Political Law Up 2012

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PPPOOOLLLIIITTTIIICCCAAALLL BAR REVIEWER UP LAW 2012

Constitutional Law 1


Law on Public Officers

Administrative Law

Election Law

Local Governments

Public International Law

LAW ean Danilo L. ConcepcionDean, UP College of Law

Prof. Concepcion L. JardelezaAssociate Dean, UP College of Law

Prof. Ma. Gisella D. ReyesSecretary, UP College of Law

Prof. Florin T. HilbayFaculty Adviser, UP Law Bar OperationsCommission 2012

Ramon Carlo F. MarcaidaCommissioner

Eleanor BalaquiaoMark Xavier OyalesAcademics Committee Heads

Rogelio Benjamin RedobleMoises Ronette Colobong

Political Law Subject Heads

Graciello Timothy ReyesLayout

UP LAW BAR OPERATIONS COMMISSION



PPPOOOLLLIIITTTIIICCCAAALLL BAR REVIEWER UP LAW 2012

BAR OPERATIONS COMMISSION 2012

EXECUTIVE COMMITTEERamon Carlo Marcaida |Commissioner

Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary

Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor

COMMITTEE HEADSEleanor Balaquiao • Mark Xavier Oyales|Acads

Monique Morales • Katleya Kate Belderol • Kathleen MaeTuason (D) • Rachel Miranda (D) |Special Lectures

Patricia Madarang • Marinella Felizmenio |Secretariat

Victoria Caranay |Publicity and PromotionsLoraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics

Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise

Graciello Timothy Reyes |Layout Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar

Krizel Malabanan • Karren de Chavez |Bar Candidates’ WelfareKarina Kirstie Paola Ayco • Ma. Ara Garcia |Events

OPERATIONS HEADSCharles Icasiano • Katrina Rivera |Hotel Operations

Marijo Alcala • Marian Salanguit |Day-OperationsJauhari Azis |Night-Operations

Vivienne Villanueva • Charlaine Latorre |Food

Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages

LAW OLITICAL LAW TEAM 2012Faculty Editor | Prof. Florin T. HilbaySubject Heads |Rogelio Benjamin Redoble • Moises Ronette ColobongContributors| Alferri Bayalan • Cielo Gono •Noel Luciano

LAYOUT TEAM 2012Layout Artists | Alyanna Apacible • NoelLuciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • LeslieOctaviano • Yas Refran • Cris BernardinoLayout Head| Graciello Timothy Reyes




\ PPPOOOLLLIIITTTIIICCCAAALLL LAW

2012 UP Law Bar Reviewe

Copyright and all other relevant rights over thismaterial are owned jointly by the University of thePhilippines College of Law and the Student EditorialTeam.

The ownership of the work belongs to the University ofthe Philippines College of Law. No part of this bookshall be reproduced or distributed without the consentof the University of the Philippines College of Law.

All Rights reserved.

LAW BAR OPERATIONS COMMISSION



PPPOOOLLLIIITTTIIICCCAAALLL LAW


A. The Constitution ........................ 11

I. Definition, Nature and Concepts ..... 11II. Parts ..................................... 12III. Amendments and Revisions ......... 12IV. Self-Executing and Non-Self-Executing Provisions ...................... 16V. General Provisions..................... 16

B. General Considerations ................ 16I. National Territory ...................... 16II. State Immunity ........................ 17III. Principles and Policies ............... 19IV. Separation of Powers ................ 20

V. Forms of Government ................. 21

C. Legislative Department ................ 22I. Who May Exercise Legislative Power 22II. Houses of Congress .................... 22III. Legislative Privileges, Inhibitions andDisqualifications .......................... 24IV. Quorum and Voting Majorities ...... 25V. Discipline of Members ................ 26VI. Electoral Tribunals and theCommission on Appointments ........... 26VII. Powers of Congress .................. 28

D. Executive Department ................. 32I. Privileges, Inhibitions andDisqualifications .......................... 32II. Powers .................................. 36

D. Judicial Department .................... 48I. Concepts ................................. 48II. Constitutional Safeguards of theSupreme Court ............................ 50III. Judicial Restraint ..................... 51IV. Appointments to the Judiciary ..... 51

F. Constitutional Commissions ........... 54I. Institutional Independence Safeguards.............................................. 54II. Powers and Functions ................. 54III. Judicial Review ....................... 57

G. Citizenship ............................... 571. Natural-Born Citizens and PublicOffice ....................................... 582. Naturalization and Denaturalization 58

3. Loss of Citizenship ..................... 594. Repatriation ............................ 60

H. National Economy & Patrimony ...... 601. Regalian Doctrine ...................... 602. Nationalist and CitizenshipRequirement Provisions .................. 603. Exploration, Development andUtilization of Natural Resources ........ 614. Franchises, Authority and Certificatesfor Public Utilities ........................ 625. Acquisition, Ownership and Transferof Public and Private Lands ............. 636. Practice of Professions ................ 637. Organization and Regulation of

Corporations, Private and Public ....... 638. Monopolies, Restraint of Trade andUnfair Competition ....................... 63

I. Social Justice & Human Rights ......... 641. Concept of Social Justice ............. 642. Commission on Human Rights ........ 64

J. Education, Science, Technology, Arts,Culture and Sports .......................... 65

1. Academic Freedom .................... 65


A. Fundamental Powers of the State.... 671. Concept and Application .............. 672. Requisites for Valid Exercise ......... 703. Similarities and Differences .......... 714. Delegation .............................. 72

B. Private Acts & the Bill of Rights ...... 731. In General ............................... 732. Bases and Purpose ..................... 733. Accountability .......................... 74

C. Due Process .............................. 741. Relativity of Due Process ............. 752. Procedural and Substantive DueProcess ..................................... 753. Constitutional and Statutory DueProcess ..................................... 764. Hierarchy of Rights .................... 765. Judicial Standards of Review ........ 77

D. Equal Protection ......................... 77



PPPOOOLLLIIITTTIIICCCAAALLL LAW1. Concept ................................. 77

2. Requisites for Valid Classification ... 77

E. Searches and Seizures.................. 791. Concept ................................. 792. Warrant Requirement ................. 793. Warrantless Searches ................. 804. Warrantless Arrests.................... 835. Administrative Arrests ................ 856. Drug, Alcohol and Blood Tests ....... 85

F. Privacy of Communications andCorrespondence ............................ 85

1. Private and Public Communications 85Intrusion, When Allowed ................. 85

2. Writ of Habeas Data ................... 861. Concept and Scope .................... 862. Content-Based and Content-NeutralRegulations ................................ 87Content-Neutral Restrictions ............ 893. Facial Challenges and theOverbreadth Doctrine .................... 904. Tests ..................................... 915. State Regulation of Different Types ofMass Media ................................. 916. Commercial Speech ................... 937. Private v. Government Speech ...... 93

8. Heckler‘s Veto ......................... 93

H. Freedom of Religion .................... 931. Non-Establishment Clause ........... 932. Free Exercise Clause .................. 94

I. Liberty of Abode and Freedom of Movement .................................... 95

1. Limitations ............................. 95Right to Travel ............................ 952. Return to One‘s Country.............. 95

J. Right to Information .................... 951. Limitations ............................. 962. Publication of Laws and Regulations 963. Access to Court Records .............. 964. Right to Information Relative to .... 97

K. Right to Association ..................... 971. Labor Unionism ........................ 982. Communist and Similar Organizations.............................................. 983. Integrated Bar of the Philippines.... 98

L. Eminent Domain ......................... 981. Concept ................................. 982. Expansive Concept of ―Public Use‖ . 993. Just Compensation ...................1004. Abandonment of Intended Use andRight of Repurchase .....................1015. Miscellaneous Application ...........101

M. Contracts Clause ...................... 1021. Application of the Contract Clause 1022. Contemporary Application of theContract Clause ..........................1023. Limitations .............................103

N. Legal Assistance and Free Access toCourts ....................................... 103

O. Rights of Suspects ..................... 1031. Availability .............................1042. Requisites ..............................1053. Waiver ..................................106

P. Rights of the Accused ................. 1061. Criminal Due Process .................1072. Bail ......................................1073. Presumption of Innocence ...........109

4. Right to be Heard .....................1095. Assistance of Counsel ................1096. Right to be Informed .................1097. Right to Speedy, Impartial and PublicTrial ........................................1098. Right of Confrontation ...............1109. Compulsory Process ..................11010. Trials In Absentia ....................110

Q. Writ of Habeas Corpus ............... 111

R. Writ of Amparo ........................ 112

S. Self-Incrimination Clause ............ 1141. Scope and Coverage ..................1142. Application.............................1153. Immunity Statutes ....................115

T. Involuntary Servitude and PoliticalPrisoners ................................... 115

U. Excessive Fines and Cruel andInhuman Punishments ................... 116



PPPOOOLLLIIITTTIIICCCAAALLL LAW

W. Double Jeopardy ..................... 1171. Requisites .............................. 1172. Motions for Reconsideration andAppeals .................................... 1183. Dismissal with Consent of Accused . 118

X. Ex Post Facto and Bills of Attainder 118


A. General Principles .................... 121I. Concept and Application ............. 121II. Public Officer ......................... 123III. Classification of Public Offices and

Public Officers ........................... 124

B. Modes of Acquiring Title to PublicOffice ....................................... 124

I. Classification of Appointments ...... 125II. Steps in Appointment Process ...... 125III. Presidential Appointees............. 125IV. Discretion of Appointing Official .. 126V. Effectivity of Appointment.......... 127VI. Effects of a Complete, Final andIrrevocable Appointment ............... 127

D. Eligibility and QualificationRequirements ............................. 127

I. Definition ............................... 127II. Power to Prescribe Qualifications .. 127III. Time of Possession of Qualifications............................................. 128IV. Eligibility is Presumed .............. 128V. Qualifications Prescribed ByConstitution .............................. 128VI. Religious Test or Qualification is notRequired .................................. 129VII. Qualification Standards and

Requirements under the Civil ServiceLaw ........................................ 129

E. Disabilities and Inhibitions of PublicOfficers ..................................... 130

F. Powers and Duties of Public Officers............................................... 132

I. Classification of Powers and Duties 132II. Source of Powers and Authority .... 132III. Duties of Public Officers ............ 133

G. Rights of Public Officers ............. 133I. In General ..............................133II. Right to Compensation ..............134III. Other Rights ..........................134

H. Liabilities of Public Officers ......... 135I. Preventive Suspension and BackSalaries ....................................136II. Illegal Dismissal, Reinstatement andBack Salaries ..............................137

I. Immunity of Public Officers .......... 137

J. De Facto Officers ...................... 137

I. De Facto Doctrine .....................137II. De Facto Officer Defined ............138III. Elements of a De Facto Officership.............................................139

IV. Office created under anunconstitutional statute ................139V. Legal Effect of Acts of De FactoOfficers ....................................139VII. Right to Compensation of De FactoOfficer .....................................140

K. Termination of Official Relation .... 140

I. Expiration of the term or tenure ofoffice ......................................140II. Reaching the age limit (retirement).............................................140

III. Death or permanent disability .....140IV. Resignation ...........................140V. Acceptance of an incompatible office.............................................141

VI. Abandonment of office ..............141VII. Prescription of right to office .....141IX. Impeachment .........................141X. Abolition of office ....................141

XI. Conviction of a crime ...............141XII. Recall .................................142

L. The Civil Service ....................... 142I. Scope ....................................142Civil Service Commission’s (CSC’s)

Jurisdiction ...............................142II. Appointments to the Civil Service ..142III. Personnel Actions ....................142

M. Accountability of Public Officers... 143



PPPOOOLLLIIITTTIIICCCAAALLL LAWI. Impeachment .......................... 143

II. Ombudsman ........................... 144III. Sandiganbayan ....................... 144IV. Ill-Gotten Wealth .................... 145

N. Term Limits ............................ 146

Administrative Law

A. General Principles .................... 148I. Definitions .............................. 148II. Historical Considerations ............ 148

B. Administrative Agencies ............. 148I. Modes of Creation of Administrative

Agencies ................................... 148II. When is an agency administrative? 148III. Types of Administrative Agencies . 148

C. Powers of Administrative Agencies 148I. Quasi-Legislative (Rule Making) Power............................................. 148III. Fact-Finding, Investigative, Licensingand Rate-Fixing Powers ................. 152II. Doctrine of Exhaustion ofAdministrative Remedies ............... 153III. Doctrine of Finality of Administrative

Action ..................................... 154

Election Law

_Toc324721036 A. Suffrage ................................. 156

I. Scope .................................... 156II. Election Period........................ 156

B. Qualification and Disqualification of Voters ....................................... 156

I. Qualifications .......................... 156II. Overseas Absentee Voter ............ 157

C. Registration of Voters ................ 157I. Definition .............................. 157II. System of Continuing Registration ofVoters ..................................... 157III. Illiterate or disabled voters ........ 158IV. Election Registration Board ...... 158V. Change of residence or address .... 158VI. Challenges to right to register ..... 158VII. Deactivation of Registration ...... 158

VIII. Reactivation of Registration ......158IX. Certified List of Voters ..............159X. Annulment of Book of Voters .......159XI. Overseas Absentee Voter ...........159

D. Inclusion and Exclusion Proceedings............................................... 159

E. Political Parties ........................ 160I. Party System ........................160III. Purpose ..............................160IV. Procedure for Registration .........160V. Who May Not be Registered ......160VI. Grounds for refusal and/orcancellation of registration.............160

VII. Parameters in Allocation of Seatsfor Party-List Representatives .........161VIII. Effect of Change of Affiliation ...161IX. Nomination of Party-ListRepresentative ...........................161

F. Candidacy ............................... 162I. Qualifications of Candidates .........162II. Filing of Certificates of Candidacy .163

G. Campaign ............................... 165I. Premature Campaigning ..............165

II. Prohibited Contributions ............167

H. Board of Canvassers .................. 168I. Composition of Board of Canvassers 168II. Prohibitions on BOC ..................169III. Canvass by the BOC ..................169IV. Certificate of Canvass and Statementof Votes ...................................169V. Proclamation ..........................169

I. Remedies and Jurisdiction in ElectionLaw .......................................... 170

I. Petition Not to Give Due Course toCertificate of Candidacy ................170II. Petition to Declare Failure ofElections...................................170III. Pre-Proclamation Controversy .....171IV. Election Protest ......................172V. Quo Warranto .........................173

J. Prosecution of Election Offenses ... 173I. Jurisdiction over Election Offenses .173



PPPOOOLLLIIITTTIIICCCAAALLL LAWII. Preferential Disposition of Election

Offenses ................................... 173III. Election Offenses .................... 173IV. Arrests in Connection with ElectionCampaign ................................. 175V. Prescription ........................... 175VI. Prohibited Acts Under R.A. 9369 .. 175

Local Governments

A. Public Corporations ................... 1781. Concept ................................ 1782. Classifications ......................... 178

B. Municipal Corporations .............. 178

1. Elements ............................... 1782. Nature and Functions ................ 1793. Requisites for Creation, Conversion,Division, Merger or Dissolution ......... 179

C. Principles of Local Autonomy ....... 1831. State Policy, Principles ofDecentralization ......................... 1832. Local Autonomy ....................... 1833. Decentralization ...................... 1834. Devolution (asked in 1999) .......... 184

D. Powers of Local Government Units(LGUs) ....................................... 184

1. Police Power (General Welfare Clause)............................................. 1842. Eminent Domain [Sec. 19, LGC] .... 1863. Taxing Power [Sec. 18, LGC] ........ 1874. Closure and Opening of Roads [Sec.21, LGC] ................................... 1885. Legislative Power [Secs. 48-59, LGC] ............................................. 1896. Corporate Powers..................... 1947. Liability of LGUs ...................... 194

Liability for Torts, Violation of the Lawand Contracts ............................ 1958. Settlement of Boundary Disputes .. 1969. Succession of Elective Officials ..... 196Rules on Succession ..................... 19710. Discipline of Local Officials ........ 19911. Recall ................................. 20312. Term Limits .......................... 204


A. Concepts ................................ 2101. Obligations Erga Omnes ..............2102. Jus Cogens .............................2103. Concept of Aequo Et Bono ...........210

B. International and National Law ..... 210Relationship between PIL and MunicipalLaw .........................................210

C. Sources .................................. 2111. Treaty as Source of Law .............2112. Customary International Law .......2113. General Principles of Law ...........2134. Subsidiary Source: Judicial Decisions

.............................................2135. Subsidiary Source: Publicists ........214

D. Subjects ................................. 2141. States ...................................2142. International Organizations .........2163. Individuals .............................217

E. Diplomatic and Consular Law ....... 2171. Agents of Diplomatic Intercourse ...217Functions and Duties ....................2172. Diplomatic Immunities and Privileges

.............................................2183. Consular Relations ....................220

F. Treaties ................................. 2211. Definition ..............................2212. Requisites for Validity ................2223. The Treaty-Making Process ..........2224. Invalid Treaties .......................2235. Grounds for Termination ............223

G. Nationality and Statelessness ....... 2231. Nationality .............................223

2. Statelessness ..........................224Definition of Human Rights .............2262. International Covenant on Civil andPolitical Rights (ICCPR)..................2263. International Covenant on Economic,Social and Cultural Rights (ICESCR) ...227

J. International Humanitarian Law (IHL)and Neutrality ............................. 227

2. Core International Obligations ofStates in IHL ..............................228



PPPOOOLLLIIITTTIIICCCAAALLL LAW3. Principles of IHL ...................... 228

4. Law on Neutrality .................... 230

K. Law of the Sea ......................... 2301. Baselines ............................... 2302. Archipelagic States ................... 2303. Internal Waters ....................... 2314. Territorial Sea......................... 2315. Exclusive Economic Zone ............ 2326. Continental Shelf ..................... 2327. Tribunal of the Law of the Sea ..... 233

L. International Environment Law .... 234



PPPOOOLLLIIITTTIIICCCAAA

LAWAR OPERATIONS COMMISSION 2012


Raymond Velasco •Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary


COMMITTEE HEADS

Eleanor Balaquiao • Mark Xavier Oyales|AcadsMonique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel

Miranda (D) |Special Lectures

Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions

Loraine Saguinsin • Ma. Luz Baldueza |Marketing

Benjamin Joseph Geronimo • Jose Lacas |Logistics

Angelo Bernard Ngo • Annalee Toda|HR

Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout

Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar

Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare

Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events

OPERATIONS HEADS

Charles Icasiano • Katrina Rivera |Hotel Operations






BAR REVIEWER UP LAW 2012

POLITICAL LAW TEAM 2012Faculty Editor | Florin T. HilbaySubject Heads| RogelioBenjamin Redoble • MoisesRonette ColobongContributors| Alferri Bayalan •Cielo Gono • Noel Luciano

LAYOUT TEAM 2012Layout Artists | AlyannaApacible • Noel Luciano • RM

Meneses • Jenin Velasquez • Mara Villegas • Naomi QuimpoLeslie Octaviano • Yas Refran •Cris BernardinoLayout Head| Graciello TimothReyes



CONSTITUTIONAL LAW 1POLITICAL LAW REVIEWER

Constitutional Law 1POLITICAL LAW

Constitutional Law 1Constitutional Law 2

Law on Public OfficersAdministrative Law

Election LawLocal Governments


A. The ConstitutionB. General ConsiderationsC. Legislative DepartmentD. Executive DepartmentE. Judicial DepartmentF. Constitutional Commissions

G. CitizenshipH. National Economy and PatrimonyI. Social Justice and Human RightsJ. Education, Science, Technology,

Arts, Culture and Sports

A. The ConstitutionI. Definition, Nature and ConceptsII. PartsIII. Amendments and RevisionsIV. Self-Executing and Non-Self ExecutingProvisionsV. General Provisions

I. Definition, Nature and Concepts

Political law – branch of public law which deals withthe organization and operations of the governmentalorgans of the State and defines the relations of theState with the inhabitants of its territory. [People v.Perfecto, 43 Phil 88, 1922]

Scope of Political Law - The entire field of politicallaw may be subdivided into:(1) the law of public administration;(2) constitutional law,(3) administrative law, and(4) the law of public corporations.

These four subdivisions may be briefly described forthe time being, as follows: The first deals with theorganization and management of the differentbranches of the government; the second, with theguaranties of the constitution to individual rights andthe limitations on governmental action; the third,with the exercise of executive power in the makingof rules and the decision of questions affectingprivate rights; and the last, with governmentalagencies for local government or for other specialpurposes. [Sinco 1]

Constitutional Law – designates the law embodied inthe Constitution and the legal principles growing outof the interpretation and application of its provisionsby the courts in specific cases. It is the study of themaintenance of the proper balance between theauthority as represented by the three inherentpowers of the State and liberty as guaranteed by theBill of Rights.

Types of Constitutional Law. In general, there arethree (3) different types of constitutional law,namely,

(1) The English type - characterized by the absenceof a written constitution (Sinco 67). An

unwritten constitution, and the power ofjudicial review by the courts. Thus, the courtscannot inval¬idate the acts of the parliament asbeing unconstitutional be¬cause of"parliamentary supremacy."

(2) The European continental type - where thereis a written constitution w/c gives the courts nopower to declare ineffective statutes contraryto it [Sinco 67] . A written constitution but no

power of judicial review by the courts. The so-called Con¬stitutional Courts of France do notexercise real judicial review but only renderadvisory opinions on constitutional questionsupon the request of the government, not ofparties in actual litigation.

(3) The American type - where the legal provisionsof the written constitution are given effectthrough the power of the courts to declareineffective or void ordinary statutes repugnantto it. [Sinco 67] .

Constitution defined

(1) It is the document which serves as thefundamental law of the state; that writteninstrument enacted by the direct action of thepeople by which the fundamental powers of thegovernment are established, limited anddefined, and by which those powers aredistributed among the several departments fortheir safe and useful exercise, for the benefitof the body politic [Malcolm, Phil.Constitutional Law].

(2) "A law for the government, safeguardingindividual rights, set down in writing."[Hamilton]

(3) According to Schwartz, "a constitution is seenas an organic instrument, under which

governmental powers are both conferred andcircumscribed. Such stress upon both grant andlimitation of authority is fundamental inAmerican theory. 'The office and purpose ofthe constitution is to shape and fix the limits ofgovernmental activity.'" [Fernando, TheConstitution of the Philippines, 20-21, 2nd ed.,1977]

Classification of Constitutions1. Written v. unwritten. A written constitution is

one whose precepts are embodied in onedocument or set of documents; while anunwritten constitution consist of rules whichhave not been integrated into a single, concreteform but are scattered in various sources, suchas statutes of fundamental character, judicialdecisions, commentaries of publicists, customsand traditions. [Cruz, Constituional Law, pp. 4-5; Nachura, Outline Reviewer in Political Law, p. 2]

2. Enacted (conventional) v. evolved(cumulative). A conventional constitution isenacted, formally struck off at a definite timeand place following a conscious or deliberateeffort taken by a constitutent body or ruler;while a cumulative body is the result of political




evolution, not inaugurated at any specific timebut changing by accretion rather than by anysystematic method. [Cruz, ibid, p.5] .

3. Rigid v. flexible - A constitution is classified asrigid when it may not be amended exceptthrough a special process distinct from and moreinvolved than the method of changing ordinarylaws. It is supposed that by such a specialprocedure, the constitution is rendered difficult

to change and thereby acquires a greater degreeof stability. A constitution is classified asflexible when it may be changed in the samemanner and through the same body that enactsordinary legislation. The British Constitution isflexible.

Note: A constitution's stability depends upon otherfactors than the mere rigidity or flexibility of theamending process, such as (1) the generaltemperament of the people and their leaders and (2)the degree of a nation's political maturity and socialhomogenity. [Sinco 68-70]

The Philippine Constitution is written, enacted andrigid.

The 1987 Constitution took effect on February 2,1987, the date of its ratification in the plebisciteheld on the same date, and not on the date itsratification was proclaimed [De Leon v. Esguerra,No.L-78059, August 31, 1987]

State – a community of persons, more or lessnumerous, permanently occupying a definite portionof territory, independent of external control, andpossessing a government to which a great body ofthe inhabitants render habitual obedience; apolitically organized sovereign community

independent of outside control bound by ties ofnationhood, legally supreme within its territory,acting through a government functioning under aregime of law. [Collector of Internal Revenue v.Campos Rueda, No.L-13250, October 29, 1971]

II. Parts

Parts of the Constitution(1) Constitution of Government – establishes the

structure of government, its branches and theiroperation.

(2) Constitution of Sovereignty — provides how theConstitution may be changed.

(3) Constitution of Liberty — states the fundamentalrights of the people.

[Lambino v. Comelec. G.R. No.174153. October 25,2006]

III. Amendments and Revisions

Article XVII – Amendments or Revisions

Amendment – refers to an addition or change withinthe lines of the original constitution as will effect animprovement, or better carry out the purpose forwhich it was framed. It refers to a change that adds,

reduces or deletes without altering the basicprinciples involved. It affects only the specificprovision being amended. (Lambino v. Comelec. G.R.No.174153. October 25, 2006).

Revision – broadly implies a change that alters abasic principle in the constitution, like altering theprinciple of separation of powers or the system ofchecks-and-balances. There is also revision if thechange alters the substantial entirety of the

constitution, as when the change affects substantialprovisions of the constitution (Lambino v. Comelec.G.R. No.174153. October 25, 2006).

Difference between amendment and revisionCourts have long recognized the distinction betweenan amendment and a revision of a constitution. xxx Revision broadly implies a change that alters a basicprinciple in the constitution, like altering theprinciple of separation of powers or the system ofchecks-and-balances. There is also revision if thechange alters the substantial entirety of theconstitution, as when the change affects substantialprovisions of the constitution. On the other hand,

amendment broadly refers to a change that adds,reduces, or deletes without altering the basicprinciple involved. Revision generally affects severalprovisions of the constitution, while amendmentgenerally affects only the specific provision beingamended [Lambino v. Comelec. G.R. No.174153.October 25, 2006]. This distinction is significantbecause the 1987 Constitution allows people‘sinitiative only for the purpose of amending, notrevising, the Constitution. (See tables below)

Legal Test: The Court in Lambino considered thetwo-part test: the quantitative test and thequalitative test.

(1) The quantitative test asks whether theproposed change is ―so extensive in itsprovisions as to change directly the ‗substantialentirety‘ of the constitution by the deletion oralteration of numerous existing provisions.‖ Thecourt examines only the number of provisionsaffected and does not consider the degree ofthe change.

(2) The qualitative test inquires into the qualitativeeffects of the proposed change in theconstitution. The main inquiry is whether thechange will ―accomplish such far reachingchanges in the nature of our basic governmentalplan as to amount to a revision.‖ Whether there

is an alteration in the structure of government isa proper subject of inquiry. Thus, ―a change inthe nature of [the] basic governmental plan‖includes ―change in its fundamental frameworkor the fundamental powers of its Branches.‖ Achange in the nature of the basic governmentalplan also includes changes that ―jeopardize thetraditional form of government and the systemof check and balances.‖ [See Lambino Case]

Steps in the Amendatory Process




(1) Proposal – The adoption of the suggestedchange in the Constitution.

a. By Congress (as a constituentassembly) – a vote of ¾ of ALL itsmembers.

b. Constitutional Convention – whichmay be called into existence by2/3 of all the members ofCongress. The Congress, upon amajority vote of all its members

may submit the question ofwhether to call a constitutionalconvention to be resolved by thepeople in a plebiscite. [Sec. 3, Art.XVII].

3 Theories on the ConstitutionalPosition of Conventions

i. A Convention as a body ofvery limited powers,purely delegated by thepeople directly or by theregularly constitutedlegislature.

ii. Theory of conventionalsovereignty – theconvention as thesupreme organ of thepeople, a representativebody.

iii. Constitutional conventionas one of the coordinatedepartments of theexisting government.[Sinco, p. 55-56].

c. People, through the power ofinitiative – A petition of an at least12% of the total number of

registered voters of which every

legislative district must berepresented by at least 3% of theregistered voters therein.

i. Limitation: Noamendment in thismanner shall beauthorized within 5 yearsfollowing the ratificationof this Constitution normore often than once

every 5 years thereafter.

(2) Ratification – the proposed amendmentshall be submitted to the people and shallbe deemed ratified by the majority of thevotes cast in the plebiscite, held not earlierthan 60 days nor later than 90 days:

a. After approval of the proposal byCongress or Concon;

b. After certification by the COMELECof sufficiency of petition of thepeople.

Doctrine of Proper Submission – plebiscite

may be held on the same day as regularelection [Gonzales v. COMELEC, 21 SCRA774] . The use of the word ―election‖ in thesingular meant that the entire Constitutionmust be submitted for ratification at oneplebiscite only; furthermore, the peoplemust have a ―proper frame of reference‖.[Tolentino v. Comelec, 41 SCRA 702] .

Judicial Review of Amendments – The question innow regarded as subject to judicial review, becauseinvariably, the issue will boil down to whether or notthe constitutional provisions had been followed.

Amendments or Revisions(Three Stages)

Proposal Submission RatificationBoth amendments and revisionsa. Congress, upon a vote of ¾ of all its members

(Prevailing view)Congress, througha law calling forplebiscite

The people, through a majorityof the votes cast in a plebisciteheld not earlier than 60 daysnor later than 90 days after theapproval of such amendment orrevision

b. Constitutional Convention1. Congress may, by a vote of 2/3 of all its Members,

call a ConCon2. By a majority vote of all its Members, submit to the

electorate the question of calling such aconvention (Sec.3)

Amendments only

c. People,1.through initiative2.upon a petition of at least 12% of the total number

of registered voters, of which every legislativedistrict must be represented by at least three percentum of the registered voters therein (Sec.2)

The people, through a majorityof the votes cast in a plebisciteheld not earlier than 60 daysnor later than 90 days after thecertification by the COMELEC ofthe sufficiency of the petition.

Table of Cases re: Constitutional Amendments Date/Timeline What happened Case and ratio

May 14, 1935 Electorate ratifies the 1935Constitution

-------

1940 1940 Amendments (Amended to create a bicameral Congress; an independentElectoral Commission; and a four year term for the President




Date/Timeline What happened Case and ratiowith a maximum of 2 consecutive terms of office)

1947 Parity Amendment Mabanag vs. Lopez Vito – petitioners seek to preventenforcement of the Resolution of Congress proposing the ParityAmendment to the people was assailed on the grounds that it didnot comply with the ¾ rule prescribed by the Constitution.Held: Proposal of amendments to the constitution is a politicalquestion. Moreover, the enrolled copy of the resolution in whichit was certified that the proposal had been approved by therequired vote was conclusive upon the courts.Petition dismissed.

1967` Resolution calling for the1971 ConstitutionalConvention

Gonzales vs. COMELEC – involves three resolutions passed byCongress acting as Constituent Assembly. Res.1 called forincrease in the membership of the HOR, Res.2 called for aConstitutional Convention, and Res.3 called for amendment ofSec.16, Art.VI to allow members of Congress to becomedelegates to the ConCon without losing their seats. Petitionersseek to restrain respondents from enforcing the law passed byCongress providing that amendments in Res.1 and 3 besubmitted for approval by the people at the general electionsscheduled to held on November 1967.Held: Petition denied.1.) Proposal of amendments is not a political but a justiciablequestion subject to judicial review;

2.) Congress may propose amendments and at the same time callfor a Constituent Assembly;3.) Ratification may be done simultaneous with a generalelection or in a special election called specifically for thatpurpose4.) There is proper submission

1971 1971 ConstitutionalConvention convened

Tolentino vs. COMELEC – involves the validity of a resolution ofthe ConCon submitting the proposal to lower the voting age to18 for ratification. The question here is whether piecemealamendments to the Constitution could be submitted to thepeople for ratification or rejection.Held: All amendments proposed by the same ConstitutionalConvention shall be submitted to the people in a single election.Petition granted.

September 10,

1972

Marcos declared Martial

Law

(some delegates of the 1971 ConCon went to hiding, gone

missing, some remained, etc. The revised Constitution wasmiraculously ―finished‖ two months after the declaration of Martial Law)

1973 Plebiscite cases Planas v. COMELEC - Petitioners seek to enjoin respondentsfrom implementing PD 73, which called for a plebiscite (to beheld on January 15, 1973) for the constitution approved by theConCon on 1972, on the theory that: a.) the power to submit islodged exclusively in Congress, and b.) there is no propersubmission to the people.Held: The issue of validity of calling for a plebiscite (submission)is justiciable. BUT,Issue became moot. Petition dismissed.

Ratification cases Javellana vs. Executive Secretary – Petitioners now seek toenjoin the respondents from implementing any of the provisions

of the ―new constitution‖ not found in the 1935 Constitution, onthe theory that it was not validly ratified in accordance with theprovisions of Art.1, Section XV.Held: Although the question of whether a Constitution wasvalidly ratified is a justiciable question, the question whether aConstitution has come into force and effect is a politicalquestion beyond the competence of the SC to decide.

1976 1976 Amendments Sanidad vs. COMELEC – petitioners question the authority of thePresident in issuing several PDs proposing amendments to theNew Constitution and calling for a national referendum-plebiscite for the said amendments.Held: The amending process, both as to proposal andratification, raises a judicial question.




Date/Timeline What happened Case and ratioHeld: In a crisis government, the President shall have the powerto assume the constituent power to propose amendments lodgedin the Legislative body.

1981 Martial Law lifted.1981 Amendments

Mitra vs. COMELEC – I consider this a belated continuation ofthe Ratification Cases. At the core, the petitioners are arguingthat the 1973 Constitution never validly took effect, the ruling in Javellana aside. Their theory is that the 1973 Constitution wasstill and is still at the stage of proposal, and in the event it wasrejected by the people in a plebiscite, the 1935 Constitution,which was merely suspended by the declaration of Martial Law,could be one more operativeHeld: Even without valid ratification, a new Constitution couldcome into force and effect by the acquiescence of the people.Popular acquiescence to a new Constitution gives the documentthe force and effect of the Fundamental Law of the Land,regardless of the method of ratification. If it is accepted by thepeople, in whom sovereignty resides according to theConstitution, then the courts cannot refuse to yield assent tosuch a political deicision.(Legazpi vs. Minister of Finance) – President retained hislegislative powers even after the lifting of Martial Law and the1981 Amendments to the 1973 Constitution (which vestedexecutive powers back to the President) by virtue of Amendment

No.61986 EDSA Revolution Lawyers’ League for a Better Philippines vs. Aquino – The question of legitimacy of a new government arising from asuccessful revolution is a political question beyond the pale ofreview by the courts.In re: Saturnino V. Bermudez Reaffirmed Lawyers League for a Better Philippines. vs Aquino. The ―President‖ referred to in the Draft (1987) Constitution isPres. Aquino, not Pres.Marcos who was proclaimed underauthority of the 1973 Constitution.

February 2, 1987 1987 Constitution ratified De Leon vs. EsguerraPower granted by a superseded constitution is deemedterminated the day the new constitution was ratified.

1997 PIRMA case Santiago et al. vs. COMELEC – Petitioners seek to enjoinrespondent COMELEC from acting on the petition by the PIRMAgroup asking for an order fixing details on how to collectsignatures for a people‘s initiative to amend the Constitution Held: Court agreed with the position of petitioners. The system of initiative found in Article XVII, Sec.2 is not self-executory. It needs an enabling law before the right of thepeople to could be exercised. However, an examination of itsprovisions reveals that RA 6735 is incomplete, inadequate, orwanting in essential terms and conditions insofar as initiative onamendments to the Constitution is concerned.COMELEC permanently enjoined from entertaining or takingcognizance of any petition for initiative until a sufficient lawshall have been validly enacted to provide for theimplementation of the system.

2001 EDSA II Estrada vs. Desierto

Legal distinction between EDSA I and EDSA II: The governmentarising from EDSA I was extraconstitutional, while EDSA II was aconstitutional exercise of the right to free speech, freedom ofassembly, and to petition the government for redress.

2007 People‘s Initiative of PGMA Lambino vs. COMELECThe constituent power reserved to people under Art.XVII Sec.2 islimited to the power to propose amendments to, not revision of,the Constitution. Moreover, ―direct proposal by the people‖means that the petition signed by the people should contain thefull text of the proposed amendments to the Constitution.




IV. Self-Executing and Non-Self-Executing Provisions

―…a constitutional provision is self -executing ifthe nature and extent of the right conferred andthe liability imposed are fixed by theconstitution itself, so that they can bedetermined by an examination and constructionof its terms, and there is no language indicating

that the subject is referred to the legislature foraction.‖

―A provision which lays down a generalprinciple, such as those found in Art. II of the1987 Constitution, is usually not self-executing.‖[Manila Prince Hotel v. GSIS (1997)]o Exception: Sec. 16, Article II of the 1987

Constitution - ―As a matter of logic, byfinding petitioners‘ cause of action asanchored on a legal right comprised in theconstitutional statements above noted, theCourt is in effect saying that Section 15(and Section 16) of Article II of theConstitution are self-executing and

judicially enforceable even in their presentform.‖ [Justice Feliciano, concurringopinion, Oposa v. Factoran (1993)]

V. General Provisions

Article XVI – General Provisions

(1) Flag of the Philippines (Section 1)a. Red, white and blue, with a sun and three

starsb. Design of the flag may be changed only by

constitutional amendment (Bernas)

(2)

Name of the country, national anthem, andnational seal (Section 2)

a. May be changed by Congress by lawb. Such law will only take effect upon

ratification by the people in a nationalreferendum

(3) Armed Forces of the Philippines (Section 4)a. Composed of a citizen armed forceb. Shall take an oath of affirmation to

uphold and defend the Constitution(Section 5 (1))

c. May not be appointed or designated to a

civilian position in the Governmentincluding government-owned orcontrolled corporations or any of theirsubsidiaries (Section 5 (4))

d. Laws on retirement of military officersshall not allow extension of their service(Section 5 (5))

e. Recruited proportionately from allprovinces and cities as far as practicable(Section 5 (6))

f. Tour of duty of the Chief of Staff shall notexceed three years (Section 5 (7))

g. May be extended by the President in

times of war or other national emergencydeclared by the Congress

(4) Police Force (Section 6)a. One police forceb. National in scopec. Civilian in character

(5) Consumer Protection (Section 9)

(6) Mass Media (Section 11)a. Ownership and management limited to

citizens of the Philippines or tocorporations, cooperatives or associationswholly-owned and managed by Filipinocitizens

(7) Advertising Industry (Section 11)a. Can only be engaged in by Filipino

citizens or corporations or associations atleast 70% of which is owned by Filipinocitizens

b. Participation of foreign investors islimited to their proportionate share in

the capitalc. Managing officers must be Filipino citizen

B. General ConsiderationsI. National TerritoryII. State ImmunityIII. Principles and PoliciesIV. Separation of PowersV. Checks and BalancesVI. Delegation of PowersVI. Forms of Government

I. National Territory

Scope of the national territory as defined in theConstitution(1) Philippine archipelago, with all the islands

embraced therein.(2) All other territories over which the Philippines

has sovereignty or jurisdiction(3) Territorial sea, Seabed, Subsoil, Insular shelves,

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

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

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

Archipelagic Doctrine - The basic concept of anarchipelago is that body of water studded withislands, or the islands surrounded with water, isviewed as a unity of islands and waters togetherforming one unit.

The archipelagic doctrine is the principle that it isan integrated unit; everything within it comprisesthe archipelago.

The Constitutional provisions embodying thisdoctrine are :

(1) "archipelago, with all the island and watersembraced therein"

An archipelago is a body of water, studded withislands.

(2) "the waters around, between, and connectingthe islands of the archipelago, regardless of thebreadth and dimensions, form part of internalwater"

Treaty Limits of the Philippine Archipelago

(1) Treaty of Paris of 10 December 1898.

Article 3 defines the metes and bounds of thearchipelago by longitude and latitude, degrees andseconds. Technical descriptions are made of thescope of the archipelago as this may be found on thesurface of the earth.

(2) Treaty of Washington of 7 November 1900 between the United States and Spain.

Ceding Cagayan, Sibuto and Sulu.

(3) Treaty of 2 January 1930 between the United States and Great Britain.

Ceding the Turtle and Mangsee Islands.

Straight baseline method – consists of drawingstraight lines connecting appropriate points on thecoast without departing to any appreciable extentfrom the general direction of the coast, in order todelineate the internal waters from the territorialwaters of an archipelago

NOTE: Please refer to PIL, Chap. 12, II for furtherdiscussion on Baselines

II. State Immunity

Doctrine of Sovereign Immunity (State Immunityfrom Suit)

Constitutional Basis:―The State may not be sued without its consent.‖(Sec 3, Art XVI).

International Law Basis:

“Par in parem non habet imperium”

Jurisprudential Basis:

(1) Positivist Theory - There can be no legal rightas against the authority that makes the laws onwhich the right depends. Also called thedoctrine of Royal Prerogative of Dishonesty.[Kawananakoa v. Polyblank (1907)]

(2) Sociological Theory - If the State is amenableto suits, all its time would be spent defendingitself from suits and this would prevent it fromperforming it other functions. [Republic vs.Villasor (1973)]

A suit is against the State regardless of who is namedthe defendant if:(1) It produces adverse consequences to the public

treasury in terms of disbursement of publicfunds and loss of government property.

(2) Cannot prosper unless the State has given itsconsent.

In the following instances, it was held that the suit isnot against the State:

a. When the purpose of the suit is to compel anofficer charged with the duty of makingpayments pursuant to an appropriation

made by law in favor of the plaintiff tomake such payment, since the suit isintended to compel performance of aministerial duty. [Begoso v. PVA (1970)]

b. When from the allegations in the complaint, itis clear that the respondent is a publicofficer sued in a private capacity;

c. When the action is not in personam with thegovernment as the named defendant, butan action in rem that does not name thegovernment in particular.

How the State’s consent to be sued is given




Express consent - It is effected only by the will ofthe legislature through the medium of a dulyenacted statute. May be embodied either in a:

(1) General Law - authorizes any person who meetsthe conditions stated in the law to sue thegovernment in accordance with the procedure inthe law

a. Money Claims arising from contractexpress or implied

Act No. 3083. An Act Defining the Conditions under which the Government of the Philippines may be Sued.

Sec. 1. Subject to the provisions of this Act, theGovernment of the Philippines hereby consents andsubmits to be sued upon any moneyed claiminvolving liability arising from contract, express orimplied, which could serve as a basis of civil actionbetween private parties.

Sec. 2. A person desiring to avail himself of theprivilege herein conferred must show that he haspresented his claim to the Commission on Audit andthat the latter did not decide the same within twomonths from the date of its presentation.

Sec. 3. Original actions brought pursuant to theauthority conferred in this Act shall be instituted inthe Regional Trial Court of the City of Manila or ofthe province where the claimant resides, at theoption of the latter, upon which court exclusiveoriginal jurisdiction is hereby conferred to hear anddetermine such actions.

Sec. 4. Actions instituted as aforesaid shall be

governed by the same rules of procedure, bothoriginal and appellate, as if the litigants wereprivate parties.

Sec. 5. When the Government of the Philippinesis plaintiff in an action instituted in any court oforiginal jurisdiction, the defendant shall have theright to assert therein, by way of set-off orcounterclaim in a similar action between privateparties.

Sec. 6. Process in actions brought against theGovernment of the Philippines pursuant to theauthority granted in this Act shall be served upon

the Solicitor-General whose duty it shall be toappear and make defense, either himself or throughdelegates.

Sec. 7. No execution shall issue upon anyjudgment rendered by any court against theGovernment of the Philippines under the provisionsof this Act; but a copy thereof duly certified by theclerk of the Court in which judgment is renderedshall be transmitted by such clerk to the President ofthe Philippines, within five days after the samebecomes final.

Sec. 8. The President of the Philippines, at thecommencement of each regular session of theLegislature, shall transmit to that body forappropriate action all decisions so received by him,and if said body determine that payment should bemade, it shall appropriate the sum which theGovernment has been sentenced to pay, includingthe same in the appropriations for the ensuing year.

b. Torts

Art 2189, CC: Provinces, cities and municipalitiesshall be liable for damages for the death or injuriessuffered by any person by reason of the defectiveconditions of roads, streets, public buildings andother public works under their control andsupervision.

As to the vicarious liability under Art. 2180(6) of theCC: The Government is only liable for the acts of itsagents, officers and employees, when they act asspecial agents within the meaning of Art. 2180 (6)CC.

Special Agent - One who receives a definiteand fixed order or commission, foreign to

the exercise of the duties of his office if heis a special official. [Merritt v. Govt of thePhilippine Islands, (1916)]

(2) Special Law - may come in the form of a privatebill authorizing a named individual to bring suiton a special claim

Implied consent (1) When the State enters into a business contract

or itself commences litigation.(2) If the Govt. files a complaint, defendant may

file a counterclaim against it. When the statefiles complaint, suability will result only wherethe government is claiming affirmative relieffrom the defendant. [US v. Guinto, (1990)]

(3) When it would be inequitable for the State toinvoke its immunity.

(4) In instances when the State takes privateproperty for public use or purpose.

Suits against Government Agencies – Depends onwhether the agency is incorporated (there is aseparate charter) or unincorporated (no separatepersonality).

(1) Incorporated – If the charter provides that theagency can sue, then suit will lie. The provisionin the charter constitutes express consent. (seeSSS v. Court of Appeals, 120 SCRA 707).

(2) Unincorporated – There must be an inquiry untothe principal functions of government.

a. If governmental – NO suit withoutconsent. (Bureau of Printing v. Bureauof Printing Employees Association).

b. If proprietary – Suit will lie, becausewhen the state engages in principallyproprietary functions, then it descendsto the level of a private individual, andmay, therefore be vulnerable to suit.




(Civil Aeronautics Administration v.Court of Appeals, 167 SCRA 29). Statemay only be liable for proprietary acts(jure gestionis) and not for sovereignacts (jure imperii).

Synthesis of the RulesIncorporated Regardless of

whether itperforms

governmentalor proprietaryfunctions

If the Charterallows it to besued CAN be

sued

UNincorporated Governmentalfunctions

CANNOT besued unlessconsent isgiven

Proprietaryfunctions

CAN be sued

Suit against Public Officers – The doctrine of stateimmunity also applies to complaints filed againstofficials of the State for acts perfomed by them inthe discharge of their duties within the scope of

their authority.

Unauthorized acts of government officials or officers are not acts of the State, and anaction against the officials or officers byone whose rights have been invaded orviolated by such acts, for the protection ofhis rights, is not a suit against the State.

The doctrine of immunity from suit will notapply and may not be invoked where thepublic official is being sued in his privateand personal capacity as an ordinarycitizen, for acts without authority or inexcess of the powers vested in him.

[Lansang vs CA (2000)]

Caselaw provides that the following are well-recognized exceptions when a public officer MAY besued without the prior consent of the state:

(1) To compel him to do an act required bylaw;

(2) To restrain him from enforcing an actclaimed to be unconstitutional;

(3) To compel the payment of damages from analready appropriated assurance fund or torefund tax over-payments from a fundalready available for the purpose;

(4) To secure a judgment that the officer

impleaded may satisfy by himself withoutthe State having to do a positive act toassist him; and

(5) Where the government itself has violated itsown laws. [Sanders v. Veridiano, 162 SCRA88] .

Scope of Consent: Suability v. Liability. Thereseems to be a failure to distinguish bet. suability andliability. Suability depends on the consent of thestate to be sued, liability on the applicable law andthe established facts. The circumstance that a stateis suable does not necessarily mean that it is liable;on the other hand, it can never be held liable if it

does not first consent to be sued. Liability is notconceded by the mere fact that the state hasallowed itself to be sued. When the state doeswaive its sovereign immunity, it is only giving thepltff the chance to prove, it can, that the def. isliable. (US v. Ceballos, 182 SCRA 644)

III. Principles and Policies

Art. II – Declaration of Principles and State Policies

Principles: (Sections 1- 6)Binding rules which must be observed in the conductof government (Bernas) (1) The Philippines is a democratic and republican

state (Section 1)

a. The Philippines under the newConstitution is not just a representativegovernment but also shares someaspects of direct democracy such, forinstance, as the ―initiative andreferendum‖ under Article VI, Section32 (Bernas)

(2) Renunciation of war (Section 2)a. Only refers to wars of aggression, not

defensive war

(3) Adoption of the principle of international law(Section 2)

(4) Adherence to a policy of peace, freedom, andamity with all nations (Section 2)

(5) Civilian supremacy (Section 3)a. Civilian authority (Section 3, Article II)

is not defeated in a joint task force

between the PNP and Marines for theenforcement of law and order in MetroManila as long as control is left to thePNP. [IBP v. Zamora (2000)]

(6) Role of the armed forces (Section 3)a. Protector of the people and the Stateb. Secure the sovereignty of the State and

the integrity of the national territory

(7) Compulsory military and civil service (Section 4)a. Under conditions provided by law

(8) Maintenance of peace and order, promotion ofgeneral welfare (Section 5)

(9) Recognition of a hierarchy of rights [Bernas]a. Lifeb. Libertyc. Property

(10) Separation of Church and State (Section 6)

Policies: (Sections 7 – 28)Guidelines for the orientation of the state [Bernas](1) Independent foreign policy (Section 7)(2) Freedom from nuclear weapons (Section 8)(3) Promote a just and dynamic social order

(Section 9)




(4) Promote social justice in all phases of nationaldevelopment (Section 10)

(5) Personal dignity and human rights (Section 11)(6) Family as basic social institution (Section 12)(7) Vital role of youth in nation-building (Section

13)(8) Role of women in nation-building (Section 14)(9) Fundamental equality before the law of women

and men (Section 14)(10) Right to health (Section 15)

(11) Right to a balanced and healthful ecology(Section 16)

(12) Priority to education, science and technology,arts, culture, and sports (Section 17)

(13) Labor as a primary social economic force(Section 18)

(14) Self-reliant and independent national economy(Section 19)

(15) Role of private sector (Section 20)(16) Comprehensive rural development and agrarian

reform (Section 21)(17) Recognition and promotion of rights of

indigenous cultural communities (Section 22)(18) Community-based, sectoral organizations

(Section 23)(19) Role of communication and information innation-building (Section 24)

(20) Autonomy of local governments (Section 25)(21) Equal access for public service and prohibition

of political dynasties (Section 26)(22) Honesty and integrity in public service (Section

27)(23) Policy of full public disclosure (Section 28)

IV. Separation of Powers

The separation of powers is a fundamental principlein our system of government. It obtains not throughexpress provision but by actual division in ourConstitution. Each department of the governmenthas exclusive cognizance of matters within itsjurisdiction, and is supreme within its own sphere.But it does not follow from the fact that the threepowers are to be kept separate and distinct that theConstitution intended them to be absolutelyunrestrained and independent of each other. TheConstitution has provided for an elaborate system ofchecks and balances to secure coordination in theworkings of the various departments of thegovernment (Angara v. Electoral Commission, G.R.No. L-45081. July 15, 1936). The government established by the Constitution

follows fundamentally the theory of separation

of power into the legislative, the executive andthe judicial (Anagara v. Electoral Commission,G.R. No. L-45081. July 15, 1936).

Separation of powers is not expressly providedfor in the Constitution. But it obtains fromactual division found in Section 1 of Articles VI,VII, VIII, where the three great powers of thegovernment are canalized.

Separation of powers is founded on the beliefthat, by establishing equilibrium among thethree power holders, harmony will result, powerwill not be concentrated and thus tyranny willbe avoided (Bernas, The 1987 Constitution of

the Republic of the Philippines).

Checks and Balances

It does not follow from the fact that the threepowers are to be kept separate and distinct that theConstitution intended them to be absolutelyunrestrained and independent of each other. TheConstitution has provided for an elaborate system ofchecks and balances to secure coordination in the

workings of the various departments of thegovernment. For example, the Chief Executive underour Constitution is so far made a check on thelegislative power that this assent is required in theenactment of laws. This, however, is subject to thefurther check that a bill may become a lawnotwithstanding the refusal of the President toapprove it, by a vote of two-thirds or three-fourths,as the case may be, of the National Assembly. ThePresident has also the right to convene the Assemblyin special session whenever he chooses. On the otherhand, the National Assembly operates as a check onthe Executive in the sense that its consent throughits Commission on Appointments is necessary in the

appointments of certain officers; and theconcurrence of a majority of all its members isessential to the conclusion of treaties. Furthermore,in its power to determine what courts other than theSupreme Court shall be established, to define theirjurisdiction and to appropriate funds for theirsupport, the National Assembly controls the judicialdepartment to a certain extent. The Assembly alsoexercises the judicial power of trying impeachments.And the judiciary in turn, with the Supreme Court asthe final arbiter, effectively checks the otherdepartments in the exercise of its power todetermine the law, and hence to declare executiveand legislative acts void if violative of theConstitution. [Angara v. Electoral Commission, G.R.

No. L-45081. July 15, 1936].

Delegation of Powers

GENERAL RULE on delegation of powers:Delegata potestas non potest delegari – what hasbeen delegated can no longer be delegated. Sincethe powers of the government have been delegatedto them by the people, who possess originalsovereignty, these powers cannot be furtherdelegated by the different government departmentsto some other branch or instrumentality of thegovernment. The principle of non-delegation ofpowers is usually applied to legislative power. Sincethe legislative power of Congress is already adelegated power given to them by the people (thruArticle 1, Section VI of the Constitution), Congresscannot pass laws delegating such power to someother department, branch, or instrumentality of thegovernment.

EXCEPTIONS:(1) Subordinate legislation made by administrative

agencies – Under the theory of AdministrativeLaw, what is delegated is in fact not ―law-making‖ power, but ―law-executing power.‖

Hence, administrative agencies have the powerto ―fill up the details‖ of a statute passed by




Congress in the course of its implementation.

(2) Delegated legislative power to localgovernments – Local governments may beallowed to legislate on purely local matters(Rubi vs. Provincial Board of Mindoro)

(3) Legislative power reserved to the people by theprovision on initiative and referendum (ArticleVI, Sec.1)

(4) Emergency power delegated to the Executiveduring State of War or National Emergency(Article VI, Sec.23 (2))

(5) Certain taxing powers of the President (ArticleVI, Sec.28 (2)). The Congress may authorize thePresident to fix, within specified limits, andsubject to such limitations and restrictions as itmay impose, tariff rates, import and exportquotas, tonnage and wharfage dues, and otherduties or imposts within the framework of thenational development program of theGovernment.

Tests for Valid Delegation(1) Completeness test – the law must be completein all essential terms and conditions when itleaves the legislature so that there will benothing left for the delegate to do when itreaches him except to enforce it.

(2) Sufficient standard test – a sufficient standardis intended to map out boundaries of thedelegate‘s authority by defining the legislativepolicy and indicating the circumstances underwhich it is to be pursued and effected.

BOTH tests must be complied with. [Pelaez v. Auditor General, 15 SCRA 569]

V. Forms of Government

Definition

Sec. 2(1) Administrative Code. ―Government of theRepublic of the Philippines‖ is defined as: the corporate governmental entity through whichthe functions of government are exercisedthroughout the Philippines, including(1) the various arms through which political

authority is made effective in the Philippines,whether pertaining to:i. the autonomous regions,

ii. the provincial, city, municipal, or barangaysubdivisions, or

iii. other forms of local government.

―Government‖ is that institution or aggregate of institutions by which an independent society makesand carries out those rules of action which arenecessary to enable men to live in a social state orwhich are imposed upon the people forming thatsociety by those who possess the power or authorityof prescribing them. [US vs Dorr (1903)]

De Jure and De Facto Governments

(1) De jure governmenta. Has rightful title butb. no power or control, either because this has

been withdrawn from it, or because it hasnot yet actually entered into the exercisethereof. [In re Letter of Associate JusticePuno, (1992)]

(2) De facto government - Government of fact, that is,

it actually exercises power or control without legaltitle. [Co Kim Cham v. Valdes, (1945)]

a The govt that gets possession and control of,or usurps, by force or by the voice of themajority, the rightful legal govt andmaintans itself against the will of thelatter.

b That established as an independent govt bythe inhabitants of a country who rise ininsurrection against the parent state.

c That which is established and maintained bymilitary forces who invade and occupy aterritory of the enemey in the course of

war, and w/c is denominated as a govt ofparamount force, like the Second Republicof the Phils. established by the Japanesebelligerent.

The legitimacy of the Aquino government is nota justiciable matter. It belongs to the realm ofpolitics where only the people of the Philippinesare the judge. And the people have made thejudgment; they have accepted the governmentof President Corazon C. Aquino which is ineffective control of the entire country so that itis not merely a de facto government but in factand law a de jure government. Moreover, thecommunity of nations has recognized the

legitimacy of the present government. All theeleven members of this Court, as reorganized,have sworn to uphold the fundamental law ofthe Republic under her government. [In reBermudez, (1986) citing Lawyers League for aBetter Philippines v. Aquino, (1986)]

In the cited cases [Lawyers League for a Better Philippines and/or Oliver A. Lozano v. PresidentCorazon C. Aquino, et al], we held that thegovernment of former President Aquino was theresult of a successful revolution by the sovereignpeople, albeit a peaceful one. No less than theFreedom Constitution declared that the Aquino government was installed through a directexercise of the power of the Filipino people "indefiance of the provisions of the 1973Constitution, as amended."

It is familiar learning that the legitimacy of agovernment sired by a successful revolution bypeople power is beyond judicial scrutiny for thatgovernment automatically orbits out of theconstitutional loop. In checkered contrast, thegovernment of respondent Arroyo is notrevolutionary in character. The oath that she took atthe EDSA Shrine is the oath under the 1987Constitution. In her oath, she categorically swore to




preserve and defend the 1987 Constitution. Indeed,she has stressed that she is discharging the powers ofthe presidency under the authority of the 1987Constitution.

In fine, the legal distinction between EDSA PeoplePower I EDSA People Power II is clear. EDSA Iinvolves the exercise of the people power ofrevolution which overthrew the whole government.EDSA II is an exercise of people power of freedom of

speech and freedom of assembly to petition thegovernment for redress of grievances which onlyaffected the office of the President. EDSA I is extra-constitutional and the legitimacy of the newgovernment that resulted from it cannot be thesubject of judicial review, but EDSA II is intra-constitutional and the resignation of the sittingPresident that it caused and the succession of theVice President as President are subject to judicialreview. EDSA I presented a political question; EDSA IIinvolves legal questions. xxx

Even if the petitioner can prove that he did notresign, still, he cannot successfully claim that he is a

President on leave on the ground that he is merelyunable to govern temporarily. That claim has beenlaid to rest by Congress and the decision thatrespondent Arroyo is the de jure, president made bya co-equal branch of government cannot bereviewed by this Court. [Estrada v Desierto/ Estradav GMA, (2001)]

C. Legislative DepartmentI. Who May Exercise Legislative PowerII. Houses of CongressIII. Legislative Privileges, Inhibitions andDisqualificationsIV. Quorum and Voting Majorities

V. Discipline of MembersVI. Electoral Tribunals and the Commission onAppointmentsVII. Powers of Congress

I. Who May Exercise Legislative Power

Legislative power is the authority to make laws andto alter and repeal them. It is vested in:(1) The Congress of the Philippines, which consists

of a Senate and a House of Representatives(2) The people to themselves, by the system of

initiative and referendum (Art. VI, Sec. 1)

Grant of legislative power to Congress is plenary .Congress may legislate on any subject matterprovided that the limitations are observed.

Initiative and ReferendumThe power of initiative and referendum is the powerof the people directly to ―propose and enact laws orapprove or reject any act or law or part thereofpassed by the Congress or local legislative body.‖(Article VI, Section 32)

o The operationalization of initiative andreferendum has been left by theConstitution to Congress (Article VI, Section32; Bernas, The 1987 Constitution of the

Republic of the Philippines)

RA 6735 – ―An Act Providing for a System of Initiativeand Referendum and Appropriating Funds Therefore‖

II. Houses of Congress

Composition, Qualifications and Term of Office

Senate

(Art. VI secs. 2-4)

House of

Representatives(Art. VI secs. 5-8)

Compo-sition

24 senatorselected at large

Not more than 250members, unlessotherwiseprovided by law,consisting of:i. District Repre-

sentativesii. Party-List

Representa-tives

iii. SectoralRepresenta-tives

Qualifi-cations

Natural-borncitizen

At least 35years old onthe day of theelection

Able to readand write

A registeredvoter

Resident ofthePhilippines forat least 2

yearsimmediatelypreceding theday of theelection

Natural-borncitizens At least 25 yearsold on the day ofthe election Able to read andwrite Registered voterin the district heseeks torepresent A resident of thesaid district forat least 1 year

immediatelypreceding theday of theelection

Term of Office

6 years 3 years

TermLimits

2 consecutiveterms.

3 consecutiveterms.

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 theelection3) Able to read and write4) A registered voter5) Resident of the Philippines for at least 2 yearsimmediately preceding the day of the election

Term of Office: 6 years, commencing at noon onthe 30th day of June next following their election

Term Limits: only up to 2 consecutive terms.




However, they may serve for more than 2 termsprovided that the terms are not consecutive.

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

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

(1) District Representatives - Elected from

legislative districts apportioned among theprovinces, cities, and the Metro Manila area

Rules on Apportionment of Legislative Districts:

a. Apportionment of legislative districts must be bylaw which could be a: General Apportionment Law; or Special Law (i.e. creation of new

provinces)

Note: The power to apportion legislativedistricts is textually committed to Congress bythe Constitution. Thus, it cannot be validly

delegated to the ARMM Regional Assembly(Sema v. COMELEC, G.R. No. 177597, July 16,2008).

b. Proportional representation based on number ofinhabitants Each city with a population of at least

250,000, or each province, shall haveat least 1 representative. Eachprovince, irrespective of the number ofinhabitants, shall have at least 1representative.

c. Each legislative district shall comprise, as far aspracticable, contiguous, compact, and

adjacent territory.

d. Re-apportionment by Congress within 3 yearsafter the return of each census

(2) Party-List Representatives – who shall constitute20% of the total number of representatives,elected through a party-list system of registerednational, regional, and sectoral parties ororganizations.

(3) Sectoral Representatives - For 3 consecutiveterms from 2 February 1987, 25 seats shall beallotted to sectoral representatives to be chosenby appointment or election, as may be providedby law. Until a law is passed, they are appointedby the President from a list of nominees by therespective sectors. (Art. XVIII, sec. 7)

Qualifications of Representatives:(1) Natural-born citizens(2) At least 25 years old on the day of the

election(3) Able to read and write(4) Registered voter in the district he seeks to

represent(5) A resident of the said district for at least 1

year immediately preceding the day of the

election.

Term of Office: 3 years, commencing at noon onthe 30th day of June next following their election.

Tenure may be shorter than the term or it may notexist at all. These situations will not change theduration of the term of office. [Dimaporo vs Mitra(1991)]

Term Limits: No member of the House ofRepresentatives shall serve for more than 3consecutive terms.

Party-list System (RA 7941, An Act Providing For The Election Of Party-List Representatives ThroughThe Party-List System, And Appropriating FundsTherefor)

Parties, organizations, and coalitions mustobtain at least 2% of all votes cast to obtaina party-list seat.

Those garnering more than 2% are entitled to

additional seats in proportion to their totalnumber of votes, but may not have morethan 3 seats.

Disqualified parties:(1) Religious Sects(2) Foreign Organizations(3) Those Advocating Violence or Unlawful

Means(4) It is receiving support from any foreign

government, foreign political party,foundation, organization, whetherdirectly or through any of its officersor members or indirectly through thirdparties for partisan election purposes.

(5) It violates or fails to comply with laws,rules or regulations relating toelections;

(6) It declares untruthful statements in itspetition;

(7) It has ceased to exist for at least one(1) year; or

(8) It fails to participate in the last two(2) preceding elections or fails toobtain at least 2 per centum of thevotes cast under the party-list systemin the two (2) preceding elections forthe constituency in which it hasregistered.

Qualified Sectors:(1) Labor(2) Peasant(3) Fisherfolk(4) Urban Poor(5) Indigenous Cultural Com-munities(6) Elderly(7) Handicapped(8) Women(9) Youth(10) Veterans(11) Overseas Workers(12) Professionals




Query : Are political parties allowed to participate inthe party-list system?

Political parties are allowed by the constitution toparticipate in the party-list system provided thatthey represent the interests of the marginalized andunderrepresented. The following conditions must becomplied:

(1) Must represent marginalized and under-

represented sectors;(2) Major political parties must comply with

this statutory policy;(3) Must be subject to the express

constitutional prohibition against religioussects;

(4) The party must not be disqualified under RA7941;

(5) The party must not be an adjunct or entityor project funded by the government;

(6) The party and its nominees must complywith the requirements of the law;

(7) The nominee must also represent amarginalized or under-represented sector;

(8) The nominee must be able to contribute tothe formulation and enactment ofappropriate legislation that will benefit thenation. (Ang Bagong Bayani-OFW Labor Party v. COMELEC, G.R. No. 147589, June26, 2001).

Four inviolable constitutional and statutoryparameters in the party-list system:

(1) 20% Allocation – the combined number of allparty-list congressmen shall not exceed 20%of the total membership of the House ofRepresentatives.

(2) 2% threshold – only those parties garnering aminimum of 2% of the total votes cast for

the party-list system are qualified to have aseat in the House.

(3) Three seat limit – each qualified party,regardless of the number of votes itactually obtained is entitled to a maximumof three seats (1 qualifying and 2 additionalseats).

(4) Proportional representation – the additionalseats which a qualified party is entitled toshall be computed ―in proportion to theirtotal number of votes‖. (VeteransFederation v. COMELEC, G.R. No. 136781,Oct. 6, 2000).

III. Legislative Privileges, Inhibitionsand Disqualifications

Privileges

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 fullterm of all the Members of the Senate andthe House of Representatives approving

such increase. (Sec. 10, Art. VI).

Official Annual Salary

President Php 300,000Vice-President, President of theSenate, Speaker of the House ofRepresentatives, and ChiefJustice of the Supreme Court

Php 240,000

Senators, Members of the Houseof Representatives, AssociateJustices of the Supreme Court,and Chairmen of theConstitutional Commissions

Php 204,000

Members of the ConstitutionalCommissions

Php 180,000

2. Freedom from arrest A Senator or Member of the House of

Representatives shall, in all offensespunishable by not more than six yearsimprisonment, be privileged from arrestwhile the Congress is in session. (Sec. 11, Art VI).

In People v. Jalosjos, G.R. No. 132875,February 3, 2000, the SC denied therequest of Cong. Jalosjos that he beallowed attend legislative sessions. Hedenial was premised on the following: (a)membership in Congress does not exemptan accused from statutes and rules whichapply to validly incarcerated persons; (b)one rationale behind confinement is publicself-defense; (c) it would amount tocreation of a privileged class, withoutjustification in reason; and (d) he wasprovided with an office in the New BilibidPrison.

3. Speech and Debate Clause No Member shall be questioned nor be held

liable in any other place for any speech ordebate in the Congress or in any committeethereof.

In Jimenez v. Cabangbang, a clarification ofthe scope and limitation of theparliamentary immunity was made. Therewas reiteration that, First, Congressionalimmunity is a guarantee of immunity fromanswerability before an outside forum butnot from answerability to the disciplinary

authority of congress itself; Second , tocome under the guarantee the speech ordebate" must be one made "in Congress orin any committee thereof." [Jimenez v.Cabangbang, (1966)]

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

What constitutes disorderly behavior isentirely up to Congress to define.




Although a member of Congress shall not beheld liable in any other place for anyspeech or debate in the Congress or in anycommittee thereof, such immunity,although absolute in its protection of themember of Congress against suits for libel,does not shield the member against thedisciplinary authority of the Congress.[Osmena v. Pendatun, (1960)]

Disqualifications

(1) May not hold any other office or employment inthe government during his term withoutforfeiting his seat. (Art VI Sec 13)

The provision refers to an IncompatibleOffice. Forfeiture of the seat inCongress shall be automatic upon themember‘s assumption of such officedeemed incompatible. [Adaza v.Pacana, 135 SCRA 431] .

(2) May not be appointed to any office created orthe emoluments thereof were increased duringthe term for which he was elected. (Art VI Sec

13) The provision refers to a ForbiddenOffice. He cannot validly take the officeeven of he is willing to give up his seat.

(3) Cannot personally appear as counsel before anycourt, electoral tribunal, quasi-judicial andadministrative bodies during his term of office.(Art VI Sec 14)

(4) Shall not be financially interested, directly orindirectly, in any contract with, or franchise orspecial privilege granted by the governmentduring his term of office. (Art VI Sec 14)

(5) 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 VI Sec14)

Appearance as counsel: Certain salientcircumstances militate against the intervention ofAssemblyman Fernandez in the SEC Case. He hadacquired a mere P200.00 worth of stock in IPI,representing ten shares out of 262,843 outstandingshares. He acquired them after the contestedelection of Directors, after the quo warranto suithad been filed before SEC, and one day before thescheduled hearing of the case before the SEC.

Before he moved to intervene, he had signified hisintention to appear as counsel for respondent, butwhich was objected to by petitioners. Realizing,perhaps, the validity of the objection, he decided,instead, to "intervene" on the ground of legalinterest in the matter under litigation.

Under those facts and circumstances that there hasbeen an indirect "appearance as counsel before ...an administrative body" and that is a circumventionof the Constitutional prohibition.

The "intervention" was an afterthought to enable himto appear actively in the proceedings in some othercapacity. [Puyat v De Guzman, (1982)]

Duty to disclose

(1) A public officer or employee shall, uponassumption of office and as often as may berequired by law, submit a declaration underoath of his assets, liabilities, and net worth.

(2) Cases wherein declaration shall be disclosed tothe public in the manner provided by law:

a. Presidentb. Vice-Presidentc. the Members of the Cabinetd. the Congresse. the Supreme Courtf. the Constitutional Commissions and

other constitutional officesg. officers of the armed forces with

general or flag rank (Art XI Sec 17)

(3) All Members of the Senate and the House of

Representatives shall, upon assumption ofoffice, make a full disclosure of their financialand business interests.

They shall notify the House concerned of apotential conflict of interest that may arise fromthe filing of a proposed legislation of which theyare authors. (Art VI Sec 12)

(4) The records and books of accounts of theCongress shall be preserved and be open to thepublic in accordance with law, such books shallbe audited by the Commission on Audit whichshall publish annually an itemized list ofamounts paid to and expenses incurred for each

Member. (Art VI Sec 20)

IV. Quorum and Voting Majorities

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 eachHouse‘s coercive jurisdiction, are not included.

―Majority‖ refers to the number of members withinthe “jurisdiction” of the Congress (those it canorder arrested for the purpose of questioning). Inthis case, one Senator was out of the Philippineswhich is not within the ―jurisdiction‖ of the Senate,so that the working majority was 23 Senators.

There is a difference between a majority of "allmembers 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) constitutes




constitutional majority of the Senate for the purposeof the quorum. [Avelino v. Cuenco, (1949)]

Voting Majorities

Doctrine of Shifting Majority – For each House ofCongress to pass a bill, only the votes of themajority of those present in the session, there beinga quorum, is required.

―Majority of all Members of Congress‖ – majority of the entire composition ofCongress, regardless of the number ofMembers present or absent (e.g. [24 +250/2] +1)

―Majority of each House‖ – majority of allMembers actually present during thesession, provided there is a quorum

When should Congress:Vote Separately: Vote Jointly:

Choosing the President(Article VII, Sec.4)

Revoking or extendingthe suspension of the

privilege of writ ofhabeas corpus (ArticleVII, Sec.18)

Determine President‘sdisability (Article VII,Sec.11)Confirm the nomination ofthe VP (Article VII, Sec.9)Declaring State of War, injoint session (Article VI,Sec.23 (1))

Revoking or extendingdeclaration of MartialLaw (Article VII, Sec.18)

Proposing ConstitutionalAmendments (Article XVII,Sec.1) – [subject todebate]

V. 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 record(2) fine(3) imprisonment(4) censure

The suspension contemplated in the Constitution isdifferent from the suspension prescribed in the Anti-Graft and Corrupt Practices Act (RA 3019). Theformer is punitive in nature while the latter ispreventive. [Defensor-Santiago v. Sandiganbayan,G.R. No. 118364, August 10, 1995] .

VI. Electoral Tribunals and theCommission on Appointments

Electoral Tribunals

(Sec.17, Article VI)

Composition

(1) 3 Supreme Court Justices to be designatedby the Chief Justice (The senior Justice inthe Electoral Tribunal shall be itsChairman).

(2) 6 Members of the Senate or House, as the

case may be, chosen on the basis ofproportional representation from thepolitical parties and party-list organizations.

(3) The ET shall be constituted within 30 daysafter the Senate and the House shall havebeen organized with the election of thePresident and the Speaker.

(4) Members chosen enjoy security of tenureand cannot be removed by mere change ofparty affiliation. [Bondoc v. Pineda, 201SCRA 793].

Valid grounds/Just cause for termination of membership to the tribunal:(1) Expiration of Congressional term of office;(2) Death or permanent disability;(3) Resignation form political party which one

represents in the tribunal;(4) Removal from office for other valid reasons.

Note: Disloyalty to party and breach of partydiscipline, are not valid grounds for the expulsion ofa member of the tribunal. [Bondoc v. Pineda, 201SCRA 793].

Nature of Function

Jurisdiction: be the sole judge of all CONTESTSrelating to the election, returns, and qualificationsof their respective members.

When does it acquire jurisdiction: ET hasjurisdiction only when there is an election contest.

Election Contest - one where a defeatedcandidate challenges the qualification andclaims for himself the seat of a proclaimedwinner.

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.

Supreme Court has jurisdiction over the ElectoralCommission and the subject matter of the presentcontroversy for the purpose of determining thecharacter, scope and extent of the constitutionalgrant to the Electoral Commission as "the sole judgeof all contests relating to the election, returns and




qualifications of the members of the NationalAssembly." [Angara vs Electoral Commission (1936)]

Note: Constitution mandates that the HRET ―shall bethe sole judge of all contests relating to theelection, returns and qualifications‖ of its members.By employing the word ―sole,‖ the Constitution isemphatic that the jurisdiction of the HRET in theadjudication of election contests involving itsmembers is exclusive and exhaustive. Its exercise of

power is intended to be its own — full, complete andunimpaired. [Duenas Jr. v. HRET G.R. No. 185401,2009]

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 tothe functions of the ET‘s. [Co vs HRET, (1991)]

The HRET was created to function as anonpartisan court although two-thirds of its

members are politicians. It is a non-politicalbody in a sea of politicians.

To be able to exercise exclusive jurisdiction, theHouse Electoral Tribunal must be independent.Its jurisdiction to hear and decide congressionalelection contests is not to be shared by it withthe Legislature nor with the Courts. "TheElectoral Commission is a body separate fromand independent of the legislature and thoughnot a power in the tripartite scheme ofgovernment, 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 a

body separate from and independent of thelegislature. [Bondoc v. Pineda, (1991)]

Powers

The HRET will only gain jurisdiction upon proclamation of the candidate. Until such proclamation, he is not yet a member of the House;hence, the HRET will not have jurisdiction over him.Jurisdiction over such remains with the COMELEC.Lazatin v. HRET, (1988)

As constitutional creations invested with necessarypower, the Electoral Tribunals are, in the exercise oftheir functions independent organs — independent ofCongress and the Supreme Court. The power grantedto HRET by the Constitution is intended to be ascomplete and unimpaired as if it had remainedoriginally in the legislature [Co vs HRET (1991) citing Angara vs. Electoral Commission [1936]).

Judicial Review of Decisions of Electoral Tribunals

With the SC only insofar as the decision or resolutionwas rendered:

(1) without or in excess of jurisdiction, or

(2) with grave abuse of discretion tantamountto denial of due process.

To question the jurisdiction of the lower court or theagency exercising judicial or quasi-judicial functions,the remedy is a special civil action for certiorari under Rule 65 of the Rules of Court. The petitionerin such cases must clearly show that the publicrespondent acted without jurisdiction or with graveabuse of discretion amounting to lack or excess of

jurisdiction. Grave abuse of discretion defies exactdefinition, but generally refers to "capricious orwhimsical exercise of judgment as is equivalent tolack of jurisdiction. 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 contemplation oflaw, as where the power is exercised in an arbitraryand despotic manner by reason of passion andhostility. [Garcia vs HRET (1999)]

Commission on Appointments(Sec 18, Art VI)

Composition

(1) Senate President as ex-officio chairman(shall not vote except in case of a tie.)

(2) 12 Senators(3) 12 Members of the House

The Commission on Appointments shallbe constituted within 30 days after theSenate and the House ofRepresentative shall have beenorganized with the election of thePresident and the Speaker.

The Commission on Appointments shall

act on all appointments within 30session days from their submission toCongress.

The Commission on Appointments shallrule by a majority vote of all itsmembers.

It is NOT mandatory to elect 12Senators to the Commission; what theConstitution requires that there mustbe at least a majority of the entiremembership. [Guingona v. Gonzales,214 SCRA 789] .

Rule on Proportional Representation – The 12Senators and 12 Representatives are elected on thebasis of proportional representation from thepolitical parties and party-list organizations.

The authority of the House ofRepresentatives to change itsrepresentation in the Commission onAppointments to reflect at any time thechanges that may transpire in thepolitical alignments of its membership. Itis understood that such changes inmembership must be permanent and do




not include the temporary alliances orfactional divisions not involving severanceof political loyalties or formaldisaffiliation and permanent shifts ofallegiance from one political party toanother. [Daza vs SIngson (1989)]

The provision of Section 18 on proportional representation is mandatory in character and does not leave any

discretion to the majority party in theSenate to disobey or disregard the rule onproportional representation

RATIONALE: The party with a majorityrepresentation in the Senate or the houseof Representatives can by sheer force ofnumbers impose its will on the haplessminority.

By requiring a proportionalrepresentation in the Commission onAppointments, Section 18 in effect worksas a check on the majority party in the

Senate and helps to maintain the balanceof power. No party can claim more thanwhat it is entitled to under such rule.[Guingona, Jr. vs Gonzales, (1993)]

Meetings

(1) Commission on Appointments shall meetonly while Congress is in session.

(2) Meetings are held either at the call of theChairman or by a majority of all itsmembers.

Since the Commission on Appointments isalso an independent constitutional body,

its rules of procedure are also outside thescope of congressional powers as well asthat of the judiciary.

Jurisdiction

(1) Commission on Appointments shall confirm theappointments by the President with respect tothe following positions:(a) Heads of the Executive Departments (except

if it is the Vice-President who is appointedto the post);

(b) Ambassadors, other public ministers orconsuls;

(c) Officers of the AFP from the rank of Colonelor Naval Captain;

(d) Other officers whose appointments arevested in him by the Constitution (e.g.COMELEC members);

(2) 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.

Appointments extended by the President to theabove-mentioned positions while Congress is not in

session (ad-interim appointments) shall only beeffective:

(1) Until disapproval by the Commission onAppointments; OR

(2) Until the next adjournment of Congress.

VII. Powers of Congress

a. Legislative

General (Sec Art VI)

(1) Legislative Powers: (Scope: vested in Congressby the Constitution except to the extentreserved to the people by the provision oninitiative and referendum).

powers of appropriation, taxation expropriation authority to make, frame and enact

laws

(2) 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.

Specific Powers(1) Constituent power(2) Legislative Inquiries

(3) Appropriation(4) Taxation(5) Concurrence in treaties and international

agreements(6) War powers and delegations powers

Inherent Powers(1) Police Power

Make, ordain, and establish all manner ofwholesome and reasonable laws, statutesand ordinances as they shall judge for thegood and welfare of the constituents.

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

welfare(2) Power of Taxation(3) Power of Eminent Domain(4) Contempt power

Legislative Inquiries and the Oversight Functions(Sec 21, Art VI)

Requisites:(1) Must be in aid of legislation(2) In accordance with duly published rules of

procedure(3) Right of persons appearing in or affected by




such inquiries shall be respected

Note: The mere filing of a criminal or anadministrative complaint before a court or quasi-judicial body should not automatically bar theconduct of legislative inquiry. [Standard Chartered Bank v. Senate Committee on Banks, G.R. No.167173, December 27, 2007]

Additional limitation: Executive Privilege

(Refer to Chap 4, III)

Categories of congressional oversight functions

The acts done by Congress purportedly in theexercise of its oversight powers may be divided intothree categories, namely: scrutiny, investigation andsupervision.

(1) Scrutiny

Congressional scrutiny implies a lesser intensity andcontinuity of attention to administrative operations.Its primary purpose is to determine economy and

efficiency of the operation of government activities.In the exercise of legislative scrutiny, Congress mayrequest information and report from the otherbranches of government. It can giverecommendations or pass resolutions forconsideration of the agency involved.

(2) Congressional investigation

While congressional scrutiny is regarded as a passiveprocess of looking at the facts that are readilyavailable, congressional investigation involves amore intense digging of facts. The power of Congressto conduct investigation is recognized by the 1987Constitution under section 21, Article VI.

(3) Legislative supervision (Legislative Veto)

The third and most encompassing form by whichCongress exercises its oversight power is thrulegislative supervision. "Supervision" connotes acontinuing and informed awareness on the part of acongressional committee regarding executiveoperations in a given administrative area. While bothcongressional scrutiny and investigation involveinquiry into past executive branch actions in order toinfluence future executive branch performance,congressional supervision allows Congress toscrutinize the exercise of delegated law-makingauthority, and permits Congress to retain part ofthat delegated authority.

Congress exercises supervision over the executiveagencies through its veto power. It typically utilizesveto provisions when granting the President or anexecutive agency the power to promulgateregulations with the force of law. These provisionsrequire the President or an agency to present theproposed regulations to Congress, which retains a"right" to approve or disapprove any regulationbefore it takes effect. Such legislative vetoprovisions usually provide that a proposed regulationwill become a law after the expiration of a certain

period of time, only if Congress does notaffirmatively disapprove of the regulation in themeantime. Less frequently, the statute provides thata proposed regulation will become law if Congressaffirmatively approves it.

Note: Legislative supervision is NOT allowed underthe Constitution. [Abakada Guro v. Purisima, G.R.No. 166715, August 14, 2008]

(2) Bicameral Conference Committee

A bill can be passed jointly (when it is a jointsession, supra), or separately. In the latter case, itcan be passed simultaneously (when a bill is takenup by both houses separately but at the same time,or sequentially (when a bill originates form onehouse and goes to the other house). There is noproblem if the bill is passed jointly. But if it ispassed separately, the bill approved by one housegoes to the other house, which can amend such bill.Once the other house approves the bill, this is calledthe other house's version of the bill.

A Conference Committee is then organized,composed of equal number of members from theSenate and the House, to make recommendations tothe respective chambers on how to reconcile the twoversions of the bill. The respective members areusually granted blanket authority to negotiate andreconcile the bills. At the end of the process, thecommittee comes up with a "Conference CommitteeReport", which is then submitted to the respectivechambers for approval.

(3) Limitations on Legislative Power

Formal or Procedural Limitations ( Prescribes themanner of passing bills in the form they should

take)

(1) Every bill passed by the Congress shall embraceonly one subject which shall be expressed in thetitle. [Sec. 26(1), Art. VI]

The title is not required to be an indexof the contents of the bill. It issufficient compliance if the titleexpresses: (1) the general subject and(2) all the provisions of the statute aregermane to that subject. [Tio v.Videogram Regulatory Commission,151 SCRA 208]

(2) No bill passed by either house shall become lawunless it has passed 3 readings on separate days.[Sec. 26(2), Art. VI]

(3) Printed copies in its final form have beendistributed to its members 3 days before thepassage of the bill. [Sec. 26(2), Art. VI] .

Exception: President certifies to the necessityof its immediate enactment to meet a publiccalamity or emergency

It was held that the presidential certificationdispensed with the requirement not only of




printing but also that of reading the bill onseparate days. [Tolentino v. Secretary of Finance]

Substantive Limitations ( Circumscribe both theexercise of the power itself and the allowablesubject of legislation)

Express limitations:(1) On general powers - Bill of Rights [Art. III]

(2) On taxation [Secs. 28 and 29(3), Art. VII] (3) On appropriation [Secs. 25 and 29(1) and (2),

Art VI] (4) On appellate jurisdiction of the SC [Sec. 30, Art.

VI] (5) No law granting title of royalty or nobility shall

be passed [Sec. 31, Art. VI]

Implied Limitations:(1) No power to pass irrepealable law(2) Non-encroachment on powers of other

departments(3) Non-delegability of powers

(a) Limitations on Revenue, Appropriations and Tariff Measures

Appropriations

General Limitations:(1) Appropriations must be for a PUBLIC PURPOSE.(2) Cannot appropriate public funds or property,

directly or indirectly, in favor of1. Any sect, church, denomination, orsectarian institution or system of religion or2. Any priest, preacher, minister, orother religious teacher or dignitary as such.

EXCEPTION: if the priest, etc is assigned to:

1. the Armed Forces;2. any penal institution;3. government orphanage;4. leprosarium

(3) Government is not prohibited fromappropriating money for a valid secular purpose,even if it incidentally benefits a religion, e.g.appropriations for a national police force is valideven if the police also protects the safety ofclergymen.

(4) Also, the temporary use of public property forreligious purposes is valid, as long as theproperty is available for all religions.

Specific LimitationsFor General Appropriations Bills(1) Congress may not increase the appropriations

recommended by the President for theoperation of the Government as specified in thebudget.

(2) Form, content and manner of preparation of thebudget shall be prescribed by law.

(3) No provision or enactment shall be embraced inthe general appropriations bill unless it relatesspecifically to some particular appropriationtherein.

(4) Procedure in approving appropriations FOR THECONGRESS shall strictly follow the procedure forapproving appropriations for other departmentsand agencies.

(5) No law shall be passed authorizing any transferof appropriations. However, the following may,BY LAW, be authorized to AUGMENT any item inthe general appropriations law for theirrespective offices from savings in other items oftheir respective appropriations:

(a) President(b) Senate President(c) Speaker of the House(d) Chief Justice of the Supreme Court(e) Heads of the Constitutional

Commissions

Guidelines for disbursement of DISCRETIONARYFUNDS appropriated FOR PARTICULAR OFFICIALS:(1) For public purposes(2) To be supported by appropriate vouchers(3) Subject to such guidelines as may be prescribed

by law

If Congress fails to pass the general appropriationsbill by the end of any fiscal year:(1) The general appropriations bill for the previous

year is deemed reenacted(2) It shall remain in force and effect until the

general appropriations bill is passed byCongress.

For Special Appropriations Bill(1) Shall specify the purpose for which it is intended(2) Shall be supported by funds actually available as

certified by the National Treasurer or to beraised by corresponding revenue proposaltherein

Limitation on Use of Public Funds (Sec 29, Art VI):(1) No money shall be paid out of the National

Treasury EXCEPT in pursuance of anappropriation made by law.

(2) However, this rule does not prohibit continuingappropriations, e.g. for debt servicing, for thereason that this rule does not require yearly orannual appropriation.

Four phases of Government’s budgeting process: (1) Budget preparation(2) Legislative authorization(3) Budget execution

(4) Budget accountability

Taxation (Sec 28, Art VI)

Nature

Sec 28 is an enumeration of the limits on theinherent and otherwise unlimited power

Purposes

(1) Pay debts and provide for the common defenseand general warfare;




(2) Raise revenue;(3) Instrument of national and social policy;(4) Instrument for extermination of undesirable acts

and enterprises;(5) Tool for regulation;(6) Imposition of tariffs designed to encourage and

protect locally produced goods againstcompetition for imports.

Limitations

(1) Public - Power to tax should be exercised onlyfor a public purpose.

(2) Uniform and Equitable. Operates with the same force and

effect in every place where the subjectof it is found

Does not prohibit classification for thepurpose of taxation

Requirements for valid classification:i. Based on substantial distinctions

which make real differencesii. Germane to the purpose of lawiii. Applies to present and future

conditions substantially identical

to those of the presentiv. Applies equally to those who

belong to the same class(3) Progressivity.

The rate increases as the tax baseincreases

Tax burden is based on the taxpayers‘capacity to pay

Suited to the social conditions of thepeople

Reflects aim of the Convention thatlegislature following social justicecommand should use taxation as aninstrument for more equitabledistribution of wealth

Constitutional Tax Exemptions:(1) Religious, charitable, educational

institutions and their properties(2) All revenues and assets of NON-STOCK NON-

PROFIT EDUCATIONAL institutions areexempt from taxes and duties PROVIDEDthat such revenues and assets are actually,directly and exclusively used foreducational purposes (sec. 4 (3) Art XIV).

(3) Grants, endowments, donations orcontributions used actually, directly and exclusively for educational purposes shallbe exempt from tax, subject to conditions

prescribed by law (sec. 4 (4) Art XIV).

Special Funds(1) Money collected on a tax levied for a special

purpose shall be treated as a special fundand paid out for such purpose only.

(2) Once the special purpose is fulfilled orabandoned, any balance shall be transferredto the general funds of the Government

(b) Presidential Veto and Congressional Override

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

reconsider it.

The President must communicate his decision toveto within 30 days from the date of receiptthereof. If he fails to do so, the bill shallbecome a law as if he signed it.

To override the veto, at least 2/3 of ALL themembers of each House must agree to pass thebill. In such case, the veto is overridden andbecomes a law without need of presidentialapproval.

Note: As a rule, partial veto is invalid. It is allowed

only for particular items in an appropriation,revenue, or tariff bill.

Item veto The President may veto particular items in an

appropriation, revenue or tariff bill.

This veto will not affect items to which he doesnot object.

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

particular appropriation stated in the bill.

Since it is an invalid provision under Section25(2), the President may veto it as an item.

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

DOCTRINE OF INAPPROPRIATE PROVISIONS - Aprovision that is constitutionally inappropriate for anappropriation bill may be singled out for veto even ifit is not an appropriation or revenue item. [Gonzales

vs Macaraig, (1990)] o The Constitution provides that only a

particular item or items may be vetoed.The power to disapprove any item or itemsin an appropriate bill does not grant theauthority to veto a part of an item and toapprove the remaining portion of the sameitem. [Bengzon vs. Drilon, (1992)]

Item - in a bill refers to the particulars, the details,the distinct and severable parts . . . of the bill. It isan indivisible sum of money dedicated to a statedpurpose. An 'item' of an appropriation bill means an




item 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.

b. Non-Legislative(1) Informing Function

D. Executive DepartmentI. Privileges, Inhibitions and DisqualificationsII. Powers

The President

Qualifications:(1) Natural-born citizen of the Philippines;(2) A registered voter;(3) Able to read and write;(4) At least forty years of age on the day of the

election; and

(5) A resident of the Philippines for at least tenyears immediately preceding such election.[Sec. 2, Art. VII]

Election: (1) Regular Election – Second Monday of Monday(2) Congress as canvassing board – Returns of every

election for President and Vice President, dulycertified by the board of canvassers of eachprovince or city, shall be transmitted toCongress, directed to the Senate Presidentwho, upon receipt of the certificates ofcanvass, shall, not later than 30 days after theday of the election, open all the certificates in

the presence of the Senate and the House ofRepresentatives in joint public session, and theCongress, upon determination of theauthenticity and due execution thereof in themanner provided by law, canvass the votes.Congress shall promulgate its rules for thecanvassing of the certificates. In case two ormore candidates shall have an equal andhighest number of votes, one of them shall bechosen by a majority vote of all the memers ofCongress. [Art. VII, Sec. 4]

Jurisprudence on Canvassing:

Congress may validly delegate the initial

determination of the authenticity and due executionof the certificates of canvass to a JointCongressional Committee, composed of members ofthe House of Representatives and of the Senate. Thecreation of the Joint Committee does not constitutegrave abuse and cannot be said to have deprivedpetitioner and the other members of Congress oftheir congressional prerogatives, because under thevery Rules under attack, the decisions and finalreport of the said Committee shall be subject to theapproval of the joint session of both Houses ofCongress, voting separately. [Ruy Elias Lopez v.

Senate of the Philippines, G.R. No. 163556, June 8,2004].

Even after Congress has adjourned its regularsession, it may continue to perform thisconstitutional duty of canvassing the presidentialand vice-presidential election results without needof any call for a special session by the President. Thejoint public session of both Houses of Congressconvened by express directive of the Constitution to

canvass the votes for and to proclaim the newly-elected President and Vice-President has not, andcannot, adjourn sine die until it has accomplished itsconstitutionally mandated task. Only when a boardof canvassers has completed its functions is itrendered functus officio. [Aquilino Pimentel Jr. v. Joint Committee of Congress to Canvass the votescast for President and Vice-President, G.R. No.163783, June 22, 2004].

If the COMELEC is proscribed from conducting anofficial canvass of the votes cast for the Presidentand Vice-President, it is, with more reason,prohibited from making an ―unofficial‖ canvass of

said votes. [Brillantes v. COMELEC, G.R. No. 163193, June 15, 2004]

The Supreme Court as Presidential ElectoralTribunal: The Supreme Court, sitting in banc, shallbe the sole judge of all contests relating to theelection, returns and qualifications of the Presidentor Vice-President, and may promulgate its rules forthe purpose.

Term of Office: 6 years which shall begin at noon onthe 30th day of June next following the day of theelection and shall end at noon of the same day 6years thereafter. [Sec. 4, Art. VII]

NOT eligible for re-election: President.Note: No person who has succeeded as President andhas served for more than 4 years shall be qualifiedfor election to the same office for any length oftime. [Sec. 4, Art. VII]

I. Privileges, Inhibitions andDisqualifications

President

Privileges(1) Official residence

(2) Salary. Determined by law; shall not bedecreased during tenure. No increase shalltake effect until after the expiration of theterm of the incumbent during which suchincrease was approved.

(3) Immunity from Suit.

(4) Executive Privilege. It is the right of thePresident and high-level executive branchofficials to withhold information fromCongress, the courts, and ultimately, thepublic.




a. Presidential conversations,correspondences, or discussions duringclosed-door Cabinet meetings, like heinternal deliberations of the SupremeCourt and other collegiate courts, orexecutive sessions of either House ofCongress, are recognized asconfidential. This kind of informationcannot be pried open by a co-equalbranch of government. [Senate v.

Ermita, G.R. No. 169777, April 20,2006]

b. The claim of executive privilege ishighly recognized in cases where thesubject of the inquiry relates to apower textually committed by theConstitution to the President, such asin the area of military and foreignrelations. Under commander-in-chief,appointing, pardoning, and diplomaticpowers. Consistent with the doctrineof separation of powers, theinformation relating to these powers

may enjoy greater confidentiality thanothers. [Neri v. Senate Committees,G.R. No. 180843, March 25, 2008]

c. The privilege being an exemption fromthe obligation to disclose information,the necessity for withholding theinformation must be of such a highdegree as to outweigh the publicinterest in enforcing that obligation ina particular case. In light of this highlyexceptional nature of the privilege,the Court finds it essential to limit tothe President (and to the ExecutiveSecretary by oder of the President) the

power to invoke the privilege. [Senatev. Ermita, supra]

Vice-President

Qualifications, election and term of office andremoval are same as the President but not Vice-President shall serve for more than 2 successiveterms.

The Vice-President may be appointed as Member ofthe Cabinet and such requires no confirmation by theCommission of Appointments.

