidacy and (2)swear to the Oath of Allegiancecontained therein. [Cordora vs.COMELEC, (February 2009)]

With respect to a person with dual

allegiance, the Court held thatcandidate’s oath of allegiance to theRepublic of the Philippines and hisCertificate of Candidacy do notsubstantially comply with therequirement of a personal andsworn renunciation of foreigncitizenship. Section 5(2) of R.A. No.9225 compels natural-born Filipinos,who have been naturalized ascitizens of a foreign country, butwho reacquired or retained theirPhilippine citizenship (1) to take the

oath of allegiance under Section 3of Republic Act No. 9225, and (2)for those seeking elective publicoffices in the Philippines, toadditionally execute a personal andsworn renunciation of any and allforeign citizenship before anauthorized public officer prior orsimultaneous to the filing of theircertificates of candidacy, to qualifyas candidates in Philippineelections. [Jacot vs. Dal,(November 2008)]

v. Fugitive from justice in criminal and non-political cases here and abroad

vi. Insane or feeble-minded

4. Filing and withdrawal of certificate ofcandidacy

No person shall be eligible for any electivepublic office unless he files a sworncertificate of candidacy within the periodfixed herein. [Sec. 73, B.P. 881] The certificate of candidacy shall be

filed by the candidate personally or byhis duly authorized representative.

When: any day from thecommencement of the election periodbut not later than the day before thebeginning of the campaign period.

In cases of postponement or failure ofelection, no additional certificate ofcandidacy shall be accepted except incases of substitution of candidates.[Sec. 75, B.P. 881]

Filing of 2 certificates of candidacy: No person shall be eligible for more than

one office to be filled in the sameelection.

If he files a certificate of candidacy formore than one office he shall not beeligible for either.

Before the expiration of the period forthe filing of certificates of candidacy, theperson who has filed more than onecertificate of candidacy, may - declare under oath the office for

which he desires to be eligible and cancel the certificate of candidacy

for the other office/s [Sec. 73, B.P.881]

A person who has filed a certificate ofcandidacy may, prior to the election,withdraw the same by submitting to the


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office concerned a written declaration underoath.

Effect of filing or withdrawal of a certificate ofcandidacy: shall not affect whatever civil,criminal or administrative liabilities which acandidate may have incurred.

5. Effect of filing certificate of candidacy

Any person holding a public appointive officeor position including active members of theAFP, and other officers and employees inGOCCs, shall be considered ipso factoresigned from his office upon the filing of hiscertificate of candidacy. [Sec. 66(1), B.P.881]

Any person holding an elective office orposition shall not be considered resignedupon the filing of his certificate of candidacyfor the same or any other elective office orposition. [Sec. 4, Comelec Resolution No.8678 Guidelines on the Filing of Certificatesof Candidacy and Nomination of OfficialCandidates of Registered Political Parties inConnection with the May 10, 2010 Nationaland Local Elections] Sec. 67 B.P. 811 which deemed elective

officials automatically resigned fromoffice upon filing of their certificate ofcandidacy was repealed by Sec. 14 R.A9006, Fair Election Act.

QUINTO VS COMELEC (MR Ruling)GR 189698, February 22. 2010

Held: The SC reversed its earlier ruling (1 Dec.2009) and upheld the constitutionality of 3provisions in election laws – Sec. 13(3) R.A.9369, Sec. 66 B.P. 881 and Sec. 4(a)COMELEC Resolution 8678 - that deemedappointive officials automatically resigned oncethey filed their certificates of candidacy.

Ratio: By repealing Section 67 but retainingSection 66 of B.P. 881, the legislators deemed itproper to treat these two classes of officialsdifferently with respect to the effect on theirtenure in the office of the filing of the certificatesof candidacy for any position other than thoseoccupied by them. It is not within the power ofthe Court to pass upon or look into the wisdomof this classification. Since the classificationjustifying Section 14 of R.A. 9006 is anchoredupon material and significant distinctions and allthe persons belonging under the sameclassification are similarly treated, the equalprotection clause of the Constitution is, thus, notinfringed.

6. Substitution of Candidates

If after the last day for filing of thecertificates of candidacy, an officialcandidate of a registered political party dies,withdraws or is disqualified for any cause: He may be substituted by a candidate

belonging to and nominated by thesame political party.

No substitute shall be allowed for anyindependent candidate.

The substitute must file his certificate ofcandidacy not later than mid-day of theelection day

If the death, withdrawal or disqualificationshould happen between the day before theelection and mid-day of the election day,certificate may be filed with: any Board of Election Inspectors in the

political subdivision where he is acandidate or

with the COMELEC if it is a nationalposition [Sec. 77, B.P. 881]

7. Duty of COMELEC

[Sec. 76, B.P. 881] General rule: The COMELEC shall have the

ministerial duty to receive and acknowledgereceipt of the certificates of candidacyprovided said certificates are: under oathand contain all the required data and in theform prescribed by the Commission.

Exception: COMELEC may go beyond theface of the certificate of candidacy –i. Nuisance candidatesii. Petition to deny due course or to cancel

a certificate of candidacy The COMELEC has no discretion to give or

not to give due course to a certificate ofcandidacy filed in due form. While theCOMELEC may look into patent defects inthe certificate, it may not go into matters notappearing on their face. [Abcede v.Imperial, (1958)]

8. Petition to declare a duly registeredcandidate as a nuisance candidate

[Sec. 5, R.A. 6646, The Electoral ReformsLaw of 1987] Who may file: any registered candidate for

the same office When: within 5 days from the last day for the

filing of certificates of candidacy How: personally or through duly authorized

representative with the COMELEC


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Grounds: certificate of candidacy has beenfiled - To put the election process in mockery

or disrepute or To cause confusion among the voters

by the similarity of the names of theregistered candidates or

Clearly demonstrate that the candidatehas no bona fide intention to run for theoffice for which the certificate ofcandidacy has been filed and thusprevent a faithful determination of thetrue will of the electorate [Sec. 69, B.P.881]

Proceeding: summary in nature

9. Petition to Deny Due Course or toCancel Certificate

1) Who may file: Any person2) When: Any time not later than 25 days from

the time of the filing of the certificate ofcandidacy

3) Exclusive ground: any materialrepresentation contained in the certificate ofcandidacy is false.

4) Decision: Shall be decided, after due noticeand hearing, not later than 15 days beforethe election. [Sec. 78, B.P. 881]

SALIC MARUHOM VS COMELECGR NO. 179430, July 27. 2009

Held: The false representation must pertain to amaterial fact that affects the right of thecandidate to run for the election for which hefiled his COC. Such material fact refers to acandidate’s eligibility or qualification for electiveoffice like citizenship, residence or status as aregistered voter. Aside from the requirement ofmateriality, the false representation must consistof a deliberate attempt to mislead, misinform, orhide a fact that would otherwise render acandidate ineligible. In other words, it must bemade with the intention to deceive the electorateas to the would-be candidate’s qualifications forpublic office.

10. Effect of disqualification case

Any candidate who has been declared byfinal judgment to be disqualified – shall not be voted for and the votes cast for him shall not be

counted If a candidate is not declared by final

judgment before an election to be

disqualified and he is voted for and receivesthe winning number of votes in such election The Court or COMELEC shall continue

with the trial and hearing of the action,inquiry, or protest and

Upon motion of the complainant or anyintervenor, may during the pendencythereof, order the suspension of theproclamation of such candidatewhenever the evidence of his guilt isstrong. [Sec. 6, R.A. 6646, TheElectoral Reforms Law of 1987]

Where a similar complaint/petition is filed:i. before the election and proclamation of

the respondent and the case is notresolved before the election the trial and hearing of the case

shall continue and referred to theLaw Department for preliminaryinvestigation

ii. after the election and before theproclamation of the respondent the trial and hearing of the case

shall be suspended and referred tothe Law Department for preliminaryinvestigation

In either case, if the evidence of guilt isstrong, the COMELEC may order thesuspension of the proclamation ofrespondent, and if proclaimed, to suspendthe effects of proclamation. [Sec. 4,Resolution No. 8678]

B. Registration of Political Parties

1. Party System

A free and open party system shall beallowed to evolve according to the freechoice of the people. [Art. IX-C, Sec. 6,Const.]

No votes cast in favor of a political party,organization, coalition shall be valid, exceptfor those registered under the party-listsystem. [Art. IX-C, Sec. 7, Const.]

2. Definitions

i. Party-List System: Mechanism ofproportional representation in the election ofrepresentatives to the House ofRepresentatives from national, regional andsectoral parties or organizations or coalitionsregistered with the COMELEC.

ii. Political party: An organized group ofcitizens advocating an ideology or platform,principles and policies for the general


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conduct of government and which, as themost immediate means of securing theiradoption, regularly nominates certain of itsleaders and members as candidates forpublic office.

3 kinds: National party - constituency is spread

over the geographical territory of at leasta majority of the regions.

Regional party - constituency is spreadover the geographical territory of at leasta majority of the cities and provincescomprising the region.

Sectoral party – organized group ofcitizens belonging to any of the followingsectors: labor, peasant, fisherfolk, urbanpoor, indigenous cultural communities,elderly, handicapped, women, youth,veterans, overseas workers andprofessionals whose principal advocacypertains to the special interests andconcerns of their sector.

iii. Sectoral organization: group of citizens or acoalition of groups of citizens who sharesimilar physical attributes or characteristics,employment, interests or concerns.

iv. Coalition: an aggrupation of duly registerednational, regional, sectoral parties ororganizations for political and/or electionpurposes. [Sec. 3, R.A. 7941, Party-ListSystem Act]

3. Purpose

To enable Filipino citizens belonging tomarginalized and underrepresented sectors,organizations and parties, and who lack well-defined political constituencies but who couldcontribute to the formulation and enactment ofappropriate legislation that will benefit the nationas a whole, to become members of the House ofRepresentatives. [Sec. 2, R.A. 7941]

4. Procedure for Registration

i. File with the COMELEC not later than 90days before the election a petition verified by its president or

secretary stating its desire to participatein the party-list system as a national,regional or sectoral party or organizationor a coalition of such parties ororganizations

attaching thereto its constitution, by-laws, platform or program ofgovernment, list of officers, coalition

agreement and other relevantinformation as the COMELEC mayrequire

ii. COMELEC shall publish the petition in atleast 2 national newspapers of generalcirculation

iii. COMELEC shall, after due notice andhearing, resolve the petition within 15 daysfrom the date it was submitted for decisionbut in no case not later than 60 days beforeelection [Sec. 5, R.A. 7941]

5. Who May Not be Registered

i. Religious denominations and sectsii. Those which seek to achieve their goals

through violence or unlawful meansiii. Those which refuse to uphold and adhere to

the Constitutioniv. Those supported by foreign governments

[Art. IX-C, Sec. 2 (5), Constitution]

6. Grounds for refusal and/or cancellationof registration

The COMELEC may, motu propio or uponverified complaint of any interested party,refuse or cancel, after due notice andhearing, the registration of any national,regional or sectoral party, organization orcoalition on any of the following grounds:i. Religious sect or denomination,

organization or association, organizedfor religious purposes

ii. Advocates violence or unlawful meansto seek its goal

iii. Foreign party or organizationiv. Receives support from any foreign

government, foreign political party,foundation, organization, whetherdirectly or through any of its officers ormembers or indirectly through thirdparties for partisan election purposes

v. Violates or fails to comply with laws,rules or regulations relating to elections

vi. Declares untruthful statements in itspetition

vii. Ceased to exist for at least 1 yearviii. Fails to participate in the last 2

preceding elections orix. Fails to obtain at least 2% of the votes

cast under the party-list system in the 2preceding elections for the constituencyin which it has registered [Sec. 6, R.A.7941]


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7. Parameters in Allocation of Seats forParty-List Representatives

i. 20% allocation – the combined number ofall party-list congressmen shall not exceed20% of the total membership of the House ofRepresentatives, including those electedunder the party-list.

ii. 2% threshold – only those parties garneringa minimum of 2% of the total votes cast forthe party-list system shall be entitled to oneguaranteed seat each.

iii. Proportional representation – theadditional seats shall be computed in“proportion to their total number of votes”.

iv. 3-seat limit – each party, regardless of thenumber of votes it actually obtained, isentitled to a maximum of 3 seats; onequalifying and 2 additional seats.

BANAT VS. COMELECGR NO. 179271, July 8. 2009

Held: In computing the allocation of additionalseats, the continued operation of the 2%threshold for the distribution of the additionalseats as found in the second clause of Sec.11(b) of R.A. 7941 which provides that “thosegarnering more than 2% of the votes shall beentitled to additional seats in proportion to theirtotal number of votes” is unconstitutional. The2% threshold frustrates the attainment of thepermissive ceiling that 20% of the members ofthe HR shall consist of party-list representatives.

There are 2 steps in the second round of seatallocation:

1) The percentage of votes garnered by eachparty-list candidate is multiplied by theremaining available seats. The whole integerof the product corresponds to a party’sshare in the remaining available seats

Formula for remaining available seats =

Formula for percentage of votes garnered byeach party-list candidate =

2) Assign one party-list seat to each of theparties next in rank until all available seatsare completely distributed.

8. Effect of Change of Affiliation

Any elected party-list representative whochanges his political party or sectoralaffiliation: during his term of office shall forfeit his

seat within 6 months before an election shall

not be eligible for nomination as party-list representative under his new partyor organization [Sec. 15, R.A. 7941]

9. Nomination of Party-ListRepresentative

Each registered party, organization orcoalition shall submit to the COMELEC notlater 45 days before the election a list of atleast 5 names from which party-listrepresentatives shall be chosen in case itobtains the required number of votes.

A person may be nominated: in 1 list only if he/she has given their consent in

writing is not a candidate for any elective office

or has not lost his bid for an elective office

in the immediately preceding election No change of names or alteration of the

order of nominees shall be allowed after thesame shall have been submitted to theCOMELEC except where the nominee: dies withdraws in writing his nomination or becomes incapacitated in which case

the name of the substitute nominee shallbe placed last in the list

Incumbent sectoral representatives in theHR who are nominated in the party-listsystem shall not be considered resigned.[Sec. 8, R.A. 7941]

x .20 =

Number of seatsavailable to

party-listrepresentatives

Number of seatsavailable to

legislative districts.80

No. of seats availableto party-list

representatives

Guaranteedseats of the two-

percenters

No. of votesgarnered byeach party

Total no. ofvotes cast for

party-listcandidates

÷


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C. Party-list and District Representatives Distinguished

Party-list representative District representative

Scope of electorate National Legislative districtResidence requirement None Resident of his legislative district for at

least 1 year immediately before theelection

Manner of election Voted upon by party ororganization.

Elected personally

Effect of disaffiliation withparty

Loses his seat, will be substitutedby another

Does not lose seat

Effect of vacancy Substitution will be made within theparty

Special elections provided that thevacancy takes place at least 1 yearbefore the next election.

Effect of change inaffiliation within 6 monthsprior to election

Prohibited from sitting asrepresentative under his new partyor organization.

Does not prevent a district representativefrom running under his new party.

Effect of loss duringprevious election

Cannot sit Can run again

POLITICAL LAW REVIEWER Chapter V. ELECTION CAMPAIGN and EXPENDITURES

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Chapter V. Election Campaign andExpenditures

A. ELECTION CAMPAIGN1. ELECTION CAMPAIGN OR PARTISAN

POLITICAL ACTIVITY2. CAMPAIGN PERIOD3. LAWFUL ELECTION PROPAGANDA4. PROHIBITED ACTS5. EQUAL ACCESS TO MEDIA TIME AND

SPACE6. ELECTION SURVEYS7. RALLIES, MEETINGS AND OTHER

POLITICAL ACTIVITYB. ELECTION CONTRIBUTIONS AND

EXPENDITURES1. DEFINITIONS2. PROHIBITED CONTRIBUTIONS3. PROHIBITED FUND-RAISING ACTIVITIES4. LIMITATIONS ON EXPENSES5. STATEMENT OF CONTRIBUTIONS AND

EXPENSES6. REQUISITES FOR PROHIBITED

DONATION

A. Election Campaign

1. Election Campaign or Partisan PoliticalActivity

An act designed to promote the election ordefeat of a particular candidate orcandidates to a public office. [Sec. 79, B.P.881]

Exclusions:i. Acts performed for the purpose of

enhancing the chances of aspirants fornomination for candidacy to a publicoffice by a political party, aggroupment,or coalition of parties.

ii. Public expressions of opinions ordiscussions of probable issues in aforthcoming election or on attributes orcriticisms of probable candidatesproposed to be nominated in aforthcoming political party convention.[Sec. 79, B.P. 881]

Persons Prohibited from Campaigning:i. Members of the board of election

inspections [Sec. 173, B.P. 881]ii. Civil service officers or employees [Art.

IX-B, Sec. 2 (4), Const.]iii. Members of the military [Art. XVI, Sec.

5 (3), Const.]iv. Foreigners, whether juridical or natural

persons.

2. Campaign Period

i. For President, Vice-President and Senators- 90 days before the day of the election.

ii. For Members of the HR and electiveprovincial, city and municipal officials - 45days before the day of the election. [Sec. 5,R.A. 7166]

General rule: Any election campaign orpartisan political activity for or against anycandidate outside of the campaign period isprohibited and shall be considered as anelection offense. [Sec. 80, B.P. 881]

Exception: Political parties may hold politicalconventions to nominate their officialcandidates within 30 days before the start ofthe period for filing a certificate of candidacy.[Sec. 15, R.A. 9369, Poll Automation Law]

Prohibited campaigning days: It is unlawfulfor any person to engage in an electioncampaign or partisan political activity on: Maundy Thursday Good Friday eve of Election Day and Election Day [Sec. 3, COMELEC

Resolution 8758]

PENERA VS COMELECG.R. No. 181613, November 25. 2009

Facts: On 11 September 2009, the SC affirmedthe COMELEC’s decision to disqualify Peneraas mayoralty candidate in Sta. Monica, Surigaodel Norte, for engaging in election campaignoutside the campaign period, in violation of Sec.80 of B.P. 881. Penera moved forreconsideration, arguing that she was not yet acandidate at the time of the supposed prematurecampaigning, since under Sec. 15 of R.A. 9369one is not officially a candidate until the start ofthe campaign period.

Issue: WON Penera’s disqualification forengaging in premature campaigning should bereconsidered.

Held: At the time the supposed prematurecampaigning took place, Penera was notofficially a “candidate” albeit she already filed hercertificate of candidacy. Under Section 15 ofR.A. 9369, a person who files his certificate ofcandidacy is considered a candidate only at thestart of the campaign period, and unlawful actsapplicable to such candidate take effect only atthe start of such campaign period. Thus, acandidate is liable for an election offense only foracts done during the campaign period, notbefore. Before the start of the campaign period,


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such election offenses cannot be committed andany partisan political activity is lawful.

3. Lawful Election Propaganda

i. Pamphlets, leaflets, cards, decals, stickers,or other written or printed materials notlarger than 8.5x14 inches

ii. Handwritten or printed letters urging votersto vote for or against any political party orcandidate

iii. Cloth, paper or cardboard posters, framed orposted, not larger than 2x3 feet Streamers not larger than 3x8 feet are

allowed at a public meeting or rally or inannouncing the holding of such. May bedisplayed 5 days before the meeting orrally and shall be removed within 24hours after such

iv. Paid advertisements in print or broadcastmedia Bear and be identified by the reasonably

legible or audible words “politicaladvertisement paid for” followed by thetrue and correct name and address ofthe candidate or party for whose benefitthe election propaganda was printed oraired. [Sec. 4.1, R.A. 9006]

If the broadcast is given free of chargeby the radio or TV station, identified bythe words "airtime for this broadcastwas provided free of charge by"followed by the true and correct nameand address of the broadcast entity.[Sec. 4.2, R.A. 9006]

Print, broadcast or outdooradvertisements donated to thecandidate or political party shall not beprinted, published, broadcast orexhibited without the written acceptanceby said candidate or political party.Written acceptance must be attachedto the advertising contract andsubmitted to the COMELEC within 5days after its signing. [Sec. 4.3, R.A.9006, cf. Sec. 6.3, R.A. 9006]

v. All other forms of election propaganda notprohibited by the Omnibus Election Code orthe Fair Election Act of 2001. [Sec. 3, R.A.9006, The Fair Election Act]

4. Prohibited Acts

For any foreigner to:i. Aid any candidate or political party,

directly or indirectly

ii. Take part or influence in any mannerany election

iii. Contribute or make any expenditure inconnection with any election campaignor partisan political activity [Sec. 81,B.P. 881]

For any person during the campaign periodto:i. Remove, destroy, obliterate or in any

manner deface or tamper with lawfulelection propaganda

ii. Prevent the distribution of lawful electionpropaganda [Sec. 83, B.P.881]

For any candidate, political party,organization or any person to:i. Give or accept, directly or indirectly, free

of charge, transportation, food or drinksor things of value during the five hoursbefore and after a public meeting, on theday preceding the election, and on theday of the election;

ii. Give or contribute, directly or indirectly,money or things of value for suchpurpose (Sec. 89, B.P. 881)

Note: Sec. 85 “Prohibited electionpropaganda” of B.P. 881 was repealed bySec. 14 R.A. 9006.

5. Equal Access to Media Time and Space

Print advertisements shall not exceed 1/4page, in broad sheet and 1/2 page intabloids thrice a week per newspaper,magazine or other publications.

Bona fide candidates and registered politicalparties running for nationally elective officeare entitled to not more than 120 mins ofTV advertisement and 180 mins of radioadvertisement whether by purchase or bydonation.

Bona fide candidates and registered politicalparties running for locally elective office areentitled to not more than 60 mins of TVadvertisement and 90 mins of radioadvertisement whether by purchase or bydonation.

Broadcast stations or entities are required tosubmit copies of their broadcast logs andcertificates of performance to the COMELECfor the review and verification of thefrequency, date, time and duration ofadvertisement broadcast for any candidateor political party.


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All mass media entities are required tofurnish the COMELEC with a copy of allcontracts for advertising, promoting oropposing any political party or the candidacyof any person for public office within 5 daysafter its signing.

No franchise or permit to operate a radio orTV station shall be granted or issued,suspended or cancelled during the electionperiod.

Any mass media columnist, commentator,announcer, reporter, on-air correspondent orpersonality who is a candidate for anyelective public office or is a campaignvolunteer for or employed or retained in anycapacity by any candidate or political partyshall: be deemed resigned, if so required by

their employer or take a leave of absence from his/her

work as such during the campaignperiod

No movie, cinematograph or documentaryshall be publicly exhibited in a theater,television station or any public forum duringthe campaign period which: portrays the life or biography of a

candidate is portrayed by an actor or media

personality who is himself a candidate.[Sec. 6, R.A. 9006]

7. Election Surveys

The measurement of opinions andperceptions of the voters as regards acandidate's popularity, qualifications,platforms or a matter of public discussion inrelation to the election, including voters'preference for candidates or publiclydiscussed issues during the campaignperiod.

Surveys affecting national candidates shallnot be published 15 days before an electionand surveys affecting local candidates shallnot be published 7 days before an election.

Exit polls may only be taken subject to thefollowing requirements:i. Pollsters shall not conduct their surveys

within 50m from the polling place,whether said survey is taken in a home,dwelling place and other places

ii. Pollsters shall wear distinctive clothingiii. Pollsters shall inform the voters that they

may refuse to answer andiv. The result of the exit polls may be

announced after the closing of the pollson election day and must clearly identifythe total number of respondents, and theplaces where they were taken. Saidannouncement shall state that the sameis unofficial and does not represent atrend. [Sec. 5, R.A. 9006]

8. Application for Rallies, Meetings andOther Political Activity

All applications for permits must immediatelybe posted in a conspicuous place in the cityor municipal building, and the receipt thereofacknowledged in writing.

Applications must be acted upon in writingby local authorities concerned within 3 daysafter their filing. If not acted upon within saidperiod, deemed approved.

The only justifiable ground for denial of theapplication is when a prior writtenapplication by any candidate or politicalparty for the same purpose has beenapproved.

Denial of any application for said permit isappealable to the provincial electionsupervisor or to the COMELEC whosedecision shall be made within 48 hours andwhich shall be final and executory. [Sec. 87,B.P. 881)]

B. Election Contributions andExpenditures

1. Definitions

Contribution: gift, donation, subscription,loan, advance or deposit of money oranything of value, or a contract, promise oragreement to contribute WON legally enforceable made for influencing the results of the

elections excludes services rendered without

compensation by individualsvolunteering their time in behalf of acandidate or political party

includes the use of facilities voluntarilydonated by other persons, the moneyvalue of which can be assessed basedon the rates prevailing in the area. [Sec.94, B.P. 881]


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Expenditures: payment of money oranything of value or a contract, promise oragreement to make an expenditure for the purpose of influencing the results

of the election includes the use of facilities personally

owned by the candidate, the moneyvalue of the use of which can beassessed based on the rates prevailingin the area. [Sec. 94, B.P. 881]

2. Prohibited Contributions

i. From Public or private financial institutions Unless:

the financial institutions are legallyin the business of lending money

the loan is made in accordance withlaws and regulations AND

the loan is made in the ordinarycourse of business

ii. Natural and juridical persons operating apublic utility or in possession of or exploitingany natural resources of the nation

iii. Natural and juridical persons who holdcontracts or sub-contracts to supply thegovernment or any of its divisions,subdivisions or instrumentalities, with goodsor services or to perform construction orother works

iv. Grantees of franchises, incentives,exemptions, allocations or similar privilegesor concessions by the government or any ofits divisions, subdivisions orinstrumentalities, including GOCCs

v. Grantees, within 1 year prior to the date ofthe election, of loans or otheraccommodations in excess of P100,000 bythe government or any of its divisions,subdivisions or instrumentalities includingGOCCs

vi. Educational institutions which have receivedgrants of public funds amounting to no lessthan P100,000

vii. Officials or employees in the Civil Service, ormembers of the Armed Forces of thePhilippines

viii. Foreigners and foreign corporations,including foreign governments. [Sec. 95 and96, B.P. 881]

3. Prohibited Fund-raising Activities

The following are prohibited if held forraising campaign funds or for the support ofany candidate from the start of the electionperiod up to and including election day: Dances

Lotteries Cockfights Games Boxing bouts Bingo Beauty contests Entertainments, or cinematographic,

theatrical or other performances For any person or organization, civic or

religious, directly or indirectly, to solicitand/or accept from any candidate or fromhis campaign manager, agent orrepresentative, or any person acting in theirbehalf, any gift, food, transportation,contribution or donation in cash or in kindfrom the start of the election period up toand including election day Except: normal and customary religious

stipends, tithes, or collections onSundays and/or other designatedcollection days [Sec. 97, B.P. 881]

4. Limitations on Expenses

For Candidates President and VP: P10 for every voter

currently registered Other candidates: P3 for every voter

currently registered in the constituencywhere he filed his certificate ofcandidacy

Candidates Without a Political Party: P5 forevery voter

For Political Parties: P5 for every votercurrently registered in the constituency orconstituencies where it has officialcandidates [Sec. 13, R.A. 7166, ActProviding for Synchronized National andLocal Elections and Electoral Reforms]

5. Statement of Contributions andExpenses

Every candidate and treasurer of the politicalparty shall file: in duplicate with the COMELEC the full, true and itemized statement of

all contributions and expenditures inconnection with the election

within 30 days after the day of theelection

Effect of failure to file statement: No person elected to any public offices

shall enter upon the duties of his officeuntil he has filed the statement ofcontributions and expenditures


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The same prohibition shall apply if thepolitical party which nominated thewinning candidate fails to file thestatements

6. Requisites of a Prohibited Donation

Who: By candidate, spouse, relative within2nd civil degree of consanguinity or affinity,campaign manager, agent or representative;treasurers, agents or representatives ofpolitical party

When: During campaign period, day beforeand day of the election

Directly or indirectly:

donation, contribution or gift in cash or inkind

undertake or contribute to theconstruction or repair of roads, bridges,school buses, puericulture centers,medical clinics and hospitals, churchesor chapels cement pavements, or anystructure for public use or for the use ofany religious or civic organization.

Exceptions: Normal and customary religious dues or

contributions Periodic payments for legitimate

scholarships established and schoolcontributions habitually made before theprohibited period [Sec. 104, B.P. 881]

POLITICAL LAW REVIEWER Chapter VI. ELECTION PROPER

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Chapter VI. Election Proper

A. IN GENERAL1. WHAT CONSTITUTES AN ELECTION2. FAILURE OF ELECTIONS; GROUNDS3. POSTPONEMENT OF ELECTIONS4. SPECIAL ELECTIONS

B. BOARD OF ELECTION INSPECTORSC. CASTING OF VOTES

1. VOTING HOURS2. VOTING3. CHALLENGE OF ILLEGAL VOTERS4. CHALLENGE BASED ON CERTAIN

ILLEGAL ACTSD. COUNTING OF VOTES

1. COUNTING PROPER2. ELECTION RETURNS

E. CANVASS(ING OF VOTES)1. DEFINITIONS2. COMPOSITION OF BOARD OF

CANVASSERS3. PROHIBITION ON BOC4. CANVASS BY THE BOC5. CERTIFICATE OF CANVASS AND

STATEMENT OF VOTES6. PROCLAMATION

A. In General

1. What Constitutes an Election

Plurality of votes sufficient for: a choice conditioned on the plurality of

valid votes or a valid constituency regardless of the

actual number of votes cast.

2. Failure of Elections

Grounds: in any of such cases the failure orsuspension of election must affect the resultof the electioni. Election in any polling place has not

been held on the date fixed due toforce majeure, violence, terrorism, fraud,or other analogous causes.

ii. Election in any polling place had beensuspended before the hour fixed forthe closing of the voting due to forcemajeure, violence, terrorism, fraud, orother analogous causes.

iii. After the voting and during thepreparation and transmission of theelection returns or in the custody orcanvass thereof such election resultsin a failure to elect due to forcemajeure, violence, terrorism, fraud orother analogous causes. [Sec. 6, B.P.881]

Causes for the declaration of failure of

election may occur before or after thecasting of votes or on the day of theelection. [Sec. 4, R.A. 7166]

The postponement, declaration of failure ofelection and the calling of special electionsshall be decided by the COMELEC sitting enbanc by a majority vote of its members.[Sec. 4, R.A. 7166]

The COMELEC shall call for the holding orcontinuation of the election not held,suspended or which resulted in a failure toelect: upon a verified petition by any interested

party and after due notice and hearing [Sec. 6,

B.P. 881]

When: on a date reasonably close to thedate of the election not held, suspended orwhich resulted in a failure to elect but not later than 30 days after the

cessation of the cause of suchpostponement or suspension of theelection or failure to elect. [Sec. 6, B.P.881]

3. Postponement of Elections

Grounds:i. Violenceii. Terrorismiii. Loss or destruction of election

paraphernalia or recordsiv. Force majeurev. Other analogous cause of such a nature

that the holding of a free, orderly andhonest election becomes impossible inany political subdivision. [Sec. 5, B.P.881]

The COMELEC shall postpone the electiontherein motu proprio or upon a verifiedpetition by any interested party and after duenotice and hearing. Decided en banc by a majority vote of

its members. [Sec. 4, R.A. 7166]

When: on a date reasonably close to thedate of the election not held, suspended orwhich resulted in a failure to elect but not later than 30 days after the

cessation of the cause of suchpostponement or suspension of theelection or failure to elect. [Sec. 5, B.P.881]


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4. Special Elections

Ground: permanent vacancy in the Senateor House of Representatives at least 1 yearbefore the expiration of the term. [Sec. 4,R.A. 7166]

The COMELEC shall call and hold a specialelection to fill the vacancy.

When: Vacancy in HR (House of

Representatives) – not earlier than 60days nor longer than 90 days after theoccurrence of the vacancy.

Vacancy in the Senate – simultaneouswith the succeeding regular election.[Sec. 4, R.A. 7166]

B. Board of Election Inspectors

Constituted by COMELEC for each precinctat least 30 days before the date when thevoter’s list is to be prepared (regularelection) or 15 days before a specialelection.

Composition: Chairman, poll clerk and member All of whom shall be public school

teachers, with priority given to thosewith permanent appointments

If there are not enough public schoolteachers, the following may beappointed, provided that the Chairmanshall be a public school teacher:i. teachers in private schoolsii. employees in the civil service oriii. citizens of known probity and

competence who are registeredvoters of the city or municipality

at least 1 member shall be an IT-capable person as certified by theDOST after the training of the same.[Art. 1, Sec. 1, COMELEC Res. 8739]

Disqualification: He or his spouse is relatedwithin the 4

thcivil degree of consanguinity or

affinity to any member of the Board, or toany candidate to be voted for or to thelatter’s spouse. [Art. 1, Sec. 3, ComelecRes. 8739]

Powers:i. Conduct the voting in the polling place

and administer the electronic counting ofvotes

ii. Print the election returns and transmit

electronically the election results,through the use of the PCOS machine,to the: City/Municipal Board of Canvassers Dominant majority party, dominant

minority party, accredited citizens'arm and KBP and

Central serveriii. Act as deputies of the COMELEC in the

supervision and control of the election inthe polling places wherein they areassigned

iv. Perform such other functions prescribedby the Omnibus Election Code or by therules and regulations promulgated bythe Comelec. [Art. 1, Sec. 10, ComelecRes. 8739]

Prohibitions: No member of the Board shall engage in

any partisan political activity or take partin the election except to discharge hisduties as such and to vote. [Sec. 173,BP 881]

No member of the Board shall, beforethe termination of the voting, make anyannouncement as to whether a certainregistered voter has already voted ornot, as to how many have already votedor how many so far have failed to vote,or any other fact tending to show orshowing the state of the polls, nor shallhe make any statement at any time asto how any person voted, except aswitness before a court. [Sec. 205, BP881]

C. Casting of Votes

1. Voting Hours

The voting period is from 7AM to 6PM.However, if after 6PM there are still voterswithin 30 meters from the polling place whohave yet to cast their votes, such voters maystill be allowed to vote. [Art. IV, Sec. 21,Comelec Res. 8739]

2. Voting

Manner of voting:i. Using a ballot secrecy folder and the

marking pen provided by theCOMELEC, fill his ballot by fully shadingthe oval beside the names of thecandidates and political party of hischoice.


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ii. The voter shall approach the PCOS,insert his ballot in the ballot entry slotand wait until the ballot is dropped intothe ballot box.

iii. The BEI shall monitor the PCOS screento make sure that the ballot wassuccessfully accepted.

iv. The chairman shall apply indelible ink atthe right forefinger nail of the voter, orany other nail if there be no forefingernail.

v. The voter shall affix his thumbmark onthe corresponding space in the Voter’sList. [Art. V, Sec. 35, Comelec Res.8739]

Rejected ballots: In the event of a rejected ballot, the

voter shall be allowed to re-insert theballot. If the PCOS still rejects the ballot,the voter shall return the ballot to theChairman who shall:i. Distinctly mark the back thereof as

“Rejected”ii. Require all members of the BEI to

sign at the back thereof, and placeinside the Envelope for RejectedBallots.

No replacement ballot shall be issued toa voter whose ballot is rejected by thePCOS.

Any party objecting to the rejection ofthe ballot shall reduce his objection inwriting, which the board shall attach andnote in the Minutes. [Art. V, Sec. 36,COMELEC Res. 8739]

No voter shall be allowed to:i. Bring the ballot, ballot secrecy folder or

marking pen outside of the polling placeii. Speak with anyone other than as herein

provided while inside the polling placeiii. Prepare his ballot without using the

ballot secrecy folder or exhibit itscontents

iv. Fill his ballot accompanied by another,except in the case of an illiterate orperson with disability/disabled voter

v. Erase any printing from the ballot, or putany distinguishing mark on the ballot

vi. Use carbon paper, paraffin paper orother means of making a copy of thecontents of the ballot, or otherwise makeuse of any other scheme to identify hisvote, including the use of digitalcameras, cellular phones with camera orsimilar gadgets

vii. Intentionally tear or deface the ballot

viii. Disrupt or attempt to disrupt the normaloperation of the Precinct Count OpticalScan (PCOS). [Art. IV, Sec. 29,COMELEC Res. 8739]

Preparation of ballots for illiterates anddisabled persons:i. No voter shall be allowed to vote as an

illiterate or as a physically disabledunless it is so indicated in hisregistration record.

ii. He may be assisted in the preparation ofhis ballot by: A relative by affinity or

consanguinity within the 4th

civildegree

Any person of his confidence whobelongs to the same household

Any member of the board of electioninspectors.

iii. In no case shall an assistor assist morethan 3 times, except the members of theBEI.

iv. The person assisting shall: Prepare the ballot using a ballot

secrecy folder Bind himself in writing and under oath

to fill the ballot strictly in accordancewith the instructions of the voter andnot to reveal the contents thereof.

v. A person with physically impairedcapacity to use the AES may also beassisted in feeding his ballot into thePCOS. The assistor shall ensure thatthe contents of the ballot are notdisplayed during the feeding of thesame into the PCOS. [Art. IV, Sec. 30,Comelec Res. 8739]

3. Challenge of Illegal Voters

Any voter or watcher may challenge anyperson offering to vote for:i. not being registeredii. using the name of anotheriii. suffering from existing disqualification

In such case, the board of electioninspectors shall satisfy itself as to whether ornot the ground for the challenge is true byrequiring proof of registration, identity orqualification of the voter. [Sec. 199, B.P.881]

4. Challenge based on certain illegal acts

Any voter or watcher may challenge anyvoter offering to vote on the ground that he:


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i. Received or expects to receive, haspaid, offered or promised to pay, hascontributed, offered or promised tocontribute money or anything of valueas consideration for his vote or for thevote of another.

ii. Made or received a promise to influencethe giving or withholding of any suchvote.

iii. Made a bet or is interested directly orindirectly in a bet which depends uponthe result of the election. [Sec. 200,B.P. 881]

The challenged person shall take an oathbefore the BEI that he has not committedthe acts alleged. Upon the taking of oath,the challenge shall be dismissed and thevoter allowed to vote, but in case of hisrefusal to take such oath, challenge shall besustained and he shall not be allowed tovote. [Sec. 200, B.P. 881]

D. Counting of Votes

1. Counting Proper

Unless otherwise ordered by theCOMELEC, the BEI shall not stop orpostpone the counting until it has beencompleted.

the PCOS shall automatically count thevotes

After all the votes have been counted, thePCOS shall automatically print 30 copies ofthe Election Returns for the national andlocal positions. [Art. V, Sec. 38, ComelecRes. 8739]

2. Election Returns

A document in electronic and printed formdirectly produced by the counting or votingmachine. [Sec. 2(4), R.A. 9369]

Contents: the date of the election the province, municipality and the

precinct in which it is held and the votes in figures for each candidate

[Sec. 2(4), R.A. 9369]

Number of copies and their distribution: 30 copies Sec. 19, R.A. 9369 for manner of

transmittal and distribution

Announcement of results:

The chairman shall publicly announcethe total number of votes received byeach candidate, stating theircorresponding offices.

The poll clerk shall announce theposting of a copy of the second copy ofthe ER both for national and localpositions on a wall within the premisesof the polling place/counting centerwhich must be sufficiently lighted andaccessible to the public, and proceed topost such copies. [Sec. 19, R.A. 9369]

Transmittal of ERs: Within 1 hour after the printing of the

election returns, the chairman or anyofficial authorized by COMELEC shall,in the presence of watchers andrepresentatives of the accreditedcitizen's arm, politicalparties/candidates, if any, electronicallytransmit the precinct results to:i. the respective levels of board of

canvasserii. to the dominant majority and

minority partyiii. to the accredited citizen's arm andiv. Kapisanan ng mga Broadcasters ng

Pilipinas (KBP) [Sec. 19, R.A. 9369]

E. Canvassing of Votes

1. Definitions

Canvass - the process by which the resultsin the election returns are tallied andtotalled.

Certificates of canvass - official tabulationsof votes accomplished by district, municipal,city and provincial canvassers based on theelection returns, which are the results of theballot count at the precinct level.


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2. Composition of Board of Canvassers

[Sec. 20, R.A. 6646]

Province City MunicipalityChairman Provincial election

supervisor or lawyer in theCOMELEC regional office

City election registrar or alawyer of COMELEC;

In cities with more than 1election registrar,COMELEC shall designate

Election registrar orCOMELEC representative

Vice Chairman Provincial fiscal City fiscal Municipal treasurerMember Provincial superintendent

of schoolsCity superintendent ofschools

Most senior district schoolsupervisor or in hisabsence, a principal of theschool district orelementary school

In case of non-availability, absence, disqualification due to relationship, or incapacity for any cause ofany of the members, COMELEC may appoint the following as substitutes, in the order named:

Province City Municipality

Chairman Ranking lawyer of theCOMELEC

Ranking lawyer of theCOMELEC

Ranking lawyer of theCOMELEC

Vice Chairman a. Provincial auditorb. Registrar of Deedsc. Clerk of Court

nominated by theExecutive Judge ofthe RTC;

d. Any other availableappointive provincialofficial

a. City auditor orequivalent;

b. Registrar of Deeds;c. Clerk of Court

nominated by theExecutive Judge ofthe RTC;

d. Any other availableappointive city official

a. MunicipalAdministrator;

b. Municipal Assessor;c. Clerk of Court

nominated by theExecutive Judge of theMTC;

d. Any other availableappointive municipalofficial

Member Same as for Vice-Chairman

Same as for Vice-Chairman

Same as for Vice-Chairman

3. Prohibitions on BOC

Chairman and members shall not be relatedwithin the 4

thcivil degree of consanguinity or

affinity to any of the candidates whose voteswill be canvassed by said board, or to anymember of the said board. [Sec. 222, B.P.881]

No member or substitute member shall betransferred, assigned or detailed outside ofhis official station, nor shall he leave saidstation without prior authority of theCOMELEC during the period beginningelection day until the proclamation of thewinning candidates. [Sec. 223, B.P. 881]

No member shall feign illness to besubstituted on election day until theproclamation of the winning candidates.Feigning of illness constitutes an electionoffense. [Sec. 224, B.P. 881]

4. Canvass by the BOC

The BOC shall canvass the votes byconsolidating the electronically transmittedresults or the results contained in the datastorage devices used in the printing of theelection returns. [Sec. 20, R.A. 9369]

5. Certificate of Canvass and Statementof Votes

Within one hour after the canvassing, theChairman of the district or provincial BOC orthe city BOC of those cities which compriseone or more legislative districts shallelectronically transmit the certificates ofcanvass to: COMELEC sitting as the National BOC

for senators and party-listrepresentatives and

Congress as the National BOC for thepresident and vice president, directed to


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the President of the Senate. [Sec. 20,R.A. 9369]

The certificates of canvass transmittedelectronically and digitally signed shall beconsidered as official election results andshall be used as the basis for theproclamation of a winning candidate. [Sec.20, R.A. 9369]

30 copies shall be distributed in accordanceto Sec. 21, R.A. 9369.

National BOC for president and vice-president Composition: The Senate and the

House of Representatives in joint publicsession.

Upon receipt of the certificates ofcanvass, the President of the Senateshall, not later than 30 days after theday of the election, open all thecertificates in the presence of theSenate and the House ofRepresentatives in joint public session.

Congress upon determination of theauthenticity and the due executionthereof in the manner provided by lawshall:i. canvass all the results for president

and vice-president andii. proclaim the winning candidates.

[Sec. 22, R.A. 9369] National BOC for Senators and Party-List

Representatives Composition: The chairman and

members of the COMELEC sitting enbanc

It shall canvass the results byconsolidating the certificates of canvasselectronically transmitted. Thereafter,the national board shall proclaim thewinning candidates for senators andparty-list representatives. [Sec. 23, R.A.9369]

6. Proclamation

Proclamation shall be after the canvass ofelection returns, in the absence of aperfected appeal to the COMELEC, proclaimthe candidates who obtained the highestnumber of votes cast in the province, city,municipality or barangay, on the basis of thecertificates of canvass.

Failure to comply with this duty constitutesan election offense. [Sec. 231, B.P. 881]

a. When proclamation void: When it is based on incomplete returns

[Castromayor v. Comelec (1995)] or When there is yet no complete canvass.

[Jamil v. Comelec (1997)] A void proclamation is no proclamation

at all, and the proclaimed candidate’sassumption into office cannot deprivethe COMELEC of its power to annul theproclamation.

b. Partial proclamation: Notwithstandingpendency of any pre-proclamationcontroversy, COMELEC may summarilyorder proclamation of other winningcandidates whose election will not beaffected by the outcome of the controversy.[Sec. 21, R.A. 7166]

c. Election resulting in a tie: BOC, byresolution, upon 5 days notice to all tiedcandidates, shall hold a special publicmeeting at which the board shall proceed tothe drawing of lots of tied candidates andshall proclaim as elected the candidateswho may be favored by luck. [Sec. 240, B.P.881] There is a tie when:

2 or more candidates receive anequal and highest number of votes;or

2 or more candidates are to beelected for the same position and 2or more candidates received thesame number of votes for the LASTPLACE in the number to be elected.

d. Proclamation of a lone candidate: Upon theexpiration of the deadline for the filing ofcertificates of candidacy in a special electioncalled to fill a vacancy in an elective positionother than for President and VP, when thereis only 1 qualified candidate, he shall beproclaimed elected without holding thespecial election upon certification by theCOMELEC that he is the only candidate forthe office and is therefore deemed elected.[Sec. 2, R.A. 8295, Law on Proclamationof Solo Candidates]

POLITICAL LAW REVIEWER Chapter VII. MODES of CHALLENGING CANDIDACY and ELECTION RESULTS

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Chapter VII. Modes of ChallengingCandidacy and Election Results

A. CANCELLATION OF CERTIFICATE OFCANDIDACY1. GROUNDS2. NATURE OF PROCEEDINGS3. PROCEDURE

B. PRE-PROCLAMATION CONTROVERSIES1. JURISDICTION2. WHEN NOT ALLOWED3. NATURE OF PROCEEDINGS4. ISSUES THAT MAY BE RAISED5. ISSUES THAT CANNOT BE RAISED6. PROCEDURE7. EFFECT OF FILING OF PRE-

PROCLAMATION8. EFFECT OF PROCLAMATION OF

WINNING CANDIDATE9. PETITION TO ANNUL/SUSPEND

PROCLAMATION10. DECLARATION OF FAILURE OF

ELECTIONC. DISQUALIFICATION CASES

1. PROCEDURE2. EFFECT

A. Cancellation of Certificate ofCandidacy

1. Grounds

i. False material representation in thecertificate of candidacy;

ii. If the certificate filed is a substituteCertificate of Candidacy, when it is not aproper case of substitution under Sec. 77of BP 881.

2. Nature of Proceedings

Summary

3. Procedure

Who may file: any citizen of voting age, or aduly registered political party, organization,or coalition of political parties

When filed: Within 5 days from the last dayfor the filing of certificates of candidacy

Where filed: With the Law Department of theCOMELEC

B. Pre-Proclamation Controversies

(asked in 1987, 1988, 1996)

Any question or matter pertaining to or affecting: the proceedings of the board of canvassers,

or

any matter raised under Sec. 233-236 of BP881 (see below) in relation to thepreparation, transmission, receipt, custodyand appreciation of the election returns.[Sec. 241, BP 881]

1. Jurisdiction

COMELEC has exclusive jurisdiction over pre-proclamation cases. It may order, motu proprioor upon written petition, the partial or totalsuspension of the proclamation of anycandidate-elect or annul partially or totally anyproclamation, if one has been made. [Sec. 242,BP 881]

2. When Not Allowed

For the positions of President, VP, Senator, andMember of the House of Representatives [Sec.15, R.A. 7166]

3. Nature of Proceedings

Heard summarily by the COMELEC after duenotice and hearing. This is because canvass andproclamation should be delayed as little aspossible.

4. Issues That May Be Raised

This enumeration is restrictive andexclusive:i. Illegal composition or proceedings of the

board of election canvassers;ii. Canvassed election returns are either:

Incomplete; Contain material defects; Appear to be tampered with or

falsified; Contain discrepancies in the same

returns or in other authentic copies;iii. The election returns were:

a) Prepared under duress, threats,coercion, intimidation or

b) Obviously manufactured or notauthentic

iv. Substituted or fraudulent returns incontroverted polling places werecanvassed, the results of whichmaterially affected the standing of theaggrieved candidate(s).

v. Manifest errors in the Certificates ofCanvass or Election Returns [Sec. 15,R.A. 7166; Chavez v. COMELEC]


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5. Issues That Cannot Be Raised

i. Appreciation of ballots, as this is performedby the BEI at the precinct level and is notpart of the proceedings of the BOC[Sanchez v. Comelec, (1987)]

ii. Technical examination of the signatures andthumb marks of voters [Matalam v.Comelec (1997)]

iii. Prayer for re-opening of ballot boxes[Alfonso v. Comelec, (1997)]

iv. Padding of the Registry List of Voters of amunicipality, massive fraud and terrorism[Ututalum v. Comelec (1990)]

v. Challenges directed against the Board ofElection Inspectors [Ututalum v. Comele(supra)]

vi. Fraud, terrorism and other illegal electoralpractices. These are properly within theoffice of election contests over whichelectoral tribunals have sole, exclusivejurisdiction. [Loong v. Comelec, (1992)]

6. Procedure

a. Questions involving the composition orproceedings of the board of canvassers, orcorrection of manifest errors

Where:Either in the Board of Canvassers or directlywith the COMELEC. [Sec. 17, R.A. 7166]

When:1. a petition involves the illegal

composition or proceedings of theboard, must be filed immediately whenthe board begins to act as such[Laodeno v. Comelec], or at the time ofthe appointment of the member whosecapacity to sit as such is objected to if itcomes after the canvassing of theboard, or immediately at the point wherethe proceedings are or begin to beillegal. Otherwise, by participating in theproceedings, the petitioner is deemed tohave acquiesced in the composition ofthe BOC.

2. If the petition is for correction, it must befiled not later than 5 days following thedate of proclamation, and must impleadall candidates who may be adverselyaffected thereby. [Sec. 5(b), Rule 27,COMELEC Rules of Procedure]

b. Matters relating to the preparation,transmission, receipt, custody andappreciation of the election returns andcertificates of canvass

Where:Only with the Board of Canvassers

When:At the time the questioned return ispresented for inclusion in the canvass.

Who:Any candidate, political party or coalition ofpolitical parties

Note: Non-compliance with any of the stepsabove is fatal to the pre-proclamationpetition.

7. Effect of Filing of Pre-ProclamationControversy

The period to file an election contestshall be suspended during the pendency ofthe pre-proclamation contest in theCOMELEC or the Supreme Court.

The right of the prevailing party in the pre-proclamation contest to the execution ofCOMELEC’s decision does not bar thelosing party from filing an electioncontest.

Despite the pendency of a pre-proclamationcontest, the COMELEC may order theproclamation of other winningcandidates whose election will not beaffected by the outcome of the controversy.

8. Effect of Proclamation of WinningCandidate

General rule: A pre-proclamationcontroversy shall no longer be viable afterthe proclamation and assumption into officeby the candidate whose election iscontested. The remedy is an electionprotest before the proper forum.

Exceptions: The prevailing candidate maystill be unseated even though he has beenproclaimed and installed in office if: The opponent is adjudged the true

winner of the election by final judgmentof court in an election contest;

The prevailing party is declaredineligible or disqualified by finaljudgment of a court in a quo warrantocase; or


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The incumbent is removed from officefor cause.

9. Petition to Annul or SuspendProclamation

The filing of the petition suspends therunning of the period to file an electionprotest. [Alangdeo v. Comelec, (1989)]

No law provides for a reglementary periodwithin which to file a petition for theannulment of an election if there is as yet noproclamation. [Loong v. Comelec (supra)]

10. Declaration of Failure of Election

It is neither an election protest nor a pre-proclamation controversy. [Borja v.Comelec, (1998)]

Jurisdiction: COMELEC, sitting en banc,may declare a failure of election by amajority vote of its members.

Requisites: The following conditions mustconcur:a. No voting has taken place in the

precincts concerned on the date fixed bylaw, or even if there was voting, theelection nonetheless resulted in a failureto elect; and

b. The votes cast would affect the resultsof the election.

Procedure:1) Petitioner files verified petition with the

Law Department of the COMELEC.2) Unless a shorter period is deemed

necessary by circumstances, within 24hours, the Clerk of Court concernedserves notices to all interested parties,indicating therein the date of hearing,through the fastest means available.

3) Unless a shorter period is deemednecessary by the circumstances, within2 days from receipt of the notice ofhearing, any interested party may file anopposition with the Law Department ofthe COMELEC.

4) The COMELEC proceeds to hear thepetition. The COMELEC may delegatethe hearing of the case and thereception of evidence to any of itsofficials who are members of thePhilippine Bar.

5) The COMELEC then decides whether togrant or deny the petition. This lieswithin the exclusive prerogative of theCOMELEC.

C. Disqualification Cases

1. Procedure

i. Who may file: Any citizen of voting age, orany duly registered political party,organization or coalition of political parties

ii. Where: Law Department of the COMELECiii. When: Any day after the last day for filing of

certificates of candidacy, but not later thanthe date of proclamation

2. Effect

(asked in 1990, 1992, 1996, 2003)

Any candidate who has been declared by finaljudgment to be disqualified shall not be votedfor, and the votes cast for him shall not becounted. The fact that the candidate whoobtained the highest number of votes is laterdeclared to be disqualified or not eligible for theoffice to which he was elected, does notnecessarily entitle the candidate whoobtained the second highest number of votesto be declared the winner of the electiveoffice.

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Chapter VIII. Election Offenses

A. JURISDICTION OVER ELECTION OFFENSESB. PROSECUTION OF ELECTION OFFENSESC. PREFERENTIAL DISPOSITION OF ELECTION

OFFENSESD. ELECTION OFFENSES

1. REGISTRATION2. CERTIFICATE OF CANDIDACY3. ELECTION CAMPAIGN4. VOTING5. COUNTING OF VOTES6. CANVASSING7. ACTS OF GOVERNMENT AND PUBLIC

OFFICERS8. COERCION, INTIMIDATION, VIOLENCE9. OTHER PROHIBITIONS10. PENALTIES

E. ARRESTS IN CONNECTION WITH ELECTIONCAMPAIGN

F. PRESCRIPTIONG. PROHIBITED ACTS UNDER R.A. 9369

A. Jurisdiction over Election Offenses

RTCs have exclusive original jurisdiction totry and decide any criminal actions orproceedings for violation of election laws.[Sec. 268, B.P. 881]

B. Prosecution of Election Offenses

The COMELEC has the exclusive power toinvestigate and prosecute cases involvingviolations of election laws. [Sec. 2 (6), Art.IX-C, 1987 Const]

However, it may validly delegate the powerto the Provincial Prosecutor or to theOmbudsman.

In the event that the COMELEC fails to acton any complaint within 4 months from itsfiling, the complainant may file the complaintwith the fiscal or the Department of Justice,if warranted. [Sec. 265, B.P. 881]

C. Preferential Disposition of ElectionOffenses

The investigating officer shall resolve thecase within 5 days from submission.

The courts shall give preference to electioncases over all other cases except petitionsfor writ of habeas corpus.

D. Election Offenses

1. Registration

1) Failure of the Board of Election Inspectors

to post the list of voters in each precinct.[Sec. 9, R.A. 7166];

2) Change or alteration or transfer of avoter's precinct assignment in thepermanent list of voters without the expresswritten consent of the voter [Sec. 4, R.A.8189]

2. Certificate of Candidacy

1) Continued misrepresentation or holdingout as a candidate of a disqualifiedcandidate or one declared by final andexecutory judgment to be a nuisancecandidate [Sec. 27f, R.A. 6646]

2) Knowingly inducing or abetting suchmisrepresentation of a disqualified ornuisance candidate [Sec. 27f, R.A. 6646];

3) Coercing, bribing, threatening,harassing, intimidating, terrorizing, oractually causing, inflicting or producingviolence, injury, punishment, torture,damage, loss or disadvantage todiscourage any other person or personsfrom filing a certificate of candidacy inorder to eliminate all other potentialcandidates from running in a special election[Sec. 5, R.A. 8295]

3. Election Campaign

1) Appointment or use of specialpolicemen, special agents or the like duringthe campaign period [Sec. 261m, B.P. 881]

2) Use of armored land, water or aircraftduring the campaign period [Sec. 261r, B.P.881]

3) Unlawful electioneering [Sec. 261k, B.P.881]

4) Acting as bodyguards or security in thecase of policemen and provincial guardsduring the campaign period (Sec. 261t, B.P.881)

5) Removal, destruction, obliteration, ortampering of lawful election propaganda,or preventing the distribution thereof (Sec.83, B.P. 881 vis-à-vis Sec. 262, B.P. 881)

4. Voting

1) Vote-buying and vote-selling (Sec. 261a,B.P. 881)

2) Conspiracy to bribe voters (Sec. 261b,B.P. 881): A disputable presumption of aconspiracy to bribe voters is created whenthere is proof that at least 1 voter indifferent precincts representing at least20% of the total precincts in anymunicipality, city or province has been


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offered, promised or given money,valuable consideration or otherexpenditure by a candidate's relatives,leaders and/or sympathizers for the purposeof promoting the election of such candidate.(Sec. 28, R.A. 6646)

3) Coercion of subordinates to vote for oragainst any candidate (Sec. 261d, B.P. 881)

4) Dismissal of employees, laborers, ortenants for refusing or failing to vote for anycandidate (Sec. 261d(2), B.P. 881)

5) Being a flying voter (Sec. 261z (2), B.P.881)

5. Counting of Votes

1) Tampering, increasing, decreasing votes, orrefusal to correct tampered votes afterproper verification and hearing by anymember of the board of election inspectors[Sec. 27b, R.A. 6646] A special election offense to be known

as electoral sabotage and the penalty tobe imposed shall be life imprisonment.[Sec. 42, RA 9369]

2) Refusal to issue to duly accredited watchersthe certificate of votes cast and theannouncement of the election, by anymember of the board of election inspectors[Sec. 27c, R.A. 6646]

6. Canvassing

Any chairperson of the board of canvasserswho fails to give notice of meeting toother members of the board, candidate orpolitical party as required (Sec. 27e, R.A.6646)

7. Acts of Government or Public Officers

1) Appointment of new employees, creation ofnew positions, promotion, or giving salaryincreases within the election period (Sec.261g, B.P. 881)

2) Transfer of officers and employees in thecivil service within the election periodwithout the prior approval of the COMELEC(Sec. 261h, B.P. 881)

3) Intervening of public officers and employeesin the civil service in any partisan politicalactivity (Sec. 261i, B.P. 881)

4) Use of public funds for an election campaign(Sec. 261o, B.P. 881)

5) Illegal release of prisoners before and afterelection (Sec. 261n, B.P. 881)

6) Release, disbursement or expenditure ofpublic funds during the prohibited period(Sec. 261v, B.P. 881)

7) Construction of public works, etc. during theprohibited period (Sec. 261w, B.P. 881)

8) Suspension of elective local officials duringthe election period without prior approval ofthe COMELEC (Sec. 261x, B.P. 881)

8. Coercion, Intimidation, Violence

1) Coercion of election officials and employees2) Threats, intimidation, terrorism, use of

fraudulent devices or other forms of coercion(Sec. 261e, B.P. 881)

3) Use of undue influence (Sec. 261j, B.P.881)

4) Carrying deadly weapons within theprohibited area (Sec. 261p, B.P. 881)

5) Carrying firearms outside residence or placeof business (Sec. 261q, B.P. 881)

6) Organization or maintenance of reactionforces, strike forces, or similar forces duringthe election period (Sec. 261u, B.P. 881)

9. Other Prohibitions

1) Unauthorized printing of official ballots andelection returns with printing establishmentsthat are not under contract with theCOMELEC (Sec. 27a, R.A. 6646)

2) Wagering upon the results of elections (Sec.261c, B.P. 881)

3) Sale, etc. of intoxicating liquor on the dayfixed by law for the registration of voters inthe polling place, or the day before theelection or on election day (Sec. 261dd (1),B.P. 881)

4) Opening booths or stalls within 30 meters ofany polling place (Sec, 261dd (2), B.P. 881)

5) Holding fairs, cockfights, etc. on election day(Sec. 261dd (3), B.P. 881)

6) Refusal to carry election mail during theelection period (Sec. 261dd (4), B.P. 881).In addition to the prescribed penalty, suchrefusal constitutes a ground for cancellationor revocation of certificate of publicconvenience or franchise.

7) Discrimination in the sale of air time (Sec.261dd (5), B.P. 881) In addition to theprescribed penalty, such refusal constitutesa ground for cancellation or revocation of thefranchise.

Good faith is not a defense, as electionoffenses are generally mala prohibita.

10. Penalties

For individuals Imprisonment of not less than 1 year but

not more than 6 years, without probation


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[Sec. 264, B.P. 881] Disqualification to hold public office Deprivation of the right of suffrage

For a Foreigner Imprisonment of not less than 1 year but

not more than 6 years (withoutprobation);

Deportation after service of sentence

For a Political Party Payment of a fine not less than P10,000

after a criminal conviction

Persons Required by Law to Keep Prisonersin their Custody: For prisoners illegallyreleased from any penitentiary or jail duringthe prohibited period, where such prisonerscommit any act of intimidation, terrorism orinterference in the election, prison mayor inits maximum period. [Sec. 264, B.P. 881]

E. Arrests in Connection with ElectionCampaign

Only upon a warrant of arrest issued by acompetent judge after all the requirementsof the Constitution have been strictlycomplied with.

F. Prescription

5 years from the date of their commission. If thediscovery of the offense be made in an electioncontest proceeding, the period of prescriptionshall commence on the date on which thejudgment in such proceedings becomes finaland executory. [Sec. 267, B.P. 881]

G. Prohibited Acts Under R.A. 9369

1. Utilizing without authorization, tamperingwith, damaging, destroying or stealing:i. Official ballots, election returns, and

certificates of canvass of votes used inthe system; and

ii. Electronic devices or their components,peripherals or supplies used in the AESsuch as counting machine, memorypack/diskette, memory pack receiverand computer set

2. Interfering with, impeding, absconding forpurpose of gain, preventing the installationor use of computer counting devices and theprocessing, storage, generation and

transmission of election results, data orinformation

3. Gaining or causing access to using, altering,destroying or disclosing any computer data,program, system software, network, or anycomputer-related devices, facilities,hardware or equipment, whether classifiedor declassified

4. Refusal of the citizens' arm to present forperusal its copy of election return to theboard of canvassers

5. Presentation by the citizens' arm oftampered or spurious election returns

6. Refusal or failure to provide the dominantmajority and dominant minority parties or thecitizens'' arm their copy of election returnsand

7. The failure to post the voters' list within thespecified time, duration and in thedesignated location shall constitute anelection offense on the part the electionofficer concerned."

PENALTYi. imprisonment of 8 years and one day to

12 years without possibility of paroleii. perpetual disqualification to hold public

and any non-elective public office andiii. deprivation of the right of suffrage.

Exception: Those convicted of the crime ofelectoral sabotage, which includes acts oroffenses committed in any of the followinginstances:

National elective office:a. When the tampering, increase

and/or decrease of votesperpetrated or the refusal to creditthe correct votes or to deducttampered votes

b. is/are committed in the election of anational elective office which isvoted upon nationwide and

c. the tampering, increase and/ ordecrease votes refusal to credit thecorrect votes or to deduct tamperedvotes, shall adversely affect theresults of the election to the saidnational office to the extent thatlosing candidate/s is /are made toappear the winner/s;


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Regardless of the elective officeinvolved, when the tampering, increaseand/or decrease of votes committed orthe refusal to credit the correct votes orto deduct tampered votes perpetrateda. is accomplished in a single election

document or in the transposition ofthe figure / results from one electiondocument to another and

b. involved in the said tamperingincrease and/or decrease or refusalto credit correct votes or deducttampered votes exceed 5,000 votes,and that the same adversely affectsthe true results of the election

Any and all other forms or tamperingincrease/s and/ or decrease/s of votesperpetuated or in cases of refusal tocredit the correct votes or deduct thetampered votes, where the total votesinvolved exceed 10,000 votes

PENALTY - Any and all other personsor individuals determined to be inconspiracy or in connivance with themembers of the BEIs or BOCs involved,shall be meted the same penalty of lifeimprisonment.

- end of Election Law -


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LAW ON PUBLIC OFFICERSTable of Contents

Chapter I. Public Office and Officers .........234A. Public Office ......................................234

1. Definition .......................................2342. Purpose.........................................2353. Nature ...........................................2354. Elements .......................................2355. Public Office v. Public Employment

2356. Public Office v. Public Contract ....2367. No vested right to public office. ....2368. Public Office is not Property. ........2369. Creation of Public Office ...............23610. Methods of Organizing PublicOffices 23711. Modification and Abolition of PublicOffice 23712. Estoppel in Denying Existence ofOffice 237

B. Public Officer.....................................2371. Definition .......................................2372. A Person Cannot be Compelled toAccept a Public Office. ..........................2383. Public Officer’s Power is Delegated(not Presumed)......................................238

C. Classification of Public Offices andPublic Officers............................................239D. De Facto Officers ..............................239

1. De Facto Doctrine.........................2392. De Facto Officer Defined ..............2393. Elements of a De Facto Officership

2404. Office created under anunconstitutional statute..........................2415. Legal Effect of Acts of De FactoOfficers ..................................................2416. Liabilities of De Facto Officers ......2417. Right to Compensation of De FactoOfficer ....................................................241

Chapter II. Eligibility and Qualifications ....243A. Definition ...........................................243B. Power to Prescribe Qualifications .....243C. Time of Possession of Qualifications 244D. Eligibility is Presumed .......................244E. Qualifications Prescribed ByConstitution ................................................244F. Religious Test or Qualification is notRequired ....................................................245G. Disqualifications to Hold Public Office

245

Chapter III. Formation of Official Relation .248A. Modes of Commencing Official Relation

248

B. Election .............................................248C. Appointment......................................248

1. Definition.......................................2482. Nature of Power to Appoint ..........2483. Classification of Appointments .....2484. Steps in Appointing Process.........2495. Presidential Appointees................249

D. Qualification Standards andRequirements under the Civil Service Law250

1. Qualification Standards ................2502. Political Qualifications for an Office

2503. No Property Qualifications............2504. Citizenship ....................................2505. Effect of Removal of QualificationsDuring the Term ....................................2516. Effect of Pardon upon theDisqualification to Hold Public Office ....251

E. Discretion of Appointing Official ........251F. Effectivity of Appointment .................251G. Effects of a Complete, Final andIrrevocable Appointment............................252H. Civil Service Commission’s (CSC’s)Jurisdiction.................................................252I. Appointments to the Civil Service .....252

POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

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Chapter I. Public Office and Officers

A. PUBLIC OFFICE1. DEFINITION2. PURPOSE3. NATURE4. ELEMENTS5. PUBLIC OFFICE V. PUBLIC EMPLOYMENT6. PUBLIC OFFICE V. PUBLIC CONTRACT7. NO VESTED RIGHT TO PUBLIC OFFICE8. PUBLIC OFFICE V. PROPERTY9. CREATION OF PUBLIC OFFICE10. METHODS OF ORGANIZING PUBLIC

OFFICE11. MODIFICATION AND ABOLITION OF

PUBLIC OFFICE12. ESTOPPEL IN DENYING EXISTENCE OF

OFFICEB. PUBLIC OFFICER

1. DEFINITION2. A PERSON CANNOT BE COMPELLED TO

ACCEPT PUBLIC OFFICE; EXCEPTIONS3. PUBLIC OFFICER’S POWER IS

DELEGATED, NOT PRESUMEDC. CLASSIFICATION OF PUBLIC OFFICES AND

PUBLIC OFFICERSD. DE FACTO OFFICERS

1. DE FACTO DOCTRINE2. DEFINITION OF DE FACTO OFFICER

A. DE FACTO V. DE JUREB. OFFICER DE FACTO V. INTRUDER

3. ELEMENTS OF DE FACTO OFFICERSHIP4. OFFICE CREATED UNDER AN

UNCONSTITUTIONAL STATUTE5. LEGAL EFFECT OF ACTS OF DE FACTO

OFFICERS6. LIABILITIES OF DE FACTO OFFICERS

7. RIGHT TO COMPENSATION OF DEFACTO OFFICER

A. Public Office

1. Definition

The term "public office" is frequently used torefer to the right, authority and duty, createdand conferred by law, by which, for a givenperiod either fixed by law or enduring at thepleasure of the creating power, an individualis invested with some portion of thesovereign functions of government, to beexercised by that individual for the benefit ofthe public. [Fernandez v. Sto. Tomas(1995)]

Breakdown of the definition: (nature) right, authority and duty (origin) created and conferred by law (duration) by which for a given period –

either:1) fixed by law or

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Prof. Gisella Dizon-ReyesFaculty Editor

Ria DoocLead Writer

Dianne PatawaranMike Rivera

Writers

POLITICAL LAW


ACADEMICS COMMITTEE




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DESIGN & LAYOUT



LECTURES COMMITTEE


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LOGISTICS

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Members


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2) enduring at the pleasure of theappointing power

an individual is invested with someportion of the sovereign functions of thegovernment

(purpose) to be exercised by him for thebenefit of the public.

2. Purpose

to effect the end for the government’sinstitution : common good;

NOT profit, honor, or private interest of anyperson, family or class of persons [63 AmJur 2d 667]

3. Nature

Philippine ConstitutionArt. XISec. 1. Public office is a public trust. Public officersand employees must, at all times, be accountable tothe people, serve them with utmost responsibility,integrity, loyalty, and efficiency; act with patriotismand justice, and lead modest lives.

Public office is a responsibility, not a right.[Morfe v. Mutuc (1968)]

4. Elements

i. Created by law or by authority of law Public office must be created by:

Constitution National Legislation Municipal or other body’s legislation,

via authority conferred by theLegislature

The first element defines the mode ofcreation of a public office while the otherelements illustrate its characteristics.

ii. Possess a delegation of a portion of thesovereign powers of government, to beexercised for the benefit of the public

There are certain GOCCs which, thoughcreated by law, are not delegated with aportion of the sovereign powers of thegovernment (those that are purelyproprietary in nature), and thus may not beconsidered as a Public Office.

iii. Powers conferred and duties imposed mustbe defined, directly or impliedly

iv. Duties must be performed independentlyand without the control of a superior powerother than the law, UNLESS for duties of an

inferior or subordinate office that created orauthorized by the Legislature and whichinferior or subordinate office is placed underthe general control of a superior office orbody Defined as unhindered performance.

v. Must have permanence and continuity

Note: The elements of permanence andcontinuity are dispensable.

On the dispensability of the element ofpermanence: an example is the public officeof the Board of Canvassers, yet its dutiesare only for a limited period of time.

On the dispensability of the element ofcontinuance: Mechem in one case statesthat the “the most importantcharacteristic” in characterizing aposition as a public office is theDELEGATION to the individual of someof the sovereign functions ofgovernment. Here, the court held that Laurel, as chair

of the National Centennial Commission(NCC), is a public officer. The publicoffice of NCC was delegated and isperforming executive functions: itenforces the conservation andpromotion of the nation’s historical andcultural heritage.

Such delegated function is a policyembodied in the Constitution. It isinconsequential that Laurel was notcompensated during his tenure. A salaryis a usual (but not necessary) criterionfor determining the nature of a position.Also, the element of continuance is notindispensable. [Laurel v. Desierto(2002)]

- as in the case of Ad Hoc Bodies orcommissions

5. Public Office v. Public Employment

Public employment is broader than publicoffice. All public office is public employment,but not all public employment is a publicoffice.

Public employment as a position lacks eitherone or more of the foregoing elements of apublic office.(Bernard v. Humble [182 S.W. 2d. 24.Cited by De Leon, page 8-9])

1

- created by contract rather than by force oflaw

1ALL DE LEON CITATIONS BASED ON: De Leon, Hector.

THE LAW ON PUBLIC OFFICERS AND ELECTION LAW.Rex Bookstore (2000).


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the most important characteristic whichdistinguishes an office from an employmentis that: the creation and conferring of an office

involves a delegation to the individual ofsome of the sovereign functions ofgovernment, to be exercised by him forthe benefit of the public, and

that the same portion of the sovereigntyof the country, either legislative,executive or judicial, attached, for thetime being, to be exercised for the publicbenefit.

Unless the powers so conferred are of thisnature, the individual is not a public officer.[Laurel v. Desierto (2002)]

6. Public Office v. Public Contract

Public Office Public ContractHowCreated

Incident ofsovereignty.Sovereignty isomnipresent.

Originates fromwill of contractingparties.

Object To carry out thesovereign as well asgovernmentalfunctions affectingeven persons notbound by thecontract.

Obligationsimposed only uponthe persons whoentered into thecontract.