Prohibitions

A. Prohibited acts:(1) Shall not receive any other emoluments

from the government or any other source.

(2) Unless otherwise provided in theconstitution, shall not hold any other officeor employment. The prohibition is not to be construed

as applying to posts occupied by theExecutive officials without additionalcompensation in an ex-officio

capacity, as provided by law and asrequired by the primary functions ofthe said official‘s office. These postsdo not comprise ―any other office‖within the contemplation of theconstitutional prohibition, but properlyan imposition of additional duties andfunctions on said officials. The ex-officio position being actually and inlegal contemplation part of the

principal office, it follows that theofficial concerned has no right toreceive additional compensation forhis services in said position. Thereason is that these services arealready paid for and covered by thecompensation attached to theprincipal office. [National Amnesty Commission v. COA, G.R. No. 156982,September 8, 2004]

(3) Shall not directly or indirectly practice anyother profession, participate in anybusiness, or be financially interested in any

contract with; or in any franchise or specialprivilege granted by the government or anysubdivision, agency, or instrumentalitythereof, including government-owned orcontrolled corporations or theirsubsidiaries.

(4) Strictly avoid conflict of interest in theconduct of their office

(5) May not appoint spouse or relatives byconsanguinity or affinity within the fourthcivil degree as members of ConstitutionalCommissions, or the Office of theOmbudsman, or as Secretaries, Under

Secretaries, Chairmen, or heads of bureausor offices, including government-owned orcontrolled corporation and theirsubsidiaries.

B. Who are prohibited?(1) President(2) 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.13 must not be construed as applying to postsoccupied by the Executive officials specified thereinw/o additional compensation in an ex-officiocapacity as provided by law and as required by theprimary functions of said official's office. The reasonis that these posts do not comprise "any other office"w/in the contemplation of the constitutional




prohibition but are properly an imposition ofadditional duties and function on said officials. [CivilLiberties Union v Executive Secretary, (1991)]

C. Prohibitions against other officials(1) No Senator or Member of the House of

Representatives, during his term, may: Hold any other office or

employment in the Government, orany of its subdivisions, agencies, or

instrumentalities including GOCCs ortheir subsidiaries; OR

Be appointed to any office whichmay have been created or theemoluments thereof increasedduring the term for which he waselected. [Sec. 13, Art VI].

(2) No member of the ConstitutionalCommission during his term, shall:

Hold any other office oremployment;

Engage in the practice of any

profession or in the activemanagement or control of anybusiness which in any way may beaffected by the functions of hisoffice; OR

Be financially interested, directly orindirectly, in any contract with, orin any franchise or privilege grantedby the Government, any of itssubdivisions, agencies, orinstrumentalities, includinggovernment-owned or controlledcorporations or their subsidiaries.[Sec. 2, Art IX-A].

(3) No elective official during his tenure shall

be eligible for appointment or designationin any capacity to any public office orposition. [Sec. 7. Art IX B]

(4) No appointive official shall hold any otheroffice or employment in the Government orany of its subdivisions, agencies orinstrumentalities, including GOCCs or theirsubsidiaries. [Sec. 7. Art IX B]

(5) The Members of the Supreme Court and ofother courts established by law shall not bedesignated to any agency performing quasi-judicial or administrative functions. [Sec.12, Art VIII]

D. Exceptions to rule prohibiting executiveofficials from holding additional positions:

(1) President The President can assume a Cabinet

post, (because the departments aremere extensions of his personality,according to the Doctrine ofQualified Political Agency, so noobjection can be validly raisedbased on Sec. 13, Art VII.

The President can assume ex officiopositions. E.g. The President is theChairman of NEDA. (Sec. 9, Art XII)

(2) Vice-President―xxx The Vice-President may be appointedas member of the Cabinet. Suchappointment requires no confirmation‖ [Sec3, Art VII]

(3) Cabinet The Secretary of Justice shall be an

ex-officio member of the Judicialand Bar Council. [Sec. 8(1), Art VIII]

Unless otherwise allowed by law orby the primary functions of hisposition, appointive officials shallnot hold any other office oremployment in the Government orany subdivision, agency orinstrumentality thereof, includinggovernment- owned or controlledcorporations or their subsidiaries.

[Sec. 7, Art IX-B]

Art. VII, Sec. 13 talks of "unlessotherwise provided by theConstitution." In the case ofCabinet members, this refers to Art.IX, B, 7, par. 2.

Thus, the Constitution allows aCabinet member to hold anotheroffice provided either:

i. such is necessitated by the primaryfunctions of his position (e.g.Secretary of Trade and Industry asChairman of NDC and Secretary of

Agrarian Reform as Chairman of theLand Bank)

ii. such is allowed by law

a. Presidential Immunity

The President as such cannot be sued, enjoying as hedoes immunity from suit, but the validity of his actscan be tested by an action against the otherexecutive officials or such independentconstitutional agencies as the Commission onElections and the Commission on Audit. [Carillo vs.Marcos (1981)]

The privilege may be invoked ONLY by thePresident. The SC held that the privilege ofimmunity from suit pertains to the President byvirtue of the office and may be invoked only by theholder of the office; not by any other person in thePresident's behalf. Thus, an accused in a criminalcase where the President is a complainant cannotraise the presidential privilege as a defense toprevent the case from proceeding against theaccused. Moreover, there is nothing in our laws thatwould prevent the President from waiving theprivilege. The President may shed the protectionafforded by the privilege and submit to the court'sjurisdiction. [Soliven vs Makasiar (1988); Beltran vs




Makasiar (1988)]

Petitioners theorize that the present petition forprohibition is improper because the same attacks anact of the President, in violation of the doctrine ofpresidential immunity from suit. Petitioners‘

contention is untenable for the simple reason thatthe petition is directed against petitioners and notagainst the President. The questioned acts are thoseof petitioners and not of the President.

Furthermore, presidential decisions may bequestioned before the courts where there is graveabuse of discretion or that the President actedwithout or in excess of jurisdiction. [Gloria v.Court of Appeals, G.R. No. 119903, August 15, 2000]

Immunity co-extensive with tenure. After tenure,the Chief Executive cannot invoke immunity fromsuit for civil damages arising out of acts done by himwhile he was President which were not performed inthe exercise of official duties. [Estrada v. Desierto,G.R. Nos. 146710-15, March 2, 2001]

b. Presidential Privilege

Definition: The power of the Government towithhold information from the public, the courts,and the Congress. [Schwart] It as "the right of thePresident and high-level executive branch officers towithhold information from Congress, the courts, andultimately the public." [Rozell]

Varieties of Executive Privilege: (1) State secrets privilege - invoked by U.S.

Presidents, beginning with Washington, on theground that the information is of such naturethat its disclosure would subvert crucial militaryor diplomatic objectives.

(2) Informer’s privilege - the privilege of theGovernment not to disclose the identity ofpersons who furnish information of violations oflaw to officers charged with the enforcement ofthat law.

(3) Generic privilege for internal deliberations -has been said to attach to intragovernmentaldocuments reflecting advisory opinions,recommendations and deliberations comprisingpart of a process by which governmentaldecisions and policies are formulated. [Senate v.Ermita, G.R. No. 163783, June 22, 2004]

Scope: This jurisdiction recognizes the common lawholding that there is a "governmental privilegeagainst public disclosure with respect to statesecrets regarding military, diplomatic and othernational security matters." The same case held thatclosed-door Cabinet meetings are also a recognizedlimitation on the right to information.

Note: Executive privilege, is properly invoked inrelation to specific categories of information and notto categories of persons. Only the President (and theExecutive Secretary, by order of the President) caninvoke the privilege. [Senate v. Ermita, supra]

Synthesis of Jurisprudential doctrines(1) For the privilege to apply there must be a

formal claim of the privilege. Only thePresident or the Executive Authority (byauthority of the President) can invoke theprivilege.

(2) A formal and proper claim of executive privilegerequires a specific designation and description

of the documents within its scope as well asprecise and certain reasons for preserving theirconfidentiality. Without this specificity, it isimpossible for a court to analyze the claimshort of disclosure of the very thing sought tobe protected. [Senate v. Ermita, supra]

(3) Once properly invoked, a presumption arisesthat it is privileged. If what is involved is thepresumptive privilege of presidentialcommunications when invoked by the Presidenton a matter clearly within the domain of theExecutive, the said presumption dictates thatthe same be recognized and be given

preference or priority, in the absence of proofof a compelling or critical need for disclosureby the one assailing such presumption. [Neri v.Senate Committees, G.R. No. 180843, March25, 2008]

(4) Three elements needed to be complied with inorder for the claim to executive privilege to bevalid. These are:

(a) the protected communication mustrelate to a quintessential and non-delegable presidential power (maybe validly claimed by the executivedepartment only in cases where the

power subject of the legislativeinquiry is expressly granted by theConstitution to the President i.e. thecommander-in-chief, appointing,pardoning, and diplomatic powers);

(b) it must be authored, solicited, andreceived by a close advisor of thePresident or the President himself.The judicial test is that an advisormust be in ―operational proximity‖ with the President (the availability ofexecutive privilege only to officialswho stand proximate to thePresident, not only by reason of their function, but also by reason of their positions in the Executive‘sorganizational structure); and,

(c) it may be overcome by a showing ofadequate need, such that theinformation sought ―likely containsimportant evidence,‖ and by theunavailability of the informationelsewhere by an appropriateinvestigating authority. [Neri v.Senate, supra]




II. Powersa. Executive and Administrative Powersb. Power of Appointmentc. Power of Control and Supervisiond. Military Powerse. Pardoning Powerf. Diplomatic Powerg. Powers Relative to Appropriation Measures

h. Residual Powers

a.Executive and Administrative Powers inGeneral

Executive power

Definition: It is the duty to implement the lawswithin the standards imposed by the legislature.*This power is exercised by the President. [Sec 1, ArtVII]

The President shall have control of all the executivedepartments, bureaus, and offices. He shall ensurethat the laws be faithfully executed [Sec 17, Art VII] .

The Court held that as administrative head ofthe government, the President is vestedwith the power to execute, administer andcarry out laws into practical operation.[National Electrification Commission vs. CA(1997)]

The powers of the President cannot be said to belimited only to the specific power enumerated in theConstitution. In other words, executive power ismore than the sum of specific powers soenumerated.

The framers did not intend that by enumerating thepowers of the Pres, he shall exercise those powersand no other.

These unstated residual powers are implied from thegrant of executive power and which are necessaryfor the Pres to comply with his duties under theConstitution. [Marcos vs Manglapus (1989)]

The President has the authority to carry out areorganization of the Department of Health underthe Constitution and statues. This authority is anadjunct of the President‘s power of control underart. VII, secs 1 and 17, and it is also an exercise ofhis ―residual powers‖. However, the President must

exercise good faith in carrying out the reorganizationof any branch or agency of the executivedepartment. [Malaria Employees and Workers Association of the Philippines, Inc. v. Romulo, G.R.No. 160093, July 31, 2007]

b. Power of Appointment

IN GENERAL

Sec. 16, Art. VII: The President shall nominate and,with the consent of the Commission onAppointments, appoint the heads of the executive

departments, ambassadors, other public ministersand consuls, or officers of the armed forces from therank of colonel or naval captain, and other officerswhose appointments are vested in him in thisconstitution. He shall also appoint all other officersof the Government whose appointments are nototherwise provided for by law, and those whom hemay be authorized by law to appoint. The Congressmay, by law, vest the appointment of other officerslower in rank in the President alone, in the courts,

or in the heads of departments, agencies,commissions or boards.

Definition: the selection, by the authority vestedwith the power, of an individual who is to exercisethe functions of a given office.

Appointment is distinguished from:(1) Designation – imposition of additionalduties, usually by law, on a person already inthe public service.

(2) Commission – written evidence of theappointment.

Classification of Power of Appointment:There are 4 groups of officers whom the Pres mayappoint:

(1) Heads of the Executive Department,ambassadors, other public ministers andconsuls, officers of the armed forces fromthe rank of colonel or naval captain andother officers whose appointments arevested in him;

(2) All other officers of the government whoseappointments are not otherwise provided bylaw;

(3) Those whom the President may beauthorized to appoint;

(4) Officers lower in rank whose appointmentsCongress may by law vest in the Presidentalone.

Note: Heads of bureaus were deliberately removedfrom the provision of appointments requiringconfirmation and were included in the 4th group andhence, their appointments no longer needconfirmation. [Sarmiento vs Mison, (1987)]

Steps in the appointing process:(1) Nomination by the President(2) Confirmation by the Commission on

Appointments(3) Issuance of the Commission(4) Acceptance by the appointee

Note: In the case of ad interim appointments, steps1, 3 and 4 precedes step 2.

An appointment is deemed complete only uponacceptance. [Lacson v. Romero, 84 Phil. 740].

Appointment is essentially a discretionary power andmust be performed by the officer in which it is




vested according to his best lights, the onlycondition being that the appointee, if issued apermanent appointment, should possess theminimum qualification requirements, including theCivil Service eligibility prescribed by law for theposition. This discretion also includes thedetermination of the nature or character of theappointment.

Confirmation is not required when the President

appoints other government officers whoseappointments are not otherwise provided for by lawor those officers whom he may be authorized by lawto appoint (like the Chairman and Members of theCommission on Human Rights). Also, as observed inSarmiento v. Mison, when Congress:

(1) creates inferior offices but omits to provide forappointment thereto, or provides in anunconstitutional manner for suchappointments; or

(2) the officers are considered as among thosewhose appointments are not otherwise

provided for by law.

Upon Recommendation of the Judicial and BarCouncil(1) Members of the Supreme Court and all other

courts. (Sec 9, Art VIII) Appointments need no confirmation. For lower courts, appointment shall be issued

within 90 days from submission of the list

(2) Ombudsman and his 5 deputies (for Luzon,Visayas, Mindanao, general and military) Sec 9Art XI. Such appointments shall require no

confirmation.

All vacancies shall be filled within threemonths after they occur.

Appointment of Vice-President as Member of theCabinet (Sec 3, Art.VII)Appointment requires NO confirmation

Appointments solely by the President (Sec. 16, ArtVII)(1) Those vested by the Constitution on the

President alone (e.g. appointment of Vice-President to the Cabinet) [Art. VII, Sec. 3(2)]

(2) Those whose appointments are not otherwiseprovided by law.

(3) Those whom he may be authorized by law toappoint.

(4) Those other officers lower in rank whoseappointment is vested by law in the President(alone). The phraseology is muddled:

Sarmiento v Mison (1987):In arguing that even bureau chiefs neededconfirmation even if they are of inferior rank, thebasis was the phrase, "the Congress may, by law,vest in the appointment of other officers lower inrank in the President alone". This meant that until alaw is passed giving such appointing power to thePresident alone, then such appointment has to be

confirmed. The SC dismissed this view however,saying that the inclusion of the word "alone" was anoversight. Thus, the Constitution should read "TheCongress may, by law, vest the appointment of otherofficers lower in rank in the President."

Limitations on appointing power of the President(1) The spouse and relatives by consanguinity or

affinity within the 4th civil degree of thePresident shall not, during his "tenure", be

appointed as (sec 13, Art VII):a. members of the ConstitutionalCommissions,b. member of the Office ofOmbudsman,c. Secretaries,d. Undersecretaries,e. Chairmen or heads of bureaus oroffices, including government-owned orcontrolled corporations and theirsubsidiaries.

(2) The President shall have the power to makeappointments during the recess of the

Congress, whether voluntary or compulsory,but such appointments shall be effectiveonly until disapproval by the Commission onAppointments or until the next adjournmentof the Congress. [Sec 16(2), Art VII]

(3) Appointments extended by an actingPresident shall remain effective unlessrevoked by the elected President within 90days from his assumption of office [Sec. 14,Art. VII] This is limited to presidentialappointments. There is no law thatprohibits local executive officials frommaking appointments during the last days oftheir tenure. [De Rama v. Court of Appeals,

G.R. No. 131136, February 28, 2001]

Interim or recess appointments

a. Regular and recess (ad-interim)appointments

Appointments requiring confirmation are of twokinds

(1) regular, if the CA, that is, Congress, is insession;

(2) during the recess of Congress (because theCommission shall meet only while Congress

is in session [Art. VI, Sec. 19] .

Regular appointment - one made by the Presidentwhile Congress is in session, takes effect only afterconfirmation by the Commission on Appointments,and once approved, continues until the end of theterm of the appointee.

Ad-interim appointment - one made by thePresident while Congress is not in session, takeseffect immediately, but ceases to be valid ifdisapproved by the Commission on Appointments orupon the next adjournment of Congress. (Art. VII,Sec. 16, par. 2)




Ad interim appointment – a permanent appointmentmade by the Pres in the meantime that Congress isin recess. It is permanent as it takes effectimmediately and can no longer be withdrawn by thePresident once the appointee has qualified intooffice. The fact that it is subject to theconfirmation of the Commission on Appointmentsdoes not alter its permanent character. Hence, saidappointment is effective until (1) disapproved by the

CA or (2) the next adjournment of Congress [Matibagvs Benipayo (2002)]

b. Acting/Temporary appointment

Can be withdrawn or revoked at the pleasure of theappointing power. The appointee does not enjoysecurity of tenure. This is the kind of appointmentthat the Constitution prohibits the Pres from makingto the independent constitutional commissions.

The mere filing of a motion for reconsideration ofthe confirmation of an appointment cannot have theeffect of recalling or setting aside said appointment.

The Constitution is clear – there must either be arejection by the Commission on Appointments ornon-action on its part for the confirmation to berecalled.

Also, the power to approve or disapproveappointments is conferred on the CA as a body andnot on the individual members. [Pacete vs Secretary (1971)]

c. Temporary Designations

Admin Code of 1987, Book III Sec. 17The President may designate an officer already inthe govt. service or any other competent person to

perform the functions of any office in the executivebranch, appointment to which is vested in him bylaw, when: The officer regularly appointed to the office is

unable to perform his duties by reason of illness,absence or any other cause; or

There exists a vacancy;In no case shall a temporary designation exceed one(1) year.

d. Limitations on the appointing power of theActing President

(1) Appointments extended by an Acting President

shall remain effective unless revoked by theelected President within ninety days from hisassumption or reassumption of office. [Sec. 14, Art VII]

(2) A President or Acting President shall not makeappointments two months immediately beforethe next presidential elections and up to theend of his term

Except temporary appointments to executivepositions when continued vacancies therein will

prejudice public service or endanger publicsafety. [Sec 15, Art VII]

Commission on AppointmentsConfirmation

The seats reserved for sectoral reps may be filled byappointment by the President under Art XVIII, Sec. 7.It is indubitable that sectoral representatives to theHouse are among the ―other officers whoseappointments are vested in the Pres in thisConstitution‖, referred to in the 1st sentence of Art.VII, Sec. 16. These appointments require theconfirmation of the Commission on Appointments.

Synthesis: From the rulings in Sarmiento III v. Mison 1987,Bautista v. Salonga 1989, and Deles v. ConstitutionalCommission 1989, these doctrines are deducible:Confirmation by the Commission on Appointments isrequired only for presidential appointees asmentioned in the first sentence of Sec. 16, Art. VII,including those officers whose appointments areexpressly vested by the Constitution itself in the

President:(1) Heads of the executive departments(2) Ambassadors, other public ministers and

consuls(3) Officers of the Armed Forces of the

Philippines with the rank of colonel or navalcaptain (because these are officers of asizeable command enough to stage a coup)

(4) Other officers whose appointments arevested in the President in the Constitution: Chairman and Commissioners of the

Constitutional Commissions (Sec 1 ArtIX-B, Sec 1 (2) Art IX-B, Sec 1(2) Art Ix-D)

Regular members of the Judicial and

Bar Council (Sec 8 (2) Art VII) Sectoral representatives (Sec 7 Art

XVIII, Sec 18 Art X)

Midnight Appointments

General Rule: Two months immediately before thenext presidential elections (2nd Monday of March),and up to the end of his "term" (June 30), aPresident (or Acting President) shall not makeappointments. [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 "midnight appointments"(note: made by outgoing President near the end ofhis term) are not illegal, they should be made in thecapacity of a "caretaker" doubly careful and prudentin making the selection, so as not to defeat thepolicies of the incoming administration. The fillingup of vacancies in important posts, if few, and sospaced as to afford some assurance of deliberateaction and careful consideration of the need for the




appointment and the appointee‘s qualifications, maybe undoubtedly permitted. But the issuance of 350appointments in one night and the planned inductionof almost all of them a few hours before theinauguration of the new President may be regardedas abuse of presidential prerogatives. [Aytona vsCastillo (1962)]

The SC emphasized that the Aytona ruling does notdeclare all midnight appointments as invalid, and

that the ad interim appointment of the petitionerchief of police here, whose qualification andregularity were not disputed, except for the factthat it was made during the last few days of the oldadministration, is thus not invalid. [Quimsing vsTajanglangit (1964)]

The prohibition against midnight appointmentsapplies only to the president and does not extend tolocal elective officials. Moreover, there is no lawthat prohibits local elective officials from makingappointments during the last days of his or hertenure. [De Rama v. CA (2001)]

NOTE: The Court in the case of De Castro v. JBC, [G.R. No. 191002, March 17, 2010 ] ruled that theprohibition against midnight appointment appliesonly to positions in the executive department. Thus,the appointment of Chief Justice Corona was heldvalid. This ruling effectively overruled In re: MateoValenzuela [ A.M. No. 98-5-01-SC, November 9, 1998]which extended the prohibition for midnightappointments to the judiciary.

Power of Removal

The power of removal may be implied from thepower of appointment. However, the Presidentcannot remove officials appointed by him where the

Constitution prescribes certain methods forseparation of such officers from public service, e.g.Chairmen and Commissioners of ConstitutionalCommissioners who can be removed only byimpeachment, or judges who are subject to thedisciplinary authority of the Supreme Court.

Members of the career civil service of the CivilService who are appointed by the President may bedirectly disciplined by him [Villaluz v. Zaldivar, 15SCRA 710]

Members of Cabinet and such officers whosecontinuity in office depends upon the pleasure of thepresident may be replaced at any time, but legallyspeaking, their separation is effected not by removalbut by expiration of their term.

c. Power of Control and Supervision

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 a subordinatehas done in the performance of his duties and tosubstitute one's own judgment to that of asubordinate. [Mondano v. Silvosa, ]

Doctrine of Qualified Political Agency

Qualified political agency doctrine (also alter egoprinciple)- ―all the different executive andadministrative organizations are mere adjuncts ofthe Executive Department, the heads of the variousexecutive departments are assistants and agents ofthe Chief Executive, and, except in cases whereinthe Chief Executive is required by the Constitution

or by the law to act in person or the exigencies ofthe situation demand that he act personally, themultifarious executive and administrative functionsof the Chief Executive are performed by and throughthe executive depts., performed and promulgated inthe regular course of business, are, unlessdisapproved or reprobated by the Chief Executive,presumptively acts of the Chief Executive.‖ [FreeTelephone Workers Union vs. Minister of Labor and Employment (1981)]

General Supervision over Local governmentunits and the autonomous regions

(1) The President shall exercise generalsupervision over local governments. [Sec 4, Art X]

(2) The President shall exercise generalsupervision over autonomous regions to ensurethat laws are faithfully executed. [Sec 16, Art X]

Supervision and Control DistinguishedSupervision Control

- Overseeing or the poweror authority of the officer tosee that subordinate officersperform their duties, and if

the latter fail or neglect tofulfill them, then the formermay take such action or stepsas prescribed by law to makethem perform these duties.- This does not include thepower to overrule their acts,if these acts are within theirdiscretion.

Power of an officerto alter, modify,nullify or set aside what a subordinate

officer had doneand to substitute the judgment ofthe former for thatof the latter.

d. Military powers

Commander in chief powers(1) He may call out such armed forces to prevent or

suppress lawless violence, invasion or rebellion.(2) He may suspend the privilege of the writ ofhabeas corpus, or

(3) He may proclaim martial law over the entirePhilippines or any part thereof. [Sec. 18, Art.VII]. Subject to judicial review to determine

whether or not there has been a graveabuse of discretion amounting to lack orexcess of jurisdiction [Sec 1(2), Art VIII].

The President shall be the Commander-in-chief of all armed forces of the Philippines – Thus, in one




case, the President prohibited a general fromattending a hearing at the Senate. However, theability of the President to require a military officialto secure prior consent before appearing beforeCongress pertains to a wholly different andindependent specie of presidential authority—thecommander-in-chief powers of the President. Bytradition and jurisprudence, the commander-in-chiefpowers of the President are not encumbered by thesame degree of restriction as that which may attach

to executive privilege or executive control. Thecommander-in-chief provision in the Constitution isdenominated as Section 18, Article VII, which beginswith the simple declaration that ―the President shallbe the Commander-in-Chief of all armed forces ofthe Philippines x x x‖ Outside explicit constitutionallimitations, such as those found in Section 5, ArticleXVI, the commander-in-chief clause vests on thePresident, as commander-in-chief, absoluteauthority over the persons and actions of themembers of the armed forces. Such authorityincludes the ability of the President to restrict thetravel, movement and speech of military officers,activities which may otherwise be sanctioned under

civilian law. [Gudani v. Senga, G.R. No. 170165, August 15, 2006] .Graduated Powers - Sec. 18, Art VII, grants thePresident, as Commander-in-Chief, a ―sequence‖ of ―graduated power[s].‖ From the most to the leastbenign, these are: the calling out power, the powerto suspend the privilege of the writ of habeascorpus, and the power to declare martial law. In theexercise of the latter two powers, the Constitutionrequires the concurrence of two conditions, namely,an actual invasion or rebellion, and that publicsafety requires the exercise of such power.However, as we observed in Integrated Bar of thePhilippines v. Zamora, ―[t]hese conditions are notrequired in the exercise of the calling out power.

The only criterion is that ‗whenever it becomesnecessary,‘ the President may call the armed f orces‗to prevent or suppress lawless violence, invasion orrebellion.‘ [Sanlakas v. Executive Secretary, 2004]

Call out the AFP to prevent lawlessviolence

This is merely a police measure meant to quelldisorder. As such, the Constitution does not regulateits exercise radically.

It is not disputed that the President has fulldiscretionary power to call out the armed forces and

to determine the necessity for the exercise of suchpower. While the Court may examine whether thepower was exercised within constitutional limits orin a manner constituting grave abuse of discretion,none of the petitioners here have, by way of proof,supported their assertion that the President actedwithout factual basis. The President, in declaring astate of rebellion and in calling out the armedforces, was merely exercising a wedding of her ChiefExecutive and Commander-in-Chief powers. Theseare purely executive powers, vested on thePresident by Sections 1 and 18, Article VII, asopposed to the delegated legislative powers

contemplated by Section 23 (2), Article VI. [Sanlakasv Executive Secretary (2004)]

Assailed is PP1017 (Declaration of State ofNational Emergency). It is different from thelaw in Sanlakas as this proclamation was wovenout of the ―calling out‖ and ―take care‖ powersof the President joined with the ―temporarytakeover‖ provision under Art. XII, section 17.

PP1017 purports to grant the President, withoutauthority or delegation from Congress, to take overor direct the operation of any privately-owned publicutility or business affected with public interest.

The SC held that while the President could validlydeclare the existence of a state of nationalemergency even in the absence of a Congressionalenactment, the exercise of the emergency powers,such as the taking over of privately-owned publicutility or business affected with public interest,requires a delegation from Congress which is therepository of emergency powers.

PP1017 did not authorize said temporary take overwithout authority from Congress. [David v. Arroyo(2006)]

a.Suspend the privilege of the writ of habeas corpus

"Writ of habeas corpus" is an order from the courtcommanding a detaining officer to inform the court

(1) if he has the person in custody, and(2) his basis in detaining that person.

"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

that is suspended, not the writ itself.

Requisites:(1) There must be an invasion or rebellion, and(2) The public safety requires the suspension.

Duration: Not to exceed 60 days unless extended byCongress.

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 ordirectly connected with invasion [Sec. 18(5),

Art. VII] . Such persons suspected of the abovecrimes 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 theprivilege, there is no remedy availableagainst such unlawful arrest (arbitrarydetention).

The arrest without warrant is justifiedby the emergency situation and the




difficulty 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 detained

shall be judicially charged within 3 days, orotherwise he shall be released. [Sec.18(6),Art. VII] The effect of the suspension of the

privilege, therefore, is only to extendthe periods during which he can bedetained without a warrant. When theprivilege is suspended, the period isextended to 72 hours.

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. [Sec. 13,Art. III]

b. Proclaim Martial Law

Requisites:(1) There must be an invasion or rebellion, and(2) Public safety requires the proclamation of

martial law all over the Philippines or anypart thereof.

The following cannot be done [Sec. 18 (4), Art. VII] (1) Suspend the operation of the Constitution.

(2) Supplant the functioning of the civil courtsand the legislative assemblies.

(3) Confer jurisdiction upon military courts andagencies over civilians, where civil courtsare able to function."open court" doctrine

holds that civilians cannot be triedby military courts if the civil courtsare open and functioning.

if the civil courts are notfunctioning, then civilians can betried by the military courts.

Martial law usually contemplates acase where the courts are already

closed and the civil institutionshave already crumbled, that is a"theater of war." If the courts arestill open, the President can justsuspend the privilege and achievethe same effect.

(4) Automatically suspend the privilege of thewrit of habeas corpus.

The President must suspend theprivilege expressly.

The Role of Congress [Art. VII, Sec. 18, pars. 1-2] (1) Congress may revoke the proclamation of

martial law or suspension of the privilege of

the writ of habeas corpus before the lapseof 60 days from the date of suspension orproclamation.

(2) Upon such proclamation or suspension,Congress shall convene at once. If it is notin session, it shall convene in accordancewith its rules without need of a call within24 hours following the proclamation orsuspension.

(3) Within 48 hours from the proclamation orthe suspension, the President shall submit areport, in person or in writing, to theCongress (meeting in joint session of theaction he has taken).

(4) The Congress shall then vote jointly, by anabsolute majority. It has two options:

(a) To revoke such proclamation orsuspension. When it sorevoked, the President cannot setaside (or veto) the revocation as he

normally would do in the case ofbills.(b) To extend it beyond the 60-day

period of its validity. Congresscan only so extend the proclamationor suspension upon the initiative ofthe President.

The period need not be 60 days; itcould be more, as Congress woulddetermine, based on the persistence ofthe emergency.

Note: If Congress fails to act before the measureexpires, it can no longer extend it until the

President again re-declares the measure.

Congress cannot "validate" theproclamation or suspension, because itis already valid.

If Congress extends the measure, butbefore the period of extension lapsesthe requirements for the proclamationor suspension no longer exist, Congresscan lift the extension, since the powerto confer implies the power to takeback.

If Congress does not review or lift theorder, this can be reviewed by theSupreme Court pursuant to the nextsection.

The Role of the Supreme Court [Art. VII, Sec. 18,par. 3](1) The Supreme Court may review, in an

appropriate proceeding filed by any citizen, thesufficiency of the factual basis of:

(a) the proclamation of martial law orthe suspension of the privilege ofthe writ, or

(b) the extension thereof. It mustpromulgate its decision thereonwithin 30 days from its filing. [Sec




18 (3), Art. VII]

(2) The jurisdiction of the SC may be invoked in aproper case.

(3) Petition for habeas corpus(a) When a person is arrested without a

warrant for complicity in therebellion or invasion, he or someoneelse in his behalf has the standing to

question the validity of theproclamation or suspension.

(b) Before the SC can decide on thelegality of his detention, it mustfirst pass upon the validity of theproclamation or suspension.

(4) Test of Arbitrariness: The question is notwhether the President or Congress actedcorrectly, but whether he acted arbitrarily inthat the action had no basis in fact. [IBP v.Zamora, (2000)]

amounts to a determination of whetheror not there was grave abuse of discre-

tion amounting to lack or excess ofjurisdiction. [Sec 1(2) Art. VIII] The function of the court is to check

and not supplant the executive or toascertain merely whether he has gonebeyond the constitutional limits ofjurisdiction. The proper standard is notcorrectness but arbitrariness.

There are 4 ways, then, for the proclamation orsuspension to be lifted: (P-C-S-O)

(1) Lifting by the President himself(2) Revocation by Congress(3) Nullification by the Supreme Court(4) Operation of law after 60 days

Cf . RA 7055 (1991) "An Act Strengthening CivilianSupremacy over the Military by Returning to the CivilCourts the Jurisdiction over Certain Offensesinvolving Members of the Armed Forces of thePhilippines, other Persons Subject to Military Law,and the Members of the Philippine National Police,Repealing for the Purpose Certain PresidentialDecrees"

RA 7055 effectively placed upon the civilcourts the jurisdiction over certainoffenses involving members of the AFPand other members subject to militarylaw.

RA 7055 provides that when theseindividuals commit crimes or offensespenalized under the RPC, other specialpenal laws, or local governmentordinances, regardless of whethercivilians are co-accused, victims, oroffended parties which may be natural orjuridical persons, they shall be tried bythe proper civil court, except when theoffense, as determined beforearraignment by the civil court, is service-connected in which case it shall be tried

by court-martial.

The assertion of military authority overcivilians cannot rest on the President'spower as Commander in Chief or on anytheory of martial law. As long as civilcourts remain open and are regularlyfunctioning, military tribunals cannot tryand exercise jurisdiction over civilians foroffenses committed by them and which

are properly cognizable by civil courts.To hold otherwise is a violation of theright to due process. [Olaguer vs Military Commission No. 34 (1987)]

(5) Pardoning Power

a) Natureb) Forms of executive clemency

Executive clemencies(1) Reprieves - a temporary relief from or

postponement of execution of criminalpenalty or sentence or a stay of execution.

[Black’s Law Dictionary] . It is thewithholding of a sentence for an interval oftime, a postponement of execution, atemporary suspension of execution. [Peoplevs. Vera, supra]

(2) Commutations - Reduction of sentence.[Black’s Law Dictionary] . It is a remissionof a part of the punishment; a substitutionof a less penalty for the one originallyimposed. [People vs. Vera, supra]

(3) Amnesty - a sovereign act of oblivion forpast acts, granted by government generallyto a class of persons who have been guilty

usually 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).

(4) Pardons - Permanent cancellation ofsentence. [Black’s Law Dictionary] . It is anact of grace proceeding from the powerentrusted with the execution of the laws,which exempts the individual on whom it isbestowed, from the punishment the lawinflicts for the crime he has committed. It isa remission of guilt, a forgiveness of theoffense. [People v Vera, supra]

Plenary or partial Plenary - extinguishes all the

penalties imposed upon theoffender, including accessorydisabilities

Partial – does not extinguish allpenalties imposed

Absolute or conditional Conditional - the offender has the

right to reject the same since he




may feel that the conditionimposed is more onerous than thepenalty sought to be remitted.

Absolute pardon - pardonee has nooption at all and must accept itwhether he likes it or not. In thissense, an absolute pardon issimilar to commutation, w/c is alsonot subject to acceptance by theoffender.

Pardon AmnestyInfractions of peace ofthe state

Addressed to PoliticalOffenses

Granted to individuals To classes of personsExercised solely by theexecutive

Requires concurrence ofCongress

Private act which mustbe pleaded and proved

Public act which thecourts could takejudicial notice

Looks forward andrelieves the pardonee ofthe consequences of theoffense

Looks backward and putsinto oblivion the offenseitself.

(5) Remit fines and forfeitures, after convic-tion by final judgmentExcept:

(a) In cases of impeachment, and(b) As otherwise provided in this

Constitution

No pardon, amnesty, parole or suspension ofsentence for violation of election laws, rules, andregulations shall be granted by the President withoutthe favorable recommendation by the Commission(on Elections.) [Sec 5, Art IX]

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]

Probation - a disposition under which a defendantafter conviction and sentence is released subject toconditions imposed by the court and to thesupervision of a probation officer. [Sec. 3 (a), PD968.]

Parole - suspension of the sentence of a convictgranted by a Parole Board after serving the minimumterm of the indeterminate sentence penalty, withoutgranting a pardon, prescribing the terms upon which

the sentence shall be suspended. [REYES]

Limitations on the Pardoning Power(1) Cannot be granted on impeachment cases.

[Sec. 19, Art. VII] .(2) Cannot be granted in cases of violation of

election laws without the favorablerecommendation of the COMELEC. [Sec. 5, Art. IX-C] .

(3) Can be granted only after conviction by finaljudgment [People v. Salle, 250 SCRA 581].

(4) Cannot absolve the convict of civil liability.(5) Cannot be granted to cases of legislative

contempt or civil contempt.(6) Cannot restore public offices forfeited.

Pardon implies guilt and does not erase the fact ofthe commission of the crime and the convictionthereof. It does not ipso facto restore a convictedfelon to a public office necessarily relinquished orforfeited by reason of the conviction although suchpardon undoubtedly restores his eligibility forappointment to that office. [Monsanto vs Factoran

(1989)]

Application of Pardoning Powers to AdministrativeCases

If the President can grant reprieves,commutations and pardons, and remitfines and forfeitures in criminal cases,with much more reason can she grantexecutive clemency in administrativecases, which are clearly less seriousthan criminal offenses.

However, the power of the President togrant executive clemency inadministrative cases refers only to

administrative cases in the Executivebranch and not in the Judicial orLegislative branches of the govt.[Llamas v Executive Secretary (1991)]

Removal of Administrative Penalties

Sec. 53, Chapter 7, Subtitle A, Title I, Book V,Administrative Code of 1987Removal of Administrative Penalties or Disabilities -In meritorious cases and upon recommendation ofthe (Civil Service) Commission, the President maycommute or remove administrative penalties ordisabilities imposed upon officers or employees indisciplinary cases, subject to such terms andconditions as he may impose in the interest of the

service

Who may avail of amnesty? (Case Law) (Asked 5times in the Bar)Amnesty Proclamation No. 76 applies even toHukbalahaps already undergoing sentence upon thedate of its promulgation. The majority of the Courtbelieves that by its context and pervading spirit theproclamation extends to all members of theHukbalahap. [Tolentino vs Catoy (1948)]

The SC agreed with the Sandiganbayan that in factthe petitioners were expressly disqualified fromamnesty. The acts for which they were convicted

were ordinary crimes without any political com-plexion and consisting only of diversion of publicfunds to private profit. The amnesty proclamationcovered only acts in the furtherance of resistance toduly constituted authorities of the Republic andapplies only to members of the MNLF, or other anti-government groups. [Macaga-an vs People (1987)]

(6) Diplomatic Power

Scope of Diplomatic Power: In our system ofgovernment, the President, being the head of state,is regarded as the sole organ and authority in




external relations and is the country‘s solerepresentative with foreign nations. As the chiefarchitect of foreign policy, the President acts as thecountry‘s mouthpiece with respect to internationalaffairs. Hence, the President is vested with theauthority:

(1) to deal with foreign states andgovernments;

(2) extend or withhold recognition;(3) maintain diplomatic relations;

(4) enter into treaties; and(5) transact the business of foreign relations.

[Pimentel v. Executive Secretary, G. R. No.158088, July 6, 2005]

(a) Treaty-making powerNo treaty or international agreement shall be validand effective unless concurred in by at least two-thirds of all the members of the Senate. [Sec 21, ArtVII]

Treaty - as defined by the Vienna Convention on theLaw of Treaties, is ―an international instrumentconcluded between States in written form and

governed by international law, whether embodied ina single instrument or in two or more relatedinstruments, and whatever its particulardesignation.‖ [Bayan v. Executive Secretary, G.R.No. 138570, October 10, 2000].

Other terms for a treaty: act, protocol, agreement,compromis d’ arbitrage, concordat, convention,declaration, exchange of notes, pact, statute,charter and modus vivendi.

Note: It is the President who RATIFIES a treaty (notthe Senate), the Senate merely CONCURES. [Bayanv. Executive Secretary]

Executive Agreements Entered into by the President Needs no concurrence. International agreements involving political

issues or changes in national policy andthose involving international agreements ofpermanent character usually take the formof TREATIES. But the internationalagreements involving adjustments in detailcarrying out well-established nationalpolicies and traditions and those involving amore or less temporary character usuallytake the form of EXECUTIVE AGREEMENTS. [ Commissioner of Customs vs. Eastern SeaTrading (1961)]

The agreement is not a "treaty" as the term isused 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 andthe Senate does not exhaust the power ofthe government over international rela-tions.

Consequently, executive agreements may beentered into with other states and areeffective even without the concurrence of

the Senate. From the point of view ofinternational law, there is no differencebetween treaties and executive agreementsin their binding effect upon statesconcerned as long as the negotiatingfunctionaries have remained within theirpowers. The distinction between anexecutive agreement and a treaty is purely a constitutional one and has nointernational legal significance. [ USAFFE

Veterans Assn. vs Treasurer (1959)]

Two Classes of Executive Agreements(1) Agreements made purely as executive acts

affecting external relations and independentof or without legislative authorization,which may be termed as presidentialagreements; and

(2) Agreements entered into in pursuance ofacts of Congress, or Congressional-ExecutiveAgreements.

Although the President may, under the Americanconstitutional system enter into executive

agreements without previous legislative authority,he may not, by executive agreement, enter into atransaction which is prohibited by statutes enactedprior thereto. Under the Constitution, the mainfunction of the Executive is to enforce laws enactedby Congress. The former may not interfere in theperformance of the legislative powers of the latter,except in the exercise of his veto power. He may notdefeat legislative enactments that have acquired thestatus of law, by indirectly repealing the samethrough an executive agreement providing for theperformance of the very act prohibited by said laws.[Gonzales v Hechanova (1963)]

The issue in this case is the constitutionality of the

VFA. The SC held that once the Senate performs thepower to concur with treaties or exercise itsprerogative within the boundaries prescribed by theConstitution, the concurrence cannot be viewed asan abuse of power, much less a grave abuse ofdiscretion. The President, in ratifying the VFA andsubmitting the same for concurrence of the Senate,acted within the confines and limits of the powervested in him by the Constitution. The Presidentmerely performed a constitutional task andexercised a prerogative that chiefly pertains to thefunctions of his office. [Bayan vs Executive Secretary (2000)]

(b) Deportation of undesirable aliens

The President may deport only according to groundsenumerated by law since it would be unreasonableand undemocratic to hold that an alien be deportedupon an unstated or undefined ground dependingmerely on the use of an unlimited discretion by thePresident. [Qua Chee Gan vs Deportation Board (1963]

2 ways of deporting an undesirable alien:(1) by order of the President after due

investigation, pursuant to section 69 of theRevised Administrative Code




(2) by the Commissioner of Immigration undersection 37 of the immigration Law [QuaChee Gan v. Deportation Board, supra]

Scope of the power The Deportation Board can entertain

deportation based on grounds not specifiedin Sec 37 of the Immigration Law. TheBoard has jurisdiction to investigate Go Tekeven if he had not been convicted yet.

The President‘s power to deport aliens and toinvestigate them subject to deportation areprovided in the Revised AdministrativeCode.

The State has inherent power to deportundesirable aliens. This power is exercisedby the President.

There is no legal nor constitutional provisiondefining the power to deport aliens becausethe intention of the law is to grant theChief Executive the full discretion to

determine whether an alien‘s residence inthe country is so undesirable as to affectthe security, welfare or interest of thestate.

The Chief Executive is the sole and exclusivejudge of the existence of facts which wouldwarrant the deportation of aliens. [Go Tekvs Deportation Board (1977)]

(7) Powers Relative to AppropriationMeasures

Contracting and guaranteeing foreign loans

Requisites for contracting and guaranteeing foreignloans:

(1) With the concurrence of the monetary board[Sec 20, Art VII]

(2) subject to limitations as may be provided bylaw [Sec 21, Art XII]

(3) information on foreign loans obtained orguaranteed shall be made available to thepublic [sec 21, Art XII]

Cf. Republic Act 4860An Act Authorizing The President Of The PhilippinesTo Obtain Such Foreign Loans And Credits, Or ToIncur Such Foreign Indebtedness, As May Be

Necessary To Finance Approved EconomicDevelopment Purposes Or Projects, And ToGuarantee, In Behalf Of The Republic Of ThePhilippines, Foreign Loans Obtained Or Bonds IssuedBy Corporations Owned Or Controlled By TheGovernment Of The Philippines For EconomicDevelopment Purposes Including Those Incurred ForPurposes Of Re-Lending To The Private Sector,Appropriating The Necessary Funds Therefore, AndFor Other PurposesApproved, September 8, 1966.

Role of Congress: The President does not need prior

approval by the Congress(1) Because the Constitution places the power

to check the President‘s power on theMonetary Board

(2) Congress may provide guidelines and havethem enforced through the Monetary Board

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]

The budget is the plan indicating:i.expenditures of the government,ii.sources of financing, andiii.receipts from revenue-raising measures.

This budget is the upper limit of the appropriationsbill to be passed by Congress. Through the budget,

therefore, the President reveals the priorities of thegovernment.

Fixing of tariff rates (Sec 28, Art VI)

The Congress may, by law, authorize the Presidentto fix:

within specified limits, and subject to such limitations and

restrictions as it may impose, tariff rates import and export quotas tonnage and wharfage dues other duties or imposts within the

framework of the nationaldevelopment program of theGovernment.

Rationale for delegation: highly technical nature ofinternational commerce, and the need to constantlyand with relative ease adapt the rates to prevailingcommercial standards.

Veto Power

General rule: all bills must be approved by thePresident before they become law

Exceptions:(1) the veto of the President is overridden by

2/3 vote of all the Members of the Housewhere it originated;

(2) the bill lapsed into law because the inactionof the President; and

(3) the bill passed is the special law to electthe President and Vice-President.

This gives the President an actual hand inlegislation. However, his course of action is only toapprove it or veto it as a whole. (See LegislativePower of Congress)




It is true that the Constitution provides a mechanismfor overriding a veto (Art. VI, Sec. 27 [1]). Saidremedy, however, is available only when thepresidential veto is based on policy or politicalconsiderations but not when the veto is claimed tobe ultra vires. In the latter case, it becomes theduty of the Court to draw the dividing line where theexercise of executive power ends and the bounds oflegislative jurisdiction begin. [PHILCONSA v Enriquez

(1994)]

(8) Residual Powers

Emergency powers

The Congress may by law authorize the President toexercise powers necessary and proper to carry out adeclared national policy.

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,

which may include the law-making power. When the President acts under the emergency

power, he acts under a Congressionaldelegation of law-making power.

Meaning of ―power necessary and proper‖ - Powerto 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:(1) upon being withdrawn by resolution of the

Congress, or, if Congress fails to adopt such

resolution,(2) upon the next (voluntary) adjournment of

Congress. 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 grantof emergency powers is based ondecided cases, which in turn became Art. VII, Sec. 15 of the 1973Constitution.

The Congress granted the Presidentcertain emergency powers. (CA671)

After the war, Congress held a specialsession. The SC held that theemergency power lasted only until

Congress held its regular session. Thefact that Congress could now meetmeant that there was no emergencyanymore that would justify the delega-tion. The assertion that new legislationis needed to repeal CA671 is not inharmony with the Constitution. If a newlaw were necessary to terminate it,then it would be unlimited andindefinite. This would create an

anomaly since what was intended tomeet a temporary emergency becomesa permanent law. [Araneta v Dinglasan(1949)]

The specific power to continue in forcelaws and appropriations which wouldlapse or otherwise become inoperativeis a limitation on the general power toexercise such other powers as theexecutive may deem necessary toenable the government to fulfill itsresponsibilities and to maintain andenforce its authority. [Rodriguez v Gella

(1953)]

Inconsistency between the Constitution and thecases: (BARLONGAY)

The Constitution [Art. VI, Sec. 23 (2)]states that the emergency powers shallcease upon the next adjournment ofCongress unless sooner withdrawn byresolution of Congress

Cases tell us that the emergency powersshall cease upon resumption of session.

Reconciling the two: it would not beenough for Congress to just resumesession in order that the emergencypowers shall cease. It has to pass a

resolution withdrawing such emergencypowers, otherwise such powers shallcease upon the next adjournment ofCongress.

Emergency PowerIn times of war or other national emergency, theCongress, may, by law, authorize the President, fora limited period, and subject to such restrictions asit may prescribe, to exercise powers necessary andproper to carry out a declared national policy.Unless sooner withdrawn by resolution of theCongress, such powers shall cease upon the nextadjournment thereof. (Sec 23, Art VI see discussionabove)

Please refer to preceding subsection 2.a. EXECUTIVE AND ADMINISTRATIVE POWERS IN GENERAL




RULES ON SUCCESSION

President

Vacancyat the

Beginningof theterm

Death or permanent disabilityof the President-elect

Vice-President-elect shallbecome President

President-elect fails to qualify Vice-President-elect shal act asPresident until the President-elect shall have qualifiedl

President shall not have beenchosen

Vice-President-elect shall act asPresident until a President shallhave been chosen andqualified.

No President and Vice-Presidentchosen nor shall have qualified,or both shall have died orbecome permanently disabled

President of the Senate orincase of his inability,Speaker of the House ofRepresentatives, shall act asPresident until a President or aVice-President shall have beenchosen and qualified.

In the event of inability of theofficials mentioned, Congressshall, by law, provide for themanner in which one who is toact as President shall beselected until a President orVice-President shall havequalified.

Vacancyduring

the term

Death, permanent disability,removal from office, or

resignation of the President

Vice-President-elect shallbecome President

Death, permanent disability,removal from office, orresignation of President andVice-President

Senate President or, in case ofhis inability, the Speaker of theHouse of Representatives, shallact as President until aPresidnet or Vice-Presidentshall be elected and qualified.Congress, by law, shall providefor the manner in which one isto act as President in the eventof inability of the officialsmentioned above.

Temporarydisability

When President transmits tothe Senate President and theSpeaker of the House his

written declaration that he isunable to discharge the powersand duties of his office

Such powers and duties shall bedischarged by the Vice-President as Acting President,

until the President transmits tothem a written declaration tothe contrary

When a Majority of all themembers of the Cabinettransmit to the Senate Presdentand the Speaker their writteddeclaration that the Presidentis unable to discharge thepowers and duties of his office

the Vice-President shallimmediately assume the powersand duties of the office asActing President until thePresident transmits to theSenate President and Speakerhis written declaration that noinability exists.

If after the President transmitshis declaration of his ability todischarge his office, and a

majority of members of theCabinet transmit within 5 daysto the Senate President andSpeaker their writtendeclaration that the Presidentis unable to discharge thepowers and duties of his office,Congress shall decide the issue.

Congress determines by a 2/3vote of both houses, votingseparately, that the President

is unable to discharge thepowers and dutes of his office,the Vice-President shall act asPresident; otherwise, thePresident shall continueexercising the powers andduties of his office

Congress shall convene, if notin session, within 48 hours. Andif within 10 days from receipt

of the last written declarationor, if not in session, within 12days after it is required toassemble.



Constitutional duty of Congress in case of vacancyin the offices of President and Vice-President

At 10 o‘clock in the morning of the 3rd day after thevacancy occurs, Congress shall convene without needof a call, and within 7 days enact a law calling for aspecial election to elect a President and a Vice-President to be held not earlier than 45 nor more

than 60 days from the time of such call. The billshall be deemed certified and shall become law uponits approval on third reading by Congress. xxx theConvening of Congress cannot be suspended nor thespecial election postponed. xxx No special electionshall be called if the vacancy occurs within 18months before the date of the next presidentialelection.

Vice-PresidentSec. 9 Art. VII The President shall nominate a Vice-President from among the members of the Senateand the House of Representatives who shall assumeoffice upon confirmation by a majority vote of allthe members of both houses of Congress voting

separately.

D. Judicial DepartmentI. ConceptsII. Judicial Indepdence SafeguardsIII. Judicial RestraintIV. Appointments to the JudiciaryV. Supreme Court

I. Concepts

a. Judicial Power (Section 1, Article VIII)

Judicial power includes the duty of the courts ofjustice to:(a) settle actual controversies involving rights which

are legally demandable and enforceable, and(b) to determine whether or not there has been a

grave abuse of discretion amounting to lack orexcess of jurisdiction on the part of any branchor instrumentality of the Government.

The second clause effectively limits the doctrine of―political question‖.

Vested in: Supreme Court and in such lower courts

as may be established by law.

b. Judicial Review JUDICIAL POWER JUDICIAL

REVIEWWherevested

Supreme CourtLower courts

Supreme CourtLower courts

Definition Duty to settleactualcontroversiesinvolving rightswhich are legallydemandable and

Power of thecourts to test thevalidity ofexecutive andlegislative acts inlight of their

JUDICIAL POWER JUDICIALREVIEW

enforceable, andto determinewhether or notthere has been agrave abuse ofdiscretionamounting to lackor excess ofjurisdiction on the

part of any branchor instrumentalityof the Government[Art. VIII, Sec. 1,Par. 2]

conformity withthe Constitution[Angara v.ElectoralCommission(1936)]

Requisites for exercise

Jurisdiction – power to decideand hear a caseand execute adecision thereof

1. Appropriatecase: actualcase orcontroversy

2. Standing:personal andsubstantialinterest

3. Question raisedat the earliest

opportunity4. Lis mota of the

case

When the judiciary mediates to allocateconstitutional boundaries, it does not assert anysuperiority over the other departments; it does notin reality nullify or invalidate an act of thelegislature, but only asserts the solemn and sacredobligation assigned to it by the Constitution todetermine conflicting claims of authority under theConstitution and to establish for the parties in anactual controversy the rights which that instrumentsecures and guarantees to them. This is in truth all

that is involved in what is termed "judicialupremacy" which properly is the power of judicialreview under the Constitution. (Angara v. ElectoralCommission, 1936)

Functions of Judicial Reviewi. Checkingii. Legitimatingiii. Symbolic

Essential Requisites for Judicial Review

a. Actual case or controversy

This means that there must be a genuine conflict of

legal rights and interests which can be resolvedthrough judicial determination. (John Hay vs. Lim,2003)

This precludes the courts from entertaining thefollowing:

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

ii. Cases that are or have become moot andacademic, UNLESS ---a. there is a grave violation of the Constitution;




b. the exceptional character of the situation andthe paramount public interest is involved;

c. when constitutional issue raised requiresformulation of controlling principles toguide the bench, the bar, and the public;

d. fourth, the case is capable of repetition yetevading review.[capable of repetition yetevading review [Alunan III v. Mirasol,(1997); Sanlakas v. Executive Secretary,(2004)]; or

e. when the court feels called upon to exerciseits symbolic function and provide futureguidance [Salonga v. Paño, (1985)]

b. Standing: NOT the same as “real party ininterest”

A proper party is one who has sustained or is inimminent danger of sustaining a direct injury as aresult of the act complained of (IBP v. Zamora,2000). The alleged injury must also be capable ofbeing redressed by a favorable judgment [Tolentinov. Comelec, 2004].

i. Requires partial consideration of the merits ofthe case in view of its constitutional and publicpolicy underpinnings [Kilosbayan vs Morato,(1995)]

ii. May be brushed aside by the court as a mereprocedural 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 of Congress arebeing impaired (Philconsa vs Enriquez,1994).

Citizens, when the enforcement of a publicright is involved Tañada vs Tuvera, (1985).

c. Constitutional question must be raised at theearliest possible opportunity, except:i. in criminal cases, at the discretion of the courtii. in civil cases, if necessary for the determination

of the case itselfiii. when the jurisdiction of the court is involved

d. Decision on the constitutional question must be

determinative of the case itself.The reason for this is the doctrine of separation of powers which requires that due respect be given tothe co-equal branches, and because of the graveconsequences of a declaration of unconstitutionality.(De la Llana v. Alba, 1982)

(1) Operative Fact Doctrine

Even if a law was stricken off as unconstitutional,courts shall still give recognition to its operativeeffects that inhered when it still took effect.

Although the orthodox view holds that

unconstitutional laws cannot be the basis of anylegal right or duty, it is not sufficiently realistic inadmitting that prior to the declaration of nullity,such challenged act must have been in force and hadto be complied with. Refusing to recognize what hadtranspired prior to such adjudication will deprive thelaw of its quality of fairness and justice.

The actual existence of a stature, prior to such adetermination of unconstitutionality, is an operative

fact and may have consequences which cannot bejustly ignored. [De Agbayani v. PNB (1971)]

Effect of a Declaration of Unconstitutionalitya. Orthodox view An unconstitutional act is not a law; it confers norights; it imposes no duties; it affords no protection;it creates no office; it is inoperative, as if it had notbeen passed at all.

b. Modern view Pelaez v. Auditor General, (1965)

Certain legal effects of the statute prior toits declaration of unconstitutionality may

be recognized. [NACHURA]

(2) Moot QuestionsOne requirement for the exercise of judicial power isthe ripeness of the controversy. This means it must be raised not too early that

it is conjectural or anticipatory, nor too latethat it becomes moot. HOWEVER, there areexceptions to the mootness doctrine: When theissue is capable of repetition yet evadingreview.

(3) Political Question Doctrine

The term ―political question‖ refers to: (1)

matters to be exercised by the people in their primary political capacity ; or (2) thosespecifically delegated to some other department or particular office of thegovernment, with discretionary power to act.It is concerned with issues dependent upon thewisdom, not legality, of a particular measure. [Tañada v. Cuenco, (1957)]

In recent years, the Court has set aside thisdoctrine and assumed jurisdiction whenever itfound constitutionally-imposed limits on theexercise of powers conferred upon theLegislative and Executive branches [BERNAS] .

POLITICAL QUESTION JUSTICIABLECONTROVERSY Alejandrino v. Quezon,(1924): The legislature‘sexercise of disciplinarypower over its memberis not to be interferedwith by the Court.

Avelino v. Cuenco,(1949): election ofSenate President wasdone without therequired quorum

Vera v. Avelino, (1946):inherent right of thelegislature to determinewho shall be admitted toits membership

Tañada v. Cuenco,(1957): The selection ofthe members of theSenate Electoral Tribunalis subject to




POLITICAL QUESTION JUSTICIABLECONTROVERSY

constitutionallimitations.

Mabanag v. Lopez-Vito,(1947): Proposal toamend the Constitutionis a highly politicalfunction performed byCongress in its sovereigncapacity.

Cunanan v. Tan, Jr.,(1962): The Commissionon Appointments is aconstitutional creationand does not derive itspower from Congress.

Osmeña v. Pendatun,(1960): disciplinarypower of the legislature

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

Severino v. Governor-General, (1910):Mandamus andinjunction could not lieto enforce or restrain aduty which isdiscretionary (calling aspecial local election).

Lansang v. Garcia,(1971): Suspension of theprivilege of the writ ofhabeas corpus is not apolitical question.

Montenegro v.Castañeda, (1952):Authority to decidewhether the exigencyhas arisen requiring thesuspension of theprivilege of the writ ofhabeas corpus belongs tothe President.

Javellana v. ExecutiveSecretary, (1973): WONthe 1973 Constitutionhad been ratified inaccordance with the1935 Constitution isjusticiable.

Manalang v. Quitoriano,(1954): President‘sappointing power is notto be interfered with bythe Court. Javellana v. ExecutiveSecretary, (1973): Thepeople may be deemedto have cast theirfavorable votes in thebelief that in doing sothey did the partrequired of them byArticle XV, hence, it maybe said that in itspolitical aspect, which iswhat counts most, afterall, said Article has beensubstantially compliedwith, and, in effect, the

1973 Constitution hasbeen constitutionallyratified.

II. Constitutional Safeguards of theSupreme Court

(1) The SC is a constitutional body. It cannot beabolished nor may its membership or themanner of its meetings be changed by merelegislation. [Art. VIII, Sec. 4 (1)]

(2) The members of the judiciary are not subjectto confirmation by the CA.

(3) The members of the SC may not be removedexcept by impeachment. (Art. IX, Sec. 2.)

(4) The SC may not be deprived of its minimumoriginal and appellate jurisdiction asprescribed in Art. X, Sec. 5 of the Consti.(Art. VIII, Sec. 2.)

(5) The appellate jurisdiction of the SC may notbe increased by law w/o its advice andconcurrence. (Art. VI, Sec. 30.)

(6) The SC now has administrative supervisionover all lower courts and their personnel.(Art. VIII, Sec. 6.)

(7) The SC has exclusive power to disciplinejudges of lower courts. (Art. VIII, Sec. 11.)

(8) The members of the SC and all lower courtshave security of tenure, w/c cannot be

undermined by a law reorganizing thejudiciary. (Id.)

(9) They shall not be designated to any agencyperforming quasi-judicial or administrativefunctions. (Art. VIII, Sec. 12.)

(10) The salaries of judges may not be reducedduring their continuance in office. (Art. VIII,Sec. 10.)

(11) The judiciary shall enjoy fiscal autonomy.(Art. VIII, Sec. 3.)

Fiscal autonomy means freedom from

outside control. As the Court explainedin Bengzon v. Drilon: As envisioned inthe Constitution, the fiscal autonomyenjoyed by the Judiciary, the CivilService Commission and theCommission on Audit, the Commissionon Elections, and the Office of theOmbudsman contemplates a guaranteeof full flexibility to allocate and utilizetheir resources with the wisdom anddispatch that their needs require. Itrecognizes the power and authority tolevy, assess and collect fees, fix ratesof compensation not exceeding thehighest rates authorized by law forcompensation and pay plans of thegovernment and allocate and disbursesuch sums as may be provided by law orprescribed by them in the course of thedischarge of their functions. (In re:Clarifying and Strengthening theOrganizational Structure and Set-up of the Philippine Judicial Academy, A.M.No. 01-1-04-SC).

(12) The SC alone may initiate rules of court. [Art.VIII, Sec. 5 (5).]




(13) Only the SC may order the temporary detail ofjudges. [Art. VIII, Sec. 5 (3)]

(14) The SC can appoint all officials and employeesof the judiciary. [Art. VIII, Sec. 5 (6)]

III. Judicial Restraint

The judiciary will not interfere with its co-equal

branches in cases of:i. When there is no showing of a grave abuse of discretion(1) issue is a political question

ii. There is no showing of grave abuse of discretion(1) PPA v. Court of Appeals: If there is noshowing of grave abuse of discretion on the partof a branch or instrumentality of thegovernment, the court will decline exercising itspower of judicial review.

Courts will not rule on the WISDOM of thedecision of a separate branch or department.

Courts will only judge whether or not there hasbeen grave abuse of discretion amounting tolack or excess of jurisdiction.

(2) Chavez v. COMELEC: Judicial review shallinvolve only those resulting to grave abuse ofdiscretion by virtue of an agency‘s quasi-judicialpowers, and not those arising from itsadministrative functions.

iii. The issue is a political question.Even when all requisites for justiciability hasbeen met, judicial review will not be exercisedwhen the issue involves a political question.

Mabanag v. Lopez Vito: Proposals for revisionor amendment of the Constitution dulycertified by the legislative authority shallbe binding and conclusive upon the courtsunder the ―enrolled bill rule.‖ o The validity of a proposal which leads

to ratification of an amendment to theConstitution is a political question.

o A duly authenticated copy of aCongressional Resolution proposing anamendment to the Constitution isconclusive upon the Courts under theEnrolled Bill Rule.

o An enrolled bill is a bill duly certified

by the President of the Senate and theSpeaker of the House as having beenpassed in accordance with the rulesstated in the Constitution.

Reversed in Gonzales vs. COMELEC: WhetherCongress or a Constitutional convention hasproperly proposed amendments to theConstitution is a justiciable and not apolitical question.

Alejandrino v. Quezon: Mandamus will not lieagainst the legislative body, its members,

or its officers, to compel the performanceof duties purely legislative in theircharacter which therefore pertain to theirlegislative functions over which they haveexclusive control.

Baker v. Carr: Guidelines for determiningwhether a question is political or not:o There is a textually demonstrable

constitutional commitment of the issue

to a political department;o Lack of judicially discoverable and

manageable standards for resolving it;o The impossibility of deciding without an

initial policy determination of a kindclearly for non-judicial discretion;

o Impossibility of a court‘s undertakingindependent resolution withoutexpressing lack of the respect duecoordinate branches of government;

o An unusual need for unquestioningadherence to a political decisionalready made;

o Potentiality of embarrassment from

multifarious pronouncements by variousdepartments on one question

IV. Appointments to the Judiciary

Synthesis of Constituional and Statutory Qualifications

SC andCA

JUSTICE

RTCJUDGE

MTC/MCTCJUDGE

Citizenship Natural-bornFilipino

Filipino

Age At least

40 yearsold

At least

35 yearsold

At least

30 yearsoldExperience 15 years

or moreas ajudge ora lowercourt or has beenengagedin thepracticeof law inthe Phils.for the

sameperiod

Has been engagedfor at least 5 years inthe practice of law *in the Philippines or has held publicoffice in thePhilippines requiringadmission to thepractice of law as anindispensablerequisite

Tenure Hold office during good behavioruntil they reach the age of 70 or become incapacitated todischarge their duties

Characteristics Person of proven competence,integrity, probity andindependence

*“Practice of law” is not con fined to litigation. Itmeans any activity in and out of court, whichrequires the application of law, legal procedure,




knowledge, training and experience. [Cayetano v.Monsod, (1991)]

Subtopic 1. Constitutional Requirements (cannot be reduced by law)

Supreme Court Justice:(1) Natural born citizens(2) At least 40 years of age(3) Enagaged in the practice of law or a judge

of of 15 years or more(4) Must be of proven competence, integrity,

probity and independence.

Lower Collegiate Courts(1) Natural born citizens(2) Member of the Philippine Bar(3) Must be of proven competence, integrity,

probity and independence(4) Such additional requirements provided by

law.

Lower Courts(1) Natural born citizens

(2) Member of the Philippine Bar(3) Must be of proven competence, integrity,probity and independence.

(4) Such additional requirements provided bylaw.

Note: In the case of judges of the lower courts, theCongress may prescribe other qualifications. (ArtVIII, Sec. 7(3).

Subtopic 2. Judicial and Bar Council

Composition:Ex-officio members [Art. VIII, Sec. 8(1)]

(1) Chief Justice as ex-officio Chairman(2) Secretary of Justice(3) Representative of Congress

Regular members [Art. VIII, Sec. 8(1)]

(4) Representative of the Integrated Bar(5) Professor of Law(6) Retired member of the SC(7) Representative of private sector

Secretary ex-officio [Art. VIII, Sec. 8(3)]- Clerkof the SC, who shall keep a record of its proceedings

Appointment, Tenure, Salary of JBC Members

(1) Ex-officio members - For obvious reasons thisdoes not apply since the position in theCouncil is good only while the person is theoccupant of the office.

(2) Regular members [Art. VIII, Sec. 8(2)] - Theregular members shall be appointed by thePresident with the consent of the Commissionon Appointments. The term of the regularmembers is 4 years.

But the term of those initially appointed shallbe staggered in the following way so as tocreate continuity in the council:

IBP representative - 4 yearsLaw professor - 3 yearsRetired justice - 2 yearsPrivate sector - 1 year

Primary function: Recommend appointees to the

judiciary, May exercise such other functions andduties as the SC may assign to it. [Art. VIII, Sec. 8(5)]

Subtopic 3. Procedure of Appointment

(1) The JBC shall submit a list of three nomineesfor every vacancy to the President. [Art. VIII,Sec. 9]

(2) Any vacancy in the Supreme Court shall befiled within ninety (90) days from theoccurrence thereof. [Art. VIII, Sec. 4(1)]

(3) For lower courts, the President shall issue theappointment within ninety (90) days from thesubmission by the JBC of such list. [Art. VIII,

Sec. 9]. Relate this to the constitutionalprohibition against midnightappointments. The Court in the case ofDe Castro v. JBC, [G. R. No. 191002,March 17, 2010 ] ruled that theprohibition against midnightappointment applies only to positions inthe executive department. Thus, theappointment of Chief Justice Coronawas held valid. This ruling effectivelyoverruled In re: Mateo Valenzuela [ A.M.No. 98-5-01-SC, November 9, 1998]which extended the prohibition formidnight appointments to the

judiciary.

Subtopic 4. Disqualification from Other Positions or OfficesArt. VIII, Sec. 12. The Members of the SupremeCourt and of other courts established by law shallnot be designated to any agency performing quasi-judicial or administrative functions.

It was held that the SC and its members shouldnot and cannot be required to exercise anypower or to perform any trust or to assume anyduty not pertaining to or connected w/ theadministering of judicial functions. [Meralco vs

Pasay 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)]

Subtopic 5. Composition of the SupremeCourt

(1) Chief Justice and 14 Associate Justices(2) May sit en banc or in divisions of three, five,




or seven Members(3) Vacancy shall be filled within 90 days from

the occurrence thereof

En Banc and Division Cases

En banc - decided with the concurrence of amajority of the Members who actually took part inthe deliberations and voted.

Instances when the SC sits en banc: (C-DD-MM-PO)(1) Those involving the constitutionality,

application, or operation of: (TOIL-PIPOO) Treaty Orders International or executive agreement Law Presidential decrees Instructions Proclamations Ordinances Other regulations

(2) Exercise of the power to discipline judges of

lower courts, or order their dismissal [Art. VIII,Sec. 11]

(3) Cases or matters heard by a division where therequired number of votes to decide or resolve(the majority of those who took part in thedeliberations on the issues in the case and votedthereon and in no case less than 3 members) isnot met [Art. VIII, Sec. 4(3)]

(4) Modifying or reversing a doctrine or principle oflaw laid down by the court in a decisionrendered en banc or in division [Art. VIII, Sec.4(3)]

(5) Actions instituted by citizen to test the validityof a proclamation of martial law or suspensionof the privilege of the writ [Art. VII, Sec. 18]

(6) When sitting as Presidential Electoral Tribunal[Art. VII, Sec. 4, par. 7]

(7) All other cases which under the Rules of Courtare required to be heard by the SC en banc.[Id., Sec. 4(2)]

In divisionsRequirement and Procedures:

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

(2) In no case without the concurrence of at leastthree of such Members

(3) When required number is not obtained, thecase shall be decided en banc:

Provided: that no doctrine or principleof law laid down by the court in adecision rendered en banc or in divisionmay be modified or reversed except bythe court sitting en banc

The Supreme Court sitting en banc is not an

appellate court vis-à-vis its Divisions. The onlyconstraint is that any doctrine or principle of lawlaid down by the Court, either rendered en bancor in division, may be overturned or reversed onlyby the Court sitting en banc.[ Firestone Ceramicsv. CA, (2000)]

Subtopic 6. Procedural 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 admissionto the practice of law, the integrated bar, and legalassistance to the under-privileged.

The 1987 Constitution took away the power ofCongress to repeal, alter, or supplement rulesconcerning pleading, practice and procedure. Infine, the power to promulgate rules of pleading,practice and procedure is no longer shared by thisCourt with Congress, more so with the

Executive. [Echegaray vs Secretary of Justice,(1999)]

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

Subtopic 7. Administrative Supervision Over Lower Courts

Administrative Powers of the Supreme Court

(1) Assign temporarily judges of lower courts toother stations as public interest may require; shall not exceed 6 months without the

consent of the judge concerned(2) Order a change of venue or place of trial to

avoid a miscarriage of justice;(3) Appoint all officials and employees of the

Judiciary in accordance with the Civil ServiceLaw;

(4) Supervision over all courts and the personnelthereof;

(5) 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 and

voted [en banc].

Grounds Removal from Office on Impeachment of Members of the SC(Art. XI, Sec. 2)i. Culpable violation of the Constitutionii. Treasoniii. Briberyiv. Graft and corruptionv. Other high crimesvi. Betrayal of public trust




F. Constitutional CommissionsI. Institutional Independence SafeguardsII. Powers and FunctionsIII. Judicial Review

Commission on Election Commission on Audit Civil Service Commission

I. Institutional IndependenceSafeguards

The three constitutional commissions performkey functions in the government. In order toprotect their integrity, they have been madeconstitutional bodies.

Because they perform vital functions in thegovernment, it is essential that theirindependence be protected against outsideinfluences and political pressures.

Hence, the following institutional safeguards:

(1) They are constitutionally created, hencemay not be abolished by statute.

(2) Each commission is vested with powers andfunctions which cannot be reduced bystatute.

(3) Independent constitutional bodies.(4) The Chairmen and members cannot be

removed except by impeachment.(5) Fixed term of office of 7 years.(6) The Chairmen and members may not be

appointed in an acting capacity.(7) The salaries of the Chairmen and may not

be decreased during their tenure.

(8) The Commissions enjoy fiscal autonomy.(9) Each Commission may promulgate its own

procedural rules, provided they do notdiminish, increase or modify substantiverights [though subject to disapproval by theSupreme Court].

(10) The Commission may appoint their ownofficials and employees in accordance withCivil Service Law.

Prohibitions: No members of the ConstitutionalCommissions shall, during their tenure:

(1) Hold any other office or employment. This issimilar to the prohibition against executiveofficers. It applies to both public and

private offices and employment.

(2) Engage in the practice of any profession.

(3) Engage in the active management or controlof any busi¬ness which in any way may beaffected by the functions of his office.

(4) Be financially interested, directly orindirectly, in any contract with, or in anyfranchise or privilege granted by, theGovernment, its subdivisions, agencies or

instrumentalities, including GOCCs or theirsubsidiaries.

II. Powers and Functions

Civil Service Commission

Art. IX-B, Sec. 3. The Civil Service Commission, asthe central personnel agency of the Government,

shall establish a career service and adopt measuresto promote morale, efficiency, integrity,responsiveness, progressiveness, and courtesy in thecivil service. It shall strengthen the merit and rewards system, integrate all human resourcesdevelopment programs for all levels and ranks, andinstitutionalize a management climate conduciveto public accountability . It shall submit to thePresident and the Congress an annual report on itspersonnel programs.

Functions:(1) In the exercise of its powers to implement R.A.

6850 (granting civil service eligibility toemployees under provisional or temporary status

who have rendered seven years of efficientservice), the CSC enjoys a wide latitude ofdiscretion, and may not be compelled bymandamus. [Torregoza v. Civil ServiceCommission, 211 SCRA 230] .

(2) Under the Administrative Code of 1987, theCivil Service Commission has the power to hearand decide administrative cases institutedbefore it directly or on appeal, includingcontested appointments.

(3) The Commission has original jurisdiction to hearand decide a complaint for cheating in the CivilService examinations committed by governmentemployees. [Cruz v. CSC, G.R. No. 144464, Nov.

22, 2001] (4) It is the intent of the Civil Service Law, inrequiring the establishment of a grievanceprocedure, that decisions of lower level officials(in cases involving personnel actions) beappealed to the agency head, then to the CivilService Commission. [Olanda v. Bugayong, G.R.No. 140917, Oct. 10, 2003].

Scope of the Civil Service: Embraces all branches,subdivisions, instrumentalities and agencies of theGovernment, including GOCCs with original charters.[Sec. 2(1), Art. IX-B] .

The University of the Philippines, having anoriginal charter, is clearly part of the CSC.

[UP v. Regino, 221 SCRA 598]

Composition: A Chairman and 2 Commissioners

Qualifications:(1) Natural-born citizens of the Philippines;(2) At the time of their appointment, at least 35

years of age;(3) With proven capacity for public administration;

and(4) Must not have been candidates for any elective

position in the election immediately precedingtheir election.




Classes of Service:(1) Career Service – Characterized by entrance

based on merit and fitness to be determined, asfar as practicable by competitive examinations,or based on highly technical qualifications;opportunity for advancement to higher careerpositions; and security of tenure.

a. Open career positions – where priorqualification in an appropriate

examination is required.b. Closed career positions – e.g. scientific

or highly technical in nature;c. Career Executive Service – e.g.

undersecretaries, bureau directorsd. Career Officers – other than those

belonging to the Career ExecutiveService who are appointed by thePresident, e.g. those in the foreignservice

e. Positions in the AFP although governedby a different merit system

f. Personnel of GOCCs with originalcharters

g. Permanent laborers, whether skilled,semi-skilled or unskilled.

(2) Non-career Service – characterized by entranceon bases other than those of the usual testsutilized for the career service; tenure limited toa period specified by law, or which is co-terminus with that of the appointing authority orsubject to his pleasure, or which is limited tothe duration of a particular project for whichpurpose the employment was made.

a. Elective officials, and their personaland confidential staff;

b. Department heads and officials ofCabinet rank who hold office at the

pleasure of the President, and theirpersonal and confidential staff;

c. Chairmen and members of commissionsand bureaus with fixed terms;

d. Contractual personnel;e. Emergency and seasonal personnel.

Appointments in the Civil ServiceGeneral Rule: Made only according to merit andfitness to be determined, as far as practicable, bycompetitive examination.

Exceptions:(1) Policy determining – where the officer lays down

principal or fundamental guidelines or rules; orformulates a method of action for governmentor any of its subdivisions. E.g. department head.

(2) Primarily confidential – denoting not onlyconfidence in the aptitude of the appointee forthe duties of the office but primarily closeintimacy which ensures freedom of intercoursewithout embarrassment or freedom frommisgivings or betrayals on confidential mattersof state [De los Santos v. Mallare, 87 Phil 289] ;OR one declared to be so by the President of thePhilippines upon the recommendation of the CSC[Salazar v. Mathay, 73 SCRA 285] .

(3) Highly technical – requires possession oftechnical skill or training in supreme degree. [Delos Santos v. Mallare, supra]

Disqualifications:(1) No candidate who has lost in any election shall

within 1 year after such election, be appointedto any office in the Government of any GOCC orin any of its subsidiaries. [Sec. 6, Art. IX-B]

(2) No elective official shall be eligible for

appointment or designation in any capacity toany public office or position during his tenure.[Sec. 7(1), Art. IX-B] .

(3) Unless otherwise allowed by law or by theprimary functions of his position, no appointiveofficial shall hold any other office oremployment in the Government or anysubdivision agency or instrumentality thereofincluding GOCCs or their subsidiaries. [Sec. 7(2), Art IX-B]

(4) No office or employee in the civil service shallengage directly or indirectly, in anyelectioneering or partisan political activity. [Sec.2(4), Art. IX-B]

Commission on Election

Functions and Powers

(1) Enforce all laws relating to the conduct ofelection, plebiscite, initiative, referendum andrecall.

Initiative – the power of the people to proposeamendments to the Constitution or to propose andenact legislation through an election called for thatpurpose. There are 3 systems of initiative: Initiativeon the Constitution, initiative on statutes, andinitiative on local legislation[Sec. 2(a), R.A. 6735].

Referendum – is the power of the electorate toapprove or reject legislation through an lectioncalled for that purpose. There are 2 classes:referendum on statutes or referendum on local laws.[Sec. 2(c), R.A. 6735] .

Recall – is the termination of official relationship ofa local elective official for loss of confidence prior tothe expiration of his term through the will of theelectorate.

Plebiscite – is the submission of constitutionalamendments or important legislative measures tothe people for ratification.

(2) Recommend to the Congress effective measuresto minimize election spending, and to preventand penalize all forms of election frauds,offenses, malpractices, and nuisancecandidacies.

(3) Submit to the President and the Congress, acomprehensive report on the conduct of eachelection, plebiscite, initiative, referendum, orrecall.

Power to declare failure of election – The




COMELEC may exercise such power muto proprioor upon a verified petition, and the hearing ofthe case shall be summary in nature. The SCheld that there are only 3 instances where afailure of elections may be declared: (a) theelection in any polling place has not been heldon the date fixed on account of force majeure,violence, terrorism, fraud, or other analogouscauses; (b) the election in any poling place hadbeen suspended before the hour fixed by law for

the closing of the voting on account of forcemajeure, violence, fraud, or other analogouscauses; and (c) after the voting and during thepreparation and transmission of the electionreturns or in the custody or canvass thereofsuch election results in a failure to elect onaccount of force majeure, violence, terrorism,fraud or other analogous causes. [Sison v.COMELEC, G.R. No. 134096, March 3, 1999]

(4) Decide administrative questions pertaining toelection except the right to vote.

(5) File petitions in court for inclusion or exclusion

of voters.

(6) Investigate and prosecute cases of violations ofelection laws.

The COMELEC has exclusive jurisdiction toinvestigate and prosecute cases for violations ofelection laws. [De Jesus v. People, 120 SCRA760]

Thus, the trial court was in error when itdismissed an information filed by the ElectionSupervisor because the latter failed to complywith the order of the Court to secure theconcurrence of the Prosecutor. [People v. Inting,

187 SCRA 788]. However, the COMELEC mayvalidly delegate this power to the ProvincialFiscal. [People v. Judge Basilia 179 SCRA 87]

(7) Recommend pardon, amnesty, parole orsuspension of sentence of election law violators.

(8) Deputize law enforcement agencies andinstrumentalities of the Government for theexclusive purpose of ensuring free, orderly,honest, peaceful, and credible elections.

(9) Recommend to the President the removal of anyofficer or employee it has deputized forviolation or disregard of, or disobedience to itsdirective.

(10) Registration of political parties, organizationsand coalitions and accreditation of citizens‘arms.

(11) Regulation of public utilities and media ofinformation. The law limits the right of freespeech and of access to mass media of thecandidates themselves. The limitationhowever, bears a clear and reasonableconnection with the objective set out in theConstitution. For it is precisely in the unlimited

purchase of print space and radio and televisiontime that the resources of the financiallyaffluent candidates are likely to make a crucialdifference. The purpose is to ensure "equalopportunity, time, and space, and the right toreply," as well as uniform and reasonable ratesof charges for the use of such media facilities,in connection with "public informationcampaigns and forums among candidates."[National Press Club vs Comelec, (1992)]

Note: The SC held that this power may beexercised only over the media, not overpractitioners of media. Thus, the SC invalidateda COMELEC resolution prohibiting radio and TVcommentators and newspaper columnists fromcommenting on the issues involved in theforthcoming plebiscite for the ratification of theorganic law establishing the CAR. [Sanidad v.COMELEC, 181 SCRA 529]

(12) Decide election cases

Art. IX-C, Sec. 3. The Commission on Elections

may sit en banc or in two divisions, and shallpromulgate its rules of procedure in order toexpedite disposition of election cases, includingpre- proclamation controversies. All suchelection cases shall be heard and decided indivision, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.

Cases which must be heard by division All election cases, including pre-proclamation

contests originally cognizable by theCommission in the exercise of its powersunder Sec. 2(2), Art IX-C.

Jurisdiction over a petition to cancel a

certificate of candidacy. Even cases appealed from the RTC or MTC

have to be heard and decided in Divisionbefore they may be heard en banc.

Note:If the COMELEC exercises its quasi-judicialfunctions then the case must be heard through adivision.

If the COMELEC exercises its administrativefunctions then it must act en banc. [Buatista v.COMELEC, 414 SCRA 299 (2003)].

Composition: A Chairman and 6 Commissioners.

Qualifications:(1) Must be natural-born citizens;(2) At least 35 years of age;(3) Holders of a college degree;(4) Have not been candidates in the

immediately preceding election;(5) Majority, including the Chairman, must be

members of the Philippine Bar who havebeen engaged in the practice of law for atleast 10 years. [Sec. 1, Art. IX-C] .

Commission on Audit




Powers and Functions(1) Examine, audit, and settle accounts pertaining

to Government funds or property: its revenue,receipts, expenditures, and uses 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

through the Government, which arerequired by law or the granting institutionto submit such audit as a condition ofsubsidy or equity.

(2) Exclusive Authority Define the scope of its audit and examination; Establish techniques and methods required ; Promulgate accounting and auditing rules and

regulations.

Note: Art. IX-D, Sec. 3. No law shall be passedexempting any entity of the Government or itssubsidiaries in any guise whatever, or any

investment of public funds, from the jurisdiction ofthe Commission on Audit.

Composition: A Chairman and 2 Commissioners

Qualifications:(1) Natural born Filipino citizens(2) At least 35 years of age(3) CPAs with not less than 10 years of auditing

experience or members of the Philippinebar with at least 10 years practice of law

Note: At no time shall all members belong tothe same profession.

III. Judicial Review

a. Quasi-Judicial Functions

Article IX-A, Section 7. Each Commission shalldecide by a majority vote of all its Members, anycase or matter brought before it within sixty daysfrom the date of its submission for decision orresolution. A case or matter is deemed submitted fordecision or resolution upon the filing of the lastpleading, brief, or memorandum required by therules of the Commission or by the Commission itself.Unless otherwise provided by this Constitution or bylaw, any decision, order, or ruling of eachCommission may be brought to the Supreme Court oncertiorari by the aggrieved party within thirty daysfrom receipt of a copy thereof.

Decisions – Each Commission shall decide by amajority vote of all its members [NOT only thosewho participated in the deliberations] any case ormatter brought before it within 60 days from thedate of its submission for decision or resolution.[Sec. 7, Art. IX-A]

Any decision, order or ruling of each

Commission may be brought to the SC on

certiorari by the aggrieved party within 30

days from receipt of the copy thereof.

Certiorari jurisdiction of the Supreme Court:Limited to decisions rendered in actions orproceedings taken cognizance of by the Commissionsin the exercise of their quasi-judicial powers.

The Court exercises extraordinary jurisdiction,thus, the proceeding is limited only to issuesinvolving grave abuse of discretion resultingin lack or excess of jurisdiction, and doesnot ordinarily empower the Court to reviewthe factual findings of the Commission.[Aratuc v. COMELEC, G.R. No. 133676, April14, 1999]

Synthesis on the Rules of Modes of Review(1) Decisions, order or ruling of the Commissions in

the exercise of their quasi-judicial functionsmay be reviewed by the Supreme Court.

(2) The mode of review is a petition for certiorariunder Rule 64 (not Rule 65).

(3) The Rules of Civil Procedure, however, providesfor a different legal route in the case of the

Commission on Civil Service. In the case ofCSC, Rule 43 will be applied, and the case willbe brought to the Court of Appeals.

b. Administrative

Each Commission shall appoint its own officials inaccordance with law (Art IX-A, Section 4)

Each Commission en banc may promulgate its ownrules concerning pleadings and practices before it(Art IX-A, Section 6)

o But these rules shall not diminish, increase ormodify substantive rights

Each Commission shall perform such other functionsas may be provided by law (Art IX-A, Section 8)

G. Citizenship1. Natural-Born Citizens and Public Office2. Naturalization and Denaturalization3. Loss of Citizenship4. Repatriation

(Asked 25 times in the Bar)

Who are citizens?(1) Citizens of the Philippines at the time of the

adoption of this Constitution;(2) Those whose fathers or mothers are citizens of

the Philippines;(3) Those who elected to be citizens. This is

available only to: those born before January 17, 1973, to Filipino mothers, and elect Philippine citizenship upon reaching

the age of majority(4) Those naturalized in accordance with law.




ARTICLE IV, Section 1 (3), 1987 Constitution is alsoapplicable to those who are born to Filipino mothersand elected Philippine citizenship before February 2,1987.

This is to correct the anomalous situation where oneborn of a Filipino father and an alien mother wasautomatically granted the status of a natural-borncitizen, while one born of a Filipino mother and analien father would still have to elect Philippine

citizenship. [Co v. Electoral Tribunal of the House of Representatives (1991)]

Who were the citizens of the Philippines at the timeof the adoption of the 1987 Constitution?

To answer this question, we have to go back to 1973Constitution.

Citizens under the 1973 Constitution(1) Those who are citizens of the Philippines at

the time of the adoption of thisConstitution;

(2) Those whose fathers or mothers are citizens

of the Philippines;(3) Those who elect Philippine citizenshippursuant to the provisions of theConstitution of 1935; and

(4) Those who are naturalized in accordancewith law. [Sec.1(1), Art. III]

Citizens under the 1935 Constitution(1) Those who are citizens at the time of the

adoption of this Constitution;(2) Those born in the Philippine Islands of

foreign parents who, before the adoption ofthis Constitution, had been elected topublic office in the Philippine Islands;

(3) Those whose mothers are citizens of the

Philippines and, upon reaching the age ofmajority, elect Philippine citizenship;

(4) Those who are naturalized in accordancewith law. [Sec. 1, Art. IV]

The following persons were citizens of thePhilippines on May 14, 1935 – the date of theadoption of the 1935 Constitution:

(1) Persons born in the Philippine Islands whoresided therein on April 11, 1899 and wereSpanish subjects on that date, unless theyhad lost their Philippine citizenship on orbefore May 14, 1935.

(2) Natives of the Spanish Peninsula whoresided in the Philippines on April 11, 1899,and who did not declare their intention ofpreserving their Spanish nationalitybetween that date and October 11, 1900,unless they had lost their Philippinecitizenship on or before May 14, 1935.

(3) Naturalized citizens of Spain who resided inthe Philippines on April 11, 1899, and didnot declare their intention to preserve theirSpanish nationality within the prescribedperiod (up to October 11, 1900).

(4) Children born of (1), (2) and (3) subsequentto April 11, 1899, unless they lost their

Philippine citizenship on or before May 14,1935.

(5) Persons who became naturalized citizens ofthe Philippines in accordance ofnaturalization law since its enactment onMarch 26, 1920.

1. Natural-Born Citizens and Public

Office

Natural-born(1) citizens of the Philippines from birth without

having to perform any act to acquire or perfecttheir Philippine citizenship; and

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

The term "natural-born citizens," is defined toinclude "those who are citizens of thePhilippines from birth without having toperform any act to acquire or perfect theirPhilippine citizenship." [Tecson vs COMELEC(2004)]

Only two, i.e., jus soli and jus sanguinis, couldqualify a person to being a "natural-born" citizen ofthe Philippines. Jus soli, per Roa vs. Collector ofCustoms (1912), did not last long. With the adoptionof the 1935 Constitution and the reversal of Roa inTan Chong vs. Secretary of Labor (1947), jussanguinis or blood relationship would now becomethe primary basis of citizenship by birth.

Who must be Natural-Born?(1) President (Sec. 2, Art VII)(2) Vice-President (Sec. 3, Art VII)(3) Members of Congress (Secs. 3 and 6, Art VI)

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

(5) Ombudsman and his deputies (Sec. 8, Art XI)(6) Members of Constitutional Commissions(7) CSC (Sec. 1 (1), Art IX B)(8) COMELEC (Sec. 1 (1) Art IX C)(9) COA (Sec. 1 (1), Art IX D)(10) Members of the Central Monetary Authority

(Sec. 20, Art XII)(11) Members of the Commission on Human Rights

(Sec. 17 (2), Art XIII)

2. Naturalization andDenaturalization

How may citizenship be reacquired? (1) Naturalization (CA No. 63 and CA No. 473)

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

(b) requirements: be 21 years of age be a resident for 6 months have good moral character have no disqualification




Naturalization is never final and may be revokedif one commits acts of moral turpitude.[Republic vs Guy (1982)]

(2) RepatriationNOTE: Please see subsection 4 for further discussion

(3) Legislative ActBoth a mode of acquiring and reacquiringcitizenship

Dual Allegiance(1) aliens who are naturalized as Filipinos but

remain loyal to their country of origin (citesource)

(2) public officers who, while serving thegovernment, seek citizenship in another country

disqualified from running for any elective localposition. (Sec 40d, Local Government Code)

Once a candidate files his candidacy, he isdeemed to have renounced his foreigncitizenship in case of dual citizenship. [Mercadovs Manzano (1999)]

(1) Clearly, in including §5 in Article IV oncitizenship, the concern of the ConstitutionalCommission was not with dual citizens per sebut with naturalized citizens who maintain theirallegiance to their countries 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 as referringto “dual allegiance.”

(2) Consequently, persons with mere dualcitizenship do not fall under thisdisqualification. Unlike those with dualallegiance, who must, therefore, be subject tostrict process with respect to the termination of

their status, for candidates with dualcitizenship, it should suffice if, upon the filingof their certificates of candidacy, they electPhilippine citizenship to terminate their status as persons with dual citizenship considering thattheir condition is the unavoidable consequenceof conflicting laws of different states.

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

Sec. 3. Retention of Philippine Citizenship. — Anyprovision of law to the contrary notwithstanding,natural-born citizens of the Philippines who have losttheir Philippine citizenship by reason of their

naturalization as citizens of a foreign country arehereby deemed to have re-acquired Philippinecitizenship upon taking the following oath ofallegiance to the Republic: xxx

Natural-born citizens of the Philippines who, afterthe effectivity of this Act, become citizens of aforeign country shall retain their Philippinecitizenship upon taking the aforesaid oath.

Sec. 4. Derivative Citizenship. — The unmarriedchild, whether legitimate, illegitimate or adopted,below eighteen (18) years of age, of those who re-

acquire Philippine citizenship upon effectivity of thisAct shall be deemed citizens of the Philippines.

Sec. 5. Civil and Political Rights and Liabilities. — Those who retain or re-acquire Philippine citizenshipunder this Act shall enjoy full civil and politicalrights and be subject to all attendant liabilities andresponsibilities under existing laws of the Philippinesand the following conditions:(1) Those intending to exercise their right of

suffrage must meet the requirements under Sec.1, Art. V of the Constitution, RA 9189, otherwiseknown as "The Overseas Absentee Voting Act of2003" and other existing laws;

(2) Those seeking elective public office in thePhilippines shall meet the qualifications forholding such public office as required by theConstitution and existing laws and, at the timeof the filing of the certificate of candidacy,make a personal and sworn renunciation of anyand all foreign citizenship before any publicofficer authorized to administer an oath;

(3) Those appointed to any public office shallsubscribe and swear to an oath of allegiance to

the Republic of the Philippines and its dulyconstituted authorities prior to their assumptionof office: provided, that they renounce theiroath of allegiance to the country where theytook that oath;

(4) Those intending to practice their profession inthe Philippines shall apply with the properauthority for a license or permit to engage insuch practice; and

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

office in the country of which they arenaturalized citizens; and/or

b) are in active service as commissioned or non-commissioned officers in the armed forcesof the country which they are naturalizedcitizens.

3. Loss of Citizenship

Grounds for Loss of Citizenship(1) Naturalization in a foreign country [Sec.1 (1),

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

CA 63];(3) Taking an oath of allegiance to another country

upon reaching the age of majority;

(4) Accepting a commission and serving in thearmed forces of another country, unless there isan offensive/ defensive pact with the country,or it maintains armed forces in RP with RP‘sconsent;

(5) Denaturalization;(6) Being found by final judgment to be a deserter

of the AFP;(7) Marriage by a Filipino woman to an alien, if by

the laws of her husband‘s country, she becomesa citizen thereof.

Expatriation is a constitutional right. No one can be




compelled to remain a Filipino if he does not wantto. [Go Gullian vs Government]

EXCEPTION: A Filipino may not divest himself ofPhilippine citizenship in any manner while theRepublic of the Philippines is at war with anycountry. (Sec. 1 (3), Com. Act No. 63)

Aznar v COMELEC (1995):Loss of Philippine citizenship cannot be presumed .

Considering the fact that admittedly, Osmeña wasboth a Filipino and an American, the mere fact thathe has a certificate stating that he is an Americandoes not mean that he is not still a Filipino, sincethere has been NO EXPRESS renunciation of hisPhilippine citizenship. [Aznar vs COMELEC (1995)]

4. Repatriation

Repatriation results in the recovery of theoriginal nationality. Therefore, if he is anatural-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 candidacy is 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, andcannot, amount to an automaticreacquisition of the applicant‘s Philippinecitizenship. [Labo vs COMELEC (1989)]

H. National Economy & Patrimony1. Regalian Doctrine2. Nationalist and Citizenship Requirement

Provisions3. Exploration, Development and Utilization of

Natural Resources4. Franchises, Authority and Certificates for

Public Utilities5. Acquisition, Ownership and Transfer of

Public and Private Lands6. Practice of Professions7. Organization and Regulation of Corporations,

Private and Public8. Monopolies, Restraint of Trade and Unfair

Competition

General Principles

Goals(1) More equitable distribution of opportunities,

income and wealth(2) Sustained increase in amount of goods and

services produced by the nation for the benefitof the people

(3) Expanding production as the key to raising thequality of life for all, especially theunderprivileged.