SubjectMatter

A public officeembraces the ideaof tenure, duration,continuity, and theduties connectedtherewith aregenerally continuingand permanent.

Limited duration andspecific in its object.Its terms define andlimit the rights andobligations of theparties, and neithermay departtherefrom withoutthe consent of theother.

Scope Duties that aregenerally continuingand permanent.

Duties are veryspecific to thecontract.

Wheredutiesaredefined

The law Contract

7. No vested right to public office.

GENERAL RULE: A public office, being a mereprivilege given by the State, does not vest anyright in the holder of the office. This rule applieswhen the law is clear.

EXCEPTION: When the law is vague, theperson’s holding of the office is protected and heshould not be easily deprived of his office.

A public office is neither property nor apublic contract. Yet the incumbent has, in a

sense, a right to his office. If that right is tobe taken away by statute, the termsshould be clear. [Segovia v. Noel (1925)]

8. Public Office is not Property.

A public office is not the property of thepublic officer within the meaning of the dueprocess clause of the non-impairment of theobligation of contract clause of theConstitution. It is a public trust/agency. Due process

is violated only if an office is consideredproperty. However, a public office is notproperty within the constitutionalguaranties of due process. It is apublic trust or agency. As publicofficers are mere agents and not rulersof the people, no man has a proprietaryor contractual right to an office.[Cornejo v. Gabriel (1920)]

It is personal. Public office beingpersonal, the death of a public officerterminates his right to occupy thecontested office and extinguishes hiscounterclaim for damages. His widowand/or heirs cannot be substituted in thecounterclaim suit. [Abeja v. Tañada(1994)]

Exceptions: In quo warranto proceedings relating

to the question as to which of 2 personsis entitled to a public office

In an action for recovery ofcompensation accruing by virtue of thepublic office

9. Creation of Public Office

Modes of Creation of Public Office by the Constitution by statute / law by a tribunal or body to which the power

to create the office has been delegated

How Public Office is Created GENERAL RULE: The creation of a

public office is PRIMARILY a LegislativeFunction.

EXCEPTIONS: where the offices are created by the

Constitution; where the Legislature validly

delegates such power.

Legislature should Validly Delegate thePower to Create a Public Office


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Or else, the office is inexistent. ThePresident’s authority to "reorganizewithin one year the different executivedepartments, bureaus and otherinstrumentalities of the Government" inorder to promote efficiency in the publicservice is limited in scope and cannot beextended to other matters not embracedtherein. [UST v. Board of Tax Appeals(1953)]

Therefore, an executive orderdepriving the Courts of First Instance ofjurisdiction over cases involvingrecovery of taxes illegally collected isnull and void, as Congress alone hasthe "power to define, prescribe andapportion the jurisdiction of the variouscourts." [Art. VIII sec. 2, 1987Constitution]

But note: No law shall be passedincreasing the appellate jurisdiction ofthe Supreme Court as provided in thisConstitution without its advice andconcurrence. [Art. VI, sec. 30, 1987Constitution]

10. Methods of Organizing Public Offices

Method Composition EfficiencySingle-head

one head assistedby subordinates

Swifter decision andactionbut may sometimesbe hastily made

BoardSystem

collegial body forformulating policesand implementingprograms

Mature studies anddeliberations butmay be slow inresponding to issuesand problems

11. Modification and Abolition of PublicOffice

GENERAL RULE: The power to create anoffice includes the power to modify orabolish it (i.e. Legislature generally has thispower)

EXCEPTIONS: Where the Constitution prohibits such

modification / abolition; Where the Constitution gives the people

the power to modify or abolish the office[i.e. Recall]

Abolishing an office also abolishesunexpired term. The legislature’sabolition of an office (i.e. court) alsoabolishes the unexpired term. Thelegislative power to create a court

carries with it the power to abolish it.[Ocampo v. Sec. of Justice (1955)]

Is Abandonment equivalent to Abolition?When a public official voluntarily accepts anappointment to an office newly created bylaw -- which new office is incompatiblewith the former -- he will be considered tohave abandoned his former office.

Except when the public official isconstrained to accept because the non-acceptance of the new appointment wouldaffect public interest. (no abandonment)[Zandueta v. De La Costa (1938)]

12. Estoppel in Denying Existence ofOffice

A person is estopped from denying that hehas occupied a public office when he hasacted as a public officer; more so when hehas received public monies by virtue of suchoffice. [Mendenilla v. Onandia (1962)]

B. Public Officer

1. Definition

(What he is) He performs governmentalpublic functions / duties which involve theexercise of discretion ( not clerical ormanual)

(How he became Public Officer) by virtue ofdirect provision of law, popular election, orappointment by competent authority.

(Who ARE Public Officers)Administrative CodeSec. 2.(14) The term “officer” includes any government

employee, agent, or body authorized toexercise governmental power in performingparticular acts or functions

Persons in authority and their agents.Article 152, Revised Penal Code.

Revised Penal CodeArt 203. Who are public officers—for thepurpose of applying the provisions of this andthe preceding titles of this book, any personwho, by direct provision of the law, popularelection or appointment by competent authority,shall take part in the performance of publicfunctions in the Government of the PhilippineIslands, or shall perform in said Government orin any of its branches public duties as anemployee, agent or subordinate official of anyrank or class, shall be deemed to be a publicofficer


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A PERSON IN AUTHORITY is anyperson, either an individual or amember of a governmental body,who is directly vested withjurisdiction.o The barrio captains and

barangay chairpersons areincluded.

o For RPC Articles 148 [DirectAssaults] and 151 [Resistanceand Disobedience], teachers,professors, and personscharged with the supervision ofpublic or duly recognized privateschools, colleges anduniversities are included.

An AGENT of a person in authorityis charged with the maintenance ofpublic order and the protection andsecurity of life and property.o They become such either by

direct provision of law, byelection or by a competentauthority’s appointment.

o Examples are barrio captain,barrio councilman, barriopoliceman, barangay leader,and any person who comes tothe aid of persons in authority.

Temporary performer of public functions.

A person performing public functions- even temporarily – is a publicofficial. Here, a laborer temporarily incharge of issuing summons andsubpoenas for traffic violations in ajudge's sala was convicted for briberyunder RPC 203.

According to the Court, the law iscomprehensive: “who, by directprovision of law, popular election orappointment by competent authority,shall take part in the performance ofpublic functions in the PhilippineGovernment, or shall perform in saidgovernment or any of its branches,public duties as an employee, agent orsubordinate official or any rank or class[Maniego v. People (1951)]

Money order-sorter and –filer.A person sorting and filing money ordersin the Auditor's Office of the Bureau ofPosts is obviously doing a publicfunction or duty. Such person here wasconvicted for infidelity in the custody ofdocuments. [People v. Paloma (1997)]

(Who are NOT Public Officers) Special policemen salaried by a private

entity and patrolling only the premises ofsuch private entity [Manila TerminalCo. v. CIR (1952)]

Concession forest guards [MarthaLumber Mill v. Lagradante (1956)]

Company cashier of a privatecorporation owned by the government[Tanchoco v. GSIS (1962)]

2. A Person Cannot be Compelled toAccept a Public Office.

EXCEPTIONS: When citizens are required, under

conditions provided by law, to renderpersonal military or civil service (seeSec. 4, Art. II, 1987 Const.);

When a person who, having beenelected by popular election to a publicoffice, refuses without legal motive to besworn in or to discharge the duties ofsaid office. This is a felony.

Art 234, RPC: Refusal to dischargeelective office- the penalty of arrestomayor or a fine not exceeding 1,000pesos, or both, shall be imposed uponany person who, having been elected bypopular election to a public office, shallrefuse without legal motive to be swornin or to discharge the duties of saidoffice.

3. Public Officer’s Power is Delegated(not Presumed)

A public official exercises power, not rights.The government itself is merely an agencythrough which the will of the state isexpressed and enforced. Its officerstherefore are likewise agents entrusted withthe responsibility of discharging its functions.As such, there is no presumption thatthey are empowered to act. There mustbe a DELEGATION of such authority,either express or implied. In the absenceof a valid grant, they are devoid of power.[Villegas v. Subido (1971)]


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C. Classification of Public Offices andPublic Officers

Creation ConstitutionalStatutory

Public Body Served NationalLocal

Department of government towhich their functions pertain

LegislativeExecutiveJudicial

Nature of functions CivilMilitary

Exercise of Judgment orDiscretion

Quasi-judicialMinisterial

Legality of Title to office De JureDe Facto

Compensation LucrativeHonorary

D. De Facto Officers

1. De Facto Doctrine

It is the doctrine that a person who isadmitted and sworn into office by the properauthority is deemed to be rightfully insuch office until:(a) he is ousted by judicial declaration in a

proper proceeding; or(b) his admission thereto is declared void.

Doctrine’s Purpose: to ensure the orderlyfunctioning of government. The publiccannot afford to check the validity of theofficer's title each time they transact withhim.

2. De Facto Officer Defined

One who has the reputation of being theofficer that he assumes to be, and yet is nota good officer in point of law. [Torres v.Ribo (1948)]

He must have: acted as an officer for such length of

time, under color of title and under such

circumstances of reputation oracquiescence by the public and publicauthorities,

as to afford a presumption of election orappointment, and

induce people, without inquiry, andrelying on the supposition that he is theofficer he assumes to be, to submit to orinvoke his action.

A person is a de facto officer when theduties of his office are exercised under ANYof the following circumstances:1. There is no known appointment or

election, but people are induced bycircumstances of reputation oracquiescence to suppose that he is theofficer he assumes to be.Consequently, people do not toinquire into his authority, and theysubmit to him or invoke his action;

2. He possessed public office undercolor of a known and validappointment or election, but he failedto conform to some precedentrequirement or condition (e.g., taking anoath or giving a bond);

3. He possessed public office under colorof a known election or appointment, butsuch is VOID because: He’s ineligible; The electing or appointing body is

not empowered to do such; His exercise of his function was

defective or irregular; (Important) The public does NOT

KNOW of such ineligibility, want ofpower, or defect being.

He possessed public office under colorof an election or an appointment by orpursuant to a public, unconstitutionallaw, before the same is adjudged tobe such. What is unconstitutional is the

officer’s appointment to an office notlegally existing, (not creation of anunconstitutional office). [Norton v.County of Shelby (1886)]


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a. Officer De Jure v. Officer De Facto(Asked in 2000, 2004)

De Jure De FactoRequisites A de jure office exists;

He is legally qualified for the office;

He is lawfully chosen to such office;

He undertakes to perform the duties ofsuch office according to law’s prescribedmode.

De jure office;

He assumed office under color of right orgeneral acquiescence by the public;

He actually and physically possessedthe office in good faith.

Basis ofAuthority

Right:He has the lawful right / title to the office

Reputation: He possesses office andperforms its duties under color of right,but he is not technically qualified to actin all points of law

How ousted Cannot be ousted. In a direct proceeding (quo warranto);(≠ collaterally)

Validity of officialacts

Valid, subject to exceptions (e.g., actingbeyond his scope of authority, etc.)

Valid as to the public until his title to theoffice is adjudged insufficient.

Rule onCompensation

Rightfully entitled to compensation;

The principle "No work, no pay" isinapplicable to him.

Conditionally entitled to receivecompensation: only when no de jureofficer is declared;

He is paid only for actual servicesrendered.

b. Officer De Facto v. Intruder

De Facto IntruderNature He becomes officer under any of the 4

circumstances discussed under Part II(above).

He possesses office and performsofficial acts without actual or apparentauthority.

Basis of authority Color of right or title to office None. Neither lawful title nor color ofright to office.

Validity of"official" acts

Valid as to the public until his title to theoffice is adjudged insufficient

Absolutely void; His acts can beimpeached at any time in anyproceeding (unless and until hecontinues to act for a long time, creatinga presumption of his right to act) (DeLeon, 119)

Rule oncompensation

Entitled to receive compensation onlywhen no de jure officer is declared andonly for actual services rendered.

Not entitled to compensation at all.

An intruder / usurper may be presumed a defacto officer with the passage of time, whenthe public presumes in their minds IN GOODFAITH that the intruder is rightfully acting asa public officer.

3. Elements of a De Facto Officership

i. A validly existing public office;ii. Actual physical possession of the office in

good faith;iii. Color of title to the office:

a. Reputation or acquiescence;

b. Known and valid appointment or electionbut the officer failed to conform to alegal requirement

c. Known appointment or election but voidbecause of ineligibility of the officer, orwant of authority of the appointing orelecting authority, or because of anirregularity in his appointment orelection, such ineligibility, want ofauthority or irregularity being unknownto the public


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d. Known appointment or election pursuantto an unconstitutional law beforedeclaration of unconstitutionality

Who are NOT considered De FactoOfficers? A judge who has accepted an

appointment as finance secretary andyet renders a decision after hisacceptance: if he has ceased to bejudge by actually accepting and enteringinto some other office and has actuallyentered upon the performance of theduties of the other office, it is difficult tounderstand how he can still beconsidered as actually occupying andperforming the duties of the office whichhe had abandoned and vacated. Anabandonment and a vacation of anoffice is inconsistent and repugnantto the idea of actually continuing toperform the duties of such office;[Luna v. Rodriguez (1917)]

A judge whose position has alreadybeen lawfully abolished, and yetpromulgates a decision in a criminalcase after the abolition and over thefiscal’s objection [People v. So (1995)]

4. Office created under anunconstitutional statute

The prevalent view is that a person appointedor elected in accordance with a law laterdeclared to be unconstitutional may beconsidered de facto at least before thedeclaration of unconstitutionality.

5. Legal Effect of Acts of De FactoOfficers

[Monroy v. CA (1967)]

As regards the officers themselves: A partysuing or defending in his own right as a publicofficer must show that he is an officer de jure.It is not sufficient that he be merely a defacto officer.

As regards the public and third persons: Theacts of a de facto officer are valid as to thirdpersons and the public until his title tooffice is adjudged insufficient. RATIONALE: The doctrine is intended not

for the protection of the public officer, butfor the protection of the public andindividuals who get involved in the officialacts of persons discharging the duties of apublic office.

De Facto Officer’s Official Acts are not subjectto collateral attack

RULE: A de facto officer’s and his acts’validity cannot be collaterally questioned(in proceedings where he is not a party, orwere not instituted to determine the veryquestion). REMEDY: Quo warranto proceedings

filed by: The person claiming entitlement

to the office; The Republic of the Philippines

(represented by the Solicitor-General or a public prosecutor).

6. Liabilities of De Facto Officers

(De Leon, 130-131)

A de facto officer generally has the samedegree of liability in accountability for officialacts like a de jure officer.

The de facto officer may be liable for allimposable penalties for ANY of the followingacts: usurping or unlawfully holding office; exercising the functions of public office

without lawful right; ineligibility for the public office as required

by law The de facto officer cannot excuse

responsibility for crimes committed in hisofficial capacity by asserting his de factostatus.

7. Right to Compensation of De FactoOfficer

GENERAL RULE: None. A de facto officercannot sue for the recovery of salary, fees orother emoluments attached to the office, forthe duties he has performed. His acts, as faras he himself is concerned, are void. (63AAm. Jur. 2d 1094-1095)

the rightful incumbent may recover from thede facto officer the salary received by thelatter during his wrongful tenure, eventhough he entered into the office in goodfaith and under color of title.[ Monroy v CA(1967)]

EXCEPTIONS Where there is no de jure public officer, the

officer de facto who in good faith has hadpossession of the office and hasdischarged the duties pertaining thereto islegally entitled to the emoluments of theoffice. [Monroy v. CA [1967])

In Civil Liberties Union v. ExecutiveSecretary (1991), even as EO No. 284 wasdeclared unconstitutional because itallowed Cabinet members to hold multipleoffices in direct contravention of the


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Constitution, it was held that during theirtenure in the questioned positions, therespondents may be considered de factoofficers and as such entitled to theemoluments of the office/s for actualservice rendered.

A de facto officer, not having good title,takes the salaries at his risk and mustaccount to the de jure officer (when there isone) for whatever salary he received duringthe period of his wrongful tenure, even if heoccupied the office in good faith. BUT when the de jure officer assumed

another position under protest, forwhich she received compensation:while her assumption to the saidposition and her acceptance of thecorresponding emoluments do notconstitute abandonment of her rightfuloffice, she cannot recover full backwages for such. She is only entitled toback pay differentials between thesalary rates for the lower position sheassumed and the position she isrightfully entitled to. [Gen. Manager,Philippine Ports Authority v.Monserate (2002)]

POLITICAL LAW REVIEWER Chapter II. ELIGIBILITY and QUALIFICATIONS

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Chapter II. Eligibility and Qualifications

A. DEFINITIONSB. POWER TO PRESCRIBE QUALIFICATIONSC. TIME OF POSSESSION OF QUALIFICATIONSD. PRESUMPTION OF ELEGIBILITYE. QUALIFICATIONS USUALLY PRESCRIBEDF. RELIGIOUS TEST/QUALIFICATION IS NOT

REQUIREDG. DISQUALIFICATIONS TO HOLD PUBLIC

OFFICE

A. Definition

Eligibility: endowment / requirement /accomplishment that fits one for a publicoffice.

Qualification: endowment / act which aperson must do before he can occupy apublic office.

Note: Failure to perform an act required bylaw could affect the officer’s title to the givenoffice. Under BP 881, the office of anyelected official who fails or refuses to takehis oath of office within six months from hisproclamation shall be considered vacantunless said failure is for cause or causesbeyond his control. An oath of office is a qualifying

requirement for a public office. Onlywhen the public officer has satisfied thisprerequisite can his right to enter intothe position be considered plenary andcomplete. Until then, he has none at all,and for as long as he has not qualified,the holdover officer is the rightfuloccupant. [Lecaroz v. Sandiganbayan(1999)]

Once proclaimed and duly sworn inoffice, a public officer is entitled toassume office and to exercise thefunctions thereof. The pendency of anelection protest is not sufficient basis toenjoin him from assuming office or fromdischarging his functions. [Mendoza v.Laxina (2003)]

B. Power to Prescribe Qualifications

GENERAL RULE: Congress is empoweredto prescribe the qualifications for holdingpublic office.

In the absence of constitutional inhibition,Congress has the same right to providedisqualifications that it has to providequalifications for office. (De Leon, 23)

RESTRICTIONS on the Power of Congressto Prescribe Qualifications: Congress cannot exceed its

constitutional powers; Congress cannot impose conditions of

eligibility inconsistent with constitutionalprovisions;

The qualification must be germane tothe position ("reasonable relation" rule);

Where the Constitution establishesspecific eligibility requirements for aparticular constitutional office, theconstitutional criteria are exclusive, andCongress cannot add to them except ifthe Constitution expressly or impliedlygives the power to set qualifications.

Congress cannot prescribe qualificationsso detailed as to practically amount tomaking a legislative appointment: it isunconstitutional and therefore void forbeing a usurpation of executive power –examples: Extensions of the terms of office of

the incumbents; A proviso which limits the choices of

the appointing authority to only oneeligible, e.g. the incumbent Mayor ofOlongapo City; [Flores v. Drilon(1993)]

Designating an unqualified person.The People's Court Act, whichprovided that the President coulddesignate Judges of First Instance,Judges-at-large of First Instance orCadastral Judges to sit as substituteJustices of the Supreme Court intreason cases without themnecessarily having to possess therequired constitutional qualificationsof a regular Supreme Court Justice.;[Vargas v. Rilloraza (1948)]

Automatic transfer to a new office. Alegislative enactment abolishing aparticular office and providing for theautomatic transfer of the incumbentofficer to a new office created;[Manalang v. Quitorano (1954)]

Requiring inclusion in a list. Aprovision that impliedly prescribesinclusion in a list submitted by theExecutive Council of the Phil.Medical Association as one of thequalifications for appointment; andwhich confines the selection of themembers of the Board of MedicalExaminers to the 12 personsincluded in the list; [Cuyegkeng v.Cruz (1960)]


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C. Time of Possession of Qualifications

At the time specified by the Constitution orlaw.

If time is unspecified, 2 views:a. qualification during commencement of

term or induction into office;b. qualification / eligibility during election or

appointment(De Leon, 26-27)

Eligibility is a continuing nature, and mustexist throughout the holding of the publicoffice. Once the qualifications are lost, thepublic officer forfeits the office. No estoppel in ineligibility. Knowledge of

ineligibility of a candidate and failure toquestion such ineligibility before orduring the election is not a bar toquestioning such eligibility after suchineligible candidate has won and beenproclaimed. Estoppel will not apply insuch a case. [Castaneda v. Yap (1952)]

Citizenship requirement should bepossessed on start of term (i.e. ≠ on filing candidacy). The Local GovernmentCode does not specify any particulardate or time when the candidate mustpossess the required citizenship, unlikefor residence and age. The requirementis to ensure that no alien shall governour people and country or a unit ofterritory thereof. An official begins togovern or discharge his functions onlyupon proclamation and on start of histerm. This liberal interpretation givesspirit, life and meaning to our law onqualifications consistent with itspurpose. [Frivaldo v. COMELEC(1996)]

D. Eligibility is Presumed

IN FAVOR of one who has been elected orappointed to public office.

The right to public office should be strictlyconstrued against ineligibility.

(De Leon, 26)

E. Qualifications Prescribed ByConstitution

1. For President(Sec. 2, Art. VI, Constitution) and VicePresident (Sec. 3, Art. VII, Constitution) Natural-born citizen 40 years old on election day Philippine resident for at least 10 years

immediately preceding election day

2. For Senator(Sec. 3, Art. VI, Constitution) Natural-born citizen 35 years old on election day able to read and write registered voter resident of the Philippines for not less

than two years immediately precedingelection day

3. For Congressmen(Sec. 6, Art. VI, Constitution) Natural-born citizen 25 years old on election day able to read and write registered voter in district in which he

shall be elected resident thereof for not less than one

year immediately preceding election day

4. Supreme Court Justice Natural born citizen at least 40 years old 15 years or more as a judge or engaged

in law practice of proven competence, integrity, probity

and independence (C.I.P.I.)

5. Civil Service Commissioners(Sec. 1 [1], Art. IXB. Constitution) Natural-born citizen 35 years old at time of appointment proven capacity for public administration not a candidate for any elective position

in election immediately precedingappointment

6. COMELEC Commissioners(Sec. 1[1], Art. IXC) Natural-born citizen 35 years old at time of appointment college degree holder not a candidate for elective position in

election immediately precedingappointment

chairman and majority should bemembers of the bar who have beenengaged in the practice of law for atleast 10 years

7. COA Commissioners Natural-born citizen 35 years old at time of appointment CPA with >10 year of auditing

experience or Bar member engaged in practice of law

for at least 10 years


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Not candidates for any elective positionin election immediately precedingappointment.

“Practice of Law” defined. Practice of lawmeans any activity, in or out of court,which requires the application of law,legal procedure, knowledge, training andexperience. Generally, to practice law is togive notice or render any kind of servicewhich requires the use in any degree oflegal knowledge or skill. [Cayetano v.Monsod (1991)]

In the dissenting opinion of Justice Padilla inthe case of Cayetano v. Monsod, citingAgpalo, he stated that engaging in thepractice of law presupposes the existence oflawyer-client relationship. Hence, where alawyer undertakes an activity which requiresknowledge of law but involves no attorney-client relationship, such as teaching law orwriting law books or articles, he cannot besaid to be engaged in the practice of hisprofession or a lawyer

“Residency” defined. In election law,residence refers to domicile, i.e. the placewhere a party actually or constructively hashis permanent home, where he intends toreturn. To successfully effect a change ofdomicile, the candidate must prove an actualremoval or an actual change of domicile.[Aquino v. COMELEC (1995)]

Presumption in favor of domicile of origin.Domicile requires the twin elements ofactual habitual residence and animusmanendi (intent to permanently remain).Domicile of origin is not easily lost; it isdeemed to continue absent a clear andpositive proof of a successful change ofdomicile. [Marcos v. COMELEC (1995)]

F. Religious Test or Qualification is notRequired

Philippine ConstitutionArt. IIISec. 5. … No religious test shall be required for theexercise of civil or political rights.

G. Disqualifications to Hold PublicOffice

IN GENERAL: Individuals who lack ANY ofthe qualifications prescribed by theConstitution or by law for a public office are

ineligible (i.e. disqualified from holding suchoffice).

Authority: The legislature has the right toprescribe disqualifications in the samemanner that it can prescribe qualifications,provided that the prescribed disqualificationsdo not violate the Constitution.

General Constitutional Disqualifications1. Losing candidates cannot be appointed

to any governmental office within oneyear after such election. (Art. IX-B Sec.6)

2. Elective officials during their tenure areineligible for appointment or designationin ANY capacity to ANY public office orposition (Art. IX-B Sec. 7(1))

3. Appointive officials shall not hold anyother governmental position. Unless otherwise allowed by law or

his position’s primary functions (Art.IX-B Sec 7 (2))

Note: There is no violation whenanother office is held by a publicofficer in an ex officio capacity (whereone can’t receive compensation or otherhonoraria anyway), as provided by lawand as required by the primary functionsof his office. [ National AmnestyCommission v. COA (2004)]

Specific Constitutional Disqualifications

Public Officer DisqualificationsThe President, VicePresident, the Membersof the Cabinet and theirdeputies or assistants

shall not hold any otheroffice or employmentduring their tenure,UNLESS otherwiseprovided in theConstitution, (Art. VII,Sec. 13)

Senator or Member ofthe House ofRepresentatives

may not hold during histerm any other office oremployment in theGovernment, or anysubdivision, agency orinstrumentality thereof,including government -owned or -controlledcorporations or theirsubsidiaries

effect: or else he forfeitshis seat

shall also not beappointed to any officewhen such was created orits emoluments wereincreased during his term.(Art. VI, Sec 13)


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Members of theSupreme Court andother courts establishedby law

shall not be designated toany agency performingquasi-judicial oradministrative functions.(Art. VIII, Sec. 12)

Members of theConstitutionalCommission

Ombudsman and hisDeputies

shall not hold any otheroffice or employment[during their tenure]. (Art.IX-A, Sec. 2)(Art. XI, Sec. 8)

Members ofConstitutionalCommissions, theOmbudsman and hisDeputies

must not have beencandidates for anyelective position in theelections immediatelypreceding theirappointment (Art IX-B,Sec. 1; Art. IX-C, Sec. 1;Art. IX-D, Sec. 1; Art XI,Sec. 8)

Members ofConstitutionalCommissions, theOmbudsman and hisDeputies

are appointed to 7-yearterm, withoutreappointment (Sec. 1(2)of Arts. IX-B, C, D; Art.XI, Sec. 11)

The President’s spouseand relatives byconsanguinity or affinitywithin the fourth civildegree

shall not be appointedduring President’s tenureas Members of theConstitutionalCommissions, or theOffice of the Ombudsman,or as Secretaries,Undersecretaries,chairmen or heads ofbureaus or offices,including government-owned-or -controlledcorporations. (Art. VIII,Sec. 13)

Other Disqualifications1. Mental or physical incapacity

2. Misconduct or crime: persons convictedof crimes involving moral turpitude areUSUALLY disqualified from holdingpublic office.

3. Impeachment

4. Removal or suspension from office: notpresumed non-imposable when suchineligibility is not constitutional orstatutory declared.

5. Previous tenure of office: for example,an appointed Ombudsman is absolutelydisqualified for reappointment (ArticleXI, Constitution).

6. Consecutive terms limit:i. Vice-President = 2 consecutive

termsii. Senator = 2 consecutive terms

iii. Representative = 3 consecutiveterms

iv. Elective local officials = 3consecutive terms (Sec. 8, Art. X,Constitution)

Public officer’s voluntaryrenunciation of office for any lengthof time ≠ an interruption in the continuity of his service for the fullterm for which he was elected.

7. Holding more than one office: to preventoffices of public trust from accumulatingin a single person, and to preventindividuals from deriving, directly orindirectly, any pecuniary benefit byvirtue of their holding of dual positions.

Civil Liberties Union v. ExecutiveSecretary (1991): Section 7, Article IX-B of the

Constitution generally prohibitselective and appointive publicofficials from holding multiple officesor employment in the governmentunless they are otherwise allowedby law or by the primary functions oftheir position.

This provision does NOT cover thePresident, Vice-President andcabinet members – they aresubject to a stricter prohibitionunder Section 13 of Article VII.

To apply the exceptions found inSection 7, Article IX-B to Section 13,Article VII would obliterate thedistinction set by the framers ofthe Constitution as to the high-ranking officials of the Executivebranch.

However, public officials holdingpositions without additionalcompensation in ex-officiocapacities as provided by law andas required by their office’s primaryfunctions are not covered by theSection 13, Article VII prohibition.

8. Holding of office in the private sector: Section 7 (b)(1)of RA 6713 considers

unlawful for public officials andemployees during their incumbency toown, control, manage, or acceptemployment as officer employee,consultant, counsel, broker, agent,trustee or nominee in any privateenterprise regulated, supervised or


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licensed by their office unless expresslyallowed by law.

Section 7 of RA 6713 also generallyprovides for the prohibited acts andtransactions of public officials andemployees. Subsection (b)(2) prohibitsthem from engaging in the privatepractice of their profession during theirincumbency. As an exception, a publicofficial or employee can engage in thepractice of his or her profession underthe following conditions: first, the privatepractice is authorized by the Constitutionor by the law; and second, the practicewill not conflict, or tend to conflict, withhis or her official functions.

9. Relationship with the appointing power General Rule on Nepotism: The Civil

Service Decree (PD 807) prohibitsall appointments in the national andlocal governments or any branch orinstrumentality thereof made in favorof the relative of:i. appointing authority;ii. recommending authority;iii. chief of the bureau office; oriv. person exercising immediate

supervision over the appointee Relative: related within the third

degree of either consanguinity or ofaffinity.

Exceptions to rule on nepotism: persons employed in a

confidential capacity teachers physicians members of the Armed Forces

of the Philippines

10. Under the Local Government Code (sec.40)i. Sentenced by final judgment for an

offense involving moral turpitude orfor an offense punishable by 1 yearor more of imprisonment, within 2years after serving sentence;

ii. Removed from office as a result of anadministrative case;

iii. Convicted by final judgment forviolating the oath of allegiance tothe Republic;

iv. Dual citizenship;

Mercado v. Manzano (1999): Dual citizenship is different from

dual allegiance. The formerarises when, as a result of theconcurrent application of the

different laws of two or morestates, a person issimultaneously considered anational by the said states.

Dual allegiance, on the otherhand, refers to the situation inwhich a person simultaneouslyowes, by some positive act,loyalty to two or morestates. While dual citizenship isinvoluntary, dual allegiance isthe result of an individual’svolition.

[I]n including §5 in Article IV oncitizenship, the concern of theConstitutional Commission wasnot with dual citizens per se butwith naturalized citizens whomaintain their allegiance to theircountries of origin even aftertheir naturalization.

Hence, the phrase “dualcitizenship” in R.A. No. 7160,§40(d) and in R.A. No. 7854,§20 must be understood asreferring to “dualallegiance.”

v. Fugitive from justice in criminal ornon-political cases here or abroad;

vi. Permanent residents in a foreigncountry or those who have acquiredthe right to reside abroad andcontinue to avail of the same rightafter the effectivity of the LocalGovernment Code;

vii. Insane or feeble-minded.

POLITICAL LAW REVIEWER Chapter III. FORMATION of OFFICIAL RELATION

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Chapter III. Formation of Official Relation

A. MODES OF COMMENCING OFFICIALRELATION

B. ELECTIONC. APPOINTMENT

1. DEFINITION2. NATURE OF POWER TO APPOINT3. CLASSIFICATION OF APPOINTMENTS4. STEPS IN APPOINTING PROCESS5. PRESIDENTIAL APPOINTEES

D. QUALIFICATION STANDARDS ANDREQUIREMENTS UNDER THE CIVILSERVICE LAW1. QUALIFICATION STANDARDS2. POLITICAL QUALIFICATIONS FOR AN

OFFICE (I.E. MEMBERSHIP IN APOLITICAL PARTY)

3. NO PROPERTY QUALIFICATIONS4. CITIZENSHIP5. EFFECT OF REMOVAL OF

QUALIFICATIONS DURING THE TERM6. EFFECT OF PARDON UPON THE

DISQUALIFICATION TO HOLD PUBLICOFFICE

E. DISCRETION OF APPOINTING OFFICIALF. EFFECTIVITY OF APPOINTMENTG. EFFECTS OF A COMPLETE, FINAL AND

IRREVOCABLE APPOINTMENTH. CIVIL SERVICE COMMISSION’S (CSC’S)

JURISDICTIONI. APPOINTMENTS TO THE CIVIL SERVICE

A. Modes of Commencing OfficialRelation

1. Election2. Appointment3. Others:

i. Succession by operation of law;ii. Direct provision of law, e.g. ex-officio

officers

B. Election

Selection or designation by popular vote

C. Appointment

1. Definition

Designation AppointmentDefinition Imposition of

additionalduties uponexisting office

Appointingauthorityselects anindividual whowill occupy acertain publicoffice

Extent ofPowers

Limited Comprehensive

Security oftenure?

No. Yes.

Is prior/1stofficeabandonedwhen…

…a 2nddesignatedposition isassumed?NO

…a 2ndappointiveposition isassumed?Usually YES

Political. Appointment is generally a politicalquestion so long as the appointee fulfills theminimum qualification requirementsprescribed by law.

Vacancy for Validity. For the appointment tobe valid, the position must be vacant[Castin v. Quimbo (1983)]

2. Nature of Power to Appoint

The power to appoint is intrinsically anexecutive act involving the exercise ofdiscretion. [Concepcion v. Paredes(1921)]

Must be unhindered and unlimited byCongress. Congress cannot either appoint apublic officer or impose upon the Presidentthe duty to appoint any particular person toan office. The appointing power is theexclusive prerogative of the President,upon which no limitations may beimposed by Congress, EXCEPT those: requiring the concurrence of the

Commission on Appointments; and resulting from the exercise of the limited

legislative power to prescribe thequalifications to a given appointiveoffice. [Manalang v. Quitoriano (1954)]

The President’s power to appoint under theConstitution should necessarily have areasonable measure of freedom, latitude, ordiscretion in choosing appointees.[Cuyegkeng v. Cruz (1960)]

Where only one can qualify for the posts inquestion, the President is precluded fromexercising his discretion to choose whom toappoint. Such supposed power ofappointment, sans the essential element ofchoice, is no power at all and goes againstthe very nature of appointment itself. [Floresv. Drilon (1993)]

3. Classification of Appointments

Permanent: the permanent appointee:

must be qualified must be eligible


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is constitutionally guaranteedsecurity of tenure

(Duration) until lawful termination. Note: Conditional appointments are not

permanent.

Temporary: an acting appointment; the temporary appointee NEED NOT be

qualified or eligible; (No Security of Tenure) revocable at

will: just cause or valid investigationUNNECESSARY; an “acting” appointment is a

temporary appointment andrevocable in character.[Marohombsar v. Alonto (1991)]

A temporary appointee is like adesignated officer – they:o occupy a position in an acting

capacity ando do not enjoy security of tenure.

[Sevilla v. CA (1992)] Even a Career Service Officer

unqualified for the position isdeemed temporarily-appointed.Thus he does not enjoy security oftenure – he is terminable at will.

A public officer who later accepts atemporary appointment terminateshis relationship with his formeroffice. [Romualdez III v. CSC(1991)]

EXCEPT Fixed-Period TemporaryAppointments: may be revokedONLY at the period’s expiration.Revocation before expiration mustbe for a valid cause.

(Duration) until a permanentappointment is issued.

4. Steps in Appointing Process

For Appointments requiring confirmation:

Regular Appointments (NCIA)1. President nominates.2. Commission on Appointments

confirms.3. Commission issues appointment.4. Appointee accepts.

Ad-Interim Appointments (NIAC)1. President nominates.2. Commission issues appointment.3. Appointee accepts.4. Commission on Appointments

confirms.

For Appointments Not RequiringConfirmation (AIA)1. Appointing authority appoints.2. Commission issues appointment.3. Appointee accepts.

Note: If a person is appointed to the careerservice of the Civil Service, the Civil ServiceCommission must bestow attestation.

5. Presidential Appointees

Who can be nominated and appointed onlyWITH the Commission on Appointments’consent? (Art. VII, Sec. 16, 1987 Const.) Heads of the executive departments; Ambassadors; Other public ministers and consuls; Officers of the armed forces from the

rank of colonel or naval captain; Other officers whose appointments are

vested in him by the Constitution,including Constitutional Commissioners(Art. IX-B, Sec. 1 (2) for CSC; Art. IX-C, Sec. 1 (2) for COMELEC; Art. IX-D,Sec. 1 (2) for COA).