1. Regalian DoctrinePlease refer to next page

2. Nationalist and CitizenshipRequirement Provisions

Citizenship Requirements

100% Filipino 60-40 70-30

Marine Wealth[Art. XII, Sec. 2,par. 2]

NaturalResources [Art.XII, Sec. 2, par.1](Co-production,Joint venture,Productionsharingagreemenents)

Agreementsshall not exceeda period of 25years renewablefor another 25

years.

AdvertisingIndustry [Art.XVI, Sec. 11]

Agriculturallands [Art. XII,Sec. 3]o Lease: <500 ha.o Purchase,homestead orgrant: < 12 ha.o Privatecorporationsmay lease notmore than1,000 ha. for 25

years,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]

Small-scaleutilization ofnaturalresources (as

may beprovided bylaw) [Art. XII,Sec. 2, par. 3]

Operation ofpublic utility[Art. XII, Sec.11]o Cannot befor longerperiod than 50yearso Executiveand managingofficers must beFilipino

A public utility is a business or service engagedin regularly supplying the public with somecommodity or service of public consequence. Ajoint venture falls within the purview of an




―association‖ pursuant to Sec. 11, Art. XII; thusa joint venture which would engage in thebusiness of operating a public utility mustcomply with the 60%-40% Filipino-foreigncapitalization requirement. [JG SummitHoldings v. CA, (2000)]

Filipino First

Art. XII, Sec. 10. In the grant of rights, privileges,and concessions covering the national economy andpatrimony, the State shall give preference toqualified Filipinos.

The State shall regulate and exercise authority overforeign investments within its national jurisdictionand in accordance with its national goals andpriorities.

The term ―patrimony‖ pertains to heritage,and given the history of the Manila Hotel, it hasbecome a part of our national economy andpatrimony. Thus, the Filipino First policyprovision of the Constitution is applicable. Suchprovision is per se enforceable, and requires

no further guidelines or implementing rules orlaws for its operation. [Manila Prince Hotel v.GSIS, (1997)]

Art. XII, Sec. 12. The State shall promote thepreferential use of Filipino labor, domestic materialsand locally produced goods, and adopt measuresthat help make them competitive.

Natural Resources

Regalian Doctrine [ Jura Regalia] The King had title to all the land in the

Philippines except so far as it saw fit to permit

private titles to be acquired. [Cariño v. Insular Government, (1909)]. In present context,ownership of all lands of the public domain isvested in the State.

As in previous Constitutions, the 1987Constitution adheres to this doctrine asillustrated by this section:

Art. XII, Sec. 2. All lands of the public domain,waters, minerals, coal, petroleum, and othermineral oils, all forces of potential energy, fisheries,forests or timber, wildlife, flora and fauna, andother natural resources are owned by the State.With the exception of agricultural lands, all othernatural resources shall not be alienated.

Under the Regalian Doctrine, all lands nototherwise clearly appearing to be privatelyowned are presumed to belong to the State. Theclassification of public lands is an exclusiveprerogative of the Executive Departmentthrough the Office of the President. [Republic v.Register of Deeds of Quezon, (1994)]

3. Exploration, Development andUtilization of Natural Resources

Art. XII, Sec. 2, par. 4. The President may enterinto agreements with foreign-owned corporationsinvolving either technical or financial assistance for large-scale exploration, development, andutilization of minerals, petroleum, and other mineraloils according to the general terms and conditionsprovided by law, based on real contributions to theeconomic growth and general welfare of thecountry. In such agreements, the State shall promotethe development and use of local scientific andtechnical resources.

The State, being the owner of the natural resources,is accorded the primary power and responsibility inthe exploration, development and utilizationthereof. As such it may undertake these activitiesthrough four modes:

(1) The State may directly undertake suchactivities;

(2) The State may enter into co-production,joint venture or production-sharingagreements with Filipino citizens orqualified corporations;

(3) Congress may, by law, allow small-scale

utilization of natural resources by Filipinocitizens; or

(4) For the large-scale exploration,development and utilization of minerals,petroleum and other mineral oils, thePresident may enter into agreements withforeign-owned corporations involvingtechnical or financial assistance. [LaBugal-B’Laan Tribal Assn. v. Ramos,(Jan,2004)]

FTAA(1987 Const.)

SERVICECONTRACT(1973 Const.)

Parties Only thePresident (inbehalf of theState), andonly withcorporations

A Filipino citizen,corporation or association witha ―foreign personor entity‖

Size of Activities

Only large-scale exploration,developmentand utilization

Contractor provides allnecessary services and technology andthe requisitefinancing,performs theexploration work

obligations, andassumes allexploration risks

NaturalResourcesCovered

Minerals,petroleum andother mineraloils

Virtually theentire range ofthe country‘snatural resources

Scope of theAgreements

Involvingeither financial or technicalassistance

Contractorprovides financialor technicalresources,undertakes theexploitation or




FTAA(1987 Const.)

SERVICECONTRACT(1973 Const.) production of agiven resource,or directly manages theproductiveenterprise,operations of the

exploration andexploitation of theresources or thedisposition ofmarketing 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 alegally foreign-owned corporation shall be

deemed a qualified person for purposes ofgranting an exploration permit, FTAA or mineralprocessing permit

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 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 theconstitutionality 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 grantthe President 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 sympathizewith the plight of La Bugal B‘laan and other tribalgroups, and commend their efforts to uplift theircommunities. However, the Court cannot justifythe invalidation of an otherwise constitutional

statute along with its implementing rules, or thenullification of an otherwise legal and bindingFTAA contract.

The Court believes that it is not unconstitutional toallow a wide degree of discretion to the Chief Executive, given the nature and complexity of suchagreements, the humongous amounts of capital andfinancing required for large-scale mining operations,the complicated technology needed, and the

intricacies 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 ofthis control standard, the Court upholds theconstitutionality of the Philippine Mining Law, itsImplementing Rules and Regulations -- insofar asthey relate to financial and technical agreements --as well as the subject Financial and TechnicalAssistance Agreement (FTAA). [La Bugal-B’laanTribal Assn. v. Ramos, (Dec. 2004)]

4. Franchises, Authority andCertificates for Public Utilities

Franchise, certificate or any other form of authorization for the operation of public utilities – ONLY to citizens of the Philippines, or corporationsat least 60% of whose capital is Filipino-owned. [Sec.11, Art. XII]

Nature of the franchise:(1) It is a privilege not a right(2) Shall NOT be exclusive;(3) Shall NOT be for a period of more than 50 years;(3) Shall be subject to amendment, alteration orrepeal by Congress. [Sec.11, Art. XII]

Jurisprudence:(1) The Congress does not have the exclusive power

to issue franchises. Administrative bodies (i.e.LTFRB, Energy Regulatory Board) may beempowered by law to do so. [Albano v. Reyes,175 SCRA 264]

(2) What constitutes a public utility is not theownership but the use to the public. TheConstitution requires a franchise for theoperation of public utilities. However, it doesnot require a franchise before one can own thefacilities needed to operate a public utility solong as it does not operate them to serve thepublic. [Tatad v. Garcia] E.g. X Company mayown an airline without the need of a franchise.But in operating an air transport business,franchise is required.

(3) A joint venture falls within the purview of an―association‖ pursuant to Sec. 11, Art. XII; thusa joint venture which would engage in thebusiness of operating a public utility, such asshipyard, most comply with the 60%-40% rule.[JG Summit Holdings v. Court of Appeals, G.R.No. 124293, Nov. 2, 2000]




5. Acquisition, Ownership andTransfer of Public and Private Lands

Lands of the Public Domain are classified into:(1) Agricultural Lands(2) Forest or Timber Lands(3) Mineral Lands(4) National Park [Sec. 3, Art. XII]

Note: The classification of public lands is a functionof the executive branch, specifically the Director ofthe Land Management Bureau (formerly Director ofLands). The decision of the Director, when approvedby the Secretary of the DENR, as to questions offact, is conclusive upon the courts. [Republic v.Imperial, G.R. No. 130906, February 11, 1999] .

Alienable lands of the public domain shall belimited to agricultural lands. [Sec. 3, Art. XII]

To prove that the land subject of anapplication for registration is alienable, anapplicant must conclusively establish the

existence of a positive act of thegovernment such as a presidentialproclamation or an executive order or alegislative act or statute. [Republic v.Candymaker, Inc. G.R. No. 163766, June 22,2006]

Foreshore land is that part of the land whichis between the high and low water, and leftdry by the flux and reflux of the tides. It ispart of the alienable land of the publicdomain and may be disposed of only bylease and not otherwise. [Republic v.Imperial, G.R. No. 130906, February 11,1999]

Private corporations or associations may not

hold such alienable lands of public domainexcept by lease, for a period not exceeding25 years, and not to exceed 1000 hectaresin area.

Citizens of the Philippines may lease not morethan 500 has, or acquire not more than 12hectares thereof by purchase, homestead,or grant. [Sec. 3, Art. XII]

Private Lands

GENERAL RULENo private lands shall be transferred or conveyedexcept to individuals, corporations, or associationsqualified to acquire or hold lands of the publicdomain. [Sec. 7, Art. XII]

EXCEPTIONS(1) Hereditary succession [Sec. 7, Art. XII] (2) A natural-born citizen of the Philippines who has

lost his Philippine citizenship may be atransferee of private lands, subject tolimitations provided by law. [Sec. 8, Art. XII]

Consequence of sale to non-citizens: Any sale ortransfer in violation of the prohibition is null andvoid. [Ong Ching Po. V. CA]

Query: Can a former owner file an action to recover the property?

YES. The Court in Philippine Banking Corp. v. LuiShe, (21 SCRA 52) abandoned the application of theprinciple of in pari delicto. Thus, the action will lie.

HOWEVER, land sold to an alien which was latertransferred to a Filipino citizen OR when the alienlater becomes a Filipino citizen can no longer be

recovered by the vendor, because there is no longerany public policy involved. [Republic v. IAC, 175SCRA 398]

6. Practice of Professions

The practice of ALL profession in the Philippinesshall be limited to Filipino citizens, save in the caseprescribed by law. [Sec. 12, Art. XII]

7. Organization and Regulation of Corporations, Private and Public

Stewardship ConceptArt. XII, Sec. 6. The use of property bears a socialfunction, and all economic agents shall contribute tothe common good.

Individuals and private groups, includingcorporations, cooperatives, and similar collectiveorganizations, shall have the right to own, establish,and operate economic enterprises, subject to theduty of the State to promote distributive justice andto intervene when the common good so demands.

Art. XIII, Sec. 6. The State shall apply the principlesof agrarian reform or stewardship, whenever

applicable in accordance with law,

in the disposition or utilization of other naturalresources, including lands of the public domainunder lease or concession suitable to agriculture,

subject to prior rights, homestead rights of smallsettlers, and the rights of indigenous communities totheir ancestral lands.

8. Monopolies, Restraint of Trade andUnfair Competition

Monopolies

Art. XIII, Sec. 19. The State shall regulate orprohibit monopolies when the public interest sorequires. No combinations in restraint of trade orunfair competition shall be allowed.

Although the Constitution enshrines freeenterprise as a policy, it nevertheless reservesto the Government the power to intervenewhenever necessary for the promotion of thegeneral welfare. [Philippine Coconut Dessicatorsv. PCA, (1998)]

Monopolies are not per se prohibited by the




Constitution but may be permitted to exist toaid the government in carrying on an enterpriseor to aid in the performance of various servicesand functions in the interest of the public.Nonetheless, a determination must first bemade as to whether public interest requires amonopoly. As monopolies are subject to abusesthat can inflict severe prejudice to the public,they are subject to a higher level of Stateregulation than an ordinary business

undertaking. [Agan, Jr. v. PIATCO, (2003)]

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 be

provided 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 existinglaws, shall function as the central monetaryauthority.

I. Social Justice & Human Rights

1.

Concepts of Social Justice2. Commission on Human Rights

1. Concept of Social Justice

1987 Phil. Constitution

Article 2, Section 10. The State shall promote socialjustice in all phases of national development.

Article 13, Section 1. The Congress shall givehighest priority to the enactment of measures thatprotect and enhance the right of all the people tohuman dignity, reduce social, economic, andpolitical inequalities, and remove cultural inequities

by equitably diffusing wealth and political power forthe common good.

To this end, the State shall regulate the acquisition,ownership, use, and disposition of property and itsincrements.

Article 13, Section 2. The promotion of socialjustice shall include the commitment to createeconomic opportunities based on freedom ofinitiative and self-reliance.

Calalang vs. Williams (GR 47800, 2 December 1940):

Social justice is "neither communism, nor despotism,nor atomism, nor anarchy," but the humanization oflaws and the equalization of social and economicforces by the State so that justice in its rational andobjectively secular conception may at least beapproximated. Social justice means the promotion ofthe welfare of all the people, the adoption by theGovernment of measures calculated to insureeconomic stability of all the competent elements ofsociety, through the maintenance of a proper

economic and social equilibrium in the interrelationsof the members of the community, constitutionally,through the adoption of measures legally justifiable,or extra-constitutionally, through the exercise ofpowers underlying the existence of all governmentson the time-honored principle of salus populi estsuprema lex. Social justice, therefore, must befounded on the recognition of the necessity ofinterdependence among divers and diverse units of asociety and of the protection that should be equallyand evenly extended to all groups as a combinedforce in our social and economic life, consistent withthe fundamental and paramount objective of thestate of promoting the health, comfort, and quiet of

all persons, and of bringing about "the greatest goodto the greatest number."

2. Commission on Human Rights

1987 Phil. Constitution

Article 13, Section 17.(1) There is hereby created an independent office

called the Commission on Human Rights.(2) The Commission shall be composed of a

Chairman and four Members who must benatural-born citizens of the Philippines and amajority of whom shall be members of the Bar.The term of office and other qualifications and

disabilities of the Members of the Commissionshall be provided by law.(3) Until this Commission is constituted, the existing

Presidential Committee on Human Rights shallcontinue to exercise its present functions andpowers.

(4) The approved annual appropriations of theCommission shall be automatically and regularlyreleased.

Article 13, Section 18. The Commission on HumanRights shall have the following powers and functions:(1) Investigate, on its own or on complaint by any

party, all forms of human rights violationsinvolving civil and political rights;

(2) Adopt its operational guidelines and rules ofprocedure, and cite for contempt for violationsthereof in accordance with the Rules of Court;

(3) Provide appropriate legal measures for theprotection of human rights of all persons withinthe Philippines, as well as Filipinos residingabroad, and provide for preventive measuresand legal aid services to the under-privilegedwhose human rights have been violated or needprotection;

(4) Exercise visitorial powers over jails, prisons, ordetention facilities;




(5) Establish a continuing program of research,education, and information to enhance respectfor the primacy of human rights;

(6) Recommend to Congress effective measures topromote human rights and to provide forcompensation to victims of violations of humanrights, or their families;

(7) Monitor the Philippine Government's compliancewith international treaty obligations on humanrights;

(8) Grant immunity from prosecution to any personwhose testimony or whose possession ofdocuments or other evidence is necessary orconvenient to determine the truth in anyinvestigation conducted by it or under itsauthority;

(9) Request the assistance of any department,bureau, office, or agency in the performance ofits functions;

(10) Appoint its officers and employees inaccordance with law; and

(11) Perform such other duties and functions as maybe provided by law.

Cariño vs. CHR (G.R. No. 96681 December 2, 1991):As should at once be observed, only the first of theenumerated powers and functions bears anyresemblance to adjudication or adjudgment. TheConstitution clearly and categorically grants to theCommission the power to investigate all forms of human rights violations involving civil and politicalrights…But it cannot try and decide cases (or hearand determine causes) as courts of justice, or evenquasi-judicial bodies do. To investigate is not toadjudicate or adjudge. Whether in the popular orthe technical sense, these terms have wellunderstood and quite distinct meanings.

J. Education, Science, Technology,Arts, Culture and Sports1. Academic Freedom

1. Academic Freedom

1987 Phil. Constitution, Article 14, Section 5.(2) Academic freedom shall be enjoyed in allinstitutions of higher learning.

DLSU Inc., vs CA (G.R. No. 127980, December 19,2007):

Section 5(2), Article XIV of the Constitutionguaranties all institutions of higher learningacademic freedom. This institutional academicfreedom includes the right of the school or collegeto decide for itself, its aims and objectives, and howbest to attain them free from outside coercion orinterference save possibly when the overridingpublic interest calls for some restraint. According topresent jurisprudence, academic freedomencompasses the independence of an academicinstitution to determine for itself (1) who mayteach, (2) what may be taught, (3) how it shallteach, and (4) who may be admitted to study.

It cannot be gainsaid that "the school has an interestin teaching the student discipline, a necessary, if notindispensable, value in any field of learning. Byinstilling discipline, the school teaches discipline.Accordingly, the right to discipline the studentlikewise finds basis in the freedom "what toteach." Indeed, while it is categorically stated underthe Education Act of 1982 that students have a right"to freely choose their field of study, subject toexisting curricula and to continue their course

therein up to graduation," such right is subject tothe established academic and disciplinary standardslaid down by the academic institution.








COMMITTEE HEADS











OPERATIONS HEADS








POLITICAL LAW TEAM 2012Faculty Editor | Florin T. HilbaSubject Heads| RogelioBenjamin Redoble • MoisesRonette ColobongContributors| Alferri BayalanCielo Gono • Noel Luciano


Meneses • Jenin Velasquez • Mara Villegas • Naomi QuimpLeslie Octaviano • Yas RefranCris BernardinoLayout Head| Graciello TimotReyes




Constitutional Law 2POLITICAL LAW





A. Fundamental Powers of the StateB. Private Acts and the Bill of RightsC. Due ProcessD. Equal ProtectionE. Searches and SeizuresF. Privacy of Communications and

CorrespondenceG. Freedom of ExpressionH. Freedom of ReligionI. Liberty of Abode and Freedom of

MovementJ. Right to InformationK. Right to AssociationL. Eminent DomainM. Contract ClauseN. Legal Assistance and Free Access to

CourtsO. Rights of SuspectsP. Rights of the AccusedQ. Writ of Habeas CorpusR. Writ of AmparoS. Self-Incrimination ClauseT. Involuntary Servitude and Political

PrisonersU. Excessive Fines and Cruel and

Inhuman PunishmentsV. U.Non-Imprisonment for DebtsW. Double JeopardyX. Ex Post Facto Laws and Bills of

Attainder

A. Fundamental Powers of theState1. Concept and Application

2. Requisites for Valid Exercise3. Similarities and Differences4. Delegation

1. Concept and Application

Police Power

a. Definition

It is the inherent and plenary power of the state which enables it to prohibit all that is hurtful to thecomfort, safety and welfare of society. [Ermita-Malate Hotel and Motel Operators Association, Inc.

vs. Mayor of Manila (1967)]

b. Scope and Limitations

General Coverage"The police power of the State," one court has said,"is a power coextensive with self-protection, and isnot inaptly termed the 'law of overruling necessity.' [Rubi vs. Provincial Board (1919)]

It may be said to be that inherent and plenary powerin the State which enables it to prohibit all thingshurtful to the comfort, safety and welfare of

society." [Lake View vs. Rose Hill Cemetery Co.(1873)]

…the state, in order to promote the general welfare,may interfere with personal liberty, with property,and with business and occupations. Persons may besubjected to all kinds of restraints and burdens, inorder to secure the general comfort health andprosperity of the state and to this fundamental aimof our Government, the rights of the individual are

subordinated. [Ortigas & Co., Limited Partnershipvs. Feati Bank and Trust Co. (1979)]

...has been properly characterized as the mostessential, insistent and the least limitable ofpowers, [Ermita-Malate Hotel and Motel Operators Assoc. vs. Mayor of Manila (1967) Cf. Ichong v.Hernandez, (1957)] extending as it does " to all thegreat public needs." [Noble State Bank vs. Haskell,219 U.S. 412]

Police Power cannot be bargained away throughtreaty or contract. [Ichong v. Hernandez (1957)]

Taxation may be used as an implement of policepower [Lutz v. Araneta (1955); Tiu v. VideogramRegulatory Board, 151 SCRA 208; Gaston v. RepublicPlanters Bank, 158 SCRA 626; Osmena v. Orbos, 220 SCRA 703]

Eminent domain may be used as an implement toattain the police objective [Association of SmallLandowners v. Secretary of Agrarian Reform (1989)]

Police power prevails over contracts. [PNB v. Officeof the President (1996)]

Specific Coverage(1) Public Health

(2) Public Morals(3) Public Safety(4) Public Welfare

Test of Reasonability(1) Lawful subject(2) Lawful means(3) Least restrictions of individual right.

The limit to police power is reasonability. The Courtlooks at the test of reasonability to decide whetherit encroaches on the right of an individual. So long aslegitimate means can reasonably lead to create thatend, it is reasonable. [Morfe vs. Mutuc (1968)]

The legislative determination “as to what is a properexercise of its police powers is not final orconclusive, but is subject to the supervision of thecourt.‖ [US vs. Toribio (1910) citing Mr. JusticeBrown in his opinion in the case of Lawton vs.Steele (152 U.S., 133, 136)]

The proper exercise of Police Power requirescompliance with the following requisites: (a) theinterests of the public generally, as distinguishedfrom those of a particular class, require theinterference by the State; and (b) the meansemployed are reasonably necessary for the




attainment of the object sought and not undulyoppressive upon individuals. [Lucena Grand CentralTerminal v. JAC Liner (2005)]

The SC Upheld the validity of Administrative Orderswhich converted existing mine leases and othermining agreements into production-sharingagreements within one year from effectivity. Thesubject sought to be governed by the AOs aregermane to the object and purpose of E.O. 279 and

that mining leases or agreements granted by theState are subject to alterations through a reasonableexercise of police power of the State. [Miners Association of the Philippines v. Factoran, 240 SCRA100]

c. Illustrations on the Exercise of Police Power

General Welfare

RA 9257, the Expanded Senior Citizens Act of 2003,is a legitimate exercise of police power.Administrative Order No. 177 issued by theDepartment of Health, providing that the 20%

discount privilege of senior citizens shall not belimited to the purchase of unbranded genericmedicine but shall extend to both prescription andnon-prescription medicine, whether branded orgeneric, is valid. When conditions so demand, asdetermined by the legislature, property rights mustbow to the primacy of police power becauseproperty rights, though sheltered by the due processclause, must yield to the general welfare. [CarlosSuperdrug Corporation v. DSWC et al. G.R. No.166494, June 29, 2007]

National Security

SC upheld the constitutionality of RA 1180 (An Act to

Regulate the Retail Business) which sought tonationalize the retail trade business by prohibitingaliens in general from engaging directly or indirectlyin the retail trade. Aliens did not question theexercise of police power; they claim, however, thatthere was a violation of the due process and equalprotection clauses. [Ichong vs. Hernandez (1957)]

Scope of the police power: Since the Courts cannotforesee the needs and demands of public interestand welfare, they cannot delimit beforehand theextent or scope of the police power by which andthrough which the state seeks to attain or achievepublic interest and welfare.

Police power and national security: ―The disputedlaw was enacted to remedy a real actual threat anddanger to national economy posed by aliendominance and control of the retail business; theenactment clearly falls within the scope of thepolice power of the State, thru which and by whichit protects its own personality and insures itssecurity and future.‖

Public Safety

Agustin questions President Marcos‘ Letter of Instruction No. 229 compelling owners of motor

vehicles to install specific early warning devices toreduce road accidents. Agustin already installedwarning devices in his car but they were not thesame ones specified in the LOI. He argued that thesaid LOI violated the police power of the state forbeing oppressive, arbitrary and unconscionable.

Police power, public safety: The Court identifiedpolice power as a dynamic agency, suitably vagueand far from precisely defined, rooted in the

conception that men in organizing the state andimposing upon its government limitations tosafeguard constitutional rights did not intend toenable an individual citizen or a group of citizens toobstruct unreasonably the enactment of suchsalutary measures calculated to communal peace,safety, good order, and welfare. According to theCourt, a heavy burden lies in the hands of thepetitioner who questions the state‘s police power if it was clearly intended to promote public safety.[Agustin vs. Edu, (1979)]

Public Morals

Ermita Malate Hotel and Motel Operations Assoc.assails the constitutionality of Ordinance No. 4760.

The grounds adduced were: (1) unreasonable andviolative of due process insofar as it would imposedifferent fees for different classes of hotels/motelsand prohibit 18 year-olds from being accepted insuch hotels, unless accompanied by parents or alawful guardian and making it unlawful for theowner, manager, keeper or duly authorizedrepresentative of such establishments to lease anyroom or portion more than twice every 24 hours, and(2) invasion of the right to privacy and the guarantyagainst self-incrimination because it requires clientsto fill up the prescribed form in a lobby open to

public view at all times and in his presence, whereinpersonal information are mandated to be divulged.

Police power, public morals: The mantle ofprotection associated with the due process guarantydoes not cover petitioners. This particularmanifestation of a police power measure beingspecifically aimed to safeguard public morals isimmune from such imputation of nullity restingpurely on conjecture and unsupported by anything ofsubstance. Police power is "that inherent andplenary power in the State which enables it toprohibit all that is hurtful to the comfort, safety,and welfare of society xxx There is no question butthat the challenged ordinance was precisely enactedto minimize certain practices hurtful to publicmorals. [Ermita-Malate Motel and Motel Operators Assn. vs. City Mayor of Manila (1967)]

The case of White Light vs. City of Manila wastermed by Justice Tinga as a ―middle case‖. It wasmeant to identify its case within a spectrum of casesdecided by the Supreme Court which dealt withordinances which has for its view the regulation ofpublic morals.

It is called a ―middle case‖ because unlike itspredecessors where the issue is either a wholesale




ban against hotels and motels or a reasonableregulatory device as the one found in Ermita-Malatevs. City of Manila, this is a case where the ordinancein question severely restricts the services of theabovementioned establishments.

The rationale started with an outline of the test of avalid ordinance i.e. it must be within the corporatepowers of the local government to enact and passand it must conform with substantive requirements.

A reading of the ordinance at bar would yield that itprohibits two practices: the wash-up rate admissionand renting out a room more than twice per day.

These prohibitions are anchored in the power of theLGU to implement ordinances hinged on the generalwelfare clause—the devolved aspect of police power.

This case churned out three standards for judicialreview: the STRICT SCRUTINY TEST for laws dealingwith freedom of the mind and curtailment ofpolitical process and the RATIONAL BASIS STANDARDOF REVIEW for economic legislation. A third standard

was created known as the IMMEDIATE SCRUTINY forevaluating standards based on gender andlegitimacy.

The Supreme Court justified the application of thestrict scrutiny test to this particular ordinancedespite its lack of political significance by sayingthat it is not gravitas alone which is sheltered by theBill of Rights. It is precisely these reflexive exercisesof fundamental acts which best reflect the degree ofliberty enjoyed.

Sexual behavior is one of these fundamental actscovered by the penumbra of rights. While the realityof illicit activity is judicially recognized, it cannot be

denied that sexual behavior between consentingadults is constitutionally protected.

Apart from the right to privacy, the ordinance alsoproscribes other legitimate activities most of whichare grounded on the convenience of having a placeto stay during the short intervals between travels.

The Ordinance was struck down as an arbitraryintrusion to private rights. It made no distinctionbetween lodgings and placed every establishment assusceptible to illicit patronage. [Cf. White LightCorporation, et al vs. City of Manila (2009)]

Eminent Domain

a. Definition and Scope

The power of eminent domain is the inherent rightof the State to condemn private property to publicuse upon payment of just compensation. It alsoknown as the power of expropriation.

It is well settled that eminent domain is an inherentpower of the state that need not be granted even bythe fundamental law. Sec. 9, Art. III merely imposesa limit on the government‘s exercise of this power.[Republic v. Tagle, G.R. No. 129079, Dec. 2, 1998].

b. Who may exercise the powerCongress and, by delegation, the President,administrative bodies, local government units, andeven private enterprises performing public servicesmay exercise the power of eminent domain.

The exercise of the right of eminent domain,whether directly by the state or by its authorizedagents, is necessarily in derogation of private rights.

Hence, strict construction will be made against theagency exercising the power. [Jesus is the Lord Christian School Foundation v. Mun. of Pasig, G.R.No. 152230, Aug. 9, 2005]

Taxation

a. Definition and Scope

It is the enforced proportional contributions frompersons and property, levied by the State by virtueof its sovereignty, for the support of the governmentand for all public needs.

It is as broad as the purpose for which it is given.

Purpose:(1) To raise revenue(2) Tool for regulation(3) Protection/power to keep alive

Tax for special purpose [Sec. 29 (3), Art. VI] :Treated as a special fund and paid out for suchpurpose only; when purpose is fulfilled, the balance,if any shall be transferred to the general funds ofthe Government. See: Osmena v. Orbos, 220 SCRA703

Scope and Limitation

General Limitations(1) Power to tax exists for the general welfare;

should be exercised only for a public purpose

(2) might be justified as for public purposeeven if the immediate beneficiaries areprivate individuals

(3) 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 for

the public welfare might be seriouslycurtailed

(4) Taxes should be uniform and equitable [Sec.28(1), Art. VI]

The legislature has discretion to determine thenature, object, extent, coverage, and situs oftaxation. But where a tax measure becomes sounconscionable and unjust as to amount toconfiscation of property, courts will not hesitate tostrike it down, for despite all its plenitude, thepower to tax cannot override constitutionalprescriptions. [Tan v. del Rosario, 237 SCRA 324]




Specific Limitations(1) Uniformity of taxation:

GENERAL RULE: simply geographical uniformity, meaning it operates with thesame force and effect in every place wherethe subject of it is found

EXCEPTION: rule does not prohibitclassification for purposes of taxation,

provided the ff requisites are met:(SNAGAE)

(a) standards used are substantial andnot arbitrary

(b) if the classification is germane toachieve the legislative purpose

(c) if that classification applies toboth present and futureconditions, other circumstancesbeing equal

(d) applies equally to members of thesame class. [Pepsi Cola v. City of Butuan].

(2) Tax Exemptions

No law granting any tax exemption shall be passedwithout the concurrence of a majority of all theMembers of Congress [Sec. 28 (4), Art. VI]

A corollary power but must be for a public purpose,uniform and equitable and in conformity with theequal protection clause

Tax exemptions are granted gratuitously and may berevoked at will, except when it was granted forvaluable consideration

May either be constitutional or statutory

If statutory, it has to have been passed by majorityof all the members of Congress [sec. 28 (4), Art. VI]

Constitutional exemptions [sec. 28(3), Art. VI]

(a) Educational institutions (bothprofit and non-profit): Benefitsredound to students, but onlyapplied to property taxes and notexcise taxes

All revenues and assets of non-stock, non-profiteducational institutions used actually, directly andexclusively for educational purposes shall be exemptfrom taxes and duties. xxx Proprietary educationalinstitutions, including those co-operatively owned,may likewise be entitled to such exemptions subjectto the limitations provided by law includingrestrictions on dividends and provisions forreinvestment. [Sec. 4(3), Art. XIV]

Subject to conditions prescribed by law, all grants,endowments, donations, or contributions usedactually, directly and exclusively for educationalpurposes shall be exempt from tax.

(b) Charitable institutions: Religiousand charitable institutions giveconsiderable assistance to theState in the improvement of themorality of the people and thecare of the indigent and thehandicapped

(c) Religious property: CharitableInstitutions, churches, and

parsonages or conventsappurtenant thereto, mosques,non-profit cemeteries, and alllands, buildings and improvements,actually, directly and exclusivelyused for religious, charitable oreducational purposes shall beexempt from taxation. [Sec. 28 (3), Art. VI]

2. Requisites for Valid Exercise

Police Power

Tests for Validity of Exercise of Police Power(1) LAWFUL SUBJECT: Interest of the general

public (as distinguished from a particularclass required exercise). This means thatthe activity or property sought to beregulated affects the general welfare. [seeTaxicab Operators v. Board of Transportation, 119 SCRA 597]

(2) LAWFUL MEANS: Means employed arereasonably necessary for theaccomplishment of the purpose, and are notunduly oppressive. [see Tablarin v.Gutierrez, 152 SCRA 730]

(3) Least restrictions of individual rights.

Additional Limitations when police power isdelegated.

(1) Express grant by law [e.g. Secs. 16, 391,447, 458 and 468, R.A. 7160, for LGUs]

(2) Limited within its territorial jurisdiction [forlocal government units]

(3) Must not be contrary to law.

Eminent Domain

a. Requisites for a valid taking [Republic v.Castelvi, 58 SCRA 336] :

(1) The expropriator must enter a private

property

All private property capable of ownershipmay be expropriated, except money andchoses in action. [Republic v. PLDT, 26SCRA 620]

(2) Entry must be for more than a momentary period

(3) Entry must be under warrant or color of legal authority




(4) Property must be devoted to public use orotherwise informally appropriated orinjuriously affected

Utilization of the property must be in such a way asto oust the owner and deprive him of beneficialenjoyment of the property

When is there taking in the constitutional case?When the owner is deprived of his proprietary rights

there is taking of private property. Examples:(1) The imposition of a right-of-way easement

was held to be taking. The exercise of thepower of eminent domain does not alwaysresult in the taking or appropriation of titleto the expropriated property; it may alsoresult in the imposition of a burden uponthe owner of the condemned property,without loss of title or possession. [NPC v.Gutierrez, 193 SCRA 1]

(2) May include trespass without actual evictionof the owner, material impairment of thevalue of the property or prevention of theordinary uses for which the property was

intended. [Ayala de Roxas v. City of Manila,9 Phil 215] (3) A municipal ordinance prohibiting a building

which would impair the view of the plazafrom the highway was likewise consideredtaking. [People v. Fajardo, 104 Phil. 44]

b. Adequacy of compensationThe full and fair equivalent of the property taken; itis the fair market value of the property.

Fair market value – is the sum of money which aperson, desirous but not compelled to buy, and anowner, willing but not compelled to sell, wouldagree on as a price to be given and received

therefore.

However, where only a PORTION of the property istaken, the owner is entitled only to the market valueof the portion actually taken and the consequentialdamage to the remaining part.

Note: Just compensation means not only the correctamount to be paid but also payment withinreasonable time from its taking. [Esteban v. DeOnorio, G.R. No. 146062, June 28, 2001]

Taxation

Equal protection clause: taxes should be uniform(persons or things belonging to the same class shallbe taxed at the same rate) and equitable (taxesshould be apportioned among the people accordingto their ability to pay)

Progressive system of taxation: The rate increasesas the tax base increases, with basis as social justice

Taxation as an instrument for a moreequitable distribution of wealth

Delegated tax legislation: Congress may delegatelaw-making authority when the constitution itselfspecifically authorizes it.

3. Similarities and Differences

Similarities (Nachura)(1) Inherent in the State (Exercised even

without need of express constitutional

grant)(2) Necessary and indispensable (State cannotbe effective without them)

(3) Method by which state interferes withprivate property

(4) Presuppose equivalent compensation(5) Exercised primarily by the legislature

DifferencesPolicePower

EminentDomain

Taxation

Compensation

None(Thealtruisticfeeling

that onehascontributed to thepublicgood[NACHURA])

Justcompensation (Full and

fairequivalentof thepropertytaken)required.

None(Theprotectiongiven and

publicimprovementsinstitutedby theStatebecause ofthese taxes[NACHURA])

Use of Property

Notappropriated forpublic use

Appropriated forpublic use

Use taxingpower asanimplement

for theattainmentof alegitimatepoliceobjective—to regulatea businessor trade

Objective Todestroynoxiouspropertyor torestrain

thenoxioususe ofproperty

Propertytaken forpublic use;it is notnecessarilynoxious

Earnrevenuefor thegovernment

Coverage LibertyandProperty

Propertyrights only

Propertyrights only

Police power is the power of the State to promotepublic welfare by restraining and regulating the useof liberty and property. The power of eminentdomain is the inherent right of the state to condemn




private property to public use upon payment of justcompensation.

Although both police power and eminent domainhave the general welfare for their object, andrecent trends show a mingling of the two with thelatter being used as an implement of the former,there are still traditional distinctions between thetwo.

Property condemned under police power is usuallynoxious or intended for a noxious purpose, hence nocompensation is paid. Likewise in the exercise ofpolice power, property rights of individuals aresubjected to restraints and burdens in order tosecure the general comfort, health and prosperity ofthe State. Where a property interest is merelyrestricted because the continued use thereof wouldbe injurious to public interest, there is nocompensable taking.

However, when a property interest is appropriatedand applied to some public purpose, there is need topay just compensation. In the exercise of police

power, the State restricts the use of privateproperty, but none of the property interests in thebundles of rights which constitute ownership isappropriated for use by or for the benefit of thepublic. Use of the property by the owners is limited,but no aspect of the property used or for the benefitof the public. The deprivation of use can, in fact, betotal, and it will not constitute compensable takingif nobody else acquires use of the property or anyinterest therein. If, however, in the regulation ofthe use of the property, somebody else acquires theuse or interest thereof, such restriction constitutescompensable taking. [Dipidio Earth-SaversMultipurpose Association v. Gozun, G.R. No. 157882,March 30, 2006]

If the generation of revenue is the primary purposeand regulation is merely incidental, the imposition isa tax, but if regulation is the primary purpose, thefact that revenue is incidentally raised does notmake the imposition a tax. [Gerochi v. Departmentof Energy, G.R. No. 159796, July 17, 2007]

License Fee v. Tax

License Fee is paid for the privilege of doingsomething, and may be revoked when public interestso requires; Tax is imposed on persons of propertyfor revenue. [Compania General de Tabaco v. City of Manila, 8 SCRA 367]

Amount collected for a license fee is limited to thecost of permit and reasonable police regulation[Except when the license fee is imposed on a non-useful occupation, such as the practice of hygienicand aesthetic massage in Physical Therapy Organization v. Municipal Board of Manila (1957)].

4. Delegation

Police Power

a. Legislature

Police power is lodged primarily in the nationallegislature.

b. Executive

By virtue of a valid delegation of legislative power,it may also be exercised by the president,administrative bodies, and lawmaking bodies of

LGUs. [sec. 16, R.A. 7160]

...this power is limited only by the Acts of Congressand those fundamentals principles which lie at thefoundation of all republican forms of government. AnAct of the Legislature which is obviously andundoubtedly foreign to any of the purposes of thepolice power and interferes with the ordinaryenjoyment of property would, without doubt, beheld to be invalid. [Churchill and Tait vs. Rafferty (1915)]

Rep. Act No. 7924 does not grant the MMDA with police power , let alone legislative power, and all its

functions are administrative in nature. [MMDA v.Bel-Air Village Association, G.R. No. 135962, March27, 2000]

BUT it is not precluded —and in fact is duty-bound —to confiscate and suspend or revoke drivers' licensesin the exercise of its mandate of transport andtraffic management, as well as the administrationand implementation of all traffic enforcementoperations, traffic engineering services and trafficeducation programs. [MMDA vs. Garin (2005); Sec.3(b), Rep. Act No. 7924]

Eminent Domain

The general power to exercise the right of eminentdomain must not be confused with the right toexercise it in a particular case.

The power of the legislature to confer, uponmunicipal corporations and other entities within theState, general authority to exercise the right of eminent domain cannot be questioned by the courts, but that general authority of municipalities orentities must not be confused with the right toexercise it in particular instances.

The moment the municipal corporation or entityattempts to exercise the authority conferred, itmust comply with the conditions accompanying theauthority. The necessity for conferring the authorityupon a municipal corporation to exercise the right ofeminent domain is admittedly within the power ofthe legislature.

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 have theright to inquire into. [City of Manila vs. ChineseCommunity of Manila, G.R. No. L-14355, October 31,1919]




When a statute 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]

AS EXERCISED BYCONGRESS

AS EXERCISED BYDELEGATES

Extent of Power

Pervasive and all-encompassing

Can only be asbroad as theenabling law andthe conferringauthorities want itto be

Questionof Necessity

Political question Justiciablequestion. RTC hasto determinewhether there is agenuine necessityfor its exercise, aswell as what theproperty‘s valueis.If not justiciable,there‘s grant of

special authorityfor specialpurpose

Re:PrivateProperty

Delegate cannotexpropriateprivate propertyalready devotedto public use

Taxation

(1) legislature (primarily)(2) local legislative bodies [Sec. 5, Art. X] (3) President (to a limited extent, when

granted delegated tariff powers under Sec.28 (2) Art. VI)

B. Private Acts & the Bill of Rights1. In General2. Bases and Purpose3. Accountability

1. In General

It is a declaration and enumeration of a person's fundamental civil and political rights. It alsoimposes safeguards against violations by thegovernment, by individuals, or by groups of

individuals.

―The Bill of Rights governs the relationship betweenthe individual and the state. Its concern is not therelation between individuals, between a privateindividual and other individuals. What the Bill ofRights does is to declare some forbidden zones in theprivate sphere inaccessible to any power holder.‖(Sponsorship Speech of Commissioner Bernas, Recordof the Constitutional Commission, Vol. 1, p. 674;July 17, 1986; Emphasis supplied) [People vs. Marti,G.R. No. 81561, January 18, 1991]

It is generally self-executing Article III contains the chief protection for

human rights but the body of theConstitution guarantees other rights aswell.

(1) Civil rights – rights that belong toan individual by virtue of hiscitizenship in a state or community(e.g. rights to property, marriage,

freedom to contract, equalprotection, etc.)

(2) Political rights – rights that pertainto an individual‘s citizenship vis-à-vis the management of thegovernment (e.g. right of suffrage,right to petition government forredress, right to hold public office,etc.)

(3) Social and economic rights – rightswhich are intended to insure thewell-being and economic securityof the individual

(4) Rights of the accused – civil rights

intended for the protection of aperson accused of any crime

2. Bases and Purpose

a. Bases:

(1) Importance accorded to the dignity and worth of the individual.

(2) Protection against arbitrary actions ofgovernment and other members of society

b. Purpose:

(1) To preserve democratic ideals (2) To safeguard fundamental rights (3) To promote the happiness of an individual

The Bill of Rights is designed to preserve the idealsof liberty, equality and security "against the assaultsof opportunism, the expediency of the passing hour,the erosion of small encroachments, and the scornand derision of those who have no patience withgeneral principles." (Justice Cardozo, Nature ofJudicial Process, 90-93; Tanada and Fernando,Constitution of the Philippines, 1952 ed., 71.) [Philippine Blooming Mills Employees Organizationvs. Philippine Blooming Mills Co., Inc. (1973)]

In the pithy language of Mr. Justice Robert Jackson,the purpose of the Bill of Rights is to withdraw"certain subjects from the vicissitudes of politicalcontroversy, to place them beyond the reach ofmajorities and officials, and to establish them aslegal principles to be applied by the courts. One'srights to life, liberty and property, to free speech,or free press, freedom of worship and assembly, andother fundamental rights may not be submitted to avote; they depend on the outcome of no elections."[West Virginia State Board of Education vs.Barnette, 319 U.S. 624, 638]




3. Accountability

Sec. 2 Art III shall apply only against law officials orpeople working as agents of government concernedabout being able to procure evidence. [People vs.Marti (1991)]

Section 3 of Article XIII of the Constitution requiresthe State to give full protection to labor. We cannot

be faithful to this duty if we give no protection tolabor when the violator of its rights happens to beprivate parties like private employers. A private person does not have a better right than the government to violate an employee's right to due process. To be sure, violation of the particular rightof employees to security of tenure comes almostalways from their private employers. [Serrano vs.NLRC (2000)]

C. Due Process1. Relativity of Due Process2. Procedural and Substantive Due Process3. Constitutional and Statutory Due Process

4. Hierarchy of Rights5. Judicial Standards of Review6. Void for Vagueness Doctrine

Art. III, Sec. 1. No person shall be deprived of life,liberty or property without due process of law, norshall any person be denied the equal protection ofthe laws.

Art. XIII, Sec. 1. The Congress shall give highestpriority to the enactment of measures that protectand enhance the right of all the people to humandignity, reduce social, economic, and politicalinequalities and remove cultural inequities byequitably diffusing wealth and political power forthe common good.

To this end, the State shall regulate the acquisition,ownership, use, and disposition of property and itsincrements.

In General

Due process of law simply states that ―[i]t is part of the sporting idea of fair play to hear "the other side"before an opinion is formed or a decision is made bythose who sit in judgment.‖ [Ynot vs. IAC (1987)]

It covers any governmental action which constitutes

a deprivation of some person's life, liberty, orproperty.

Definition

―A law which hears before it condemns, whichproceeds upon inquiry and renders judgment onlyafter trial‖ [Darthmouth College v. Woodward, 4Wheaton 518]

―Responsiveness to the supremacy of reason,obedience to the dictates of justice‖ [Ermita-Malate

Hotel & Motel Operators Association v. City of Manila, 20 SCRA 849]

Life includes the right of an individual to his body inits completeness, free from dismemberment, andextends to the use of God-given faculties whichmake life enjoyable [Justice Malcolm Malcolm,Philippine Constitutional Law, pp. 320-321; See Buckv. Bell, 274 US 200]

Liberty ―includes the right to exist and the right tobe free from arbitrary personal restraint orservitude.xxx (It) includes the right of the citizen tobe free to use his faculties in all lawful ways xxx‖[Rubi v. Provincial Board of Mindoro, 39 Phil 660]

Property is anything that can come under the rightof ownership and be the subject of contract. Itrepresents more than the things a person owns; itincludes the right to secure, use and dispose ofthem. [Torraco v. Thompson, 263 US 197]

Scope and Limitations

Universal in application to all persons without regardto any difference in race, color or nationality.

Artificial persons are covered by the protection butonly insofar as their property is concerned [SmithBell & Co. v. Natividad, 40 Phil. 163]

The guarantee extends to aliens and includes themeans of livelihood. [Villegas v. Hiu Chiong, 86 SCRA275]

Minimum Requirements

Due process of law guarantees: (1) notice and

(2) opportunity to be heard(3) to persons who would be affected by the

order or act contemplated.

Noted Exceptions to Due Process

(1) 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.

(2) There are instances when the need for expeditious 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.

(3) Pornographic materials, contaminated meatand narcotic drugs are inherently pernicious and may be summarily destroyed.

(4) The passport of a person sought for acriminal offense may be cancelled withouthearing, to compel his return to the countryhe has fled.

(5) Filthy restaurants may be summarilypadlocked in the interest of the public




health and bawdy houses to protect the public morals. [Ynot vs. IAC (1987)]

In such instances, previous judicial hearing may beomitted without violation of due process in view of:1) the nature of the property involved; or 2) theurgency of the need to protect the general welfarefrom a clear and present danger.

1. Relativity of Due Process

2. Procedural and Substantive DueProcess

a. Scope

Procedural Due Process

Procedural due process is that aspect of due processwhich serves as a restriction on actions of judicial and quasi-judicial agencies of the government. Itrefers to the method or manner by which a law is

enforced.

Concerns with government action on establishedprocess when it makes intrusion into the privatesphere

Substantive Due Process

Substantive due process, asks whether the government has an adequate reason for taking away a person’s life, liberty, or property. [City of Manilavs. Laguio (2005)]

In other words, substantive due process looks to

whether there is a sufficient justification for thegovernment‘s action.

Substantive due process is an aspect of due processwhich serves as a restriction on the law-making andrule-making power of the government.

The law itself , not merely the procedures by whichthe law would be enforced, should be fair,reasonable, and just.

It guarantees against the arbitrary power even whenexercised according to proper forms and procedure.

b. Requisites

Procedural Due Process

In Civil ProceedingsRequisites

(1) An impartial court of tribunal clothed withjudicial power to hear and determine thematter before it.

(2) Jurisdiction must be lawfully acquired overthe person of the defendant and over theproperty subject matter of the proceeding[Banco Español vs. Palanca (1918)]

Note: NOTICE is an essential element of dueprocess, otherwise the Court will not acquirejurisdiction and its judgment will not bind thedefendant.

To be meaningful, it must be both as to time andplace.

Service of summons is not only required to give thecourt jurisdiction over the person of the defendant

but also to afford the latter the opportunity to beheard on the claim made against him. Thus,compliance with the rules regarding the service ofsummons is as much an issue of due process as ofjurisdiction. [Sarmiento v. Raon, G.R. No. 131482, July 3, 2002]

(3) The defendant must be given anopportunity to be heard

Due process is satisfied as long as the party isaccorded the opportunity to be heard. If it is notavailed of, it is deemed waived or forfeited withoutviolating the constitutional guarantee. [Bautista v.

Court of Appeals, G.R. No. 157219, May 28, 2004]

The Supreme Court reiterated that the right toappeal is not a natural right nor part of due process;it is merely a statutory privilege, and may beexercised only in the manner and in accordance withthe provisions of law. [Alba v. Nitorreda, 254 SCRA753]

(4) Judgment must be rendered upon lawfulhearing and must clearly explain its factualand legal bases... [Sec. 14, Art. VIII; BancoEspañol-Filipino vs. Palanca (1918)]

Note: The allowance or denial of motions for

extension rests principally on the sound discretion ofthe court to which it is addressed, but suchdiscretion must be exercised wisely and prudently,with a view to substantial justice. Poverty isrecognized as a sufficient ground for extendingexisting period for filing. The right to appeal is partof due process of law . [Reyes vs. CA (1977)]

In Administrative AgenciesThe 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 acton its or his own independent considerationof the law and facts of the controversy, andnot simply accept the views of asubordinate in arriving 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. [AngTibay vs. CIR (1940)]

In Criminal ProceedingsSee Rights of the Accused, Topic 1 Criminal DueProcess

In Academic Disciplinary ProceedingsRequisites

(1) The students must be informed in writing ofthe nature and cause of any accusationagainst them;

(2) They shall have the right to answer thecharges against them, with the assistance ofcounsel, if desired;

(3) They shall be informed of the evidenceagainst them;

(4) They shall have the right to adduceevidence in their own behalf;

(5) The evidence must be duly considered by

the investigating committee or officialdesignated by the school authorities to hearand decide the case [Non vs. Judge Dames(1990)]

Substantive Due Process

Laws which interfere with life, liberty or property satisfy substantive due process when there is:

(1) Lawful object i.e. the interests of thepublic in general (as distinguished fromthose of a particular class) require theintervention of the State, and

(2) Lawful means i.e. means employed are

reasonably necessary for theaccomplishment of the purpose and notunduly oppressive on individuals. [US vs.Toribio (1910)]

Publication of laws is part of substantive dueprocess. [Tañada vs. Tuvera (1986)]

3. Constitutional and Statutory DueProcess

Due process under the Labor Code, likeconstitutional due process, has two aspects:substantive (i.e. the valid and authorized causes ofemployment termination), and procedural (i.e. themanner of dismissal). . . Breaches of these dueprocess requirements violate the Labor Code, notthe Constitution. Therefore, statutory due processshould be differentiated from failure to comply withconstitutional due process.

Constitutional due process protects the individualfrom the government and assures him of his rights incriminal, civil or administrative proceedings; whilestatutory due process found in the Labor Code andImplementing Rules protects employees from being

unjustly terminated without just cause after noticeand hearing. [Agabon v. NLRC (2004)]

The Labor Code requires twin requirements of noticeand hearing for a valid dismissal. However, the Courtin Serrano v. NLRC clarified that this ―proceduraldue process‖ requirement is not constitutional butmerely statutory, thus a violation of suchrequirement does not render the dismissal void.

There are three reasons why violation by theemployer of the notice requirement cannot beconsidered a denial of due process resulting in thenullity of the employee's dismissal or layoff. xxx The first is that the Due Process Clause of theConstitution is a limitation on governmental powers.It does not apply to the exercise of private power,such as the termination of employment under theLabor Code. x x x The second reason is that noticeand hearing are required under the Due ProcessClause before the power of organized society arebrought to bear upon the individual. This is obviouslynot the case of termination of employment underArt. 283. x x x The third reason why the notice

requirement under Art. 283 cannot be considered arequirement of the Due Process Clause is that theemployer cannot really be expected to be entirelyan impartial judge of his own cause. [Serrano v.NLRC (2000 )]

4. Hierarchy of Rights

When the Bill of Rights also protects property rights,the primacy of human rights over property rights isrecognized. Because these freedoms are ―delicateand vulnerable, as well as supremely precious in oursociety‖ and the ―threat of sanctions may detertheir exercise almost as potently as the actual

application of sanctions,‖ they ―need breathingspace to survive,‖ permitting government regulationonly ―with narrow specificity.‖ [Philippine BloomingMills Employees Organization v. Philippine BloomingMills Co., Inc (1973)]

If the liberty involved were freedom of the mind orthe person, the standard for the validity ofgovernmental acts is much more rigorous andexacting, but where the liberty curtailed affects atthe most rights of property, the permissible scope ofregulatory measure is wider. [Ermita-Malate Hoteland Motel Operators Association, Inc. v. City Mayor of Manila (1967)]

Under the present provision, understood in the lightof established jurisprudence on the position ofproperty in the hierarchy of constitutional values,property stands a good chance of serving andenhancing the life and liberty of all. Running throughvarious provisions of the Constitution are variousprovisions to protect property—but always with theexplicit or implicit reminder that property has asocial dimension and that the right to property isweighted with a social obligation. [Bernas]




5. Judicial Standards of Review

a. ―Rational Basis Test‖

The classification should bear a reasonable relationto government's purpose, and the legislativeclassification is presumed valid.

Notes:

Important when there is no plausibledifference between the disadvantaged classand those not disadvantaged.

Also important when the government attachesa 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. This requiresthe government to show an overriding or compelling government interest so great that it justifies the

limitation of fundamental constitutional rights (thecourts make the decision of WON the purpose of thelaw makes the classification necessary).

Applied also when the classification has a "suspect" basis (Suspect Classes – classes subject to such ahistory of purposeful unequal treatment or relegatedto such a position of political powerlessness as tocommand extraordinary protection from themajoritarian political process.)

c. Intermediate Scrutiny Test

A third standard, denominated as heightened orimmediate scrutiny, was later adopted by the U.S.

Supreme Court for evaluating classifications basedon gender and legitimacy . Immediate scrutiny wasadopted by the U.S. Supreme Court in Craig. Whilethe test may have first been articulated in equalprotection analysis, it has in the United States sincebeen applied in all substantive due process cases aswell. [White Light Corporation vs. City of Manila(2009)]

6. Void-for-Vagueness Doctrine

Void for Vagueness: An act is vague when it lackscomprehensible standards that men of commonintelligence must necessarily guess at its common

meaning and differ as to its application.

The statute is repugnant to the constitution in 2respects:

(1) It violates due process for failure to accordpersons, especially the parties targeted byit, fair notice of what conduct to avoid,

(2) It leaves law enforcers an unbridleddiscretion in carrying out its provisions.

Related to the "overbreadth" doctrine is the "void forvagueness doctrine" which holds that "a law is facially invalid if men of common intelligence must

necessarily guess at its meaning and differ as to itsapplication." It is subject to the same principlesgoverning overbreadth doctrine. For one, it is also ananalytical tool for testing "on their faces" statutes infree speech cases. Like overbreadth, it is said that alitigant may challenge a statute on its face only if itis vague in all its possible applications.

A facial review of PP 1017 on the ground ofvagueness is unwarranted. Petitioners did not even

attempt to show that PP 1017 is vague in all itsapplication. They also failed to establish that men ofcommon intelligence cannot understand the meaningand application of PP 1017. [David vs. Arroyo (2006)]

VOID FOR VAGUENESS DOCTRINE: An accused isdenied the right to be informed of the chargeagainst him and to DUE PROCESS where the statuteitself is couched in such INDEFINITE LANGUAGE thatit‘s not possible for men of ordinary intelligence todetermine therefrom what acts/omissions arepunished. [People vs. Nazario (1988)]

D. Equal Protection1. Concept2. Requisites for Valid Classification

1. Concept

DefinitionEqual protection requires that all persons or thingssimilarly situated should be treated alike, both as torights conferred and responsibilities imposed.

Similar subjects, in other words, should not betreated differently, so as to give undue favor tosome and unjustly discriminate against others.

The guarantee means that no person or class ofpersons shall be denied the same protection of lawswhich is enjoyed by other persons or other classes inlike circumstances. [City of Manila vs. Laguio (2005)citing Ichong vs. Hernandez (1957)]

ScopeNatural and juridical Persons (the equal protectionclause extends to artificial persons but only insofaras their property is concerned.)

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 againstunlawful discrimination. [Bache & Co. vs.Ruiz (1971)]

2. Requisites for Valid Classification

(1) It must rest on substantial distinctions which make real differences;




(2) It must be germane to the purpose of thelaw;

(3) It must not be limited to existing conditionsonly.

An ordinance was declared void because it taxes onlycentrifugal sugar produced and exported by theOrmoc Sugar Company and none other, such that if anew sugar central is established in Ormoc, it wouldnot be subject to the ordinance. [Ormoc Sugar Co. vs

Treasurer of Ormoc City (1968)]

(4) Apply equally to all members of the sameclass [People vs. Cayat (1939 )]

Serrano v. Gallant Maritime introduced amodification in equal protection jurisprudence byusing the three-level review/scrutiny used in dueprocess cases. So that, in effect, the level of reviewwhen it comes to equal protection challenges mayfollow the following format:

(1) Whether the State was justified in making aclassification at all. (three level scrutiny)(a) Rational basis test – the classification

should bear a reasonable relation tothe government‘s purpose (b) Strict scrutiny test – in which a

legislative classification whichimpermissibly interferes with theexercise of a fundamental right oroperates to the peculiar disadvantageof a suspect class is presumedunconstitutional, and the burden isupon the government to prove that theclassification is necessary to achieve acompelling state interest and that it isthe least restrictive means to protectsuch interest. It is applied when theclassification has a ―suspect basis‖

(suspect classes – classes subject tosuch a history of purposeful unequaltreatment or relegated to such aposition of political powerlessness as tocommand extraordinary protectionfrom the majoritarian political process.

(c) Intermediate scrutiny test – Courtaccepts the articulated purpose of thelegislation but it closely scrutinizes therelationship between the classificationand the purpose based on a spectrumof standards, by gauging the extent towhich constitutionally guaranteedrights depend upon the affectedindividual interest. In which thegovernment must show that thechallenged classification serves animportant state interest and that theclassification is at least substantiallyrelated to serving that interestApplicable to certain sensitive but notsuspect classes; certain important butnot fundamental interest.

(2) Whether the classification was valid. (testof valid classification in People v. Cayat)

Examples of Valid Classification

All classifications made by law are generally presumed to be valid unless shown otherwise bypetitioner. [Lacson vs. Executive Secretary (1999)]

AliensGENERAL RULE: The general rule is that a legislativeact may not validly classify the citizens of the Stateon the 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 theConstitution when the facts so warrant (e.g. discriminatory legislation againstJapanese citizens during WWII).

(2) The political rights of aliens do not enjoythe same protection as that of citizens.

(3) Statutes may validly limit to citizensexclusively the enjoyment of rights or privileges connected with the publicdomain, the public works, or the natural

resources of the State. The rights andinterests of the state in these things are notsimply political but also proprietary innature; and so the citizens may lawfully begiven preference over aliens in their use orenjoyment.

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. [Ichong vs, Hernandez (1957)]

Filipino Female Domestics Working AbroadThey are a class by themselves because of thespecial risks to which their class was exposed. [Phil Association of Service Exporters vs. Drilon (1988)]

Land-based vs. Sea-based Filipino OverseasWorkersThere is dissimilarity as to work environment,safety, danger to life and limb, and accessibility tosocial, civil and spiritual activities. [Conference of Maritime Manning Agencies vs. POEA (1995)]

Qualification for Elective OfficeDisqualification from running in the same electiveoffice from which he retired of a retired electiveprovincial/municipal official who has received

payment of retirement benefits and who shall havebeen 65 y.o. at the commencement of the term ofoffice to which he seeks to be elected is valid.[Dumlao vs. Comelec (1980)]

Office of the OmbudsmanAllowing the Ombudsman to start an investigationbased on an anonymous letter does not violate EPclause. The Office of the Ombudsman is differentfrom other investigatory and prosecutory agencies ofgovernment because those subject to its jurisdictionare public officials who, through official pressureand influence, can quash, delay or dismiss




investigations against them. [Almonte vs. Vasquez (1995)]

Print vs. Broadcast MediaThere are substantial distinctions between the twoto warrant their different treatment under BP 881[Telecommunications and Broadcast Attorneys of thePhil vs. COMELEC (1998)]

E. Searches and Seizures1. Concept2. Warrant Requirement3. Warrantless Searches4. Warrantless Arrests5. Administrative Arrests6. Drug, Alcohol and Blood Tests

1. Concept

ART. III, SEC. 2. The right of the people to be securein their persons, houses, papers, and effects againstunreasonable searches and seizures of whatevernature and for any purpose shall be inviolable, and

no search warrant or warrant of arrest shall issueexcept upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and thewitnesses he may produce, and particularly describing the place to be searched and the personsor things to be seized.

Nature

PersonalIt may be invoked only by the person entitled to it.[Stonehill vs. Diokno (1967)]

It may be waived expressly or impliedly only by theperson whose right is invaded, not by one who is notduly authorized to effect such waiver. [People vs.Damaso (1992)]

Directed Against the Government and Its Agencies(State Action Requirement)The right cannot be set up against acts committedby private individuals. The right applies as arestraint directed only against the government andits agencies tasked with the enforcement of the law.The protection cannot extend to acts committed byprivate individuals so as to bring them within theambit of alleged unlawful intrusion by thegovernment. [People vs. Marti (1991)]

What constitutes a reasonable or unreasonablesearch and seizure in any particular case is purely ajudicial question, determinable from a considerationof the circumstances involved. [Valmonte v. DeVilla, 178 SCRA 211]

Objections to the warrant of arrest must be madebefore the accused enters his plea. [People v.Codilla, 224 SCRA 104; People v. Robles, G.R. No.101335, June 8, 2000]

Scope

Natural PersonsIt protects all persons including aliens [Qua CheeGan vs. Deportation Board (1963)]

Artificial PersonsArtificial persons are protected to a limited extent.[Bache & Co. Inc vs. Ruiz (1971)] The opening oftheir account books is not protected, by virtue ofpolice and taxing powers of the State.

2. Warrant Requirement

Must refer to one specific offense. [Asian Surety v.Herrera, 54 SCRA 312; Castro v. Pabalan, 70 SCRA477]

The Dangerous Drugs Act of 1972 is a special law thatdeals specifically with dangerous drugs which aresubsumed into ―prohibited‖ and ―regulated‖ drugs,and defines and penalizes categories of offenseswhich are closely related or which belong to thesame class or species; thus, one search warrant maybe validly issued for several violations thereof.[People v. Dichoso, 223 SCRA 174] The doctrine wasreiterated in People v. Salanguit, G.R. No.133254055, April 19, 2001.

Requisites

(1) Existence of probable cause Warrant of ArrestSuch facts and circumstances antecedent to theissuance of the warrant that in themselves aresufficient to induce a cautious man to rely onthem and act in pursuance thereof. [People v.Syjuco, 64 Phil. 667; Alvarez v. CFI, 64 Phil 33]

Search WarrantSuch facts and circumstances which would leada reasonably discreet and prudent man tobelieve that an offense has been committed andthat the objects sought in connection with theoffense are in the place sought to be searched.[Burgos v. Chief of Staff, 133 SCRA 800]

(2) Determination of probable cause personally by the judge.

Issuance of a warrant of arrest is not aministerial function of the judge.[Placer v. Villanueva 126 SCRA 463; Limv. Judge Felix, 194 SCRA 292]

(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 and underoath (Rule 126, Sec. 6, ROC)

Mere affidavits of the complainant and hiswitnesses are thus not sufficient.

The examining Judge has to take depositionsin writing of the complainant and the




witnesses he may produce and attach themto the record.

Such written deposition is necessary in orderthat the Judge may be able to properlydetermine the existence or non-existence ofthe probable cause, to hold liable forperjury the person giving it if it will befound later that his declarations are false

It is axiomatic that the examination must beprobing and exhaustive, not merely

routinary or pro-forma, if the claimedprobable cause is to be established.

The examining magistrate must not simplyrehash the contents of the affidavit butmust make his own inquiry on the intentand justification of the application. [ Roanvs. Gonzales (1984)]

(4) On the basis of their personal knowledge of thefacts they are testifying to.

(5) The warrant must describe particularly the place to be searched and the persons or thingsto be seized.

Requirement is primarily meant to enable the lawenforcers serving the warrant to (1) readily identifythe properties to be seized and thus prevent themfrom seizing the wrong items; and (2) leave saidpeace officers with no discretion regarding thearticles to be seized and thus prevent unreasonablesearches and seizures. [People v. Tee, G.R. Nos.140546-47, January 20, 2003]

PLACE TO BE SEARCHED The search warrant issued to search petitioner‘scompound for unlicensed firearms was held invalidfor failing to describe the place with particularity,considering that the compound was made up of 200

buildings, 15 plants, 84 staff houses, 1 airstrip etcspread out over 155 hectares. [PICOP vs. Asuncion(1999)]

DESCRIPTION OF PLACE/THINGS The description of the property to be seized neednot be technically accurate or precise. Its nature willvary according to whether the identity of theproperty is a matter of concern. The description isrequired to be specific only in so far as thecircumstances will allow. [Kho vs. Judge Makalintal(1999)]

A search warrant may be said to particularlydescribe the things to be seized when thedescription therein is as specific as thecircumstances will ordinarily allow. [People v.Rubio, 57 Phil 384] or when the descriptionexpresses a conclusion of fact, not of law, by whichthe warrant officer may be guided in making thesearch and seizure; or when the tings described arelimited to those which bear direct relation to theoffense for which the warrant is being issued. [Bache& Co. v. Ruiz, 37 SCRA 823]

DESCRIPTION OF PERSONS SEARCHED Search warrant is valid despite the mistake in thename of the persons to be searched. The authorities

conducted surveillance and test-buy ops beforeobtaining the SW and subsequently implementing it.They had personal knowledge of the identity of thepersons and the place to be searched, although theydid not specifically know the names of the accused.[People vs. Tiu Won Chua (2003)]

GENERAL WARRANT: One that (1) does not describewith particularity the things subject of the searchand seizure; and (2) where probable cause has not

been properly established. It is a void warrant.[Nolasco vs. Paño (1985)]

EXCEPTION TO GENERAL WARRANTS: Generaldescriptions will not invalidate the entire warrant ifother items have been particularly 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 of- sufficient age-

discretion- residing in the same locality

Force may be used in entering a dwelling ifjustified by Rule 126 ROC.

Failure to comply with Sec. 7 Rule 126 invalidatesthe search. [People vs. Gesmundo (1993)]

FORCIBLE ENTRY JUSTIFIED:Occupants of the house refused to open the doordespite the fact that the searching party knockedseveral times, and the agents saw suspiciousmovements of the people inside the house. [Peoplevs. Salanguit (2001)]

UNLAWFUL SEARCH:Police officers arrived at appellant‘s residence and―side-swiped‖ (sinagi) appellant‘s car (which wasparked outside) to gain entry into the house.Appellant‘s son, who is the only one present in thehouse, opened the door and was immediatelyhandcuffed to a chair after being informed that theyare policemen with a warrant to search thepremises. [People vs. Benny Go (2003)]

3. Warrantless Searches

GENERAL RULE Areas within the reach and control of the accused

are the permissible areas of search for both stop-and-frisk and search-incident-to-a-valid-arrest.[Espano vs. CA; People vs. Cubcubin (2001)]

EXCEPTION

Sec. 3(2), Art. III, 1987 CONSTI. Any evidenceobtained in violation of this or the preceding sectionshall be inadmissible for any purpose in anyproceeding.

Evidence obtained in violation of Sec. 2 Art. III shallbe inadmissible for any purpose and in any proceeding. [Stonehill vs, Diokno (1967)]




Once the primary source is shown to have beenunlawfully obtained, any secondary or derivativeevidence is also inadmissible. [Nardone vs. US(1939)]

It was alleged that Parliamentary Club was agambling house; search warrant was obtained.Veloso read the warrant and said that he was not―John Doe‖. The Court ruled that the John Doe

search warrant was valid and held that there isnothing to prevent issue and service of warrantagainst a party whose name is unknown. Besides, theofficers had the right to arrest the persons engagedin prohibited game. An officer making an arrest maytake from the person arrested any money / propertyfound upon his person, w/c was used in commissionof crime, or was the fruit of the crime, or w/c mayfurnish the person w/ means of committing violenceor escaping, or w/c may be used as evidence ontrial, but not otherwise. [People vs. Veloso (1925)]

Other specific situations:

Quick Look:

a. Search is an Incident to a Lawful Arrest.b. Search of Moving Vehiclesc. Plain View Doctrined. Stop and Frisk Searchese. Valid Express Waiverf. Customs searchg. Visual Search at Checkpointsh. Conduct of ―Aerial Target Zoning‖ and―saturation drive‖ i. Exigent and Emergency Circumstances

a. Search is an incident to a lawful arrest.

Sec. 12, Rule 126, Rules of Court. Search incident

to lawful arrest. - A person lawfully arrested maybe searched for dangerous weapons or anythingwhich may be used as proof of the commission of anoffense, without a search warrant.

The provision is declaratory in the sense thatit is confined to the search, without asearch warrant, of a person who had beenarrested.

It is also a general rule that, as an incident ofan arrest, the place or premises where thearrest was made can also be searchedwithout a search warrant. In this case, theextent and reasonableness of the searchmust be decided on its own facts and

circumstances. What must be considered is the balancing of

the individual‘s right to privacy and thepublic‘s interest in the prevention of crimeand the apprehension of criminals. [Nolascovs. Pano (1985)]

Test for validity Item to be searched was within the arrester‘s

custody; Search was contemporaneous with the arrest

Aguilar-Roque and Nolasco, allegedly connected w/the CPP-NPA and accused of rebellion andsubversion, assert that the search warrant in thiscase is void because (1) it doesn‘t sufficientlydescribe things subject of the search & seizure and(2) probable cause hasn‘t been established for lackof searching questions propounded to applicant‘switness. Court ruled that the search warrant is void.However, the Court also ruled that the search in

question did not need a search warrant. Under theRules of Court, a person charged w/ an offense maybe searched for dangerous weapons or anything w/cmay be used as proof of the commission of theoffense. As an incident of an arrest, the premiseswhere the arrest was made can also be searched w/osearch warrant. [Nolasco vs Cruz Paño (1985)]

In this Motion for Partial Reconsideration of the 1985decision, the petitioners submit that a warrantlesssearch can be justified only if it‘s an incident to alawful arrest and that since Aguilar wasn‘t lawfullyarrested, a search w/o warrant couldn‘t be made.The SolGen offered no objection to declaration that

the search was illegal and to the return of the seizeditems. The Motion for Partial Reconsideration isgranted. [Nolasco vs. Paño on M.R. (1987)]

b. Search of Moving Vehicles

Securing a search warrant is not practicable sincethe vehicle can be quickly moved out of the localityor jurisdiction in which the warrant must be sought[Papa vs. Mago (1968)]

c. Plain View Doctrine: Things seized arewithin plain view of a searching party

Requisites(1) Prior valid intrusion into a place;(2) Evidence:

inadvertently discovered by police who had the right to be

where they were;(3) Evidence must be immediately apparent

and(4) Noticed without further search [People vs.

Musa; People vs. Sarap (2003)]

An object is in ―plain view‖ if the object itself isplainly exposed to sight. Where the seized object isinside a closed package, the object is not in plainview and, therefore, cannot be seized without a

warrant. However, if the package proclaims itscontents, whether by its distinctive configuration, itstransparency, or if its contents are obvious to anobserver, then the content are in plain view, andmay be seized. [Caballes v. Court of Appeals, G.R.No. 136282, January 15, 2002]

If the package is such that it contains prohibitedarticles, then the article is deemed in plain view.[People v. Nuevasm G.R. No. 170233, February 22,2007]

d. Stop and Frisk Searches




There should be a genuine reason to ―stop-and-friskin the light of the police officer’s experience and surrounding conditions to warrant a belief that theperson detained has weapons concealed. [Malacatvs. CA (1997) citing Terry vs. Ohio]

The police officer should properly introduce himselfand make initial inquiries, approach and restrain aperson who manifests unusual and suspiciousconduct, in order to check the latter‘s outer clothingfor possibly concealed weapons. The apprehendingpolice officer must have a genuine reason, inaccordance with the police officer‘s experience andthe surrounding conditions, to warrant the beliefthat the person to be held has weapons orcontraband concealed about him. [People v. Sy Chua, G.R. Nos. 136066-67, February 4, 2003]

e. Valid Express Waiver made Voluntarilyand Intelligently

Requisites(1) Must appear that right exists;

(2) Person involved had actual/ constructiveknowledge of the existence of such right;

(3) Said person had an actual interest torelinquish the right;

(4) Waiver is limited only to the arrest;(5) Waiver does not extend to search made as

an incident thereto, or to any subsequentseizure of evidence found in the search. [People vs. Peralta (2004)]

It was ruled that the right to be secure fromunreasonable search may be waived. Waiver may beexpress or implied. When one voluntarily submits toa search or consents to have it made of his person /premises, he is precluded from later complaining. In

this case, the appellant neither made objection noreven muttered a bit of protest when the search wasconducted on his person. Also, as held in Weeks v.United States, when the search of the persondetained or arrested and seizure of effects found inhis possession are incidental to an arrest made inconformity w/ the law, they cannot be consideredunreasonable, much less unlawful. [People vs. KaguiMalasugui (1936)]

It is the State that has the burden of proving, byclear and convincing evidence, that the necessaryconsent was obtained and that it was voluntarily andfreely given. [Caballes v. Court of Appeals, G.R. No.

136292, January 15, 2002]

When accused checked in his luggage as passenger ofa plane, he agreed to the inspection of his luggage inaccordance with customs laws and regulations, andthus waived any objection to a warrantless search.[People v. Gatward, 267 SCRA 785]

f. Customs Search

Searches of vessel and aircraft for violation ofimmigration and smuggling laws [Papa vs. Mago (1968)]

g. Visual Search at Checkpoints

―Stop and search‖ without a warrant at military orpolice checkpoints, which has been declared not tobe illegal per se so long as it is required byexigencies of public order and conducted in a wayleast intrusive to motorists. [Valmonte vs. de Villa,178 SCRA 211]

For a mere routine inspection, the search is normallypermissible when it is limited to a mere visualsearch, where the occupants are not subjected tophysical or body search. On the other hand, whenthe vehicle is stopped and subjected to a physical orbody search. On the other hand, when the vehicle isstopped and subjected to an extensive search, itwould be constitutionally permissible only If theofficers conducting the search had reasonable orprobable cause to believe, before the search, thateither the motorist is a law offender or they will findthe instrumentality or evidence pertaining to a crimein the vehicle to be searched. [Caballes v. Court of Appeals, G.R. No. 136292, Januarcy 15, 2002,;

People v. Libnao, G.R. No. 136860, January 20,2003]

h. Conduct of ―aerial target zoning‖ and―saturation drive‖ in the exercise of themilitary powers of the President [Guanzon vs.de Villa (1990 ) ]

i. Exigent and Emergency Circumstances

The raid and seizure of firearms and ammunition atthe height of the 1989 coup-de-etat, was held valid,considering the exigent and emergency situation.The military operatives had reasonable ground to

believe that a crime was being committed, and theyhad no opportunity to apply for a search warrantfrom the courts because the latter were closed.Under such urgency and exigency, a search warrantcould be validly dispersed with. [People vs. deGracia, 233 SCRA 716]

j. Search and seizure incident to a lawfularrest

Arresting officer may take from the arrestedindividual any money or property found upon thelatter‘s person --- that which was used in thecommission of the crime or was the fruit of thecrime, or which may provide the person arrested

with the means of committing violence or escaping,or which may be used in evidence in the trial of thecase. The search, must, however, becontemporaneous to the arrest and made within apermissible area of search. [People v. Estella, G.R.Nos. 138539-40, January 21, 2003]

Properties Subject to Seizure

GENERAL RULE: Only the articles particularlydescribed in the warrant may be seized.

Property subject of an offense




Stolen or embezzled property and otherproceeds or fruits of an offense

Used or intended to be used as a means ofcommitting an offense (Sec. 2 Rule 126,ROC)

Where the warrant authorized only the seizure ofshabu, and not marijuana, the seizure of the latterwas held unlawful. [People vs. Salanguit, supra]

It is not necessary that the property to be searchedor seized should be owned by the person againstwhom the warrant is issued; it is sufficient that theproperty is within his control or possession. [Burgosvs. Chief of Staff (1984)]

Comparison of Procedures in Obtaining SearchWarrants and Arrest Warrants

R112, Sec. 6. When warrant of arrest may issue. – (a) By the Regional Trial Court. – Within ten (10)days from the filing of the complaint or information,the judge shall personally evaluate the resolution ofthe prosecutor and its supporting evidence. He may

immediately dismiss the case if the evidence onrecord clearly fails to establish probable cause. If hefinds probable cause, he shall issue a warrant ofarrest, or a commitment order if the accused hasalready been arrested pursuant to a warrant issuedby the judge who conducted the preliminaryinvestigation or when the complaint or informationwas filed pursuant to section 7 of this Rule. In caseof doubt on the existence of probable cause, thejudge may order the prosecutor to presentadditional evidence [NOTE: THIS IS NOT FOUND INTHE PROCEDURE FOR A SEARCH WARRANT] withinfive (5) days from notice and the issue must beresolved by the court within thirty (30) days fromthe filing of the complaint of information.

Rule 126, Sec. 4. Requisites for issuing searchwarrant. – A search warrant shall not issue exceptupon probable cause in connection with one specificoffense to be determined personally by the judgeafter examination under oath or affirmation of thecomplainant and the witness he may produce, andparticularly describing the place to be searched andthe things to be seized which may be anywhere inthe Philippines

4. Warrantless Arrests

Requisites for Issuance of a Valid ArrestWarrant

What the Constitution underscores is the exclusiveand personal responsibility of the issuing judge tosatisfy himself of the existence of probable cause.

In satisfying himself of the existence of probablecause for the issuance of a warrant of arrest, thejudge is NOT required to personally examine thecomplainant and his witnesses.

Following established doctrine and procedure, heshall:

(1) Personally evaluate the report and thesupporting 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 maydisregard the fiscal's report and require thesubmission of supporting affidavits of

witnesses to aid him in arriving at aconclusion as to the existence of probablecause. [Beltran vs. Makasiar (1988)]

Existence of probable cause: Such facts andcircumstances which would lead a reasonablydiscreet and prudent mean to believe that anoffense has been committed by the person sought tobe arrested. [Webb vs. De Leon (1995)]

Determination of probable cause personally by thejudge as to warrant of arrest:

(1) On the basis of the witnesses‘ personalknowledge of the facts they are testifying

to.(2) The arrest warrant must describe

particularly the person to be seized. By stating the name of the person to be

arrested. If not known, then a ―John Doe

warrant‖ may be issued, with somedescriptio persona that will enable theofficer to identify the accused.

JOHN DOE WARRANT: Warrants issued against 50John Does, none of whom the witnesses couldidentify, were considered as ―general warrants‖ andthus void. [Pangandaman vs. Casar (1988)]

Requisites of a Valid Warrantless Arrest(Rule 113, Sec. 5, Rules on Criminal Procedure)

1. When, in his presence, the person to bearrested has committed, is actually committing, oris attempting to commit an offense; (in flagrantedelicto)

Rebellion is a continuing offense. Therefore a rebelmay be arrested w/o a warrant at any time of theday or the night as he is deemed to be in the act ofcommitting rebellion. [Umil vs. Ramos (1991)]

Though kidnapping w/ serious illegal detention isdeemed a continuing crime, it can be considered assuch only when the deprivation of liberty ispersistent and continuing from one place to another. [Parulan vs. Dir of Prisons (1968)]

HOT PURSUIT: The arrest of the accused inside hishouse following hot pursuit of the person whocommitted the offense in flagrante was held valid. [People vs. De Lara (1994)]

BUY-BUST: A buy-bust operation is a valid in flagrante arrest. The subsequent search of theperson arrested and the premises within his




immediate control is valid as an incident to a lawfularrest. [People vs. Hindoy (2001)]

EXCEPTION TO BUY-BUST: Instead of arresting thesuspect after the sale in a buy-bust op, the officerreturned to the police headquarters and filed hisreport. It was only in the evening that he, withoutwarrant, arrested the suspect at his house wheredried marijuana leaves were found and seized. Thisis unlawful arrest. [People vs. Rodrigueza]

2. When an offense has just been committed andhe has probable cause to believe based onpersonal knowledge of facts or circumstances thatthe person to be arrested has committed it;

Requisites:(1) Offense had JUST been committed;(2) Person making the arrest has probable

cause to believe based on PERSONALKNOWLEDGE.

Note: There must be a large measure of immediacy

between the time the offense is committed and thetime of the arrest. If there was an appreciable lapseof time between arrest and commission of crime,warrant of arrest must be secured. (NACHURA)

Warrantless arrest of accused for selling marijuana 2days after he escaped is invalid. [People vs Kimura(2004)]

The police saw the victim dead at the hospital andwhen they inspected the crime scene, they foundthe instruments of death. The eyewitnesses reportedthe happening and pointed to Gerente as one of thekillers. Here the warrantless arrest only 3 hrs afterthe killing was held valid since personal knowledgewas established as to the fact of death and factsindicating that Gerente killed the victim. [People vsGerente (1993)]

PERSONAL KNOWLEDGE: Experience of an officerwhich gives the idea that there is probable causethat the person caught is responsible. It has beenruled that ―personal knowledge of facts‖ in arrestswithout a warrant must be based on probable cause,which means an actual belief or reasonable groundsof suspicion. [Cadua v. Court of Appeals, G.R. No.123123, Aug. 19, 1999]

Burgos was convicted for the crime of Illegal

Possession of Firearms in Furtherance of Subversion.Masamlok claimed that he had been forciblyrecruited by Burgos to the NPA, threatening him withthe use of firearm against his life and family.Masamlok was also allegedly threatened to attend anNPA seminar. The next day the authorities went toarrest Burgos without a warrant. They found him inhis residence plowing his field. Burgos denied theaccusation, but his wife pointed to a place belowtheir house where a gun was buried in the ground.After the firearm was recovered, Burgos allegedlypointed to a stock pile of cogon where he had hiddensubversive documents. The prosecution presented an

extrajudicial confession made by Burgos. However,Burgos claimed that he had been mauled and hitrepeatedly until he would admit and sign anextrajudicial confession.

Exceptions to warrant of arrest: Art. IV, Sec. 3 ofthe Constitution safeguards against wanton andunreasonable invasion of the privacy and liberty of acitizen as to his person, papers, and effects. Rule113, Sec. 6 of the Rules of Court provides the

exceptions to the warrant requirement.

However, the instant case does not fall under any ofthe exceptions in Rule 113, Sec. 6. First, it requiresthat the officer arresting a person who hascommitted, is committing, or is about to commit anoffense must have personal knowledge of that fact.The offense must be committed in his presence orwithin his view. 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 or subversivedocument. Neither was he committing any act which could

be described as subversive. He was in factplowing his field at the time of his arrest.

It is clear that the arresting officers had no personalknowledge of the commission of the offense becausesuch information was only supplied to them by aninformant.

Neither has Burgos committed any offense in theirpresence as he was merely plowing his field at thetime of arrest. On the other hand, Sec. 6 (b) of Rule113 requires that a crime must in fact or actually

have been committed first. It is not enough thatthere is reasonable ground to believe that the personto be arrested has committed a crime. That a crimehas actually been committed is an essentialprecondition. In the instant case, it was not evenestablished that indeed a crime has beencommitted. The information that a crime wasprobably committed was supplied by Masamlok whodid not even give his testimony under oath.

Finally, the Court finds no compelling reason for thehaste of the arresting officers to arrest Burgos ifindeed he committed a crime. There is no showingthat there was real apprehension that Burgos was onthe verge of flight or escape and that hiswhereabouts are unknown. [People vs. Burgos(1986)]

3. When the person to be arrested is a prisonerwho has escaped from a penal establishment orplace where he is serving final judgment or istemporarily confined while his case is pending, orhas escaped while being transferred from oneconfinement to another.

ADDITIONAL EXCEPTIONS (NOT IN THE RULES):(1) When the right is voluntarily waived

(estoppel).




(2) Violent insanity.

Appellant is estopped from questioning the illegalityof the arrest when he voluntarily submitted himselfto the jurisdiction of the court by entering a plea ofnot guilty and by participating in the trial. [Peoplevs. Salvatierra (1997)]

SCOPE OF WAIVER : Waiver is limited to the illegalarrest. It does not extend to the search made as anincident thereto, or the subsequent seizure ofevidence allegedly found during the search [Peoplevs. Peralta (2004]]

5. Administrative Arrests

Under the express terms of our Constitution, it is,therefore, even doubtful whether the arrest of anindividual may be ordered by any authority otherthan the judge if the purpose is merely to determinethe existence of a probable cause, leading to anadministrative investigation. The Constitution doesnot distinguish between warrants in a criminal caseand administrative warrants in administrativeproceedings. And if one suspected of havingcommitted aim is entitled to a determination of theprobable cause against him, by a judge, why shouldone suspected of a violation of an administrativenature deserve less guarantee? Of course it isdifferent if the order of arrest is issued to carry outa final finding of a violation, either by an executiveor legislative officer or agency duly authorized forthe purpose, as then the warrant is not thatmentioned in the Constitution which is issuable onlyon probable cause. Such, for example, would be awarrant of arrest to carry out a final order ofdeportation, or to effect compliance of an order ofcontempt. The contention of the Solicitor General

that the arrest of a foreigner is necessary to carryinto effect the power of deportation is valid onlywhen, as already stated, there is already an order ofdeportation. To carry out the order of deportation,the President obviously has the power to order thearrest of the deportee. But, certainly, during theinvestigation, it is not indispensable that the alienbe arrested. It is enough, as was true before theexecutive order of President Quirino, that a bond berequired to insure the appearance of the alien duringthe investigation, as was authorized in the executiveorder of President Roxas. [Vivio v. Montesa (1968)]

The Supreme Court distinguished betweenadministrative arrest in the execution of a final

deportation order and arrest as preliminary tofurther administrative proceedings:

"Section 1 (3), Article III of the Constitution, weperceive, does not require judicial intervention inthe execution of a final order of deportation issuedin accordance with law. The constitutional limitationcontemplates an order of arrest in the exercise ofjudicial power as a step preliminary or incidental toprosecution or proceedings for a given offense oradministrative action, not as a measureindispensable to carry out a valid decision by acompetent official, such a legal order of

deportation, issued by the Commissioner ofImmigration, in pursuance of a valid legislation."[Morano vs. Vivo, L-22196, 30 June 1967, 20 SCRA,562; PHILD. 1967B, page 741]

6. Drug, Alcohol and Blood Tests

The Court held that Randomized Drug Testing (RDT)for students and employees doesn‘t violate the right

to privacy in the Constitution. Students do not haverational expectation of privacy since they are minorsand the school is in loco parentis. Employees andstudents in universities, on the other hand,voluntarily subject themselves to the intrusionbecause of their contractual relation to the companyor university.

It is unconstitutional to subject candidates for publicoffice and criminals to RDT. The Constitution clearlyprovides the requirements for candidates, andadding RDT would violate or amend the Constitution.Criminals subjected to RDT would violate their rightagainst self-incrimination since it would not berandom anymore. [SJS v. Dangerous Drugs Board

(2008)]

F. Privacy of Communications andCorrespondence1. Private and Public Communications2. Writ of Habeas Data

SEC. 3, ART. III, 1987 CONSTITUTION(1) The privacy of communication and

correspondence shall be inviolable except uponlawful order of the court, or when public safetyor order requires otherwise, as prescribed by

law.(2) Any evidence obtained in violation of this or the

preceding section shall be inadmissible for anypurpose in any proceeding.

1. Private and Public Communications

Intrusion, When Allowed

a. By lawful order of the court

Probable cause in Sec. 2, Art. III should be followedfor the court to allow intrusion. Particularity of

description is needed for written correspondence

,but if the intrusion is done through wire-taps and the like, there is no need to describe the content.However, identity of the person or persons whosecommunication is to be intercepted, and the offenseor offenses sought to be prevented , and the period of the authorization given can be specified.

b. When public safety or public orderrequires otherwise, as may be providedby law:




Intrusion has to be based upon a non-judicialgovernment official‘s assessment that public safety

and order demands such intrusion, limited to theprovisions of law. To hold otherwise would be to optfor a government of men, and not of laws.

Public order and safety is defined as the security ofhuman lives, liberty and property against theactivities of invaders, insurrectionist and rebels. [1971 Constitutional Convention, Session of

November 25, 1972]

Forms of Correspondence Covered

(1) letters(2) messages(3) telephone calls(4) telegrams, and the like (BERNAS)

Private Communication

Revised Penal Code, Art. 354. Requirement forpublicity. - Every defamatory imputation ispresumed to be malicious, even if it be true, if nogood intention and justifiable motive for making it is

shown, except in the following cases:

1) A private communication made by any person toanother in the performance of any legal, moralor social duty; x x x

A privileged communication may be either absolutelyprivileged or qualifiedly privileged. Absolutelyprivileged communications are those which are notactionable even if the author has acted in bad faith.An example is found in Sec. 11, Art. VI, of the 1987Constitution which exempts a member of Congressfrom liability for any speech or debate in theCongress or in any Committee thereof. Upon the

other hand, qualifiedly privileged communicationscontaining defamatory imputations are notactionable unless found to have been made withoutgood intention or justifiable motive. To this genrebelong "private communications" and "fair and truereport without any comments or remarks." [Borjalvs. CA (1999)]

Anti-wire tapping act (RA 4200), clearly andunequivocably makes it illegal for any person, notauthorized by all the parties to any privatecommunication, to secretly record suchcommunications by means of a tape recorder. Thelaw does not make any distinction. [Ramirez v.Courtof Appeals, 248 SCRA 590]

Right may be invoked against the wife who went tothe clinic of her husband and there took documentsconsisting of private communications between herhusband and his alleged paramour [Zulueta v. Courtof Appeals, 253 SCRA 699]

Public Communication

2. Writ of Habeas Data

See Annex A.

G. Freedom of Expression1. Concept and Scope2. Content-Based and Content-NeutralRegulations3. Facial Challenges and the OverbreadthDoctrine4. Tests5. State Regulation of Different Types of MassMedia

6. Commercial Speech7. Private v. Government Speech

1. Concept and Scope

Basis

Sec. 4, Art. 3. No law shall be passed abridging thefreedom of speech, of expression, or of the press, orthe right of the people peaceably to assemble andpetition the government for redress 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, robust andwide-open debate in the free marketplace of ideas.‖[Abrams vs. US (1919)]

While indeed, the news item subject of the presentcase might have ruffled the sensitivities of plaintiff,this Court however believes that the allegeddefamatory articles fall within the purview of aqualifiedly privileged matter, and that therefore, itcannot be presumed to be malicious. The onus ofproving malice is accordingly shifted to the plaintiff,that is, that he must prove that the defendants wereactuated by ill-will in what they caused to be

printed and published, with a design to carelessly orwantonly injure the plaintiff. [U.S. vs. Bustos (1909)]

Components Speech, expression, and press include:

(1) Written or spoken words (recorded or not)(2) Symbolic speech (e.g. wearing armbands as

symbol of protest)(3) Movies (BERNAS)

Scope of Protected Freedoms Any and all modes of protection are embraced in theguaranty. It is reinforced by Sec. 18(1), Art. 3.

Prior Restraint (Censorship)

ConceptCensorship conditions the exercise of freedom ofexpression upon the prior approval of thegovernment.

The censor serves therefore as the political, moral,social and artistic arbiter for the people, usuallyapplying only his own subjective standards indetermining what is good and what‘s not.

GENERAL RULES




(1) Any system of prior restraints of expressioncomes to the Court bearing a heavy presumption 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. Evenrestriction of circulation constitutescensorship [Grosjean vs. American PressCo., 297 US 233]

Examples of Unconstitutional Prior Restraint(1) COMELEC prohibition against radio

commentators or newspaper columnistsfrom commenting on the issues involved ina scheduled plebiscite [Sanidad vs.COMELEC (1990)]

(2) Arbitrary closure of a radio station (EasternBroadcasting vs. Dans (1985))

(3) COMELEC resolution prohibiting the postingof decals and stickers in mobile units likecars and other moving vehicles [Adiong vs.COMELEC (1992)]

(4) Search, padlocking and sealing of the

offices of newspaper publishers (We Forum)by military authorities [Burgos vs. Chief of Staff, supra]

(5) An announcement of a public figure toprohibit the media to issue a specific kindof statement amounts to prior restraint,which is violative of the right to free press. [Chavez vs. Gonzales (2006)]

Examples of Constitutional Prior Restraint:(1) Law which prohibits, except during the

prescribed election period, the making ofspeeches, announcements or commentariesfor or against the election of any candidatefor office [Gonzales vs. COMELEC (1969)]

(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, G.R. NO. 1026653, March 5,1992; Osmena vs. COMELEC]

(3) Movie censorship: the power of the MTCRBcan be exercised only for purposes ofreasonable classification, not censorship.[NACHURA citing Gonzalez vs. Katigbak(1985) and 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 longas men fight and that no court couldregard them as protected by anyconstitutional right

(b) Actual obstruction to the government‘srecruiting service or the publication ofthe sailing dates of transports or thenumber and location of troops

(c) Obscene publications

(d) Incitements to acts of violence and theoverthrow by force of orderlygovernment

Subsequent Punishment

Concept: Freedom of speech includes freedom after speech. Without this assurance, the citizen wouldhesitate to speak for fear he might be provoking thevengeance of the officials he has criticized (chillingeffect).

If criticism is not to be conditioned on the government’s consent, then neither should it besubject to the government‘s subsequentchastisement.

Examples of Valid Subsequent Restraints:(1) Libel. Every defamatory imputation is presumed

to be malicious. [Alonzo vs. CA (1995)] Exceptions to this presumption are found in Art.354 of the RPC.