Who can the President appoint WITHOUTCA’s approval? All other officers of the government

whose appointments are not otherwiseprovided for by law;

Those whom he may be authorized bylaw to appoint;

Members of the Supreme Court; Judges of lower courts; Ombudsman and his deputies

Kinds of Presidential Appointments Regular: made by the President while

Congress is in session after thenomination is confirmed by theCommission of Appointments, andcontinues until the end of the term.

Ad interim: made while Congress is notin session, before confirmation by theCommission on Appointments;immediately effective and ceases to bevalid if disapproved or bypassed by theCommission on Appointments. This is apermanent appointment and it beingsubject to confirmation does not alter itspermanent character. Efficient. Recess appointment

power keeps in continuousoperation the business ofgovernment when Congress is notin session. The individual chosen


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may thus qualify and perform hisfunction without loss of time.

Duration. The appointment shallcease to be effective upon rejectionby the Commission onAppointments, or if not acted upon,at the adjournment of the nextsession, regular or special, ofCongress.

Permanent. It takes effectimmediately and can no longer bewithdrawn by the President once theappointee has qualified into office.

The fact that it is subject toconfirmation by the Commission onAppointments does not alter itspermanent character.

The Constitution itself makes anad interim appointment permanentin character by making it effectiveuntil disapproved by theCommission on Appointments oruntil the next adjournment ofCongress. [Matibay v. Benipayo(2002)]

Not Acting. An ad interimappointment is distinguishable froman “acting” appointment which ismerely temporary, good untilanother permanent appointment isissued.

Applicable to COMELECCommissionsers, being permanentappointments, do not violate theConstitutional prohibition ontemporary or acting appointments ofCOMELEC Commissioners.

By-passed Appointee may beReappointed. Commission onAppointments’ failure to confirm anad interim appointment is NOTdisapproval. An ad interimappointee disapproved by the COAcannot be reappointed. But a by-passed appointee, or one whoseappointment was not acted upon themerits by the COA, may beappointed again by the President.

D. Qualification Standards andRequirements under the Civil ServiceLaw

1. Qualification Standards

It enumerates the minimum requirements fora class of positions in terms of education,training and experience, civil serviceeligibility, physical fitness, and otherqualities required for successfulperformance. (Sec. 22, Book V,Administrative Code)

The Departments and Agencies areresponsible for continuously establishing,administering and maintaining thequalification standards as an incentive tocareer advancement. (Sec. 7, Rule IV,Omnibus Rules)

Such establishment, administration, andmaintenance shall be assisted and approvedby the CSC and shall be in consultation withthe Wage and Position Classification Office(ibid)

It shall be established for all positions in the1st and 2nd levels (Sec. 1, Rule IV,Omnibus Rules)

2. Political Qualifications for an Office

(i.e. membership in a political party)

GENERAL RULE: Political qualifications areNOT Required for public office.

EXCEPTIONS: Membership in the electoral tribunals of

either the House of Representatives orSenate (Art. VI, Sec. 17, 1987 Const.);

Party-list representation; Commission on Appointments; Vacancies in the Sanggunian (Sec. 45,

Local Government Code)

3. No Property Qualifications

Since sovereignty resides in the people, it isnecessarily implied that the right to vote andto be voted should not be dependent upon acandidate’s wealth. Poor people should alsobe allowed to be elected to public officebecause social justice presupposes equalopportunity for both rich and poor. [Maguerav. Borra and Aurea v. COMELEC (1965)]

4. Citizenship

Aliens not eligible for public office.

The purpose of the citizenship requirementis to ensure that no alien, i.e., no person


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owing allegiance to another nation, shallgovern our people and country or a unit ofterritory thereof. [Frivaldo v. COMELEC(1996)]

5. Effect of Removal of QualificationsDuring the Term

Termination from office.

6. Effect of Pardon upon theDisqualification to Hold Public Office

(Asked in 1999)

GENERAL RULE: Pardon will not restorethe right to hold public office. (Art. 36,Revised Penal Code)

EXCEPTIONS: When the pardon’s terms expressly

restores such (Art. 36, RPC); When the reason for granting pardon is

non-commission of the imputed crime.[Garcia v. Chairman, COA (1993)]

E. Discretion of Appointing Official

Presumed.Administrators of public officers, primarilythe department heads should be entrustedwith plenary, or at least sufficient, discretion.Their position most favorably determineswho can best fulfill the functions of avacated office. There should always be fullrecognition of the wide scope of adiscretionary authority, UNLESS the lawspeaks in the most mandatory andperemptory tone, considering all thecircumstances. [Reyes v. Abeleda (1968)]

Discretionary Act.Appointment is an essentially discretionarypower. It must be performed by the officer inwhom it is vested, the only condition beingthat the appointee should possess thequalifications required by law. [Lapinid v.CSC (1991)]

Scope. The discretion of the appointingauthority is not only in the choice of theperson who is to be appointed but also inthe nature and character of the appointmentintended (i.e., whether the appointment ispermanent or temporary).

Inclusive Power. The appointing authorityholds the power and prerogative to fulfill avacant position in the civil service.

The exercise of the power to transfer,reinstate, reemploy or certify is widely used(need not state reason)

To hold that the Civil Service Law requiresfilling up any vacancy by promotion, transfer,reinstatement, reemployment, or certificationIN THAT ORDER would be tantamount tolegislative appointment which is repugnantto the Constitution. What it does purport tosay is that as far as practicable theperson next in rank should be promoted,otherwise the vacancy may be filled bytransfer, reinstatement, reemployment orcertification, as the appointing power seesfit, provided the appointee is certified to bequalified and eligible. [Pineda v. Claudio(1969)]

Promotion of “next-in-rank” career officer isnot Mandatory. The appointing authorityshould be allowed the choice of men of hisconfidence, provided they are qualified andeligible.

When Abused, use Mandamus.Where the palpable excess of authority orabuse of discretion in refusing to issuepromotional appointment would lead tomanifest injustice, mandamus will lie tocompel the appointing authority to issue saidappointments. [Gesolgon v. Lacson(1961)]

“Upon recommendation” is not MerelyAdvisory.

Sec. 9. Provincial/City Prosecution Offices. [par.3] All provincial and city prosecutors and theirassistants shall be appointed by the Presidentupon the recommendation of the Secretary.

The phrase “upon recommendation ofthe Sec. of Justice” should beinterpreted to be a mere advice. It ispersuasive in character, BUT is notbinding or obligatory upon the person towhom it is made.

F. Effectivity of Appointment

Immediately upon appointing authority’sissuance. (Rule V, Sec. 10, OmnibusRules).


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G. Effects of a Complete, Final andIrrevocable Appointment

GENERAL RULE:An appointment, once made, is irrevocableand not subject to reconsideration. It vests a legal right. It cannot be taken

away EXCEPT for cause, and withprevious notice and hearing (dueprocess).

It may be issued and deemed completebefore acquiring the needed assent,confirmation, or approval of some otherofficer or body.

EXCEPTIONS: Appointment is an absolute nullity

[Mitra v. Subido (1967)]; Appointee commits fraud [Mitra v.

Subido, supra]; Midnight appointments

General Rule: A President or ActingPresident shall not appoint 2 monthsimmediately before the nextpresidential elections until his termends. (Art. VII, Sec. 15, 1987Const.)

Exception: Temporary appointmentsto executive positions whencontinued vacancies will prejudicepublic service or will endangerpublic safety.

H. Civil Service Commission’s (CSC’s)Jurisdiction

Exclusive Jurisdiction Disciplinary cases Cases involving “personnel action”

affecting the Civil Service employees Appointment through certification Promotion Transfer Reinstatement Reemployment Detail, reassignment Demotion Separation

Employment status Qualification standards

Recall of appointment. Includes the authorityto recall an appointment which has beeninitially approved when it is shown that thesame was issued in disregard of pertinentCSC laws, rules and regulations.

as opposed to Recall under Sec 69-75 of theLocal Government Code:

- Recall is a mode of removal of a publicofficial by the people before the end of histerm of office. [Garcia v. COMELEC, (1993)]

Review Appointee’s Qualifications.The only function of the CSC is to review theappointment in the light of the requirementsof the Civil Service Law, and when it findsthe appointee to be qualified and all otherlegal requirements have been otherwisesatisfied, it has no choice but to attest to theappointment. [Lapinid v. CSC (1991)]

What it cannot do. It cannot order the replacement of the

appointee simply because it considersanother employee to be better qualified.[Lapinid v. CSC (1991)]

The CSC cannot co-manage or be asurrogate administrator of governmentoffices and agencies.

It cannot change the nature of theappointment extended by the appointingofficer. [ Luego v. CSC (1986)]

I. Appointments to the Civil Service

SCOPE: Embraces all branches,subdivisions, instrumentalities and agenciesof the Government, including GOCCs withoriginal charters (Art. IX-B Sec. 2(1),Constitution)

Classes of Service

1. Career Service – Entrance based onmerit and fitness determined bycompetitive examinations, or based onhighly technical qualifications,opportunity for advancement to highercareer positions and security of tenure.

2. Non-career Service – Entrance onbases other than those of the usualtests. Tenure limited to a periodspecified by law or which iscoterminous with the appointingauthority or the duration of a particularproject. (i.e. elective officials,Department Heads and Members ofCabinet)

Requisites: Appoint only according to merit and

fitness, to be determined as far aspracticable.

Require a competitive examination. Exceptions: (Positions where

Appointees are exempt from


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Competitive ExaminationRequirements)o Policy determining - in which

the officer lays down principal orfundamental guidelines or rules;or formulates a method of actionfor government or any of itssubsidiaries

o Primarily Confidential – denotingnot only confidence in theaptitude of the appointee for theduties of the office but primarilyclose intimacy which ensuresfreedom of intercourse withoutembarrassment or freedom frommisgivings or betrayals onconfidential matters of the state(“Proximity Rule” as enunciatedin De los Santos v Mallare[1950])

o Highly Technical – requirespossession of technical skill ortraining in a superior degree.(i.e. City Legal Officer)

o NOTE: It is the nature of theposition which determineswhether a position is policydetermining, primarilyconfidential or highly technical

Other Personnel Actions Promotion is a movement from one

position to another with increase induties and responsibilities as authorizedby law and is usually accompanied byan increase in pay.

Next-in-rank Rule.o The person next in rank shall be

given PREFERENCE inpromotion when the positionimmediately above his isvacated.

o BUT the appointing authority stillexercises discretion and is notbound by this rule, although heis required to specify the“special reason or reasons” fornot appointing the officer next-in-rank.

Automatic Reversion Rule.o All appointments involved in a

chain of promotions must besubmitted simultaneously forapproval by the Commission.

o The disapproval of theappointment of a personproposed to a higher position

invalidates the promotion ofthose in the lower positions andautomatically restores them totheir former positions.

o However, the affected personsare entitled to payment ofsalaries for services actuallyrendered at a rate fixed in theirpromotional appointments.(Sec. 13 of the Omnibus RulesImplementing AdministrativeCode)

o Requisites:1. series of promotions2. all promotional

appointments aresimultaneously submitted tothe Commission forapproval

3. the Commissiondisapproves theappointment of a person toa higher position.

Appointment through Certification isissued to a person who is: selected from a list of qualified

persons certified by the Civil ServiceCommission from an appropriateregister of eligibles

qualified

Transfer is a movement from oneposition to another which is ofequivalent rank, level or salary withoutbreak in service. This may be imposed as an

administrative remedy. If UNconsented = violates security

of tenure. EXCEPTIONS:

o Temporary Appointeeo Career Executive Service

Personnel whose status andsalaries are based on ranks (≠ positions)

Reinstatement. It is technically theissuance of a new appointment and isdiscretionary on the part of theappointing power. It cannot be the subject of an

application for a writ of mandamus. Who may be reinstated to a position

in the same level for which he isqualified:o Any permanent appointee of a

career service position


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o No commission of delinquencyor misconduct, and is notseparated.

Same effect as ExecutiveClemency, which completelyobliterates the adverse effects of theadministrative decision which foundhim guilty of dishonesty. He isrestored ipso facto upon grant ofsuch. Application for reinstatement= unnecessary.

Detail is the movement of an employeefrom one agency to another without theissuance of an appointment. Only for a limited period. Only for employees occupying

professional, technical and scientificpositions.

Temporary in nature.

Reassignment. An employee may bereassigned from one organizational unitto another in the SAME agency. It is a management prerogative of

the CSC and any dept or agencyembraced in the Civil Service.

It does not constitute removalwithout cause.

Requirements:o NO reduction in rank, status or

salary.o Should have a definite date or

duration (c.f. Detail). Otherwise,a floating assignment = adiminution in status or rank.

Reemployment. Names of persons whohave been appointed permanently topositions in the career service and whohave been separated as a result ofreduction in force and/or reorganization,shall be entered in a list from whichselection for reemployment shall bemade.

- end of Law on Public Officers -


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LOCAL GOVERNMENT LAWTable of Contents

Chapter I. Basic Principles..........................258I. Nature and Status .............................258

A. Definition .......................................258B. Dual Nature...................................258

II. Principles of Local Government Law 259A. State Policy, Principles ofDecentralization.....................................259B. Local Autonomy............................259C. Decentralization ............................259C. Devolution .....................................260

III. The Local Government Code............260A. Effectivity.......................................260B. Scope............................................260C. Rules of Interpretation ..................260

Chapter II. Creation and Dissolution of LGUs.......................................................................261

I. Creation.............................................261A. General Provisions .......................261B. Specific Requirements..................261C. Authority to Create Local GovernmentUnits262D. Creation and Conversion of LGUs263E. Plebiscite.......................................264F. Beginning of Corporate Existence 264

II. Division and Merger; Abolition ..........266A. Division and Merger......................266B. Abolition ........................................266

III. Settlement of Boundary Disputes .267A. Jurisdictional Responsibility forSettlement of Boundary Dispute............267B. Appeal...........................................267C. Maintenance of the Status Quo ....267

Chapter III. General Powers andAttributes of LGUs .......................................268I. Powers in General ...............................268

A. Sources of Powers of LGUs..............268B. Classification of Powers of LGUs......268C. Execution of Powers .........................268

II. Political and Corporate Nature of LGUs268

III. Governmental Powers ....................269A. General Welfare ................................269

1. Police Power .................................2692. Limitations.....................................2703. Abatement of Nuisance ................2714. Closure of Roads ..........................271

B. Power to Generate Revenue ............272C. Eminent Domain................................273D. Basic Services and Facilities ............275E. Reclassification of Lands ..................276F. Corporate Powers .............................277G. Local Legislative Power ....................278

Chapter IV. Local Initiative and Referendum.......................................................................283

A. Definition ...........................................283B. Requirements....................................283C. Procedure .........................................283D. Effectivity of Local Propositions ........283E. Limitations on Initiatives....................283F. Limitations Upon Local LegislativeBodies........................................................284

Chapter V. Municipal Liability.....................285A. Specific Provisions making LGUs Liable

285B. Liability for Torts, Violation of the Lawand Contracts ............................................285C. Personal Liability of Public Official ....286

Chapter VI. Intergovernmental Relations –National Government and LGUs.................287

I. Executive Supervision.......................287A. 1987 Constitution, Art. X, Sec. 2 and4 287B. Administrative Code of 1987, Title XIIChapter I................................................287

II. Consultations ....................................288LGC Sec. 2(c), 26, 27 ...........................288A. Declaration of Policy.....................288B. Maintenance of Ecological Balance

288C. Prior Consultation .........................288

III. Relations with Philippine NationalPolice 289

LGC, Sec. 28 ........................................289IV. Other Relations.............................290

A. Inter-local Relations......................290B. Relations with Non-Governmentalorganizations .........................................290

Chapter VII. Local Officials .........................291I. Elective Local Officials .......................291

A. Qualifications ....................................291B. Disqualifications ...............................292`C. Manner of Election ............................294D. Term of Office ...................................294E. Rules on Succession ........................296F. Recall ................................................299G. Discipline...........................................300

1. Administrative Action ....................3002. Penalties .......................................3023. Power of Tribunals........................303

II. Appointive Officials.............................304A. Appointments ....................................304B. Discipline...........................................306C. Removal ............................................306


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D. Officials Common to All Municipalities,Cities and Provinces ..................................306

III. Provisions Applicable to Elective andAppointive Officials .....................................307

A. Prohibited Interests ...........................307LGC Sec. 89 ..............................................307B. Practice of Profession .......................307C. Prohibition against Appointment .......308

IV. Local Boards and Councils ................308A. Local School Board ...........................308B. Local Health Board............................309C. Local Development Council ..............309D. Local Peace and Order Council ........309

Chapter VIII. Local Government Units .......310A. The Barangay....................................310

1. Katarungang Pambarangay..........3102. Sangguniang Kabataan ................311

B. The Municipality ................................311C. The City.............................................312D. The Province .....................................313

Chapter IX. Miscellaneous and FinalProvisions.....................................................314

A. Posting and Publication of Ordinanceswith Penal Sanctions .................................314B. Penalties for Violation of TaxOrdinances.................................................314C. Provisions for Implementation...........314

Chapter X. Application of LGC toAutonomous Regions and Other Entities..315

I. The Autonomous Region in MuslimMindanao ...................................................315II. Cordillera Administrative Region.......315III. The Metropolitan Manila DevelopmentAuthority.....................................................316

POLITICAL LAW REVIEWER Chapter I. BASIC PRINCIPLES

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Chapter I. Basic Principles

I. NATURE AND STATUSA. DefinitionB. Dual Nature

II. PRINCIPLES OF LOCAL GOVERNMENT LAWA. State Policy, Principles of DecentralizationB. DecentralizationC. Devolution

III. THE LOCAL GOVERNMENT CODEA. EffectivityB. ScopeC. Rules of Interpretation

I. Nature and Status

A. Definition

A Local Government Unit (LGU) is a politicalsubdivision of the State which is constituted bylaw and possessed of substantial control over itsown affairs. Remaining to be an intra sovereignsubdivision of a sovereign nation, but notintended to be an imperium in imperio, the LGUis autonomous in the sense that it is given morepowers, authority, responsibilities and resources.[ Alvarez vs Guingona (1996)]

“Local government” is interchangeable with“municipal corporation. The City of Manila, being a mere municipal

corporation, has no right to impose taxes.[Basco vs PAGCOR (1991)]

Municipal Corporation vs Quasi-municipalcorporation A municipal corporation exists by virtue of,

and is governed by, its charter. A quasi-municipal corporation operates directly asan agency of the state to help in theadministration of public functions. [Singco,(1955)]

B. Dual Nature

Sec. 15, LGC. Every LGU created or recognizedunder this Code is a body politic andcorporate endowed with powers to be exercisedby it in conformity with law. As such, it shallexercise powers as a political subdivision of thenational government and as a corporate entityrepresenting the inhabitants of its territory.

The obligations of the old City of Manilasurvives the cession of the Phil. to the U.S.because of the corporate nature of the city.[Villas vs Manila (1921)]

As a body politic with governmentalfunctions, the LGU has the duty to ensure

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LOCAL GOVERNMENT LAW TEAM

Prof. Gisella Dizon-ReyesFaculty Editor

Sherwin EbaloLead Writer

Paulyne CaspillanKarlo Noche

Writers

POLITICAL LAW


ACADEMICS COMMITTEE




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DESIGN & LAYOUT



LECTURES COMMITTEE


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Volunteers

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LOGISTICS

Charisse Mendoza


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Members


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the quality of the environment (S16, LGC). Itcannot claim exemption from PD 158 whichimposes the same duty. [Republic vs Davao(2002)]

II. Principles of Local Government Law

A. State Policy, Principles ofDecentralization

Art. X, 1987 Constitution

Sec. 2. The territorial and political subdivisions shallenjoy local autonomy.

Sec. 3. The Congress shall enact a local governmentcode which shallo provide for a more responsive and accountable

local government structure instituted through a system of

decentralization with effective mechanisms of recall, initiative,

and referendum,o allocate among the different local government

units their powers, responsibilities, andresources,

o and provide for the qualifications, election,appointment and removal, term, salaries, powersand functions and duties of local officials,

o and all other matters relating to the organizationand operation of the local units.

Sec. 4. The President of the Philippines shallexercise general supervision over localgovernments.Provinces with respect to component cities andmunicipalities, and cities and municipalities withrespect to component barangays shall ensure that the acts of their component

units are within the scope of their prescribedpowers and functions.

Sec. 5. Each local government unit shall have thepower to create its own sources of revenues and tolevy taxes, fees and charges, subject to such guidelines and limitations as the

Congress may provide, consistent with the basic policy of local

autonomy.Such taxes, fees, and charges shall accrueexclusively to the local governments.

Local Government Code (RA 7160)

Sec. 2 (c) It is likewise the policy of the State torequire all national agencies and offices to conductperiodic consultations with: appropriate local government units, nongovernmental and people's organizations, and other concerned sectors of the community

before any project or program is implemented intheir respective jurisdictions.

B. Local Autonomy

The principle of local autonomy under the1987 Constitution simply meansdecentralization (discussed below). [Bascovs PAGCOR (1991)]

Illustrations The CSC cannot declare the provision “upon

recommendation of the local chief executiveconcerned” as merely directory. Suchprovision is in consonance with localautonomy. [San Juan vs CSC (1991)]

An A.O. may not compel LGUs to reducetheir total expenditures. Supervising officialsmay not lay down or modify the rules. Theserules were made in furtherance of localautonomy. [Pimentel vs Aguirre (2000)]

HOWEVER, the Constitution did not intend,for the sake of local autonomy, deprive thelegislature of all authority over LGUs, inparticular, concerning discipline. [Ganzon vsCA (1991)]

C. Decentralization

NOTE: Decentralization is a means to achievelocal autonomy.

Autonomy is either (1) decentralization ofadministration or (2) decentralization of power.There is decentralization of administrationwhen the central government delegatesadministrative powers to political subdivisions inorder to broaden the base of government power.

Purpose: to relieve the central governmentof the burden of managing local affairs andenable it to concentrate on nationalconcerns.

The President exercises "generalsupervision" over them, but only to"ensure that local affairs areadministered according to law." He hasno control over their acts in the sense thathe can substitute their judgments with hisown. [Limbona v. Mangelin (1989)]

Cf. Decentralization of power is the abdicationof political power in favor of LGUs declared to beautonomous. There is self-immolation whereautonomous government is accountable, not tothe central government, but to its constituents.(Note: not allowed by our Constitution.)

Sec. 1 of AO 372 (Adoption of EconomyMeasures in Government for FY 1998),insofar as it “directs” LGUs to reduceexpenditures by at least 25%, is a validexercise of the President’s power of general


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supervision over LGUs as it is advisory only.Supervisory power, when contrasted withcontrol, is the power of mere oversight overan inferior body; it does not include anyrestraining authority over such body.[Pimentel v. Aguirre, supra]

C. Devolution

(asked in 1999)

Refers to the act by which the nationalgovernment confers power and authorityupon the various local government units toperform specific functions andresponsibilities (Sec. 17, LGC); the transferof power and authority from the NationalGovernment to LGUs to enable them toperform specific functions andresponsibilities (Art. 24, IRR of the LGC).

III. The Local Government Code

A. Effectivity

LGC, Sec. 536 January 1, 1992, unless otherwise provided; After complete publication in at least one (1)

newspaper of general circulation.

B. Scope

RA 7160 (LGC), Sec. 4The LGC shall apply to: provinces cities municipalities barangays other political subdivisions as may be

created by law; and to the extent herein provided, to officials,

offices, or agencies of the nationalgovernment.

C. Rules of Interpretation

LGC, Sec. 5Sec. 5. Rules of Interpretation. - In theinterpretation of the provisions of this Code, thefollowing rules shall apply:

1. In case of doubt on any provision on apower of an LGU: Liberal interpretation

in favor of devolution of powers in favor of existence of power

2. In case of doubt on any tax ordinance orrevenue measure: Construed strictly against LGU

Construed liberally in favor of taxpayer Tax exemption, incentive or relief is

construed strictly against personclaiming it

3. General welfare provisions Liberally interpreted to give more

powers to LGU in accelerating economicdevelopment and upgrading quality oflife for the people of the community

4. Rights and obligations existing on effectivityof LGC: Arising from contracts or other source Shall be governed by

original terms and conditions ofcontract, OR

law in force at the time the rightswere vested

5. Resolution of controversies under the LGC: Where no legal provision or

jurisprudence applies Resort to customs and traditions in the

place where the controversies takeplace

POLITICAL LAW REVIEWER Chapter II. CREATION and DISSOLUTION of LGUs

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Chapter II. Creation and Dissolution ofLGUs

I. CREATIONA. GENERAL PROVISIONSB. SPECIFIC REQUIREMENTS

1. METROPOLITAN POLITICALSUBDIVISIONS

2. HIGHLY URBANIZED CITIES ANDINDEPENDENT COMPONENT CITIES

3. AUTONOMOUS REGIONSC. AUTHORITY TO CREATE LGUSD. CREATION AND CONVERSION OF LGUSE. PLEBISCITEF. BEGINNING OF CORPORATE EXISTENCE

II. DIVISION AND MERGER; ABOLITIONA. DIVISION AND MERGERB. ABOLITION

III. SETTLEMENT OF BOUNDARY DISPUTESA. JURISDICTIONAL RESPONSIBILITY FOR

SETTLEMENT OF BOUNDARY DISPUTEB. APPEALC. MAINTENANCE OF THE STATUS QUO

I. Creation

(Art. X, 1987 Consti.)

A. General Provisions

Sec. 10. No province, city, municipality, or barangaymay be created, divided, merged, abolished, or itsboundary substantially altered, except: in accordance with the criteria established in the

Local Government Code and subject to approval by a majority of the votes cast

in a plebiscite in the political units directlyaffected.

Sec. 13. Local government units may: group themselves, consolidate or coordinate their efforts, services,

and resourcesfor purposes: commonly beneficial to them in accordance with law.

Sec. 14. The President shall provide for regionaldevelopment councils or other similar bodiescomposed of local government officials, regionalheads of departments and other government offices,and representatives from non-governmentalorganizations within the regions: for purposes of administrative decentralization to strengthen the autonomy of the units therein

and to accelerate the economic and social growth and

development of the units in the region.

B. Specific Requirements

1) Metropolitan Political SubdivisionsSec. 11. The Congress may, by law, create specialmetropolitan political subdivisions, subject to aplebiscite as set forth in Section 10 hereof.The component cities and municipalities: shall retain their basic autonomy and shall be entitled to their own local executive and

legislative assemblies.The jurisdiction of the metropolitan authority that willthereby be created shall be limited to basic servicesrequiring coordination.

2) Highly Urbanized Cities and IndependentComponent Cities

Sec.12. Cities that are highly urbanized, asdetermined by law, and component cities whosecharters prohibit their voters from voting forprovincial elective officials, shall be independentof the province.The voters of component cities within a province,whose charters contain no such prohibition, shall notbe deprived of their right to vote for elective provincialofficials.

3) Autonomous RegionsSec. 15. There shall be created autonomous regionsin Muslim Mindanao and in the Cordilleras consistingof provinces, cities, municipalities, and geographicalareas sharing common and distinctive historicaland cultural heritage, economic and socialstructures, and other relevant characteristics within the framework of this Constitution and the

national sovereignty as well as territorial integrityof the Republic of the Philippines.

Sec. 16. The President shall exercise generalsupervision over autonomous regions to ensure thatlaws are faithfully executed.

Sec. 17. All powers, functions, and responsibilities notgranted by this Constitution or by law to theautonomous regions shall be vested in the National Government.

Sec.18. The Congress shall enact an organic act foreach autonomous region with the assistance andparticipation of the regional consultative commissioncomposed of representatives appointed by thePresident from a list of nominees from multi-sectoralbodies.

The organic act shall define the basic structure ofgovernment for the region consisting of theexecutive department and legislative assembly,both of which shall be elective and representative ofthe constituent political units.

The organic acts shall likewise provide for specialcourts with personal, family, and property lawjurisdiction consistent with the provisions of thisConstitution and national laws.


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C. Authority to Create Local GovernmentUnits

LGC, Sec. 6A local government unit may beo created, divided, merged, abolished, or its

boundaries substantially altered either by law enacted by Congress in the

case of a province, city, municipality, or anyother political subdivision, OR

by ordinance passed by the sangguniangpanlalawigan or sangguniang panlungsodconcerned in the case of a barangay locatedwithin its territorial jurisdiction,

o subject to such limitations and requirementsprescribed in this Code.

The authority to create municipalcorporations is essentially legislative innature [Pelaez v. Auditor General (1965)]

The enactment of a LGC is not acondition sine qua non for the creation ofa municipality, and before the enactment ofsuch code, the power remains plenaryexcept that the creation should be approvedby the people concerned in a plebiscitecalled for the purpose. [Torralba v. Sibagat(1987)]

The SC held that sec. 19 of RA 9054 insofaras it grants ARMM Regional Assembly thepower to create provinces and cities is void.(Constitution allows delegation of creatingmunicipalities and barangays only.) [BaiSema v. COMELEC (2008)]

Creations under Sec. 68, Admin Code The alleged power of the President to create

municipalities under Sec. 68 of the AdminCode amounts to an undue delegation oflegislative power. The authority to createmunicipal corporations is essentiallylegislative in nature. The power of control ofthe President over executive departments,bureaus or offices implies no more than theauthority to assume directly the functionsthereof or to interfere in the exercise ofdiscretion by its officials. It does not includethe authority either to abolish or create such.[Pelaez v. Auditor General (1965)]

Effect if created under Sec 68, Admin Code:The municipality is non-existent. It cannot bea party to any civil action [Mun. of Kapalongv. Moya (1988)]

De Facto CorporationsDe facto municipal corporation: There is defectin creation; legal existence has been recognizedand acquiesced publicly and officially.

Requisites: (LACA)(a) valid law authorizing incorporation;(b) attempt in good faith to organize it;(c) colorable compliance with law; and(d) assumption of corporate powers.

There can be no color of authority in anunconstitutional statute. An unconstitutionalact confers no rights, imposes no duties,affords no protection, and creates no office.However, even if the EO was invalid, it doesnot mean that the acts done by themunicipality of Balabagan in the exercise ofits corporate powers are a nullity. This isbecause the existence of the EO is ‘anoperative fact which cannot justly beignored.’ [Malabanan v Benito (1969)]

The Municipality of Sinacban1 possesseslegal personality. Where a municipalitycreated as such by executive order is laterimpliedly recognized and its acts areaccorded legal validity, its creation can nolonger be questioned.

Sinacban has attained de jure status2 byvirtue of the Ordinance appended to the1987 Constitution, apportioning legislativedistricts throughout the country, whichconsidered Sinacban part of the SecondDistrict of Misamis Occidental. Above all,Sec. 442(d) of the LGC of 1991 must bedeemed to have cured any defect in thecreation of Sinacban.

Since Sinacban had attained de factostatus at the time the 1987 Constitution tookeffect on February 2, 1987, it is not subjectto the plebiscite requirement. Thisrequirement applies only to newmunicipalities created for the first timeunder the Constitution.

Attack Against Validity of Incorporation When the inquiry is focused on the legal

existence of a body politic, the action isreversed to the state in a proceeding for quo

1 Sinacban was created by EO 258 of then President ElpidioQuirino, pursuant to Sec. 68 of the Revised AdministrativeCode of 1917.2 De jure: by virtue of the ordinance appended to the 1987Constitution; Sec. 442 (d), LGC curative.

Sec. 442(d), LGC: Municipalities existing as of the date ofthe effectivity of this Code shall continue to exist and operateas such. Existing municipal districts organized pursuant topresidential issuances or executive orders and which havetheir respective set of elective municipal officials holdingoffice at the time of the effectivity of this Code shallhenceforth be considered as regular municipalities.


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warranto or any other direct proceeding.Collateral attacks shall not lie. Proceeding must be: (RST)

1. Brought in the name of theRepublic of the Philippines

2. Commenced by the Sol Gen or thefiscal when directed by the president

3. Timely raised [Municipality of SanNarciso v Mendez (1994)]

The municipality can still be considered tohave attained at least a status closelyapproximating that of a de facto corporationdespite the invalidity of the EO creating it.This is because the State itself recognizedthe continued existence of San Andres whenit classified it as a 5

thclass municipality.

And, more importantly, Sec.442(d) of theLGC cured whatever defect there was in itscreation. [Municipality of San Narciso v.Mendez]

Municipal Corporation by PrescriptionExistence is presumed where the communityhas claimed and exercised corporate functionswith the knowledge and acquiescence of thelegislature, and without interruption or objectionfor a period long enough to afford title byprescription. [Martin, Public Corporations (1977)] The municipality was created under a void

law (S68, AC). But it should be considered ade jure personality because it existed 1 yearbefore the Pelaez case, and variousgovernmental acts indicate the State’srecognition of its existence. [Mun. ofCandijay v. CA (1995)]

D. Creation and Conversion of LGUs

Requirements1. In accordance with the criteria established in

the LGC2. Majority of the votes cast in a plebiscite in

the political units directly affected.

Purpose of plebiscite: to preventgerrymandering (i.e. the practice ofcreating legislative districts to favor aparticular candidate or party) andcreation or abolition of units for purelypolitical purposes.

CriteriaLGC, Sec. 7As a general rule, the creation of a localgovernment unit or its conversion from one levelto another level shall be based on verifiableindicators of viability and projected capacity toprovide services, to wit: (IPL)1. Income. - must be sufficient, based on

acceptable standards, to provide for allessential government facilities and servicesand special functions commensurate withthe size of its population.

2. Population. - total number of inhabitantswithin the territorial jurisdiction of the localgovernment unit cozncerned.

3. Land Area. - must be: Contiguous

o unless it comprises two or moreislands or is separated by a LGUindependent of the others;

Properly identified by metes and boundswith technical descriptions; and

Sufficient to provide for such basicservices and facilities to meet therequirements of its populace.

Compliance attested to by: Department of Finance (DOF) National Statistics Office (NSO) Lands Management Bureau (LMB) of

the Department of Environment andNatural Resources (DENR).

Illustrations The requirement on metes and bounds was

meant merely as a tool in the establishmentof LGUs. So long as the territorial jurisdictionof a city may be reasonably ascertained, theintent behind the law (i.e., thedetermination of the territorial jurisdictionover which governmental powers may beexercised) has been sufficiently served. Acadastral type description is not necessary.[Mariano v. COMELEC (1995)]NOTE: The ruling in Mariano is an exceptionto the general rule of proper identificationbecause of its peculiar facts: (1) thelegislature deliberately omitted thedescription in metes and bounds because ofthe pending litigation between Makati andTaguig over Fort Bonifacio; (2) RA 7854provided that the territory of the City ofMakati will be the same as that of theMunicipality of Makati, thus making theterritorial jurisdiction of Makati ascertainable(subject, of course, to the result of theunsettled boundary dispute).

Compliance with population OR land area, inaddition to income, is sufficient to satisfy therequirements in the creation of a city.[Samson v. Aguirre (1999)]

Internal Revenue Allocations (IRAs) formpart of the income of LGUs. The fundsgenerated from local taxes, IRAs andnational wealth utilization proceeds accrue


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to the general fund of the LGU and are usedto finance its operations subject to specifiedmodes of spending the same as provided forin the LGC and its implementing rules andregulations.

As such, for purposes of budget preparation,which budget should reflect the estimates ofthe income of the LGU, among others, theIRAs and the share in the national wealthutilization proceeds are considered items ofincome. [Alvarez v. Guingona (1996)]

NOTES: For provinces and cities, the income

requirement must be satisfied; and EITHERpopulation OR territory.

In the creation of barangays, there is nominimum requirement for area and income.

As to the income requirement, averageannual income shall include the incomeaccruing to the general fund, exclusive ofspecial funds, transfers, and non-recurringincome.

E. Plebiscite

LGC, Sec. 10 No creation, division, merger, abolition, or

substantial alteration of boundaries of localgovernment units shall take effect unlessthere is: Law or ordinance Approved by a majority of the votes cast

in a plebiscite called for the purposein the political unit or units directlyaffected.

Said plebiscite shall be conducted bythe commission on elections(COMELEC)

- Within one hundred twenty (120) days fromthe date of effectivity of the law or ordinanceeffecting such action, unless said law orordinance fixes another date.

Illustrations When the law states that the plebiscite shall

be conducted “in the political unitsdirectly affected”, it means that theresidents of the political entity who would be

economically dislocated by theseparation of a portion thereof have theright to vote in said plebiscite. What iscontemplated by the phrase “political unitsdirectly affected” is the plurality of politicalunits which would participate in theplebiscite. [Padilla v. COMELEC (1992)]

The downgrading of Santiago City from anICC to a component city falls within themeaning of creation, division, merger,abolition, or substantial alteration ofboundaries; hence, ratification in a plebisciteis necessary. There is material change inthe political and economic rights of theLGUs directly affected as well as the budgetpreparation, which budget should reflect theestimates of people therein. It is thereforebut reasonable to require the consent of thepeople to be affected.

Effects of downgrading: (ART)(a) the city mayor will be placed under the

Administrative supervision of thegovernor;

(b) resolutions and ordinances will have tobe Reviewed by the provincial board;

(c) Taxes will have to be shared with theprovince. [Miranda v. Aguirre (1999)]

The creation of a separate congressionaldistrict of Mandaluyong is not a subjectseparate and distinct from the subject of itsconversion into a highly-urbanized city but isa natural and logical consequence of itsconversion…The Court found no need forthe people of San Juan to participate in theplebiscite. They had nothing to do with thechange of status of neighboringMadaluyong. [Tobias v. Abalos (1994)]

F. Beginning of Corporate Existence

LGC, Sec. 14Sec. 14. When a new local government unit iscreated, its corporate existence

o shall commence upon the election andqualification of its chief executive and amajority of the members of its sanggunian,

o unless some other time is fixed therefor bythe law or ordinance creating it.


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Summary: Creation of Specific LGUs3

Requirements ProvinceLGC 460-461

CityRA 9009 (2001)

MunicipalityLGC 441-442

BarangayLGC 385-386

Income Average annualincome, ascertified by theDepartment ofFinance, of notless thanP20,000,000based on 1991constant prices

Average annualincome, ascertified by theDepartment ofFinance, of at leastP100,000,000 forthe last 2consecutive yearsbased on 2000constant prices

Average annualincome, as certifiedby the provincialtreasurer, of atleastP2,500,000.00 forthe last twoconsecutive yearsbased on 1991constant prices

No minimumrequirement forincome

Population 250,000inhabitants

150,000inhabitants

25,000 inhabitants 2,000 inhabitants

5,000 inhabitants, incities andmunicipalities withinMM and othermetropolitan politicalsubdivisions or inhighly urbanized cities

Territory contiguousterritory of at least2,000 km

2

contiguous territoryof at least 100 km

2contiguous territoryof at least 50 km

2No minimumrequirement for area

territory need notbe contiguous if itcomprises 2 ormore islands or isseparated by achartered city orcities which donot contribute tothe income of theprovince

requirement onland area shall notapply where thecity proposed to becreated iscomposed of 1 ormore islands; theterritory need notbe contiguous if itcomprises 2 ormore islands

requirement onland area shall notapply where themunicipalityproposed to becreated iscomposed of 1 ormore islands;territory need notbe contiguous if itcomprises 2 ormore islands

Territory need not becontiguous if itcomprises 2 or moreislands

Manner ofCreation

By an Act ofCongress



By law or by anordinance of thesangguniangpanlalawigan orpanlungsod; In case ofthe creation ofbarangays by thesangguniangpanlalawigan, therecommendation ofthe sangguniangbayan concerned shallbe necessary

3 For creation of specific LGUs, please check LGC 385-386, 441-442, 449-450, 460-461


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Requirements ProvinceLGC 460-461

CityRA 9009 (2001)

MunicipalityLGC 441-442

BarangayLGC 385-386

By an Act ofCongress, to enhancethe delivery of basicservices in theindigenous culturalcommunities

Plebiscite(in LGUsdirectly

affected)

Approval must beby majority of thevotes cast; exceptotherwiseprovided in theAct of Congress,the plebisciteshall be heldwithin 120 daysfrom effectivity ofthe law orordinanceeffecting suchaction

Approval must beby majority of thevotes cast; exceptotherwise providedin the Act ofCongress, theplebiscite shall beheld within 120days fromeffectivity of thelaw or ordinanceeffecting suchaction

Approval must beby majority of thevotes cast; exceptotherwise providedin the Act ofCongress, theplebiscite shall beheld within 120days from effectivityof the law orordinance effectingsuch action

Approval must be bymajority of the votescast; plebiscite shallbe held within suchperiod of time as maybe determined by thelaw or ordinancecreating saidbarangay.

II. Division and Merger; Abolition

A. Division and Merger

LGC, Sec. 8. Division and merger of existing local

government units shall comply with thesame requirements herein prescribed fortheir creation: Provided, however, That such division

shall not reduce the income, population,or land area of the local government unitor units concerned to less than theminimum requirements prescribed inthis Code:

Provided, further, That the incomeclassification of the original localgovernment unit or units shall not fallbelow its current classification prior tosuch division.

The income classification of localgovernment units shall be updated within six(6) months from the effectivity of this Codeto reflect the changes in their financialposition resulting from the increasedrevenues as provided herein.

Effects of Merger1. Legal existence of LGU to be annexed is

dissolved2. Laws and ordinance of the annexing LGU

prevails3. The right of office in the annexed LGU is

terminated4. Title to property is acquired by the annexing LGU5. Debts are assumed by the annexing LGU [Martin,

supra]

Effects of division1. The legal existence of the original

municipality is extinguished2. Property, rights and powers are acquired by

the dividing LGUs [Martin, supra]

B. Abolition

LGC, Sec. 9 A local government unit may be abolished:

when its income, population, or landarea has been irreversibly reduced toless than the minimum standardsprescribed for its creation under Book IIIof this Code, as certified by the nationalagencies mentioned in Section 7 hereofto Congress or to the sangguniangconcerned, as the case may be.

The law or ordinance abolishing a localgovernment unit shall specify the province,city, municipality, or barangay with whichthe local government unit sought to beabolished will be incorporated ormerged.

When there is no dissolution1. Non-user or surrender of charter2. Failure to elect municipal officers3. Change of sovereignty4. Change of name


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III. Settlement of Boundary Disputes

(asked in 2005)

LGC, Sec. 118-119 Boundary dispute—when a portion or the

whole of the territorial area of an LGU isclaimed by two or more LGUs.

Policy: Boundary disputes between oramong LGUs shall, as much as possible, besettled amicably.

A. Jurisdictional Responsibility forSettlement of Boundary Dispute

LGC, Sec. 118If the LGUs involvedare:

Boundary disputesshall be referred forsettlement to:

two (2) or morebarangays in the samecity or municipality

sangguniangpanlungsod orsangguniang bayanconcerned.

two (2) or moremunicipalities withinthe same province

sangguniangpanlalawiganconcerned.

municipalities orcomponent cities ofdifferent provinces

jointly referred to thesanggunians of theprovinces concerned.

a component city ormunicipality on the onehand and a highlyurbanized city on theother; or two (2) ormore highly urbanizedcities,

jointly referred forsettlement to therespectivesanggunians of theparties.

In the event the sanggunian fails to effect anamicable settlement within sixty (60) daysfrom the date the dispute was referredthereto, it shall issue a certification to thateffect.

Thereafter, the dispute shall be formally triedby the sanggunian concerned which shalldecide the issue within sixty (60) days fromthe date of the certification referred toabove.

B. Appeal

LGC, Sec. 119. Within the time and manner prescribed by

the Rules of Court, any party may elevatethe decision of the sanggunian concerned tothe proper Regional Trial Court havingjurisdiction over the area in dispute.

The Regional Trial Court shall decide the

appeal within one (1) year from the filingthereof. Pending final resolution of thedisputed area prior to the dispute shall bemaintained and continued for all legalpurposes.

C. Maintenance of the Status Quo

IRR of LGC, Sec. 18Pending final resolution of the dispute: status ofthe affected area prior to the dispute shall bemaintained and continued for all purposes.

The power of provincial boards to settleboundary disputes is limited to implementingthe law creating a municipality. Thus,provincial boards do not have the authorityto approve agreements which in effectamend the boundary stated in the creatingstatute [Municipality of Jimenez v. Baz(1996)]

The conduct of plebiscites, to determinewhether or not a barangay is to be created,should be suspended or cancelled in view ofa pending boundary dispute between twolocal governments. Precisely becauseterritorial jurisdiction is an issue raised in thepending boundary dispute, until and unlesssuch issue is resolved with finality, to definethe territorial jurisdiction of the proposedbarangays would only be an exercise infutility. [City of Pasig v. COMELEC(1999)]

POLITICAL LAW REVIEWER Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs

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Chapter III. General Powers andAttributes of LGUs

I. POWERS IN GENERALA. SOURCESB. CLASSIFICATIONC. EXECUTION OF POWERS

II. POLITICAL AND CORPORATE NATURE OFLGUs

III. GOVERNMENTAL POWERSA. GENERAL WELFARE (POLICE POWERS)B. POWER TO GENERATE REVENUE

(POWER TO TAX)C. EMINENT DOMAIND. BASIC SERVICES AND FACILITIESE. RECLASSIFICATION OF LANDSF. CORPORATE POWERSG. LOCAL LEGISLATIVE POWER

I. Powers in General

A. Sources of Powers of LGUs

1987 Consti., Sec. 25, Art. II ; Sec. 5-7, Art.X

Statutes, e.g. LGC Charter (particularly of cities) Doctrine of the right of self-government, but

applies only in States which adhere to thedoctrine

B. Classification of Powers of LGUs

Express, Implied, Inherent Public or Governmental, Private or

Proprietary Intramural, Extramural Mandatory, Directory; Ministerial,

Discretionary

C. Execution of Powers

Where statute prescribes the manner ofexercise, the procedure must be followed

Where statute is silent, LGUs havediscretion to select reasonable means andmethods of exercise

II. Political and Corporate Nature ofLGUs

LGC Sec.18

Local government units shall have the powerand authority to generate and applyresources

Establish an organization responsible forimplementation of development plans,program objectives, and priorities.

Own sources of revenues (Sec.5, Art.X,Constitution; Sec.18 LGC) which include: Power to create own sources Levy taxes, fees and charges

o Shall accrue exclusively for theirown use and disposition

o Limitation: guidelines Congress mayprovide

Just share in national taxes (Sec.6,Art.X, Constitution; Sec.18 LGC)o Determined by lawo Automatically and directly released

Equitable share in utilization anddevelopment of national wealth (Sec.7,Art.X Constitution; Sec.18 LGC)o Within respective territorial

jurisdictionso In the manner provided by lawo Sharing with inhabitants by way of

direct benefits Acquire, develop, lease, encumber,

alienate, or otherwise dispose ofproperty (Sec.18 LGC)o Real or personal propertyo Made in a proprietary capacity

Apply resources and assets (Sec.18LGC)o Purpose: productive, development,

or welfare purposeso In the exercise of their governmental

or proprietary powers and functions

Municipal Corporations

LGC Sec. 14. Beginning of Corporate Existence

The election and qualification of chief executive AND majority of the members of the

Sanggunian unless some other time is fixed therefore by

the law or ordinance creating it.

Note: Art.14 applies when the law creating it isSILENT as to the beginning of its corporateexistence.

LGC Sec. 15. Political and Corporate Nature of LocalGovernment Units

Local government unit created or recognizedunder this Code is a Body politic AND Corporate endowed with powers to be

exercised by it in conformity with law Exercise of power (as a):

Political subdivision of the nationalgovernment AND

Corporate entity representing theinhabitants of its territory


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Implications A municipal corporation performs twin

functions. Firstly, it serves as aninstrumentality of the State in carrying outthe functions of a government. Secondly, itacts as an agency of the community in theadministration of local affairs. It is in thelatter character that it is a separate entityacting for its own purposes and not asubdivision of the state. [Lidasan vCOMELEC (1967)]

The holding of a town fiesta is a proprietaryfunction, though not for profit, for which amunicipality is liable for damages to 3

rd

persons ex contractu or ex delicto. [Torio vFontanilla (1978)]

Difference Between the Political Nature andCorporate Nature of LGUs

Political/Governmental

Corporate/Municipal

Political subdivision ofnational government

Corporate entityrepresenting inhabitantsof its territory

Includes the legislative,judicial, public andpolitical

Includes those whichare ministerial, privateand corporate

LGU cannot be heldliable except:o If statute provides

otherwiseArt.2189, Civil Code

Can be held liable excontractu or ex delicto

Examples: Regulations against

fire, disease Preservation of public

peace Maintenance of

municipal plaza Establishment of

schools, post offices,etc.

Examples: Municipal waterworks Slaughterhouses Markets Stables Bathing

establishments Wharves Fisheries Maintenance of parks,

golf courses,cemeteries, airports

III. Governmental Powers

A. General Welfare

LGC Sec.16

This includes: Police Power, Abatement ofNuisance and Closure of Roads

1. Police Power

Preservation of peace and order withinrespective regions (Sec.21, Art. X,Constitution)1. Responsibilities of local police agencies

2. Local police shall be organized,maintained, supervised and utilized inaccordance with applicable laws.

Defense and security of regions (Sec.21,Art.X, Constitution)o Responsibility of National Government

General Welfare Clause (Sec.16 LGC)1. Powers expressly granted2. Powers necessarily implied3. Powers necessary, appropriate or

incidental for efficient and effectivegovernance

4. Powers essential to the promotion ofgeneral welfare

5. Shall ensure and support: Preservation and enrichment of

culture Promotion of health and safety Enhancement of the right of the

people to a balance ecology Development of self reliant scientific

and technological capabilities Improvement of public morals Economic prosperity and social

justice Promotion of full employment

among residents Maintenance of peace and order Preservation of the comfort and

convenience of inhabitants

Nature The police power of a municipal corporation

extends to all the great public needs, and, ina broad sense includes all legislation andalmost every function of the municipalgovernment. Public purpose is notunconstitutional merely because itincidentally benefits a limited number ofpersons. The drift is towards social welfarelegislation geared towards state policies toprovide adequate social services, thepromotion of general welfare and socialjustice [Binay v Domingo (1991)]

To constitute “public use”: The public in general should have equal

or common rights to use the land orfacility involved on the same terms

The number of users is not the yardstickin determining whether property isproperly reserved for public use orpublic benefit [Republic v. Gonzales]

2 Branches of the GWC The General Welfare Clause has 2

branches:(1) the general legislative power which

authorizes municipal councils to enact


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ordinances and make regulations notrepugnant to law as may be necessaryto carry into effect and discharge thepowers and duties conferred upon it bylaw;

(2) the police power, which authorizes themunicipality to enact ordinances as maybe proper and necessary for the healthand safety, prosperity, morals, peace,good order, comfort and convenience ofthe municipality and its inhabitants, andfor the protection of their property.

Here, the ordinances imposing the licensesand permits for any businessestablishments, for purposes of regulationenacted by the municipal council of Makati,falls under the 1

stbranch. [Rural Bank of

Makati, Inc v Municipality of Makati (2004)]

2. Limitations

1. The General Welfare Clause cannot be usedto justify an act that is not specificallyauthorized by law.

2. Powers of the LGUs under the generalwelfare clause (LGC Sec.16) Powers expressly granted to the LGU Power necessarily implied therefrom Powers necessary, appropriate, or

incidental for its efficient and effectivegovernance

3. For ordinance to be valid exercise of policepower [Tatel v. Mun. of Virac (1992)]:

1. Not contrary to the Constitutionand/or statute

2. Not unfair or oppressive3. Must not be partial or discriminatory4. Not prohibit but may regulate trade5. General and consistent with public

policy6. Not unreasonable

Illustrations: Police Power Applies A municipal ordinance prescribing the

zonification and classification ofmerchandise and foodstuff sold in the publicmarket [Eboňa v Municipality of Daet (1950)]

A proclamation reserving parcels of thepublic domain for street widening andparking space purposes [Republic vGonzales]

Condemnation and demolition of buildingsfound to be in a dangerous or ruinouscondition within the authority provided for bymunicipal ordinances [Chua Huat vs CA(1991)]

Regulation and operation of tricycles-for-hireand to grant franchises for the operationthereof. However, this power is still subjectto the guidelines prescribed by the DOTC.Moreover, the newly delegated powerspertain to the franchising and regulatorypowers therefore exercised by the LTFRB.[LTO vs City of Butuan (2000)]

The declaration of an area as a commercialzone through a municipal ordinance.Corollary thereto, the state may interferewith personal liberty with property, business,and occupations. [Patalinhug vs CA (1994)]

Demolition of stalls causing traffic anddeteriorated sanitation [Villanueva vsCastaneda (1987)]

Deny an application for permit or avoid theinjury to the health of residents. [TechnologyDevelopers vs CA (1991)]

Provide for burial assistance to the poor.[Binay vs Domingo, supra]

Abatement of a public nuisance becausestored inflammable materials created adanger to the people within theneighbourhood [Tatel vs Mun. of Virac(1992)]

Rescind contracts [Tamin vs CA (1994)]

Enforcement of fishery laws in municipalwaters including the conservation ofmangroves. [Tano vs Socrates (1997)]

Illustrations: Police Power Does Not Apply The LGU has no power to prohibit the

operation of night clubs, a lawful trade orpursuit of occupation. It may only regulate.[De La Cruz vs Paras (1983)]

“Anxiety, uncertainty and restiveness”among stallholders and traders cannot be aground to revoke the mayor’s permit. TheGeneral Welfare claim is too amorphous.[Greater Balanga vs Mun. of Balanga(1994)]

Butuan city board passes an ordinancerequiring that the sale of tickets to movies,exhibitions or other performances to childrenbetween 7-12 years of age should be at halfprice. The said ordinance was declaredvoid. The theater operators are merelyconducting their legitimate business.


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There is nothing immoral or injurious incharging the same price for both childrenand adults. In fact, no person is undercompulsion to purchase a ticket. [Balacuit vCFI (1988)]

The power of the municipal government toissue fishing privileges is only for revenuepurposes. BUT the power of the LLDA togrant permits is for the purpose of effectivelyregulating and monitoring activities in thelake region and is in the nature of policepower. [Laguna Lake Development Authorityv. CA (1995)]

3. Abatement of Nuisance

LGC sec.447 and 458

Sangguniang Bayan and SangguniangPanlungsod have: Power to regulate activities relative to the

use of land, buildings and structures withintheir jurisdiction To promote the general welfare and For said purpose declare, prevent or

abate any nuisance

Coverage Respondents cannot seek cover under the

General Welfare Clause authorizing theabatement of nuisances without judicialproceedings. That tenet applies to anuisance per se, or one which affects theimmediate safety of persons and propertyand may be summarily abated under theundefined law of necessity [Monteverde vGeneroso (1928)].

NOTES:The provisions of the Code DO NOT make adistinction between nuisance per se andnuisance per acccidens, thus creating apresumption that LGUs can abate all kinds ofnuisances without need of a judicial order.However, the jurisprudence holds that LGUscan abate extrajudicially only nuisances perse.

4. Closure of Roads

LGC Sec.21

What roads are subject, those withinjurisdiction of LGU Local road Alley Park Square

Permanently close or open Ordinance: Vote of at least 2/3 of all

members of the Sanggunian When necessary, an adequate

substitute for the public facility should beprovided

Make provision for public safety If permanently withdrawn from public

use May be used or conveyed for any

purpose for which other real propertybelonging in LGU may be lawfully usedor conveyed

Freedom park: must have provision forrelocation to new site

Temporary close or open Ordinance May be done:

During actual emergency Fiesta celebrations Public rallies Agricultural or industrial fairs Undertaking of public works and

highways, telecommunications, andwaterworks projects

Duration specified in written order bylocal chief executive

If for athletic, cultural, or civic activities:must be officially sponsored,recognized, or approved by LGU.

Temporary closure and regulation of anylocal street, road, thoroughfare, or any otherpublic place By any city, municipality, or barangay Where shopping malls, Sunday, flea or

night markets, or shopping areas maybe established

Where goods, merchandise, foodstuffs,commodities, or articles of commercemay be sold

Illustrations A public street is property for public use

hence, outside the commerce of man. It maynot be the subject of lease or other contract.Such leases are null and void for beingcontrary to law. The right of the public to usethe city street may not be bargained awaythrough contract. The authorization given forthe use of the city street as a vending areafor stallholders who were granted licensesby the City Government contravenes thegeneral law that reserves city streets androads for public use. It may not infringe uponthe vested right of the public to use citystreets for the purpose they were intendedto serve. [Dacanay vs Asistio (1992)]


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The provincial council has the authority todetermine whether or not a certain property(in this case a provincial road) is stillnecessary for public use [Cabrera vs CA(1991)]

The power of the LGU to enact zoningordinances for the general welfare prevailsover the deed of restrictions. [Sangalang vsIAC(1989)]

The closure of roads under police power isnot eminent domain. No grant of damagesare awarded. [Cabrera vs CA (1991)]

Effect: The determination of the location ofthe camino vecinal through an ordinance willdefeat the testimonies of witnesses as to thelocation of said passageway. [Pilapil vs CA(1992)]

The MMDA does not have police power, butthe LGUs do. There should have been anordinance by the LGU to effect an openingof roads. [MMDA vs Bel Air (2000)]

B. Power to Generate Revenue

LGC Sec.18

Sources of LGU funds: (O-TIU)1. Own sources of revenues2. Taxes, fees and charges: which shall accrue

exclusively for their use and disposition andwhich shall be retained by them

3. Just share in national taxes which shall beautomatically and directly released to themwithout need for any further action (InternalRevenue Allotments)

4. Equitable share in the proceeds from theutilization and development of the nationalwealth and resources within their respectiveterritorial jurisdictions including sharing thesame with the inhabitants by way of directbenefits

Fundamental principles governing the exerciseof the taxing and other revenue-raising powersof LGUs LGC Sec 130(PE-PUB)1. Taxation shall be uniform in each LGU;2. Taxes, fees, charges and other impositions

shall be equitable and based as far aspracticable on the taxpayer’s ability topay; levied and collected only for publicpurposes; not unjust, excessive,oppressive, or confiscatory; not contraryto law, public policy, national economicpolicy, or in restraint of trade;

3. The collection of local taxes, fees, chargesand other imposition shall in no case be leftto any private person;

4. The revenue shall inure solely to thebenefit of, and be subject to dispositionby, the LGU, unless otherwise specificallyprovided herein; and

5. Each LGU shall, as far as practicable,evolve a progressive system of taxation.

Common Limitations on the Taxing Powers ofLGUs Sec 133. LGC1. Income tax (except when levied on banks

and financial institutions)2. Documentary stamp tax3. Estate tax4. Customs duties, registration fees of vessels

and all other kinds of customs fees andcharges

5. Taxes, fees and charges and otherimpositions upon goods carried in or out of,or passing through, the territorial jurisdictionof local government units in the guise ofcharges for wharfage, tolls for bridges orotherwise, or other taxes, fees or charges inany form whatsoever upon such goods ormerchandise

6. Taxes, fees or charges on agricultural andaquatic products when sold by marginalfarmers or fishermen

7. Taxes on business enterprises certified bythe BOI as pioneer or non-pioneer for aperiod of 6 and 4 years, respectively, fromdate of registration

8. Excise taxes9. Percentage taxes or VAT10. Taxes on the gross receipts of transportation

contractors and persons engaged in thetransportation of passengers or freight, andcommon carriers

11. Taxes on premiums paid by way ofreinsurance or retrocession

12. Taxes, fees, charges for the registration ofmotor vehicles and for the issuance of allkinds of licenses or permits for the drivingthereof, except tricycles

13. Taxes, fees, or other charges in Phil.products actually exported, except asotherwise provided therein

14. Taxes, fees or charges, on Countryside andBarangay Enterprises and cooperatives dulyregistered under RA 6810 and theCooperative Code

15. Taxes, fees, or charges of any kind on theNational Government, its agencies andinstrumentalities


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Fundamental principles governing the financialaffairs, transactions and operations of LGUsLGC sec 3051. No money shall be paid out of the local

treasury except in pursuance of anappropriations ordinance or law;

2. Local government funds and monies shallbe spent solely for public purposes;

3. Local revenue is generated only fromsources expressly authorized by law orordinance, and collection thereof shall at alltimes be acknowledged properly;

4. All monies officially received by a localgovernment officer in any capacity or on anyoccasion shall be accounted for as localfunds, unless otherwise provided by law;

5. Trust funds in the local treasury shall not bepaid out except in fulfillment of the purposefor which the trust was created or the fundsreceived;

6. Every officer of the LGU whose dutiespermit or require the possession or custodyof local funds shall be properly bonded, andsuch officer shall be accountable andresponsible for said funds and for thesafekeeping thereof in conformity with theprovisions of law;

7. Local governments shall formulate soundfinancial plans, and the local budgets shallbe based on functions, activities, andprojects, in terms of expected results;

8. Local budgets shall operationalize approvedlocal development plans;

9. LGUs shall ensure that their respectivebudgets incorporate the requirements oftheir component units and provide forequitable allocation of resources amongthese component units;

10. National planning shall be based on localplanning to ensure that the needs andaspirations of the people as articulated bythe local government units in their respectivelocal development plans are considered inthe formulation of budgets of national lineagencies or offices;

11. Fiscal responsibility shall be shared by allthose exercising authority over the financialaffairs, transactions, and operations of thelocal government units; and

12. The LGU shall endeavor to have a balancedbudget in each fiscal year of operation

Cases Sec 234 withdrew all exemptions from real

property taxes, even GOCCs when thebeneficial use of the property has beengranted to a taxable person forconsideration or otherwise. MCIAA is aGOCC and an instrumentality, therefore,

RPT exemption granted under its charter iswithdrawn [MCIAA vs Marcos (1997)]

Tax exemption of property owned by theRepublic refers to properties owned by theGovernment and by its agencies which donot have separate and distinct personalities(unincorporated entities). The properties ofNDC belong to the Government. [NDC vsCebu, (1992)]

LGUs, in addition to administrativeautonomy, also enjoy fiscal autonomy. LGUshave the power to create their own sourcesand revenue, in addition to their equitableshare in the national taxes as well as thepower to allocate resources in accordancewith their own priorities. A basic feature oflocal fiscal autonomy is the automaticrelease of the shares of the LGUs in thenational internal revenue. This is mandatedby no less than the constitution. Anyretention is prohibited. [Pimentel v Aguirre(2000)]

C. Eminent Domain

LGC Sec.19

Eminent Domain -- It is the ultimate right of thesovereign power to appropriate not only publicbut private property of citizens within theterritorial sovereignty to public purpose [CharlesRiver Bridge vs. Warren Bridge, (1837)]

Requisites for a Valid Exercise of EminentDomain (COP-JO)a. Through the Chief Executive of LGUb. Acting pursuant to an ordinancec. For the purposes of:

Public use or welfare For the benefit or the poor and the

landlessd. Payment of just compensation

Amount determined by proper court Based on fair market value at the time of

the takinge. Valid and definite offer made

Right by the State to immediately takepossession: Upon filing of expropriation proceedings Upon deposit with proper court of at least

15% of the fair market value of the property

Article 35 IRR of LGC Offer to buy private property for public use

or purpose shall be in WRITING. It shallspecify the property sought to be acquired,the reasons for the acquisition, and the priceoffered.


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If the owner’s accept the offer in its entirety,a contract of sale shall be executed andpayment made

If the owner/s are willing to sell their propertybut at a price higher than that offered tothem, the local chief executive shall callthem to a conference for the purpose ofreaching an agreement on the selling price.The chairman of the appropriation or financecommittee of the Sanggunian, or in hisabsence, any member of the Sanggunianduly chosen as its representative, shallparticipate in the conference. When anagreement is reached by the parties, acontract of sale shall be drawn andexecuted.

The contract of sale shall be supported bythe following documents: Resolution of the Sanggunian

authorizing the local chief executive toenter into a contract of sale. Theresolution shall specify the terms andconditions to be embodied in thecontract.

Ordinance appropriating the amountspecified in the contract, and

Certification of the local treasurer as toavailability of funds together with astatement that such fund shall not bedisturbed or spent for any purpose otherthan to pay for the purchase of theproperty involved.

Illustrations of Eminent Domain There is no need to get DAR approval

before expropriation [Camarines Sur vs CA(1993)]

There must be genuine necessity of a publiccharacter. There is no genuine necessity ifanother road more ideal is available.[Meycauyan vs IAC (1988)]

The ordinance which requires cemeteries toset aside a portion of their lots to paupers isnot an exercise of police power, but a takingwithout compensation. [QC vs Ericta (1983)]

Eminent domain may be exercised overeasements (property rights), not just landsor personal property. [NPC vs Jocson(1992)]

Necessity does not contemplate theeconomic relief of a few families devoid ofany other public advantage [Manila vsArellano (1950)]

Eminent domain requires an ordinance, notjust a resolution. Res judicata does notapply to expropriation cases [Paranaque vsVM Realty (1998)]

Just compensation shall be determined atthe time of taking, NOT at the time of filing

complaint Although the general rule indetermining just compensation in eminentdomain is the value of the property as of thedate of filing of the complaint, the ruleadmits of an exception: where the SC fixedthe value of the property as of the date itwas taken and not at the date of thecommencement of the expropriationproceedings. Finally, while sec.4, Rule 67 ofthe Rules of Court provides that justcompensation shall be determined at thetime of the filing of the complaint forexpropriation, such law cannot prevail overthe Local Government Code, which issubstantive law. [Cebu vs Apolonio (2002)]

It is possible that the purpose forexpropriation is changed after such isgranted. [Republic vs CA (2002)]

Immediate Entry by the LGU

Requisites for immediate entry of LGU:1. Filing of complaint for expropriation sufficient

in form and substance2. The deposit of the amount equivalent to

15% of the fair market value of the propertyto be expropriated based on the current taxdeclaration [Bardilion v Masili (2003)] Upon compliance with the requirements

for immediate entry, the issuance of awrit of possession becomes ministerial.No hearing is required for theissuance of the writ. The LGC did notput a time limit as to when a LGU mayimmediately take possession of theproperty. As long as the expropriationproceedings have been commencedand the deposit made, the LGU cannotbe barred from praying for the issuanceof writ of possession. [City of Iloilo vLegaspi (2004)]

Socialized Housing The UDHA and the Expropriation by the

LGUs i.e. Sec.9 of the Urban Land andHousing Act, which speaks of PRIORITIESin acquisition) should be read in connectionwith Sec.10 (MODES of acquisition).

If the land sought to be expropriated islocated in urban areas and fall under theUDHA, the LGU must allege compliancewith Secs.9 and 10 for their suit to prosper.Otherwise, it would be premature.

Cases Under the Urban Land and Housing Act,

there is a priority in expropriation of whichthe properties of the government or any ofits subdivision rank number one and


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privately owned properties ranked last. Also,the said act provides that expropriationshould be the last alternative, giving way toother modes of acquisition like communitymortgage and swapping. Otherwise it wouldbe deprivation of property. [FilstreamInternational Inc v CA (1998)]

The UDHA introduced a limitation on thesize of the land sought to be expropriated for

socialized housing. It exempted “smallproperty owners”. The elements of smallproperty owners are: 1. Those owners ofreal property which consists of residentiallands with an area of not more than 300sq.meters in highly urbanized cities (800 inother urban cities); 2. They do not own realproperty other than the same. [City ofManadaluyong v Aguilar (2001)]

D. Basic Services and Facilities

LGC Sec . 17

Barangay Municipality Province CityAgricultural supportservices

Agriculture and fisheryextension and on-siteresearch services andfacilities

Agricultural extensionand on-site researchservices and facilities;organization of farmersand fishermen’scooperatives

See municipality andprovince

Health services Same; health centersand clinics

Same, includinghospitals and tertiaryhealth services


Social welfare services Same Same, including rebelreturnees andevacuees,reliefoperations populationdevelopment services


General hygiene andsanitation

Same See municipality andprovince

Solid waste collection Solid waste disposalsystem orenvironmentalmanagement system

KatarungangPambarangay

N/A N/A N/A

Maintenance of roads,bridges and watersupply systems

Road, bridges,communal irrigation,artesian wells, drainage,flood control

Similar to those formunicipality


Infrastructure facilities(e.g. plaza, multi-purpose hall)

Municipal buildings,cultural centers, publicparks


Information and readingcenter

Information services, taxand marketinginformation systems andpublic library

Upgrading andmodernization of taxinformation andcollection services


Satellite or publicmarket

Public markets,slaughterhouses


Implementation ofcommunity-basedforestry projects

Enforcement of forestrylaws, limited tocommunity-basedforestry projects,pollution control law,small-scale mining law,mini-hydroelectric



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Barangay Municipality Province Cityprojects for localpurposes

School Buildings See municipality andprovince

Public cemetery See municipality andprovince

Tourism facilities Tourism developmentand promotionprograms


Police, fire station, jail Same SameIndustrial research anddevelopment services

Same

Low cost housing andother mass dwellings

Same

Investment supportservices

Same

Inter-municipaltelecommunicationservices

Adequatecommunication andtransportation facilities.