(2) Obscenity. The determination of what is

obscene is a judicial function. [Pita vs. CA (1989)]

Accused was convicted for exhibiting nudepainting and pictures, notwithstanding his claimthat he had done so in the interest of art. Courtsaid that the purpose was commercial, notmerely artistic, because he charged admissionfees to the exhibition. [U.S. vs. Kottinger (1923)]

(3) Contempt for criticism/publications tending toimpede, obstruct, embarrass or influence thecourts in administering justice in a pending suitor proceeding (sub judice) [People vs. Alarcon

(1939)]

(4) Being a public figure does not automaticallydestroy in toto a person's right to privacy. Thelimits of freedom of expression are reachedwhen it touches upon matters of private concern[Lagunzad vs. Gonzales (1979)]

(5) Right of students to free speech in schoolpremises must not infringe on the school‘s rightto discipline its students [Miriam CollegeFoundation 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 (1918)]

2. Content-Based and Content-NeutralRegulations

Content-Based Restrictions




Specific Instances

Freedom of Expression and National SecurityEspuelas was convicted in the lower court of thecrime of inciting to sedition. Espuelas had his picturetaken, making it to appear as if he were hanginglifeless at the end of a piece of rope suspended fromthe limb of a tree, when in truth and in fact, he wasmerely standing on a barrel. After securing copies ofhis photograph, he sent copies to several newspapersand weeklies of general circulation throughout thePhilippines and abroad, for their publication with asuicide note or letter, wherein he made to appearthat it was written by a fictitious suicidee, AlbertoReveniera and addressed to the latter's supposedwife.

These reasons point to the Roxas administration, hisdisappointments and humiliations because of theformer and his lack of power to put under Juez deCuchillo all the Roxas people in power. Finally, theletter instructed the wife to teach their children toburn pictures of Roxas if they come across one.Espuelas admitted the fact that he wrote the letter

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 a ropetied to a limb of a tree.

Freedom of Expression, national security : Theletter is a scurrilous libel against the Government. Itsuggests or incites rebellious conspiracies or riotsand tends to stir up the people against theconstituted authorities, or to provoke violence fromopposition groups who may seek to silence thewriter, which is the sum and substance of theoffense under consideration. Such writings arecriminal not only because they tend to incite to a

breach of the peace but because they are conduciveto the destruction of the very government itself. Malicious endeavors to stir up public strife areprohibited.

Our Legislature has spoken in article 142 of the RPCand the law must be applied. This kind of legislationmust be weighed carefully vis-à-vis the fundamentalright to freedom of speech. Such freedom, althoughsecured by the Constitution, does not confer anabsolute right to speak or publish withoutresponsibility whatever one may choose. It is notunbridled license that gives immunity for everypossible use of language and prevents the

punishment of those who abuse this freedom.

The privilege of any citizen to criticize hisgovernment and government officials and to submithis criticism to the "free trade of ideas" and to pleadfor its acceptance in "the competition of the market"is not to be restrained. However, let such criticismbe specific and therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire government set-up.

Such wholesale attack is nothing less than aninvitation to disloyalty to the government…. When

the use of irritating language centers not onpersuading the readers but on creating disturbance,the rationale of free speech cannot apply and thespeaker or writer is removed from the protection ofthe constitutional guaranty. [Espuelas vs. People(1951)]

Freedom of Expression and LibelNATIONAL COMMUNITY STANDARD AS BASIS OFWHAT IS DEFAMATORY: An article in Phil. Panorama

described Amir Mindalano as not belonging to a royalhouse. The Court held that there is no libel. Such adescription cannot be regarded as defamatory, animputation of a vice or defect, or tending to castdishonor, discredit or contempt or to blacken thememory of one who is dead. In a community likeours which is both republican and egalitarian, suchan ascription, whether correct or not, cannot bedefamatory.

It is to the standards of the national community, notto those of the region that a court must referespecially where a newspaper is national in reachand coverage. [Bulletin Publishing vs. Noel (1988)]

REPORT OF OFFICIAL CONDUCT IS PRIVILEGED ANDCOVERED BY PRESS FREEDOM: Where thedefamation is alleged to have been directed at agroup/class, it is essential that the statement mustbe so sweeping or all-embracing as to apply to everyindividual in that group or class, or sufficientlyspecific so that each individual in the class or groupcan prove that the defamatory statementspecifically pointed to him, so that he can bring theaction separately, if need be.

Also, the report in the Newsweek article referring asit does to an official act performed by an electivepublic official (i.e. that the victim had been arrested

by members of special police unit brought by themayor of Kabankalan who incidentally is a sugarplanter), is w/in the realm of privilege and isprotected by the constitutional guarantees of freespeech and press. [Newsweek vs. IAC (1986)]

Islamic Da‘Wah Council of the Philippines, Inc., alocal federation of more than 70 Muslim religiousorganizations, filed a complaint for damages againstMVRS Publications, Inc., arising from an article,which says that the pig is sacred for the Muslims.

Freedom of Expression, Libel: As the size of thesegroups increases, the chances for members of such

groups to recover damages on tortious libel becomeelusive. This principle is said to embrace twoimportant public policies: first, where the groupreferred to is large, the courts presume that noreasonable reader would take the statements as soliterally applying to each individual member; andsecond , the limitation on liability wouldsatisfactorily safeguard freedom of speech andexpression, as well as of the press, effecting a soundcompromise between the conflicting fundamentalinterests involved in libel cases.




Courts must be viewpoint-neutral when it comes toreligious matters if only to affirm the neutralityprinciple of free speech rights under modernjurisprudence where "all ideas are treated equal inthe eyes of the First Amendment - even those ideasthat are universally condemned and run counter toconstitutional principles."

Under the right to free speech, "there is no suchthing as a false idea. However pernicious an opinion

may seem, we depend for its correction not on theconscience of judges and juries but on thecompetition of other ideas."

Denying certiorari and affirming the appellate courtdecision would surely create a chilling effect on theconstitutional guarantees of freedom of speech, ofexpression, and of the press. [MVRS v. IslamicDa’Wah Council of the Phil (2003)]

Freedom of Expression and the Right to Privacy Being a public figure does not automatically destroyin toto a person‘s right to privacy. The right toinvade a person‘s privacy to disseminate public info

does not extend to a fictional representation of aperson, no matter how public a figure he/she maybe. In the case at bar, petitioner admits that heincluded a little romance in the film about MoisesPadilla (despite efforts to present the true-to-lifestory of the latter) because w/o it, it would be adrab story of torture and brutality. [Lagunzad vs.Soto (1979)

The TC issued a writ of preliminary injunctionagainst petitioners ordering them to desist fromproducing the movie ―The Four-Day Revolution‖, adocu-drama of EDSA I, on the ground that it violatedthe right to privacy of Juan Ponce Enrile who wasfeatured in the documentary.

The Court held that Freedom of speech andexpression includes freedom of filming andproducing motion pictures and to exhibit them. Thefact that such film production is a commercialactivity is not a disqualification for availing offreedom of speech and expression.

The right to privacy cannot be involved to resistpublication and dissemination of matter of publicinterest.

The intrusion is no more than necessary to keep thefilm a truthful historical account. Enrile is a publicfigure because of his participation as a principalactor in the culminating events of the revolution.

There must be no knowing or reckless disregard oftruth in depicting the participation of Enrile in EDSAI. Also, there must be no presentation of his privatelife and no revelation of intimate or embarrassingpersonal facts. [Ayer Productions vs. Capulong(1988)]

Freedom of Expression and the Administration Of JusticeDue to the delay in the disposition of his originalcase, Cabansag asked for help from the President

through a letter addressed to the PresidentialComplaints and Actions Commission (PCAC). Acontempt charge was brought against him forsending that letter which tended to degrade thelower court in the eyes of the President and of thepeople. SC reversed the ruling which cited him incontempt.

Freedom of Expression and the Administration of Justice: For his act (of sending his letter to the

President and not to the Sec of Justice or SC) to becontemptuous, the danger must cause a seriousimminent threat to the administration of justice. Wecannot infer that such act has "a dangeroustendency" to belittle the court or undermine theadministration of justice for the writer merelyexercised his constitutional right to petition thegovernment for redress of a legitimate grievance. [Cabansag vs. Fernandez (1957)]

Content-Neutral Restrictions

Freedom of AssemblyThe right to freedom of speech and to peaceably

assemble, and petition the government for redressof grievances are fundamental personal rights of thepeople guaranteed by the constitutions ofdemocratic countries. City or town mayors are notconferred the power to refuse to grant the permit,but only the discretion in issuing the permit todetermine or specify the streets or public places where the parade may pass or the meeting may beheld. [Primicias vs. Fugoso (1948)]

The Court held here that freedom of speech andfreedom to peaceably assemble is entitled to beaccorded utmost deference and respect, and cannotbe limited or denied unless there is showing of a

clear and present danger of a substantive evil thatthe State has a right to prevent. For theconstitutional right to be invoked, riotous conduct,injury to property and acts of vandalism must beavoided. Furthermore, absent any clear and presentdanger of a substantive evil, peaceable assembly inpublic places like streets or parks cannot be denied. [J.B.L. Reyes vs. Bagatsing (1983)]

The CPR, insofar as it would purport to differ fromor be in lieu of maximum tolerance, is NULL andVOID. 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 means something else.Accordingly, what is to be followed is and should be

that mandated by the law itself, namely, maximumtolerance.

B.P. 880 not unconstitutional. B.P. No. 880 is notan absolute ban of public assemblies but arestriction that simply regulates the time, place andmanner of the assemblies. The law is not vague oroverbroad. There is, likewise, no prior restraint,since the content of the speech is not relevant tothe regulation. A fair and impartial reading of B.P.No. 880 thus readily shows that it refers to all kindsof public assemblies that would use public places.




Freedom Parks. B.P. 880 provides that every cityand municipality must set aside a freedom parkwithin six months from the law‘s effectivity in 1985,or 20 years ago. Section 15 of the law provides foran alternative forum through the creation offreedom parks where no prior permit is needed forpeaceful assembly and petition at any time.According to the SolGen (Nachura), however, he isaware of only ONE declared freedom park - FuenteOsmena in Cebu City. Without such alternative

forum, to deny the permit would in effect be todeny the right.

Hence, local governments are given a deadline of 30days within which to designate specific freedomparks as provided under B.P. No. 880. If, after thatperiod, no such parks are so identified in accordancewith Section 15 of the law, all public parks andplazas of the municipality or city concerned shall ineffect be deemed freedom parks; no prior permit ofwhatever kind shall be required to hold an assemblytherein. The only requirement will be writtennotices to the police and the office of the mayor toallow proper coordination and orderly activities.

Permit Application. There is need to address thesituation adverted to by petitioners where mayors donot act on applications for a permit and when thepolice demand a permit and the rallyists could notproduce one, the rally is immediately dispersed.

In such a situation, as a necessary consequence andpart of maximum tolerance, rallyists who can showthe police an application duly filed on a given datecan, after two days from said date, rally inaccordance with their application without the needto show a permit, the grant of the permit being thenpresumed under the law, and it will be the burden ofthe authorities to show that there has been a denial

of the application, in which case the rally may bepeacefully dispersed following the procedure ofmaximum tolerance prescribed by the law.

Conclusion. For this reason, the so-called calibratedpre-emptive response policy has no place in our legalfirmament and must be struck down as a darknessthat shrouds freedom. It merely confuses our peopleand is used by some police agents to justify abuses.On the other hand, B.P. No. 880 cannot becondemned as unconstitutional; it does not curtail orunduly restrict freedoms; it merely regulates the useof public places as to the time, place and manner ofassemblies.

Far from being insidious, ―maximum tolerance‖ is forthe benefit of rallyists, not the government. Thedelegation to the mayors of the power to issue rallypermits is valid because it is subject to theconstitutionally-sound clear and present dangerstandard. [Bayan vs. Ermita (2006)]

Freedom of Association and Self-Organization

SEC. 17. Human Security ActProscription of Terrorist Organizations, Association,or Group of Persons. – Any organization, association,

or group of persons organized for the purpose ofengaging in terrorism, or which, although notorganized for that purpose, actually uses the acts toterrorize mentioned in this Act or to sow and createa condition of widespread and extraordinary fearand panic among the populace in order to coerce thegovernment to give in to an unlawful demand shall,upon application of the Department of Justicebefore a competent Regional Trial Court, with duenotice and opportunity to be heard given to the

organization, association, or group of personsconcerned, be declared as a terrorist and outlawedorganization, association, or group of persons by thesaid Regional Trial Court.

The right to associate is not absolute. [People vs.Ferrer (1972)]

Sec. 2 (5), Art 9-B. 1987 Constitution. The right toself-organization shall not be denied to governmentemployees.

Sec. 8, Art. 3, 1987 Constitution. The right of the

people, including those employed in the public andprivate sectors, to form unions, associations, orsocieties for purposes not contrary to law shall notbe abridged.

Par. 2, Sec. 3(2), Art. 13, 1987 Constitution. Itshall guarantee the rights of all workers to self-organization, collective bargaining and negotiations,and peaceful concerted activities, including the rightto strike in accordance with law. They shall beentitled to security of tenure, humane conditions ofwork, and a living wage. They shall also participatein policy and decision-making processes affectingtheir rights and benefits as may be provided by law.

3. Facial Challenges and theOverbreadth Doctrine

Overbreadth Doctrine: A governmental purpose maynot be achieved by means which sweepunnecessarily broadly and thereby invade the area ofprotected freedoms.

(1) Claims of facial overbreadth areentertained in cases involving statuteswhich by their terms seek to regulate onlyspoken words. Such claims have beencurtailed when invoked against ordinarycriminal laws that are sought to be appliedto protected conduct.

(2) A facial challenge using the overbreadthdoctrine will require the Court to examinePP 1017 and pinpoint its flaws and defects,not on the basis of its actual operation topetitioners, but on the assumption orprediction that its very existence may causeothers not before the Court to refrain fromconstitutionally protected speech orexpression.




(3) Also, the challenger must establish thatthere can be no instance when the assailedlaw may be valid.

(4) Used on freedom of expression, when onthe face of a regulation, it appearssweeping.

A plain reading of PP 1017 shows that it is notprimarily directed to speech / speech-relatedconduct. It is actually a call upon the AFP to prevent

or suppress all forms of lawless violence. Petitionersdid not show WON there‘s an instance when PP1017may be valid. [David vs. Arroyo (2006)]

4. Tests

Dangerous Tendency Test

If the words uttered create a dangerous tendency ofan evil which the State has the right to prevent,then such words are punishable. [Cabansag vs.Fernandez (1957)]

It is sufficient if the natural tendency and theprobable effect of the utterance were to bringabout the substantive evil that the legislative bodyseeks to prevent. [People vs. Perez (1956)]

Clear and Present Danger Test

The question in every case is whether the wordsused are used in such circumstances and are of sucha nature as to create a clear and present danger thatthey will bring about the substantive evils thatCongress has a right to prevent. It is a question ofproximity and degree. [Schenck vs. United States(1919)]

This rule requires that ―the danger created must notonly be clear and present but also traceable to theideas expressed‖. [Gonzales vs. COMELEC (1969)]

Note: This test has been adopted by the PhilippineSC lock, stock and barrel and is the test most appliedto cases re: freedom of expression.

Balancing of Interest Test

When a particular conduct is regulated in theinterest of public order, and the regulation results inan indirect, conditional and partial abridgement ofspeech, the duty of the courts is to determinewhich of the two conflicting interests demandsgreater protection. [American Communications Assoc. vs. Douds, 339 US 282]

The test is applied when two legitimate values notinvolving national security crimes compete.[Gonzales vs. COMELEC (1969)]

Direct Incitement Test

In this case, the Petitioner was charged withviolation of the Revised Anti-Subversion Act afterbeing apparently implicated by a certain Victor

Lovely as being involved in the series of bombings inMetro Manila.

Direct Incitement Test: In the case before us, thereis no teaching of the moral propriety of a resort toviolence, much less an advocacy of force or aconspiracy to organize the use of force against theduly constituted authorities.

The alleged remark about the likelihood of violentstruggle unless reforms are instituted is not a threatagainst the government. Nor is it even theuninhibited, robust, caustic, or unpleasantly sharpattack which is protected by the guarantee of freespeech.

Parenthetically, the American case of Brandenburgvs. Ohio (395 U.S. 444) states that the constitutionalguarantees of free speech and free press do notpermit a State to forbid or proscribe advocacy of theuse of force or of law violation except where suchadvocacy is directed to inciting or producingimminent lawless action and is likely to incite or produce such action.

Political discussion even among those opposed to thepresent administration is within the protectiveclause of freedom of speech and expression. Thesame cannot be construed as subversive activitiesper se or as evidence of membership in a subversiveorganization. [Salonga vs. Cruz Paño (1986)]

Grave-But-Improbable Danger Test

In this case, the Petitioners, leaders of theCommunist Party in this country, were indicted in afederal district court under § 3 of the Smith Act for(1) wilfully and knowingly conspiring to organize asthe Communist Party a group of persons to teach andadvocate the overthrow and destruction of theGovernment of the United States by force andviolence, and (2) to knowingly and wilfully advocateand teach the duty and necessity of overthrowingand destroying the Government of the United Statesby force and violence. [Dennis vs. U.S. (1951)]

Grave-But-Improbable Danger Test: To determinethe clear and present danger of the utterancesbringing about the evil which that legislature has thepower to punish, "In each case [courts] must askwhether the gravity of the 'evil,' discounted by itsimprobability, justifies such invasion of free speechas is necessary to avoid the danger." In this case, an

attempt to overthrow the Government by force is asufficient evil for Congress to prevent. It is theexistence of the conspiracy which creates thedanger.

5. State Regulation of Different Typesof Mass Media

Art. XVI Section 11. (1) The ownership andmanagement of mass media shall be limited tocitizens of the Philippines, or to corporations,




cooperatives or associations, wholly-owned andmanaged by such citizens.

The Congress shall regulate or prohibit monopolies incommercial mass media when the public interest sorequires. No combinations in restraint of trade orunfair competition therein shall be allowed.

(2) The advertising industry is impressed with publicinterest, and shall be regulated by law for the

protection of consumers and the promotion of thegeneral welfare.

Only Filipino citizens or corporations or associationsat least seventy per centum of the capital of whichis owned by such citizens shall be allowed to engagein the advertising industry.

The participation of foreign investors in thegoverning body of entities in such industry shall belimited to their proportionate share in the capitalthereof, and all the executive and managing officersof such entities must be citizens of the Philippines.

The Court pronounced that the freedom of broadcastmedia is lesser in scope than the press because oftheir pervasive presence in the lives of people andbecause of their accessibility to children.

Movie Censorship

Gonzales was the producer of the movie Kapit saPatalim w/c the Board of Review for Motion Picturesand Televisions classified as fit ―For Adults Only.‖

Here the Court held that the power of the Board islimited to the classification of films. For freedom ofexpression is the rule and restrictions the exception.Censorship is allowable only under the clearest

proof of a clear and present danger of asubstantive evil to public safety, morals, health orany other legit public interest:

(1) There should be no doubt what is fearedmay be traced to the expressioncomplained of.

(2) Also, there must be reasonableapprehension about its imminence. It doesnot suffice that the danger is onlyprobable. [Gonzales vs. Kalaw Katigbak(1985)]

Limited intrusion into a person‘s privacy ispermissible when that person is a public figure and

the information sought to be published is of a publiccharacter.

What is protected is the right to be free fromunwarranted publicity, from the wrongful publicizingof the private affairs of an individual which areoutside the realm of public concern. [Ayer Productions vs Capulong, supra]

Television Censorship

P.D. 1986 gives the petitioner the power to screen,review and examine all television programs.

By the clear terms of the law, the Board has thepower to ―approve, delete, or prohibit theexhibition and/or television broadcasts of televisionprograms. The law also directs the Board to applycontemporary Filipino culture values as standard todetermine those which are objectionable for beingimmoral, indecent, contrary to law and/or goodcustoms injurious to the prestige of the Republic ofthe Philippines and its people, or with a dangerous

tendency to encourage the commission of a violenceor of a wrong or a crime.

According to Iglesia ni Cristo vs. CA: The law givesthe Board the power to screen, review and examineALL ―television programs‖ whether religious, publicaffairs, news documentary, etc. (Ubi lex nondistinguit nec distinguere debemos-when the lawdoes not make any exception, courts may not exceptsomething therefrom, unless there is compellingreason apparent in the law to justify it).

Also, the fact that freedom of religion has beenaccorded a preferred status, still the Court did not

exempt Iglesia ni Cristo‘s program from MTRCB‘spower to review. Freedom of expression and of thepress has not been declared of preferred status. [MTRCB vs. ABS-CBN (2005)]

The Supreme Court could not compel TV stations andradio stations, being indispensable parties, to giveUNIDO free air time as they were not impleaded inthis case. UNIDO must seek a contract with these TVstations and radio stations at its own expense. [UNIDO vs COMELEC (1981)]

The television camera is a powerful weapon whichintentionally or inadvertently can destroy an accusedand his case in the eyes of the public.

Considering the prejudice it poses to the defendant‘sright to due process as well as to the fair and orderlyadministration of justice, and considering furtherthat the freedom of the press and the right of thepeople to information may be served and satisfied byless distracting, degrading and prejudicial means,live radio and television coverage of the courtproceedings shall not be allowed. No video shots orphotographs shall be permitted during the trialproper.

Video footages of court hearings for news purposesshall be limited and restricted as above indicated.[Secretary of Justice vs Sandiganbayan (2001)]

Radio Censorship

The Supreme Court does not uphold claim that FarEastern had no right to require the submission of themanuscript. It is a duty of Far Eastern to require thesubmission of a manuscript as a requirement inbroadcasting speeches. Besides, laws provide forsuch actions:

Act 8130. Franchise for Far Eastern; radio to beopen to the general public but subject to regulations




Comm. Act 98. Sec. of Interior and/or the RadioBoard is empowered to censor what is considered―neither moral, educational or entertaining, andprejudicial to public interest.‖ The Board canforfeit the license of a broadcasting station.

Sec. of the Interior, Dept. Order 13. Requiressubmission of daily reports to Sec. of Interior/RadioBoard re: programs before airing. For speeches, amanuscript or short gist must be submitted.

[Santiago vs. Far Eastern Broadcasting (1941)]

6. Commercial Speech

Commercial speech is unprotected speech.Commercial Advertising in the U.S. has beenaccorded First Amendment protection but it not inthe same level of protection given to politicalspeech. One case set down the requirements forprotection of commercial speech: (1) speech mustnot be false, misleading or proposing an illegalactivity; (2) government interest sought to be servedby regulation must be substantial; (3) the regulation

must advance government interest; and (4) theregulation must not be overbroad. [BERNAS]

7. Private v. Government Speech

Parliamentary immunity guarantees the membersthe freedom of expression without fear of beingmade responsible in criminal or civil actions beforecourts or forum outside of Congress. But this doesnot protect them from responsibility from thelegislative body. The members may nevertheless bequestioned in Congress itself.

For unparliamentary conduct, members of the

Congress have been, or could be censured,committed to prison, even expelled by the votes oftheir colleagues. [Osmeña v. Pendatun (1960)]

8. Heckler’s Veto

An attempt to limit unpopular speech. For example,an unpopular group wants to hold a rally and asks fora permit. The government isn't allowed to refuse thepermit based upon the beliefs of the applicants. Butthe government can deny the permit, reasoning thatit isn't because the government disapproves of thegroup's message, it's just afraid that so many peoplewill be outraged that there might be violent

protests. Under the Free Speech Clause of Sec. 4 ArtIII, the government may not silence speech based onthe reaction (or anticipated reaction) of a hostileaudience, unless there is a "clear and presentdanger" of grave and imminent harm, which isn'teasy to prove.

H. Freedom of Religion1. Non-Establishment Clause2. Free Exercise Clause

Art. III, Sec. 5. No law shall be made respecting anestablishment of religion; or prohibiting the freeexercise thereof. The free exercise and enjoymentof religious profession and worship, withoutdiscrimination or preference, shall forever beallowed. No religious test shall be required for theexercise of civil or political rights.

1. Non-Establishment Clause

ConceptThe clause prohibits excessive governmententanglement with, endorsement or disapproval ofreligion [Victoriano v. Elizalde Rope Workers Union(1974); Lynch v. Donnelly, 465 US 668 (1984)O'Connor, J., concurring); Allegheny County v.Greater Pittsburg ACLU (1989 ) ]

BasisRooted in the separation of Church and State [Sec.2(5), Art. IX-C; Sec. 5(2), Sec. 29(2) Art. VI, 1987 Consti]

Acts NOT permitted by Non-establishmentClause

(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 (1971)]

(3) Religious displays in public spaces: Displayof granite monument of 10 commandmentsin front of a courthouse is unconstitutionalfor being unmistakably non-secular. Nothingin its setting de-emphasizes its religiousnature. It engenders in viewers a sense thatChristianity is endorsed by the government.[Glassroth vs. Moore, 335 F.3d 1282 (11thCir. 2003)]

(4) Mandatory religious subjects or prohibitionof secular subjects (evolution) in schools[Epperson vs. Arkansas (1968)]

(5) Mandatory bible reading in school (a form ofpreference for belief over non-belief)[School District vs. Schempp (1963)]

(6) Word ―God‖ in the Pledge of Allegiance:

Mandatory recitation in school of such aPledge of Allegiance would tend todiscriminate against students who areatheists. [Newdow vs. US (2003)]

Acts Permitted by the Establishment Clause

(1) Tax exemption

Sec. 28 (3), Art. 6. Charitable institutions, churchesand personages or convents appurtenant thereto,mosques, non-profit cemeteries, and all lands,buildings, and improvements, actually, directly, and




exclusively used for religious, charitable, oreducational purposes 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 by citizens ofthe Philippines or corporations or associations atleast sixty per centum of the capital 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 shall beallowed to be taught to their children or wards inpublic elementary and high schools within theregular class hours by instructors designated orapproved by the religious authorities of the religionto which the children or wards belong, withoutadditional cost to the Government.

Civil Code, Art. 359. The government promotes thefull growth of the faculties of every child. For thispurpose, the government will establish, wheneverpossible:(1) Schools in every barrio, municipality and city

where 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, or employed,directly or indirectly, for the use, benefit, orsupport of any sect, church, denomination, sectarianinstitution, or system of religion, or of any priest,preacher, minister, other religious teacher, ordignitary as such, except when such priest,

preacher, minister, or dignitary is assigned to thearmed forces, or to any penal institution, orgovernment orphanage or leprosarium.

(5) Postage stamps depicting Philippines as thesite of a significant religious event

Postage stamps which promote a Catholic eventare constitutional. The benefit to religious sectis incidental to promotion of Philippines as atourist destination. [Aglipay vs. Ruiz, (64 Phil.201)]

(6) Government sponsorship of town fiestas.

Traditions which used to be purely religiousbut have now acquired secular characterare permissible [Garces vs. Estenzo (1981)]

(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

Crèche is displayed in a secular manner, andmerely depicts the origins of the holiday. TheConstitution mandates accommodation and notmerely tolerance. Instead of an absolutistapproach, court inquires if the law or conducthas a secular purpose. [Lynch vs. Donnely (1984)]

(9) Financial support for secular academicfacilities

WON a law that grants financial support forexpansion of educational facilities in parochialschools is constitutional. HELD: Yes, secularpurpose – facilities to be used for secularactivities. The facilities built here were a libraryand a science center. [Tilton vs. Richardson(403 U.S. 672)]

(10) Exemption from zoning requirements toaccommodate unique architectural featuresof religious buildings

WON zoning law giving exemption to religious

sect (Mormons building a tall pointed steeple) isconstitutional. HELD: Yes, court may notdetermine whether architectural features arenecessary for a particular religion, e.g. steeplepointing upwards into heaven for Mormons. [Martin vs. Corporation of the Presiding Bishop(434 Mass. 141)]

Test

Lemon Test(1) Statute must have a secular legislative

purpose.(2) Primary effect must be one that neither

advances nor inhibits religion.

(3) Must not foster excessive entanglementbetween government and religion. [Lemonvs. Kurtzman, (403 U.S. 602)]

2. Free Exercise Clause

Dual Aspect(1) Freedom to believe - absolute(2) Freedom to act on one‘s belief – subject to

regulation

Laws Justified under Free Exercise Clause

(1) Exemption from flag salute

Conscientious Objectors cannot be compelled tosalute the flag on pain of being dismissed fromone's job or of being expelled from school.[Ebralinag vs. Division Superintendent of Schools of Cebu (1993)]

(2) Freedom to propagate religious doctrines

The power to tax the exercise of the privilege isthe power to control or suppress its enjoyment.Those who can tax the exercise of religious practice can make its exercise so costly as to




deprive it of the resources necessary for itsmaintenance. [American Bible Society vs. City of Manila (1957)]

(3) Exemption from union shop

Neither does the law constitute anestablishment of religion. It has been held thatin order to withstand objections based on thisground, the statute must have a secular purpose

and that purpose must not directly advance ordiminish the interest of any religion. Congressacted merely to relieve persons of the burdenimposed by union security agreements. The freeexercise of religious profession or belief issuperior to contract rights. [Victoriano vs.Elizalde Rope Workers Union (1974)]

(4) Non-disqualification from local governmentoffice

For lack of votes, law disqualifying religiousleaders from public office is held valid. As perfree exercise clause, it is invalid for it requires a

religious test for qualification. [Pamil vs.Teleron (1978)]

Dean Pangalangan: There should be no distinctionbetween ordinary believer and the Pope; if theformer can hold office, why not the latter.

I. Liberty of Abode and Freedom of Movement1. Limitations2. Return to One’s Country

Sec. 6, Art. III: The liberty of abode and of changingthe same within the limits prescribed by law shall

not be impaired except upon lawful order of thecourt. Neither shall the right to travel be impairedexcept in the interest of national security, publicsafety or public health, as may be provided by law.

"Liberty" as understood in democracies, is notlicense; it is "Liberty regulated by law."

The right of the individual is necessarily subject toreasonable restraint by general law for the commongood. The Liberty of the citizens may be restrainedin the interest of the public health, or of the publicorder and safety, or otherwise within the properscope of the police power.

None of the rights of the citizen can be taken awayexcept by due process of law.

The government's measure in relocating theManguianes, a nomadic people with a wayfaring lifeand without permanent individual property isnecessary both in the interest of the public as ownerof the lands about which they are roving and for theproper accomplishment of the purposes andobjectives of the government. For as peopleaccustomed to nomadic habit, they will always longto return to the mountains and follow a wayfaringlife, and unless a penalty is provided for, you cannot

make them live together and the noble intention ofthe Government of organizing them politically willcome to naught. Furthermore, their relocation (andthe imposition that they are not allowed to emigrateto some other places under penalty of imprisonment)is a proper restraint to their liberty, they beingtaught and guided in Tigbao to improve their livingconditions, and improve their education. In short,everything is being done from them in order thattheir advancement in civilization and material

prosperity may be assured. [Rubi vs. ProvincialBoard (1919)]

The executive of a municipality does not have theright to force citizens of the Philippine Islands tochange their domicile from one locality to another.Law defines power, and there is no law norregulation that allows a mayor or a police chief torestrain the liberty of abode of citizens of thePhilippines. [Villavicencio vs. Lukban (1919)]

1. Limitations

Right to Travel

RIGHT NOT ABSOLUTE: The Constitutional Right toTravel under Sec. 5, Art. IV of the 1973 Constitutionis not an absolute right, and can only be impairedupon lawful order of the court, or when necessary inthe interest of national security, public safety orpublic health. Releasing the petitioner on bail andthat as a condition, he make himself available at alltimes is a valid restriction on his right to travel. Toallow him to travel, especially abroad will make theorder of the court nugatory as the court's jurisdictioncannot extend beyond the Philippines. [Manotok vs.CA (1986)]

2. Return to One’s Country

The threats to the government, to which the returnof the Marcoses has been viewed to provide acatalytic effect, have not been shown to haveceased. The President has unstated residual powerswhich are implied from the grant of executive powerand which are necessary for her to comply with herduties under the Constitution. One of her duties is toprotect and promote 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 this boundenduty. [Marcos vs. Manglapus (1989)]

J. Right to Information1. Limitations2. Publication of Laws and Regulations3. Access to Court Records4. Right to Information Relative to…

Art. II Section 28. Subject to reasonable conditionsprescribed by law, the State adopts and implementsa policy of full public disclosure of all itstransactions involving public interest.




Art. III Section 7. The right of the people toinformation on matters of public concern shall berecognized. Access to official records, and todocuments and papers pertaining to official acts,transactions, or decisions, as well as to governmentresearch data used as basis for policy development,shall be afforded the citizen, subject to suchlimitations as may be provided by law.

Art. XVI Section 10. The State shall provide thepolicy environment for the full development ofFilipino capability and the emergence ofcommunication structures suitable to the needs andaspirations of the nation and the balanced flow ofinformation into, out of, and across the country, inaccordance with a policy that respects the freedomof speech and of the press.

Scope

Right to information contemplates inclusion ofnegotiations leading to the consummation of thetransaction. Otherwise, the people can neverexercise the right if no contract is consummated, orif one is consummated, it may be too late for thepublic to expose its defects. However, if the rightonly affords access to records, documents andpapers, which means the opportunity to inspect andcopy them at his expense. The exercise is alsosubject to reasonable regulations to protect theintegrity of public records and to minimizedisruption of government operations. [Chavez v. PEAand Amari, G.R. No. 133250, July 9, 2002]

1. Limitations

The right does not extend to matters recognized asprivileged information rooted in separation of

powers, nor to information on military anddiplomatic secrets, information affecting nationalsecurity, and information on investigations of crimesby law enforcement agencies before the prosecutionof the accused. [Chavez v. PEA and Amari, supra]

Media practitioners requested information from theGM of GSIS regarding clean loans granted to certainmembers of the defunct Batasang Pambansa on theguaranty of Imelda Marcos shortly before the Feb1986 elections. Request was refused on the groundof confidentiality.

The right to information is not absolute. It is limited

to matters of public concern and is subject to suchlimitations as may be provided by law. That the GSISwas exercising a proprietary function would notjustify its exclusion of the transactions from thecoverage of the right to info. But although citizenshave such right and, pursuant thereto, are entitledto ―access to official records,‖ the Constitution doesnot accord them the right to compel custodians ofofficial records to prepare lists, summaries and thelike in their desire to get info on matters of publicconcern. [Valmonte vs. Belmonte (1989)]

While the Constitution guarantees access toinformation on matters of public concern, access issubject to reasonable regulation for the convenienceof and for order in the office that has custody of thedocuments. [Baldoza vs Dimaano (1976)]

While the public officers in custody or in control ofpublic records have the discretion to regulate themanner in which such records may be inspected,examined or copied by interested persons, such

discretion does not carry with it the authority toprohibit access, inspection, examination, orcopying.‖ [Lantaco vs Llamas (1981)]

2. Publication of Laws andRegulations

We hold therefore that all statutes, including thoseof local application and private laws, shall bepublished as a condition for their effectivity, whichshall begin fifteen days after publication unless adifferent effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees andexecutive orders promulgated by the President inthe exercise of legislative powers whenever thesame are validly delegated by the legislature or, atpresent, directly conferred by the Constitution.Administrative rules and regulations must also bepublished if their purpose is to enforce or implementexisting law pursuant also to a valid delegation.

Interpretative regulations and those merely internalin nature, that is, regulating only the personnel ofthe administrative agency and not the public, neednot be published. Neither is publication required ofthe so-called letters of instructions issued byadministrative superiors concerning the rules or

guidelines to be followed by their subordinates inthe performance of their duties.

Accordingly, even the charter of a city must bepublished notwithstanding that it applies to only aportion of the national territory and directly affectsonly the inhabitants of that place. All presidentialdecrees must be published, x x x. The circularsissued by the Monetary Board must be published ifthey are meant not merely to interpret but to "fill inthe details" of the Central Bank Act which that bodyis supposed to enforce.

Publication must be in full or it is no publication atall since its purpose is to inform the public of thecontents of the laws. [Tañada vs Tuvera (1986)]

3. Access to Court Records

Canon II Confidentiality Code of Conduct for CourtPersonnel (AM No. 03-06-13-SC) SECTION 1. Court personnel shall not disclose to anyunauthorized person any confidential informationacquired by them while employed in the judiciary,whether such information came from authorized orunauthorized sources.




Confidential information means information not yetmade a matter of public record relating to pendingcases, as well as information not yet made publicconcerning the work of any justice or judge relatingto pending cases, including notes, drafts, researchpapers, internal discussions, internal memoranda,records of internal deliberations and similar papers.

The notes, drafts, research papers, internaldiscussions, internal memoranda, records of internaldeliberations and similar papers that a justice orjudge uses in preparing a decision, resolution ororder shall remain confidential even after thedecision, resolution or order is made public.

Decisions are matters of public concern and interest.Pleadings and other documents filed by parties to acase need not be matters of public concern orinterest. They are filed for the purpose ofestablishing the basis upon which the court mayissue an order or a judgment affecting their rightsand interest. Access to court records may bepermitted at the discretion and subject to thesupervisory and protective powers of the court, after

considering the actual use or purpose for which therequest for access is based and the obviousprejudice to any of the parties. [Hilado, et al vs Judge (2006)]

4. Right to Information Relative to

Government Contract Negotiations

The constitutional right to information includesofficial information on on-going negotiations beforea final contract. The information, however, mustconstitute definite propositions by the government,and should not cover recognized exceptions. [Chavez v. Philippine Estate Authority (2002)]

The limitations recognized to the right ofinformation are:

(1) National security matter including statesecrets regarding military and diplomaticmatters, inter-government exchanges priorto the conclusion of treaties and executiveagreements.

(2) Trade secrets and banking transactions(3) Criminal Matters(4) Other confidential matters. [Neri vs Senate

(2008) citing Chavez vs PresidentCommission on Good Government]

Diplomatic Negotiations

Diplomatic negotiations have a privileged character. [Akbayan vs Aquino cited in Neri vs Senate (2008)]

Court Hearings

When the constitutional guarantees of freedom ofthe press and the right to public information, on theone hand, and the fundamental rights of theaccused, on the other hand, along with theconstitutional power of a court to control its

proceedings in ensuring a fair and impartial trialrace against another, jurisprudence tells us that theright of the accused must be preferred to win. Withthe possibility of losing not only the precious libertybut also the very life of an accused, it behooves allto make absolutely certain that an accused receivesa verdict solely on the basis of a just anddispassionate judgment, a verdict that would comeonly after the presentation of credible evidencetestified to by unbiased witnesses unswayed by any

kind of pressure, whether open or subtle, inproceedings that are devoid of histrionics that mightdetract from its basic aim to ferret veritable factsfree from improper influence, and decreed by ajudge with an unprejudiced mind unbridled byrunning emotions or passions. [Re: Request for LiveRadio-TV Coverage of the Trial in the Sandiganbayanof the Plunder Cases against former President Joseph Ejercito Estrada, Secretary of JusticeHernando Perez v. Joseph Ejercito Estrada, A.M. No.00-1-4-03-SC, June 29, 2001]

K. Right to Association1. Labor Unionism2. Communist and Similar Organizations3. Integrated Bar of the Philippines

Sec. 8, Art. III. The right of the people, includingthose employed in the public and private sectors, toform unions, association, or societies for purposesnot contrary to law shall not be abridged.

Sec 2(5), Art. IX-B. The right to self-organizationshall not be denied to government employees.

Sec. 3, Art. XIII. x x x. It shall guarantee the rightsof all workers to self-organization, collectivebargaining and negotiations, and peaceful concertedactivities, including the right to strike in accordancewith law. They shall be entitled to security oftenure, humane conditions of work, and a livingwage. They shall also participate in policy anddecision-making processes affecting their rights andbenefits as may be provided by law.

With or without a constitutional provision of thischaracter, it may be assumed that the freedom toorganize or to be a member of any group or societyexists. With this explicit provision, whatever doubtsthere may be on the matter are dispelled. Unlike thecases of other guarantee which are mostly Americanin origin, this particular freedom has an indigenous

cast. It can trace its origin to the MalolosConstitution.

The limitation "for purposes not contrary to law"should be interpreted as another way of expressingthe clear and present danger rule for unless anassociation or society could be shown to create animminent danger to public safety, there is nojustification for abridging the right to formassociation societies. [Gonzales vs COMELEC (1969)]

Note: The right is recognized as belonging to peoplewhether employed or unemployed, and whether




employed in the government or in the private sector.It also recognizes that the right to form associationsincludes the right to unionize

It should be noted that the provision guarantees theright to associations. It does not include the right tocompel others to form an association. But there maybe situations in which, by entering into a contract,one may also be agreeing to join an association.[BERNAS]

If a land buyer who buys a lot with an annotated lienthat the lot owner becomes an automatic member ofa homeowners‘ association thereby voluntarily joinsthe association. [Bel-Air Village Association vsDiokno (1989)]

1. Labor Unionism

The right to form associations does not necessarilyinclude the right to be given legal personality.However, if the law itself should make possession oflegal personality a pre-condition for effectiveassociational action, involved would be not just the

right to have legal personality but also the right tobe an association. [Philippine Association of FreeLabor Unions vs Secretary of Labor (1969)]

The right of association of managerial employees isdenied because of Article 245 of the Labor Codewhich provides that managerial employees are noteligible to join, assist or form any labororganization. This is because Art III Sec 8 is subjectto the condition that its exercise is for the purposesnot contrary to law. [United Pepsi-Cola Supervisory Union (UPSU) vs Laguesma (1998)]

2. Communist and Similar

Organizations

This is a question of the constitutionality of the Anti-Subversion Act which declares the Communist Partyof the Philippines (CPP) and similar organizations―illegal and outlawed.‖ Although the Supreme Courtupheld the validity of the statute, ―we cannotoveremphasize the need for prudence andcircumspection in its enforcement, operating as itdoes in the sensitive area of freedom of expressionand belief.‖ The basic guidelines for prosecutionunder the Act, are the following elements for thecrime to be established:

(1) In case of subversive organizations otherthan the CPP, (a) that the purpose of theorganization is to overthrow the presentGovernment of the Philippines and toestablish in this country a totalitarianregime under the domination of a foreignpower; (b) that the accused joined suchorganization; and (c) that he did soknowingly, willfully and by overt acts; and

(2) In the case of the CPP, (a) that the CPPcontinues to pursue the objectives whichled Congress in 1957 to declare it to be an

organized conspiracy for the overthrow ofthe Government by illegal means for thepurpose of placing the country under thecontrol of a foreign power; (b) that theaccused joined the CPP; (c) that he did sowillfully, knowingly and by overt acts. [People vs Ferrer (1972)]

3. Integrated Bar of the Philippines

Compulsory membership of a lawyer in theintegrated bar of the Philippines does not violate theconstitutional guarantee. [In Re: Edillon, 84 SCRA554]

L. Eminent Domain1. Concept2. Expansive Concept of ―Public Use‖ 3. Just Compensation4. Abandonment of Intended Use and Right of Repurchase5. Miscellaneous Application

1. Concept

It is the right of the government to take privateproperty with just compensation.

The power of eminent domain does not depend forits existence on a specific grant in the constitution.It is inherent in sovereignty and exists in a sovereignstate without any recognition of it in theconstitution. The provisions found in most of thestate constitutions relating to the taking of propertyfor the public use do not, by implication, grant thepower to the government of the state, but limit a

power which would otherwise be without limit. (citations omitted) [Visayan Refining Co. vs. Camus,G.R. No. L-15870, December 3, 1919]

Generally(1) Taking of Private Property(2) for Public Use,(3) with Just Compensation, and(4) Due Process.

Specifically (LGUs, Sec. 19, Local Government Code)(1) Ordinance by a local legislature council is

enacted authorizing local chief executive toexercise eminent domain,

(2) For public use, purpose or welfare or for

the benefit of the poor and of the landless,(3) Payment of just compensation,(4) Valid and definite offer has been previously

made to owner of the property sought to beexpropriated but such offer was notaccepted [Municipality of Parañaque vs. VMRealty (1998)]

Jurisdiction over a complaint for eminent domain iswith the Regional Trial Court. While the value of theproperty to be expropriated is estimated inmonetary terms – for the court is duty bound todetermine the amount of just compensation to be




paid for the property – it is merely incidental to theexpropriation suit [Barangay San Roque, Talisay,Cebu v. Heirs of Francisco Pastor, G.R. No. 138869, June 20, 2000; Bardillion v. Barangay Masili of Calamba, Laguna, G.R. No. 146886, April 30, 2003]

The issuance of a writ of possession becomesministerial upon the (1) filing of a complaint forexpropriation sufficient in form and substance, and(2) upon deposit made by the government of the

amount equivalent to 15% of the fair market value ofthe property sought to be expropriated per currenttax declaration. [Biglang-Awa v. Judge Bacalla, G.R.Nos. 139927-139936, November 22, 2000; Bardillonv. Barangay Masili of Calamba, Laguna, Laguna, G.R.No. 146886, April 30, 2003]

Scope and LimitationsAll Private Property capable of ownership may beexpropriated, except money and choses in action.Even services may be subject to eminent domain.[Republic v. PLDT, 26 SCRA 620]

The exercise of the right of eminent domain,

whether directly by the State or by its authorizedagents, is necessarily in derogation of private rights.Hence, strict construction will be made against theagency exercising the power. [Jesus is Lord ChristianSchool Foundation v. Municipality of Pasig, G.R. No.152230, August 9, 2005]

NecessityThe foundation of the right to exercise eminentdomain is genuine necessity and that necessity mustbe of public character. Government may notcapriciously or arbitrarily choose which privateproperty should be expropriated. [Lagcao v. JudgeLabra, G.R. No. 155746, October 13, 2004]

When the power is exercised by the legislature, thequestion of necessity is generally a politicalquestion. [Municipality of Meycauyan, Bulacan v.Intermediate Appellate Court, 157 SCRA 640]

The RTC has the power to inquire into the legality ofthe exercise of the right of eminent domain and todetermine whether there is a genuine necessity forit. [Bardillon v. Barangay Masili of Calamba, Laguna,G.R. No. 146886, April 30, 2003]

Private PropertyPrivate property already devoted to public usecannot be expropriated by a delegate of legislatureacting under a general grant of authority. [City of Manila v. Chinese Community, 40 Phil 349]

TakingThe exercise of the power of eminent does notalways result in the taking or appropriation of titleto the expropriated property; it may only result inthe imposition of a burden upon the owner of thecondemned property, without loss of title orpossession. [National Power Corporation v.Gutierrez, 193 SCRA 1]

Requisites for a valid taking:

(1) The expropriator must enter a private property

(2) Entry must be for more than a momentary period

(3) Entry must be under warrant or color of legal authority

(4) Property must be devoted to public use orotherwise informally appropriated orinjuriously affected

Utilization of the property must be in such a way as

to oust the owner and deprive him of beneficialenjoyment of the property. [Republic v. Castelvi, 58SCRA 336]

Due ProcessThe defendant must be given an opportunity to beheard. In the case of Belen v. Court of Appeals, theSupreme Court declared two Presidential Decreesunconstitutional for violating due process becausethey did not provide for any form of hearing orprocedure by which the propriety of theexpropriation or the reasonableness of thecompensation.

―Taking‖ via eminent domain vs. ―taking‖ undersocial justice clauseAgrarian Reform (Art. XIII, Sec. 4): This provision isan exercise of the police power of the State througheminent domain ( Association of Small Landownersvs. Secretary of Agrarian Reform) as it is a means toregulate private property.

The Comprehensive Agrarian Reform Law prescribesretention limits to the landowners, there is anexercise of police power for the regulation of privateproperty in accordance with the constitution. But incarrying out such regulation, the owners aredeprived of lands they own in excess of themaximum area allowed, there is also taking under

the power of eminent domain. The takingcontemplated is not a mere limitation on the use ofthe land, but the surrender of the title to andphysical possession of the excess and all beneficialrights accruing to the owner in favor of thebeneficiary. [Sta. Rosa Realty & Development Corp.v. Court of Appeals, G.R. No. 112526, October 12,2001]

2. Expansive Concept of ―Public Use‖

Definition The idea that "public use" means "use by the public"has been discarded. At present, whatever may be

beneficially employed for the general welfare satisfies the requirement of public use. [Heirs of Juancho Ardona vs. Reyes, 123 SCRA 220]

That only a few benefit from the expropriation doesnot diminish its public-use character, inasmuch aspubic use now includes the broader notion ofindirect public benefit or advantage [FilstreamInternational vs. CA, 284 SCRA 716]

―Public use‖ is the general concept of meetingpublic need or public exigency. It is not confined toactual use by the public in its traditional sense. The




idea that ―public use‖ is strictly limited to clearcases of ―use by the public‖ has been abandoned.The term ―public use‖ has now been held to besynonymous with ―public interest‖, ―public benefit‘,―public welfare‖ and ―public convenience‘. [Reyes v.National Housing Authority, G.R. No. 147511, January 20, 2003]

The practical reality that greater benefit may bederived by Iglesia ni Cristo members than most

others could well be true, but such peculiaradvantage still remains merely incidental andsecondary in nature. That only few would benefitfrom the expropriation of the property does notnecessarily diminish the essence and character ofpublic use [Manosca v. Court of Appeals, 252 SCRA412]

3. Just Compensation

DefinitionIt is the just and complete equivalent of the losswhich the owner of the thing expropriated has tosuffer by reason of the expropriation.

Full and fair equivalent of the property taken; it isthe fair market value of the property. It is settledthat the market value of the property is ―that thesum of money which a person, desirous but notcompelled to buy, and an owner, willing but notcompelled to sell, would agree on as a price to begiven and received therefor‖ [Province of Tayabasvs. Perez (1938)]

Determination

BASIS: Fair Market ValuePrice fixed by a buyer desirous but not compelled to

buy and a seller willing but not compelled to sell.

Must include consequential damages (damages toother interest of the owner attributable to theexpropriation) and deduct consequential benefits (increase of value of other interests attributable tonew use of the former property).

CHOICE OF PROPERTY TO BE EXPROPRIATED ISSUBJECT TO JUDICIAL REVIEW AS TOREASONABLENESS: Under Section 2, Article IV of thePhilippine Constitution, the Republic of thePhilippines can take private property upon paymentof just compensation. However, private property tobe taken cannot be chosen arbitrarily and

capriciously, as the landowner is entitled to dueprocess. The Department of Public Highwaysoriginally established the extension in CunetaAvenue, and it is assumed that they made extensivestudies regarding it. The change from Cuneta Avenueto Fernando Rein-Del Pan Streets cannot be justifiedon the ground of social impact, as the properties tobe affected along Cuneta Avenue are mostly motels. [De Knecht vs. Bautista (1980)]

The Presidential Decrees merely serve as a guide ora factor for the courts in determining amount of justcompensation (which should be the fair and full

value of the property at time of taking). The courtshave the power and authority to determine justcompensation, independent of what the decreesstate, and thus may appoint commissioners to helpin determining just compensation. [EPZA vs. Dulay,148 SCRA 305]

While commissioners are to be appointed by thecourt for the determination of just compensation,the latter is not bound by the commissioners‘

findings. [Republic v. Santos, 141 SCRA 30; Republic(MECS) v. IAC, 185 SCRA 572]

The court may substitute its own estimate of thevalue of the property only for valid reasons: (a) thecommissioners have applied illegal principles to theevidence submitted to them; (b) they havedisregarded a clear preponderance of evidence; or(c) where the amount allowed is either grosslyinadequate or excessive. [National Power Corporation v. De la Cruz, G.R. No. 156093,February 2, 2007]

Non-payment of just compensation in an

expropriation proceeding does not entitle theprivate landowners to recover possession of theexpropriated lots, but only to demand payment ofthe fair market value of the property. [Republic of the Philippines v. Court of Appeals, G.R. No.146587, July 2, 2002; Reyes v. National Housing Authority, G.R. No. 147511, Janaury 29, 2003]

The Republic was ordered to pay just compensationtwice: first, in the expropriation and then, in theaction for recovery of possession but it never did. 57years have lapsed since the expropriation case wasterminated but the Republic never paid the owners.The court construed the failure to pay as adeliberate refusal on the part of the Republic. When

the government fails to pay just compensationwithin five years from the finality of the judgment inthe expropriation proceedings, the ownersconcerned shall have the right to recover possessionof their property. [Republic of the Philippines v.Vicente Lim, G.R. No. 161656, June 29, 2005]

Effect of Delay

Just compensation means not only the correctamount to be paid to the owner of the land but alsopayment within a reasonable time from its taking[Eslaban v. De Onorio, G.R. No. 146062, June 28,2001]

The filing of the case generally coincides with thetaking. When the filing of the case coincides withthe taking, and the value of the property hasincreased because of the use to which theexpropriator has put it, the value is that of the timeof the earlier taking. Otherwise the owner wouldgain undeserved profit. But if the value increasedindependently of what the expropriator did, thenthe value is that of the later filing of the case. Also,between the time payment is due and the actualpayment, legal interest (6%) accrues. [NAPOCOR v.CA (1996)]




4. Abandonment of Intended Use andRight of Repurchase

If the expropriator (government) does not use theproperty for a public purpose, the property revertsto the owner in fee simple. [Heirs of Moreno vs.

Mactan-Cebu International Airport (2005)]

5. Miscellaneous Application

What the due process clause requires is that thelandowner must be given reasonable opportunity tobe heard and to present his claim or defense.Although due process does not always necessarilydemand that a proceeding be had before a court oflaw, it still mandates some form of proceedingwherein notice and reasonable opportunity to beheard are given to the owner to protect his propertyrights. Although there are exceptional situationswhen in the exercise of the power of eminent

domain, the requirement does not need judicialprocess, when it is alleged that the landowner‘sright to due process of law has been violated in thetaking of his property, the courts can probe andcheck on the alleged violation. [Manotok vs. NHA(1987)]

The performance of the administrative actsnecessary to the exercise of the power of eminentdomain in behalf of the state is lodged by traditionin the Sovereign or other Chief Executive.

Where the Legislature has expressly conferred theauthority to maintain expropriation proceedingsupon the Chief Executive, the right of the latter toproceed therein is clear.

Once authority is given to exercise the power ofeminent domain, the matter ceases to be whollylegislative. The executive authorities may thendecide whether the power will be invoked and towhat extent. (citations omitted) [Visayan RefiningCo. vs. Camus, G.R. No. L-15870, December 3, 1919]

The particular mention in the Constitution ofagrarian reform and the transfer of utilities andother private enterprises to public ownership merelyunderscores the magnitude of the problems soughtto be remedied by these programs. They do not

preclude nor limit the exercise of the power ofeminent domain for such purposes like tourism andother development programs.

There can be no doubt that expropriation for suchtraditions' purposes as the construction of roads,bridges, ports, waterworks, schools, electric andtelecommunications systems, hydroelectric powerplants, markets and slaughterhouses, parks,hospitals, government office buildings, and floodcontrol or irrigation systems is valid. However, theconcept of public use is not limited to traditionalpurposes. Here as elsewhere the Idea that "public

use" is strictly limited to clear cases of "use by thepublic" has been discarded.

Private bus firms, taxicab fleets, roadsiderestaurants, and other private businesses usingpublic streets and highways do not diminish in theleast bit the public character of expropriations forroads and streets. The lease of store spaces inunderpasses of streets built on expropriated landdoes not make the taking for a private purpose.

Airports and piers catering exclusively to privateairlines and shipping companies are still for publicuse. The expropriation of private land for slumclearance and urban development is for a publicpurpose even if the developed area is later sold toprivate homeowners, commercial firms,entertainment and service companies, and otherprivate concerns. [Heirs of Ardona vs. Reyes, G.R.Nos. L-60549, 60553 to 60555, October 26, 1983)

Art. III, Sec. 9. Private property shall not be takenfor public use without just compensation.

Art. XII, Sec. 18. The State may, in the interest of

national welfare or defense, establish and operatevital industries and, upon payment of justcompensation, transfer to public ownership utilitiesand other private enterprises to be operated by thegovernment.

Art. XIII, Sec. 4 The State shall, by law, undertakean agrarian reform program founded on the rightof farmers and regular farmworkers who arelandless, to own directly or collectively the landsthey till or, in the case of other farmworkers, toreceive a just share of the fruits thereof.

To this end, the State shall encourage and undertake

the just distribution of all agricultural lands, subjectto such priorities and reasonable retention limits asthe Congress may prescribe, taking into accountecological, developmental, or equity considerations,and subject to the payment of just compensation.

In determining retention limits, the State shallrespect the right of small landowners. The Stateshall further provide incentives for voluntary land-sharing.

Art. XIII, Sec. 9 The State shall, by law, and for thecommon good, undertake, in cooperation with theprivate sector, a continuing program of urban landreform and housing which will make available ataffordable cost, decent housing and basic servicesto under-privileged and homeless citizens in urbancenters and resettlement areas.

It shall also promote adequate employmentopportunities to such citizens. In the implementationof such program the State shall respect the rights ofsmall property owners.

Art XIV, Sec. 13. The National assembly mayauthorize, upon payment of just compensation, the




expropriation of private lands to be subdivided intosmall lots and conveyed at cost to deserving citizens.

M. Contracts Clause1. Application of the Contracts Clause2. Contemporary Application of the ContractsClause3. Limitations

Art. III Section 10 (1987 Constitution): No law impairing the obligation of contracts shall bepassed.

1. Application of the Contract Clause

Impairment is anything that diminishes the efficacyof the contract. There is substantial impairmentwhen the law changes the terms of a legal contactbetween the parties, either in the time or mode ofperformance, or imposes new conditions, ordispenses with those expressed, or authorizes for itssatisfaction something different from that providedin its terms. [Clements v. Nolting, 42 Phil. 702]

2. Contemporary Application of theContract Clause

As to Tax:GENERAL RULE: Power of taxation may not be usedto violate the constitutional right of every person tobe secured against any statute that impairs theobligation of contracts.

EXCEPTION: But if the statute exempts a party fromany one class of taxes, the imposition of a different

tax is not an impairment of the obligation ofcontracts.

A law enacted in the exercise of police power toregulate or govern certain activities or transactionscould be given retroactive effect and mayreasonably impair vested rights or contracts. Policepower legislation is applicable not only to futurecontracts, but equally to those already in existence.Non-impairment of contracts or vested rights clauseswill have to yield to the superior and legitimateexercise by the State of the police power. [Ortigas &Co. v. CA, G.R. No. 126102, December 4, 2000]

New regulations on loans making redemption of

property sold on foreclosure more strict are notallowed to apply retroactively. [Co v. PhilippineNational Bank (1982)]

Limitations on the use of land imposed by a contractto yield to a reasonable exercise of police power areaffirmed. Thus, zoning regulations are superior tocontractual restrictions on the use of property. [Presley v. Bel-Air Village Association (1991)]

A separation pa law can be given retroactive effectto apply to existing contracts. [Abella v. NationalLabor Regulations Commission (1987)]

The charter of a bank, even if a contract, is noobstacle to liquidation done under police power. [Philippine Veterans Bank Employees Union v.Philippine Veterans Bank (1990)]

Contracts also yield to the requirements of thefreedom of religion. [Victoriano v. Elizalde RopeWorkers (1974)]

Timber licenses, permits, and license agreementsare the principal instruments by which the Stateregulates the utilization and disposition of forestresources to the end that public welfare ispromoted. They may be validly amended, modified,replaced, or rescinded by the Chief Executive whennational interests so require. Thus, they are notdeemed contracts within the purview of the dueprocess of law clause. [Oposa v. Factoran (1993)]

A rehabilitation plan approved by statute whichmerely suspends the actions for claims does notviolate the contract clause. [GSIS v. Kapisanan(2006)]

The SEC‘s approval of the Rehabilitation Plan did notimpair BPI‘s right to contract. The impairmentclause is a limit on the exercise of legislative powerand not of judicial or quasi-judicial power. TheSEC…was acting as a quasi-judicial body, and itsorder approving the plan cannot constitute animpairment of the right and the freedom tocontract.

Besides, the mere fact that the Rehabilitation Planproposes a dacion en pago approach does not renderit defective on the ground of impairment of the rightto contract. The undertaking really partakes in asense of the nature of sale. As such, the essential

elements of a contract of sale must be present.Being a form of contract, the dacion en pago agreement cannot be perfected without the consentof the parties involved. [China Banking Corporationv. ADB Holdings (2008)]

The amount of rental is an essential condition of anylease contract. The change of its rate in theRehabilitation Plan is not justified as it impairs thestipulation between the parties. [Leca Realty v.Manuela Corporation (2007)]

The non-impairment clause is a limit on legislativepower, and not of judicial or quasi-judicial power.The approval of the Rehabilitation Plan by theSecurities and Exchange Commission is an exercise ofadjudicatory power by an administrative agency andthus the non-impairment clause does not apply.Neither does it impair the power to contract. [BPI v.SEC (2007)]

Laws prohibiting premature campaigning areintended to level the playing field for candidates topublic office, to equalize the situation betweenpopular or rich candidates, on one hand, and lesser-known or poorer candidates, on the other, bypreventing undue advantage in exposure andpublicity on account of their resources and




popularity. Such laws might affect advertisingcontracts, the non-impairment clause of theConstitution must yield to the loftier purposestargeted by the Government. [Chavez v. COMELEC(2004)]

The Court has imposed 2 essential requisites in orderthat RA 7641 (Retirement Law) may be givenretroactive effect. First, the claimant for retirementbenefits must still be in the employ of the employer

at the time the statute took effect. Second, theclaimant must have complied with the requirementsfor eligibility for such retirement benefits under thestatute. [Universal Robina Sugar v. Cabaleda (2008)]

3. Limitations

It is ingrained in jurisprudence that theconstitutional prohibition does not prohibit everychange in existing laws. To fall within theprohibition, the change must not only impair theobligation of the existing contract, but theimpairment must be substantial. Moreover, the lawmust effect a change in the rights of the parties with

reference to each other, and not with respect tonon-parties. [Philippine Rural Electric Cooperatives Association v. Secretary, DILG, G.R. No. 143076, June 10, 2003]

N. Legal Assistance and FreeAccess to Courts

Sec. 11 Art. III:Free access to the courts and quasi-judicial bodiesand adequate legal assistance shall not be denied toany person by reason of poverty.

Rules of Court Rule 141 Sec. 18: SEC. 18. Indigent litigants exempt from payment of legal fees.—Indigent litigants (a) whose gross incomeand that of their immediate family do not exceedfour thousand (P4,000.00) pesos a month if residingin Metro Manila, and three thousand (P3,000.00)pesos a month if residing outside Metro Manila, and(b) who do not own real property with an assessedvalue of more than fifty thousand (P50,000.00) pesosshall be exempt from the payment of legal fees.

The legal fees shall be a lien on any judgmentrendered in the case favorably to the indigent

litigant, unless the court otherwise provides.

To be entitled to the exemption herein provided, thelitigant shall execute an affidavit that he and hisimmediate family do not earn a gross incomeabovementioned, nor they own any real propertywith the assessed value aforementioned, supportedby an affidavit of a disinterested person attesting tothe truth of the litigant's affidavit.

Any falsity in the affidavit of a litigant ordisinterested person shall be sufficient cause tostrike out the pleading of that party, without

prejudice to whatever criminal liability may havebeen incurred.

Rules of Court Rule 3 Sec. 21:Indigent party .—A party may be authorized tolitigate his action, claim or defense as an indigent ifthe court, upon an ex parte application and hearing,is satisfied that the party is one who has no moneyor property sufficient and available for food, shelter

and basic necessities for himself and his family.

Such authority shall include an exemption frompayment of docket and other lawful fees, and oftranscripts of stenographic notes which the courtmay order to be furnished him. The amount of thedocket and other lawful fees which the indigent wasexempted from paying shall be a lien on anyjudgment rendered in the case favorable to theindigent, unless the court otherwise provides.

Any adverse party may contest the grant of suchauthority at any time before judgment is renderedby the trial court. If the court should determineafter hearing that the party declared as an indigent

is in fact a person with sufficient income orproperty, the proper docket and other lawful feesshall be assessed and collected by the clerk of court.If the payment is not made within the time fixed bythe court, execution shall issue or the paymentthereof, without prejudice to such other sanctions asthe court may impose.

Those protected include low paid employees,domestic servants and laborers. [Cabangis v. AlmedaLopez (1940)]

The difference between ‗paupers‘ and ‗indigent‘persons is that the latter are ―persons who have noproperty or sources of income sufficient for theirsupport aside from their own labor though self-supporting when able to work and in employment.‖ [Acar v. Rosal (1067)]

The new rule applies even to litigation pending atthe time of its enactment. The retroactiveapplication of the new rule has been found to bemore in keeping with Section 11 of Article III. Theprevious rule, denied the right to litigate as paupersin appellate courts. [Martinez v. People (2000)]

Note: The significance of having an explicit ―freeaccess‖ provisions in the Constitution may begathered from the rocky road which ―free access‖

seems to have traveled in American jurisprudence.The American constitution does not have an explicitfree access provision and, hence, its free accessdoctrine has been developed as implicit from boththe equal protection clause and the due processclause. [BERNAS]

O. Rights of Suspects1. Availability2. Requisites3. Waiver




ART. III, SEC. 12, 1987 CONSTITUTION1. Any person under investigation for the

commission of an offense shall have the right tobe informed of his right to remain silent and tohave competent and independent counsel preferably of his own choice. If the personcannot afford the services of counsel, he mustbe provided with one. These rights cannot bewaived except in writing and in the presence ofcounsel.

2. No torture, force, violence, threat,intimidation, or any other means which vitiatethe free will shall be used against him. Secretdetention places, solitary, incommunicado, orother similar forms of detention are prohibited.

3. Any confession or admission obtained inviolation of this or Section 17 hereof shall beinadmissible in evidence against him.

4. The law shall provide for penal and civilsanctions for violations of this section as well ascompensation to the rehabilitation of victims oftorture or similar practices, and their families.

In Miranda vs. Arizona: The Federal Supreme Court

made it clear that what is prohibited is the"incommunicado interrogation of individuals in apolice dominated atmosphere, resulting in self-incriminating statements without full warnings ofconstitutional rights.‖

MIRANDA RIGHTS: The person under custodialinvestigation must be warned that—

(1) He has a right to remain silent,(2) That any statement he makes may be used

as evidence against him, and(3) That he has a right to the presence of an

attorney, either retained or appointed.

The long question during the appraisal of Galit‘sconstitutional rights followed by a monosyllabicanswer does not satisfy the requirements of the lawthat the accused be informed of his rights. Insteadthere should be several short and clear questionsand every right explained in simple words in adialect or language known to the person under investigation. In this case, the accused is fromSamar and there is no showing that he understandsTagalog. Furthermore, waiver of the right to counselmust be done in the presence of counsel, otherwise,the procured statements will be inadmissible. [People vs. Galit (1985)]

―Inasmuch as the prosecution in this case failed to

prove that before Duero made his alleged oralconfession he was informed of his rights to remainsilent and to have counsel and because there is noproof that he knowingly and intelligently waivedthose rights, his confession is inadmissible inevidence.‖ Accused repudiated his alleged oralconfession during trial. Since, the SC found that theprocedure set out in the Miranda case was notfollowed, oral confession of accused to police stationcommander is inadmissible in evidence. (enshrined in Art. III, Sec. 12 of the 1987 Constitution) [Peoplevs. Duero (1985)]

The SC reversed the lower court‘s imposition of death penalty because ―the accused was not even

informed at the start of the investigation of his rightto counsel, much less afforded the service of counselnotwithstanding his insistence.‖ He was given theunacceptable excuse that there were no availablelawyers.

As used in this Act, "custodial investigation" shallinclude the practice of issuing an "invitation" to a

person who is investigated in connection with anoffense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law. [People vs. Andag (1980)]

NOTE: These rights were further reiterated under RA7438, otherwise known as AN ACT DEFINING CERTAINRIGHTS OF PERSON ARRESTED, DETAINED OR UNDERCUSTODIAL INVESTIGATION AS WELL AS THE DUTIESOF THE ARRESTING, DETAINING AND INVESTIGATINGOFFICERS, AND PROVIDING PENALTIES FORVIOLATIONS THEREOF

RA 7438, Rights of Persons under Custodial

Investigation;

Section 1. Statement of Policy. - It is the policy ofthe Senate to value the dignity of every human beingand guarantee full respect for human rights

Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of PublicOfficers. –

(b) Any public officer or employee, or anyone actingunder his order or his place, who arrests, detains orinvestigates any person for the commission of anoffense:(1) shall inform the latter, in a language known to

and understood by him,(2) of his rights to remain silent and(3) to have competent and independent counsel,

preferably of his own choice,(4) who shall at all times be allowed to confer

privately with the person arrested, detained orunder custodial investigation.

(5) If such person cannot afford the services of hisown counsel, he must be provided with acompetent and independent counsel by theinvestigating officer.

1. Availability

When the person is already in custody Custodial investigation involves any questioning

initiated by law enforcement During ―critical pre-trial stages‖ in the criminal

process

The rights under Sec. 12, Art. 3 are available whenthe investigation is no longer a general inquiry untoan unsolved crime but has begun to focus on a particular suspect, as when the suspect has beentaken into police custody and the police carries outa process of interrogation that lends itself to




eliciting incriminating statements. [People vs. Mara(1994)]

An out-of-court identification may be made in a―show up‖ (accused is brought face to face with thewitness for identification), or ―police line-up‖(suspect is identified by witness from a group ofpersons gathered for that purpose). [People vs.Escordial (2002)]

Neither the lineup itself nor anything requiredtherein violated respondent's Fifth Amendmentprivilege against self-incrimination, since merelyexhibiting his person for observation by witnessesand using his voice as an identifying physicalcharacteristic involved no compulsion of the accusedto give evidence of a testimonial nature againsthimself which is prohibited by that Amendment.HOWEVER, the Sixth Amendment guarantees anaccused the right to counsel not only at his trial butat any critical confrontation by the prosecution atpretrial proceedings where the results might welldetermine his fate and where the absence of counselmight derogate from his right to a fair trial. [U.S. vs.

Wade, 388 U.S. 218 (1967)]

During custodial investigations, these types of identification have been recognized as “criticalconfrontations of the accused by the prosecution,necessitating presence of counsel for the accused. Otherwise, the identification will be inadmissible inevidence.

Note: INVITATIONS - Sec. 2, RA 7438 provides thatcustodial investigation shall include the practice ofissuing an invitation to a person who is underinvestigation in connection with an offense he issuspected to have committed.

Ordinarily, an invitation to attend a hearing andanswer some questions which the person invited mayheed or refuse is not unconstitutional. Under certaincircumstances, however, such an invitation caneasily assume a different appearance. Here, wherethe invitation comes from a powerful groupcomposed predominantly of ranking military officersissued at a time when the country has just emergedfrom martial rule and when the suspension of theprivilege of the writ of habeas corpus has notentirely been lifted and the designated interrogationsite is a military camp, the same can easily be takennot as a strictly voluntary invitation but as an authoritative command which one can only defy at

his peril, especially where the invitation carries theominous seaming that "failure to appear . . . shall beconsidered as a waiver…and this Committee will beconstrained to proceed in accordance with law."[Babst vs. NBI (1984)]

2. Requisites

People vs. Agustin (1995): This carries thecorrelative obligation on the part of the investigatorto explain, and contemplates effective

communication which results in the subject/accusedunderstanding what is conveyed.

a. Right to Remain Silent The warning is needed simply to make the

person under custodial investigation awareof the existence of the right;

This warning is the threshold requirement foran intelligent decision as to its exercise.

More importantly, such a warning is anabsolute pre-requisite in overcoming theinherent pressures of the interrogationatmosphere.

Further, the warning will show the individualthat his interrogators are prepared torecognize his privilege should he choose toexercise it.

b. Right against Self-Incrimination underArt. III, Sec. 12 The warning of the right to remain silent must

be accompanied by the explanation thatanything said can and will be used againstthe individual in court.

This warning is needed in order to make himaware not only of the privilege to remainsilent, but also of the consequences offorgoing it.

c. Right to Counsel

RA 7438, Rights of Persons under CustodialInvestigation; Section 2. Rights of Persons Arrested,Detained or Under Custodial Investigation; Duties of Public Officers. – (a) Any person arrested detained or under custodial

investigation shall at all times be assisted bycounsel; otherwise the waiver shall be null andvoid and of no effect.

The Miranda doctrine was modified to qualifythe right to counsel to mean competent and independent counsel preferably of thesuspect's own choice.

An individual need not make a pre-interrogation request for a lawyer.

While such request affirmatively secures hisright to have one, his failure to ask for alawyer does not constitute a waiver.

No effective waiver of the right to counselduring interrogation can be recognizedunless specifically made AFTER thewarnings have been given. - The accused who does not know his

rights and therefore does not make arequest may be the person who mostneeds counsel.

If an individual indicates that he wishes theassistance of counsel before anyinterrogation occurs, the authorities cannotrationally ignore or deny his request on thebasis that the individual does not have orcannot afford a retained attorney.

In order fully to apprise a person interrogatedof the extent of his rights under this systemthen, it is necessary to warn him not only that he has the right to consult with an




attorney, but also that if he is indigent alawyer will be appointed to represent him.

The right to counsel does not mean that the accusedmust personally hire his own counsel. Theconstitutional requirement is satisfied when acounsel is engaged by anyone acting on behalf of theperson under investigation, or appointed by thecourt upon petition by said person or by someone onhis behalf. [People v. Espiritu, G.R. No. 128287,

February 2, 1999]

POLICE LINE-UPS When petitioner was identified bythe complainant at the police line-up, he had notbeen held yet to answer for a criminal offense. The police line-up is not a part of the custodial inquest,hence, he was not yet entitled to counsel.

Thus, it was held that when the process had not yetshifted from the investigatory to the accusatory aswhen police investigation does not elicit a confessionthe accused may not yet avail of the services of hislawyer. [Escobedo vs. Illinois of the United StatesFederal Supreme Court (1964)]

However, given the clear constitutional intent in the1987 Constitution, the moment there is a move oreven an urge of said investigators to elicit admissionsor confessions or even plain information which mayappear innocent or innocuous at the time, from saidsuspect, he should then and there be assisted bycounsel, unless he waives the right, but the waivershall be made in writing and in the presence ofcounsel. [Gamboa vs. Cruz (1988)]

d. Rights to Visitation and Conference

Sec. 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public

Officers. – (f) Any person arrested or detained orunder custodial investigation shall be allowed visitsby or conferences with:(1) any member of his immediate family, or(2) any medical doctor;(3) priest or religious minister chosen by him; or(4) by his counsel; or(5) by any national non-governmental organization

duly accredited by the Commission on HumanRights or

(6) by any international non-governmentalorganization duly accredited by the Office ofthe President.

(7) The person's "immediate family" shall include hisor her spouse, fiance or fiancee, parent or child,

brother or sister, grandparent or grandchild,uncle or aunt, nephew or niece, and guardian orward.

3. Waiver

What Cannot be Waived

(1) The right to remain silent and the right tocounsel may be waived.

(2) What CANNOT be waived is THE RIGHT TOBE GIVEN THE MIRANDA WARNINGS.

Rule on Waiver

SEC. 12, ART. III:(1) Must be in writing (2) Made in the presence of counsel

RA 7438, Rights of Persons under CustodialInvestigation; Section 2. Rights of Persons Arrested,Detained or Under Custodial Investigation; Duties of

Public Officers. – (e) Any waiver by a person arrested or detainedunder the provisions of Article 125 of the RevisedPenal Code, or under custodial investigation, shallbe in writing and signed by such person in thepresence of his counsel; otherwise the waiver shallbe null and void and of no effect.

Burden of Proving Voluntariness of Waiver(People vs. Jara, 1986)

Whenever a protection given by the Constitution iswaived by the person entitled to that protection,the presumption is always against the waiver.

Consequently, the prosecution must prove withstrongly convincing evidence to the satisfaction ofthis Court that indeed the accused:

(1) Willingly and voluntarily submitted hisconfession and

(2) Knowingly and deliberately manifested thathe was not interested in having a lawyerassist him during the taking of thatconfession.

P. Rights of the Accused1. Criminal Due Process2. Bail3. Presumption of Innocence4. Right to be Heard5. Assistance of Counsel6. Right to be Informed7. Right to Speedy, Impartial and Public Trial8. Right to Confrontation9. Compulsory Process10. Trials in Absentia

SEC. 14, ART. III, 1987 CONSTITUTION.(1) No person shall be held to answer for a criminal

offense without due process of law.(2) In all criminal prosecutions, the accused shall be

presumed innocent until the contrary is proved,and shall enjoy the right to be heard by himself

and counsel, to be informed of the nature andcause of the accusation against him, to have aspeedy, impartial, and public trial, to meet thewitnesses face to face, and to have compulsoryprocess to secure the attendance of witnessesand the production of evidence in his behalf.However, after arraignment, trial may proceednotwithstanding the absence of the accused:Provided, that he has been duly notified and hisfailure to appear is unjustifiable.

ROC. RULE 115. RIGHTS OF ACCUSED




Section 1. Rights of accused at trial. – In allcriminal prosecutions, the accused shall be entitledto the following rights:(a) To be presumed innocent until the contrary is

proved beyond reasonable doubt.

(b) To be informed of the nature and cause of theaccusation against him.

(c) To be present and defend in person and bycounsel at every stage of the proceedings, fromarraignment to promulgation of the judgment.The accused may, however, waive his presenceat the trial pursuant to the stipulations set forthin his bail, unless his presence is specificallyordered by the court for purposes ofidentification.

The absence of the accused without justifiablecause at the trial of which he had notice shallbe considered a waiver of his right to be presentthereat.

When an accused under custody escapes, he

shall be deemed to have waived his right to bepresent on all subsequent trial dates untilcustody over him is regained. Upon motion, theaccused may be allowed to defend himself inperson when it sufficiently appears to the courtthat he can properly protect his rights withoutthe assistance of counsel.

(d) To testify as a witness in his own behalf butsubject to cross-examination on matterscovered by direct examination. His silence shallnot in any manner prejudice him.

(e) To be exempt from being compelled to be awitness against himself.

(f) To confront and cross-examine the witnessesagainst him at the trial. Either party may utilizeas part of its evidence the testimony of awitness who is deceased, out of or cannot withdue diligence be found in the Philippines,unavailable, or otherwise unable to testify,given in another case or proceeding, judicial oradministrative, involving the same parties andsubject matter, the adverse party having theopportunity to cross-examine him.

(g) To have compulsory process issued to secure theattendance of witnesses and production of other

evidence in his behalf.

(h) To have speedy, impartial and public trial.

(i) To appeal in all cases allowed and in the mannerprescribed by law.

1. Criminal Due Process

Requisites [People vs. Vera (1937)] (1) Accused is heard by a court of competent

jurisdiction;

(2) Accused is proceeded against under theorderly process of law;

(3) Accused is given notice and opportunity tobe heard;

(4) Judgment rendered is within the authorityof a constitutional law. (Mejia vs. Pamaran,1988)

2. Bail

Sec. 13, Art. III. All persons, except those chargedwith offenses punishable by reclusion perpetua whenthe evidence of guilt is strong, shall, beforeconviction, be bailable by sufficient sureties, or bereleased on recognizance as may be provided by law.The right to bail shall not be impaired even whenthe privilege of the writ of habeas corpus issuspended. Excessive bail shall not be required.

Definition [Sec. 1, Rule 114, ROC]

Bail is the security given for the release of a personin custody of the law, furnished by him or a

bondsman, conditioned upon his appearance beforeany court as may be required.

Before conviction, every person is bailable except ifcharged with capital offenses when the evidence ofguilt is strong. Such a right flows from thepresumption of innocence in favor of every accusedwho should not be subjected to the loss of freedomas thereafter he would be entitled to acquittal,unless his guilt be proved beyond reasonable doubt. [Dela Camara vs. Enage (1971)]

The military men who participated in the failed coupd‘ etat should be denied release on bail. Theargument that denial from the military of the right

to bail would violate the equal protection clause isnot acceptable, given that the officers and membersof the military are not similarly situated with others.They are allowed a fiduciary use of firearms and caneasily continue their insurgent activities against thegovernment. National security considerations shouldimpress upon the Court that release on bail ofrespondents constitutes a damaging precedent. [Comendador vs. De Villa (1991)]

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 the

government. Therefore, to justify a warrantlessarrest under Section 5(a), there must be a showingthat the persons arrested or to be arrested hascommitted, is actually committing or is attemptingto commit the offense of rebellion. In other words,there must be an overt act constitutive of rebelliontaking place in the presence of the arresting officer.

This requirement was not complied with particularlyin the arrest of Senator Enrile. In the Court'sResolution of May 5, 2001 in the petition for habeascorpus filed by Senator Enrile, the Court noted thatthe sworn statements of the policemen whopurportedly arrested him were hearsay. Senator




Enrile was arrested two (2) days after he deliveredallegedly seditious speeches. Consequently, hisarrest without warrant cannot be justified underSection 5(b) which states that an arrest without awarrant is lawful when made after an offense hasjust been committed and the arresting officer orprivate person has probable cause to believe basedon personal knowledge of facts and circumstancesthat the person arrested has committed the offense.

―Since the evidence in this case is hearsay, theevidence of guilt is not strong, bail is allowed.‖ [Enrile vs. Perez (En Banc Resolution, 2001)]

Bail as a Matter of Right vs. Matter of Discretion

Matter of right Matter of Discretion

Bail is a matter of rightin all cases notpunishable by reclusionperpetua.

1. In case the evidenceof guilt is strong. In sucha case, according toPeople vs. San Diego(1966), the court'sdiscretion to grant bail

must be exercised in thelight of a summary of theevidence presented bythe prosecution.

Thus, the order grantingor refusing bail mustcontain a summary ofthe evidence for theprosecution followed bythe conclusion onwhether or not theevidence of guilt isstrong (Note: it is notthe existence of guiltitself which isconcluded but thestrength of the probability that guiltexists).

2. In extraditionproceedings. Extraditioncourts do not renderjudgments of convictionor acquittal so it doesnot matter WON thecrimes the accused isbeing extradited for is

punishable by reclusionperpetua [US Gov’t. vs. Judge Puruganan and Mark Jimenez (2002)]

When Available

General rule: From the very moment of arrest(which may be before or after the filing of formalcharges in court) up to the time of conviction byfinal judgment (which means after appeal).

No charge need be filed formally before one can filefor bail, so long as one is under arrest. [HerasTeehankee vs. Rovica (1945) ]

Arraignment of the accused is not essential to theapproval of the bail bond. When bail is authorized, itshould be granted before arraignment. Otherwisethe accused may be precluded from filing a motionto quash. Also, the court will be assured of thepresence of the accused at the arraignment

precisely by grating bail and ordering his presence atany stage of the proceeding. [Lavides vs CA (2000)]

Exceptions:(1) When charged with an offense punishable

by reclusion perpetua.(2) Traditionally, the right to bail is not

available to the military, as an exception tothe bill of rights. [People v. Reyes, 212SCRA 402]

Standards for Fixing Bail

RULE 114. Sec. 9. Amount of bail; guidelines. –

The judge who issued the warrant or granted theapplication shall fix a reasonable amount of bailconsidering primarily, but not limited to, thefollowing 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.

The constitution prohibits ―excessive bail.‖ Wherethe lower court fixed bail at P 1, 195, 200.00, itrendered the right to bail nugatory.

"Discretion is with the court called upon to rule onthe question of bail. We must stress, however, thatwhere conditions imposed upon a defendant seekingbail would amount to a refusal thereof and rendernugatory the constitutional right to bail, we will not

hesitate to exercise our supervisory powers toprovide the required remedy. [Dela Camara v. Enage(1971)]

STANDARDS FOR FIXING BAIL: Guidelines in thefixing of bail are: (1) ability of the accused to givebail; (2) nature of the offense; (3) penalty for theoffense charged; (4) character and reputation of theaccused; (5) health of the accused; (6) character andstrength of the evidence; (7) probability of theaccused appearing in trial; (8) forfeiture of otherbonds; (9) whether the accused was a fugitive fromjustice when arrested; and (10) if the accused is




under bond for appearance at trial in other cases."[Villaseñor vs. Abano (1967)]

Right to Bail and Right to Travel Abroad

The main issue in this case is WON a person facing acriminal indictment and provisionally released onbail have an unrestricted right to travel. The Courtheld that the ―constitutional right to travel beinginvoked by petitioner is not an absolute right.Section 5, Article IV of the 1973 Constitution states:The liberty of abode and of travel shall not beimpaired except upon lawful order of the court, or when necessary in the interest of national security, public safety or public health.

The Court considered the order of the TC releasingpetitioner on bail as a lawful order contemplated bythe above-quoted constitutional provision. [Manotokvs CA (1986)]

3. Presumption of Innocence

The requirement of proof beyond reasonable doubtis a necessary corollary of the constitutional right tobe presumed innocent. [People vs. Dramavo (1971)]

The accused cannot present evidence before theprosecution does so, even if the accused pleadsguilty. It violates the presumption of innocence.[Alejandro vs. Pepito (1980)]

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 functions may

prevail over the constitutional presumption ofinnocence. [People vs. Acuram (2000)]

EQUIPOISE RULE: Where the evidence adduced bythe parties is evenly balanced, the constitutionalpresumption of innocence should tilt the balance infavor of the accused. [Corpuz vs. People (1991)]

In order that circumstantial evidence may warrantconviction, the following requisites must concur:

(1) There is more than one circumstance(2) The facts from which the inferences are

derived are proven(3) The combination of all the circumstances is

such as to produce conviction beyond

reasonable doubt. [People v. Bato, G.R. No.113804, January 16, 1998]

4. Right to be Heard

SEC. 12, ART. III. 1987 CONSTITUTION.1. Any person under investigation for thecommission of an offense shall have the right to beinformed of his right to remain silent and to havecompetent and independent counsel preferably ofhis own choice. If the person cannot afford theservices of counsel, he must be provided with one.

These rights cannot be waived except in writing andin the presence of counsel.

It means the accused is amply accorded legalassistance extended by a counsel who commitshimself to the cause of the defense and actsaccordingly. It is an efficient and truly decisive legalassistance, and not simply a perfunctoryrepresentation. [People v. Bermas, G.R. No. 120420, April 21, 1999]

5. Assistance of Counsel

RA 7438. Rights of Persons under CustodialInvestigation. SEC. 2. Rights of Persons Arrested,Detained or Under Custodial Investigation; Duties of Public Officers. – (a) Any person arrested detainedor under custodial investigation shall at all timesbe assisted by counsel;

Elements of the Right to Counsel(1) Court‘s duty to inform the accused of right

to counsel 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, theCourt must 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.

6. Right to be Informed

Procedural due process requires that the accusedmust be informed why he is being prosecuted and

what charge he must meet. [Vera vs. People, supra]

7. Right to Speedy, Impartial andPublic Trial

ART. III. SEC. 16. All persons shall have the right toa speedy disposition of their cases before alljudicial, quasi-judicial, or administrative bodies.

ART. III. SEC. 3. Civilian authority is, at all times,supreme over the military. xxx

Sec. 10. Law on speedy trial not a bar to

provision on speedy trial in the Constitution – Noprovision of law on speedy trial and no ruleimplementing the same shall be interpreted as a barto any charge of denial of the right to speedy trialguaranteed by Section 14(2), Article III, of the 1987Constitution.

IMPARTIAL TRIAL: A civilian cannot be tried by amilitary court so long as the civil courts are openand operating, even during Martial Law. [Olaguer vs.Military Commission (1987)]




Dismissal based on the denial of the right to speedytrial amounts to an acquittal. [Acevedo vs.Sarmiento (1970)]

Note: RA 8493 provides: a 30-day arraignmentwithin the filing of the information or from the datethe accused appeared before the court; trial shallcommence 30 days from the arraignment, as fixed bythe court. The entire trial period shall not exceed180 days, except as otherwise authorized by the SCChief Justice.

The right to a speedy trial is violated only when theproceeding is attended by vexatious, capricious andoppressive delays, or when unjustifiedpostponements of the trial are asked for andsecured, or when without cause or justifiablemotive, a long period of time is allowed to elapsewithout the party having his case tried. [dela Rosa v.Court of Appeals, 253 SCRA 499; Tai Lim v. Court of Appeals, G.R. No. 131483, October 26, 1999]

The different interests of the defendant which theright to speedy trail are designed to protect are:

(1) To prevent oppressive pre-trailincarceration,

(2) To minimize anxiety and concern of theaccused,

(3) To limit the possibility that the defense willbe impaired.

But the right to speedy trail cannot be invokedwhere to sustain the same would result in a cleardenial of due process to the prosecution. In essence,the right to a speedy trial does not preclude thepeople‘s equally important right to public justice.[Uy v. Hon. Adriano, G.r. No. 159098, October 27,2006]

RA 8493 is a means of enforcing the right of theaccused to a speedy trial. The spirit of the law isthat the accused must go on record in the attitudeof demanding a trial or resisting delay. If he does notdo this, he must be held, in law, to have waived theprivilege. [Uy v. Hon. Adriano, G.R. No. 159098,October 27, 2006]

8. Right of Confrontation

This is the basis of the right to cross-examination.

Testimony of a witness who has not submittedhimself to cross examination is not admissible inevidence. The affidavits of witnesses who are not

presented during the trial, hence not subjected tocross examination, are inadmissible because they arehearsay. [People v. Quidate, G.R. No. 117401,October 1, 1998; Cariago v. Court of Appeals, G.R.No. 143561, June 6, 2001]

9. Compulsory Process

(1) Right to Secure Attendance of Witness(2) Right to Production of Other Evidence

Subpoena is a process directed to a person requiringhim to attend and to testify at the hearing or trial ofan action or at any investigation conducted underthe laws of the Philippines, or for the taking of hisdeposition. [Caamic v. Galapon, 237 SCRA 390]

Before a subpoena duces tecum may issue, the courtmust first be satisfied that the following requisitesare present:

(1) The books, documents or other things

requested must appear prima facie relevantto the issue subject of the controversy (testof relevancy), and

(2) Such books must be reasonably described bythe parties to be readily identified (test ofdefiniteness). [Roco v. Contreras, G.R. No.158275, June 28, 2005]

10. Trials In Absentia

WHEN CAN TRIAL IN ABSENTIA BE DONE: Accusedfailed to appear for trial despite postponement andnotice to his bondsmen. The Court then allowedprosecution to present evidence despite the fact

that accused had not been arraigned. Petitioner wasfound guilty. The issue is WON the court hasjurisdiction. The Court held that because accusedwas not arraigned, he was not informed of thenature and cause of accusation against him,Therefore, the Court has no jurisdiction. Theindispensable requisite for trial in absentia is that itshould come after arraignment. [Borja vs. Mendoza(1977)]

After arraignment, during which accused pleadednot guilty, case was set for hearing but the accusedescaped. He was tried in absentia. Lower court heldthe proceedings against him in abeyance to give him

the opportunity to cross examine witnesses againsthim and present his evidence.

The Court held that abeyance of proceedings wasinvalid. Such right to cross examine and presentevidence on his behalf is waived by failure to appearduring the trial of which he had notice. [Gimenez vs.Nazareno (1988)]

When Presence of the Accused is a DUTY(1) Arraignment and Plea (2) During Trial, for identification(3) Promulgation of Sentence

(Exception: Light offense -> can be via counsel)

Petitioner challenges the jurisdiction of militarycommissions to try him (for murder, illegalpossession of firearms and for violation of the Anti-Subversion Act) arguing that he being a civilian, suchtrial during martial law deprives him of his right todue process.

An issue has been raised as to WON petitioner couldwaive his right to be present during trial.

On a 7-5 voting: SEVEN justices voted that petitionermay waive his right to be present at ALL stages ofthe proceedings while FIVE voted that this waiver is




qualified, he cannot waive when he is to beidentified.

Trial in Absentia: As a general rule, subject tocertain exceptions, any constitutional or statutoryright may be waived if such waiver is not againstpublic policy.

Considering Art IV, Sec 19, 1973 Constitution (trialof a capital offense may proceed even in theabsence of the accused) and the absence of any lawspecifically requiring his presence at all stages of histrial, there appears, no logical reason whypetitioner, although he is charged with a capitaloffense, should be precluded from waiving his rightto be present in the proceedings for theperpetuation of testimony, since this right wasconferred upon him for his protection and benefit. [Aquino vs. Military Commission (1975)]

Q. Writ of Habeas Corpus

Habeas Corpus

SEC. 15. ART. III. 1987 CONSTITUTIONThe privilege of the writ of habeas corpus shall notbe suspended except in cases of invasion or rebellionwhen the public safety requires it.

SEC. 18. ART. VII. 1987 CONSTITUTIONThe President shall be the Commander-in-Chief ofall armed forces of the Philippines and whenever itbecomes necessary, he may call out such armedforces to prevent or suppress lawless violence,invasion or rebellion.

In case of invasion or rebellion, when the publicsafety requires it, he may, for a period not

exceeding sixty days, suspend the privilege of thewrit of habeas corpus or place the Philippines or anypart thereof under martial law.

Within forty-eight hours from the proclamation ofmartial law or the suspension of the privilege of thewrit of habeas corpus, the President shall submit areport in person or in writing to the Congress.

The Congress, voting jointly , by a vote of at least amajority of all its Members in regular or specialsession, may revoke such proclamation orsuspension, which revocation shall not be set asideby the President.

Upon the initiative of the President, the Congressmay, in the same manner, extend such proclamationor suspension for a period to be determined by theCongress, if the invasion or rebellion shall persistand public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation orsuspension, convene in accordance with its ruleswithout need of a call.

The Supreme Court may: 1) review, 2) in anappropriate proceeding; 3) filed by any citizen, 4)the sufficiency of the factual basis of theproclamation of martial law or the suspension of theprivilege of the writ or the extension thereof, and 5)must promulgate its decision thereon within thirtydays from its filing.

A state of martial law does not suspend theoperation of the Constitution, nor supplant the

functioning of the civil courts or legislativeassemblies, nor authorize the conferment ofjurisdiction on military courts and agencies overcivilians where civil courts are able to function, norautomatically suspend the privilege of the writ.

The suspension of the privilege of the writ shallapply only to persons judicially charged for rebellion or offenses inherent in or directlyconnected with invasion.

A prime specification of an application for a writ ofhabeas corpus is restraint of liberty.

The essential object and purpose of the writ ofhabeas corpus is to inquire into all manner ofinvoluntary restraint as distinguished from voluntary,and to relieve a person therefrom if such restraint isillegal. Any restraint which will preclude freedom ofaction is sufficient.

The forcible taking of these women from Manila byofficials of that city, who handed them over to otherparties, who deposited them in a distant region,deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao without either money or personalbelongings, they were prevented from exercising the

liberty of going when and where they pleased.

The restraint of liberty which began in Manilacontinued until the aggrieved parties were returnedto Manila and released or until they freely and trulywaived his right.

The true principle should be that, if the respondentis within the jurisdiction of the court and has it inhis power to obey the order of the court and thus toundo the wrong that he has inflicted, he should becompelled to do so. Even if the party to whom thewrit is addressed has illegally parted with thecustody of a person before the application for the

writ is no reason why the writ should not issue.

[ Villavicencio vs. Lukban (1919)]

Petitioners were arrested without warrants anddetained, upon the authority of Proclamation 889(Which suspended the privilege of the Writ of HabeasCorpus) and subsequently filed a petition for writ ofhabeas corpus, assailing the validity of the saidProclamation and their detention.

The Court upheld the violation of the Proclamationand dismissed the petitions. The Supreme Court heldthat the authority to suspend the privilege of thewrit is circumscribed, confined and restricted, not




only by the prescribed setting or the conditionsessential to its existence, but, also, as regards thetime when and the place where it may be exercised.