E. Reclassification of Lands

LGC Sec. 20

By a City or Municipality Through an ordinance passed by

Sanggunian After conducting public hearings Provide manner of disposition

Land ceases to be economicallyfeasible and sound for agriculturalpurposes as determined by theDepartment of Agriculture

Land shall have substantiallygreater economic value forresidential, commercial, or industrialpurposes, as determined by theSanggunian

Limited to the following percentage ofthe total agricultural land area at thetime of passage of the ordinance For highly urbanized and

independent component cities: 15% For component cities and first to the

third class of municipalities: 10% For fourth to sixth class

municipalities: 5% Limited by RA 6657 or the

“Comprehensive Agrarian Reform Law” Agricultural lands distributed to

agrarian reform beneficiaries shallnot be affected

Conversion into other purposesgoverned by sec.56 RA6657

Nothing repealing, amending ormodifying RA6657

By the President When public interest so requires Upon recommendation of the NEDA May authorize a city or municipality to

reclassify lands in excess of the limits

Approval of national agency When required, shall not be

unreasonably withheld Failure to act: deemed approval

Within 3 mos. from receipt Proper and complete application for

reclassification Comprehensive Land Use Plans

Enacted through zoning ordinances Shall be the primary and dominant

bases for the future use of landresources

Factors to consider-requirements foro Food productiono Human settlementso Industrial expansion

NOTES: Land use conversion: the act or process of

changing the current use of a piece ofagricultural land into some other use asapproved by the DAR

Reclassification: designation of intendeduse of land within the territory. The land isnot currently used as agricultural, although itis classified as such

Requisites for Reclassification of Land:(PAO)1. Ordinance passed by Sanguniang Bayan or

Panglungsod after public hearingsconducted for the purpose


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2. Agricultural land must either:a. cease to be economically feasible

and sound for agricultural purposes asdetermined by the Department ofAgriculture, OR

b. have substantially greater economicvalue for residential, commercial, orindustrial purposes, as determined bythe Sanggunian concerned

3. Reclassification shall be limited to thepercentages of the total agricultural landarea at the time of the passage of theordinance as prescribed by the LGC

Take note however, of:o LGU need not obtain approval of DAR to

convert or reclassify land from agri to non-agri [Fortich v Corona (1998)]

o DAR is mandated to approve or disapproveapplications for conversion [Roxas v CA(1999)]

F. Corporate Powers

LGC Sec 22

Every LGU, as a corporation has thefollowing powers: (SC-PCSO)a. To have continuous succession in its

corporate nameb. To sue and be suedc. To have and use a corporate seald. To acquire and convey real or personal

propertye. To enter into contractsf. To exercise such other powers as are

granted to corporations Limitations: as provided in LGC and

other laws

Corporate Seal LGUs may continue using, modify, or

change their existing corporate seals Newly established LGUs or those

without corporate seals May create own corporate seals Registered with the DILG Change of corporate seal shall be

registered with the DILG

Contract entered into by local chiefexecutive un behalf of LGU Prior authorization by Sanggunian Legible copy of contract posted at a

conspicuous place in the Provincial capitol or City, municipal or barangay hall

Cases The authority of a municipality to fix and

collect rents for water supplied by itswaterwork system is expressly granted bylaw. However, even without these provisionsthe authority of the municipality to fix andcollect fees from its waterworks would bejustified from its inherent power toadminister what it owns privately. [NAWASAv Dator (1967)]

If the property is owned by the municipalityin its public and governmental capacity, theproperty is public and Congress hasabsolute control over it; if the property isowned in its private or proprietary capacity,then it is patrimonial and Congress has noabsolute control. In which case, themunicipality cannot be deprived of it withoutdue process and payment of justcompensation. [Province of Zamboanga vCity of Zamboanga (1968)]

Authority to Negotiate and Secure Grants

LGC Sec.23

Who may negotiate: Local Chief Executive (upon authority of

Sanggunian) What are negotiated

Financial grants or donations in kind insupport of basic services or facilities

From local and foreign assistanceagencies

Approval by national agency concerned No necessity of securing clearance from

national agency IF with national security implications

Shall be approved by nationalagency concerned

Failure to act on request forapproval within 30 days fromreceipt: deemed approved

Reporting duty: local chief executive shallreport to both Houses of Congress and thePresident Nature Amount Terms Within 30 days upon signing of grant

agreement or deed of donation


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G. Local Legislative Power

LGC Sec.48-59

Exercised by (Sec.48) Sangguniang panlalawigan for the

province Sangguniang panglungsod for the city Sangguniang bayan for the municipality Sangguniang barangay for the barangay

Presided by (Sec.49): Vice-governor or vice-mayor or punong

barangay will vote only in case of a tiebecause he is not a member of theSanggunian. [Perez vs Dela Cruz(1969)]

The incumbent local chief executiveacting as the chief executive may notpreside over the sessions of theSanggunian. Why? To ensure betterdelivery of public services and provide asystem of checks and balances betweenthe executive and legislative. [Gamboavs Aguirre]

Inability of the above: members presentand constituting a quorum shall electfrom among themselves a temporarypresiding officer

Who shall certify within 10 days from thepassage of the ordinances enacted andresolutions adopted by the sanggunianin the session over which he temporarilypresided

Internal Rules of Procedure (Sec.50): Adopted/update on the 1

stregular

session following election of itsmembers- within 90 days

Provides for: Organization of the Sanggunian and

the election of its officers Standing Committees

o Creation (Including thecommittees on appropriations,women and family, humanrights, youth and sportsdevelopment, environmentalprotection, and cooperatives;the general jurisdiction of eachcommittee

o Election of the chairman andmembers of each committee Order and calendar of

business for each session Legislative process

Parliamentary procedures (includingthe conduct of members duringsessions)

Discipline of members for disorderlybehavior and absences (withoutjustifiable cause for 4 consecutivesessions)

Penalty: censure, reprimand, orexclusion from the session,suspension for not more than 60days or expulsiono Suspension or expulsion:

requires concurrence of at least2/3 vote of all Sanggunianmembers

o A member convicted by finaljudgment to imprisonment of atleast 1 year for any crimeinvolving moral turpitude shallbe automatically expelled fromthe Sanggunian Other rules as the

Sanggunian may adopt

Quorum (Sec.53) Quorum. Majority of all members of the

Sanggunian who have been elected andqualified

Questions of quorum is raised: thepresiding officer shall immediatelyproceed to call the roll of the membersand announce the results

No quorum: the presiding officer maydeclare a recess until such time as aquorum is constituted OR a majority of the members

present may adjourn from day today and may compel the immediateattendance of any member absentwithout justifiable cause by arrestingthe absent member and present himat the session

No business shall be transacted

Sessions (Sec.52) Regular sessions: fixed by resolution on

1st

day of the session immediatelyfollowing the election of its members Minimum numbers of regular

sessions: once a week(panlalawigan, panlungsod, bayan)and twice a month for theSangguniang Barangay

Special session: may be called by thelocal chief executive or by a majority ofthe members of the Sanggunian-cause:when public interest demands Written notice: served personally at

the member’s usual place of


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residence at least 24 hours beforethe session

Unless otherwise concurred in by2/3 vote of the Sangguniangmembers present, there being aquorum, no other matters may beconsidered except those stated inthe notice Open to the public

UNLESS a closed-door session isordered by an affirmative vote of amajority of the members present(there being a quorum)

In the public interest or for reasonsof secrecy, decency or morality

No 2 sessions may be held in a singleday

Journal and record of its proceedingswhich may be published upon resolutionof the Sanggunian concerned

How many votes required General Rule: Majority of the members

constituting a quorum When the enactment itself specifies the

number of votes required, suchrequirement will govern over the generalrule specified in the charter or the LGC,when such enactment is to be amended.Why? Because the municipal authoritiesare in a better position to determine thevotes required. [Casino vs CA (1991)]

Approval, Veto and Review of Ordinances Every ordinance shall be presented to

the governor or mayor, as the case maybe Approves: affix his signature on

each and every page Disapproves: veto it and return the

same with his objections to theSangguniano Override: 2/3 vote of all its

members making the ordinanceeffective even without theapproval of the local chiefexecutive concerned

o Veto communicated to theSanggunian within 15 days inthe case of a province, and 10days in the case of a city or amunicipality; otherwise, theordinance shall be deemedapproved

Veto (Sec.55): local chief executive mayveto any ordinance on the ground that itis ultravires or prejudicial to the publicwelfare, stating his reasons for writing

Veto an ordinance or resolution onlyonce

Local chief executive (except thepunong barangay) power to vetoany particular item or itemso An appropriations ordinanceo Ordinance or resolution

adopting a local developmentplan and public investmentprogram

o Ordinance directing thepayment of money or creatingliability

o (where the veto shall not affectthe item or items which are notsubjected to)

Review of (component) City orMunicipal Ordinanceso Within 3 days after approval, the

secretary shall forward to theSangguniang Panlalawigan forreview, copies of approvedordinances and the resolutionsapproving the local developmentplans and public investmentprograms formulated by thelocal development councils

o Within 30 days after the receiptof copies, the SangguniangPanlalawigan shall examine thedocuments or transmit them tothe provincial attorney, or ifthere be none, to the provincialprosecutor for examination.Provincial attorney or prosecutorshall: within 10 days fromreceipt, inform the Sanggunianin writing of his comments orrecommendations

Finding: beyond the powerconferred, it shall declare suchordinance or resolution invalid inwhole or in part--action entered inthe minutes and shall advise thecorresponding city or municipalauthorities of the action—(sec 58).Any attempt to enforce anyordinance or any resolutionapproving the local developmentplan and public investment program,after the disapproval, shall besufficient ground for the suspensionor dismissal of the official oremployeeo No action within 30 days after

submission: presumedconsistent with the law and valid

Ordinance enacted by the Sangguniangbarangay shall upon approval by the


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majority of all its members, be signed bythe punong barangay

Review by Sangguniang Panglungsodor Bayano Within 10 days after its enactment,

the sangguniang barangay shallfurnish copies to

o The sangguniang panglungsod orsangguniang bayan concerned forreview as to whether the ordinanceis consistent with law and city ormunicipal ordinances

o No action for 30 days from receipt:ordinance shall be deemedapproved

o Finding: inconsistent with law or cityor municipal ordinances—thesanggunian shall, within 30 daysfrom receipt, return the same with itscomments and recommendations tothe sangguniang barangay foradjustment, amendment, ormodification

Effectivity: suspended until such time asthe revision called for is effected

Summary of Review of Ordinances

Component City or MunicipalityOrdinances and Resolutions

Barangay Ordinances

Reviewed by Sangguniang panlalawigan Sangguniang panglungsod orsangguniang bayan

Furnish copies ofordinances or resolutionwithin

3 days after approval of ordinance orresolution approving the localdevelopment plans and publicinvestment programs formulated by thelocal development councils

10 days after enactment of ALLordinances

Period to examinedocuments

30 days after receipt of copies, afterwhich the ordinance or resolution ispresumed valid if no action is taken.

30 days after receipt of copies,after which ordinance ispresumed valid if no action istakenWithin 30 days, it may also be

transmitted to the provincial attorney orprosecutor for examination; said atty. orprosecutor shall give his writtenrecommendations within 10 days fromreceipt of document

Ground to invalidateordinance or resolution

Ordinance or resolution is beyond thepower conferred upon the Sanggunianconcerned

Ordinance is inconsistent withlaw and city or municipalordinancesIn such case, the sangguniangbarangay may adjust, amend ormodify the ordinance within 30days from receipt from thesangguniang panglungsod orsangguninang bayan


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Effectivity of Ordinances or Resolutions Sec59

General rule: the same shall take effectafter 10 days from the date a copy is posted Exception: unless otherwise stated in

the ordinance or the resolutionapproving the local development andpublic investment program

Ordinances with penal sanctions: gistshall be published in a newspaper ofgeneral circulation within the provincewhere the local legislative bodyconcerned belongs

Absence of any newspaper: postingshall be made in all municipalities andcities of the province where thesanggunian of origin is situated.

Highly urbanized and independentcomponent cities: the main features ofthe ordinance or resolution in addition tobeing posted, shall be published in alocal newspaper of general circulationwithin the city

Absence of local newspaper: anynewspaper of general circulation

Full disclosure of Financial and BusinessInterests of Sanggunian Members

* Conflict of interestSec 50 Upon assumption of office, make a full

disclosure of: His business and financial interests Professional relationship or any

relation by affinity or consanguinitywithin the fourth civil degree

Which he may have with any person,firm, or entity affected by any ordinanceor resolution which relationship mayresult in conflict of interest including: Ownership of stock or capital, or

investment, in the entity or firm towhich the ordinance or resolutionmay apply

Contracts or agreements with anyperson or entity which the ordinanceor resolution under considerationmay affect conflict of interest.

TEST: One where it may be reasonablydeduced that a member of a sanggunian maynot act in the public interest due to some private,pecuniary, or other personal considerations thatmay tend to affect his judgment to the prejudiceof the service or the public

CasesThe LGC does not mandate that no otherbusiness may be transacted on the first regularsession except to take up the matter of adoptingor updating rules. All that the law requires is that“on the 1” regular session…the sanggunianconcerned shall adopt or update its existingrules or procedures”. Until the completion of theadopted or updated rules, the rules of theprevious year may be used. [Malonzo v Zamora(1999)]

Disclosure shall be made in writing andsubmitted to the secretary of the sanggunian

Form part of the record of the proceedingsand shall be made in the following manner: Made before the member participates in

the deliberations on the ordinance orresolution under considerationo If the member did not participate

during the deliberations, thedisclosure shall be made beforevoting on the ordinance or resolutionon second and third readings

o Made when a member takes aposition or makes a privilege speechon a matter that may affect thebusiness interest, financialconnections, or professionalrelationship

Updated rules, the rules of the previous yearmay be used.

The signature of the mayor is not amere ministerial act, but involves theexercise of discretion on the part of thelocal chief executive. [Delos Reyes vSandiganbayan (1997)]

Incidents of Law-Making (Legislative) Power:

Posting and Publication of: Tax ordinances and Revenue measures

Sec188 Within 10 days after approval Certified true copies of all provincial,

city, or municipal tax ordinances orrevenue measures

Published in full for 3 consecutivedays

In a newspaper of local circulation Where no such newspaper:

posted in at least 2 conspicuousand publicly accessible places

Ordinance with penal sanctions Sec 511 At prominent places in the provincial

capitol, city, municipal or barangayhall


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Minimum period: 3 consecutiveweeks

Publication In a newspaper of a general

circulation Within territorial jurisdiction Except: barangay ordinances Effectivity: unless otherwise

provided on the day following itspublication or at the end of period ofposting, whichever is later

Violation by public officer oremployeeo May be meted administrative

disciplinary actiono Without prejudice to filing of

appropriate civil or criminalaction

Duty of Secretary of Sanggunian:o Shall transmit official copies to

the chief executive of OfficialGazette

o Within 7 days following approvalof ordinance

o Purpose for publicationo If with penal sanction: for

archival and reference purposes

Judicial InterventionRules of Court, Rule 63, Sec.4

Actions involving the validity of a localgovernment ordinance: Prosecutor or attorney of the LGU

involved shall be notified and entitled tobe heard;

Alleged to be unconstitutional: SolicitorGeneral shall also be notified andentitled to be heard.

The failure of the SolGen to appear in the lowercourt to defend the constitutionality of anordinance is not fatal to the case. Thedetermination of the question of WON theSolGen should be required to appear “in anyaction involving the validity of any treaty,law, executive order, rule or regulation” is amatter left to the discretion of the Court.Inasmuch as the said requirement is notmandatory, but discretionary, noncompliancetherewith affected neither the jurisdiction of thetrial court nor the validity of the proceedings.[Homeowner’s Association of the Phil. Inc. vMunicipal Board of Manila (1968)]

POLITICAL LAW REVIEWER Chapter IV. LOCAL INITIATIVE and REFERENDUM

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Chapter IV. Local Initiative andReferendum

A. DEFINITIONB. REQUIREMENTSC. PROCEDURED. EFFECTIVITY OF LOCAL PROPOSITIONSE. LIMITATIONS ON INITIATIVESF. LIMITATIONS UPON LOCAL LEGISLATIVE

BODIES

A. Definition

NOTE:Garcia v COMELEC (1994): Both a resolutionand an ordinance may be the proper subjectsof an initiative or a referendum

(Based on LGC Sec. 120-127 and RA 6735:AN ACT PROVIDING FOR A SYSTEM OFINITIATIVE AND REFERENDUM)

Initiative: legal process whereby theregistered voters of a LGU may directlypropose, enact, or amend any ordinance

Referendum: legal process whereby theregistered voters of the LGUs may approve,amend or reject any ordinance enacted bythe sanggunian.

Who may exercise — all registered votersof the provinces, cities, municipalities andbarangays

B. Requirements

a. Referendum or initiative affecting aresolution or ordinance passed by thelegislative assembly of a province or city:o petition must be signed by at least 10%

of the registered voters in the provinceor city,

o of which every legislative district mustbe represented by at least 3% of theregistered voters therein;

o Provided, however, that if the provinceor city is composed only of 1 legislativedistrict, then at least each municipality ina province or each barangay in a cityshould be represented by at least 3% ofthe registered voters therein.

b. Referendum or initiative on an ordinancepassed in a municipality: petition must besigned by at least 10% of the registeredvoters in the municipality, of which everybarangay is represented by at least 3% ofthe registered voters therein

c. Referendum or initiative on a barangayresolution or ordinance: must be signedby at least 10% of the registered voters insaid barangay

C. Procedure

a. Not less than 1,000 registered voters in caseof provinces and cities, 100 in case ofmunicipalities, and 50 in case of barangays,may file a petition with the local legislativebody, respectively, proposing the adoption,enactment, repeal, or amendment, of anylaw, ordinance or resolution

b. If no favorable action thereon is made bylocal legislative body within 30 days from itspresentation, the proponents through theirduly authorized and registeredrepresentative may invoke their power ofinitiative, giving notice thereof to the locallegislative body concerned

c. 2 or more propositions may be submitted inan initiative

d. Proponents shall have 90 days in case ofprovinces and cities, 60 days in case ofmunicipalities, and 30 days in case ofbarangays, from notice mentioned insubsection (b) hereof to collect the requirednumber of signatures

e. The petition shall be signed before theElection Registrar, or his designatedrepresentative, in the presence of arepresentative of the proponent, and arepresentative of the regional assembliesand local legislative bodies concerned in apublic place in the LGU

f. If the required number of signatures areobtained, the COMELEC shall then set adate for the initiative for approval of theproposition within 60 days from the date ofcertification by the COMELEC in case ofprovinces and cities, 45 days in case ofmunicipalities, and 30 days in case ofbarangays

D. Effectivity of Local Propositions

If the proposition is approved by a majority of thevotes cast, it shall take effect 15 days aftercertification by the COMELEC

E. Limitations on Initiatives

a. The power of local initiative shall not beexercised more than once a year.

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b. Initiative shall extend only to subjects ormatters which are within the legal powers ofthe local legislative bodies to enact.

c. If at any time before the initiative is held, thelocal legislative body shall adopt in toto theproposition presented, the initiative shall becancelled. However, those against suchaction may, if they so desire, apply forinitiative in the manner herein provided.

F. Limitations Upon Local LegislativeBodies

Any proposition or ordinance or resolutionapproved through the system of initiative andreferendum as herein provided shall:a. not be repealed, modified or amended, by

the local legislative body concerned within 6months from the date therefrom, and

b. may be amended, modified or repealed bythe local legislative body within 3 years by avote of 3/4 of all its members:

c. Provided, however, that in case ofbarangays, the period shall be 18 monthsafter the approval.

Local Referendum — Any local legislativebody may submit to the registered voters ofautonomous region, provinces, cities,municipalities and barangays for theapproval or rejection, any ordinance orresolution duly enacted or approved.

Courts are not precluded from declaring nulland void any proposition approved forviolation of the Constitution or want ofcapacity of the local legislative body to enactthe said measure.

Cases A resolution may be the subject of an

initiative or referendum. [Garcia vsCOMELEC (1994)]

Initiative: power of the people to proposebills and laws, and to enact or reject them atthe polls independent of the legislativeassembly.

Referendum is the right reserved to thepeople to adopt or reject any act or measurewhich has been passed by a legislative bodyand which in most cases would withoutaction on the part of electors become law.

These law-making powers belong to thepeople and the COMELEC only exercisesadministration and supervision of theprocess. Hence, COMELEC cannot controlor change the substance or the content ofthe legislation.

COMELEC should have prepared for aninitiative, not a referendum. [SBMA v.COMELEC (1996)]

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Chapter V. Municipal Liability

(asked in 1994)

A. SPECIFIC PROVISIONS MAKING LGUSLIABLE

B. LIABILITY FOR TORTS, VIOLATION OF THELAW AND CONTRACTS

C. PERSONAL LIABILITY OF PUBLIC OFFICIAL

A. Specific Provisions making LGUsLiable

LGC, Sec. 24

LGUs and their officials are not exempt fromliability for death or injury to persons or damageto property.

Civil Code, Art. 34

When a member of a city or municipal policeforce refuses or fails to render aid or protectionto any person in case of danger to life orproperty, such peace officer shall be primarilyliable for damages, and the city or municipalityshall be subsidiarily responsible therefor.

Civil Code, Art. 2180, par. 6

The obligation imposed by Article 2176 isdemandable not only for one’s own acts oromissions, but also for those of persons forwhom one is responsible. X X X The State isresponsible in like manner when it acts througha special agent; but not when the damage hasbeen caused by the official to whom the taskdone properly pertains, in which case what isprovided in Article 2176 shall be applicable.

Civil Code, Art. 2189

Provinces, cities and municipalities shall beliable for damages for the death of, or injuriessuffered by, any person by reason of thedefective condition of roads, streets, bridges,public buildings, and other public works undertheir control or supervision.

B. Liability for Torts, Violation of theLaw and Contracts

WHEN LGU IS LIABLECASE DEFENSE

(1) If the LGU fails toperform a governmentalfunction(e.g., maintenance ofroads under CC Art.2189, rendering aid andprotection under CC Art.34)

Exercise of due diligencein the selection andsupervision is not adefense.

(2) If engaged inproprietary functions,

Defense of due diligencein the selection andsupervision available only

if the function involved isa corporate function.RATIO: because thisdefense is available onlyto private employers.

WHEN LGU IS NOT LIABLEIf damage resulted from an act of LGU in theperformance of governmental functions

Illustrations1. On ContractRULE: The LGU is liable only for contracts thatare intra vires. The Doctrine of Implied Municipal Liability

provides that an LGU may become obligatedupon an implied contract to pay reasonablevalue of the benefits accepted by it as towhich it has the general power to contract[Cebu vs IAC (147 S 447)]

BUT the LGU may not be estopped in orderto validate a contract which the LGU is notauthorized to make EVEN IF it has acceptedthe benefits thereunder [San Diego vs Mun.Of Naujan (107 P 112)]

A private individual who deals with a LGU isimputed with constructive knowledge of theextent of the power or authority of the LGUto enter into contracts. Thus, ordinarily, thedoctrine of estoppel does not lie against theLGU.

2. On Tort If in the performance of a governmental

function, the LGU is NOT liableo The prosecution of crimes, even if injury

occurs [Palafox vs Ilocos Norte (1958)] If in the performance of a proprietary

function, the LGU is liableo The improper grant of a ferry service

franchise [Mendoza vs de Leon (1916)]o NOTE: Municipal corporations’ liability to

private persons for the wrongfulexercise of the corporate powers is thesame as that of a private corporation orindividual [Mendoza vs de Leon (1916)]

o Deaths caused by a collapsed stage in atown fiesta [Torio vs Fontanilla (1978)]

o Back pay or wages of employeesillegally dismissed, including thoseinvolving primary governmentalfunctions (eg policemen) [Guillergan vGanzon (1966)]

3. By Express Provision of Law Article 2189, CC

o When a person falls in an open manholein the city streets [Manila vs Teotico(198)]

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o When a person steps on a rusted nail ina flooded public market [Jimenez vsManila (150 S 510)]

o When accidents are caused by defectiveroads even if the road does not belongto the LGU as long as it exercisescontrol or supervision over said road[Guilatco vs Dagupan (171 S 382)]

o Damages suffered through accidents innational roads under the control andsupervision of an LGU (cause is unsaferoad conditions, especially when there isgross negligence [Municipality of SanJuan v. CA (2005)]

o Also exemplary damages may begranted when public officials acted withgross negligence [Quezon City vDacana (2005)]

Article 2180, CCo When the State acts through a special

agent [Merritt vs Government (34 P311)]

4. On Violation of Law When the Mayor refused to abide by a TRO

issued by the court, he may be held incontempt [Moday v CA (1997)]

When the LGU does not pay the statutoryminimum wage (mandated by law) even ifthere is lack of funds [Racho vs Ilagan,Isabela (198)]

C. Personal Liability of Public Official

RULE: The public official is personally liable if heacts beyond the scope of his powers OR if heacts with bad faith

Illustrations Mayor exceeding authority in vetoing a

resolution passed by the Sanggunian [Pilar vSangguniang Bayan ng Dasol (1984)]o [Note that under CC27, a public servant

is personally liable for damages for hisrefusal or neglect to perform his officialduty]

When the officials incorrectly ordered theconstruction of a drug rehabilitation center[Angeles vs CA (21 S 90)]

When officials illegally dismiss an employee[Rama vs CA (148 S 49)]

When the official defies an order ofreinstatement of an illegally dismissedemployee [Correa vs CFI (92 S 312)]

o The Mayor pays for the back salaries ofan illegally dismissed employee[Nemenzo vs Sabillano (25 S 1)]

o The Governor pays for moral damagesfor refusing the reinstatement of anemployee [San Luis vs CA (1989]

A public officer, whether judicial, quasi-judicial or executive, is not personally liableto one injured in consequence of an actperformed within the scope of his officialauthority, and in line of his official duty.[Tuzon v. CA (1992)]

The holding of a town fiesta is a proprietaryfunction, though not for profit, for which amunicipality is liable for damages to 3rdpersons ex contractu or ex delicto.;o that under the principle of respondeat

superior the principal is liable for thenegligence of its agents acting within thescope of their assigned tasks; and

o that the municipal councilors have apersonality distinct and separate fromthe municipality, [ Torio v. Fontanilla(1978)]

Hence, as a rule they are not co-responsiblein an action for damages for tort or negligenceunless they acted in bad faith or have directlyparticipated in the commission of the wrongfulact.

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Chapter VI. Intergovernmental Relations– National Government and LGUs

I. EXECUTIVE SUPERVISIONII. CONSULTATIONSIII. RELATIONS WITH PNPIV. OTHER RELATIONS

I. Executive Supervision

A. 1987 Constitution, Art. X, Sec. 2 and 4

Sec. 4. The President of the Philippines shall exercisegeneral supervision over local governments.Provinces with respect to component cities andmunicipalities, and cities and municipalities withrespect to component barangays shall ensure that the acts of their component

units are within the scope of their prescribedpowers and functions.

GENERAL RULE: The President has control ofall executive departments, bureaus and offices.

Doctrine of Qualified Political Agency. Allexecutive and administrative departmentsare adjuncts of the Executive. The acts ofthe secretaries of departments, performedand promulgated in the regular course ofbusiness are presumptively acts of the ChiefExecutive.

EXCEPTION: Local Government Units The President has no power of control over

local governments, unlike in executiveoffices, departments and bureaus. [Torre vsBayot (1974)]

Illustrations The constitutional provision limiting the

authority of the President over LGUs togeneral Supervision is unqualified. Hence, itapplies to all powers of LGUs, corporate andpolitical alike [Hebron vs Reyes (1958)]

The Sec. of Justice cannot entertain anyprotest involving the election of theFederation of Barangays. Otherwise, he willhave control over LG officials. Worse,ordering a new election is contrary tosupervision [Taule vs Santos (1997)]

The Pres.’ power of general supervisionextends to the Liga ng mga Barangay.Hence, the DILG Sec, as an alter ego of thePres., may not amend the guidelinespromulgated by the National Liga Board[Bito-Onon vs Fernandez (2001)]

The DILG Sec may not be appointed asinterim caretaker to manage and administerthe affairs of the Liga. Such is tantamount tocontrol [National Liga ng mga Barangay vsParedes (2004)]

B. Administrative Code of 1987, Title XIIChapter I

(as amended by RA 6975)

The Department of the Interior and LocalGovernment DILG has primary role of preserving internal

security (including suppression ofinsurgency)

AFP has primary role in preserving externalsecurity

Supportive role of PNP Upon call of President upon

recommendation of peace and ordercouncil

In areas where there are serious threatsto national security and public order insurgents have gained

considerable foothold in thecommunity thereby necessitatingthe employment of bigger tacticalforces and the utilization of highercaliber armaments and betterarmored vehicles

National Supervision over LGU Supervision is exercised:

1. To ensure that acts of localgovernments and their componentunits are within the scope of theirprescribed powers and functions.(Sec. 4, Art. X, Constitution; Sec.25(a) LGC)

2. To ensure that laws are faithfullyexecuted in autonomous regions.(Sec. 16, Art. X, Constitution)

General Supervision President of the Philippines shall

exercise general supervision over: Local governments (Sec.4, Art.

X, Constitution; Sec. 25(a)LGC)

Autonomous regions (Sec.16,Art. X, Constitution)

o Direct supervision over Provinces Highly urbanized cities Independent component cities

o Through the province, with respectto


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Component cities Municipalities

o Through the city and municipality,with respect to barangays

National Agencies National Agencies (Sec. 25 (b),(c),(d)

LGC) With project implementation

functions: ensure participation ofLGUs in planning andimplementation of national projects;

With field units or branches in anLGU: furnish the local chiefexecutive of the LGU concernedwith monthly reports including dulycertified budgetary allocations andexpenditures;

Upon request of LGU, the Presidentmay direct the appropriate nationalagency to provide financial,technical or other forms ofassistance at no extra cost to theLGU concerned.

The petitioners are under the impression that the1987 Constitution has left the President meresupervisory powers, which supposedly excludesdisciplinary authority and the power ofinvestigation.

It is a mistaken impression becausesupervision is not incompatible withdisciplinary authority, and “investigating” is notinconsistent with “overseeing” in supervision,although it is a lesser power than “altering” incontrol. The Constitution did not, for the sake oflocal autonomy, intend to deprive the legislatureor the President of all authority over municipalcorporations, in particular, concerningdiscipline. [Ganzon v. CA (supra)]

Sec. 187 of the LGC authorizes the Secretary ofJustice to review only the Constitutionality orlegality of the tax ordinance and, if warranted, torevoke it on either or both of these grounds. Heis not permitted to substitute his ownjudgment for the judgment of the localgovernment that enacted the measure. Anofficer in control may order the act undone, orredone, or may even decide to do it himself.Thus, the act of the DOJ Secretary in declaringthe Manila Revenue Code null and void for non-compliance with the requirements of the law wasnot an act of control but of mere supervision.[Drilon v. Lim (1994)]

II. Consultations

LGC Sec. 2(c), 26, 27

A. Declaration of Policy

Policy of the State: require all nationalagencies and offices to conduct periodicconsultations (before implementation of anyproject or program) with appropriate local government units nongovernmental and people's

organizations other concerned sectors of the

community

B. Maintenance of Ecological Balance

Sec. 26, LGC

Duty of national agency or government-owned or controlled corporation Involved in planning and implementation

of any project That may cause pollution, climatic

change, depletion of non-renewableresources, loss of crop land, rangeland,or forest cover, and extinction of animalor plant species

Consultation with LGUs, nongovernmentalorganizations, and other sectors concerned

C. Prior Consultation

Sec. 27, LGC

No project or program shall be implemented:

1. Without prior consultation with LGUs, non-governmental and

people's organizations, and otherconcerned sectors of the community,conducted by all national agencies andoffices (Sec. 2(c) LGC)

with LGUs, nongovernmentalorganizations, and other sectorsconcerned (Sec. 26 LGC)o conducted by the national agency or

government-owned or -controlledcorporation

o authorized or involved in theplanning and implementation of anyproject or program that may cause- pollution- climatic change- depletion of non-renewable

resources- loss of crop land, rangeland, or

forest cover- extinction of animal or plant


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specieso Explain the goals and objectiveso Explain its impact upon the people

and the community in terms ofenvironmental or ecological balance

o Measures that will be undertaken toprevent or minimize the adverseeffects

2. Without prior approval of sanggunianconcerned

3. Without provision for appropriate relocationsites for occupants who will be evicted

MEMORANDUM CIRCULAR NO. 521993 All officers and employees of National

Government agencies and offices, includingGOCCs, to strictly comply with the provisions ofthe LGC (and its IRR) on consultation

The provisions on consultation apply only tonational programs and/or projects which areto be implemented in a particular localcommunity. Moreover, Sec. 27 of the LGCshould be read in conjunction with Sec. 26 thus,the projects and programs mentioned in Sec. 27should be interpreted to mean projects andprograms that may:o cause pollutiono bring about climactic changeo cause the depletion of non-renewable

resourceso result in the loss of crop land, range-land or

forest covero eradicate certain animal or plant species

from the face of the planet; ando call for the eviction of a particular group of

people residing in the locality where the saidproject/program will be implemented [Lina v.Paňo (2001)]

NOTES: It shall be the duty of every national agency

or GOCC authorized or involved in theplanning and implementation of any projector program that may cause pollution,climactic change, depletion of non-renewable resources, loss of crop land,rangeland or forest cover, extinction ofanimal of plant species:1. To consult with the LGUs, NGOs and

other sectors concerned; and2. To explain: (a) the goals and objectives of

the project or program (b) its impact uponthe people and the community in terms ofenvironmental or ecological balance; (c)the measures that will be undertaken toprevent or minimize the adverse effectsthereof LGC, Sec. 26

No project or program shall be implementedby government authorities unless:

1. the consultations mentioned above arecomplied with; and

2. sanggunian concerned gave priorapproval LGC, Sec. 27

Occupants in areas where such projects areto be implemented shall not be evictedunless appropriate relocation sites havebeen provided, in accordance with theConst.

III. Relations with Philippine NationalPolice

LGC, Sec. 28

Powers of Local Chief Executives over theUnits of the PNP Extent of operational supervision and

control of local chief executives shall begoverned by RA6975 (DILG Act-‘ of1991) and other rules and regulations over the following:o police forceo fire protection unito jail management personnel

assigned in their respectivejurisdictions

Participation of Local GovernmentExecutives in the Administration of the PNPRA 8551, Sec. 62-65

Operational supervision and control: powerto direct, superintend, and oversee the day-to-day functions of police investigation ofcrime, crime prevention activities, and trafficcontrol includes the power to direct the

employment and deployment of units orelements of the PNP, through thestation commander, to ensure publicsafety and effective maintenance ofpeace and order within the locality

City and municipal mayors shall have thefollowing authority over the PNP units intheir respective jurisdictions:1) Authority to choose the chief of police

from a list of 5 eligibles recommendedby the provincial police director,preferably from the same province, cityor municipality

2) Authority to recommend to the provincialdirector the transfer, reassignment ordetail of PNP members outside of theirrespective city or town residences

3) Authority to recommend from a list ofeligibles previously screened by the


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peace and order council theappointment of new members of thePNP to be assigned to their respectivecities or municipalities without which nosuch appointments shall be attested

Control and supervision of anti-gamblingoperations shall be within the jurisdiction oflocal government executives

Governors and mayors, upon having beenelected and qualified as such, areautomatically deputized as representativesof the National Police Commission in theirrespective jurisdiction As deputized agents of the Commission,

local government executives can inspectpolice forces and units, conduct audit,and exercise other functions as may beduly authorized by the Commission

Grounds for suspension or withdrawal ofdeputation:1. frequent unauthorized absences2. abuse of authority3. providing material support to criminal

elements4. engaging in acts inimical to national

security or which negate theeffectiveness of the peace and ordercampaign

Cases Local executives are only acting as

representatives of NAPOLCOM. Unlesscountermanded by NAPOLCOM, their actsare valid. [Carpio vs Exec Sec (1992)]

The authority of the mayor to choose thechief of police is very limited. In reality, hehas no power of appointment; he has onlythe limited power of selecting one fromamong the list of recommendees. In effect,the power to appoint the chief of police isvested in the Regional Director. [Andaya v.RTC (1999)]

IV. Other Relations

A. Inter-local Relations

Sec 23-33 The province, through the governor, shall

ensure that every component city andmunicipality within its territorial jurisdictionacts within the scope of its prescribedpowers and functions. Highly urbanized

cities and independent cities shall beindependent of the province.

The city or municipality, through the city ormunicipal mayor, shall exercise generalsupervision over component barangays

Review of Executive Orders:o Governor—for E.O.s of component

cities and municipal mayorso City or Municipal Mayor—for E.O.s

of punong barangays.o Task of reviewing executive: ensure

that the E.O.s are within the powersgranted by law and in conformitywith provincial, city or municipalordinances

The LGU may secure the opinion of the ff (inproper order):

1. municipal legal officer,2. provincial legal officer,3. provincial prosecutor

LGUs may consolidate their efforts, servicesand resources for their common benefit

1. Requisite: proper ordinance,through a public hearing for the saidpurpose

B. Relations with Non-Governmentalorganizations

Sec 34-36 LGUs shall promote the establishment of

people’s and nongovernmentalorganizations

They may form joint ventures to engage inthe delivery of certain basic services,capacity building and livelihood projects, etc.

The LGU may provide assistance (financialor otherwise) for economic, socially-oriented, environmental or cultural projectso Requisites: Action by local chief

executive and concurrence of thesanggunian; The project is to beimplemented within the territorialjurisdiction of the LGU

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Chapter VII. Local Officials

I. ELECTIVE LOCAL OFFICIALSA. QUALIFICATIONSB. DISQUALIFICATIONSC. MANNER OF ELECTIOND. TERM OF OFFICEE. RULES ON SUCCESSIONF. RECALLG. DISCIPLINE

1. ADMINISTRATIVE ACTION2. PENALTIES

i) SUSPENSIONii) REMOVAL

3. POWER OF TRIBUNALS4. ADMINISTRATIVE APPEALS5. EFFECT OF RE-ELECTION

II. APPOINTIVE LOCAL OFFICIALSA. APPOINTMENTSB. DISCIPLINEC. REMOVALD. OFFICIALS COMMON TO ALL

MUNICIPALITIES, CITIES ANDPROVINCES

III. PROVISIONS APPLICABLE TO ELECTIVEAND APPOINTIVE OFFICIALSA. PROHIBITED INTERESTSB. PRACTICE OF PROFESSIONC. PROHIBITION AGAINST APPOINTMENT

IV. LOCAL BOARDS AND COUNCILSA. LOCAL SCHOOL BOARDB. LOCAL HEALTH BOARDC. LOCAL DEVELOPMENT COUNCILD. LOCAL PEACE AND ORDER COUNCIL

I. Elective Local Officials

A. Qualifications

LGC Sec. 39(Asked in 1992, 2003, 2005)(ACRRA)

1. Citizen of the Philippines2. Registered voter in the place where s/he

seeks to be elected3. Residency, in place where s/he seeks to be

elected, for at least 1 year immediatelypreceding the day of the election

4. Able to read and write Filipino or any otherlocal language or dialect

5. Age requirement:

Candidate for Minimum Age atElection Day

- Governor- Vice-governor- Member of the

SangguniangPanlalawigan

- Mayor- Vice-mayor- Member of the

Sangguniang Panlungsod

23

of Highly Urbanized Cities- Mayor or- Vice-mayor of

independent componentcities, component cities,or municipalities

21

- Member of theSangguniang Panlungsodor Sangguniang Bayan

18

- Punong barangay ormember of theSangguniang Barangay

18

- Sangguniang Kabataan at least 15 years ofage but not more than18 years of age onelection day(as amended underRA 9164)

The COMELEC may not deny due course orcancel a certificate without properproceedings. To receive and acknowledgereceipt of the certificates of candidacy is aministerial duty of the COMELEC. TheCOMELEC does not have discretion to giveor not to give due course to the certificate. Itmay not look into matters not appearing ontheir face. [Cipriano v. COMELEC (2004)]

Citizenship(Asked in 1992)

The LGC does not specify any particulardate or time when the candidate mustpossess citizenship, unlike therequirements for residence and age. Anofficial begins to discharge his functions onlyupon his proclamation and on the day thelaw mandates his term of office to begin.Since Frivaldo reassumed his citizenship onthe very day the term of office began, hewas therefore already qualified to beproclaimed, to hold office and to dischargethe functions and responsibilities thereof.