Thus, the Court has the authority to inquire into theexistence of the factual bases for the proclamationin order to determine its constitutional sufficiency.The test for such judicial inquiry is whether or notthe Executive acted arbitrarily in issuing theProclamation. The test is not correctness, but

arbitrariness.

For the suspension of the privilege of the writ to bevalid, (a) there must be "invasion, insurrection orrebellion" or, pursuant to paragraph (2), section 10of Art. VII of the Constitution, "imminent dangerthereof"; and (b) public safety must require theaforementioned suspension. The President declared in Proclamation No. 889, as amended, that bothconditions are present, and the Supreme Courtagreed. The President did not act arbitrarily; theCourt acknowledged the existence of a sizeablegroup of men (Communists and the NPA) who havepublicly risen in arms to overthrow the government

and have thus been and still are engaged in rebellionagainst the Government of the Philippines. [Lansangvs. Garcia (1971)]

It is not physical restraint alone which can beinquired into by means of the writ of habeas corpus. In this case, the petition is valid as petitioner‘stemporary release from detention is accompaniedwith restrictions w/ the ff effects: 1) curtailedfreedom of movement by the condition that he mustget approval of respondents for any travel outsideMetro Manila, 2) abridged liberty of abode becauseprior approval of respondent is required in casepetitioner wants to change place of residence, 3)abridged freedom of speech due to prohibition from

taking any interviews inimical to national security,and 4) petitioner is required to report regularly torespondents or their reps. [Moncupa vs. Enrile(1986)]

It being undeniable that if the Hernandez rulingwere to be given retroactive effect, petitioners hadserved the full term for which they could have beenlegally committed, is habeas corpus the appropriateremedy?

YES. Cruz vs. Director of Prisons (1910): "The courtsuniformly hold that where a sentence imposespunishment in excess of the power of the court toimpose, such sentence is void as to the excess. Therule is that the petitioner is not entitled to hisdischarge on a writ of habeas corpus unless he hasserved out so much of the sentence as was valid."

While the above decision speaks of a trial judgelosing jurisdiction over the case, insofar as theremedy of habeas corpus is concerned, the emphaticaffirmation that it is the only means of benefitingthe accused by the retroactive character of a favorable decision holds true. Petitioners clearlyhave thus successfully sustained the burden ofjustifying their release.‖ [Gumabon vs. Director of Prisons (1971)]

Sombong claims that she is the mother of the childChristina, who is under the custody of Neri, and fileda petition for the issuance of the writ of habeascorpus. The Supreme Court denied the petition.

In order to justify the grant of the writ of habeascorpus, the restraint of liberty must be in the natureof an illegal and involuntary deprivation of freedomof action. However, habeas corpus may still be

resorted to even if the restraint is voluntary in caseswhere the rightful custody of any person is withheldfrom the person entitled thereto. The said writ isthe proper legal remedy to enable parents to regainthe custody of a minor child even if the child is inthe custody of a third person of her own free will.

Sombong does not have the right of custody over thechild, because the evidence adduced does notwarrant the conclusion that Christina is the sameperson as her child Arabella. [Sombong vs. CA(1990)]

Larkins was arrested after a certain Alinea filed a

complaint-affidavit for rape against him before theNBI. There was no warrant. A complaint for rape wassubsequently filed before the RTC. His common-lawwife filed a petition for habeas corpus.

The Supreme Court held that even if the arrest of a person is illegal, supervening events may bar hisrelease or discharge from custody. The court mustthus look into the legality of his detention as of, atthe earliest, the filing of the application for a writ ofhabeas corpus, for even if the detention is at itsinception illegal, it may, by reason of somesupervening events, such as the instances mentionedin Section 4 of Rule 102, be no longer illegal at thetime of the filing of the application. Among such

supervening events are:(1) The issuance of a judicial process

preventing the discharge of the detainedperson.

(2) Another is the filing of a complaint orinformation for the offense for which theaccused is detained.

By then, the restraint of liberty is already by virtueof the complaint or information and, therefore, thewrit of habeas corpus is no longer available.

Section 4 of Rule 102 reads in part as follows: "Norshall anything in this rule be held to authorize thedischarge of a person charged with or convicted anoffense in the Philippines." It may also be said thatby filing his motion for bail, Larkins admitted that hewas under the custody of the court and voluntarilysubmitted his person to its jurisdiction. [Velasco vs.CA (1995)]

R. Writ of Amparo

Definition The petition for a writ of amparo is a remedyavailable to any person whose right to life, liberty




and security is violated or threatened with violationby an unlawful act or omission of a public official oremployee, or of a private individual or entity. [Sec.1, The Rule on the Writ of Amparo]

BasisThe Supreme Court shall have the following powers:xxx (5) Promulgate rules concerning the protectionand enforcement of constitutional rights, xxx. Suchrules shall provide a simplified and inexpensive

procedure for the speedy disposition of cases, shallbe uniform for all courts of the same grade, andshall not diminish, increase, or modify substantiverights. xxx [Sec. 5, Art. VIII, 1987 Consti]

Petition for Writ

FormThe petition shall be signed and verified . [Sec. 5]

Contents The petition shall allege the following:

(a) The personal circumstances of thepetitioner

(b) The name and personal circumstances of

the respondent responsible for the threat,act or omission, or, if the name is unknownor uncertain, the respondent may bedescribed by an assumed appellation

(c) The right to life, liberty and security of theaggrieved party violated or threatened withviolation by an unlawful act or omission ofthe respondent, and how such threat orviolation is committed with the attendantcircumstances detailed in supportingaffidavits

(d) The investigation conducted, if any,specifying the names, personalcircumstances, and addresses of theinvestigating authority or individuals, as

well as the manner and conduct of theinvestigation, together with any report

(e) The actions and recourses taken by thepetitioner to determine the fate orwhereabouts of the aggrieved party and theidentity of the person responsible for thethreat, act or omission

(f) The relief prayed for.

The petition may include a general prayer for otherjust and equitable reliefs. [Sec. 5]

Where to file The petition may be filed on any day and at any time[Sec. 3]

Filing Enforceability ReturnableRTC of theplace wherethe threat, actor omission wascommitted orany of itselementsoccurred

Anywhere inthe Philippines

Before theissuing court orjudge

Sandiganbayanor any of its

(1) Before theissuing court or

justices any justicethereof, OR(2) Any RTC ofthe placewhere thethreat, act oromission wascommitted orany of itselements

occurred

Court ofAppeals or anyof its justices

SC or any of itsjustices

(1) Before theissuing court orany justicethereof(2) Before theSandiganbayanor CA or any oftheir justices,OR(3) Any RTC ofthe placewhere thethreat, act or

omission wascommitted orany of itselementsoccurred

Docket feesThe petitioner shall be exempted from the paymentof the docket and other lawful fees when filing thepetition. The court, justice or judge shall docketthe petition and act upon it immediately. [Sec. 4]

ReturnWithin 72 hours after service of the writ, the

respondent shall file a verified written returntogether with supporting affidavits which shall,among other things, contain the following:

(a) The lawful defenses to show that therespondent did not violate or threaten withviolation the right to life, liberty andsecurity of the aggrieved party, through anyact or omission

(b) The steps or actions taken by therespondent to determine the date orwhereabouts of the aggrieved party and theperson/s responsible for the threat, act oromission

(c) All relevant information in the possession of

the respondent pertaining to the threat, actor omission against the aggrieved party(d) If the respondent is a public official or

employee, the return shall further state theactions that have been or will still be taken:

(i) To verify the identity of theaggrieved party

(ii) To recover and preserve evidencerelated to the death ordisappearance of the personidentified in the petition whichmay aid in the prosecution of theperson/s responsible




(iii) To identify witnesses and obtainstatements from them concerningthe death or disappearance

(iv) To determine the cause, manner,location and time of death ordisappearance as well as anypattern or practice that may havebrought about the death ordisappearance

(v) To identify and apprehend the

person/s involved in the death ordisappearance

(vi) To bring the suspected offendersbefore a competent court.

The return shall also state other matters relevant tothe investigation, its resolution and the prosecutionof the case.

A general denial of the allegations in the petitionshall not be allowed. [Sec. 9]

HearingThe hearing on the petition shall be summary.

However, the court, justice or judge may call for apreliminary conference to simplify the issues anddetermine the possibility of obtaining stipulationsand admissions from the parties.

The hearing shall be from day to day until completedand given the same priority as petitions for habeascorpus. [Sec. 13]

Burden of proof The parties shall establish their claims by substantialevidence.

The respondent who is a private individual or entitymust prove that ordinary diligence as required by

applicable laws, rules and regulations was observedin the performance of duty.

The respondent who is a public official or employeemust prove that extraordinary diligence as requiredby applicable laws, rules and regulations wasobserved in the performance of duty.

The respondent public official or employee cannotinvoke the presumption that official duty has beenregularly performed to evade responsibility orliability. [Sec. 17]

The Manalo brothers were abducted, detained, andtortured repeatedly by the military. After theirescape, they filed a petition for the privilege of theWrit of Amparo. The Supreme Court granted thepetition and held that there was a continuingviolation of the Manalos‘ right to security.Considering that they only escaped from captivityand have implicated military officers, there is still athreat to their lives, liberty, and security. Thethreat vitiates their free will and they are forced tolimit their movements and activities. Thegovernment also failed to provide them protectionbecause the military themselves perpetrated theabduction, detention, and torture. The governmentalso failed to provide an effective investigation.

As regards the relief granted, the Court held thatthe production order under the Amparo rule isdifferent from a search warrant and may be likened to the production of documents or things under Rule27.1, ROC.

They also said that the disclosure of the presentplaces of assignment of the implicated militaryofficers would not jeopardize the exercise of the

military functions of the officers. Such disclosure isrelevant in ensuring the safety of the Manalobrothers. [Secretary of National Defense vs. Manalo(2008)]

S. Self-Incrimination Clause1. Scope and Coverage2. Application3. Immunity Statutes

1. Scope and Coverage

Sec. 17, Art. 3. No person shall be compelled to bea witness against himself.

Only applies to compulsory testimonial, and doesn‘tapply to material objects [Villaflor vs. Summers(1920)]

It refers therefore to the use of the mental processand the communicative faculties, and not to amerely physical activity.If the act is physical or mechanical, the accused canbe compelled to allow or perform the act, and theresult can be used in evidence against him.

Examples

(1) Handwriting in connection with aprosecution for falsification is NOT allowed,for this involves the use of the mentalprocesses [Beltran vs. Samson, 53 Phil 570;Bermudez vs. Castillo (1937)]

(2) Re-enactment of the crime by the accusedis NOT allowed, for this also involves themental process.

(3) The accused can be required to allow asample of a substance taken from his body[U.S. vs. Tan The (1912)] , or be ordered toexpel the morphine from his mouth [U.S. vs.Ong Sio Hong (1917)]

(4) 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)]

(5) Order to give a footprint sample to see if itmatches the ones found in the scene of thecrime is allowed [People vs. Salas and People vs. Sara]

Foreign Laws




The privilege which exists as to private papers,cannot be maintained in relation to ―records

required by law to be kept in order that there maybe suitable information of transactions which are theappropriate subjects of governmental regulation andthe enforcement of restrictions validly established. [Shapiro v. US (1948)]

In recent cases, the US Supreme Court has struckdown certain registration requirements that

presented real and appreciable risk of self-incrimination. These involved statues directed atinherently suspect groups in areas permeated bycriminal statutes, a circumstance which laid thesubjects open to real risk of self-incrimination.[BERNAS]

The great majority of persons who file income taxreturns do not incriminate themselves by disclosingtheir occupation. The requirement thatsuch returns be completed and filed simply does notinvolve the compulsion to incriminate considered inMackey. [US v. Sullivan (1927)]

2. Application

GENERAL RULE: The privilege is available in anyproceedings, even outside the court, for they mayeventually lead to a criminal prosecution.

It extends to administrative proceedings whichpossess a criminal or penal aspect. A doctor who wasbeing investigated by a medical board for allegedmalpractice who would lose his license if foundguilty, could not be compelled to take the witnessstand without his consent. [Pascual vs. Board of Medical Examiners (1969 ) ]

It extends to a fact-finding investigation by an adhoc body. A person can be compelled to testifyprovided he is given immunity co-extensive with theprivilege against self-incrimination [Galman vs.Pamaran (1985)]

Effect of Denial of Privilege

EXCLUSIONARY RULE under SEC. 17, ART. III inrelation to SEC. 12: When the privilege against self-incrimination is violated outside of court (e.g.police), then the testimony, as already noted, is notadmissible.

OUSTED OF JURISDICTION: When the privilege isviolated by the Court itself, that is, by the judge,the court is ousted of its jurisdiction, all itsproceedings, and even judgment are null and void.[Chavez vs. CA (1968)]

3. Immunity Statutes

Transactional Immunity

ART. XIII. SEC. 18. 1987 CONSTITUTION.The Commission on Human Rights shall have thefollowing powers and functions: xxx

(8) Grant immunity from prosecution to any personwhose testimony or whose possession ofdocuments or other evidence is necessary orconvenient to determine the truth in anyinvestigation conducted by it or under itsauthority;

Use and Fruit of Immunity

―Use immunity‖ prohibits use of a witness‘compelled testimony and its fruits in any manner inconnection with the criminal prosecution of thewitness. On the other hand, ―transactionalimmunity‖ grants immunity to witness fromprosecution for an offense to which his compelledtestimony relates. [Galman vs. Pamaran (1985)]

T. Involuntary Servitude andPolitical Prisoners

SEC. 18, ART. III.(1) No person shall be detained solely by reason of

his political beliefs and aspirations.

(2) No involuntary servitude in any form shall existexcept as a punishment for a crime whereof theparty shall have been duly convicted.

Involuntary Servitude

Slavery and involuntary servitude, together withtheir corollary peonage, all denote ―a condition of enforced, compulsory service of one to another.‖ [Hodges v. US (1906) in Rubi v. Provincial Board of Mindoro (1919)]

The term of broadest scope is possibly involuntaryservitude. It has ben applied to any servitude in factinvoluntary, no matter under what form suchservitude may have been disguised. [Bailey v. Alabama (1910) in Rubi v. Provincial Board of Mindoro (1919)]

A private person who contracts obligations of thissort toward the Army cannot, by law that we knowof, either civil or military be compelled to fulfillthem by imprisonment and deportation from hisplace of residence, we deem it wholly improper tosustain such means of compulsion which are notjustified either by law or by the contract. [In ReBrooks (1901)]

While the constitutional prohibition operated tonullify agreements violative of it, suppletorylegislation was required to give the prohibition penaleffect. [US v. Cabanag (1907)]

Domestic services are always to be remunerated,and no agreement may subsist in law in which it isstipulated that any domestic service shall beabsolutely gratuitous, unless it be admitted thatslavery may be established in this country through acovenant entered into between interested parties. [de los Reyes v. Alojado (1910)]




A former court stenographer may be compelledunder pain of contempt to transcribe stenographicnotes he had failed to attend to while in service. x xx such compulsion is not the condition of enforcedcompulsory service referred to by the Constitution.

Fernando, J. concurring opinion:The matter could become tricky should astenographer stubbornly refuse to obey and the

court insist on keeping him in jail. The detentioncould then become punitive and give rise to theissue of involuntary servitude. [Aclaracion v.Gatmaitan (1975)]

Political Prisoners

Although they may also be considered as militaryprisoners as indicated in the second "Whereas", arein fact civil prisoners, accused of offenses ofpolitical character, not amenable to military justicebut to the ordinary administration of justice in civilcourts.

If the petitioners are political prisoners subject tothe civil jurisdiction of ordinary courts of justice ifthey are to be prosecuted at all, the army has nojurisdiction, nor power, nor authority, from all legalstandpoints, to continue holding them in restraint.They are entitled, as a matter of fundamental right,to be immediately released, any allegation as towhether the war was ended or not. [Raquiza v.Bradford (1945)]

Sec. 19 of CA No. 682 authorizes that the politicalprisoners in question "may be released on bail, evenprior to the presentation of the correspondinginformation," and this may be done "existingprovisions of law to the contrary notwithstanding."We must assume that the discretion granted must beconstrued in the sense that the same may beexercised in cases wherein it was not heretoforegranted by law. And it is reasonable to assume thatthe discretion granted is to the effect that thePeople's Court may exercise jurisdiction to order therelease on bail of political prisoners "even prior tothe presentation of the corresponding information." [Duran v. Abad Santos (1945)]

Petitioner has also contended that his arrest waspartly motivated by political reasons, and hasendeavored to show that, due to his oratorical

ability, he became very popular and contributed "tothe bad licking" of political opponents in Davao.Petitioner also called our attention to the fact thatof the thousands of other prisoners who werereleased by the Japanese by pardon or otherwise, noone except him has been re-arrested. Thus,Camasura was released from confinement. [Camasura v. Provost Marshal (1947)]

U. Excessive Fines and Cruel andInhuman Punishments

SEC. 19. ART. III. 1987 CONSTITUTION1. Excessive fines shall not be imposed, nor cruel,

degrading or inhuman punishment inflicted.Neither shall death penalty be imposed, unless,for compelling reasons involving heinous crimes,the Congress hereafter provides for it. Anydeath penalty already imposed shall be reducedto reclusion perpetua.

2. The employment of physical, psychological, ordegrading punishment against any prisoner ordetainee or the use of substandard orinadequate penal facilities under subhumanconditions shall be dealt with by law.

In this case the Court took into account, in loweringthe penalty to reclusion perpetua of the accusedmost of whom were already death row convicts, thedeplorable sub-human conditions of the NationalPenitentiary where the crime was committed. [People vs. dela Cruz (1953)]

RA 9346 (June 24, 2006): An Act Prohibiting theImposition of Death Penalty in the Philippines:

Sec. 1. The imposition of the penalty of death ishereby prohibited. Accordingly, R.A. No. 8177,otherwise known as the Act Designating Death byLethal Injection is hereby repealed. R.A. No. 7659,otherwise known as the Death Penalty Law, and allother laws, executive orders and decrees, insofar asthey impose the death penalty are hereby repealedor amended accordingly.

The import of the grant of power to Congress torestore the death penalty requires: (1) that Congressdefine or describe what is meant by heinous crimes;(2) that Congress specify and penalize by death, onlycrimes that qualify as heinous in accordance with

the definition or description set in the death penaltybill and/or designate crimes punishable by reclusion perpetua to death in which latter case, death canonly be imposed upon the attendance ofcircumstances duly proven in court that characterizethe crime to be heinous in accordance with thedefinition or description set in the death penaltybill; and (3) that Congress, in enacting this deathpenalty bill be singularly motivated by ―compellingreasons involving heinous crimes.‖

For a death penalty bill to be valid, a positivemanifestation in the form of higher incidence ofcrime should first be perceived and statisticallyproven following the suspension of the death penalty

[is not required in Sec. 19 (1)]. Neither does the saidprovision require that the death penalty be resortedto as a last recourse when all other criminal reformshave failed to abate criminality in society. [Peoplev. Echegaray (1997)]

The Golez resolution, signed by 113 congressman asof January 11, 1999 (House Resolution No. 629introduced by Congressman Golez entitled"Resolution expressing the sense of the House ofRepresentatives to reject any move to review R.A.No. 7659, which provided for the re-imposition ofdeath penalty, notifying the Senate, the Judiciary




and the Executive Department of the position of theHouse of Representative on this matter and urgingthe President to exhaust all means under the law toimmediately implement the death penalty law.")House Resolution No. 25 expressed the sentimentthat the House ". . . does not desire at this time toreview Republic Act 7659." In addition, the Presidenthas stated that he will not request Congress to ratifythe Second Protocol in review of the prevalence ofheinous crimes in the country. [Echegaray v.

Secretary (1998)]

To be prohibited by this provision the punishmentmust not only be unusual but it must also be cruel.There is no reason why unusual punishments whichwere not cruel should have been prohibited. If thathad been done it would have been impossible tochange the punishments that existed when theConstitution was adopted. A law which changes apenalty so as to make it less severe would beunconstitutional if the new penalty were an unusualone.

Punishments are cruel when they involve torture or a

lingering death; but the punishment of death is notcruel, within the meaning of that word as used inthe Constitution. It implies there something inhumanand barbarous, something more than the mereextinguishment of life. The constitutional limit mustbe reckoned on the basis of the nature and mode ofpunishment measured in terms of physical pain. [Legarda v. Valdez (1902)]

―Cruel and unusual‖ as found in the Constitution, donot have the same meaning as ―clearly excessive‖found in Article 5 of the Penal Code. It takes morethan merely being harsh, excessive, out ofproportion, or severe for a penalty to be obnoxiousto the Constitution. ―The fact that the punishment

authorized by the statute is severe does not make itcruel and unusual.‖ x x x the punishment must be―flagrantly and plainly oppressive,‖ ―whollydisproportionate to the nature of the offense as toshock the moral sense of the community [for it to bebanned].‖ [People v. Estoista (1953)]

Sec 19 (2) as worded, already embodiesconstitutional authorization for the Commission onHuman Rights to take action in accordance with ArtXIII Sec 18. There is a command addressed toCongressed to pass whatever civil or penallegislation might be required for the subject.[BERNAS]

V. Non-Imprisonment for Debts

ART. III. SEC. 20. 1987 CONSTITUTIONNo person shall be imprisoned for debt or non-payment of a poll tax.

Santos refused to pay 16 pesos for Ramirez‘s cedula as payment for what Santos owed Ramirez. Thus,Ramirez was convicted and imprisoned for estafa.Upon demand for release, the Court held that theimprisonment was correct since it was for estafa and

not involuntary servitude or imprisonment for debt. [Ramirez v. de Orozco (1916)]

The obligation incurred by the debtor, as shown bythe receipt, was yp [ay an ordinary contractualobligation. Since the guardianship proceeding wascivil in nature, the Court did not allow enforcementof the civil obligation by an order of imprisonment. [In re Tamboco (1917)]

No person may be imprisoned for debt in virtue of acivil proceeding. [Makapagal v. Santamaria (1930)]

A person may be imprisoned as a penalty for a crimearising from a contractual debt and imposed in aproper criminal proceeding. Thus, the conversion ofa criminal fine into a prison term does not violatethe provision because in such a case, imprisonmentis imposed for a monetary obligation arising from acrime. [Ajeno v, Judge Insero (1976)]

W. Double Jeopardy1. Requisites2. Motions for Reconsideration and Appeals3. Dismissal with Consent of Accused

SEC. 21. ART. III. No person shall be twice put injeopardy of punishment for the same offense. If anact is punished by a law and an ordinance,conviction or acquittal under either shall constitutea bar to another prosecution for the same act.

Termination of Jeopardy(1) By acquittal(2) By final conviction(3) By dismissal without express consent of

accused(4) By ―dismissal‖ on the merits

1. Requisites(1) Court of competent jurisdiction;(2) A Complaint/Information sufficient in form

and substance to sustain a conviction;(3) Arraignment and plea by the accused;(4) Conviction, acquittal, or dismissal of the

case without the express consent, of theaccused. [Rule 117, Sec. 7; People vs.Obsania (1968)]

When Subsequent Prosecution is Barred(1) Same offense(2) Attempt of the same offense

(3) Frustration of the same offense(4) Offense necessarily included in the 1st

offense (All the elements of the 2ndconstitute some of the elements of the 1stoffense)

(5) Offense that necessarily includes the 1stoffense (All the elements of the 1stconstitute some of the elements of the 2ndoffense)

Exceptions(1) The graver offense developed due to

"supervening facts" arising from the same




act or omission constituting the formercharged.

(2) The facts constituting the graver chargebecame known or were discovered onlyafter the filing of the former complaint orinformation.

(3) The plea of guilty to the lesser offense wasmade without the consent of the fiscal andthe offended party.

When Defense of Double Jeopardy is Available(1) Dismissal based on insufficiency of

evidence;(2) Dismissal because of denial of right to

speedy trial;(3) Accused is discharged to be a state witness.

2. Motions for Reconsideration andAppeals

The accused cannot be prosecuted a second time forthe same offense and the prosecution cannot appeala judgment of acquittal. [Kepner v. US (1904)]

Provided, that the judge considered the evidence,even if the appreciation of the evidence leading tothe acquittal is erroneous, an appeal or motion forreconsideration by the prosecution will not beallowed. [People v. Judge Velasco (2000)]

No error, however, flagrant, committed by the courtagainst the state, can be reserved by it for decisionby the Supreme Court when the defendant has oncebeen placed in jeopardy and discharged even thoughthe discharge was the result of the error committed. [People v. Ang Cho (1945) citing State v. Rook]

A mere verbal dismissal is not final until written and

signed by the judge. [Rivera, Jr. v. People (1990)]

When an accused appeals his conviction, he waiveshis right to the plea of double jeopardy. If theaccused had been prosecuted for a higher offensebut was convicted for a lower offense, he hastechnically been acquitted of the higher offense. Hisappeal would give the Court the right to impose apenalty higher than that of the original convictionimposed on him. [Trono v. US (1905)]

Double jeopardy provides three related protections:(1) Against a second prosecution for the same

offense after conviction;(2) Against a second prosecution for the same

offense after conviction; and(3) Against multiple punishments for the same

offense. [People v. Dela Torre, G.R. No.1379-58, March 11, 2002]

3. Dismissal with Consent of Accused

RULE 117. Sec. 8, par 1. Provisional dismissal.—Acase shall not be provisionally dismissed except withthe express consent of the accused and with noticeto the offended party.

When the case is dismissed other than on the merits,upon motion of the accused personally, or throughcounsel, such dismissal is regarded as ―with expressconsent of the accused‖, who is therefore deemedto have waived the right to plea double jeopardy.

X. Ex Post Facto and Bills of Attainder

SEC. 22. ART. III. 1987 CONSTITUTIONNo ex post facto law or bill of attainder shall beenacted.

RA 1700 which declared the Communist Party of thePhilippines a clear and present danger to Philippinesecurity, and thus prohibited membership in suchorganization, was contended to be a bill ofattainder. Although the law mentions the CPP inparticular, its purpose is not to define a crime butonly to lay a basis or to justify the legislativedetermination that membership in such organizationis a crime because of the clear and present danger

to national security. [People vs. Ferrer (1972)]

Ex Post Facto Laws—Defined

(1) Makes an action done before the passing ofthe law and which was innocent when donecriminal, and punishes such action.

(2) Aggravates a crime or makes it greater thanwhen it was committed.

(3) Changes the punishment and inflicts agreater punishment than the law annexedto the crime when it was committed.

(4) Alters the legal rules of evidence andreceives less or different testimony thanthe law required at the time of thecommission of the offense in order toconvict the defendant. (Mekin v. Wolfe,1903)

(5) Assumes to regulate civil rights andremedies only but in effect imposes apenalty or deprivation of a right whichwhen done was lawful.

(6) Deprives a person accused of a crime ofsome lawful protection of a former

conviction or acquittal, or a proclamationof amnesty. [In re Kay Villegas Kami (1970)]

The prohibition applies only to criminal legislationwhich affects the substantial rights of the accused. [Phil. National Bank v. Ruperto (1960)]

It applies to criminal procedural law prejudicial tothe accused. [US v. Gomez (1908)]

It is improper to apply the prohibition to anexecutive proclamation suspending the privilege of




the writ of habeas corpus. [Montenegro v. Castañeda(1952)]

Bills of Attainder—Defined

A bill of attainder is a legislative act which inflictspunishment without judicial trial. If the punishmentbe less than death, the act is termed a bill of pains

and penalties. Within the meaning of theConstitution, bills of attainder include bills of painsand penalties. [Cummings v. Missouri (1867)]

It is a general safeguard against legislative exerciseof the judicial function, or trial by legislature. [US v.Brown (1965)]

Annex A

QUERY HABEAS DATAWhat is the writ ofhabeas data?

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 or information

regarding the person, family, home and correspondence of the aggrievedparty.

What rule governspetitions for and theissuance of a writ ofhabeas data?

The Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC), which was approved by theSupreme Court on 22 January 2008. That Rule shall not diminish, increase or modifysubstantive rights.

What is the SupremeCourt‘s basis in issuingthe Rule?

(Constitution, Art. VIII, Sec. 5[5]).

When does the Rule takeeffect?

The Rule takes effect on 2 February 2008, following its publication in three (3)newspapers of general circulation.

Who may file a petitionfor the issuance of a writof habeas data?

The aggrieved party. However, in cases of extralegal killings and enforced disappearances, the

petition may be filed by- Any member of the immediate family of the aggrieved party,

namely: the spouse, children and parents; or- Any ascendant, descendant or collateral relative of the aggrieved

party within the fourth civil degree of consanguinity or affinity, indefault of those mentioned in the preceding paragraph.

Where can the petition

be filed?

Regional Trial Court

where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is

gathered, collected or stored, at the option of the petitioner.

Supreme Court;Court of Appeals;Sandiganbayan: when the action concerns public data files of government offices.

How much is the docketor filing fees for thepetition?

No docket and other lawful fees shall be required from an indigent petitioner.

The petition of the indigent shall be docketed and acted upon immediately,without prejudice to subsequent submission of proof of indigency not later than 15days from the filing of the petition.

Instead of having thehearing in open court,

can it be done inchambers?

Yes. It can be done when the respondent invokes the defense that the release of thedata or information in question shall compromise national security or state secrets ,

or when the data or information cannot be divulged to the public due to its nature orprivileged character








COMMITTEE HEADS











OPERATIONS HEADS










Meneses • Jenin Velasquez • Mara Villegas • Naomi QuimpoLeslie Octaviano • Yas Refran •Cris BernardinoLayout Head| Graciello TimothReyes



LAW ON PUBLIC OFFICERS POLITICAL LAW REVIEWER

Law on Public OfficersPOLITICAL LAW





A. General PrinciplesB. Modes of Acquiring Title to Public

OfficeC. Modes and Kinds of AppointmentD. Eligibility and Qualification

Requirements

E. Disabilities and Inhibitions of PublicOfficers

F. Powers and Duties of PublicOfficers

G. Rights of Public OfficersH. Liabilities of Public OfficersI. Immunity of Public OfficersJ. De Facto OfficersK. Termination of Official RelationL. The Civil ServiceM. Accountability of Public OfficersN. Term Limits

A. General Principles

I. Concept and ApplicationII. Public OfficerIII. Classification of Public Officers and PublicOfficers

I. Concept and Application

1. Definition

The term "public office" is frequently used to referto the right, authority and duty, created andconferred by law, by which, for a given period eitherfixed by law or enduring at the pleasure of thecreating power, an individual is invested with some

portion of the sovereign functions of government, tobe exercised by that individual for the benefit of thepublic. [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 or2) enduring at the pleasure of the appointing

power an individual is invested with some portion of

the sovereign functions of the government (purpose) to be exercised by him for the benefit

of the public.

2. Purpose to effect the end for the government‘s

institution : common good; NOT profit, honor, or private interest of any

person, family or class of persons [63 Am Jur 2d 667 ]

3. Nature

Philippine Constitution, Art. XI Sec. 1. Public office is a public trust. Public officersand employees must, at all times, be accountable to

the 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. [Morfev. Mutuc (1968)]

4. Elements

i. Created by law or by authority of law Public office must be created by:

o Constitutiono National Legislationo 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 be exercised for the benefit of the public

There are certain GOCCs which, though created bylaw, are not delegated with a portion of thesovereign powers of the government (those that arepurely proprietary in nature), and thus may not beconsidered as a Public Office.

iii. Powers conferred and duties imposed must bedefined, directly or impliedly

iv. Duties must be performed independently and without the control of a superior power other thanthe law, UNLESS for duties of an inferior or subordinate office that created or authorized by theLegislature and which inferior or subordinate officeis placed under the general control of a superior office or body

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 office ofthe Board of Canvassers, yet its duties are onlyfor a limited period of time.

On the dispensability of the element ofcontinuance: Mechem in one case states that

the ―the most important characteristic‖ incharacterizing a position as a public office isthe DELEGATION to the individual of some of the sovereign functions of government.o Here, the court held that Laurel, as chair of

the National Centennial Commission (NCC),is a public officer. The public office of NCCwas delegated and is performing executivefunctions: it enforces the conservation andpromotion of the nation‘s historical andcultural heritage.

o Such delegated function is a policy embodiedin the Constitution. It is inconsequential




that Laurel was not compensated during histenure. A salary is a usual (but notnecessary) criterion for determining thenature of a position. Also, the element ofcontinuance is not indispensable. [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 public office.

Public employment as a position lacks either oneor more of the foregoing elements of a publicoffice. (Bernard v. Humble [182 S.W. 2d. 24.Cited by De Leon, page 8-9])1 o created by contract rather than by force of

law the most important characteristic which

distinguishes an office from an employment isthat:o the creation and conferring of an office

involves a delegation to the individual ofome of the sovereign functions ofgovernment, to be exercised by him for thebenefit of the public, and

o that the same portion of the sovereignty ofthe country, either legislative, executive orjudicial, attached, for the time being, to beexercised for the public benefit.

Unless the powers so conferred are of this nature,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 from willof 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 aregenerallycontinuing andpermanent.

Limited duration andspecific in its object.Its terms define and

limit the rights andobligations of theparties, and neithermay departtherefrom withoutthe consent of theother.

Scope Duties that aregenerallycontinuing andpermanent.

Duties are veryspecific to thecontract.

1 ALL DE LEON CITATIONS BASED ON: De Leon, Hector. THE

Wheredutiesaredefined

The law Contract

7. No vested right to public office.

GENERAL RULE:A public office, being a mere privilege given by theState, does not vest any right in the holder of theoffice. This rule applies when the law is clear.

EXCEPTION:When the law is vague, the person‘s holding of theoffice is protected and he should not be easilydeprived of his office.

A public office is neither property nor a publiccontract. Yet the incumbent has, in a sense, aright to his office. If that right is to be takenaway by statute, the terms should be clear.[Segovia v. Noel (1925)]

8. Public Office is not Property.

A public office is not the property of the publicofficer within the meaning of the due process clauseof the non-impairment of the obligation of contractclause of the Constitution. It is a public trust/agency. Due process is

violated only if an office is considered property.However, a public office is not property withinthe constitutional guaranties of due process. Itis a public trust or agency. As public officersare mere agents and not rulers of the people, noman has a proprietary or contractual right to anoffice. [Cornejo v. Gabriel (1920)]

It is personal. Public office being personal, thedeath of a public officer terminates his right tooccupy the contested office and extinguishes hiscounterclaim for damages. His widow and/orheirs cannot be substituted in the counterclaimsuit. [Abeja v. Tañada (1994)]

Exceptions: In quo warranto proceedings relating to the

question as to which of 2 persons is entitled to apublic office

In an action for recovery of compensation accruing by virtue of the public 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 Legislative Function. EXCEPTIONS:

o where the offices are created by theConstitution;




o where the Legislature validly delegates suchpower.

Legislature should Validly Delegate the Power toCreate a Public Office

Or else, the office is inexistent. The President‘sauthority to "reorganize within one year thedifferent executive departments, bureaus andother instrumentalities of the Government" inorder to promote efficiency in the public service

is limited in scope and cannot be extended toother matters not embraced therein. [UST v.Board of Tax Appeals (1953)]

Therefore, an executive order depriving the Courtsof First Instance of jurisdiction over cases involvingrecovery of taxes illegally collected is null and void,as Congress alone has the "power to define,prescribe and apportion the jurisdiction of thevarious courts." [Art. VIII sec. 2, 1987Constitution]

But note: No law shall be passed increasing theappellate jurisdiction of the Supreme Court as

provided in this Constitution without its advice andconcurrence. [Art. VI, sec. 30, 1987 Constitution]

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 an office includes the power tomodify or abolish it (i.e. Legislature generally hasthis power)

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 abolishes unexpired term. The legislature‘s abolition of an office(i.e. court) also abolishes the unexpired term.The legislative power to create a court carrieswith it the power to abolish it. [Ocampo v. Sec.of Justice (1955)]

Is Abandonment equivalent to Abolition? When apublic official voluntarily accepts an appointment toan office newly created by law -- which new officeis incompatible with the former -- he will beconsidered to have abandoned his former office.

Except when the public official is constrained toaccept because the non-acceptance of the newappointment would affect public interest. (noabandonment) [Zandueta v. De La Costa(1938)]

12. Estoppel in Denying Existence of Office

A person is estopped from denying that he hasoccupied a public office when he has acted as apublic officer; more so when he has received publicmonies by virtue of such office. [Mendenilla v.Onandia (1962)]

II. Public Officer

1. Definition

(What he is) He performs governmental publicfunctions / duties which involve theexercise of discretion ( not clerical ormanual)

(How he became Public Officer) by virtue of

direct provision of law, popular election, orappointment by competent authority.

(Who ARE Public Officers)

Administrative Code, Sec. 2.(14) The term ―officer‖ includes any governmentemployee, agent, or body authorized to exercisegovernmental power in performing particular acts orfunctions

Revised Penal CodeArt 203. Who are public officers—for the purpose ofapplying the provisions of this and the precedingtitles of this book, any person who, by directprovision of the law, popular election orappointment by competent authority, shall take partin the performance of public functions in theGovernment of the Philippine Islands, or shallperform in said Government or in any of its branchespublic duties as an employee, agent or subordinateofficial of any rank or class, shall be deemed to be apublic officer

Persons in authority and their agents (Art. 152,RPC) A PERSON IN AUTHORITY is any person, either an

individual or a member of a governmental body,who is directly vested with jurisdiction.

o The barrio captains and barangay chairpersonsare included.

o For RPC Articles 148 [Direct Assaults] and 151[Resistance and Disobedience], teachers,professors, and persons charged with thesupervision of public or duly recognizedprivate schools, colleges and universitiesare included.

An AGENT of a person in authority is chargedwith the maintenance of public order and theprotection and security of life and property.




o They become such either by direct provisionof law, by election or by a competentauthority‘s appointment.

o Examples are barrio captain, barriocouncilman, barrio policeman, barangayleader, and any person who comes to theaid of persons in authority.

Temporary performer of public functionsA person performing public functions – even

temporarily – is a public official. Here, a laborertemporarily in charge of issuing summons andsubpoenas for traffic violations in a judge's sala wasconvicted for bribery under RPC 203.

According to the Court, the law is comprehensive:―who, by direct provision of law, popular election orappointment by competent authority, shall take partin the performance of public functions in thePhilippine Government, or shall perform in saidgovernment or any of its branches, public duties asan employee, agent or subordinate official or anyrank or class [Maniego v. People (1951)]

Money order-sorter and –filer.A person sorting and filing money orders in theAuditor's Office of the Bureau of Posts is obviouslydoing a public function or duty. Such person herewas convicted 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 of such privateentity [Manila Terminal Co. v. CIR (1952)]

Concession forest guards [Martha Lumber Millv. Lagradante (1956)]

Company cashier of a private corporation ownedby the government [Tanchoco v. GSIS (1962)]

2. A Person Cannot be Compelled to Accepta Public Office.

EXCEPTIONS When citizens are required, under conditions

provided by law, to render personal military orcivil service (see Sec. 4, Art. II, 1987 Const.);

When a person who, having been elected bypopular election to a public office, refuseswithout legal motive to be sworn in or todischarge the duties of said office. This is afelony.

Art 234, RPC: Refusal to discharge elective

office- the penalty of arresto mayor or a finenot exceeding 1,000 pesos, or both, shall beimposed upon any person who, having beenelected by popular election to a public office,shall refuse without legal motive to be sworn inor to discharge the duties of said office.

3. Public Officer’s Power is Delegated (notPresumed)

A public official exercises power, not rights. Thegovernment itself is merely an agency through whichthe will of the state is expressed and enforced. Its

officers therefore are likewise agents entrusted withthe responsibility of discharging its functions. Assuch, there is no presumption that they areempowered to act. There must be a DELEGATIONof such authority, either express or implied. In theabsence of a valid grant, they are devoid of power.[Villegas v. Subido (1971)]

III. Classification of Public Offices and

Public OfficersCreation Constitutional

Statutory Public Body Served National

Local Department of government to whichtheir functions pertain

Legislative

Executive Judicial

Nature of functions CivilMilitary

Exercise of Judgment or Discretion Quasi-judicial Ministerial

Legality of Title to office De Jure

De Facto

Compensation Lucrative Honorary

B. Modes of Acquiring Title toPublic Office

Modes of Commencing Official Relation

1. Election2. Appointment3. Others:

a. Succession by operation of law;b. Direct provision of law, e.g. ex-officio officers

1. ElectionSelection or designation by popular vote

2. Appointment

(a) DefinitionDesignation Appointment

Definition Imposition ofadditional dutiesupon existingoffice

Appointingauthority selectsan individualwho will occupya certain publicoffice

Extent of Powers

Limited Comprehensive

Security of tenure?

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 the




minimum qualification requirements prescribedby law.

Vacancy for Validity. For the appointment to bevalid, the position must be vacant [Castin v.Quimbo (1983)]

(b) Nature of Power to Appoint The power to appoint is intrinsically an

executive act involving the exercise of

discretion. [Concepcion v. Paredes (1921)]

Must be unhindered and unlimited by Congress.Congress cannot either appoint a public officeror impose upon the President the duty toappoint any particular person to an office. Theappointing power is the exclusive prerogativeof the President, upon which no limitationsmay be imposed by Congress, EXCEPT those:o requiring the concurrence of the Commission

on Appointments; ando resulting from the exercise of the limited

legislative power to prescribe thequalifications to a given appointive office.

[Manalang v. Quitoriano (1954)]

The President‘s power to appoint under theConstitution should necessarily have areasonable measure of freedom, latitude, ordiscretion in choosing appointees. [Cuyegkengv. 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 of appointment,sans the essential element of choice, is nopower at all and goes against the very nature ofappointment itself. [Flores v. Drilon (1993)]

C. Modes and Kinds of AppointmentI. Classification of AppointmentsII. Steps in Appointment ProcessIII. Presidential AppointeesIV. Discretion of Appointing OfficialV. Effectivity of AppointmentVI. Effects of a Complete, Final and IrrevocableAppointment

I. Classification of Appointments

1) Permanent:

The permanent appointee:o must be qualifiedo must be eligibleo is constitutionally guaranteed security

of tenure (Duration) until lawful termination. Note: Conditional appointments are not

permanent.

2) Temporary: an acting appointment; the temporary appointee NEED NOT be

qualified or eligible;

(No Security of Tenure) revocable at will: justcause or valid investigation UNNECESSARY;o an ―acting‖ appointment is a temporary

appointment and revocable incharacter. [Marohombsar v. Alonto(1991)]

o A temporary appointee is like adesignated officer – they: occupy a position in an acting

capacity and

do not enjoy security of tenure.[Sevilla v. CA (1992)]

o Even a Career Service Officerunqualified for the position is deemedtemporarily-appointed. Thus he doesnot enjoy security of tenure – he isterminable at will.

o A public officer who later accepts atemporary appointment terminates hisrelationship with his former office. [Romualdez III v. CSC (1991)]

o EXCEPT Fixed-Period Temporary Appointments: may be revoked ONLY atthe period‘s expiration. Revocation

before expiration must be for a validcause. (Duration) until a permanent appointment is

issued.

II. Steps in Appointment 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 Requiring Confirmation(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.

III. Presidential Appointees

Who can be nominated and appointed only WITHthe 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 inhim by the Constitution, including ConstitutionalCommissioners (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 WITHOUT CA’sapproval? All other officers of the government whose

appointments are not otherwise provided for by

law; Those whom he may be authorized by law 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 the nomination is confirmedby the Commission of Appointments, andcontinues until the end of the term.

Ad interim: made while Congress is not insession, before confirmation by the Commission

on Appointments; immediately effective and ceases to be valid if disapproved or bypassed by the Commission on Appointments. This is apermanent appointment and it being subject toconfirmation does not alter its permanentcharacter.o Efficient. Recess appointment power keeps in

continuous operation the business ofgovernment when Congress is not in session.The individual chosen may thus qualify andperform his function without loss of time.

o Duration. The appointment shall cease to beeffective upon rejection by the Commissionon Appointments, or if not acted upon, atthe adjournment of the next session,regular or special, of Congress.

o Permanent. It takes effect immediately andcan no longer be withdrawn by thePresident once the appointee has qualifiedinto office.

The fact that it is subject to confirmationby the Commission on Appointments doesnot alter its permanent character.

The Constitution itself makes an ad interimappointment permanent in character by

making it effective until disapproved by theCommission on Appointments or until thenext adjournment of Congress. [Matibay v.Benipayo (2002)]

o Not Acting. An ad interim appointment isdistinguishable from an ―acting‖appointment which is merely temporary,good until another permanent appointmentis issued.

o Applicable to COMELEC Commissionsers, beingpermanent appointments, do not violate

the Constitutional prohibition on temporaryor acting appointments of COMELECCommissioners.

o By-passed Appointee may be Reappointed. Commission on Appointments‘ failure toconfirm an ad interim appointment is NOTdisapproval. An ad interim appointeedisapproved by the COA cannot bereappointed. But a by-passed appointee, or

one whose appointment was not acted uponthe merits by the COA, may be appointedagain by the President.

IV. Discretion of Appointing Official

Presumed. Administrators of public officers, primarily thedepartment heads should be entrusted with plenary,or at least sufficient, discretion. Their position mostfavorably determines who can best fulfill thefunctions of a vacated office. There should alwaysbe full recognition of the wide scope of adiscretionary authority, UNLESS the law speaks in

the most mandatory and peremptory tone,considering all the circumstances. [Reyes v.Abeleda (1968)]

Discretionary Act.Appointment is an essentially discretionary power. Itmust be performed by the officer in whom it isvested, the only condition being that the appointeeshould possess the qualifications required by law.[Lapinid v. CSC (1991)]

Scope. The discretion of the appointingauthority is not only in the choice of the personwho is to be appointed but also in the nature

and character of the appointment intended (i.e., whether the appointment is permanent ortemporary).

Inclusive Power. The appointing authority holdsthe power and prerogative to fulfill a vacantposition 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 requires filling upany vacancy by promotion, transfer, reinstatement,reemployment, or certification IN THAT ORDER

would be tantamount to legislative appointmentwhich is repugnant to the Constitution. What it doespurport to say is that as far as practicable theperson next in rank should be promoted,otherwise the vacancy may be filled by transfer,reinstatement, reemployment or certification, asthe appointing power sees fit, provided theappointee is certified to be qualified and eligible.[Pineda v. Claudio (1969)]

Promotion of “next-in-rank” career officer isnot Mandatory. The appointing authority should




be allowed the choice of men of his confidence,provided they are qualified and eligible.

When abused, use Mandamus.Where the palpable excess of authority or abuse ofdiscretion in refusing to issue promotionalappointment would lead to manifest injustice,mandamus will lie to compel the appointingauthority to issue said appointments. [Gesolgon v.Lacson (1961)]

“Upon recommendation” is not Merely Advisory.

Sec. 9. Provincial/City Prosecution Offices. [par. 3]All provincial and city prosecutors and theirassistants shall be appointed by the President uponthe recommendation of the Secretary.

The phrase ―upon recommendation of the Sec.of Justice‖ should be interpreted to be a mere

advice. It is persuasive in character, BUT is notbinding or obligatory upon the person to whomit is made.

V. Effectivity of Appointment

Immediately upon appointing authority‘s issuance(Rule V, Sec. 10, Omnibus Rules)

VI. Effects of a Complete, Final andIrrevocable Appointment

GENERAL RULEAn appointment, once made, is irrevocable and notsubject to reconsideration. It vests a legal right. It cannot be taken away

EXCEPT for cause, and with previous notice andhearing (due process).

It may be issued and deemed complete beforeacquiring the needed assent, confirmation, orapproval of some other officer or body.

EXCEPTIONS

Appointment is an absolute nullity [Mitra v.Subido (1967)];

Appointee commits fraud [Mitra v. Subido,supra];

Midnight appointmentso GENERAL RULE: A President or Acting

President shall not appoint 2 monthsimmediately before the next presidentialelections until his term ends. (Art. VII, Sec.

15, 1987 Const.)o EXCEPTION: Temporary appointments to

executive positions when continuedvacancies will prejudice public service orwill endanger public safety.

D. Eligibility and QualificationRequirementsI. DefinitionII. Power to Prescribe QualificationsIII. Time of Possession of Qualifications

IV. Eligibility PresumedV. Qualifications Prescribed By ConstitutionVI. Religious Test or Qualification is not RequiredVII. Qualification Standards and Requirementsunder the Civil Service Law

I. Definition

Eligibility:

endowment/requirement/accomplish-ment thatfits one for a public office.

Qualification: endowment/act which a personmust do before he can occupy a public office.

Note: Failure to perform an act required by lawcould affect the officer‘s title to the givenoffice. Under BP 881, the office of any electedofficial who fails or refuses to take his oath ofoffice within six months from his proclamationshall be considered vacant unless said failure isfor cause or causes beyond his control. o An oath of office is a qualifying requirement

for a public office. Only when the publicofficer has satisfied this prerequisite can hisright to enter into the position beconsidered plenary and complete. Untilthen, he has none at all, and for as long ashe has not qualified, the holdover officer isthe rightful occupant. [Lecaroz v.Sandiganbayan (1999)]

o Once proclaimed and duly sworn in office, apublic officer is entitled to assume officeand to exercise the functions thereof. Thependency of an election protest is notsufficient basis to enjoin him from assumingoffice or from discharging his functions. [Mendoza v. Laxina (2003)]

II. Power to Prescribe Qualifications

GENERAL RULE: Congress is empowered toprescribe the qualifications for holding publicoffice.

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 Congress toPrescribe Qualifications:o Congress cannot exceed its constitutional

powers;o Congress cannot impose conditions of

eligibility inconsistent with constitutionalprovisions;

o The qualification must be germane to theposition ("reasonable relation" rule);

o Where the Constitution establishes specificeligibility requirements for a particularconstitutional office, the constitutionalcriteria are exclusive, and Congress cannotadd to them except if the Constitution




expressly or impliedly gives the power toset qualifications.

o Congress cannot prescribe qualifications sodetailed as to practically amount to makinga 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 ofthe appointing authority to only oneeligible, e.g. the incumbent Mayor ofOlongapo City; [Flores v. Drilon(1993)]

Designating an unqualified person. ThePeople's Court Act, which provided thatthe President could designate Judges ofFirst Instance, Judges-at-large of FirstInstance or Cadastral Judges to sit assubstitute Justices of the SupremeCourt in treason cases without themnecessarily having to possess therequired constitutional qualifications of

a regular Supreme Court Justice.;[Vargas v. Rilloraza (1948)] Automatic transfer to a new office. A

legislative 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. A provisionthat impliedly prescribes inclusion in alist submitted by the Executive Councilof the Phil. Medical Association as oneof the qualifications for appointment;and which confines the selection of themembers of the Board of Medical

Examiners to the 12 persons included inthe list; [Cuyegkeng v. Cruz (1960)]

III. Time of Possession of Qualifications

At the time specified by the Constitution or law.

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.o No estoppel in ineligibility. Knowledge of

ineligibility of a candidate and failure toquestion such ineligibility before or duringthe election is not a bar to questioning sucheligibility after such ineligible candidatehas won and been proclaimed. Estoppel willnot apply in such a case. [Castaneda v. Yap(1952)]

o Citizenship requirement should be possessed on start of term (i.e. ≠ on filing candidacy).The Local Government Code does notspecify any particular date or time whenthe candidate must possess the requiredcitizenship, unlike for residence and age.The requirement is to ensure that no alienshall govern our people and country or aunit of territory thereof. An official beginsto govern or discharge his functions only

upon proclamation and on start of his term.This liberal interpretation gives spirit, lifeand meaning to our law on qualificationsconsistent with its purpose. [Frivaldo v.COMELEC (1996)]

IV. 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)

V. Qualifications Prescribed ByConstitution

1. For President (Sec. 2, Art. VI, Constitution)and Vice President (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 preceding electionday

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 yearimmediately 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 be members ofthe bar who have been engaged in thepractice of law for at least 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

Not candidates for any elective position inelection immediately precedingappointment.

Notes: “Practice of Law” defined. Practice of law

means any activity, in or out of court, whichrequires the application of law, legalprocedure, knowledge, training andexperience. Generally, to practice law is togive notice or render any kind of service whichrequires the use in any degree of legalknowledge or skill. [Cayetano v. Monsod(1991)]

In the dissenting opinion of Justice Padilla in thecase of Cayetano v. Monsod, citing Agpalo, hestated that engaging in the practice of lawpresupposes the existence of lawyer-clientrelationship. Hence, where a lawyer undertakesan activity which requires knowledge of law butinvolves no attorney-client relationship, such asteaching law or writing law books or articles, hecannot be said to be engaged in the practice ofhis profession or a lawyer

“Residency” defined. In election law, residencerefers to domicile, i.e. the place where a partyactually or constructively has his permanenthome, where he intends to return. Tosuccessfully effect a change of domicile, the

candidate must prove an actual removal or anactual change of domicile. [Aquino v. COMELEC(1995)]

Presumption in favor of domicile of origin.Domicile requires the twin elements of actualhabitual residence and animus manendi (intent to permanently remain). Domicile oforigin is not easily lost; it is deemed to continueabsent a clear and positive proof of a successfulchange of domicile. [Marcos v. COMELEC(1995)]

VI. Religious Test or Qualification isnot Required

Philippine Constitution, Art. IIISec. 5. … No religious test shall be required for theexercise of civil or political rights.

VII. Qualification Standards andRequirements under the Civil ServiceLaw

1. Qualification Standards It enumerates the minimum requirements for

a 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 are responsiblefor continuously establishing, administering

and maintaining the qualification standardsas an incentive to career 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 are NOT Required for publicoffice.

EXCEPTIONS Membership in the electoral tribunals of either

the House of Representatives or Senate (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 and to bevoted should not be dependent upon a candidate‘swealth. Poor people should also be allowed to beelected to public office because social justicepresupposes equal opportunity for both rich andpoor. [Maguera v. Borra and Aurea v. COMELEC(1965)]

4. Citizenship

Aliens not eligible for public office. The purpose of the citizenship requirement is

to ensure that no alien, i.e., no person




owing allegiance to another nation, shallgovern our people and country or a unit ofterritory thereof. [Frivaldo v. COMELEC(1996)]

5. Effect of Removal of Qualifications During theTermTermination from office

6. Effect of Pardon upon the Disqualification to

Hold Public Office(Asked in 1999)

GENERAL RULEPardon will not restore the right to hold publicoffice. (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. Disabilities and Inhibitions of Public Officers

Disqualifications to Hold Public Office

IN GENERAL: Individuals who lack ANY of thequalifications prescribed by the Constitution orby law for a public office are ineligible (i.e.disqualified from holding such office).

Authority: The legislature has the right toprescribe disqualifications in the same mannerthat it can prescribe qualifications, providedthat the prescribed disqualifications do not

violate the Constitution.

General Constitutional Disqualifications1. Losing candidates cannot be appointed to any

governmental office within one year aftersuch election. (Art. IX-B Sec. 6)

2. Elective officials during their tenure areineligible for appointment or designation inANY capacity to ANY public office orposition (Art. IX-B Sec. 7(1))

3. Appointive officials shall not hold any othergovernmental position.o Unless otherwise allowed by law or his

position‘s primary functions (Art. IX-B

Sec 7 (2))o Note: There is no violation when

another office is held by a publicofficer in an ex officio capacity (where one can‘t receive compensationor other honoraria anyway), asprovided by law and as required by theprimary functions of his office. [National Amnesty Commission v. COA(2004)]

Specific Constitutional Disqualifications

Public Officer 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 office

when such was created orits emoluments wereincreased during histerm. (Art. VI, Sec 13)

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 theOmbudsman, or asSecretaries,Undersecretaries,chairmen or heads ofbureaus or offices,including government-owned-or -controlled




Public Officer Disqualificationscorporations. (Art. VIII,Sec. 13)

Other Disqualifications1. Mental or physical incapacity 2. Misconduct or crime: persons convicted of

crimes involving moral turpitude are USUALLYdisqualified from holding public office.

3. Impeachment 4. Removal or suspension from office: not

presumed non-imposable when suchineligibility is not constitutional or statutorydeclared.

5. Previous tenure of office: for example, anappointed Ombudsman is absolutely disqualifiedfor reappointment (Article XI, Constitution).

6. Consecutive terms limit:i. Vice-President = 2 consecutive termsii. Senator = 2 consecutive termsiii. Representative = 3 consecutive termsiv.Elective local officials = 3 consecutive terms

(Sec. 8, Art. X, Constitution) Public officer‘s voluntary renunciation

of office for any length of time = aninterruption in the continuity of hisservice for the full term for which hewas elected.

7. Holding more than one office: to prevent officesof public trust from accumulating in a singleperson, and to prevent individuals fromderiving, directly or indirectly, any pecuniarybenefit by virtue of their holding of dualpositions.

Civil Liberties Union v. Executive Secretary (1991): Section 7, Article IX-B of the Constitution

generally prohibits elective and appointivepublic officials from holding multiple officesor employment in the government unlessthey are otherwise allowed by law or by theprimary functions of their position.

This provision does NOT cover thePresident, Vice-President and cabinetmembers – they are subject to a stricterprohibition under Section 13 of Article VII.

To apply the exceptions found in Section 7,Article IX-B to Section 13, Article VII wouldobliterate the distinction set by the

framers of the Constitution as to the high-ranking officials of the Executive branch. However, public officials holding positions

without additional compensation in ex-officio capacities as provided by law and asrequired by their office‘s primary functionsare not covered by the Section 13, ArticleVII prohibition.

8. Holding of office in the private sector: Section 7 (b)(1)of RA 6713 considers unlawful

for public officials and employees duringtheir incumbency to own, control, manage,

or accept employment as officer employee,consultant, counsel, broker, agent, trusteeor nominee in any private enterpriseregulated, supervised or licensed by theiroffice unless expressly allowed by law.

Section 7 of RA 6713 also generally providesfor the prohibited acts and transactions ofpublic officials and employees. Subsection(b)(2) prohibits them from engaging in theprivate practice of their profession during

their incumbency. As an exception, a publicofficial or employee can engage in thepractice of his or her profession under thefollowing conditions: first, the privatepractice is authorized by the Constitution orby the law; and second , the practice willnot conflict, or tend to conflict, with his orher official functions.

9. Relationship with the appointing power General Rule on Nepotism: The Civil Service

Decree (PD 807) prohibits all appointmentsin the national and local governments orany branch or instrumentality thereof made

in favor of 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 of affinity. Exceptions to rule on nepotism:

o persons employed in a confidentialcapacity

o teacherso physicianso 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 or for an offensepunishable by 1 year or more ofimprisonment, within 2 years after servingsentence;

ii. Removed from office as a result of anadministrative case;

iii. Convicted by final judgment for violating theoath of allegiance to the Republic;

iv.Dual citizenship;

Mercado v. Manzano (1999): Dual citizenship is different from dualallegiance. The former arises when, as a result

of the concurrent application of the differentlaws of two or more states, a person issimultaneously considered a national by the saidstates.

Dual allegiance, on the other hand, refers to thesituation in which a person simultaneously owes,by some positive act, loyalty to two or morestates. While dual citizenship is involuntary,dual allegiance is the result of an individual‘svolition.




[I]n including §5 in Article IV on citizenship, theconcern of the Constitutional Commission wasnot with dual citizens per se but withnaturalized citizens who maintain theirallegiance to their countries of origin even aftertheir naturalization.

Hence, the phrase ―dual citizenship‖ in R.A.No. 7160, §40(d) and in R.A. No. 7854, §20 mustbe understood as referring to ―dualallegiance.‖

v. Fugitive from justice in criminal or non-political cases here or abroad;

vi.Permanent residents in a foreign country orthose who have acquired the right to resideabroad and continue to avail of the sameright after the effectivity of the LocalGovernment Code;

vii. Insane or feeble-minded.

F. Powers and Duties of PublicOfficers

I. Classification of Powers and DutiesII. Source of Powers and AuthorityIII. Duties of Public Officers

I. Classification of Powers and Duties(De Leon, 2008)

1. As to Nature

a.Ministerial

Official duty is ministerial when it is absolute,certain and imperative involving merelyexecution of a specific duty arising from fixed

and designated facts. Where the officer orofficial body has no judicial power or discretionas to the interpretation of the law, and thecourse to be pursued is fixed by law, their actsare ministerial only.

Performance of duties of this nature may, unlessexpressly prohibited, be properly delegated toanother. Thus, a ministerial act which may belawfully done by another officer may beperformed by him through any deputy or agentwillfully created or appointed.

Where the law expressly requires the act to beperformed by the officer in person, it cannot,though ministerial, be delegated to another.

b. Discretionary

They are such as necessarily require theexercise of reason in the adaptation of means toan end, and discretion in determining how orwhether the act shall be done or the coursepursued.

When the law commits to any officer the duty oflooking into facts and acting upon them, not in away which it specifically directs, but after adiscretion in its nature, the function is quasi-judicial.

The presumption is that the public officer waschosen because he was deemed fit andcompetent to exercise that judgment anddiscretion. Unless the power to substituteanother in his place has been given to him, apublic officer cannot delegate his duties toanother.

2. As to the Obligation of the Officer toPerform his Powers and Duties

a. Mandatory

Powers conferred on public officers are generallyconstrued as mandatory although the language maybe permissive, where they are for the benefit of thepublic or individuals

b. Permissive

Statutory provisions define the time and modein which public officers will discharge theirduties, and those which are obviously designedmerely to secure order, uniformity, system and

dispatch in public business are generallydeemed directory.

If the act does not affect third persons and isnot clearly beneficial to the public, permissivewords will not be construed as mandatory.

3. As to the Relationship of the Officer to hissubordinates

a. Power of Control

It implies the power of an officer to manage, director govern, including the power to alter or modify orset aside what a subordinate had done in the

performance of his duties and to substitute hisjudgment for that of the latter.

b. Power of Supervision

Supervisory power is the power of mereoversight over an inferior body which does notinclude any restraining authority over suchbody.

A supervising officer merely sees to it that therules are followed, but he himself does not laydown such rules, nor does he have the discretionto modify or replace them.

II. Source of Powers and Authority(De Leon, 2008)

Under our political system, the source ofgovernmental authority is found in the people.Directly or indirectly through their chosenrepresentatives, they create such offices andagencies as they deem to be desirable for theadministration of the public functions anddeclare in what manner and by what personsthey shall be exercised.

Their will, in these respects, finds its expressionin the Constitution and the laws. The right to be




a public officer, then, or to exercise the powersand authority of a public office, must find itssource in some provision of the public law.

Nothing is better settled in the law than that apublic official exercises power, not rights. Thegovernment itself is merely an agency throughwhich the will of the state is expressed andenforced. Its officers therefore are likewiseagents entrusted with the responsibility ofdischarging its functions. As such there is no

presumption that they are empowered to act.There must be a delegation of such authority,either express or implied. In the absence of avalid grant, they are devoid of power. Whatthey do suffers from a fatal infirmity. [Villegasv. Subido (1969)]

III. Duties of Public Officers(De Leon, 2008)

1. Duties as Trustees for the Public

a. To obey the law It is the duty of an officer to obey the general

laws and the laws which prescribe the duties ofhis office, and a public officer has no power tovary or waive any statutory law.

As a general rule, a public officer must obey alaw found on the statute books until itsconstitutionality is judicially passed upon in aproper proceeding.

b. To accept and continue in officeIt is the duty of every person having the requisitequalifications, when elected or appointed to a publicoffice, to accept it. The theory is that the public hasthe right to command the services of any citizen inany official position which it may designate.

c. To accept the burden of officeOne who accepts a public office does so with theburden, and is considered as accepting its burdensand obligations with its benefits. He therebysubjects himself to all constitutional and legislativeprovisions relating thereto and undertakes toperform all the duties of the office.

d. As to diligence and careEvery public officer is bound to use reasonable skilland diligence in the performance of his officialduties, particularly where rights of individuals maybe jeopardized by his neglect.

e. As to choice and supervision of subordinates It is the duty of a public officer having an

appointing power to make the best availableappointment.

The degree of care required in selectingsubordinates must depend upon the nature ofthe work to be performed and thecircumstances of each case.

f. Ethical duties Every public officer is bound to perform the

duties of his office honestly, faithfully and to

the best of his ability, in such a manner as to beabove suspicion of irregularities, and to actprimarily for the benefit of the public.

As to outside activities: It is the duty of publicofficers to refrain from outside activities whichinterfere with the proper discharge of theirduties

2. Duty to make public disclosure of statements of assets and liabilities Public officials and employees have an

obligation under the Code of Conduct andEthical Standards for Public Officials andEmployees to accomplish and submitdeclarations under oath of, and the public hasthe right to know, their assets, liabilities, networth and financial and business interestsincluding those of their spouses and ofunmarried children under 18 years of age livingin their household.

3. Transparency of transactions and access toinformation

G. Rights of Public OfficersI. In GeneralII. Right to CompensationIII. Other Rights

I. In General(De Leon, 2008)

1. Rights incident to public office

The rights of one elected or appointed to office are,in general, measured by the Constitution or the law

under which he was elected or appointed.

2. Rights as a citizen

a.Protection from publication commenting onhis fitness and the like

The mere fact that one occupies a public officedoes not deprive him of the protection accordedto citizens by the Constitution and the laws.

However, by reason of the public character ofhis employment or office, a public officer is, ingeneral, held not entitled to the sameprotection from publications commenting on hisfitness and the like, as is accorded to theordinary citizen.

b. Engaging in certain political and businessactivities

The governmental interest in maintaining a highlevel service by assuring the efficiency of itsemployees in the performance of their tasks mayrequire public employees to suspend or refrain fromcertain political or business activities that areembraced within the constitutional rights of others,when such activities are reasonably deemedinconsistent with their public status and duties.




II. Right to Compensation(De Leon, 2008)

The power to fix the compensation of publicofficers is not inherently and exclusivelylegislative in character.

Unless the Constitution expressly or impliedlyprohibits Congress from doing so, it may

delegate the power to other government bodiesor officers.

The salary of a public officer may not, bygarnishment, attachment or order of execution,be seized before being paid to him and,appropriated for the payment of his debts.

The rationale behind this doctrine is obviousconsideration of public policy. The functionsand public services rendered by the Statecannot be allowed to be paralyzed or disruptedby the diversion of public funds from theirlegitimate and specific objects, as appropriatedby law. [De la Victoria v. Burgos, (1995)]

Basis of Right to Compensation

The relation between an officer and the publicis not the creation of contract, nor is the officeitself a contract. Hence, his right tocompensation is not the creation of contract. Itexists as the creation of law and belongs to himnot by force of any contract but because thelaw attaches it to the office.

The right to compensation grows out of theservices rendered. After services have beenrendered, the compensation thus earned cannotbe taken away by a subsequent law.

As a general proposition, a public official is notentitled to any compensation if he has notrendered any service. [Acosta v. CA, (2000)]

III. Other Rights(De Leon, 2008)

1. Rights under the Constitution

a. Right to self-organization

The right to self-organization shall not bedenied to government employees. [Sec. 2(5),Art. IX-B, Constitution]. Government employeesin the civil service are granted the right to formunions enjoyed by workers in the private sector

However, the constitutional grant to

government workers of the right to form labororganizations or unions does not guarantee themthe right to bargain collectively with thegovernment or to engage in concerted activitiesincluding the right to strike, which are enjoyedby private employees. They are prohibited fromstaging strikes, demonstrations, mass leaves,walk-outs and other forms of mass actions whichwill result in temporary stoppage or disruptionof public services

b. Right to protection of temporaryemployees

Employees in the government given temporaryappointments do not enjoy security of tenure. Theyshall be given such protection as may be establishedby law to prevent indiscriminate dismissals and tosee to it that their separation or replacement ismade only for justifiable reasons

c. Freedom of members of Congressfrom arrest and from being

questioned

A Senator or Member of the House ofRepresentatives shall, in all offenses punishable bynot more than six years imprisonment, be privilegedfrom arrest while Congress is in session. No membershall be questioned nor be held liable in any otherplace for any speech or debate in the Congress or inany committee thereof. [Sec. 11, Art. VI,Constitution]

d. Right not to be removed orsuspended except for causeprovided by law

Implicit in the constitutional prohibition againstremoval or suspension except for cause, is theexistence of a charge, due hearing, and the findingof guilt by the proper authority.

2. Rights under the Civil Service Decree andthe New Administrative Code

a. Right to preference in promotionb. Right to present complaints and grievancesc. Right not to be suspended or dismissed except

for cause as provided by law and after dueprocess

d. Right to organize

3. Next-in-Rank Rule

This rule specifically applies only in cases ofpromotion. It neither grants a vested right tothe holder nor imposes a ministerial duty on theappointing authority to promote such person tothe next higher position.

One who is ―next-in-rank‖ to a vacancy is givenpreferential consideration for promotion to avacant position, but it does not necessarilyfollow that he alone and no one else can beappointed.

Reason for the rule: The preference given

assumes that employees working in an office forlonger period have gained not only superiorskills but also greater dedication to the publicservice provided that the acts of the appointingpower are bona fide for the best interest of thepublic service and the person chosen has theneeded qualifications.

4. Personnel Actions




Any action denoting the movement or progressof personnel in the civil service is known aspersonnel action.

It includes:o appointment through certificationo promotiono transfero reinstatemento reemploymento detailo reassignmento demotion ando separation

5. Rights under the Revised GovernmentService Insurance Act

Covered employees are entitled to retirementbenefits, separation benefits, unemployment orinvoluntary separation benefits, disability benefits,survivorship benefits, funeral benefits and lifeinsurance benefits.

6. Right to Reimbursement and Indemnity

When a public officer, in the due performanceof his duties, has been expressly or impliedlyrequired by law to incur expenses on the publicaccount, not covered by his salary orcommission and not attributable to his ownneglect or default, the reasonable and properamount thereof forms a legitimate chargeagainst the public for which he should bereimbursed.

Within the same limits, the officer is entitled tobe indemnified by the public against theconsequences of acts which he has beenexpressly or impliedly required to perform upon

the public account, and which are notmanifestly illegal and which he does not know tobe wrong.

7. Right to Reinstatement and Back Salary

Reinstatement means the restoration to a stateor condition from which one had been removedor separated. One who is reinstated assumes theposition he had occupied prior to the dismissal

Back salary or wages is a form of relief thatrestores the income that was lost by reason ofunlawful dismissal

For a plaintiff to succeed in seekingreinstatement to an office, he must prove his

right to the office. Unless this right is shown,the action must fail even if the appointment ofthe successor is first in issue.

8. Rights to Property, Devices andInventions

Title to a public office carries with it the right,during the incumbency of the officer, to theinsignia and property thereof.

The question whether records, discoveries,inventions, devices, data and the like, made orprepared by an officer while he is occupying the

office, belong to the public, must bedetermined wit reference to the facts of eachcase.o where such are indispensable in the proper

conduct of the office, the officer may nottake them as his own property.

o if, not being required by law, they areprepared by the officer apart from hisofficial duties and are not indispensable inthe proper conduct of the office, the officer

may acquire a property right therein.

H. Liabilities of Public OfficersI. Preventive Suspension and Back SalariesII. Illegal Dismissal, Reinstatement and BackSalaries

The liability of a public officer to an individual orthe public is based upon and is co-extensive with hisduty to the individual or the public. (De Leon, 2008)

Three-fold Responsibility of Public Officers (DeLeon, 2008)A public officer is under a three-fold responsibility

for violation of duty or for wrongful act or omission: Civil Liability: if the individual is damaged by

such violation, the official shall, in some cases,be held liable civilly to reimburse the injuredparty

Criminal Liability: if he law has attached a penalsanction, the officer may be punished criminally

Administrative Liability: such violation may alsolead to imposition of fine, reprimand,suspension or removal from office. Thisadministrative liability is separate and distinctfrom the penal and civil liabilities. (Agpalo,2005)

Civil Liability (Agpalo, 2005) A public officer is not liable for damages which

a person may suffer arising from the justperformance of his official duties and within thescope of his assigned tasks. An officer who actswithin his authority is not liable for damages asit would virtually be a charge against theRepublic, which is not amenable to judgmentfor monetary claims without its consent.

Statutory basis of liability:o Under the Administrative Code:

Sec. 38. Liability of Superior Officers. - (1) A publicofficer shall not be civilly liable for acts done in theperformance of his official duties, unless there is aclear showing of bad faith, malice or grossnegligence.

(2) Any public officer who, without just cause,neglects to perform a duty within a period fixed bylaw or regulation, or within a reasonable period ifnone is fixed, shall be liable for damages to theprivate party concerned without prejudice to suchother liability as may be prescribed by law.

(3) A head of a department or a superior officershall not be civilly liable for the wrongful acts,omissions of duty, negligence, or misfeasance of hissubordinates, unless he has actually authorized bywritten order the specific act or misconductcomplained of.




Sec. 39. Liability of Subordinate Officers. -Nosubordinate officer or employee shall be civilly liablefor acts done by him in good faith in theperformance of his duties. However, he shall beliable for willful or negligent acts done by him whichare contrary to law, morals, public policy and goodcustoms even if he acted under orders or instructionsof his superiors.

o Under Article 27 of the Civil Code:

Art. 27. Any person suffering material or moral lossbecause a public servant or employee refuses orneglects, without just cause, to perform his officialduty may file an action for damages and other reliefagainst he latter, without prejudice to anydisciplinary administrative action that may be taken.

The provision contemplates a refusal or neglectwithout just cause by a public servant or employeeto perform his official duty. Where there is justcause, he may not be held liable.

o Under Article 32 of the Civil Code:

Art. 32. Any public officer or employee, or anyprivate individual, who directly or indirectlyobstructs, defeats, violates or in any mannerimpedes or impairs any of the following rights andliberties of another person shall be liable to thelatter for damages:(1) Freedom of religion;(2) Freedom of speech;(3) Freedom to write for the press or to maintain a

periodical publication;(4) Freedom from arbitrary or illegal detention;(5) Freedom of suffrage;(6) The right against deprivation of property

without due process of law;

(7) The right to a just compensation when privateproperty is taken for public use;(8) The right to the equal protection of the laws;(9) The right to be secure in one's person, house,

papers, and effects against unreasonablesearches and seizures;

(10) The liberty of abode and of changing the same;(11) The privacy of communication and

correspondence;(12) The right to become a member of associations

or societies for purposes not contrary to law;(13) The right to take part in a peaceable assembly

to petition the government for redress ofgrievances;

(14) The right to be free from involuntary servitude

in any form;(15) The right of the accused against excessive bail;(16) The right of the accused to be heard by himself

and counsel, to be informed of the nature andcause of the accusation against him, to have aspeedy and public trial, to meet the witnessesface to face, and to have compulsory process tosecure the attendance of witness in his behalf;

(17) Freedom from being compelled to be a witnessagainst one's self, or from being forced toconfess guilt, or from being induced by apromise of immunity or reward to make such

confession, except when the person confessingbecomes a State witness;

(18) Freedom from excessive fines, or cruel andunusual punishment, unless the same is imposedor inflicted in accordance with a statute whichhas not been judicially declaredunconstitutional; and

(19) Freedom of access to the courts.

In any of the cases referred to in this article,

whether or not the defendant's act or omissionconstitutes a criminal offense, the aggrieved partyhas a right to commence an entirely separate anddistinct civil action for damages, and for otherrelief. Such civil action shall proceed independentlyof any criminal prosecution (if the latter beinstituted), and mat be proved by a preponderanceof evidence.

The indemnity shall include moral damages.Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandablefrom a judge unless his act or omission constitutes a

violation of the Penal Code or other penal statute.

This provision renders a public officercivilly liable for damages for directly orindirectly obstructing, defeating,violating or in any manner impeding orimpairing civil liberties guaranteed bythe Constitution.

Under this provision, it is not necessarythat the public officer acted withmalice or bad faith. To be liable, it isenough that there was a violation ofthe constitutional rights of theaggrieved party, even on the pretext ofjustifiable motives or good faith in the

performance of one‘s duties. Good faith is not a defense

Criminal Liability (De Leon, 2008) The mere fact that an officer is acting in an

official capacity will not relieve him fromcriminal liability.

Crimes peculiar to certain public officers:1. Revised Penal Code2. Anti-Graft and Corrupt Practices Act3. Code of Conduct and Ethical Standards4. Forfeiture of Unexplained Wealth Act5.Civil Service Decree6. Government Auditing Code

7. Local Government Code8. National Internal Revenue Code9. Omnibus Election Code

I. Preventive Suspension and BackSalaries

Kinds of Preventive Suspensiona. preventive suspension pending investigation

The proper disciplining authority maypreventively suspend any subordinateofficer under his authority pending aninvestigation, if the charge against such




officer involves dishonesty, oppression orgrave misconduct or neglect in theperformance of duty or if there are reasonsto believe that the respondent is guilty ofthe charges which would warrant hisremoval from service ( De Leon, 2008)

No compensation is due for the period ofpreventive suspension pending investigationbecause such is not a penalty but only ameans of enabling the disciplining authority

to conduct an unhampered investigation.( De Leon, 2008)

b. preventive suspension pending appeal if thepenalty imposed by the disciplining authority issuspension or dismissal and, after review, therespondent is exonerated [Caniete v. Secretaryof Education, (2000)] Employees are entitled to compensation for

the period of their suspension pendingappeal if they are found innocent. Suchsuspension is actually punitive so that apublic officer should be reinstated with fullpay for the period of the suspension.

II. Illegal Dismissal, Reinstatementand Back Salaries

Reinstatement and back salary or wages areseparate and distinct reliefs given to an illegallydismissed official or employee.

Where an officer was unlawfully removed andwas prevented for a time by no fault of his ownfrom performing the duties of his office, it washeld that he might recover, and that the amountthat he had earned in other employment duringhis unlawful removal should not be deductedfrom his unpaid salary. He may recover the fullamount notwithstanding that during the period

of his removal, the salary has been paid toanother appointed to fill the vacancy unlawfullycreated.

The ―no work, no pay‖ principle does not applywhere it has been sufficiently shown that apublic official was wrongfully prevented fromentering the office and carrying out his duties

If the illegal dismissal is found to have beenmade in bad faith by the superior officers thenthey will be held personally accountable forback salaries of the illegally dismissedemployee.

The award of backwages is limited to amaximum period of 5 years and not to full back

salaries from illegal termination up toreinstatement [David v. Gania, (2003)]

I. Immunity of Public Officers

Doctrine of Official Immunity from Liabilities forPublic Officers Rationale: promotion of fearless, vigorous and

effective administration of policies ofgovernment.

It is generally recognized that public officersand employees would be unduly hampered,

deterred and intimidated in the discharge oftheir duties, if those who act improperly, oreven exceed the authority given them, were notprotected to some reasonable degree by beingrelieved from private liability. The threat of suitcould also deter competent people fromaccepting public office.

Other public policy considerations:o loss of valuable time caused by such actionso unfairness of subjecting officials to personal

liability for the acts of their subordinateso a feeling that the ballot and removal

procedures are more appropriate methodsof dealing with the misconduct in publicoffice.

Official Immunity Distinguished from StateImmunity

The immunity of public officials is a morelimited principle than governmental immunitysince its purpose is not directly to protect thesovereign, but rather to do so only collaterally,by protecting the public official in theperformance of his government function.

The doctrine of sovereign immunity principallyrested upon the tenuous ground that the kingcould do no wrong. It served to protect theimpersonal body politic or government itselffrom tort liability.

Official Immunity serves as a protective aegisfor public officials from tort liability fordamages arising from discretionary acts orfunctions in the performance of their officialduties.

Official Immunity not Absolute A public officer enjoys only qualified, not

absolute immunity. The protection afforded bythe doctrine generally applies only to activities

within the scope of office that are in good faithand are not reckless, malicious or corrupt.

But acts of a public officer are protected by thepresumption of good faith. Even mistakesconcededly committed by such a public officerin the discharge of his official duties are notactionable as long as it is not shown that theywere motivated by malice or gross negligenceamounting to bad faith.

A public officer may be sued as such to compelhim to do an act required by law

J. De Facto OfficersI. De Facto DoctrineII. De Facto Officer DefinedIII. Elements of a De Facto OfficershipIV. Office created under an unconstitutionalstatuteV. Legal Effect of Acts of De Facto OfficersVI. Liability of De Facto OfficersVII. Right to Compensation of De Facto Officer

I. De Facto Doctrine




It is the doctrine that a person who is admittedand sworn into office by the proper authority isdeemed to be rightfully in such 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 public cannotafford to check the validity of the officer's titleeach time they transact with him.

II. De Facto Officer Defined

One who has the reputation of being theofficer that he assumes to be, and yet is not a good officer in point of law . [Torres v. Ribo(1948)]

He must have:o acted as an officer for such length of time,o under color of title and under such

circumstances of reputation oracquiescence by the public and publicauthorities,

o as to afford a presumption of election orappointment, and

o induce people, without inquiry, and relying onthe supposition that he is the officer heassumes to be, to submit to or invoke hisaction.

A person is a de facto officer when the duties ofhis office are exercised under ANY of thefollowing circumstances:1. There is no known appointment or election,

but people are induced by circumstances ofreputation or acquiescence to suppose thathe is the officer he assumes to be.Consequently, people do not to inquire

into his authority, and they submit to himor invoke his action;2. He possessed public office under color of a

known and valid appointment or election,but he failed to conform to some precedentrequirement or condition (e.g., taking anoath or giving a bond);

3. He possessed public office under color of aknown election or appointment, but such isVOID because:o He‘s ineligible; o The electing or appointing body is not

empowered to do such;o His exercise of his function was

defective or irregular;o (Important) The public does NOT KNOW

of such ineligibility, want of power, ordefect being.

He possessed public office under color of anelection or an appointment by or pursuant to apublic, unconstitutional law, before the sameis adjudged to be such.o What is unconstitutional is the officer’s

appointment to an office not legally existing, (not creation of anunconstitutional office). [Norton v. Countyof Shelby (1886)]

a. Officer De Jure v. Officer De Facto (Askedin 2000, 2004)

De Jure De FactoRequisites A de jure office

exists;

He is legallyqualified for theoffice;

He is lawfullychosen to suchoffice;

He undertakes toperform theduties of suchoffice accordingto law‘sprescribed mode.

De jure office;

He assumedoffice under colorof right orgeneralacquiescence bythe public;

He actually andphysicallypossessed theoffice in goodfaith.

Basis of Authority

Right:He has the lawful

right / title tothe office

Reputation: Hepossesses office

and performs itsduties undercolor of right, buthe is nottechnicallyqualified to act inall points of law

Howousted

Cannot beousted.

In a directproceeding (quowarranto);(collaterally)

Validity of officialacts

Valid, subject toexceptions (e.g.,acting beyond hisscope of

authority, etc.)

Valid as to thepublic until histitle to the officeis adjudged

insufficient. Rule onCompen-sation

Rightfullyentitled tocompensation;

The principle "Nowork, no pay" isinapplicable tohim.

Conditionallyentitled toreceivecompensation:only when no dejure officer isdeclared;

He is paid onlyfor actualservicesrendered.

b. Officer De Facto v. Intruder

De Facto Intruder Nature He becomes

officer under anyof the 4circumstancesdiscussed underPart II (above).

He possessesoffice andperforms officialacts withoutactual orapparentauthority.

Basis of authority

Color of right ortitle to office

None. Neitherlawful title norcolor of right to




De Facto Intruder office.

Validity of "official"acts

Valid as to thepublic until histitle to the officeis adjudgedinsufficient

Absolutely void;His acts can beimpeached at anytime in anyproceeding(unless and untilhe continues toact for a longtime, creating apresumption ofhis right to act)(De Leon, 119)

Rule oncompen-sation

Entitled toreceivecompensationonly when no dejure officer isdeclared and onlyfor actualservicesrendered.

Not entitled tocompensation atall.

An intruder / usurper may be presumed a de factoofficer with the passage of time, when the publicpresumes in their minds IN GOOD FAITH that theintruder is rightfully acting as a public officer.

III. Elements of a De Facto Officershipi. 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

election but the officer failed toconform to a legal requirement

c. Known appointment or election butvoid because of ineligibility of theofficer, or want of authority of theappointing or electing authority, orbecause of an irregularity in hisappointment or election, suchineligibility, want of authority orirregularity being unknown to thepublic

d. Known appointment or electionpursuant to an unconstitutional lawbefore declaration ofunconstitutionality

Who are NOT considered De Facto Officers?

A judge who has accepted an appointment asfinance secretary and yet renders a decisionafter his acceptance: if he has ceased to bejudge by actually accepting and entering intosome other office and has actually entered uponthe performance of the duties of the otheroffice, it is difficult to understand how he canstill be considered as actually occupying andperforming the duties of the office which he hadabandoned and vacated. An abandonment anda vacation of an office is inconsistent andrepugnant to the idea of actually continuing

to perform the duties of such office; [Luna v.Rodriguez (1917)]

A judge whose position has already beenlawfully abolished, and yet promulgates adecision in a criminal case after the abolitionand over the fiscal‘s objection [People v. So(1995)]

IV. Office created under an

unconstitutional statute

The prevalent view is that a person appointed orelected in accordance with a law later declared tobe unconstitutional may be considered de facto atleast before the declaration of unconstitutionality.

V. Legal Effect of Acts of De FactoOfficers[Monroy v. CA (1967)]

As regards the officers themselves: A party suingor defending in his own right as a public officer

must show that he is an officer de jure. It is notsufficient that he be merely a de facto officer.

As regards the public and third persons: The actsof a de facto officer are valid as to thirdpersons and the public until his title to officeis adjudged insufficient.o RATIONALE: The doctrine is intended not for

the protection of the public officer, but forthe protection of the public and individualswho get involved in the official acts ofpersons discharging the duties of a publicoffice.

De Facto Officer‘s Official Acts are not subjectto collateral attacko 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).

o REMEDY: Quo warranto proceedings filed by: The person claiming entitlement to the

office; The Republic of the Philippines

(represented by the Solicitor-Generalor a public prosecutor).

VI. Liabilities of De Facto Officers(De Leon, 130-131)

A de facto officer generally has the same degreeof liability in accountability for official acts likea de jure officer.

The de facto officer may be liable for allimposable penalties for ANY of the followingacts:o usurping or unlawfully holding office;o exercising the functions of public office

without lawful right;o ineligibility for the public office as required

by law




The de facto officer cannot excuse responsibilityfor crimes committed in his official capacity byasserting his de facto status.

VII. Right to Compensation of DeFacto Officer

GENERAL RULE None. A de facto officer cannot sue for the recovery

of salary, fees or other emoluments attached to theoffice, for the duties he has performed. His acts, asfar as he himself is concerned, are void. (63A Am.Jur. 2d 1094-1095)

The rightful incumbent may recover from the de facto officer the salary received by the latter duringhis wrongful tenure, even though he entered into theoffice in good faith and under color of title.[ Monroyv CA (1967)

EXCEPTIONS Where there is no de jure public officer, the

officer de facto who in good faith has had

possession of the office and has discharged theduties pertaining thereto is legally entitled tothe emoluments of the office. [Monroy v. CA[1967])

In Civil Liberties Union v. Executive Secretary (1991), even as EO No. 284 was declaredunconstitutional because it allowed Cabinetmembers to hold multiple offices in directcontravention of the Constitution, it was heldthat during their tenure in the questionedpositions, the respondents may be considered de facto officers and as such entitled to theemoluments of the office/s for actual servicerendered.

A de facto officer, not having good title, takes

the salaries at his risk and must account to thede jure officer (when there is one) for whateversalary he received during the period of hiswrongful tenure, even if he occupied the officein good faith. o BUT when the de jure officer assumed

another position under protest, for whichshe received compensation: while her assumption to the said position and her acceptance of the correspondingemoluments do not constituteabandonment of her rightful office, shecannot recover full back wages for such.She is only entitled to back pay differentials between the salary rates forthe lower position she assumed and theposition she is rightfully entitled to. [Gen.Manager, Philippine Ports Authority v.Monserate (2002)]

K. Termination of Official RelationI. Expiration of the term or tenure of officeII. Reaching the age limit (retirement)III. Death or permanent disabilityIV. ResignationV. Acceptance of an incompatible office

VI. Abandonment of officeVII. Prescription of right to officeVIII. RemovalIX. ImpeachementX. Abolition of officeXI. Conviction of a crimeXII. Recall

I. Expiration of the term or tenure of

office

Upon the expiration of the officer‘s term, unlesshe is authorized by law to hold over, his rights,duties and authority as a public officer mustipso facto cease

Term of office means the time during which theofficer may claim to hold the office as of rightand fixes the interval after which the severalincumbents shall succeed one another. It is afixed and definite period of time to hold office,perform its functions and enjoy its privilegesand emoluments until the expiration of saidperiod

Tenure of office represents the period duringwhich the incumbent actually holds office.

II. Reaching the age limit (retirement)

This mode results in the compulsory and automaticretirement of a public officer

III. Death or permanent disability

The death of the incumbent of an office, whichis by law to be filled by one person only,necessarily renders the office vacant. The publicofficial cease to hold office upon his death andall his rights, duties and obligations pertinent tothe office are extinguished

Permanent disability covers both physical ormental disability.

IV. Resignation

Resignation is the formal renunciation orrelinquishment of a public office. It implies anexpression by the incumbent in some form,express or implied, of the intention tosurrender, renounce and relinquish his right tothe office and its acceptance by competent and

lawful authority. To constitute resignation of public office, theremust be an intention to relinquish a part of theterm, accompanied by the act ofrelinquishment.

A written resignation, delivered to the board orofficer authorized to receive it and fill thevacancy thereby created, is prima facie, but notconclusive evidence of the intention torelinquish the office.

Acceptance by the proper authority is necessaryfor a resignation to be operative and effective.




V. Acceptance of an incompatibleoffice

It is contrary to the policy of the law that thesame individual should undertake to performinconsistent and incompatible duties.

One who, while occupying one office, acceptsanother incompatible with the first, ipso facto,absolutely vacates the first office.

When Incompatibleo Incompatibility is to be found in the character

of the offices and their relation to eachother, in the subordination of one to theother and in the nature of the functions andduties which attach to them

o It exists where: There is conflict in such duties and

functions, so that the performance ofthe duties of one interferes with theperformance of the duties of the otheras to render it improper fromconsideration of public policy for oneperson to retain both

One is subordinate to te other and issubject in some degree to its

supervisory power for obviously in sucha situation, the design that one acts asa check on the other would befrustrated

The Constitution of the law itselfdeclares the incompatibility eventhough there is no inconsistency in thenature and functions of the offices

.

VI. Abandonment of office

Abandonment means the voluntary relinquishment of

an office by the holder of all right, title, or claimthereto with the intention of not reclaiming it orterminating his possession and control thereof.

VII. Prescription of right to office

Under the Rules of Court, quo warranto is theproper remedy against a public officer for isouster from office which should be commencedwithin one year after the cause of such ouster orthe right of the plaintiff to hold such office orposition arose; otherwise, the action will bebarred

Rationale for the one year period: Title to

public office should not be subjected touncertainties but should be determined asspeedily as possible.

VIII. Removal

Removal entails the ouster of an incumbentbefore the expiration of his term. It implies thatthe office exists after the ouster.

Removal from office may be express or implied.

IX. Impeachment

Impeachment has been defined as a method ofnational inquest into the conduct of public men.

Its purpose is to protect the people from officialdelinquencies or malfeasances. It is primarilyintended for the protection of the State, not forthe punishment of the offender.

The President, the Vice-President, the Members

of the Supreme Court, the Members of theConstitutional Commissions, and theOmbudsman may be removed from office onimpeachment for, and conviction of, culpableviolation of the Constitution, treason, bribery,graft and corruption, other high crimes, orbetrayal of public trust. All other public officersand employees may be removed from office asprovided by law, but not by impeachment. (Sec.2, Art. XI, Constitution)

The House of Representatives has the solepower to initiate all cases of impeachment whilethe Senate sits as a court for the trial ofimpeachment cases. Judgment in cases ofimpeachment shall not extend further thanremoval from office and disqualification to holdany office under the Republic of the Philippines,but the party convicted shall nevertheless beliable and subject to prosecution, trial, andpunishment, according to law. (Sec. 3, Art. XI,Constitution)

X. Abolition of office

To consider an office abolished, there must havebeen an intention to do away with it wholly andpermanently.

As a general rule, Congress may abolish anyoffice it creates without infringing upon therights of the officer or employee affected. Suchpower may be exercised at any time and evenwhile the office is occupied by a duly elected orappointed incumbent. Absent any constitutionalprohibition, an office created by Congress maybe abolished by it during the term of theincumbent.

The fundamental principle afforded to civilservice employees against removal ―except forcause as provided by law‖ does not protectthem against abolition of the positions held bythem in the absence of any other provisionexpressly or impliedly prohibiting abolitionthereof. [Castillo v. Pajo, (1958)]

XI. Conviction of a crime

When the penalties of perpetual or temporaryabsolute disqualification or penalties ofperpetual or temporary special disqualificationare imposed upon conviction of a crime,termination of official relation results, for oneof te effects of the imposition of said penaltiesis the deprivation of the public office which theoffender may have held.




Conviction means conviction in a trial court. Itcontemplates a court finding guilt beyondreasonable doubt followed by a judgmentupholding and implementing such finding.

XII. Recall

Through recall, an elective official may be removedat any time during his term by the vote of the

people at an election called for such purpose or at ageneral election.

L. The Civil ServiceI. ScopeII. Appointments to the Civil ServiceIII. Personnel Actions

I. Scope

Civil Service Commission’s (CSC’s) Jurisdiction

Exclusive Jurisdiction

o Disciplinary caseso Cases involving ―personnel action‖ affecting

the Civil Service employees Appointment through certification Promotion Transfer Reinstatement Reemployment Detail, reassignment Demotion Separation

o Employment statuso Qualification standards

Recall of appointment o Includes the authority to recall an

appointment which has been initiallyapproved when it is shown that the samewas issued in disregard of pertinent CSClaws, rules and regulations.

o as opposed to Recall under Sec 69-75 of theLocal Government Code: Recall is a mode of removal of a public

official by the people before the end ofhis term of office. [Garcia v. COMELEC,(1993)]

Review Appointee’s Qualifications.The only function of the CSC is to review the

appointment in the light of the requirements of theCivil Service Law, and when it finds the appointee tobe qualified and all other legal requirements havebeen otherwise satisfied, it has no choice but toattest to the appointment. [Lapinid v. CSC (1991)]

What it cannot do. o It cannot order the replacement of the

appointee simply because it considersanother employee to be better qualified.[Lapinid v. CSC (1991)]

o The CSC cannot co-manage or be a surrogateadministrator of government offices andagencies.

o It cannot change the nature of theappointment extended by the appointingofficer. [ Luego v. CSC (1986)]

II. Appointments to the Civil Service

SCOPEEmbraces all branches, subdivisions,instrumentalities and agencies of the Government,including GOCCs with original charters (Art. IX-BSec. 2(1), Constitution)

Classes of Service1. Career Service – Entrance based on merit and

fitness determined by competitiveexaminations, or based on highly technicalqualifications, opportunity for advancement tohigher career positions and security of tenure.

2. Non-career Service – Entrance on bases otherthan those of the usual tests. Tenure limited toa period specified by law or which is

coterminous with the appointing authority orthe duration of a particular project. (i.e.elective officials, Department Heads andMembers of Cabinet)

Requisites: Appoint only according to merit and fitness, to

be determined as far as practicable. Require a competitive examination.

o Exceptions: (Positions where Appointees areexempt from Competitive ExaminationRequirements) Policy determining - in which the

officer lays down principal or

fundamental guidelines or rules; orformulates a method of action forgovernment or any of its subsidiaries

Primarily Confidential – denoting notonly confidence in the aptitude of theappointee for the duties of the officebut primarily close intimacy whichensures freedom of intercourse withoutembarrassment or freedom frommisgivings or betrayals on confidentialmatters of the state (―ProximityRule‖ as enunciated in De los Santos v Mallare [1950])

Highly Technical – requires possessionof technical skill or training in a

superior degree. (i.e. City LegalOfficer)

NOTE: It is the nature of the position whichdetermines whether a position is policy determining,primarily confidential or highly technical

III. Personnel Actions

Other Personnel Actions Promotion is a movement from one position to

another with increase in duties and




responsibilities as authorized by law and isusually accompanied by an increase in pay. o Next-in-rank Rule.

The person next in rank shall be givenPREFERENCE in promotion when theposition immediately above his isvacated.

BUT the appointing authority stillexercises discretion and is not bound bythis rule, although he is required to

specify the ―special reason or reasons‖for not appointing the officer next-in-rank.

o Automatic Reversion Rule. All appointments involved in a chain of

promotions must be submittedsimultaneously for approval by theCommission.

The disapproval of the appointment ofa person proposed to a higher positioninvalidates the promotion of those inthe lower positions and automaticallyrestores them to their former positions.

However, the affected persons are

entitled to payment of salaries forservices actually rendered at a ratefixed in their promotionalappointments. (Sec. 13 of theOmnibus Rules ImplementingAdministrative Code)

Requisites:1. series of promotions2. all promotional appointments are

simultaneously submitted to theCommission for approval

3. the Commission disapproves theappointment of a person to ahigher position.

Appointment through Certification is issued to aperson who is: o selected from a list of qualified persons

certified by the Civil Service Commissionfrom an appropriate register of eligibles

o qualified

Transfer is a movement from one position toanother which is of equivalent rank, level orsalary without break in service.o This may be imposed as an administrative

remedy. o If UNconsented = violates security of tenure.o EXCEPTIONS:

Temporary Appointee Career Executive Service Personnel

whose status and salaries are based onranks (≠ positions)

Reinstatement. It is technically the issuance ofa new appointment and is discretionary on thepart of the appointing power. o It cannot be the subject of an application for

a writ of mandamus.o Who may be reinstated to a position in the

same level for which he is qualified: Any permanent appointee of a career

service position

No commission of delinquency ormisconduct, and is not separated.

o Same effect as Executive Clemency, whichcompletely obliterates the adverse effectsof the administrative decision which foundhim guilty of dishonesty. He is restored ipso facto upon grant of such. Application forreinstatement = unnecessary.

Detail is the movement of an employee from

one agency to another without the issuance ofan appointment. o Only for a limited period.o Only for employees occupying professional,

technical and scientific positions.o Temporary in nature.

Reassignment. An employee may be reassignedfrom one organizational unit to another in theSAME agency. o It is a management prerogative of the CSC

and any dept or agency embraced in theCivil Service.

o It does not constitute removal without cause.o

Requirements: NO reduction in rank, status or salary. Should have a definite date or duration

(c.f. Detail). Otherwise, a floatingassignment = a diminution in status orrank.

Reemployment. Names of persons who havebeen appointed permanently to positions in thecareer service and who have been separated asa result of reduction in force and/orreorganization, shall be entered in a list fromwhich selection for reemployment shall bemade.

M. Accountability of Public OfficersI. ImpeachmentII. OmbudsmanIII. SandiganbayanIV. Ill-Gotten Wealth

I. Impeachment

Impeachment has been defined as ―a criminalproceeding against a public officer, before aquasi-judicial political court, instituted bywritten accusation called ‗articles of impeachment.‘‖ (Agpalo, 2005)

Its purpose is to protect the people from officialdelinquencies or malfeasances. It is primarilyintended for the protection of the State, not forthe punishment of the offender. The penaltiesattached to impeachment are merely incidentalto the primary intention of protecting thepeople as a body politic. (De Leon, 2008)

Grounds (Sec. 2, Art. XI, Constitution)1. culpable violation of the Constitution2. treason3. bribery4. graft and corruption




5. other high crimes6. betrayal of public trust

The acts which are impeachable grounds mustbe committed in the performance of theofficial‘s public office. (Agpalo, 2005)

No impeachment proceedings shall be initiatedagainst the same official more than once withina period of one year. (Sec. 3, Art. XI,Constitution)o ―Having concluded that the initiation takes

place by the act of filing of theimpeachment complaint and referral to theHouse Committee on Justice, the initialaction taken thereon, the meaning ofSection 3 (5) of Article XI becomes clear.Once an impeachment complaint has beeninitiated in the foregoing manner, anothermay not be filed against the same officialwithin a one year period following ArticleXI, Section 3(5) of the Constitution.‖[Francisco, Jr. v. House of Representatives, (2003)]

II. Ombudsman(Agpalo, 2005)

Disciplinary Power Over Public Officers The Office of the Ombudsman has disciplinary

authority over all elective and appointiveofficials of the government and its subdivisions,instrumentalities and agencies, includingMembers of the Cabinet, local government,government-owned or controlled corporationsand their subsidiaries. (Sec. 21, RA 6770)

The disciplinary power of the Ombudsman is notexclusive but is shared with other disciplinaryauthorities of the government.

The disciplinary power of the Ombudsman overelective officials is concurrent with the powervested in the officials specified in the LocalGovernment Code of 1991. [Hagad v. Dozo-Dadole, (1995)]

Exceptions to Ombudsman’s Disciplinary Power The Ombudsman has no disciplinary power over

the following (Sec. 21, RA 6770):1. Officials who may be removed only by

impeachment2. Members of Congress3. Members of the Judiciary

However, the Office of the Ombudsman has the

power to investigate any serious misconduct inoffice committed by officials removable byimpeachment, for the purpose of filing averified complaint for impeachment, ifwarranted. (Sec. 22, RA 6770)

Power to Preventively Suspend The Ombudsman or his Deputy may preventively

suspend any officer or employee under hisauthority pending an investigation, if in hisjudgment the evidence of guilt is strong, and(a) the charge against such officer or employee

involves dishonesty, oppression or grave

misconduct or neglect in the performanceof duty;

(b) the charges would warrant removal fromthe service; or

(c) the respondent's continued stay in officemay prejudice the case filed against him.(Sec. 24, RA 6770)

The preventive suspension shall continue untilthe case is terminated by the Office of theOmbudsman but not more than six (6) months,

without pay, except when the delay in thedisposition of the case by the Office of theOmbudsman is due to the fault, negligence orpetition of the respondent, in which case theperiod of such delay shall not be counted incomputing the period of suspension hereinprovided. (Sec. 24, RA 6770)

Prior notice and hearing is not required beforesuspension may be meted out. Suspension is nota punishment or penalty but only a preventivemeasure to prevent the respondent from usinghis position or office to influence or intimidateprospective witnesses or tamper with therecords which may be vital in the prosecution of

the case against them.

(1) Judicial Review in AdministrativeProceedings

Decisions or resolutions of the Ombudsman inadministrative cases absolving the respondent ofthe charge or imposing upon him the penalty ofpublic censure or reprimand, suspension of notmore than one month, or a fine equivalent toone month salary, is final and unappealable.(Agpalo, 2005)

Appeals from decisions of the Office of theOmbudsman in administrative disciplinary casesshould be taken to the Court of Appeals underthe provisions of Rule 43. [Fabian v.Ombudsman, (1998)]

(2) Judicial Review in PenalProceedings

In all other cases, the decision shall become finalafter the expiration of 10 days from receipt thereofby the respondent, unless a motion forreconsideration or a petition for review is file withthe CA pursuant to Rule 43 of the Rules of Court.(Agpalo, 2005)

III. SandiganbayanExclusive Original Jurisdiction over(a) violations of R.A. No. 3019 and No. 1379(b) crimes committed by public officers and

employees embraced in Title VIII of the RevisedPenal Code

(c) other offenses or felonies (whether simple orcomplexed with other crimes) committed bypublic officers and employees in relationto their office, where the penalty prescribed bylaw is higher than prision correccional or




imprisonment for six (6) years, or a fine ofP6,000; and

(d) Civil and criminal cases filed pursuant to and inconnection with Executive Orders No. 1,2, 14,and 14-a issued in 1986

In the absence of any allegation that the offensecharged was necessarily connected with thedischarge of the duties or functions of a publicofficer, the ordinary court, not the

Sandiganbayan, has jurisdiction to hear anddecide the case.

What is controlling is not whether the phrase"committed in relation to public office" appearsin the Information. What determines thejurisdiction of the Sandiganbayan is the specificfactual allegation in the Information that wouldindicate close intimacy between the dischargeof the accused's official duties and thecommission of the offense charged in order toqualify the crime is having been committed inrelation to public office. The relation betweenthe crime and the office must be direct and notaccidental, that is, the relation has to be such

that, in the legal sense, the offense cannot existwithout the office.

Officials and private individuals subject to its jurisdiction

Under Section 4(a, b) of PD No. 1606, asamended, the Sandiganbayan shall exerciseexclusive original jurisdiction over the casesmentioned in (a), (b), and (c) above where oneor more of the accused are officialsoccupying the following positions in thegovernment, whether in a permanent, acting orinterim capacity at the time of the commissionof the offense:

(a) Officials of the executive branch occupyingthe positions of regional director andhigher, otherwise classified as Grade '27'and higher, of the Compensation andPosition Classification Act of 1989 (R.A. No.6758), specifically including:1) Provincial governors, vice-governors,

members of the sangguniangpanlalawigan, and provincialtreasurers, assessors, engineers, andother provincial department heads;

2) City mayors, vice-mayors, members ofthe sangguniang panlungsod, citytreasurers, assessors, engineers, andother city department heads;

3) Officials of the diplomatic serviceoccupying the position of consuland higher;

4) Philippine army and air force colonels,naval captains, and all officers ofhigher rank;

5) Officers of the Philippine NationalPolice while occupying the position ofprovincial director and those holdingthe rank of senior superintendent orhigher;

6) City and provincial prosecutors andtheir assistants, and officials and

prosecutors in the Office of theOmbudsman and special prosecutor;

b) Presidents, directors or trustees, or managersof government-owned or controlledcorporations, state universities oreducational institutions or foundations;

(c) Members of Congress and officials thereofclassified as Grade "27" and up under theCompensation and Position ClassificationAct of 1989;

(d) Members of the judiciary without prejudiceto the provisions of the Constitution;

(e) Chairmen and members of ConstitutionalCommissions, without prejudice to theprovisions of the Constitution; and

(f) All other national and local officialsclassified as Grade "27" and higherunder the Compensation and PositionClassificafion Act of 1989.

In case private individuals are charged as co-principals, accomplices or accessories with thepublic officers or employees, including thoseemployed in government-owned or -controlledcorporations, they shall be tried jointly with

said public officers and employees in the propercourts which shall exercise exclusive jurisdictionover them.

Exclusive Appellate JurisdictionThe Sandiganbayan shall exercise exclusive appellatejurisdiction over final judgments, resolutions ororders of regional trial courts whether in theexercise of their own original jurisdiction or of theirappellate jurisdiction.

IV. Ill-Gotten Wealth

Ill-gotten wealth means any asset, property,

business enterprise or material possession of anyperson acquired by himself directly or indirectlythrough dummies, nominees, agents,subordinates and/or business associates by anycombination or series of the following means orsimilar schemes:(1) through misappropriation, conversion,

misuse, or malversation of public funds orraids on the public treasury;

(2) by receiving, directly or indirectly, anycommission, gift, share, percentage,kickbacks or any other form of pecuniarybenefit from any person and/or entity inconnection with any government contractor project or by reason of the office or

position of the public officer concerned;(3) by the illegal or fraudulent conveyance or

disposition of assets belonging to theNational Government or any of itssubdivisions, agencies or instrumentalitiesor government-owned or controlledcorporations and their subsidiaries,

(4) by obtaining, receiving or accepting directlyor indirectly any shares of stock, equity orany other form of interest or participationincluding the promise of future employmentin any business enterprise or undertaking;




(5) by establishing agricultural, industrial orcommercial monopolies or othercombinations and/or implementation ofdecrees and orders intended to benefitparticular persons or special interests, or

(6) by taking undue advantage of officialposition, authority, relationship, connectionor influence to unjustly enrich himself orthemselves at the expense and to thedamage and prejudice of the Filipino people

and the Republic of the Philippines. (Sec. 1,RA 7080)

Section 2 of Republic Act No. 7080 punishes thecrime of plunder. It provides that any publicofficer who, by himself or in connivance withmembers of his family, relatives by affinity orconsanguinity, business associates, subordinatesor other person, amasses, accumulates oracquires ill-gotten wealth through acombination or series of overt or criminal acts inthe aggregate amount or total value of at leastseventy-five million pesos (P75,000,000.00),shall be guilty of plunder and shall be punishedby life imprisonment with perpetual absolute

disqualification from holding any public office.Any person who participated with the saidofficer in the commission of plunder shalllikewise be punished. The court shall declareany and all ill-gotten wealth and their interestsand other incomes and assets including theproperties and shares of stocks derived from thedeposit or investment thereof forfeited in favorof the State. (Agpalo, 2005)

N. Term Limits

All elective local officials, except barangay

officials (Sec. 8, Art. X, Constitution; Sec. 43 LGC) Term of office: 3 years from noon of June 30,1992 or the date provided by law

All local officials first elected during the localelections immediately following the ratification ofthe 1987 Constitution shall serve until noon of June30, 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 interruption in thecontinuity of his service for the full term forwhich he was elected

RA 9164: Synchronized Barangay and SangguniangKabataan 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 o Reckoned from the 1994 barangay elections o Voluntary renunciation of office for any length

of time shall not be considered as aninterruption




LAWBAR OPERATIONS COMMISSION 2012




COMMITTEE HEADS











OPERATIONS HEADS





Administrative Law





Meneses • Jenin Velasquez • Mara Villegas • Naomi QuimpoLeslie Octaviano • Yas RefranCris BernardinoLayout Head| Graciello TimothReyes



ADMINISTRATIVE LAW POLITICAL LAW REVIEWER

Administrative LawPOLITICAL LAW





A. General PrinciplesB. Administrative AgenciesC. Powers of Administrative AgenciesD. Judicial Recourse and Review

A. General Principles

I. Definitions

Administrative Law is that branch of modern lawunder which the executive department of thegovernment, acting in a quasi-legislative or quasi-judicial capacity, interferes with the conduct of theindividual for the purpose of promoting the well-

being of the community (DEAN ROSCOE POUND)

Administrative Agencies are the organs ofgovernment, other than a court and other than thelegislature, which affect the rights of private partieseither through adjudication or through rule-making.

II. Historical Considerations

Why did administrative agencies come about?(1) Growing complexities of modern life(2) Multiplication of number of subjects needing

government regulation; and(3) Increased difficulty of administering laws

[Pangasinan Transportation vs Public ServiceCommission (1940)]

Why are administrative agencies needed? Because the government lacks:

(1) Time(2) Expertise and(3) Organizational aptitude for effective and

continuing regulation of new developments insociety (STONE)

B. Administrative AgenciesI. Modes of Creation of Administrative AgenciesII. When is an agency administrative?

III. Type of Administrative Agencies

I. Modes of Creation of AdministrativeAgencies

1) 1987 Constitution(E.g. CSC, COMELEC, COA, CHR, Commission onAppointments, Judicial and Bar Council and NEDA)

2) Legislative Enactments(E.g. NLRC, SEC, PRC, Social Security Commission,Commission on Immigration and Deportation,

Philippine Patent Office, Games and Amusement Board, Board of Energy, and Insurance Commission)

3) Executive Orders/ Authorities of law(E.g. Fact-finding Agencies)

II. When is an agency administrative?

Where its function is primarily regulatory EVEN IF it

conducts hearings and determines controversies tocarry out its regulatory duty.

On its rule-making authority, it is administrativewhen it does not have discretion to determine whatthe law shall be but merely prescribes details for theenforcement of the law.

III. Types of Administrative Agencies

(1) Government grant or gratuity, special privilege(e.g. Bureau of Lands, Phil. Veterans Admin.,GSIS, SSS, PAO);

(2) Carrying out the actual business of government(e.g. BIR, Customs, Immigration, LandRegistration Authority);

(3) Service for public benefit (e.g. Philpost, PNR,MWSS, NFA, NHA);

(4) Regulation of businesses affected with publicinterest (e.g. Insurance Commission, LTFRB,NTC, HLURB);

(5) Regulation of private businesses and individuals(e.g. SEC);

(6) Adjustment of individual controversies because

of a strong social policy involved (e.g. ECC,NLRC, SEC, DAR, COA).

C. Powers of AdministrativeAgenciesI. Quasi-Legislative (Rule-Making) PowerII. Quasi-Judicial (Adjudicatory) PowerIII. Fact-Finding, Investigative, Licensing andRate-Fixing Powers

The powers of administrative agencies are:(1) Quasi-legislative (Rule-making)(2) Quasi-judicial (Adjudicatory) and

(3) Determinative powers

I. Quasi-Legislative (Rule Making)Power(Asked 5 times in the Bar)

DefinitionThe authority delegated by the law-making body tothe administrative agency to adopt rules andregulations intended to carry out the provisions of alaw and implement a legislative policy.

Non-delegation doctrine




Potestas delegata non delegare potest. What hasbeen delegated cannot be delegated.

Legislative Delegation

Requisites for a valid delegation(1) The law must be complete in itself and must set

forth the policy to be executed(2) The law must fix a standard, the limits of which

are sufficiently determinate or determinable,

to which the delegate must conform

What is a sufficient standard:(1) Defines legislative policy , marks its limits, maps

out its boundaries and specifies the publicagency to apply it; and

(2) Indicates the circumstances under which thelegislative command is to be effected.[Santiago v COMELEC (1997); ABAKADA GuroList vs Ermita (2005)]

Forms of the sufficient standard:(1) Express(2) Implied [Edu vs Ericta (1970)]

(3) Embodied in other statutes on the same matterand not necessarily in the same law beingchallenged. [Chiongbian vs Orbos (1995)]

(1) Kinds of Administrative Rules and Regulations

a. Supplementary legislation Pertains to rules and regulations to fix details in theexecution of a policy in the law. e.g. IRRs of theLabor Code.

b. Interpretative legislation Pertains to rules and regulations construing orinterpreting the provisions of a statute to be

enforced and they are binding on all concerned untilthey are changed, i.e. BIR Circulars.

GENERAL DISTINCTIONS FROM LEGISLATIVE RULESLegislative Rules Interpretative Rules

Promulgated pursuantto its quasi-legislative/ rule-makingfunctions.

Passed pursuant to itsquasi-judicial capacity.

Create a new law, anew policy, with theforce and effect oflaw.

Merely clarify the meaningof a pre-existing law byinferring its implications.

Need publication. Need not be published.

So long as the courtfinds that thelegislative rules arewithin the power ofthe administrativeagency to pass, as seenin the primary law,then the rules bind thecourt. The courtcannot question thewisdom or correctnessof the policy containedin the rules.

The court may review theircorrectness of theinterpretation of the lawgiven by theadministrative body, andsubstitute its own view ofwhat is correct to theadministrative body. If itis not within the scope ofthe administrative agency,court can only invalidatethe same but notsubstitute its decision or

Legislative Rules Interpretative Rulesinterpretation or give itsown set of rules.

Due process involveswhether the partieswere afforded theopportunity to benotified and heardbefore the issuance ofthe ruling.

Due process means thatthe body observed theproper procedure inpassing rules.

Restrictions on interpretative regulations: (a)does not change the character of a ministerialduty, (b) does not involve unlawful use oflegislative or judicial power.

Administrative interpretations: may eliminateconstruction and uncertainty in doubtful cases.When laws are susceptible of two or moreinterpretations, the administrative agencyshould make known its official position.

Administrative construction/ interpretation notcontrolling as to the proper construction of a

statute, but generally it is given great weight,has a very persuasive influence and may actuallybe regarded by the courts as the controllingfactor.

Administrative interpretation is merely advisory;Courts finally determine what the law means.

c. Contingent legislation Pertains to rules and regulations made by anadministrative authority on the existence of certainfacts or things upon which the enforcement of thelaw depends.

(2) Requisites for Validity

Requisites of a valid administrative rule (WRAP) (1) Within the scope or authority of law(2) Authorized by law(3) R easonableness(4) Promulgated in accordance with prescribed

Procedure

Publication Rules(1) Administrative rules and regulations are subject

to the publication and effectivity rules of theAdmin Code in relation to the Civil Code.

(2) EO 200 requires publication of laws in theOfficial Gazette or in a newspaper of general

circulation. Publication is indispensable,especially if the rule is general.

EXCEPTIONS:(a) Interpretative rules(b) Internal regulations (i.e. regulating

personnel)(c) Letters of instructions issued by

administrative superior tosubordinates

(3) Effectivity: 15 days after publication, not 15days from date of filing with the UP LawCenter.




EXCEPTIONS:(a) Different date is fixed by law or

specified in the rule.(b) In case of imminent danger to public

health, safety and welfare.

Penal Rules

Sec. 6, 1987 Administrative Code. Omission ofSome Rules. – (2) Every rule establishing an offenseor defining an act which, pursuant to law ispunishable as a crime or subject to a penalty shall inall cases be published in full text.

(1) The law itself must declare the act aspunishable and must also define or fix thepenalty for the violation.

(2) Can administrative bodies make penal rules? NO.Penal statutes are exclusive to the legislatureand cannot be delegated. Administrative rulesand regulations must not include, prohibit orpunish acts which the law does not even defineas a criminal act. [People vs Maceren (1977)]

(3) If a rule is penal, it must be published before ittakes effect. [People vs Que Po Lay (1954)]

II. Quasi-Judicial (Adjudicatory) Power


Definition The power of the administrative agency todetermine questions of fact to which the legislativepolicy is to apply, in accordance with the standardslaid down by the law itself

Source

Incidental to the power of regulation but is oftenexpressly conferred by the legislature throughspecific provisions in the charter of the agency

DISTINCTIONS FROM JUDICIAL PROCEEDINGS Kind of

ProceedingsAdministrative Judicial

Nature of Proceedings

Inquisitorial Adversarial

Rules of Procedure

Liberallyapplied

Follow technicalrules in theRules of Court

Nature andExtent of Decision

Decisionlimited tomatters of

generalconcern

Decisionincludesmatters brought

as issue by theparties

Parties The agencyitself may be aparty to theproceedingsbefore it

The parties areonly the privatelitigants

Requisites for a Valid Exercise(1) Jurisdiction(2) Due process

General Rule A tribunal, board or officer exercising judicialfunctions acts without jurisdiction if no authority hasbeen conferred to it by law to hear and decide cases(1) Jurisdiction to hear is explicitly or by necessary

implication, conferred through the terms ofthe enabling statute.

(2) Effect of administrative acts outsidejurisdiction—VOID.

(1) Administrative Due Process

1. Due ProcessFindings of facts by administrative bodies whichobserved procedural safeguards (e.g. notice andhearing parties, and a full consideration of evidence)are accorded the greatest respect by courts

Cardinal Primary Rights: Ang Tibay v CIR (1950) laysdown the cardinal primary rights:(1) Right to a hearing (Includes the right of a party

to present his own case and submit evidence insupport thereof)

(2) The tribunal must consider the evidence

presented(3) Decision must be supported by evidence.(4) Evidence must be substantial.

Substantial Evidence: such relevant evidenceas a reasonable mind might accept as adequateto support a conclusion, even if other mindsequally reasonable would opine otherwise

(5) Decision must be rendered on the evidencepresented at the hearing or at least containedin the record and disclosed to the partiesaffected

(6) Independent consideration of judge (Must notsimply accept the views of a subordinate)

(7) Decision rendered in such a manner as to let theparties know the various issues involved andthe reasons for the decision rendered.

Due process does not always entail noticeand hearing prior to the deprivation of aright. Hearing may occur after deprivation, as in emergency cases, inwhich case, there must be a chance toseek reconsideration. [UP Board 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 of fairness; that the parties be given noticeof trial and

(a) an opportunity to be heard(b) in administrative proceedings, an

opportunity to seek reconsideration(c) 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, the




review becomes a farce; it is renderedmeaningless. [Rivera vs CSC (1995)]

Is a trial necessary? NO. WON to hold anadversarial trial is discretionary. Partiescannot demand it as a matter of right.[Vinta Maritime v NLRC (1978)] .

The right of a party to confront andcross-examine opposing witness is a

fundamental 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 in administrative casesare not entitled to be informed offindings of investigative committees butonly of the decision of the administrativebody. [Pefianco v Moral (2000)]

Due process is violated when:(1) There is failure to sufficiently explain the

reason for the decision rendered; or(2) If not supported by substantial evidence;(3) And imputation of a violation and imposition of

a fine despite absence of due notice andhearing. [Globe Telecom v NTC (2004)] .

Self-incriminationThe right against self-incrimination may be invokedby the respondent at the time he is called by thecomplainant as a witness. However, if he voluntarilytakes the witness stand, he can be cross examined;but he may still invoke the right when the question

calls for an answer which incriminates him for anoffense other than that charged. [People vs Ayson(1989)]

2. Notice and Hearing

When required:(1) When the law specifically requires it.(2) When it affects a person‘s status and liberty.

When not required:(1) Urgent reasons.(2) Discretion is exercised by an officer vested with

it upon an undisputed fact.(3) If it involves the exercise of discretion and there

is no grave abuse.(4) When rules to govern future conduct of persons

or enterprises, unless law provides otherwise.(5) In the valid exercise of police power.

(2) Administrative Appeal and Review

Different kinds of administrative appeal andreview: (De Leon)

(1) That which inheres in the relation ofadministrative superior to administrative

subordinate where determinations are made atlower levels of the same administrative system;

(2) That embraced in statutes which provides for adetermination to be made by a particular officerof body subject to appeal, review, orredetermination by another officer of body inthe same agency or in the same administrativesystem;

(3) That in which the statute attempts to make acourt a part of the administrative scheme by

providing in terms or effect that the court, onreview of the action of an administrativeagency, shall exercise powers of such extentthat they differ from ordinary judicial functionsand involve a trial de novo of matters of fact ordiscretion and application of the independentjudgment of the court;

(4) That in which the statute provides that an ordermade by a division of a Commission or Board hasthe same force and effect as if made by theCommission subject to a rehearing by the fullCommission, for the ‗rehearing‘ is practically anappeal to another administrative tribunal;

(5) That in which the statute provides for an appeal

to an officer on an intermediate level withsubsequent appeal to the head of thedepartment or agency; and

(6) That embraced in statutes which provide forappeal at the highest level, namely, thePresident

A party must prove that it has been affected oraggrieved by an administrative agency in order toentitle it to a review by an appellate administrativebody or another administrative body.

(3) Administrative Res Judicata

The doctrines of forum shopping, litis pendentia and

res judicata also apply to administrative agencies.

When it appliesThe doctrine of res judicata applies only to judicialor quasi-judicial proceedings and not to the exerciseof purely administrative functions. Administrativeproceedings are non-litigious and summary in nature;hence, res judicata does not apply. [Nasipit Lumber Co. vs NLRC (1989)]

Requisites(1) The former judgment must be final;(2) It must have been rendered by a court having

jurisdiction over the subject matter and theparties;

(3) It must be a judgment on the merits; and(4) There must be identity of parties, subject

matter and cause of action [IpekdijanMerchandising vs CTA (1963), FirestoneCeramics vs CA (1999), DBP vs CA (2001)]

Effect Decisions and orders of administrative bodiesrendered pursuant to their quasi-judicial authorityhave, upon their finality, the force and effect of afinal judgment within the purview of the doctrine ofres judicata, which forbids the reopening of matters




once judicially determined by competentauthorities.

III. Fact-Finding, Investigative,Licensing and Rate-Fixing Powers

1. Ascertainment of FactA statute may give to non-judicial officers:(1) the power to declare the existence of facts

which call into operation the statute‘sprovisions and

(2) may grant them and their subordinate officersthe power to ascertain and determineappropriate facts as a basis of procedure in theenforcement of laws.

(3) Such functions are merely incidental to theexercise of power granted by law to clearnavigable streams of unauthorized obstructions.They can be conferred upon executive officialsprovided the party affected is given theopportunity to be heard. [Lovina vs.Moreno(1963)]

2. Investigative powers Administrative agencies‘ power to conductinvestigations and hearings, and make findings andrecommendations thereon is inherent in theirfunctions as administrative agencies

Findings of facts by administrative bodies whichobserved procedural safeguards (e.g. notice andhearing parties, and a full consideration of evidence)are accorded the greatest respect by courts

3. Licensing Function

Sec. 17, 1987 Administrative Code. LicensingProcedure. – (1) When the grant, renewal, denial orcancellation of a license is required to be preceded

by notice and hearing, the provisions concerningcontested cases shall apply insofar as practicable.

(2) Except in cases of willful violation of pertinentlaws, rules and regulations or when public security,health, or safety requires otherwise, no license maybe withdrawn, suspended, revoked or annulledwithout notice and hearing.

Sec. 18, 1987 Administrative Code. Non-expirationof License. – Where the licensee has made timelyand sufficient application for the renewal of alicense with reference to any activity of a continuingnature, the existing license shall not expire until the

application shall have been finally determined bythe agency.

Sec. 2(10), 1987 Administrative Code. ―License‖includes the whole or any part of any agency permit,certificate, passport, clearance, approval,registration, charter, membership, statutoryexemption or other form of permission, or regulationof the exercise of a right or privilege.

Sec. 2(11), 1987 Administrative Code. ―Licensing‖

includes agency process involving the grant,renewal, denial, revocation, suspension, annulment,

withdrawal, limitation, amendment, modification orconditioning or a license.

When are notice and hearing required inlicensing? Only if it is a contested case.Otherwise, it can be dispensed with.(e.g.driver‘s licenses).

No expiry date does not mean the license isperpetual. A license permit is a specialprivilege, a permission or authority to do what iswithin its terms. It is always revocable.[Gonzalo Sy Trading vs Central bank (1976)]

4. Fixing of rates, wages, prices

Sec. 2(3), 1987 Administrative Code. ―Rate‖ meansany charge to the public for a service open to all andupon the same terms, including individual or jointrates, tolls, classification or schedules thereof, aswell as communication, mileage, kilometrage andother special rates which shall be imposed by law ofregulation to be observed and followed by anyperson.

Sec. 9, 1987 Administrative Code. PublicParticipation. – (2) In the fixing of rates, no rule or final order shallbe valid unless the proposed rates shall have beenpublished in a newspaper of general circulation atleast 2 weeks before the first hearing thereon.

Generally, the power to fix rates is a quasi-legislative function. However, it becomesjudicial when the rate is applicable only to anindividual.

Can the power to fix rates be delegated to acommon carrier or other public service? NO. The

latter may propose new rates, but these will notbe effective without the approval of theadministrative agency. [KMU vs Garcia (1994)]

What are considered in the fixing of rates? (1)the present valuation of all the property of apublic utility, and (2) the fixed assets. Theproperty is deemed taken and condemned bythe public at the time of filing the petition, andthe rate should go up and down with thephysical valuation of the property. [Ynchausti vsPublic Utility Commissioner (1922)]

D. Judicial Recourse and Review

I. Doctrine of Primary Administrative JurisdictionII. Doctrine of Exhaustion of AdministrativeRemediesIII. Doctrine of Finality of Administrative Action

I. Doctrine of Primary AdministrativeJurisdiction

GENERAL RULECourts will not intervene if the question to beresolved is one which requires the expertise of




administrative agencies and the legislative intent onthe matter is to have uniformity in the rulings.

It can only occur where there is a concurrence ofjurisdiction between the court and theadministrative agency.

It is a question of the court yielding to the agencybecause of the latter‘s expertise, and does notamount to ouster of the court. [Texas & Pacific

Railway v Abilene (1907)]

It is the recent jurisprudential trend to applythe doctrine of primary jurisdiction in manycases that demand the special competence ofadministrative agencies. It may occur that theCourt has jurisdiction to take cognizance of aparticular case, which means that the matterinvolved is also judicial in character. However,if the determination of the case requires theexpertise, specialized skills and knowledge ofthe proper administrative bodies becausetechnical matters or intricate questions of factsare involved, then relief must first be obtained

in an administrative proceeding before aremedy will be supplied by the courts eventhough the matter is within the proper jurisdiction of a court. [Industrial Enterprises v CA (1990)]

Well-entrenched is the rule that courts will notinterfere in matters which are addressed to thesound discretion of the government agencyentrusted with the regulation of activitiescoming under the special and technical trainingand knowledge of such agency. Administrativeagencies are given a wide latitude in theevaluation of evidence and in the exercise of their adjudicative functions, latitude which

includes the authority to take judicial notice of facts within their special competence [(Quiambao vs CA (2005)]

The doctrine of primary jurisdiction applieswhere a claim is originally cognizable in thecourts, and comes into play wheneverenforcement of the claim requires theresolution of issues which, under a regulatoryscheme, have been placed within the specialcompetence of an administrative body; in suchcase, the judicial process is suspended pendingreferral of such issues to the administrativebody for its view. And, in such cases, the courtcannot arrogate into itself the authority toresolve a controversy, the jurisdiction overwhich is initially lodged with an administrativebody of special competence. [Sherwill vs SitioSto Nino (2005)]

Rationale: In this era of clogged docket courts, theneed for specialized administrative boards with thespecial knowledge and capability to hear anddetermine promptly disputes on technical mattershas become well nigh indispensable. Between thepower lodged in an administrative body and a court,the unmistakable trend has been to refer it to theformer. [GMA vs ABS CBN (2005)]

Requisites:(1) Administrative body and the regular court have

concurrent and original jurisdiction(2) Question to be resolved requires expertise of

administrative agency(3) Legislative intent on the matter is to have

uniformity in rulings(4) Administrative agency is performing a quasi-

judicial or adjudicatory function (not rule-

making or quasi-legislative function [Smart vsNTC (2003)]

Rationale: It is presumed that an administrativeagency, if afforded an opportunity to pass upon amatter, would decide the same correctly, or correctany previous error committed in its forum [Caballesv Sison (2004)]

When the Doctrine is Inapplicable:(1) If the agency has exclusive jurisdiction(2) When the issue is not within the competence of

the administrative body to act on.(3) When the issue involved is clearly a factual

question that does not require specialized skillsand knowledge for resolution to justify theexercise of primary jurisdiction.

EffectThe case is not dismissed, but merely suspendeduntil after the matters within the competence of theadministrative agency are threshed out anddetermined. [Vidad vs RTC (1993)]

II. Doctrine of Exhaustion of Administrative Remedies

GENERAL RULE

Where the law has delineated the procedure bywhich administrative appeal or remedy could beeffected, the same should be followed beforerecourse to judicial action can be initiated. [Pascualvs Provincial Board (1959)]

Requisites:(1) The administrative agency is performing a quasi-

judicial function.(2) Judicial review is available.(3) The court acts in its appellate jurisdiction.

Rationale:(1) Legal reason: The law prescribes a procedure.(2) Practical reason: To give the agency a chance to

correct its own errors [and prevent unnecessaryand premature resort to the courts

(3) Reasons of comity : Expedience, courtesy,convenience.

EXCEPTIONS to the Doctrine of Exhaustion of Remedies:(1) Purely legal questions. [Castro vs Secretary

(2001)]

(2) Steps to be taken are merely matters of form.[Pascual vs Provincial Board (1959)]




(3) Administrative remedy not exclusive but merelycumulative or concurrent to a judicial remedy.[Pascual vs Provincial Board (1959)]

(4) Validity and urgency of judicial action orintervention. [Paat vs CA (1997)]

(5) No other plain, speedy, adequate remedy in theordinary course of the law. [Paat v CA (1997)t;Information Technology Found’n v COMELEC

(2004)]

(6) Resort to exhaustion will only be oppressive andpatently unreasonable. [Paat vs CA (1997);Cipriano vs Marcelino (1972)]

(7) Where the administrative remedy is onlypermissive or voluntary and not a prerequisiteto the institution of judicial proceedings.[Corpuz vs Cuaderno (1962)]

(8) Application of the doctrine will only cause greatand irreparable damage which cannot beprevented except by taking the appropriate

court action. [Paat vs CA (1997); Cipriano vsMarcelino (1972)]

(9) When it involves the rule-making or quasi-legislative functions of an administrativeagency. [Smart vs NTC (2003)]

(10) Administrative agency is in estoppel. [Republicvs Sandiganbayan (1996)]

(11) Doctrine of qualified political agency

(12) Subject of controversy is private land in landcase proceedings. [Paat vs CA (1997)]

(13) Blatant violation of due process. [Paat vs CA(1997); Pagara vs CA]

(14) Where there is unreasonable delay or officialinaction. [Republic vs Sandiganbayan (1996)]

(15) Administrative action is patently illegalamounting to lack or excess of jurisdiction.[Paat vs CA (1997)]

(16) Resort to administrative remedy will amount toa nullification of a claim. [DAR vs Apex Investment (2003); Paat vs CA (1997)]

(17) No administrative review provided for by law.[Estrada vs CA (2004)]

(18) Issue of non-exhaustion of administrativeremedies rendered moot. [Estrada vs CA (2004)]

(19) In quo warranto proceedings. [Corpus vsCuaderno (1962)]

(20) Law expressly provides for a different reviewprocedure. [Samahang Magbubukid vs CA (1999)]

Effect of Failure to Exhaust AdministrativeRemedies:

It does not affect jurisdiction of the court.

The only effect of non-compliance is it that willdeprive complainant of a cause of action, which is aground for a motion to dismiss.

But if not invoked at the proper time, this ground isdeemed waived. [Republic vs Sandiganbayan (1996)]

III. Doctrine of Finality of Administrative Action

No resort to the courts will be allowed unless theadministrative action has been completed and thereis nothing left to be done in the administrativestructure.

The Doctrine of Finality of Administrative Action is abroader doctrine which encompasses the Doctrine ofExhaustion of Administrative Remedies. It is aprerequisite for judicial review.








COMMITTEE HEADS











OPERATIONS HEADS





Election Law





Meneses • Jenin Velasquez • Mara Villegas • Naomi QuimpoLeslie Octaviano • Yas RefranCris BernardinoLayout Head| Graciello TimothReyes



ELECTION LAW POLITICAL LAW REVIEWER

Election LawPOLITICAL LAW





A. SuffrageB. Qualification and Disqualification of

VotersC. Registration of VotersD. Inclusion and Exclusion ProceedingsE. Political Parties

F. CandidacyG. CampaignH. Board of CanvassersI. Remedies and Jurisdiction in

Election LawJ. Prosecution of Election Offenses

A. Suffrage

The right to vote in the election of officers chosenby the people and in determination of questionssubmitted to the people.

I. Scope

Election: the means by which the people choosetheir officials for a definite and fixed period and towhom they entrust for the time being the exercise ofthe powers of government.

Kinds

Regular: one provided by law for the election ofofficers either nation-wide or in certain subdivisionsthereof, after the expiration of the full term of theformer officers.

Special: one held to fill a vacancy in office beforethe expiration of the full term for which theincumbent was elected.

Plebiscite: election at which any proposedamendment to, or revision of, the Constitution issubmitted to the people for their ratification.

Referendum: submission of a law pass by thenational or local legislative body to the registeredvoters at an election called for the purpose for theirratification or rejection.

Initiative: the power of the people to proposeamendments to the Constitution or to propose andenact legislation through an election called for thepurpose. [Sec. 3a, R.A. 6735, The Initiative and Referendum Act]

3 systems of initiative:(1) Initiative on the Constitution: petition

proposing amendments to the Constitution.(2) Initiative on statutes: petition proposing

to enact a national legislation.(3) Initiative on local legislation: petition

proposing to enact a regional, provincial,city, municipal or barangay law, resolutionor ordinance.

The constitutional provision on people's initiative toamend the Constitution can only be implemented bylaw to be passed by Congress. No such law has beenpassed. R.A. No. 6735 is incomplete, inadequate, orwanting in essential terms and conditions insofar asinitiative on amendments to the Constitution isconcerned. Note: Section 2 of Art. XVII Constitutionis limited to proposals to AMEND — not to REVISE — the Constitution. [Santiago v. COMELEC (1997)]

Recall: the termination of official relationship of alocal elective official for loss of confidence prior tothe expiration of his term through the will of theelectorate.

II. Election Period

Unless otherwise fixed by the COMELEC in specialcases, the election period shall commence 90 daysbefore the day of the election and shall end 30 daysthereafter. [Art. IX-C, Sec. 9, Const.]

B. Qualification andDisqualification of VotersI. QualificationsII. Overseas Absentee Voter

I. Qualifications[Art. V, Sec. 1, 1987 Const.]

Citizenship: Filipino citizen by birth ornaturalization

Age: at least 18 at the time of the electionResidency:

(3) Resident of the Philippines for at least 1year and

(4) Resident of the place wherein they proposeto vote for at least 6 months immediatelypreceding the election

Note: Any person who temporarily resides in anothercity, municipality or country solely by reason of his:

(1) employment in private or public service(2) educational activities(3) work in the military or naval reservations

within the Philippines(4) service in the AFP, PNP or(5) confinement or detention in government

institutions in accordance with law shallnot be deemed to have lost his original

residence [Sec. 9, R.A. 8189, Voter’sRegistration Act of 1996]

It is not necessary that a person should have a housein order to establish his residence or domicile in amunicipality. It is enough that he should live there,provided that his stay is accompanied by hisintention to reside therein permanently. [Marcos v.COMELEC (1995)]

Not otherwise disqualified by law: These are the 3grounds for disqualification to register as a voterunder Sec. 11, R.A. 8189, Voter‘s Registration Act of 1996:




(1) Sentenced by final judgment to sufferimprisonment for not less than 1 year(unless granted a plenary pardon or anamnesty) shall automatically reacquireright to vote upon the expiration of 5 yearsafter the service of sentence.

(2) Adjudged by final judgment for havingcommitted any crime involving disloyaltyto the duly constituted government (e.g.rebellion, sedition, violation of the

firearms law) or any crime against nationalsecurity (unless restored to full civil andpolitical rights in accordance with law)shall automatically reacquire the right tovote upon the expiration of 5 years afterthe service of sentence

(3) Insane or incompetent persons as declaredby competent authority

Registered voter: In order that a qualified electormay vote in any election, plebiscite or referendum,he must be registered in the Permanent List ofVoters for the city or municipality in which heresides. [Sec. 115, B.P. 881, Omnibus Election Code]

Note: No literacy, property or other substantiverequirement shall be imposed on the exercise ofsuffrage

II. Overseas Absentee Voter

1. Qualifications

(1) All Filipino citizens abroad(2) Not otherwise disqualified by law(3) At least 18 years of age on the day of

elections [Sec. 3f, R.A. 9189]

2. Disqualifications

(1) have lost their Filipino citizenship inaccordance with Philippine laws

(2) have expressly renounced their Philippinecitizenship and who have pledgedallegiance to a foreign country

(3) have committed and are convicted in afinal judgment by a court or tribunal ofan offense punishable by imprisonment ofnot less than 1 year, including those whohave committed and been found guilty ofDisloyalty as defined under Article 137 ofthe RPC

(4) immigrant or a permanent resident who is

recognized as such in the host countryunless he/she executes, uponregistration, an affidavit prepared for thepurpose by the Commission declaringthat:(a) he/she shall resume actual physical

permanent residence in thePhilippines not later than 3 yearsfrom approval of his/herregistration and

(b) he/she has not applied forcitizenship in another country

Effect of failure to return: cause for theremoval of his/her name from the NationalRegistry of Absentee Voters and his/herpermanent disqualification to vote in absentia.

(5) Previously declared insane orincompetent by competent authority inthe Philippines or abroad, as verified bythe Philippine embassies, consulates orforeign eservice establishments

concerned. [Sec. 5, R.A. 9189]

C. Registration of VotersI. DefinitionII. System of Continuing Registration of VotersIII. Illiterate or disabled votersIV. Election Registration BoardV. Change of residence or addressVI. Challenges to right to registerVII. Deactivation of RegistrationVIII. Reactivation of RegistrationIX. Certified List of VotersX. Annulment of Book of VotersXI. Overseas Absentee Voter

I. Definition

Act of accomplishing and filing of a swornapplication for registration by a qualified voterbefore the election officer of the city ormunicipality wherein he resides and including thesame in the book of registered voters upon approvalby the Election Registration Board. [Sec. 3a, R.A.8189]

II. System of Continuing Registrationof Voters

The personal filing of application of registration ofvoters shall be conducted daily in the office of theElection Officer during regular office hours.

Period of registration:No registration shall be conducted within

(1) 120 days before a regular election(2) 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 the deadline forvoter registration to 31 October 2009. Petitionersasked the SC to declare the resolution null and void,and to require COMELEC to extend the voterregistration until 9 January 2010, the day before the120-day period prior to the 10 May 2010 regularelections. COMELEC argued that it is authorize underthe law to fix other dates for pre-election acts whichinclude voter registration and in Akbayan-Youth vs.COMELEC, the SC denied a similar prayer forextension of deadline for voter registration for the14 May 2001 elections.




Issue: WON COMELEC Resolution 8585 should bedeclared void.

Ruling: Yes. By Sec. 8 R.A. 8189, Congress itself hasdetermined that the period of 120 days before aregular election and 90 days before a specialelection is enough time for the COMELEC to makeALL the necessary preparations with respect to thecoming elections. COMELEC is granted the power tofix other periods and dates for pre-election activities

only if the same cannot be reasonably held withinthe period provided by law. There is no ground tohold that the mandate of continuing voterregistration cannot be reasonably held within theperiod 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 of atwo-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.

III. Illiterate or disabled voters

Illiterate person - may register with the assistanceof the Election Officer or any member of anaccredited citizen‘s arms

Physically disabled person – application forregistration may be prepared by:

(1) any relative within the 4th civil degree ofconsanguinity or affinity or

(2) by the Election Officer or(3) any member of an accredited citizen‘s arm

[Sec. 14, R.A. 8189]

R.A. 9369 The Poll Automation Law now defines adisabled voter as ―a person with impaired capacityto use the Automated Election System (AES)‖ (Sec.2, Par. 11)

IV. Election Registration Board

Composition:(1) Chairman: Election Officer

If disqualified, COMELEC shall designate anacting Election Officer

(2) Members:(a) Public school official most senior in rank(b) Local civil registrar, or in his absence,

the city or municipal treasurer. Ifneither are available, any otherappointive civil service official from thesame locality as designated by theCOMELEC.

Disqualification: relation to each other or to anyincumbent city or municipal elective official withinthe 4th civil degree of consanguinity or affinity. [Sec.15, R.A. 8189]

V. Change of residence or address

Change of residence to another city ormunicipality – the registered voter may apply withthe Election Officer of his new residence for thetransfer of his registration records. [Sec. 12, R.A.8189]

Change of address in the same municipality or city – voter shall immediately notify the Election Officerin writing. [Sec. 13, R.A. 8189]

VI. Challenges to right to register

Who may challenge application for registration:Any voter, candidate or representative of aregistered political party

Form:(1) In writing(2) State the grounds therefor(3) Under oath and(4) 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 Mondayof the month in which the same is scheduled to beheard or processed by the ERB [Sec. 18, R.A. 8189]

VII. Deactivation of Registration

(1) The board shall remove the registrationrecords of the following persons from thecorresponding precinct book of voters andplace the same in the inactive file:

(2) Sentenced by final judgment to sufferimprisonment for not less than 1 year(unless granted a plenary pardon or anamnesty)

(3) shall automatically reacquire right to voteupon the expiration of 5 years after theservice of sentence as certified by clerks ofcourts

(4) Adjudged by final judgment for havingcommitted any crime involving disloyalty tothe duly constituted government (e.g.rebellion, sedition, violation of the firearmslaw) or any crime against national security(unless restored to full civil and politicalrights in accordance with law) shallautomatically reacquire the right to voteupon the expiration of 5 years after theservice of sentence

(5) Insane or incompetent persons as declaredby competent authority

(6) Did not vote in the 2 successive precedingregular elections (excluding SK elections)

(7) Registration has been ordered excluded bythe Court and

(8) Lost his Filipino citizenship. [Sec. 27, R.A.8189]

VIII. Reactivation of Registration

Any voter whose registration has been deactivatedmay file with the Election Officer a sworn




application for reactivation of his registration in theform of an affidavit stating that the grounds for thedeactivation no longer exist.

When: Any time not later than 120 days before aregular election and 90 days before a specialelection. [Sec. 28, R.A. 8189]

IX. Certified List of Voters

The ERB shall prepare and post a certified list ofvoters 90 before a regular election and 60 daysbefore a special election. [Sec. 30, R.A. 8189]

X. Annulment of Book of Voters

The COMELEC shall, upon verified petition of anyvoter or election officer or duly registered politicalparty, and after notice and hearing, annul any bookof voters that is:

(1) not prepared in accordance with R.A. 8189or the Voters‘ Registration Act of 1996

(2) prepared through fraud, bribery, forgery,

impersonation, intimidation, force, or anysimilar irregularity(3) contains data that are statistically

improbable

No order, ruling or decision annulling a book ofvoters shall be executed within 90 days before anelection. [Sec. 39, R.A. 8189]

XI. Overseas Absentee Voter

a. Definitions

Absentee Voting: process by which qualified citizens

of the Philippines abroad exercise their right tovote. [Sec. 3a, R.A. 9189, The Overseas AbsenteeVoting Act]

Overseas Absentee Voter: citizen of the Philippineswho is qualified to register and vote under this Act,not otherwise disqualified by law, who is abroad onthe day of elections. [Sec. 3f, R.A. 9189]

b. CoverageElections for president, vice-president, senators andparty-list representatives [Sec. 3f, R.A. 9189]

c. Personal Overseas Absentee RegistrationRegistration as an overseas absentee voter shall be

done in person. [Sec.5, R.A. 9189]

d. National Registry of Overseas AbsenteeVoters

Definition: the consolidated list prepared, approvedand maintained by the COMELEC, of overseasabsentee voters whose applications for registrationas absentee voters, including those registered voterswho have applied to be certified as absentee voters,have been approved by the Election RegisteredBoard. [Sec. 3e, R.A. 9189]

Grounds for cancellation/amendment of entriestherein:

(1) When the overseas absentee voter files aletter 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.

(2) When an overseas absentee voter‘s namewas ordered removed by the Comelec from

the Registry of Overseas Absentee Voters forhis/her failure to exercise his/her right tovote under R.A. 9189 for 2 consecutivenational elections. [Sec. 9, R.A. 9189]

D. Inclusion and ExclusionProceedings

Exclusion Proceedings

Jurisdiction in inclusion and exclusion case: TheMunicipal and Metropolitan Trial Courts shall have

original and exclusive jurisdiction over all cases ofinclusion and exclusion of voters in their respectivecities or municipalities. [Sec. 33, R.A. 8189]

Appeal: Decisions of the MTC or MeTC may beappealed by the aggrieved party to the RTC within 5days from receipt of notice thereof. No motion forreconsideration shall be entertained. [Sec. 33, R.A.8189]

Petition for Inclusion of Voters in the List:When: any time except 105 days prior to aregular election or 75 days prior to a specialelection.

Who may file:(1) One whose application for registration has

been disapproved by the Board of ElectionInspectors or

(2) One whose name has been stricken out fromthe list [Sec. 34, R.A. 8189]

Petition for Exclusion of Voters in the List:When: any time except 100 days prior to aregular election or 65 days prior to a specialelection.

Who may file:(1) Any registered voter;(2) Any representative of a political party;(3) the Election Officer

Overseas Absentee Voter

Petition for Inclusion of Voters in the List:

When: within 5 days from receipt of the noticeof disapproval

Who may file: applicant or his authorizedrepresentative [Sec. 6.7, R.A. 9189]

Petition for Exclusion:




When: any time not later than 210 days beforethe day of the elections

Who may file: any interested person [Sec. 6.7,R.A. 9189]

E. Political PartiesI. Party SystemII. Definitions

III. PurposeIV. Procedure for RegistrationV. Who May Not be RegisteredVI. Grounds for refusal and/or cancellation of registrationVII. Parameters in Allocation of Seats for Party-List RepresentativesVIII. Effect of Change of Affiliation

I. Party System

A free and open party system shall be allowed toevolve according to the free choice of the people.[Art. IX-C, Sec. 6, Const.]

No votes cast in favor of a political party,organization, coalition shall be valid, except forthose registered under the party-list system. [Art.IX-C, Sec. 7, Const.]

II. Definitions

Party-List System: Mechanism of proportionalrepresentation in the election of representatives tothe House of Representatives from national, regionaland sectoral parties or organizations or coalitionsregistered with the COMELEC.

Political party: An organized group of citizensadvocating an ideology or platform, principles andpolicies for the general conduct of government andwhich, as the most immediate means of securingtheir adoption, regularly nominates certain of itsleaders and members as candidates for public office.

3 kinds of Parties:(1) National party - constituency is spread over

the geographical territory of at least amajority of the regions.

(2) Regional party - constituency is spread overthe geographical territory of at least amajority of the cities and provincescomprising the region.

(3) Sectoral party – organized group of citizensbelonging to any of the following sectors:labor, peasant, fisherfolk, urban poor,indigenous cultural communities, elderly,handicapped, women, youth, veterans,overseas workers and professionals whoseprincipal advocacy pertains to the specialinterests and concerns of their sector.

Sectoral organization: group of citizens or acoalition of groups of citizens who share similarphysical attributes or characteristics, employment,interests or concerns.

Coalition: an aggrupation of duly registerednational, regional, sectoral parties or organizationsfor political and/or election purposes. [Sec. 3, R.A.7941, Party-List System Act]

III. Purpose

To enable Filipino citizens belonging to marginalized

and underrepresented sectors, organizations andparties, and who lack well-defined politicalconstituencies but who could contribute to theformulation and enactment of appropriatelegislation that will benefit the nation as a whole, tobecome members of the House of Representatives.[Sec. 2, R.A. 7941]

IV. Procedure for Registration

(1) File with the COMELEC not later than 90 daysbefore the election a petition verified by itspresident or secretary stating its desire toparticipate in the party-list system as a

national, regional or sectoral party ororganization or a coalition of such parties ororganizations attaching thereto itsconstitution, by-laws, platform or program ofgovernment, list of officers, coalitionagreement and other relevant information asthe COMELEC may require

(2) COMELEC shall publish the petition in at least2 national newspapers of general circulation

(3) COMELEC shall, after due notice and hearing,resolve the petition within 15 days from thedate it was submitted for decision but in nocase not later than 60 days before election

[Sec. 5, R.A. 7941]

V. Who May Not be Registered

(1) Religious denominations and sects(2) Those which seek to achieve their goals

through violence or unlawful means(3) Those which refuse to uphold and adhere to

the Constitution(4) Those supported by foreign governments [Art.

IX-C, Sec. 2 (5), Constitution]

VI. Grounds for refusal and/or

cancellation of registration(1) The COMELEC may, motu propio or upon

verified 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:

(2) Religious sect or denomination, organizationor association, organized for religiouspurposes

(3) Advocates violence or unlawful means to seekits goal




(4) Foreign party or organization(5) Receives support from any foreign

government, foreign political party,foundation, organization, whether directly orthrough any of its officers or members orindirectly through third parties for partisanelection purposes

(6) Violates or fails to comply with laws, rules orregulations relating to elections

(7) Declares untruthful statements in its petition

(8) Ceased to exist for at least 1 year(9) Fails to participate in the last 2 preceding

elections or(10) Fails to obtain at least 2% of the votes cast

under the party-list system in the 2 precedingelections for the constituency in which it hasregistered [Sec. 6, R.A. 7941]

VII. Parameters in Allocation of Seatsfor Party-List Representatives

20% allocation – the combined number of all party-list congressmen shall not exceed 20% of the totalmembership of the House of Representatives,including those elected under the party-list.

Number available toparty-list

representativesactually obtained, is

entitled to a maximumof 3 seats; one

qualifying and of seatsavailable to

legislative districts.80

x 20 = Number of seatsavailable toparty-list

representatives

2% threshold – only those parties garnering a

minimum of 2% of the total votes cast for the party-list system shall be entitled to one guaranteed seateach.

Proportional representation – the additional seatsshall be computed in ―proportion to their totalnumber of votes‖.

3-seat limit – each party, regardless of the numberof votes it actually obtained, is entitled to amaximum of 3 seats; one qualifying and 2 additionalseats.

BANAT VS. COMELECGR NO. 179271, July 8. 2009

Held: In computing the allocation of additionalseats, the continued operation of the 2% thresholdfor the distribution of the additional seats as foundin the second clause of Sec. 11(b) of R.A. 7941 whichprovides that ―those garnering more than 2% of thevotes shall be entitled to additional seats inproportion to their total number of votes‖ isunconstitutional. The 2% threshold frustrates theattainment of the permissive ceiling that 20% of themembers of the HR shall consist of party-listrepresentatives.

There are 2 steps in the second round of seatallocation:

1) The percentage of votes garnered by each party-list candidate is multiplied by the remainingavailable seats. The whole integer of the productcorresponds to a party‘s share in the remainingavailable seats

Formula for remaining available seats =

No. of seats available toparty-list representatives

x Guaranteed seatsof the two-percenters

Formula for percentage of votes garnered by eachparty-list candidate =

No. of votes garnered byeach party ÷

Total no. ofvotes cast for

party-listcandidates

2) Assign one party-list seat to each of the partiesnext in rank until all available seats are completelydistributed.

VIII. Effect of Change of Affiliation

Any elected party-list representative who changeshis political party or sectoral affiliation: during his term of office shall forfeit his seat within 6 months before an election shall not be

eligible for nomination as party-listrepresentative under his new party ororganization [Sec. 15, R.A. 7941]

IX. Nomination of Party-ListRepresentative

Each registered party, organization or coalition shallsubmit to the COMELEC not later 45 days before theelection a list of at least 5 names from which party-list representatives shall be chosen in case it obtainsthe required number of votes.

A person may be nominated:(1) in 1 list only(2) if he/she has given their consent in writing(3) is not a candidate for any elective office or(4) 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 the same shall havebeen submitted to the COMELEC except where thenominee:

(1) dies(2) withdraws in writing his nomination or(3) becomes incapacitated in which case the

name of the substitute nominee shall beplaced last in the list

Incumbent sectoral representatives in the HR whoare nominated in the party-list system shall not beconsidered resigned. [Sec. 8, R.A. 7941]




F. CandidacyI. Qualifications of CandidatesII. Filing of Certificates of Candidacy

I. Qualifications of Candidates

1. Candidate, Definition

Any person who files his certificate of candidacywithin prescribed period shall only be considered asa candidate at the start of the campaign period forwhich he filed his certificate of candidacy. [Sec. 15,R.A. 9369, Poll Automation Law]

Unlawful acts or omissions applicable to a candidateshall take effect only upon the start of the aforesaidcampaign period. [Sec. 15, R.A. 9369]

Any registered national, regional, or sectoral party,organization or coalition thereof that has filed amanifestation to participate under the party-listsystem which has not withdrawn or which has notbeen disqualified before the start of the campaign

period. [Comelec Res. 8758, Feb. 4, 2010]

2. QualificationsQualifications prescribed by law are continuingrequirements and must be possessed for the durationof the officer's active tenure [Frivaldo v. COMELEC(1989); Labo v. COMELEC (1989)] .

3. Disqualifications

Under the Omnibus Election Code (1) Declared incompetent or insane by competent

authority (Sec. 12)(2) Permanent resident of or an immigrant to a

foreign country unless he has waived such

status (Sec. 68)(3) Sentenced by final judgment for:

(a) Subversion, insurrection, rebellion(b) Any offense for which he has been

sentenced to a penalty of more than 18months imprisonment

(c) A crime involving moral turpitude (Sec.12)

(4) Given money or other material considerationto influence, induce or corrupt voters orpublic officials performing electoral functions(Sec. 68)

(5) Committed acts of terrorism to enhance hiscandidacy (Sec. 68)

(6) Spent in his election campaign an amount inexcess of that allowed (Sec. 68)(7) Solicited, received or made prohibited

contributions (Sec. 68)(8) Engaged in election campaign or partisan

political activity outside the campaign periodand not pursuant to a political partynomination (Sec. 80)

(9) Removed, destroyed, defaced lawful electionpropaganda (Sec. 83)

(10) Engaged in prohibited forms of electionpropaganda (Sec. 85)

(11) Violated election rules and regulations onelection propaganda through mass media

(Sec. 86)(12) Coerced, intimidated, compelled, or

influenced any of his subordinates, members,or employees to aid, campaign or vote for oragainst any candidate or aspirant for thenomination or selection of candidates (Sec.261.d)

(13) Threatened, intimidated, caused, inflicted orproduced any violence, injury, punishment,damage, loss or disadvantage upon any

person or of the immediate members of hisfamily, his honor or property, or used fraudto compel, induce or prevent the registrationof any voter, or the participation in anycampaign, or the casting of any vote, or anypromise of such registration, campaign, vote,or omission therefrom (Sec. 261.e)

(14) Unlawful electioneering (Sec. 261.k)(15) Violated the prohibition against release,

disbursement or expenditure of public funds45 days before a regular election or 30 daysbefore a special election (Sec. 261.v)

(16) Solicited votes or undertook propaganda onelection day for or against any candidate or

any political party within the polling place orwithin a 30m radius (Sec. 261.cc.6)

Under Section 40 of the LGC(1) Sentenced by final judgment for an offense

punishable by at least 1 year imprisonmentwithin 2 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 ofthe Philippines

(4) Dual citizenship

Dual citizenship as a disqualification must

refer to citizens with dual allegiance.[Mercado v. Manzano, (1999)]

Under R.A. 9225 Citizenship Retention and Re-acquisition Act of 2003, a Filipino whobecomes a naturalized citizen of anothercountry is allowed to retain his Filipinocitizenship by swearing to the supremeauthority of the Republic of the Philippines.The act of taking an oath of allegiance is animplicit renunciation of a naturalizedcitizen‘s foreign citizenship.

Dual citizenship is not a ground fordisqualification from running for electiveposition. Like any other natural-bornFilipino, it is enough for a person with dualcitizenship who seeks public office to (1)file his certificate of candidacy and (2)swear to the Oath of Allegiance containedtherein. [Cordora vs. COMELEC, (February 2009)]

With respect to a person with dualallegiance, the Court held that candidate‘soath of allegiance to the Republic of thePhilippines and his Certificate of Candidacydo not substantially comply with the




requirement of a personal and swornrenunciation of foreign citizenship. Section5(2) of R.A. No. 9225 compels natural-bornFilipinos, who have been naturalized ascitizens of a foreign country, but whoreacquired or retained their Philippinecitizenship (1) to take the oath ofallegiance under Section 3 of Republic ActNo. 9225, and (2) for those seeking electivepublic offices in the Philippines, to

additionally execute a personal and swornrenunciation of any and all foreigncitizenship before an authorized publicofficer prior or simultaneous to the filing oftheir certificates of candidacy, to qualify ascandidates in Philippine elections. [Jacotvs. Dal, (November 2008)]

(5) Fugitive from justice in criminal and non-political cases here and abroad

(6) Insane or feeble-minded

II. Filing of Certificates of Candidacy

No person shall be eligible for any elective publicoffice unless he files a sworn certificate ofcandidacy within the period fixed herein. [Sec. 73,B.P. 881]

The certificate of candidacy shall be filed by thecandidate personally or by his duly authorizedrepresentative.

When: any day from the commencement of theelection period but not later than the day before thebeginning of the campaign period.

In cases of postponement or failure of election, noadditional certificate of candidacy shall be acceptedexcept in cases of substitution of candidates. [Sec.75, B.P. 881]

Filing of 2 certificates of candidacy:(1) No person shall be eligible for more than one

office to be filled in the same election.(2) If he files a certificate of candidacy for more

than one office he shall not be eligible foreither.

(3) Before the expiration of the period for thefiling of certificates of candidacy, the personwho has filed more than one certificate ofcandidacy, 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]

(1) Effect of Filing

Any person holding a public appointive office orposition including active members of the AFP, andother officers and employees in GOCCs, shall beconsidered ipso facto resigned from his office uponthe filing of his certificate of candidacy. [Sec. 66(1),B.P. 881]

Any person holding an elective office or positionshall not be considered resigned upon the filing ofhis certificate of candidacy for the same or anyother elective office or position. [Sec. 4, ComelecResolution No. 8678 Guidelines on the Filing ofCertificates of Candidacy and Nomination of OfficialCandidates of Registered Political Parties inConnection with the May 10, 2010 National and LocalElections]

NOTE: Sec. 67 B.P. 811 which deemed electiveofficials automatically resigned from office uponfiling of their certificate of candidacy was repealedby Sec. 14 R.A 9006, 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 3 provisions inelection laws – Sec. 13(3) R.A. 9369, Sec. 66 B.P. 881and Sec. 4(a) COMELEC Resolution 8678 - thatdeemed appointive officials automatically resignedonce they filed their certificates of candidacy.

Ratio: By repealing Section 67 but retaining Section66 of B.P. 881, the legislators deemed it proper totreat these two classes of officials differently withrespect to the effect on their tenure in the office ofthe filing of the certificates of candidacy for anyposition other than those occupied by them. It is notwithin the power of the Court to pass upon or lookinto the wisdom of this classification. Since theclassification justifying Section 14 of R.A. 9006 isanchored upon material and significant distinctionsand all the persons belonging under the sameclassification are similarly treated, the equalprotection clause of the Constitution is, thus, notinfringed.

(2) Substitution of Candidates

If after the last day for filing of the certificates ofcandidacy, an official candidate of a registeredpolitical party dies, withdraws or is disqualified forany cause:

(1) He may be substituted by a candidatebelonging to and nominated by the samepolitical party.

(2) No substitute shall be allowed for anyindependent candidate.

(3) The substitute must file his certificate ofcandidacy not later than mid-day of theelection day

If the death, withdrawal or disqualification shouldhappen between the day before the election andmid-day of the election day, certificate may be filedwith:

(1) any Board of Election Inspectors in thepolitical subdivision where he is a candidateor

(2) with the COMELEC if it is a national position[Sec. 77, B.P. 881]

Duty of COMELEC [Sec. 76, B.P. 881] GENERAL RULE: The COMELEC shall have the




ministerial duty to receive and acknowledge receiptof the certificates of candidacy provided saidcertificates are: under oath and contain all therequired data and in the form prescribed by theCommission.

EXCEPTION: COMELEC may go beyond the face ofthe certificate of candidacy –

(1) Nuisance candidates(2) 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 acertificate of candidacy filed in dueform. While the COMELEC may look intopatent defects in the certificate, itmay not go into matters not appearingon their face. [Abcede v. Imperial,(1958)]

(3) Nuisance Candidates

Petition to declare a duly registered candidate as anuisance candidate [Sec. 5, R.A. 6646, The

Electoral Reforms Law of 1987]

Who may file: any registered candidate for the sameoffice

When: within 5 days from the last day for the filingof certificates of candidacy

How: personally or through duly authorizedrepresentative with the COMELEC

Grounds: certificate of candidacy has been filed -(1) To put the election process in mockery or

disrepute or(2) To cause confusion among the voters by the

similarity of the names of the registeredcandidates or

(3) Clearly demonstrate that the candidate hasno bona fide intention to run for the officefor which the certificate of candidacy hasbeen filed and thus prevent a faithfuldetermination of the true will of theelectorate [Sec. 69, B.P. 881]

Proceeding: summary in nature

(4) Petition to Deny or CancelCertificates of Candidacy

Who may file: Any person

When: Any time not later than 25 days from thetime of the filing of the certificate of candidacy

Exclusive ground: any material representationcontained in the certificate of candidacy is false.

Decision: Shall be decided, after due notice andhearing, not later than 15 days before the 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 the candidateto run for the election for which he filed his COC.Such material fact refers to a candidate‘s eligibilityor qualification for elective office like citizenship,residence or status as a registered voter. Aside from

the requirement of materiality, the falserepresentation must consist of a deliberate attemptto mislead, misinform, or hide a fact that wouldotherwise render a candidate ineligible. In otherwords, it must be made with the intention todeceive the electorate as to the would-becandidate‘s qualifications for public office.

(5) Effect of Disqualification

Procedure(1) Who may file: Any citizen of voting age, or

any duly registered political party,organization or coalition of political parties

(2) Where: Law Department of the COMELEC(3) When: Any day after the last day for filingof certificates of candidacy, but not laterthan the date of proclamation

Effect (asked in 1990, 1992, 1996, 2003)Any candidate who has been declared by finaljudgment to be disqualified shall not be voted for,and the votes cast for him shall not be counted. Thefact that the candidate who obtained the highestnumber of votes is later declared to be disqualifiedor not eligible for the office to which he waselected, does not necessarily entitle the candidatewho obtained the second highest number of votes tobe declared the winner of the elective office.

Any candidate who has been declared by finaljudgment to be disqualified –

(1) shall not be voted for and(2) the votes cast for him shall not be counted(3) If a candidate is not declared by final

judgment before an election to bedisqualified and he is voted for and receivesthe winning number of votes in suchelection

The Court or COMELEC shall continue with the trialand hearing of the action, inquiry, or protest and

Upon motion of the complainant or any intervenor,may during the pendency thereof, order thesuspension of the proclamation of such candidatewhenever the evidence of his guilt is strong. [Sec. 6,R.A. 6646, The Electoral Reforms Law of 1987]

Where a similar complaint/petition is filed:(1) before the election and proclamation of the

respondent and the case is not resolvedbefore the election - the trial and hearingof the case shall continue and referred tothe Law Department for preliminaryinvestigation




(2) after the election and before theproclamation of the respondent - the trialand hearing of the case shall be suspendedand referred to the Law Department forpreliminary investigation

NOTE: In either case, if the evidence of guilt isstrong, the COMELEC may order the suspensionof the proclamation of respondent, and ifproclaimed, to suspend the effects of

proclamation. [Sec. 4, Resolution No. 8678]

(6) Withdrawal of Candidates

A person who has filed a certificate of candidacymay, prior to the election, withdraw the same bysubmitting to the office concerned a writtendeclaration under oath.

Effect of filing or withdrawal of a certificate of candidacy: shall not affect whatever civil, criminalor administrative liabilities which a candidate mayhave incurred.

G. CampaignI. Premature CampaigningII. Prohibited Contributions

I. Premature Campaigning

GENERAL RULE: Any election campaign or partisanpolitical activity for or against any candidate outsideof the campaign period is prohibited and shall beconsidered as an election offense. [Sec. 80, B.P.881]

EXCEPTION: Political parties may hold politicalconventions to nominate their official candidateswithin 30 days before the start of the period forfiling a certificate of candidacy. [Sec. 15, R.A. 9369,Poll Automation Law]

Prohibited campaigning days: It is unlawful for anyperson to engage in an election campaign or partisanpolitical activity on:

(1) Maundy Thursday(2) Good Friday(3) eve of Election Day and(4) Election Day [Sec. 3, COMELEC Resolution

8758]

PENERA VS COMELEC

G.R. No. 181613, November 25. 2009

Facts: On 11 September 2009, the SC affirmed theCOMELEC‘s decision to disqualify Penera as

mayoralty candidate in Sta. Monica, Surigao delNorte, for engaging in election campaign outside thecampaign period, in violation of Sec. 80 of B.P. 881.Penera moved for reconsideration, arguing that shewas not yet a candidate at the time of the supposedpremature campaigning, since under Sec. 15 of R.A.9369 one is not officially a candidate until the startof the campaign period.

Issue: WON Penera‘s disqualification for engaging inpremature campaigning should be reconsidered.

Held: At the time the supposed prematurecampaigning took place, Penera was not officially a―candidate‖ albeit she already filed her certificate

of candidacy. Under Section 15 of R.A. 9369, aperson who files his certificate of candidacy isconsidered a candidate only at the start of thecampaign period, and unlawful acts applicable to

such candidate take effect only at the start of suchcampaign period. Thus, a candidate is liable for anelection offense only for acts done during thecampaign period, not before. Before the start of thecampaign period, such election offenses cannot becommitted and any partisan political activity islawful.

1. Election Campaign or Partisan PoliticalActivity

An act designed to promote the election or defeat ofa particular candidate or candidates to a publicoffice. [Sec. 79, B.P. 881]

Exclusions:(1) Acts performed for the purpose of

enhancing the chances of aspirants fornomination for candidacy to a public officeby a political party, aggroupment, orcoalition of parties.

(2) Public expressions of opinions or discussionsof probable issues in a forthcoming electionor on attributes or criticisms of probablecandidates proposed to be nominated in aforthcoming political party convention.[Sec. 79, B.P. 881]

Persons Prohibited from Campaigning:

(1) Members of the board of electioninspections [Sec. 173, B.P. 881]

(2) Civil service officers or employees [Art. IX-B, Sec. 2 (4), Const.]

(3) Members of the military [Art. XVI, Sec. 5(3), Const.]

(4) Foreigners, whether juridical or naturalpersons.

2. Campaign Period

For President, Vice-President and Senators - 90days before the day of the election.

For Members of the HR and elective provincial,city and municipal officials - 45 days before the dayof the election. [Sec. 5, R.A. 7166]

3. Lawful Election Propaganda

(1) Pamphlets, leaflets, cards, decals, stickers, orother written or printed materials not largerthan 8.5x14 inches

(2) Handwritten or printed letters urging voters tovote for or against any political party orcandidate

(3) Cloth, paper or cardboard posters, framed or




posted, not larger than 2x3 feet(4) Streamers not larger than 3x8 feet are allowed

at a public meeting or rally or in announcingthe holding of such. May be displayed 5 daysbefore the meeting or rally and shall beremoved within 24 hours after such

(5) Paid advertisements in print or broadcast media Bear and be identified by the

reasonably legible or audible words―political advertisement paid for‖

followed by the true and correct nameand address of the candidate or partyfor whose benefit the electionpropaganda was printed or aired. [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 the

candidate or political party shall not beprinted, published, broadcast orexhibited without the writtenacceptance by said candidate orpolitical party. Written acceptancemust be attached to the advertisingcontract and submitted to theCOMELEC within 5 days after itssigning. [Sec. 4.3, R.A. 9006, cf. Sec.6.3, R.A. 9006]

(6) All other forms of election propaganda notprohibited by the Omnibus Election Code or theFair Election Act of 2001. [Sec. 3, R.A. 9006,The Fair Election Act]

4. Prohibited Acts

For any foreigner to:(1) Aid any candidate or political party, directly or

indirectly(2) Take part or influence in any manner any

election(3) Contribute or make any expenditure in

connection with any election campaign orpartisan political activity [Sec. 81, B.P. 881]

For any person during the campaign period to:(1) Remove, destroy, obliterate or in any manner

deface or tamper with lawful electionpropaganda

(2) Prevent the distribution of lawful electionpropaganda [Sec. 83, B.P.881]

For any candidate, political party, organization orany person to:

(1) Give or accept, directly or indirectly, free ofcharge, transportation, food or drinks or thingsof value during the five hours before and aftera public meeting, on the day preceding theelection, and on the day of the election;

(2) Give or contribute, directly or indirectly, moneyor things of value for such purpose (Sec. 89,B.P. 881)

Note: Sec. 85 ―Prohibited election propaganda‖ of B.P. 881 was repealed by Sec. 14 R.A. 9006.

5. Equal Access to Media Time and Space

Print advertisements shall not exceed 1/4 page, inbroad sheet and 1/2 page in tabloids thrice a weekper newspaper, magazine or other publications.

Bona fide candidates and registered political partiesrunning for nationally elective office are entitled tonot more than 120 mins of TV advertisement and 180mins of radio advertisement whether by purchase orby donation.

Bona fide candidates and registered political partiesrunning for locally elective office are entitled to notmore than 60 mins of TV advertisement and 90 minsof radio advertisement whether by purchase or bydonation.

Broadcast stations or entities are required to submitcopies of their broadcast logs and certificates of

performance to the COMELEC for the review andverification of the frequency, date, time andduration of advertisement broadcast for anycandidate or political party.

All mass media entities are required to furnish theCOMELEC with a copy of all contracts for advertising,promoting or opposing any political party or thecandidacy of any person for public office within 5days after its signing.

No franchise or permit to operate a radio or TVstation shall be granted or issued, suspended orcancelled during the election period.

Any mass media columnist, commentator,announcer, reporter, on-air correspondent orpersonality who is a candidate for any electivepublic office or is a campaign volunteer for oremployed or retained in any capacity by anycandidate or political party shall:(1) be deemed resigned, if so required by their

employer or(2) take a leave of absence from his/her work as

such during the campaign period

No movie, cinematograph or documentary shall bepublicly exhibited in a theater, television station orany public forum during the campaign period which:(1) portrays the life or biography of a candidate(2) is portrayed by an actor or media personality

who is himself a candidate. [Sec. 6, R.A. 9006]

6. Election Surveys

The measurement of opinions and perceptions of thevoters as regards a candidate's popularity,qualifications, platforms or a matter of publicdiscussion in relation to the election, includingvoters' preference for candidates or publiclydiscussed issues during the campaign period.

Surveys affecting national candidates shall not be




published 15 days before an election and surveysaffecting local candidates shall not be published 7days before an election.

Exit polls may only be taken subject to the followingrequirements:

(1) Pollsters shall not conduct their surveys within50m from the polling place, whether saidsurvey is taken in a home, dwelling place andother places

(2) Pollsters shall wear distinctive clothing(3) Pollsters shall inform the voters that they may

refuse to answer and(4) The result of the exit polls may be announced

after the closing of the polls on election dayand must clearly identify the total number ofrespondents, and the places where they weretaken. Said announcement shall state that thesame is unofficial and does not represent atrend. [Sec. 5, R.A. 9006]

7. Application for Rallies, Meetings and OtherPolitical Activity

(a) All applications for permits must immediately beposted in a conspicuous place in the city ormunicipal building, and the receipt thereofacknowledged in writing.

(b) Applications must be acted upon in writing bylocal authorities concerned within 3 days aftertheir filing. If not acted upon within saidperiod, deemed approved.

(c) The only justifiable ground for denial of theapplication is when a prior written applicationby any candidate or political party for the samepurpose has been approved.

(d) Denial of any application for said permit isappealable to the provincial election supervisoror to the COMELEC whose decision shall be

made within 48 hours and which shall be finaland executory. [Sec. 87, B.P. 881]

II. Prohibited Contributions

1. Definitions

Contribution: gift, donation, subscription, loan,advance or deposit of money or anything of value, ora contract, promise or agreement to contribute WON legally enforceable made for influencing the results of the elections excludes services rendered without

compensation by individuals volunteering theirtime in behalf of a candidate or political party

includes the use of facilities voluntarily donatedby other persons, the money value of which canbe assessed based on the rates prevailing in thearea. [Sec. 94, B.P. 881]

Expenditures: payment of money or anything ofvalue or a contract, promise or agreement to makean expenditure for the purpose of influencing the results of the

election includes the use of facilities personally owned

by the candidate, the money value of the use of

which can be assessed based on the ratesprevailing in the area. [Sec. 94, B.P. 881]

2. Prohibited Contributions

(1) From Public or private financial institutions.Unless:

(a) the financial institutions are legally inthe business of lending money

(b) the loan is made in accordance with

laws and regulations AND(c) the loan is made in the ordinary course

of business(2) Natural and juridical persons operating a public

utility or in possession of or exploiting anynatural resources of the nation

(3) Natural and juridical persons who hold contractsor sub-contracts to supply the government orany of its divisions, subdivisions orinstrumentalities, with goods or services or toperform construction or other works

(4) Grantees of franchises, incentives, exemptions,allocations or similar privileges or concessionsby the government or any of its divisions,

subdivisions or instrumentalities, includingGOCCs(5) Grantees, within 1 year prior to the date of the

election, of loans or other accommodations inexcess of P100,000 by the government or anyof its divisions, subdivisions orinstrumentalities including GOCCs

(6) Educational institutions which have receivedgrants of public funds amounting to no lessthan P100,000

(7) Officials or employees in the Civil Service, ormembers of the Armed Forces of thePhilippines

(8) Foreigners and foreign corporations, includingforeign governments. [Sec. 95 and 96, B.P.

881]

3. Prohibited Fund-raising Activities

The following are prohibited if held for raisingcampaign funds or for the support of any candidatefrom the start of the election period up to andincluding election day:

(1) Dances(2) Lotteries(3) Cockfights(4) Games(5) Boxing bouts(6) Bingo

(7) Beauty contests(8) Entertainments, or cinematographic,theatrical or other performances

For any person or organization, civic or religious,directly or indirectly, to solicit and/or accept fromany candidate or from his campaign manager, agentor representative, or any person acting in theirbehalf, any gift, food, transportation, contributionor donation in cash or in kind from the start of theelection period up to and including election day

EXCEPT: normal and customary religiousstipends, tithes, or collections on Sundaysand/or other designated collection days [Sec.




97, B.P. 881]

4. Limitations on Expenses

For Candidates(1) President and VP: P10 for every voter currently

registered(2) Other candidates: P3 for every voter currently

registered in the constituency where he filedhis certificate of candidacy

Candidates Without a Political Party: P5 for everyvoter

For Political Parties: P5 for every voter currentlyregistered in the constituency or constituencieswhere it has official candidates [Sec. 13, R.A. 7166, Act Providing for Synchronized National and LocalElections and Electoral Reforms]

5. Statement of Contributions and Expenses

Every candidate and treasurer of the political partyshall file:

(1) in duplicate with the COMELEC(2) the full, true and itemized statement of allcontributions and expenditures in connectionwith the election

(3) within 30 days after the day of the election

Effect of failure to file statement: No personelected to any public offices shall enter upon theduties of his office until he has filed the statementof contributions and expenditures

The same prohibition shall apply ifthe political party whichnominated the winning candidatefails to file the statements

6. Requisites of a Prohibited Donation

Who: By candidate, spouse, relative within 2nd civildegree of consanguinity or affinity, campaignmanager, agent or representative; treasurers, agentsor representatives of political party

When: During campaign period, day before and dayof the election

Directly or indirectly:(1) donation, contribution or gift in cash or in kind(2) undertake or contribute to the construction or

repair of roads, bridges, school buses,

puericulture centers, medical clinics andhospitals, churches or chapels cementpavements, or any structure for public use orfor the use of any religious or civicorganization.

Exceptions:(1) Normal and customary religious dues or

contributions(2) Periodic payments for legitimate scholarships

established and school contributions habituallymade before the prohibited period [Sec. 104,B.P. 881]

H. Board of CanvassersI. Composition of Board of CanvassersII. Prohibitions on BOCIII. Canvass by the BOCIV. Certificate of Canvass and Statement of VotesV. Proclamation

I. Composition of Board of Canvassers[Sec. 20, R.A. 6646]

Province City MunicipalityChairman Provincial

electionsupervisoror lawyerin theCOMELECregionaloffice

Cityelectionregistrar ora lawyer ofCOMELEC;

In citieswith morethan 1electionregistrar,COMELEC

shalldesignate

Electionregistrar orCOMELECrepresentative

ViceChairman

Provincialfiscal

City fiscal Municipaltreasurer

Member Provincialsuperintendent ofschools

Citysuperintendent ofschools

Most seniordistrictschoolsupervisoror in hisabsence, aprincipal ofthe schooldistrict orelementaryschool

In case of non-availability, absence, disqualificationdue to relationship, or incapacity for any cause ofany of the members, COMELEC may appoint thefollowing as substitutes, in the order named:

Province City MunicipalityChairman Ranking

lawyer oftheCOMELEC

Rankinglawyer oftheCOMELEC

Rankinglawyer oftheCOMELEC

ViceChairman

-Provincialauditor-Registrar

of Deeds-Clerk ofCourtnominatedby theExecutiveJudge ofthe RTC;-Any otheravailableappointiveprovincialofficial

-Cityauditor orequivalent;

-Registrarof Deeds;-Clerk ofCourtnominatedby theExecutiveJudge ofthe RTC;-Any otheravailableappointivecity official

-MunicipalAdministrator;

-MunicipalAssessor;-Clerk ofCourtnominatedby theExecutiveJudge of theMTC;-Any otheravailableappointivemunicipal




officialMember Same as

for Vice-Chairman

Same as forVice-Chairman

Same as forVice-Chairman

II. Prohibitions on BOC

(1) Chairman and members shall not be relatedwithin the 4th civil 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]

(2) No member or substitute member shall betransferred, assigned or detailed outside of hisofficial station, nor shall he leave said stationwithout prior authority of the COMELEC duringthe period beginning election day until theproclamation of the winning candidates. [Sec.223, B.P. 881]

(3) No member shall feign illness to be substitutedon election day until the proclamation of thewinning candidates. Feigning of illnessconstitutes an election offense. [Sec. 224, B.P.881]

III. Canvass by the BOC

Canvass - the process by which the results in theelection returns are tallied and totalled.

Certificates of canvass - official tabulations of votesaccomplished by district, municipal, city andprovincial canvassers based on the election returns,which are the results of the ballot count at theprecinct level.

The BOC shall canvass the votes byconsolidating the electronicallytransmitted results or the results

contained in the data storage devicesused in the printing of the electionreturns. [Sec. 20, R.A. 9369]

IV. Certificate of Canvass andStatement of Votes

(1) 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:

(a) COMELEC sitting as the National BOC forsenators and party-list representativesand

(b) Congress as the National BOC for thepresident and vice president, directedto the President of the Senate. [Sec. 20,R.A. 9369]

(2) The certificates of canvass transmittedelectronically and digitally signed shall beconsidered as official election results and shallbe used as the basis for the proclamation of awinning candidate. [Sec. 20, R.A. 9369]

(3) 30 copies shall be distributed in accordance toSec. 21, R.A. 9369.

National BOC for president and vice-president

Composition: The Senate and the House ofRepresentatives in joint public session.

Functions:(1) Upon receipt of the certificates of canvass, the

President of the Senate shall, not later than 30days after the day of the election, open all thecertificates in the presence of the Senate andthe House of Representatives in joint publicsession.

(2) Congress upon determination of the authenticityand the due execution thereof in the mannerprovided by law shall:

(3) canvass all the results for president and vice-president and

(4) proclaim the winning candidates. [Sec. 22, R.A.9369]

National BOC for Senators and Party-List

Representatives

Composition: The chairman and members of theCOMELEC sitting en banc

Function: It shall canvass the results byconsolidating the certificates of canvasselectronically transmitted. Thereafter, the nationalboard shall proclaim the winning candidates forsenators and party-list representatives. [Sec. 23,R.A. 9369]

V. Proclamation

Proclamation shall be after the canvass of electionreturns, in the absence of a perfected appeal to theCOMELEC, proclaim the candidates who obtained thehighest number of votes cast in the province, city,municipality or barangay, on the basis of thecertificates of canvass.

Failure to comply with this dutyconstitutes an election offense.[Sec. 231, B.P. 881]

When proclamation void:(1) When it is based on incomplete returns

[Castromayor v. Comelec (1995)] or(2) When there is yet no complete canvass. [Jamil

v. Comelec (1997)]

(3) A void proclamation is no proclamation at all,and the proclaimed candidate‘s assumptioninto office cannot deprive the COMELEC of itspower to annul the proclamation.

Partial proclamation: Notwithstanding pendency ofany pre-proclamation controversy, COMELEC maysummarily order proclamation of other winningcandidates whose election will not be affected bythe outcome of the controversy. [Sec. 21, R.A. 7166]

Election resulting in a tie: BOC, by resolution, upon5 days notice to all tied candidates, shall hold a




special public meeting at which the board shallproceed to the drawing of lots of tied candidatesand shall proclaim as elected the candidates whomay be favored by luck. [Sec. 240, B.P. 881]

There is a tie when:(1) 2 or more candidates receive an equal and

highest number of votes; or(2) 2 or more candidates are to be elected for the

same position and 2 or more candidates

received the same number of votes for theLAST PLACE in the number to be elected.

Proclamation of a lone candidate: Upon theexpiration of the deadline for the filing ofcertificates of candidacy in a special election called to fill a vacancy in an elective position other thanfor President and VP, when there is only 1 qualifiedcandidate, he shall be proclaimed elected withoutholding the special election upon certification by theCOMELEC that he is the only candidate for the officeand is therefore deemed elected. [Sec. 2, R.A.8295, Law on Proclamation of Solo Candidates]

I. Remedies and Jurisdiction inElection LawI. Petition Not to Give Due Course to Certificateof CandidacyII. Petition to Declare Failure of ElectionsIII. Pre-Proclamation ControversyIV. Election ProtestV. Quo Warranto

I. Petition Not to Give Due Course toCertificate of Candidacy

Cancellation of Certificate of Candidacy

1. Grounds(1) False material representation in the certificate

of candidacy;(2) If the certificate filed is a substitute Certificate

of Candidacy, when it is not a proper case ofsubstitution under Sec. 77 of BP 881.

2. Nature of Proceedings - Summary

3. Procedure

Who may file: any citizen of voting age, or a dulyregistered political party, organization, or coalition

of political parties

When filed: Within 5 days from the last day for thefiling of certificates of candidacy

Where filed: With the Law Department of theCOMELEC

II. Petition to Declare Failure of Elections

1. What Constitutes an Election

Plurality of votes sufficient for:(1) a choice conditioned on the plurality of valid

votes or(2) 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 result of theelection

(1) Election in any polling place has not beenheld on the date fixed due to forcemajeure, violence, terrorism, fraud, orother analogous causes.

(2) Election in any polling place had beensuspended before the hour fixed for theclosing of the voting due to force majeure, violence, terrorism, fraud, or otheranalogous causes.

(3) After the voting and during the preparationand transmission of the election returns or

in the custody or canvass thereof suchelection results in a failure to elect due to force majeure, violence, terrorism, fraud orother analogous causes. [Sec. 6, B.P. 881]

Causes for the declaration of failure of election mayoccur before or after the casting of votes or on theday of the election. [Sec. 4, R.A. 7166]

The postponement, declaration of failure of electionand the calling of special elections shall be decidedby the COMELEC sitting en banc by a majority voteof its members. [Sec. 4, R.A. 7166]

The COMELEC shall call for the holding or

continuation of the election not held, suspended orwhich resulted in a failure to elect:

(1) upon a verified petition by any interestedparty and

(2) after due notice and hearing [Sec. 6, B.P.881]

When: on a date reasonably close to the date of theelection not held, suspended or which resulted in afailure to elect BUT not later than 30 days after thecessation of the cause of such postponement orsuspension of the election or failure to elect. [Sec.6, B.P. 881]

3. 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 declarea failure of election by a majority vote of itsmembers.

Requisites: The following conditions must concur:(1) No voting has taken place in the precincts

concerned on the date fixed by law, or even if




there was voting, the election nonethelessresulted in a failure to elect; and

(2) The votes cast would affect the results of theelection.

Procedure:(1) Petitioner files verified petition with the Law

Department of the COMELEC.(2) Unless a shorter period is deemed necessary by

circumstances, within 24 hours, the Clerk of

Court concerned serves notices to allinterested parties, indicating therein the dateof hearing, through the fastest meansavailable.

(3) Unless a shorter period is deemed necessary bythe circumstances, within 2 days from receiptof the notice of hearing, any interested partymay file an opposition with the LawDepartment of the COMELEC.

(4) The COMELEC proceeds to hear the petition.The COMELEC may delegate the hearing of thecase and the reception of evidence to any ofits officials who are members of the PhilippineBar.

(5) The COMELEC then decides whether to grant ordeny the petition. This lies within theexclusive prerogative of the COMELEC.

III. Pre-Proclamation Controversy(asked in 1987, 1988, 1996)

Any question or matter pertaining to or affecting:(1) the proceedings of the board of canvassers, or(2) any matter raised under Sec. 233-236 of BP 881

(see below) in relation to the preparation,transmission, receipt, custody andappreciation of the election returns. [Sec.241, BP 881]

1. Jurisdiction

COMELEC has exclusive jurisdiction over pre-proclamation cases. It may order, motu proprio orupon written petition, the partial or total suspensionof the proclamation of any candidate-elect or annulpartially or totally any proclamation, if one has beenmade. [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 due noticeand hearing. This is because canvass andproclamation should be delayed as little as possible.

4. Issues That May Be Raised

This enumeration is restrictive and exclusive:(1) Illegal composition or proceedings of the board

of election canvassers;(2) Canvassed election returns are either:

(a) Incompelte(b) Contain material defects;(c) Appear to be tampered with or falsified;(d) Contain discrepancies in the same returns

or in other authentic copies;(3) The election returns were:

(a) Prepared under duress, threats, coercion,intimidation or

(b) Obviously manufactured or not authentic(4) Substituted or fraudulent returns in

controverted polling places were canvassed,the results of which materially affected thestanding of the aggrieved candidate(s).

(6) Manifest errors in the Certificates of Canvass orElection Returns [Sec. 15, R.A. 7166; Chavez v.COMELEC]

5. Issues That Cannot Be Raised

(1) Appreciation of ballots, as this is performed bythe BEI at the precinct level and is not part ofthe proceedings of the BOC [Sanchez v.Comelec, (1987)]

(2) Technical examination of the signatures and

thumb marks of voters [Matalam v. Comelec(1997)] (3) Prayer for re-opening of ballot boxes [Alfonso v.

Comelec, (1997)] (4) Padding of the Registry List of Voters of a

municipality, massive fraud and terrorism[Ututalum v. Comelec (1990)]

(5) Challenges directed against the Board ofElection Inspectors [Ututalum v. Comele(supra)]

(6) Fraud, terrorism and other illegal electoralpractices. These are properly within the officeof election contests over which electoraltribunals have sole, exclusive jurisdiction.[Loong v. Comelec, (1992)]

6. Procedure

a. Questions involving the composition or proceedings of the board of canvassers, or correction 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 the board, must be filedimmediately when the 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 the board, orimmediately at the point where theproceedings are or begin to be illegal.Otherwise, by participating in the proceedings,the petitioner is deemed to have acquiesced inthe composition of the BOC.

(2) If the petition is for correction, it must be filednot later than 5 days following the date ofproclamation, and must implead all candidateswho may be adversely affected thereby. [Sec.5(b), Rule 27, COMELEC Rules of Procedure]




b. Matters relating to the preparation,transmission, receipt, custody and appreciationof the election returns and certificates 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 steps aboveis fatal to the pre-proclamation petition.

7. Effect of Filing of Pre-ProclamationControversy

(1) The period to file an election contest shall besuspended during the pendency of the pre-proclamation contest in the COMELEC or theSupreme Court.

(2) The right of the prevailing party in the pre-

proclamation contest to the execution ofCOMELEC‘s decision does not bar the losingparty from filing an election contest.

(3) Despite the pendency of a pre-proclamationcontest, the COMELEC may order theproclamation of other winning candidateswhose election will not be affected by theoutcome of the controversy.

8. Effect of Proclamation of WinningCandidate

GENERAL RULE: A pre-proclamation controversyshall no longer be viable after the proclamation andassumption into office by the candidate whoseelection is contested. The remedy is an electionprotest before the proper forum.