Nevertheless, qualifications for public officeare continuing requirements which must bepossessed at the time of appointment andduring the entire tenure. [Frivaldo v.COMELEC (1996)]

A mere application for repatriation does notamount to automatic reacquisition of Phil.Citizenship. Official action by the properauthorities is required. [Labo vs Comelec(1992)]

Residency

The residence requirement is rooted in thedesire that officials of districts or localities beacquainted with the needs, difficulties, andother matters vital to the common welfare of


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the constituents. The actual, physical andpersonal presence is substantial enoughto show his intention to fulfill the dutiesof mayor and for the voters to evaluatehis qualifications for the mayorship. A verylegalistic, academic and technical approachto the residence requirement does notsatisfy the rationale for the said requirement.[Torayno v. COMELEC (2000)]

The term “residence” is to be understood asreferring to “domicile” or legal residence, i.e.,“the place where a party actually orconstructively has his permanent home,where he, no matter where he may be foundat any given time, eventually intends toreturn and remain (animus manendi).” Unlike citizenship, which may be

complied with even on the day thecandidate assumes office, residencyrequires that the candidate must havebeen a resident of the municipality “forat least 1 year immediately precedingthe day of the election.” [Coquilla v.COMELEC (2002)]

Age The SK official must not have turned 21

before his election. The petitioner, being 21years and 11 mos. old when she assumedoffice, was over the age limit. [Garvida vsSales (1997)]

B. Disqualifications

(Asked in 1986, 1993, 1994, 1999, 2001)

LGC, Sec. 40

The following persons are disqualified fromrunning for any elective local position:FR-ACIDS1. Sentenced by final judgment for

an offense involving moral turpitudeor for an offense punishable by 1year or more of imprisonment, within2 years after serving sentence

2. Removed from office as a result of anAdministrative case

3. Convicted by final judgment for violatingthe oath of allegiance to the Republic

4. With Dual citizenship5. Fugitives from justice in criminal or non-

political cases here or abroad6. Permanent Residents in a foreign

country or those who have acquired theright to reside abroad and continue toavail of the same right after theeffectivity of this LGC

7. Insane or feeble-mindedSecond-Placer Rule(asked in 2003)

The ineligibility of a candidate receiving themajority of votes does not entitle theeligible candidate receiving the nexthighest number of votes to be declaredwinner.

The rule would be different if the electorate,fully aware of a candidate’s disqualificationso as to bring such awareness within therealm of notoriety, would nonetheless castthe votes in favor of the ineligible candidate.

In such case, the electorate may be said tohave waived the validity and efficacy of theirvotes by notoriously applying theirfranchises or throwing away their votes inwhich case, the eligible candidate obtainingthe next highest number of votes may bedeemed elected. [Labo v. COMELEC(1992)]

RA 8295: An Act Providing for the Proclamationof a Lone Candidate for any Elective Office in aSpecial Election, and for other purposes

Sec. 4. Disqualification In addition to the disqualifications in Sec. 12

and 68 of the Omnibus Election Code andLGC Sec. 40 whenever the evidence of guilt is

strong, the following persons aredisqualified to run in a special election Any elective official who has

resigned from his office byaccepting an appointive office or forwhatever reason which hepreviously occupied but has causedto become vacant due to hisresignation

Any person who, directly orindirectly, coerces, bribes,threatens, harasses, intimidates oractually causes, inflicts or producesany violence, injury, punishment,torture, damage, loss ordisadvantage to any person orpersons aspiring to become acandidate or that of the immediatemember of his family, his honor orproperty that is meant to eliminateall other potential candidate [alsoconstitutes an election offenseunder Sec.5 RA8295 andpunishable under Sec. 264 of theOmnibus Election Code]


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RA 9225: Citizenship Retention and Re-acquisition Act of 2003

Sec 5. Civil and Political Rights and Liabilities:

(1) Those seeking elective public office in thePhilippines shall meet the qualification forholding such public office as required by theConstitution and existing laws and, at thetime of the filing of the certificate ofcandidacy, make a personal and swornrenunciation of any and all foreigncitizenship before any public officerauthorized to administer and oath.

(2) Those appointed to any public office shallsubscribe and swear to an oath of allegianceto the Republic of the Philippines and itsduly constituted authorities prior toassumption of office. Provided, that theyrenounce their oath of allegiance to thecountry where they took that oath;

(3) That right to vote or be elected or appointedto any public office in the Philippines cannotbe exercised by, or extended to, those whoare: candidates for or are occupying any

public office in the country of which theyare naturalized citizens; and/or

in active service as commissionedofficers in the armed forces of thecountry which they are naturalizedcitizens.

Grounds for DisqualificationSec. 40, LGC

Moral Turpitude: Fencing (Dela Torre v. COMELEC

[1996]) Direct bribery (Magno v. COMELEC

[2002])

Dual Citizenship: Not an automatic disqualification; filing

of certificate of candidacy is sufficient torenounce foreign citizenship (declarationunder oath of maintenance of true faithand allegiance to the Constitution of thePhilippines) [Valles v. COMELEC(2000)]

Dual citizenship is not equivalent todual allegiance (a personsimultaneously owes, by some positiveact, loyalty to 2 or more states). What isprohibited is the latter. [Mercado v.Manzano (1999)]

Dual citizenship is the result of theconcurrent application of different lawsof two or more states, wherein a person

is simultaneously considered a nationalby the said states.

Fugitive from justice: Intent to evade must be the compelling

factor which animates one’s flight froma particular jurisdiction. There is intent ifthere is knowledge by the fleeing subjectof an already instituted indictment or of apromulgated judgment of conviction.[Rodriguez v. COMELEC (1996)]

“Green Card” holder:(asked in 1993, 1994) As provided in Caasi v. Court of Appeals,

a Filipino citizen’s acquisition of apermanent resident status abroadconstitutes an abandonment of hisdomicile and residence in thePhilippines. Ugdoracion’s acquisition of alawful permanent resident status in theUnited States amounted to anabandonment and renunciation of hisstatus as a resident of the Philippines; itconstituted a change from his domicile oforigin, which was Albuquerque, Bohol, to anew domicile of choice, which is the USA.[Ugdoracion v. COMELEC (2008)]

Other grounds: Vote-buying (upon determination in a

summary administrative proceeding)[Nolasco v. COMELEC (1997)]

Removal by administrative proceedings:(perpetual disqualification) [Lingating v.COMELEC (2002)]) Removal of a candidate prior to LGC

cannot be used as a ground fordisqualification [Grego v. COMELEC(1997)]

Should be a final determination[Lingating v. COMELEC (2002)]

Subsequent re-election cannot bedeemed a condonation if there wasalready a final determination of his guiltbefore the re-election [Reyes v.COMELEC (1996)]

When re-election considered acondonation: if the proceedings areabated due to elections. In this case,there is no final determination ofmisconduct [Malinao v. Reyes (1996)]

Effect of probation: Probation has no effect to applicability

of Sec. 40(a) as it only suspends theexecution of the sentence [dela Torrev COMELEC (1996)]


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C. Manner of Election

Sec. 41, LGCGovernorVice-governor, MayorVice-mayor(city/municipal)Punong Barangay

Elected at large byqualified voters inrespective units

SK Chairman Elected by registeredvoters of theKatipunan ngKabataan

Regular Members ofSangguniangPanlalawigan,SangguniangPanlungsod andSangguniang Bayan

Elected by district:

1st

and 2nd

-classprovinces= 10regular members

3rd

and 4th-class = 8

5th and 6th-class =6

Provided:If province has morethan 5 districts, eachdistrict shall have 2sangguniangpanlalawiganmembers.

Sangguniang BarangayMembers

Elected at large

Presidents of Leagues of SanggunianMembers of component cities &municipalities shall serve as ex officiomembers of the sangguniang panlalawiganconcerned.

Presidents of Liga ng mga Barangay andPederasyon ng SK elected by theirrespective chapters shall serve as ex officiomembers of the sangguniang panlalawigan,panlungsod and bayan

There shall be one (1) sectoralrepresentative from the following sectors:o Women;o Workers; ando 1 from any of the following:

urban poor; indigenous cultural communities; disabled persons; or any other sector determined by the

sanggunian within 90 days prior toholding of next local election

COMELEC shall promulgate rules forelection of such sectoral representatives.

D. Term of Office

(Asked in 1995, 2001, 2005, 2006, 2008)

All elective local officials, exceptbarangay officials (Sec. 8, Art. X,Constitution; Sec. 43 LGC) Term of office: 3 years from noon of

June 30, 1992 or the date provided bylaw

All local officials first elected during the localelections immediately following theratification of the 1987 Constitution shallserve until noon of June 30, 1992; No official shall serve for more than 3

consecutive terms for the same position; Voluntary renunciation of the office for

any length of time is not an interruptionin the continuity of his service for the fullterm for which he was elected

Barangay officials and members of theSangguniang Kabataan (Sec. 43 LGC) Term of office: 3 years After the regular election of barangay

officials on the second Monday of May1994

Existing sub-provinces converted intoregular provinces (Sec. 462 LGC) New legislative districts continue to be

represented in Congress by the duly-elected representatives of the originaldistricts out of which the new provincesor districts were created until their ownrepresentatives are elected in the nextregular congressional elections andqualified

Vacancy in the offices occupied byincumbent elected officials or resultingfrom expiration of their terms of office incase of a negative vote in the plebisciteresults: by appointment of the President; appointees shall hold office until

their successors are elected in theregular local elections following theplebiscite

After conversion of the newly-createdprovince, President shall appoint: Governor Vice-governor Members of the sangguniang

panlalawigan…who shall hold office until theirsuccessors are elected in the nextregular local elections and qualified.


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Qualified appointive officials andemployees in the career service of thesubprovinces at the time of theirconversion into regular provinces shallcontinue in office in accordance withcivil service law, rules and regulations.

RA 9164: Synchronized Barangay andSangguniang Kabataan Elections (2002)

Sec. 2 Term of Office Term of office of barangay and sangguniang

kabataan officials: 3 years No barangay elective official shall serve for

more than 3 consecutive terms in the sameposition Reckoned from the 1994 barangay

elections Voluntary renunciation of office for any

length of time shall not be considered asan interruption

RA 9006 Fair Election Act (2001)

Sec. 14 An elective official running for any office

other than the one which he is holding in apermanent capacity, is no longer consideredipso facto resigned from his office upon thefiling of his certificate of candidacy.

Note: Sec. 14 of RA 9006 expresslyrepealed Sec. 67 of BP 881 or the OmnibusElection Code which states that “anyelective official, whether national or local,running for any office other than the onewhich he is holding in a permanent capacity,except for President and Vice-President,shall be considered ipso facto resigned fromhis office upon the filing of his certificate ofcandidacy.”

Section 14 of RA 9006 did not repealSection 66 of the Omnibus election Code,leaving intact Section 66 thereof whichimposes a limitation to appointive officialsand considers them ipso facto resigned fromoffice upon filing of their certificate ofcandidacy

Fariňas v. Executive Secretary (2003):

By the repeal of Section 67, an electiveofficial who runs for office other than the onewhich he is holding is no longerconsidered ipso facto resigned therefromupon filing his certificate ofcandidacy. Elective officials continue inpublic office even as they campaign for

reelection or election for another electiveposition. On the other hand, Section 66 hasbeen retained; thus, the limitation onappointive officials remains - they are stillconsidered ipso facto resigned from theiroffices upon the filing of their certificates ofcandidacy.

Substantial distinctions clearly exist betweenelective officials and appointiveofficials. The former occupy their office byvirtue of the mandate of the electorate. Theyare elected to an office for a definite termand may be removed therefrom only uponstringent conditions. On the other hand,appointive officials hold their office by virtueof their designation thereto by an appointingauthority. Some appointive officials holdtheir office in a permanent capacity and areentitled to security of tenure while othersserve at the pleasure of the appointingauthority.

Another substantial distinction between thetwo sets of officials is that under Section 55,Chapter 8, Title I, Subsection A. Civil ServiceCommission, Book V of the AdministrativeCode of 1987 (Executive Order No. 292),appointive officials, as officers andemployees in the civil service, are strictlyprohibited from engaging in any partisanpolitical activity or take part in any electionexcept to vote. Under the same provision,elective officials, or officers or employeesholding political offices, are obviouslyexpressly allowed to take part in political andelectoral activities.

By repealing Section 67 but retainingSection 66 of the Omnibus Election Code,the legislators deemed it proper to treatthese two classes of officials differently withrespect to the effect on their tenure in theoffice of the filing of the certificates ofcandidacy for any position other than thoseoccupied by them.

Since the classification justifying Section 14of Rep. Act No. 9006, i.e., electedofficials vis-a-vis appointive officials, isanchored upon material and significantdistinctions and all the persons belongingunder the same classification are similarlytreated, the equal protection clause of theConstitution is, thus, not infringed.

What constitutes term of office?

The Constitution contemplates service bylocal officials for three consecutive terms as


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a result of an election. The term limits forelective local officials must be taken to referto:1) the right to be elected and2) the right to serve in the same elective

position. Consequently, it is not enough that an

individual has fully served three consecutiveterms in an elective local office.

He must also have been elected to the sameposition for the same number of timesbefore the disqualification can apply. [Borjav. COMELEC (1998)]

Effect of judicial declaration that the official’sproclamation is void: His assumption of office in 1995 cannot be

deemed to have been by reason of a validelection. Also, he did not fully serve the1995-98 mayoral term by reason ofinvoluntary relinquishment of office as hewas ordered to vacate his post before theexpiration of the term. Although he servedthe greater portion of the said term, heshould not be considered disqualifiedbecause he did not serve three fullconsecutive terms. [Lonzanida v. COMELEC(1999)]

Effect of Recall Elections: An official has served for three consecutive

terms. He was elected in the recall electionfor the term of his predecessor. There wasno violation of the 3-term rule.

The Constitution does not require thatthe interruption be a full term of 3 years.The clear intent of the framers of the law isthat interruption for any length of time issufficient to break an elective localofficial’s continuity of service. [Socratesv. COMELEC (2002)]

Effect of Conversion of the LGU: The mayor of a municipality held his post for

three terms. During his last term, themunicipality became a city and he wasdeclared hold-over mayor by the charter.The said mayor should not be allowed to runagain. If he were allowed to do so, he wouldhave served the same people for a termmore than what is allowed by law [Latasa v.COMELEC (2003)]

E. Rules on Succession

1. Successors in permanent vacancies in officeof local chief executive.Sec. 44, LGC: (Asked in 1995, 1996, 2002,2008)

Permanent vacancy entails that an electivelocal official:DR VaReReQI fills a higher vacant office; refuses to assume office; fails to qualify; dies; is removed from office; voluntarily resigns; or is otherwise permanently incapacitated

to discharge the functions of his office.

Office wherePermanent

Vacancy OccursWho Succeeds into Office

Governor Vice-governorMayor Vice-mayor

Office of thegovernor or [and]vice-governor,mayor or [and] vice-mayor

Highest rankingsanggunian member;

In case of his permanentinability, the 2nd highestranking sanggunianmember;

Subsequent vacancies arefilled automatically by theother sanggunianmembers according totheir ranking.

Office of thePunong Barangay

Highest rankingsanggunian barangaymember;

In case of his permanentinability, the 2nd highestranking sanggunianmember.

A tie between/ among the highest rankingsanggunian members is resolved by drawingof lots.

Successors under S44, LGC serve only forthe unexpired terms of their predecessors.

The ranking in the sanggunian is based onthe immediately preceding local election:

Votes obtained by the winning candidate--------------------------------------------

Total number of registered voters in each district


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2. Permanent vacancies in the sanggunian.Sec. 45, LGC (Asked in 1996, 2002)

If automatic succession as provided in S44does not apply, vacancy is to be filled in byappointment made as follows:

Office where PermanentVacancy Occurs

Who Succeeds intoOffice

Member of SanggunianPanlalawigan orSangguniang Panlungsodof highly urbanized citiesand independentcomponent cities

Person appointed by thePresident, through theExecutive Secretary

Member of SangguniangPanlungsod of componentcities and theSangguniang Bayan

Person appointed by thegovernor

Member of theSangguniang Barangay

Person appointed by themayor, uponrecommendation of theSangguniang Barangayconcerned

Representation of theyouth and the barangay inthe sanggunian

Official next in rank ofthe organizationconcerned

General Rule: The appointee under Sec. 45must be a nominee of the political partyunder which the sanggunian member(whose elevation to the position next higherin rank created the vacancy) had beenelected.

Conditions sine qua non: There must be anomination and certificate of membershipfrom the highest official of the political partyor else the appointment is: null and void ab initio; and a ground for administrative action

against the responsible official. If sanggunian member who caused vacancy

does not belong to any political party, thelocal chief executive shall appoint a qualifiedperson, upon recommendation of thesanggunian.

The appointee under S45 serves theunexpired term of the vacant office. Exception: Sangguniang barangay.

If the vacancy pertains to barangay or youthrepresentation in the sanggunian, thevacancy is automatically filled by the officialnext in rank of the organization concerned.

3. Temporary vacancy in the office of the localchief executive.Sec. 46, LGC.(Asked in 2002)

Examples of local chief executive’stemporary incapacity to perform duties forphysical/legal reasons: leave of absence; travel abroad; suspension from office.

General rule: Vice-governor, city/ municipalvice-mayor, or the highest rankingsangguniang barangay member shallautomatically exercise the powers andperform the duties and functions of the localchief executive. Exception: The power to

appoint/suspend/dismiss employees canbe exercised only if the period oftemporary incapacity exceeds 30working days.

If the local chief executive is traveling withinthe country but outside his territorialjurisdiction for a period not exceeding 3consecutive days, he may designate inwriting the officer-in-charge.

General rule: The local chief executivecannot authorize any local official to assumethe powers/duties/functions of his office,other than the vice-governor, city/municipalvice-mayor, or highest ranking sangguniangbarangay member.

The authorization shall specify the powersand functions that the officer-in-charge shallexercise. Exception: The power to appoint,

suspend and dismiss employees.

If the local chief executive fails/refuses toissue the authorization, the vice-governor,city/municipal vice-mayor, or highest rankingsangguniang barangay member has right toassume the powers, duties, and functions ofthe office on the 4th day of absence. Exception: The power to

appoint/suspend/dismiss employees.

Office whereTemporary

VacancyOccurs

Who Temporarily Succeedsinto Office

Governor Vice-governor (automatically)Mayor Vice-mayor (automatically)Punongbarangay

Highest ranking sanggunianmember (automatically)


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Local chiefexecutivetraveling withinthe country butoutside histerritorialjurisdiction for aperiod notexceeding three(3) consecutivedays

1) Person designated inwriting by the said localchief executive Authorization shall

specify the powersand functions that thedesignate willexercise, except thepower to appoint,suspend, or dismissemployees

2) Vice-governor, vice-mayor or highestSangguniang Barangaymember, if the local chiefexecutive fails or refusesto designate In this case,

assumption into officeshall be on the 4

th

day of absence of thelocal chief executive(automatically)

Cases The LGC is silent on the mode of

succession when there is a temporaryvacancy in the office of the vice-governor.In this case, there was a vacancy when thevice-governor automatically assumed thegovernorship pending the determination ofwho is the local chief executive. Because ofsuch circumstances, the President, throughthe Secretary of Local Government, maymake the temporary appointment. [Menzonv. Petilla (1991)]

A vice-governor who is concurrently anacting governor is actually a quasi-governor.Being the acting governor, the vice-governorcan no longer continue to simultaneouslyexercise the duties of the latter office, sincethe nature of the duties of the governorhinders him from discharging his duties forsuch office. Hence, there is an “inability” onthe part of the regular presiding officer, thevice-governor, to preside during thesanggunian sessions, which calls for theelection of a temporary presiding officer.[Gamboa v. Aguirre (1999)]

The governor has the power to fill a vacancyin the Sangguniang Bayan caused by amember not belonging to any political party.It is the same manner as where the memberbelonged to a political party. Where there isno political party to make the nomination,the Sanggunian where the vacancy occursmust be considered authority for making the

recommendation. The appointing authority islimited to the appointment of thoserecommended to his office. Therecommendation is a condition sine qua nonfor the validity of the appointment. [Fariñasv. Barba (1996)]

4. Termination of the Temporary Incapacity:

Upon submission to the sanggunian of awritten declaration that he has reported backto office. If the temporary incapacity is due to

legal causes, he must also submit thenecessary documents showing that thelegal causes no longer exist.

5. Approval of Leaves of Absence.Sec. 47, LGC.

LOCAL OFFICIAL LOA APPROVED BY: for governors; mayors of

1)highly urbanizedcities or2)independentcomponent cities

The President or hisduly authorizedrepresentative

for vice-governors; for city/municipal

vice-mayors

The local chiefexecutive

for city/municipalmayors ofcomponentcities/municipalities

The governor

for the sanggunianpanlalawigan,panlungsod andpambayanmembers;

its employees

The Vice-governor orcity/municipal vice-mayor

for punongbarangays

The city/municipalmayor

for sangguniangbarangay members

The punong barangay

If the application for LOA is not acted uponwithin 5 working days after receipt, theapplication is deemed approved.


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F. Recall

Sec. 69-75, LGC

(Asked in 2002)

Recall is a mode of removal of a publicofficial by the people before the end of histerm of office. [Garcia v. COMELEC, (1993)]

Who has the power of recall: Power of recallfor loss of confidence is exercised by theregistered voters of the LGU. [S69, LGC]

Effectivity: Upon the election andproclamation of a successor in the person ofthe candidate receiving the highest numberof votes cast during the election on recall.Thus, if the official sought to be recalledreceives the highest number of votes,confidence in him is affirmed and he shallcontinue in office. [S72, LGC]

Prohibition on resignation: An Elective localofficial sought to be recalled is not allowedto resign while the recall process is inprogress. [S73, LGC]

Expenses: The Annual GeneralAppropriations Act contains a provision for acontingency fund at the disposal of theCOMELEC. [S75, LGC]

RA 9244: An Act Eliminating thePreparatory Recall Assembly as a Mode ofInstituting Recall of Elective LocalGovernment Officials, Amending for thePurpose sec. 70-71 of the LGC of 1991.

Sec. 70. Initiation of the Recall Process(PCPVA)

Petition of a registered voter in the LGUconcerned, supported by a percentage ofregistered voters during the election in which thelocal official sought to be recalled was elected.(Percentage decreases as population of peoplein area increases. Also, the supporting votersmust all sign the petition)

Within 15 days after filing, the COMELEC mustcertify the sufficiency of the required number ofsignatures. Failure to obtain the requirednumber automatically nullifies the petition.

Within 3 days from certification of sufficiency,COMELEC provides the official with a copy ofthe petition and causes its publication for 3weeks (once a week) in a national newspaperand a local newspaper of general circulation.

Petition must also be posted for 10 to 20 days atconspicuous places. PROTEST SHOULD BEFILED AT THIS POINT and ruled with finality 15days after filing.

COMELEC verifies and authenticates thesignatures.

COMELEC announces acceptance ofcandidates

Sec. 71. Election on Recall

COMELEC sets election within 30 daysupon completion of previous section inbarangay/city/municipality proceedings (45days in case of provinces)

Officials sought to be recalled areautomatically candidates

Cases A petition for recall that is signed only by the

petitioner but does not bear the names ofthe citizens who have allegedly lostconfidence in the official should bedismissed. [Angobung vs Comelec (1997)]

Whether or not the electorate of themunicipality has lost confidence in theirincumbent mayor is a political question.Loss of confidence is the formal withdrawalby the electorate of their trust in a person’sability to discharge his office previouslybestowed on him by the same electorate.[Evardone v. COMELEC (1991)]

Recall is a mode of removal of a publicofficial by the people before the end ofhis term of office. The people’s prerogativeto remove a public official is an incident oftheir sovereign power and in the absence ofconstitutional restraint, the power is impliedin all governmental operations. Such powerhas been held to be indispensable for theproper administration of public affairs.[Garcia v. COMELEC (1993)]

The Liga ng mga Barangay and thePreparatory Recall Assembly are entirelydifferent entities even if they may have thesame members. [Malonzo vs Comelec(1997)]

NOTE: Under RA9244, the Congress removedthe Preparatory Recall Assembly as a mode ofrecall.

A Regular local election is necessary in order toreplace the local elective official who is sought to


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be recalled. This does not include SK elections.[Paras v. COMELEC (1996)]

Limitations on the Holding of RecallsSec. 74.a. Any elective official may be the subject of a

recall election only once during his term ofoffice for loss of confidence.

b. No recall shall take place:1. Within 1 year from the date of

assumption of office of the officialconcerned Rationale: to provide a reasonable

basis for judging the performance ofan elective local official

2. Within 1 year immediately preceding aregular local election Rationale: a recall election is

potentially disruptive of the normalworking of the LGU necessitatingadditional expenses

“Recall”, as used in par. b, sec. 74prescribing the 1-year limitation, refers tothe “election” itself (not the process ofinitiating the recall proceedings). Thepurpose of the 1-year limitation fromassumption is to prevent premature actionwithout having sufficient time to evaluate theofficial’s performance.

As long as the election is held outside the 1-year period, the preliminary proceedings toinitiate recall can be held even before theend of 1 year from assumption.

The 1-year period before regular localelection does not include the campaignperiod. [Claudio v. COMELEC (2000)]

G. Discipline

1. Administrative Action

AO 23, as amended by AO 159 (1994) and AO66 (1999): Prescribing the Rules andProcedures on the Investigation ofAdministrative Disciplinary Cases

Coverage: administrative disciplinarycharges against – the governors, and members of the

sangguniang panlalawigan; the mayors, vice mayors, and members

of the sangguniang panlungsod of highlyurbanized cities, independentcomponent cities, and component cities;and

the mayors, vice mayors, and membersof the sangguniang panlungsod or

bayan of cities or municipalities inMetropolitan Manila

Disciplining Authority — The President, whomay act through the Executive Secretary May still constitute a Special

Investigating Committee in lieu of theDILG Secretary;

Nothing shall prevent the President fromassuming jurisdiction at any stage of theproceedings over cases to bepreliminarily investigated by the DILG; insuch an event, the same shallimmediately be forwarded to the SpecialInvestigating Committee after it mayhave been constituted by theDisciplining Authority.

Investigating Authority — DILG Secretaryo may constitute an Investigating

Committee in the DILG for the conductof investigation

Grounds for administrative action (discipline,suspension, removal):MAD-VAD-CO1. Disloyalty to the Republic of the

Philippines;2. Culpable violation of the Constitution;3. Dishonesty, oppression, misconduct in

office, gross negligence, or dereliction ofduty;

4. Commission of any offense involvingmoral turpitude or any offensepunishable by at least prision mayor,which is from 6 years and 1 day to 12years imprisonment;

5. Abuse of authority;6. Unauthorized absence for 15

consecutive working days in case oflocal chief executives and 4 consecutivesessions in the case of members of thesanggunian;

7. Application for, or acquisition of, foreigncitizenship or residence of the status ofan immigrant of another country; and

8. Such other grounds as may be providedby the Local Government Code of 1991;Republic Act No. 6713; Republic Act No.3019; Administrative Code of 1987;Revised Penal Code; and all otherapplicable general and special laws.

How Initiated1. by any private individual or any

government officer or employee by filinga sworn written complaint (verified)

2. by the Office of the President or anygovernment agency duly authorized by


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law to ensure that LGUs act within theirprescribed powers and functions

Elective Official againstwhom AdministrativeComplaint is Filed

Where to FileComplaint

Provincial or city official Office of the PresidentMunicipal official Sangguniang

PanlalawiganBarangay official Sangguniang

Panlungsod orSangguniang Bayan

Cases Supervision and discipline. The President is

not devoid of disciplinary powers becausehe merely has supervisory powers under theConstitution. Supervision is not incompatiblewith disciplining authority. [Ganzon vs CA(1991)]

Valid delegation. Under AO 23, thedelegation of the power to investigate to theSec of Interior is valid. What cannot bedelegated is the power to discipline. [Josonvs Torres (290 S 279)]

Prejudicial question? The administrativeinvestigation can proceed even during thependency of an appeal of audit findings tothe Commission on Audit [Salalima vsGuingona (257 S 55)]

Preventive Suspension Sec. 63, LGC(Asked in 1990, 1996)1. Sole Objective: to prevent the accused

official from hampering the investigationwith his influence and authority overpossible witnesses and keep him off therecords and other evidence. [Ganzon v.CA, (1991)][cf. suspension as a penalty]

2. It may be imposed by the DiscipliningAuthority in cases where the respondentis an elective official:

Local ElectiveOfficial of:

Who may impose:

provinces highly urbanized

cities independent

component cities

President, throughthe DILG Secretary

municipalities component city

Provincial Governor

barangay Mayor

3. The governor shall, upon the directorder of the Disciplining Authority,preventively suspend an elective officialof a component city, who is under formaladministrative investigation by the Officeof the President.

4. May be imposed at any time after theissues are joined (after respondent hasanswered the complaint)

5. No preventive suspension shall beimposed within 90 days immediatelyprior to any local election. If thepreventive suspension has beenimposed prior to the 90-day periodimmediately preceding a local election, itshall be deemed automatically liftedupon the start of the period

Grounds for Preventive Suspension: when the evidence of guilt is strong

and, given the gravity of the offense,

there is a great probability that thecontinuance in office of therespondent could influence thewitnesses or pose a threat to thesafety and integrity of the recordsand other evidence

Period: Any single preventivesuspension of local elective officialsshall not extend beyond 60 days;

Provided that, in the event that severaladministrative cases are filed against anelective official: he cannot be preventively

suspended for more than 90 dayswithin a single year

on the same ground or groundsexisting and known at the time ofthe first suspension.

Expiration: the suspended electiveofficial shall be deemed reinstated inoffice without prejudice to thecontinuation of the proceedings againsthim [which shall be terminated within120 days from formal notice of thecase]. However, if the delay in theproceeding of the case is due to hisfault, or request, other than the appealduly filed, the duration of such delayshall not be counted in computing thetime of termination of the case. (sec. 63(c))

Compensation: officer shall receive nosalary or compensation during suchsuspension; but, upon subsequentexoneration and reinstatement, he shallbe paid his full salary or compensation,including such emoluments accruingduring such suspension. (sec. 64)

The provincial governor is authorized topreventively suspend the municipal mayor any


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time after the issues have been joined and anyof the following grounds were shown to exist:o When there is reasonable ground to believe

that the respondent has committed the actor acts complained of

o When the evidence of culpability is strongo When the gravity of the offense so warrantso When the continuance in office of the

respondent could influence the witnesses orpose a threat to the safety and integrity ofthe records and other evidence.

There is nothing improper in suspending anofficer before the charges are heard and beforehe is given an opportunity to prove hisinnocence. Preventive suspension is allowed sothat respondent may not hamper the normalcourse of the investigation through the use of hisinfluence and authority over possible witnesses.When a local government official believes thathe has been wrongfully suspended, the properprocedure is to exhaust administrative remedies,i.e. seek relief from the DILG Secretary, and notto file a case in court. [Espiritu v. Melgar (1992)]

Piecemeal suspensions should not be issued. Ifthere are several administrative cases against apublic official, these cases should beconsolidated for the purpose of orderingpreventive suspension, instead of issuing anorder of suspension for each case. Elective localofficials should be given the benefit ofsimultaneous service of suspension. [Ganzon v.CA (1991)]

NOTE: The ruling in this case as tosimultaneous service of suspension is more ofan exception than the rule, because of thefollowing circumstances:o Three separate orders of 60-day preventive

suspension were issued against Ganzono Another order of preventive suspension was

issued before the SC promulgated thedecision ruling that suspension should notbe issued piecemeal

o The simultaneous service of suspension willlessen the harsh effects of whatever illmotive may be behind the successivesuspension orders issued

Rights of the Respondent Official— Fullopportunity to:o Appear and defend himself in person or

by counselo Confront and cross-examine the

witnesses against himo Require attendance of witnesses and

the production of documentary evidencein his favor through subpoena orsubpoena duces tecum. (sec. 65)

Due process. The petitioner has the right toa formal investigation under AO 23. Wherethe Sec denied the motion for a formalinvestigation and decided the case on thebasis of position papers, the right of thepetitioner was violated. [Joson vs Torres(290 S 279)]

Form and Notice of Decision Shall be terminated within 90 days from

start thereof. Office of the President or Sanggunian

concerned to render decision Within 30 days from end of

investigation In writing Stating clearly facts and reasons

Furnish copies to respondent andinterested parties. (sec. 66 a)

NOTE: Any abuse of the exercise of the powerof preventive suspension shall be penalized asabuse of authority (Nachura).

2. Penalties

a. Suspension Limitations: The penalty of suspension:

shall not exceed the unexpired term ofthe respondent

shall not exceed a period of 6 monthsfor every administrative offense

shall not be a bar to the candidacy ofthe respondent so suspended as longas he meets the qualifications requiredfor the office. (Sec. 66, LGC)

When the respondent has been meted 2 ormore penalties of suspension for 2 or moreadministrative offenses, such penalties shallbe served successively (AO No. 159,Amending AO 23, Prescribing the Rules andProcedures on the Investigation ofAdministrative Disciplinary Cases AgainstElective Local Officials, 1994)

b. Removal

An elective local official may be removed byorder of the proper court. (sec. 60)

The penalty of removal from office as aresult of administrative investigation shall beconsidered a bar to the candidacy of therespondent for any elective position. (sec.66 c)[cf. effect of penalty of suspension]


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Proper court order

Local legislative bodies and/or the Office ofthe President cannot validly impose thepenalty of dismissal or removal from serviceon erring local elective officials. It is clearfrom Sec. 60 of LGC that an elective localofficial may be removed from office onthe grounds enumerated above only byorder of the proper court.

Art. 124 (b), Rule XIX of the Rules andRegulations Implementing the LGC, whichstates that “an elective local official may beremoved from office by order of the propercourt or the Disciplining Authority whicheverfirst acquires jurisdiction to the exclusion ofthe other” is void for being repugnant to Sec.60, LGC.

But remember if it’s appointive, OP mayremove. [Pablico v. Villapando (2002)]

Petitioners contest the administrative actionas being violative of Sec. 60, whichmandates that an elective local official maybe removed from office only by order of thecourt, since the duration of the suspensionbeing 12-20 months exceeded theirremaining terms. The suspension wasallegedly tantamount to a removal.

Held: An administrative offense meansevery act or conduct or omission whichamounts to, or constitutes, any of thegrounds for disciplinary action. The offensesfor which suspension may be imposed areenumerated in Section 60.

Assuming for the moment that the Office ofthe President is correct in its decisions ineach of the subject four administrativecases:

It committed no grave abuse of discretion inimposing the penalty of suspension,although the aggregate thereof exceeded sixmonths and the unexpired portion of thepetitioners’ term of office.