EXCEPTIONS: The prevailing candidate may still beunseated even though he has been proclaimed andinstalled in office if:

(1) The opponent is adjudged the true winner of theelection by final judgment of court in anelection contest;

(2) The prevailing party is declared ineligible ordisqualified by final judgment of a court in aquo warranto case; or

(3) The incumbent is removed from office forcause.

9. Petition to Annul or Suspend Proclamation

The filing of the petition suspends the running of theperiod to file an election protest. [Alangdeo v.Comelec, (1989)]

No law provides for a reglementary period withinwhich to file a petition for the annulment of anelection if there is as yet no proclamation. [Loongv. Comelec (supra)]

IV. Election Protest

Election protest - is a contest between the defeatedand winning candidates on the ground of frauds orirregularities in the casting and counting of theballots, or in the preparation of the returns. It raisesthe question of who actually obtained the pluralityof the legal votes and therefore is entitled to holdthe office. [Samad v. Comelec, (1993)]

An election contest consists of either an electionprotest or a quo warranto which, although twodistinct remedies, would have one objective in view:to dislodge the winning candidate from office.

In an election protest, the protestee may be oustedand the protestant seated in the office vacated.

GENERAL RULE: As a general rule, the filing of anelection protest or a petition for quo warrantoprecludes the subsequent filing of a pre-proclamation controversy, or amounts to theabandonment of one earlier filed, thus depriving theCOMELEC of the authority to inquire into and pass

upon the title of the protestee or the validity of hisproclamation. The reason is that once thecompetent tribunal has acquired jurisdiction of anelection protest or a petition for quo warranto, allquestions relative thereto will have to be decided inthe case itself and not in another proceeding. Thisprocedure will prevent confusion and conflict ofauthority. Conformably, we have ruled in a numberof cases that after a proclamation has been made, apre-proclamation case before the COMELEC is nolonger viable. [Samad v. Comelec, (1993)]

EXCEPTIONS: The rule admits of exceptions,however, as where:

(1) the board of canvassers was improperlyconstituted;

(2) quo warranto was not the proper remedy;(3) what was filed was not really a petition for

quo warranto or an election protest but apetition to annul a proclamation;

(4) the filing of a quo warranto petition or anelection protest was expressly madewithout prejudice to the pre-proclamationcontroversy or was made ad cautelam; and

(5) the proclamation was null and void. [Samad v. Comelec, (1993)]

Who may file: A candidate who has duly filed acertificate of candidacy and has been voted for.

When: within ten days after the proclamation of theresults of the election.

Who has jurisdiction: (1) Comelec – over all contests relating to the

elections, returns and qualifications of allelective regional, provincial and cityofficials [Sec. 250. BP 881]

(2) RTC - over contests involving municipalofficials [Sec. 251. BP 881]




(3) MeTC or MTC – over election contestsinvolving barangay officials [Sec. 252. BP 881]

Effect of filing petition to annual or to suspend theproclamation. - The filing with the Commission of apetition to annual or to suspend the proclamation ofany candidate shall suspend the running of theperiod within which to file an election protest or quowarranto proceedings. [Sec. 248. BP 881]

V. Quo Warranto

A petition for quo warranto under the OmnibusElection Code raises in issue the disloyalty orineligibility of the winning candidate. It is aproceeding to unseat the respondent from office butnot necessarily to install the petitioner in his place.[Samad v. Comelec, (1993)]

In a quo warranto proceeding, the petitioner is notoccupying the position in dispute. Moreover, underthe Omnibus Election Code, quo warranto is properonly for the purpose of questioning the election of a

candidate on the ground of disloyalty or ineligibility.[Samad v. Comelec, (1993)]

It is a proceeding to unseat the ineligible personfrom office but not to install the protestant in hisplace. In this sense, it is strictly speaking, not acontest where the parties strive for supremacy.While the respondent may be unseated, thepetitioner will not be seated.

Who may file: Any voter

When: within ten days after the proclamation of theresults of the election.

Who has jurisdiction: (1) Comelec – over petitions for quo warranto

involving regional, provincial and cityofficials [Sec. 253. BP 881]

(2) RTC - over petitions for quo warrantoinvolving municipal officials [Sec. 253. BP 881]

(3) MeTC or MTC – over petitions for quowarranto involving barangay officials [Sec.253. BP 881]

J. Prosecution of Election OffensesI. Jurisdiction over Election Offenses

II. Preferential Disposition of Election OffensesIII. Election OffensesIV. Arrests in Connection with Election CampaignV. PrescriptionVI. Prohibited Acts under RA 9369

The COMELEC has the exclusive power to investigateand prosecute cases involving violations of electionlaws. [Sec. 2 (6), Art. IX-C, 1987 Const]

However, it may validly delegate the power to theProvincial Prosecutor or to the Ombudsman.In the event that the COMELEC fails to act on anycomplaint within 4 months from its filing, the

complainant may file the complaint with the fiscalor the Department of Justice, if warranted. [Sec.265, B.P. 881]

I. Jurisdiction over Election Offenses

RTCs have exclusive original jurisdiction to try anddecide any criminal actions or proceedings forviolation of election laws. [Sec. 268, B.P. 881]

II. Preferential Disposition of ElectionOffenses

(1) The investigating officer shall resolve the casewithin 5 days from submission.

(2) The courts shall give preference to electioncases over all other cases except petitions forwrit of habeas corpus.

III. Election Offenses

1. Registration

(1) Failure of the Board of Election Inspectors topost the list of voters in each precinct. [Sec.9, R.A. 7166] ;

(2) Change or alteration or transfer of a voter'sprecinct assignment in the permanent list ofvoters without the express written consent ofthe voter [Sec. 4, R.A. 8189]

2. Certificate of Candidacy

(1) Continued misrepresentation or holding out asa candidate of a disqualified candidate or one

declared by final and executory judgment tobe a nuisance candidate [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, or actually causing,inflicting or producing violence, injury,punishment, torture, damage, loss ordisadvantage to discourage any other person orpersons from 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 special policemen,special agents or the like during the campaignperiod [Sec. 261m, B.P. 881]

(2) Use of armored land, water or aircraft duringthe campaign period [Sec. 261r, B.P. 881]

(3) Unlawful electioneering [Sec. 261k, B.P. 881]




(4) Acting as bodyguards or security in the case of policemen and provincial guards during thecampaign period [Sec. 261t, B.P. 881]

(5) Removal, destruction, obliteration, ortampering of lawful election propaganda, orpreventing 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 a conspiracy to bribe voters is created when there is proofthat at least 1 voter in different precinctsrepresenting at least 20% of the total precinctsin any municipality, city or province has beenoffered, promised or given money, valuableconsideration or other expenditure by acandidate's relatives, leaders and/orsympathizers for the purpose of promoting the

election of such candidate. [Sec. 28, R.A.6646]

(3) Coercion of subordinates to vote for or againstany candidate [Sec. 261d, B.P. 881]

(4) Dismissal of employees, laborers, or tenants forrefusing or failing to vote for any candidate[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 after properverification and hearing by any member of theboard of election inspectors [Sec. 27b, R.A.6646]

A special election offense to beknown as electoral sabotage and thepenalty to be imposed shall be lifeimprisonment. [Sec. 42, RA 9369]

(2) Refusal to issue to duly accredited watchers thecertificate of votes cast and the announcementof the election, by any member of the board ofelection inspectors [Sec. 27c, R.A. 6646]

6. Canvassing

Any chairperson of the board of canvassers who failsto give notice of meeting to other members of theboard, candidate or political party as required [Sec.27e, R.A. 6646]

7. Acts of Government or Public Officers

(1) Appointment of new employees, creation of newpositions, promotion, or giving salary increaseswithin the election period [Sec. 261g, B.P. 881]

(2) Transfer of officers and employees in the civil

service within the election period without theprior approval of the COMELEC [Sec. 261h, B.P.881]

(3) Intervening of public officers and employees inthe 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 of publicfunds 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 during theelection period without prior approval of theCOMELEC [Sec. 261x, B.P. 881]

8. Coercion, Intimidation, Violence

(1) Coercion of election officials and employees

(2) Threats, intimidation, terrorism, use offraudulent 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 the prohibited

area [Sec. 261p, B.P. 881]

(5) Carrying firearms outside residence or place ofbusiness [Sec. 261q, B.P. 881]

(6) Organization or maintenance of reaction forces,strike forces, or similar forces during theelection 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 the COMELEC[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 day fixedby law for the registration of voters in thepolling place, or the day before the election oron election day [Sec. 261dd (1), B.P. 881]

(4) Opening booths or stalls within 30 meters of anypolling 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 the




election period [Sec. 261dd (4), B.P. 881] . Inaddition to the prescribed penalty, suchrefusal constitutes a ground for cancellation orrevocation of certificate of public convenienceor franchise.

(7) Discrimination in the sale of air time [Sec. 261dd (5), B.P. 881] In addition to the prescribedpenalty, such refusal constitutes a ground forcancellation or revocation of the franchise.

NOTE: Good faith is not a defense, as electionoffenses are generally mala prohibita.

10. Penalties

For individuals(1) Imprisonment of not less than 1 year but not

more than 6 years, without probation [Sec.264, B.P. 881]

(2) Disqualification to hold public office(3) Deprivation of the right of suffrage

For a Foreigner

(1) Imprisonment of not less than 1 year but notmore than 6 years (without probation);(2) Deportation after service of sentence

For a Political PartyPayment of a fine not less than P10,000 after acriminal conviction

Persons Required by Law to Keep Prisoners intheir Custody:For prisoners illegally released from any penitentiaryor jail during the prohibited period, where suchprisoners commit any act of intimidation, terrorismor interference in the election, prison mayor in itsmaximum period. [Sec. 264, B.P. 881]

IV. Arrests in Connection withElection Campaign

Only upon a warrant of arrest issued by a competentjudge after all the requirements of the Constitutionhave been strictly complied with

V. Prescription

5 years from the date of their commission. If thediscovery of the offense be made in an electioncontest proceeding, the period of prescription shall

commence on the date on which the judgment insuch proceedings becomes final and executory.[Sec. 267, B.P. 881]

VI. Prohibited Acts Under R.A. 9369

(1) Utilizing without authorization, tampering with,damaging, destroying or stealing:

(a) Official ballots, election returns, andcertificates of canvass of votes used inthe system; and

(b) Electronic devices or their components,peripherals or supplies used in the AES

such as counting machine, memorypack/diskette, memory pack receiverand computer set

(2) Interfering with, impeding, absconding forpurpose of gain, preventing the installation oruse of computer counting devices and theprocessing, storage, generation andtransmission 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, hardwareor equipment, whether classified ordeclassified

(4) Refusal of the citizens' arm to present forperusal its copy of election return to the boardof canvassers

(5) Presentation by the citizens' arm of tampered orspurious election returns

(6) Refusal or failure to provide the dominantmajority and dominant minority parties or thecitizens'' arm their copy of election returns and

(7) The failure to post the voters' list within thespecified time, duration and in the designatedlocation shall constitute an election offense onthe part the election officer concerned."

PENALTY(1) imprisonment of 8 years and one day to 12 years

without possibility of parole

(2) perpetual disqualification to hold public and any

non-elective public office and

(3) deprivation of the right of suffrage.

Exception: Those convicted of the crime of electoralsabotage, which includes acts or offenses committedin any of the following instances:

National elective office: When the tampering, increase and/or decrease

of votes perpetrated or the refusal to credit thecorrect votes or to deduct tampered votes

is/are committed in the election of a nationalelective office which is voted upon nationwideand

the tampering, increase and/ or decrease votesrefusal to credit the correct votes or to deducttampered votes, shall adversely affect theresults of the election to the said national officeto the extent that losing candidate/s is /aremade to appear the winner/s;

Regardless of the elective office involved, whenthe tampering, increase and/or decrease ofvotes committed or the refusal to credit thecorrect votes or to deduct tampered votesperpetrated




is accomplished in a single election documentor in the transposition of the figure / resultsfrom one election document to another and

involved in the said tampering increase and/ordecrease or refusal to credit correct votes ordeduct tampered votes exceed 5,000 votes, andthat the same adversely affects the true resultsof the election

Any and all other forms or tampering increase/s

and/ or decrease/s of votes perpetuated or in casesof refusal to credit the correct votes or deduct thetampered votes, where the total votes involvedexceed 10,000 votes

PENALTY - Any and all other persons or individualsdetermined to be in conspiracy or in connivance withthe members of the BEIs or BOCs involved, shall bemeted the same penalty of life imprisonment.




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Local Governments




LAYOUT TEAM 2012Layout Artists | AlyannaApacible • Noel Luciano • RMMeneses • Jenin Velasquez •

Mara Villegas • Naomi QuimpoLeslie Octaviano • Yas Refran •Cris BernardinoLayout Head| Graciello TimothReyes



LOCAL GOVERNMENTSPOLITICAL LAW REVIEWER

Local GovernmentsPOLITICAL LAW





A. Public CorporationsB. Municipal CorporationsC. Principles of Local AutonomyD. Powers of Local Government Units

(LGUs)

A. Public Corporations1. Concept2. Classifications

1. Concept

Distinguished from Government-Owned or Controlled Corporations (GOCCs)

As to purposeA municipal corporation in its strict sense is thebody politic constituted by the inhabitants of a city

or town for the purpose of local government thereof.It is the body politic established by law particularlyas an agency of the State to assist in the civilgovernment of the country chiefly to regulate thelocal and internal affairs of the city or town that isincorporated.

Non-municipal corporations, on the other hand, arepublic corporations created as agencies of the Statefor limited purposes to take charge merely of somepublic or state work other than communitygovernment. [National Waterworks & Sewerage Authority v. NWSA Consolidated Unions (1964)]

As to personality(The National Coconut Corporation) was given acorporate power separate and distinct from ourgovernment, for it was made subject to theprovisions of our Corporation Law in so far as itscorporate existence and the powers that it mayexercise are concerned. [Bacani v. National CoconutCorporation (1956)]

It is an independent agency of the governmentalthough it is placed, for administrative purposes,under the Department of Public Works andCommunications. It has continuous succession underits corporate name and may sue and be sued incourt. It has corporate powers to be exercised by its

board of directors; it has its own assets andliabilities; and it may charge rates for its services.[National Waterworks & Sewerage Authority v.NWSA Consolidated Unions (1964)]

The mere fact that the Government happens to be amajority stockholder does not make it a publiccorporation. [Bacani v. National CoconutCorporation (1956)]

By becoming a stockholder in the National CoalCompany, the Government divested itself of itssovereign character so far as respects the

transactions of the corporation. Unlike theGovernment, the corporation may be sued withoutits consent, and is subject to taxation. Yet theNational Coal Company remains an agency orinstrumentality of government. [Bacani v. NationalCoconut Corporation (1956)]

Nature and StatusDefinitionA Local Government Unit (LGU) is a political

subdivision of the State which is constituted by lawand possessed of substantial control over its ownaffairs. Remaining to be an intra sovereignsubdivision of a sovereign nation, but not intendedto be an imperium in imperio, the LGU isautonomous in the sense that it is given morepowers, authority, responsibilities and resources.[Alvarez vs Guingona (1996)]

―Local government‖ is interchangeable with―municipal corporation‖

2. Classifications

Municipal Corporation vs. Quasi-municipalcorporationA municipal corporation exists by virtue of, and isgoverned by, its charter. A quasi-municipalcorporation operates directly as an agency of thestate to help in the administration of publicfunctions. [Singco (1955)]

B. Municipal Corporations1. Elements2. Nature and Functions3. Requisites for Creation, Conversion, Division,Merger or Dissolution

LGC Sec. 14. Beginning of Corporate Existence

The election and qualification of(1) chief executive AND(2) majority of the members of the Sanggunian

UNLESS some other time is fixed therefore by thelaw or ordinance creating it.

Note: Art.14 applies when the law creating it isSILENT as to the beginning of its corporateexistence.

1. Elements

Elements of a Municipal Corporation(1) A LEGAL creation or incorporation(2) A CORPORATE NAME by which the artificial

or legal entity is known and in which allcorporate acts are done

(3) INHABITANTS constituting the populationwho are invested with the political andcorporate powers which are executedthrough duly constituted officers and agents

(4) A place or TERRITORY within which thelocal civil government and corporatefunctions are exercised.




2. Nature and Functions

Dual Nature

Every local government unit created or recognizedunder this Code is a body politic and corporate endowed with powers to be exercised by it inconformity with law. As such, it shall exercisepowers as a political subdivision of the NationalGovernment and as a corporate entity representing

the inhabitants of its territory. [Sec. 15, LGC ]

The obligations of the old City of Manila survives thecession of the Philippines to the U.S. because of thecorporate nature of the city. [Villas vs Manila(1921)]

As a body politic with governmental functions, theLGU has the duty to ensure the quality of theenvironment (Sec. 16, LGC). It cannot claimexemption from PD 158 which imposes the sameduty. [Republic vs Davao (2002)]

Sec. 15. Political and Corporate Nature of LGUsLocal government unit created or recognized underthis Code is a

(1) Body politic AND(2) Corporate endowed with powers to be

exercised by it in conformity with lawExercise of power (as a):

(1) Political subdivision of the nationalgovernment AND

(2) Corporate entity representing theinhabitants of its territory

ImplicationsA municipal corporation performs twin functions.Firstly, it serves as an instrumentality of the State incarrying out the functions of a government.

Secondly, it acts as an agency of the community inthe administration of local affairs. It is in the lattercharacter that it is a separate entity acting for itsown purposes and not a subdivision of the state.[Lidasan v COMELEC (1967)]

The holding of a town fiesta is a proprietaryfunction, though not for profit, for which amunicipality is liable for damages to 3rd persons excontractu or ex delicto. [Torio v Fontanilla (1978)]

Difference Between the Political Nature andCorporate Nature of LGUs

Political/Governmental Corporate/MunicipalPolitical subdivision ofnational government

Corporate entityrepresenting inhabitantsof its territory

Includes the legislative,judicial, public andpolitical

Includes those which areministerial, private andcorporate

LGU cannot be heldliable except:(1) If statute provides

otherwise(2) Art. 2189, Civil Code

Can be held liable excontractu or ex delicto

Political/Governmental Corporate/MunicipalExamples:(1) Regulations against

fire, disease(2) Preservation of

public peace(3) Maintenance of

municipal plaza(4) Establishment of

schools, postoffices, etc.

Examples:(1) Municipal

waterworks(2) Slaughterhouses(3) Markets(4) Stables(5) Bathing

establishments(6) Wharves(7) Fisheries(8) Maintenance of

parks, golf courses,cemeteries, airports

3. Requisites for Creation,Conversion, Division, Merger orDissolution

Creation/Conversion[Art. X, 1987 Consti]

a. General Provisions

No province, city, municipality, or barangay may becreated, divided, merged, abolished, or its boundarysubstantially 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 directly affected. [Sec. 10, LGC]

Local government units may:(1) group themselves,(2) consolidate or coordinate their efforts, services,

and resourcesfor purposes:

(1) commonly beneficial to them(2) in accordance with law. [Sec. 13, LGC]

The President shall provide for regional developmentcouncils or other similar bodies composed of localgovernment officials, regional heads of departmentsand other government offices, and representativesfrom non-governmental organizations within theregions:(1) for purposes of administrative decentralization(2) to strengthen the autonomy of the units therein

and(3) to accelerate the economic and social growth

and development of the units in the region.

[Sec. 14, LGC]

b. Specific Requirements

Metropolitan Political Subdivisions

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:(1) retain their basic autonomy and(2) be entitled to their own local executive and

legislative assemblies.




The jurisdiction of the metropolitan authority thatwill thereby be created shall be limited to basicservices requiring coordination. [Sec. 11, LGC]

Highly Urbanized Cities and Independent ComponentCities

Cities that are highly urbanized , as determined bylaw, and component cities whose charters prohibittheir voters from voting for provincial elective

officials, shall be independent of 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 electiveprovincial officials. [Sec.12, LGC]

Autonomous Regions

There shall be created autonomous regions in MuslimMindanao and in the Cordilleras consisting ofprovinces, cities, municipalities, and geographicalareas sharing common and distinctive historical and cultural heritage, economic and social structures,and other relevant characteristics within theframework of this Constitution and the nationalsovereignty as well as territorial integrity of theRepublic of the Philippines. [Sec. 15, LGC]

The President shall exercise general supervision overautonomous regions to ensure that laws arefaithfully executed. [Sec. 16, LGC]

All powers, functions, and responsibilities notgranted by this Constitution or by law to theautonomous regions shall be vested in the NationalGovernment. [Sec. 17, LGC]

The Congress shall enact an organic act for each

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 of government for the region consisting of theexecutive department and legislative assembly , bothof which shall be elective and representative of theconstituent political units.

The organic acts shall likewise provide for specialcourts with personal, family, and property lawjurisdiction consistent with the provisions of this

Constitution and national laws. [Sec.18, LGC]

c. Authority to Create Local GovernmentUnitsA local government unit may be created, divided, merged, abolished, or its

boundaries substantially altered either- by law enacted by Congress in the case of a

province, city, municipality, or any otherpolitical subdivision, OR

- by ordinance passed by the sangguniangpanlalawigan or sangguniang panlungsodconcerned in the case of a barangay located

within its territorial jurisdiction,subject to such limitations and requirementsprescribed in this Code. [Sec. 6, LGC]

The authority to create municipal corporations isessentially legislative in nature. [Pelaez v. Auditor General (1965)]

The enactment of a LGC is not a condition sine quanon for the creation of a municipality , and beforethe enactment of such code, the power remainsplenary except that the creation should be approvedby the people concerned in a plebiscite called forthe purpose. [Torralba v. Sibagat (1987)]

The SC held that sec. 19 of RA 9054 insofar as itgrants ARMM Regional Assembly the power to create provinces and cities is void. (Constitution allowsdelegation of creating municipalities and barangaysonly.) [Bai Sema v. COMELEC (2008)]

Creations under Sec. 68, Admin CodeThe alleged power of the President to createmunicipalities under Sec. 68 of the Admin Code

amounts to an undue delegation of legislative power.The authority to create municipal corporations isessentially legislative in nature. The power ofcontrol of the President over executive departments,bureaus or offices implies no more than theauthority to assume directly the functions thereof orto interfere in the exercise of discretion by itsofficials. It does not include the authority either toabolish or create such. [Pelaez v. Auditor General(1965)]

Effect if created under Sec 68, Admin Code: Themunicipality is non-existent. It cannot be a party toany civil action [Mun. of Kapalong v. Moya (1988)]

De Facto CorporationsDe facto municipal corporation: There is defect increation; legal existence has been recognized andacquiesced publicly and officially.

Requisites: (LACA)(1) valid law authorizing incorporation;(2) attempt in good faith to organize it;(3) colorable compliance with law; and(4) assumption of corporate powers.

There can be no color of authority in anunconstitutional statute. An unconstitutional actconfers no rights, imposes no duties, affords noprotection, and creates no office. However, even ifthe EO was invalid, it does not mean that the actsdone by the municipality of Balabagan in theexercise of its corporate powers are a nullity. This isbecause the existence of the EO is ‗an operative factwhich cannot justly be ignored.‘ [Malabanan v Benito (1969)]

The Municipality of Sinacban2 possesses legalpersonality. Where a municipality created as such by

2 Sinacban was created by EO 258 of then President ElpidioQuirino, pursuant to Sec. 68 of the Revised AdministrativeCode of 1917.




executive order is later impliedly recognized and itsacts are accorded legal validity, its creation can nolonger be questioned.

Sinacban has attained de jure status3 by virtue ofthe Ordinance appended to the 1987 Constitution,apportioning legislative districts throughout thecountry, which considered Sinacban part of theSecond District of Misamis Occidental. Above all,Sec. 442(d) of the LGC of 1991 must be deemed to

have cured any defect in the creation of Sinacban.

Since Sinacban had attained de facto status at thetime the 1987 Constitution took effect on February2, 1987, it is not subject to the plebisciterequirement. This requirement applies only to newmunicipalities created for the first time under theConstitution.

Attack Against Validity of IncorporationWhen the inquiry is focused on the legal existence ofa body politic, the action is reversed to the state ina proceeding for quo warranto or any other directproceeding. Collateral attacks shall not lie.

Proceeding must be: (RST)(1) Brought in the name of the Republic of the

Philippines(2) Commenced by the Sol Gen or the fiscal

when directed by the president(3) Timely raised [Municipality of San Narciso v

Mendez (1994)]

The municipality can still be considered to haveattained at least a status closely approximating thatof a de facto corporation despite the invalidity ofthe EO creating it. This is because the State itselfrecognized the continued existence of San Andreswhen it classified it as a 5th class municipality. And,

more importantly, Sec. 442(d) of the LGC curedwhatever defect there was in its creation.[Municipality of San Narciso v. Mendez]

Municipal Corporation by Prescription Existence is presumed where the community hasclaimed and exercised corporate functions with theknowledge and acquiescence of the legislature, andwithout interruption or objection for a period longenough to afford title by prescription. [Martin,Public Corporations (1977)]

The municipality was created under a void law (Sec.68, Admin Code). But it should be considered a dejure personality because it existed 1 year before thePelaez case, and various governmental acts indicatethe State‘s recognition of its existence. [Mun. of Candijay v. CA (1995)]

3 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 andoperate as such. Existing municipal districts organizedpursuant to presidential issuances or executive orders andwhich have their respective set of elective municipalofficials holding office at the time of the effectivity of thisCode shall henceforth be considered as regularmunicipalities.

d. Requirements(1) In accordance with the criteria established

in the LGC(2) Majority of the votes cast in a plebiscite in

the political units directly affected.

Purpose of plebiscite: to prevent gerrymandering(i.e. the practice of creating legislative districts tofavor a particular candidate or party) and creationor abolition of units for purely political purposes.

Criteria [Sec. 7, LGC] As a general rule, the creation of a local governmentunit or its conversion from one level to another levelshall be based on verifiable indicators of viabilityand projected capacity to provide services, to wit:(IPL)

(1) Income. - must be sufficient, based onacceptable standards, to provide for allessential government facilities and servicesand special functions commensurate withthe size of its population.

(2) Population. - total number of inhabitants

within the territorial jurisdiction of thelocal government unit concerned.(3) Land Area. - must be:

Contiguous, unless it comprises two ormore islands OR is separated by a LGUindependent of the others;

Properly identified by metes andbounds with technical descriptions; and

Sufficient to provide for such basicservices and facilities to meet therequirements of its populace.

Compliance attested to by:(1) Department of Finance (DOF)(2) National Statistics Office (NSO)

(3) Lands Management Bureau (LMB) of theDepartment of Environment and NaturalResources (DENR).

IllustrationsThe requirement on metes and bounds was meantmerely as a tool in the establishment of LGUs. Solong as the territorial jurisdiction of a city may bereasonably ascertained , the intent behind the law(i.e., the determination of the territorial jurisdictionover which governmental powers may be exercised)has been sufficiently served. A cadastral typedescription is not necessary. [Mariano v. COMELEC(1995)]

NOTES: 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 Makatiascertainable (subject, of course, to theresult of the unsettled 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) form part of theincome of LGUs. The funds generated from localtaxes, IRAs and national wealth utilization proceedsaccrue to the general fund of the LGU and are used

to finance its operations subject to specified modesof spending the same as provided for in the LGC andits implementing rules and regulations.

As such, for purposes of budget preparation, whichbudget should reflect the estimates of the income ofthe LGU, among others, the IRAs and the share inthe national wealth utilization proceeds areconsidered items of income. [Alvarez v. Guingona(1996)]

NOTES:For provinces and cities, the income requirementmust be satisfied; and EITHER population OR

territory.

In the creation of barangays, there is no minimumrequirement for area and income.

As to the income requirement, average annualincome shall include the income accruing to thegeneral fund, exclusive of special funds, transfers,and non-recurring income.

Plebiscite

No creation, division, merger, abolition, orsubstantial alteration of boundaries of local

government units shall take effect unless there is: (1) Law or ordinance(2) Approved by a majority of the votes cast in a

plebiscite called for the purpose in the politicalunit or units directly affected.

(3) Said plebiscite shall be conducted by thecommission on elections (COMELEC) within 120days from the date of effectivity of the law orordinance effecting such action, unless said lawor ordinance fixes another date. [Sec. 10, LGC]

IllustrationsWhen the law states that the plebiscite shall beconducted ―in the political units directlyaffected‖, it means that the residents of the

political entity who would be economicallydislocated by the separation of a portion thereofhave the right to vote in said plebiscite. What iscontemplated by the phrase ―political units directlyaffected‖ is the plurality of political units whichwould participate in the plebiscite. [Padilla v.COMELEC (1992)]

The downgrading of Santiago City from anindependent component city to a component cityfalls within the meaning of creation, division,merger, abolition, or substantial alteration ofboundaries; hence, ratification in a plebiscite is

necessary. There is material change in the politicaland economic rights of the LGUs directly affected aswell as the budget preparation, which budget shouldreflect the estimates of people therein. It istherefore but reasonable to require the consent ofthe people to be affected.

Effects of downgrading: (ART) (1) the city mayor will be placed under the

Administrative supervision of the governor;

(2) resolutions and ordinances will have to beR eviewed by the provincial board;

(3) Taxes will have to be shared with theprovince. [Miranda v. Aguirre (1999)]

The creation of a separate congressional district ofMandaluyong is not a subject separate and distinctfrom the subject of its conversion into a highly-urbanized city but is a natural and logicalconsequence of its conversion…The Court found noneed for the people of San Juan to participate in theplebiscite. They had nothing to do with the changeof status of neighboring Madaluyong. [Tobias v. Abalos (1994)]

Beginning of Corporate Existence

When a new local government unit is created, itscorporate existence shall commence upon the election and

qualification of its chief executive and amajority of the members of its sanggunian,

unless some other time is fixed therefor by thelaw or ordinance creating it. [Sec. 14, LGC]

Summary: Creation of Specific LGUs4 See Annex A.

Division and Merger; Abolition

Division and MergerDivision and merger of existing local governmentunits shall comply with the same requirementsherein prescribed for their creation: Provided, however, That such division shall not

reduce the income, population, or land area ofthe local government unit or units concerned toless than the minimum requirements prescribedin this Code:

Provided, further, That the income classificationof the original local government unit or unitsshall not fall below its current classificationprior to such division.

The income classification of local government unitsshall be updated within six (6) months from theeffectivity of this Code to reflect the changes intheir financial position resulting from the increasedrevenues as provided herein. [Sec. 8, LGC]

Effects of Merger (1) Legal existence of LGU to be annexed is

dissolved

4 For creation of specific LGUs, please check LGC 385‐386,441‐442, 449‐450, 460‐461




(2) Laws and ordinance of the annexing LGUprevails

(3) The right of office in the annexed LGU isterminated

(4) Title to property is acquired by theannexing LGU

(5) Debts are assumed by the annexing LGU[Martin, supra]

Effects of division

(1) The legal existence of the originalmunicipality is extinguished

(2) Property, rights and powers are acquired bythe dividing LGUs [Martin, supra]

AbolitionA local government unit may be abolished: when its income, population, or land area has

been irreversibly reduced to less than theminimum standards prescribed for its creationunder Book III of this Code, as certified by thenational agencies mentioned in Section 7 hereofto Congress or to the sangguniang concerned, asthe case may be.

The law or ordinance abolishing a local governmentunit shall specify the province, city, municipality, orbarangay with which the local government unitsought to be abolished will be incorporated ormerged. [Sec. 9, LGC]

When there is no dissolution (1) Non-user or surrender of charter(2) Failure to elect municipal officers(3) Change of sovereignty(4) Change of name

C. Principles of Local Autonomy

1. State Policy, Principles of Decentralization2. Local Autonomy3. Decentralization4. Devolution

1. State Policy, Principles of Decentralization

Art. X, 1987 Constitution

Sec. 2. The territorial and political subdivisions shallenjoy local autonomy.

The Congress shall enact a local government code

which shall(1) provide for a more responsive and accountablelocal government structure instituted through asystem of decentralization with effectivemechanisms of recall, initiative, andreferendum,

(2) allocate among the different local governmentunits their powers, responsibilities, andresources,

(3) and provide for the qualifications, election,appointment and removal, term, salaries,powers and functions and duties of localofficials,

(4) and all other matters relating to theorganization and operation of the local units. [Sec. 3, LGC]

The President of the Philippines shall exercisegeneral supervision over local governments.

Provinces with respect to component cities andmunicipalities, and cities and municipalities with

respect to component barangays shall ensure thatthe acts of their component units are within thescope of their prescribed powers and functions. [Sec.4, LGC]

Each LGU shall have the power to create its ownsources of revenues and to levy taxes, fees andcharges,(1) subject to such guidelines and limitations as the

Congress may provide,(2) consistent with the basic policy of local

autonomy.Such taxes, fees, and charges shall accrueexclusively to the local governments. [Sec. 5, LGC]

Local Government Code (RA 7160) It is likewise the policy of the State to require allnational agencies and offices to conduct periodicconsultations with:(1) appropriate local government units,(2) nongovernmental and people's organizations,(3) and other concerned sectors of the community

before any project or program is implementedin their respective jurisdictions. [Sec. 2(c), LGC]

2. Local Autonomy

The principle of local autonomy under the 1987

Constitution simply means decentralization(discussed below). [Basco vs PAGCOR (1991)]

IllustrationsThe CSC cannot declare the provision ―uponrecommendation of the local chief executiveconcerned‖ as merely directory. Such provision is inconsonance with local autonomy. [San Juan vs CSC(1991)]

An A.O. may not compel LGUs to reduce their totalexpenditures. Supervising officials may not lay downor modify the rules. These rules were made infurtherance of local autonomy. [Pimentel vs Aguirre(2000)]

HOWEVER, the Constitution did not intend, for thesake of local autonomy, to deprive the legislature ofall authority over LGUs, in particular, concerningdiscipline. [Ganzon vs CA (1991)]

3. Decentralization

NOTE: Decentralization is a means to achieve localautonomy.

Autonomy is either (1) decentralization ofadministration or (2) decentralization of power.




There is decentralization of administration whenthe central government delegates administrative powers to political subdivisions in order to broadenthe base of government power .

Purpose: to relieve the central government of theburden of managing local affairs and enable it toconcentrate on national concerns.

The President exercises "general supervision" over

them, but only to "ensure that local affairs areadministered according to law." He has no controlover their acts in the sense that he can substitutetheir judgments with his own. [Limbona v. Mangelin(1989)]

Cf. Decentralization of power is the abdication of political power in favor of LGUs declared to beautonomous. There is self-immolation whereautonomous government is accountable, not to thecentral government, but to its constituents. (Note:not allowed by our Constitution.)

Sec. 1 of AO 372 (Adoption of Economy Measures in

Government for FY 1998), insofar as it ―directs‖LGUs to reduce expenditures by at least 25%, is avalid exercise of the President‘s power of generalsupervision over LGUs as it is advisory only.Supervisory power, when contrasted with control, isthe power of mere oversight over an inferior body ;it does not include any restraining authority oversuch body. [Pimentel v. Aguirre, supra]

4. Devolution (asked in 1999)

Refers to the act by which the national governmentconfers power and authority upon the various localgovernment units to perform specific functions and

responsibilities [Sec. 17, LGC] ; the transfer of powerand authority from the National Government to LGUsto enable them to perform specific functions andresponsibilities. [Art. 24, IRR of the LGC]

D. Powers of Local GovernmentUnits (LGUs)1. Police Power (General Welfare Clause)2. Eminent Domain3. Taxing Power4. Closure and Opening of Roads5. Legislative Power6. Corporate Powers7. Liability of LGUs

8. Settlement of Boundary Disputes9. Succession of Elective Officials10. Discipline of Local Officials11. Recall

Powers in General

Sources of Powers of LGUs(1) 1987 Consti., Sec. 25, Art. II; Sec. 5-7, Art.

X(2) Statutes, e.g. LGC(3) Charter (particularly of cities)

(4) Doctrine of the right of self-government,but applies only in States which adhere tothe doctrine

Classification of Powers of LGUs(1) Express, Implied, Inherent(2) Public or Governmental, Private or

Proprietary(3) Intramural, Extramural(4) Mandatory, Directory; Ministerial,

Discretionary

Execution of PowersWhere statute prescribes the manner of exercise,the procedure must be followed.

Where statute is silent, LGUs have discretion toselect reasonable means and methods of exercise.

Power to generate and apply resourcesLocal government units shall have the power andauthority to:

(1) Generate and apply resources(2) Establish an organization responsible for

implementation of development plans,program objectives, and priorities(3) Own sources of revenues (Sec.5, Art. X,

Constitution; Sec.18 LGC) which include: (a) Power to create own sources(b) Levy taxes, fees and charges

Shall accrue exclusively for theirown use and disposition

Limitation: guidelines Congressmay provide

(c) Just share in national taxes (Sec.6,Art. X, Constitution; Sec.18 LGC) Determined by law Automatically and directly

released

(d) Equitable share in utilization anddevelopment of national wealth (Sec.7,Art. X, Constitution; Sec.18 LGC) Within respective territorial

jurisdictions In the manner provided by law Sharing with inhabitants by way of

direct benefits(e) Acquire, develop, lease, encumber,

alienate, or otherwise dispose ofproperty (Sec.18 LGC) Real or personal property Made in a proprietary capacity

(f) Apply resources and assets (Sec.18LGC) Purpose: productive, development,

or welfare purposes In the exercise of their

governmental or proprietarypowers and functions [Sec.18,LGC]

1. Police Power (General WelfareClause)

Preservation of peace and order within respectiveregions [Sec.21, Art. X, Constitution]




(1) Responsibilities of local police agencies(2) Local police shall be organized, maintained,

supervised and utilized in accordance withapplicable laws.

Defense and security of regions [Sec.21, Art. X,Constitution]

(1) Responsibility of National Government

General Welfare Clause [Sec.16 LGC]

(1) Powers expressly granted(2) Powers necessarily implied(3) Powers necessary, appropriate or incidental

for efficient and effective governance(4) Powers essential to the promotion of

general welfare(5) Shall ensure and support:

(a) Preservation and enrichment of culture(b) Promotion of health and safety(c) Enhancement of the right of the people

to a balance ecology(d) Development of self reliant scientific

and technological capabilities(e) Improvement of public morals

(f) Economic prosperity and social justice(g) Promotion of full employment amongresidents

(h) Maintenance of peace and order(i) Preservation of the comfort and

convenience of inhabitants

NatureThe police power of a municipal corporation extendsto all the great public needs, and, in a broad senseincludes all legislation and almost every function ofthe municipal government. Public purpose is notunconstitutional merely because it incidentallybenefits a limited number of persons. The drift istowards social welfare legislation geared towards

state policies to provide adequate social services,the promotion of general welfare and social justice[Binay v Domingo (1991)]

To constitute ―public use‖: The public in general should have equal or

common rights to use the land or facilityinvolved on the same terms

The number of users is not the yardstick indetermining whether property is properlyreserved for public use or public benefit[Republic v. Gonzales]

2 Branches of the GWCThe General Welfare Clause has 2 branches:

(1) the general legislative power whichauthorizes municipal councils to enactordinances and make regulations notrepugnant to law as may be necessary tocarry into effect and discharge the powersand duties conferred upon it by law;

(2) The police power, which authorizes themunicipality to enact ordinances as may beproper and necessary for the health andsafety, prosperity, morals, peace, goodorder, comfort and convenience of themunicipality and its inhabitants, and for theprotection of their property.

Ordinances imposing the licenses and permits for anybusiness establishments, for purposes of regulationenacted by the municipal council of Makati, fallsunder the 1st branch. [Rural Bank of Makati, Inc v Municipality of Makati (2004)]

Limitations (1) The General Welfare Clause cannot be used

to justify an act that is not specifically

authorized by law.(2) Powers of the LGUs under the general

welfare clause [Sec.16, LGC] (a) Powers expressly granted to the LGU(b) Power necessarily implied therefrom(c) 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)]:(a) Not contrary to the Constitution and/or

statute(b) Not unfair or oppressive(c) Must not be partial or discriminatory

(d) Not prohibit but may regulate trade(e) General and consistent with publicpolicy

(f) Not unreasonable

Illustrations: Police Power Applies A municipal ordinance prescribing the

zonification and classification ofmerchandise and foodstuff sold in thepublic market [Eboňa v Municipality of Daet(1950)]

A proclamation reserving parcels of the publicdomain for street widening and parkingspace purposes [Republic v Gonzales]

Condemnation and demolition of buildingsfound to be in a dangerous or ruinouscondition within the authority provided forby municipal 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 vsCA (1994)]

Demolition of stalls causing traffic anddeteriorated sanitation [Villanueva vsCastaneda (1987)]




Deny an application for permit or avoid theinjury to the health of residents.[Technology Developers 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 the

neighbourhood [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 a groundto revoke the mayor‘s permit. The GeneralWelfare 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 tochildren between 7-12 years of age shouldbe at half price. The said ordinance wasdeclared void. The theater operators aremerely conducting their legitimatebusiness. There is nothing immoral or

injurious in charging the same price forboth children and adults. In fact, no personis under compulsion to purchase a ticket.[Balacuit v CFI (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 ofeffectively regulating and monitoringactivities in the lake region and is in thenature of police power. [Laguna LakeDevelopment Authority v. CA (1995)]

2. Eminent Domain [Sec. 19, LGC]

Eminent Domain -- It is the ultimate right of thesovereign power to appropriate not only public butprivate property of citizens within the territorialsovereignty to public purpose [Charles River Bridgevs. Warren Bridge, (1837)]

Requisites for a Valid Exercise of Eminent Domain (COP-JO)

(1) Through the Chief Executive of LGU(2) Acting pursuant to an ordinance (3) For the purposes of:

Public use or welfare For the benefit or the poor and the

landless(4) Payment of just compensation

Amount determined by proper court Based on fair market value at the time

of the taking(5) Valid and definite offer made

Right by the State to immediately take possession:(1) Upon filing of expropriation proceedings(2) Upon deposit with proper court of at least 15%

of the fair market value of the property

Offer to buy private property for public use orpurpose shall be in WRITING. It shall specify theproperty sought to be acquired, the reasons for theacquisition, and the price offered.

If the owner‘s accept the offer in its entirety, acontract of sale shall be executed and paymentmade.

If the owner/s are willing to sell their property but

at a price higher than that offered to them, the localchief executive shall call them to a conference forthe purpose of reaching an agreement on the sellingprice. The chairman of the appropriation or financecommittee of the Sanggunian, or in his absence, anymember of the Sanggunian duly chosen as itsrepresentative, shall participate in the conference.When an agreement is reached by the parties, acontract of sale shall be drawn and executed.

The contract of sale shall be supported by thefollowing documents:

(1) Resolution of the Sanggunian authorizingthe local chief executive to enter into acontract of sale. The resolution shallspecify the terms and conditions to beembodied in the contract.

(2) Ordinance appropriating the amountspecified in the contract, and

(3) 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 the propertyinvolved. [Article 35 IRR of LGC]

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 ataking without 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 the economicrelief of a few families devoid of any otherpublic advantage [Manila vs Arellano(1950)]

Eminent domain requires an ordinance, not

just a resolution. Res judicata does notapply to expropriation cases [Paranaque vsVM Realty (1998)]

Just compensation shall be determined at thetime of taking, NOT at the time of filingcomplaint Although the general rule indetermining just compensation in eminentdomain is the value of the property as ofthe date 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 expropriation

proceedings. 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 LGURequisites:

(1) Filing of complaint for expropriation

sufficient in form and substance(2) 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 forimmediate entry, the issuance of a writ of possessionbecomes ministerial. No hearing is required for theissuance of the writ. The LGC did not put a timelimit as to when a LGU may immediately takepossession of the property. As long as theexpropriation proceedings have been commencedand the deposit made, the LGU cannot be barredfrom praying for the issuance of writ of possession.[City of Iloilo v Legaspi (2004)]

Socialized HousingThe UDHA and the Expropriation by the LGUs i.e.Sec.9 of the Urban Land and Housing Act, whichspeaks of PRIORITIES in acquisition) should be read inconnection with Sec.10 (MODES of acquisition).

If the land sought to be expropriated is located inurban areas and fall under the UDHA, the LGU mustallege compliance with Secs. 9 and 10 for their suitto prosper. Otherwise, it would be premature.

JurisprudenceUnder the Urban Land and Housing Act, there is apriority in expropriation of which the properties ofthe government or any of its subdivision rank numberone and privately owned properties ranked last.Also, the said act provides that expropriation shouldbe the last alternative, giving way to other modes ofacquisition like community mortgage and swapping.Otherwise it would be deprivation of property.[Filstream International Inc v CA (1998)]

The UDHA introduced a limitation on the size of theland sought to be expropriated for socializedhousing. It exempted ―small property owners‖. Theelements of small property owners are:

(1) Those owners of real property whichconsists of residential lands with an area ofnot more than 300 sq. meters in highlyurbanized cities (800 in other urban cities);and

(2) They do not own real property other thanthe same. [City of Mandaluyong v Aguilar (2001)]

3. Taxing Power [Sec. 18, LGC]

Sources of LGU funds: (O-TIU)(1) Own sources of revenues(2) 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(Internal Revenue Allotments)

(4) Equitable share in the proceeds from theutilization and development of the nationalwealth and resources within their

respective territorial jurisdictions includingsharing the same with the inhabitants byway of direct benefits

Fundamental principles governing the exercise of the taxing and other revenue-raising powers of LGUs [Sec. 130, LGC] (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 economic

policy, or in restraint of trade;(3) The collection of local taxes, fees, charges

and other imposition shall in no case beleft to 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, evolvea progressive system of taxation.

Common Limitations on the Taxing Powers of LGUs[Sec. 133, LGC]




(1) Income tax (except when levied on banksand financial institutions)

(2) Documentary stamp tax(3) Estate tax(4) 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

jurisdiction of local government units in theguise of charges for wharfage, tolls forbridges or otherwise, or other taxes, fees orcharges in any form whatsoever upon suchgoods or merchandise

(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 taxes(9) Percentage taxes or VAT

(10) Taxes on the gross receipts oftransportation contractors and personsengaged in the transportation of passengersor freight, and common 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 duly

registered under RA 6810 and theCooperative Code

(15) Taxes, fees, or charges of any kind on theNational Government, its agencies andinstrumentalities

Fundamental principles governing the financialaffairs, transactions and operations of LGUs [Sec.305, LGC]

(1) No money shall be paid out of the localtreasury except in pursuance of anappropriations ordinance or law;

(2) Local government funds and monies shall bespent solely for public purposes;

(3) Local revenue is generated only fromsources expressly authorized by law orordinance, and collection thereof shall atall times be acknowledged properly;

(4) All monies officially received by a localgovernment officer in any capacity or onany occasion 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 thepurpose for which the trust was created orthe funds received;

(6) Every officer of the LGU whose dutiespermit or require the possession or custody

of 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 approved

local development plans;(9) LGUs shall ensure that their respective

budgets 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 theirrespective local development plans areconsidered in the formulation of budgets ofnational line agencies or offices;

(11) Fiscal responsibility shall be shared by all

those 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

JurisprudenceSec. 234 withdrew all exemptions from real propertytaxes, even GOCCs when the beneficial use of theproperty has been granted to a taxable person forconsideration or otherwise. MCIAA is a GOCC and aninstrumentality, therefore, RPT exemption grantedunder its charter is withdrawn [MCIAA vs Marcos(1997)]

Tax exemption of property owned by the Republicrefers to properties owned by the Government andby its agencies which do not have separate anddistinct personalities (unincorporated entities). Theproperties of NDC belong to the Government. [NDCvs Cebu, (1992)]

LGUs, in addition to administrative autonomy, alsoenjoy fiscal autonomy. LGUs have the power tocreate their own sources and revenue, in addition totheir equitable share in the national taxes as well asthe power to allocate resources in accordance withtheir own priorities. A basic feature of local fiscalautonomy is the automatic release of the shares ofthe LGUs in the national internal revenue. This ismandated by no less than the constitution. Anyretention is prohibited. [Pimentel v Aguirre (2000)]

4. Closure and Opening of Roads [Sec.21, LGC]

What roads are subject, those within jurisdictionof LGU

(1) Local road(2) Alley(3) Park(4) Square




Permanently close or open(1) Ordinance: Vote of at least 2/3 of all

members of the Sanggunian(2) When necessary, an adequate substitute for

the public facility should be provided(3) Make provision for public safety(4) If permanently withdrawn from public use(5) May be used or conveyed for any purpose

for which other real property belonging in

LGU may be lawfully used or conveyed(6) Freedom park: must have provision for

relocation to new site

Temporary close or open(1) Ordinance(2) May be done:

During actual emergency Fiesta celebrations Public rallies Agricultural or industrial fairs Undertaking of public works and

highways, telecommunications, andwaterworks projects

(3) Duration specified in written order by localchief executive(4) If for athletic, cultural, or civic activities:

must be officially sponsored, recognized, orapproved by LGU.

Temporary closure and regulation of any localstreet, road, thoroughfare, or any other publicplace

By any city, municipality, or barangay Where shopping malls, Sunday, flea or night

markets, or shopping areas may beestablished

Where goods, merchandise, foodstuffs,commodities, or articles of commerce may

be sold

IllustrationsA public street is property for public use hence,outside the commerce of man. It may not be thesubject of lease or other contract. Such leases arenull and void for being contrary to law. The right ofthe public to use the city street may not bebargained away through contract. The authorizationgiven for the use of the city street as a vending areafor stallholders who were granted licenses by theCity Government contravenes the general law thatreserves city streets and roads for public use. It maynot infringe upon the vested right of the public touse city streets for the purpose they were intendedto serve. [Dacanay vs Asistio (1992)]

The provincial council has the authority todetermine whether or not a certain property (in thiscase a provincial road) is still necessary for publicuse [Cabrera vs CA (1991)]

The power of the LGU to enact zoning ordinances forthe general welfare prevails over the deed ofrestrictions. [Sangalang vs IAC(1989)]

The closure of roads under police power is noteminent domain. No grant of damages is awarded.[Cabrera vs CA (1991)]

Effect: The determination of the location of thecamino vecinal through an ordinance will defeat thetestimonies of witnesses as to the location of saidpassageway. [Pilapil vs CA (1992)]

The MMDA does not have police power, but the LGUs

do. There should have been an ordinance by the LGUto effect an opening of roads. [MMDA vs Bel Air (2000)]

5. Legislative Power [Secs. 48-59,LGC]

Exercised by:(1) Sangguniang panlalawigan for the province(2) Sangguniang panlungsod for the city(3) Sangguniang bayan for the municipality(4) Sangguniang barangay for the barangay

[Sec. 48, LGC]

Presided by:(1) 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)]

(2) The incumbent local chief executive actingas the chief executive may not preside overthe sessions of the Sanggunian. Why? Toensure better delivery of public servicesand provide a system of checks andbalances between the executive andlegislative. [Gamboa vs Aguirre, supra]

In case of inability of the above: members present

and constituting a quorum shall elect from amongthemselves a temporary presiding officer who shallcertify within 10 days from the passage of theordinances enacted and resolutions adopted by thesanggunian in the session over which he temporarilypresided [Sec. 49, LGC]

Internal Rules of Procedure Adopted/update on the 1st regular session

following election of its members- within 90days

Provides for:- Organization of the Sanggunian and the

election of its officers- Standing Committees

- Creation (Including the committees

on appropriations, women andfamily, human rights, youth andsports development, environmentalprotection, and cooperatives; thegeneral jurisdiction of eachcommittee

- Election of the chairman andmembers of each committee

Order and calendar of business for eachsession

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, suspensionfor not more than 60 days or expulsion

- Suspension or expulsion: requires

concurrence of at least 2/3 vote ofall Sanggunian members

- A member convicted by finaljudgment to imprisonment of atleast 1 year for any crime involvingmoral turpitude shall beautomatically expelled from theSanggunian

- Other rules as the Sanggunian mayadopt [Sec. 50, LGC]

QuorumMajority of all members of the Sanggunian who have

been elected and qualifiedIf a question of quorum is raised: the presidingofficer shall immediately proceed to call the roll ofthe members and announce the results.

If there is NO quorum:(1) The presiding officer may declare a recess

until such time as a quorum is constitutedOR a majority of the members present mayadjourn from day to day and may compelthe immediate attendance of any memberabsent without justifiable cause byarresting the absent member and presenthim at the session

(2) No business shall be transacted [Sec. 53,

LGC]

SessionsRegular sessions: fixed by resolution on 1st day of thesession immediately following the election of itsmembers

Minimum numbers of regular sessions: once aweek (panlalawigan, panlungsod, bayan)and twice a month for the SangguniangBarangay

Special session: may be called by the local chiefexecutive or by a majority of the members of theSanggunian-cause: when public interest demands

Written notice: served personally at themember‘s usual place of residence at least24 hours before the session

Unless otherwise concurred in by 2/3 vote ofthe Sangguniang members present, therebeing a quorum, no other matters may beconsidered except those stated in thenotice

Sessions are open to the public, UNLESS a closed-door session is ordered by:

(1) an affirmative vote of a majority of themembers present (there being a quorum)

(2) In the public interest or for reasons ofsecrecy, decency or morality

No 2 sessions may be held in a single day.

Each sanggunian shall keep a journal and record ofits proceedings which may be published uponresolution of the Sanggunian concerned [Sec. 52,LGC]

How many votes requiredGENERAL RULE: Majority of the membersconstituting a quorum

Exception: When the enactment itself specifies thenumber of votes required, such requirement willgovern over the general rule specified in the charteror the LGC, when such enactment is to be amended.Why? Because the municipal authorities are in abetter position to determine the votes required.[Casino vs CA (1991)]

Approval, Veto and Review of OrdinancesEvery ordinance shall be presented to the governor

or mayor, as the case may be Approves: affix his signature on each andevery page

Disapproves: veto it and return the same withhis objections to the Sanggunian- Override: 2/3 vote of all its members

making the ordinance effective evenwithout the approval of the local chiefexecutive concerned

- Veto communicated to the Sanggunianwithin 15 days in the case of aprovince, and 10 days in the case of acity or a municipality; otherwise, theordinance shall be deemed approved

Veto power: The local chief executive may veto anyordinance on the ground that it is ultra vires or prejudicial to the public welfare, stating his reasonsfor writing

Right to veto may be exercised only once Local chief executive (except the punong

barangay) has the power to veto anyparticular item or items of an- Appropriations ordinance- Ordinance or resolution adopting a

local development plan and publicinvestment program

- Ordinance directing the payment ofmoney or creating liability

In such a case, the veto shall not affect theitem/s which are not objected to. Thevetoed item/s shall not take effect unlessthe sanggunian overrides the veto;otherwise, the item/s in the appropriationsordinance of the previous yearcorresponding to those vetoed, if any, shallbe deemed reenacted.

Review of (Component) City or MunicipalOrdinances

Within 3 days after approval, the secretary shallforward to the Sangguniang Panlalawigan for review,




copies of approved ordinances and the resolutionsapproving the local development plans and publicinvestment programs formulated by the localdevelopment councils

Within 30 days after the receipt of copies, theSangguniang Panlalawigan shall examine thedocuments or transmit them to the provincialattorney, or if there be none, to the provincialprosecutor for examination.

The provincial attorney or prosecutor shall, within10 days from receipt, inform the Sanggunian inwriting of his comments or recommendations.

If the sangguniang panlalawigan finds that such anordinance or resolution is beyond the powerconferred, it shall declare such ordinance orresolution invalid in whole or in part. Thesangguniang panlalawigan shall enter its action inthe minutes and shall advise the corresponding cityor municipal authorities of the action it has taken.

If no action has been taken by the sangguniang

panlalawigan within 30 days after submission, theordinance or resolution shall be presumed consistentwith the law and therefore valid.

Any attempt to enforce any ordinance or anyresolution approving the local development plan andpublic investment program, after the disapproval,shall be sufficient ground for the suspension ordismissal of the official or employee. [Sec. 58, LGC]

Review of Barangay Ordinances by SangguniangPanlungsod or Bayan [Sec. 57, LGC]

Ordinance enacted by the Sangguniang barangay

shall upon approval by the majority of all itsmembers, be signed by the punong barangay.

Within 10 days after its enactment, the sangguniangbarangay shall furnish copies of all barangayordinances to the sangguniang panlungsod orsangguniang bayan concerned for review.

No action for 30 days from receipt: ordinance shallbe deemed approved

If the sangguniang panlungsod or sangguniang bayanfinds the barangay ordinances inconsistent with lawor city or municipal ordinances, the sanggunian

concerned shall, within 30 days from receipt, returnthe same with its comments and recommendationsto the sangguniang barangay for adjustment,amendment, or modification

Effectivity: suspended until such time as the revisioncalled for is effected

Summary of review of ordinances

See Annex B.

Effectivity of Ordinances or ResolutionsGENERAL RULE: the same shall take effect after 10days from the date a copy is posted

EXCEPTION: unless otherwise stated in theordinance or the resolution approving the localdevelopment and public investment program

Ordinances with penal sanctions: gist shallbe published in a newspaper of generalcirculation within the province where the

local legislative body concerned belongs Absence of any newspaper: posting shall be

made in all municipalities and cities of theprovince where the sanggunian of origin issituated.

Highly urbanized and independentcomponent cities: the main features of theordinance or resolution in addition to beingposted, shall be published in a localnewspaper of general circulation within thecity

Absence of local newspaper: any newspaperof general circulation [Sec. 59, LGC]

Full disclosure of Financial and Business Interestsof Sanggunian MembersEvery sanggunian member shall, upon assumption ofoffice, make a full disclosure of:

(1) His business and financial interests(2) Professional relationship or any relation by

affinity or consanguinity within the fourthcivil degree which he may have with anyperson, firm, or entity affected by anyordinance or resolution which relationshipmay result in conflict of interest including:(a) Ownership of stock or capital, or

investment, in the entity or firm towhich the ordinance or resolution mayapply

(b) Contracts or agreements with anyperson or entity which the ordinance orresolution under consideration mayaffect conflict of interest. [Sec. 51,LGC]

Conflict of interest: One where it may bereasonably deduced that a member of a sanggunianmay not act in the public interest due to someprivate, pecuniary, or other personal considerationsthat may tend to affect his judgment to theprejudice of the service or the public

Jurisprudence

The LGC does not mandate that no other businessmay be transacted on the first regular session exceptto take up the matter of adopting or updating rules.All that the law requires is that ―on the 1st‖ regularsession, the sanggunian concerned shall adopt orupdate its existing rules or procedures‖. Until thecompletion of the adopted or updated rules, therules of the previous year may be used. [Malonzo v Zamora (1999)]

Disclosure shall: Be made in writing and submitted 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 consideration- If the member did not participate

during the deliberations, thedisclosure shall be made beforevoting on the ordinance orresolution on second and third

readings- Made when a member takes a position

or makes a privilege speech on amatter that may affect the businessinterest, financial connections, orprofessional relationship

Updated rules, the rules of the previous year may beused.

The signature of the mayor is not a mere ministerialact, but involves the exercise of discretion on thepart of the local chief executive. [Delos Reyes v Sandiganbayan (1997)]

Incidents of Law-Making (Legislative) PowerPosting and Publication of:(1) Tax ordinances and Revenue measures

Within 10 days after approval Certified true copies of all provincial,

city, or municipal tax ordinances orrevenue measures

Published in full for 3 consecutive days In a newspaper of local circulation

- Where no such newspaper: postedin at least 2 conspicuous andpublicly accessible places [Sec.188, LGC]

(2) Ordinance with penal sanctions At prominent places in the provincial

capitol, city, municipal or barangayhall

Minimum period: 3 consecutive weeks Publication in a newspaper of a general

circulation w/in territorial jurisdiction,except barangay ordinances

Effectivity: unless otherwise providedon the day following its publication orat the end of period of posting,whichever is later

Violation by public officer or employee- May be meted administrative

disciplinary action- Without prejudice to filing of

appropriate civil or criminal action Duty of Secretary of Sanggunian:

- Shall transmit official copies to thechief executive of Official Gazette

- Within 7 days following approval ofordinance

- Purpose for publication- If with penal sanction: for archival

and reference purposes [Sec. 511,LGC]

Judicial InterventionActions involving the validity of a local governmentordinance:

Prosecutor or attorney of the LGU involvedshall be notified and entitled to be heard;

Alleged to be unconstitutional: SolicitorGeneral shall also be notified and entitledto be heard. [Sec. 4, Rule 63]

The failure of the SolGen to appear in the lowercourt to defend the constitutionality of an ordinanceis not fatal to the case. The determination of thequestion of WON the SolGen should be required toappear ―in any action involving the validity of anytreaty, law, executive order, rule or regulation‖ is amatter left to the discretion of the Court. Inasmuchas the said requirement is not mandatory, butdiscretionary, noncompliance therewith affectedneither the jurisdiction of the trial court nor thevalidity of the proceedings. [Homeowner’s Association of the Phil. Inc. v Municipal Board of Manila (1968)]

Requisites for Valid Ordinance

For an ordinance to be valid exercise of policepower, it must:

(1) Not be contrary to the Constitution and/orstatute(2) Not be unfair or oppressive(3) Must not be partial or discriminatory(4) Not prohibit but may regulate trade(5) Be General and consistent with public policy(6) Not be unreasonable [Tatel v. Mun. of Virac

(1992)]

Local Initiative and Referendum

Definition

NOTE: Both a resolution and an ordinance may bethe proper subjects of an initiative or a referendum.[Garcia v COMELEC (1994)]

(Based on LGC Sec. 120-127 and RA 6735: AN ACTPROVIDING FOR A SYSTEM OF INITIATIVE ANDREFERENDUM)

Initiative: legalprocess whereby the registeredvoters of a LGU may directly propose, enact, oramend any ordinance.

Referendum: legal process whereby the registeredvoters of the LGUs may approve, amend or rejectany ordinance enacted by the sanggunian.

Who may exercise — all registered voters of theprovinces, cities, municipalities and barangays

Requirements

Referendum or initiative affecting a resolution orordinance passed by the legislative assembly of aprovince or city:

(1) petition must be signed by at least 10% ofthe registered voters in the province orcity,

(2) of which every legislative district must berepresented by at least 3% of the registeredvoters therein;




(3) Provided, however, that if the province orcity is composed only of 1 legislativedistrict, then at least each municipality in aprovince or each barangay in a city shouldbe represented by at least 3% of theregistered voters therein.

Referendum or initiative on an ordinance passed in amunicipality: petition must be signed by at least10% of the registered voters in the municipality, of

which every barangay is represented by at least 3%of the registered voters therein

Referendum or initiative on a barangay resolutionor ordinance: must be signed by at least 10% of theregistered voters in said barangay

Procedure

Not less than 1,000 registered voters in case ofprovinces and cities, 100 in case of municipalities,and 50 in case of barangays, may file a petition withthe local legislative body, respectively, proposingthe adoption, enactment, repeal, or amendment, of

any law, ordinance or resolution

If no favorable action thereon is made by locallegislative body within 30 days from its presentation,the proponents through their duly authorized andregistered representative may invoke their power ofinitiative, giving notice thereof to the locallegislative body concerned

2 or more propositions may be submitted in aninitiative

Proponents shall have 90 days in case of provincesand cities, 60 days in case of municipalities, and 30

days in case of barangays, from notice to collect therequired number of signatures

The petition shall be signed before the ElectionRegistrar, or his designated representative, in thepresence of a representative of the proponent, and arepresentative of the regional assemblies and locallegislative bodies concerned in a public place in theLGU

If the required number of signatures is obtained, theCOMELEC shall then set a date for the initiative forapproval of the proposition within 60 days from thedate of certification by the COMELEC in case ofprovinces and cities, 45 days in case ofmunicipalities, and 30 days in case of barangays[Sec. 122, LGC]

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. [Sec. 123, LGC]

Limitations on Initiatives

(1) The power of local initiative shall not beexercised more than once a year.

(2) Initiative shall extend only to subjects ormatters which are within the legal powersof the local legislative bodies to enact.

(3) If at any time before the initiative is held,the local legislative body shall adopt in toto the proposition presented, the initiativeshall be cancelled. However, those againstsuch action may, if they so desire, apply forinitiative in the manner herein provided. [Sec. 124, LGC]

Limitations Upon Local Legislative Bodies

Any proposition or ordinance or resolution approvedthrough the system of initiative and referendum asherein provided shall:

(1) not be repealed, modified or amended, bythe local legislative body concerned within6 months from the date therefrom, and

(2) may be amended, modified or repealed bythe local legislative body within 3 years bya vote of 3/4 of all its members:

Provided, however, that in case of barangays, the

period shall be 18 months after the approval. [Sec.125, LGC]

Local Referendum — Any local legislative body maysubmit to the registered voters of autonomousregion, provinces, cities, municipalities andbarangays for the approval or rejection, anyordinance or resolution duly enacted or approved.

A local referendum shall be held under the controland direction of the COMELEC within 60 days in caseof provinces and cities, 45 days in case ofmunicipalities and 30 days in case of barangays. TheCOMELEC shall certify and proclaim the results ofthe said referendum [Sec. 126, LGC]

Courts are not precluded from declaring null andvoid any proposition approved for violation of theConstitution or want of capacity of the locallegislative body to enact the said measure. [Sec.127, LGC]

Jurisprudence




A resolution may be the subject of an initiative orreferendum. [Garcia vs COMELEC (1994)]

Initiative: power of the people to propose bills andlaws, and to enact or reject them at the pollsindependent of the legislative assembly.

Referendum is the right reserved to the people toadopt or reject any act or measure which has beenpassed by a legislative body and which in most cases

would without action on the part of electors becomelaw.

These law-making powers belong to the people andthe COMELEC only exercises administration andsupervision of the process. Hence, COMELEC cannotcontrol or change the substance or the content ofthe legislation.

COMELEC should have prepared for an initiative, nota referendum. [SBMA v. COMELEC (1996)]

6. Corporate Powers

Every LGU, as a corporation has the followingpowers: (SC-PCSO)

(1) To have continuous succession in itscorporate name

(2) To sue and be sued(3) To have and use a corporate seal (4) To acquire and convey real or personal

property (5) To enter into contracts (6) To exercise such other powers as are

granted to corporations [Sec. 22, LGC]

Limitations: as provided in LGC and other laws

Corporate SealLGUs may continue using, modify, or change theirexisting corporate seals.

Newly established LGUs or those without corporateseals

(1) May create own corporate seals(2) Registered with the DILG

Change of corporate seal shall be registered with theDILG.

Requisites

Requisites of Contracts entered into by local chief

executive on behalf of LGU(1) Prior authorization by Sanggunian(2) Legible copy of contract posted at a

conspicuous place in the Provincial capitol or City, municipal or barangay hall

JurisprudenceThe authority of a municipality to fix and collectrents for water supplied by its waterworks system isexpressly granted by law. However, even withoutthese provisions the authority of the municipality tofix and collect fees from its waterworks would be

justified from its inherent power to administer whatit owns privately. [NAWASA v Dator (1967)]

If the property is owned by the municipality in itspublic and governmental capacity, the property ispublic and Congress has absolute control over it; ifthe property is owned in its private or proprietarycapacity, then it is patrimonial and Congress has noabsolute control. In which case, the municipalitycannot be deprived of it without due process and

payment of just compensation. [Province of Zamboanga v City of Zamboanga (1968)]

Authority to Negotiate and Secure GrantsWho may negotiate: Local Chief Executive (uponauthority of Sanggunian)

What are negotiated(1) Financial grants or donations in kind in

support of basic services or facilities(2) From local and foreign assistance agencies

Approval by national agency concernedGeneral rule: No necessity of securing clearance

from national agencyException: IF with national security implications Shall be approved by national agency

concerned Failure to act on request for approval within

30 days from receipt: deemed approved

Reporting duty: local chief executive shall report toboth Houses of Congress and the President

(1) Nature(2) Amount(3) Terms(4) Within 30 days upon signing of grant

agreement or deed of donation [Sec. 23,LGC]

Ultra Vires Contracts

A public street is property for public use hence,outside the commerce of man. It may not be thesubject of lease or other contract. Such leases arenull and void for being contrary to law. [Dacanay vs Asistio (1992)]

7. Liability of LGUs

Specific Provisions making LGUs Liable

LGUs and their officials are not exempt from liabilityfor death or injury to persons or damage toproperty. [Sec. 24, LGC]

When a member of a city or municipal police forcerefuses or fails to render aid or protection to anyperson in case of danger to life or property, suchpeace officer shall be primarily liable for damages,and the city or municipality shall be subsidiarilyresponsible therefor. [Art. 34, CC]

The obligation imposed by Article 2176 isdemandable not only for one‘s own acts or




omissions, but also for those of persons for whomone is responsible. X X X The State is responsible inlike manner when it acts through a special agent;but not when the damage has been caused by theofficial to whom the task done properly pertains, inwhich case what is provided in Article 2176 shall beapplicable. [Art. 2180(6), CC]

Provinces, cities and municipalities shall be liable

for damages for the death of, or injuries suffered by,any person by reason of the defective condition ofroads, streets, bridges, public buildings, and otherpublic works under their control or supervision. [Art.2189, CC]

Liability for Torts, Violation of the Law andContracts

WHEN LGU IS LIABLE CASE DEFENSE

If LGU fails to perform agovernmental function (e.g., maintenance of

roads under Art. 2189,CC or rendering aid andprotection under Art. 34,CC)

Exercise of due diligencein the selection andsupervision is not a

defense.

If engaged inproprietary functions,

Defense of due diligencein the selection andsupervision availableonly if the functioninvolved is a corporatefunction.

RATIO: because thisdefense is available onlyto private employers.

WHEN LGU IS NOT LIABLE

If damage resulted from an act of LGU in theperformance of governmental functions

IllustrationsOn ContractRULE: The LGU is liable only for contracts that areintra vires.

The Doctrine of Implied Municipal Liability providesthat an LGU may become obligated upon an impliedcontract to pay reasonable value of the benefitsaccepted by it as to which it has the general powerto contract [Cebu vs IAC, 147 SCRA 447]

BUT the LGU may not be estopped in order tovalidate a contract which the LGU is not authorizedto make EVEN IF it has accepted the benefitsthereunder [San Diego vs Mun. Of Naujan, 107 Phil112] A private individual who deals with a LGU is imputedwith constructive knowledge of the extent of thepower or authority of the LGU to enter intocontracts. Thus, ordinarily, the doctrine of estoppeldoes not lie against the LGU.

On Tort If in the performance of a governmental

function, the LGU is NOT liable

- The prosecution of crimes, even ifinjury occurs [Palafox vs Ilocos Norte(1958)]

If in the performance of a proprietaryfunction, the LGU is liable- The improper grant of a ferry service

franchise [Mendoza vs de Leon (1916)]

NOTE: Municipal corporations‘ liability to private

persons for the wrongful exercise of the corporatepowers is the same as that of a private corporationor individual [Mendoza vs de Leon (1916)]

Deaths caused by a collapsed stage in a town fiesta[Torio vs Fontanilla (1978)]

Back pay or wages of employees illegally dismissed,including those involving primary governmentalfunctions (e.g. policemen) [Guillergan v Ganzon(1966)]

By Express Provision of Law(1) Article 2189, CC

When a person falls in an open manhole in the citystreets. [Manila vs Teotico (198)]

When a person steps on a rusted nail in a floodedpublic market. [Jimenez vs Manila, 150 SCRA 510]

When accidents are caused by defective roads evenif the road does not belong to the LGU as long as itexercises control or supervision over said road.[Guilatco vs Dagupan, 171 SCRA 382]

Damages suffered through accidents in nationalroads under the control and supervision of an LGU(cause is unsafe road conditions, especially whenthere is gross negligence). [Municipality of San Juan

v. CA (2005)]

Also exemplary damages may be granted whenpublic officials acted with gross negligence. [QuezonCity v Dacara (2005)]

(2) Article 2180, CCWhen the State acts through a special agent [Merrittvs Government, 34 Phil 311]

On Violation of LawWhen the Mayor refused to abide by a TRO issued bythe court, he may be held in contempt. [Moday v CA(1997)]

When the LGU does not pay the statutory minimumwage (mandated by law) even if there is lack offunds. [Racho vs Ilagan, Isabela (198)]

Personal Liability of Public Official

RULE: The public official is personally liable if heacts beyond the scope of his powers OR if he actswith bad faith

Illustrations




Mayor exceeding authority in vetoing a resolutionpassed by the Sanggunian [Pilar v Sangguniang Bayanng Dasol (1984)]

- [Note that under CC27, a public servant ispersonally liable for damages for his refusalor neglect to perform his official duty]

When the officials incorrectly ordered theconstruction of a drug rehabilitation center [ Angelesvs CA, 21 SCRA 90]

When officials illegally dismiss an employee [Ramavs CA, 148 SCRA 49]

When the official defies an order of reinstatement ofan illegally dismissed employee [Correa vs CFI, 92SCRA 312]

- The Mayor pays for the back salaries ofan illegally dismissed employee[Nemenzo vs Sabillano, 25 SCRA 1]

- The Governor pays for moral damagesfor refusing the reinstatement of anemployee [San Luis vs CA (1989]

A public officer, whether judicial, quasi-judicial orexecutive, is not personally liable to one injured inconsequence of an act performed within the scopeof his official authority, and in line of his officialduty. [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 3rd persons ex contractu or ex delicto;

that under the principle of respondeatsuperior the principal is liable for thenegligence of its agents acting within thescope of their assigned tasks; and

that the municipal councilors have a

personality distinct and separate from themunicipality [Torio v. Fontanilla (1978)]

Hence, as a rule they are not co-responsible in anaction for damages for tort or negligence unless theyacted in bad faith or have directly participated inthe commission of the wrongful act.

8. Settlement of Boundary Disputes(Asked in 2005)

Boundary dispute—when a portion or the whole ofthe territorial area of an LGU is claimed by two ormore LGUs.

Policy: Boundary disputes between or among LGUsshall, as much as possible, be settled amicably. [Sec.118-119, LGC]

Jurisdictional Responsibility for Settlement of Boundary Dispute

If the LGUs involvedare:

Boundary disputes shallbe referred forsettlement to:

two or more barangaysin the same city or

sangguniang panlungsodor sangguniang bayan

municipality concerned.two or moremunicipalities within thesame province

sangguniangpanlalawigan concerned.

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 or morehighly urbanized cities,

jointly referred forsettlement to therespective sangguniansof the parties.

In the event the sanggunian fails to effect anamicable settlement within sixty (60) days from thedate the dispute was referred thereto, it shall issuea certification to that effect.

Thereafter, the dispute shall be formally tried bythe sanggunian concerned which shall decide theissue within sixty (60) days from the date of thecertification referred to above.

Appeal

Within the time and manner prescribed by the Rulesof Court, any party may elevate the decision of thesanggunian concerned to the proper Regional TrialCourt having jurisdiction over the area in dispute.

The Regional Trial Court shall decide the appealwithin one (1) year from the filing thereof. Pendingfinal resolution of the disputed area prior to thedispute shall be maintained and continued for alllegal purposes. [Sec. 119, LGC]

Maintenance of the Status Quo

Pending final resolution of the dispute: status of theaffected area prior to the dispute shall bemaintained and continued for all purposes. [Sec. 18,IRR of the LGC]

The power of provincial boards to settle boundarydisputes is limited to implementing the law creatinga municipality. Thus, provincial boards do not havethe authority to approve agreements which in effectamend the boundary stated in the creating statute[Municipality of Jimenez v. Baz (1996)]

The conduct of plebiscites, to determine whether or

not a barangay is to be created, should be suspendedor cancelled in view of a pending boundary disputebetween two local governments. Precisely becauseterritorial jurisdiction is an issue raised in thepending boundary dispute, until and unless suchissue is resolved with finality, to define theterritorial jurisdiction of the proposed barangayswould only be an exercise in futility. [City of Pasig v.COMELEC (1999)]

9. Succession of Elective Officials




Rules on Succession

a. Successors in permanent vacancies in office of local chief executive

Permanent vacancy entails that an elective localofficial: (DR VaReReQI)

(1) fills a higher vacant office;(2) refuses to assume office;

(3) fails to qualify;(4) dies;(5) is removed from office;(6) voluntarily resigns; or(7) is otherwise permanently incapacitated to

discharge the functions of his office. [Sec.44, LGC: (Asked in 1995, 1996, 2002, 2008)]

Office wherePermanent Vacancy

OccursWho Succeeds into Office

Governor Vice-governorMayor Vice-mayorOffice of thegovernor or [and]

vice-governor,mayor or [and] vice-mayor

Highest rankingsanggunian member;

In case of his permanentinability, the 2nd highestranking sanggunian member; Subsequent vacancies arefilled automatically by theother sanggunian membersaccording to their ranking.

Office of the PunongBarangay

Highest rankingsanggunian barangaymember; In case of his permanentinability, the 2nd highestranking sanggunian member.

A tie between/among the highest ranking sanggunianmembers is resolved by drawing of lots.

Successors under Sec. 44, LGC serve only for theunexpired terms of their predecessors.

The ranking in the sanggunian is based on theimmediately preceding local election:

Votes obtained by the winning candidateTotal number of registered voters in each district

b. Permanent vacancies in the sanggunian

If automatic succession as provided in Sec. 44 doesnot apply, vacancy is to be filled in by appointmentmade as follows:


Occurs

Who Succeeds intoOffice

Member of SanggunianPanlalawigan orSangguniang Panlungsodof highly urbanizedcities and ICCs

Person appointed by thePresident, through theExecutive Secretary


Occurs

Who Succeeds intoOffice

Member of SangguniangPanlungsod ofcomponent cities andthe Sangguniang Bayan

Person appointed by thegovernor

Member of theSangguniang Barangay

Person appointed by themayor, uponrecommendation of theSangguniang Barangayconcerned

Representation of theyouth and the barangayin the sanggunian

Official next in rank ofthe organizationconcerned [Sec. 45, LGC(Asked in 1996, 2002)]

GENERAL RULE: The appointee under Sec. 45 mustbe a nominee of the political party under which thesanggunian member (whose elevation to the positionnext higher in rank created the vacancy) had beenelected.

Conditions sine qua non: There must be a

nomination and certificate of membership from thehighest official of the political party or else theappointment is:

(1) null and void ab initio; and(2) a ground for administrative action against

the responsible official.

If sanggunian member who caused vacancy does notbelong to any political party, the local chiefexecutive shall appoint a qualified person, uponrecommendation of the sanggunian.

The appointee under Sec. 45 serves the unexpiredterm of the vacant office.

Exception: Sangguniang barangay.

If the vacancy pertains to barangay or youthrepresentation in the sanggunian, the vacancy isautomatically filled by the official next in rank ofthe organization concerned.

c. Temporary vacancy in the office of the localchief executive.

Examples of local chief executive‘s temporaryincapacity to perform duties for physical/legalreasons:

(1) leave of absence;(2) travel abroad;

(3) suspension from office. [Sec. 46, LGC] (Asked in 2002)

GENERAL RULE: Vice-governor, city/ municipal vice-mayor, or the highest ranking sangguniang barangaymember shall automatically exercise the powers andperform the duties and functions of the local chiefexecutive.

EXCEPTION: The power to appoint/suspend/dismissemployees can be exercised only if the period of temporary incapacity exceeds 30 working days.




If the local chief executive is traveling within thecountry but outside his territorial jurisdiction for aperiod not exceeding 3 consecutive days, he maydesignate in writing the officer-in-charge.

GENERAL RULE: The local chief executive cannotauthorize any local official to assume thepowers/duties/functions of his office, other than thevice-governor, city/municipal vice-mayor, or highestranking sangguniang barangay member.

The authorization shall specify the powers andfunctions that the officer-in-charge shall exercise.

EXCEPTION: The power to appoint, suspend anddismiss employees.

GENERAL RULE: If the local chief executivefails/refuses to issue the authorization, the vice-governor, city/municipal vice-mayor, or highestranking sangguniang barangay member has right toassume the powers, duties, and functions of theoffice on the 4th day of absence.

EXCEPTION: The power to appoint/ suspend/dismissemployees.

Office whereTemporary Vacancy

Occurs

Who Temporarily Succeedsinto Office

Governor Vice-governor(automatically)

Mayor Vice-mayor (automatically)Punong barangay Highest ranking sanggunian

member (automatically)Local chief executivetraveling within thecountry but outsidehis territorial

jurisdiction for aperiod not exceedingthree consecutivedays

1) Person designated inwriting by the said localchief executive Authorization shallspecify the powers andfunctions that the designatewill exercise, except thepower to appoint, suspend,or dismiss employees

2) Vice-governor, vice-mayor or highestSangguniang Barangaymember, if the local chiefexecutive fails or refuses todesignate In this case, assumptioninto office shall be on the

4th

day of absence of thelocal chief executive(automatically)

JurisprudenceThe LGC is silent on the mode of succession whenthere is a temporary vacancy in the office of thevice-governor. In this case, there was a vacancywhen the vice-governor automatically assumed thegovernorship pending the determination of who isthe local chief executive. Because of suchcircumstances, the President, through the Secretary

of Local Government, may make the temporaryappointment. [Menzon v. Petilla (1991)]

A vice-governor who is concurrently an actinggovernor is actually a quasi-governor. Being theacting governor, the vice-governor can no longercontinue to simultaneously exercise the duties of thelatter office, since the nature of the duties of thegovernor hinders him from discharging his duties forsuch office. Hence, there is an ―inability‖ on the

part of the regular presiding officer, the vice-governor, to preside during the sanggunian sessions,which calls for the election of a temporary presidingofficer. [Gamboa v. Aguirre (1999)]

The governor has the power to fill a vacancy in theSangguniang Bayan caused by a member notbelonging to any political party. It is the samemanner as where the member belonged to a politicalparty. Where there is no political party to make thenomination, the Sanggunian where the vacancyoccurs must be considered authority for making therecommendation. The appointing authority is limitedto the appointment of those recommended to his

office. The recommendation is a condition sine quanon for the validity of the appointment. [Fariñas v.Barba (1996)]

d. Termination of the Temporary Incapacity

Upon submission to the sanggunian of a writtendeclaration that he has reported back to office

If the temporary incapacity is due to legal causes, hemust also submit the necessary documents showingthat the legal causes no longer exist.

e. Approval of Leaves of Absence.

LOCAL OFFICIAL LOA APPROVED BY: governors; mayors of

1)highly urbanizedcities or2)independentcomponent cities

The President or his dulyauthorizedrepresentative

vice-governors; city/municipal vice-mayors

The local chief executive

city/municipal mayors ofcomponentcities/municipalities

The governor

sanggunian

panlalawigan,panlungsod and bayanmembers; its employees

The Vice-governor orcity/municipal vice-mayor

punong barangays The city/municipalmayor

sangguniang barangaymembers

The punong barangay

If the application for LOA is not acted upon within 5working days after receipt, the application isdeemed approved. [ Sec. 47, LGC]




10. Discipline of Local Officials

Elective Officials

Administrative Action

AO 23, as amended by AO 159 (1994) and AO 66(1999): Prescribing the Rules and Procedures on theInvestigation of Administrative Disciplinary Cases

Coverage: administrative disciplinary chargesagainst:

(1) the governors, and members of thesangguniang panlalawigan;

(2) the mayors, vice mayors, and members ofthe sangguniang panlungsod of highlyurbanized cities, independent componentcities, and component cities; and

(3) the mayors, vice mayors, and members ofthe sangguniang panlungsod or bayan ofcities or municipalities in MetropolitanManila

Disciplining Authority — The President, who may act

through the Executive Secretary May still constitute a Special InvestigatingCommittee in lieu of the DILG Secretary;

Nothing shall prevent the President fromassuming jurisdiction at any stage of theproceedings over cases to be preliminarilyinvestigated by the DILG; in such an event,the same shall immediately be forwarded tothe Special Investigating Committee after itmay have been constituted by theDisciplining Authority.

Investigating Authority — DILG Secretary(1) may constitute an Investigating Committee

in the DILG for the conduct of investigation

Grounds

Grounds for administrative action (discipline,suspension, removal): MAD-VAD-CO

(1) Disloyalty to the Republic of thePhilippines;

(2) Culpable violation of the Constitution;(3) Dishonesty , oppression, misconduct in

office, gross negligence, or dereliction ofduty;

(4) Commission of any offense involving moralturpitude or any offense punishable by atleast prision mayor, which is from 6 years

and 1 day to 12 years imprisonment;(5) Abuse of authority ;(6) Unauthorized absence for 15 consecutive

working days in case of local chiefexecutives and 4 consecutive sessions in thecase of members of the sanggunian;

(7) Application for, or acquisition of, foreigncitizenship or residence of the status of animmigrant of another country; and

(8) Such other grounds as may be provided bythe Local Government Code of 1991;Republic Act No. 6713; Republic Act No.3019; Administrative Code of 1987; Revised

Penal Code; and all other applicablegeneral and special laws.

How Initiated(1) by any private individual or any government

officer or employee by filing a swornwritten complaint (verified)

(2) by the Office of the President or anygovernment agency duly authorized by lawto ensure that LGUs act within their

prescribed powers and functions

Elective Official againstwhom Administrative

Complaint is Filed

Where to FileComplaint

Provincial or city official Office of the PresidentMunicipal official Sangguniang

PanlalawiganBarangay official Sangguniang Panlungsod

or Sangguniang Bayan

Jurisprudence Supervision and discipline. The President is notdevoid of disciplinary powers because he merely has

supervisory powers under the Constitution.Supervision is not incompatible with discipliningauthority. [Ganzon vs CA (1991)]

Valid delegation. Under AO 23, the delegation of thepower to investigate to the Sec of Interior is valid.What cannot be delegated is the power to discipline.[Joson vs Torres, 290 SCRA 279]

Prejudicial question? The administrativeinvestigation can proceed even during the pendencyof an appeal of audit findings to the Commission onAudit [Salalima vs Guingona, 257 SCRA 55]

Jurisdiction

Power of Tribunals(1) 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 of theOmbudsman under RA 6770. [Hagad v. Gozo-Dadole(1993)]

Preventive Suspensionunder RA 6770

Preventive Suspensionunder the LGC

1. the evidence of guiltis strong; AND

2. that any of the ff. arepresent:a. the charge against

the officer oremployee shouldinvolve dishonesty,oppression or gravemisconduct orneglect in theperformance ofduty;

b. the charges shouldwarrant removal

1. there is reasonableground to believe

that the respondenthas committed theact or actscomplained of

2. the evidence ofculpability is strong

3. the gravity of theoffense so warrants;or

4. the continuance inoffice of therespondent couldinfluence the




from office; orc. the respondent‘s

continued stay inoffice wouldprejudice the casefiled against him

witnesses or pose athreat to the safetyand integrity of therecords and otherevidence

Maximum period: 6 mos. Maximum period: 60 days

It is not only the Ombudsman, but also his Deputy,who may sign an order preventively suspendingofficials. Also, the length of the period of suspensionwithin the limits provided by law and the evaluationof the strength of the evidence both lie in thediscretion of the Ombudsman. It is immaterial thatno evidence has been adduced to prove that theofficial may influence possible witnesses or maytamper with the public records. It is sufficient thatthere exists such a possibility. [Castillo-Co v.Barbers (1998)]

(2) The Courts RA 3019: The term ―office‖ in Sec. 13 of RA 3019(pertaining to mandatory preventive suspension)applies to any office which the officer might

currently be holding and not necessarily theparticular office in relation to which the official ischarged. The imposition of the suspension, thoughmandatory, is not automatic or self-operative. A pre-condition is the existence of a valid Information,determined at a pre-suspension hearing. [Segovia v.Sandiganbayan (1999)]

(3) Sandiganbayan PD 1606, as amended by RA 8249It is the official‘s grade that determines his or hersalary, and not the other way around. An official‘sgrade is not a matter of proof but a matter of lawwhich the court must take judicial notice. UnderSec. 444(d) of the LGC, the municipal mayor shall

receive a minimum monthly compensationcorresponding to SG 27. Thus, the cases filed againstthe petitioner are within the exclusive jurisdiction ofthe Sandiganbayan. [Llorente v. Sandiganbayan(2000)]

If the law states that a certain officer is within thejurisdiction of the Sandiganbayan, the fact that theofficer's SG is below 27 does not divest jurisdiction.[Inding v. Sandiganbayan (2004)]

RA 8249 provides that as long as one of the accusedis an official of the executive branch occupying theposition otherwise classified as SG 27 and higher, the

Sandiganbayan exercises exclusive originaljurisdiction. To vest Sandiganbayan with jurisdiction,public office must be an element of the crime ORthat without the public office, the crime could nothave been committed. [Rodriguez v. Sandiganbayan(2004)]

Preventive Suspension [Sec. 63, LGC](Asked in 1990, 1996)

Sole Objective: to prevent the accused official fromhampering the investigation with his influence andauthority over possible witnesses and keep him off

the records and other evidence. [Ganzon v. CA,(1991)]

[cf. suspension as a penalty]

It may be imposed by the Disciplining Authority incases where the respondent is an elective official:

Local Elective Official of: Who may impose: provinces highly urbanized cities independent componentcities

President, throughthe DILG Secretary

municipalities component city

Provincial Governor

barangay Mayor

The governor shall, upon the direct order of theDisciplining Authority, preventively suspend anelective official of a component city, who is underformal administrative investigation by the Office ofthe President.

When imposed: May be imposed at any time after

the issues are joined (after respondent has answeredthe complaint)

BUT no preventive suspension shall be imposedwithin 90 days immediately prior to any localelection. If the preventive suspension has beenimposed prior to the 90-day period immediatelypreceding a local election, it shall be deemedautomatically lifted upon the start of the period.

Grounds for Preventive Suspension:(1) when the evidence of guilt is strong and,(2) given the gravity of the offense, there is a

great probability that the continuance inoffice of the respondent could influence the

witnesses or pose a threat to the safety andintegrity of the records and other evidence

Period: Any single preventive suspension of localelective officials shall not extend beyond 60 days;

Provided that, in the event that severaladministrative cases are filed against an electiveofficial:

he cannot be preventively suspended for morethan 90 days within a single year

on the same ground or grounds existing andknown at the time of the first suspension.

Expiration: the suspended elective official shall bedeemed reinstated in office without prejudice to thecontinuation of the proceedings against him [whichshall be terminated within 120 days from formalnotice of the case]. HOWEVER, if the delay in theproceeding of the case is due to his fault, orrequest, other than the appeal duly filed, theduration of such delay shall not be counted incomputing the time of termination of the case. [Sec.63 (c)]

Compensation: officer shall receive no salary orcompensation during such suspension; BUT, uponsubsequent exoneration and reinstatement, he shall




be paid his full salary or compensation, includingsuch emoluments accruing during such suspension.[Sec. 64, LGC]

The provincial governor is authorized to preventivelysuspend the municipal mayor any time after theissues have been joined and any of the followinggrounds were shown to exist:

(1) When there is reasonable ground tobelieve that the respondent has

committed the act or acts complainedof

(2) When the evidence of culpability isstrong

(3) When the gravity of the offense sowarrants

(4) When the continuance in office of therespondent could influence thewitnesses or pose a threat to the safetyand integrity of the records and otherevidence.

There is nothing improper in suspending anofficer before the charges are heard and before

he is given an opportunity to prove hisinnocence. Preventive suspension is allowed sothat respondent may not hamper the normalcourse of the investigation through the use ofhis influence and authority over possiblewitnesses. When a local government officialbelieves that he has been wrongfully suspended, the proper procedure is to exhaustadministrative remedies, i.e. seek relief fromthe DILG Secretary, and not to file a case incourt. [Espiritu v. Melgar (1992)]

Piecemeal suspensions should not be issued. Ifthere are several administrative cases against apublic official, these cases should be

consolidated 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 to simultaneousservice of suspension is more of an exceptionthan the rule, because of the followingcircumstances:

Three separate orders of 60-daypreventive suspension were issuedagainst Ganzon

Another order of preventive suspensionwas issued before the SC promulgatedthe decision ruling that suspensionshould not be issued piecemeal

The simultaneous service of suspensionwill lessen the harsh effects ofwhatever ill motive may be behind thesuccessive suspension orders issued

Rights of the Respondent Official: Full opportunityto:

(1) Appear and defend himself in person or bycounsel

(2) Confront and cross-examine the witnessesagainst him

(3) Require attendance of witnesses and theproduction of documentary evidence in hisfavor through subpoena or subpoena ducestecum. [Sec. 65, LGC]

Due process. The petitioner has the right to aformal investigation under AO 23. Where the Secdenied the motion for a formal investigation and

decided the case on the basis of position papers, theright of the petitioner was violated. [Joson vsTorres, 290 SCRA 279]

Form and Notice of Decision(1) Shall be terminated within 90 days from

start thereof.(2) Office of the President or Sanggunian

concerned to render decision Within 30 days from end of

investigation In writing Stating clearly facts and reasons

(3) Furnish copies to respondent and interested

parties. [Sec. 66(a), LGC]

NOTE: Any abuse of the exercise of the power ofpreventive suspension shall be penalized as abuse ofauthority. [Nachura]

Penalty of SuspensionLimitations: The penalty of suspension:

(1) shall not exceed the unexpired term of therespondent

(2) shall not exceed a period of 6 months forevery administrative offense

(3) shall not be a bar to the candidacy of therespondent so suspended as long as hemeets the qualifications required for the

office. [Sec. 66, LGC]

When the respondent has been meted 2 or morepenalties of suspension for 2 or more administrativeoffenses, such penalties shall be served successively[AO No. 159, Amending AO 23, Prescribing the Rulesand Procedures on the Investigation of Administrative Disciplinary Cases Against ElectiveLocal Officials, 1994]

Removal

An elective local official may be removed by order ofthe proper court. [Sec. 60, LGC]

The penalty of removal from office as a result ofadministrative investigation shall be considered abar to the candidacy of the respondent for anyelective position. [Sec. 66(c), LGC]

[cf. effect of penalty of suspension]

Proper court orderLocal legislative bodies and/or the Office of thePresident cannot validly impose the penalty ofdismissal or removal from service on erring localelective officials. It is clear from Sec. 60 of LGC thatan elective local official may be removed from office




on the grounds enumerated above only by order ofthe proper court.

Art. 124 (b), Rule XIX of the Rules and RegulationsImplementing the LGC, which states that ―anelective local official may be removed from office byorder of the proper court or the Disciplining Authority whichever first acquires jurisdiction tothe exclusion of the other‖ is void for beingrepugnant to Sec. 60, LGC.But if it‘s appointive, the OP may remove. [Pablicov. Villapando (2002)]

Petitioners contest the administrative action asbeing violative of Sec. 60, which mandates that anelective local official may be removed from officeonly by order of the court, since the duration of thesuspension being 12-20 months exceeded theirremaining terms. The suspension was allegedlytantamount to a removal.

An administrative offense means every act orconduct or omission which amounts to, orconstitutes, any of the grounds for disciplinary

action. The offenses for which suspension may beimposed are enumerated in Section 60.

Assuming for the moment that the Office of thePresident is correct in its decisions in each of thesubject four administrative cases:

It committed no grave abuse of discretion inimposing the penalty of suspension, although theaggregate thereof exceeded six months and theunexpired portion of the petitioners‘ term of office.

What is important is that the suspension imposed foreach administrative offense did not exceed sixmonths. [Salalima v. Guingona (1996)]

Administrative Appeal

Within 30 days from receipt of decisions:

Decisions of: May be appealedbefore:

SangguniangPanlungsod ofcomponent cities Sangguniang Bayan

SangguniangPanlalawigan

SangguniangPanlalawigan Sangguniang

Panlungsod of:- highly urbanized

cities- independent

component cities

Office of the President

Office of the President final and executory; maynot be appealed [Sec.67, LGC]

An appeal shall not prevent a decision frombecoming final or executory.

If respondent wins the appeal, he shall beconsidered as having been placed under preventivesuspension during the pendency of the appeal.

If the appeal results in an exoneration, he shall bepaid his salary and other emoluments during thependency of appeal. [Sec. 68, LGC]

Sec. 68 of the LGC merely provides that an ―appealshall not prevent a decision from becoming final orexecutory.‖ As worded, there is room to construethe provision as giving discretion to the reviewingofficials to stay the execution of the appealeddecision. [Berces v. Guingona (1995)]

The phrase ―final or executory‖ in Secs. 67 and 68simply means that administrative appeal will notprevent the enforcement of the decision. [Mendozavs Lacsina (2003)]

Effect of Re-election (Asked in 2000)

Re-election renders the administrative complaintagainst the local official moot and academic. Apublic official cannot be removed for administrativemisconduct committed during a prior term, since there-election to office operates as a condonation ofthe officer‘s previous misconduct to the extent of cutting off the right to remove him therefore. Butthis rule is applicable only to administrative cases,not to criminal cases. [Aguinaldo v. Santos (1992)]

Doctrine of Condonation

When re-election considered a condonation: if theproceedings are abated due to elections. In thiscase, there is no final determination of misconduct

[Malinao v. Reyes (1996)]

Subsequent re-election cannot be deemed acondonation if there was already a finaldetermination of his guilt before the re-election[Reyes v. COMELEC (1996)]

Appointive Officials

The appointing authority is generally the discipliningauthority.

Disciplinary Jurisdiction [Sec. 87, LGC]Except as otherwise provided by law, the local chief

executive may impose:(1) Removal from service (cf. elective officials)(2) Demotion in rank(3) 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(4) Fine not exceeding 6 months‘ salary (5) Reprimand(6) Or otherwise discipline subordinate officials

and employees under his jurisdiction.




No remedy of appeal if the decision of theadministrative case exonerated the office oremployee. ―Party adversely affected‖ in PD 807 or―The Philippine Civil Service Law‖ only refers to thegovernment employee against which the case isfiled. [Mendez vs. CSC (1991)]

The City Treasurer has authority to discipline hissubordinates.

The power to discipline is specifically granted by theRevised Administrative Code to heads ofdepartments, agencies and instrumentalities,provinces and cities.

The power to commence administrative proceedingsagainst subordinate officers is granted by theOmnibus Rules to the secretary of department, headof office, head of LGU, chief of agency, regionaldirector, or person with sworn written complaint.The City Treasurer may also motu proprio institutedisciplinary proceedings against subordinates.

These rules must be reconciled with the LGC, which

gives the mayor the authority to instituteadministrative and judicial proceedings against anyofficial or employee of the city. In cases involvingemployees of the city treasurer‘s office, the mayormust file his complaint with the treasurer‘s office orwith the DOF. [Garcia vs. Pajaro (2002)]

[Sangguniang Bayan of San Andres v. CA (1998)]: (Asked in 2000)

Requisites to constituteresignation:(1) Intention to relinquish

a part of the term(2) Act of relinquishment

(3) Acceptance by theproper authority

Essential elements of abandonment:(1) Intent to abandon(2) Overt act by which

the intention is to

be carried intoeffect

RemovalIn interpreting its own rules as it did, the CSC wasacting within its constitutionally delegated power tointerpret its own rules. The CSC, by ruling that theemployee took an automatic leave of absence, wasmerely interpreting its own rule on requirement ofapproved leave. [City Government of Makati City v.CSC (2002)]

11. Recall

(Asked in 2002)

Recall is a mode of removal of a public official bythe people before the end of his term of office.[Garcia v. COMELEC, (1993)]

Who has the power of recall: Power of recall forloss of confidence is exercised by the registeredvoters of the LGU. [Sec. 69, LGC]

Effectivity: Upon the election and proclamation of asuccessor in the person of the candidate receivingthe highest number of votes cast during the election

on recall. Thus, if the official sought to be recalledreceives the highest number of votes, confidence inhim is affirmed and he shall continue in office. [Sec.72, LGC]

Prohibition on resignation: An Elective local officialsought to be recalled is not allowed to resign whilethe recall process is in progress. [Sec. 73, LGC]

Expenses: The Annual General Appropriations Act

contains a provision for a contingency fund at thedisposal of the COMELEC. [Sec. 75, LGC]

RA 9244: An Act Eliminating the Preparatory RecallAssembly as a Mode of Instituting Recall of ElectiveLocal Government 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 LGU concerned,supported by a percentage of registered votersduring the election in which the local official soughtto be recalled was elected.

(Percentage decreases as population of people inarea increases. Also, the supporting voters must allsign the petition)

Within 15 days after filing, the COMELEC mustcertify the sufficiency of the required number ofsignatures. Failure to obtain the required numberautomatically nullifies the petition.

Within 3 days from certification of sufficiency,COMELEC provides the official with a copy of thepetition and causes its publication for 3 weeks (oncea week) in a national newspaper and a local

newspaper of general circulation. Petition must alsobe posted for 10 to 20 days at conspicuous places.PROTEST SHOULD BE FILED AT THIS POINT and ruledwith finality 15 days after filing.

COMELEC verifies and authenticates the signatures.

COMELEC announces acceptance of candidates

Election on RecallCOMELEC sets election within 30 days uponcompletion of previous section inbarangay/city/municipality proceedings (45 days incase of provinces).

Officials sought to be recalled are automaticallycandidate. [Sec. 71, LGC]

JurisprudenceA petition for recall that is signed only by thepetitioner but does not bear the names of thecitizens who have allegedly lost confidence in theofficial should be dismissed. [Angobung vs Comelec(1997)]

Whether or not the electorate of the municipalityhas lost confidence in their incumbent mayor is a




political question. Loss of confidence is the formalwithdrawal by the electorate of their trust in aperson‘s ability to discharge his office previouslybestowed on him by the same electorate. [Evardonev. COMELEC (1991)]

Recall is a mode of removal of a public official bythe people before the end of his term of office. Thepeople‘s prerogative to remove a public official is anincident of their sovereign power and in the absence

of constitutional restraint, the power is implied inall governmental operations. Such power has beenheld to be indispensable for the properadministration of public affairs. [Garcia v. COMELEC(1993)]

The Liga ng mga Barangay and the PreparatoryRecall Assembly are entirely different entities evenif they may have the same members. [Malonzo vsComelec (1997)]

NOTE: Under RA 9244, the Congress removed thePreparatory Recall Assembly as a mode of recall.

A Regular local election is necessary in order toreplace the local elective official who is sought to berecalled. This does not include SK elections. [Parasv. COMELEC (1996)]

Limitations on the Holding of RecallsAny elective official may be the subject of a recallelection only once during his term of office for lossof confidence.

No recall shall take place:(1) Within 1 year from the date of assumption

of office of the official concernedRationale: to provide a reasonable basis forjudging the performance of an elective

local official

(2) Within 1 year immediately preceding aregular local electionRationale: a recall election is potentiallydisruptive of the normal working of the LGUnecessitating additional expenses [Sec. 74,LGC]

Note:―Recall‖, as used in par. b, sec. 74 prescribing the 1-year limitation, refers to the ―election‖ itself (notthe process of initiating the recall proceedings). Thepurpose of the 1-year limitation from assumption isto prevent premature action without havingsufficient time to evaluate the official‘sperformance.

As long as the election is held outside the 1-yearperiod, the preliminary proceedings to initiate recallcan be held even before the end of 1 year fromassumption.

The 1-year period before regular local election doesnot include the campaign period. [Claudio v.COMELEC (2000)]

12. Term Limits

(Asked in 1995, 2001, 2005, 2006, 2008)

All elective local officials, except barangayofficials [Sec. 8, Art. X; Sec. 43 LGC]

Term of office: 3 years from noon of June 30, 1992or the date provided by law

All local officials first elected during the localelections immediately following the ratification ofthe 1987 Constitution shall serve until noon of June30, 1992;

No official shall serve for more than 3 consecutiveterms for the same position;

Voluntary renunciation of the office for any length oftime is not an interruption in the continuity of hisservice for the full term for which he was elected

Barangay officials and members of the SangguniangKabataan

Term of office: 3 years

After the regular election of barangay officials onthe second Monday of May 1994 [Sec. 43, LGC]

Existing sub-provinces converted into regularprovinces

New legislative districts continue to be representedin Congress by the duly-elected representatives ofthe original districts out of which the new provincesor districts were created until their ownrepresentatives are elected in the next regular

congressional elections and qualified

Vacancy in the offices occupied by incumbentelected officials or resulting from expiration of theirterms of office in case of a negative vote in theplebiscite results:

by appointment of the President; appointees shall hold office until their

successors are elected in the regular localelections following the plebiscite

After conversion of the newly-created province,President shall appoint:

(1) Governor(2) Vice-governor

(3) Members of the sangguniang panlalawigan

who shall hold office until their successors areelected in the next regular local elections andqualified. [Sec. 462 LGC]

Qualified appointive officials and employees in thecareer service of the subprovinces at the time oftheir conversion into regular provinces shall continuein office in accordance with civil service law, rulesand regulations.




RA 9164: Synchronized Barangay and SangguniangKabataan Elections (2002)

Term of office of barangay and sangguniangkabataan officials: 3 years

No barangay elective official shall serve for morethan 3 consecutive terms in the same position

Reckoned from the 1994 barangay elections Voluntary renunciation of office for any length

of time shall not be considered as aninterruption [Sec. 2]

RA 9006 Fair Election Act (2001)

An elective official running for any office other thanthe one which he is holding in a permanent capacity,is no longer considered ipso facto resigned from hisoffice upon the filing of his certificate of candidacy.[Sec. 14]

Note: Sec. 14 of RA 9006 expressly repealed Sec. 67of BP 881 or the Omnibus Election Code which statesthat ―any elective official, whether national or local,

running for any office other than the one which he isholding in a permanent capacity, except forPresident and Vice-President, shall be consideredipso facto resigned from his office upon the filing ofhis certificate of candidacy.‖

Section 14 of RA 9006 did not repeal Section 66 ofthe Omnibus election Code, leaving intact Section 66thereof which imposes a limitation to appointiveofficials and considers them ipso facto resigned fromoffice upon filing of their certificate of candidacy

By the repeal of Section 67, an elective official whoruns for office other than the one which he isholding is no longer considered ipso facto resigned

therefrom upon filing his certificate ofcandidacy. Elective officials continue in publicoffice even as they campaign for reelection orelection for another elective position. On the otherhand, Section 66 has been retained; thus, thelimitation on appointive officials remains - they arestill considered ipso facto resigned from their officesupon the filing of their certificates of candidacy.

Substantial distinctions clearly exist betweenelective officials and appointive officials. Theformer occupy their office by virtue of the mandateof the electorate. They are elected to an office fora definite term and may be removed therefrom onlyupon stringent conditions. On the other hand,appointive officials hold their office by virtue oftheir designation thereto by an appointingauthority. Some appointive officials hold their officein a permanent capacity and are entitled to securityof tenure while others serve at the pleasure of theappointing authority.

Another substantial distinction between the two setsof officials is that under Section 55, Chapter 8, TitleI, Subsection A. Civil Service Commission, Book V ofthe Administrative Code of 1987 (Executive OrderNo. 292), appointive officials, as officers andemployees in the civil service, are strictly prohibited

from engaging in any partisan political activity ortake part in any election except to vote. Under thesame provision, elective officials, or officers oremployees holding political offices, are obviouslyexpressly allowed to take part in political andelectoral activities.

By repealing Section 67 but retaining Section 66 ofthe Omnibus Election Code, the legislators deemedit proper to treat these two classes of officials

differently with respect to the effect on their tenurein the office of the filing of the certificates ofcandidacy for any position other than those occupiedby them.

Since the classification justifying Section 14 of Rep.Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon materialand significant distinctions and all the personsbelonging under the same classification are similarlytreated, the equal protection clause of theConstitution is, thus, not infringed. [Fariñas v.Executive Secretary (2003)]

What constitutes term of office? The Constitution contemplates service by localofficials for three consecutive terms as a result of anelection. The term limits for elective local officialsmust be taken to refer to:

(1) the right to be elected and(2) the right to serve in the same elective

position.

Consequently, it is not enough that an individual has fully served three consecutive terms in an electivelocal office.

He must also have been elected to the same position for the same number of times before the

disqualification can apply. [Borja v. COMELEC(1998)]

Effect of judicial declaration that the official’sproclamation is void: His assumption of office in1995 cannot be deemed to have been by reason of avalid election. Also, he did not fully serve the 1995-98 mayoral term by reason of involuntaryrelinquishment of office as he was ordered to vacatehis post before the expiration of the term. Althoughhe served the greater portion of the said term, heshould not be considered disqualified because he didnot serve three full consecutive terms. [Lonzanidav. COMELEC (1999)]

Effect of Recall Elections: An official has served forthree consecutive terms. He was elected in therecall election for the term of his predecessor.There was no violation of the 3-term rule.

The Constitution does not require that theinterruption be a full term of 3 years. The clearintent of the framers of the law is that interruptionfor any length of time is sufficient to break anelective local official‘s continuity of service. [Socrates v. COMELEC (2002)]




Effect of Conversion of the LGU: The mayor of amunicipality held his post for three terms. During hislast term, the municipality became a city and he wasdeclared hold-over mayor by the charter. The saidmayor should not be allowed to run again. If hewere allowed to do so, he would have served thesame people for a term more than what is allowedby law [Latasa v. COMELEC (2003)]

Effect of Preventive Suspension: Strict adherenceto the intent of the three-term limit rule demandsthat preventive suspension should not be consideredan interruption that allows an elective official‘s stayin office beyond three terms. A preventivesuspension cannot simply be a term interruptionbecause the suspended official continues to stay inoffice although he is barred from exercising thefunctions and prerogatives of the office within thesuspension period. The best indicator of thesuspended official‘s continuity in office is theabsence of a permanent replacement and the lack ofthe authority to appoint one since no vacancy exists.

To allow a preventively suspended elective officialto run for a fourth and prohibited term is to closeour eyes to this reality and to allow a constitutionalviolation through sophistry by equating thetemporary inability to discharge the functions ofoffice with the interruption of term that theconstitutional provision contemplates. [Aldovino v.COMELEC, G.R. No. 182867, November 25, 2008]




Annex ARequirements Province

LGC 460-461City

RA 9009 (2001)MunicipalityLGC 441-442

BarangayLGC 385-386

Income Average annualincome, as certifiedby the DOF, of notless than P20,000,000based on 1991

constant prices

Average annualincome, as certifiedby the DOF, of atleast P100,000,000 forthe last 2 consecutive

years based on 2000constant prices

Average annualincome, as certifiedby the provincialtreasurer, of at leastP2,500,000 for the

last two consecutiveyears based on 1991constant prices

No minimumrequirement forincome

Population 250,000 inhabitants 150,000 inhabitants 25,000 inhabitants 2,000 inhabitants

5,000 inhabitants, incities andmunicipalities withinMM and othermetropolitan politicalsubdivisions or highlyurbanized cities

Territory contiguous territoryof at least 2,000km2

contiguous territoryof at least 100km2

contiguous territoryof at least 50km2

No minimumrequirement for area

territory need not be

contiguous if itcomprises 2 or moreislands or is separatedby a chartered city orcities which do notcontribute to theincome of theprovince

requirement on land

area shall not applywhere the cityproposed to becreated is composedof 1 or more islands;the territory need notbe contiguous if itcomprises 2 or moreislands

Same as CITY. Territory need not be

contiguous if itcomprises 2 or moreislands

Manner of Creation

By an Act of Congress By an Act of Congress By an Act of Congress By law or by anordinance of thesangguniangpanlalawigan orpanlungsod; In case ofthe creation ofbarangays by thesangguniangpanlalawigan, therecommendation ofthe sangguniangbayan concerned shallbe necessaryBy an Act of Congress,to enhance thedelivery of basicservices in indigenouscultural communities

Plebiscite(in LGUs

directlyaffected)

Approval must be bymajority of the votes

cast; exceptotherwise provided inthe Act of Congress,the plebiscite shall beheld within 120 daysfrom effectivity of thelaw or ordinanceeffecting such action






cast; plebiscite shallbe held within suchperiod of time as maybe determined by thelaw or ordinancecreating saidbarangay.




Annex BComponent City or Municipality

Ordinances and ResolutionsBarangay Ordinances

Reviewed by Sangguniang panlalawigan Sangguniang panlungsod orsangguniang bayan

Furnish copies of ordinancesor resolution within

3 days after approval of ordinance orresolution approving the local developmentplans and public investment programsformulated by the local developmentcouncils

10 days after enactment of ALLordinances

Period to examinedocuments

30 days after receipt of copies, after whichthe ordinance or resolution is presumedvalid if no action is taken.

30 days after receipt of copies,after which ordinance is presumedvalid if no action is taken

Within 30 days, it may also be transmittedto the provincial attorney or prosecutor forexamination; said atty. or prosecutor shallgive his written recommendations within 10days from receipt of document

Ground to invalidateordinance or resolution

Ordinance or resolution is beyond the powerconferred upon the Sanggunian concerned

Ordinance is inconsistent with lawand city or municipal ordinances

In such case, the sangguniangbarangay may adjust, amend ormodify the ordinance within 30days from receipt from thesangguniang panlungsod orsangguniang bayan








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POLITICAL LAW TEAM 2012Faculty Editor | Florin T. HilbaSubject Heads| RogelioBenjamin Redoble • MoisesRonette ColobongContributors| Alferri Bayalan •Cielo Gono • Noel Luciano

LAYOUT TEAM 2012Layout Artists | AlyannaApacible • Noel Luciano • RMMeneses • Jenin Velasquez •

Mara Villegas • Naomi QuimpoLeslie Octaviano • Yas Refran •Cris BernardinoLayout Head| Graciello TimothReyes



PUBLIC INTERNATIONAL LAWPOLITICAL LAW REVIEWER

Public International LawPOLITICAL LAW





A. ConceptsB. International and National LawC. SourcesD. SubjectsE. Diplomatic and Consular LawF. Treaties

G. Nationality and StatelessnessH. Treatment of AliensI. International Human Rights LawJ. International Humanitarian Law

(IHL) and NeutralityK. Law of the SeaL. International Environment Law

A. Concepts1. Obligations Erga Omnes2. Jus Cogens3. Concept of Aeguo Et Bono

Formal Sources vs. Material Sources

Formal sources consist of the methods andprocedures for the creation of rules of generalapplication which are legally binding upon States.Material sources, upon the other hand, are thesubstantive evidence of the existence of the norms.

Material sources supply the substance of the rule,while formal sources confer upon it the force of law.

Lex lata vs. Lex ferendaLex lata – what the law is

Lex ferenda – what jurists think the law should be orwill become

1. Obligations Erga Omnes

Erga Omnes NormsInternational obligations of such character andimportance that:

(1) their violation by any state allows any otherstate to invoke the violator's liability,

(2) even if only one state or only a few incurreddirect material damage.

It usually has to do with issues on standing.

Illustrations Outlawing of acts of aggression and of

genocide Principles and rules concerning the basic

rights of the human person, includingprotection from slavery and racialdiscrimination [Barcelona Traction Case]

In the Barcelona Traction Light and Power Co. Case,the grant of standing to sue because of violations ofan erga omnes obligation is premised on the ideathat the maintenance of some norms are of interest to the entire world community, their violation beingan injury to the interest, not only of the state

directly offended, but of all states (i.e. outlawingacts of genocide or aggression).

2. Jus Cogens

DefinitionA jus cogens or peremptory norm is a norm whichStates cannot derogate or deviate from in theiragreements. It is a mandatory norm and stands on a

higher category than a jus dispositivum norm whichStates can set aside or modify by agreement.

Illustrations The prohibition against the use of force

under the UN Chater [Nicaragua Case] Law on genocide Principle of self-determination Principle of racial non-discrimination Crimes against humanity Prohibition against slavery and slave trade Piracy [Brownlie; Magallona]

3. Concept of Aequo Et Bono

Ex Aequo et Bono the court may apply thisstandard of ―what is equitable and good‖ to decide acase when the parties to the dispute so agree.

Judgment will not be on the basis of the sources ofinternational law listed in Art. 38(1), ICJ Statute,but on grounds of fairness and justice. The Courtmay have to rely on its understanding of the broadercontext of equity and outside the accepted norms oflaw under Art. 38(1), ICJ Statute.

This may mean simply that the Court may reach faircompromise in balancing the interests of the parties.

B. International and National Law

Municipal Law deals with the conduct or status ofindividuals, corporations, and other ‗private‘ entitieswithin states. PIL may be distinguished therefrom inthat it prescribes rules and processes that govern therelations of states with each other, and the rights ofother entities insofar as they implicate thecommunity of states (note: whom it governs). (vs.PIL, Asked 1 time in the Bar )

Relationship between PIL and Municipal

Law

Although distinct, PIL and Municipal are interrelated:(1) The role of international law within the

national legal order – norms or principles ofinternational law may be incorporated ortransformed into national law and appliedor enforced within the territorialjurisdiction of a State as part of ―the law of the land.‖

(a) Incorporation – norms ofinternational law are deemed partof national law




(b) Transformation – defines therequisite act which must befulfilled before they become partof national law

(2) The role of national law in theinternational legal regulation – a Statecannot invoke its own national law to resistan international claim or excuse itself frombreach of duty under international law[Polish Nationals in Danzig Case; VICLOT]

Below are the four theoretical views on how theyare related [CARTER AND TRIMBLE] :

Monist View

International and municipal legal systems arefundamentally part of one legal order. This viewconsiders international law to be superior, withmunicipal law being a mere subset of internationallaw.

Thus, international norms are applicable withinmunicipal system seven without some positive act of

the State.

Dualist View

International law and municipal law are separatesystems.

Only those problems affecting international relationsare within the scope of international law.

Thus, before an international norm can have aneffect within a municipal legal system, that normmust be transformed, or adopted into the municipalsystem through a positive act by a State organ.(Exception: Customary International Law and

General Principles of International Law)

Monist-Naturalist View

PIL is superior to municipal law, and that bothsystems are but a part of a higher system of naturallaw.

Coordinationist View

International law and municipal law operate indifferent spheres, but municipal law is (generally)obliged to be in conformity with international law.

C. Sources1. Treaty as Source of Law2. Customary International Law3. General Principle of Law4. Subsidiary Source: Judicial Decisions5. Subsidiary Source: Publicists

Primary Sources

(1) International Conventions, whether generalor particular, establishing rules expresslyrecognized by the contracting states(Treaties);

(2) International Custom, as evidence of ageneral custom accepted as law;

(3) General Principles of Law recognized bycivilized nations; [Article 38, ICJ Statute]

Subsidiary Sources

(1) Judicial Decisions; and(2) Teachings of the most highly qualified

publicists of the various nations (Art. 38,

ICJ Statute).(a) Treaties, Customs and General

Principles (Primary Sources) create law,while court decisions publicists‘teachings constitute evidence of whatis the law.

(b) With respect to the three primarysources, the order the enumerationdoes not provide a hierarchy in allcases.

Thus, although treaties are mentioned first, they arenot ipso facto superior to customs and generalprinciples.

1. Treaty as Source of Law

A 'treaty' means an international agreement concluded between States in written form and governed by international law , whether embodied ina single instrument or in two or more relatedinstruments and whatever its particular designation"[Art.2(1), Vienna Convention on the Law of Treaties(VCLOT)]

Under the VCLOT, the term ―treaty‖ includes allagreements between states, regardless of how theyare called. Thus, for purposes 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 equally binding,only treaties require the concurrence of the Senateto be effective. [Sec. 21, Art. VII, 1987 Constitution]

Pacta sunt servanda: A state party to a treaty isbound to comply with the obligations it assumedunder such treaty in good faith. [Art.26, VCLOT]

Pacta tertiis nec nocet nec prosunt: TreatyObligation is based on consent. No state may be

bound by a treaty obligation unless it has soconsented. [Art. 34, VCLOT]

As a general rule, treaties do not bind non-parties tothe treaty.

Treaties shall be further discussed on the Chapter on the Law of Treaties.

2. Customary International Law

Norms of international law are those that result froma general and consistent practice of states which




they follow under a sense of legal obligation. Forcustom to exist, it requires the concurrence of 2elements:

(1) State Practice and(2) Opinio juris.

Unlike treaties, customary norms are legally bindingupon states regardless of whether they consent,subject to the Persistent Objector rule.

Elements

State Practice

For custom to exist, the customary practice must beboth consistent and general.

(1) Consistency requires substantial uniformity,and not necessarily complete uniformity inpractice.

(2) Generality likewise does not requireuniversality.

The absence of protest could be considered evidence

of the binding nature of customary practice.[Akehurst]

Acts Evidencing State Practice(1) Diplomatic correspondence(2) Policy statements(3) Press releases(4) Opinions of official legal advisers(5) Official manuals on legal decisions

(executive decisions and practices;government comments on drafts by the ILC)

(6) International and national judicial decisions(7) Recitals in treaties and international

instruments(8) Practice of international organs [Harris]

UN General Assembly Resolutions are generally justrecommendations. They have no binding effectunder the Charter, save in limited fields likebudgetary concerns. However, such resolutions may nonetheless be an evidence of state practice that isrelevant in the development of custom.

Opinio juris sive necessitatis

Refers to the belief on the part of States that aparticular practice is required by law, and notbecause of courtesy or political expediency. It is theexistence of opinio juris that distinguishes binding

custom from mere usage, from comity, and fromcourtesy or protocol.

Opinio juris means that general practice embodied ina rule must have been done out of a recognitionthat it is a legal norm and therefore obligatory.[North Sea Continental Shelf Case, ICJ Reports,1969]

Note: It is not a ―maxim,‖ it is an element requiredin order for custom to come into fruition.

Scope

Custom may be: General binding upon all or most

states or Particular binding between

only two or among a few states.

In cases it has decided, the ICJ has indeedrecognized the possibility of regional custom( Asylum Case) and of bilateral custom. [Right of Passage over Indian Territory Case]

No particular length of time is required for theformation of customary norms. What becomesnecessary is such length of time as to make manifestthe existence of the two elements of custom. [Magallona]

Norms or Principles of Customary InternationalLaw as Identified by the Philippine Supreme Courtas forming part of Philippine 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 Lacoste v.Fernandez (1984)] (3) Human Rights as defined under the

Universal 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

to march 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 enemyproperty and its private ownership isretained, the enemy having acquired onlyits temporary use. [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)]

Principle of Persistent ObjectorWhen a State has continuously objected to a newcustomary norm at the time when it is yet in the




process of formation, by such persistent objectionthe norm will not be applicable as against thatState. [Magallona]

The ten-mile rule [in the delimitation of territorialwaters cross bays] would appear to be inapplicableas against Norway, inasmuch as she has alwaysopposed any attempt to apply it to the Norwegiancoast. [Anglo-Norwegian Fisheries Case]

Duality of Norms

It is possible for a norm of international law to existboth as a customary norm and a conventional norm (ex. The Prohibition against the Use of Force). Suchnorms are said to be of dual character.

Norms of dual character come into being through anyof the following ways:

(1) A treaty provision may simply restate acustomary norm (as is true of many of theprovisions in the VCLOT;

(2) A treaty provision may constitute evidenceof custom;

(3) A treaty provision may crystallize into acustomary norm.

For a treaty provision to crystallize into custom, theprovision must be norm-creating. The treaty must belaw-making, creating legal obligations which are notdissolved by their fulfillment.

The number of parties, the explicit acceptance ofrules of law, and, in some cases, the declaratorynature of the provisions produce a strong law-creating effect at least as great as the generalpractice considered sufficient to support acustomary rule. [Brownlie]

The customary norm retains a separate identity evenif its content is identical with that of a treaty norm.Thus, a state that cannot hold a state responsibilityfor a breach of a treaty obligation can still hold theerring state responsible for the breach of theidentical customary norm. [Nicaragua vs. US Case]

3. General Principles of Law

Refer to those general principles in municipal law(particularly those of private law) that may beappropriated to apply to the relations of states.[Oppenheim]

Unlike custom, it does not require to be supportedby state practice that is consistent and virtuallyuniform; it being sufficient that such principle is found in a number of legal jurisdictions. [Roque]

Illustrations Principles in Roman Law – estoppel, res

judicata, res inter alios acta, prescription.

When Thailand did not object to, and has infact benefited from, the Treaty of 1904 for50 years, it is deemed to have acceptedsaid treaty. It is thereby precluded from

questioning Annex I thereof, which showedthat the Temple of Preah Vihear was withinCambodian territory [Temple of PreahVihear Case]

Procedural Rules – the use ofcircumstantial evidence, hearsay evidence(press reports).

Press reports can be used to corroborate theexistence of a fact; and, when they demonstratematters of public knowledge which have receivedextensive press coverage, they can be used to provea fact to the satisfaction of the court [Nicaragua vs.US Case, ¶62-63]

Circumstantial evidence is admitted as indirectevidence in all systems of law and its use isrecognized by international decisions. Suchcircumstantial evidence, however, must consist of aseries of facts or events that lead to a single conclusion. [Corfu Channel Case]

Substantive – duty to make reparations,

principle of reciprocity, pacta suntservanda, separate corporate personality[Barcelona Traction Case]

The Standard of ―Full‖ Reparations: Every breachof an engagement (international obligation) entailsthe obligation to make reparation. The amount ofreparation required is that amount which isnecessary to bring the injured party back to thesituation had the wrong not occurred [Chorzow Factory Case]

Jurisdictional Principles – The power of atribunal to determine the extent of its ownjurisdiction (competence de lacompetence).

Note: International tribunals have not beenconsistent in their manner of determining whether aprinciple in municipal law constitutes a generalprinciple. In some instances they have examineddifferent legal systems; in others, they merelydeclared a principle in municipal law as constitutinga general principle of international law.

4. Subsidiary Source: JudicialDecisions

Preliminary note: International law does not followthe rule on stare decisis. Art. 59 of the ICJ State(which Art.38(1)(d) makes reference to) expresslylimits the effect of a decision only to the parties tothe case.

Be that as it may, decisions of international tribunalsexercise considerable influence as impartial andwell-considered statements of the law by (qualified)jurists made in light of actual problems. Decisions ofinternational tribunals constitute evidence of thestate of the law. [Brownlie]




5. Subsidiary Source: Publicists

Writings of highly qualified publicists likewiseconstitute evidence the state of the law.

The problem, though, is that some publicists may beexpressing not what the law is (lex lata), but whatthey think the law should be or will be (lex

ferenda).

Other Sources(1) Ex Aequo et Bono the court may apply

this standard of ―what is equitable andgood‖ to decide a case when the parties tothe dispute so agree.

(2) Equity refers to the application ofstandards of justice that are not containedin the letter of existing law. It has oftenbeen applied in cases involving territorialdisputes and maritime delimitations.

(3) Unilateral Declarations declarationsmade by way of unilateral acts, concerninglegal or factual situations, may have the

effect of creating legal obligations.

Nothing in the nature of a quid pro quo, norany subsequent acceptance, nor even anyreaction from other states is required forsuch declaration to take effect.

Verily, unilateral declarations bind theState that makes them.

Eastern Greenland case: The ICJ held that Denmarknot only had a superior claim over the contestedterritory, but that Norway was further bound by theIhlen Declaration not to oppose Denmark‘s claim.

The Ihlen Declaration is a statement made by theNorwegian Foreign Minister, Nils Claus Ihlen, on thetopic of Denmark's sovereignty over Greenland,which Mr. Ihlen declared verbally to the DanishMinister that ―the plans of the Royal [Danish]Government respecting Danish sovereignty over thewhole of Greenland would be met with nodifficulties on the part of Norway."

Also in the Nuclear Test cases, France declared thatit would cease atmospheric nuclear tests. Thissignaled that there had ceased to be a dispute, sinceit had bound itself to do what Australia and NewZealand wanted.

D. Subjects1. States2. International Organizations3. Individuals

Subjects of International Law refer to entities:(1) capable of possessing international rights

and duties; and(2) having the capacity to maintain these rights

by bringing international claims[Reparations for Injuries Advisory Opinion(1949 ) ]

A State is a quintessential example of a subject ofinternational law.

By contrast, an Object of International Law is theperson or thing in respect of which rights are heldand obligations are assumed by the subject. It is,therefore, not directly governed by the rules ofinternational law. Its rights may be asserted and itsresponsibilities imposed indirectly, through the

instrumentality of an intermediate agency (thesubject). For example, individuals are objects inrespect of which human rights obligations areimposed upon States. When an individual‘s humanrights is violated by another State, the aggrievedperson‘s State of nationality may ―espouse‖ hisclaim and invoke the erring state‘s responsibility(see: Discussion on Diplomatic Protection in Chapter5, Part V).

Notwithstanding this distinction, both subjects andobjects are considered actors in international law.They are:

1. States

States remain the most important actors ininternational law. It possesses objective or ergaomnes personality, not merely by virtue ofrecognition on the part of particular states.

Objective (general) internationalpersonality – exists wherever the rights andobligations of an entity are conferred bygeneral international law, e.g. states

Special (particular) internationalpersonality – exists where an entity isestablished by particular States for specialpurposes

A state is defined as a group of people, more or lessnumerous, permanently living in a definite territory ,under an independent government organized forpolitical ends and capable of entering into legalrelations with other states [Art. 1, MontevideoConvention on the Rights and Duties of States(1933)]

Requisite Elements

a. PeopleThe term ―people‖ refers to an aggregate of individuals of both sexes who live together as acommunity despite racial or cultural differences.

Although no minimum number is provided, theyshould be permanent, and sufficient to maintain andperpetuate themselves.

b. TerritoryState territory is that defined portion of the surfaceof the globe which is subjected to the sovereignty ofthe State. [Oppenheim]

A state must exercise control over a certain area. Itneed not be exactly defined by metes and bounds,so long as there exists a reasonable certainty ofidentifying it. No minimum land area is required.




Modes of acquiring territorial sovereignty (1) Occupation of a territory not subject to the

sovereignty of any other state (original); thisrefers not to mere discovery but effectiveexercise of sovereignty over a territory which isterra nullius

Effective occupation means continued displayof authority which involves 2 elements each of

which must be shown to exist: (a) the intentionand will to act as sovereign, and (b) some actualexercise or display of such authority. [EasternGreenland Case]

Animus occupandi must be demonstrated andevidenced by some administrative or politicalacts in relation to the territory in question andsuch acts must be under titre de souverain (titleof sovereignty).

To constitute effective occupation, exercise ofsovereignty must be peaceful, actual,continuous and sufficient to confer valid title to

sovereignty.

(2) Cession – the transfer of territory from onestate to another by treaty (derivative); onlybilateral mode of acquisition

The validity of cession depends on the valid titleof the ceding state; the cessionary state cannothave more rights than what the ceding statepossessed. [Magallona]

(3) Prescription – title is acquired by throughcontinuous and undisturbed exercise ofsovereignty over a period of time (derivative)

Requisites: (a) Possession that must be exercised titre

de souverain (b) Peaceful and uninterrupted(c) Public(d) Endure for a certain length of time

[Johnson]

(4) Accession or accretion – the natural process ofland formation resulting in the increase ofterritory (original)

c. GovernmentGovernment is the physical manifestation of a state.Government must be organized, exercising controlover and capable of maintaining law and orderwithin its territory.

Note: Under the Rules on Succession of States, evenchanges of entire governments do not affect theidentity and personality of the state. Once statehoodis established, neither invasion nor disorder alonecan remove its character as a state. [Brownlie]

i. “Effective” Government Although an effective government is thebest evidence of the existence of a State,

an effective government is not alwaysstrictly necessary (BROWLIE).

The requirement of effective government isnot strictly applied when the State, alreadylong-existing, happens to undergo a periodof civil strife or internal chaos due tonatural disaster or invasion.

Thus, with the collapse of their

governments, Afghanistan and Somalia weredeemed failed states, but they remainedstates.

Further, some states were deemed stateseven before their governments were "verywell organized" (ex. Poland, Burundi, andRwanda).

ii. Governments de facto & de jureA government de jure is a governmentfrom law, that is, one with a color of legitimacy.

A government de facto is one that governswithout a mandate of law. So long as it isin place, it may command obedience fromthe inhabitants of the occupied area.

The de facto ruler may suspend laws andenact new ones.

The establishment of a de facto governmentdoes not by itself abolish all laws andstructures established by the deposedgovernment.

Only ―laws of political nature affectingpolitical relations‖ are suspended ipso

facto; laws that enforce public order andregulate social and commercial life remainin effect unless they are changed by the de facto sovereign.

Conversely, the re-establishment of the de jure government does not void the acts ofthe preceding de facto government.

Three kinds of de facto government: Government de facto in the strict legal

sense is that which usurps – either byforce or the will of the majority – thelegal government and maintains andcontrol against it;

Government by paramount force isthat which results from the occupationof a state or a part thereof by invading forces in time of war; and

Government established as anindependent government byinhabitants of a country who rise ininsurrection against the parent state.

d. Independence or Sovereignty(Asked 1 time in the Bar)




Refers to the capacity to enter into relations withother states. A state must be free from outsidecontrol in conducting foreign and internal affairs.

It has, however, been advanced that the fact that aState ―may be acting under the direction of anotherState‖ is not of concern to international law.[Salonga]

The practice of states has been to ignore—so far as

the issue of statehood is concerned—various forms ofpolitical and emotional blackmail and interferencedirected against the weaker members of thecommunity."

Thus, it is sufficient for a State to possess externalappearance of capacity to enter into internationalrelation. [Brownlie]

Recognition

Act by which a state acknowledges the existence ofanother state, government or belligerent communityand indicates willingness to deal with the entity as

such under international law.

As a public act of state, recognition is an optionaland political act and there is no legal duty in thisregard.

Legal functions of recognition The typical act of recognition has 2 legal functions:

(1) The determination of statehood as aquestion of law which may have evidentialeffect before a tribunal, and

(2) A condition of the establishment of formal,optional, and bilateral relations, includingdiplomatic relations and the conclusion oftreaties; also described by some jurists as

constitutive

Declaratory View vs. Constitutive View (Asked 1time in the Bar).

The Declaratory View (Prevailing View) posits thatrecognition is a mere declaration oracknowledgement of an existing state of law andfact, legal personality having been previouslyconferred by operation of law.

The Constitutive View (Minority View) posits thatthe political act of recognition is a precondition tothe existence of legal rights of a state. In its logicalextreme, this is to say that the very personality of astate depends on the political decision of otherstates. [Brownlie]

Important Doctrines: Wilson/Tobar Doctrine (Asked 1 time in the

Bar) – precludes recognition of governmentestablished by revolution, civil war, coup d’etat or other forms of internal violence until freelyelected representatives of the people haveorganized a constitutional government [USPresident Woodrow Wilson, 1913 and EcuadorianFM, 1907]

Stimson Doctrine – precludes recognition of any

government established as a result of externalaggression [US Sec. of State Henry Stimson(1932) ]

Estrada Doctrine (Asked 1 time in the Bar) – dealing or not dealing with the governmentestablished through a political upheaval is not ajudgment on the legitimacy of the saidgovernment [Mexican Minister Genaro Estrada(1930 ) ]

Effects of recognition:(1) Diplomatic relations(2) Right to sue in courts of recognizing state(3) Right to possession of properties of

predecessor in the recognizing state(4) All acts of the recognized state or

government are validated retroactively,preventing the recognizing state frompassing upon their legality in its own court.

2. International Organizations

The status and powers of an IO is determined byagreement and not by general or customary

international law.

IO‘s are considered subjects of international law ―if their legal personality is established by theirconstituent instrument (charter).‖

Further, its constituent rights and duties, orcapacities and immunities, are limited to those setforth in the treaty creating the internationalorganization. Thus, legal personality in this contextis a relative concept. [Magallona]

Preconditions for International Personality

(1) It must constitute a permanent associationof states, with lawful objects, equippedwith organs;

(2) There must be a distinction, in terms oflegal powers and purposes, between theorganization [and] its member states; and

(3) It must have legal powers that it mayexercise on the international plane and notsolely within the national systems of one ormore states.

Capacity to Bring a Claim for Reparation

An IO such as the United Nations (UN) must bedeemed to have such powers which, though not

expressly granted in its Charter, are conferred uponit by necessary implication as being essential to the performance of its duties.

Thus, though the UN Charter did not expressly clothethe UN with the capacity to bring an internationalclaim for reparations, the UN nevertheless possessedfunctional personality. [Reparations for Injuries Advisory Opinion, ¶147 ]

IO‘s are deemed to have powers not expresslygranted in their charters where these unstatedpowers are either




(1) implicitly bestowed in their charters or(2) necessary to effect powers expressly

granted.

3. Individuals

While States are have traditionally been deemed tobe subject of international law, individuals havelikewise become in some degree subjects of that

law. However, individuals may assume the status ofsubjects of international law only on the basis ofagreement by states and in specific context, not inaccordance with general or customary IL.

Illustrations Art. 187(c), (d) and (e), UNCLOS: The

jurisdiction of the Sea-Bed DisputesChamber of the ITLOS extends to disputesbetween parties to contracts relating to theexploitation of the Area. Parties to suchcontracts may be natural or juridicalpersons.

Claims Settlement Declaration of 1981between US and Iran: Direct access to the

Iran-US Claims Tribunal is given toindividuals for the settlement of theirclaims involving more than $250,000 eitheragainst Iran or the US.

Mixed Claims Tribunals established in theTreaties of Peace concluded at the end ofWW I: Individuals enjoyed locus standi inactions against States relating to contracts,debts, and property adversely affected bythe war.

London Agreement of the InternationalMilitary Tribunal at Nuremberg: In crimesagainst peace, war crimes and crimesagainst humanity, international law imposesduties and liabilities upon individuals aswell as upon States.

Art. VI of the Convention on the Preventionand Punishment of the Crime of Genocide:―Parties charged with genocide‖ refers toindividuals whose responsibility is thusunder international law.

(Please refer to the Chapter on Human Rights)

E. Diplomatic and Consular Law1. Agents of Diplomatic Intercourse2. Diplomatic Immunities and Privileges3. Consular Relations

Diplomatic Intercourse, also referred to as theRight of Legation, is the right of the State to sendand receive diplomatic missions, which enablesStates to carry on friendly intercourse.

1. Agents of Diplomatic Intercourse

Head of State

The head of State represents the sovereignty of theState, and enjoys the right to special protection for

his physical safety and the preservation of his honorand reputation.

Upon the principle of exterritoriality, his quarters,archives, property and means of transportation areinviolate.

He is immune from criminal and civil jurisdiction,except when he himself is the plaintiff, and is notsubject to tax or exchange or currency restrictions.

The Foreign Office

The body entrusted with the conduct of actual day-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 of EasternGreenland Case]

The Diplomatic Corps

Refers to the collectivity of all diplomatic envoys

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, Ministersand Internuncios – accredited to Heads ofState; (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 – thoseemployed in the administrative and

technical service of the mission.(4) Service Staff – those engaged in the

domestic service of the mission [Nachura]

In the Philippines, the President appoints (Sec. 16,Art.VII, Constitution), sends and instructs thediplomatic and consular representatives.

Functions and Duties

The main functions of a diplomatic mission are thefollowing:

(1) Represent the sending State in the receivingState;

(2) Protect in the receiving State the interests

of the sending State and its nationals,within the limits allowed by internationallaw;

(3) Negotiate with the government of thereceiving State;

(4) Ascertain, by all lawful means, theconditions and developments in thereceiving State and reporting the same tothe sending State;

(5) Promote friendly relations between thesending State and receiving State, anddeveloping their economic, cultural andscientific relations [Art. 3(1), VCDR]




(6) If diplomatic relation is severed, entrust theprotection of its nationals to the diplomaticmission of a third State acceptable to thereceiving State [Art. 45, VCDR]

(7) May protect the interest of a third State byagreement with the receiving State, if thereis no diplomatic relations between the thirdState and the receiving State [Art. 46,VCDR]

2. Diplomatic Immunities andPrivileges(Asked 9 times in the Bar)

Theoretical basis of diplomatic privileges andimmunities

(1) Extraterritoriality theory – the premises ofthe diplomatic mission represent a sort ofextension of the territory of the sendingState

(2) Representational theory – the diplomaticmission personifies the sending State

(3) Functional necessity theory – privileges andimmunities are necessary to enable thediplomatic mission to perform its functions

Personal Inviolability

Personal inviolability consist of 2 aspects:(1) The duty of the receiving State to refrain

from exercising its sovereign rights, inparticular law enforcement rights againstthe diplomat; and

(2) The duty to treat him with due respect andprotect his person, freedom or dignity fromphysical interference by other persons.

The receiving State shall treat him with due respect

and take all steps to prevent any attack on hisperson, freedom or dignity. [Art. 29, VCDR]

The diplomatic representative shall not be liable toany form of arrest or detention.

In the Hostage Case, however the ICJ held thediplomatic envoy, however, may be arrestedtemporarily in case of urgent danger, such as whenhe commits an act of violence which makes itnecessary to put him under restraint for the purposeof preventing similar acts [Case Concerning the USDiplomatic and Consular Staff in Tehran, ICJReports, 1980]

Inviolability of Premises and Archives

Consist of 2 elements:(1) The duty of the receiving State to refrain

from entering the premises, except with theconsent of the head of the mission; and

(2) The ―special duty of the receiving state toprotect the premises against any intrusionor damage and to prevent any disturbanceof the peace of the mission or impairmentof its dignity.

Note: The principle of inviolability continues toapply even if diplomatic relations are broken off, orif a mission is permanently or temporarily recalled.In that case, the receiving state must respect andprotect the premises of the mission, together withits property and archives. [Art. 45, VCDR]

What does the ―premises of the mission‖ include? In the first place, it means ―the buildings or parts of the buildings and the land ancillary thereto,

irrespective of ownership, used for the purposes ofthe mission including the residence of the head ofthe mission.

The mission need not be the owner of thepremises – The expression ―premises of the mission‖includes the buildings for the purposes of themission, whether they are owned by the Sendingstate or by a third party acting for its account or areleased and are rented. [ILC Yearbook, vol II, p.95,1958]

The premises occupied by a diplomatic mission,including the private residence of the diplomatic

agent, are inviolable. [Art. 30, VCDR]

Such premises cannot be entered or searched, andneither can the goods, records and archives bedetained by local authorities even under lawfulprocess.

The envoy must consent to such entry, except inextreme cases of necessity (ex. When there isimminent danger that a crime of violence is to beperpetrated in the premises; when the premises areon fire).

The service of writs, summons, orders or processeswithin the premises of mission or residence of the

envoy is prohibited.

Even if a criminal takes refuge within the premises,the peace officers cannot break into such premisesto apprehend the same.

The fugitive should, however, be surrendered upondemand by local authorities, except when the rightof asylum exists.

Right of Official Communication

The envoy is entitled to fully and freelycommunicate with his government.

(1) The receiving state shall permit and protectfree communication on the part of themission for all official purposes.

(2) The mission may employ all appropriatemeans to send and receive messages by anyof the usual modes of communication or bydiplomatic courier, which shall enjoyinviolability;

(3) The official correspondence of the missionis inviolable; and

(4) The diplomatic bag shall not be opened ordetained. [Art. 27, VCDR]




Immunity from Local Jurisdiction

As to criminal jurisdiction - A diplomatic agentenjoys immunity from criminal jurisdiction of thereceiving State. [Art. 31, VCDR]

He may not be arrested, prosecuted, prosecuted orpunished for any offense he may commit, unless hisimmunity is waived.

This privilege, however, only exempts a diplomaticagent from local jurisdiction; it does not importimmunity from legal liability.

As to civil and administrative jurisdiction - Thediplomatic agent also enjoys immunity from the civiland administrative jurisdiction of the receivingState, even with respect to his private life. [Art. 31,VCDR]

BUT there are exceptions:(1) A real action relating to private immovable

property situated in the territory of thereceiving state, unless he holds it in behalf

of the sending state for the purposes of themission.(2) An action relating to succession in which

the diplomatic agent involved as executor,administrator, heir or legatee as a privateperson and not on behalf of the sendingstate.

(3) An action relating to any professional orcommercial activity exercised by thediplomatic agent in the receiving stateoutside his official functions. [Art. 31(1),VCDR]

His properties are not subject to garnishment,seizure for debt, execution and the like.

The diplomatic agent also cannot be compelled totestify, not even by deposition, before any judicialor administrative tribunal in the receiving Statewithout the consent of his government.

Who are the persons entitled to immunity from jurisdiction?

(1) diplomatic agent(2) Members of the family of the diplomatic

agent forming part of his household, whoare not nationals of the receiving State

(3) As to criminal jurisdiction, members of theadministrative and technical staff of thediplomatic mission, as well as members oftheir families forming part of theirrespective households, who are notnationals of or permanent residents in thereceiving state. But as to civil andadministrative jurisdiction, immunity shallnot extend to ―acts performed outside thecourse of their duties‘; and

(4) Members of the service staff of thediplomatic mission, who are not nationals ofor permanent residents in the receivingstate, with respect to ‗acts performed inthe course of their duties‘. [Art. 37, VCDR]

Exemption from Taxes and Customs Duties

Exemption from taxation has 2 aspects, one,pertaining to the sending state and another,pertaining to the diplomatic agent.

(1) As to the sending state – exemption appliesto ―premises of the mission‖ whether ownedor leased, with respect to ―all national,regional or municipal dues and taxes‖. [Art

23, VCDR]

(2) As to Diplomatic agents - are exempt fromall dues and taxes, whether personal orreal, national, regional or municipal. [Art.34, VCDR]

He is also exempt from all customs dutiesof articles for the official use of themission and those for the personal use ofthe envoy or members of the familyforming part of his household, includingarticles intended for his establishment.

Baggage and effects are entitled to freeentry and are usually exempt frominspection.

Exception to Tax Exemption:As to sending state: Exemption does NOT includedues or taxes which represent payment for specificservices rendered. [Art. 23(1), VCDR]

As to diplomatic agents:(1) Indirect taxes incorporated in the price of

goods purchased or services availed(2) Dues and taxes on private immovable

property situated in the receiving State(3) Estate, succession or inheritance taxes

levied by the receiving State(4) Dues and taxes on private income sourced

within the receiving State(5) Capital taxes on investments in commercial

ventures in the receiving State(6) Charges levied for specific services

rendered(7) Registration, court or record fees, mortgage

dues and stamp duty, with respect toimmovable property. [Art. 34, VCDR}

Who are entitled to exemption from taxation inaddition to the diplomatic agent?

(1) Members of the family of the diplomaticagent forming part of his household, whoare not nationals of the receiving State

(2) Members of the administrative andtechnical staff of the diplomatic mission, aswell as members of their families formingpart of their respective households, who arenot nationals of or permanent residents inthe receiving state.

(3) Members of the service staff of thediplomatic mission, who are not nationals ofor permanent residents in the receivingstate, with respect to ‗emoluments theyreceive by reason of their employment‘




(4) Private servants of members of the missionif they are not nationals or permanentresidents of the receiving state, withrespect to ‗emoluments they receive byreason of their employment‘. [Art. 37,VCDR]

Duration of Immunities and PrivilegesThese privileges are enjoyed by the envoy from themoment he enters the territory of the receivingState, and shall cease when he leaves the country.

With respect to official acts, immunity shall continueindefinitely.

Waiver of ImmunitiesDiplomatic privileges may be waived. Such waivermay be made only by the government of the sendingState if it concerns the immunities of the head ofthe mission. In other cases, the waiver may be madeeither by the government or by the chief of themission.

3. Consular Relations

Consuls are State agents residing abroad for variouspurposes but mainly

(1) in the interest of commerce and navigation,(2) issuance of visa (permit to visit his

country), and(3) such other functions as are designed to

protect nationals of the appointing State.

Ranks

Consul General: heads several consular districts, orone exceptionally large consular district.

Consul: in charge of a small district or town or port.

Vice Consul: assists the consul.

Consular agent: one entrusted with the performanceof certain functions by the consul.

Functions

Consular functions include the following:(1) Protecting the interests of the sending state

in the territory of the receiving state;(2) Protecting and assisting the nationals of the

sending state;

(3) Furthering the development of commercial,economic, cultural and scientific relationsbetween the sending state and thereceiving state and promoting friendlyrelations between them;

(4) Ascertaining by all lawful means theconditions and developments in thecommercial, economic, and cultural andscientific life of the receiving state,reporting thereon to the government of thesending state, and giving information topersons interested;

(5) Issuing passports and travel documents tonationals of the sending state and visas andtravel documents to persons wishing totravel to the sending state;

(6) Acting as notary, civil registrar and similaradministrative capacities; and

(7) Exercising rights of supervision andinspection pertaining to the sending state asflag state and state of registry of aircraft.

Necessary Documents

The following documents are necessary for theassumption of Consular functions:

(1) Letters Patent(letter de provision) – theletter of appointment or commission whichis transmitted by the sending state to theSecretary of Foreign Affairs of the countrywhere the consul is to serve.

(2) Exequatur – the authorization given to theconsul by the sovereign of the receiving State, allowing him to exercise his functionwithin the territory.

Immunities and Privileges

(1) Freedom of communication;(a) The receiving state shall permit and

protect freedom of information on thepart of the consular post for all officialpurposes;

(b) In communicating with thegovernment, the diplomatic missionsand other consular posts of the sendingstate, the consular post may employall appropriate means, includingdiplomatic or consular bags andmessages in code or cipher;

(c) The official correspondence of the

consular post shall be inviolable;(d) The consular bag shall neither be

opened nor detained.

BUT, may the receiving state request thatthe consular bag be opened?

YES, if the authorities have serious reasonsto believe that the bag contains somethingother than correspondence, documents orarticles ―intend exclusively for officialuse‖. If the request is accepted – the bag may beopened in the presence of the authorized

representative of the sending state.

If the request is refused – the bag shall bereturned to its place of origin. [Art. 35,VCCR]

(2) Inviolability of archives;(a) Inviolability is unconditional. They

shall be inviolable at all times andwherever they may be. [Art. 33, VCCR]

(3) Inviolability of premises;




What is the scope of the inviolability of consular premises?

(a) Authorities of the receiving state shallnot enter that part of the consularpremises exclusively used for consularwork, except with the consent of thehead of the consular post, hisdesignee, or the head of thediplomatic mission; but consent of theconsular head ―may be assumed in

case of fire or other disaster requiringprompt protective action;

(b) The receiving state has the specialduty to take all appropriate steps toprotect the consular premises againstintrusion or damage and to preventany disturbance of peace of theconsular post or impairment of itsdignity

(c) Consular premises, their furnishings,the property of the consular post andits means of transport shall be immunefrom any form of requisition ―forpurposes of national defense or public

utility‖. (d) In case of consular premises, theirfurnishings, the property of theconsular post and its means oftransport are expropriated for nationaldefense or public utility, ―all possible

steps shall be taken to avoidimpending the performance of consularfunctions, and prompt, adequate andeffective compensation shall be paidto the sending state. [Art. 31, VCCR]

Consular premises – ―the buildings or partsof buildings and the land ancillary thereto,irrespective of ownership, used exclusively

for the purposes of consular post‖.

(4) Exemption from local jurisdiction foroffenses committed in the discharge ofofficial functions, but not for other offenseexcept for minor infractions;

(5) Exemption from testifying on officialcommunications or on matters pertaining toconsular functions;

(6) Exemption from taxes, customs duties,military or jury service.

(7) Personal inviolability of consular officials

Scope of personal inviolability of consularofficials

(a) They are not liable to arrest ordetention pending trial, except in caseof a grave crime and pursuant to adecision of a competent judicialauthority.

(b) They shall not be committed to prisonnor be subject to any other form ofrestriction to personal freedom,except in the case of grave crimepursuant to a decision of competent

judicial authority, or in the executionof a final judicial decision. [Sec. 41,VCCR]

Are consular officers and employeesentitled to immunity from the jurisdiction of administrative and judicialauthorities in the receiving state?YES, but this immunity shall not apply to acivil action either:

(a) arising out of a contract by aconsular officer or employee,which he did not concludeexpressly or impliedly as an agentof the sending state; or

(b) by a third party for damage arisingfrom an accident caused byvehicle, vessel or aircraft in thereceiving state. [Art. 43, VCCR]

F. Treaties1. Definition2. Requisites for Validity

3. Treaty-Making Process4. Invalid Treaties5. Grounds for Termination

1. Definition

A 'treaty' is:(1) an international agreement (2) concluded between States (3) in written form and(4) governed by international law ,(5) whether embodied in a single instrument or

in two or more related instruments and(6) whatever its particular designation

[Art.2(1), VCLOT]

Under the VCLOT, the term ―treaty‖ includes allagreements between states, regardless of how theyare called. Thus, for purposes of international law,treaties, executive agreements, exchanges of notes,etc. are all treaties. Note, however, that Philippinelaw makes a distinction between treaties andexecutive agreements. Both are equally binding,but only treaties require the concurrence of theSenate to be effective.

Treaty ExecutiveAgreements

SubjectMatter

1. PoliticalIssues2. Changes in

nationalpolicy

3. Involvesinternationalagreementsof apermanentcharacter

1. Transitoryeffectivity2. Adjusts details

to carry outwell-establishednationalpolicies andtraditions

3. Temporary4. Implements

treaties,statutes,




Treaty ExecutiveAgreements

policies

Ratification

Requiresratification bythe 2/3 of theSenate to bevalid andeffective (Art.VII, Sec. 21)

Does not requireconcurrence bySenate to bebinding

2. Requisites for Validity

a. Treaty Making Capacity

Possessed by all states as an attribute ofsovereignty. International organizations also possesstreaty-making capacity, although limited by theorganization‘s purpose.

b. Competence of the Representative/OrganMaking the Treaty

Generally exercised by the head of state.

Full Powers – refers to the authority of a person tosign a treaty or convention on behalf of a state.

Plenipotentiary - Persons other than the head ofstate, head of government or foreign minister mustproduce such instrument in order to sign a treatybinding their government. Such a person is called a plenipotentiary .

c. Parties Must Freely Give Consent

If consent was given erroneously, or it was inducedby fraud, the treaty shall be voidable.

d. Object and Subject Matter Must be Lawful

e. Ratification in Accordance with theConstitutional Process of the PartiesConcerned

3. The Treaty-Making Process

Negotiation

State representatives discuss the terms andprovisions of the treaty.

Adoption (Article 9, VCLOT)

It means that the form and content have beensettled by the negotiating States. It is preparatory tothe authentication of the text of the treaty and toits signature.

Authentication of the Text (Article 10,VCLOT)

It means that the stage where the definitive text ofthe treaty is established as the correct and authenticone.

Expression of Consent to be bound by theTreaty (Article 11, VCLOT)

Consent to be bound by the terms of a treaty may beexpressed through:

(1) Signature, when the negotiator isauthorized to sign the treaty;

Art. 12(1), VCLOT. Signature alone would besufficient to bind the state to the obligations underthe treaty if(a) the treaty provides that signature shall have

that effect;(b) it is otherwise established that the negotiating

States agreed that signature should have thateffect; or

(c) if the State can be shown to have had theintention to be bound by the signature (look atfull powers of its representative)

(2) Ratification, the formal consent to thetreaty given by the Head of State,sometimes in conjunction with thelegislature; 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) Acceptance

(5) Approval

(6) Accession - The method by which a State,under certain conditions, becomes a partyto a treaty of which it is not a signatory and

in the negotiation of which it did not takepart

(7) By any other means agreed by the parties

Doctrine of TransformationIn Philippine Law, treaties have to be transformed inorder to be part of Philippine law.

A treaty is ―transformed‖ when a treaty is ratifiedafter it has been concurred in by the Senate [Sec.21, Art.VII, Constitution]




After ratification, a treaty shall be deemed as iflegislated by our Legislature.

La Chemise Lacoste v. Fernandez: Lacoste, aFrench corporation, sued local counterfeiters beforePhilippine courts. When the counterfeiterschallenged its legal personality to sue beforePhilippine courts, the Court held that the Philippineshas ratified international conventions for theprotection of intellectual property, and it wouldfrustrate the object of these conventions if Lacosteis barred from filing its claims directly in Philippinecourts.

Registration with the UN

Philippine LawIn the Philippines, the negotiation of treaties andtheir ratification are executive functions, subject toconcurrence of the Senate. Under Sec. 21, Art. VII,(Treaty Clause) of the Constitution, treaties mustreceive the concurrence of the Senate before theymay be effective.

Amendment or Modification of TreatyGENERAL RULE: Consent of all parties is required.

EXCEPTION: If the treaty itself so allows, two Statesmay modify a provision only insofar as theirrelationship inter se.

ReservationsDefinition: A unilateral statement made by a stateupon entering a treaty whereby it purports toexclude 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 tomodify or exclude the provisions of a treaty:

(1) Where the treaty expressly prohibitsreservations in general;

(2) Where the treaty expressly prohibits thatspecific reservation being made; or

(3) Where the reservation is incompatible withtreaty‘s object and purpose [Reservation tothe Genocide Conventions Advisory Opinion]

4. 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 formed anessential basis of a state‘s consent to be bound;

(4) If the representative of a state was corrupted toconsent by another negotiating state;

(5) If consent was obtained through fraudulentconduct of another negotiating state;

(6) If the representative consented in violation ofspecific restrictions on authority, provided : the restriction was notified to the other

negotiating States

prior to the representative expressing suchconsent;

(7) If consent was given in violation of provisions ofinternal law regarding competence to concludetreaties that is manifest and of fundamentalimportance.

5. Grounds for Termination

(1) Expiration of the term, or withdrawal of a partyin accordance with the treaty;(2) Extinction of a party to the treaty, when the

treaty rights and obligations would not devolveupon 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 treaty(9) Fundamental Change of Circumstance (Rebus

sic stantibus) [Art.62, VCLOT]

A contracting state may unilaterally withdraw

from a treaty when a vital or fundamentalchange of circumstance occurs such that thefoundation upon which its consent to be boundinitially rested has disappeared.

Requisites:(a) Change is so substantial that the foundation

of the treaty has altogether disappeared(b) Change was unforeseen or unforeseeable at

the time of the treaty‘s perfection (c) Change was not caused by the party

invoking the doctrine(d) Doctrine was invoked within a reasonable

time

(e) Treaty‘s duration is indefinite (f) Doctrine cannot operate retroactively (itmust not adversely affect provisions whichhave already been complied with prior tothe 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 a newperemptory norm of general international lawwhich renders void any existing, conflicting

treaty.

G. Nationality and Statelessness1. Nationality2. Statelessness

1. Nationality

Definition (Cruz): The tie that binds an individual tohis state, from which he can claim protection andwhose laws he is obliged to obey.




Membership in a political community with all itsconcomitant rights and obligations.

Why important in international law: An individualordinarily can participate in international relationsonly through the instrumentality of the state towhich he belongs, as when his government asserts aclaim on his behalf for injuries suffered by him in aforeign jurisdiction. This remedy would not beavailable to a stateless individual.

Acquisition

By birth(1) Jus soli – nationality of the state where he

is born(2) Jus sanguinis – nationality of his parents

By naturalization – a process by which a foreigneracquires, voluntarily or by operation of law, thenationality of another state

2 Types of Naturalization

(1) Direct by individual proceedings, usually

judicial, under general naturalizationlaws

by special act of legislature by collective change of nationality as a

result of cession or subrogation(naturalization en masse)

by adoption (in some cases)

(2) Derivative – usually subject to stringentrestrictions and conditions on the wife of the naturalized husband on the minor children of the

naturalized parent

on the alien woman upon marriage to anational

An alien woman married to a Filipino shall acquirehis citizenship only if she herself might be lawfullynaturalized. [Yao vs. Commissioner of Immigration]

Multiple Nationality – acquired as the result of theconcurrent application to an individual of theconflicting municipal laws of two or more statesclaiming him as their national

Illustrations A child born in the United States of Filipino

parents would be an American nationalunder jus soli and a Filipino national under jus sanguinis

A woman marrying a foreigner may retainher own nationality under the laws of herstate while also acquiring the nationality ofher husband under the laws of his state

Doctrine of indelible allegiance - anindividual may be compelled to retain hisoriginal nationality notwithstanding that hehas already renounced or forfeited it underthe laws of a second state whose nationalityhe has acquired

A state conferring honorary citizenship uponan individual

Hague Convention of 1930 on Conflict of Nationality Laws: Any question as to whether aperson possesses the nationality of a particular stateshall be determined in accordance with the law ofthat state. These laws shall be recognized by otherstates so long as they are consistent withinternational conventions, international customs and

the principles of law generally recognized withregard to nationality.

Principle of effective nationality – within a thirdstate, a person having more than one nationalityshall be treated as if he had only one. The thirdstate shall recognize conclusively in its territoryeither the nationality of the country in which he ishabitually and principally present or the nationalityof the country with which he appears to be in factmost closely connected.

The courts of third States...seek to resolve theconflict by having recourse to international criteria

and their prevailing tendency is to prefer the realand effective nationality. [Nottebohm Case,Leichtenstein vs. Guatemala]

Loss of Nationality

Voluntary (1) Renunciation (express or implied)(2) Request for release

Involuntary (1) Forfeiture as a result of some

disqualification or prohibited act(2) Substitution of one nationality for another

2. Statelessness

Definition (Cruz): The condition or status of anindividual who is born without any nationality or wholoses his nationality without retaining or acquiringanother.

Covenant Relating to the Status of StatelessPersons: A stateless person is entitled to, amongothers, the right to religion and religious instruction,access to courts, elementary education, public reliefand assistance and rationing of products in shortsupply, as well as treatment of no less favourablethan that accorded to aliens.

H. Treatment of Aliens1. Extradition

GENERAL RULE: An alien cannot claim a preferredposition vis-a-vis the national of the state.

International standard of justice – the standard ofthe reasonable state and calls for compliance withthe ordinary norms of official conduct observed incivilized jurisdictions




Doctrine of State Responsibility: A state may beheld responsible for

(1) an international delinquency(2) directly or indirectly imputable to it(3) which causes injury to the national of

another state

Liability will attach to the state where its treatmentof the alien falls below the international standard ofjustice or where it is remiss in according him the

protection or redress that is warranted by thecircumstances.

Conditions for the enforcement of the doctrine of state responsibility:

(1) Exhaustion of local administrative remedies(2) Must be represented in the international

claim for damages by his own state

Calvo clause – a stipulation by virtue of which analien waives or restricts his right to appeal to hisown state in connection with any claim arising froma contract with a foreign state and limits himself tothe remedies available under the laws of that state

The propriety of governmental acts should be put tothe test of international standards. The treatment ofan alien, in order to constitute an internationaldelinquency, should amount to an outrage, to badfaith, to willful neglect of duty, or to aninsufficiency of governmental action so far short ofinternational standards that every reasonable andimpartial man would readily recognize itsinsufficiency. [Neer Claim (1926)]

1. Extradition

Definition (Cruz): The surrender of a person by onestate to another state where he is wanted forprosecution or, if already convicted, for punishment.

PD 1086: The removal of an accused from thePhilippines with the object of placing him at thedisposal of foreign authorities to enable therequesting state or government to hold him inconnection with any criminal investigation directedagainst him in connection with any criminalinvestigation directed against him or the executionof a penalty imposed on him under the penal orcriminal law of the requesting state or government.

Basis: Treaty between the state of refuge and thestate of origin.

Fundamental Principles

Extradition is based on the consent of the state ofthe state of asylum as expressed in a treaty ormanifested as an act of goodwill.

Principle of speciality – a fugitive who is extraditedmay be tried only for the crime specified in therequest for extradition and included in the list ofoffenses in the extradition.

Any person extradited, whether he be a national ofthe requesting state, of the state of refuge or ofanother state.

Political and religious offenders are generally notsubject to extradition.

In the absence of special agreement, the offensemust have been committed within the territory oragainst the interests of the demanding state.

Rule of double criminality: The act for which theextradition is sought must be punishable in both therequesting and requested states.

Procedure

If the surrender of a fugitive is sought, a request forhis extradition is presented through diplomaticchannels to the state of refuge, with the necessarypapers for identification.

Upon a receipt of the request, the state of refugewill conduct a judicial investigation to ascertain if

the crime is covered by the extradition treaty and ifthere is a prima facie case against the fugitiveaccording to its own laws.

If there is, a warrant of surrender will be drawn andthe fugitive will be delivered to the state of origin.

The evaluation process partakes of the nature of acriminal investigation, having consequences whichwill result in deprivation of liberty of theprospective extradite. A favorable action in anextradition request exposes a person to eventualextradition to a foreign country, thus exhibiting thepenal aspect of the process.

The evaluation process itself is like a preliminaryinvestigation since both procedures may have thesame result – the arrest and imprisonment of therespondent. The basic rights of notice and hearingare applicable in criminal, civil and administrativeproceedings. Non-observance of these rights willinvalidate the proceedings. Individuals are entitledto be notified of any pending case affecting theirinterests, and upon notice, may claim the right toappear therein and present their side. [Secretary of Justice vs. Lantion]

Distinguished from Deportation

Deportation – is the expulsion of an alien who isconsidered undesirable by the local state, usuallybut not necessarily to his own state. It is usually aunilateral act of the local state and is made in itsown interests.

I. International Human Rights Law1. Universal Declaration of Human Rights2. International Covenant on Civil and PoliticalRights (ICCPR)3. International Covenant on Economic, Socialand Cultural Rights (ICESCR)




Definition of Human Rights


Human rights are those fundamental and inalienablerights which are essential for life as a human being.

They pertain to rights of an individual as a humanbeing which are recognized by the international

community as a whole through their protection andpromotion under contemporary international law.

Classification of Human RightsFirst generation – consists of civil and politicalrights;

Second generation – consists of economic, socialand cultural rights;

Third generation – refers to right to development,right to peace, and right to environment.

Firstgeneration

Second generation

Obligatory Force under InternationalLaw

strictly (orobjectively)obligatory,whatever theeconomic orotherconditions ofthe statesobligated

relativelyobligatory: Statesare required toprogressivelyachieve the fullrealization ofthese rights ―tothe maximum oftheir availableresources‖

Derogation/

Restriction,when allowed

may only be

derogated in apublicemergency

may be restricted

for the generalwelfare, with orwithout an―emergency thatthreatens theindependence orsecurity of a StateParty.‖

1. Universal Declaration of HumanRights

The UDHR is the first comprehensive catalogue ofhuman rights proclaimed by an international

organization.

It must be noted, however, that the UDHR is not atreaty.

It has no obligatory character because it wasadopted by the UN GA as Resolution 217A (III). As aresolution, it is merely recommendatory.

Despite this, the UNDHR is considered a normativeinstrument that creates binding obligations for allStates because of the consensus evidenced by thepractice of States that the Declaration is now

binding as part of international law ( Juan CarilloSalcedo, Human Rights, Universal Declaration).

The UDHR embodies both first and second generationrights. The civil and political rights enumeratedinclude:

(1) The right to life, liberty, privacy andsecurity 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 rights enumerated inthe UDHR include:

(1) The right to social security;(2) The right to work and protection againstunemployment;

(3) The right to equal pay for equal work;(4) The right to form and join trade unions;(5) The right to rest and leisure.

2. International Covenant on Civil andPolitical Rights (ICCPR)(Asked 1 time in the Bar)

The ICCPR is an international covenant and is bindingon the respective State Parties.

It embodies the first generation of human rights,although it lists more rights than the UDHR:

(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 to enjoytheir own culture, to profess and practicetheir own religion, or to use their ownlanguage;

(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 pregnant woman.

Obligations of State Parties




(1) Under the ICCPR, State Parties undertake torespect and to ensure to all individualswithin their territory the rights enumeratedtherein, without distinction of any kind,such as 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 effect

to the rights recognized in the ICCPR. (3) State Parties must ensure that any person

whose rights or freedoms are violate havean effective remedy, notwithstanding thatthe violation has been committed by persons action in an official capacity.

(4) State Parties must ensure that any personclaiming such remedy shall have his rightthereto determined by competent judicial,administrative or legislative authority, andthat they shall enforce the remedy when granted.

3. International Covenant on

Economic, Social and Cultural Rights(ICESCR)

The ICESCR, like the ICCPR, is an internationalcovenant and is binding on the respective StateParties.

It embodies the second generation of human rights,although it lists more rights than the UDHR:

(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 andcreativity.

Obligations of State PartiesState Parties are required to undertake thenecessary steps to the maximum of its availableresources, with a view to achieving progressively thefull realization of the rights enumerated in thecovenant by all appropriate means.

Note – unlike the ICCPR, the states under the ICESCRmerely agree to take steps to the maximum of itsavailable resources.

Common Provisions in the ICCPR and the ICESCR and differencesThe common provisions of the two Covenants dealwith 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 the UDHR.

J. International Humanitarian Law

(IHL) and Neutrality1. Categories of Armed Conflicts2. Core International Obligations of States in IHL3. Principles of IHL4. Law on Neutrality

IHL is the branch of public international law whichgoverns armed conflicts to the end that the use ofviolence is limited and that human suffering is

mitigated or reduced by regulating or limiting themeans of military operations and by protecting thosewho do not or no longer participate in the hostilities.

IHL has Two Branches: (1) Law of The Hague, whichestablishes the rights and obligations of belligerentsin the conduct of military operations, and limits themeans of harming the enemy; and the (2) Law of Geneva, which is designed to safeguard militarypersonnel who are no longer taking par in thefighting and people not actively engaged inhostilities (i.e. civilians) (INTERNATIONALCOMMITTEE OF THE RED CROSS [―ICRC‖]).

Note: The two branches draw their names from the

cities where each was initially codified. With theadoption of the Additional Protocols of 1977, whichcombine both branches, that distinction is now ofmerely historical and instructive value (ICRC).

1. Categories of Armed Conflicts

International Armed Conflicts

Definition of ―Armed Conflict‖ An Armed Conflict exists when there is resort to theuse of force

(1) between two states (international armedconflict), or

(2) between government authorities and anorganized armed group, or

(3) between such groups within the sameterritory (non-international armed conflict)[Prosecutor vs. Tadic]

Note: Wars of National Liberation have beenclassified as international armed conflicts (ICRC)

Mere internal disturbances and tensions, or riots orisolated or sporadic acts of armed violence does notamount to an armed conflict (Tadic)

Note: Cases of this type are governed by the

provisions of human rights law and the relevantdomestic laws.

Internal or Non-International Armed Conflict

Conventions is the only provision applicable to non-international armed conflicts.

It defines the following obligations:(1) Persons taking no active part in the

hostilities, including(a) members of the armed forces who have

laid down their arms and




(b) those placed hors de combat, shall inall instances be treated humanelywithout any adverse distinctionfounded on race, color, religion orfaith, sex, birth or wealth, or any othersimilar criteria.

(2) With respect to the persons mentionedabove, the following acts shall remainprohibited:(a) Violence to life and person, in

particular, murder of all kinds,mutilation, cruel treatment andtorture;

(b) Taking of hostages;(c) Outrages upon personal dignity, in

particular humiliating and degradingtreatment;

(d) The passing of sentences and thecarrying out of executions withoutprevious judgment pronounced by aregularly constituted court, affordingall the judicial guarantees which arerecognized as indispensable by civilizedpeoples.

(3) The wounded and the sick shall be collectedand cared for.

The application of provisions above does not affectthe legal status of the parties to the conflict. Hence,an insurgent or a rebel group does not assumebelligerency status.

Article 3 is indifferent to the legal character of suchgroup.

It must be noted that Article 3 is to be applied as aminimum.

Common Article 3 and Protocol II

Protocol II develops and supplements commonArticle 3 (Art. 1, Protocol II).

It applies to:(1) all armed conflicts which take place in the

territory of a State Party,(2) between its armed forces and dissident

armed forces or other organized groups(3) which, under responsible command,

exercise such control over a part of itsterritory

(4) as to enable to carry out sustained andconcerted military operations and to

implement the Protocol.

Application of Article 3 and Protocol IIThe rules in Article 3 are recognized as customarynorms of international law, and therefore applicableto all States. However, Protocol II is a treaty andbinding only States that are parties to it.

Its rules, however, may still develop into customarynorms binding on all states, by the general practiceof states coupled with their acceptance of them aslaw (opinio juris).

Control-of-Territory

The test of whether a dissident armed force hascontrol of territory is when such armed force can (1)carry out sustained and concerted militaryoperations, and whether it has (2) the capacity tocomply with the provisions of the Protocol.

In a non-international armed conflict where thedissident armed forces do not exercise such control

over territory, Article 3, and not Protocol II may beapplicable. The result is that this situation may giverise to two categories of non-international armedconflicts: one where only Article 3 applies, and theother where both Article 3 and Protocol II apply.

War of National Liberation

An armed conflict may be of such nature in whichpeoples are fighting against colonial domination andalien occupation and against racist regimes in theexercise of their right to self-determination.

This conflict, however, is considered an

international armed conflict under Art. 1, par. 3 and4 of Protocol I.

Article 2 common to the four Geneva conventionsprovides that ―all cases of declared war or any otherarmed conflict which may arise between two ormore of the High Contracting Parties, even if thestate of war is not recognized by one of them.‖

Hence, the Geneva conventions and Protocol Igovern wars of national liberation.

Wars by peoples against racist, colonial and aliendomination "for the implementation of their right toself-determination and independence is legitimate

and in full accord with principles of internationallaw," and that any attempt to suppress such struggleis unlawful (Resolution 3103 [XXVIII]).

When peoples subjected to alien domination resortto forcible action in order to exercise their right toself-determination, they "are entitled to seek and toreceive support in accordance with the purposes andprinciples of the Charter (1970 Resolution 2625[XXV])

2. Core International Obligations of States in IHL

3. Principles of IHL

Definition of Concepts and Phrases

CombatantsCombatants are members of the armed forces of aParty to a conflict. [Art. 3(2), Protocol 1]

They have the right to participate directly andindirectly in hostilities. [Art 43(2) Protocol 1]




In fact, only combatants are allowed to engage inhostilities.

According to one commentator, a combatant isallowed to use force, even to kill, and will not beheld personally responsible for his acts, as he wouldbe where he to the same as a normal citizen[Gasser]

Hors de combatUnder Art. 41(2) of Protocol I, a person is hors decombat if he:

(1) Is in the power of an adverse party to theconflict;

(2) He clearly expresses an intention tosurrender; or

(3) He has been rendered unconscious or isotherwise incapacitated by wounds orsickness, and is therefore incapable ofdefending himself, provided that in any ofthese cases, he abstains from any hostileact and does not attempt to escape.

Persons hors de combat shall be protected and

treated humanely without any adverse distinction.Their right to life and physical and moral integrityshall be respected

Protected PersonsProtected persons are those who enjoy or areentitled to protection under the GenevaConventions.

Categories of protected persons include:(1) The wounded, the sick, and shipwrecked;(2) Prisoners of War(3) Civilians

For purposes of protection, civilians are further

classified as:(1) Civilians who are victims of conflict in

countries involved(2) Civilians in territories of the enemy;(3) Civilians in occupied territories;(4) Civilians internees

Treatment of Civilians

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 ofDistinction). Civilians shall be spared frommilitary attacks which shall be directed onlyagainst military objectives.

(3) Persons hors de combat are those who havebeen injured in the course of hostile battleaction and are no longer able to directlytake 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

who is 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 captured by 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 acts

of violence or reprisals. (Legality of theThreat or Use of Nuclear Weapons, AdvisoryOpinion by the ICJ)

Prisoners of War

Article 4, Geneva Convention: Prisoners of war arepersons belonging to one of the following categories:

(1) Members of the armed forces of a Party tothe conflict, including militias or volunteercorps

(2) Militias or volunteer corps operating in oroutside their own territory, even if suchterritory is occupied provided:(a) They are being commanded by a person

responsible for his subordinates(b) Have a fixed distinctive sign

recognizable at a distance(c) Carries arms openly(d) Conducts their operations in

accordance with the laws and customsof war

(3) Members of regular armed forces whoprofess allegiance to a government orauthority not recognized by the DetainingPower

(4) Civilians who accompany the armed forces,provided that they have receivedauthorization from the armed forces whichthey accompany

(5) Members of crews of merchant marine andthe crews of civil aircraft of the Parties tothe conflict

(6) Inhabitants of a non-occupied territory whoon the approach of the enemyspontaneously take up arms to resist theinvading forces, without having had time toform themselves into regular armed units,provided they carry arms openly andrespect the laws and customs of war

(7) Persons belonging to the armed forces ofthe occupied territory




4. Law on Neutrality

Neutrality is the legal status of a State in times ofwar , by which it adopts impartiality in relation tothe belligerents with their recognition.

The Hague Convention Respecting the Rights andDuties of Neutral Powers (Oct. 18, 1907) governs thestatus of neutrality by the following rules:

(1) The territory of the neutral Power isinviolable;

(2) Belligerents are forbidden to move troopsor munitions of war and supplies across theterritory of a neutral Power;

(3) A neutral power is forbidden to allowbelligerents to use its territory for movingtroops, establishing communicationfacilities, or forming corps of combatants.

(4) Troops of belligerent armies received by aneutral Power in its territory shall beinterned by away from the theatre of war;

(5) The neutral Power may supply them withfood, clothing or relief required by

humanity;(6) If the neutral Power receives escaped

prisoners of war, it shall leave them atliberty. It may assign them a place ofresidence if it allows them to remain in itsterritory;

(7) 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 of War) allows neutral Powers to cooperate with the parties

to the armed conflict in making arrangements forthe accommodation in the former‘s territory of thesick and wounded prisoners of war.

Interned persons among the civilian population, inparticular the children, the pregnant women, themothers with infants and young children, woundedand sick, may be accommodated in a neutral state inthe course of hostilities, by agreement between theparties to the conflict.

Protecting PowerA 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 armedconflict with the consent of the other

to safeguard or protect its humanitarianinterests in the conflict, the performanceof which IHL defines specific rights andduties.

K. Law of the Sea1. Baselines2. Archipelagic States3. Internal Waters4. Territorial Sea

5. Exclusive Economic Zone6. Continental Shelf 7. Tribunal of the Law of the Sea

The Law of the Sea (LOS) is the body of treaty rulesand customary norms governing the use of the sea,the exploitation of its resources, and the exercise ofjurisdiction over maritime regimes. [Magallona]

It is the branch of PIL which regulates the relationsof states with respect to the use of the oceans.(Asked 1 time in the Bar)

1. Baselines

DefinitionThe line from which a breadth of the territorial seaand other maritime zones, such as the ―contiguouszone‖ and the ―exclusive economic zone‖ ismeasured.

Its purpose is to determine the starting point tobegin measuring maritime zones boundary of thecoastal state. (See Appendix 1)

Normal baseline – the territorial sea is the low-water line along the coast as marked on large-scalecharts officially recognized by the coastal state.[Art. 5, UN Convention on the Law of the Sea, or UNCLOS]

Straight baseline– where the coastline is deeplyindented or cut into, or if there is a fringe of islandsalong the coast in its immediate vicinity, the methodof straight lines joining the appropriate points maybe employed in drawing the baseline from which thebreadth of the territorial sea is measured [Art. 7,UNCLOS]

2. Archipelagic States

DefinitionIt is a state made up of wholly one or morearchipelagos. It may include other islands.

An archipelago is a group of islands, including partsof islands, interconnecting waters and other naturalfeatures which are so closely related that suchislands, waters and natural features form an intrinsicgeographical, economic and political entity, orwhich historically have been regarded as such.

Straight Archipelagic Baselines

Baselines of archipelagic states Straight baselines join the outermost points of theoutermost islands and drying reefs of an archipelago,provided that within such baselines are included themain islands and an area in which the ratio of thewater to the area of the land, including atolls, isbetween 1 to 1 and 9 to 1. Such are called straightarchipelagic baselines.

Two Kinds of Archipelagos




1. Coastal – situated close to a mainland and maybe considered part thereof, i.e. Norway

2. Mid-ocean– situated in the ocean at suchdistance from the coasts of firm land, i.e.Indonesia (note: The Archipelagic State provisions apply only to mid-ocean archipelagoscomposed of islands, and NOT to a partly continental state.)

Territorial sea and other maritime zones – thebreadth of the territorial sea, the contiguous zone,and the EEZ is measured from the straightarchipelagic baselines.

Archipelagic Waters

Archipelagic waters– these are the waters enclosedby the straight archipelagic baselines, regardless oftheir depth or distance from the coast.

It is subject to the sovereignty of the archipelagicstate, but subject to the right of innocent passagefor the ships of all states.

Archipelagic Sea Lanes Passage

Other Rights with Respect to Archipelagic Waters(1) Rights under existing agreement on the

part of third states should be respected bythe archipelagic state.

(2) Within its archipelagic waters, thearchipelagic state shall recognizetraditional fishing rights and otherlegitimate activities of immediatelyadjacent neighboring states.

(3) The archipelagic state shall respect existingsubmarine cables laid by other states and―passing through its waters without makinga landfall‖.

(4) Right of archipelagic sea lanes passage: Itis the right of foreign ships and aircraft tohave continuous, expeditious, and unobstructed passage in sea lanes and air routes through or over archipelagic waters and the adjacent territorial sea of thearchipelagic state.

Note: the archipelagic state designates the sea lanesas proposals to the ―competent internationalorganization‖. It is the International MarineOrganization (IMO) which adopts them through Art.53(9) of the UNCLOS which states that ―theOrganization may adopt only sea lanes and traffic

separation schemes as may be agreed with thearchipelagic state, after which such state maydesignate, prescribe or substitute them‖.

Special Issue: Under Art. 1 of the 1987 Constitution,the archipelagic waters of the Philippines arecharacterized as forming part of ―the internal watersof the Philippines.‖ However, under the UNCLOS,archipelagic waters consist mainly of the ―watersaround, between, and connecting the islands of thearchipelago, regardless of breadth or dimension.‖

Thus, conversion from internal waters under theConstitution into archipelagic waters under theUNCLOS gravely derogates the sovereignty of thePhilippine state. Remember that sovereignty overinternal waters precludes the right of innocentpassage and other rights pertaining to archipelagicwaters under the UNCLOS.

3. Internal Waters

(Asked 1 time in the Bar)

DefinitionThese are waters of lakes, rivers, and bays landwardof 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's landterritory, and is subject to the full exercise ofsovereignty. Thus, the coastal state may designatewhich waters to open and which to close to foreignshipping.

4. Territorial Sea(Asked 1 time in the Bar)

DefinitionThese waters stretch up to 12 miles from thebaseline on the seaward direction.

They are subject to the jurisdiction of the coastalstate, which jurisdiction almost approximates thatwhich is exercised over land territory.

Except that the coastal state must respect the rightsto (1) innocent passage and, in the case of certain

straits, to (2) transit passage. (Asked 1 time in theBar)

Innocent passage navigation through theterritorial sea w/o entering internal waters, going tointernal waters, or coming from internal waters andmaking for the high seas.

It must (a) involve only acts that are required bynavigation or by distress, and (b) not prejudice thepeace, security, or good order of the coastal state.

Transit passage the right to exercise freedom ofnavigation and overflight solely for the purpose ofcontinuous and expeditious transit through thestraights used for international navigation.

The right cannot be unilaterally suspended by thecoastal state.

INNOCENT PASSAGE TRANSIT PASSAGEPertains to navigation ofships only

Includes the right ofoverflight

Requires submarines andother underwatervehicles to navigate onthe surface and show

Submarines are allowedto navigate in ―normalmode‖ – i.e. submerged




INNOCENT PASSAGE TRANSIT PASSAGEtheir flag.Can be suspended, butunder the condition thatit does not discriminateamong foreign ships, andsuch suspension isessential for theprotection of itssecurity, and suspensionis effective only afterhaving been dulypublished (Art. 25,UNCLOS)

Cannot be suspended

In the designation of sealanes and trafficseparation schemes, thecoastal state shall onlytake into account therecommendations of thecompetent internationalorganization.

Designation of sea lanesand traffic separationschemes is subject toadoption by competentinternationalorganization upon theproposal and agreementof states bordering thestraits.

5. Exclusive Economic Zone(Asked 1 time in the Bar)

A coastal state may establish an EEZ that maystretch up to 200 miles from its baselines.

Within this zone, a State may regulate nonliving andliving resources, other economic resources, artificialinstallations, scientific research, and pollutioncontrol.

Under the UNCLOS, states have the sovereign rightto exploit the resources of this zone, but shall sharethat part of the catch that is beyond its capacity to

harvest.

Resources covered by sovereign rights of coastalstates in the EEZ include living and non-livingresources in the waters of the seabed and its subsoil.

Coastal states have the primary responsibility toutilize, manage and conserve the living resourceswithin their EEZ, i.e. ensuring that living resourcesare not endangered by overexploitation, and theduty to promote optimum utilization of livingresources by determining allowable catch.

If after determining the maximum allowable catch,the coastal state does not have the capacity to

harvest the entire catch, it shall give other statesaccess to the surplus by means of arrangementsallowable under the UNCLOS.

Note however that the UNLCOS does not specify themethod for determining ―allowable catch.‖ Hence,states may establish illusory levels.

Geographically disadvantaged states (those whohave no EEZ of their own or those coastal stateswhose geographical situations make them dependenton the exploitation of the living resources of the EEZof other states) and land-locked states have the

right to participate, on equitable basis, in theexploitation of the surplus of the living resources inthe EEZ of coastal states of the same subregion orregion.

Note: a coastal state whose economy isoverwhelmingly dependent on the exploitation of itsEEZ is not required to share its resources.

The coastal state has jurisdiction over the(1) establishment and use of artificial islands,

installations and structures,(2) scientific research,(3) the preservation and protection of marine

environment.

Under Art. 58 of the UNCLOS, all states enjoy thefreedom of navigation, overflight, and laying ofsubmarine cables and pipelines in the EEZ of coastalstates.

The coastal state has the right to enforce all lawsand regulations enacted to conserve and managethe living resources in its EEZ. It may board and

inspect a ship, arrest a ship and its crew andinstitute judicial proceedings against them.

Note: In detention of foreign vessels, the coastalstate has the duty to promptly notify the flag stateof the action taken.

Conflicts regarding the attribution of rights andjurisdiction in the EEZ must be resolved on the basisof equity and in the light of all relevantcircumstances, taking into account the respectiveimportance of the interests involved to the partiesas well as to the international community as awhole. [Art. 59, UNCLOS]

6. Continental Shelf

Extended Continental Shelf

Definition It is the seabed and subsoil of the submarine areasextending beyond the territorial sea of the coastalstate throughout the natural prolongation of itslands territory up to

(1) the outer edge of the continental margin,or

(2) a distance of 200 nautical miles from thebaselines of the territorial sea where the

outer edge of the continental margin doesnot extend up to that distance.

Continental margin the submerged prolongationof the land mass of the continental state, consistingof the continental shelf proper, the continentalslope, and the continental rise

Limits of the Continental Shelf

Juridical or Legal Continental Shelf: 0-200 nauticalmiles from baselines




Extended Continental Shelf: 200-350 nautical milesfrom baselines depending on geomorphological orgeological data and information

When the continental shelf extends beyond 200nautical miles, the coastal state shall establish itsouter limits.

At any rate, the continental shelf shall not extendbeyond 350 nautical miles from the baseline of the

territorial sea, or 100 nautical miles from the 2500-meter isobath (or the point where the waters are2500 meters deep).

Rights of the Coastal State over theContinental Shelf

The continental shelf does not form part of theterritory of the coastal state.

It only has sovereign rights with respect to theexploration and exploitation of its natural resources,including the mineral and other non-living resourcesof the seabed and subsoil together with living

organisms belonging to the sedentary species.*

For example, the coastal state has the exclusiveright to authorize and regulate oil-drilling on itscontinental shelf.

These rights are exclusive in the sense that whenthe coastal state does not explore its continentalshelf or exploit its resources, no one may undertakethese activities without the coastal state‘s consent.

Note: In instances where the continental margin ismore than 200 nautical miles from the baselines, andhence extends beyond the EEZ, the coastal state hasthe exclusive right to exploit mineral and non-livingresources in the ―excess area‖.

Rights with Respect to Continental Shelf vs.EEZ

Continental Shelf EEZ Duty tomanageand conservelivingresources

No duty Coastal state isobliged tomanage andconserve livingresources in theEEZ

Rights of the coastal

state as tonaturalresources

Relate to mineraland other non-

living resourcesof the seabed andthe subsoil

Have to do withnatural resources

of both waterssuperadjacent tothe seabed andthose of theseabed andsubsoil

Rights of the coastal

Apply only tosedentary species

Do not pertain tosedentary species

* 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 withthe seabed or subsoil.

state as tolivingresources

of such livingresources

7. Tribunal of the Law of the Sea

Settlement of Disputes

Peaceful Settlement of Disputes

Under par. 3, Art. 2 of the UN Charter, States havethe duty to settle disputes by peaceful means. Thisobligation extends to State Parties of the UNCLOS,underscoring the right of the parties to resort topeaceful means of their own choice on which theycan agree any time.

Compulsory Settlement of Disputes

Where no successful settlement can be achieved, orif the parties are unable to agree on the means ofsettlement of a dispute concerning the applicationof UNCLOS, such dispute may be governed by the

principle of compulsory settlement, whereprocedures entail binding decisions.

Compulsory Procedures that States Parties CanChoose From:

(1) International Tribunal for the Law of theSea*;

(2) International Court of Justice;(3) Arbitral Tribunal*;(4) Special Arbitral Tribunal*;

The choice of the State Parties must be expressed ina written declaration, which is revocable andreplaceable.

Jurisdiction of Court or Tribunal

The court or Tribunal has jurisdiction over:(1) any dispute submitted to it concerning the

application or interpretation of UNCLOS(2) any dispute concerning the interpretation

or application of an internationalagreement:(a) related to the purposes of the UNCLOS(b) when such dispute is submitted to it in

accordance with that agreement.

Composition of the International Tribunal for theLaw of the Sea (ITLOS)It is composed of 21 ―independent members electedfrom among persons enjoying the highest reputationfor fairness and integrity and of recognizedcompetence in the field of the law of the sea‖.

The composition shall also be representative of theworld‘s principal legal systems and of equitablegeographical distribution.

Jurisdiction of ITLOS

* As established under the UNCLOS.




Its jurisdiction covers all disputes submitted to it inaccordance with the UNCLOS. It also includesmatters submitted to it under any other agreement.

Applicable Laws in Settlement of Disputes bythe ITLOS

The Tribunal shall apply the UNLCOS and other rulesof international law not incompatible with theUNCLOS.

It may also decide a case ex aequo et bono (what isequitable and just) if the parties so agree.

L. International Environment Law

by States according to their capabilities. Wherethere are threats of serious or irreversible damage,lack of full scientific certainty shall not be used as areason for postponing cost-effective measures toprevent environmental degradation.

Political Law Up 2012

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