What is important is that the suspensionimposed for each administrative offense didnot exceed six months. [Salalima v.Guingona (1996)]

3. Power of Tribunals

The Ombudsman(Asked in 1999, 2003)

The Ombudsman and the Office of the Presidenthave concurrent jurisdiction to conductadministrative investigations over local electiveofficials. The LGC did not withdraw the power ofthe Ombudsman under RA 6770. [Hagad v.Gozo-Dadole (1993)]

Preventive Suspensionunder RA 6770

Preventive Suspensionunder the LGC

Requirements:

1. the evidence of guilt isstrong; AND

2. that any of thefollowingcircumstances arepresent:o the charge against

the officer oremployee shouldinvolvedishonesty,oppression orgrave misconductor neglect in theperformance ofduty;

o the chargesshould warrantremoval fromoffice; or

o the respondent’scontinued stay inoffice wouldprejudice the casefiled against him

Requirements:

1. there is reasonableground to believe thatthe respondent hascommitted the act oracts complained of

2. the evidence ofculpability is strong

3. the gravity of theoffense so warrants;or

4. the continuance inoffice of therespondent couldinfluence thewitnesses or pose athreat to the safetyand integrity of therecords and otherevidence

Maximum period:6 months

Maximum period:60 days

It is not only the Ombudsman, but also hisDeputy, who may sign an order preventivelysuspending officials. Also, the length of theperiod of suspension within the limits providedby law and the evaluation of the strength of theevidence both lie in the discretion of theOmbudsman. It is immaterial that no evidencehas been adduced to prove that the official mayinfluence possible witnesses or may tamper withthe public records. It is sufficient that there existssuch a possibility. [Castillo-Co v. Barbers (1998)]

The Courts

RA 3019The term “office” in Sec. 13 of RA 3019(pertaining to mandatory preventive suspension)applies to any office which the officer mightcurrently be holding and not necessarily theparticular office in relation to which the official ischarged. The imposition of the suspension,though mandatory, is not automatic or self-operative. A pre-condition is the existence of avalid Information, determined at a pre-suspension hearing. [Segovia v. Sandiganbayan(1999)]


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SandiganbayanPD 1606, as amended by RA 8249

It is the official’s grade that determines his orher salary, and not the other way around. Anofficial’s grade is not a matter of proof but amatter of law which the court must takejudicial notice. Under Sec. 444(d) of theLGC, the municipal mayor shall receive aminimum monthly compensationcorresponding to SG 27. Thus, the casesfiled against the petitioner are within theexclusive jurisdiction of the Sandiganbayan.[Llorente v. Sandiganbayan (2000)]

If the law states that a certain officer iswithin the jurisdiction of the Sandiganbayan,the fact that the officer's SG is below 27does not divest jurisdiction. [Inding v.Sandiganbayan (2004)]

RA 8249 provides that as long as one of theaccused is an official of the executivebranch occupying the position otherwiseclassified as SG 27 and higher, theSandiganbayan exercises exclusive originaljurisdiction. To vest Sandiganbayan withjurisdiction, public office must be an elementof the crime OR that without the publicoffice, the crime could not have beencommitted. [Rodriguez v. Sandiganbayan(2004)]

4. Administrative Appeals

Sec. 67 Within 30 days from receipt of decisions:

Decisions of: May be appealed before:

SangguniangPanglungsod ofcomponent cities

Sangguniang Bayan



SangguniangPanglungsod of: highly urbanized

cities independent

component cities

Office of the President

Office of the President [final and executory; maynot be appealed]

An appeal shall not prevent a decision frombecoming final or executory. If respondent wins the appeal:

o He shall be considered as havingbeen placed under preventivesuspension during the pendency ofthe appeal.

o If condoned, he shall be paid hissalary and other emoluments duringthe pendency of appeal. (sec. 68)

Sec. 68 of the LGC merely provides that an“appeal shall not prevent a decision frombecoming final or executory.” As worded,there is room to construe the provision asgiving discretion to the reviewing officials tostay the execution of the appealed decision.[Berces v. Guingona (1995)]

The phrase “final or executory” in Secs. 67and 68 simply means that administrativeappeal will not prevent the enforcement ofthe decision. [Mendoza vs Lacsina (2003)]

5. Effect of Re-election

Re-election renders the administrativecomplaint against the local official moot andacademic. A public official cannot beremoved for administrative misconductcommitted during a prior term, since the re-election to office operates as a condonationof the officer’s previous misconduct to theextent of cutting off the right to remove himtherefore. But this rule is applicable only toadministrative cases, not to criminal cases.(Asked in 2000) [Aguinaldo v. Santos(1992)]

II. Appointive Officials

A. Appointments

Under the LGC and RAC, the provincialgovernor is not authorized to appoint or evendesignate a person in cases of temporaryabsence or disability. Power resides in thePresident or the Secretary of Finance.[Dimaandal v. COA (1998)]

NOTE: Difference between designation andappointment – In designation, additional tasksare assigned, but there is no correspondingsalary increase.

The Bases Conversion Act provides that themayor of Olongapo shall be appointedSBMA chairman for the first year ofoperations. This violates the constitutionalprohibition against appointment or


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designation of elective officials to othergovernment posts. Appointive officials maybe allowed by law or by the primaryfunctions of his position to hold multipleoffices whereas elective officials are notallowed, except as otherwise recognized inthe Constitution. The provision alsoencroaches on executive power to appoint.(Asked in 1995, 2003) [Flores v. Drilon(1993)]

CSC’s Role in Appointments

It cannot appoint but it can say if a person isqualified or unqualified. If unqualified, it canremove the person from office (basis is theOmnibus Implementing Rules of RAC).

Grounds for RECALL of appointment(NO-VP)1. Non-compliance with procedure or criteria

provided in the agency’s merit promotionplan

2. Failure to pass through the agency’sselection/promotion board

3. Violation of existing collective agreementbetween management and employeesrelative to promotion

4. Violation of other existing civil service lawrules and regulations

In disapproving or approving appointments,CSC only examines the conformity of the appointment with

applicable provisions of law WON appointee possesses the

minimum qualifications and none of thedisqualifications [Mathay v. CSC (1999)]

CSC has no authority to direct that anappointment of a specific individual bemade. It can only attest to WON the personchosen may fill the position. According to BP337, the power to appoint rests exclusivelywith the local chief executive and can’t beusurped by anyone else. [Mathay v. CA(1999)]

The Constitutional prohibition on midnightappointments applies only to presidentialappointments. They do not apply to LGUs.For LGUs, appointments of such nature arevalid as long as these meet all the requisitesof a valid appointment.

The Constitutional prohibition on midnightappointments is confined to appointmentsmade in the Executive Department and doesnot refer to the Members of the SupremeCourt.

The fact that Section 14 and Section 16refer only to appointments within theExecutive Department renders conclusivethat Section 15 also applies only to theExecutive Department. This conclusion isconsistent with the rule that every part of thestatute must be interpreted with reference tothe context, i.e. that every part must beconsidered together with the other parts,and kept subservient to the general intent ofthe whole enactment. It is absurd to assumethat the framers deliberately situated Section15 between Section 14 and Section 16, ifthey intended Section 15 to cover all kindsof presidential appointments. [De Castro v.JBC (2010)]

Once an appointment has been made andaccepted, the appointee acquires a legalright to the position--the appointing authoritycannot unilaterally revoke it without cause,notice and hearing. But the CSC may do soif it decides that the requirements were notmet. [De Rama v. CA (2001)]

Nepotism (asked in 2008) Mayor is not allowed to appoint wife as head

of Office of General Services even if she’squalified because of the prohibition againstnepotic appointments. This is based onSec. 59 Book 5 of RAC. This prohibitioncovers all appointments and original andpersonnel actions (promotion, transfer,reinstatement, re-employment). [Debulgadov. CSC (1994)]

The mayor’s appointment was considerednepotic and therefore prohibited when hemade permanent the appointment of hisdaughter’s husband, who was appointed amere temporary post prior to the latter’smarriage. [CSC v. Tinaya (2005)]

The appointment of Montuerlo was voidbecause the matter was never submitted tothe Sangguniang Bayan for its concurrenceor, even if so submitted, no suchconcurrence was obtained. Even if therewas a verbal concurrence by theSanggunian, such is not the concurrencerequired and envisioned under the law.

The Sanggunian, as a body, acts through aresolution or an ordinance. Absent suchresolution of concurrence, Montuerlo’sappointment failed to comply with themandatory requirement of Section 443(a)and (d) of R.A. No. 7160.


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Without a valid appointment, Montuerloacquired no legal title to the Office ofMunicipal Budget Officer, even if she hadserved as such for ten years. [Montuerlo v.Ty (2008)]

B. Discipline

The appointing authority is generally thedisciplining authority.

Disciplinary Jurisdiction (sec. 87)[Except as otherwise provided by law], thelocal chief executive may impose: Removal from service (cf. elective

officials) Demotion in rank Suspension for not more than 1 year

w/o pay- If not more than 30 days—not

appealable- If more than 30 days—appealable to

the CSC Fine not exceeding 6 months’ salary Reprimand Or otherwise discipline subordinate

officials and employees under hisjurisdiction.

No remedy of appeal if the decision of theadministrative case exonerated the officer oremployee. “Party adversely affected” in PD807 or “The Philippine Civil Service Law”only refers to the government employeeagainst which the case is filed. [Mendez v.CSC (1991)]

The City Treasurer has authority todiscipline his subordinates.

The power to discipline is specifically granted bythe Revised Administrative Code to heads ofdepartments, agencies and instrumentalities,provinces, and cities.

The power to commence administrativeproceedings against subordinate officers isgranted by the Omnibus Rules to the secretaryof department, head of office, head of LGU,chief of agency, regional director, or person withsworn written complaint. The City treasurer mayalso motu proprio institute disciplinaryproceedings against subordinates.

These rules must be reconciled with the LGC,which gives the mayor the authority to instituteadministrative and judicial proceedingsagainst any official or employee of the city. Incases involving the employees of the citytreasurer’s office, the mayor must file his

complaint with the treasurer’s office or with theDOF. [Garcia v. Pajaro (2002)]

[Sangguniang Bayan of San Andres v. CA(1998)]:

Requisites toconstituteresignation:1.Intention torelinquish a part of theterm2.Act of relinquishment3.Acceptance by theproper authority

Essential elements ofabandonment:1. Intent to abandon2. Overt act by which

the intention is tobe carried intoeffect

(Asked in 2000)

C. Removal

In interpreting its own rules as it did, the CSCwas acting within its constitutionally delegatedpower to interpret its own rules. The CSC, byruling that the employee took an automatic leaveof absence, was merely interpreting its own ruleon requirement of approved leave. [CityGovernment of Makati City v. CSC (2002)]

D. Officials Common to AllMunicipalities, Cities and Provinces

a. Secretary to the Sanggunianb. Treasurerc. Assessord. Accountante. Budget Officerf. Planning and Development Coordinatorg. Engineerh. Health Officeri. Civil Registrarj. Administratork. Legal Officerl. Agriculturistm. Social Welfare and Development Officern. Environment and Natural Resources Officero. Architectp. Information Officerq. Cooperatives Officerr. Population Officers. Veterinariant. General Services Officer

Exceptions as to appointments by local chiefexecutive secretary (appointed by vice-governor or

vice-mayor) treasurer (appointed by secretary of

Finance)


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In the barangay, the mandated appointiveofficials are the Barangay Secretary and theBarangay Treasurer, although other officialsof the barangay may be appointed by thepunong barangay.

III. Provisions Applicable to Elective andAppointive Officials

A. Prohibited Interests

LGC Sec. 89Prohibited business and pecuniary interest. Unlawful for any local government

official/employee to directly or indirectly: Engage in any business transaction with

LGU local government unit: in which he is an official/employee; over which he has the power of

supervision; with any of its authorized boards,

officials, agents, or attorneys, if money/property or any thing of

value is to be indirectly transferredout of the resources of the LGU tosuch person or firm;

Hold interests in any cockpit or othergames licensed by an LGU;

Purchase any realty/property forfeited infavor of the LGU for unpaid taxes/assessment; or by virtue of a legal process at the

instance of the LGU. Be a surety for any person contracting

or doing business with the LGU which asurety is required;

Possess/use any public property of theLGU for private purposes.

Other prohibitions governing theconduct of national public officersrelating to prohibited business andpecuniary interest: RA 6713 (Code of Conduct and

Ethical Standards for PublicOfficials/EEs);

Other laws.

The variance doctrine applies here. Asapplied in this case, the Variance Doctrineholds that if the crimes charged include thecrimes proved, then there can be aconviction for the crimes proved. Also, ifcrimes proved include the crimes charged,then there can be a conviction for the crimescharged. [Teves v. Sandiganbayan (2004)]

Elements of unlawfulintervention

Elements of prohibitedinterest

Accused is public officer Public OfficerAccused has direct orindirect financial orpecuniary interest in anybusiness, contract, ortransaction, WONprohibited by law

He has direct or indirectfinancial or pecuniaryinterest in any business,contract, transaction

He intervenes or takespart in his official capacityin connection with suchinterest

He is prohibited fromhaving such interest bythe Const. or law

B. Practice of Profession

LGC, Sec. 90 All governors and mayors are prohibited

from:o practicing their professiono engaging in any occupation other than

the exercise of their functions as localchief executives.

Sanggunian Members mayo Practice their professiono Engage in any occupationo Teach in schools

except during session hours Provided, a member of the Bar

shall not:(1) Appear as counsel before any

court in any civil case wherein alocal government unit or anyoffice, agency, or instrumentalityof the government is theadverse party;

(2) Appear as counsel in anycriminal case wherein an officeror employee of the national orlocal government is accused ofan offense committed in relationto his office.

(3) Collect any fee for theirappearance in administrativeproceedings involving the localgovernment unit of which he isan official; and

(4) Use property and personnel ofthe government except whenthe sanggunian memberconcerned is defending theinterest of the government.


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Doctors of Medicine may practice theirprofession even during official hours of worko only on occasions of emergency

Provided, that the officialsconcerned do not derive monetarycompensation therefrom.

Private Counsel/Lawyers for Elective LocalOfficials

General Rule: A Legal Officer, one of theappointive local officals common to LGUs, istasked to represent the LGU in all civilactions and special proceedings wherein theLGU or any official thereof, in his officialcapacity, is a party. (sec. 481)

By appearing as counsel for dismissedemployees, the city counsellor violated theprohibition against engaging in practice if suchpractice represents interests adverse to thegovernment. [Javellana vs DILG (212 S 475)]

A municipality cannot hire private counsel to filea suit in its behalf. The RAC provides that onlythe provincial fiscal and the municipal attorneycan represent a municipality or its official in itslawsuits, except in cases where:1) original jurisdiction is vested in the SC2) where the municipality is a party adverse to

the provincial government or the case isbetween two municipalities

3) He or his wife/child is pecuniarily involved asheir, legatee, creditor, etc.

While a private prosecutor is allowed in criminalcases, private counsel cannot represent LGUeven if in collaboration with an authorizedgovernment lawyer except that in the interest ofsubstantial justice, the municipality may adoptwork already performed in good faith by theprivate attorney which was beneficial to itprovided.1) no injustice is heaped on adverse party2) no compensation of any guise is paid.

[Ramos v. CA (1981)]

The municipality’s authority to employ aprivate lawyer is expressly limited only tosituations where the provincial fiscal isdisqualified to represent it. For the exceptionto apply, the fact that the provincial fiscalwas disqualified to handle themunicipality’s case must appear onrecord. The refusal of the provincial fiscal torepresent the municipality is not a legaljustification for employing the services ofprivate counsel. Instead of engaging theservices of a special attorney, the municipalcouncil should request the Secretary ofJustice to appoint an acting provincial fiscal

in place of the provincial fiscal who hasdeclined to handle and prosecute its case incourt. [Pillilla v. CA (1994)]

In resolving whether a local governmentofficial may secure the services of a privatecounsel in an action filed against him in hisofficial capacity, the nature of the action andthe relief sought are to be considered. Inview of the damages sought, which ifgranted, could result in personal liability,respondents could not be deemed to havebeen improperly represented by a privatecounsel. [Mancenido v. CA (2000)]

NOTES: Instances when a private lawyer can

represent a LGU When the municipality is an adverse

party in a case involving the provincialgovernment or another municipality orcity within the province

Where original jurisdiction is vested withthe SC

Test as to when a local governmentofficial can secure the services of privatecounsel: Nature of the action and the reliefthat is sought

C. Prohibition against Appointment

No elective official shall be eligible forappointment or designation in any capacityto any public office or position during histenure [Flores v Drilon (1993)]

Except for losing candidates in barangayelections, no candidate who lost in anyelection shall, within one year after suchelection, be appointed to any office in thegovernment or any GOCC or theirsubsidiaries.

IV. Local Boards and Councils

Sec. 98-116

A. Local School Board

Determines the annual supplementarybudgetary needs for the operation andmaintenance of public schools

Authorizes the disbursal of funds from theSpecial Education Fund

Serves as an advisory committee to theSanggunian concerned on educationalmatters

Recommend changes in the names of publicschools.


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Cases The Special Education Fund covers the

salary and benefits of extension classesteachers but not college scholarship funds.[COA Cebu Province v. Province of Cebu(2001)]

The requirement that DECS shall consult thelocal school board in Sec 99, LGC applies toappointments made by DECS, not toappointments made by the Pres. [Osea vsMalaya (2002)]

B. Local Health Board

Proposes annual budgetary allocations forthe operation and maintenance of healthfacilities and services

Serves as an advisory committee to thesanggunian concerned on health matters

Creates committees which shall advice localhealth agencies on personnel and budgetarymatters

C. Local Development Council

Primary duty: to initiate a comprehensivemultisectoral development plan for the LGUwhich is submitted to the sanggunian forapproval and assist the correspondingsanggunian in setting the direction ofeconomic and social development, andcoordinating development efforts within itsterritorial jurisdiction.

D. Local Peace and Order Council

Formulate and recommend such measuresto improve or enhance peace and order andpublic safety

Monitor the implementation Make periodic assessments of the prevailing

peace and order situation

POLITICAL LAW REVIEWER Chapter VIII. LOCAL GOVERNMENT UNITS

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Chapter VIII. Local Government Units

A. THE BARANGAY1. KATARUNGANG PAMBARANGAY2. SANGGUNIANG KABATAAN

B. THE MUNICIPALITYC. THE CITYD. THE PROVINCE

A. The Barangay

LGC Sec. 384-439

The barangay is the basic political unit. Its rolesare:1. Primary planning and implementing unit of

government policies, plans, programs,projects and activities in the community;

2. Forum wherein the collective views may beexpressed, crystallized and considered; and

3. Where disputes may be amicably settled.(Sec 384, LGC)

A barangay captain is a person in authorityand an attack on him would amount to directassault. On the other hand, an attack on abarangay chief tanod who was a merebystander (not in the performance of hisduties) at the time the crime was committed, isnot direct assault as he is merely an agent of aperson in authority. [People v. Recto (2001)]

1. Katarungang Pambarangay

LGC Sec. 399-422

The previous law on Katarungang Pambarangayhas already been revised by the LGC and it hasthree significant features:[Uy v. Contreras(1994)]

PD 1508 Local Government CodeAuthority over criminaloffenses limited to thosepunishable byimprisonment notexceeding 30 days or afine not exceeding P200

Authority over criminaloffenses limited to thosepunishable byimprisonment notexceeding 1 year or afine not exceedingP5,000

No similar provision Disputes arising from theworkplace where thecontending parties areemployed or at theinstitution where suchparties are enrolled forstudy, shall be brought inthe brgy where suchworkplace or institution islocated

No similar provision Prescriptive periods ofoffenses suspendedduring the pendency of

the mediation,conciliation or arbitrationprocess

Quick Facts about Katarungang Pambarangay- nature of proceedings is contractual

1) Subject Matter for Amicable Settlement:All cases EXCEPT those listed under Sec.408:

EXCLUSIONS:a. One party is the government or any

subdivision or instrumentality thereofb. One party is a public officer or employee,

and the dispute relates to the performanceof his official functions

c. Offenses punishable by imprisonmentexceeding 1 yr or a fine exceedingP5,000.

d. Offenses where there is no privateoffended party

e. Dispute involves real properties located indifferent cities or municipalities (UNLESSthey submit their dispute to KP)

f. Dispute where parties who actually residein barangays of different cities ormunicipalities (UNLESS they submit theirdispute to KP)

g. Cases as determined by the President.

Other EXCLUSIONS: Cases under Sec 412(b):1) where the accused is under detention2) where a person has otherwise been

deprived of personal liberty calling forhabeas corpus proceedings

3) where actions are coupled with provisionalremedies such as preliminary injunction,attachment, delivery of personal propertyand support pendente lite

4) where the action may otherwise be barredby the statute of limitations

2) Conciliation is a precondition to filing ofcomplaint in court. Initiatory pleadings, if filed without

compliance with the precondition MAY bedismissed on motion of any interestedparty on the ground that it fails to state acause of action. [Wingarts vsMejia (1995)]

How should the averments be made?Failure to specifically allege the fact thatthere was no compliance with thebarangay conciliation procedureconstitutes a waiver of that defense.General averments are not enough.[Corpuz vs CA (1997)]

An undated certification that merely statesthat the case was set for hearing beforethe barangay but the parties failed toreach an amicable settlement is not the


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contemplated Barangay Certification toFile Action. [Mendova vs Afable(2002)]

3) In all KP proceedings, the parties must appearIN PERSON without the assistance of counselor representative.

EXCEPTION: Minors and incompetents maybe assisted by their next-of-kin who are NOTlawyers.

The Certification to file was improperlyand prematurely issued. No personalconfrontation before a duly constitutedPangkat took place. [Bonifacio LawOffice vs Belosillo (2002)]

Officers Involved1. Lupong Tagapamayapa.

i. It is composed of the punong barangayas chairman and 10 to 20 members. It isconstituted every 3 years.

ii. Powers:1. Administrative supervision over the

conciliation panels2. Meet monthly to provide a forum for

exchange of ideas among itsmembers and the public of mattersrelevant to the amicable settlementof disputes, and to enable variousconciliation panel members to sharewith one another their observationsin effecting speedy resolutions ofdisputes

3. Other powers and duties as may beprescribed by law or ordinance

2. Pangkat ng Tagapagkasundo. There shall be constituted for each

dispute brought before the lupon aconciliation panel

Consisting of 3 members who shall bechosen by the parties to the disputefrom the members of the lupon.

If the parties cannot agree on thepangkat membership, the same shall bedetermined by lots drawn by the luponchairmen

Effect of the settlement agreement andarbitration award The amicable settlement and arbitration

award shall have the force and effect of afinal judgment unless repudiation of thesettlement has been made or a petition tonullify the award has been filed before theproper city or municipal court (Section 416)

REPUDIATION of the settlement agreementmay be made by any party to the disputewithin 10 days from the date of settlement

- file with the lupon Chairman a statementto that effect sworn to before him

- may be made when consent is vitiatedby:a) fraudb) violencec) intimidation

- it shall be sufficient basis for issuance ofthe certification for filing a complaint

2. Sangguniang Kabataan

LGC Sec. 423-439

Creation and CompositionThere shall be in every barangay a sangguniangkabataan to be composed of a chairman, sevenmembers, a secretary and a treasurer. An officialwho, during his term of office, shall have passedthe age of 21 shall be allowed to serve theremaining portion of the term for which he waselected.

RA 9164 (2002) amended Sec. 424 and 428 ofthe LGC by lowering the maximum age of themembers of the Katipunan ng Kabataan andelective officials of the Sangguniang Kabataanfrom 21 to 18 years of age.

An elective official of the SangguniangKabataan should not be more than 21 years(now 18 years) of age on the day of hiselection. “Not more than 21 years old” is notequivalent to “less than 22 years old.”[Garvida v. Sales (1997)]

SK membership is not a property rightprotected by the Constitution. It is only astatutory right conferred by law. Congress mayamend at any time the law to change or evenwithdraw the statutory right. [Montesclaros vsComelec (2002)]

B. The Municipality

LGC Sec. 440-447

Quick Facts about the Municipality

May be created, divided, merged, abolished only byCongress subject to the approval by a majority of hevotes cast in a plebiscite in the LGU directly affected.

Requisites for creation:a. Ave. Annual income: 2.5M for the last 2 years;b. Population: At least 25Kc. Territory: 50 square kilometers


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d. Creation must not reduce land area,population or income of original municipality atthe time of said creation to less than minimumrequirements prescribed therein.

The municipal mayor has the authority toissue permits and licenses for the holding ofactivities for any charitable or welfarepurpose [LGC444(b)(3)]. [Olivarez v.Sandiganbayan (1995)]

The municipal mayor does not have thepower to issue warrants of arrest. The powervested by the previous LGC was repealedby the Consti. [Munez vs Arino (1995)]

The Sangguniang Bayan has the power toprovide for the establishment andmaintenance of public markets in themunicipality. Here, the SB merely mentionedthe plan to acquire the lot for expansion ofthe public market adjacent thereto. Untilthere is proper expropriation, the landownercannot be deprived of his right over the land.[Greater Balanga vs Mun of Balanga (1994)]

C. The City

LGC Sec. 448-458

Quick Facts about the City


Requisites for creation:(i) Ave. Annual income: at least 100M for the last

2 consecutive years (Section 450 of LGC wasamended by RA 9009)- and either one of the following requisites:

(ii) Population: Not less than 150K(iii) Territory: 100 square kilometers

* Creation must not reduce land area,population or income of originalmunicipality at the time of said creation toless than minimum requirementsprescribed therein.

Authority over Officers The Sangguniang Panlungsod has no

authority to issue subpoenas and punish non-members for legislative contempt. Thecontempt power of the legislature is suigeneris and local legislative bodies cannotcorrectly claim to possess it for the samereasons that the national legislature does. Thepower to subpoena witnesses and punish non-members for contempt may not also be impliedin the delegation of legislative power as suchpartake of a judicial nature. [Negros Oriental IIElectric Cooperative v. SangguniangPanlungsod (1987)]

DBM cannot control amount a city wants togive its judges as allowance, as long as cityhas money to do so. [Dadole v. COA (2002)]

Licenses and Permits A permit issued by the mayor to a drugstore

not previously cleared with and licensed by theFDA will be a nullity. However, the issuance ofa mayor’s permit is not mandatory once it isshown that the FDA has licensed the operationof the applicant. The city mayor may onlyrevoke the permits issued for violation of thelocal requirements imposed, not with therequirements of general laws andimplementing administrative rules. [Gordon v.Veridiano II (1988)]

Distinction must be made between the grant ofa license or permit to do business and theissuance of a license to engage in the practiceof a particular profession. A business permitcannot, by the imposition of conditions, beused to regulate the practice of a profession.[Acebedo Optical v. CA (2000)]

License/permit to dobusiness

License to engage in aprofession

Granted by the localauthorities

Board or Commissiontasked to regulate theparticular profession

Authorizes the person toengage in business orsome form of commercialactivity

Authorizes a naturalperson to engage in thepractice or exercise of hisor her profession

NOTE: The power to issue licenses and permitsnecessarily includes the power to revoke, withdrawor restrict through the imposition of certainconditions. However, the conditions must bereasonable and cannot amount to an arbitraryinterference with the business.

The power to suspend or revoke licensesand permits is expressly premised on theviolation of the conditions of these permits.

The mayor has the power to inspect andinvestigate private commercialestablishments for any violation of theconditions of their licenses and permits, buthe cannot order a police raid in the guise ofinspecting the establishments. [Lim vsGaraybas (2002)]

Only the Sanggunian, not the mayor of thecity, has the power to allow cockpits, stadiums,etc. Without an ordinance, he cannot compelmayor to issue him a business license. [Canetv. Dacena (2004)]

Cityhood laws RA 9009 increased the income threshold in

the creation of a city to P100 million, and ineffect amending Sec 450 of the LGC.

A number of municipalities had pendingcityhood bills (stating that they will be


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exempt from the increase in incomerequirement) before the passage of RA9009.

The Court held that RA 9009 will not applyto said municipalities. It states that theintention of the law was to exemptmunicipalities: (1) that had pending cityhoodbills before the passage of RA 9009, and (2)that were compliant with the old incomethreshold.

There is a valid classification as betweenthe municipalities with and without thecityhood bills.

DISSENT: (1) The new income thresholdshould be applied prospectively, (2) theConstitution requires that Congress shallprescribe all the criteria for the creation of acity in the LGC and NOT in any other law,including Cityhood laws, (3) RA 9009 isclear and unambiguous (no need to look atintent of 11

thCongress), (4) the Cityhood

laws violate the equal protection clause.[League of Cities vs Comelec (2009)]

D. The Province

LGC Sec. 459-469

Quick Facts about the Province


Requisites for creation:(i) Ave. Annual income: 20M(ii) Population: Not less than 250K(iii) Territory: 2K square kilometers(iv) Creation must not reduce land area,

population or income of original municipality atthe time of said creation to less than minimumrequirements prescribed therein

POLITICAL LAW REVIEWER Chapter IX. MISCELLANEOUS and FINAL PROVISIONS

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Chapter IX. Miscellaneous and FinalProvisions

A. POSTING AND PUBLICATION OFORDINANCES WITH PENAL SANCTIONS

B. PENALTIES FOR VIOLATION OF TAXORDINANCES

C. PROVISIONS FOR IMPLEMENTATION

A. Posting and Publication ofOrdinances with Penal Sanctions

Sec. 511, LGC General rule: Ordinances with penal

sanctions shall be:(1) posted at prominent places in the

provincial capitol orcity/municipal/barangay hall for at least3 consecutive weeks; &

(2) published in a newspaper of generalcirculation (if available) within theterritorial jurisdiction of the LGU;

Exception: Barangay ordinances.

For publication, the secretary to thesanggunian shall transmit official copies ofordinances to the Official Gazette chiefexecutive office, within 7 days following theapproval of the ordinance. OG may publishordinances with penal sanctions for archivaland reference purposes.

Effectivity of ordinances with penalsanctions: On the day following itspublication, or at the end of the period ofposting, whichever occurs later.

Exception: Ordinance provides otherwise.

Effect of public officer/EE violating anordinance: Administrative disciplinary action,without prejudice to civil/criminal action.

B. Penalties for Violation of TaxOrdinances

Sec. 516, LGC LGU sanggunian is authorized to prescribe

penalties for violation of tax ordinances:(1) Fines should be at least P1,000 but not

more than P5,000; Exception: Sangguniang barangay

may prescribe a fine of at leastP100 but not more than P1,000.

(2) Imprisonment should be at least 1month but not more than 6 months.

Penalties are imposed at the discretion ofthe court.

C. Provisions for Implementation

Mandatory review every 5 years.

S521, LGC Congress shall review LGC at least once

every 5 years and as often as it may deemnecessary;

Primary purpose: Providing a moreresponsive and accountable localgovernment structure.

Transitory Provisions

LGC Sec. 538Deconcentration of Requisite Authority andPower 6 months after the effectivity of LGC, the

national government shall effect thedeconcentration of requisite authority andpowero to appropriate regional offices or field

offices of national agencies or offices(major functions are not devolved toLGUs)

LGC Sec. 539Tax Ordinances or Revenue Measures All existing tax ordinances or revenue

measures of LGUs shall continue to be inforce and effect after the effectivity of thisCode UNLESSo amended by the sanggunian concernedo or inconsistent with, or in violation of,

the provisions of LGC

POLITICAL LAW REVIEWER Chapter X. APPLICATION of LGC to Autonomous Regions and Other Entities

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Chapter X. Application of LGC toAutonomous Regions and Other Entities

I. AUTONOMOUS REGION IN MUSLIMMINDANAO

II. CORDILLERA ADMINISTRATIVE REGIONIII. THE METROPOLITAN MANILA

DEVELOPMENT AUTHORITY

LGC Sec. 526Application of this Code to Local GovernmentUnits in the Autonomous Regions LGC applies to all provinces, cities,

municipalities and barangays in theautonomous regions until such time as theregional government has enacted its ownLGC.

I. The Autonomous Region in MuslimMindanao

Article X Section 15 1987 Constitution: Thereshall be created autonomous regions in MuslimMindanao and in the Cordilleras consisting ofprovinces, cities, municipalities andgeographical areas sharing common anddistinctive historical and cultural heritage,economic and social structures and otherrelevant characteristics within the framework ofthis Constitution and the national sovereignty aswell as territorial integrity of the Republic of thePhilippines

Nature

The autonomous governments of Mindanaoinvolved in this case were created by PD1618, even before the 1987 Const. Theywere never meant to exercise the kind ofautonomy wherein the central governmentcommits an act of self-immolation. In fact,PD 1618 mandates that the “President shallhave the power of general supervision andcontrol over Autonomous Regions. [Limbonav. Mangelin (1989)]

The idea behind the Consti provisions forautonomous regions is to allow the separatedevelopment of peoples with distinctcultures and traditions. [Discomangcop vsDatumanong (2004)] The creation of autonomous regions

does not signify the establishment of asovereignty distinct from the Republic,as it can only be installed within theframework of the Consti and nationalsovereignty. [supra]

Regional autonomy refers to thegranting of basic internal governmentpowers to the people of a particular areaor region with LEAST control andsupervision from the centralgovernment. [supra]

NOTE: Under Sec. 16, Art. X of the Const.,“The President shall exercise generalsupervision over autonomous regions to ensurethat the laws are faithfully executed.”

Effect

Through the passage of the Organic Act of2001 (RA 9054), the devolved powers andfunctions under the LGC could now beapplied to the ARMM. This means that thepowers and functions of a ProvincialGovernor under the LGC are now enjoyed,as a minimum, by a Provincial Governor inthe ARMM. [Pandi v. CA (2002)]

II. Cordillera Administrative Region

EO. 220: Act Creating the CordilleraAdministrative RegionRA 6766: Organic Act of Cordillera AutonomousRegion

In the plebiscite held pursuant to RA 6766,the creation of the Cordillera AutonomousRegion was rejected by all the provincesand city of the Cordillera region exceptIfugao province. Hence, the CordilleraAutonomous region did not come to be.[Ordillo vs Comelec (1990)]

The Cordillera Administrative Region is not apublic corporation or a territorial and politicalsubdivision. It does not have a separatejuridical personality, unlike provinces, citiesand municipalities. Neither is it vested withthe powers that are normally granted topublic corporations, e.g. the power to sueand be sued, the power to own and disposeof property, the power to create its ownsources of revenue, etc.

The CAR was created primarily tocoordinate the planning and implementationof programs and services in the coveredareas. The creation of administrative regionsfor the purpose of expediting the delivery ofservices. [Cordillera Broad Coalition v. COA(1990)]


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III. The Metropolitan ManilaDevelopment Authority

RA 7924 (1995): An act creating the MMDA,defining its powers and functions, providingfunds therefor and for other purposes

Metro Manila is constituted into a specialdevelopment and administrative regionsubject to direct supervision of thePresident.

Cities covered: Caloocan Manila Mandaluyong Makati Pasay Pasig Quezon, and Muntinlupa (marikina? Taguig?)

Municipalities covered: Las Piñas Malabon Marikina Navotas Parañaque Pateros San Juan Taguig Valenzuela

The MMDA shall: perform planning, monitoring and

coordinative functions, and exercise regulatory and supervisory

authority over the delivery of metro-wideservices within Metro Manila

without diminution of the autonomy ofthe LGUs concerning purely localmatters.

Scope of MMDA Services

Services which have metro-wide impact and transcend

local political boundaries or

entail huge expenditures such that itwould not be viable for said services tobe provided by the individual LGUscomprising MM including:1. Development planning, investments

programming, and coordination andmonitoring of plan, program andproject implementation

2. Transport and traffic management,provision for the mass transportsystem and the institution of a

system to regulate road users, trafficengineering services and trafficeducation programs, including theinstitution of a single ticketingsystem in MM

3. Solid waste disposal andmanagement

4. Flood control and seweragemanagement

5. Urban renewal, zoning, and landuse planning, and shelter services

6. Health and sanitation, urbanprotection and pollution control

7. Public safety which include:

the formulation andimplementation of programs andpolicies to achieve public safety,especially preparedness forpreventive or rescue operationsduring times of calamities anddisasters,

coordination and mobilization ofresources and theimplementation of contingencyplans for the rehabilitation andrelief operations in coordinationwith national agenciesconcerned.

The MMDA is not a political unit of thegovernment. It has no police power. There isno grant of authority to enact ordinancesand regulations for the general welfare ofthe metropolis.

The MMDA is not even a "specialmetropolitan political subdivision" ascontemplated in Section 11, Article X of theConstitution. The creation of a "specialmetropolitan political subdivision" requiresthe approval by a majority of the votes castin a plebiscite in the political units directlyaffected. R. A. No. 7924 was not submittedto the inhabitants of Metro Manila in aplebiscite. The Chairman of the MMDA isnot an official elected by the people, butappointed by the President with the rank andprivileges of a cabinet member. In fact, partof his function is to perform such otherduties as may be assigned to him by thePresident, whereas in LGUs, the Presidentmerely exercises supervisory authority. Thisemphasizes the administrative character ofthe MMDA. [MMDA v. Bel Air VillageAssociation (2000).]

Sec. 5(f) of RA 7924 grants the MMDA theduty to enforce existing traffic rules andregulation. Thus, where there is a traffic law


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or regulation validly enacted by thelegislature or those agencies to whomlegislative powers have been delegated,MMDA is not precluded—and is in fact duty-bound—to confiscate and suspend orrevoke driver’s license in the exercise of itsmandate of transport and trafficmanagement, as well as administration andimplementation of all traffic enforcementoperations, traffic engineering services andtraffic education programs.

This is consistent with the ruling in Bel Airthat the MMDA is a development authorityfor the purpose of laying down policies andcoordinating with the various nationalgovernment agencies, people’sorganizations, NGOs and the private sector,which may enforce, but not enact,ordinances. [MMDA v. Garin]

- end of Local Government Law –- end of Political Law –